Legal Ethics
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), petitioner,
vs. SANDIGANBAYAN (Fifth Division)
This case is prima impressiones and it is weighted with significance for it
concerns on one hand, the efforts of the Bar to upgrade the ethics of lawyers in
government service and on the other, its effect on the right of government to
recruit competent counsel to defend its interests.
In 1976, General Bank and Trust Company (GENBANK) encountered financial
difficulties. GENBANK had extended considerable financial support to Filcapital
Development Corporation causing it to incur daily overdrawings on its current
account with the Central Bank. [1] It was later found by the Central Bank that
GENBANK had approved various loans to directors, officers, stockholders and
related interests totaling P172.3 million, of which 59% was classified as doubtful
and P0.505 million as uncollectible. [2] As a bailout, the Central Bank extended
emergency loans to GENBANK which reached a total of P310 million.
[3]
Despite the mega loans, GENBANK failed to recover from its financial woes. On
March 25, 1977, the Central Bank issued a resolution declaring
GENBANK insolvent and unable to resume business with safety to its depositors,
creditors and the general public, and ordering its liquidation.[4] A public
bidding of GENBANKs assets was held from March 26 to 28, 1977, wherein the
Lucio Tan group submitted the winning bid. [5] Subsequently, former Solicitor
General Estelito P. Mendoza filed a petition with the then Court of First
Instance praying for the assistance and supervision of the court in GENBANKs
liquidation as mandated by Section 29 of Republic Act No. 265.
In February 1986, the EDSA I revolution toppled the Marcos government. One
of the first acts of President Corazon C. Aquino was to establish the Presidential
Commission on Good Government (PCGG) to recover the alleged ill-gotten wealth
of former President Ferdinand Marcos, his family and his cronies. Pursuant to this
mandate, the PCGG, on July 17, 1987, filed with the Sandiganbayan a complaint
for reversion, reconveyance, restitution, accounting and damages against
respondents Lucio Tan, Carmen Khao Tan, Florencio T. Santos, Natividad P. Santos,
Domingo Chua, Tan Hui Nee, Mariano Tan Eng Lian, Estate of Benito Tan Kee Hiong,
Florencio N. Santos, Jr., Harry C. Tan, Tan Eng Chan, Chung Poe Kee, Mariano Khoo,
Manuel Khoo, Miguel Khoo, Jaime Khoo, Elizabeth Khoo, Celso Ranola, William T.
Wong, Ernesto B. Lim, Benjamin T. Albacita, Willy Co, Allied Banking Corporation
(Allied Bank), Allied Leasing and Finance Corporation, Asia Brewery, Inc., Basic
Holdings Corp., Foremost Farms, Inc., Fortune Tobacco Corporation, Grandspan
Development Corp., Himmel Industries, Iris Holdings and Development Corp., Jewel
Holdings, Inc., Manufacturing Services and Trade Corp., Maranaw Hotels and Resort
Corp., Northern Tobacco Redrying Plant, Progressive Farms, Inc., Shareholdings,
Inc., Sipalay Trading Corp., Virgo Holdings & Development Corp., (collectively
referred to herein as respondents Tan, et al.), then President Ferdinand E. Marcos,
Imelda R. Marcos, Panfilo O. Domingo, Cesar Zalamea, Don Ferry and Gregorio
Licaros. The case was docketed as Civil Case No. 0005 of the Second Division
of the Sandiganbayan.[6] In connection therewith, the PCGG issued several writs
of sequestration on properties allegedly acquired by the above-named persons
by taking advantage of their close relationship and influence with former President
Marcos.
Respondents Tan, et al. repaired to this Court and filed petitions for certiorari,
prohibition and injunction to nullify, among others, the writs of sequestration
issued by the PCGG.[7] After the filing of the parties comments, this Court referred
the cases to the Sandiganbayan for proper disposition. These cases were
docketed as Civil Case Nos. 0096-0099. In all these cases, respondents Tan, et
al. were represented by their counsel, former Solicitor General Estelito P. Mendoza,
who has then resumed his private practice of law.
On February 5, 1991, the PCGG filed motions to disqualify respondent
Mendoza as counsel for respondents Tan, et al. with the Second Division of
the Sandiganbayan in Civil Case Nos. 0005[8] and 0096-0099.[9] The motions
alleged that respondent Mendoza, as then Solicitor General [10] and counsel to
Central Bank, actively intervened in the liquidation of GENBANK, which was
subsequently acquired by respondents Tan, et al. and became Allied Banking
Corporation. Respondent Mendoza allegedly intervened in the acquisition of
GENBANK by respondents Tan, et al. when, in his capacity as then Solicitor
General, he advised the Central Banks officials on the procedure to bring about
GENBANKs liquidation and appeared as counsel for the Central Bank in connection
with its petition for assistance in the liquidation of GENBANK which he filed with
the Court of First Instance (now Regional Trial Court) of Manila and was docketed as
Special Proceeding No. 107812. The motions to disqualify invoked Rule 6.03 of
the Code of Professional Responsibility. Rule 6.03 prohibits former
government lawyers from accepting engagement or employment in connection
with any matter in which he had intervened while in said service.
On April 22, 1991 the Second Division of the Sandiganbayan issued a
resolution denying PCGGs motion to disqualify respondent Mendoza in Civil Case
No. 0005.[11] It found that the PCGG failed to prove the existence of an
inconsistency between respondent Mendozas former function as Solicitor General
and his present employment as counsel of the Lucio Tan group. It noted that
respondent Mendoza did not take a position adverse to that taken on behalf of the
Central Bank during his term as Solicitor General. [12] It further ruled that
respondent Mendozas appearance as counsel for respondents Tan, et al. was
beyond the one-year prohibited period under Section 7(b) of Republic Act No. 6713
since he ceased to be Solicitor General in the year 1986. The said section prohibits
a former public official or employee from practicing his profession in connection
with any matter before the office he used to be with within one year from his
resignation, retirement or separation from public office. [13] The PCGG did not seek
any reconsideration of the ruling.[14]
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Legal Ethics
It appears that Civil Case Nos. 0096-0099 were transferred from
the Sandiganbayans Second Division to the Fifth Division. [15] In its resolution
dated July 11, 2001, the Fifth Division of the Sandiganbayan denied the other
PCGGs motion to disqualify respondent Mendoza. [16] It adopted the resolution of
its Second Division dated April 22, 1991, and observed that the arguments were
the same in substance as the motion to disqualify filed in Civil Case No. 0005. The
PCGG sought reconsideration of the ruling but its motion was denied in its
resolution dated December 5, 2001.[17]
Hence, the recourse to this Court by the PCGG assailing the resolutions dated
July 11, 2001 and December 5, 2001 of the Fifth Division of
the Sandiganbayan via a petition for certiorari and prohibition under Rule 65 of
the 1997 Rules of Civil Procedure. [18] The PCGG alleged that the Fifth
Division acted with grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the assailed resolutions contending that: 1) Rule 6.03 of the
Code of Professional Responsibility prohibits a former government lawyer from
accepting employment in connection with any matter in which he intervened; 2)
the prohibition in the Rule is not time-bound; 3) that Central Bank could not waive
the objection to respondent Mendozas appearance on behalf of the PCGG; and 4)
the resolution in Civil Case No. 0005 was interlocutory, thus res judicata does not
apply.[19]
The petition at bar raises procedural and substantive issues of law. In view,
however, of the import and impact of Rule 6.03 of the Code of Professional
Responsibility to the legal profession and the government, we shall cut our way
and forthwith resolve the substantive issue.
I David Hoffman and George Sharswood, and many other lawyers were working to
Substantive Issue
The key issue is whether Rule 6.03 of the Code of Professional Responsibility
applies to respondent Mendoza. Again, the prohibition states: A lawyer shall not,
after leaving government service, accept engagement or employment in
connection with any matter in which he had intervenedwhile in the said service.
I.A. The history of Rule 6.03
A proper resolution of this case necessitates that we trace the historical
lineage of Rule 6.03 of the Code of Professional Responsibility.
In the seventeenth and eighteenth centuries, ethical standards for
lawyers were pervasive in England and other parts of Europe. The early
statements of standards did not resemble modern codes of conduct. They were not
detailed or collected in one source but surprisingly were comprehensive for their
time. The principal thrust of the standards was directed towards the litigation
conduct of lawyers. It underscored the central duty of truth and fairness in
litigation as superior to any obligation to the client. The formulations of the
litigation duties were at times intricate, including specific pleading standards, an
obligation to inform the court of falsehoods and a duty to explore settlement
alternatives. Most of the lawyer's other basic duties -- competency, diligence,
loyalty, confidentiality, reasonable fees and service to the poor -- originated in the
litigation context, but ultimately had broader application to all aspects of a
lawyer's practice.
The forms of lawyer regulation in colonial and early post-revolutionary
America did not differ markedly from those in England. The colonies and early
states used oaths, statutes, judicial oversight, and procedural rules to govern
attorney behavior. The difference from England was in the pervasiveness and
continuity of such regulation. The standards set in England varied over time, but
the variation in early America was far greater. The American regulation fluctuated
within a single colony and differed from colony to colony. Many regulations had the
effect of setting some standards of conduct, but the regulation was sporadic,
leaving gaps in the substantive standards. Only three of the traditional core duties
can be fairly characterized as pervasive in the formal, positive law of the colonial
and post-revolutionary period: the duties of litigation fairness, competency and
reasonable fees.[20]
The nineteenth century has been termed the dark ages of legal ethics in
the United States. By mid-century, American legal reformers were filling the void in
two ways. First, David Dudley Field, the drafter of the highly influential New York
Field Code, introduced a new set of uniform standards of conduct for lawyers. This
concise statement of eight statutory duties became law in several states in the
second half of the nineteenth century. At the same time, legal educators, such as
flesh out the broad outline of a lawyer's duties. These reformers wrote about legal
ethics in unprecedented detail and thus brought a new level of understanding to a
lawyer's duties. A number of mid-nineteenth century laws and statutes, other than
the Field Code, governed lawyer behavior. A few forms of colonial regulations e.g.,
the do no falsehood oath and the deceit prohibitions -- persisted in some states.
Procedural law continued to directly, or indirectly, limit an attorney's litigation
behavior. The developing law of agency recognized basic duties of competence,
loyalty and safeguarding of client property. Evidence law started to recognize with
less equivocation the attorney-client privilege and its underlying theory of
confidentiality. Thus, all of the core duties, with the likely exception of service to
the poor, had some basis in formal law. Yet, as in the colonial and early post-
revolutionary periods, these standards were isolated and did not provide a
comprehensive statement of a lawyer's duties. The reformers, by contrast, were
more comprehensive in their discussion of a lawyer's duties, and they actually
ushered a new era in American legal ethics.[21]
Toward the end of the nineteenth century, a new form of ethical standards
began to guide lawyers in their practice the bar association code of legal ethics.
The bar codes were detailed ethical standards formulated by lawyers for lawyers.
They combined the two primary sources of ethical guidance from the nineteenth
century. Like the academic discourses, the bar association codes gave detail to the
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Legal Ethics
statutory statements of duty and the oaths of office. Unlike the academic lectures,
however, the bar association codes retained some of the official imprimatur of the
statutes and oaths. Over time, the bar association codes became extremely
popular that states adopted them as binding rules of law. Critical to the
development of the new codes was the re-emergence of bar associations
themselves. Local bar associations formed sporadically during the colonial period,
but they disbanded by the early nineteenth century. In the late nineteenth century,
bar associations began to form again, picking up where their colonial predecessors
had left off. Many of the new bar associations, most notably the Alabama State Bar
Association and the American Bar Association, assumed on the task of drafting
substantive standards of conduct for their members. [22]
In 1887, Alabama became the first state with a comprehensive bar
association code of ethics. The 1887 Alabama Code of Ethics was the model for
several states codes, and it was the foundation for the American Bar Association's
(ABA) 1908 Canons of Ethics.[23]
In 1917, the Philippine Bar found that the oath and duties of a lawyer were
insufficient to attain the full measure of public respect to which the legal profession
was entitled. In that year, the Philippine Bar Association adopted as its own,
Canons 1 to 32 of the ABA Canons of Professional Ethics. [24]
As early as 1924, some ABA members have questioned the form and
function of the canons. Among their concerns was the revolving door or the
process by which lawyers and others temporarily enter government service from
private life and then leave it for large fees in private practice, where they can
exploit information, contacts, and influence garnered in government service.
[25]
These concerns were classified as adverse-interest
conflicts and congruent-interest conflicts. Adverse-interest conflicts exist
where the matter in which the former government lawyer represents a client in
private practice is substantially related to a matter that the lawyer dealt with while
employed by the government and the interests of the current and former are
adverse.[26] On the other hand, congruent-interest representation
conflicts are unique to government lawyers and apply primarily to former
government lawyers.[27] For several years, the ABA attempted to correct and
update the canons through new canons, individual amendments and interpretative
opinions. In 1928, the ABA amended one canon and added thirteen new canons.
[28]
To deal with problems peculiar to former government lawyers, Canon 36 was
minted which disqualified them both for adverse-interest conflicts and congruent-
interest representation conflicts.[29] The rationale for disqualification is rooted in a
concern that the government lawyers largely discretionary actions would be
influenced by the temptation to take action on behalf of the government client that
later could be to the advantage of parties who might later become private practice
clients.[30] Canon 36 provides, viz.:
36. Retirement from judicial position or public employment
A lawyer should not accept employment as an advocate in any matter upon the
merits of which he has previously acted in a judicial capacity.
A lawyer, having once held public office or having been in the public
employ should not, after his retirement, accept employment in
connection with any matter he has investigated or passed upon while in
such office or employ.
Over the next thirty years, the ABA continued to amend many of the canons
and added Canons 46 and 47 in 1933 and 1937, respectively. [31]
In 1946, the Philippine Bar Association again adopted as its own Canons
33 to 47 of the ABA Canons of Professional Ethics.[32]
By the middle of the twentieth century, there was growing consensus that
the ABA Canons needed more meaningful revision. In 1964, the ABA President-
elect Lewis Powell asked for the creation of a committee to study the adequacy
and effectiveness of the ABA Canons. The committee recommended that the
canons needed substantial revision, in part because the ABA Canons failed to
distinguish between the inspirational and the proscriptive and were thus
unsuccessful in enforcement. The legal profession in the United States likewise
observed that Canon 36 of the ABA Canons of Professional Ethics resulted in
unnecessary disqualification of lawyers for negligible participation in matters
during their employment with the government.
The unfairness of Canon 36 compelled ABA to replace it in the 1969
ABA Model Code of Professional Responsibility.[33] The basic ethical principles
in the Code of Professional Responsibility were supplemented by Disciplinary Rules
that defined minimum rules of conduct to which the lawyer must adhere. [34] In the
case of Canon 9, DR 9-101(b)[35] became the applicable supplementary norm. The
drafting committee reformulated the canons into the Model Code of Professional
Responsibility, and, in August of 1969, the ABA House of Delegates approved
the Model Code.[36]
Despite these amendments, legal practitioners remained unsatisfied with the
results and indefinite standards set forth by DR 9-101(b) and the Model Code of
Professional Responsibility as a whole. Thus, in August 1983, the ABA adopted
new Model Rules of Professional Responsibility. The Model Rules used the
restatement format, where the conduct standards were set-out in rules, with
comments following each rule. The new format was intended to give better
guidance and clarity for enforcement because the only enforceable standards were
the black letter Rules. The Model Rules eliminated the broad canons altogether and
reduced the emphasis on narrative discussion, by placing comments after the rules
and limiting comment discussion to the content of the black letter rules. The Model
Rules made a number of substantive improvements particularly with regard to
conflicts of interests.[37] In particular, the ABA did away with Canon 9, citing
the hopeless dependence of the concept of impropriety on the subjective
views of anxious clients as well as the norms indefinite nature. [38]
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Legal Ethics
In cadence with these changes, the Integrated Bar of the Philippines
(IBP) adopted a proposed Code of Professional Responsibility in 1980
which it submitted to this Court for approval. The Code was drafted to reflect
the local customs, traditions, and practices of the bar and to conform with new
realities. On June 21, 1988, this Court promulgated the Code of
Professional Responsibility.[39] Rule 6.03 of the Code of Professional
Responsibility deals particularly with former government lawyers, and
provides, viz.:
Rule 6.03 A lawyer shall not, after leaving government service, accept engagement
or employment in connection with any matter in which he had intervened while
in said service.
Rule 6.03 of the Code of Professional Responsibility retained the general
structure of paragraph 2, Canon 36 of the Canons of Professional Ethics
but replaced the expansive phrase investigated and passed upon with the
word intervened. It is, therefore, properly applicable to both adverse-interest
conflicts and congruent-interest conflicts.
The case at bar does not involve the adverse interest aspect of Rule
6.03. Respondent Mendoza, it is conceded, has no adverse interest problem when
he acted as Solicitor General in Sp. Proc. No. 107812 and later as counsel of
respondents Tan, et al. in Civil Case No. 0005 and Civil Case Nos. 0096-0099 before
the Sandiganbayan. Nonetheless, there remains the issue of whether there
exists a congruent-interest conflict sufficient to disqualify respondent Mendoza
from representing respondents Tan, et al.
I.B. The congruent interest aspect of Rule 6.03
The key to unlock Rule 6.03 lies in comprehending first, the meaning
of matter referred to in the rule and, second, the metes and bounds of
the intervention made by the former government lawyer on the matter. The
American Bar Association in its Formal Opinion 342, defined matter as any
discrete, isolatable act as well as identifiable transaction or conduct involving a
particular situation and specific party, and not merely an act of drafting,
enforcing or interpreting government or agency procedures, regulations or laws, or
briefing abstract principles of law.
Firstly, it is critical that we pinpoint the matter which was the subject of
intervention by respondent Mendoza while he was the Solicitor General. The PCGG
relates the following acts of respondent Mendoza as constituting the matter where
he intervened as a Solicitor General, viz:[40]
The PCGGs Case for Atty. Mendozas Disqualification
The PCGG imputes grave abuse of discretion on the part of
the Sandiganbayan (Fifth Division) in issuing the assailed Resolutions dated July 11,
2001 and December 5, 2001 denying the motion to disqualify Atty. Mendoza as
counsel for respondents Tan, et al. The PCGG insists that Atty. Mendoza, as then
Solicitor General, actively intervened in the closure of GENBANK by advising the
Central Bank on how to proceed with the said banks liquidation and even filing the
petition for its liquidation with the CFI of Manila.
As proof thereof, the PCGG cites the Memorandum dated March 29, 1977 prepared
by certain key officials of the Central Bank, namely, then Senior Deputy Governor
Amado R. Brinas, then Deputy Governor Jaime C. Laya, then Deputy Governor and
General Counsel Gabriel C. Singson, then Special Assistant to the Governor Carlota
P. Valenzuela, then Asistant to the Governor Arnulfo B. Aurellano and then Director
of Department of Commercial and Savings Bank Antonio T. Castro, Jr., where they
averred that on March 28, 1977, they had a conference with the Solicitor General
(Atty. Mendoza), who advised them on how to proceed with the liquidation of
GENBANK. The pertinent portion of the said memorandum states:
Immediately after said meeting, we had a conference with the Solicitor General
and he advised that the following procedure should be taken:
1. Management should submit a memorandum to the Monetary Board
reporting that studies and evaluation had been made since the last
examination of the bank as of August 31, 1976 and it is believed that
the bank can not be reorganized or placed in a condition so that it
may be permitted to resume business with safety to its depositors
and creditors and the general public.
2. If the said report is confirmed by the Monetary Board, it shall order the
liquidation of the bank and indicate the manner of its liquidation and
approve a liquidation plan.
3. The Central Bank shall inform the principal stockholders of Genbank of
the foregoing decision to liquidate the bank and the liquidation plan
approved by the Monetary Board.
4. The Solicitor General shall then file a petition in the Court of First
Instance reciting the proceedings which had been taken and praying
the assistance of the Court in the liquidation of Genbank.
The PCGG further cites the Minutes No. 13 dated March 29, 1977 of the Monetary
Board where it was shown that Atty. Mendoza was furnished copies of pertinent
documents relating to GENBANK in order to aid him in filing with the court the
petition for assistance in the banks liquidation. The pertinent portion of the said
minutes reads:
The Board decided as follows:
...
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Legal Ethics
E. To authorize Management to furnish the Solicitor General with a
copy of the subject memorandum of the Director, Department
of Commercial and Savings Bank dated March 29, 1977,
together with copies of:
1. Memorandum of the Deputy Governor, Supervision and
Examination Sector, to the Monetary Board, dated March
25, 1977, containing a report on the current situation of
Genbank;
2. Aide Memoire on the Antecedent Facts Re: General Bank
and Trust Co., dated March 23, 1977;
3. Memorandum of the Director, Department of Commercial
and Savings Bank, to the Monetary Board, dated March
24, 1977, submitting, pursuant to Section 29 of R.A. No.
265, as amended by P.D. No. 1007, a repot on the state of
insolvency of Genbank, together with its attachments;
and
4. Such other documents as may be necessary or needed by
the Solicitor General for his use in then CFI-praying the
assistance of the Court in the liquidation of Genbank.
Beyond doubt, therefore, the matter or the act of respondent Mendoza as
Solicitor General involved in the case at bar is advising the Central Bank, on how
to proceed with the said banks liquidation and even filing the petition for its
liquidation with the CFI of Manila. In fine, the Court should resolve whether his act
of advising the Central Bank on the legal procedure to liquidate GENBANK is
included within the concept of matter under Rule 6.03. The procedure of
liquidation is given in black and white in Republic Act No. 265, section 29, viz:
The provision reads in part:
SEC. 29. Proceedings upon insolvency. Whenever, upon
examination by the head of the appropriate supervising or examining
department or his examiners or agents into the condition of any bank or
non-bank financial intermediary performing quasi-banking functions, it
shall be disclosed that the condition of the same is one of insolvency, or
that its continuance in business would involve probable loss to its
depositors or creditors, it shall be the duty of the department head
concerned forthwith, in writing, to inform the Monetary Board of the
facts, and the Board may, upon finding the statements of the
department head to be true, forbid the institution to do business in the
Philippines and shall designate an official of the Central Bank or a person
of recognized competence in banking or finance, as receiver to
immediately take charge of its assets and liabilities, as expeditiously as
possible collect and gather all the assets and administer the same for
the benefit of its creditors, exercising all the powers necessary for these
purposes including, but not limited to, bringing suits and foreclosing
mortgages in the name of the bank or non-bank financial intermediary
performing quasi-banking functions.
...
If the Monetary Board shall determine and confirm within the said
period that the bank or non-bank financial intermediary performing
quasi-banking functions is insolvent or cannot resume business with
safety to its depositors, creditors and the general public, it shall, if the
public interest requires, order its liquidation, indicate the manner of its
liquidation and approve a liquidation plan. The Central Bank shall, by the
Solicitor General, file a petition in the Court of First Instance reciting the
proceedings which have been taken and praying the assistance of the
court in the liquidation of such institution. The court shall have
jurisdiction in the same proceedings to adjudicate disputed claims
against the bank or non-bank financial intermediary performing quasi-
banking functions and enforce individual liabilities of the stockholders
and do all that is necessary to preserve the assets of such institution and
to implement the liquidation plan approved by the Monetary Board. The
Monetary Board shall designate an official of the Central Bank, or a
person of recognized competence in banking or finance, as liquidator
who shall take over the functions of the receiver previously appointed by
the Monetary Board under this Section. The liquidator shall, with all
convenient speed, convert the assets of the banking institution or non-
bank financial intermediary performing quasi-banking functions to
money or sell, assign or otherwise dispose of the same to creditors and
other parties for the purpose of paying the debts of such institution and
he may, in the name of the bank or non-bank financial intermediary
performing quasi-banking functions, institute such actions as may be
necessary in the appropriate court to collect and recover accounts and
assets of such institution.
The provisions of any law to the contrary notwithstanding, the
actions of the Monetary Board under this Section and the second
paragraph of Section 34 of this Act shall be final and executory, and can
be set aside by the court only if there is convincing proof that the action
is plainly arbitrary and made in bad faith. No restraining order or
injunction shall be issued by the court enjoining the Central Bank from
implementing its actions under this Section and the second paragraph of
Section 34 of this Act, unless there is convincing proof that the action of
the Monetary Board is plainly arbitrary and made in bad faith and the
petitioner or plaintiff files with the clerk or judge of the court in which
the action is pending a bond executed in favor of the Central Bank, in an
amount to be fixed by the court. The restraining order or injunction shall
be refused or, if granted, shall be dissolved upon filing by the Central
Bank of a bond, which shall be in the form of cash or Central Bank
cashier(s) check, in an amount twice the amount of the bond of the
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Legal Ethics
petitioner or plaintiff conditioned that it will pay the damages which the
petitioner or plaintiff may suffer by the refusal or the dissolution of the
injunction. The provisions of Rule 58 of the New Rules of Court insofar as
they are applicable and not inconsistent with the provisions of this
Section shall govern the issuance and dissolution of the restraining order
or injunction contemplated in this Section.
Insolvency, under this Act, shall be understood to mean the
inability of a bank or non-bank financial intermediary performing quasi-
banking functions to pay its liabilities as they fall due in the usual and
ordinary course of business. Provided, however, That this shall not
include the inability to pay of an otherwise non-insolvent bank or non-
bank financial intermediary performing quasi-banking functions caused
by extraordinary demands induced by financial panic commonly
evidenced by a run on the bank or non-bank financial intermediary
performing quasi-banking functions in the banking or financial
community.
The appointment of a conservator under Section 28-A of this Act
or the appointment of a receiver under this Section shall be vested
exclusively with the Monetary Board, the provision of any law, general or
special, to the contrary notwithstanding. (As amended by PD Nos. 72,
1007, 1771 & 1827, Jan. 16, 1981)
We hold that this advice given by respondent Mendoza on the procedure to
liquidate GENBANK is not the matter contemplated by Rule 6.03 of the Code of
Professional Responsibility. ABA Formal Opinion No. 342 is clear as daylight
in stressing that the drafting, enforcing or interpreting government or agency
procedures, regulations or laws, or briefing abstract principles of law are acts
which do not fall within the scope of the term matter and cannot disqualify.
Secondly, it can even be conceded for the sake of argument that the above
act of respondent Mendoza falls within the definition of matter per ABA Formal
Opinion No. 342. Be that as it may, the said act of respondent Mendoza which is
the matter involved in Sp. Proc. No. 107812 is entirely different from
the matter involved in Civil Case No. 0096. Again, the plain facts speak for
themselves. It is given that respondent Mendoza had nothing to do with the
decision of the Central Bank to liquidate GENBANK. It is also given that he did not
participate in the sale of GENBANK to Allied Bank. The matter where he got
himself involved was in informing Central Bank on the procedure provided by
law to liquidate GENBANK thru the courts and in filing the necessary petition in Sp.
Proc. No. 107812 in the then Court of First Instance. The subject matter of Sp.
Proc. No. 107812, therefore, is not the same nor is related to but is
different from the subject matter in Civil Case No. 0096. Civil Case No. 0096
involves the sequestration of the stocks owned by respondents Tan, et al., in
Allied Bank on the alleged ground that they are ill-gotten. The case does not
involve the liquidation of GENBANK. Nor does it involve the sale of GENBANK to
Allied Bank. Whether the shares of stock of the reorganized Allied Bank are ill-
gotten is far removed from the issue of the dissolution and liquidation of
GENBANK. GENBANK was liquidated by the Central Bank due, among others, to the
alleged banking malpractices of its owners and officers. In other words, the legality
of the liquidation of GENBANK is not an issue in the sequestration cases. Indeed,
the jurisdiction of the PCGG does not include the dissolution and liquidation of
banks. It goes without saying that Code 6.03 of the Code of Professional
Responsibility cannot apply to respondent Mendoza because his alleged
intervention while a Solicitor General in Sp. Proc. No. 107812 is an
intervention on a matter different from the matter involved in Civil Case
No. 0096.
Thirdly, we now slide to the metes and bounds of
the intervention contemplated by Rule 6.03. Intervene means, viz.:
1: to enter or appear as an irrelevant or extraneous feature or circumstance . . . 2:
to occur, fall, or come in between points of time or events . . . 3: to come in or
between by way of hindrance or modification: INTERPOSE . . . 4: to occur or lie
between two things (Paris, where the same city lay on both sides of an intervening
river . . .)[41]
On the other hand, intervention is defined as:
1: the act or fact of intervening: INTERPOSITION; 2: interference
that may affect the interests of others. [42]
There are, therefore, two possible interpretations of the word intervene.
Under the first interpretation, intervene includes participation in a proceeding
even if the intervention is irrelevant or has no effect or little influence. [43] Under
the second interpretation, intervene only includes an act of a person who has
the power to influence the subject proceedings. [44] We hold that this second
meaning is more appropriate to give to the word intervention under Rule 6.03 of
the Code of Professional Responsibility in light of its history. The evils sought to be
remedied by the Rule do not exist where the government lawyer does an act which
can be considered as innocuous such as x x x drafting, enforcing or interpreting
government or agency procedures, regulations or laws, or briefing abstract
principles of law.
In fine, the intervention cannot be insubstantial and insignificant.
Originally, Canon 36 provided that a former government lawyer should not, after
his retirement, accept employment in connection with any matter which he has
investigated or passed upon while in such office or employ. As aforediscussed,
the broad sweep of the phrase which he has investigated or passed upon resulted
in unjust disqualification of former government lawyers. The 1969 Code restricted
its latitude, hence, in DR 9-101(b), the prohibition extended only to a matter in
which the lawyer, while in the government service, had substantial
responsibility. The 1983 Model Rules further constricted the reach of the rule. MR
1.11(a) provides that a lawyer shall not represent a private client in connection
with a matter in which the lawyer participated personally and substantially as
a public officer or employee.
6
Legal Ethics
It is, however, alleged that the intervention of respondent Mendoza in Sp.
Proc. No. 107812 is significant and substantial. We disagree. For one, the petition
in the special proceedings is an initiatory pleading, hence, it has to be signed by
respondent Mendoza as the then sitting Solicitor General. For another, the record
is arid as to the actual participation of respondent Mendoza in the subsequent
proceedings. Indeed, the case was in slumberville for a long number of years. None
of the parties pushed for its early termination. Moreover, we note that the petition
filed merely seeks the assistance of the court in the liquidation of GENBANK. The
principal role of the court in this type of proceedings is to assist the Central Bank in
determining claims of creditors against the GENBANK. The role of the court is
not strictly as a court of justice but as an agent to assist the Central Bank in
determining the claims of creditors. In such a proceeding, the participation of the
Office of the Solicitor General is not that of the usual court litigator protecting the
interest of government.
II
Balancing Policy Considerations
To be sure, Rule 6.03 of our Code of Professional Responsibility represents a
commendable effort on the part of the IBP to upgrade the ethics of lawyers in the
government service. As aforestressed, it is a take-off from similar efforts especially
by the ABA which have not been without difficulties. To date, the legal profession in
the United States is still fine tuning its DR 9-101(b) rule.
In fathoming the depth and breadth of Rule 6.03 of our Code of Professional
Responsibility, the Court took account of various policy considerations to
assure that its interpretation and application to the case at bar will achieve its end
without necessarily prejudicing other values of equal importance. Thus, the rule
was not interpreted to cause a chilling effect on government recruitment of
able legal talent. At present, it is already difficult for government to match
compensation offered by the private sector and it is unlikely that government will
be able to reverse that situation. The observation is not inaccurate that the only
card that the government may play to recruit lawyers is have them defer present
income in return for the experience and contacts that can later be exchanged for
higher income in private practice. [45] Rightly, Judge Kaufman warned that the
sacrifice of entering government service would be too great for most men to
endure should ethical rules prevent them from engaging in the practice of a
technical specialty which they devoted years in acquiring and cause the firm with
which they become associated to be disqualified. [46] Indeed, to make government
service more difficult to exit can only make it less appealing to enter. [47]
In interpreting Rule 6.03, the Court also cast a harsh eye on its use as
a litigation tactic to harass opposing counsel as well as deprive his client of
competent legal representation. The danger that the rule will be misused to
bludgeon an opposing counsel is not a mere guesswork. The Court of Appeals for
the District of Columbia has noted the tactical use of motions to disqualify counsel
in order to delay proceedings, deprive the opposing party of counsel of its choice,
and harass and embarrass the opponent, and observed that the tactic was so
prevalent in large civil cases in recent years as to prompt frequent judicial and
academic commentary.[48] Even the United States Supreme Court found no quarrel
with the Court of Appeals description of disqualification motions as a dangerous
game.[49] In the case at bar, the new attempt to disqualify respondent Mendoza is
difficult to divine. The disqualification of respondent Mendoza has long been
a dead issue. It was resuscitated after the lapse of many years and only after
PCGG has lost many legal incidents in the hands of respondent Mendoza. For a
fact, the recycled motion for disqualification in the case at bar was filed more
than four years after the filing of the petitions for certiorari, prohibition and
injunction with the Supreme Court which were subsequently remanded to
the Sandiganbayan and docketed as Civil Case Nos. 0096-0099. [50] At the very
least, the circumstances under which the motion to disqualify in the case at bar
were refiled put petitioners motive as highly suspect.
Similarly, the Court in interpreting Rule 6.03 was not unconcerned
with the prejudice to the client which will be caused by its misapplication. It
cannot be doubted that granting a disqualification motion causes the client to lose
not only the law firm of choice, but probably an individual lawyer in whom the
client has confidence.[51] The client with a disqualified lawyer must start again often
without the benefit of the work done by the latter. [52] The effects of this prejudice to
the right to choose an effective counsel cannot be overstated for it can result in
denial of due process.
The Court has to consider also the possible adverse effect of a
truncated reading of the rule on the official independence of lawyers in
the government service. According to Prof. Morgan: An individual who has the
security of knowing he or she can find private employment upon leaving the
government is free to work vigorously, challenge official positions when he or she
believes them to be in error, and resist illegal demands by superiors. An employee
who lacks this assurance of private employment does not enjoy such freedom.
[53]
He adds: Any system that affects the right to take a new job affects the ability
to quit the old job and any limit on the ability to quit inhibits official independence.
[54]
The case at bar involves the position of Solicitor General, the office once
occupied by respondent Mendoza. It cannot be overly stressed that the position
of Solicitor General should be endowed with a great degree of
independence. It is this independence that allows the Solicitor General to
recommend acquittal of the innocent; it is this independence that gives him the
right to refuse to defend officials who violate the trust of their office. Any undue
dimunition of the independence of the Solicitor General will have a corrosive effect
on the rule of law.
No less significant a consideration is the deprivation of the former
government lawyer of the freedom to exercise his profession. Given the
current state of our law, the disqualification of a former government lawyer may
extend to all members of his law firm. [55] Former government lawyers stand in
danger of becoming the lepers of the legal profession.
7
Legal Ethics
It is, however, proffered that the mischief sought to be remedied by Rule 6.03
of the Code of Professional Responsibility is the possible appearance of
impropriety and loss of public confidence in government. But as well observed,
the accuracy of gauging public perceptions is a highly speculative exercise at
best[56] which can lead to untoward results. [57] No less than Judge Kaufman doubts
that the lessening of restrictions as to former government attorneys will have any
detrimental effect on that free flow of information between the government-client
and its attorneys which the canons seek to protect. [58] Notably, the appearance
of impropriety theory has been rejected in the 1983 ABA Model Rules of
Professional Conduct[59] and some courts have abandoned per se disqualification
based on Canons 4 and 9 when an actual conflict of interest exists, and demand an
evaluation of the interests of the defendant, government, the witnesses in the
case, and the public.[60]
It is also submitted that the Court should apply Rule 6.03 in all its strictness
for it correctly disfavors lawyers who switch sides. It is claimed that switching
sides carries the danger that former government employee may compromise
confidential official information in the process. But this concern does not cast a
shadow in the case at bar. As afore-discussed, the act of respondent Mendoza in
informing the Central Bank on the procedure how to liquidate GENBANK is
a different matter from the subject matter of Civil Case No. 0005 which is about
the sequestration of the shares of respondents Tan, et al., in Allied Bank.
Consequently, the danger that confidential official information might be divulged is
nil, if not inexistent. To be sure, there are no inconsistent sides to be bothered
about in the case at bar. For there is no question that in lawyering for respondents
Tan, et al., respondent Mendoza is not working against the interest of Central Bank.
On the contrary, he is indirectly defending the validity of the action of Central Bank
in liquidating GENBANK and selling it later to Allied Bank. Their interests
coincide instead of colliding. It is for this reason that Central Bank offered no
objection to the lawyering of respondent Mendoza in Civil Case No. 0005 in
defense of respondents Tan, et al. There is no switching of sides for no two
sides are involved.
It is also urged that the Court should consider that Rule 6.03 is intended to
avoid conflict of loyalties, i.e., that a government employee might be subject to
a conflict of loyalties while still in government service. [61] The example given by the
proponents of this argument is that a lawyer who plans to work for the company
that he or she is currently charged with prosecuting might be tempted to
prosecute less vigorously.[62] In the cautionary words of the Association of the Bar
Committee in 1960: The greatest public risks arising from post employment
conduct may well occur during the period of employment through the dampening
of aggressive administration of government policies. [63] Prof. Morgan, however,
considers this concern as probably excessive. [64] He opines x x x it is hard to
imagine that a private firm would feel secure hiding someone who had just been
disloyal to his or her last client the government. Interviews with lawyers
consistently confirm that law firms want the best government lawyers the ones
who were hardest to beat not the least qualified or least vigorous advocates. [65] But
again, this particular concern is a non factor in the case at bar . There is no
charge against respondent Mendoza that he advised Central Bank on how to
liquidate GENBANK with an eye in later defending respondents Tan, et al. of Allied
Bank. Indeed, he continues defending both the interests of Central Bank and
respondents Tan, et al. in the above cases.
Likewise, the Court is nudged to consider the need to curtail what is perceived
as the excessive influence of former officials or their clout.[66] Prof. Morgan
again warns against extending this concern too far. He explains the rationale for
his warning, viz: Much of what appears to be an employees influence may actually
be the power or authority of his or her position, power that evaporates quickly
upon departure from government x x x.[67] More, he contends that the concern can
be demeaning to those sitting in government. To quote him further: x x x The idea
that, present officials make significant decisions based on friendship rather than on
the merit says more about the present officials than about their former co-worker
friends. It implies a lack of will or talent, or both, in federal officials that does not
seem justified or intended, and it ignores the possibility that the officials will tend
to disfavor their friends in order to avoid even the appearance of favoritism. [68]
III
The question of fairness
Mr. Justices Panganiban and Carpio are of the view, among others, that the
congruent interest prong of Rule 6.03 of the Code of Professional Responsibility
should be subject to a prescriptive period. Mr. Justice Tinga opines that the rule
cannot apply retroactively to respondent Mendoza. Obviously, and rightly so, they
are disquieted by the fact that (1) when respondent Mendoza was the Solicitor
General, Rule 6.03 has not yet adopted by the IBP and approved by this Court, and
(2) the bid to disqualify respondent Mendoza was made after the lapse of time
whose length cannot, by any standard, qualify as reasonable. At bottom, the point
they make relates to the unfairness of the rule if applied without any prescriptive
period and retroactively, at that. Their concern is legitimate and deserves to be
initially addressed by the IBP and our Committee on Revision of the Rules of Court.
IN VIEW WHEREOF, the petition assailing the resolutions dated July 11,
2001 and December 5, 2001 of the Fifth Division of the Sandiganbayan in Civil
Case Nos. 0096-0099 is denied.
No cost.
SO ORDERED.
8
Legal Ethics
RAUL M. FRANCIA, Complainant,
vs.
ATTY. REYNALDO V. ABDON, Respondent.
In a verified complaint1 dated December 4, 2007 filed before the Integrated
Bar of the Philippines, Committee on Bar Discipline (IBP-CBD), Raul M. Francia
(complainant) prayed for the disbarment and imposition of other disciplinary
sanctions on Labor Arbiter (LA) Reynaldo V. Abdon (respondent) for violation of
the lawyer's oath and the Code of Professional Responsibility.
On February 4, 2008, the respondent filed his Answer 2 vehemently denying
the allegations in the complaint.
On August 13, 2008, both parties appeared at the mandatory conference.
Upon its termination, the parties were required to submit their respective
position papers afterwhich the case was submitted for resolution.
In his position paper,3 the complainant alleged that in November 2006, he had
a meeting with the respondent at the Makati Cinema Square to seek his
assistance with respect to a pending case in the Court of Appeals (CA)
involving the labor union of Nueva Ecija III Electric Cooperative (NEECO III).
The said case was docketed as CA-G.R. SP No. 96096 and raffled to the 6th
Division then chaired by Justice Rodrigo V. Cosico, with Justices Edgardo
Sundiam (Justice Sundiam) and Celia Librea-Leagogo as members. The
respondent, who is a LA at the National Labor Relations Commission, San
Fernando, Pampanga, told the complainant that he can facilitate, expedite and
ensure the release of a favorable decision, particularly the award of assets
and management of NEECO III to the union. To bolster his representation, he
told him that the same regional office where he was assigned had earlier
rendered a decision in favor of the labor union and against the National
Electrification Administration.4 With the respondents assurance, the
complainant yielded.
In December 2006, the complainant met the respondent to discuss their plan
and timetable in securing a favorable ruling from the CA. The respondent told
him that in order to facilitate the release of such favorable decision, the union
must produce the amount of P1,000,000.00, a considerable portion of which is
intended for Justice Sundiam, the ponente of the case and the two member
justices of the division, while a fraction thereof is allotted to his costs. 5
Shortly thereafter, the complainant met the respondent again and handed him
the amount of P350,000.00,which was raised out of the individual
contributions of the members of the union, as partial payment for the agreed
amount and undertook to pay the balance as soon as the union is finally
allowed to manage and operate the electric cooperative. In turn, the
respondent assured him that a favorableruling will be rendered by the CA in
no time.6
A week before Christmas of the same year, the complainant made several
follow-ups with the respondent about the status of the decision. In response to
his inquiries, the respondentwould tell him that: (1) the decision is being
routed for signature of the members of the three-man CA division; (2) the lady
justice was the only one left to sign; and (3) the lady justice went to a
Christmas party and was not able to sign the decision. Ultimately, the
promised favorable decision before the end of that year was not issued by the
CA, with no explanation from the respondent.7
On January 4, 2007, the union was advised by their counsel that the CA has
already rendered a decision on their case and the same was adverse to them.
This infuriated the union members who then turned to the complainant and
demanded for the return of the 350,000.00 that they raised as respondents
facilitation fee. The respondent promised to return the money but asked for a
few weeks to do so. After two weeks, the respondent turned over the amount
of P100,000.00, representing the unspent portion of the money given to him
and promised to pay the balance of P250,000.00 as soon as possible. The
respondent, however, reneged on his promise and would not even advise the
complainant of the reason for his failure to return the money. Thus, the
complainant was constrained to give his car to the union to settle the
remaining balance which the respondent failed to return. 8
To support his claims, the complainant submitted the following pieces of
evidence: (1) a transcript of the exchange of text messages between him and
the respondent;9 (2) affidavit of Butch Pena (Pena), 10 officer of the Association
of Genuine Labor Organization (AGLO); (3) a transcript of the text message of
a certain Paulino Manongsong, confirming the respondents mobile
number;11 (4) copy of the CA decision in CA-G.R. SP No. 96096; 12 and (5)
affidavit of Shirley Demillo (Demillo).13
For his part, the respondent denied that he made any representation to the
complainant; that he had the capacity to facilitate the release of a favorable
decision in the CA; and that he received money in exchange therefor. He
admitted that he had a chance meeting with the complainant at the Makati
Cinema Square in December 2006. Since they have not seen each other for a
long time, they had a short conversation over snacks upon the complainants
invitation. In the course of their conversation, the complainant asked if he
knew of the case involving the union of the NEECO III. He told him that he was
not familiar with the details but knew that the same is already pending
9
Legal Ethics
execution before the office of LA Mariano Bactin. The complainant told him
that the properties of NEECO III were sold at public auction but the union
members were yet to obtain the proceeds because of a temporary restraining
order issued by the CA. He inquired if he knew anyone from the CA who can
help the union members in their case as he was assisting them in following up
their case. The respondent answered in the negative but told him that he can
refer him to his former client, a certain Jaime "Jimmy" Vistan (Vistan), who
may be able to help him. At that very moment, he called Vistan using his
mobile phone and relayed to him the complainants predicament. After giving
Vistan a brief background of the case, he handed the mobile phone to the
complainant, who expounded on the details. After their conversation,the
complainant told him that he will be meeting Vistan on the following day and
asked him if he could accompany him. He politely declined and just gave him
Vistans mobile number so that they can directlycommunicate with each
other.14
Sometime thereafter, he received a call from Vistan who told him that he was
given P350,000.00 as facilitation fee. After their conversation, he never heard
from Vistan again.15
In January 2007, he received a text from the complainant, asking him to call
him through his landline. Over the phone, the complainant told him about his
arrangement with Vistan insecuring a favorable decision for the union but the
latter failed to do his undertaking. The complainant blamed him for the
misfortune and even suspected that he was in connivance with Vistan, which
he denied. The complainant then asked for his help to recover the money he
gave to Vistan.16
When their efforts to locate Vistan failed, the complainant turned to him again
and asked him to return the money because the union threatened him with
physical harm. The respondent, however, maintained his lack of involvement
in their transaction. Still, the complainant insisted and even threatened he
would cause him miseryand pain should he not return the money. Offended by
the innuendoof collusion in the complainants language, the respondent yelled
at him and told him, "Ano bang malaking kasalanan ko para takutin mo ako ng
ganyan?" before he hang up the phone. He never heard from the complainant
thereafter. Then, on December 18, 2007, he was surprised toreceive a copy of
the complaint for disbarment filed by the complainant against him. 17
In the Report and Recommendation18 of the IBP-CBD dated September 30,
2008, the Investigating Commissioner recommended for the dismissal of the
complaint, holding that there is no proof that the respondent received money
from the complainant.19 The report reads, as follows:
The case is dismissible.
There is no proof that respondent Reynaldo Abdon received any amount of
money from complainant Raul Francia.
While it is true that respondentReynaldo Abdon admitted that he introduced
the complainant to Jaime Vistan, there is no proof that the respondent
received any money from the complainant Raul Francia or from Jaime Vistan.
The attached Annex "A" of the complaint is of no moment. As pointed out by
the respondent it is easy to manipulate and fabricate text messages. That
complainant could have bought the said SIM card bearing the said telephone
number and texted his other cellphone numbers to make it appear that such
text messages came from the cellphone of the respondent. Those text
messages are not reliable as evidence.
xxxx
WHEREFORE, premises considered, it is most respectfully recommended that
the instant complaint be dismissed for lack of merit. 20
Upon review of the case, the IBP Board of Governors issued Resolution No.
XVIII-2008-545,21 reversing the recommendation of the Investigating
Commissioner, disposing thus:
RESOLVED TO REVERSE as it is hereby REVERSED, the Report and
Recommendation of the Investigating Commissioner, and APPROVE the
SUSPENSIONfrom the practice of law for one (1) year of Atty. Reynaldo V.
Abdon and to Return the Amount of Two Hundred Fifty Thousand Pesos
([P]250,000.00) within thirty (30) days from receipt of notice. 22
On February 23, 2009, the respondent filed a Motion for Reconsideration 23 but
the IBP Board of Governors denied the same in its Resolution No. XX-2013-
55,24 which reads:
RESOLVED to unanimously DENY Respondents Motion for Reconsideration
there being no cogent reason to reverse the findings of the Commission and it
being a mere reiteration of the matters which had already been threshed out
and taken into consideration. Thus, Resolution No. XVIII-2008-545 dated
November 20, 2008 is hereby AFFIRMED.25
The case is now before thisCourt for confirmation.
"It is well to remember that in disbarment proceedings, the burden of proof
rests upon the complainant. For the Court to exercise its disciplinary powers,
10
Legal Ethics
the case against the respondent must be established by convincing and
satisfactory proof."26
In Aba v. De Guzman, Jr., 27 the Court reiterated that a preponderance of
evidence is necessary before a lawyer maybe held administratively liable, to
wit:
Considering the serious consequences of the disbarment or suspension of a
member of the Bar, the Court has consistently held that clearly preponderant
evidence is necessary to justify the imposition of administrative penalty on a
member of the Bar.
Preponderance of evidence means that the evidence adduced by one side is,
as a whole, superior to or has greater weight than that of the other. It means
evidence which is more convincing to the court as worthy of belief than that
which is offered in opposition thereto. Under Section 1 of Rule 133, in
determining whether or not there is preponderance of evidence, the court
may consider the following: (a) all the facts and circumstances of the case; (b)
the witnesses manner of testifying, their intelligence, their means and
opportunity of knowing the facts to which they are testifying, the nature of the
facts to which they testify, the probability or improbability of their testimony;
(c) the witnesses interest or want of interest, and also their personal
credibility so far as the same may ultimately appear in the trial; and (d) the
number of witnesses, although it does not mean that preponderance is
necessarily with the greater number. 28 (Citations omitted)
In the absence of preponderant evidence, the presumption of innocence of the
lawyer subsists and the complaint against him must be dismissed. 29
After a careful review of the facts and circumstances of the case, the Court
finds that the evidence submitted by the complainant fell short of the required
quantum of proof. Aside from bare allegations, no evidence was presented to
convincingly establish that the respondent engaged in unlawful and dishonest
conduct, particularly in extortion and influence-peddling.
Firstly, the transcript of the alleged exchange of text messages between the
complainant and the respondent cannot be admitted in evidence since the
same was not authenticatedin accordance with A.M. No. 01-7-01-SC,
pertaining to the Rules on Electronic Evidence. Without proper authentication,
the text messages presented by the complainant have no evidentiary value.
The Court cannot also give credence to the affidavits of Pena and Demillo
which, on close examination, do not prove anything about the alleged
transaction between the complainant and the respondent. In his affidavit,
Pena, an officer of AGLO, the organization assisting the union members of
NEECO III, alleged:
THAT, sometime in the first weekof November 2006, the former workers and
employees of NEECO III informed me of their desire to engage the services of
a third party to help facilitate the expeditious release of a favorable decision
from the Court of Appeals in CA-GR SP No. 96096, and that they already
contacted a friend of mine, Mr. Raul Francia, who knows somebody who can
help us work on the CA case;
THAT, in succeeding separate meetings with Mr. Francia, he intimated to me
on various occasions that he had contracted a certain Atty. Reynaldo V. Abdon,
a labor arbiter based in San Fernando, Pampanga to facilitate the expeditious
release of a favorable decision from the Court of Appeals;
THAT, I gathered from Mr. Francia and based on the information given to me
by the former workers and employees of NEECO III, Labor Arbiter Abdon asked
for [P]1 [M]illion to cover the amount to be given to the justices of the Court of
Appeals handling the case and facilitation and mobilization fees;
THAT, sometime towards the end of the first week of December, the former
workers and employees of NEECO III met with Mr. Francia at our office. They
handed to him [P]350,000[.00] as downpayment for the []1 [M]illion being
demanded by Mr. Abdon, the balance of which would have been payable on a
later agreed period;
THAT, the [P]350,000[.00] was sourced by the former workers and employees
of NEECO III from their personal contributions; and
THAT, soon after the meeting with the former workers and employees of
NEECO III, Mr. Francia left to meet with Labor Arbiter Abdon to deliver the
money[.]30
It is clear from the foregoing thatPena never had the opportunity to meet the
respondent. He never knew the respondent and did not actually see him
receiving the money that the union members raised as facilitation fee. His
statement does not prove at all thatthe alleged illegal deal transpired between
the complainant and the respondent.If at all, it only proved that the union
members made contributions to raise the amount of money required as
facilitation fee and that they gave it to the complainant for supposed delivery
to the respondent. However, whether the money was actually delivered to the
respondent was not known to Pena.
The same observation holds true with respect to the affidavit of Demillo, an
acquaintance of the complainant, who claims to have witnessed the
11
Legal Ethics
transaction between the parties at the Makati Cinema Square. She alleged
that she saw the complainant handing a bulging brown supotto an
unidentified man while the two were at the open dining space of a caf. Upon
seeing the complainant again, she learned that the person he was talking to
at the caf was the respondent LA.31
Demillos affidavit, however, does not prove any relevant fact that will
establish the respondents culpability.1wphi1 To begin with, it was not
established with certainty that the person whom she saw talking with the
complainant was the respondent. Even assuming that respondents identity
was established, Demillo could not have known about the complainant and
respondents business by simply glancing at them while she was on her way
to the supermarket to run some errands. That she allegedly saw the
complainant handing the respondent a bulging brown supothardly proves any
illegal transaction especially that she does not have knowledge about what
may have been contained in the said bag.
The complainant miserably failed tosubstantiate his claims with preponderant
evidence. Surely, he cannot prove the respondents culpability by merely
presenting equivocal statementsof some individuals or relying on plain
gestures that are capable of stirring the imagination. Considering the lasting
effect of the imposition of the penalty of suspension or disbarment on a
lawyers professional standing, this Court cannot allow that the respondent be
held liable for misconduct on the basis of surmises and imagined possibilities.
A mere suspicion cannot substitute for the convincing and satisfactory proof
required to justify the suspension or disbarment of a lawyer.
In Alitagtag v. Atty. Garcia,32 the Court emphasized, thus:
Indeed, the power to disbar must be exercised with great caution, and may be
imposed only in a clear case of misconduct that seriously affects the standing
and the character ofthe lawyer as an officer of the Court and as a member of
the bar. Disbarment should never be decreed where any lesser penalty could
accomplish the end desired. Without doubt, a violation of the high moral
standards of the legal profession justifies the imposition of the appropriate
penalty, including suspension and disbarment. However, the said penalties
are imposed with great caution, because they are the most severe forms of
disciplinary action and their consequences are beyond repair. 33 (Citations
omitted)
The respondent, however, is not entirely faultless. He has, nonetheless,
engendered the suspicion that he is engaged in an illegal deal when he
introduced the complainant to Vistan, who was the one who allegedly
demanded P1,000,000.00 infacilitation fee from the union members. The
records bearout that the complainant, at the outset, made clear his intention
to seek the respondents assistance in following up the unions case in the CA.
The respondent, however, instead of promptly declining the favor sought in
order to avoid any appearance of impropriety, even volunteered to introduce
the complainant to Vistan, a former client who allegedly won a case in the CA
in August 2006. It later turned out that Vistan represented to the complainant
that he has the capacity to facilitate the favorable resolution of cases and
does this for a fee. This fact was made known to him by Vistan himself duringa
telephone conversation when the latter told him he was given P350,000.00 as
facilitation fee.34His connection with Vistan was the reason why the
complainant had suspected that he was in connivance with him and that he
got a portion of the loot. His gesture of introducing the complainant to Vistan
precipitated the idea that what the latter asked of him was with his approval.
It registered a mistaken impression on the complainant that his case can be
expeditiously resolved by resorting to extraneous means or channels. Thus,
while the respondent may not have received money from the complainant, the
fact is that he has made himself instrumental to Vistans illegal activity. In
doing so, he has exposed the legal profession to undeserved condemnation
and invited suspicion on the integrity of the judiciary for which he must be
imposed with a disciplinary sanction.
Canon 7 of the Code of Professional Responsibility mandates that a "lawyer
shall at all times uphold the integrity and dignity of the legal profession." For,
the strength of the legal profession lies in the dignity and integrity of its
members.35 It is every lawyers duty to maintain the high regard to the
profession by staying trueto his oath and keeping his actions beyond
reproach.
Also, the respondent, as a member of the legal profession, has a further
responsibility to safeguard the dignity of the courts which the public perceives
as the bastion of justice. Hemust at all times keep its good name untarnished
and not be instrumental to its disrepute. In Berbano v. Atty. Barcelona, 36 the
Court reiterated the bounden duty of lawyers to keep the reputation of the
courts unscathed, thus:
A lawyer is an officer of the courts; he is, "like the court itself, an instrument
or agency to advance the endsof justice.["] [x x x] His duty is to uphold the
dignity and authority of the courts to which he owes fidelity, ["]not to promote
distrust inthe administration of justice." [x x x] Faith in the courts a lawyer
should seek to preserve. For, to undermine the judicial edifice "is disastrous to
the continuity of the government and to the attainment of the liberties of the
people." [x x x] Thus has it been said of a lawyer that "[a]s an officer of the
court, it is his sworn and moral duty to help build and not destroy
unnecessarily that high esteem and regard towards the courts so essential to
the proper administration of justice."37
A strong and independent judiciary is one of the key elements in the orderly
administration of justice. It holds a revered status in the society as the public
12
Legal Ethics
perceives it as the authority of what is proper and just, and abides by its
pronouncements. Thus, it must keep its integrity inviolable and this entails
that the members of the judiciary be extremely circumspect in their actions,
whether in their public or personal dealings. Nonetheless, the duty to
safeguard the good name of the judiciary is similarly required from all the
members of the legal profession. The respondent, however, compromised the
integrity of the judiciary by his association with a scoundrel who earns a living
by dishonoring the court and maliciously imputing corrupt motives on its
members.

The Court reiterates its directive tothe members of the Bar to be mindful of
the sheer responsibilities thatattach to their profession. They must maintain
high standards of legal proficiency, aswell as morality including honesty,
integrity and fair dealing. For, they are at all times subject to the scrutinizing
eye of publicopinion and community approbation. Needless to state, those
whose conduct both public and private fails this scrutiny would have to
bedisciplined and, after appropriate proceedings, penalized accordingly. 38

WHEREFORE, for having committed an act which compromised the publics

trust in the justice system, Atty. Reynaldo V. Abdon is hereby SUSPENDEDfrom
the practice of law for a period of ONE (1) MONTH effective upon receipt of
this Decision, with a STERN WARNING that a repetition of the same or similar
act in the future shall be dealt with severely.

Let copies of this Decision be furnished the Integrated Bar of the Philippines
and the Office of the Court Administrator which shall circulate the same in all
courts in the country, and attached to the personal records of Atty. Reynaldo
V. Abdon in the Office of the Bar Confidant.

SO ORDERED.

13
Legal Ethics
IN RE: VICTORIO D. LANUEVO, former Bar Confidant and Deputy Clerk
of Court, respondent.
Administrative proceedings against Victorio D. Lanuevo for disbarment;
Ramon E. Galang, alias Roman E. Galang for disbarment; Hon. Bernardo
Pardo, Hon. Ramon Pamatian, Atty. Manuel C. Tomacruz; Atty. Manuel G.
Montecillo, Atty. Fidel Manalo and Atty. Guillermo Pablo, Jr. for disciplinary
action for their acts and omissions during the 1971 Bar Examinations.
In his request dated March 29, 1972 contained in a confidential letter to the
Court for re-correction and re-evaluation of his answer to the 1971 Bar
Examinations question, Oscar Landicho who flunked in the 1971, 1968 and
1967 Bar Examinations with a grade of 70.5%, 65.35% and 67.55%,
respectively invited the attention of the Court to "The starling fact that the
grade in one examination (Civil Law) of at least one bar candidate was raised
for one reason or another, before the bar results were released this
year" (Confidential Letter, p. 2. Vol. I, rec.). This was confirmed, according to
him, by the Civil Law Examiner himself (Hon. Ramon C. Pamatian) as well as
by Bar Confidant Victorio D. Lanuevo. He further therein stated "that there are
strong reasons to believe that the grades in other examination notebooks in
other subjects also underwent alternations to raise the grades prior to
the release of the results. Note that this was without any formal motion or
request from the proper parties, i.e., the bar candidates concerned. If the
examiners concerned reconsidered their grades without formal motion, there
is no reason why they may not do so now when proper request answer motion
therefor is made. It would be contrary to due process postulates. Might not
one say that some candidates got unfair and unjust treatment, for their
grades were not asked to be reconsidered 'unofficially'? Why the
discrimination? Does this not afford sufficient reason for the Court en banc to
go into these matters by its conceded power to ultimately decide the matter
of admission to the bar?" (p. 2, Confidential Letter, Vol. I, rec.).
Acting on the aforesaid confidential letter, the Court checked the records of
the 1971 Bar Examinations and found that the grades in five subjects
Political Law and Public International Law, Civil Law, Mercantile Law, Criminal
Law and Remedial Law of a successful bar candidate with office code No.
954 underwent some changes which, however, were duly initialed and
authenticated by the respective examiner concerned. Further check of the
records revealed that the bar candidate with office code No. 954 is one Ramon
E. Galang, a perennial bar candidate, who flunked in the 1969, 1966, 1964,
1963, and 1962 bar examinations with a grade of 67.55%, 68.65%, 72.75%,
68.2%, 56.45% and 57.3%, respectively. He passed in the 1971 bar
examinations with a grade of 74.15%, which was considered as 75% by virtue
of a Court of 74.15%, which was considered as 75% as the passing mark for
the 1971 bar examinations.
Upon the direction of the Court, the 1971 Bar Examination Chairman
requested Bar Confidant Victorio D. Lanuevo and the five (5) bar examiners
concerned to submit their sworn statements on the matter, with which request
they complied.
In his sworn statement dated April 12, 1972, said Bar
Confidant admitted having brought the five examination notebooks of Ramon
E. Galang, alias Ramon E. Galang, back to the respective examiners for re-
evaluation and/or re-checking, stating the circumstances under which the
same was done and his reasons for doing the same.
Each of the five (5) examiners in his individual sworn
statement admitted having re-evaluated and/or re-checked the notebook
involved pertaining to his subject upon the representation to him by Bar
Confidant Lanuevo that he has the authority to do the same and that the
examinee concerned failed only in his particular subject and/or was on the
borderline of passing.
Finding a prima facie case against the respondents warranting a formal
investigation, the Court required, in a resolution dated March 5, 1973, Bar
Confidant Victorio Lanuevo "to show cause within ten (10) days from
notice why his name should not be stricken from the Roll of Attorneys" (Adm.
Case No. 1162, p. 34, rec.). Considering that the re-evaluation of the
examination papers of Ramon E. Galang, alias Roman E. Galang,
was unauthorized, and therefore he did not obtain a passing average in the
1971 bar examinations, the Court likewise resolved on March 5, 1971 to
requires him "to show cause within ten (10) days from notice why his name
should not be stricken from the Roll of Attorneys" (Adm. Case No. 1163, p. 99,
rec.). The five examiners concerned were also required by the Court "to show
cause within ten (10) days from notice why no disciplinary action should be
taken against them" (Adm. Case No. 1164, p. 31, rec.).
Respondent Tomacruz filed his answer on March 12, 1973 (Adm. Case No.
1164, p. 70, rec.). while respondents Pardo, Pamatian, Montecillo, Manalo and
Lanuevo filed theirs on March 19, 1973 (Adm. Case No. 1162, pp. 60-63, 32-
35, 40-41, 36-39 and 35-38, rec.). At the hearing on August 27, 1973,
respondent Lanuevo filed another sworn statement in addition to, and in
amplication of, his answer filed on March 19, 1973 (Adm. Case No. 1162, pp.
45-47, rec.). Respondent Galang filed his unverified answer on March 16, 1973
(Adm. Case No. 1163, pp. 100-104, rec.). He was required by the Court to
verify the same and complaince came on May 18, 1973 (Adm. Case No. 1163,
pp. 106-110,) rec.).
14
Legal Ethics
In the course of the investigation, it was found that it was not respondent
Bernardo Pardo who re-evaluated and/or re-checked examination booklet with
Office Code No. 954 in Political Law and Public International Law of examinee
Ramon Galang, alias Roman E. Galang, but Guillermo Pablo, Jr., examiner in
Legal Ethics and Practical Exercise, who was asked to help in the correction of
a number of examination notebooks in Political Law and Public International
Law to meet the deadline for submission (pp. 17-24, Vol. V, rec.). Because of
this development, Atty. Guillermo Pablo, Jr. was likewise included as
respondent in Administrative Case No. 1164. Hon. Bernardo Pardo remainded
as a respondent for it was also discovered that another paper in Political Law
and Public International Law also underwent re-evaluation and/or re-checking.
This notebook with Office Code No. 1662 turned out to be owned by another
successful candidate by the name of Ernesto Quitaleg. Further investigation
resulted in the discovery of another re-evaluation and/or re-checking of a
notebook in the subject of Mercantile Law resulting in the change of the grade
from 4% to 50% This notebook bearing Office Code No. 110 is owned by
another successful candidate by the name of Alfredo Ty dela Cruz. Quitaleg
and Ty dela Cruz and the latter's father were summoned to testify in the
investigation.
An investigation conducted by the National Bureau of Investigation upon
request of the Chairman of the 1971 Bar Examination Committee as
Investigation Officer, showed that one Romy Galang y Esguerra, alias Ramon
E. Galang, a student in the School of Law of Manuel L. Quezon University, was,
on September 8, 1959, charged with the crime of slight physical injuries in the
Municipal Court of Manila committed on Eufrosino F. de Vera, another student
of the same university. Confronted with this information at the hearing of
August 13, 1973 (Vol. V, pp. 20-21, 32, rec.), respondent Galang declared that
he does not remember having been charged with the crime of slight physical
injuries in that case. (Vol. VI, pp. 45-60, rec.).
Respondent Galang, in all his application to take the bar examinations, did not
make mention of this fact which he is required under the rules to do.
The joint investigation of all the cases commenced on July 17, 1973 and was
terminated on October 2, 1973. Thereafter, parties-respondents were required
to submit their memoranda. Respondents Lanuevo, Galang and Pardo
submitted their respective memorandum on November 14, 1973.
Before the joint hearing commenced, Oscar Landicho took up permanent
residence in Australia, where he is believed to be gainfully employed. Hence,
he was not summoned to testify.
At the joint investigation, all respondents, except respondent Pablo, who
offered as evidence only his oral testimony, submitted as their direct evidence
only his oral testimony, submitted as their direct evidence the affidavits and
answers earlier submitted by them to the Court. The same became the basis
for their cross-examination.
In their individual sworn statements and answer, which they offered as their
direct testimony in the investigation conducted by the Court, the respondent-
examiners recounted the circumstances under which they re-evaluated and/or
re-checked the examination notebooks in question.
In His affidavit dated April 11, 1972, respondent Judge (later Associate Justice
of the Court of Appeals) Ramon C. Pamatian, examiner in Civil Law, affirmed:
2. That one evening sometime in December last year, while I
was correcting the examination notebooks, Atty. Lanuevo, Bar
Confidant, explained to me that it is the practice and the
policy in bar examinations that he (Atty. Lanuevo) make a
review of the grades obtained in all subjects and if he finds
that candidate obtained an extraordinary high grade in one
subject and a rather low one in another, he will bring back the
latter to the examiner concerned for re-evaluation and change
of grade;
3. That sometime in the latter part of January of this year, he
brought back to me an examination booklet in Civil Law for re-
evaluation, because according to him the owner of the paper
is on the borderline and if I could reconsider his grade to 75%
the candidate concerned will get passing mark;
4. That taking his word for it and under the belief that it was
really the practice and policy of the Supreme Court to do so in
the further belief that I was just manifesting cooperation in
doing so, I re-evaluated the paper and reconsidered the grade
to 75%;
5. That only one notebook in Civil Law was brought back to me
for such re-evaluation and upon verifying my files I found that
the notebook is numbered '95;
6. That the original grade was 64% and my re-evaluation of
the answers were based on the same standard used in the
correction and evaluation of all others; thus, Nos. 3 and 4 with
original grades of 7% each was reconsidered to 10%; No. 5
with 4% to 5%; No. 7 with 3% to 5%; and No. 8 with 8% to
10% (emphasis supplied).
15
Legal Ethics
His answer dated March 19, 1973 substantially reiterated his allegations in his
April 11, 1972 affidavit with following additional statements:
xxx xxx xxx
3. ... However the grades in Nos. 1, 2, 6, 9 and 10, were not
reconsidered as it is no longer to make the reconsideration of
these answers because of the same evaluation and standard;
hence, Nos. 1, 2 and 10 remainded at 5% and Nos. 6 and 9 at
10%;
4. That at the time I made the reconsideration of examination
booklet No. 951 I did not know the identity of its owner until I
received this resolution of the Honorable Supreme Court nor
the identities of the examiners in other subjects;
5. That the above re-evaluation was made in good faith and
under the belief that I am authorized to do so in view of the
misrepresentation of said Atty. Lanuevo, based on the
following circumstances:
a) Since I started correcting the papers on or
about October 16, 1971, relationship between
Atty. Lanuevo and myself had developed to
the point that with respect to the correction of
the examination booklets of bar candidates I
have always followed him and considered his
instructions as reflecting the rules and policy
of the Honorable Supreme Court with respect
to the same; that I have no alternative but to
take his words;
b) That considering this relationship
and considering his misrepresentation to me
as reflecting the real and policy of the
Honorable Supreme Court, I did not bother any
more to get the consent and permission of the
Chairman of the Bar Committee. Besides, at
that time, I was isolating myself from all
members of the Supreme Court and specially
the chairman of the Bar Committee for fear
that I might be identified as a bar examiner;
xxx xxx xxx
e) That no consideration whatsoever has been received by me
in return for such recorrection, and as proof of it, I declined to
consider and evaluate one booklet in Remedial Law aforesaid
because I was not the one who made the original correction of
the same (Adm. Case No. 1164, pp. 32-35, rec.; emphasis
supplied).
Then Assistant Solicitor General, now CFI Judge, Bernardo Pardo, examiner in
Political Law and Public International Law, confirmed in his affidavit of April 8,
1972 that:
On a day or two after the Bar Confidant went to my residence
to obtain from me the last bag of two hundred notebooks
(bearing examiner's code numbers 1200 to 1400) which
according to my record was on February 5, 1972, he came to
my residence at about 7:30 p.m. riding in a Vokswagen panel
of the Supreme Court, with at least two companions. The bar
confidant had with him an examinee's notebook bearing code
number 661, and, after the usual amenties, he requested me
if it was possible for me to review and re-examine the said
notebook because it appears that the examinee obtained a
grade of 57, whereas, according to the Bar Confidant, the said
examinee had obtained higher grades in other subjects, the
highest of which was 84, if I recall correctly, in remedial law.
I asked the Bar Confidant if I was allowed to receive or re-
examinee the notebook as I had submitted the same
beforehand, and he told me that I was authorized to do so
because the same was still within my control and authority as
long as the particular examinee's name had not been
identified or that the code number decode and the
examinee's name was revealed. The Bar Confidant told me
that the name of the examinee in the case present bearing
code number 661 had not been identified or revealed; and
that it might have been possible that I had given a particularly
low grade to said examinee.
Accepting at face value the truth of the Bar Confidant's
representations to me, and as it was humanly possible that I
might have erred in the grading of the said notebook, I re-
examined the same, carefully read the answer, and graded it
in accordance with the same standards I had used throughout
the grading of the entire notebooks, with the result that the
examinee deserved an increased grade of 66. After again
clearing with the Bar Confidant my authority to correct the
grades, and as he had assured me that the code number of
16
Legal Ethics
the examinee in question had not been decoded and his name
known, ... I therefore corrected the total grade in the notebook
and the grade card attached thereto, and properly initia(l)ed
the same. I also corrected the itemized grades (from item No.
1 to item No. 10) on the two sets of grading sheets, my
personal copy thereof, and the Bar Confidant brought with him
the other copy thereof, and the Bar Confidant brought with
him the other copy the grading sheet" (Adm. Case No. 1164,
pp. 58-59; rec.; emphasis supplied)
In his answer dated March 17, 1973 which he denominated as "Explanation",
respondent Bernardo P. Pardo adopted and replaced therein by reference the
facts stated in his earlier sworn statement and in additional alleged that:
xxx xxx xxx
3. At the time I reviewed the examinee's notebook in political
and international law, code numbered 661, I did know the
name of the examinee. In fact, I came to know his name only
upon receipt of the resolution of March 5, 1973; now knowing
his name, I wish to state that I do not know him personally,
and that I have never met him even up to the present;
4. At that time, I acted under the impression that I was
authorized to make such review, and had repeatedly asked
the Bar Confidant whether I was authorized to make such
revision and was so assured of my authority as the name of
the examinee had not yet been decoded or his identity
revealed. The Bar Confidant's assurance was apparently
regular and so appeared to be in the regular course of express
prohibition in the rules and guidelines given to me as an
examiner, and the Bar Confidant was my official liaison with
the Chairman, as, unless called, I refrained as much as
possible from frequent personal contact with the Chairman
lest I be identified as an examiner. ...;
5. At the time the Bar Confidant came to see me at about 7:30
o'clock in the evening at my residence, I felt it inappropriate to
verify his authority with the Chairman. It did not appear to me
that his representations were unauthorized or suspicious.
Indeed, the Bar Confidant was riding in the official vehicle of
the Supreme Court, a Volkswagen panel, accompanied by two
companions, which was usual, and thus looked like a regular
visit to me of the Bar Confidant, as it was about the same hour
that he used to see me:
xxx xxx xxx
7. Indeed, the notebook code numbered 661 was still in the
same condition as when I submitted the same. In agreeing to
review the said notebook code numbered 661, my aim was to
see if I committed an error in the correction, not to make the
examinee pass the subject. I considered it entirely humanly
possible to have erred, because I corrected that particular
notebook on December 31, 1971, considering especially the
representation of the Bar Confidant that the said examinee
had obtained higher grades in other subjects, the highest of
which was 84% in remedial law, if I recall correctly. Of course,
it did not strike me as unusual that the Bar Confidant knew
the grades of the examinee in the position to know and that
there was nothing irregular in that:
8. In political and international law, the original grade
obtained by the examinee with notebook code numbered 661
was 57%. After review, it was increased by 9 points, resulting
in a final grade of 66%. Still, the examinee did not pass the
subject, and, as heretofore stated, my aim was not to make
the examinee pass, notwithstanding the representation that
he had passed the other subjects. ...
9. I quite recall that during the first meeting of the Bar
Examiners' Committee consensus was that where an
examinee failed in only one subject and passed the rest, the
examiner in said subject would review the notebook. Nobody
objected to it as irregular. At the time of the Committee's first
meeting, we still did not know the names of the candidates.
10. In fine, I was a victim of deception, not a party to it. It had
absolutely no knowledge of the motives of the Bar Confidant
or his malfeasance in office, and did not know the examinee
concerned nor had I any kind of contract with him before or
rather the review and even up to the present (Adm. Case No.
1164, pp. 60-63; rec.; emphasis supplied).
Atty. Manuel Tomacruz, examiner in Criminal Law, affirmed in his affidavit
dated April 12, 1972:
1. xxx xxx xxx
17
Legal Ethics
2. That about weekly, the Bar Confidant would deliver and
collect examination books to my residence at 951 Luna
Mencias, Mandaluyong, Rizal.
3. That towards the end when I had already completed
correction of the books in Criminal Law and was helping in the
correction of some of the papers in another subject, the Bar
Confidant brought back to me one (1) paper in Criminal Law
saying that that particular examinee had missed the passing
grade by only a fraction of a percent and that if his paper in
Criminal Law would be raised a few points to 75% then he
would make the general passing average.
4. That seeing the jurisdiction, I raised the grade to 75%, that
is, giving a raise of, if I remember correctly, 2 or 3 points,
initialled the revised mark and revised also the mark and
revised also the mark in the general list.
5. That I do not recall the number of the book of the examinee
concerned" (Adm. Case No. 1164, p. 69, rec.; emphasis
supplied).
In his answer dated March 12, 1973, respondent Tomacruz stated that "I
accepted the word of the Bar Confidant in good faith and without the slightest
inkling as to the identity of the examinee in question who up to now remains a
total stranger and without expectation of nor did I derive any personal
benefit" (Adm. Case No. 1164, p. 70, rec.; emphasis supplied).
Atty. Fidel Manalo, examiner in Remedial Law, stated in his affidavit dated
April 14, 1972, that:
xxx xxx xxx
2. Sometime about the late part of January or early part of
February 1972, Attorney Lanuevo, Bar Confidant of the
Supreme Court, saw me in my house at No. 1854 Asuncion
Street, Makati, Rizal. He produced to me an examinee's
notebook in Remedial Law which I had previously graded and
submitted to him. He informed me that he and others (he
used the words "we") had reviewed the said notebook. He
requested me to review the said notebook and possibly
reconsider the grade that I had previously given. He explained
that the examine concerned had done well in other subjects,
but that because of the comparatively low grade that I had
given him in Remedial Law his general average was short of
passing. Mr. Lanuevo remarked that he thought that if the
paper were reviewed I might find the examinee deserving of
being admitted to the Bar. As far as I can recall, Mr. Lanuevo
particularly called my attention to the fact in his answers the
examinee expressed himself clearly and in good enough
English. Mr. Lanuevo however informed me that whether I
would reconsider the grades I had previously given and
submitted was entirely within my discretion.
3. Believing fully that it was within Mr. Lanuevo's authority as
Bar Confidant to address such a request to me and that the
said request was in order, I, in the presence of Mr. Lanuevo,
proceeded tore-read and re-evaluate each and every item of
the paper in question. I recall that in my re-evaluation of the
answers, I increased the grades in some items, made
deductions in other items, and maintained the same grades in
other items. However, I recall that after Mr. Lanuevo and I had
totalled the new grades that I had given after re-evaluation,
the total grade increased by a few points, but still short of the
passing mark of 75% in my subject.
xxx xxx xxx (Adm. Case No. 1164, pp. 74-75, rec.; emphasis
supplied).
In his answer (response) dated March 18, 1973, respondent Manalo reiterated
the contents of his sworn statement, adding the following:
xxx xxx xxx
5. In agreeing to re-evaluate the notebook, with resulted in
increasing the total grade of the examinee-concerned in
Remedial Law from 63.75% to 74.5%, herein respondent acted
in good faith. It may well be that he could be faulted for not
having verified from the Chairman of the Committee of Bar
Examiners the legitimacy of the request made by Mr. Lanuevo.
Herein respondent, however, pleads in attenuation of such
omission, that
a) Having been appointed an Examiner for the
first time, he was not aware, not having been
apprised otherwise, that it was not within the
authority of the Bar Confidant of the Supreme
Court to request or suggest that the grade of a
particular examination notebook be revised or
reconsidered. He had every right to presume,
owing to the highly fiduciary nature of the
18
Legal Ethics
position of the Bar Confidant, that the request
was legitimate.
xxx xxx xxx
c) In revising the grade of the particular
examinee concerned, herein respondent
carefully evaluated each and every answer
written in the notebook. Testing the answers
by the criteria laid down by the Court,
and giving the said examinee the benefit of
doubt in view of Mr. Lanuevo's representation
that it was only in that particular subject that
the said examine failed, herein respondent
became convinced that the said examinee
deserved a higher grade than that previously
given to him, but that he did not deserve, in
herein respondent's honest appraisal, to be
given the passing grade of 75%. It should also
be mentioned that, in reappraising the
answers, herein respondent downgraded a
previous rating of an answer written by the
examinee, from 9.25% to 9% (Adm. Case No.
1164, pp. 36-39, rec.; emphasis supplied).
Atty. Manuel Montecillo, examiner in Mercantile Law, affirmed in his affidavit
dated April 17, 1972:
xxx xxx xxx
That during one of the deliberations of the Bar Examiners'
Committee after the Bar Examinations were held, I was
informed that one Bar examinee passed all other subjects
except Mercantile Law;
That I informed the Bar Examiners' Committee that I would be
willing to re-evaluate the paper of this particular Bar
candidate;.
That the next day, the Bar Confidant handed to me a Bar
candidate's notebook (No. 1613) showing a grade of 61%;
That I reviewed the whole paper and after re-evaluating the
answers of this particular Bar candidate I decided to increase
his final grade to 71%;
That consequently, I amended my report and duly initialed the
changes in the grade sheet (Adm. Case No. 1164, p. 72, rec.;
emphasis supplied).
In his answer dated March 19, 1973, respondent Montecillo restated the
contents of his sworn statement of April 17, 1972, and
xxx xxx xxx
2. Supplementary to the foregoing sworn statement, I hereby
state that I re-evaluated the examination notebook of Bar
Candidate No. 1613 in Mercantile Law in absolute good faith
and in direct compliance with the agreement made during one
of the deliberations of the Bar Examiners Committee that
where a candidate fails in only one subject, the Examiner
concerned should make a re-evaluation of the answers of the
candidate concerned, which I did.
3. Finally, I hereby state that I did not know at the time I made
the aforementioned re-evaluation that notebook No. 1613 in
Mercantile Law pertained to bar examine Ramon E. Galang,
alias Roman E. Galang, and that I have never met up to this
time this particular bar examinee (Adm. Case No. 1164, pp.
40-41, rec.; emphasis supplied).
In his sworn statement dated April 12, 1972, Bar Confidant Lanuevo stated:
xxx xxx xxx
As I was going over those notebooks, checking the entries in
the grading sheets and the posting on the record of ratings, I
was impressed of the writing and the answers on the first
notebook. This led me to scrutinize all the set of notebooks.
Believing that those five merited re-evalation on the basis of
the memorandum circularized to the examiners shortly earlier
to the effect that
... in the correction of the papers, substantial
weight should then be given to clarify of
language and soundness of reasoning' (par. 4),
I took it upon myself to bring them back to the respective
examiners for re-evaluation and/or re-checking.
19
Legal Ethics
It is our experience in the Bar Division that immediately after
the release of the results of the examinations, we are usually
swarmed with requests of the examinees that they be shown
their notebooks. Many of them would copy their answers and
have them checked by their professors. Eventually some of
them would file motions or requests for re-correction and/or
re-evaluation. Right now, we have some 19 of such motions or
requests which we are reading for submission to the
Honorable Court.
Often we feel that a few of them are meritorious, but just the
same they have to be denied because the result of the
examinations when released is final and irrevocable.
It was to at least minimize the occurrence of such instances
that motivated me to bring those notebooks back to the
respective examiners for re-evaluation" (Adm. Case No. 1162,
p. 24, rec.; emphasis supplied).
In his answer dated March 19, 1973, respondent Lanuevo avers:
That he submitted the notebooks in question to the examiners
concerned in his hotest belief that the same merited re-
evaluation; that in so doing, it was not his intention to forsake
or betray the trust reposed in him as bar confidant but on the
contrary to do justice to the examinee concerned; that neither
did he act in a presumptuous manner, because the matter of
whether or not re-evaluation was inorder was left alone to the
examiners' decision; and that, to his knowledge, he does not
remember having made the alleged misrepresentation but
that he remembers having brought to the attention of the
Committee during the meeting a matter concerning another
examinee who obtained a passing general average but with a
grade below 50% in Mercantile Law. As the Committee agreed
to remove the disqualification by way of raising the grade in
said subject, respondent brought the notebook in question to
the Examiner concerned who thereby raised the grade thus
enabling the said examinee to pass. If he remembers right,
the examinee concerned is one surnamed "de la Cruz" or "Ty-
de la Cruz".
Your Honors, respondent never entertained a notion that his
act would stir such serious charges as would tend to
undermine his integrity because he did it in all good faith.
xxx xxx xxx (Adm. Case No. 1162, p. 35, rec.; emphasis
supplied).
On August 27, 1973, during the course of the investigation, respondent
Lanuevo filed another sworn statement in addition to, and in amplification of,
his answer, stating:
xxx xxx xxx
1. That I vehemently deny having deceived the examiners
concerned into believing that the examinee involved failed
only in their respective subjects, the fact of the matter being
that the notebooks in question were submitted to the
respective examiners for re-evaluation believing in all good
faith that they so merited on the basis of the Confidential
Memorandum (identified and marked as Exh. 1-Lanuevo,
particularly that portion marked as Exh. 1-a-Lanuevo)which
was circulated to all the examiners earlier, leaving to them
entirely the matter of whether or not re-evaluation was in
order,
2. That the following coincidence prompted me to pry into the
notebooks in question:
Sometime during the latter part of January and
the early part of February, 1972, on my way
back to the office (Bar Division) after lunch, I
though of buying a sweepstake ticket. I have
always made it a point that the moment I
think of so buying, I pick a number from any
object and the first number that comes into
my sight becomes the basis of the ticket that I
buy. At that moment, the first number that I
saw was "954" boldly printed on an electrical
contribance (evidently belonging to the
MERALCO) attached to a post standing along
the right sidewalk of P. Faura street towards
the Supreme Court building from San
Marcelino street and almost adjacent to the
south-eastern corner of the fence of the
Araullo High School(photograph of the number
'954', the contrivance on which it is printed
and a portion of the post to which it is
attached is identified and marked as Exhibit 4-
Lanuevo and the number "954" as Exh. 4-a-
Lanuevo).
20
Legal Ethics
With this number (954) in mind, I proceeded to
Plaza Sta. Cruz to look for a ticket that would
contain such number. Eventually, I found a
ticket, which I then bought, whose last three
digits corresponded to "954". This number
became doubly impressive to me because the
sum of all the six digits of the ticket number
was "27", a number that is so significant to me
that everything I do I try somewhat
instinctively to link or connect it with said
number whenever possible. Thus even in
assigning code numbers on the Master List of
examinees from 1968 when I first took charge
of the examinations as Bar Confidant up to
1971, I either started with the number "27" (or
"227") or end with said number. (1968 Master
List is identified and marked as Exh. 5-
Lanuevo and the figure "27" at the beginning
of the list, as Exh. 5-a Lanuevo; 1969 Master
List as Exh. 6-Lanuevo and the figure "227" at
the beginning of the list, as Exh. 6-a-Lanuevo;
1970 Master List as Exh. 7-Lanuevo and the
figure "227" at the beginning of the list as Exh.
7-a-Lanuevo; and the 1971 Master List as Exh.
8-Lanuevo and the figure "227" at the end of
the list as Exh. 8-a-Lanuevo).
The significance to me of this number (27)
was born out of these incidents in my life, to
wit: (a) On November 27, 1941 while with the
Philippine Army stationed at Camp Manacnac,
Cabanatuan, Nueva Ecija, I was stricken with
pneumonia and was hospitalized at the Nueva
Ecija Provincial Hospital as a result. As will be
recalled, the last Pacific War broke out on
December 8, 1941. While I was still confined
at the hospital, our camp was bombed and
strafed by Japanese planes on December 13,
1941 resulting in many casualties. From then
on, I regarded November 27, 1941 as the
beginning of a new life for me having been
saved from the possibility of being among the
casualties;(b) On February 27, 1946, I was
able to get out of the army byway of
honorable discharge; and (c) on February 27,
1947, I got married and since then we begot
children the youngest of whom was born on
February 27, 1957.
Returning to the office that same afternoon
after buying the ticket, I resumed my work
which at the time was on the checking of the
notebooks. While thus checking, I came upon
the notebooks bearing the office code number
"954". As the number was still fresh in my
mind, it aroused my curiosity prompting me to
pry into the contents of the notebooks.
Impressed by the clarity of the writing and
language and the apparent soundness of the
answers and, thereby, believing in all good
faith on the basis of the aforementioned
Confidential Memorandum (Exh. 1-Lanuevo
and Exh. 1-a-Lanuevo) that they merited re-
evaluation, I set them aside and later on took
them back to the respective examiners for
possible review recalling to them the said
Confidential Memorandum but leaving
absolutely the matter to their discretion and
judgment.
3. That the alleged misrepresentation or deception could have
reference to either of the two cases which I brought to the
attention of the committee during the meeting and which the
Committee agreed to refer back to the respective examines,
namely:
(a) That of an examinee who obtained a
passing general average but with a grade
below 50% (47%) in Mercantile Law(the
notebooks of this examinee bear the Office
Code No. 110, identified and marked as Exh.
9-Lanuevo and the notebook in Mercantile Law
bearing the Examiner's Code No. 951 with the
original grade of 4% increased to 50% after re-
evaluation as Exh. 9-a-Lanuevo); and
(b) That of an examinee who obtained a
borderline general average of 73.15% with a
grade below 60% (57%) in one subject which,
at the time, I could not pinpoint having
inadvertently left in the office the data
thereon. It turned out that the subject was
21
Legal Ethics
Political and International Law under Asst.
Solicitor General Bernardo Pardo (The
notebooks of this examinee bear the Office
Code No. 1622 identified and marked as Exh.
10-Lanuevo and the notebook in Political and
International Law bearing the Examiner's Code
No. 661 with the original grade of 57%
increased to 66% after re-evaluation, as Exh.
10-a-Lanuevo). This notebook in Political and
International Law is precisely the same
notebook mentioned in the sworn statement
of Asst. Solicitor General Bernardo Pardo(Exh.
------- Pardo).
4. That in each of the two cases mentioned in the next
preceding paragraph, only one (1) subject or notebook was
reviewed or re-evaluated, that is, only Mercantile Law in the
former; and only Political and International Law in the latter,
under the facts and circumstances I made known to the
Committee and pursuant to which the Committee authorized
the referral of the notebooks involved to the examiners
concerned;
5. That at that juncture, the examiner in Taxation even
volunteered to review or re-check some 19, or so, notebooks
in his subject but that I told the Committee that there was
very little time left and that the increase in grade after re-
evaluation, unless very highly substantial, may not alter the
outcome since the subject carries the weight of only 10%
(Adm. Case No. 1162, pp. 45-47, rec.).
The foregoing last-minute embellishment only serves to accentuate the fact
that Lanuevo's story is devoid of truth. In his sworn statement of April 12,
1972, he was "led to scrutinize all the set of notebooks" of respondent Galang,
because he "was impressed of the writing and the answers on the first
notebook "as he "was going over those notebooks, checking the entries in the
grading sheets and the posting on the record of ratings." In his affidavit of
August 27, 1973, he stated that the number 954 on a Meralco post provoked
him "to pry into the contents of the notebooks" of respondent Galang "bearing
office code number '954."
Respondent Ramon E. Galang, alias Roman E. Galang, asserted, among
others;
1. That herein respondent is not acquainted with former
BarConfidant Victorio Lanuevo and never met him before
except once when, as required by the latter respondent
submitted certain papers necessary for taking the bar
examinations.
xxx xxx xxx
4. That it has been the consistent policy of the Supreme Court
not to reconsider "failure" cases; after the official release
thereof; why should it now reconsider a "passing" case,
especially in a situation where the respondent and the bar
confidant do not know each other and, indeed, met only once
in the ordinary course of official business?
It is not inevitable, then, to conclude that the entire situation
clearly manifests a reasonable doubt to which respondent is
richly entitled?
5. That respondent, before reading a copy of this Honorable
Court's resolution dated March 5, 1973, had no knowledge
whatsoever of former Bar Confidant Victorio Lanuevo's
actuations which are stated in particular in the resolution. In
fact, the respondent never knew this man intimately nor, had
the herein respondent utilized anyone to contact the Bar
Confidant Lanuevo in his behalf.
But, assuming as true, the said actuations of Bar Confidant
Lanuevo as stated in the Resolution, which are evidently
purported to show as having redounded to the benefit of
herein respondent, these questions arise: First, was the re-
evaluation of Respondent's examination papers by the Bar
Examination Committee done only or especially for him and
not done generally as regards the paper of the other bar
candidates who are supposed to have failed? If the re-
evaluation of Respondent's grades was done among those of
others, then it must have been done as a matter of policy of
the Committee to increase the percentage of passing in that
year's examination and, therefore, the insinuation that only
respondent's papers were re-evaluated upon the influence of
Bar Confidant Lanuevo would be unjustifiable, if not far
fetched. Secondly, is the fact that BarConfidant Lanuevo's
actuations resulted in herein Respondent's benefit an
evidence per se of Respondent's having caused actuations of
Bar confidant Lanuevo to be done in former's behalf? To
assume this could be disastrous in effect because that would
be presuming all the members of the Bar Examination
Committee as devoid of integrity, unfit for the bar themselves
22
Legal Ethics
and the result of their work that year, as also unworthy of
anything. All of these inferences are deductible from the
narration of facts in the resolution, and which only goes to
show said narration of facts an unworthy of credence, or
consideration.
xxx xxx xxx
7. This Honorable Tribunal's Resolution of March 5, 1973 would
make this Respondent Account or answer for the actuations of
Bar Confidant Lanuevo as well as for the actuations of the Bar
Examiners implying the existence of some conspiracy
between them and the Respondent. The evident imputation is
denied and it is contended that the Bar Examiners were in the
performance of their duties and that they should be regarded
as such in the consideration of this case.
xxx xxx xxx (Adm. Case No. 1163, pp. 100-104, rec.).
I and graded. Respondent Lanuevo then requested respondent Manalo to
The evidence thus disclosed clearly demonstrates how respondent Lanuevo
systematically and cleverly initiated and prepared the stage leading to the re-
evalation and/or recorrection of the answers of respondent Galang by
deceiving separately and individually the respondents-examiners to make the
desired revision without prior authority from the Supreme Court after the
corrected notebooks had been submitted to the Court through the respondent
Bar Confidant, who is simply the custodian thereof for and in behalf of the
Court.
It appears that one evening, sometime around the middle part of December,
1971, just before Christmas day, respondent Lanuevo approached Civil Law
examiner Pamatian while the latter was in the process of correcting
examination booklets, and then and there made the representations that as
BarConfidant, he makes a review of the grades obtained in all subjects of the
examinees and if he finds that a candidate obtains an extraordinarily high
grade in one subject and a rather low one on another, he will bring back to the
examiner concerned the notebook for re-evaluation and change of grade(Exh.
2-Pamatian, Adm. Case No. 1164, pp. 55-56; Vol. V, pp. 3-4, rec.).
Sometime in the latter part of January, 1972, respondent Lanuevo brought
back to respondent-examiner Pamatian an examination booklet in Civil Law for
re-evaluation, representing that the examinee who owned the particular
notebook is on the borderline of passing and if his grade in said subject could
be reconsidered to 75%, the said examine will get a passing average.
Respondent-examiner Pamatian took respondent Lanuevo's word and under
the belief that was really the practice and policy of the Supreme Court and in
his further belief that he was just manifesting cooperation in doing so, he re-
evaluated the paper and reconsidered the examinee's grade in said subject to
75% from 64%. The particular notebook belonged to an examinee with
Examiner's Code Number 95 and with Office Code Number 954. This examinee
is Ramon E. Galang, alias Roman E. Galang. Respondent Pamatian did not
know the identity of the examinee at the time he re-evaluated the said
booklet (Exhs. 1-Pamatian, 2-Pamatian, and 3-Pamatian, Adm. Case No. 1164,
pp. 32-33, 55-56, 57; Vol. V, pp. 3-4, rec.).
Before Justice Pamatian made the revision, Examinee Galang failed in seven
subjects including Civil Law. After such revision, examinee Galang still failed in
six subjects and could not obtain the passing average of 75% for admission to
the Bar.
Thereafter, about the latter part of January, 1972 or early part of February,
1972, respondent Lanuevo went to the residence of respondent-examiner
Fidel Manalo at 1854 Asuncion Street, Makati, Rizal, with an examinee's
notebook in Remedial Law, which respondent Manalo and previously corrected
review the said notebook and possibly to reconsider the grade given,
explaining and representing that "they" has reviewed the said notebook
and that the examinee concerned had done well in other subjects, but that
because of the comparatively low grade given said examinee by respondent
Manalo in Remedial Law, the general average of said examinee was short of
passing. Respondent Lanuevo likewise made the remark and observation that
he thought that if the notebook were reviewed, respondent Manalo might yet
find the examinee deserving of being admitted to the Bar. Respondent
Lanuevo also particularly called the attention of respondent Manalo to the fact
that in his answers, the examinee expressed himself clearly and in good
English. Furthermore, respondent Lanuevo called the attention of respondent
Manalo to Paragraph 4 of the Confidential Memorandum that read as follows:
4. Examination questions should be more a test of logic,
knowledge of legal fundamentals, and ability to analyze and
solve legal problems rather than a test of memory; in the
correction of papers, substantial weight should be given to
clarify of language and soundness of reasoning.
Respondent Manalo was, however, informed by respondent Lanuevo that the
matter of reconsideration was entirely within his (Manalo's) discretion.
Respondent Manalo, believing that respondent Lanuevo, as Bar Confidant, had
the authority to make such request and further believing that such request
was in order, proceeded to re-evaluate the examinee's answers in the
presence of Lanuevo, resulting in an increase of the examinee's grade in that
23
Legal Ethics
particular subject, Remedial Law, from 63.25% to 74.5%. Respondent Manalo
authenticated with his signature the changes made by him in the notebook
and in the grading sheet. The said notebook examiner's code number is 136,
instead of 310 as earlier mentioned by him in his affidavit, and belonged to
Ramon E. Galang, alias Roman E. Galang (Exhs. 1 & 2- Manalo, Adm. Case No.
1164, pp. 36-39, 74-75; Vol. V, pp. 50-53, rec.).
But even after the re-evaluation by Atty. Manalo, Examinee Galang could not
make the passing grade due to his failing marks in five subjects.
Likewise, in the latter part of January, 1972, on one occasion when respondent
Lanuevo went to deliver to respondent Guillermo Pablo, Jr. in the latter's house
a new batch of examination papers in Political Law and Public International
Law to be corrected, respondent Lanuevo brought out a notebook in Political
Law bearing Examiner's Code Number 1752 (Exh. 5-Pardo, Adm. Case No.
1164, p. 66, rec.), informing respondent Pablo that particular examinee who
owns the said notebook seems to have passed in all other subjects except in
Political Law and Public International Law; and that if the said notebook would
be re-evaluated and the mark be increased to at least 75%, said examinee
will pass the bar examinations. After satisfying himself from respondent that
this is possible the respondent Bar Confidant informing him that this is the
practice of the Court to help out examinees who are failing in just one subject
respondent Pablo acceded to the request and thereby told the Bar
Confidant to just leave the said notebook. Respondent Pablo thereafter re-
evaluated the answers, this time with leniency. After the re-evaluation, the
grade was increased to 78% from 68%, or an increase of 10%. Respondent
Pablo then made the corresponding corrections in the grading sheet and
accordingly initialed the charges made. This notebook with Office Code
Number 954 also belonged to Ramon E. Galang, alias Roman E. Galang (Vol. V,
pp. 43-46, rec.).
After the re-evaluation by Atty. Pablo, Jr., examinee Galang's general average
was still below the passing grade, because of his failing marks in four
subjects.
Towards the end of the correction of examination notebooks, respondent
Lanuevo brought back to respondent Tomacruz one examination booklet in
Criminal Law, with the former informing the latter, who was then helping in
the correction of papers in Political Law and Public International Law, as he
had already finished correcting the examination notebooks in his assigned
subject Criminal Law that the examinee who owns that particular
notebook had missed the passing grade by only a fraction of a percent and
that if his grade in Criminal Law would be raised a few points to 75%, then the
examinee would make the passing grade. Accepting the words of respondent
Lanuevo, and seeing the justification and because he did not want to be the
one causing the failure of the examinee, respondent Tomacruz raised the
grade from 64% to 75% and thereafter, he initialed the revised mark and also
revised the mark in the general list and likewise initialed the same. The
examinee's Examiner Code Number is 746 while his Office Code Number is
954. This examinee is Ramon E. Galang, alias Roman E. Galang (Exhs. 1, 2 &
3-Tomacruz, Adm. Case No. 1164, pp. 65, 66 and 71; Vol. V, pp. 24-25, 60-61,
rec.).
Respondent Tomacruz does not recall having been shown any memo by
respondent Lanuevo when the latter approached him for this particular re-
evaluation; but he remembers Lanuevo declaring to him that where a
candidate had almost made the passing average but had failed in one subject,
as a matter of policy of the Court, leniency is applied in reviewing the
examinee's notebook in the failing subject. He recalls, however, that he was
provided a copy of the Confidential Memorandum but this was long before the
re-evaluation requested by respondent Lanuevo as the same was received by
him before the examination period (Vol. V, p. 61, rec.).
However, such revision by Atty. Tomacruz could not raise Galang's general
average to a passing grade because of his failing mark in three more subjects,
including Mercantile Law. For the revision of examinee Galang's notebook in
Mercantile Law, respondent Lanuevo neatly set the last phase of his quite
ingenious scheme by securing authorization from the Bar Examination
Committee for the examiner in Mercantile Law tore-evaluate said notebook.
At the first meeting of the Bar Examination Committee on February 8, 1972,
respondent Lanuevo suggested that where an examinee failed in only one
subject and passed the rest, the examiner concerned would review the
notebook. Nobody objected to it as irregular and the Committee adopted the
suggestion (Exhs. A & B-Montecillo, Exh. 2-Pardo, Adm. Case No. 1164, pp. 41,
72, 63; Vol. Vi, p. 16, rec.).
At a subsequent meeting of the Bar Examination Committee, respondent
Montecillo was informed by respondent Lanuevo that a candidate passed all
other subjects except Mercantile Law. This information was made during the
meeting within hearing of the order members, who were all closely seated
together. Respondent Montecillo made known his willingness tore-evaluate the
particular paper. The next day, respondent Lanuevo handed to respondent
Montecillo a bar candidate's notebook with Examiner's Code Number 1613
with a grade of 61%. Respondent Montecillo then reviewed the whole paper
and after re-evaluating the answers, decided to increase the final grade to
71%. The matter was not however thereafter officially brought to the
Committee for consideration or decision (Exhs. A& B-Montecillo, Adm. Case
No. 1164, pp. 40-41, 70-71; Vol. V, pp. 33-34, rec.).
Respondent Montecillo declared that without being given the information that
the particular examinee failed only in his subject and passed all the others, he
24
Legal Ethics
would not have consented to make the re-evaluation of the said paper(Vol. V,
p. 33, rec.).Respondent Montecillo likewise added that there was only one
instance he remembers, which is substantiated by his personal records, that
he had to change the grade of an examinee after he had submitted his report,
referring to the notebook of examinee Ramon E. Galang, alias Roman E.
Galang, with Examiner's Code Number 1613 and with Office Code Number 954
(Vol. V, pp. 34-35, rec.).
A day or two after February 5, 1972, when respondent Lanuevo went to the
residence of respondent-examiner Pardo to obtain the last bag of 200
notebooks, respondent Lanuevo returned to the residence of respondent Pardo
riding in a Volkswagen panel of the Supreme Court of the Philippines with two
companions. According to respondent Lanuevo, this was around the second
week of February, 1972, after the first meeting of the Bar Examination
Committee. respondent Lanuevo had with him on that occasion an examinee's
notebook bearing Examiner's Code No. 661. Respondent Lanuevo, after the
usual amenities, requested respondent Pardo to review and re-examine, if
possible, the said notebook because, according to respondent Lanuevo, the
examine who owns that particular notebook obtained higher grades in other
subjects, the highest of which is 84% in Remedial Law. After clearing with
respondent Lanuevo his authority to reconsider the grades, respondent Pardo
re-evaluated the answers of the examine concerned, resulting in an increase
of grade from 57% of 66%. Said notebook has number 1622 as office code
number. It belonged to examinee Ernesto Quitaleg (Exhs. 1 & 2-Pardo, Adm.
Case No. 1164, pp. 58-63; Vol. V, pp. 12-24, 29-30, rec.).
II
Re: Administrative Case No. 1162, Victorio D. Lanuevo, respondent.
A Galang, alias Roman E. Galang in the 1971 Bar Examinations. It is patent
UNAUTHORIZED RE-EVALUATION OF THE ANSWERS OF EXAMINE RAMON E.
GALANG, alias ROMAN E. GALANG, IN ALL FIVE (5) MAJOR SUBJECTS.
Respondent Victorio D. Lanuevo admitted having requested on his own
initiative the five examiners concerned to re-evaluate the five notebooks of
Ramon E. Galang, alias Roman E. Galang, that eventually resulted in the
increase of Galang's average from 66.25% to the passing grade 74.15%, or a
total increase of eight (8) weighted points, more or less, that enabled Galang
to hurdle the 1971 Bar examinations via a resolution of the Court making 74%
the passing average for that year's examination without any grade below fifty
percent (50%) in any subject. Galang thereafter took his lawyer's oath. It is
likewise beyond dispute that he had no authority from the Court or the
Committee to initiate such steps towards the said re-evaluation of the answers
of Galang or of other examinees.
Denying that he made representations to the examiners concerned that
respondent Galang failed only in their respective subjects and/or was on the
borderline of passing, Respondent Lanuevo sought to justify his actuations on
the authority of the aforequoted paragraph 4 of the Confidential
Memorandum(Exhs. 1 and 1-A-Lanuevo, Adm. Cases Nos. 1162 & 1164, p. 51,
Adm. Case No. 1162; Vol. VII, p. 4, rec.) distributed to the members of the Bar
Examination Committee. He maintains that he acted in good faith and "in his
honest belief that the same merited re-evaluation; that in doing so, it was not
his intention to forsake or betray the trust reposed in him as BarConfidant but
on the contrary to do justice to the examinee concerned; and that neither did
he act in a presumptuous manner because the matter of whether or not re-
evaluation was in order was left alone to the examiners' decision ..." (Exh. 2-
Lanuevo, Adm. Case No. 1162, pp. 35-37, rec.).
But as openly admitted by him in the course of the investigation, the said
confidential memorandum was intended solely for the examiners to guide
them in the initial correction of the examination papers and never as a basis
for him to even suggest to the examiners the re-evaluation of the examination
papers of the examinees (Vol. VII, p. 23, rec.). Any such suggestion or request
is not only presumptuous but also offensive to the norms of delicacy.
We believe the Examiners Pablo, Manalo, Montecillo, Tomacruz, Pardo and
Pamatian whose declarations on the matter of the misrepresentations and
deceptions committed by respondent Lanuevo, are clear and consistent as
well as corroborate each other.
For indeed the facts unfolded by the declarations of the respondents-
examiners (Adm. Case No. 1164) and clarified by extensive cross-examination
conducted during the investigation and hearing of the cases show how
respondent Lanuevo adroitly maneuvered the passing of examinee Ramon E.
likewise from the records that respondent Lanuevo too undue advantage of
the trust and confidence reposed in him by the Court and the Examiners
implicit in his position as BarConfidant as well as the trust and confidence that
prevailed in and characterized his relationship with the five members of the
1971 Bar Examination Committee, who were thus deceived and induced into
re-evaluating the answers of only respondent Galang in five subjects that
resulted in the increase of his grades therein, ultimately enabling him to be
admitted a member of the Philippine Bar.
It was plain, simple and unmitigated deception that characterized respondent
Lanuevo's well-studied and well-calculated moves in successively representing
separately to each of the five examiners concerned to the effect that the
examinee failed only in his particular subject and/or was on the borderline of
passing. To repeat, the before the unauthorized re-evaluations were made,
Galang failed in the five (5) major subjects and in two (2) minor subjects while
25
Legal Ethics
his general average was only 66.25% which under no circumstances or Hence, by the simple expedient of initiating the re-evaluation of the answers
standard could it be honestly claimed that the examinee failed only in one, or of Galang in the five (5) subjects under the circumstances already narrated,
he was on the borderline of passing. In fact, before the first notebook of Galang's original average of 66.25% was increased to 74.15% or an increase
Galang was referred back to the examiner concerned for re-evaluation, Galang of 7.9 weighted points, to the great damage and prejudice of the integrity of
had only one passing mark and this was in Legal Ethics and Practical the Bar examinations and to the disadvantage of the other examinees. He did
Exercises, a minor subject, with grade of 81%. The averages and individual this in favor only of examinee Galang, with the possible addition of examinees
grades of Galang before and after the unauthorized re-evaluation are as Ernesto Quitaleg and Alfredo Ty dela Cruz. But only one notebook was re-
follows: evaluated for each of the latter who Political Law and Public International
Law for Quitaleg and Mercantile Law for Ty dela Cruz.
BAI
The Office of the Bar Confidant, it must be stressed, has absolutely nothing to
1. Political Law Public do in the re-evaluation or reconsideration of the grades of examinees who fail
International Law 68% 78% = 10 pts. to make the passing mark before or after their notebooks are submitted to it
or 30 weighted points by the Examiners. After the corrected notebooks are submitted to him by the
Examiners, his only function is to tally the individual grades of every
examinee in all subjects taken and thereafter compute the general average.
BAI That done, he will then prepare a comparative data showing the percentage of
passing and failing in relation to a certain average to be submitted to the
Labor Laws and Social Committee and to the Court and on the basis of which the Court will
Legislations 67% 67% = no re- determine the passing average, whether 75 or 74 or 73, etc. The Bar
evaluation made. Confidant has no business evaluating the answers of the examinees and
cannot assume the functions of passing upon the appraisal made by the
2. Civil Law 64% 75% = 1 points Examiners concerned. He is not the over-all Examiner. He cannot presume to
or 33 weighted points. know better than the examiner. Any request for re-evaluation should be done
by the examinee and the same should be addressed to the Court, which alone
can validly act thereon. A Bar Confidant who takes such initiative, exposes
Taxation 74% 74% = no re- himself to suspicion and thereby compromises his position as well as the
evaluation made. image of the Court.

3. Mercantile Law 61% 71% = 10 pts. Respondent Lanuevo's claim that he was merely doing justice to Galang
or 30 weighted points. without any intention of betraying the trust and confidence reposed in him by
the Court as Bar Confidant, can hardly invite belief in the fact of the
4. Criminal Law 64% 75% = 11 pts. or incontrovertible fact that he singled out Galang's papers for re-evaluation,
22 weighted points. leaving out the papers of more than ninety (90) examinees with far better
averages ranging from 70% to 73.9% of which he was fully aware (Vol. VI, pp.
5. Remedial Law 63.75% (64) 75.5% (75%) = 46-47, 101, rec.), which could be more properly claimed as borderline cases.
11 pts. or 44 weighted points. This fact further betrays respondent Lanuevo's claim of absolute good faith in
referring back the papers of Galang to the Examiners for re-evaluation. For
certainly, as against the original weighted average of 66.25% of Galang, there
Legal Ethics and Practical can hardly be any dispute that the cases of the aforesaid more than ninety
Exercises 81% 81% = no re- (90) examinees were more deserving of reconsideration. Hence, in trying to
evaluation made. do justice to Galang, as claimed by respondent Lanuevo, grave injustice was
inflicted on the other examinees of the 1971 Bar examinations, especially the
said more than ninety candidates. And the unexplained failure of respondent
General Weighted Averages 66.25% 74.15% Lanuevo to apprise the Court or the Committee or even the Bar Chairman of
the fact of re-evaluation before or after the said re-evaluation and increase of

26
Legal Ethics
grades, precludes, as the same is inconsistent with, any pretension of good
faith.
His request for the re-evaluation of the notebook in Political Law and
International Law of Ernesto Quitaleg and the notebook in Mercantile Law of
Alfredo Ty dela Cruz to give his actuations in the case of Galang a semblance
of impartiality, hoping that the over ninety examinees who were far better
situated than Galang would not give him away. Even the re-evaluation of one
notebook of Quitaleg and one notebook of Ty dela Cruz violated the
agreement of the members of the 1971 Bar Examination Committee to re-
evaluate when the examinee concerned fails only in one subject. Quitaleg and
Ty dela Cruz failed in four (4) and three (3) subjects respectively as
hereinafter shown.
The strange story concerning the figures 954, the office code number given to
Galang's notebook, unveiled for the first time by respondent Lanuevo in his
suplemental sworn statement(Exh. 3- Lanuevo, Adm. Case No. 1162, pp. 45-
47. rec.) filed during the investigation with this Court as to why he pried into
the papers of Galang deserves scant consideration. It only serves to picture a
man desperately clutching at straws in the wind for support. Furthermore, it
was revealed by respondent Lanuevo for the first time only on August 27,
1973 or a period of more than five 95) months after he filed his answer on
March 19, 1973(Exh. 2-Lanuevo, Adm. Case No. 1162, pp. 35-36, rec.),
showing that it was just an after-thought.
B to their admission in evidence.
REFERRAL OF EXAMINEE ALFREDO TY DELA CRUZ NOTEBOOK IN
MERCHANTILE LAW TO RAISE HIS GRADE OF 47% TO 50% TO EXAMINER
MANUEL MONTECILLO AND OF EXAMINEE ERNESTO QUITALEG'S NOTEBOOK IN
POLITICAL LAW TO EXAMINER BERNARDO PARDO FOR RE-EVALUATION,
RESULTING IN THE INCREASE OF HIS GRADE IN THAT SUBJECT FROM 57% TO
66%.
Likewise, respondent Victorio D. Lanuevo admitted having referred back the
aforesaid notebooks on Mercantile Law and Political Law respectively of
Alfredo Ty dela Cruz and Ernesto Quitaleg to the Examiners concerned.
The records are not clear, however, under what circumstances the notebooks
of Ty dela Cruz and Quitaleg were referred back to the Examiners concerned.
Respondent Lanuevo claimed that these two cases were officially brought to
the Bar Examination Committee during its first meeting (Vol. VI, pp. 50-51,
rec.) and the latter decided to refer them back to the Examiners concerned for
re-evaluation with respect to the case of Quitaleg and to remove the
disqualification in the case of Ty dela Cruz(Vol. VI, pp. 33-39, 84-86, rec.).
Respondent Lanuevo further claimed that the date of these two cases were
contained in a sheet of paper which was presented at the said first meeting of
the Committee (Vol. VI, pp. 39-43, 49-51, rec.). Likewise a record of the dates
of every meeting of the Committee was made by respondent Lanuevo (Vol. VI,
p. 28, rec.). The alleged sheet containing the date of the two examinees and
record of the dates of the meeting of the Committee were not presented by
respondent Lanuevo as, according to him, he left them inadvertently in his
desk in the Confidential Room when he went on leave after the release of the
Bar results (Vol. VI, pp. 28, 41-45, rec.). It appears, however, that the
inventory conducted by officials of the Court in the Confidential Room of
respondent Lanuevo did not yield any such sheet of record (Exh. X, Adm. Case
No. 1162, p. 74, rec.; Vol. VIII, pp. 11-13, 20-22, 29-31, rec.).
Respondent Examiner Montecillo, Mercantile Law, maintained that there was
only one notebook in Mercantile Law which was officially brought to him and
this is substantiated by his personal file and record (Vol. VI, pp. 34-35, rec.).
According to him, this notebook's examiner code number is 1613 (Vol. V, p.35,
rec.) and is owned by Ramon E. Galang, alias Roman E. Galang. It appears,
however, that the original grade of 47% in Mercantile Law of Ty dela Cruz was
changed to 50% as appearing in the cover of the notebook of said examinee
and the change is authenticated with the initial of Examiner Montecillo. He
was present when respondent Lanuevo presented in evidence the notebook of
Ty dela Cruz bearing Examiner code number 951 and Office Code Number 110
as Exhibit 9-Lanuevo in Administrative Case No. 1162, and the figures 47
crossed out, replaced by the figures 50 bearing the initial of Examiner
Montecillo as Exhibit 9-a-Lanuevo (Adm. Case No. 1162, p. 48, rec.; Vol. VI, pp.
23-24, Vol. VIII, p. 4, rec.); but Atty. Montecillo did not interpose any objection
In this connection, respondent Examiner Pardo testified that he remembers a
case of an examinee presented to the Committee, who obtained passing
marks in all subjects except in one and the Committee agreed to refer back to
the Examiner concerned the notebook in the subject in which the examinee
failed (Vol. V, pp. 15-16, rec.). He cannot recall the subject, but he is certain
that it was not Political Law (Vol. V, p. 16, rec.).Further, Pardo declared that he
is not aware of any case of an examinee who was on the borderline of passing
but who got a grade below 50% in one subject that was taken up by the
Committee (Vol. V, pp. 16-17, rec.).
Examiner Montecillo testified that it was the notebook with Examiner Code
Number 1613 (belonging to Galang) which was referred to the Committee and
the Committee agreed to return it to the Examiner concerned. The day
following the meeting in which the case of an examinee with Code Number
1613 was taken up, respondent Lanuevo handed him said notebook and he
accordingly re-evaluated it. This particular notebook with Office Code Number
954 belongs to Galang.
27
Legal Ethics
Examiner Tomacruz recalled a case of an examinee whose problem was
Mercantile Law that was taken up by the Committee. He is not certain of any
other case brought to the Committee (Vol. V, pp. 59-61, rec.). Pardo declared
that there was no case of an examinee that was referred to the Committee
that involved Political Law. He re-evaluated the answers of Ernesto Quitaleg in
Political Law upon the representation made by respondent Lanuevo to him.
Alfredo Ty dela Cruz, at the time his notebook in Mercantile Law was referred
to Examiner Montecillo to remove the disqualification grade of 47% in said
subject, had two (2) other failing grades. These are:
Political Law 70%
Taxation 72%

As heretofore stated, it was this consensus at the meeting on February 8, His grades and averages before and after the disqualifying grade was
1972 of the members of the Committee that where an examinee failed in only removed are as follows:
one subject and passed all the others, the Examiner in whose subject the
examinee failed should re-evaluate or recheck the notebook (Vol. V, p. 16,
rec.: Exh. 2-Pardo, allegation No. 9, Adm. Case No. 1164, pp. 60-63, Exh. A- BA
Montecillo, Allegation No. 2, Adm. Case No. 1164, pp. 40-41, and Exh. B-
Montecillo, Adm. Case No. 1164, p. 72, rec.). Political Law 70% 70% = No reevaluation
Labor Laws 75% 75% = "
At the time the notebook of Ernesto Quitaleg in Political Law with a grade of Civil Law 89% 89% = "
57% was referred back to Examiner Pardo, said examinee had other failing Taxation 72% 72% = "
grades in three (3) subjects, as follows: Mercantile Law 47% 50% = 3 pts. or 9
weighted points
Criminal Law 78% 78% = no reevaluation
Labor Laws 3% Remedial Law 88% 88% = "
Legal Ethics 79% 79% = "
Taxation 69%

Mercantile Law 68% Weighted Averages 74.95% 75.4%

Ernesto Quitaleg's grades and averages before and after the re-evaluation of (Vol. VI, pp. 26-27, rec.).
his grade in Political Law are as follows:
The re-evaluation of the answers of Quitaleg in Political Law and the answers
BA of Ty dela Cruz in Mercantile Law, violated the consensus of the Bar
Examination Committee in February, 1971, which violation was due to the
Political Law 57% 66% = 9 pts. or 27 misrepresentation of respondent Lanuevo.
weighted points
Labor Laws 73% 73% = No reevaluation It must be stated that the referral of the notebook of Galang in Mercantile Law
Civil Law 75% 75% = " to Examiner Montecillo can hardly be said to be covered by the consensus of
Taxation 69% 69% = " the Bar Examination Committee because even at the time of said referral,
Mercantile Law 68% 68% = " which was after the unauthorized re-evaluation of his answers of four (4)
Criminal Law 78% 78% = " subjects, Galang had still failing grades in Taxation and Labor Laws. His re-
Remedial Law 85% 85% = " evaluated grade of 74.5% in Remedial Law was considered 75% under the
Legal Ethics 83% 83% = " Confidential Memorandum and was so entered in the record. His grade in
Mercantile Law as subsequently re-evaluated by Examiner Montecillo was
71%.
Average (weighted) 73.15% 74.5%
Respondent Lanuevo is therefore guilty of serious misconduct of having
(Vol. VI, pp. 26-27; Exhs. 10 and 10-A-Lanuevo, Adm. Case No. 1162, rec.) betrayed the trust and confidence reposed in him as Bar Confidant, thereby

28
Legal Ethics
impairing the integrity of the Bar examinations and undermining public faith in
the Supreme Court. He should be disbarred.
As to whether Ernesto Quitaleg and Alfredo Ty dela Cruz should be disbarred
or their names stricken from the Roll of Attorneys, it is believed that they
should be required to show cause and the corresponding investigation
conducted.
III
Re: Administrative Case No. 1163, Ramon E. Galang, alias Roman E. Galang,
respondent.
A
The name of respondent Ramon E. Galang, alias Roman E. Galang, should
likewise be stricken off the Roll of Attorneys. This is a necessary consequence
of the un-authorized re-evaluation of his answers in five(5) major subjects
Civil Law, Political and International Law, Criminal Law, Remedial Law, and
Mercantile Law.
The judicial function of the Supreme Court in admitting candidates to the legal
profession, which necessarily involves the exercise of discretion, requires: (1)
previous established rules and principles; (2) concrete facts, whether past or
present, affecting determinate individuals; and (3) a decision as to whether
these facts are governed by the rules and principles (In re: Cunanan
Flunkers' Petition for Admission to the Bar -- 94 Phil. 534, 544-545). The
determination of whether a bar candidate has obtained the required passing
grade certainly involves discretion (Legal and Judicial Ethics, Justice Martin,
1969 ed., p. 13).
In the exercise of this function, the Court acts through a Bar Examination
Committee, composed of a member of the Court who acts as Chairman and
eight (8) members of the Bar who act as examiners in the eight (8) bar
subjects with one subject assigned to each. Acting as a sort of liaison officer
between the Court and the Bar Chairman, on one hand, and the individual
members of the Committee, on the other, is the Bar Confidant who is at the
same time a deputy clerk of the Court. Necessarily, every act of the
Committee in connection with the exercise of discretion in the admission of
examinees to membership of the Bar must be in accordance with the
established rules of the Court and must always be subject to the final approval
of the Court. With respect to the Bar Confidant, whose position is primarily
confidential as the designation indicates, his functions in connection with the
conduct of the Bar examinations are defined and circumscribed by the Court
and must be strictly adhered to.
The re-evaluation by the Examiners concerned of the examination answers of
respondent Galang in five (5) subjects, as already clearly established, was
initiated by Respondent Lanuevo without any authority from the Court, a
serious breach of the trust and confidence reposed by the Court in him as Bar
Confidant. Consequently, the re-evaluation that enabled respondent Galang to
pass the 1971 Bar examinations and to be admitted to the Bar is a complete
nullity. The Bar Confidant does not possess any discretion with respect to the
matter of admission of examinees to the Bar. He is not clothed with authority
to determine whether or not an examinee's answers merit re-evaluation or re-
evaluation or whether the Examiner's appraisal of such answers is correct.
And whether or not the examinee benefited was in connivance or a privy
thereto is immaterial. What is decisive is whether the proceedings or incidents
that led to the candidate's admission to the Bar were in accordance with the
rules.
B
Section 2 of Rule 138 of the Revised Rules of Court of 1964, in connection,
among others, with the character requirement of candidates for admission to
the Bar, provides that "every applicant for admission as a member of the Bar
must be ... of good moral character ... and must produce before the Supreme
Court satisfactory evidence of good moral character, and that no charges
against him involving moral turpitude, have been filed or are pending in any
court in the Philippines." Prior to 1964, or under the old Rules of Court, a bar
applicant was required to produce before the Supreme Court satisfactory
testimonials of good moral character (Sec. 2, Rule 127). Under both rules,
every applicant is duty bound to lay before the Court all his involvement in
any criminal case, pending or otherwise terminated, to enable the Court to
fully ascertain or determine applicant's moral character. Furthermore, as to
what crime involves moral turpitude, is for the supreme Court to determine.
Hence, the necessity of laying before or informing the Court of one's personal
record whether he was criminally indicted, acquitted, convicted or the case
dismissed or is still pending becomes more compelling. The forms for
application to take the Bar examinations provided by the Supreme Court
beginning the year 1965 require the disclosure not only of criminal cases
involving moral turpitude filed or pending against the applicant but also of all
other criminal cases of which he has been accused. It is of course true that
the application form used by respondent Galang when he took the Bar for the
first time in 1962 did not expressly require the disclosure of the applicant's
criminal records, if any. But as already intimated, implicit in his task to show
satisfactory evidence or proof of good moral character is his obligation to
reveal to the Court all his involvement in any criminal case so that the Court
can consider them in the ascertainment and determination of his moral
character. And undeniably, with the applicant's criminal records before it, the
Court will be in a better position to consider the applicant's moral character;
for it could not be gainsaid that an applicant's involvement in any criminal
case, whether pending or terminated by its dismissal or applicant's acquittal
29
Legal Ethics
or conviction, has a bearing upon his character or fitness for admission to the
Bar. In 1963 and 1964, when respondent Galang took the Bar for the second
and third time, respectively, the application form provided by the Court for
use of applicants already required the applicant to declare under oath that "he
has not been accused of, indicted for or convicted by any court or tribunal of
any offense involving moral turpitude; and that there is no pending case of
that nature against him." By 1966, when Galang took the Bar examinations for
the fourth time, the application form prepared by the Court for use of
applicants required the applicant to reveal all his criminal cases whether
involving moral turpitude or not. In paragraph 4 of that form, the applicant is
required under oath to declare that "he has not been charged with any offense
before a Fiscal, Municipal Judge, or other officer; or accused of, indicted for or
convicted by any court or tribunal of any crime involving moral turpitude; nor
is there a pending case against him" (Adm. Case No. 1163, p. 56, rec.). Yet,
respondent Galang continued to intentionally withhold or conceal from the
Court his criminal case of slight physical injuries which was then and until now
is pending in the City Court of Manila; and thereafter repeatedly omitted to
make mention of the same in his applications to take the Bar examinations in
1967, 1969 and 1971.
All told, respondent Ramon E. Galang, alias Roman E. Galang, is guilty of
fraudulently concealing and withholding from the Court his pending criminal
case for physical injuries in 1962, 1963, 1964, 1966, 1967, 1969 and 1971;
and in 1966, 1967,1969 and 1971, he committed perjury when he declared
under oath that he had no pending criminal case in court. By falsely
representing to the Court that he had no criminal case pending in court,
respondent Galang was allowed unconditionally to take the Bar examinations
seven (7) times and in 1972 was allowed to take his oath.
That the concealment of an attorney in his application to take the Bar
examinations of the fact that he had been charged with, or indicted for, an
alleged crime, is a ground for revocation of his license to practice law is well
settled (see 165 ALR 1151, 7 CJS 741). Thus:
[1] It requires no argument to reach the conclusion that the
respondent, in withholding from the board of law examiners
and from the justice of this court, to whom he applied for
admission, information respecting so serious a matter as an
indictment for a felony, was guilty of fraud upon the court
(cases cited).
[2] It is equally clear that, had the board of law examiners, or
the judge to whom he applied for admission, been apprised of
the true situation, neither the certificate of the board nor of
the judge would have been forthcoming (State ex rel. Board of
Law Examiners v. Podell, 207 N W 709 710).
The license of respondent Podell was revoke and annulled, and he was
required to surrender to the clerk of court the license issued to him, and his
name was stricken from the roll of attorneys (p. 710).
Likewise in Re Carpel, it was declared that:
[1] The power to admit to the bar on motion is conferred in the
discretion of the Appellate Division.' In the exercise of the
discretion, the court should be informed truthfully and frankly
of matters tending to show the character of the applicant and
his standing at the bar of the state from which he comes. The
finding of indictments against him, one of which was still
outstanding at the time of his motion, were facts which should
have been submitted to the court, with such explanations as
were available. Silence respecting them was reprehensible, as
tending to deceive the court (165 NYS, 102, 104; emphasis
supplied).
Carpel's admission to the bar was revoked (p. 105).
Furthermore, respondent's persistent denial of his involvement in any criminal
case despite his having been apprised by the Investigation of some of the
circumstances of the criminal case including the very name of the victim in
that case(he finally admitted it when he was confronted by the victim himself,
who was called to testify thereon), and his continued failure for about thirteen
years to clear his name in that criminal case up to the present time, indicate
his lack of the requisite attributes of honesty, probity and good demeanor. He
is therefore unworthy of becoming a member of the noble profession of law.
While this aspect of the investigation was not part of the formal resolution of
the Court requiring him to explain why his name should not be stricken from
the Roll of Attorneys, respondent Galang was, as early as August, 1973,
apprised of his omission to reveal to the Court his pending criminal case. Yet
he did not offer any explanation for such omission.
Under the circumstances in which respondent Ramon E. Galang, alias Roman
E. Galang, was allowed to take the Bar examinations and the highly irregular
manner in which he passed the Bar, WE have no other alternative but to order
the surrender of his attorney's certificate and the striking out of his name from
the Roll of Attorneys. For as WE said in Re Felipe del Rosario:
The practice of the law is not an absolute right to be granted
every one who demands it, but is a privilege to be extended or
withheld in the exercise of sound discretion. The standards of
the legal profession are not satisfied by conduct which merely
30
Legal Ethics
enables one to escape the penalties of the criminal law. It
would be a disgrace to the Judiciary to receive one whose
integrity is questionable as an officer of the court, to clothe
him with all the prestige of its confidence, and then to permit
him to hold himself as a duly authorized member of the bar
(citing American cases) [52 Phil. 399-401].
What WE now do with respondent Ramon E. Galang, alias Roman E. Galang, in
this present case is not without any precedent in this jurisdiction. WE had on
several occasions in the past nullified the admission of successful bar
candidates to the membership of the Bar on the grounds, among others, of
(a)misrepresentations of, or false pretenses relative to, the requirement on
applicant's educational attainment [Tapel vs. Publico, resolution of the
Supreme Court striking off the name of Juan T. Publico from the Roll of
Attorneys on the basis of the findings of the Court Investigators contained in
their report and recommendation, Feb. 23, 1962; In re: Telesforo A. Diao, 7
SCRA 475-478; (b) lack of good moral character [In re: Peralta, 101 Phil. 313-
314]; and (c) fraudulent passing of the Bar examinations [People vs.
Romualdez -- re: Luis Mabunay, 57 Phil. 151; In re: Del Rosario, 52 Phil. 399
and People vs. Castro and Doe, 54 Phil. 42]. In the cases of Romualdez
(Mabunay) and Castro, the Court found that the grades of Mabunay and
Castro were falsified and they were convicted of the crime of falsification of
public documents.
IV
RE: Administrative Case No. 1164, Assistant Solicitor General Bernardo Pardo
(now CFI Judge), Judge Ramon Pamatian(Later Associate Justice of the Court of
Appeals, now deceased)Atty. Manuel G. Montecillo, Atty. Fidel Manalo, Atty.
Manuel Tomacruz and Atty. Guillermo Pablo, Jr., respondents.
All respondents Bar examiners candidly admitted having made the re-
evaluation and/or re-correction of the papers in question upon the
misrepresentation of respondent BarConfidant Lanuevo. All, however,
professed good faith; and that they re-evaluated or increased the grades of
the notebooks without knowing the identity of the examinee who owned the
said notebooks; and that they did the same without any consideration or
expectation of any. These the records clearly demonstrate and WE are of the
opinion and WE so declare that indeed the respondents-examiners made the
re-evaluation or re-correcion in good faith and without any consideration
whatsoever.
Considering however the vital public interest involved in the matter of
admission of members to the Bar, the respondents bar examiners, under the
circumstances, should have exercised greater care and caution and should
have been more inquisitive before acceding to the request of respondent Bar
Confidant Lanuevo. They could have asked the Chairman of the Bar
Examination Committee, who would have referred the matter to the Supreme
Court. At least the respondents-examiners should have required respondent
Lanuevo to produce or show them the complete grades and/or the average of
the examinee represented by respondent Lanuevo to have failed only in their
respective and particular subject and/or was on the borderline of passing to
fully satisfy themselves that the examinee concerned was really so
circumstances. This they could have easily done and the stain on the Bar
examinations could have been avoided.
Respondent Bar examiners Montecillo, Pamatian, and Manalo claimed and so
declared under oath that the answers of respondent Galang really deserved or
merited the increased grades; and so with respondent Pardo in connection
with the re-evaluation of Ernesto Quitaleg's answers in Political Law. With
respect to respondents Tomacruz and Pablo, it would appear that they
increased the grades of Galang in their respective subject solely because of
the misrepresentations of Respondent Lanuevo. Hence, in the words of
respondent Tomacruz: "You brought to me one paper and you said that this
particular examinee had almost passed, however, in my subject he received
60 something, I cannot remember the exact average and if he would get a few
points higher, he would get a passing average. I agreed to do that because I
did not wish to be the one causing his failure. ..." (Vol. V, pp. 60-61, rec.; see
also allegations 3 and 4, Exh. 1-Tomacruz, Adm. Case No. 1164, p. 69, rec.;
emphasis ours). And respondent Pablo: "... he told me that this particular
examinee seems to have passed in allot her subject except this subject and
that if I can re-evaluate this examination notebook and increase the mark to
at least 75, this particular examinee will pass the bar examinations so I
believe I asked him 'Is this being done?' and he said 'Yes, that is the practice
used to be done before to help out examinees who are failing in just one
subject' so I readily acceded to his request and said 'Just leave it with me and I
will try to re-evaluate' and he left it with me and what i did was to go over the
book and tried to be as lenient as I could. While I did not mark correct the
answers which were wrong, what I did was to be more lenient and if the
answers was correct although it was not complete I raise the grade so I had a
total of 78 instead of 68 and what I did was to correct the grading sheet
accordingly and initial the changes" (Vol. V, pp. 44-45, rec.; emphasis
supplied).
It could not be seriously denied, however, that the favorable re-evaluations
made by respondents Pamatian, Montecillo, Manalo and Pardo
notwithstanding their declarations that the increases in grades they gave
were deserved by the examinee concerned, were to a certain extent
influenced by the misrepresentation and deception committed by respondent
Lanuevo. Thus in their own words:
Montecillo
31
Legal Ethics
Q And by reason of that information you made
the re-evaluation of the paper?
A Yeas, your Honor.
Q Would you have re-evaluated the paper of
your own accord in the absence of such
information?
A No, your Honor, because I have submitted
my report at that time" (Vol. V, p. 33, rec.; see
also allegations in paragraphs 2, 3, 4 & 5,
Affidavit of April 17, 1972, Exh. B-Montecillo;
allegation No. 2, Answer dated march 19,
1973, Exh. A-Montecillo, Adm. Case No. 1164,
pp. 40-41, and 72, rec.).
Pamatian
3. That sometime in the later part of January of this year, he
brought back to me an examination booklet in Civil Law for re-
evaluation because according to him the owner of the paper is
on the borderline and if I could reconsider his grade to 75%
the candidate concerned will get passing mark;
4. That taking his word for it and under the belief that it was
really the practice and policy of the Supreme Court to do so
and in the further belief that I was just manifesting
cooperation in doing so, I re-evaluated the paper and
reconsidered the grade to 75%; ..." (Exh. 2-Pamatian, Adm.
Case No. 1164, p. 55, rec.); and
5. That the above re-evaluation was made in good faith and
under the belief that I am authorized to do so in view of them
is representation of said Atty. Victorio Lanuevo, ..." (Exh. 1-
Pamatian, Adm. Case No. 1164, pp. 33-34, rec.).
Manalo
(c) In revising the grade of the particular examinee concerned,
herein respondent carefully evaluated each and every answer
written in the notebook. Testing the answer by the criteria laid
down by the Court, and giving the said examinee the benefit
of the doubt in view of Mr. Lanuevo's representation that it
was only in that particular subject that said examinee failed,
herein respondent became convinced that the said examinee
deserved a higher grade than that previously given him, but
he did not deserve, in herein respondent's honest appraisal, to
be given the passing grade of
75%. ..."(allegation 5-c, p. 38, Exh. 1-Manalo, rec.; emphasis
supplied).
Pardo
... I considered it entirely humanly possible to have erred,
because I corrected that particular notebook on December
31,1971, considering especially the representation of the Bar
Confidant that the said examinee had obtained higher grades
in other subjects, the highest of which was 84% in Remedial
Law, if I recall
correctly. ... (allegation 7, Exh. 2-Pardo, Adm. Case No. 1164,
p. 62, rec.; emphasis supplied).
With the misrepresentations and the circumstances utilized by respondent
Lanuevo to induce the herein examiners to make the re-evaluation adverted
to, no one among them can truly claim that the re-evaluation effected by
them was impartial or free from any improper influence, their conceded
integrity, honesty and competence notwithstanding.
Consequently, Galang cannot justifiably claim that he deserved the increased
grades given after the said re-evaluations(Galang's memo attached to the
records, Adm. Case No. 1163).
At any rate, WE are convinced, in the light of the explanations of the
respondents-examiners, which were earlier quoted in full, that their actuations
in connection with the re-evaluation of the answers of Galang in five (5)
subjects do not warrant or deserve the imposition of any disciplinary action.
WE find their explanations satisfactory. Nevertheless, WE are constrained to
remind herein respondents-examiners that their participation in the admission
of members to the Bar is one impressed with the highest consideration of
public interest absolute purity of the proceedings and so are required to
exercise the greatest or utmost case and vigilance in the performance of their
duties relative thereto.
V
Respondent Atty. Victorio D. Lanuevo, in his memorandum filed on November
14, 1973, claimed that respondent-examiner Pamatian "in bringing up this
unfounded cause, or lending undue assistance or support thereto ... was
motivated with vindictiveness due to respondent's refusal to be pressured into
32
Legal Ethics
helping his (examiner's) alleged friend a participant in the 1971 Bar
Examinations whom said examiner named as Oscar Landicho and who, the
records will show, did not pass said examinations (p. 9, Lanuevo's memo,
Adm. Case No. 1162).
It must be stated that this is a very serious charge against the honor and
integrity of the late Justice Ramon Pamatian, who passed away on October 18,
1973 and therefore cannot refute Lanuevo's insinuations. Respondent Victorio
D. Lanuevo did not bring this out during the investigation which in his words is
"essential to his defense. "His pretension that he did not make this charge
during the investigation when Justice Pamatian was still alive, and deferred
the filing of such charge against Justice Pamatian and possibly also against
Oscar Landicho before the latter departed for Australia "until this case shall
have been terminated lest it be misread or misinterpreted as being intended
as a leverage for a favorable outcome of this case on the part of respondent
or an act of reprisal", does not invite belief; because he does not impugn the
motives of the five other members of the 1971 Bar Examination Committee,
who also affirmed that he deceived them into re-evaluating or revising the
grades of respondent Galang in their respective subjects.
It appears, however, that after the release of the results of the 1971 Bar
examinations, Oscar Landicho, who failed in that examinations, went to see
and did see Civil Law examiner Pamatian for the purpose of seeking his help in
connection with the 1971 Bar Examinations. Examiner Pamatian advised
Landicho to see the Chairman of the 1971 Bar Examination Committee.
Examiner Pamatian mentioned in passing to Landicho that an examination
booklet was re-evaluated by him (Pamatian) before the release of the said bar
results (Vol. V, pp. 6-7, rec). Even though such information was divulged by
respondent Pamatian after the official release of the bar results, it remains an
indecorous act, hardly expected of a member of the Judiciary who should
exhibit restraint in his actuations demanded by resolute adherence to the
rules of delicacy. His unseemly act tended to undermine the integrity of the
bar examinations and to impair public faith in the Supreme Court.
VI
The investigation failed to unearth direct evidence that the illegal machination
of respondent Lanuevo to enable Galang to pass the 1971 Bar examinations
was committed for valuable consideration.
A is not reflected in his 1971 Statement of Assets and
There are, however, acquisitions made by Respondent Lanuevo immediately
after the official release of the 1971 Bar examinations in February, 1972,
which may be out of proportion to his salary as Bar Confidant and Deputy
Clerk of Court of the Supreme Court.
1. On April 5, 1972, respondent Lanuevo and his wife acquired
from the BF Homes, Inc. a house and lot with an area of 374
square meters, more or less, for the amount of P84,114.00.
The deed of sale was dated March 5, 1972 but was notarized
only on April 5, 1972. On the same date, however, respondent
Lanuevo and his wife executed two (2)mortgages covering the
said house and lot in favor of BF Homes, Inc. in the total
amount of P67,291.20 (First mortgage P58,879.80, Entry
No. 90913: date of instrument April 5, 1972, date of
inscription April 20, 1972: Second mortgage P8,411.40,
Entry No. 90914: date of instrument April 5, 1972, date of
inscription April 20, 1972). [D-2 to D-4, Vol. III, rec.].
Respondent Lanuevo paid as down payment the amount of
only P17,000.00, which according to him is equivalent to 20%,
more or less, of the purchase price of P84,114.00. Respondent
Lanuevo claimed that P5,000.00 of the P17,000.00 was his
savings while the remaining the P12,000.00 came from his
sister in Okinawa in the form of a loan and received by him
through a niece before Christmas of 1971 in dollars ($2000)
[Vol. VII, pp. 41-48; Vol. VIII, pp. 2-3, rec.]
It appears, however, that his alleged P5,000.00
savings and P12,000.00 loan from his sister; are not fully
reflected and accounted for in respondent's 1971 Statement
of Assets and Liabilities which hefiled on January 17, 1972.
In said 1971 statement, respondent Lanuevo listed under
Assets a bank deposit in the amount of only P2,000.00. In his
1972 statement, his bank deposit listed under Assets was in
the amount of P1,011.00, which shows therefore that of the
P2,000.00 bank deposit listed in his 1971 statement under
Assets, only the amount of P989.00 was used or withdrawn.
The amount of P18,000.00 receivable listed under Assets in
his 1971 statement was not realized because the transaction
therein involved did not push through (Statement of Assets
and Liabilities of respondent Lanuevo from 1965 to 1972; Vol.
VIII, pp. 47-48, rec.).
Likewise, the alleged December, 1971 $2000 loan of
respondent from his married sister in Okinawa is extremely
doubtful. In the first place, said amount of $2000 (P12,000.00)
Liabilities filed on January 17, 1972. Secondly, the alleged
note which he allegedly received from his sister at the time he
received the $200 was not even presented by respondent
during the investigation. And according to Respondent
Lanuevo himself, while he considered this a loan, his sister did
33
Legal Ethics
not seriously consider it as one. In fact, no mode or time of
payment was agreed upon by them. And furthermore, during
the investigation, respondent Lanuevo promised to furnish the
Investigator the address of his sister in Okinawa. Said promise
was not fulfilled as borne out by the records. Considering that
there is no showing that his sister, who has a family of her
own, is among the top earners in Okinawa or has saved a lot
of money to give to him, the conclusion, therefore, that
the P17,000.00 of respondent Lanuevo was either an ill-gotten
or undeclared income is inevitable under the foregoing
circumstances.
On August 14, 1972, respondent Lanuevo and his wife
mortgaged their BF Homes house and lot to the GSIS for the
amount of P65,000.00 (Entry No. 4992: August 14, 1972
date of instrument; August 23, 1972 date of inscription).
On February 28, 1973, the second mortgage in favor of BF
Homes, Entry No. 90914, was redeemed by respondent and
was subsequently cancelled on March 20,1973, Entry No.
30143. Subsequently, or on March 2, 1973 the first mortgage
in favor of BF Homes, Entry No. 90913 was also redeemed by
respondent Lanuevo and thereafter cancelled on March 20,
1973, (See D-2 to D-4, Vol. III, rec.). Hence, only the mortgage
in favor of GSIS remains as the encumbrance of respondent's
house and lot. According to respondent Lanuevo, the monthly
amortization of the GSIS mortgage is P778.00 a month, but
that since May of 1973, he was unable to pay the same. In
his 1972 Statement of Assets and Liabilities, which he filed in
connection with his resignation and retirement (filed October
13, 1972), the house and lot declared as part of his assets,
were valued at P75,756.90. Listed, however, as an item in his
liabilities in the same statement was the GSIS real estate loan
in the amount of P64,200.00 (1972 Statement of Assets and
Liabilities).
2. Listed as an asset in his 1972 Statement of Assets and
Liabilities is a 1956 VW car valued at P5,200.00. That he
acquired this car sometime between January, 1972 and
November, 1972 could be inferred from the fact that no such
car or any car was listed in his statement of assets and
liabilities of 1971 or in the years previous to 1965. It appears,
however, that his listed total assets, excluding receivables in
his 1971 Statement was P19,000.00, while in his 1972 (as of
November, 1972) Statement, his listed total assets, excluding
the house and lot was P18,211.00, including the said 1956 VW
car worth P5,200.00.
The proximity in point of time between the official release of
the 1971 Bar examinations and the acquisition of the above-
mentioned properties, tends to link or tie up the said
acquisitions with the illegal machination committed by
respondent Lanuevo with respect to respondent Galang's
examination papers or to show that the money used by
respondent Lanuevo in the acquisition of the above properties
came from respondent Galang in consideration of his passing
the Bar.
During the early stage of this investigation but after the Court had informed
respondent Lanuevo of the serious irregularities in the 1971 Bar examinations
alleged in Oscar Landicho's Confidential Letter and in fact, after Respondent
Lanuevo had filed on April 12, 1972 his sworn statement on the matter, as
ordered by the Court, respondent Lanuevo surprisingly filed his letter or
resignation on October 13, 1972 with the end in view of retiring from the
Court. His resignation before he was required to show cause on March 5, 1973
but after he was informed of the said irregularities, is indicative of a
consciousness of guilt.
It must be noted that immediately after the official release of the results of the
1971 Bar examinations, respondent Lanuevo went on vacation and sick leave
from March 16, 1972 to January 15, 1973, obtaining the case value thereof in
lump sum in the amount of P11,000.00. He initially claimed at the
investigation that h e used a part thereof as a down payment for his BF
Homes house and lot (Vol. VII, pp. 40-48, rec.), which he bought on April 5,
1972.
Criminal proceedings may be instituted against respondent Lanuevo under
Section 3 (a & e) in relation to Section 9 of Republic Act No. 1379 (Anti-Graft
Law) for:
(a) Persuading inducing or influencing another public officer to
perform an act constituting a violation of rules and regulations
duly promulgated by competent authority or an offense in
connection with the official duties of the latter, or allowing
himself to be presented, induced, or influenced to commit
such violation or offense.
xxx xxx xxx
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his
official administrative or judicial functions through manifest
partiality, evidence bad faith or gross inexcusable negligence.
34
Legal Ethics
This provision shall apply to officers and employees of offices
or government corporations charged with the grant of licenses
or permits or other concessions.
Section 8 of said Republic Act No. 3019 authorizes the dismissal or removal of
a public officer once it is determined that his property or money "is manifestly
out of proportion to his salary as such public officer or employee and to his
other lawful income and the income from legitimately acquired property ... "
(Sec. 2, Rep. Act 1379; Sec. 8, Rep. Act 3019).
It should be stressed, however, that respondent Lanuevo's aforementioned
Statements of Assets and Liabilities were not presented or taken up during the
investigation; but they were examined as they are part of the records of this
Court.
B
There are likewise circumstances indicating possible contacts between
respondent Ramon E. Galang and/or his father and respondent Victorio D.
Lanuevo before the latter become the bar Confidant.
1. Respondent Ramon E. Galang was a beneficiary of the G.I Bill of Rights
educational program of the Philippine Veterans Board from his high school
days 1951 to 1955 up to his pre-law studies at the MLQ Educational
Institution (now MLQ University) 1955 to 1958. From 1948 to 1958,
respondent Victorio D. Lanuevo was connected with the Philippine Veterans
Board which is the governmental agency entrusted with the affairs of our
veterans including the implementation of the Veterans Bill of Rights.
From 1955 to 1958, Respondent Lanuevo successively held the position of
Junior Investigator, Veterans Claims Investigator, Supervising Veterans
Investigator and Veterans Claims Investigator (Service Record, p. 9, Adm.
Case No. 1162). During that period of time, therefore, respondent Lanuevo
had direct contacts with applicants and beneficiaries of the Veterans Bill of
Rights. Galang's educational benefits was approved on March 16, 1954,
retroactive as of the date of waiver July 31, 1951, which is also the date of
filing (A, Vol. IV, rec.).
It is alleged by respondent Ramon E. Galang that it was his father who all the
time attended to the availment of the said educational benefits and even
when he was already in Manila taking up his pre-law at MLQ Educational
Institution from 1955 to 1958. In 1955, respondent Galang was already 19
years old, and from 1957 to 1958, he was employed as a technical assistant in
the office of Senator Roy (Vol. V, pp. 79-80, 86-87, rec.).[Subsequently, during
the investigation, he claimed that he was the private secretary of Senator
Puyat in 1957 (Vol. VI, pp. 12-13, rec.)]. It appears, however, that a copy of
the notice-letter dated June 28, 1955 of the Philippine Veterans Board to the
MLQ Educational Institution on the approval of the transfer of respondent
Galang from Sta. Rita Institute to the MLQ Educational Institution effective the
first semester of the school year 1955-56 was directly addressed and
furnished to respondent Ramon E. Galang at 2292 Int. 8 Banal St., Tondo,
Manila (A-12, Vol. IV, rec.).
Respondent Ramon E. Galang further declared that he never went to the
Office of the Philippine Veterans to follow up his educational benefits and
claimed that he does not even know the location of the said office. He does
not also know whether beneficiaries of the G.I. Bill of Rights educational
benefits are required to go to the Philippine Veterans Board every semester to
submit their ratings (Vol. V, p. 86, rec.). But respondent Galang admits that he
had gone to the GSIS and City Court of Manila, although he insists that he
never bothered to take a look at the neighboring buildings (Vol. V, pp. 93-94,
rec.). The huge and imposing Philippine Veterans Building is beside the GSIS
building and is obliquely across the City Court building.
2. Respondent Lanuevo stated that as an investigator in the Philippine
Veterans Board, he investigated claims for the several benefits given to
veterans like educational benefits and disability benefits; that he does not
remember, however, whether in the course of his duties as veterans
investigator, he came across the application of Ramon E. Galang for
educational benefits; and that he does not know the father of Mr. Ramon E.
Galang and has never met him (Vol. VII, pp. 28, 49, rec.).
3. Respondent Lanuevo, as a member of the USAFEE, belonged to the 91st
Infantry operating at Zambales and then Cabanatuan, Nueva Ecija, shortly
before the war (Vol. VII, pp. 48-49, rec.). Later he joined the guerrilla
movement in Samar.
He used to be a member of the Philippine Veterans Legion especially while
working with the Philippine Veterans Board(Vol. VII, p. 49, rec.).
He does not know the Banal Regiment of the guerrillas, to which Galang's
father belonged. During the Japanese occupation, his guerrilla outfit was
operating in Samar only and he had no communications with other guerrilla
organization in other parts of the country.
He attended meetings of the Philippine Veterans Legion in his chapter in
Samar only and does not remember having attended its meeting here in
Manila, even while he was employed with the Philippine Veterans Board. He is
not a member of the Defenders of Bataan and Corregidor (Vol. VII, p.51, rec.).
On November 27, 1941, while respondent Lanuevo was with the Philippine
Army stationed at Camp Manacnac, Cabanatuan, Nueva Ecija, he was stricken
35
Legal Ethics
with pneumonia and was hospitalized at the Nueva Ecija Provincial Hospital as
a result and was still confined there when their camp was bombed and strafed
by Japanese planes on December 13, 1941 (Sworn statement of respondent
Lanuevo dated August 27, 1973, Adm. Case No. 1162, p. 46, rec.).

German Galang, father of respondent Galang, was a member of the Banal

Guerilla Forces, otherwise known as the Banal Regiment. He was
commissioned and inducted as a member thereof on January 16, 1942 and
was given the rank of first lieutenant. His unit "was attached and served into
the XI-Corps, US Army; XIII-C US Army, 43rd Div., US Army, stationed
headquarters at Sta. Rosa, Nueva Ecija and with the 38th Division, US army
stationed at Corregidor in the mopping-up operations against the enemies,
from 9 May 1945 date of recognition to 31 December 1945, date of
demobilization"(Affidavit of Jose Banal dated December 22, 1947, Vol. IV, A-3,
rec.).

It should be stressed that once the bar examiner has submitted the corrected
notebooks to the Bar Confidant, the same cannot be withdrawn for any
purpose whatsoever without prior authority from the Court. Consequently, this
Court expresses herein its strong disapproval of the actuations of the bar
examiners in Administrative Case No. 1164 as above delineated.

WHEREFORE, IN ADMINISTRATIVE CASE NO. 1162, RESPONDENT VICTORIO D.

LANUEVO IS HEREBY DISBARRED AND HIS NAME ORDERED STRICKEN FROM
THE ROLL OF ATTORNEYS; AND IN ADMINISTRATIVE CASE NO. 1163,
RESPONDENT RAMON E. GALANG, alias Roman E. GALANG, IS HEREBY
LIKEWISE DISBARRED AND HIS NAME ALSO ORDERED STRICKEN FROM THE
ROLL OF ATTORNEYS.

36
Legal Ethics

Re: 2003 BAR EXAMINATIONS Percentage Percentage Weight Relative

Weight Weight Weight

On 22 September 2003, the day following the bar examination in Political and
Mercantile Law, Justice Jose C. Vitug, Chairman of the 2003 Bar Examinations
Committee, was apprised of a rumored leakage in the examination on the International
subject. After making his own inquiries, Justice Vitug reported the matter to
Chief Justice Hilario G. Davide, Jr., and to the other members of the Court,
recommending that the bar examination on the subject be nullified and that Law 15% 17.647% 3 3.53%
an investigation be conducted forthwith. On 23 September 2003, the Court
adopted the recommendation of Justice Vitug, and resolved to nullify the Labor and
examination in Mercantile Law and to hold another examination on 04 October
2003 at eight oclock in the evening (being the earliest available time and Social
date) at the De La Salle University, Taft Avenue, Manila. The resolution was
issued without prejudice to any action that the Court would further take on the
matter. Legislation 10% 11.765% 2 2.35%

Following the issuance of the resolution, the Court received numerous Civil law 15% 17.647% 3 3.53%
petitions and motions from the Philippine Association of Law Schools and
various other groups and persons, expressing agreement to the nullification of Taxation 10% 11.765% 2 2.35%
the bar examinations in Mercantile Law but voicing strong reservations
against the holding of another examination on the subject. Several reasons Criminal law 10% 11.765% 2 2.35%
were advanced by petitioners or movants, among these reasons being the
physical, emotional and financial difficulties that would be encountered by the
examinees, if another examination on the subject were to be held anew. Remedial
Alternative proposals submitted to the Court included the spreading out of the
weight of Mercantile Law among the remaining seven bar subjects, i.e., to Law 20% 23.529% 4 4.71%
determine and gauge the results of the examinations on the basis only of the
performance of the examinees in the seven bar subjects. In a resolution, Legal Ethics
dated 29 September 2003, the Court, finding merit in the
submissions, resolved to cancel the scheduled examination in Mercantile Law
on 04 October 2003 and to allocate the fifteen percentage points among the and Practical
seven bar examination subjects. In the same resolution, the Court further
resolved to create a Committee composed of three retired members of the Exercises 5% 5.882% 1 1.18%
Court that would conduct a thorough investigation of the incident subject of
the 23 September 2003 resolution. 100% 20%

In a resolution, dated 07 October 2003, the Court adopted the In another resolution, dated 14 October 2003, the Court designated the
computation in the allocation of the fifteen percentage points for Mercantile following retired Associate Justices of the Supreme Court to compose the
Law among the remaining seven bar examination subjects, to wit: Investigating Committee:

Subject Original Adjusted Relative Adjusted Chairman: Justice Carolina C. Grio-Aquino

37
Legal Ethics
Members: Justice Jose A.R. Melo Chairman: Justice CAROLINA GRIO-AQUINO

Justice Vicente V. Mendoza Members: Justice JOSE A. R. MELO

The Investigating Committee was tasked to determine and identify the source
of leakage, the parties responsible therefor or who might have benefited
therefrom, recommend sanctions against all those found to have been
responsible for, or who would have benefited from, the incident in question
and to recommend measures to the Court to safeguard the integrity of the bar
examinations.
Justice VICENTE V. MENDOZA
The Investigating Committee was directed to determine and identify the
source of the leakage, the parties responsible therefor and those who
benefited therefrom, and to recommend measures to safeguard the integrity
of the bar examinations.

On 15 January 2004, the Investigating Committee submitted its report
and recommendation to the Court, herein reproduced in full; thus -
In the morning of September 21, 2003, the third Sunday of the 2003 bar
examinations, the examination in commercial law was held in De la Salle
University on Taft Avenue, Manila, the venue of the bar examinations since
1995. The next day, the newspapers carried news of an alleged leakage in the
said examination.[1]
Upon hearing the news and making preliminary inquiries of his own, Justice
Jose C. Vitug, chairman of the 2003 Bar Examinations Committee, reported
the matter to the Chief Justice and recommended that the examination in
mercantile law be cancelled and that a formal investigation of the leakage be
undertaken.
The investigation commenced on October 21, 2003 and continued up
to November 7, 2003. The following witnesses appeared and testified at the
investigation:
1. Associate Justice Jose C. Vitug, chairman of the 2003 Bar
Examinations Committee;
2. Atty. Marlo Magdoza-Malagar, law clerk in the office of Justice
Vitug
3. Atty. Marcial O. T. Balgos, examiner in mercantile law;
4. Cheryl Palma, private secretary of Atty. Balgos;

Acting on the report and recommendation of Justice Vitug, the Court, in a 5. Atty. Danilo De Guzman, assistant lawyer in the firm of Balgos &
resolution dated September 23, 2003, nullified the examination in mercantile Perez;
law and resolved to hold another examination in that subject on Saturday,
October 4, 2003 at eight oclock in the evening (being the earliest available 6. Atty. Enrico G. Velasco, managing partner of Balgos & Perez;
time and date) at the same venue. However, because numerous petitions,
protests, and motions for reconsideration were filed against the retaking of
the examination in mercantile law, the Court cancelled the holding of such 7. Eduardo J. F. Abella, reviewer in commercial law at
examination. On the recommendation of the Office of the Bar Confidant, the the Lex Review Center;
Court instead decided to allocate the fifteen (15) percentage points for
mercantile law among the seven (7) other bar examination subjects 8. Silvestre T. Atienza, office manager of Balgos & Perez;
(Resolution dated October 7, 2003).
9. Reynita Villasis, private secretary of Atty. De Guzman;
In a Resolution dated September 29, 2003, the Supreme Court created an
Investigating Committee composed of three (3) retired Members of the Court 10. Ronan Garvida, fraternity brother of Atty. De Guzman;
to conduct an investigation of the leakage and to submit its findings and
recommendations on or before December 15, 2003.
11. Ronald F. Collado, most illustrious brother of the Beta Sigma
Lambda Fraternity;
The Court designated the following retired Associate Justices of the Supreme
Court to compose the Committee:
38
Legal Ethics
12. Jovito M. Salonga, Asst. Division Chief of Systems Development
for Judicial Application, MlSO;
The Committee held nine (9) meetings - six times to conduct the
investigation and three times to deliberate on its report.
ASSOCIATE JUSTICE JOSE C. VITUG, chairman of the Bar Examinations
Committee, testified that on Monday morning, September 22, 2003, the day
after the Bar examination in mercantile or commercial law, upon arriving in his
office in the Supreme Court, his secretary, [2] Rose Kawada, informed him that
one of the law clerks, Atty. Marlo Magdoza-Malagar, told her that a friend of
hers named Ma. Cecilia Delgado-Carbajosa, a bar examinee from Xavier
University in Cagayan de Oro City, who was staying at the Garden Plaza Hotel
in Paco, confided to her that something was wrong with the examination in
mercantile law, because previous to the examination, i.e., on Saturday
afternoon, the eve of the examination, she received a copy of the test
questions in that subject. She did not pay attention to the test questions
because no answers were provided, and she was hard-pressed to finish her
review of that subject, using other available bar review materials, of which
there were plenty coming from various bar review centers.
However, upon perusing the questions after the examinations, Cecilia noticed
that many of them were the same questions that were asked in the just-
concluded-examination.
Justice Vitug requested Marlo to invite her friend to his office in the Supreme
Court, but Carbajosa declined the invitation. So, Justice Vitug suggested that
Marlo and Rose invite Carbajosa to meet them at Robinsons Place, Ermita. She
agreed to do that.
Cecilia Carbajosa arrived at Robinsons Place at the appointed time and
showed the test questions to Rose and Marlo. Rose obtained a xerox copy of
the leaked questions and compared them with the bar questions in mercantile
law. On the back of the pages, she wrote, in her own hand, the differences she
noted between the leaked questions and the bar examination questions.
Rose and Marlo delivered the copy of the leaked questions to Justice Vitug who
compared them with the bar examination questions in mercantile law. He
found the leaked questions to be the exact same questions which the
examiner in mercantile law, Attorney Marcial O. T. Balgos, had prepared and
submitted to him as chairman of the Bar Examinations Committee. However,
not all of those questions were asked in the bar examination. According to
Justice Vitug, only 75% of the final bar questions were questions prepared by
Atty. Balgos; 25% prepared by Justice Vitug himself, were included in the final
bar examination. The questions prepared by Justice Vitug were not among the
leaked test questions.
Apart from the published news stories about the leakage, Chief Justice Hilario
G. Davide, Jr. and Justice Vitug received, by telephone and mail, reports of the
leakage from Dean Mariano F. Magsalin, Jr. of the Arellano Law Foundation
(Exh. H) and a certain Dale Philip R. De los Reyes (Exh. B -B-3), attaching
copies of the leaked questions and the fax transmittal sheet showing that the
source of the questions was Danny De Guzman who faxed them to Ronan
Garvida on September 17, 2003, four days before the examination in
mercantile law on September 21, 2003 (Exh. B-1).
ATTORNEY MARLO MAGDOZA-MALAGAR was subpoenaed by the Committee.
She identified the copy of the leaked questions that came from Cecilia
Carbajosa (Exh. A). She testified that, according to Carbajosa, the latter
received the test questions from one of her co-bar reviewees staying, like her,
at the Garden Plaza Hotel in Paco, and also enrolled in the review classes at
the Lex Review Center at the corner of P. Faura Street and Roxas Boulevard,
Ermita. She did not pay for the hand-out because the LexReview Center gives
them away for free to its bar reviewees.
ATTORNEY MARCIAL O. T. BALGOS, 71 years of age, senior partner in the law
firm of BALGOS AND PEREZ with offices in Rm. 1009 West Tektite Tower,
Exchange Road, Ortigas Center, Pasig City, testified that in November 2002,
Justice Jose C. Vitug, as chair of the Committee on the 2003 Bar Examinations,
invited him to be the examiner in commercial law. He accepted the
assignment and almost immediately began the preparation of test questions
on the subject. Using his personal computer in the law office, he prepared for
three consecutive days, three (3) sets of test questions which covered the
entire subject of Mercantile Law (pp. 3-5, tsn, Oct. 24, 2003). As he did not
know how to prepare the questionnaire in final form, he asked his private
secretary, Cheryl Palma, to format the questions (p. 13, tsn, Oct. 24,
2003). And, as he did not know how to print the questionnaire, he likewise
asked Cheryl Palma to make a print-out (Id., pp. 14-15). All of this was done
inside his office with only him and his secretary there. His secretary printed
only one copy (Id., p. 15). He then placed the printed copy of the test
questions, consisting of three sets, in an envelope which he sealed, and called
up Justice Vitug to inform him that he was bringing the questions to the latters
office that afternoon. However, as Justice Vitug was leaving his office shortly,
he advised Atty. Balgos to give the sealed envelope to his confidential
assistant who had been instructed to keep it. When Atty. Balgos arrived in the
office of Justice Vitug, he was met by Justice Vitugs confidential assistant to
whom he entrusted the sealed envelope containing the test questions (pp. 19-
26, tsn, Oct. 24, 2003).
Atty. Balgos admitted that he does not know how to operate a computer
except to type on it. He does not know how to open and close his own
computer which has a password for that purpose. In fact, he did not know, as
he still does, the password. It is his secretary, Cheryl Palma, who opened and
closed his computer for him (p. 45, tsn, Oct. 24, 2003).
39
Legal Ethics
Atty. Balgos testified that he did not devise the password himself. It was
Cheryl Palma who devised it (Id., p. 71).
His computer is exclusively for his own use. It is located inside his room which
is locked when he is not in the office. He comes to the office every other day
only.
He thought that his computer was safely insulated from third parties, and that
he alone had access to it. He was surprised to discover, when reports of the
bar leakage broke out, that his computer was in fact interconnected with the
computers of his nine (9) assistant attorneys (tsn, pp. 30,45). As a matter of
fact, the employees - Jovito M. Salonga and Benjamin R. Katly - of the Courts
Management Information Systems Office (MISO) who, upon the request of
Atty. Balgos, were directed by the Investigating Committee to inspect the
computer system in his office, reported that there were 16, not 9, computers
connected to each other via Local Area Network (LAN) and one (1) stand-alone
computer connected to the internet (Exh. M). Atty. Balgos law partner, former
Justice Secretary Hernando Perez, also had a computer, but Perez took it away
when he became the Secretary of Justice.
The nine (9) assistant attorneys with computers, connected to Attorney Balgos
computer, are:
1. Zorayda Zosobrado (she resigned in July 2003)
2. Claravel Javier
3. Rolynne Torio
4. Mark Warner Rosal
5. Charlynne Subia
6. Danilo De Guzman (resigned on October 22, 2003 [Exh. D])
7. Enrico G. Velasco, managing partner
8. Concepcion De los Santos
9. Pamela June Jalandoni
Upon learning from Justice Vitug of the leakage of the bar questions prepared
by him in mercantile law, Atty. Balgos immediately called together and
questioned his office staff. He interrogated all of them except Atty. Danilo De
Guzman who was absent then. All of them professed to know nothing about
the bar leakage.
He questioned Silvestre Atienza, the office manager, Atienza is only a second
year law student at MLQU. But he is an expert in installing and operating
computers. It was he and/or his brother Gregorio who interconnected the
computers in the law office, including Attorney Balgos computer, without the
latters knowledge and permission.
Atienza admitted to Attorney Balgos that he participated in the bar operations
or bar ops of the Beta Sigma Lambda law fraternity of which he is a member,
but he clarified that his participation consisted only of bringing food to the
MLQU bar examinees (Tsn, pp. 46-47, Oct. 24, 2003).
The next day, Attorney Balgos questioned Attorney Danilo De Guzman, also a
member of the Beta Sigma Lambda fraternity, FEU chapter. De Guzman
admitted to him that he downloaded the test questions from Attorney Balgos
computer and faxed a copy to a fraternity brother. Attorney Balgos was
convinced that De Guzman was the source of the leakage of his test questions
in mercantile law (Tsn, p. 52, Oct. 24, 2003).
Attorney Balgos prepared a COMPARISON (Exh. E) of the juxtaposed final bar
questions and his proposed test questions, with marginal markings made by
Justice Vicente V. Mendoza (Ret.), indicating whether the questions are similar:
(S); or different: (D), together with the percentage points corresponding to
each question. On the basis of this comparative table and Atty. Balgos
indications as to which questions were the same or different from those given
in the final questionnaire, Justice Mendoza computed the credit points
contained in the proposed leaked questions. The proposed questions
constituted 82% of the final bar questions. Attached to this Report as Annex A
is the comparative table and the computation of credit points marked as Exh.
E-1.
CHERYL PALMA, 34 years old, private secretary of Attorney Balgos for the past
six years, testified that she did not type the test questions. She admitted,
however, that it was she who formatted the questions and printed one copy as
directed by her employer. She confirmed Atty. Balgos testimony regarding her
participation in the operation of his personal computer. She disclosed that
what appears in Atty. Balgos computer can be seen in the neighborhood
network if the other computers are open and not in use; that Silvestre Atienza
of the accounting section, can access Atty. Balgos computer when the latter is
open and not in use.
ATTORNEY ENRICO VELASCO, managing partner of the firm, testified that
on October 16, 2003, he sent De Guzman a memo (Exh. C) giving him 72
40
Legal Ethics
hours to explain in writing why you should not be terminated for causing the
Firm an undeserved condemnation and dishonor because of the leakage
aforesaid.
On October 22, 2003, De Guzman handed in his resignation effective
immediately. He explained that:
Causing the firm, its partners and members to suffer from undeserved
condemnation and humiliation is not only farthest from, but totally out of, my
mind. It is just unfortunate that the incident subject matter of your
memorandum occurred. Rest assured, though, that I have never been part of
any deliberate scheme to malign the good reputation and integrity of the firm,
its partners and members. (Exh. D)
DANILO DE GUZMAN testified that he joined Balgos & Perez in April 2000. He
obtained his LLB degree from FEU in 1998. As a student, he was an awardee
for academic excellence. He passed the 1998 bar examinations with a grade
of 86.4%. In FEU, he joined the Beta Sigma Lambda law fraternity which has
chapters in MLQU, UE and MSU (Mindanao State University). As a member of
the fraternity, he was active during bar examinations and participated in the
fraternitys bar ops.
He testified that sometime in May 2003, when he was exploring Atty. Balgos
computer, (which he often did without the owners knowledge or permission),
to download materials which he thought might be useful to save for future
use, he found and downloaded the test questions in mercantile law consisting
of 12 pages. He allegedly thought they were quizzers for a book that Atty.
Balgos might be preparing. He saved them in his hard disk.
He thought of faxing the test questions to one of his fraternity brods, a certain
Ronan Garvida who, De Guzman thought, was taking the 2003 bar
examinations. Garvida is also a law graduate from FEU. He had taken the
2002 bar examinations, but did not pass.
On September 17, 2003, four days before the mercantile law bar examination,
De Guzman faxed a copy of the 12-page-test questions (Exhs. I, I-1, I-2, I-3) to
Garvida because earlier he was informed by Garvida that he was retaking the
bar examinations. He advised Garvida to share the questions with other Betan
examinees. He allegedly did not charge anything for the test questions. Later,
after the examination was over, Garvida texted (sent a text message on his
cell phone) him (De Guzman), that he did not take the bar examination.
Besides Garvida, De Guzman faxed the mercantile law bar questions to
another fraternity brother named Arlan (surname unknown), through Reynita
(Nanette) Villasis, his secretary (Tsn, pp. 20-28, Oct. 29, 2003). But he himself
faxed the questions to still another brod named Erwin Tan who had helped him
during the bar ops in 1998 when he (De Guzman) took the bar examinations
(Id., p. 28). He obtained the cell phone numbers of Arlan and Erwin Tan from
Gabby Tanpiengco whom he informed by text message, that they were guide
questions, not tips, in the mercantile law examination.
When he was confronted by Attorney Velasco on Wednesday after the
examination, (news of the leakage was already in all the newspapers), De
Guzman admitted to Attorney Velasco that he faxed the questions to his
fraternity brothers, but he did not reveal where he got the test questions.
De Guzman received a text message from Erwin Tan acknowledging that he
received the test questions. However, Erwin informed him that the questions
were kalat na kalat (all over the place) even if he did not share them with
others (Tsn, pp. 54-55, Oct. 29, 2003).
De Guzman also contacted Garvida who informed him that he gave copies of
the test questions to Betans Randy Iigo and James Bugain.
Arlan also texted De Guzman that almost all the questions were asked in the
examination. Erwin Tan commented that many of the leaked questions were
asked in the examination, pero hindi exacto; mi binago (they were not exactly
the same; there were some changes).
De Guzman tried to text Garvida, but he received no response.
De Guzman disclosed that he learned how to operate a computer from
Silvestre Atienza, the office manager, and through self-study, by asking those
who are knowledgeable on computers. He has been using computers since
1997, and he bought his own computer in 2001, a Pentium 3, which he uses at
home.
REYNITA VILLASIS, the 36-year-old legal secretary of Attorney De Guzman,
submitted her affidavit (Exh. F) and orally affirmed her participation in the
reproduction and transmittal by fax of the leaked test questions in mercantile
law to Ronan Garvida and Arlan, as testified by De Guzman.
RONAN GARVIDA, appeared before the Investigating Committee in compliance
with the subpoena that was issued to him. Garvida graduated from FEU
College of Law in 2000. He is about 32 years of age. While still a student in
1998, he was afflicted with multiple sclerosis or MS, a disease of the nervous
system that attacks the nerve sheaths of the brain and spinal cord. It is a
chronic disabling disease although it may have periods of remission. It causes
its victim to walk with erratic, stiff and staggering gait; the hands and fingers
may tremble in performing simple actions; the eyesight can be impaired, and
41
Legal Ethics
speech may be slow and slurred (p. 737, Vol. 2, Readers Digest Medical
Encyclopedia, 1971 Ed., compiled by Benjamin F. Miller, M.D.). All these
symptoms were present when Garvida testified before the Committee
on November 6, 2003 to answer its questions regarding his involvement in the
leakage of the examiners test questions in mercantile law.
Garvida testified that when he was a freshman at FEU, he became a member
of the Beta Sigma Lambda fraternity where he met and was befriended by
Attorney De Guzman who was his senior by one and a half years. Although
they had been out of touch since he went home to the province on account of
the recurrence of his illness, De Guzman was able [to] get this cell phone
number from his compadre, Atty. Joseph Pajara. De Guzman told Garvida that
he was faxing him possible questions in the bar examination in mercantile law.
Because the test questions had no answers, De Guzman stressed that they
were not tips but only possible test questions.
Garvida had intended to take the 2003 bar examinations. He enrolled in
the Consortium Review Center in FEU, paying P10,000.00 as enrollment fee.
However, on his way to the Supreme Court to file his application to take the
bar examination, he suffered pains in his wrist - symptoms that his MS had
recurred. His physician advised him to go to
the National Orthopedic Hospital in Quezon City for treatment. This he did.
He gave up his plan to take the 2003 bar examinations. Nevertheless, he
continued to attend the review classes at
the Consortium Review Center because he did not want to waste completely
the P10,000-enrollment fee that he paid for the review course (Nahihinayang
ako). That was presumably why De Guzman thought that Garvida was taking
the bar exams and sent him a copy of the test questions in mercantile law.
Upon receipt of the test questions, Garvida faxed a copy to his brod Randy Iigo
who was reviewing at the Consortium Review Center. Randy photocopied them
for distribution to other fraternity brods. Some of the brods doubted the
usefulness of the test questions, but Randy who has a high regard for De
Guzman, believed that the questions were tips. Garvida did not fax the
questions to any other person than Randy Iigo. He allegedly did not sell the
questions to Randy. I could not do that to a brod, he explained.
In view of the fact that one of the copies of the leaked test questions (Exh. H)
bore on the left margin a rubber stamp composed of the Greek initials BEA-
MLQU, indicating that the source of that copy was the Beta Sigma Lambda
chapter at MLQU, the Committee subpoenaed Ronald Collado, the Most
Illustrious Brother of the Beta Sigma Lambda fraternity of MLQU.
RONALD COLLADO is a senior law student at the MLQU. He admitted that his
fraternity conducted Bar Ops for the 2003 bar exams. Bar Ops are the biggest
activity of the fraternity every year. They start as soon as new officers of the
fraternity are elected in June, and they continue until the bar examinations are
over. The bar operations consist of soliciting funds from alumni brods and
friends to be spent in reproducing bar review materials for the use of their
barristers (bar candidates) in the various review centers, providing meals for
their brod-barristers on examination days; and to rent a bar site or place near
De la Salle University where the examinees and the frat members can
convene and take their meals during the break time. The Betans bar site for
the 2003 bar examinations was located on Leon Guinto Street, Malate. On
September 19 and 21, before [the] start of the examination, Collados
fraternity distributed bar review materials for the mercantile law examination
to the examinees who came to the bar site. The test questions (Exh. H) were
received by Collado from a brod, Alan Guiapal, who had received them from
Randy Iigo.
Collado caused 30 copies of the test questions to be printed with the logo and
initials of the fraternity (BEA-MLQU) for distribution to the 30 MLQU examinees
taking the bar exams. Because of time constraints, frat members were unable
to answer the test questions despite the clamor for answers, so, they were
given out as is - without answers.
DEAN EDUARDO J. F. ABELLA of the Jose Rizal University law school
in Mandaluyong City, was the reviewer in Mercantile Law and Practical
Exercises at the Lex Review Center which is operated by the Lex Review &
Seminars Inc., of which Dean Abella is one of the incorporators. He learned
about the leakage of test questions in mercantile law when he was delivering
the pre-week lecture on Legal Forms at the Arellano University. The leaked
questions were shown to him by his secretary, Jenylyn Domingo, after the
mercantile law exam. He missed the Saturday lecture in mercantile law
because he was suffering from a touch of flu. He gave his last lecture on the
subject on Wednesday or Thursday before the exam. He denied having bought
or obtained and distributed the leaked test questions in Mercantile Law to the
bar reviewees in the Lex Review Center.
FINDINGS
The Committee finds that the leaked test questions in Mercantile Law were the
questions which the examiner, Attorney Marcial O. T. Balgos, had prepared
and submitted to Justice Jose C. Vitug, as chairman of the 2003 Bar
Examinations Committee. The questions constituted 82% of the questions
asked in the examination in Mercantile Law in the morning of September 21,
2003, Sunday, in some cases with slight changes which were not substantial
and in other cases exactly as proposed by Atty. Balgos. Hence, any bar
examinee who was able to get hold of the leaked questions before the
mercantile law examination and answered them correctly, would have been
assured of passing the examination with at least a grade of 82%!
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Legal Ethics
The circumstance that the leaked test questions consisted entirely of test
questions prepared by Atty. Balgos, proves conclusively that the leakage
originated from his office, not from the Office of Justice Vitug, the Bar
Examinations Chairman.
Atty. Balgos claimed that the leaked test questions were prepared by him on
his computer. Without any doubt, the source of the leaked test questions was
Atty. Balgos computer. The culprit who stole or downloaded them from Atty.
Balgos computer without the latters knowledge and consent, and who faxed
them to other persons, was Atty. Balgos legal assistant, Attorney Danilo De
Guzman, who voluntarily confessed the deed to the Investigating Committee.
De Guzman revealed that he faxed the test questions, with the help of his
secretary Reynita Villasis, to his fraternity brods, namely, Ronan Garvida,
Arlan (whose surname he could not recall), and Erwin Tan.
In turn, Ronan Garvida faxed the test questions to Betans Randy Iigo and
James Bugain.
Randy Iigo passed a copy or copies of the same questions to another Betan,
Alan Guiapal, who gave a copy to the MLQU-Beta Sigma [Lambdas] Most
Illustrious Brother, Ronald F. Collado, who ordered the printing and distribution
of 30 copies to the MLQUs 30 bar candidates.
Attorney Danilo De Guzmans act of downloading Attorney Balgos test
questions in mercantile law from the latters computer, without his knowledge
and permission, was a criminal act of larceny. It was theft of intellectual
property; the test questions were intellectual property of Attorney Balgos,
being the product of his intellect and legal knowledge.
Besides theft, De Guzman also committed an unlawful infraction of Attorney
Balgos right to privacy of communication, and to security of his papers and
effects against unauthorized search and seizure - rights zealously protected
by the Bill of Rights of our Constitution (Sections 2 and 3, Article III, 1987
Constitution).
He transgressed the very first canon of the lawyers Code of Professional
Responsibility which provides that [a] lawyer shall uphold the Constitution,
obey the laws of the land, and promote respect for law and legal processes.
By transmitting and distributing the stolen test questions to some members of
the Beta Sigma Lambda Fraternity, possibly for pecuniary profit and to given
them undue advantage over the other examiners in the mercantile law
examination, De Guzman abetted cheating or dishonesty by his fraternity
brothers in the examination, which is violative of Rule 1.01 of Canon 1, as well
as Canon 7 of the Code of Professional Responsibility for members of the Bar,
which provide:
Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct
Canon 7 - A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND
DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE
INTEGRATED BAR.
De Guzman was guilty of grave misconduct unbecoming a member of the Bar.
He violated the law instead of promoting respect for it and degraded the noble
profession of law instead of upholding its dignity and integrity. His actuations
impaired public respect for the Court, and damaged the integrity of the bar
examinations as the final measure of a law graduates academic preparedness
to embark upon the practice of law.
However, the Investigating Committee does not believe that De Guzman was
solely responsible for the leakage of Atty. Balgos proposed test questions in
the mercantile law examination. The Committee does not believe that he
acted alone, or did not have the assistance and cooperation of other persons,
such as:
Cheryl Palma, Atty. Balgos private secretary, who, according to Atty. Balgos
himself, was the only person who knew the password, who could open and
close his computer; and who had the key to his office where his computer was
kept. Since a computer may not be accessed or downloaded unless it is
opened, someone must have opened Atty. Balgos computer in order for De
Guzman to retrieve the test questions stored therein.
Silvestre Atienza, also a fraternity brod of De Guzman, who was responsible
for interconnecting Atty. Balgos computer with the other computers outside
Atty. Balgos room or office, and who was the only other person, besides Cheryl
Palma, who knew the password of Atty. Balgos computer.
The following persons who received from De Guzman, and distributed copies
of the leaked test questions, appear to have conspired with him to steal and
profit from the sale of the test questions. They could not have been motivated
solely by a desire to help the fraternity, for the leakage was widespread (kalat
na kalat) according to Erwin Tan. The possible co-conspirators were:
Ronan Garvida,
Arlan,
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Legal Ethics
Erwin Tan,
Randy Iigo,
Ronald Collado, and
Allan Guiapal
The Committee does not believe that De Guzman recklessly broke the law and
risked his job and future as a lawyer, out of love for the Beta Sigma Lambda
fraternity. There must have been an ulterior material consideration for his
breaking the law and tearing the shroud of secrecy that, he very well knows,
covers the bar examinations.
On the other hand, the Committee finds that the theft of the test questions
from Atty. Balgos computer could have been avoided if Atty. Balgos had
exercised due diligence in safeguarding the secrecy of the test questions
which he prepared. As the computer is a powerful modern machine which he
admittedly is not fairly familiar with, he should not have trusted it to deep
secret the test questions that he stored in its hard disk. He admittedly did not
know the password of his computer. He relied on his secretary to use the
password to open and close his computer. He kept his computer in a room to
which other persons had access. Unfamiliar with the use of the machine
whose potential for mischief he could not have been totally unaware of, he
should have avoided its use for so sensitive an undertaking as typing the
questions in the bar examination. After all he knew how to use the typewriter
in the use of which he is quite proficient. Atty. Balgos should therefore have
prepared the test questions in his trusty typewriter, in the privacy of his home,
(instead of his law office), where they would have been safe from the prying
eyes of secretaries and assistant attorneys. Atty. Balgos negligence in the
preparation and safekeeping of his proposed test questions for the bar
examination in mercantile law, was not the proximate cause of the bar
leakage; it was, in fact, the root cause. For, if he had taken those simple
precautions to protect the secrecy of his papers, nobody could have stolen
them and copied and circulated them. The integrity of the bar examinations
would not have been sullied by the scandal. He admitted that Mali siguro ako,
but that was what happened (43 tsn, Oct. 24, 2003).
RECOMMENDATION
This Honorable court in the case of Burbe v. Magulta, A.C. No. 5713, June 10,
2002, 383 SCRA 276, pronounced the following reminder for lawyers:
Members of the bar must do nothing that may tend to lessen in any degree
the confidence of the public in the fidelity, the honesty and integrity of the
profession. In another case, it likewise intoned: We cannot overstress the duty
of a lawyer to at all times uphold the integrity and dignity of the legal
profession. He can do this by faithfully performing his duties to society, to the
bar, to the courts, and to his clients. (Reyes v. Javier, A.C. No. 5574, February
2, 2002, 375 SCRA 538). It goes without saying that a lawyer who violates this
precept of the profession by committing a gross misconduct which dishonors
and diminishes the publics respect for the legal profession, should be
disciplined.
After careful deliberation, the Investigating Committee recommends that:
1. Attorney Danilo De Guzman be DISBARRED for he had shown that he is
morally unfit to continue as a member of the legal profession, for grave
dishonesty, lack of integrity, and criminal behavior. In addition, he should
make a written PUBLIC APOLOGY and pay DAMAGES to the Supreme Court for
involving it in another bar scandal, causing the cancellation of the mercantile
law examination, and wreaking havoc upon the image of this institution.
2. Attorney Marcial O. T. Balgos should be REPRIMANDED by the Court and
likewise be required to make a written APOLOGY to the Court for the public
scandal he brought upon it as a result of his negligence and lack of due care in
preparing and safeguarding his proposed test questions in mercantile law. As
the Court had to cancel the Mercantile Law examination on account of the
leakage of Attorney Balgos test questions, which comprised 82% of the bar
questions in that examination, Atty. Balgos is not entitled to receive any
honorarium as examiner for that subject.
3. FURTHER INVESTIGATION of Danilo De Guzman, Cheryl Palma, Silvestre
Atienza, Ronan Garvida, Arlan, Erwin Tan, Randy Iigo, James Bugain, Ronald
Collado and Allan Guiapal by the National Bureau of Investigation and the
Philippine National Police, with a view to their criminal prosecution as probable
co-conspirators in the theft and leakage of the test questions in mercantile
law.
With regard to recommending measures to safeguard the integrity of the bar
examinations and prevent a repetition of future leakage in the said
examinations, inasmuch as this matter is at present under study by the Courts
Committee on Legal Education and Bar Matters, as an aspect of proposals for
bar reforms, the Investigating Committee believes it would be well-advised to
refrain from including in this report what may turn out to be duplicative, if not
contrary, recommendations on the matter. [3]
The Court adopts the report, including with some modifications the
recommendation, of the Investigating Committee. The Court, certainly will not
countenance any act or conduct that can impair not only the integrity of the
Bar Examinations but the trust reposed on the Court.
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Legal Ethics
The Court also takes note that Mr. Jovito M. Salonga and Mr. Benjamin R.
Katly, two of its employees assigned to the Management Information Systems
Office (MISO), who were tasked by the Investigating Committee to inspect the
computer system in the office of Atty. Balgos, found that the Courts Computer-
Assisted Legal Research (CALR) database[4] was installed in the computer used
by Atty. Balgos. Mr. Salonga and Mr. Katly reported that the system, which was
developed by the MISO, was intended for the exclusive use of the Court. The
installation thereof to any external computer would be unauthorized without
the permission of the Court. Atty. Velasco informed the two Court employees
that the CALR database was installed by Atty. De Guzman on the computer
being used by Atty. Balgos. The matter would also need further investigation
to determine how Atty. De Guzman was able to obtain a copy of the Courts
CALR database.

WHEREFORE, the Court, acting on the recommendations of the

Investigating Committee, hereby resolves to -

(1) DISBAR Atty. DANILO DE GUZMAN from the practice of law

effective upon his receipt of this RESOLUTION;

(2) REPRIMAND Atty. MARCIAL O.T. BALGOS and DISENTITLE him from
receiving any honorarium as an Examiner in Mercantile Law;

(3) Direct the National Bureau of Investigation (a) to undertake

further investigation of Danilo De Guzman, Cheryl Palma,
Silvestre Atienza, Ronan Garvida, Erwin Tan, Randy Iigo, James
Bugain, Ronald Collado and Allan Guiapal with a view to
determining their participation and respective accountabilities in
the bar examination leakage and to conduct an investigation on
how Danilo De Guzman was able to secure a copy of the Supreme
Courts CALR database.

Let a copy of this Resolution be made part of the records of Danilo De

Guzman in the Office of the Bar Confidant, Supreme Court of the Philippines,
and copies to be furnished the Integrated Bar of the Philippines and circulated
by the Office of the Court Administrator to all courts.

SO ORDERED.

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Legal Ethics
Atty. RAMON P. REYES, complainant, vs. Atty. VICTORIANO T. CHIONG
JR., respondent.
Lawyers should treat each other with courtesy, dignity and civility. The
bickering and the hostility of their clients should not affect their conduct and
rapport with each other as professionals and members of the bar.
The Case
Before us is a Sworn Complaint [1] filed by Atty. Ramon P. Reyes with the
Office of the Bar Confidant of this Court, seeking the disbarment of Atty.
Victoriano T. Chiong Jr. for violation of his lawyers oath and of Canon 8 of the
Code of Professional Responsibility. After the Third Division of this Court
referred the case to the Integrated Bar of the Philippines (IBP), the IBP
Commission on Bar Discipline resolved to suspend him as follows:
x x x [C]onsidering that respondent is bound by his oath which binds him to
the obligation that he will not wittingly or willingly promote or sue any
groundless, false or unlawful suit, nor give aid nor consent to the same. In
addition, Canon 8 of the Code of Professional Responsibility provides that a
lawyer shall conduct himself with courtesy, fairness and candor towards his
professional colleagues, and shall avoid harassing tactics against opposing
counsel. In impleading complainant and Prosecutor Salanga in Civil Case No.
4884, when it was apparent that there was no legal ground to do so,
respondent violated his oath of office as well as the above-quoted Canon of
the Code of Professional Responsibility, [r]espondent is hereby SUSPENDED
from the practice of law for two (2) years.[2]
The Facts
In his Complaint, Atty. Reyes alleges that sometime in January 1998, his
services were engaged by one Zonggi Xu, [3] a Chinese-Taiwanese, in a
business venture that went awry. Xu invested P300,000 on a Cebu-based
fishball, tempura and seafood products factory being set up by a certain Chia
Hsien Pan, another Chinese-Taiwanese residing in Zamboanga City. Eventually,
the former discovered that the latter had not established a fishball
factory. When Xu asked for his money back, Pan became hostile, making it
necessary for the former to seek legal assistance.
Xu, through herein complainant, filed a Complaint for estafa against Pan,
who was represented by respondent. The Complaint, docketed as IS 98J-
51990, was assigned to Assistant Manila City Prosecutor Pedro B. Salanga,
who then issued a subpoena for Pan to appear for preliminary investigation on
October 27 and 29, 1998. The latter neither appeared on the two scheduled
hearings nor submitted his counter-affidavit. Hence, Prosecutor Salanga filed a
Criminal Complaint[4] for estafa against him before the Regional Trial Court
(RTC) of Manila.[5] On April 8, 1999, the Manila RTC issued a Warrant of
Arrest[6] against Pan.
Thereafter, respondent filed an Urgent Motion to Quash the Warrant of
Arrest.[7] He also filed with the RTC of Zamboanga City a Civil Complaint for the
collection of a sum of money and damages as well as for the dissolution of a
business venture against complainant, Xu and Prosecutor Salanga.
When confronted by complainant, respondent explained that it was Pan
who had decided to institute the civil action against Atty. Reyes. Respondent
claimed he would suggest to his client to drop the civil case, if complainant
would move for the dismissal of the estafa case. However, the two lawyers
failed to reach a settlement.
In his Comment[8] dated January 27, 2000, respondent argued that he had
shown no disrespect in impleading Atty. Reyes as co-defendant in Civil Case
No. 4884. He claimed that there was no basis to conclude that the suit was
groundless, and that it had been instituted only to exact vengeance. He
alleged that Prosecutor Salanga was impleaded as an additional defendant
because of the irregularities the latter had committed in conducting the
criminal investigation. Specifically, Prosecutor Salanga had resolved to file the
estafa case despite the pendency of Pans Motion for an Opportunity to Submit
Counter-Affidavits and Evidence,[9] of the appeal[10] to the justice secretary,
and of the Motion to Defer/Suspend Proceedings.[11]
On the other hand, complainant was impleaded, because he allegedly
connived with his client (Xu) in filing the estafa case, which the former knew
fully well was baseless. According to respondent, the irregularities committed
by Prosecutor Salanga in the criminal investigation and complainants
connivance therein were discovered only after the institution of the collection
suit.
The Third Division of this Court referred the case to the IBP for
investigation, report and recommendation.[12] Thereafter, the Board of
Governors of the IBP passed its June 29, 2002 Resolution. [13]
Report and Recommendation of the IBP
In her Report and Recommendation, [14] Commissioner Milagros V. San
Juan, to whom the case was assigned by the IBP for investigation and report,
46
Legal Ethics
averred that complainant and Prosecutor Salanga had been impleaded in Civil
Case No. 4884 on the sole basis of the Criminal Complaint for estafa they had
filed against respondents client. In his Comment, respondent himself claimed
that the reason x x x was x x x the irregularities of the criminal
investigation/connivance and consequent damages.
Commissioner San Juan maintained that the collection suit with damages
had been filed purposely to obtain leverage against the estafa case, in which
respondents client was the defendant. There was no need to implead
complainant and Prosecutor Salanga, since they had never participated in the
business transactions between Pan and Xu. Improper and highly questionable
was the inclusion of the prosecutor and complainant in the civil case instituted
by respondent on the alleged prodding of his client. Verily, the suit was filed to
harass complainant and Prosecutor Salanga.
Commissioner San Juan held that respondent had no ground to implead
Prosecutor Salanga and complainant in Civil Case No. 4884. In so doing,
respondent violated his oath of office and Canon 8 of the Code of Professional
Responsibility. The IBP adopted the investigating commissioners
recommendation for his suspension from the practice of law for two (2) years.
This Courts Ruling
We agree with the IBPs recommendation.
Lawyers are licensed officers of the courts who are empowered to appear,
prosecute and defend; and upon whom peculiar duties, responsibilities and
liabilities are devolved by law as a consequence. [15] Membership in the bar
imposes upon them certain obligations. Mandated to maintain the dignity of
the legal profession, they must conduct themselves honorably and
fairly. Moreover, Canon 8 of the Code of Professional Responsibility provides
that [a] lawyer shall conduct himself with courtesy, fairness and candor
towards his professional colleagues, and shall avoid harassing tactics against
opposing counsel.
Respondents actions do not measure up to this Canon. Civil Case No.
4884 was for the collection of a sum of money, damages and dissolution of an
unregistered business venture. It had originally been filed against Spouses Xu,
but was later modified to include complainant and Prosecutor Salanga.
The Amended and Supplemental Complaints[16] alleged the following:
27. The investigating prosecutor defendant Pedro Salanga knowingly and
deliberately refused and failed to perform his duty enjoined by the law and the
Constitution to afford plaintiff Chia Hsien Pan due process by violating his
rights under the Rules on preliminary investigations; he also falsely made a
Certification under oath that preliminary investigation was duly conducted and
plaintiff [was] duly informed of the charges against him but did not answer; he
maliciously and x x x partially ruled that there was probable cause and filed a
Criminal Information for estafa against plaintiff Chia Hsien Pan, knowing fully
[well] that the proceedings were fatally defective and null and void; x x x;
28. Said assistant prosecutor, knowing also that plaintiff Chia Hsien Pan filed
said appeal and motion to defer for the valid grounds stated therein
deliberately refused to correct his errors and consented to the arrest of said
plaintiff under an invalid information and warrant of arrest.
29. Defendant Atty. Ramon Reyes, knowing that the suit of defendant Zongoi
Xu is baseless connived with the latter to harass and extort money from
plaintiff Chia Hsien Pan by said criminal prosecution in the manner contrary to
law, morals and public policy, resulting to the arrest of said plaintiff and
causing plaintiffs grave irreparable damages[.][17]
We concur with the IBP that the amendment of the Complaint and the
failure to resort to the proper remedies strengthen complainants allegation
that the civil action was intended to gain leverage against the estafa case. If
respondent or his client did not agree with Prosecutor Salangas resolution,
they should have used the proper procedural and administrative
remedies. Respondent could have gone to the justice secretary and filed a
Motion for Reconsideration or a Motion for Reinvestigation of Prosecutor
Salangas decision to file an information for estafa.
In the trial court, a Motion to Dismiss was available to him if he could
show that the estafa case was filed without basis. Moreover, he could have
instituted disbarment proceedings against complainant and Prosecutor
Salanga, if he believed that the two had conspired to act illegally. As a lawyer,
respondent should have advised his client of the availability of these
remedies. Thus, the filing of the civil case had no justification.
The lack of involvement of complainant and Prosecutor Salanga in the
business transaction subject of the collection suit shows that there was no
reason for their inclusion in that case. It appears that respondent took the
estafa case as a personal affront and used the civil case as a tool to return the
inconvenience suffered by his client. His actions demonstrate a misuse of the
legal process. The aim of every lawsuit should be to render justice to the
parties according to law, not to harass them.[18]
Lawyers should treat their opposing counsels and other lawyers with
courtesy, dignity and civility. A great part of their comfort, as well as of their
success at the bar, depends upon their relations with their professional
brethren. Since they deal constantly with each other, they must treat one
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Legal Ethics
another with trust and respect. Any undue ill feeling between clients should
not influence counsels in their conduct and demeanor toward each
other. Mutual bickering, unjustified recriminations and offensive behavior
among lawyers not only detract from the dignity of the legal profession, [19] but
also constitute highly unprofessional conduct subject to disciplinary action.

Furthermore, the Lawyers Oath exhorts law practitioners not to wittingly

or willingly promote or sue any groundless, false or unlawful suit, nor give aid
nor consent to the same.

Respondent claims that it was his client who insisted in impleading

complainant and Prosecutor Salanga. Such excuse is flimsy and
unacceptable. While lawyers owe entire devotion to the interests of their
clients, their office does not permit violation of the law or any manner of fraud
or chicanery.[20] Their rendition of improper service invites stern and just
condemnation. Correspondingly, they advance the honor of their profession
and the best interests of their clients when they render service or give advice
that meets the strictest principles of moral law. [21]

The highest reward that can be bestowed on lawyers is the esteem of

their professional brethren. This esteem cannot be purchased, perfunctorily
created, or gained by artifice or contrivance. It is born of sharp contests and
thrives despite conflicting interests. It emanates solely from integrity,
character, brains and skill in the honorable performance of professional duty.
[22]

WHEREFORE, respondent is found guilty as charged and is

hereby SUSPENDED for two (2) years from the practice of law, effective
immediately.

SO ORDERED.

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Legal Ethics
IN RE: PETITION TO SIGN IN THE ROLL OF ATTORNEYS
MICHAEL A. MEDADO, Petitioner.
We resolve the instant Petition to Sign in the Roll of Attorneys filed by
petitioner Michael A. Medado (Medado).
Medado graduated from the University of the Philippines with the degree of
Bachelor of Laws in 19791 and passed the same year's bar examinations with
a general weighted average of 82.7.2
On 7 May 1980, he took the Attorneys Oath at the Philippine International
Convention Center (PICC) together with the successful bar examinees. 3 He
was scheduled to sign in the Roll of Attorneys on 13 May 1980, 4 but he failed
to do so on his scheduled date, allegedly because he had misplaced the
Notice to Sign the Roll of Attorneys 5 given by the Bar Office when he went
home to his province for a vacation.6
Several years later, while rummaging through his old college files, Medado
found the Notice to Sign the Roll of Attorneys. It was then that he realized that
he had not signed in the roll, and that what he had signed at the entrance of
the PICC was probably just an attendance record.7
By the time Medado found the notice, he was already working. He stated that
he was mainly doing corporate and taxation work, and that he was not
actively involved in litigation practice. Thus, he operated "under the mistaken
belief that since he had already taken the oath, the signing of the Roll of
Attorneys was not as urgent, nor as crucial to his status as a lawyer"; 8 and
"the matter of signing in the Roll of Attorneys lost its urgency and compulsion,
and was subsequently forgotten."9
In 2005, when Medado attended Mandatory Continuing Legal Education
(MCLE) seminars, he was required to provide his roll number in order for his
MCLE compliances to be credited.10
Not having signed in the Roll of Attorneys, he was unable to provide his roll
number.
About seven years later, or on 6 February 2012, Medado filed the instant
Petition, praying that he be allowed to sign in the Roll of Attorneys. 11
The Office of the Bar Confidant (OBC) conducted a clarificatory conference on
the matter on 21 September 201212 and submitted a Report and
Recommendation to this Court on 4 February 2013. 13 The OBC recommended
that the instant petition be denied for petitioners gross negligence, gross
misconduct and utter lack of merit. 14 It explained that, based on his answers
during the clarificatory conference, petitioner could offer no valid justification
for his negligence in signing in the Roll of Attorneys. 15
After a judicious review of the records, we grant Medados prayer in the
instant petition, subject to the payment of a fine and the imposition of a
penalty equivalent to suspension from the practice of law.
At the outset, we note that not allowing Medado to sign in the Roll of
Attorneys would be akin to imposing upon him the ultimate penalty of
disbarment, a penalty that we have reserved for the most serious ethical
transgressions of members of the Bar.
In this case, the records do not show that this action is warranted.
For one, petitioner demonstrated good faith and good moral character when
he finally filed the instant Petition to Sign in the Roll of Attorneys. We note that
it was not a third party who called this Courts attention to petitioners
omission; rather, it was Medado himself who acknowledged his own lapse,
albeit after the passage of more than 30 years. When asked by the Bar
Confidant why it took him this long to file the instant petition, Medado very
candidly replied:
Mahirap hong i-explain yan pero, yun bang at the time, what can you say?
Takot ka kung anong mangyayari sa yo, you dont know whats gonna
happen. At the same time, its a combination of apprehension and anxiety of
whats gonna happen. And, finally its the right thing to do. I have to come
here sign the roll and take the oath as necessary.16
For another, petitioner has not been subject to any action for disqualification
from the practice of law,17 which is more than what we can say of other
individuals who were successfully admitted as members of the Philippine Bar.
For this Court, this fact demonstrates that petitioner strove to adhere to the
strict requirements of the ethics of the profession, and that he has prima facie
shown that he possesses the character required to be a member of the
Philippine Bar.
Finally, Medado appears to have been a competent and able legal practitioner,
having held various positions at the Laurel Law Office, 18 Petron, Petrophil
49
Legal Ethics
Corporation, the Philippine National Oil Company, and the Energy
Development Corporation.19
All these demonstrate Medados worth to become a full-fledged member of
the Philippine Bar.1wphi1 While the practice of law is not a right but a
privilege,20 this Court will not unwarrantedly withhold this privilege from
individuals who have shown mental fitness and moral fiber to withstand the
rigors of the profession.
That said, however, we cannot fully exculpate petitioner Medado from all
liability for his years of inaction.
Petitioner has been engaged in the practice of law since 1980, a period
spanning more than 30 years, without having signed in the Roll of
Attorneys.21 He justifies this behavior by characterizing his acts as "neither
willful nor intentional but based on a mistaken belief and an honest error of
judgment."22
We disagree.
While an honest mistake of fact could be used to excuse a person from the
legal consequences of his acts 23 as it negates malice or evil motive, 24 a
mistake of law cannot be utilized as a lawful justification, because everyone is
presumed to know the law and its consequences. 25 Ignorantia factiexcusat;
ignorantia legis neminem excusat.
Applying these principles to the case at bar, Medado may have at first
operated under an honest mistake of fact when he thought that what he had
signed at the PICC entrance before the oath-taking was already the Roll of
Attorneys. However, the moment he realized that what he had signed was
merely an attendance record, he could no longer claim an honest mistake of
fact as a valid justification. At that point, Medado should have known that he
was not a full-fledged member of the Philippine Bar because of his failure to
sign in the Roll of Attorneys, as it was the act of signing therein that would
have made him so.26 When, in spite of this knowledge, he chose to continue
practicing law without taking the necessary steps to complete all the
requirements for admission to the Bar, he willfully engaged in the
unauthorized practice of law.
Under the Rules of Court, the unauthorized practice of law by ones assuming
to be an attorney or officer of the court, and acting as such without authority,
may constitute indirect contempt of court, 27 which is punishable by fine or
imprisonment or both.28 Such a finding, however, is in the nature of criminal
contempt29 and must be reached after the filing of charges and the conduct of
hearings.30 In this case, while it appears quite clearly that petitioner
committed indirect contempt of court by knowingly engaging in unauthorized
practice of law, we refrain from making any finding of liability for indirect
contempt, as no formal charge pertaining thereto has been filed against him.
Knowingly engaging in unauthorized practice of law likewise transgresses
Canon 9 of 'the Code of Professional Responsibility, which provides:
CANON 9 -A lawyer shall not, directly or indirectly, assist in the unauthorized
practice of law.
While a reading of Canon 9 appears to merely prohibit lawyers from assisting
in the unauthorized practice of law, the unauthorized practice of law by the
lawyer himself is subsumed under this provision, because at the heart of
Canon 9 is the lawyer's duty to prevent the unauthorized practice of law. This
duty likewise applies to law students and Bar candidates. As aspiring
members of the Bar, they are bound to comport themselves in accordance
with the ethical standards of the legal profession.
Turning now to the applicable penalty, previous violations of Canon 9have
warranted the penalty of suspension from the practice of law. 31 As Medado is
not yet a full-fledged lawyer, we cannot suspend him from the practice of law.
However, we see it fit to impose upon him a penalty akin to suspension by
allowing him to sign in the Roll of Attorneys one (1) year after receipt of this
Resolution. For his transgression of the prohibition against the unauthorized
practice of law, we likewise see it fit to fine him in the amount of P32,000.
During the one year period, petitioner is warned that he is not allowed to
engage in the practice of law, and is sternly warned that doing any act that
constitutes practice of law before he has signed in the Roll of Attorneys will be
dealt with severely by this Court.
WHEREFORE, the instant Petition to Sign in the Roll of Attorneys is hereby
GRANTED. Petitioner Michael A. Medado is ALLOWED to sign in the Roll of
Attorneys ONE (1) YEAR after receipt of this Resolution. Petitioner is likewise
ORDERED to pay a FINE of P32,000 for his unauthorized practice of law.
During the one year period, petitioner is NOT ALLOWED to practice law, and is
STERNLY WARNED that doing any act that constitutes practice of law before
he has signed in the Roll of Attorneys will be dealt will be severely by this
Court.
Let a copy of this Resolution be furnished the Office of the Bar Confidant, the
Integrated Bar
of the Philippines, and the Office of the Court Administrator for circulation to
all courts in the country.
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Legal Ethics
SO ORDERED.

51
Legal Ethics
REXIE EFREN A. BUGARING AND ROYAL BECHTEL BUILDERS,
INC., petitioners, vs. HON. DOLORES S. ESPAOL, in her capacity as
Presiding Judge of the Regional Trial Court Branch 90, Imus,
Cavite, respondent.
Before us is a petition for review on certiorari of the Decision dated March 6,
1998 of the Court of Appeals [1] affirming the decision of the Regional Trial Court of
Cavite, Branch 90, Imus, Cavite, declaring petitioner Rexie Efren A. Bugaring guilty
in direct contempt of court.
The incident subject of the petition occurred during a hearing held on
December 5, 1996 of Civil Case No. 1266-96 entitled Royal Becthel [2] Builders, Inc.
vs. Spouses Luis Alvaran and Beatriz Alvaran, et al., for Annulment of Sale and
Certificates of Title, Specific Performance and Damages with Prayer for Preliminary
Injunction and/or Temporary Restraining Order in the sala of respondent judge
Dolores S. Espaol of the Regional Trial Court of Cavite, Branch 90, Imus, Cavite.
Pursuant to a motion filed by the previous counsel of Royal Bechtel Builders,
Inc., the trial court issued an order on February 27, 1996 directing the Register of
Deeds of the Province of Cavite to annotate at the back of certain certificates of
title a notice of lis pendens. Before the Register of Deeds of the Province of Cavite
could comply with said order, the defendant Spouses Alvaran on April 15, 1996,
filed a motion to cancel lis pendens. On July 19, 1996, petitioner, the newly
appointed counsel of Royal Bechtel Builders, Inc., filed an opposition to the motion
to cancel lis pendens. On August 16, 1996, the motion to cancel lis pendens was
granted by the court. Petitioner filed a motion for reconsideration, which was
opposed by the defendants. On November 5, 1996, petitioner filed an Urgent
Motion to Resolve, and on November 6, 1996, filed a Rejoinder to Opposition and a
Motion for Contempt of Court.[3]
During the hearing of the motion for contempt of court held on December 5,
1996, the following incident transpired:
ATTY. BUGARING: For the plaintiff, your Honor, we are ready.
ATTY CORDERO: Same appearance for the defendant, your Honor.
ATTY. BUGARING: Your Honor please, we are ready with respect to the
prosecution of our motion for contempt, your Honor. May we know from
the record if the Register of Deeds is properly notified for todays hearing.
COURT: Will you call on the Register of Deeds.
INTERPRETER: Atty. Diosdado Concepcion, He is here, your Honor.
ATTY. BUGARING: We are ready, your Honor.
COURT: There is a motion for contempt in connection with the order of this
Court which directed your office to register lis pendens of the complaint in
connection with this case of Royal Becthel Builder, Inc. versus spouses Luis
Alvaran and Beatriz Alvaran, et al.
ATTY. CONCEPCION: Your Honor, I just received this morning at ten o clock [in
the morning] the subpoena.
ATTY. BUGARING: May we put it on record that as early as November 6, 1996,
the Office of the Register of Deeds was furnished with a copy of our
motion, your Honor please, and the record will bear it out. Until now they
did not file any answer, opposition or pleadings with respect to this
motion.
ATTY. CONCEPCION: Well I was not informed because I am not the Register of
Deeds. I am only the Deputy Register of Deeds and I was not informed
by the receiving clerk of our office regarding this case. As a matter of fact I
was surprised when I received this morning the subpoena, your Honor.
ATTY. BUGARING: Your Honor please, may we put that on record that the
manifestation of the respondent that he was not informed.
COURT: That is recorded. This is a Court of record and everything that you say
here is recorded.
ATTY. BUGARING: Yes your Honor please, we know that but we want to be
specific because we will be [filing] a case against this receiving clerk who
did not [inform] him your Honor please, with this manifestation of the
Deputy of the Register of Deeds that is irregularity in the performance of
the official duty of the clerk not to inform the parties concerned.
COURT: Counsel, the Court would like to find out who this fellow who is taking
the video recording at this proceedings. There is no permission from this
Court that such proceedings should be taken.
ATTY. BUGARING: Your Honor, my Assistant. I did not advise him to take a video
he just accompanied me this morning.
COURT: Right, but the video recording is prepared process and you should
secure the permission of this Court.
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Legal Ethics
ATTY. BUGARING: Actually, I did not instruct him to take some video tape.
COURT: Why would he be bringing camera if you did not give him the go signal
that shots should be done.
ATTY. BUGARING: This Court should not presume that, your Honor please, we
just came from an occasion last night and I am not yet come home, your
Honor please. I could prove your Honor please, that the contents of that
tape is other matters your Honor please. I was just surprised why he took
video tape your Honor please, that we ask the apology of this Court if that
offend this Court your Honor please.
COURT: It is not offending because this is a public proceedings but the
necessary authority or permission should be secured.
ATTY. BUGARING: In fact I instructed him to go out, your Honor.
COURT: After the court have noticed that he is taking a video tape.
ATTY. BUGARING: Yes, your Honor, in fact that is not my personal problem your
Honor please, that is personal to that guy your Honor please if this
representation is being .
COURT: That is very shallow, dont give that alibi.
ATTY. BUGARING: At any rate, your Honor please, we are going to mark our
documentary evidence as part of our motion for contempt, your Honor
please.
COURT: What has the Register of Deeds got to say with this matter?
ATTY. CONCEPCION: Well as I have said before, I have not received any motion
regarding this contempt you are talking. I am willing now to testify.
ATTY. BUGARING: Your Honor I am still of the prosecution stage, it is not yet the
defense. This is a criminal proceedings, contempt proceedings is a
criminal.
ATTY. CONCEPCION: Your Honor please, may I ask for the assistance from the
Fiscal.
COURT: If this is going to proceed, we need the presence of a Fiscal or a counsel
for the Register of Deeds.
ATTY. CONCEPCION: Can I appoint an outside lawyer not a Fiscal but a private
counsel, your Honor.
COURT: That is at your pleasure. The Court will consider that you should be
amply represented.
ATTY. CONCEPCION: As a matter of fact I have a lawyer here, Atty. Barzaga if he
is willing
ATTY. BARZAGA[4]: Yes, your Honor, I will just review the records.
ATTY. BUGARING: Anyway your Honor please, I will not yet present my witness
but I will just mark our documentary exhibits which are part of the record
of the case and thereafter your Honor please.
COURT: You wait for a minute counsel because there is a preparation being
done by newly appointed counsel of the respondent, Atty. Barzaga is
considered as the privately hired counsel of the register of deeds and the
respondent of this contempt proceedings. How much time do you need to
go over the record of this case so that we can call the other case in the
meanwhile.
ATTY. BARZAGA: Second call, your Honor.
-----------------------------------------------------------
--------------------
COURT: Are you ready Atty. Barzaga?
ATTY. BARZAGA: Yes, your Honor. Well actually your Honor, after reviewing the
record of the case your Honor, I noticed that the motion for contempt of
Court was filed on November 6, 1966 and in paragraph 6 thereof,
your Honor it is stated that, the record of the case shows up to the filing of
this motion, the Register as well as the Deputy Register
Diosdado Concepcion of the Office of the Register of Deeds of the Province
of Cavite, did not comply with the Court Orders dated February 27, 1996,
March 29, 1996, respectively. However, your Honor, Atty. Diosdado
Concepcion has shown to me a letter coming from Atty. Efren A. Bugaring
dated September 18, 1996 addressed to the Register regarding this notice
of Lis Pendens pertaining to TCT Nos. T-519248, 519249 and 519250 and
this letter request, your Honor for the annotation of the lis pendens clearly
shows that it has been already entered in the book of primary entry. We
would like also to invite the attention of the Hon. Court that the Motion for
Contempt of Court was filed on November 6, 1996. The letter for the
annotation of the lis pendens was made by the counsel for the plaintiff
only on September 18, 1996, your Honor. However, your Honor, as early
as August 16, 1996 an Order has already been issued by the Hon. Court
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Legal Ethics
reading as follows, Wherefore in view of the above, the motion of the
defendant is GRANTED and the Register of Deeds of the Province of Cavite,
is hereby directed to CANCEL the notice of lis pendens annotated at the
back of Certificate of Title Nos. 519248, 51949 (sic) and 51950 (sic).
ATTY. BUGARING: Your Honor please, may we proceed your Honor, will first
mark our documentary evidence.
COURT: You wait until the Court allows you to do what you want to do, okay. The
counsel has just made manifestation, he has not prayed for anything. So
let us wait until he is finished and then wait for the direction of this Court
what to do to have an orderly proceedings in this case.
ATTY. BARZAGA: Considering your Honor, that the issues appear to be a little bit
complicated your Honor, considering that the order regarding the
annotation of the lis pendens has already been revoked by the Hon. Court
your Honor, we just request that we be given a period of ten days from
today your Honor, within which to submit our formal written opposition
your Honor.
COURT: Counsel, will you direct your attention to the manifestation filed earlier
by Atty. Tutaan in connection with the refusal of the Register of Deeds to
annotate the lis pendens because of certain reasons. According to the
manifestation of Atty. Tutaan and it is appearing in the earlier part of the
record of this case, the reason for that is because there was a pending
subdivision plan, it is so stated. I think it was dated March, 1996. May I
have the record please.
ATTY. BARZAGA: Yes, your Honor.
COURT: This Court would like to be enlightened with respect to that matter.
ATTY. BARZAGA: Well, according to Atty. Diosdado Concepcion he could already
explain this, your Honor.
COURT: Have it properly addressed as part of the manifestation so that this
court can be guided accordingly. Because this Court believes that the root
of the matter started from that. After the submission of the . what are you
suppose to submit?
ATTY. BARZAGA: Comment your Honor, on the motion to cite Atty. Diosdado
Concepcion in contempt of Court.
COURT: After the submission of the Comment and furnishing a copy of the
comment to the counsel for the plaintiff, this Court is going to give the
counsel for the plaintiff an equal time within which to submit his reply.
ATTY. BUGARING: Your Honor please, it is the position of this representation
your Honor please, that we will be marking first our documentary evidence
because this is set for hearing for today, your Honor please.
COURT: If you are going to mark your evidence and they do not have their
comment yet what are we going to receive as evidence.
ATTY. BUGARING: If your Honor please
COURT: Will you listen to the Court and just do whatever you have to do after
the submission of the comment.
ATTY. BUGARING: I am listening, your Honor please, but the record will show
that the motion for contempt was copy furnished with the Register of
Deeds and Diosdado Concepcion.
COURT: Precisely, if you are listening then you will get what the Court would
want to do. This should be an orderly proceedings and considering that
this is a Court of record the comment has to be in first then in your reply
you can submit your evidence to rebut the argument that is going to be
put up by the respondent and so we will be able to hear the case
smoothly.
ATTY. BUGARING: My point here your Honor please, is that the respondent had
been long time furnished of this contempt proceedings. With a copy of the
motion they should have filed it in due time in accordance with the rules
and because it is scheduled for trial, we are ready to mark our evidence
and present to this Court, your Honor.
COURT: (Banging the gavel) Will you listen.
ATTY. BUGARING: I am listening, your Honor.
COURT: And this Court declares that you are out of order.
ATTY. BUGARING: Well, if that is the contention of the Court your Honor please,
we are all officers of the Court, your Honor, please, we have also ---- and
we know also our procedure, your Honor.
COURT: If you know your procedure then you follow the procedure of the Court
first and then do whatever you want.
ATTY. BUGARING: Yes, your Honor please, because we could feel the
antagonistic approach of the Court to this representation ever since I
appeared your Honor please and I put on record that I will be filing an
inhibition to this Hon. Court.
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Legal Ethics
COURT: Do that right away. (Banging the gavel)
ATTY. BUGARING: Because we could not find any sort of justice in town.
COURT: Do that right away.
ATTY. BUGARING: We are ready to present our witness and we are deprive to
present our witness.
COURT: You have presented a witness and it was an adverse witness that was
presented.
ATTY. BUGARING: I did not.
COURT: With respect to this, the procedure of the Court is for the respondent to
file his comment.
ATTY. BUGARING: Well your Honor please, at this point in time I dont want to
comment on anything but I reserve my right to inhibit this Honorable
Court before trying this case.
COURT: You can do whatever you want.
ATTY. BUGARING: Yes, your Honor, that is our prerogative your Honor.
COURT: As far as this Court is concerned it is going to follow the rules.
ATTY. BUGARING: Yes, your Honor, we know all the rules.
COURT: Yes, you know your rules thats why you are putting the cart ahead of
the horse.
ATTY. BUGARING: No your Honor, Ive been challenged by this Court that I know
better than this Court. Modestly (sic) aside your Honor please, Ive been
winning in many certiorari cases, your Honor.
COURT: Okay, okay, do that, do that. I am going to cite you for contempt of
Court. (Banging the gavel) You call the police and I am going to send this
lawyer in jail. (Turning to the Sheriff)
ATTY. BUGARING: I am just manifesting and arguing in favor of my client your
Honor please.
COURT: You have been given enough time and you have been abusing the
discretion of this Court.
ATTY. BUGARING: I am very sorry your Honor, if that is the appreciation of the
Court but this is one way I am protecting my client, your Honor.
COURT: That is not the way to protect your client that is an abuse of the
discretion of this Court. (Turning to the Sheriff) Will you see to it that this
guy is put in jail. (pp. 29-42. Rollo)
Hence, in an Order dated December 5, 1996, Judge Espaol cited petitioner in
direct contempt of court, thus:
During the hearing of this case, plaintiffs and counsel were present together with
one (1) operating a video camera who was taking pictures of the proceedings of
the case while counsel, Atty. Rexie Efren Bugaring was making manifestation to the
effect that he was ready to mark his documentary evidence pursuant to his Motion
to cite (in contempt of court) the Deputy Register of Deeds of Cavite, Diosdado
Concepcion.
The Court called the attention of said counsel who explained that he did not cause
the appearance of the cameraman to take pictures, however, he admitted that
they came from a function, and that was the reason why the said cameraman was
in tow with him and the plaintiffs. Notwithstanding the flimsy explanation given,
the counsel sent out the cameraman after the Court took exception to the fact that
although the proceedings are open to the public and that it being a court of record,
and since its permission was not sought, such situation was an abuse of discretion
of the Court.
When the respondent, Deputy Register of Deeds Concepcion manifested that he
needed the services of counsel and right then and there appointed Atty. Elpidio
Barzaga to represent him, the case was allowed to be called again. On the second
call, Atty. Bugaring started to insist that he be allowed to mark and present his
documentary evidence in spite of the fact that Atty. Barzaga was still manifesting
that he be allowed to submit a written pleading for his client, considering that the
Motion has so many ramifications and the issues are complicated.
At this point, Atty. Bugaring was insisting that he be allowed to mark his
documentary evidence and was raring to argue as in fact he was already
perorating despite the fact that Atty. Barzaga has not yet finished with his
manifestation. As Atty. Bugaring appears to disregard orderly procedure, the Court
directed him to listen and wait for the ruling of the Court for an orderly proceeding.
While claiming that he was listening, he would speak up anytime he felt like doing
so. Thus, the Court declared him out of order, at which point, Atty. Bugaring flared
up and uttered words insulting the Court; such as: that he knows better than the
latter as he has won all his cases of certiorari in the appellate Courts, that he
55
Legal Ethics
knows better the Rules of Court; that he was going to move for the inhibition of the
Presiding Judge for allegedly being antagonistic to his client, and other invectives
were hurled to the discredit of the Court.
Thus, in open court, Atty. Bugaring was declared in direct contempt and order the
Courts sheriff to arrest and place him under detention.
WHEREFORE, in view of the foregoing and the fact that Atty.
Rexie Efren Bugaring committed an open defiance, even challenging the Court in a
disrespectful, arrogant, and contumacious manner, he is declared in direct
contempt of Court and is sentenced to three (3) days imprisonment and payment
of a fine of P3,000.00. His detention shall commence immediately at the Municipal
Jail of Imus, Cavite.[5]
Pursuant to said Order, the petitioner served his three (3) day sentence at the
Imus Municipal Jail, and paid the fine of P3,000.00.[6]
While serving the first day of his sentence on December 5, 1996, petitioner
filed a motion for reconsideration of the Order citing him in direct contempt of
court. The next day, December 6, 1996, petitioner filed another motion praying for
the resolution of his motion for reconsideration. Both motions were never resolved
and petitioner was released on December 8, 1996.[7]
To clear his name in the legal circle and the general public, petitioner filed a
petition before the Court of Appeals praying for the annulment of the Order dated
December 5, 1996 citing him in direct contempt of court and the reimbursement of
the fine of P3,000.00 on grounds that respondent Judge Dolores S. Espaol had no
factual and legal basis in citing him in direct contempt of court, and that said Order
was null and void for being in violation of the Constitution and other pertinent laws
and jurisprudence.[8]
The Court of Appeals found that from a thorough reading of the transcript of
stenographic notes of the hearing held on December 5, 1996, it was obvious that
the petitioner was indeed arrogant, at times impertinent, too argumentative, to the
extent of being disrespectful, annoying and sarcastic towards the court. [9] It
affirmed the order of the respondent judge, but found that the fine of P3,000.00
exceeded the limit of P2,000.00 prescribed by the Rules of Court,[10] and ordered
the excess of P1,000.00 returned to petitioner. On March 6, 1998, it rendered
judgment, the dispositive portion of which reads:
WHEREFORE, the petition is hereby DISMISSED for lack of merit and the assailed
order dated December 5, 1996 issued by the trial court is hereby AFFIRMED with
the modification that the excess fine of P1,000.00 is ORDERED RETURNED to the
petitioner.
Before us, petitioner ascribes to the Court of Appeals this lone error:
THE APPELLATE COURT COMMITTED A REVERSIBLE ERROR IN AFFIRMING THE
ASSAILED ORDER OF THE TRIAL COURT WHICH TO PETITIONERS SUBMISSIONS
SMACKS OF OPPRESSION AND ABUSE OF AUTHORITY, HENCE IT COMMITTED A
GRAVE ERROR OF LAW IN ITS QUESTIONED DECISION. [11]
Petitioner insists that a careful examination of the transcript of stenographic
notes of the subject proceedings would reveal that the contempt order issued by
respondent judge had no factual and legal basis. It would also show that he was
polite and respectful towards the court as he always addressed the court with the
phrase your honor please.
We disagree.
Section 1, Rule 71 of the Rules of Court as amended by
Administrative Circular No. 22-95 provides:
Direct contempt punished summarily. - A person guilty of misbehavior in the
presence of or so near a court or judge as to obstruct or interrupt the proceedings
before the same, including disrespect toward the court or judge, offensive
personalities toward others, or refusal to be sworn or to answer as a witness, or to
subscribe an affidavit or deposition when lawfully required to do so, may be
summarily adjudged in contempt by such court or judge and punished by a fine not
exceeding two thousand pesos or imprisonment not exceeding ten (10) days, or
both, if it be a superior court, or a judge thereof, or by a fine not exceeding two
hundred pesos or imprisonment not exceeding one (1) day, or both, if it be an
inferior court.
We agree with the statement of the Court of Appeals that petitioners alleged
deference to the trial court in consistently addressing the respondent judge as
your Honor please throughout the proceedings is belied by his behavior therein:
1. the veiled threat to file a petition for certiorari against the trial court
(pp. 14-15, tsn, December 5, 1996; pp. 41-42, Rollo) is contrary to
Rule 11.03, Canon 11 of the Code of Professional Responsibility which
mandates that a lawyer shall abstain from scandalous, offensive or
menacing language or behavior before the Courts.
2. the hurled uncalled for accusation that the respondent judge was
partial in favor of the other party (pp. 13-14, tsn, December 5, 1996;
pp. 40-41, Rollo) is against Rule 11.04, Canon 11 of the Code of
Professional Responsibility which enjoins lawyers from attributing to a
judge motives not supported by the record or have no materiality to
the case.
3. behaving without due regard to the trial courts order to maintain order
in the proceedings (pp. 9-13, tsn, December 5, 1996; pp. 36-40,
Rollo) is in utter disregard to Canon 1 of the Canons of Professional
56
Legal Ethics
Ethics which makes it a lawyers duty to maintain towards the courts
(1) respectful attitude in order to maintain its importance in the
administration of justice, and Canon 11 of the Code of Professional
Responsibility which mandates lawyers to observe and maintain the
respect due to the Courts and to judicial officers and should insist on
similar conduct by others.
4. behaving without due regard or deference to his fellow counsel who at
the time he was making representations in behalf of the other party,
was rudely interrupted by the petitioner and was not allowed to
further put a word in edgewise (pp. 7-13, tsn, December 5, 1996; pp.
34-39, Rollo) is violative of Canon 8 of the Code of Professional
Responsibility and Canon 22 of the Canons of Professional Ethics
which obliges a lawyer to conduct himself with courtesy, fairness and
candor toward his professional colleagues, and
5. the refusal of the petitioner to allow the Registrar of Deeds of the
Province of Cavite, through counsel, to exercise his right to be heard
(Ibid) is against Section 1 of Article III, 1997 Constitution on the right
to due process of law, Canon 18 of the Canons of Professional Ethics
which mandates a lawyer to always treat an adverse witness with
fairness and due consideration, and Canon 12 of Code of Professional
Responsibility which insists on a lawyer to exert every effort and
consider it his duty to assist in the speedy and efficient
administration of justice.
The Court cannot therefore help but notice the sarcasm in the petitioners use of
the phrase your honor please. For, after using said phrase he manifested utter
disrespect to the court in his subsequent utterances. Surely this behavior from an
officer of the Court cannot and should not be countenanced, if proper decorum is
to be observed and maintained during court proceedings. [12]
Indeed, the conduct of petitioner in persisting to have his documentary
evidence marked to the extent of interrupting the opposing counsel and the court
showed disrespect to said counsel and the court, was defiant of the courts system
for an orderly proceeding, and obstructed the administration of justice. The power
to punish for contempt is inherent in all courts and is essential to the preservation
of order in judicial proceedings and to the enforcement of judgments, orders, and
mandates of the court, and consequently, to the due administration of justice.
[13]
Direct contempt is committed in the presence of or so near a court or judge, as
in the case at bar, and can be punished summarily without hearing. [14] Hence,
petitioner cannot claim that there was irregularity in the actuation of respondent
judge in issuing the contempt order inside her chamber without giving the
petitioner the opportunity to defend himself or make an immediate
reconsideration. The records show that petitioner was cited in contempt of court
during the hearing in the sala of respondent judge, and he even filed a motion for
reconsideration of the contempt order on the same day. [15]
Petitioner argued that while it might appear that he was carried by his
emotions in espousing the case of his client - by persisting to have his
documentary evidence marked despite the respondent judges contrary order - he
did so in the honest belief that he was bound to protect the interest of his client to
the best of his ability and with utmost diligence.
The Court of Appeals aptly stated:
But a lawyer should not be carried away in espousing his clients cause (Buenaseda
v. Flavier, 226 SCRA 645, 656). He should not forget that he is an officer of the
court, bound to exert every effort and placed under duty, to assist in the speedy
and efficient administration of justice pursuant to Canon 12, Canons of Professional
Responsibility (Gomez v. Presiding Judge, RTC, Br. 15, Ozamis City, 249 SCRA 432,
439). He should not , therefore, misuse the rules of procedure to defeat the ends of
justice per Rule 10.03. Canon 10 of the Canons of Professional Responsibility, or
unduly delay a case, impede the execution of a judgment or misuse court
processes, in accordance with Rule 12.04, Canon 12 of the same Canons (Ibid).
Lawyers should be reminded that their primary duty is to assist the courts in the
administration of justice. Any conduct which tends to delay, impede or obstruct the
administration of justice contravenes such lawyers duty. [16]
Although respondent judge was justified in citing petitioner in direct contempt
of court, she erred in imposing a fine in the amount of P3,000.00 which exceeded
the ceiling of P2,000.00 under Supreme Court Administrative Circular No. 22-95
which took effect on November 16, 1995. It was not established that the fine was
imposed in bad faith. The Court of Appeals thus properly ordered the return of the
excess of P1,000.00. Aside from the fine, the three days imprisonment meted out
to petitioner was justified and within the 10-day limit prescribed in Section 1, Rule
71 of the Rules of Court, as amended.
It is our view and we hold, therefore, that the Court of Appeals did not commit
any reversible error in its assailed decision.
WHEREFORE, the assailed Decision dated March 6, 1998 of the Court of
Appeals is hereby AFFIRMED. The Regional Trial Court of Cavite, Branch 90, Imus,
Cavite is ordered to return to the petitioner, Rexie Efren A. Bugaring, the sum of
P1,000.00 out of the original fine of P3,000.00.
SO ORDERED.
57
Legal Ethics
ANA MARIE CAMBALIZA
- versus-
ATTY. ANA LUZ B. CRISTAL-TENORIO
In a verified complaint for disbarment filed with the Committee on Bar
Discipline of the Integrated Bar of the Philippines (IBP) on 30 May 2000,
complainant Ana Marie Cambaliza, a former employee of respondent Atty. Ana
Luz B. Cristal-Tenorio in her law office, charged the latter with deceit, grossly
immoral conduct, and malpractice or other gross misconduct in office.
On deceit, the complainant alleged that the respondent has been
falsely representing herself to be married to Felicisimo R. Tenorio, Jr., who has
a prior and subsisting marriage with another woman. However, through
spurious means, the respondent and Felicisimo R. Tenorio, Jr., were able to
obtain a false marriage contract,[1] which states that they were married on 10
February 1980 in Manila. Certifications from the Civil Registry of Manila[2] and
the National Statistics Office (NSO)[3] prove that no record of marriage exists
between them. The false date and place of marriage between the two are
stated in the birth certificates of their two children, Donnabel Tenorio [4] and
Felicisimo Tenorio III.[5] But in the birth certificates of their two other children,
Oliver Tenorio[6] and John Cedric Tenorio,[7] another date and place of marriage
are indicated, namely, 12 February 1980 in Malaybalay, Bukidnon.
As to grossly immoral conduct, the complainant alleged that the
respondent caused the dissemination to the public of a libelous affidavit
derogatory to Makati City Councilor Divina Alora Jacome. The respondent
would often openly and sarcastically declare to the complainant and her co-
employees the alleged immorality of Councilor Jacome.
On malpractice or other gross misconduct in office, the complainant
alleged that the respondent (1) cooperated in the illegal practice of law by her
husband, who is not a member of the Philippine Bar; (2) converted her clients
money to her own use and benefit, which led to the filing of an estafa case
against her; and (3) threatened the complainant and her family on 24 January
2000 with the statement Isang bala ka lang to deter them from divulging
respondents illegal activities and transactions.
In her answer, the respondent denied all the allegations against
her. As to the charge of deceit, she declared that she is legally married to
Felicisimo R. Tenorio, Jr. They were married on 12 February 1980 as shown by
their Certificate of Marriage, Registry No. 2000-9108 of the Civil Registry of
Quezon City.[8] Her husband has no prior and subsisting marriage with another
woman.
As to the charge of grossly immoral conduct, the respondent denied
that she caused the dissemination of a libelous and defamatory affidavit
against Councilor Jacome. On the contrary, it was Councilor Jacome who
caused the execution of said document. Additionally, the complainant and her
cohorts are the rumormongers who went around the city of Makati on the
pretext of conducting a survey but did so to besmirch respondents good name
and reputation.
The charge of malpractice or other gross misconduct in office was
likewise denied by the respondent. She claimed that her Cristal-Tenorio Law
Office is registered with the Department of Trade and Industry as a single
proprietorship, as shown by its Certificate of Registration of Business Name.
[9]
Hence, she has no partners in her law office. As to the estafa case, the
same had already been dropped pursuant to the Order of 14 June 1996 issued
by Branch 103 of the Regional Trial Court of Quezon City. [10] The respondent
likewise denied that she threatened the complainant with the words Isang
bala ka lang on 24 January 2000.
Further, the respondent averred that this disbarment complaint was
filed by the complainant to get even with her. She terminated
complainants employment after receiving numerous complaints that the
complainant extorted money from different people with the promise of
processing their passports and marriages to foreigners, but she reneged on
her promise. Likewise, this disbarment complaint is politically motivated:
some politicians offered to re-hire the complainant and her cohorts should
they initiate this complaint, which they did and for which they were re-
hired. The respondent also flaunted the fact that she had received numerous
awards and citations for civic works and exemplary service to the
community. She then prayed for the dismissal of the disbarment case for
being baseless.
The IBP referred this case to Investigating Commissioner Atty. Kenny
H. Tantuico.
During the hearing on 30 August 2000, the parties agreed that the
complainant would submit a Reply to respondents Answer, while the
respondent would submit a Rejoinder to the Reply. The parties also agreed
that the Complaint, Answer, and the attached affidavits would constitute as
the respective direct testimonies of the parties and the affiants. [11]
In her Reply, the complainant bolstered her claim that the respondent
cooperated in the illegal practice of law by her husband by submitting (1) the
letterhead of Cristal-Tenorio Law Office[12] where the name of Felicisimo R.
Tenorio, Jr., is listed as a senior partner; and (2) a Sagip Communication Radio
Group identification card[13] signed by the respondent as Chairperson where
her husband is identified as Atty. Felicisimo R. Tenorio, Jr. She added that
respondents husband even appeared in court hearings.
In her Rejoinder, respondent averred that she neither formed a law
partnership with her husband nor allowed her husband to appear in court on
her behalf. If there was an instance that her husband appeared in court, he did
so as a representative of her law firm. The letterhead submitted by the
58
Legal Ethics
complainant was a false reproduction to show that her husband is one of her
law partners. But upon cross-examination, when confronted with the
letterhead of Cristal-Tenorio Law Office bearing her signature, she admitted
that Felicisimo R. Tenorio, Jr., is not a lawyer, but he and a certain Gerardo A.
Panghulan, who is also not a lawyer, are named as senior partners because
they have investments in her law office.[14]
The respondent further declared that she married Felicisimo R.
Tenorio, Jr., on 12 February 1980 in Quezon City, but when she later
discovered that their marriage contract was not registered she applied for late
registration on 5 April 2000. She then presented as evidence a certified copy
of the marriage contract issued by the Office of the Civil Registrar General and
authenticated by the NSO. The erroneous entries in the birth certificates of her
children as to the place and date of her marriage were merely an oversight.[15]
Sometime after the parties submitted their respective Offer of
Evidence and Memoranda, the complainant filed a Motion to Withdraw
Complaint on 13 November 2002 after allegedly realizing that this disbarment
complaint arose out of a misunderstanding and misappreciation of facts. Thus,
she is no longer interested in pursuing the case. This motion was not acted
upon by the IBP.
In her Report and Recommendation dated 30 September 2003, IBP
Commissioner on Bar Discipline Milagros V. San Juan found that the
complainant failed to substantiate the charges of deceit and grossly immoral
conduct. However, she found the respondent guilty of the charge of
cooperating in the illegal practice of law by Felicisimo R. Tenorio, Jr., in
violation of Canon 9 and Rule 9.01 of the Code of Professional Responsibility
based on the following evidence: (1) the letterhead of Cristal-Tenorio Law
Office, which lists Felicisimo R. Tenorio, Jr., as a senior partner; (2) the Sagip
Communication Radio Group identification card of Atty. Felicisimo R. Tenorio,
Jr., signed by respondent as Chairperson; (3) and the Order dated 18 June
1997 issued by the Metropolitan Trial Court in Criminal Cases Nos. 20729
20734, wherein Felicisimo R. Tenorio, Jr., entered his appearance as counsel
and even moved for the provisional dismissal of the cases for failure of the
private complainants to appear and for lack of interest to prosecute the said
cases. Thus, Commissioner San Juan recommended that the respondent be
reprimanded.
In its Resolution No. XVI-2003-228 dated 25 October 2003, the IBP
Board of Governors adopted and approved with modification the Report and
Recommendation of Commissioner San Juan. The modification consisted in
increasing the penalty from reprimand to suspension from the practice of law
for six months with a warning that a similar offense in the future would be
dealt with more severely.
We agree with the findings and conclusion of Commissioner San Juan
as approved and adopted with modification by the Board of Governors of the
IBP.
At the outset, we find that the IBP was correct in not acting on the
Motion to Withdraw Complaint filed by complainant Cambaliza. In Rayos-
Ombac vs. Rayos,[16] we declared:
The affidavit of withdrawal of the disbarment case
allegedly executed by complainant does not, in any way,
exonerate the respondent. A case of suspension or
disbarment may proceed regardless of interest or lack of
interest of the complainant. What matters is whether, on the
basis of the facts borne out by the record, the charge of
deceit and grossly immoral conduct has been duly
proven. This rule is premised on the nature of disciplinary
proceedings. A proceeding for suspension or disbarment is
not in any sense a civil action where the complainant is a
plaintiff and the respondent lawyer is a
defendant. Disciplinary proceedings involve no private
interest and afford no redress for private grievance. They are
undertaken and prosecuted solely for the public
welfare. They are undertaken for the purpose of preserving
courts of justice from the official ministration of persons unfit
to practice in them.The attorney is called to answer to the
court for his conduct as an officer of the court. The
complainant or the person who called the attention of the
court to the attorney's alleged misconduct is in no sense a
party, and has generally no interest in the outcome except
as all good citizens may have in the proper administration of
justice. Hence, if the evidence on record warrants, the
respondent may be suspended or disbarred despite the
desistance of complainant or his withdrawal of the charges.
Hence, notwithstanding the Motion to Withdraw Complaint, this disbarment
case should proceed accordingly.
The IBP correctly found that the charges of deceit and grossly immoral
conduct were not substantiated. In disbarment proceedings, the complainant
has the burden of proving his case by convincing evidence. [17] With respect to
the estafa case which is the basis for the charge of malpractice or other gross
misconduct in office, the respondent is not yet convicted thereof. In Gerona
vs. Datingaling,[18] we held that when the criminal prosecution based on the
same act charged is still pending in court, any administrative disciplinary
proceedings for the same act must await the outcome of the criminal case to
avoid contradictory findings.
59
Legal Ethics
We, however, affirm the IBPs finding that the respondent is guilty of assisting
in the unauthorized practice of law. A lawyer who allows a non-member of the
Bar to misrepresent himself as a lawyer and to practice law is guilty of
violating Canon 9 and Rule 9.01 of the Code of Professional Responsibility,
which read as follows:
profession enjoin him not to permit his professional services or his name to be
used in aid of, or to make possible the unauthorized practice of law by, any
agency, personal or corporate. And, the law makes it a misbehavior on his
part, subject to disciplinary action, to aid a layman in the unauthorized
practice of law.[21]

Canon 9 A lawyer shall not directly or indirectly assist in the
unauthorized practice of law.
Rule 9.01 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.
The term practice of law implies customarily or habitually holding
oneself out to the public as a lawyer for compensation as a source of
livelihood or in consideration of his services. Holding ones self out as a lawyer
may be shown by acts indicative of that purpose like identifying oneself as
attorney, appearing in court in representation of a client, or associating
oneself as a partner of a law office for the general practice of law. [19] Such acts
constitute unauthorized practice of law.
WHEREFORE, for culpable violation of Canon 9 and Rule 9.01 of the
Code of Professional Responsibility, respondent Atty. Ana Luz B. Cristal-Tenorio
is hereby SUSPENDED from the practice of law for a period of six (6) months
effective immediately, with a warning that a repetition of the same or similar
act in the future will be dealt with more severely.
Let copies of this Resolution be attached to respondent Cristal-Tenorios
record as attorney in this Court and furnished to the IBP and the Office of the
Court Administrator for circulation to all courts.
SO ORDERED.

In this case, Felicisimo R. Tenorio, Jr., is not a lawyer, but he holds

himself out as one. His wife, the respondent herein, abetted and aided him in
the unauthorized practice of the legal profession.

At the hearing, the respondent admitted that the letterhead of Cristal-

Tenorio Law Office listed Felicisimo R. Tenorio, Jr., Gerardo A. Panghulan, and
Maricris D. Battung as senior partners. She admitted that the first two are not
lawyers but paralegals. They are listed in the letterhead of her law office as
senior partners because they have investments in her law office. [20] That is a
blatant misrepresentation.

The Sagip Communication Radio Group identification card is another

proof that the respondent assisted Felicisimo R. Tenorio, Jr., in misrepresenting
to the public that he is a lawyer. Notably, the identification card stating that
he is Atty. Felicisimo Tenorio, Jr., bears the signature of the respondent as
Chairperson of the Group.

The lawyers duty to prevent, or at the very least not to assist in, the
unauthorized practice of law is founded on public interest and policy. Public
policy requires that the practice of law be limited to those individuals found
duly qualified in education and character. The permissive right conferred on
the lawyer is an individual and limited privilege subject to withdrawal if he
fails to maintain proper standards of moral and professional conduct. The
purpose is to protect the public, the court, the client, and the bar from the
incompetence or dishonesty of those unlicensed to practice law and not
subject to the disciplinary control of the Court. It devolves upon a lawyer to
see that this purpose is attained. Thus, the canons and ethics of the
60
Legal Ethics
ENRIQUE A. ZALDIVAR, petitioner,
vs.
THE HONORABLE SANDIGANBAYAN and HONORABLE RAUL M.
GONZALEZ, claiming to be and acting as Tanodbayan-Ombudsman
under the 1987 Constitution, respondents.
We have examined carefully the lengthy and vigorously written Motion for
Reconsideration dated October 18, 1988 filed by counsel for respondent Raul
M. Gonzalez, relating to the per curiam Resolution of the Court dated October
7, 1988. We have reviewed once more the Court's extended per
curiam Resolution, in the light of the argument adduced in the Motion for
Reconsideration, but must conclude that we find no sufficient basis for
modifying the conclusions and rulings embodied in that Resolution. The
Motion for Reconsideration sets forth copious quotations and references to
foreign texts which, however, whatever else they may depict, do not reflect
the law in this jurisdiction.
Nonetheless, it might be useful to develop further, in some measure, some of
the conclusions reached in the per curiam Resolution, addressing in the
process some of the "Ten (10) Legal Points for Reconsideration," made in the
Motion for Reconsideration.
1. In respondent's point A, it is claimed that it was error for
this Court "to charge respondent [with] indirect contempt and
convict him of direct contempt."
In the per curiam Resolution (page 50), the Court concluded that "respondent
Gonzalez is guilty both of contempt of court in facie curiae and of gross
misconduct as an officer of the court and member of the bar." The Court did
not use the phrase "in facie curiae" as a technical equivalent of "direct
contempt," though we are aware that courts in the United States have
sometimes used that phrase in speaking of "direct contempts' as "contempts
in the face of the courts." Rather, the court sought to convey that it regarded
the contumacious acts or statements (which were made both in a pleading
filed before the Court and in statements given to the media) and the
misconduct of respondent Gonzalez as serious acts flaunted in the face of the
Court and constituting a frontal assault upon the integrity of the Court and,
through the Court, the entire judicial system. What the Court would stress is
that it required respondent, in its Resolution dated 2 May 1988, to explain
"why he should not be punished for contempt of court and/or subjected to
administrative sanctions" and in respect of which, respondent was heard and
given the most ample opportunity to present all defenses, arguments and
evidence that he wanted to present for the consideration of this Court. The
Court did not summarily impose punishment upon the respondent which it
could have done under Section 1 of Rule 71 of the Revised Rules of Court had
it chosen to consider respondent's acts as constituting "direct contempt."
2. In his point C, respondent's counsel argues that it was
"error for this Court to charge respondent under Rule 139 (b)
and not 139 of the Revised Rules of Court."
In its per curiam Resolution, the Court referred to Rule 139 (b) of the Revised
Rules of Court pointing out that:
[R]eference of complaints against attorneys either to the
Integrated Bar of the Philippines or to the Solicitor General is
not mandatory upon the Supreme Court such reference to the
Integrated Bar of the Philippines or to the Solicitor General is
certainly not an exclusive procedure under the terms of Rule
139 (b) of the Revised Rules of Court, especially where the
charge consists of acts done before the Supreme Court.
The above statement was made by the Court in response to respondent's
motion for referral of this case either to the Solicitor General or to the
Integrated Bar of the Philippines under Rule 139 (b). Otherwise, there would
have been no need to refer to Rule 139 (b). It is thus only necessary to point
out that under the old rule, Rule 139, referral to the Solicitor General was
similarly not an exclusive procedure and was not the only course of action
open to the Supreme Court. It is well to recall that under Section 1 (entitled
"Motion or complaint") of Rule 139, "Proceedings for the removal or
suspension of attorneys may be taken by the Supreme Court, (1) on its own
motion, or (2) upon the complaint under oath of another in writing"
(Parentheses supplied). The procedure described in Sections 2 et seq. of Rule
139 is the procedure provided for suspension or disbarment proceedings
initiated upon sworn complaint of another person, rather than a procedure
required for proceedings initiated by the Supreme Court on its own motion. It
is inconceivable that the Supreme Court would initiate motu
proprioproceedings for which it did not find probable cause to proceed against
an attorney. Thus, there is no need to refer a case to the Solicitor General,
which referral is made "for investigation to determine if there is sufficient
ground to proceed with the prosecution of the respondent" (Section 3, Rule
139), where the Court itself has initiated against the respondent. The Court
may, of course, refer a case to the Solicitor General if it feels that, in a
particular case, further factual investigation is needed. In the present case, as
pointed out in the per curiamResolution of the Court (page 18), there was "no
need for further investigation of facts in the present case for it [was] not
substantially disputed by respondent Gonzalez that he uttered or wrote
certain statements attributed to him" and that "in any case, respondent has
had the amplest opportunity to present his defense: his defense is not that he
did not make the statements ascribed to him but that those statements give
rise to no liability on his part, having been made in the exercise of his freedom
of speech. The issues which thus need to be resolved here are issues of law
and of basic policy and the Court, not any other agency, is compelled to
resolve such issues."
In this connection, we note that the quotation in page 7 of the Motion for
Reconsideration is from a dissentingopinion of Mr. Justice Black in Green v.
United State. 1 It may be pointed out that the majority in Green v. United
States, through Mr. Justice Harlan, held, among other things, that: Federal
courts do not lack power to impose sentences in excess of one year for
criminal contempt; that criminal contempts are not subject to jury trial as a
matter of constitutional right; nor does the (US) Constitution require that
contempt subject to prison terms of more than one year be based on grand
jury indictments.
61
Legal Ethics
In his concurring opinion in the same case, Mr. Justice
Frankfurter said:
Whatever the conflicting views of scholars in construing more
or less dubious manuscripts of the Fourteenth Century, what
is indisputable is that from the foundation of the United States
the constitutionality of the power to punish for contempt
without the intervention of a jury has not been doubted. The
First Judiciary Act conferred such a power on the federal courts
in the very act of their establishment, 1 State 73, 83, and of
the Judiciary Committee of eight that reported the bill to the
Senate, five member including the chairman, Senator, later to
be Chief Justice, Ellsworth, had been delegates to the
Constitutional Convention (Oliver Ellsworth, Chairman, William
Paterson, Caleb Strong, Ricard Basett, William Few. 1 Annals of
Cong 17). In the First Congress itself no less than nineteen
member including Madison who contemporaneously
introduced the Bill of Rights, had been delegates to the
Convention. And when an abuse under this power manifested
itself, and led Congress to define more explicitly the summary
power vested in the courts, it did not remotely deny the
existence of the power but merely defined the conditions for
its exercise more clearly, in an Act "declaratory of the law
concerning contempts of court." Act of Mar. 2, 1831, 4 Stat
487.
xxxxxxxxx
Nor has the constitutionality of the power been doubted by
this Court throughout its existence . In at least two score
cases in this Court, not to mention the vast mass of decisions
in the lower federal courts, the power to punish summarily
has been accepted without question. ... 2
To say that a judge who punishes a contemnor judges his own cause, is
simplistic at best. The judge who finds himself compelled to exercise the
power to punish for contempt does so not really to avenge a wrong inflicted
upon his own person; rather he upholds and vindicates the authority, dignity
and integrity of the judicial institution and its claim to respectful behaviour on
the part of all persons who appears before it, and most especially from those
who are officers of the court.
3. In his point D, respondent counsel urges that it is error "for
this Court to apply the "visible tendency" rule rather than the
"clear and present danger" rule in disciplinary and contempt
charges."
The Court did not purport to announce a new doctrine of "visible tendency," it
was, more modestly, simply paraphrasing Section 3 (d) of Rule 71 of the
Revised Rules of Court which penalizes a variety of contumacious conduct
including: "any improper conduct tending, directly or indirectly, to impede,
obstruct or degrade the administration of justice."
The "clear and present danger" doctrine invoked by respondent's counsel is
not a magic incantation which dissolves all problems and dispenses with
analysis and judgment in the testing of the legitimacy of claims to free
speech, and which compels a court to exonerate a defendant the moment the
doctrine is invoked, absent proof of impending apocalypse. The clear and
present danger" doctrine has been an accepted method for marking out the
appropriate limits of freedom of speech and of assembly in certain contexts. It
is not, however, the only test which has been recognized and applied by
courts. In Logunzad v. Vda. de Gonzales, 3 this Court, speaking through Mme.
Justice Melencio-Herrera said:
...The right of freedom of expression indeed, occupies a
preferred position in the "hierarchy of civil liberties"
(Philippine Blooming Mills Employees Organization v.
Philippine Blooming Mills Co., Inc., 51 SCRA 191 [1963]. It is
not, however, without limitations. As held in Gonzales v.
Commission on Elections, 27 SCRA 835, 858 [1960]:
"From the language of the specific constitutional provision, it
would appear that the right is not susceptible of any
limitation. No law may be passed abridging the freedom of
speech and of the press. The realities of life in a complex
society preclude however, a literal interpretation. Freedom of
expression is not an absolute. It would be too much to insist
that all times and under all circumstances it should remain
unfettered and unrestrained. There are other societal values
that press for recognition."
The prevailing doctrine is that the clear and present danger
rule is such a limitation. Another criterion for permissible
limitation on freedom of speech and of the press, which
includes such vehicles of the mass media as radio, television
and the movies, is the "balancing-of-interests test" (Chief
Justice Enrique M. Fernando on the Bill of Rights, 1970 ed., p.
79). The principle "requires a court to take conscious and
detailed consideration of the interplay of interests observable
in a given situation or type of situation (Separate Opinion of
the late Chief Justice Castro in Gonzales v. Commission on
Elections, supra, p. 899). (Emphasis Supplied) 4
Under either the "clear and present danger" test or the "balancing-of-interest
test," we believe that the statements here made by respondent Gonzalez are
of such a nature and were made in such a manner and under such
circumstances, as to transcend the permissible limits of free speech. This
conclusion was implicit in the per curiam Resolution of October 7, 1988. It is
important to point out that the "substantive evil" which the Supreme Court
has a right and a duty to prevent does not, in the instant case, relate to
threats of physical disorder or overt violence or similar disruptions of public
order. 5 What is here at stake is the authority of the Supreme Court to confront
and prevent a "substantive evil" consisting not only of the obstruction of a
free and fair hearing of a particular case but also the avoidance of the broader
evil of the degradation of the judicial system of a country and the destruction
of the standards of professional conduct required from members of the bar
and officers of the courts. The "substantive evil" here involved, in other words,
62
Legal Ethics
is not as palpable as a threat of public disorder or rioting but is certainly no willingness and capacity to live up to the exacting standards
less deleterious and more far reaching in its implications for society. of conduct rightly demanded from every member of the bar
4. In his point H, respondent's counsel argues that it is error and officer of the courts.
"for this Court to hold that intent is irrelevant in charges of ACCORDINGLY, the Court Resolved to DENY the Motion for Reconsideration for
misconduct." What the Court actually said on this point was: lack of merit. The denial is FINAL.
Respondent Gonzalez disclaims an intent to attack and The Court also NOTED the Ex-Parte Manifestation and Motion, dated October
denigrate the Court. The subjectivities of the respondent are 25, 1988 and the Supplemental Manifestation, dated October 27, 1988, filed
irrelevant so far as characterization of his conduct or by respondent
misconduct is concerned. He will not, however, be allowed to
disclaim the natural and plain import of his words and acts. It
is, upon the other hand, not irrelevant to point out that the
respondent offered no apology in his two (2) explanations and
exhibited no repentance (Resolution, p. 7; footnotes omitted).
The actual subjectivities of the respondent are irrelevant because such
subjectivities (understood as pyschological phenomena) cannot be
ascertained and reached by the processes of this Court. Human intent can
only be shown derivatively and implied from an examination of acts and
statements. Thus, what the Court was saying was that respondent's disclaimer
of an intent to attack and denigrate the Court, cannot prevail over the plain
import of what he did say and do. Respondent cannot negate the clear import
of his acts and statements by simply pleading a secret intent or state of mind
incompatible with those acts or statements. It is scarcely open to dispute that,
e.g., one accused of homicide cannot successfully deny his criminal intent by
simply asserting that while he may have inserted a knife between the victim's
ribs, he actually acted from high motives and kind feelings for the latter.
5 In his point 1, respondent's counsel argues that it is error
"for this Court to punish respondent for contempt of court for
out of court publications."
Respondent's counsel asks this Court to follow what he presents as alleged
modern trends in the United Kingdom and in the United States concerning the
law of contempt. We are, however, unable to regard the texts that he cites as
binding or persuasive in our jurisdiction. The Court went to some length to
document the state of our case law on this matter in its per curiam Resolution.
There is nothing in the circumstances of this case that would suggest to this
Court that that case law, which has been followed for at least half a century or
so, ought to be reversed.
6. In his point J, respondent's counsel pleads that the
imposition of indefinite suspension from the practice of law
constitutes "cruel, degrading or inhuman punishment". The
Court finds it difficult to consider this a substantial
constitutional argument. The indefiniteness of the
respondent's suspension, far from being "cruel" or "degrading"
or "inhuman," has the effect of placing, as it were, the key to
the restoration of his rights and privileges as a lawyer in his
own hands. That sanction has the effect of giving respondent
the chance to purge himself in his own good time of his
contempt and misconduct by acknowledging such misconduct,
exhibiting appropriate repentance and demonstrating his
63
Legal Ethics
IIGO F. CARLET, as Special Administrator of the Estate of Pablo Sevillo
and Antonia Palisoc, petitioner, vs. HON. COURT OF APPEALS,
VIRGINIA C. ZARATE, JACOBO C. ZARATE, VICTORIA C. ZARATE,
HON. CONRADO DIZON, Acting Judge of the Municipal Trial
Court of Bian, Laguna, and DEPUTY SHERIFF ROGELIO S.
MOLINA of Bian, Laguna, respondents.
The Rules of Court provide litigants with options on what course of action
to take in obtaining judicial relief. Once such option is taken and a case is filed
in court, the parties are compelled to ventilate all matters and relevant issues
therein. The losing party who files another action regarding the same
controversy will be needlessly squandering time, effort and financial resources
because he is barred by law from litigating the same controversy all over
again. Such is the situation in the case at bar: whether or not there is res
judicata or bar by prior judgment. The present controversy is surrounded by
the following facts:
Lot 981 of the Bian Estate in Laguna, with an area of 864 square meters, was
purchased by Jose Sevillo in 1910 on installment. In 1917, Transfer Certificate
No. 1599 was issued in his name after payment of the full purchase price. Jose
Sevillos marriage to Severa Bayran produced four sons, Teodoro, Mariano,
Vicente and Pablo. Pablo married Antonia Palisoc in 1920 and they begot four
children, Consolacion, Alejandra (Andrea), Samero (Casimiro) and Marin
(Martin or Maltin) Sevillo. In 1949, Pablo Sevillo declared Lot No. 981 for
taxation purposes under Tax Declaration Nos. 6125 and 2586 even if the
property was still in Jose Sevillos name.
In 1955, Pablo, by then a widower, married Candida Baylo. The union
produced no offspring. Candidas daughter, Cirila Baylo Carolasan, was sired
by another man.
In 1965, Pablo Sevillo, with Candida Baylo, filed a petition before the
Court of First Instance for reconstitution of title. Reconstitution was allowed
and TCT No. RT-926 was issued in the name of Pablo Sevillo, married to
Candida Baylo. Pablo Sevillo and his wife died in 1967 and in 1974,
respectively.
In 1980, the heirs of Cirila Baylo Carolasan,[1] all surnamed Zarate and
herein private respondents, filed a case for annulment of deed of sale over
Lot 981 and for partition of property among the surviving heirs of
Pablo Sevillo. The case was docketed as Civil Case No. B-1656 before the
Court of First Instance of Bian, Laguna. The Deed of Sale sought to be
annulled was allegedly executed by Candida Baylo, grandmother to the
Zarates, in favor of Gregorio, Samero, Martin and Andrea, surnamed Sevillo
and Isidro Zamora. After trial on the merits, the court rendered its Decision on
June 15, 1982 with the following dispositive portion:
WHEREFORE, in view of the foregoing considerations, judgment is hereby
rendered declaring the deed of sale entitled Bilihang Patuluyan ng Bahagi
ng Isang Lupang Panahanan purportedly executed by Candida Baylo on
August 25, 1971, acknowledged before Notary Public Apolinario S. Escueta
and entered in his notarial register as Doc. No. 124, Page No. 16, Book No. IV,
Series of 1971, as null and void and of no force and effect, and the
representative of the estate of the plaintiff Cirila Baylo Carolasan and
the defendants Gregorio Sevillo, Samero Sevillo, Maltin Sevillo,
Andrea Sevillo and Isidro Zamora, as the surviving spouse of
Consolacion Sevillo, are hereby ordered to partition Lot No. 981 of the
Bian Estate, situated in Tubigan, Bian, Laguna if they are able to agree among
themselves by proper instruments of conveyance, within 30 days from the
finality of this decision, which shall be confirmed by this Court, otherwise,
commissioners will be appointed to make the partition.
The defendants Gregorio Sevillo and Samero Sevillo are hereby jointly and
severally ordered to pay plaintiffs substituted heirs of the late Cirila Baylo
Carolasan, namely, Virginia C. Zarate, of Brgy. Real, Calamba, Laguna, Jacobo
C. Zarate, Victoria C. Zarate, Nemesio C. Zarate, Dominador C. Zarate and
Elvira C. Zarate, all of Brgy. Tubigan, Bian, Laguna, the sum of P3,000.00 for
attorneys fees and the sum of P2,000.00 for litigation expenses aside from
costs of suit.
The decision having become final and executory, a writ of execution was
issued on November 10, 1982. Lot 981 was surveyed and subdivided into six
lots, one lot having an area of 452.04 square meters, four lots with 86.49
square meters each and one lot with 66 square meters as footpath or
concession to a right of way.[2] By virtue of this adjudication, private
respondents Zarate procured TCT Nos. T-163388 and T-163393 over their
share in the property.
The losing parties in that case, the Sevillos, filed a case to annul the
aforesaid decision of the trial court in Civil Case No. B-1656 before the then
Intermediate Appellate Court (CA-G.R. SP No. 07657) alleging lack of
jurisdiction based on service of summons on unauthorized counsel. On March
31, 1986, the appellate court granted the Zarates motion to dismiss the case
on the ground of res judicata. The Supreme Court denied the petition for
review filed by the Sevillos for lack of merit on September 8, 1986 in G.R. No.
74505.[3]
On May 6, 1983, private respondents, the Zarates, filed Civil Case No.
2375, an ejectment suit against the Sevillos before the Municipal Trial Court of
Bian.[4] The municipal court ruled in favor of plaintiffs and ordered defendants
below, to immediately vacate the subject property and remove their houses
thereon and to pay rental in arrears, damages, attorneys fees and litigation
expenses.[5] Writs of execution and demolition were issued by the
court. Defendants filed a motion for reconsideration but before said motion
could be heard, they filed a petition for certiorari with the Regional Trial Court
of Laguna (Civil Case No. B-3106). The Sevillos alleged that the inferior court
did not have jurisdiction over the case which was filed more than a year after
the alleged unlawful entry. The Regional Trial Court held that the municipal
court had no jurisdiction over the complaint for ejectment. On appeal, the
Court of Appeals reversed the Regional Trial Courts decision on July 11, 1990
in CA-G.R. SP No. 18806. Affirming the appellate courts decision, the Supreme
Court denied the Sevillos petition for review in G.R. No. 94382 on April 10,
1991.[6]
On July 10, 1991, petitioner Iigo F. Carlet, as special administrator of the
estate of Pablo and Antonia Sevillo, filed the case at bar, an action for
64
Legal Ethics
reconveyance of property, docketed as Civil Case No. B-3582, against
the heirs of Cirila namely, Virginia, Jacobo, Victoria and Elvira, all surnamed
Zarate. Plaintiff therein prayed for a declaration of ownership over the entire
864-square-meter lot in the name of the estate of Jose Sevillo and/ or the
estate of Teodoro, Mariano, Vicente and Pablo Sevillo; that TCT Nos. T-163393
and T-163388 be annulled and a new one be issued in favor of said estate;
and that defendants be ordered to pay P20,000.00, attorneys fees in the
amount of P50,000.00 and expenses of litigation. [7]
Defendants Zarate moved to dismiss the case on the ground of res
judicata, claiming that the facts alleged in the complaint had already been
pleaded and passed upon by the lower court in Civil Case No. B-1656, the
Court of Appeals in CA-G.R. SP No. 07657 and by the Supreme Court in G.R.
No. 74505. They also opposed the motion for preliminary injunction saying it
was meant to delay and that the grounds relied upon had previously been
passed upon by the lower court in Civil Case Nos. B-1656 and 2375, the
Court of Appeals in CA-G.R. SP No. 18806 and the Supreme Court in G.R. No.
94382.
On October 8, 1991, the trial court issued an Order granting the motion
to dismiss Civil Case No. B-3582, stating that the issue of ownership had been
threshed out in the cases cited and that, as held by the Court of Appeals in
CA-G.R. SP No. 07657, plaintiff below merely tried to obtain the same relief by
way of a different action. The dispositive portion of said Order reads:
WHEREFORE, finding merit in the motion to dismiss, the same is hereby
granted and the above case is hereby ordered dismissed. As a consequence,
the motion for preliminary injunction is hereby denied.
Pursuant to well-settled pronouncements of the Supreme Court, the plaintiff
and her counsel are hereby ordered to explain within five (5) days from receipt
hereof why they should not be cited in contempt of court for forum-
shopping. Let a copy of this order be furnished the local IBP Chapter where
Atty. Modesto Jimenez belongs so that he may be administratively dealt with
in accordance with law.
SO ORDERED.
Carlets appeal to respondent court (CA-G.R. CV No. 36129) was dismissed
on January 11, 1994, with the Court of Appeals affirming the questioned Order
of the trial court in toto and ordering appellants and counsel to pay treble
costs.[8]
Hence, the instant petition for review where the issue to be resolved is
whether or not the adjudication in Civil Case No. B-1656 (including CA-G.R. SP
No. 07657 and SC-G.R. No. 74505) constitutes res judicata to the case at bar
(Civil Case No. B-3582).
Petitioner in the main contends that respondent court erred, because
there is no identity of cause of action between the case at bar (Civil Case No.
B-3582) and the cases cited, particularly Civil Case No. B-1656. The former is
an entirely different case which seeks the annulment of TCT No. 1599 and the
derivative titles issued in the name of private respondents Zarate. There is
likewise no identity of parties. According to petitioner, the plaintiff in Civil
Case No. 3582 is the Special Administrator representing the estate of Jose
Sevillo and Severa Bayran, who does not represent any of the private
respondents herein.[9]
We affirm the contested decision of the Court of Appeals.
When material facts or questions which were in issue in a former action
and were admitted or judicially determined there are conclusively settled by a
judgment rendered therein, such facts or questions become res judicata and
may not again be litigated in a subsequent action between the same parties
or their privies regardless of the form of the latter. This is the essence of res
judicata or bar by prior judgment.[10]
There are four requisites to successfully invoke res judicata: (a) finality of
the former judgment; (b) the court which rendered it had jurisdiction over the
subject matter and the parties; (c) it must be a judgment on the merits; and
(d) there must be between the first and second actions identity of parties,
subject matter and cause of action.[11] A judgment on the merits rendered in
the first case constitutes an absolute bar to the subsequent action when the
three identities are present.[12]
The attendance of the first three elements for the application of res
judicata is not disputed by petitioner. What needs to be determined is the
existence of identity in parties, subject matter and cause of action between
Civil Case Nos. B-1656 and B-3582.
Respondent court correctly concluded that there is identity of parties
between the case at bar (Civil Case No. B-3582), an action for reconveyance
of Lot No. 981, and Civil Case No. B-1656 for annulment of deed of sale and
partition involving the same Lot 981. Although Civil Case No. B-3582was
initiated by petitioner as administrator of the estate of Pablo and Antonia
Sevillo, the fact remains that he represents the same heirs of Pablo Sevillo,
namely Martin, Alejandra, Casimiro (or Samero) and Consolacion Sevillo who
were defendants in Civil Case No. B-1656, as the latter or their heirs would
eventually benefit should petitioner succeed in this case. Petitioners allegation
that he represents the heirs of Jose Sevillo and Severa Bayran Sevillo and,
therefore, including Pablo Sevillos three brothers, is belied by the very title of
the instant petition that he is the special administrator of the estate of Pablo
Sevillo and Antonia Palisoc, having been appointed as such on July 10, 1991.
[13]
It should further be stressed that absolute identity of parties is not
required for the principle of res judicata to be applicable.[14] A shared identity
of interest is sufficient to invoke the coverage of this principle. [15] While it is
true that the heirs of Pablo and Antonia Sevillo will still be judicially
determined at the intestate proceedings in which petitioner was named estate
special administrator, it is equally true that the defendants in Civil Case No. B-
1656, namely Consolacion, Alejandra, Samero and Martin Sevillo, are the
children and heirs of Pablo and Antonia Sevillo.
There is no dispute as regards the identity of subject matter since the
center of controversy in the instant case and in Civil Case No. B-1656 is Lot
No. 981 of the Bian Estate.
As regards identity of causes of action, the test often used in determining
whether causes of action are identical is to ascertain whether the same
evidence which is necessary to sustain the second action would have been
65
Legal Ethics
sufficient to authorize a recovery in the first, even if the forms or nature of the
two actions be different. If the same facts or evidence would sustain both
actions, the two actions are considered the same within the rule that the
judgment in the former is a bar to the subsequent action; otherwise, it is not.
[16]
The instant case (Civil Case No. B-3582), which is an action for the
reconveyance of Lot No. 981, is premised on the claim that TCT Nos. T-163388
and T-163393, belonging to private respondents as heirs of Candida Baylo and
Cirila Baylo Carolasan, are null and void.[17] To succeed entails presenting
evidence that the title acquired by the Zarates, upon which they founded their
complaint for partition in Civil Case No. B-1656, is in fact null and void.
In Civil Case No. B-1656, the Zarates prayer for partition of Lot No. 981
was anchored on the authenticity of their title thereto. Consequently, the case
provided the defendants, heirs of Pablo and Antonia Sevillo, the opportunity to
prove otherwise, i.e. that the Zarates title was null and void.However, they
failed to contest the matter before the trial court, the Court of Appeals and the
Supreme Court.[18] Inasmuch as the same evidence was needed in prosecuting
Civil Case No. B-1656 and the case at bar, there is identity of causes of
action. The additional fact alleged by petitioner - that Candida Baylo was not
in fact married to Pablo Sevillo and the reconstituted title in their name
reflects a misrepresentation is, under the circumstances, immaterial. Said
allegation could have been presented and heard in Civil Case No. B-1656.
[19]
The parties are bound not only as regards every matter offered and
received to sustain or defeat their claims or demand but as to any other
admissible matter which might have been offered for that purpose and of all
other matters that could have been adjudged in that case. [20]
Neither does the fact that Civil Case No. B-1656 was an action for
annulment of deed of sale and partition while Civil Case No. B-3582 is for
reconveyance of property alter the fact that both cases have an identical
cause of action. A change in the form of the action or in the relief sought does
not remove a proper case from the application of res judicata.[21]
Moreover, as early as March 31, 1986 in the original action for annulment
of judgment case, the then Intermediate Appellate Court immediately
recognized that:
Clearly, the relief sought in this action for annulment of judgment beyond
nullity of the decision in Civil Case No. B-1656, is an adjudication that herein
defendants are not entitled to Lot 981 of the Bian Estate or any part thereof,
on the stated grounds that said property in the name of Pablo Sevillo and
Candida Baylo under T.C.T. No. RT-926 was in fact owned by Pablo Sevillo and
Antonia Palisoc, and that in any event, Candida Baylo had ceded her interest
therein to plaintiffs and/or their predecessors in interest on March 31, 1969.
The self-same issue of ownership of Lot 981 was squarely raised in Civil Case
No. B-1656, herein defendants interest in said property having therein been
traversed by invoking instead an alleged sale of Lot 981 to Gregorio Sevillo on
August 25, 1971.
This amounts to employment of different forms of action to obtain identical
relief, in violation of the principle that one and the same cause of action shall
not twice be litigated (Yusingco v. Ong Hian, 42 SCRA 589). [22]
It is to the interest of the public that there should be an end to litigation
by the parties over a subject fully and fairly adjudicated - republicae ut sit
finis litium. And an individual should not be vexed twice for the same cause
- nemo debet bis vexari pro eadem causa. As this Court has had occasion
to rule:
The foundation principle upon which the doctrine of res judicata rests is that
parties ought not to be permitted to litigate the same issue more than once;
that, when a right or fact has been judicially tried and determined by a court
of competent jurisdiction, or an opportunity for such trial has been given, the
judgment of the court, so long as it remains unreversed, should be conclusive
upon the parties and those in privity with them in law or estate. [23]
With respect to the issue of forum-shopping for which the trial court
ordered counsel for petitioners, Atty. Modesto Jimenez, to explain why he
should not be cited in contempt,[24] this applies only when the two (or more)
cases are still pending.[25]
Clearly, despite knowledge of final judgments in Civil Case No. B-1656,
CA-G.R. CV No. 07657 and SC-G.R. No. 74505, as well as in G.R. No. 94382
(the ejectment case), counsel persisted in filing the case at bar for
reconveyance. Since this case is barred by the judgment in Civil Case No. B-
1656, there was no other pending case to speak of when it was filed in July
1991. Thus, the non-forum-shopping rule is not violated.
What counsel for petitioners did, however, in filing this present action to
relitigate the title to and partition over Lot No. 981, violates Canon 10 of the
Code of Professional Responsibility for lawyers which states that a lawyer
owes candor, fairness and good faith to the court. Rule 10.01 of the same
Canon states that (a) lawyer shall not do any falsehood x x x nor shall he
mislead or allow the court to be misled by any artifice. Counsels act of filing a
new case involving essentially the same cause of action is likewise abusive of
the courts processes and may be viewed as improper conduct tending to
directly impede, obstruct and degrade the administration of justice. [26]
WHEREFORE, the petition is hereby DENIED. The Decision of the Court
of Appeals dated January 11, 1994 is hereby AFFIRMED. Treble costs against
petitioner.
SO ORDERED.
66
Legal Ethics
ATTY. LUIS V. ARTIAGA JR., complainant,
vs.
ATTY. ENRIQUE C. VILLANUEVA, respondent.
In a sworn complaint filed with this Court on April 2, 1978, Atty. Luis V. Artiaga Jr.
sought the disbarment of Atty. Enrique C. Villanueva for alleged unethical
practices.
By a resolution dated May 24, 1978, this Court required respondent Atty. Enrique C.
Villanueva to answer the complaint. To the answer of respondent dated July 5,
1978, complainant Atty. Luis V. Artiaga Jr. filed his reply of July 31, 1978.
After considering the answer of respondent, this Court resolved to refer the case to
the Solicitor General for investigation, report and recommendation. The solicitor
General forwarded to the Court his Report and Recommendation dated May 4,
1988 with the finding that respondent was guilty of misconduct and with the
recommendation that he be suspended from the practice of law for a period of at
least six (6) months.
The complaint for disbarment arose from four (4) separate cases and several
incidental cases with Juliano Estolano, client of complainant Atty. Artiaga, Jr. and
Glicerio Aquino and/or Florentina Guanzon, clients of respondent Atty. Villanueva,
as adversaries in all of these cases involving the same property.
The factual background of these cases is summed up in the decision of the Court
of Appeals in CA-G.R. No. SP06600 dated November 16, 1977, a petition for
certiorari and prohibition, an offshoot of Civil Case No. 183-C for Recovery of
Possession filed by Estolano against Aquino and Guanzon before the Court of First
Instance of Laguna, Branch VI on June 11, 1974. Quoted hereunder are pertinent
portions of the Court's decision:
There were three parcels of land involved herein. All continuos
and adjoining to each other and located in Bambang, Los Banos,
Laguna. The first covered an area of 2.6793 hectares; the second,
an area of one hectare; and the third, an area of one-half hectare.
On July 20,1950, petitioner Juliano Estolano was issued original
Certificate of Title No. P-286 in his name over the first parcel.
There is no controversy, therefore, in respect of this first parcel,
the dispute being confined to the second and third parcels.
The second and third parcels were the object of Revocable Permit
Applications by Paciano Malabayabas and Canuto Suyo, both filed
on March 31, 1951. On June 12, 1956, Canuto transferred his right
over the third parcel to petitioner. On March 4, 1958, Malabayabas
also sold his rights over the second parcel to petitioner. On May
15, 1958, petitioner filed Insular Government Property Sales
Application No. 1772 (New) covering the second and third parcels.
On November 7, 1958, Glicerio Aquino, private respondent, filed
his Revocable Permit Application over an area of 8,000 square
meters, which was later found to cover a part of the first parcel
already titled in favor of petitioner and of the third parcel
transferred to him by Suyo. On December 29, 1958, private
respondent Florentina Guanzon, Aquino's sister-in-law, also filed
Revocable Permit Application over the second parcel.
Eventually, the conflicts were taken cognizance of by the Bureau
of Lands (B.L. Conflict No. 3-953, and B.L.O. Conflict No. 236). On
May 21, 1962, the Director of Lands rendered a Decision against
private respondents, as follows:
WHEREFORE, it is ordered that the Revocable
Permit Application No. V-14105 of Glicerio Aquino
be, as hereby it is, rejected, forfeiting in favor of
the Government whatever amount has been paid
on account thereof. The Revocable Permit
Application No. V-14142 of Florentina Guanzon
shall remain, as it is, rejected. Glicerio Aquino
and Florentina Guanzon shall vacate the land
within sixty (60) days from their receipt of a copy
hereof The new Insular Government Property
Sales Application of Julian Estolano shall be given
due course after the survey of the land covered
thereby.'
Private respondents moved for the reconsideration of the
aforequoted Decision, and the Director of Lands, in an Order of
August 13, 1962, amended his previous Decision as follows:
WHEREFORE, our decision of May 21, 1962, is
hereby modified by awarding to protesting
Glicerio Aquino preferential right to that area
actually occupied and cultivated by him,
indicated as portion "K" in the sketch drawn on
the back hereof, and amending the Insular
Government Property Sales Application (New) of
Juliano Estolano so as to exclude therefrom the
said portion. With this modification, the decision
stands confirmed.
Petitioner and private respondents appealed the amended
Decision of the Director of Lands to the Secretary of Agriculture
and Natural Resources who, in a Decision dated September 9,
1963, dismissed the appeals of private respondents, set aside the
Order of the Director of Lands dated August 13, 1962, and
affirmed the latter's Decision of May 21, 1962. Respondent
Guanzon moved for the reconsideration of the Secretary's
Decision but said Motion was denied.
Respondent Aquino appealed the Decision of the Secretary of
Agriculture and Natural Resources to the Office of the President of
the Philippines, which likewise affirmed the Decision appealed
from.
The Decision of the Director of Lands having become final, an
order of Execution thereof was issued on January 4, 1967, but this
notwithstanding, private respondents remained in possession of
the subject property. For failure to obtain possession thereof,
petitioner filed, on June 15, 1974, the principal case, (Civil Case
No. 183-C) in the lower court which eventually gave rise to the
proceedings now challenged in this Petition." (pp. 3-7, Decision in
CA-G.R. No. Sp-06600)
The restraining order issued in Civil Case No. 183-C on October 27, 1976 enjoining
the Director of Lands from enforcing the Order of Execution was set aside by the
67
Legal Ethics
Court of Appeals and the writ of prohibition prayed for by petitioner Estolano was
granted.
Meanwhile, on April 13, 1974, respondent's clients, Aquino and Guanzon, filed a
complaint for forcible entry against complainant's client, Estolano, in the Municipal
Court of Los Banos Laguna docketed as Civil Case No. 192. This case was
dismissed by the Municipal Court on January 5, 1977. On appeal to the Court of
First Instance (CFI), the order of dismissal was affirmed on November 4, 1979 in
Civil Case No. 386-C. No appeal was interposed from this decision, thus it became
final.
The third case for annulment of Estolano's title over the same land was filed by
respondent's client, Aquino, with the CFI on May 15, 1974 docketed as Civil Case
No. 179-C which was dismissed on April 23, 1976. On appeal to the Court of
Appeals which was docketed as CA-G.R. No. 62576-R, the dismissal by the trial
court was affirmed on June 25, 1981. On October 21, 1981, the case was
remanded to the trial court for execution.
Finally, while their petition for certiorari and prohibition over Civil Case No. 183-C
was pending before the Court of Appeals, respondent's clients, Aquino, filed a
complaint with the Court of Agrarian Relations (CAR) at San Pablo City docketed as
CAR Case No. 7043 against Estolano and the Director of Lands on July 1, 1977. On
July 2, 1977, the CAR issued an order requiring Estolano to respect Aquino's
possession. On May 18, 1979, the CAR dismissed the case and on appeal, its
dismissal was affirmed in a decision of the Court of Appeals dated February 5,
1981 in CA-G.R. No. 11635-CAR.
Respondent Atty. Enrique C. Villanueva is charged with the following unethical
practices: (1) That respondent had caused his client to perjure himself; (2) That he
lacks candor and respect toward his adversary and the courts; and (3) That he had
been abusive of the right of recourse to the courts.
We find respondent Atty. Villanueva guilty as above charged.
Anent the first charge, the complaint and amended complaint for forcible entry in
Civil Case No. 192 filed by respondent's client are clear proofs that respondent had
indeed caused his client Glicerio Aquino to perjure himself as to the date he lost
possession of the subject property so as to place the case within the jurisdiction of
the court.
Paragraph 5 of the original complaint filed on April 18, 1974 reads:
5. That sometime in the early part of 1960, defendant Julian
Estolano was able to dispossess plaintiffs spouses Glicerio Aquino
and Lorenzo Magpantay of a portion of the above-described parcel
of land ... (Emphasis supplied.) 1
Paragraph 5 of the Amended Complaint dated June 19, 1974 reads:
5. That sometime in the early part of June, 1973, defendant Julian
Estolano and Segundo de los Santos unlawfully dispossessed
and/or deprived or turned out plaintiffs Sps. Aquino and
Magpantay thru stealth, strategy, force and intimidation of and/or
possession over a certain portion (now caused by defendant
Segundo de los Santos to be planted to bananas now of less than
a year old as of the filing of the original complaint) located on the
southern portion of their above-described landholding . ....
(Emphasis supplied. ) 2
In the original complaint, respondent's client alleged that he was dispossessed of
the subject land in 1960, while in the amended complaint, he alleged it was in
June, 1973. Clearly, this was a ploy concocted by respondent to enable the court to
acquire jurisdiction over the case since a forcible entry case must be filed within
one year from the accrual of the cause of action under Rule 70, Section 1.
Such action of respondent counsel is a clear violation of his oath that "he will do no
falsehood nor consent to the doing of any in court." 3 A legal counsel is of course
expected to defend his client's cause with zeal, but not at the disregard of the
truth. 4 The duty of an attorney to the courts to employ, for the purpose of
maintaining the causes confided to him, such means as are consistent with truth
and honor cannot be overemphasized. 5 His high vocation is to correctly inform the
court upon the law and the facts of the case, and to aid it in doing justice and
arriving at correct conclusions. He violated his oath of office when he resorted to
deception. 6 Worse, he had caused his client to perjure himself thus subjecting the
latter to criminal prosecution for perjury brought before the Municipal Court of Los
Banos, Laguna. 7 Instead of safeguarding the interests of his client as his
responsibility dictates, he did exactly the opposite by causing his client to commit
a felony.
From the foregoing, the lack of candor of respondent counsel towards the court is
evident. This lack of candor and honesty to the courts and his adversary is further
demonstrated by other acts of respondent.
In Civil Case No. 192, respondent's clients were restored to the possession of the 2-
1/2 hectares of the untitled portion of subject property by virtue of a writ of
preliminary mandatory injunction issued by the court on May 21, 1974 upon filing
of a property bond by respondent. Upon the dismissal of the case on January 5,
1977, the writ of preliminary mandatory injunction was dissolved and respondent's
clients were ordered to restore possession of subject property to complainant's
client Estolano. However, respondent blocked the order by filing an urgent ex-parte
motion seeking clarification as to whether the dispositive portion of the order of
January 5, 1977 was immediately executory and asking the court to allow his
clients to remain in the meantime in the premises. Before the court could even
resolve the motion, respondent perfected his appeal from the order of January 5,
1977 on January 25, 1977. Thus, when the court's order affirming its previous order
came out on January 26,1977, the Provincial Sheriff of Laguna refused to
implement the orders of January 5 and 26, 1977 until the appeal has been finally
disposed of. On appeal, the CFI of Laguna, affirmed the questioned orders of the
Municipal Court. When the decision of the CFI became final because respondent
failed to appeal, his clients refused to abide by the Order of Execution issued by
the Municipal Court.
Consequently, Estolano filed an ex-parte motion asking that the Provincial Sheriff
be authorized to forcibly evict respondent's clients. On the date set for the hearing
of the motion, respondent did not appear and instead filed his "Opposition/
Manifestation" informing the court of a petition for certiorari filed against the
presiding judge before the Court of First Instance of Laguna. In deference to this
petition, the Municipal Court resolved to hold in abeyance the ex-parte motion of
Estolano until resolution of said petition.
Indeed, the manner in which respondent counsel handled the forcible entry case
filed against the client of complainant shows his total lack of candor and respect
for the courts and the rights of his adversary. He had employed every step
necessary to forestall complainant's client from taking rightful possession of
subject property. He has shown utter disregard of the proper rules of procedure to
suit his purpose. While he filed his urgent ex-parte motion for clarification, he
chose not to wait for its resolution and instead perfected his appeal to the Court of
First Instance. When finally the decision became executory because of his failure to
68
Legal Ethics
appeal to the Court of Appeals, he filed a petition for certiorari against the decision for a cause that had been previously rejected in the false hope of getting some
of the CFI which petition is obviously frivolous and a mere tactic to delay favorable action, somehow, thus, obstructing the administration of justice. 11 He
enforcement of the court's decision. In the meantime, the clients of respondents was derelict in his duty as counsel to maintain such actions or proceedings only as
refused to obey the order of execution. appears to him to be just, and such defenses only as he believes to be honestly
A lawyer should obey all lawful orders and rulings of the court. 8 He should have debatable under the law. 12 He had thus prostituted his office at the expense of
counseled his clients to submit to the order of the court instead of encouraging justice.
them to resist such order. The actuations of respondent of employing dilatory The practice of law is a privilege accorded only to those who measure up to certain
tactics by filing a clearly frivolous case amounts to obstruction of the standards of mental and moral fitness. 13 For a counsel who has been sworn to
administration of justice which constitutes misconduct and justifies disciplinary assist in the administration of justice and to uphold the rule of law, respondent has
action against him. 9 miserably failed to live up to the standards expected of a member of the Bar.
Respondents counsel further demonstrated his questionable motive by filing Instead of assisting in the speedy disposition of cases, he made a mockery of our
another case, this time for annulment of the title of complainant's client to the system of justice, thus deserving to be censured and penalized by this Court. No
other 2-1/2 hectares of subject land with the Court of First Instance of Laguna, doubt, respondent is guilty of gross misconduct in office.
Branch VI. This case was dismissed on the ground of res judicata and prescription. WHEREFORE, the respondent is hereby SUSPENDED INDEFINITELY from the
Respondent appealed this ruling to the Court of Appeals where it was pending practice of law from date of notice until such time that he can demonstrate to the
resolution at the time the instant complaint for disbarment was filed. The decision court that he has rehabilitated himself and deserves to resume the practice of law.
of the trial court was affirmed and remanded to the lower court for execution. Let this decision be noted in the bar records of respondent.
Not satisfied with the above-mentioned appeal, respondent counsel brought SO ORDERED.
another case against complainant's client this time before the Court of Agrarian
Relations (CAR Case No. 7043) for determination allegedly of who had a better
right over the subject property when he was well aware e of the absence of any
tenancy relationship between the parties.
An examination of the records shows that respondent did not disclose before the
Court of Agrarian Relations (CAR) prior law suits and decisions rendered relative to
the subject land. As a result, respondent was able to secure ex-parte from the CAR
a restraining order against the Director of Lands and Estolano on July 2, 1977. So
when the decision of the Court of First Instance of Laguna in Civil Case No. 386-C
affirming the decision of the trial court in the forcible entry case No. 192 was
rendered on November 4, 1977 ordering the immediate restoration of subject land
to Estolano, because of the restraining order issued by the agrarian court, the
execution of the said decision cannot be fully satisfied, To make matters worse,
respondent even filed a criminal complaint against complainant and his client,
among others, for alleged violation of P.D. 316 and the restraining order issued by
the Court of Agrarian Relations in CAR Case No. 7043. 10 The CAR dismissed this
case and on appeal, the dismissal was affirmed.
We also note that after respondent filed the case with the CAR on July 1, 1 977, he
filed on July 5, 1977 in Civil Case No. 179-C before the CFI of Laguna, a motion to
dismiss the present action without prejudice to his clients' right to prosecute their
present action with the Court of Agrarian Relations. The lower court denied the
motion since it had already dismissed the case on some other ground and their
appeal was already perfected without plaintiffs' manifesting that they are
abandoning their appeal. Thus, respondent was able to elevate two (2) separate
appeals--CA-G.R. No. 62576-R re: annulment of title (Civil Case No. 179-C) and CA-
G.R. No. 11635-CAR arising from the CAR Case No. 7043, before the Court of
Appeals over the same issues involving the same subject property titled to
Estolano.
The cause of respondent's clients is obviously bereft of merit. Respondent was
aware of this fact so he resorted to forum shopping, continuously seeking the court
where he may possibly obtain favorable judgment, thereby adding to the already
clogged dockets of the courts with the unmeritorious cases he filed. He grossly
abused his right of recourse to the courts by filing multiple petitions or complaints
69
Legal Ethics
SURIGAO MINERAL RESERVATION BOARD and the EXECUTIVE
SECRETARY, petitioners,
vs.
HON. GAUDENCIO CLORIBEL, as Judge of the Court of First Instance of
Manila
and MAC-ARTHUR INTERNATIONAL MINERALS CO., respondents.
Original action for certiorari and prohibition, with preliminary injunction, to restrain
the Honorable Gaudencio Cloribel, as Judge of the Court of First Instance of Manila,
from continuing with the hearing of Civil Case No. 67400 of said Court, and from
enforcing a restraining order issued therein on November 16, 1966, as well as to
annul an order of respondent Judge, in the same case, dated December 9, 1966.
It appears that, on or about December 2, 1964, the Surigao Mineral Reservations
Board hereinafter referred to as the Board issued an Invitation to Bid, on May
12, 1965, for the exploration and development of mineral deposits in a portion of
the Surigao Mineral Reservation, in the province of Surigao, more particularly
described in said Invitation to Bid; that, in response thereto, two (2) bids were
filed, namely one (1) by the Mac-Arthur International Minerals Co. hereinafter
referred to as the Company and the other by Benguet Consolidated, Inc.; that,
these two (2) bids were referred by the Board to an Evaluation Committee created
therefor; that both bids were later rejected by the Board, upon consideration of the
report thereon of said Committee; and that, a reconsideration, sought by the
Company, of the action thus taken by the Board was, thereafter, denied by the
latter.
Thereupon, or on September 1, 1966, the Company filed, with the Court of First
Instance of Manila, the petition in said Case No. 67400, against the Board and the
Executive Secretary as the officer "responsible for the approval and
authorization of public biddings and the acceptance, handling and processing of all
bids" seemingly to annul the proceedings before said Board leading to the
rejection of the bid of the Company and to prevent the Board, the Evaluation
Committee and the Executive Secretary from taking such steps as may impair the
rights that the Company claims to have acquired in consequence of its bid.
After requiring petitioners herein, as respondents in said Case No. 67400, to
answer the petition therein, or on November 16, 1966, respondent Judge issued a
restraining order directing petitioners herein, their agents and/or representatives,
to refrain from executing the acts adverted to above. On December 1, 1966,
petitioners herein filed their answer to said Case No. 67400, with a motion to
dismiss and an opposition to the writ of preliminary injunction prayed for by the
Company. Acting on said motion, on December 9, 1966, respondent Judge denied
the same and set the case for hearing.
Presently, or on January 14, 1967, petitioners herein commenced the present
action against respondent Judge and the Company, for the purpose indicated at
the beginning of this decision. On January 19, 1967, this Court required
respondents herein to file their answer, not a motion to dismiss, as well as issued
the writ of preliminary, injunction prayed for by the petitioners. Subsequently,
respondents filed their answer and later moved to dissolve or amend said writ of
preliminary injunction; but we denied the motion.
The main issue in this case is whether or not respondent Judge had committed a
grave abuse of discretion, amounting to excess of jurisdiction, in issuing the
restraining order dated November 16, 1966. This question, in turn, hinges on
whether or not the records of said Case No. 67400 disclose that the Company has
no cause of action against petitioners herein.
In this connection, it should be noted that the petition in said case is predicated
like the answer in the case at bar upon the theory that the Invitation to Bid
issued by the Board constitutes an "offer", which was unqualifiedly accepted by
the bid submitted by the Company, thereby resulting according to the latter's
contention in both cases into a perfected contract, which is binding upon the
Board, thereby imposing upon the same the obligation to implement said alleged
contract and to refrain from entering into negotiations or doing anything tending to
defeat or impair the supposed rights of the Company under said contract.
This theory is, however, absolutely untenable. An Invitation to Bid, is not an "offer",
which, if accepted, matures into a contract. In the language of Article 1326 of our
Civil Code, "advertisements for bidders are simply invitations to
make proposals and the advertiser is not bound to accept the highest or lowest
bidder, unless the contrary appears."1 The Company does not even allege that "the
contrary appears."
Worse, still, the Invitation to Bid, issued by the Board, provided, inter alia, that "the
Government reserves the right to reject any and all bids, waive any defect of form
or accept such bid as may be deemed most advantageous to it." In other words,
acceptance by the Board of a given bid is necessary for a contract to exist
between the Board or the Government and any bidder, regardless of the terms and
conditions of his bid. This reservation of the "right" of the Board "to
reject any and all bids," is one of the terms and conditions of the Invitation to Bid
which the Company has accepted and, hence, binds the same. 2 As a consequence,
it is now in estoppel to object to or assail the exercise of said "right" by the Board. 3
Then, contrary to the conclusions made in the pleadings of the Company, the same
has not, in fact, adhered faithfully to the terms and conditions of said Invitation to
Bid. Indeed, the latter explicitly declares that "bids not accompanied by bid
bonds will be rejected." Admittedly, the bid of the Company had been submitted
without the requisite bond.
It is thus manifest, from the records of said Case No. 67400, that the Company had
no cause of action against petitioners herein and that, accordingly, respondent
Judge committed a grave abuse of discretion, amounting to excess of jurisdiction,
in issuing its restraining order of November 16, 1966, and its order of December 9,
1966, refusing, in effect, to set aside said order of November 16, 1966. 4
WHEREFORE, said orders of respondent Judge dated November 16, and December
9, 1966, are hereby annulled and the writ of preliminary injunction issued in the
present case made permanent, with costs against respondent, Mac-Arthur
International Minerals Company. Writ granted. It is so ordered.
70
Legal Ethics
IN THE MATTER OF PROCEEDINGS FOR DISCIPLINARY ACTION AGAINST
ATTY. VICENTE RAUL ALMACEN In L-27654, ANTONIO H. CALERO,
vs.
VIRGINIA Y. YAPTINCHAY.
Before us is Atty. Vicente Raul Almacen's "Petition to Surrender Lawyer's Certificate
of Title," filed on September 25, 1967, in protest against what he therein asserts is
"a great injustice committed against his client by this Supreme Court." He indicts
this Court, in his own phrase, as a tribunal "peopled by men who are calloused to
our pleas for justice, who ignore without reasons their own applicable decisions
and commit culpable violations of the Constitution with impunity." His client's he
continues, who was deeply aggrieved by this Court's "unjust judgment," has
become "one of the sacrificial victims before the altar of hypocrisy." In the same
breath that he alludes to the classic symbol of justice, he ridicules the members of
this Court, saying "that justice as administered by the present members of the
Supreme Court is not only blind, but also deaf and dumb." He then vows to argue
the cause of his client "in the people's forum," so that "the people may know of the
silent injustice's committed by this Court," and that "whatever mistakes, wrongs
and injustices that were committed must never be repeated." He ends his petition
with a prayer that
... a resolution issue ordering the Clerk of Court to receive the
certificate of the undersigned attorney and counsellor-at-law IN
TRUST with reservation that at any time in the future and in the
event we regain our faith and confidence, we may retrieve our
title to assume the practice of the noblest profession.
He reiterated and disclosed to the press the contents of the aforementioned
petition. Thus, on September 26, 1967, the Manila Times published statements
attributed to him, as follows:
Vicente Raul Almacen, in an unprecedented petition, said he did it
to expose the tribunal's "unconstitutional and obnoxious" practice
of arbitrarily denying petitions or appeals without any reason.
Because of the tribunal's "short-cut justice," Almacen deplored,
his client was condemned to pay P120,000, without knowing why
he lost the case.
xxx xxx xxx
There is no use continuing his law practice, Almacen said in this
petition, "where our Supreme Court is composed of men who are
calloused to our pleas for justice, who ignore without reason their
own applicable decisions and commit culpable violations of the
Constitution with impunity.
xxx xxx xxx
He expressed the hope that by divesting himself of his title by
which he earns his living, the present members of the Supreme
Court "will become responsive to all cases brought to its attention
without discrimination, and will purge itself of those
unconstitutional and obnoxious "lack of merit" or "denied
resolutions. (Emphasis supplied)
Atty. Almacen's statement that
... our own Supreme Court is composed of men who are calloused
to our pleas of [sic] justice, who ignore their own applicable
decisions and commit culpable violations of the Constitution with
impunity
was quoted by columnist Vicente Albano Pacis in the issue of the Manila
Chronicle of September 28, 1967. In connection therewith, Pacis commented that
Atty. Almacen had "accused the high tribunal of offenses so serious that the Court
must clear itself," and that "his charge is one of the constitutional bases for
impeachment."
The genesis of this unfortunate incident was a civil case entitled Virginia Y.
Yaptinchay vs. Antonio H. Calero, 1 in which Atty. Almacen was counsel for the
defendant. The trial court, after due hearing, rendered judgment against his client.
On June 15, 1966 Atty. Almacen received a copy of the decision. Twenty days later,
or on July 5, 1966, he moved for its reconsideration. He served on the adverse
counsel a copy of the motion, but did not notify the latter of the time and place of
hearing on said motion. Meanwhile, on July 18, 1966, the plaintiff moved for
execution of the judgment. For "lack of proof of service," the trial court denied both
motions. To prove that he did serve on the adverse party a copy of his first motion
for reconsideration, Atty. Almacen filed on August 17, 1966 a second motion for
reconsideration to which he attached the required registry return card. This second
motion for reconsideration, however, was ordered withdrawn by the trial court on
August 30, 1966, upon verbal motion of Atty. Almacen himself, who, earlier, that is,
on August 22, 1966, had already perfected the appeal. Because the plaintiff
interposed no objection to the record on appeal and appeal bond, the trial court
elevated the case to the Court of Appeals.
But the Court of Appeals, on the authority of this Court's decision in Manila Surety
& Fidelity Co., Inc. vs. Batu Construction & Co., L-16636, June 24, 1965, dismissed
the appeal, in the following words:
Upon consideration of the motion dated March 27, 1967, filed by
plaintiff-appellee praying that the appeal be dismissed, and of the
opposition thereto filed by defendant-appellant; the Court
RESOLVED TO DISMISS, as it hereby dismisses, the appeal, for the
reason that the motion for reconsideration dated July 5, 1966 (pp.
90-113, printed record on appeal) does not contain a notice of
time and place of hearing thereof and is, therefore, a useless
piece of paper (Manila Surety & Fidelity Co., Inc. vs. Batu
Construction & Co., G.R. No. L-16636, June 24, 1965), which did
not interrupt the running of the period to appeal, and,
consequently, the appeal was perfected out of time.
Atty. Almacen moved to reconsider this resolution, urging that Manila Surety &
Fidelity Co. is not decisive. At the same time he filed a pleading entitled "Latest
decision of the Supreme Court in Support of Motion for Reconsideration,"
citing Republic of the Philippines vs. Gregorio A. Venturanza, L-20417, decided by
this Court on May 30, 1966, as the applicable case. Again, the Court of Appeals
denied the motion for reconsideration, thus:
Before this Court for resolution are the motion dated May 9, 1967
and the supplement thereto of the same date filed by defendant-
appellant, praying for reconsideration of the resolution of May 8,
1967, dismissing the appeal.
Appellant contends that there are some important distinctions
between this case and that of Manila Surety and Fidelity Co., Inc.
vs. Batu Construction & Co., G.R. No. L- 16636, June 24, 1965,
relied upon by this Court in its resolution of May 8, 1967.
71
Legal Ethics
Appellant further states that in the latest case, Republic vs.
Venturanza, L-20417, May 30, 1966, decided by the Supreme
Court concerning the question raised by appellant's motion, the
ruling is contrary to the doctrine laid down in the Manila Surety &
Fidelity Co., Inc. case.
There is no substantial distinction between this case and that of
Manila Surety & Fidelity Co.
In the case of Republic vs. Venturanza, the resolution denying the
motion to dismiss the appeal, based on grounds similar to those
raised herein was issued on November 26, 1962, which was much
earlier than the date of promulgation of the decision in the Manila
Surety Case, which was June 24, 1965. Further, the resolution in
the Venturanza case was interlocutory and the Supreme Court
issued it "without prejudice to appellee's restoring the point in the
brief." In the main decision in said case (Rep. vs. Venturanza the
Supreme Court passed upon the issue sub silencio presumably
because of its prior decisions contrary to the resolution of
November 26, 1962, one of which is that in the Manila Surety and
Fidelity case. Therefore Republic vs. Venturanza is no authority on
the matter in issue.
Atty. Almacen then appealed to this Court by certiorari. We refused to take the
case, and by minute resolution denied the appeal. Denied shortly thereafter was
his motion for reconsideration as well as his petition for leave to file a second
motion for reconsideration and for extension of time. Entry of judgment was made
on September 8, 1967. Hence, the second motion for reconsideration filed by him
after the Said date was ordered expunged from the records.
It was at this juncture that Atty. Almacen gave vent to his disappointment by filing
his "Petition to Surrender Lawyer's Certificate of Title," already adverted to a
pleading that is interspersed from beginning to end with the insolent
contemptuous, grossly disrespectful and derogatory remarks hereinbefore
reproduced, against this Court as well as its individual members, a behavior that is
as unprecedented as it is unprofessional.
Nonetheless we decided by resolution dated September 28, 1967 to withhold
action on his petition until he shall have actually surrendered his certificate.
Patiently, we waited for him to make good his proffer. No word came from him. So
he was reminded to turn over his certificate, which he had earlier vociferously
offered to surrender, so that this Court could act on his petition. To said reminder
he manifested "that he has no pending petition in connection with Case G.R. No. L-
27654, Calero vs. Yaptinchay, said case is now final and executory;" that this
Court's September 28, 1967 resolution did not require him to do either a positive
or negative act; and that since his offer was not accepted, he "chose to pursue the
negative act."
In the exercise of its inherent power to discipline a member of the bar for
contumely and gross misconduct, this Court on November 17, 1967 resolved to
require Atty. Almacen to show cause "why no disciplinary action should be taken
against him." Denying the charges contained in the November 17 resolution, he
asked for permission "to give reasons and cause why no disciplinary action should
be taken against him ... in an open and public hearing." This Court resolved (on
December 7) "to require Atty. Almacen to state, within five days from notice
hereof, his reasons for such request, otherwise, oral argument shall be deemed
waived and incident submitted for decision." To this resolution he manifested that
since this Court is "the complainant, prosecutor and Judge," he preferred to be
heard and to answer questions "in person and in an open and public hearing" so
that this Court could observe his sincerity and candor. He also asked for leave to
file a written explanation "in the event this Court has no time to hear him in
person." To give him the ampliest latitude for his defense, he was allowed to file a
written explanation and thereafter was heard in oral argument.
His written answer, as undignified and cynical as it is unchastened, offers -no
apology. Far from being contrite Atty. Almacen unremittingly repeats his jeremiad
of lamentations, this time embellishing it with abundant sarcasm and innuendo.
Thus:
At the start, let me quote passages from the Holy Bible, Chapter
7, St. Matthew:
"Do not judge, that you may not be judged. For
with what judgment you judge, you shall be
judged, and with what measure you measure, it
shall be measured to you. But why dost thou see
the speck in thy brother's eye, and yet dost not
consider the beam in thy own eye? Or how can
thou say to thy brother, "Let me cast out the
speck from thy eye"; and behold, there is a beam
in thy own eye? Thou hypocrite, first cast out the
beam from thy own eye, and then thou wilt see
clearly to cast out the speck from thy brother's
eyes."
"Therefore all that you wish men to do to you,
even to do you also to them: for this is the Law
and the Prophets."
xxx xxx xxx
Your respondent has no intention of disavowing the statements
mentioned in his petition. On the contrary, he refirms the truth of
what he stated, compatible with his lawyer's oath that he will do
no falsehood, nor consent to the doing of any in court. But he
vigorously DENY under oath that the underscored statements
contained in the CHARGE are insolent, contemptuous, grossly
disrespectful and derogatory to the individual members of the
Court; that they tend to bring the entire Court, without
justification, into disrepute; and constitute conduct unbecoming of
a member of the noble profession of law.
xxx xxx xxx
Respondent stands four-square that his statement is borne by
TRUTH and has been asserted with NO MALICE BEFORE AND
AFTER THOUGHT but mainly motivated with the highest interest of
justice that in the particular case of our client, the members have
shown callousness to our various pleas for JUSTICE, our pleadings
will bear us on this matter, ...
xxx xxx xxx
To all these beggings, supplications, words of humility, appeals for
charity, generosity, fairness, understanding, sympathy and above
all in the highest interest of JUSTICE, what did we get from this
COURT? One word, DENIED, with all its hardiness and insensibility.
That was the unfeeling of the Court towards our pleas and
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prayers, in simple word, it is plain callousness towards our
particular case.
xxx xxx xxx
Now that your respondent has the guts to tell the members of the
Court that notwithstanding the violation of the Constitution, you
remained unpunished, this Court in the reverse order of natural
things, is now in the attempt to inflict punishment on your
respondent for acts he said in good faith.
Did His Honors care to listen to our pleadings and supplications
for JUSTICE, CHARITY, GENEROSITY and FAIRNESS? Did His Honors
attempt to justify their stubborn denial with any semblance of
reason, NEVER. Now that your respondent is given the opportunity
to face you, he reiterates the same statement with emphasis, DID
YOU? Sir. Is this. the way of life in the Philippines today, that even
our own President, said: "the story is current, though
nebulous ,is to its truth, it is still being circulated that justice in
the Philippines today is not what it is used to be before the war.
There are those who have told me frankly and brutally that justice
is a commodity, a marketable commodity in the Philippines."
xxx xxx xxx
We condemn the SIN, not the SINNER. We detest the ACTS, not
the ACTOR. We attack the decision of this Court, not the
members. ... We were provoked. We were compelled by force of
necessity. We were angry but we waited for the finality of the
decision. We waited until this Court has performed its duties. We
never interfered nor obstruct in the performance of their duties.
But in the end, after seeing that the Constitution has placed
finality on your judgment against our client and sensing that you
have not performed your duties with "circumspection, carefulness,
confidence and wisdom", your Respondent rise to claim his God
given right to speak the truth and his Constitutional right of free
speech.
xxx xxx xxx
The INJUSTICES which we have attributed to this Court and the
further violations we sought to be prevented is impliedly shared
by our President. ... .
xxx xxx xxx
What has been abhored and condemned, are the very things that were applied to
us. Recalling Madam Roland's famous apostrophe during the French revolution, "O
Liberty, what crimes are committed in thy name", we may dare say, "O JUSTICE,
what technicalities are committed in thy name' or more appropriately, 'O JUSTICE,
what injustices are committed in thy name."
xxx xxx xxx
We must admit that this Court is not free from commission of any
abuses, but who would correct such abuses considering that yours
is a court of last resort. A strong public opinion must be generated
so as to curtail these abuses.
xxx xxx xxx
The phrase, Justice is blind is symbolize in paintings that can be
found in all courts and government offices. We have added only
two more symbols, that it is also deaf and dumb. Deaf in the
sense that no members of this Court has ever heard our cries for
charity, generosity, fairness, understanding sympathy and for
justice; dumb in the sense, that inspite of our beggings,
supplications, and pleadings to give us reasons why our appeal
has been DENIED, not one word was spoken or given ... We refer
to no human defect or ailment in the above statement. We only
describe the. impersonal state of things and nothing more.
xxx xxx xxx
As we have stated, we have lost our faith and confidence in the
members of this Court and for which reason we offered to
surrender our lawyer's certificate, IN TRUST ONLY. Because what
has been lost today may be regained tomorrow. As the offer was
intended as our self-imposed sacrifice, then we alone may decide
as to when we must end our self-sacrifice. If we have to choose
between forcing ourselves to have faith and confidence in the
members of the Court but disregard our Constitution and to
uphold the Constitution and be condemned by the members of
this Court, there is no choice, we must uphold the latter.
But overlooking, for the nonce, the vituperative chaff which he claims is not
intended as a studied disrespect to this Court, let us examine the grain of his
grievances.
He chafes at the minute resolution denial of his petition for review. We are quite
aware of the criticisms2expressed against this Court's practice of rejecting petitions
by minute resolutions. We have been asked to do away with it, to state the facts
and the law, and to spell out the reasons for denial. We have given this suggestion
very careful thought. For we know the abject frustration of a lawyer who tediously
collates the facts and for many weary hours meticulously marshalls his arguments,
only to have his efforts rebuffed with a terse unadorned denial. Truth to tell,
however, most petitions rejected by this Court are utterly frivolous and ought
never to have been lodged at all.3 The rest do exhibit a first-impression cogency,
but fail to, withstand critical scrutiny. By and large, this Court has been generous in
giving due course to petitions for certiorari.
Be this as it may, were we to accept every case or write a full opinion for every
petition we reject, we would be unable to carry out effectively the burden placed
upon us by the Constitution. The proper role of the Supreme Court, as Mr. Chief
Justice Vinson of the U.S. Supreme Court has defined it, is to decide "only those
cases which present questions whose resolutions will have immediate importance
beyond the particular facts and parties involved." Pertinent here is the observation
of Mr. Justice Frankfurter in Maryland vs. Baltimore Radio Show, 94 L. ed 562, 566:
A variety of considerations underlie denials of the writ, and as to
the same petition different reasons may read different justices to
the same result ... .
Since there are these conflicting, and, to the uninformed, even
confusing reasons for denying petitions for certiorari, it has been
suggested from time to time that the Court indicate its reasons for
denial. Practical considerations preclude. In order that the Court
may be enabled to discharge its indispensable duties, Congress
has placed the control of the Court's business, in effect, within the
Court's discretion. During the last three terms the Court disposed
of 260, 217, 224 cases, respectively, on their merits. For the same
three terms the Court denied, respectively, 1,260, 1,105,1,189
73
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petitions calling for discretionary review. If the Court is to do its
work it would not be feasible to give reasons, however brief, for
refusing to take these cases. The tune that would be required is
prohibitive. Apart from the fact that as already indicated different
reasons not infrequently move different members of the Court in
concluding that a particular case at a particular time makes
review undesirable.
Six years ago, in Novino, et al., vs. Court of Appeals, et al., 1,21098, May 31, 1963
(60 O.G. 8099), this Court, through the then Chief Justice Cesar Bengzon,
articulated its considered view on this matter. There, the petitioners counsel urged
that a "lack of merit" resolution violates Section 12 of Article VIII of the
Constitution. Said Chief Justice Bengzon:
In connection with identical short resolutions, the same question
has been raised before; and we held that these "resolutions" are
not "decisions" within the above constitutional requirement. They
merely hold that the petition for review should not be entertained
in view of the provisions of Rule 46 of the Rules of Court; and even
ordinary lawyers have all this time so understood it. It should be
remembered that a petition to review the decision of the Court of
Appeals is not a matter of right, but of sound judicial discretion;
and so there is no need to fully explain the court's denial. For one
thing, the facts and the law are already mentioned in the Court of
Appeals' opinion.
By the way, this mode of disposal has as intended helped
the Court in alleviating its heavy docket; it was patterned after
the practice of the U.S. Supreme Court, wherein petitions for
review are often merely ordered "dismissed".
We underscore the fact that cases taken to this Court on petitions
for certiorari from the Court of Appeals have had the benefit of appellate review.
Hence, the need for compelling reasons to buttress such petitions if this Court is to
be moved into accepting them. For it is axiomatic that the supervisory jurisdiction
vested upon this Court over the Court of Appeals is not intended to give every
losing party another hearing. This axiom is implied in sec. 4 of Rule 45 of the Rules
of Court which recites:
Review of Court of Appeals' decision discretionary.A review is
not a matter of right but of sound judicial discretion, and will be
granted only when there are special and important reasons
therefor. The following, while neither controlling nor fully
measuring the court's discretion, indicate the character of reasons
which will be considered:
(a) When the Court of Appeals has decided a question of
substance, not theretofore determined by the Supreme Court, nor
has decided it in a way probably not in accord with law or with the
applicable decisions of the Supreme Court;
(b) When the Court of Appeals has so far departed from the
accepted and usual course of judicial proceedings, or so far
sanctioned such departure by the lower court, as to call for the
exercise of the power of supervision.
Recalling Atty. Almacen's petition for review, we found, upon a thoroughgoing
examination of the pleadings. and records, that the Court of Appeals had fully and
correctly considered the dismissal of his appeal in the light of the law and
applicable decisions of this Court. Far from straying away from the "accepted and
usual course of judicial proceedings," it traced the procedural lines etched by this
Court in a number of decisions. There was, therefore, no need for this Court to
exercise its supervisory power.
As a law practitioner who was admitted to the Bar as far back as 1941, Atty.
Almacen knew or ought to have known that for a motion for reconsideration
to stay the running of the period of appeal, the movant must not only serve a copy
of the motion upon the adverse party (which he did), but also notify the adverse
party of the time and place of hearing (which admittedly he did not). This rule was
unequivocally articulated in Manila Surety & Fidelity vs. Batu Construction & Co.,
supra:
The written notice referred to evidently is prescribed for motions
in general by Rule 15, Sections 4 and 5 (formerly Rule 26), which
provides that such notice shall state the time, and place of
hearing and shall be served upon all the Parties concerned at
least three days in advance. And according to Section 6 of the
same Rule no motion shall be acted upon by the court without
proof of such notice. Indeed it has been held that in such a case
the motion is nothing but a useless piece of paper (Philippine
National Bank v. Damasco, I,18638, Feb. 28, 1963; citing Manakil
v. Revilla, 42 Phil. 81; Roman Catholic Bishop of Lipa v.
Municipality of Unisan, 41 Phil. 866; and Director of Lands vs.
Sanz, 45 Phil. 117). The reason is obvious: Unless the movant sets
the time and place of hearing the Court would have no way to
determine whether that party agrees to or objects to the motion,
and if he objects, to hear him on his objection, since the Rules
themselves do not fix any period within which he may file his
reply or opposition.
If Atty. Almacen failed to move the appellate court to review the lower court's
judgment, he has only himself to blame. His own negligence caused the forfeiture
of the remedy of appeal, which, incidentally, is not a matter of right. To shift away
from himself the consequences of his carelessness, he looked for a "whipping boy."
But he made sure that he assumed the posture of a martyr, and, in offering to
surrender his professional certificate, he took the liberty of vilifying this Court and
inflicting his exacerbating rancor on the members thereof. It would thus appear
that there is no justification for his scurrilous and scandalous outbursts.
Nonetheless we gave this unprecedented act of Atty. Almacen the most
circumspect consideration. We know that it is natural for a lawyer to express his
dissatisfaction each time he loses what he sanguinely believes to be a meritorious
case. That is why lawyers are given 'wide latitude to differ with, and voice their
disapproval of, not only the courts' rulings but, also the manner in which they are
handed down.
Moreover, every citizen has the right to comment upon and criticize the actuations
of public officers. This right is not diminished by the fact that the criticism is aimed
at a judicial authority,4 or that it is articulated by a lawyer.5 Such right is especially
recognized where the criticism concerns a concluded litigation, 6 because then the
court's actuations are thrown open to public consumption. 7"Our decisions and all
our official actions," said the Supreme Court of Nebraska, 8 "are public property,
and the press and the people have the undoubted right to comment on them,
criticize and censure them as they see fit. Judicial officers, like other public
74
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servants, must answer for their official actions before the chancery of public
opinion."
The likely danger of confusing the fury of human reaction to an attack on one's
integrity, competence and honesty, with "imminent danger to the administration of
justice," is the reason why courts have been loath to inflict punishment on those
who assail their actuations.9 This danger lurks especially in such a case as this
where those who Sit as members of an entire Court are themselves collectively the
aggrieved parties.
Courts thus treat with forbearance and restraint a lawyer who vigorously assails
their actuations. 10 For courageous and fearless advocates are the strands that
weave durability into the tapestry of justice. Hence, as citizen and officer of the
court, every lawyer is expected not only to exercise the right, but also to consider
it his duty to expose the shortcomings and indiscretions of courts and judges. 11
Courts and judges are not sacrosanct. 12 They should and expect critical evaluation
of their performance. 13 For like the executive and the legislative branches, the
judiciary is rooted in the soil of democratic society, nourished by the periodic
appraisal of the citizens whom it is expected to serve.
Well-recognized therefore is the right of a lawyer, both as an officer of the court
and as a citizen, to criticize in properly respectful terms and through legitimate
channels the acts of courts and judges. The reason is that
An attorney does not surrender, in assuming the important place
accorded to him in the administration of justice, his right as a
citizen to criticize the decisions of the courts in a fair and
respectful manner, and the independence of the bar, as well as of
the judiciary, has always been encouraged by the courts. (In re
Ades, 6 F Supp. 487) .
Criticism of the courts has, indeed, been an important part of the traditional work
of the bar. In the prosecution of appeals, he points out the errors of lower courts. In
written for law journals he dissects with detachment the doctrinal pronouncements
of courts and fearlessly lays bare for -all to see that flaws and inconsistence" of the
doctrines (Hill v. Lyman, 126 NYS 2d 286). As aptly stated by Chief Justice
Sharswood in Ex Parte Steinman, 40 Am. Rep. 641:
No class of the community ought to be allowed freer scope in the
expansion or publication of opinions as to the capacity,
impartiality or integrity of judges than members of the bar. They
have the best opportunities for observing and forming a correct
judgment. They are in constant attendance on the courts. ... To
say that an attorney can only act or speak on this subject under
liability to be called to account and to be deprived of his
profession and livelihood, by the judge or judges whom he may
consider it his duty to attack and expose, is a position too
monstrous to be
entertained. ... .
Hence, as a citizen and as Officer of the court a lawyer is expected not only to
exercise the right, but also to consider it his duty to avail of such right. No law may
abridge this right. Nor is he "professionally answerable for a scrutiny into the
official conduct of the judges, which would not expose him to legal animadversion
as a citizen." (Case of Austin, 28 Am. Dee. 657, 665).
Above all others, the members of the bar have the beat
Opportunity to become conversant with the character and
efficiency of our judges. No class is less likely to abuse the
privilege, as no other class has as great an interest in the
preservation of an able and upright bench. (State Board of
Examiners in Law v. Hart, 116 N.W. 212, 216)
To curtail the right of a lawyer to be critical of the foibles of courts and judges is to
seal the lips of those in the best position to give advice and who might consider it
their duty to speak disparagingly. "Under such a rule," so far as the bar is
concerned, "the merits of a sitting judge may be rehearsed, but as to his demerits
there must be profound silence." (State v. Circuit Court, 72 N.W. 196)
But it is the cardinal condition of all such criticism that it shall be bona fide, and
shall not spill over the walls of decency and propriety. A wide chasm exists
between fair criticism, on the One hand, and abuse and slander of courts and the
judges thereof, on the other. Intemperate and unfair criticism is a gross violation of
the duty of respect to courts. It is Such a misconduct that subjects a lawyer to
disciplinary action.
For, membership in the Bar imposes upon a person obligations and duties which
are not mere flux and ferment. His investiture into the legal profession places upon
his shoulders no burden more basic, more exacting and more imperative than that
of respectful behavior toward the courts. He vows solemnly to conduct himself
"with all good fidelity ... to the courts; 14 and the Rules of Court constantly remind
him "to observe and maintain the respect due to courts of justice and judicial
officers." 15 The first canon of legal ethics enjoins him "to maintain towards the
courts a respectful attitude, not for the sake of the temporary incumbent of the
judicial office, but for the maintenance of its supreme importance."
As Mr. Justice Field puts it:
... the obligation which attorneys impliedly assume, if they do not
by express declaration take upon themselves, when they are
admitted to the Bar, is not merely to be obedient to the
Constitution and laws, but to maintain at all times the respect due
to courts of justice and judicial officers. This obligation is not
discharged by merely observing the rules of courteous demeanor
in open court, but includes abstaining out of court from all
insulting language and offensive conduct toward judges
personally for their judicial acts. (Bradley, v. Fisher, 20 Law. 4d.
647, 652)
The lawyer's duty to render respectful subordination to the courts is essential to
the orderly administration of justice. Hence, in the assertion of their clients'
rights, lawyers even those gifted with superior intellect are enjoined to rein up
their tempers.
The counsel in any case may or may not be an abler or more
learned lawyer than the judge, and it may tax his patience and
temper to submit to rulings which he regards as incorrect, but
discipline and self-respect are as necessary to the orderly
administration of justice as they are to the effectiveness of an
army. The decisions of the judge must be obeyed, because he is
the tribunal appointed to decide, and the bar should at all times
be the foremost in rendering respectful submission. (In Re
Scouten, 40 Atl. 481)
We concede that a lawyer may think highly of his intellectual
endowment That is his privilege. And he may suffer frustration at
what he feels is others' lack of it. That is his misfortune. Some
such frame of mind, however, should not be allowed to harden
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Legal Ethics
into a belief that he may attack a court's decision in words
calculated to jettison the time-honored aphorism that courts are
the temples of right. (Per Justice Sanchez in Rheem of the
Philippines vs. Ferrer, L-22979. June 26, 1967)
In his relations with the courts, a lawyer may not divide his personality so as to be
an attorney at one time and a mere citizen at another. Thus, statements made by
an attorney in private conversations or communications 16 or in the course of a
political, campaign, 17 if couched in insulting language as to bring into scorn and
disrepute the administration of justice, may subject the attorney to disciplinary
action.
Of fundamental pertinence at this juncture is an examination of relevant parallel
precedents.
1. Admitting that a "judge as a public official is neither sacrosanct nor immune to
public criticism of his conduct in office," the Supreme Court of Florida in State v.
Calhoon, 102 So. 2d 604, 608, nevertheless declared that "any conduct of a lawyer
which brings into scorn and disrepute the administration of justice demands
condemnation and the application of appropriate penalties," adding that:
It would be contrary to, every democratic theory to hold that a
judge or a court is beyond bona fide comments and criticisms
which do not exceed the bounds of decency and truth or which
are not aimed at. the destruction of public confidence in the
judicial system as such. However, when the likely impairment of
the administration of justice the direct product of false and
scandalous accusations then the rule is otherwise.
2. In In Re Glenn, 130 N.W. 2d 672, an attorney was suspended for putting out and
circulating a leaflet entitled "JUSTICE??? IN OTUMWA," which accused a municipal
judge of having committed judicial error, of being so prejudiced as to deny his
clients a fair trial on appeal and of being subject to the control of a group of city
officials. As a prefatory statement he wrote: "They say that Justice is BLIND, but it
took Municipal Judge Willard to prove that it is also DEAF and DUMB!" The court did
not hesitate to find that the leaflet went much further than the accused, as a
lawyer, had a right to do.
The entire publication evidences a desire on the part Of the
accused to belittle and besmirch the court and to bring it into
disrepute with the general public.
3. In In Re Humphrey, 163 Pac. 60, the Supreme Court of California affirmed the
two-year suspension of an attorney who published a circular assailing a judge who
at that time was a candidate for re-election to a judicial office. The circular which
referred to two decisions of the judge concluded with a statement that the judge
"used his judicial office to enable -said bank to keep that money." Said the court:
We are aware that there is a line of authorities which place no
limit to the criticism members of the bar may make regarding the
capacity, impartiality, or integrity of the courts, even though it
extends to the deliberate publication by the attorney capable of
correct reasoning of baseless insinuations against the intelligence
and integrity of the highest courts. See State Board, etc. v. Hart.
116 N.W. 212, 17 LRA (N.S.) 585, 15 Ann Cas 197 and note: Ex
parte Steinman 95 Pac. 220, 40 Am. Rep. 637. In the first case
mentioned it was observed, for instance:
"It may be (although we do not so decide) that a
libelous publication by an attorney, directed
against a judicial officer, could be so vile and of
such a nature as to justify the disbarment of its
author."
Yet the false charges made by an attorney in that case were of
graver character than those made by the respondent here. But, in
our view, the better rule is that which requires of those who are
permitted to enjoy the privilege of practicing law the strictest
observance at all times of the principles of truth, honesty and
fairness, especially in their criticism of the courts, to the end that
the public confidence in the due administration of justice be
upheld, and the dignity and usefulness of the courts be
maintained. In re Collins, 81 Pac. 220.
4. In People ex rel Chicago Bar Asso. v. Metzen, 123 N.E. 734, an attorney,
representing a woman who had been granted a divorce, attacked the judge who
set aside the decree on bill of review. He wrote the judge a threatening letter and
gave the press the story of a proposed libel suit against the judge and others. The
letter began:
Unless the record in In re Petersen v. Petersen is cleared up so
that my name is protected from the libel, lies, and perjury
committed in the cases involved, I shall be compelled to resort to
such drastic action as the law allows and the case warrants.
Further, he said: "However let me assure you I do not intend to allow such
dastardly work to go unchallenged," and said that he was engaged in dealing with
men and not irresponsible political manikins or appearances of men. Ordering the
attorney's disbarment, the Supreme Court of Illinois declared:
... Judges are not exempt from just criticism, and whenever there
is proper ground for serious complaint against a judge, it is the
right and duty of a lawyer to submit his grievances to the proper
authorities, but the public interest and the administration of the
law demand that the courts should have the confidence and
respect of the people. Unjust criticism, insulting language, and
offensive conduct toward the judges personally by attorneys, who
are officers of the court, which tend to bring the courts and the
law into disrepute and to destroy public confidence in their
integrity, cannot be permitted. The letter written to the judge was
plainly an attempt to intimidate and influence him in the
discharge of judicial functions, and the bringing of the
unauthorized suit, together with the write-up in the Sunday
papers, was intended and calculated to bring the court into
disrepute with the public.
5. In a public speech, a Rhode Island lawyer accused the courts of the state of
being influenced by corruption and greed, saying that the seats of the Supreme
Court were bartered. It does not appear that the attorney had criticized any of the
opinions or decisions of the Court. The lawyer was charged with unprofessional
conduct, and was ordered suspended for a period of two years. The Court said:
A calumny of that character, if believed, would tend to weaken
the authority of the court against whose members it was made,
bring its judgments into contempt, undermine its influence as an
unbiased arbiter of the people's right, and interfere with the
administration of justice. ...
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Because a man is a member of the bar the court will not, under
the guise of disciplinary proceedings, deprive him of any part of
that freedom of speech which he possesses as a citizen. The acts
and decisions of the courts of this state, in cases that have
reached final determination, are not exempt from fair and honest
comment and criticism. It is only when an attorney transcends the
limits of legitimate criticism that he will be held responsible for an
abuse of his liberty of speech. We well understand that an
independent bar, as well as independent court, is always a
vigilant defender of civil rights. In Re Troy, 111 Atl. 723. 725.
6. In In Re Rockmore, 111 NYS 879, an attorney was suspended for six months for
submitting to an appellate court an affidavit reflecting upon the judicial integrity of
the court from which the appeal was taken. Such action, the Court said, constitutes
unprofessional conduct justifying suspension from practice, notwithstanding that
he fully retracted and withdrew the statements, and asserted that the affidavit was
the result of an impulse caused by what he considered grave injustice. The Court
said:
We cannot shut our eyes to the fact that there is a growing habit
in the profession of criticising the motives and integrity of judicial
officers in the discharge of their duties, and thereby reflecting on
the administration of justice and creating the impression that
judicial action is influenced by corrupt or improper motives. Every
attorney of this court, as well as every other citizen, has the right
and it is his duty, to submit charges to the authorities in whom is
vested the power to remove judicial officers for any conduct or act
of a judicial officer that tends to show a violation of his duties, or
would justify an inference that he is false to his trust, or has
improperly administered the duties devolved upon him; and such
charges to the tribunal, if based upon reasonable inferences, will
be encouraged, and the person making them
protected. ... While we recognize the inherent right of an attorney
in a case decided against him, or the right of the Public generally,
to criticise the decisions of the courts, or the reasons announced
for them, the habit of criticising the motives of judicial officers in
the performance of their official duties, when the proceeding is
not against the officers whose acts or motives are criticised, tends
to subvert the confidence of the community in the courts of
justice and in the administration of justice; and when such
charges are made by officers of the courts, who are bound by
their duty to protect the administration of justice, the attorney
making such charges is guilty of professional misconduct.
7. In In Re Mitchell, 71 So. 467, a lawyer published this statement:
I accepted the decision in this case, however, with patience,
barring possible temporary observations more or less vituperative
and finally concluded, that, as my clients were foreigners, it might
have been expecting too much to look for a decision in their favor
against a widow residing here.
The Supreme Court of Alabama declared that:
... the expressions above set out, not only transcend the bounds
of propriety and privileged criticism, but are an unwarranted
attack, direct, or by insinuation and innuendo, upon the motives
and integrity of this court, and make out a prima facie case of
improper conduct upon the part of a lawyer who holds a license
from this court and who is under oath to demean himself with all
good fidelity to the court as well as to his client.
The charges, however, were dismissed after the attorney apologized to the Court.
8. In State ex rel. Dabney v. Breckenridge, 258 Pac. 747, an attorney published in a
newspaper an article in which he impugned the motives of the court and its
members to try a case, charging the court of having arbitrarily and for a sinister
purpose undertaken to suspend the writ of habeas corpus. The Court suspended
the respondent for 30 days, saying that:
The privileges which the law gives to members of the bar is one
most subversive of the public good, if the conduct of such
members does not measure up to the requirements of the law
itself, as well as to the ethics of the profession. ...
The right of free speech and free discussion as to judicial
determination is of prime importance under our system and ideals
of government. No right thinking man would concede for a
moment that the best interest to private citizens, as well as to
public officials, whether he labors in a judicial capacity or
otherwise, would be served by denying this right of free speech to
any individual. But such right does not have as its corollary that
members of the bar who are sworn to act honestly and honorably
both with their client and with the courts where justice is
administered, if administered at all, could ever properly serve
their client or the public good by designedly misstating facts or
carelessly asserting the law. Truth and honesty of purpose by
members of the bar in such discussion is necessary. The health of
a municipality is none the less impaired by a polluted water
supply than is the health of the thought of a community toward
the judiciary by the filthy wanton, and malignant misuse of
members of the bar of the confidence the public, through its duly
established courts, has reposed in them to deal with the affairs of
the private individual, the protection of whose rights he lends his
strength and money to maintain the judiciary. For such conduct on
the part of the members of the bar the law itself demands
retribution not the court.
9. In Bar Ass'n of San Francisco v. Philbrook, 170 Pac. 440, the filing of an affidavit
by an attorney in a pending action using in respect to the several judges the terms
criminal corrupt, and wicked conspiracies,," "criminal confederates," "colossal and
confident insolence," "criminal prosecution," "calculated brutality," "a corrupt
deadfall," and similar phrases, was considered conduct unbecoming of a member
of the bar, and the name of the erring lawyer was ordered stricken from the roll of
attorneys.
10. In State Board of Examiners v. Hart, 116 N.W. 215, the erring attorney claimed
that greater latitude should be allowed in case of criticism of cases finally
adjudicated than in those pending. This lawyer wrote a personal letter to the Chief
Justice of the Supreme Court of Minnesota impugning both the intelligence and the
integrity of the said Chief Justice and his associates in the decisions of certain
appeals in which he had been attorney for the defeated litigants. The letters were
published in a newspaper. One of the letters contained this paragraph:
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Legal Ethics
You assigned it (the property involved) to one who has no better
right to it than the burglar to his plunder. It seems like robbing a
widow to reward a fraud, with the court acting as a fence, or
umpire, watchful and vigilant that the widow got no undue
advantage. ... The point is this: Is a proper motive for the
decisions discoverable, short of assigning to the court
emasculated intelligence, or a constipation of morals and
faithlessness to duty? If the state bar association, or a committee
chosen from its rank, or the faculty of the University Law School,
aided by the researches of its hundreds of bright, active students,
or if any member of the court, or any other person, can formulate
a statement of a correct motive for the decision, which shall not
require fumigation before it is stated, and quarantine after it is
made, it will gratify every right-minded citizen of the state to read
it.
The Supreme Court of Minnesota, in ordering the suspension of the attorney for six
months, delivered its opinion as follows:
The question remains whether the accused was guilty of
professional misconduct in sending to the Chief Justice the letter
addressed to him. This was done, as we have found, for the very
purpose of insulting him and the other justices of this court; and
the insult was so directed to the Chief Justice personally because
of acts done by him and his associates in their official capacity.
Such a communication, so made, could never subserve any good
purpose. Its only effect in any case would be to gratify the spite of
an angry attorney and humiliate the officers so assailed. It would
not and could not ever enlighten the public in regard to their
judicial capacity or integrity. Nor was it an exercise by the accused
of any constitutional right, or of any privilege which any reputable
attorney, uninfluenced by passion, could ever have any occasion
or desire to assert. No judicial officer, with due regard to his
position, can resent such an insult otherwise than by methods
sanctioned by law; and for any words, oral or written, however
abusive, vile, or indecent, addressed secretly to the judge alone,
he can have no redress in any action triable by a jury. "The
sending of a libelous communication or libelous matter to the
person defamed does not constitute an actionable publication."
18 Am. & Eng. Enc. Law (2d Ed.) p. 1017. In these respects the
sending by the accused of this letter to the Chief Justice was
wholly different from his other acts charged in the accusation,
and, as we have said, wholly different principles are applicable
thereto.
The conduct of the accused was in every way discreditable; but so
far as he exercised the rights of a citizen, guaranteed by the
Constitution and sanctioned by considerations of public policy, to
which reference has been made, he was immune, as we hold,
from the penalty here sought to be enforced. To that extent his
rights as a citizen were paramount to the obligation which he had
assumed as an officer of this court. When, however he proceeded
and thus assailed the Chief Justice personally, he exercised no
right which the court can recognize, but, on the contrary, willfully
violated his obligation to maintain the respect due to courts and
judicial officers. "This obligation is not discharged by merely
observing the rules of courteous demeanor in open court, but it
includes abstaining out of court from all insulting language and
offensive conduct toward the judges personally for their official
acts." Bradley v. Fisher, 13 Wall. (U.S.) 355, 20 L. Ed. 646. And
there appears to be no distinction, as regards the principle
involved, between the indignity of an assault by an attorney upon
a judge, induced by his official act, and a personal insult for like
cause by written or spoken words addressed to the judge in his
chambers or at his home or elsewhere. Either act constitutes
misconduct wholly different from criticism of judicial acts
addressed or spoken to others. The distinction made is, we think
entirely logical and well sustained by authority. It was recognized
in Ex parte McLeod supra. While the court in that case, as has
been shown, fully sustained the right of a citizen to criticise
rulings of the court in actions which are ended, it held that one
might be summarily punished for assaulting a judicial officer, in
that case a commissioner of the court, for his rulings in a cause
wholly concluded. "Is it in the power of any person," said the
court, "by insulting or assaulting the judge because of official
acts, if only the assailant restrains his passion until the judge
leaves the building, to compel the judge to forfeit either his own
self-respect to the regard of the people by tame submission to the
indignity, or else set in his own person the evil example of
punishing the insult by taking the law in his own hands? ... No
high-minded, manly man would hold judicial office under such
conditions."
That a communication such as this, addressed to the Judge
personally, constitutes professional delinquency for which a
professional punishment may be imposed, has been directly
decided. "An attorney who, after being defeated in a case, wrote a
personal letter to the trial justice, complaining of his conduct and
reflecting upon his integrity as a justice, is guilty of misconduct
and will be disciplined by the court." Matter of Manheim 133 App.
Div. 136, 99 N.Y. Supp. 87 The same is held in Re Griffin (City Ct.)
1 N.Y. 7 and in Re Wilkes (City Ct.) 3 N.Y. In the latter case it
appeared that the accused attorney had addressed a sealed letter
to a justice of the City Court of New York, in which it was stated, in
reference to his decision: "It is not law; neither is it common
sense. The result is I have been robbed of 80." And it was decided
that, while such conduct was not a contempt under the state, the
matter should be "called to the attention of the Supreme Court,
which has power to discipline the attorney." "If," says the court,
"counsel learned in the law are permitted by writings leveled at
the heads of judges, to charge them with ignorance, with unjust
rulings, and with robbery, either as principals or accessories, it
will not be long before the general public may feel that they may
redress their fancied grievances in like manner, and thus the lot of
a judge will be anything but a happy one, and the administration
of justice will fall into bad repute."
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Legal Ethics
The recent case of Johnson v. State (Ala.) 44 South. 671, was in
this respect much the same as the case at bar. The accused, an
attorney at law, wrote and mailed a letter to the circuit judge,
which the latter received by due course of mail, at his home, while
not holding court, and which referred in insulting terms to the
conduct of the judge in a cause wherein the accused had been
one of the attorneys. For this it was held that the attorney was
rightly disbarred in having "willfully failed to maintain respect due
to him [the judge] as a judicial officer, and thereby breached his
oath as an attorney." As recognizing the same principle, and in
support of its application to the facts of this case, we cite the
following: Ex parte Bradley, 7 Wall (U.S.) 364, 19 L. Ed.
214; Beene v. State, 22 Ark. 149; Commonwealth v. Dandridge, 2
Va. Cas. 408; People v. Green, 7 Colo 237, 244, 3 Pac. 65, 374, 49
Am. Rep. 351; Smith's Appeal, 179 Pa. 14, 36 Atl. 134; Scouten's
Appeal, 186 Pa. 270, Atl. 481.
Our conclusion is that the charges against the accused have been
so far sustained as to make it our duty to impose such a penalty
as may be sufficient lesson to him and a suitable warning to
others. ...
11. In Cobb v. United States, 172 F. 641, the court affirmed a lawyer's suspension
for 18 months for publishing a letter in a newspaper in which he accused a judge of
being under the sinister influence of a gang that had paralyzed him for two years.
12. In In Re Graves, 221 Pac. 411, the court held that an attorney's unjustifiable
attack against the official acts and decisions of a judge constitutes "moral
turpitude." There, the attorney was disbarred for criticising not only the judge, but
his decisions in general claiming that the judge was dishonest in reaching his
decisions and unfair in his general conduct of a case.
13. In In Re Doss, 12 N.E. 2d 659, an attorney published newspaper articles after
the trial of cases, criticising the court in intemperate language. The invariable
effect of this sort of propaganda, said the court, is to breed disrespect for courts
and bring the legal profession into disrepute with the public, for which reason the
lawyer was disbarred.
14. In State v. Grimes, 354 Pac. 2d 108, an attorney, dissatisfied with the loss of a
case, prepared over a period of years vicious attacks on jurists. The Oklahoma
Supreme Court declared that his acts involved such gross moral turpitude as to
make him unfit as a member of the bar. His disbarment was ordered, even though
he expressed an intention to resign from the bar.
The teaching derived from the above disquisition and impressive affluence of
judicial pronouncements is indubitable: Post-litigation utterances or publications,
made by lawyers, critical of the courts and their judicial actuations, whether
amounting to a crime or not, which transcend the permissible bounds of fair
comment and legitimate criticism and thereby tend to bring them into disrepute or
to subvert public confidence in their integrity and in the orderly administration of
justice, constitute grave professional misconduct which may be visited with
disbarment or other lesser appropriate disciplinary sanctions by the Supreme Court
in the exercise of the prerogatives inherent in it as the duly constituted guardian of
the morals and ethics of the legal fraternity.
Of course, rarely have we wielded our disciplinary powers in the face of
unwarranted outbursts of counsel such as those catalogued in the above-cited
jurisprudence. Cases of comparable nature have generally been disposed of under
the power of courts to punish for contempt which, although resting on different
bases and calculated to attain a different end, nevertheless illustrates that
universal abhorrence of such condemnable practices.
A perusal of the more representative of these instances may afford enlightenment.
1. In Salcedo vs. Hernandez, 61 Phil. 724, where counsel branded the denial of his
motion for reconsideration as "absolutely erroneous and constituting an outrage to
the rigths of the petitioner Felipe Salcedo and a mockery of the popular will
expressed at the polls," this Court, although conceding that
It is right and plausible that an attorney, in defending the cause
and rights of his client, should do so with all the fervor and energy
of which he is capable, but it is not, and never will be so for him to
exercise said right by resorting to intimidation or proceeding
without the propriety and respect which the dignity of the courts
requires. The reason for this is that respect for the courts
guarantees the stability of their institution. Without such
guaranty, said institution would be resting on a very shaky
foundation,
found counsel guilty of contempt inasmuch as, in its opinion, the statements made
disclosed
... an inexcusable disrespect of the authority of the court and an
intentional contempt of its dignity, because the court is thereby
charged with no less than having proceeded in utter disregard of
the laws, the rights to the parties, and 'of the untoward
consequences, or with having abused its power and mocked and
flouted the rights of Attorney Vicente J. Francisco's client ... .
2. In In re Sotto, 82 Phil. 595, counsel, a senator and the author of the Press
Freedom Law, reaching to, the imprisonment for contempt of one Angel Parazo,
who, invoking said law, refused to divulge the source of a news item carried in his
paper, caused to be published in i local newspaper a statement expressing his
regret "that our High Tribunal has not only erroneously interpreted said law, but it
is once more putting in evidence the incompetency or narrow mindedness of the
majority of its members," and his belief that "In the wake of so many blunders and
injustices deliberately committed during these last years, ... the only remedy to
put an end to go much evil, is to change the members of the Supreme Court,"
which tribunal he denounced as "a constant peril to liberty and democracy" and "a
far cry from the impregnable bulwark of justice of those memorable times of
Cayetano Arellano, Victorino Mapa, Manuel Araullo and other learned jurists who
were the honor and glory of the Philippine Judiciary." He there also announced that
one of the first measures he would introduce in then forthcoming session of
Congress would have for its object the complete reorganization of the Supreme
Court. Finding him in contempt, despite his avowals of good faith and his
invocation of the guarantee of free speech, this Court declared:
But in the above-quoted written statement which he caused to be
published in the press, the respondent does not merely criticize or
comment on the decision of the Parazo case, which was then and
still is pending consideration by this Court upon petition of Angel
Parazo. He not only intends to intimidate the members of this
Court with the presentation of a bill in the next Congress, of which
he is one of the members, reorganizing the Supreme Court and
reducing the number of Justices from eleven, so as to change the
members of this Court which decided the Parazo case, who
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Legal Ethics
according to his statement, are incompetent and narrow minded,
in order to influence the final decision of said case by this Court,
and thus embarrass or obstruct the administration of justice. But
the respondent also attacks the honesty and integrity of this Court
for the apparent purpose of bringing the Justices of this Court into
disrepute and degrading the administration. of justice ... .
To hurl the false charge that this Court has been for the last years
committing deliberately so many blunders and injustices, that is
to say, that it has been deciding in favor of Que party knowing
that the law and justice is on the part of the adverse party and
not on the one in whose favor the decision was rendered, in many
cases decided during the last years, would tend necessarily to
undermine the confidence of the people in the honesty and
integrity of the members of this Court, and consequently to
lower ,or degrade the administration of justice by this Court. The
Supreme Court of the Philippines is, under the Constitution, the
last bulwark to which the Filipino people may repair to obtain
relief for their grievances or protection of their rights when these
are trampled upon, and if the people lose their confidence in the
honesty and integrity of the members of this Court and believe
that they cannot expect justice therefrom, they might be driven to
take the law into their own hands, and disorder and perhaps
chaos might be the result. As a member of the bar and an officer
of the courts, Atty. Vicente Sotto, like any other, is in duty bound
to uphold the dignity and authority of this Court, to which he owes
fidelity according to the oath he has taken as such attorney, and
not to promote distrust in the administration of justice. Respect to
the courts guarantees the stability of other institutions, which
without such guaranty would be resting on a very shaky
foundation.
Significantly, too, the Court therein hastened to emphasize that
... an attorney as an officer of the court is under special obligation
to be respectful in his conduct and communication to the courts;
he may be removed from office or stricken from the roll of
attorneys as being guilty of flagrant misconduct (17 L.R.A. [N.S.],
586, 594.)
3. In Rheem of the Philippines vs. Ferrer: In re Proceedings against Alfonso Ponce
Enrile, et al., supra, where counsel charged this Court with having "repeatedly
fallen" into ,the pitfall of blindly adhering to its previous "erroneous"
pronouncements, "in disregard of the law on jurisdiction" of the Court of Industrial
Relations, our condemnation of counsel's misconduct was unequivocal. Articulating
the sentiments of the Court, Mr. Justice Sanchez stressed:
As we look back at the language (heretofore quoted) employed in
the motion for reconsideration, implications there are which
inescapably arrest attention. It speaks of one pitfall into which this
Court has repeatedly fallen whenever the jurisdiction of the Court
of Industrial Relations comes into question. That pitfall is the
tendency of this Court to rely on its own pronouncements in
disregard of the law on jurisdiction. It makes a sweeping charge
that the decisions of this Court, blindly adhere to earlier rulings
without as much as making any reference to and analysis of the
pertinent statute governing the jurisdiction of the industrial court.
The plain import of all these is that this Court is so patently inept
that in determining the jurisdiction of the industrial court, it has
committed error and continuously repeated that error to the point
of perpetuation. It pictures this Court as one which refuses to hew
to the line drawn by the law on jurisdictional boundaries. Implicit
in the quoted statements is that the pronouncements of this Court
on the jurisdiction of the industrial court are not entitled to
respect. Those statements detract much from the dignity of and
respect due this Court. They bring into question the capability of
the members and some former members of this Court to render
justice. The second paragraph quoted yields a tone of sarcasm
which counsel labelled as "so called" the "rule against splitting of
jurisdiction."
Similar thoughts and sentiments have been expressed in other cases 18 which, in
the interest of brevity, need not now be reviewed in detail.
Of course, a common denominator underlies the aforecited cases all of them
involved contumacious statements made in pleadings filed pending litigation. So
that, in line with the doctrinal rule that the protective mantle of contempt may
ordinarily be invoked only against scurrilous remarks or malicious innuendoes
while a court mulls over a pending case and not after the conclusion
thereof, 19 Atty. Almacen would now seek to sidestep the thrust of a contempt
charge by his studied emphasis that the remarks for which he is now called upon
to account were made only after this Court had written finis to his appeal. This is of
no moment.
The rule that bars contempt after a judicial proceeding has terminated, has lost
much of its vitality. For sometime, this was the prevailing view in this jurisdiction.
The first stir for a modification thereof, however, came when, in People vs.
Alarcon, 20 the then Chief Justice Manuel V. Moran dissented with the holding of the
majority, speaking thru Justice Jose P. Laurel, which upheld the rule above-adverted
to. A complete disengagement from the settled rule was later to be made in In re
Brillantes, 21 a contempt proceeding, where the editor of the Manila Guardian was
adjudged in contempt for publishing an editorial which asserted that the 1944 Bar
Examinations were conducted in a farcical manner after the question of the validity
of the said examinations had been resolved and the case closed. Virtually, this was
an adoption of the view expressed by Chief Justice Moran in his dissent
in Alarcon to the effect that them may still be contempt by publication even after a
case has been terminated. Said Chief Justice Moran in Alarcon:
A publication which tends to impede, obstruct, embarrass or
influence the courts in administering justice in a pending suit or
proceeding, constitutes criminal contempt which is 'summarily
punishable by courts. A publication which tends to degrade the
courts and to destroy public confidence in them or that which
tends to bring them in any way into disrepute, constitutes likewise
criminal contempt, and is equally punishable by courts. What is
sought, in the first kind of contempt, to be shielded against the
influence of newspaper comments, is the all-important duty of the
courts to administer justice in the decision of a pending case. In
the second kind of contempt, the punitive hand of justice is
extended to vindicate the courts from any act or conduct
calculated to bring them into disfavor or to destroy public
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Legal Ethics
confidence in them. In the first there is no contempt where there
is no action pending, as there is no decision which might in any
way be influenced by the newspaper publication. In the second,
the contempt exists, with or without a pending case, as what is
sought to be protected is the court itself and its dignity. Courts
would lose their utility if public confidence in them is destroyed.
Accordingly, no comfort is afforded Atty. Almacen by the circumstance that his
statements and actuations now under consideration were made only after the
judgment in his client's appeal had attained finality. He could as much be liable for
contempt therefor as if it had been perpetrated during the pendency of the said
appeal.
More than this, however, consideration of whether or not he could be held liable for
contempt for such post litigation utterances and actuations, is here immaterial. By
the tenor of our Resolution of November 17, 1967, we have confronted the
situation here presented solely in so far as it concerns Atty. Almacen's professional
identity, his sworn duty as a lawyer and his fitness as an officer of this Court, in the
exercise of the disciplinary power the morals inherent in our authority and duty to
safeguard and ethics of the legal profession and to preserve its ranks from the
intrusions of unprincipled and unworthy disciples of the noblest of callings. In this
inquiry, the pendency or non-pendency of a case in court is altogether of no
consequence. The sole objective of this proceeding is to preserve the purity of the
legal profession, by removing or suspending a member whose misconduct has
proved himself unfit to continue to be entrusted with the duties and responsibilities
belonging to the office of an attorney.
Undoubtedly, this is well within our authority to do. By constitutional
mandate, 22 our is the solemn duty, amongst others, to determine the rules for
admission to the practice of law. Inherent in this prerogative is the corresponding
authority to discipline and exclude from the practice of law those who have proved
themselves unworthy of continued membership in the Bar. Thus
The power to discipline attorneys, who are officers of the court, is
an inherent and incidental power in courts of record, and one
which is essential to an orderly discharge of judicial functions. To
deny its existence is equivalent to a declaration that the conduct
of attorneys towards courts and clients is not subject to restraint.
Such a view is without support in any respectable authority, and
cannot be tolerated. Any court having the right to admit attorneys
to practice and in this state that power is vested in this court-has
the inherent right, in the exercise of a sound judicial discretion to
exclude them from practice. 23
This, because the admission of a lawyer to the practice of law is a representation
to all that he is worthy of their confidence and respect. So much so that
... whenever it is made to appear to the court that an attorney is
no longer worthy of the trust and confidence of the public and of
the courts, it becomes, not only the right, but the duty, of the
court which made him one of its officers, and gave him the
privilege of ministering within its bar, to withdraw the privilege.
Therefore it is almost universally held that both the admission and
disbarment of attorneys are judicial acts, and that one is admitted
to the bar and exercises his functions as an attorney, not as a
matter of right, but as a privilege conditioned on his own behavior
and the exercise of a just and sound judicial discretion. 24
Indeed, in this jurisdiction, that power to remove or suspend has risen above being
a mere inherent or incidental power. It has been elevated to an express mandate
by the Rules of Court. 25
Our authority and duty in the premises being unmistakable, we now proceed to
make an assessment of whether or not the utterances and actuations of Atty.
Almacen here in question are properly the object of disciplinary sanctions.
The proffered surrender of his lawyer's certificate is, of course, purely potestative
on Atty. Almacen's part. Unorthodox though it may seem, no statute, no law stands
in its way. Beyond making the mere offer, however, he went farther. In haughty
and coarse language, he actually availed of the said move as a vehicle for his
vicious tirade against this Court. The integrated entirety of his petition bristles with
vile insults all calculated to drive home his contempt for and disrespect to the
Court and its members. Picturing his client as "a sacrificial victim at the altar of
hypocrisy," he categorically denounces the justice administered by this Court to be
not only blind "but also deaf and dumb." With unmitigated acerbity, he virtually
makes this Court and its members with verbal talons, imputing to the Court the
perpetration of "silent injustices" and "short-cut justice" while at the same time
branding its members as "calloused to pleas of justice." And, true to his announced
threat to argue the cause of his client "in the people's forum," he caused the
publication in the papers of an account of his actuations, in a calculated effort ;to
startle the public, stir up public indignation and disrespect toward the Court. Called
upon to make an explanation, he expressed no regret, offered no apology. Instead,
with characteristic arrogance, he rehashed and reiterated his vituperative attacks
and, alluding to the Scriptures, virtually tarred and feathered the Court and its
members as inveterate hypocrites incapable of administering justice and unworthy
to impose disciplinary sanctions upon him.
The virulence so blatantly evident in Atty. Almacen's petition, answer and oral
argumentation speaks for itself. The vicious language used and the scurrilous
innuendoes they carried far transcend the permissible bounds of legitimate
criticism. They could never serve any purpose but to gratify the spite of an irate
attorney, attract public attention to himself and, more important of all, bring ;this
Court and its members into disrepute and destroy public confidence in them to the
detriment of the orderly administration of justice. Odium of this character and
texture presents no redeeming feature, and completely negates any pretense of
passionate commitment to the truth. It is not a whit less than a classic example of
gross misconduct, gross violation of the lawyer's oath and gross transgression of
the Canons of Legal Ethics. As such, it cannot be allowed to go unrebuked. The way
for the exertion of our disciplinary powers is thus laid clear, and the need therefor
is unavoidable.
We must once more stress our explicit disclaimer of immunity from criticism. Like
any other Government entity in a viable democracy, the Court is not, and should
not be, above criticism. But a critique of the Court must be intelligent and
discriminating, fitting to its high function as the court of last resort. And more than
this, valid and healthy criticism is by no means synonymous to obloquy, and
requires detachment and disinterestedness, real qualities approached only through
constant striving to attain them. Any criticism of the Court must, possess the
quality of judiciousness and must be informed -by perspective and infused by
philosophy. 26
It is not accurate to say, nor is it an obstacle to the exercise of our authority in ;the
premises, that, as Atty. Almacen would have appear, the members of the Court are
the "complainants, prosecutors and judges" all rolled up into one in this instance.
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Legal Ethics
This is an utter misapprehension, if not a total distortion, not only of the nature of That the misconduct committed by Atty. Almacen is of considerable gravity cannot
the proceeding at hand but also of our role therein. be overemphasized. However, heeding the stern injunction that disbarment should
Accent should be laid on the fact that disciplinary proceedings like the present never be decreed where a lesser sanction would accomplish the end desired, and
are sui generis. Neither purely civil nor purely criminal, this proceeding is not believing that it may not perhaps be futile to hope that in the sober light of some
and does not involve a trial of an action or a suit, but is rather an investigation future day, Atty. Almacen will realize that abrasive language never fails to do
by the Court into the conduct of its officers. 27 Not being intended to. inflict disservice to an advocate and that in every effervescence of candor there is ample
punishment, it is in no sense a criminal prosecution. Accordingly, there is neither a room for the added glow of respect, it is our view that suspension will suffice under
plaintiff nor a prosecutor therein It may be initiated by the Court motu the circumstances. His demonstrated persistence in his misconduct by neither
proprio. 28 Public interest is its primary objective, and the real question for manifesting repentance nor offering apology therefor leave us no way of
determination is whether or not the attorney is still a fit person to be allowed the determining how long that suspension should last and, accordingly, we are
privileges as such. Hence, in the exercise of its disciplinary powers, the Court impelled to decree that the same should be indefinite. This, we are empowered to
merely calls upon a member of the Bar to account for his actuations as an officer do not alone because jurisprudence grants us discretion on the matter 33 but also
of the Court with the end in view of preserving the purity of the legal profession because, even without the comforting support of precedent, it is obvious that if we
and the proper and honest administration of justice by purging the profession of have authority to completely exclude a person from the practice of law, there is no
members who by their misconduct have proved themselves no longer worthy to be reason why indefinite suspension, which is lesser in degree and effect, can be
entrusted with the duties and responsibilities pertaining to the office of an regarded as falling outside of the compass of that authority. The merit of this
attorney. 29 In such posture, there can thus be no occasion to speak of a choice is best shown by the fact that it will then be left to Atty. Almacen to
complainant or a prosecutor. determine for himself how long or how short that suspension shall last. For, at any
Undeniably, the members of the Court are, to a certain degree, aggrieved parties. time after the suspension becomes effective he may prove to this Court that he is
Any tirade against the Court as a body is necessarily and inextricably as much so once again fit to resume the practice of law.
against the individual members thereof. But in the exercise of its disciplinary ACCORDINGLY, IT IS THE SENSE of the Court that Atty. Vicente Raul Almacen be, as
powers, the Court acts as an entity separate and distinct from the individual he is hereby, suspended from the practice of law until further orders, the
personalities of its members. Consistently with the intrinsic nature of a collegiate suspension to take effect immediately.
court, the individual members act not as such individuals but. only as a duly Let copies of this resolution. be furnished the Secretary of Justice, the Solicitor
constituted court. Their distinct individualities are lost in the majesty of their General and the Court of Appeals for their information and guidance.
office. 30 So that, in a very real sense, if there be any complainant in the case at
bar, it can only be the Court itself, not the individual members thereof as well as
the people themselves whose rights, fortunes and properties, nay, even lives,
would be placed at grave hazard should the administration of justice be threatened
by the retention in the Bar of men unfit to discharge the solemn responsibilities of
membership in the legal fraternity.
Finally, the power to exclude persons from the practice of law is but a necessary
incident of the power to admit persons to said practice. By constitutional precept,
this power is vested exclusively in this Court. This duty it cannot abdicate just as
much as it cannot unilaterally renounce jurisdiction legally invested upon it. 31 So
that even if it be conceded that the members collectively are in a sense the
aggrieved parties, that fact alone does not and cannot disqualify them from the
exercise of that power because public policy demands that they., acting as a Court,
exercise the power in all cases which call for disciplinary action. The present is
such a case. In the end, the imagined anomaly of the merger in one entity of the
personalities of complainant, prosecutor and judge is absolutely inexistent.
Last to engage our attention is the nature and extent of the sanctions that may be
visited upon Atty. Almacen for his transgressions. As marked out by the Rules of
Court, these may range from mere suspension to total removal or
disbarment. 32 The discretion to assess under the circumstances the imposable
sanction is, of course, primarily addressed to the sound discretion of the Court
which, being neither arbitrary and despotic nor motivated by personal animosity or
prejudice, should ever be controlled by the imperative need that the purity and
independence of the Bar be scrupulously guarded and the dignity of and respect
due to the Court be zealously maintained.

82
Legal Ethics
RE : SUSPENSION OF ATTY. ADM. CASE No. 7006
ROGELIO Z. BAGABUYO, FORMER
SENIOR STATE PROSECUTOR
This administrative case stemmed from the events of the proceedings in
Crim. Case No. 5144, entitled People v. Luis Bucalon Plaza, heard before the sala of
Presiding Judge Jose Manuel P. Tan, Regional Trial Court (RTC) of Surigao City,
Branch 29.
Crim. Case No. 5144 was originally raffled to the sala of Judge Floripinas C.
Buyser, RTC of Surigao City, Branch 30. In an Order dated March 14, 2002, Judge
Buyser denied the Demurrer to the Evidence of the accused, declaring that the
evidence thus presented by the prosecution was sufficient to prove the crime of
homicide and not the charge of murder. Consequently, the counsel for the defense
filed a Motion to Fix the Amount of Bail Bond. Respondent Atty. Rogelio Z.
Bagabuyo, then Senior State Prosecutor and the deputized prosecutor of the
case, objected thereto mainly on the ground that the original charge
of murder, punishable with reclusion perpetua, was not subject to bail under Sec.
4, Rule 114 of the Rules of Court. [1]
In an Order dated August 30, 2002,[2] Judge Buyser inhibited himself from
further trying the case because of the harsh insinuation of Senior Prosecutor
Rogelio Z. Bagabuyo that he lacks the cold neutrality of an impartial magistrate, by
allegedly suggesting the filing of the motion to fix the amount of bail bond
by counsel for the accused.
The case was transferred to Branch 29 of the RTC of Surigao City, presided
by Judge Jose Manuel P. Tan. In an Order dated November 12, 2002, Judge Tan
favorably resolved the Motion to Fix the Amount of Bail Bond, and fixed the amount
of the bond at P40,000.
Respondent filed a motion for reconsideration of the Order
dated November 12, 2002, which motion was denied for lack of merit in an Order
dated February 10, 2003. In October, 2003, respondent appealed from the Orders
dated November 12, 2002 and February 10, 2003, to the Court of Appeals (CA).
Instead of availing himself only of judicial remedies, respondent caused
the publication of an article regarding the Order granting bail to the accused in
the August 18, 2003 issue of the Mindanao Gold Star Daily. The article,
entitled Senior prosecutor lambasts Surigao judge for allowing murder suspect to
bail out, reads:
SENIOR state prosecutor has lashed at a judge
in Surigao City for allowing a murder suspect to go out on bail.
Senior state prosecutor Rogelio Bagabuyo lambasted
Judge Manuel Tan of the Regional Trial Court (RTC) Branch 29
based in Surigao City for ruling on a motion that sought a
bailbond for Luis Plaza who stands charged with murdering a
policeman . . . .
Plaza reportedly posted a P40-thousand bail bond.
Bagabuyo argued that the crime of murder is a non-
bailable offense. But Bagabuyo admitted that a judge could still
opt to allow a murder suspect to bail out in cases when the
evidence of the prosecution is weak.
But in this murder case, Bagabuyo said the judge who
previously handled it, Judge F[lori]pinas B[uy]ser, described the
evidence to be strong. B[uy]ser inhibited from the case for an
unclear reason.
xxx
Bagabuyo said he would contest Tans decision before the
Court of Appeals and would file criminal and administrative
charges of certiorari against the judge.
Bagabuyuo said he was not afraid of being cited in
contempt by Judge Tan.
This is the only way that the public would know that there
are judges there who are displaying judicial arrogance. he said. [3]
In an Order dated August 21, 2003, the RTC of Surigao City, Branch 29,
directed respondent and the writer of the article, Mark Francisco of the Mindanao
Gold Star Daily, to appear in court on September 20, 2003 to explain why they
should not be cited for indirect contempt of court for the publication of the article
which degraded the court and its presiding judge with its lies and
misrepresentation.
The said Order stated that contrary to the statements in the article, Judge
Buyser described the evidence for the prosecution as not strong, but sufficient to
prove the guilt of the accused only for homicide. Moreover, it was not true that
Judge Buyser inhibited himself from the case for an unclear reason. Judge Buyser,
in an Order dated August 30, 2002, declared in open court in the presence of
respondent that he was inhibiting himself from the case due to the harsh
insinuation of respondent that he lacked the cold neutrality of an impartial judge.
On the scheduled hearing of the contempt charge, Mark Francisco
admitted that the Mindanao Gold Star Daily caused the publication of the
article. He disclosed that respondent, in a press conference, stated that the crime
of murder is non-bailable. When asked by the trial court why he printed such lies,
Mr. Francisco answered that his only source was respondent. [4] Mr. Francisco
clarified that in the statement alleging that Judge Buyser inhibited himself from the
case for an unclear reason, the phrase for an unclear reason, was added by the
newspapers Executive Editor Herby S. Gomez.[5]
Respondent admitted that he caused the holding of the press conference,
but refused to answer whether he made the statements in the article until after he
shall have filed a motion to dismiss. For his refusal to answer, the trial court
83
Legal Ethics
declared him in contempt of court pursuant to Sec. 3, Rule 71 of the Rules of Court.
[6]
The Courts Order dated September 30, 2003 reads:
ORDER
Mr. Mark Francisco for publishing this article which is a lie
clothed in half truth to give it a semblance of truth is hereby
ordered to pay a fine of P10,000. Prosecutor Bagabuyo, for
obstinately refusing to explain why he should not be cited for
contempt and admitting that the article published in the
Mindanao Gold Star Daily on August 18, 2003 and quoted in the
Order of this Court dated August 21, 2003 which is contemptuous
was caused by him to be published, is hereby adjudged to have
committed indirect contempt of Court pursuant to Section 3 of
Rule 71 of the Rules of Court and he is hereby ordered to suffer
the penalty of 30 days in jail. The BJMP is hereby ordered to arrest
Prosecutor Rogelio Z. Bagabuyo if he does not put up a bond
of P100,000.00.
SO ORDERD.[7]
Respondent posted the required bond and was released from the custody
of the law. He appealed the indirect contempt order to the CA.
Despite the citation of indirect contempt, respondent presented himself to
the media for interviews in Radio Station DXKS, and again attacked the integrity of
Judge Tan and the trial courts disposition in the proceedings of Crim. Case No.
5144.
In an Order dated October 20, 2003, the RTC of Surigao City, Branch 29,
required respondent to explain and to show cause within five days from receipt
thereof why he should not be held in contempt for his media interviews that
degraded the court and the presiding judge, and why he should not be suspended
from the practice of law for violating the Code of Professional Responsibility,
specifically Rule 11.05 of Canon 11[8] and Rule 13.02 of Canon 13.[9]
In the Order, the trial court stated that respondent was interviewed by Jun
Clergio, and that the interview was repeatedly aired on September 30, 2003 and in
his news program between 6:00 and 8:00 a.m. on October 1, 2003. He was also
interviewed by Tony Consing on October 1 and 2, 2003, between 8:00 and 9:00
a.m. in his radio program. In those radio interviews, respondent allegedly called
Judge Tan a judge who does not know the law, a liar, and a dictator who does not
accord due process to the people.
The hearing for the second contempt charge was set on December 4,
2003.
On November, 20, 2003, respondent filed an Urgent Motion for Extension
of Time to File Answer to Contempt alleging that he was saddled with work of equal
importance and needed ample time to answer the same. He also prayed for a bill
of particulars in order to properly prepare for his defense.
In an Order dated November 20, 2003, the trial court denied the motion. It
stated that a bill of particulars is not applicable in contempt proceedings, and that
respondents actions and statements are detailed in the Order of October 20,
2003.
On the scheduled hearing of December 4, 2003 respondent neither
appeared in court nor informed the court of his absence. The trial court
issued an Order dated December 4, 2003 cancelling the hearing to give Prosecutor
Bagabuyo all the chances he asks for, and ordered him to appear on January 12,
2004 to explain in writing or orally why he should not be cited in contempt of court
pursuant to the facts stated in the Order dated October 20, 2003. However,
respondent did not appear in the scheduled hearing of January 12, 2004.
On January 15, 2004, the trial court received respondents Answer
dated January 8, 2004. Respondent denied the charge that he sought to be
interviewed by radio station DXKS. He, however, stated that right after the hearing
of September 30, 2003, he was approached by someone who asked him to
comment on the Order issued in open court, and that his comment does not fall
within the concept of indirect contempt of court. He also admitted that he was
interviewed by his friend, Tony Consing, at the latters instance. He justified his
response during the interview as a simple exercise of his constitutional right
of freedom of speech and that it was not meant to offend or malign, and was
without malice.
On February 8, 2004, the trial court issued an Order, the dispositive
portion of which reads:
WHEREFORE, finding preponderant evidence that
Prosecutor Bagabuyo has grossly violated the Canons of the legal
profession and [is] guilty of grave professional misconduct,
rendering him unfit to continue to be entrusted with the duties
and responsibilities belonging to the office of an attorney, he is
hereby SUSPENDED from the practice of law.
Likewise, he is also found guilty of indirect contempt of
court, for which he is hereby ordered to suffer the penalty of
IMPRISONMENT for ninety (90) days to be served at the Surigao
City Jail and to pay the maximum fine of THIRTY THOUSAND
PESOS (P30,000.00). Future acts of contempt will be dealt with
more severely.
Let copies of the relevant records be immediately
forwarded to the Supreme Court for automatic review and for
further determination of grounds for [the] disbarment of
Prosecutor Rogelio Z. Bagabuyo.[10]
The trial court found respondents denials to be lame as the tape of his
interview on October 2, 2003, duly transcribed, showed disrespect of the court and
its officers, thus:
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Legal Ethics
TONY CONSING: Fiscal, nanglabay ang mga oras, nanglabay
ang gamayng panahon ang samad
sa imong kasingkasing nagpabilin pa
ba ni. O ingnon nato duna na bay
pagbag-o sa imong huna-huna
karon?
(Fiscal, after the lapse of time, are you still hurt? Or have you not
changed your mind yet?)
BAGABUYO : Ang akong huna-huna kon aduna man ugaling
pagbag-o ang pagsiguro, ang mga
Huwes nga dili mahibalo sa balaod
tangtangon pagka abogado, mao
kana.
(If my mind has changed at all, it is that I ensure that all judges
who are ignorant of the law should
be disbarred. Thats it.)
xxx
BAGABUYO : Mao kana ang tinuod, Ton, ug kining akong
guibatonan karon nga hunahuna
mahitungod nianang mga Huwes
nga dili kahibalo sa balaod,
magkadugay magkalami. Kada
adlao nagatoon ako. Nagabasa ako
sa mga bag-ong jurisprudence ug sa
atong balaod aron sa pagsiguro
gayod nga inigsang-at unya nako sa
kaso nga disbarment niining di
mahibalo nga Huwes, sigurado
gayod ako nga katangtangan siya sa
lisensiya . . . . Ang kini nga Huwes
nga dili mahibalo sa balaod,
pagatangtangon na, dili lamang sa
pagka-Huwes kon dili sa pagka-
abogado. Tan-awa ra gyod kining
iyang gibuhat nga Order, Ton,
ang iyang pagkabakakon . . . .
(Thats true, Ton, and this conviction I have now about judges who
are ignorant of the law is made
firmer by time. I study everyday. I
read new jurisprudence and the law
to insure that when I file the
disbarment case against this Judge
who does not know his law, I am
certain that he loses his
license. . . . This judge who is
ignorant of the law should not only
be removed as a judge but should
also be disbarred. Just take a look at
his Order, Ton, and see what a liar
he is . . . .)
xxx
BAGABUYO : Yes, nag-ingon ang iyang Order. . . . Ngano nga
nakaingon ako nga bakakon kini,
nag-ingon nga kini konong order
given in open court, ang kalooy sa
dios, ang iyang order sa Korte wala
siya mag-ingon ug kantidad
nga P100,000.00 nga bail bond. . . .
(Yes, his Order said that . . . . Why did I say that he is a liar? It
states that this Order was given in
open court, and in Gods mercy, he
did not state the amount
of P100,000.00 as bail bond. . . .)
BAGABUYO : Kay dili man lagi mahibalo sa balaod, ako
siyang gui-ingnan, Your Honor, I have the right to appeal. Mibalik
dayon, ug miingon siya, BJMP arrest
Bagabuyo.
(Because he does not know the law,
I said, Your Honor, I have the right to
appeal. Then he came back and
said, BJMP, arrest Bagabuyo.)
xxx
BAGABUYO : . . . P100,000.00 ang iyang guipapiyansa.
Naunsa na? Dinhi makita nimo ang
iyang pagka gross ignorance of the
law. . . .
(He imposed a bail of P100,000.00. How come? This is where you
will see his gross ignorance of the
law. . . . )
xxx
TONY CONSING : So karon, unsay plano nimo karon?
(So what is your plan now?)
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Legal Ethics
BAGABUYO : Sumala sa akong gui-ingon moundang lang ako kon
matangtang na siya sa pagka
abogado. . . .
(As I have said, I will only stop if he is already disbarred. . . .)
xxx
BAGABUYO : Nasuko siya niini kay hambugero kuno, pero
angayan niyang hibaw-an nga ang
trabajo sa Huwes dili ang pagtan-aw
kon ang tawo hambugero . . . . Ug
ang akong gisulti mao lamang ang
balaod nga siya in fact at that time I
said he is not conversant of the law,
with regards to the case of
murder. . . .
(He got angry because I was allegedly bragging but he should
know that it is not for a judge to
determine if a person is a braggart. .
. .And what I said was based on the
law. In fact, at that time, I said he is
not conversant of the law, with
regards to the case of murder . . . .)
xxx
BAGABUYO : Ah, mi sit down sab ako, contempt ra ba kadto . . . .
Mao kana, pero unsa may iyang
katuyoan ang iyang katuyoan nga
ipa-adto ako didto kay didto, iya
akong pakauwawan kay iya kong
sikopon, iya kong ipa-priso, pero kay
di man lagi mahibalo sa balaod, ang
iyang gui orderan BJMP, intawon por
dios por Santo, Mr. Tan, pagbasa
intawon ug balaod, naunsa ka ba Mr.
Tan? Unsa may imong hunahuna nga
kon ikaw Huwes, ikaw na ang
diktador, no way, no sir, ours is a
democratic country where all and
everyone is entitled to due process
of law you did not accord me due
process of law . . . .
(I sat down. . . . Thats it. But what was his purpose? He made me
come in order to humiliate me
because he wanted me arrested, he
wanted me imprisoned, but because
he is ignorant of the law, he ordered
the BMJP. For Gods sake, Mr. Tan,
whats wrong with you, Mr.
Tan? Please read the law. What is
your thinking? That when you are a
judge, you are also a dictator? No
way, no sir, ours is a democratic
country where all and everyone is
entitled to due process of law you
did not accord me due process of
law. . . .)
TONY CONSING: So mopasaka kang disbarment, malaumon kita
nga maaksiyonan kini, with all this
problem sa Korte Suprema.
(So you are filing a disbarment case? We hope that this be given
action with all the problems in the
Supreme Court.)
BAGABUYO : Dili ako mabalaka niana kay usa ka truck ang
akong jurisprudence, nga ang mga
Huwes nga di mahibalo sa balaod
pagatangtangon gayod sa ilang
pagka Huwes. . . . Apan unsa man
intawon ang balaod ang iyang
gibasa niini nadunggan ko nga kini
kuno siya madjongero, mao bitaw
na, madjong ang iyang guitunan?
(I am not worried because I have a truckload of jurisprudence that
judges who are ignorant of the law
must be removed from the
Bench. But what law has he been
reading? I heard that he is a
mahjong aficionado (mahjongero)
and that is why he is studying
mahjong.[11]
The trial court concluded that respondent, as a member of the bar and an
officer of the court, is duty bound to uphold the dignity and authority of the court,
and should not promote distrust in the administration of justice.
The trial court stated that it is empowered to suspend respondent from the
practice of law under Sec. 28, Rule 138 of the Rules of Court [12] for any of the
causes mentioned in Sec. 27[13] of the same Rule. Respondent was given the
opportunity to be heard, but he opted to be silent. Thus, it held that the
requirement of due process has been duly satisfied.
86
Legal Ethics
In accordance with the provisions of Sec. 29, [14] Rule 138 and Sec. 9,
Rule 139 of the Rules of Court, the RTC of Surigao City, Branch 29, transmitted
[15]
to the Office of the Bar Confidant the Statement of Facts of respondents
suspension from the practice of law, dated July 14, 2005, together with the order of
suspension and other relevant documents.
In its Report dated January 4, 2006, the Office of the Bar Confidant found
that the article in the August 18, 2003 issue of the Mindanao Gold Star Daily, which
maligned the integrity and independence of the court and its officers, and
respondents criticism of the trial courts Order dated November 12, 2002, which
was aired in radio station DXKS, both in connection with Crim. Case No. 5144,
constitute grave violation of oath of office by respondent. It stated that the
requirement of due process was complied with when respondent was given an
opportunity to be heard, but respondent chose to remain silent.
The Office of the Bar Confidant recommended the implementation of the
trial courts order of suspension dated February 8, 2004, and that respondent be
suspended from the practice of law for one year, with a stern warning that
the repetition of a similar offense will be dealt with more severely.
The Court approves the recommendation of the Office of the Bar
Confidant. It has been reiterated in Gonzaga v. Villanueva, Jr.[16] that:
A lawyer may be disbarred or suspended for any violation
of his oath, a patent disregard of his duties, or an odious
deportment unbecoming an attorney. Among the grounds
enumerated in Section 27, Rule 138 of the Rules of Court are
deceit; malpractice; gross misconduct in office; grossly immoral
conduct; conviction of a crime involving moral turpitude; any
violation of the oath which he is required to take before admission
to the practice of law; willful disobedience of any lawful order of a
superior court; corrupt or willful appearance as an attorney for a
party to a case without authority to do so. The grounds are not
preclusive in nature even as they are broad enough as to cover
practically any kind of impropriety that a lawyer does or commits
in his professional career or in his private life. A lawyer must at no
time be wanting in probity and moral fiber which are not only
conditions precedent to his entrance to the Bar, but are likewise
essential demands for his continued membership therein.
Lawyers are licensed officers of the courts who are empowered to appear,
prosecute and defend; and upon whom peculiar duties, responsibilities and
liabilities are devolved by law as a consequence. [17] Membership in the bar imposes
upon them certain obligations.[18]Canon 11 of the Code of Professional
Responsibility mandates a lawyer to observe and maintain the respect due to the
courts and to judicial officers and [he] should insist on similar conduct by
others. Rule 11.05 of Canon 11 states that a lawyer shall submit grievances
against a judge to the proper authorities only.
Respondent violated Rule 11.05 of Canon 11 when he admittedly caused
the holding of a press conference where he made statements against the Order
dated November 12, 2002 allowing the accused in Crim. Case No. 5144 to be
released on bail.
Respondent also violated Canon 11 when he indirectly stated that Judge
Tan was displaying judicial arrogance in the article entitled, Senior prosecutor
lambasts Surigao judge for allowing murder suspect to bail out, which appeared in
the August 18, 2003 issue of the Mindanao Gold Star Daily. Respondents
statements in the article, which were made while Crim. Case No. 5144 was still
pending in court, also violated Rule 13.02 of Canon 13, which states that a lawyer
shall not make public statements in the media regarding a pending case tending to
arouse public opinion for or against a party.
In regard to the radio interview given to Tony Consing, respondent violated
Rule 11.05 of Canon 11 of the Code of Professional Responsibility for not resorting
to the proper authorities only for redress of his grievances against Judge
Tan. Respondent also violated Canon 11 for his disrespect of the court and its
officer when he stated that Judge Tan was ignorant of the law, that as a
mahjong aficionado, he was studying mahjong instead of studying the law, and
that he was a liar.
Respondent also violated the Lawyers Oath, as he has sworn to conduct
[himself] as a lawyer according to the best of [his] knowledge and discretion with
all good fidelity as well to the courts as to [his] clients.
As a senior state prosecutor and officer of the court, respondent should
have set the example of observing and maintaining the respect due to the courts
and to judicial officers. Montecillo v. Gica[19] held:
It is the duty of the lawyer to maintain towards the courts
a respectful attitude. As an officer of the court, it is his duty to
uphold the dignity and authority of the court to which he owes
fidelity, according to the oath he has taken. Respect for the courts
guarantees the stability of our democratic institutions which,
without such respect, would be resting on a very shaky
foundation.
The Court is not against lawyers raising grievances against erring judges
but the rules clearly provide for the proper venue and procedure for doing so,
precisely because respect for the institution must always be maintained.
WHEREFORE, in view of the foregoing, Atty. Rogelio Z. Bagabuyo is found
guilty of violating Rule 11.05, Canon 11 and Rule 13.02, Canon 13 of the Code of
Professional Responsibility, and of violating the Lawyers Oath, for which he
is SUSPENDED from the practice of law for one (1) year effective upon finality of
this Decision, with a STERN WARNING that the repetition of a similar offense shall
be dealt with more severely.
87
Legal Ethics

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

No costs.

SO ORDERED.

88
Legal Ethics
THE INSULAR LIFE ASSURANCE CO., LTD., EMPLOYEES ASSOCIATION-
NATU, FGU INSURANCE GROUP WORKERS and EMPLOYEES
ASSOCIATION-NATU, and INSULAR LIFE BUILDING EMPLOYEES
ASSOCIATION-NATU, petitioners,
vs.
THE INSULAR LIFE ASSURANCE CO., LTD., FGU INSURANCE GROUP,
JOSE M. OLBES and COURT OF INDUSTRIAL RELATIONS, respondents.
Appeal, by certiorari to review a decision and a resolution en banc of the Court
of Industrial Relations dated August 17, 1965 and October 20, 1965,
respectively, in Case 1698-ULP.
The Insular Life Assurance Co., Ltd., Employees Association-NATU, FGU
Insurance Group Workers & Employees Association-NATU, and Insular Life
Building Employees Association-NATU (hereinafter referred to as the Unions),
while still members of the Federation of Free Workers (FFW), entered into
separate collective bargaining agreements with the Insular Life Assurance Co.,
Ltd. and the FGU Insurance Group (hereinafter referred to as the Companies).
Two of the lawyers of the Unions then were Felipe Enaje and Ramon Garcia;
the latter was formerly the secretary-treasurer of the FFW and acting
president of the Insular Life/FGU unions and the Insular Life Building
Employees Association. Garcia, as such acting president, in a circular issued in
his name and signed by him, tried to dissuade the members of the Unions
from disaffiliating with the FFW and joining the National Association of Trade
Unions (NATU), to no avail.
Enaje and Garcia soon left the FFW and secured employment with the Anti-
Dummy Board of the Department of Justice. Thereafter, the Companies hired
Garcia in the latter part of 1956 as assistant corporate secretary and legal
assistant in their Legal Department, and he was soon receiving P900 a month,
or P600 more than he was receiving from the FFW. Enaje was hired on or
about February 19, 1957 as personnel manager of the Companies, and was
likewise made chairman of the negotiating panel for the Companies in the
collective bargaining with the Unions.
In a letter dated September 16, 1957, the Unions jointly submitted proposals
to the Companies for a modified renewal of their respective collective
bargaining contracts which were then due to expire on September 30, 1957.
The parties mutually agreed and to make whatever benefits could be agreed
upon retroactively effective October 1, 1957.
Thereafter, in the months of September and October 1957 negotiations were
conducted on the Union's proposals, but these were snagged by a deadlock on
the issue of union shop, as a result of which the Unions filed on January 27,
1958 a notice of strike for "deadlock on collective bargaining." Several
conciliation conferences were held under the auspices of the Department of
Labor wherein the conciliators urged the Companies to make reply to the
Unions' proposals en toto so that the said Unions might consider the feasibility
of dropping their demand for union security in exchange for other benefits.
However, the Companies did not make any counter-proposals but, instead,
insisted that the Unions first drop their demand for union security, promising
money benefits if this was done. Thereupon, and prior to April 15, 1958, the
petitioner Insular Life Building Employees Association-NATU dropped this
particular demand, and requested the Companies to answer its demands,
point by point, en toto. But the respondent Insular Life Assurance Co. still
refused to make any counter-proposals. In a letter addressed to the two other
Unions by the joint management of the Companies, the former were also
asked to drop their union security demand, otherwise the Companies "would
no longer consider themselves bound by the commitment to make money
benefits retroactive to October 1, 1957." By a letter dated April 17, 1958, the
remaining two petitioner unions likewise dropped their demand for union
shop. April 25, 1958 then was set by the parties to meet and discuss the
remaining demands.
From April 25 to May 6, 1958, the parties negotiated on the labor demands
but with no satisfactory result due to a stalemate on the matter of salary
increases. On May 13, 1958 the Unions demanded from the Companies final
counter-proposals on their economic demands, particularly on salary
increases. Instead of giving counter-proposals, the Companies on May 15,
1958 presented facts and figures and requested the Unions to submit a
workable formula which would justify their own proposals, taking into account
the financial position of the former. Forthwith the Unions voted to declare a
strike in protest against what they considered the Companies' unfair labor
practices.
Meanwhile, eighty-seven (87) unionists were reclassified as supervisors
without increase in salary nor in responsibility while negotiations were going
on in the Department of Labor after the notice to strike was served on the
Companies. These employees resigned from the Unions.
On May 20, 1958 the Unions went on strike and picketed the offices of the
Insular Life Building at Plaza Moraga.
On May 21, 1958 the Companies through their acting manager and president,
the respondent Jose M. Olbes (hereinafter referred to as the respondent
Olbes), sent to each of the strikers a letter (exhibit A) quoted verbatim as
follows:
We recognize it is your privilege both to strike and to conduct
picketing.
However, if any of you would like to come back to work
voluntarily, you may:
1. Advise the nearest police officer or security guard of your
intention to do so.
2. Take your meals within the office.
3. Make a choice whether to go home at the end of the day or
to sleep nights at the office where comfortable cots have been
prepared.
4. Enjoy free coffee and occasional movies.
5. Be paid overtime for work performed in excess of eight
hours.
6. Be sure arrangements will be made for your families.
The decision to make is yours whether you still believe in
the motives of the strike or in the fairness of the Management.
89
Legal Ethics
The Unions, however, continued on strike, with the exception of a few
unionists who were convinced to desist by the aforesaid letter of May 21,
1958.
From the date the strike was called on May 21, 1958, until it was called off on
May 31, 1958, some management men tried to break thru the Unions' picket
lines. Thus, on May 21, 1958 Garcia, assistant corporate secretary, and
Vicente Abella, chief of the personnel records section, respectively of the
Companies, tried to penetrate the picket lines in front of the Insular Life
Building. Garcia, upon approaching the picket line, tossed aside the placard of
a picketer, one Paulino Bugay; a fight ensued between them, in which both
suffered injuries. The Companies organized three bus-loads of employees,
including a photographer, who with the said respondent Olbes, succeeded in
penetrating the picket lines in front of the Insular Life Building, thus causing
injuries to the picketers and also to the strike-breakers due to the resistance
offered by some picketers.
Alleging that some non-strikers were injured and with the use of photographs
as evidence, the Companies then filed criminal charges against the strikers
with the City Fiscal's Office of Manila. During the pendency of the said cases in
the fiscal's office, the Companies likewise filed a petition for injunction with
damages with the Court of First Instance of Manila which, on the basis of the
pendency of the various criminal cases against striking members of the
Unions, issued on May 31, 1958 an order restraining the strikers, until further
orders of the said court, from stopping, impeding, obstructing, etc. the free
and peaceful use of the Companies' gates, entrance and driveway and the
free movement of persons and vehicles to and from, out and in, of the
Companies' building.
On the same date, the Companies, again through the respondent Olbes, sent
individually to the strikers a letter (exhibit B), quoted hereunder in its entirety:
The first day of the strike was last 21 May 1958.
Our position remains unchanged and the strike has made us
even more convinced of our decision.
We do not know how long you intend to stay out, but we
cannot hold your positions open for long. We have continued
to operate and will continue to do so with or without you.
If you are still interested in continuing in the employ of the
Group Companies, and if there are no criminal charges
pending against you, we are giving you until 2 June 1958 to
report for work at the home office. If by this date you have not
yet reported, we may be forced to obtain your replacement.
Before, the decisions was yours to make.
So it is now.
Incidentally, all of the more than 120 criminal charges filed against the
members of the Unions, except three (3), were dismissed by the fiscal's office
and by the courts. These three cases involved "slight physical injuries" against
one striker and "light coercion" against two others.
At any rate, because of the issuance of the writ of preliminary injunction
against them as well as the ultimatum of the Companies giving them until
June 2, 1958 to return to their jobs or else be replaced, the striking employees
decided to call off their strike and to report back to work on June 2, 1958.
However, before readmitting the strikers, the Companies required them not
only to secure clearances from the City Fiscal's Office of Manila but also to be
screened by a management committee among the members of which were
Enage and Garcia. The screening committee initially rejected 83 strikers with
pending criminal charges. However, all non-strikers with pending criminal
charges which arose from the breakthrough incident were readmitted
immediately by the Companies without being required to secure clearances
from the fiscal's office. Subsequently, when practically all the strikers had
secured clearances from the fiscal's office, the Companies readmitted only
some but adamantly refused readmission to 34 officials and members of the
Unions who were most active in the strike, on the ground that they committed
"acts inimical to the interest of the respondents," without however stating the
specific acts allegedly committed. Among those who were refused
readmission are Emiliano Tabasondra, vice president of the Insular Life
Building Employees' Association-NATU; Florencio Ibarra, president of the FGU
Insurance Group Workers & Employees Association-NATU; and Isagani Du
Timbol, acting president of the Insular Life Assurance Co., Ltd. Employees
Association-NATU. Some 24 of the above number were ultimately notified
months later that they were being dismissed retroactively as of June 2, 1958
and given separation pay checks computed under Rep. Act 1787, while others
(ten in number) up to now have not been readmitted although there have
been no formal dismissal notices given to them.
On July 29, 1958 the CIR prosecutor filed a complaint for unfair labor practice
against the Companies under Republic Act 875. The complaint specifically
charged the Companies with (1) interfering with the members of the Unions in
the exercise of their right to concerted action, by sending out individual letters
to them urging them to abandon their strike and return to work, with a
promise of comfortable cots, free coffee and movies, and paid overtime, and,
subsequently, by warning them that if they did not return to work on or before
June 2, 1958, they might be replaced; and (2) discriminating against the
members of the Unions as regards readmission to work after the strike on the
basis of their union membership and degree of participation in the strike.
On August 4, 1958 the Companies filed their answer denying all the material
allegations of the complaint, stating special defenses therein, and asking for
the dismissal of the complaint.
After trial on the merits, the Court of Industrial Relations, through Presiding
Judge Arsenio Martinez, rendered on August 17, 1965 a decision dismissing
the Unions' complaint for lack of merit. On August 31, 1965 the Unions
seasonably filed their motion for reconsideration of the said decision, and their
supporting memorandum on September 10, 1965. This was denied by the
Court of Industrial Relations en banc in a resolution promulgated on October
20, 1965.
Hence, this petition for review, the Unions contending that the lower court
erred:
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Legal Ethics
1. In not finding the Companies guilty of unfair labor practice
in sending out individually to the strikers the letters marked
Exhibits A and B;
2. In not finding the Companies guilty of unfair labor practice
for discriminating against the striking members of the Unions
in the matter of readmission of employees after the strike;
3. In not finding the Companies guilty of unfair labor practice
for dismissing officials and members of the Unions without
giving them the benefit of investigation and the opportunity to
present their side in regard to activities undertaken by them in
the legitimate exercise of their right to strike; and
4. In not ordering the reinstatement of officials and members
of the Unions, with full back wages, from June 2, 1958 to the
date of their actual reinstatement to their usual employment.
I. The respondents contend that the sending of the letters, exhibits A and B,
constituted a legitimate exercise of their freedom of speech. We do not agree.
The said letters were directed to the striking employees individually by
registered special delivery mail at that without being coursed through the
Unions which were representing the employees in the collective bargaining.
The act of an employer in notifying absent employees
individually during a strike following unproductive efforts at
collective bargaining that the plant would be operated the
next day and that their jobs were open for them should they
want to come in has been held to be an unfair labor practice,
as an active interference with the right of collective bargaining
through dealing with the employees individually instead of
through their collective bargaining representatives. (31 Am.
Jur. 563, citing NLRB v. Montgomery Ward & Co. [CA 9th] 133
F2d 676, 146 ALR 1045)
Indeed, it is an unfair labor practice for an employer operating under a
collective bargaining agreement to negotiate or to attempt to negotiate with
his employees individually in connection with changes in the agreement. And
the basis of the prohibition regarding individual bargaining with the strikers is
that although the union is on strike, the employer is still under obligation to
bargain with the union as the employees' bargaining representative (Melo
Photo Supply Corporation vs. National Labor Relations Board, 321 U.S. 332).
Indeed, some such similar actions are illegal as constituting unwarranted acts
of interference. Thus, the act of a company president in writing letters to the
strikers, urging their return to work on terms inconsistent with their union
membership, was adjudged as constituting interference with the exercise of
his employees' right to collective bargaining (Lighter Publishing, CCA 7th, 133
F2d 621). It is likewise an act of interference for the employer to send a letter
to all employees notifying them to return to work at a time specified therein,
otherwise new employees would be engaged to perform their jobs. Individual
solicitation of the employees or visiting their homes, with the employer or his
representative urging the employees to cease union activity or cease striking,
constitutes unfair labor practice. All the above-detailed activities are unfair
labor practices because they tend to undermine the concerted activity of the
employees, an activity to which they are entitled free from the employer's
molestation.1
Moreover, since exhibit A is a letter containing promises of benefits to the
employees in order to entice them to return to work, it is not protected by the
free speech provisions of the Constitution (NLRB v. Clearfield Cheese Co., Inc.,
213 F2d 70). The same is true with exhibit B since it contained threats to
obtain replacements for the striking employees in the event they did not
report for work on June 2, 1958. The free speech protection under the
Constitution is inapplicable where the expression of opinion by the employer
or his agent contains a promise of benefit, or threats, or reprisal (31 Am. Jur.
544; NLRB vs. Clearfield Cheese Co., Inc., 213 F2d 70; NLRB vs. Goigy Co., 211
F2d 533, 35 ALR 2d 422).
Indeed, when the respondents offered reinstatement and attempted to "bribe"
the strikers with "comfortable cots," "free coffee and occasional movies,"
"overtime" pay for "work performed in excess of eight hours," and
"arrangements" for their families, so they would abandon the strike and return
to work, they were guilty of strike-breaking and/or union-busting and,
consequently, of unfair labor practice. It is equivalent to an attempt to break a
strike for an employer to offer reinstatement to striking employees
individually, when they are represented by a union, since the employees thus
offered reinstatement are unable to determine what the consequences of
returning to work would be.
Likewise violative of the right to organize, form and join labor organizations
are the following acts: the offer of a Christmas bonus to all "loyal" employees
of a company shortly after the making of a request by the union to bargain;
wage increases given for the purpose of mollifying employees after the
employer has refused to bargain with the union, or for the purpose of inducing
striking employees to return to work; the employer's promises of benefits in
return for the strikers' abandonment of their strike in support of their union;
and the employer's statement, made about 6 weeks after the strike started, to
a group of strikers in a restaurant to the effect that if the strikers returned to
work, they would receive new benefits in the form of hospitalization, accident
insurance, profit-sharing, and a new building to work in. 2
Citing paragraph 5 of the complaint filed by the acting prosecutor of the lower
court which states that "the officers and members of the complainant unions
decided to call off the strike and return to work on June 2, 1958 by reason of
the injunction issued by the Manila Court of First Instance," the respondents
contend that this was the main cause why the strikers returned to work and
not the letters, exhibits A and B. This assertion is without merit. The
circumstance that the strikers later decided to return to work ostensibly on
account of the injunctive writ issued by the Court of First Instance of Manila
cannot alter the intrinsic quality of the letters, which were calculated, or which
tended, to interfere with the employees' right to engage in lawful concerted
activity in the form of a strike. Interference constituting unfair labor practice
will not cease to be such simply because it was susceptible of being thwarted
or resisted, or that it did not proximately cause the result intended. For
success of purpose is not, and should not, be the criterion in determining
whether or not a prohibited act constitutes unfair labor practice.
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Legal Ethics
The test of whether an employer has interfered with and
coerced employees within the meaning of subsection (a) (1) is
whether the employer has engaged in conduct which it may
reasonably be said tends to interfere with the free exercise of
employees' rights under section 3 of the Act, and it is not
necessary that there be direct evidence that any employee
was in fact intimidated or coerced by statements of threats of
the employer if there is a reasonable inference that anti-union
conduct of the employer does have an adverse effect on self-
organization and collective bargaining. (Francisco, Labor Laws
1956, Vol. II, p. 323, citing NLRB v. Ford, C.A., 1948, 170 F2d
735).
Besides, the letters, exhibits A and B, should not be considered by themselves
alone but should be read in the light of the preceding and subsequent
circumstances surrounding them. The letters should be interpreted according
to the "totality of conduct doctrine,"
... whereby the culpability of an employer's remarks were to
be evaluated not only on the basis of their implicit
implications, but were to be appraised against the background
of and in conjunction with collateral circumstances. Under this
"doctrine" expressions of opinion by an employer which,
though innocent in themselves, frequently were held to be
culpable because of the circumstances under which they were
uttered, the history of the particular employer's labor relations
or anti-union bias or because of their connection with an
established collateral plan of coercion or interference.
(Rothenberg on Relations, p. 374, and cases cited therein.)
It must be recalled that previous to the petitioners' submission of proposals
for an amended renewal of their respective collective bargaining agreements
to the respondents, the latter hired Felipe Enage and Ramon Garcia, former
legal counsels of the petitioners, as personnel manager and assistant
corporate secretary, respectively, with attractive compensations. After the
notice to strike was served on the Companies and negotiations were in
progress in the Department of Labor, the respondents reclassified 87
employees as supervisors without increase in salary or in responsibility, in
effect compelling these employees to resign from their unions. And during the
negotiations in the Department of Labor, despite the fact that the petitioners
granted the respondents' demand that the former drop their demand for union
shop and in spite of urgings by the conciliators of the Department of Labor,
the respondents adamantly refused to answer the Unions' demands en toto.
Incidentally, Enage was the chairman of the negotiating panel for the
Companies in the collective bargaining between the former and the Unions.
After the petitioners went to strike, the strikers were individually sent copies
of exhibit A, enticing them to abandon their strike by inducing them to return
to work upon promise of special privileges. Two days later, the respondents,
thru their president and manager, respondent Jose M. Olbes, brought three
truckloads of non-strikers and others, escorted by armed men, who, despite
the presence of eight entrances to the three buildings occupied by the
Companies, entered thru only one gate less than two meters wide and in the
process, crashed thru the picket line posted in front of the premises of the
Insular Life Building. This resulted in injuries on the part of the picketers and
the strike-breakers.lwph1.t Then the respondents brought against the
picketers criminal charges, only three of which were not dismissed, and these
three only for slight misdemeanors. As a result of these criminal actions, the
respondents were able to obtain an injunction from the court of first instance
restraining the strikers from stopping, impeding, obstructing, etc. the free and
peaceful use of the Companies' gates, entrance and driveway and the free
movement of persons and vehicles to and from, out and in, of the Companies'
buildings. On the same day that the injunction was issued, the letter, Exhibit
B, was sent again individually and by registered special delivery mail to
the strikers, threatening them with dismissal if they did not report for work on
or before June 2, 1958. But when most of the petitioners reported for work,
the respondents thru a screening committee of which Ramon Garcia was a
member refused to admit 63 members of the Unions on the ground of
"pending criminal charges." However, when almost all were cleared of criminal
charges by the fiscal's office, the respondents adamantly refused admission to
34 officials and union members. It is not, however, disputed that all-non-
strikers with pending criminal charges which arose from the breakthrough
incident of May 23, 1958 were readmitted immediately by the respondents.
Among the non-strikers with pending criminal charges who were readmitted
were Generoso Abella, Enrique Guidote, Emilio Carreon, Antonio Castillo,
Federico Barretto, Manuel Chuidian and Nestor Cipriano. And despite the fact
that the fiscal's office found no probable cause against the petitioning strikers,
the Companies adamantly refused admission to them on the pretext that they
committed "acts inimical to the interest of the respondents," without stating
specifically the inimical acts allegedly committed. They were soon to admit,
however, that these alleged inimical acts were the same criminal charges
which were dismissed by the fiscal and by the courts..
Verily, the above actuations of the respondents before and after the issuance
of the letters, exhibit A and B, yield the clear inference that the said letters
formed of the respondents scheme to preclude if not destroy unionism within
them.
To justify the respondents' threat to dismiss the strikers and secure
replacements for them in order to protect and continue their business, the CIR
held the petitioners' strike to be an economic strike on the basis of exhibit 4
(Notice of Strike) which states that there was a "deadlock in collective
bargaining" and on the strength of the supposed testimonies of some union
men who did not actually know the very reason for the strike. It should be
noted that exhibit 4, which was filed on January 27, 1958, states, inter alia:
TO: BUREAU OF LABOR RELATIONS
DEPARTMENT OF LABOR
MANILA
Thirty (30) days from receipt of this notice by the Office, this
[sic] unions intends to go on strike against
THE INSULAR LIFE ASSURANCE CO., LTD.
Plaza Moraga, Manila
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Legal Ethics
THE FGU INSURANCE GROUP
Plaza Moraga, Manila
INSULAR LIFE BUILDING ADMINISTRATION
Plaza Moraga, Manila .
for the following reason: DEADLOCK IN COLLECTIVE
BARGAINING...
However, the employees did not stage the strike after the thirty-day period,
reckoned from January 27, 1958. This simply proves that the reason for the
strike was not the deadlock on collective bargaining nor any lack of economic
concessions. By letter dated April 15, 1958, the respondents categorically
stated what they thought was the cause of the "Notice of Strike," which so far
as material, reads:
3. Because you did not see fit to agree with our position on
the union shop, you filed a notice of strike with the Bureau of
Labor Relations on 27 January 1958, citing `deadlock in
collective bargaining' which could have been for no other
issue than the union shop." (exhibit 8, letter dated April 15,
1958.)
The strike took place nearly four months from the date the said notice of strike
was filed. And the actual and main reason for the strike was, "When it became
crystal clear the management double crossed or will not negotiate in good
faith, it is tantamount to refusal collectively and considering the unfair labor
practice in the meantime being committed by the management such as the
sudden resignation of some unionists and [who] became supervisors without
increase in salary or change in responsibility, such as the coercion of
employees, decided to declare the strike." (tsn., Oct. 14, 1958, p. 14.) The
truth of this assertion is amply proved by the following circumstances: (1) it
took the respondents six (6) months to consider the petitioners' proposals,
their only excuse being that they could not go on with the negotiations if the
petitioners did not drop the demand for union shop (exh. 7, respondents'
letter dated April 7, 1958); (2) when the petitioners dropped the demand for
union shop, the respondents did not have a counter-offer to the petitioners'
demands. Sec. 14 of Rep. Act 875 required the respondents to make a reply to
the petitioners' demands within ten days from receipt thereof, but instead
they asked the petitioners to give a "well reasoned, workable formula which
takes into account the financial position of the group companies." (tsn., Sept.
8, 1958, p. 62; tsn., Feb. 26, 1969, p. 49.)
II. Exhibit H imposed three conditions for readmission of the strikers, namely:
(1) the employee must be interested in continuing his work with the group
companies; (2) there must be no criminal charges against him; and (3) he
must report for work on June 2, 1958, otherwise he would be replaced. Since
the evidence shows that all the employees reported back to work at the
respondents' head office on June 2, 1953, they must be considered as having
complied with the first and third conditions.
Our point of inquiry should therefore be directed at whether they also
complied with the second condition. It is not denied that when the strikers
reported for work on June 2, 1958, 63 members of the Unions were refused
readmission because they had pending criminal charges. However, despite
the fact that they were able to secure their respective clearances 34 officials
and union members were still refused readmission on the alleged ground that
they committed acts inimical to the Companies. It is beyond dispute, however,
that non-strikers who also had criminal charges pending against them in the
fiscal's office, arising from the same incidents whence the criminal charges
against the strikers evolved, were readily readmitted and were not required to
secure clearances. This is a clear act of discrimination practiced by the
Companies in the process of rehiring and is therefore a violation of sec. 4(a)
(4) of the Industrial Peace Act.
The respondents did not merely discriminate against all the strikers in
general. They separated the active from the less active unionists on the basis
of their militancy, or lack of it, on the picket lines. Unionists belonging to the
first category were refused readmission even after they were able to secure
clearances from the competent authorities with respect to the criminal
charges filed against them. It is significant to note in this connection that
except for one union official who deserted his union on the second day of the
strike and who later participated in crashing through the picket lines, not a
single union officer was taken back to work. Discrimination undoubtedly exists
where the record shows that the union activity of the rehired strikers has been
less prominent than that of the strikers who were denied reinstatement.
So is there an unfair labor practice where the employer,
although authorized by the Court of Industrial Relations to
dismiss the employees who participated in an illegal strike,
dismissed only the leaders of the strikers, such dismissal
being evidence of discrimination against those dismissed and
constituting a waiver of the employer's right to dismiss the
striking employees and a condonation of the fault committed
by them." (Carlos and Fernando, Labor and Social Legislation,
p. 62, citing Phil. Air Lines, Inc. v. Phil. Air Lines Emloyees
Association, L-8197, Oct. 31, 1958.)
It is noteworthy that perhaps in an anticipatory effort to exculpate
themselves from charges of discrimination in the readmission of strikers
returning to work the respondents delegated the power to readmit to a
committee. But the respondent Olbes had chosen Vicente Abella, chief of the
personnel records section, and Ramon Garcia, assistant corporate secretary,
to screen the unionists reporting back to work. It is not difficult to imagine that
these two employees having been involved in unpleasant incidents with the
picketers during the strike were hostile to the strikers. Needless to say, the
mere act of placing in the hands of employees hostile to the strikers the power
of reinstatement, is a form of discrimination in rehiring.
Delayed reinstatement is a form of discrimination in rehiring,
as is having the machinery of reinstatement in the hands of
employees hostile to the strikers, and reinstating a union
official who formerly worked in a unionized plant, to a job in
another mill, which was imperfectly organized. (Morabe, The
Law on Strikes, p. 473, citing Sunshine Mining Co., 7 NLRB
1252; Cleveland Worsted Mills, 43 NLRB 545; emphasis
supplied.)
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Legal Ethics
Equally significant is the fact that while the management and the members of
the screening committee admitted the discrimination committed against the
strikers, they tossed back and around to each other the responsibility for the
discrimination. Thus, Garcia admitted that in exercising for the management
the authority to screen the returning employees, the committee admitted the
non-strikers but refused readmission to the strikers (tsn., Feb. 6, 1962, pp. 15-
19, 23-29). Vicente Abella, chairman of the management's screening
committee, while admitting the discrimination, placed the blame therefor
squarely on the management (tsn., Sept. 20, 1960, pp. 7-8, 14-18). But the
management, speaking through the respondent Olbes, head of the
Companies, disclaimed responsibility for the discrimination. He testified that
"The decision whether to accept or not an employee was left in the hands of
that committee that had been empowered to look into all cases of the
strikers." (tsn., Sept. 6, 1962, p. 19.)
Of course, the respondents through Ramon Garcia tried to explain the
basis for such discrimination by testifying that strikers whose participation in
any alleged misconduct during the picketing was not serious in nature were
readmissible, while those whose participation was serious were not. (tsn., Aug.
4, 1961, pp. 48-49, 56). But even this distinction between acts of slight
misconduct and acts of serious misconduct which the respondents contend
was the basis for either reinstatement or discharge, is completely shattered
upon a cursory examination of the evidence on record. For with the exception
of Pascual Esquillo whose dismissal sent to the other strikers cited the alleged
commission by them of simple "acts of misconduct."
III. Anent the third assignment of error, the record shows that not a single
dismissed striker was given the opportunity to defend himself against the
supposed charges against him. As earlier mentioned, when the striking
employees reported back for work on June 2, 1958, the respondents refused to
readmit them unless they first secured the necessary clearances; but when
all, except three, were able to secure and subsequently present the required
clearances, the respondents still refused to take them back. Instead, several
of them later received letters from the respondents in the following
stereotyped tenor:
This will confirm the termination of your employment with the
Insular Life-FGU Insurance Group as of 2 June 1958.
The termination of your employment was due to the fact that
you committed acts of misconduct while picketing during the
last strike. Because this may not constitute sufficient cause
under the law to terminate your employment without pay, we
are giving you the amount of P1,930.32 corresponding to one-
half month pay for every year of your service in the Group
Company.
Kindly acknowledge receipt of the check we are sending
herewith.
Very truly yours,
(Sgd.) JOSE M. OLBES
President, Insurance Life
Acting President, FGU.
The respondents, however, admitted that the alleged "acts of misconduct"
attributed to the dismissed strikers were the same acts with which the said
strikers were charged before the fiscal's office and the courts. But all these
charges except three were dropped or dismissed.
Indeed, the individual cases of dismissed officers and members of the striking
unions do not indicate sufficient basis for dismissal.
Emiliano Tabasondra, vice-president of the petitioner FGU Insurance Group
Workers & Employees Association-NATU, was refused reinstatement allegedly
because he did not report for duty on June 2, 1958 and, hence, had
abandoned his office. But the overwhelming evidence adduced at the trial and
which the respondents failed to rebut, negates the respondents' charge that
he had abandoned his job. In his testimony, corroborated by many others,
Tabasondra particularly identified the management men to whom he and his
group presented themselves on June 2, 1958. He mentioned the respondent
Olbes' secretary, De Asis, as the one who received them and later directed
them when Olbes refused them an audience to Felipe Enage, the
Companies' personnel manager. He likewise categorically stated that he and
his group went to see Enage as directed by Olbes' secretary. If Tabasondra
were not telling the truth, it would have been an easy matter for the
respondents to produce De Asis and Enage who testified anyway as
witnesses for the respondents on several occasions to rebut his testimony.
The respondents did nothing of the kind. Moreover, Tabasondra called on June
21, 1958 the respondents' attention to his non-admission and asked them to
inform him of the reasons therefor, but instead of doing so, the respondents
dismissed him by their letter dated July 10, 1958. Elementary fairness
required that before being dismissed for cause, Tabasondra be given "his day
in court."
At any rate, it has been held that mere failure to report for work after notice to
return, does not constitute abandonment nor bar reinstatement. In one case,
the U.S. Supreme Court held that the taking back of six of eleven men
constituted discrimination although the five strikers who were not reinstated,
all of whom were prominent in the union and in the strike, reported for work at
various times during the next three days, but were told that there were no
openings. Said the Court:
... The Board found, and we cannot say that its finding is
unsupported, that, in taking back six union men, the
respondent's officials discriminated against the latter on
account of their union activities and that the excuse given that
they did not apply until after the quota was full was an
afterthought and not the true reason for the discrimination
against them. (NLRB v. Mackay Radio & Telegraph Co., 304
U.S. 333, 58 Sup. Ct. 904, 82 L. Ed. 1381) (Mathews, Labor
Relations and the Law, p. 725, 728)
The respondents' allegation that Tabasondra should have returned after being
refused readmission on June 2, 1958, is not persuasive. When the employer
puts off reinstatement when an employee reports for work at the time agreed,
we consider the employee relieved from the duty of returning further.
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Legal Ethics
Sixto Tongos was dismissed allegedly because he revealed that despite the
fact that the Companies spent more than P80,000 for the vacation trips of
officials, they refused to grant union demands; hence, he betrayed his trust as
an auditor of the Companies. We do not find this allegation convincing. First,
this accusation was emphatically denied by Tongos on the witness stand.
Gonzales, president of one of the respondent Companies and one of the
officials referred to, took a trip abroad in 1958. Exchange controls were then in
force, and an outgoing traveller on a combined business and vacation trip was
allowed by the Central Bank, per its Circular 52 (Notification to Authorized
Agent Banks) dated May 9, 1952, an allocation of $1,000 or only P2,000, at
the official rate of two pesos to the dollar, as pocket money; hence, this was
the only amount that would appear on the books of the Companies. It was
only on January 21, 1962, per its Circular 133 (Notification to Authorized Agent
Banks), that the Central Bank lifted the exchange controls. Tongos could not
therefore have revealed an amount bigger than the above sum. And his
competence in figures could not be doubted considering that he had passed
the board examinations for certified public accountants. But
assuming arguendo that Tongos indeed revealed the true expenses of
Gonzales' trip which the respondents never denied or tried to
disprove his statements clearly fall within the sphere of a unionist's right to
discuss and advertise the facts involved in a labor dispute, in accordance with
section 9(a)(5) of Republic Act 875 which guarantees the untramelled exercise
by striking employees of the right to give "publicity to the existence of, or the
fact involved in any labor dispute, whether by advertising, speaking, patrolling
or by any method not involving fraud or violence." Indeed, it is not only the
right, it is as well the duty, of every unionist to advertise the facts of a dispute
for the purpose of informing all those affected thereby. In labor disputes, the
combatants are expected to expose the truth before the public to justify their
respective demands. Being a union man and one of the strikers, Tongos was
expected to reveal the whole truth on whether or not the respondent
Companies were justified in refusing to accede to union demands. After all,
not being one of the supervisors, he was not a part of management. And his
statement, if indeed made, is but an expression of free speech protected by
the Constitution.
Free speech on both sides and for every faction on any side of
the labor relation is to me a constitutional and useful right.
Labor is free ... to turn its publicity on any labor oppression,
substandard wages, employer unfairness, or objectionable
working conditions. The employer, too, should be free to
answer and to turn publicity on the records of the leaders of
the unions which seek the confidence of his men ...
(Concurring opinion of Justice Jackson in Thomas v. Collins,
323 U.S. 516, 547, 65 Sup. Ct. 315, 89 L. Ed. 430.) (Mathews,
Labor Relations and the Law, p. 591.)
The respondents also allege that in revealing certain confidential information,
Tongos committed not only a betrayal of trust but also a violation of the moral
principles and ethics of accountancy. But nowhere in the Code of Ethics for
Certified Public Accountants under the Revised Rules and Regulations of the
Board of Accountancy formulated in 1954, is this stated. Moreover, the
relationship of the Companies with Tongos was that of an employer and not a
client. And with regard to the testimonies of Juan Raymundo and Antolin
Carillo, both vice-presidents of the Trust Insurance Agencies, Inc. about the
alleged utterances made by Tongos, the lower court should not have given
them much weight. The firm of these witnesses was newly established at that
time and was still a "general agency" of the Companies. It is not therefore
amiss to conclude that they were more inclined to favor the respondents
rather than Tongos.
Pacifico Ner, Paulino Bugay, Jose Garcia, Narciso Dao, Vicente Alsol and
Hermenigildo Ramirez, opined the lower court, were constructively dismissed
by non-readmission allegedly because they not only prevented Ramon Garcia,
assistant corporate secretary, and Vicente Abella, chief of the personnel
records section of the Companies, from entering the Companies' premises on
May 21, 1958, but they also caused bruises and abrasions on Garcia's chest
and forehead acts considered inimical to the interest of the respondents.
The Unions, upon the other hand, insist that there is complete lack of
evidence that Ner took part in pushing Garcia; that it was Garcia who elbowed
his way through the picket lines and therefore Ner shouted "Close up," which
the picketers did; and that Garcia tossed Paulino Bugay's placard and a fight
ensued between them in which both suffered injuries. But despite these
conflicting versions of what actually happened on May 21, 1958, there are
grounds to believe that the picketers are not responsible for what
happened.lwph1.t The picketing on May 21, 1958, as reported in the
police blotter, was peaceful (see Police blotter report, exh. 3 in CA-G.R. No.
25991-R of the Court of Appeals, where Ner was acquitted). Moreover,
although the Companies during the strike were holding offices at the Botica
Boie building at Escolta, Manila; Tuason Building at San Vicente Street, Manila;
and Ayala, Inc. offices at Makati, Rizal, Garcia, the assistant corporate
secretary, and Abella, the chief of the personnel records section, reported for
work at the Insular Life Building. There is therefore a reasonable suggestion
that they were sent to work at the latter building to create such an incident
and have a basis for filing criminal charges against the petitioners in the
fiscal's office and applying for injunction from the court of first instance.
Besides, under the circumstances the picketers were not legally bound to yield
their grounds and withdraw from the picket lines. Being where the law expects
them to be in the legitimate exercise of their rights, they had every reason to
defend themselves and their rights from any assault or unlawful transgression.
Yet the police blotter, about adverted to, attests that they did not resort to
violence.
The heated altercations and occasional blows exchanged on the picket line do
not affect or diminish the right to strike. Persuasive on this point is the
following commentary: .
We think it must be conceded that some disorder is
unfortunately quite usual in any extensive or long drawn out
strike. A strike is essentially a battle waged with economic
weapons. Engaged in it are human beings whose feelings are
stirred to the depths. Rising passions call forth hot words. Hot
95
Legal Ethics
words lead to blows on the picket line. The transformation
from economic to physical combat by those engaged in the
contest is difficult to prevent even when cool heads direct the
fight. Violence of this nature, however much it is to be
regretted, must have been in the contemplation of the
Congress when it provided in Sec. 13 of Act 29 USCA Sec. 163,
that nothing therein should be construed so as to interfere
with or impede or diminish in any way the right to strike. If this
were not so, the rights afforded to employees by the Act
would indeed be illusory. We accordingly recently held that it
was not intended by the Act that minor disorders of this
nature would deprive a striker of the possibility of
reinstatement. (Republic Steel Corp. v. N. L. R. B., 107 F2d
472, cited in Mathews, Labor Relations and the Law, p. 378)
Hence the incident that occurred between Ner, et al. and Ramon Garcia was
but a necessary incident of the strike and should not be considered as a bar to
reinstatement. Thus it has been held that:
Fist-fighting between union and non-union employees in the midst of a strike
is no bar to reinstatement. (Teller, Labor Disputes and Collective Bargaining,
Vol. II, p. 855 citing Stackpole Carbon, Co. 6 NLRB 171, enforced 105 F2d 167.)
Furthermore, assuming that the acts committed by the strikers were
transgressions of law, they amount only to mere ordinary misdemeanors and
are not a bar to reinstatement.
In cases involving misdemeanors the board has generally held that unlawful
acts are not bar to reinstatement. (Teller, Labor Disputes and Collective
Bargaining, Id., p. 854, citing Ford Motor Company, 23 NLRB No. 28.)
Finally, it is not disputed that despite the pendency of criminal charges
against non-striking employees before the fiscal's office, they were readily
admitted, but those strikers who had pending charges in the same office were
refused readmission. The reinstatement of the strikers is thus in order.
[W]here the misconduct, whether in reinstating persons
equally guilty with those whose reinstatement is opposed, or
in other ways, gives rise to the inference that union activities
rather than misconduct is the basis of his [employer]
objection, the Board has usually required reinstatement."
(Teller, supra, p. 853, citing the Third Annual Report of NLRB
[1938], p. 211.)
Lastly, the lower Court justified the constructive dismissal of Florencio Ibarra
allegedly because he committed acts inimical to the interest of the
respondents when, as president of the FGU Workers and Employees
Association-NATU, he advised the strikers that they could use force and
violence to have a successful picket and that picketing was precisely intended
to prevent the non-strikers and company clients and customers from entering
the Companies' buildings. Even if this were true, the record discloses that the
picket line had been generally peaceful, and that incidents happened only
when management men made incursions into and tried to break the picket
line. At any rate, with or without the advice of Ibarra, picketing is inherently
explosive. For, as pointed out by one author, "The picket line is an explosive
front, charged with the emotions and fierce loyalties of the union-
management dispute. It may be marked by colorful name-calling, intimidating
threats or sporadic fights between the pickets and those who pass the line."
(Mathews, Labor Relations and the Law, p. 752). The picket line being the
natural result of the respondents' unfair labor practice, Ibarra's misconduct is
at most a misdemeanor which is not a bar to reinstatement. Besides, the only
evidence presented by the Companies regarding Ibarra's participation in the
strike was the testimony of one Rodolfo Encarnacion, a former member of the
board of directors of the petitioner FGU Insurance Group Workers and
Employees Union-NATU, who became a "turncoat" and who likewise testified
as to the union activities of Atty. Lacsina, Ricardo Villaruel and others (annex
C, Decision, p. 27) another matter which emphasizes the respondents'
unfair labor practice. For under the circumstances, there is good ground to
believe that Encarnacion was made to spy on the actvities of the union
members. This act of the respondents is considered unjustifiable interference
in the union activities of the petitioners and is unfair labor practice.
It has been held in a great number of decisions at espionage
by an employer of union activities, or surveillance thereof, are
such instances of interference, restraint or coercion of
employees in connection with their right to organize, form and
join unions as to constitute unfair labor practice.
... "Nothing is more calculated to interfere with, restrain and
coerce employees in the exercise of their right to self-
organization than such activity even where no discharges
result. The information obtained by means of espionage is in
valuable to the employer and can be used in a variety of cases
to break a union." The unfair labor practice is committed
whether the espionage is carried on by a professional labor
spy or detective, by officials or supervisory employees of the
employer, or by fellow employees acting at the request or
direction of the employer, or an ex-employee..." (Teller, Labor
Disputes and Collective Bargaining, Vol. II, pp. 765-766, and
cases cited.) .
IV. The lower court should have ordered the reinstatement of the officials and
members of the Unions, with full back wages from June 2, 1958 to the date of
their actual reinstatement to their usual employment. Because all too clear
from the factual and environmental milieu of this case, coupled with settled
decisional law, is that the Unions went on strike because of the unfair labor
practices committed by the respondents, and that when the strikers reported
back for work upon the invitation of the respondents they were
discriminatorily dismissed. The members and officials of the Unions therefore
are entitled to reinstatement with back pay.
[W]here the strike was induced and provoked by improper
conduct on the part of an employer amounting to an 'unfair
labor practice,' the strikers are entitled to reinstatement with
back pay. (Rothenberg on Labor Relations, p. 418.)
[A]n employee who has been dismissed in violation of the
provisions of the Act is entitled to reinstatement with back pay
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Legal Ethics
upon an adjudication that the discharge was illegal."
(Id., citingWaterman S. S. Corp. v. N. L. R. B., 119 F2d 760; N.
L. R. B. v. Richter's Bakery, 140 F2d 870; N. L. R. B. v. Southern
Wood Preserving Co., 135 F. 2d 606; C. G. Conn, Ltd. v. N. L. R.
B., 108 F2d 390; N. L. R. B. v. American Mfg. Co., 106 F2d 61;
N. L. R. B. v. Kentucky Fire Brick Co., 99 F2d 99.)
And it is not a defense to reinstatement for the respondents to allege that the
positions of these union members have already been filled by replacements.
[W]here the employers' "unfair labor practice" caused or
contributed to the strike or where the 'lock-out' by the
employer constitutes an "unfair labor practice," the employer
cannot successfully urge as a defense that the striking or lock-
out employees position has been filled by replacement. Under
such circumstances, if no job sufficiently and satisfactorily
comparable to that previously held by the aggrieved
employee can be found, the employer must discharge the
replacement employee, if necessary, to restore the striking or
locked-out worker to his old or comparable position ... If the
employer's improper conduct was an initial cause of the strike,
all the strikers are entitled to reinstatement and the dismissal
of replacement employees wherever necessary; ... . (Id., p.
422 and cases cited.)
A corollary issue to which we now address ourselves is, from what date should
the backpay payable to the unionists be computed? It is now a settled
doctrine that strikers who are entitled to reinstatement are not entitled to
back pay during the period of the strike, even though it is caused by an unfair
labor practice. However, if they offer to return to work under the same
conditions just before the strike, the refusal to re-employ or the imposition of
conditions amounting to unfair labor practice is a violation of section 4(a) (4)
of the Industrial Peace Act and the employer is liable for backpay from the
date of the offer (Cromwell Commercial Employees and Laborers Union vs.
Court of Industrial Relations, L-19778, Decision, Sept. 30, 1964, 12 SCRA
124; Id., Resolution on motion for reconsideration, 13 SCRA 258; see
also Mathews, Labor Relations and the Law, p. 730 and the cited cases). We
have likewise ruled that discriminatorily dismissed employees must receive
backpay from the date of the act of discrimination, that is, from the date of
their discharge (Cromwell Commercial Employees and Laborers Union vs.
Court of Industrial Relations, supra).
The respondents notified the petitioner strikers to report back for work on June
2, 1958, which the latter did. A great number of them, however, were refused
readmission because they had criminal charges against them pending before
the fiscal's office, although non-strikers who were also facing criminal
indictments were readily readmitted. These strikers who were refused
readmission on June 2, 1958 can thus be categorized as discriminatorily
dismissed employees and are entitled to backpay from said date. This is true
even with respect to the petitioners Jose Pilapil, Paulino Bugay, Jr. and Jose
Garcia, Jr. who were found guilty only of misdemeanors which are not
considered sufficient to bar reinstatement (Teller, Labor Disputes and
Collective Bargaining, p. 854), especially so because their unlawful acts arose
during incidents which were provoked by the respondents' men. However,
since the employees who were denied readmission have been out of the
service of the Companies (for more than ten years) during which they may
have found other employment or other means of livelihood, it is only just and
equitable that whatever they may have earned during that period should be
deducted from their back wages to mitigate somewhat the liability of the
company, pursuant to the equitable principle that no one is allowed to enrich
himself at the expense of another (Macleod & Co. of the Philippines v.
Progressive Federation of Labor, 97 Phil. 205 [1955]).
The lower court gave inordinate significance to the payment to and
acceptance by the dismissed employees of separation pay. This Court has
ruled that while employers may be authorized under Republic Act 1052 to
terminate employment of employees by serving the required notice, or, in the
absence thereof, by paying the required compensation, the said Act may not
be invoked to justify a dismissal prohibited by law, e.g., dismissal for union
activities.
... While Republic Act No. 1052 authorizes a commercial
establishment to terminate the employment of its employee
by serving notice on him one month in advance, or, in the
absence thereof, by paying him one month compensation
from the date of the termination of his employment, such Act
does not give to the employer a blanket authority to terminate
the employment regardless of the cause or purpose behind
such termination. Certainly, it cannot be made use of as a
cloak to circumvent a final order of the court or a scheme to
trample upon the right of an employee who has been the
victim of an unfair labor practice. (Yu Ki Lam, et al. v. Nena
Micaller, et al., 99 Phil. 904 [1956].)
Finally, we do not share the respondents' view that the findings of fact of the
Court of Industrial Relations are supported by substantial and credible proof.
This Court is not therefore precluded from digging deeper into the factual
milieu of the case (Union of Philippine Education Employees v. Philippine
Education Company, 91 Phil. 93; Lu Do & Lu Ym Corporation v. Philippine-
Land-Air-Sea Labor Union, 11 SCRA 134 [1964]).
V. The petitioners (15 of them) ask this Court to cite for contempt the
respondent Presiding Judge Arsenio Martinez of the Court of Industrial
Relations and the counsels for the private respondents, on the ground that the
former wrote the following in his decision subject of the instant petition
for certiorari, while the latter quoted the same on pages 90-91 of the
respondents' brief: .
... Says the Supreme Court in the following decisions:
In a proceeding for unfair labor practice,
involving a determination as to whether or not
the acts of the employees concerned justified
the adoption of the employer of disciplinary
measures against them, the mere fact that the
employees may be able to put up a valid
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Legal Ethics
defense in a criminal prosecution for the same
acts, does not erase or neutralize the
employer's right to impose discipline on said
employees. For it is settled that not even the
acquittal of an employee of the criminal
charge against him is a bar to the employer's
right to impose discipline on its employees,
should the act upon which the criminal
charged was based constitute nevertheless an
activity inimical to the employer's
interest... The act of the employees now under
consideration may be considered as a
misconduct which is a just cause for dismissal.
(Lopez, Sr., et al. vs. Chronicle Publication
Employees Ass'n. et al., G.R. No. L-20179-81,
December 28, 1964.) (emphasis supplied)
The two pertinent paragraphs in the above-cited decision * which contained
the underscored portions of the above citation read however as follows:
Differently as regard the dismissal of Orlando Aquino and
Carmelito Vicente, we are inclined to uphold the action taken
by the employer as proper disciplinary measure. A reading of
the article which allegedly caused their dismissal reveals that
it really contains an insinuation albeit subtly of the supposed
exertion of political pressure by the Manila Chronicle
management upon the City Fiscal's Office, resulting in the
non-filing of the case against the employer. In rejecting the
employer's theory that the dismissal of Vicente and Aquino
was justified, the lower court considered the article as "a
report of some acts and omissions of an Assistant Fiscal in the
exercise of his official functions" and, therefore, does away
with the presumption of malice. This being a proceeding for
unfair labor practice, the matter should not have been viewed
or gauged in the light of the doctrine on a publisher's
culpability under the Penal Code. We are not here to
determine whether the employees' act could stand criminal
prosecution, but only to find out whether the aforesaid act
justifies the adoption by the employer of disciplinary measure
against them. This is not sustaining the ruling that the
publication in question is qualified privileged, but even on the
assumption that this is so, the exempting character thereof
under the Penal Code does not necessarily erase or neutralize
its effect on the employer's interest which may warrant
employment of disciplinary measure. For it must be
remembered that not even the acquittal of an employee, of
the criminal charges against him, is a bar to the employer's
right to impose discipline on its employees, should the act
upon which the criminal charges was based constitute
nevertheless an activity inimical to the employer's interest.
In the herein case, it appears to us that for an employee to
publish his "suspicion," which actually amounts to a public
accusation, that his employer is exerting political pressure on
a public official to thwart some legitimate activities on the
employees, which charge, in the least, would sully the
employer's reputation, can be nothing but an act inimical to
the said employer's interest. And the fact that the same was
made in the union newspaper does not alter its deleterious
character nor shield or protect a reprehensible act on the
ground that it is a union activity, because such end can be
achieved without resort to improper conduct or behavior. The
act of the employees now under consideration may be
considered as a misconduct which is a just cause for
dismissal.** (Emphasis ours)
It is plain to the naked eye that the 60 un-underscored words of the paragraph
quoted by the respondent Judge do not appear in the pertinent paragraph of
this Court's decision in L-20179-81. Moreover, the first underscored sentence
in the quoted paragraph starts with "For it is settled ..." whereas it reads, "For
it must be remembered ...," in this Court's decision. Finally, the second and
last underlined sentence in the quoted paragraph of the respondent Judge's
decision, appears not in the same paragraph of this Court's decision where the
other sentence is, but in the immediately succeeding paragraph.
This apparent error, however, does not seem to warrant an indictment for
contempt against the respondent Judge and the respondents' counsels. We
are inclined to believe that the misquotation is more a result of clerical
ineptitude than a deliberate attempt on the part of the respondent Judge to
mislead. We fully realize how saddled with many pending cases are the courts
of the land, and it is not difficult to imagine that because of the pressure of
their varied and multifarious work, clerical errors may escape their notice.
Upon the other hand, the respondents' counsels have the prima facie right to
rely on the quotation as it appears in the respondent Judge's decision, to copy
it verbatim, and to incorporate it in their brief. Anyway, the import of the
underscored sentences of the quotation in the respondent Judge's decision is
substantially the same as, and faithfully reflects, the particular ruling in this
Court's decision, i.e., that "[N]ot even the acquittal of an employee, of the
criminal charges against him, is a bar to the employer's right to impose
discipline on its employees, should the act upon which the criminal charges
were based constitute nevertheless an activity inimical to the employer's
interest."
Be that as it may, we must articulate our firm view that in citing this Court's
decisions and rulings, it is the bounden duty of courts, judges and lawyers to
reproduce or copy the same word-for-word and punctuation mark-for-
punctuation mark. Indeed, there is a salient and salutary reason why they
should do this. Only from this Tribunal's decisions and rulings do all other
courts, as well as lawyers and litigants, take their bearings. This is because
the decisions referred to in article 8 of the Civil Code which reads, "Judicial
decisions applying or interpreting the laws or the Constitution shall form a
part of the legal system of the Philippines," are only those enunciated by this
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Legal Ethics
Court of last resort. We said in no uncertain terms in Miranda, et al. vs.
Imperial, et al. (77 Phil. 1066) that "[O]nly the decisions of this Honorable
Court establish jurisprudence or doctrines in this jurisdiction." Thus, ever
present is the danger that if not faithfully and exactly quoted, the decisions
and rulings of this Court may lose their proper and correct meaning, to the
detriment of other courts, lawyers and the public who may thereby be misled.
But if inferior courts and members of the bar meticulously discharge their duty
to check and recheck their citations of authorities culled not only from this
Court's decisions but from other sources and make certain that they are
verbatim reproductions down to the last word and punctuation mark,
appellate courts will be precluded from acting on misinformation, as well as be
saved precious time in finding out whether the citations are correct.
Happily for the respondent Judge and the respondents' counsels, there was no
substantial change in the thrust of this Court's particular ruling which they
cited. It is our view, nonetheless, that for their mistake, they should be, as
they are hereby, admonished to be more careful when citing jurisprudence in
the future. ACCORDINGLY, the decision of the Court of Industrial Relations
dated August 17, 1965 is reversed and set aside, and another is entered,
ordering the respondents to reinstate the dismissed members of the
petitioning Unions to their former or comparatively similar positions, with
backwages from June 2, 1958 up to the dates of their actual reinstatements.
Costs against the respondents.

99
Legal Ethics
ALLIED BANKING CORPORATION, petitioner, vs. COURT OF APPEALS and to Bacolod City in a letter dated 19 April 1994 citing as reason parental obligations,
POTENCIANO L. GALANIDA, respondents. expenses, and the anguish that would result if he is away from his family. He then
filed a complaint before the Labor Arbiter for constructive dismissal.
The Case Subsequently, petitioner bank informed private respondent (Rollo, p. 86) that he
Before the Court is a petition for review[1] assailing the Decision[2] of 27 April was to report to the Tagbilaran City Branch effective 23 May 1994. Private
2000 and the Resolution of 8 August 2000 of the Court of Appeals in CA-G.R. SP respondent refused. In a letter dated 13 June 1994, petitioner warned and required
No. 51451. The Court of Appeals upheld the Decision[3] of 18 September 1998 and of private respondent as follows:
the Resolution of 24 December 1998 of the National Labor Relations Commission There is no discrimination in your transfer. In fact, among the officers mentioned,
(NLRC) in NLRC Case No. V-000180-98. The NLRC modified the Decision dated 23 only you have refused the new assignment citing difficulty of working away from
December 1997 of Labor Arbiter Dominador A. Almirante (Labor Arbiter) in NLRC your family as if the other officers concerned do not suffer the same
Case No. RAB VII-05-0545-94 holding that Allied Banking Corporation (Allied Bank) predicament. To exempt you from the officer transfer would result in favoritism in
illegally dismissed Potenciano L. Galanida (Galanida). The NLRC awarded Galanida your favor and discrimination as against the other officers concerned.
separation pay, backwages, moral and exemplary damages, and other amounts In furtherance of maintaining a smooth and uninterrupted service to the public,
totaling P1,264,933.33. and in accordance with the Banks order of priority of rotating its accountants
Antecedent Facts places of assignments, you are well aware that Roberto Isla, AM/Accountant,
For a background of this case, we quote in part from the Decision of the Court assigned in Cebu for more than ten (10) years, was, on February 14, 1994,
of Appeals: reassigned to Iligan City Branch and then to Cagayan de Oro City Branch on June 8,
Private respondent Potenciano Galanida was hired by petitioner Allied Banking 1994. Hence, your objection on the ground of your length of service is without
Corporation on 11 January 1978 and rose from accountant-book(k)eeper to merit.
assistant manager in 1991. His appointment was covered by a Notice of Personnel xxx
Action which provides as one of the conditions of employment the provision on As discussed, your refusal to follow instruction concerning your transfer and
petitioners right to transfer employees: reassignment to Bacolod City and to Tagbilaran City is penalized under Article XII of
REGULAR APPOINTMENT: xxx It is understood that the bank reserves the right to the Banks Employee Discipline Policy and Procedure [which] provides:
transfer or assign you to other departments or branches of the bank as the need XII Transfer and Reassignment
arises and in the interest of maintaining smooth and uninterrupted service to the Refusal to follow instruction concerning transfers and reassignments.
public. First and subsequent offenses
Private respondent was promoted several times and was transferred to several The penalty may range from suspension to dismissal as determined by
branches as follows: management. The employee shall be required to comply with the order of transfer
a) January, 1978 to March, 1982 and reassignment, if the penalty is not termination of employment.
Tagbilaran City Branch In view of the foregoing, please explain in writing within three (3) days from receipt
b) April, 1982 to May, 1984 hereof why no disciplinary action should be meted against you for your having
Lapulapu City Branch refused to follow instructions concerning the foregoing transfer and reassignment.
c) June, 1984 xxx[4]
Mandaue City Branch On 16 June 1994, Galanida replied that (w)hether the banks penalty for my
d) July, 1984 to April, 1986 refusal be Suspension or Dismissal xxx it will all the more establish and fortify my
Tagbilaran City Branch complaint now pending at NLRC, RAB 7. [5] In the same letter, he charged Allied
e) May, 1986 to May, 1987 Bank with discrimination and favoritism in ordering his transfer, thus:
Dumaguete City Branch xxx What I cannot decipher now under the headship of Mr. Olveda is managements
f) June, 1987 to August, 1987 discriminatory act of transferring only the long staying accountants of Cebu in the
Carbon Branch, Cebu City guise of its exercise of management prerogative when in truth and in fact, the
g) September, 1987 to Sept. 1989 ulterior motive is to accommodate some new officers who happen to enjoy
Lapulapu City Branch, Cebu favorable connection with management. How can the bank ever justify the transfer
h) October, 1989 to Sept. 1992 of Melinda T. Co, a new officer who had experienced being assigned outside
Carbon Branch, Cebu City of Cebu for more than a year only to Tabunok Branch? If the purpose is for check
i) October 1992 to Sept. 1994 and balance, is management implying that Melinda Co can better carry out such
Jakosalem Regional Branch, function over Mr. Larry Sabelino, who is a seasoned and experienced accountant or
Cebu City (Rollo, p. 47) any of the Metro Cebu accountants for that matter?Isnt this act of management an
Effecting a rotation/movement of officers assigned in the Cebu homebase, obvious display of favoritism? xxx[6]
petitioner listed respondent as second in the order of priority of assistant On 5 October 1994, Galanida received an inter-office
managers to be assigned outside of Cebu City having been stationed in Cebu for communication[7] (Memo) dated 8 September 1994 from Allied Banks Vice-
seven years already. Private respondent manifested his refusal to be transferred President for Personnel, Mr. Leonso C. Pe. The Memo informed Galanida that Allied
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Legal Ethics
Bank had terminated his services effective 1 September 1994. The reasons given
for the dismissal were: (1) Galanidas continued refusal to be transferred from the
Jakosalem, Cebu City branch; and (2) his refusal to report for work despite the
denial of his application for additional vacation leave. The salient portion of the
Memo reads:
Therefore, your refusal to follow instruction concerning your transfer and
reassignment to Bacolod City and to Tagbilaran City is without any justifiable
reason and constituted violations of Article XII of the Banks EDPP xxx
In view of the foregoing, please be informed that the Bank has terminated
your services effective September 1, 1994 and considered whatever benefit,
if any, that you are entitled as forfeited in accordance with 04, V Administrative
Penalties, page 6 of the Banks EDPP which provides as follows:
04. Dismissal.
Dismissal is a permanent separation for cause xxx
Notice of termination shall be issued by the Investigation Committee subject to the
confirmation of the President or his authorized representative as officer/employee
who is terminated for cause shall not be eligible to receive any benefit arising from
her/his employment with the Bank or to termination pay.
It is understood that the termination of your service shall be without prejudice to
whatever legal remedies which the Bank may have already undertaken and/or will
undertake against you.
Please be guided accordingly. (Emphasis supplied)[8]
The Ruling of the Labor Arbiter
After several hearings, the Labor Arbiter held that Allied Bank had abused its
management prerogative in ordering the transfer of Galanida to its Bacolod and
Tagbilaran branches. In ruling that Galanidas refusal to transfer did not amount to
insubordination, the Labor Arbiter misquoted this Courts decision in Dosch v.
NLRC,[9] thus:
As a general rule, the right to transfer or reassign an employee is recognized as an
employers exclusive right and the prerogative of management (Abbott
Laboratories vs. NLRC, 154 SCRA 713 [1987]).
The exercise of this right, is not however, absolute. It has certain limitations. Thus,
in Helmut Dosch vs. NLRC, et al. 123 SCRA 296 (1983), the Supreme Court, ruled:
While it may be true that the right to transfer or reassign an employee is an
employers exclusive right and the prerogative of management, such right is not
absolute. The right of an employer to freely select or discharge his employee is
limited by the paramount police power xxx for the relations between capital and
labor are not merely contractual but impressed with public interest. xxx And
neither capital nor labor shall act oppressively against each other.
Refusal to obey a transfer order cannot be considered insubordination where
employee cited reason for said refusal, such (sic) as that of being away from the
family.[10] (Underscoring supplied by the Labor Arbiter)
The Labor Arbiter reasoned that Galanidas transfer was inconvenient and
prejudicial because Galanida would have to incur additional expenses for board,
lodging and travel. On the other hand, the Labor Arbiter held that Allied Bank
failed to show any business urgency that would justify the transfer.
The Labor Arbiter also gave credence to Galanidas claim that Allied Bank
gave Ms. Co special treatment. The Labor Arbiter stated that Allied Bank
deliberately left out Ms. Cos name from the list of accountants transferred
to Cebu as contained in Allied Banks letter dated 13 June 1994.However, Mr.
Regidor Olveda, Allied Banks Vice President for Operations Accounting, testified
that the bank transferred Ms. Co to the Tabunok, Cebu branch within the first half
of 1994.
Still, the Labor Arbiter declined to award Galanida back wages because he
was not entirely free from blame. Since another bank had already employed
Galanida, the Labor Arbiter granted Galanida separation pay in lieu of
reinstatement. The dispositive portion of the Labor Arbiters Decision of 23
December 1997 provides:
WHEREFORE, premises considered, judgment is hereby rendered ordering
respondent Allied Banking Corporation to pay complainant the aggregate total
amount of Three Hundred Twenty Four Thousand Pesos (P324,000.00) representing
the following awards:
a) Separation pay for P272,000.00;
b) Quarter bonus for 1994 P16,000.00;
c) 13th month pay for 1994 P16,000.00;
d) Refund of contribution to Provident Fund - P20,000.00.
SO ORDERED.[11]
The Ruling of the NLRC
On appeal, the NLRC likewise ruled that Allied Bank terminated Galanida
without just cause. The NLRC agreed that the transfer order was unreasonable and
unjustified, considering the family considerations mentioned by Galanida. The
NLRC characterized the transfer as a demotion since the Bacolod and Tagbilaran
branches were smaller than the Jakosalem branch, a regional office, and because
the bank wanted Galanida, an assistant manager, to replace an assistant
accountant in the Tagbilaran branch. The NLRC found unlawful discrimination since
Allied Bank did not transfer several junior accountants in Cebu. The NLRC also held
that Allied Bank gave Ms. Co special treatment by assigning her to Cebu even
though she had worked for the bank for less than two years.
The NLRC ruled that Galanidas termination was illegal for lack of due
process. The NLRC stated that Allied Bank did not conduct any hearing. The NLRC
declared that Allied Bank failed to send a termination notice, as required by law for
a valid termination. The Memo merely stated that Allied Bank would issue a notice
of termination, but the bank did not issue any notice.
The NLRC concluded that Allied Bank dismissed Galanida in bad faith,
tantamount to an unfair labor practice as the dismissal undermined Galanidas right
to security of tenure and equal protection of the laws. On these grounds, the NLRC
promulgated its Decision of 18 September 1998, the relevant portion of which
states:
In this particular case, We view as impractical, unrealistic and no longer
advantageous to both parties to order reinstatement of the complainant. xxx For
lack of sufficient basis, We deny the claim for 1994 quarter bonus. Likewise, no
attorneys fees is awarded as counsels for complainant-appellee are from the City
Prosecutors Office of Cebu.
WHEREFORE, premises considered, the decision of the Labor Arbiter
dated December 23, 1997 is hereby MODIFIED by increasing the award of
separation pay and granting in addition thereto backwages, moral and exemplary
damages. The respondent-appellant, ALLIED BANKING CORPORATION, is thus
ordered to pay to herein complainant-appellee, POTENCIANO L. GALANIDA, the
following amounts:
a) P336,000.00, representing separation pay
b) P833,600.00, representing backwages
c) P 5,333.23 representing proportional 1994 13 th month pay
101
Legal Ethics
d) P 20,000.00 representing refund of Provident Fund Contribution
e) P 50,000.00 representing moral damages
f) P 20,000.00 representing exemplary damages
===========
P1,264,933.33 TOTAL AWARD
All other claims are dismissed for lack of basis. The other respondents are dropped
for lack of sufficient basis that they acted in excess of their corporate powers.
SO ORDERED.[12]
Allied Bank filed a motion for reconsideration which the NLRC denied in its
Resolution of 24 December 1998.[13]
Dissatisfied, Allied Bank filed a petition for review questioning the Decision
and Resolution of the NLRC before the Court of Appeals.
The Ruling of the Court of Appeals
Citing Dosch v. NLRC,[14] the Court of Appeals held that Galanidas refusal to
comply with the transfer orders did not warrant his dismissal. The appellate court
ruled that the transfer from a regional office to the smaller Bacolod or Tagbilaran
branches was effectively a demotion. The appellate court agreed that Allied Bank
did not afford Galanida procedural due process because there was no hearing and
no notice of termination. The Memo merely stated that the bank would issue a
notice of termination but there was no such notice.
The Court of Appeals affirmed the ruling of the NLRC in its Decision of 27 April
2000, thus:
WHEREFORE, for lack of merit, the petition is DISMISSED and the assailed Decision
of public respondent NLRC is AFFIRMED.
SO ORDERED. [15]
Allied Bank filed a motion for reconsideration which the appellate court
denied in its Resolution of 8 August 2000.[16]
On 26 April 2001, Allied Bank appealed the appellate courts decision and
resolution to the Supreme Court. Allied Bank prayed that the Supreme Court: (1)
issue a temporary restraining order or writ of preliminary injunction ex parte to
restrain the implementation or execution of the questioned Decision and
Resolution; (2) declare Galanidas termination as valid and legal; (3) set aside the
Court of Appeals Decision and Resolution; (4) make permanent the restraining
order or preliminary injunction; (5) order Galanida to pay the costs; and (6) order
other equitable reliefs.
The Issues
Allied Bank raises the following issues:
1. WHETHER UNDER THE FACTS PRESENTED THERE IS LEGAL BASIS IN
PETITIONERS EXERCISE OF ITS MANAGEMENT PREROGATIVE.
2. WHETHER PRIVATE RESPONDENTS VIOLATIONS OF COMPANY RULES
CONSTITUTE A GROUND TO WARRANT THE PENALTY OF DISMISSAL.
3. WHETHER UNDER THE FACTS PRESENTED, THERE IS LEGAL BASIS TO
HOLD THAT ALLIED BANK AFFORDED PRIVATE RESPONDENT THE
REQUIRED DUE PROCESS.
4. WHETHER UNDER THE FACTS, THERE IS LEGAL BASIS TO HOLD THAT
PRIVATE RESPONDENT CANNOT RECOVER ANY MONETARY AWARD.[17]
In sum, Allied Bank argues that the transfer of Galanida was a valid exercise
of its management prerogative. Allied Bank contends that Galanidas continued
refusal to obey the transfer orders constituted willful disobedience or
insubordination, which is a just cause for termination under the Labor Code.
On the other hand, Galanida defended his right to refuse the transfer
order. The memorandum for Galanida filed with this Court, prepared by Atty. Loreto
M. Durano, again misquoted the Courts ruling in Dosch v. NLRC, thus:
xxx His [Galanidas] refusal to transfer falls well within the ruling of the Supreme
Court in Helmut Dosch vs. NLRC, et. al., 123 SCRA 296 (1983) quoted as follows:
xxx
Refusal to obey a transfer order cannot be considered insubordination where
employee cited reason for said refusal, such as that of being away from the family.
[18]
The Ruling of the Court
The petition is partly meritorious.
Preliminary Matter: Misquoting Decisions of the Supreme Court
The memorandum prepared by Atty. Durano and, worse, the assailed Decision
of the Labor Arbiter, both misquoted the Supreme Courts ruling in Dosch v.
NLRC. The Court held in Dosch:
We cannot agree to Northwests submission that petitioner was guilty of
disobedience and insubordination which respondent Commission sustained. The
only piece of evidence on which Northwest bases the charge of contumacious
refusal is petitioners letter dated August 28, 1975 to R.C. Jenkins wherein
petitioner acknowledged receipt of the formers memorandum dated August 18,
1975, appreciated his promotion to Director of International Sales but at the same
time regretted that at this time for personal reasons and reasons of my family, I
am unable to accept the transfer from the Philippines and thereafter expressed his
preference to remain in his position, saying: I would, therefore, prefer to remain in
my position of Manager-Philippines until such time that my services in that
capacity are no longer required by Northwest Airlines. From this evidence, We
cannot discern even the slightest hint of defiance, much less imply insubordination
on the part of petitioner.[19]
The phrase [r]efusal to obey a transfer order cannot be considered
insubordination where employee cited reason for said refusal, such as that of being
away from the family does not appear anywhere in the Dosch decision. Galanidas
counsel lifted the erroneous phrase from one of the italicized lines in
the syllabus of Dosch found in the Supreme Court Reports Annotated (SCRA).
The syllabus of cases in official or unofficial reports of Supreme Court
decisions or resolutions is not the work of the Court, nor does it state this Courts
decision. The syllabus is simply the work of the reporter who gives his
understanding of the decision. The reporter writes the syllabus for the convenience
of lawyers in reading the reports. A syllabus is not a part of the courts decision.
[20]
A counsel should not cite a syllabus in place of the carefully considered text in
the decision of the Court.
In the present case, Labor Arbiter Almirante and Atty. Durano began by
quoting from Dosch, but substituted a portion of the decision with a headnote
from the SCRA syllabus, which they even underscored. In short, they deliberately
made the quote from the SCRA syllabus appear as the words of the Supreme
Court. We admonish them for what is at the least patent carelessness, if not an
outright attempt to mislead the parties and the courts taking cognizance of this
case. Rule 10.02, Canon 10 of the Code of Professional Responsibility mandates
that a lawyer shall not knowingly misquote or misrepresent the text of a decision
or authority. It is the duty of all officers of the court to cite the rulings and
decisions of the Supreme Court accurately. [21]
Whether Galanida was dismissed for just cause
102
Legal Ethics
We accord great weight and even finality to the factual findings of the Court
of Appeals, particularly when they affirm the findings of the NLRC or the lower
courts. However, there are recognized exceptions to this rule. These exceptions
are: (1) when the findings are grounded on speculation, surmise and conjecture;
(2) when the inference made is manifestly mistaken, absurd or impossible; (3)
when there is grave abuse of discretion in the appreciation of facts; (4) when the
factual findings of the trial and appellate courts are conflicting; (5) when the Court
of Appeals, in making its findings, has gone beyond the issues of the case and
such findings are contrary to the admissions of both appellant and appellee; (6)
when the judgment of the appellate court is premised on a misapprehension of
facts or when it has failed to consider certain relevant facts which, if properly
considered, will justify a different conclusion; (7) when the findings of fact are
conclusions without citation of specific evidence on which they are based; and (8)
when the findings of fact of the Court of Appeals are premised on the absence of
evidence but are contradicted by the evidence on record. [22] After a scrutiny of the
records, we find that some of these exceptions obtain in the present case.
The rule is that the transfer of an employee ordinarily lies within the ambit of
the employers prerogatives.[23] The employer exercises the prerogative to transfer
an employee for valid reasons and according to the requirement of its business,
provided the transfer does not result in demotion in rank or diminution of the
employees salary, benefits and other privileges.[24] In illegal dismissal cases, the
employer has the burden of showing that the transfer is not unnecessary,
inconvenient and prejudicial to the displaced employee. [25]
The constant transfer of bank officers and personnel with accounting
responsibilities from one branch to another is a standard practice of Allied Bank,
which has more than a hundred branches throughout the country. [26] Allied Bank
does this primarily for internal control. It also enables bank employees to gain the
necessary experience for eventual promotion. The Bangko Sentral ng Pilipinas, in
its Manual of Regulations for Banks and Other Financial Intermediaries, [27] requires
the rotation of these personnel. The Manual directs that the duties of personnel
handling cash, securities and bookkeeping records should be rotated and that such
rotation should be irregular, unannounced and long enough to permit disclosure of
any irregularities or manipulations.[28]
Galanida was well aware of Allied Banks policy of periodically transferring
personnel to different branches. As the Court of Appeals found, assignment to the
different branches of Allied Bank was a condition of Galanidas
employment. Galanida consented to this condition when he signed the Notice of
Personnel Action.[29]
The evidence on record contradicts the charge that Allied Bank discriminated
against Galanida and was in bad faith when it ordered his transfer. Allied Banks
letter of 13 June 1994[30] showed that at least 14 accounting officers and personnel
from various branches, including Galanida, were transferred to other
branches. Allied Bank did not single out Galanida. The same letter explained that
Galanida was second in line for assignment outside Cebu because he had been
in Cebu for seven years already. The person first in line, Assistant Manager Roberto
Isla, who had been in Cebu for more than ten years, had already transferred to a
branch in Cagayan de Oro City. We note that none of the other transferees joined
Galanida in his complaint or corroborated his allegations of widespread
discrimination and favoritism.
As regards Ms. Co, Galanidas letter of 16 June 1994 itself showed that her
assignment to Cebu was not in any way related to Galanidas transfer. Ms. Co was
supposed to replace a certain Larry Sabelino in the Tabunok branch. The employer
has the prerogative, based on its assessment of the employees qualifications and
competence, to rotate them in the various areas of its business operations to
ascertain where they will function with maximum benefit to the company. [31]
Neither was Galanidas transfer in the nature of a demotion. Galanida did not
present evidence showing that the transfer would diminish his salary, benefits or
other privileges. Instead, Allied Banks letter of 13 June 1994 assured Galanida that
he would not suffer any reduction in rank or grade, and that the transfer would
involve the same rank, duties and obligations. Mr. Olveda explained this further in
the affidavit he submitted to the Labor Arbiter, thus:
19. There is no demotion in position/rank or diminution of complainants salary,
benefits and other privileges as the transfer/assignment of branch officers is
premised on the role/functions that they will assume in the management and
operations of the branch, as shown below:
(a) The Branch Accountant, as controller of the branch is responsible for the proper
discharge of the functions of the accounting section of the branch, review of
documentation/proper accounting and control of transaction. As such, the
accounting functions in the branch can be assumed by any of the following officers
with the rank of: Senior Manager/Acctg.; Manager/ Acctg.; Senior Asst.
Manager/Acctg.; Asst. Manager/Acctg.; Accountant or Asst. Accountant.
xxx
20. The transfer/assignment of branch officer from one branch, to another
branch/office is lateral in nature and carries with it the same position/rank, salary,
benefits and other privileges. The assignment/transfer is for the officer to assume
the functions relative to his job and NOT the position/rank of the officer to be
replaced.
There is also no basis for the finding that Allied Bank was guilty of unfair labor
practice in dismissing Galanida. Unfair labor practices relate only to violations of
the constitutional right of workers and employees to self-organization [32] and are
limited to the acts enumerated in Article 248 of the Labor Code, none of which
applies to the present case. There is no evidence that Galanida took part in
forming a union, or even that a union existed in Allied Bank.
This leaves the issue of whether Galanida could validly refuse the transfer
orders on the ground of parental obligations, additional expenses, and the anguish
he would suffer if assigned away from his family.
The Court has ruled on this issue before. In the case of Homeowners
Savings and Loan Association, Inc. v. NLRC,[33] we held:
The acceptability of the proposition that transfer made by an employer for an illicit
or underhanded purpose i.e., to defeat an employees right to self-organization, to
rid himself of an undesirable worker, or to penalize an employee for union
activities cannot be upheld is self-evident and cannot be gainsaid. The difficulty
lies in the situation where no such illicit, improper or underhanded purpose can be
ascribed to the employer, the objection to the transfer being grounded solely upon
the personal inconvenience or hardship that will be caused to the employee by
reason of the transfer. What then?
This was the very same situation we faced in Phil. Telegraph and Telephone
Corp. v. Laplana. In that case, the employee, Alicia Laplana, was a cashier at the
Baguio City Branch of PT&T who was directed to transfer to the companys branch
office at LaoagCity. In refusing the transfer, the employee averred that she had
established Baguio City as her permanent residence and that such transfer will
involve additional expenses on her part, plus the fact that an assignment to a far
103
Legal Ethics
place will be a big sacrifice for her as she will be kept away from her family which
might adversely affect her efficiency. In ruling for the employer, the Court upheld
the transfer from one city to another within the country as valid as long as there is
no bad faith on the part of the employer. We held then:
Certainly the Court cannot accept the proposition that when an employee opposes
his employers decision to transfer him to another work place, there being no bad
faith or underhanded motives on the part of either party, it is the employees
wishes that should be made to prevail.
Galanida, through counsel, invokes the Courts ruling in Dosch v. NLRC.
[34]
Dosch, however, is not applicable to the present case. Helmut Dosch refused a
transfer consequential to a promotion. We upheld the refusal because no law
compels an employee to accept a promotion, and because the position Dosch was
supposed to be promoted to did not even exist at that time. [35] This left as the only
basis for the charge of insubordination a letter from Dosch in which the Court
found not even the slightest hint of defiance, much less xxx insubordination. [36]
Moreover, the transfer of an employee to an overseas post, as in
the Dosch case, cannot be likened to a transfer from one city to another within the
country,[37] which is the situation in the present case. The distance
from Cebu City to Bacolod City or from Cebu City to Tagbilaran City does not
exceed the distance from Baguio City to Laoag City or from Baguio City to Manila,
which the Court considered a reasonable distance in PT&T v. Laplana.[38]
The refusal to obey a valid transfer order constitutes willful disobedience of a
lawful order of an employer. [39] Employees may object to, negotiate and seek
redress against employers for rules or orders that they regard as unjust or
illegal. However, until and unless these rules or orders are declared illegal or
improper by competent authority, the employees ignore or disobey them at their
peril.[40] For Galanidas continued refusal to obey Allied Banks transfer orders, we
hold that the bank dismissed Galanida for just cause in accordance with Article 282
(a) of the Labor Code.[41] Galanidais thus not entitled to reinstatement or to
separation pay.
Whether Galanidas dismissal violated the
requirement of notice and hearing
To be effective, a dismissal must comply with Section 2 (d), Rule 1, Book VI of
the Omnibus Rules Implementing the Labor Code (Omnibus Rules), which provides:
For termination of employment based on just causes as defined in Article 282 of
the Labor Code:
(i) A written notice served on the employee specifying the ground or
grounds of termination, and giving said employee reasonable
opportunity within which to explain his side.
(ii) A hearing or conference during which the employee concerned, with
the assistance of counsel if he so desires is given opportunity to
respond to the charge, present his evidence, or rebut the evidence
presented against him.
(iii) A written notice of termination served on the employee indicating
that upon due consideration of all the circumstances, grounds have
been established to justify his termination.
The first written notice was embodied in Allied Banks letter of 13 June
1994. The first notice required Galanida to explain why no disciplinary action
should be taken against him for his refusal to comply with the transfer orders.
On the requirement of a hearing, this Court has held that the essence of due
process is simply an opportunity to be heard. [42] An actual hearing is not necessary.
The exchange of several letters, in which Galanidas wife, a lawyer with the City
Prosecutors Office, assisted him, gave Galanida an opportunity to respond to the
charges against him.
The remaining issue is whether the Memo dated 8 September 1994 sent to
Galanida constitutes the written notice of termination required by the Omnibus
Rules. In finding that it did not, the Court of Appeals and the NLRC cited Allied
Banks rule on dismissals, quoted in the Memo, that, Notice of termination shall be
issued by the Investigation Committee subject to the confirmation of the President
or his authorized representative.[43] The appellate court and NLRC held that Allied
Bank did not send any notice of termination to Galanida. The Memo, with the
heading Transfer and Reassignment, was not the termination notice required by
law.
We do not agree.
Even a cursory reading of the Memo will show that it unequivocally informed
Galanida of Allied Banks decision to dismiss him. The statement, please be
informed that the Bank has terminated your services effective September 1,
1994 and considered whatever benefit, if any, that you are entitled [to] as forfeited
xxx[44] is plainly worded and needs no interpretation. The Memo also discussed the
findings of the Investigation Committee that served as grounds for Galanidas
dismissal. The Memo referred to Galanidas open defiance and refusal to transfer
first to the Bacolod City branch and then to the Tagbilaran City branch. The Memo
also mentioned his continued refusal to report for work despite the denial of his
application for additional vacation leave.[45] The Memo also refuted Galanidas
charges of discrimination and demotion, and concluded that he had violated Article
XII of the banks Employee Discipline Policy and Procedure.
The Memo, although captioned Transfer and Reassignment, did not preclude it
from being a notice of termination. The Court has held that the nature of an
instrument is characterized not by the title given to it but by its body and contents.
[46]
Moreover, it appears that Galanida himself regarded the Memo as a notice of
termination. We quote from the Memorandum for Private Respondent-Appellee, as
follows:
The proceedings may be capsulized as follows:
1. On March 13, 1994[47] Private Respondent-Appellee filed before the Region VII
Arbitration Branch a Complaint for Constructive Dismissal. A copy of the Complaint
is attached to the Petition as Annex H;
xxx
5. On September 8, 1994, Petitioner-Appellant issued him a Letter of
Termination. A copy of said letter is attached to the Petition as Annex N;
6. Private Respondent-Appellee filed an Amended/ Supplemental Complaint
wherein he alleged illegal dismissal. A copy of the Amended/Supplemental
Complaint is attached to the Petition as Annex O; xxx [48] (Emphasis supplied)
The Memorandum for Private Respondent-Appellee refers to the Memo as a
Letter of Termination. Further, Galanida amended his complaint for constructive
dismissal[49] to one for illegal dismissal[50] after he received the Memo. Clearly,
Galanida had understood the Memo to mean that Allied Bank had terminated his
services.
The Memo complied with Allied Banks internal rules which required the banks
President or his authorized representative to confirm the notice of
termination. The banks Vice-President for Personnel, as the head of the
department that handles the movement of personnel within Allied Bank, can
104
Legal Ethics
certainly represent the bank president in cases involving the dismissal of
employees.
Nevertheless, we agree that the Memo suffered from certain errors. Although
the Memo stated that Allied Bank terminated Galanidas services as of 1 September
1994, the Memo bore the date 8 September 1994. More importantly, Galanida only
received a copy of the Memo on 5 October 1994, or more than a month after the
supposed date of his dismissal. To be effective, a written notice of termination
must be served on the employee.[51] Allied Bank could not terminate Galanida on 1
September 1994 because he had not received as of that date the notice of Allied
Banks decision to dismiss him. Galanidas dismissal could only take effect on 5
October 1994, upon his receipt of the Memo. For this reason, Galanida is entitled to
backwages for the period from 1 September 1994 to 4 October 1994.
Under the circumstances, we also find an award of P10,000 in nominal
damages proper. Courts award nominal damages to recognize or vindicate the
right of a person that another has violated.[52] The law entitles Galanida to receive
timely notice of Allied Banks decision to dismiss him. Allied Bank should have
exercised more care in issuing the notice of termination.
WHEREFORE, the Decision of 27 April 2000 of the Court of Appeals in CA-
G.R. SP No. 51451 upholding the Decision of 18 September 1998 of the NLRC in
NLRC Case No. V-000180-98 is AFFIRMED, with the following MODIFICATIONS:
1) The awards of separation pay, moral damages and exemplary damages are
hereby deleted for lack of basis;
2) Reducing the award of backwages to cover only the period from 1
September 1994 to 4 October 1994; and
3) Awarding nominal damages to private respondent for P10,000.
This case is REMANDED to the Labor Arbiter for the computation, within thirty
(30) days from receipt of this Decision, of the backwages, inclusive of allowances
and other benefits, due to Potenciano L. Galanida for the time his dismissal was
ineffectual from 1 September 1994 until 4 October 1994.
Labor Arbiter Dominador A. Almirante and Atty. Loreto M. Durano
are ADMONISHED to be more careful in citing the decisions of the Supreme Court
in the future.
SO ORDERED.

105
Legal Ethics
PATERNO R. CANLAS, petitioner,
vs.
HON. COURT OF APPEALS, and FRANCISCO HERRERA, respondents.
The case dramatizes the unpleasant spectacle of a lawyer tangling with his own
client, more often than not, in the matter of fees. The lawyer, the petitioner
himself, would have his petition decided on pure questions of procedure, yet, the
Court cannot let pass unnoticed the murkier face of the controversy, wherein the
law is corrupted to promote a lawyer's selfseeking ends, and the law profession,
debased into a simple business dealing. Accordingly, we resolve it on the basis not
only of the questions raised by the petitioner pertaining to procedure, but
considering its serious ethical implications, on its merits as well.
We turn to the facts.
The private respondent was the registered owner of eight (six, according to the
petitioner) parcels of land located in Quezon City. 1 Between 1977 and 1978, 2 he
obtained various loans from the L & R Corporation, a financing institution, in
various sums totalling P420,000.00 As security therefor, he executed deeds of
mortgage in favor of the corporation over the parcels aforesaid. On August
28,1979, and upon the maturing of said loans, the firm caused an extrajudicial
foreclosure of mortgage following his failure to pay, as a consequence of which,
the said eight (six, according to the petitioner) parcels of land were disposed of at
public auction, and in which L & R Corporation was itself the highest bidder.
Pending redemption, the private respondent filed a complaint for injunction against
L & R Corporation, to enjoin consolidation of title in its name, in which he
succeeded in obtaining preliminary injunctive relief. He was represented by the
petitioner. Two years later, and with no imminent end to the litigation in sight, the
parties entered into a compromise agreement whereby L & R Corporation accorded
the private respondent another year to redeem the foreclosed properties subject to
payment of P600,000.00, with interest thereon at one per cent per month. They
likewise stipulated that the petitioner shall be entitled to attorney's fees of
P100,000.00. On November 19, 1982, the court 3 approved the compromise.
The private respondent, however, remained in dire financial straits a fact the
petitioner himself concede 4 for which reason he failed to acquire the finding to
repay the loans in question, let alone the sum of P100,000.00 in attorney's fees
demanded by the petitioner. That notwithstanding, the petitioner moved for
execution insofar as his fees were concemed. The court granted execution,
although it does not appear that the sum was actually collected. 5
Sometime thereafter, the petitioner and the private respondent met to discuss
relief for the latter with respect to his liability to L & R Corporation on the one
hand, and his obligation to the petitioner on the other. The petitioner contends that
the private respondent "earnestly implored" 6 him to redeem the said properties;
the private respondent maintains that it was the petitioner himself who 'offered to
advance the money," 7 provided that he, the private respondent, executed a
"transfer of mortgage" 8over the properties in his favor. Who implored whom is a
bone of contention, but as we shall see shortly, we are inclined to agree with the
private respondent's version, considering primarily the petitioner's moral
ascendancy over his client and the private respondent's increasing desperation.
The records further show that the parties, pursuant to their agreement, executed a
"Deed of Sale and Transfer of Rights of Redemption and/or to Redeem," a
document that enabled the petitioner, first, to redeem the parcels in question, and
secondly, to register the same in his name. The private respondent alleges that he
subsequently filed loan applications with the Family Savings Bank to finance a wet
market project upon the subject premises to find, according to him, and to his
dismay, the properties already registered in the name of the petitioner. He likewise
contends that the "Deed of Sale and Transfer of Rights of Redemption and/or to
Redeem" on file with the Register of Deeds (for Quezon City) had been falsified as
follows:
WHEREFORE, for and in full settlement of the attorney's fees of
TRANSFEREE in the amount of ONE HUNDRED THOUSAND PESOS
(Pl00,000.00) I, FRANCISCO HERRERA, hereby transfer, assign and
convey unto TRANSFEREE, Atty. Paterno R. Canlas, any and all my
rights of the real properties and/or to redeem from the Mortgagee,
L & R Corporation my mortgaged properties foreclosed and sold at
public auction by the Sheriff of Quezon City and subject matter of
the above Compromise Agreement in Civil Case No. Q30679 ... 9
whereas it originally reads:
WHEREFORE, for and in full settlement of the attorney's fees of
TRANSFEREE in the amount of ONE HUNDRED THOUSAND PESOS
(P100,000.00), I, FRANCISCO HERRERA, hereby transfer, assign
and convey unto TRANSFEREE, Atty. Paterno R. Canlas, any and all
my rights of equity of redemption and/or to redeem from the
Mortgagee, L & R Corporation my mortgaged properties
foreclosed and sold at public auction by the Sheriff of Quezon City
and subject matter of the above Compromise Agreement in Civil
Case No. Q30679. . . 10
As a consequence, the private respondent caused the annotation of an adverse
claim upon the respective certificates of title embracing the properties. Upon
learning of the same, the petitioner moved for the cancellation of the adverse
claim and for the issuance of a writ of possession. The court granted both motions.
The private respondent countered with a motion for a temporary restraining order
and later, a motion to recall the writ of possession. He likewise alleges that he
commenced disbarment proceedings before this Court against the petitioner 11 as
well as various criminal complaints for estafa, falsification, and "betrayal of
trust" 12 with the Department of Justice. On December 1, 1983, finally, he
instituted an action for reconveyance and reformation of document, 13 praying that
the certificates of title issued in the name of the petitioner be cancelled and that
"the Deed of Sale and Transfer of Rights of Equity of Redemption and/or to Redeem
dated May 3, 1983 ... be reformed to reflect the true agreement of Francisco
Herrera and Paterno R. Canlas, of a mortgage." 14He vehemently maintains that the
petitioner's "agreement with [him] was that the latter would lend the money to the
former for a year, so that [petitioner] would have time to look for a loan for the wet
market which [the petitioner] intended to put up on said property." 15Predictably,
the petitioner moved for dismissal.
The trial court, however, denied the private respondent's petition. It held that the
alteration complained of did not change the meaning of the contract since it was
"well within [the petitioner's] rights" 16 "to protect and insure his interest of
P654,000.00 which is the redemption price he has paid;" 17 secondly, that the
petitioner himself had acquired an interest in the properties subject of
reconveyance based on the compromise agreement approved by Judge Castro in
the injunction case, pursuant to Section 29(b), of Rule 39, of the Rules of Court,
that had, consequently, made him a judgment creditor in his own right; thirdly,
that the private respondent had lost all rights over the same arising from his failure
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to redeem them from L & R Corporation within the extended period; and finally,
that the petitioner cannot be said to have violated the ban against sales of
properties in custodia legis to lawyers by their clients pendente lite, since the sale
in question took place after judgment in the injunction case abovesaid had
attained finality. The complaint was consequently dismissed, a dismissal that
eventually attained a character of finality.
Undaunted, the private respondent, on December 6, 1985, filed a suit for
"Annulment Of Judgment 18 in the respondent Court of Appeals, 19 praying that the
orders of Judge Castro: (1). granting execution over the portion of the compromise
agreement obliging the private respondent to pay the petitioner P100,000.00 as
attorney's fees; (2) denying the private respondent's prayer for a restraining order
directed against the execution: and (3) denying the motion to recall writ of
possession, all be set aside.
The petitioner filed a comment on the petition, but followed it up with a motion to
dismiss. On December 8, 1986, the respondent Court of Appeals promulgated the
first of its challenged resolutions, denying the motion to dismiss. On March 3,
1987, the Appellate Court denied reconsideration. 20
Hence the instant petition.
As we stated, the petitioner assails these twin resolutions on grounds of improper
procedure. Specifically, he assigns the following errors:
I.
THE RESPONDENT COURT GRAVELY ABUSE [sic] ITS DISCRETION IN NOT
DISMISSING AC G.R. NO. 07860 ON THE GROUND THAT IT IS IN REALITY A PETITION
FOR CERTIORARI FILED OUT OF TIME AND SHOULD NOT BE GIVEN DUE COURSE.
II.
THE RESPONDENT COURT GRAVELY ABUSE [sic] ITS DISCRETION IN NOT
DISMISSING AC G.R. NO. 07860 ON THE GROUND OF RES JUDICATA
III.
THE RESPONDENT COURT GRAVELY ABUSE [sic] ITS DISCRETION IN NOT
CONSIDERING AC G. R. 07860 AS MOOT AND ACADEMIC SINCE PETITIONER HAD
DISPOSED OF THE SUBJECT PROPERTIES LONG BEFORE THE FILING OF THIS SUIT.
IV
THE RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION IN NOT DENYING
PETITIONER'S MOTION TO DISMISS SOLELY ON THE GROUND THAT THE ARGUMENT
RAISED THEREIN ARE BUT REHASH OF THE ARGUMENTS IN HIS COMMENT TO THE
PETITION. 21
The petitioner argues that the petition pending with the respondent court "is
actually a petition for certiorari," 22disguised as a pleading for annulment of
judgment and that in such a case, it faces alleged legal impediments (1) It had
been filed out of time, allegedly two years from the issuance of the assailed orders,
and (2) It was not preceded by a motion for reconsideration. He adds that
assuming annulment of judgment were proper, no judgment allegedly exists for
annulment, the aforesaid two orders being in the nature of interlocutory issuances.
On purely technical grounds, the petitioner's arguments are impressive. Annulment
of judgment, we have had occasion to rule, rests on a single ground: extrinsic
fraud. What "extrinsic fraud" means is explained in Macabingkil v. People's
Homesite and Housing Corporation : 23
xxx xxx xxx
It is only extrinsic or collateral fraud, as distinguished from
intrinsic fraud, however, that can serve as a basis for the
annulment of judgment. Fraud has been regarded as extrinsic or
collateral, within the meaning of the rule, "where it is one the
effect of which prevents a party from having a trial, or real
contest, or from presenting all of his case to the court, or where it
operates upon matters pertaining, not to the judgment itself, but
of the manner in which it was procured so that there is not a fair
submission of the controversy." In other words, extrinsic fraud
refers to any fraudulent act of the prevailing party in the litigation
which is committed outside of the trial of the case, whereby the
defeated party has been prevented from exhibiting fully his side
of the case, by fraud or deception practiced on him by his
opponent. 24
A perusal of the petition of therein private respondent Herrera pending before the
respondent Court reveals no cause of action for annulment of judgment. In the first
place, and as herein petitioner Canlas correctly points out, the judgment itself is
not assailed, but rather, the orders merely implementing it. Secondly, there is no
showing that extrinsic fraud, as Makabingkil defines it, indeed vitiated the
proceedings presided over by Judge Castro. On the contrary, Herrera's petition in
the respondent court will show that he was privy to the incidents he complains of,
and in fact, had entered timely oppositions and motions to defeat Atty. Canlas'
claims under the compromise agreement.
What he objects to is his suspected collusion between Atty. Canlas and His Honor
to expedite the former's collection of his fees. He alleges that his counsel had
deliberately, and with malevolent designs, postponed execution to force him
(Herrera) to agree to sell the properties in controversy to him (Atty. Canlas) subject
to redemption. ("...[I]t was understandable that respondent Atty. Paterno R. Canlas
did not implement the writ of execution, instead he contacted petitioner in order
that petitioner would sign the questioned documents. This was the clincher of the
plan of respondent Atty, Paterno R. Canlas to divest petitioner of his properties. For
this purpose, it is obvious that respondent Atty. Paterno R. Canlas had to conspire
with the respondent court judge to achieve his plan." 25) Aside from being plain
speculation, it is no argument to justify annulment. Clearly, it does not amount to
extrinsic fraud as the term is defined in law.
Neither is it proper for the extraordinary remedy of
certiorari. Certiorari presupposes the absence of an appeal 26and while there is no
appeal from execution of judgment, appeal lies in case of irregular implementation
of the writ. 27 In the case at bar, there is no irregular execution to speak of As a
rule, "irregular execution" means the failure of the writ to conform to the decree of
the decision executed. 28 In the instant case, respondent Herrera's charges, to wit,
that Judge Castro had erred in denying his motions for temporary restraining order
and to recall writ of possession, or that His Honor had acted hastily (". . . that
respondent court/judge took only one [1) day to resolve petitioner's motion for
issuance of [a] [restraining] order. . ." 29) in denying his twofold motions, do not
make out a case for irregular execution. The orders impugned are conformable to
the letter of the judgment approving the parties'compromise agreement.
The lengths the private respondent, Francisco Herrera, would go to in a last-ditch
bid to hold on to his lands and constraints of economic privation have not been lost
on us. It is obvious that he is uneasy about the judgment on compromise itself, as
well as the subsequent contract between him and his lawyer. In such a case,
Article 2038 of the Civil Code applies:
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Art. 2038. A compromise in which there is mistake, fraud, violence
intimidation, undue influence, or falsity of documents, is subject
to the provisions of article 1330 of this Code ...
in relation to Article 1330 thereof:
Art. 1330. A contract where consent is given through mistake,
violence, intimidation, undue influence, or fraud is voidable.
in relation to its provisions on avoidance of'contracts. 30 The court notes that he
had, for this purpose, gone to the Regional Trial Court, a vain effort as we stated,
and in which the decision had become final.
We, however, sustain Atty. Canlas' position-on matters of procedure for the
enlightenment solely of the bench and the bar. It does not mean that we find merit
in his petition. As we have intimated, we cannot overlook the unseemlier side of
the proceeding, in which a member of the bar would exploit his mastery of
procedural law to score a "technical knockout" over his own client, of all people.
Procedural rules, after all, have for their object assistance unto parties "in
obtaining just, speedy, and inexpensive determination of every action and
proceeding." 31 If procedure were to be an impediment to such an objective, "it
deserts its proper office as an aid to justice and becomes its great hindrance and
chief enemy." 32 It was almost eight decades ago that the Court held:
... A litigation is not a game of technicalities in which one, more
deeply schooled and skilled in the subtle art of movement and
position, entraps and destroys the other. It is, rather, a contest in
which each contending party fully and fairly lays before the court
the facts in issue and then, brushing aside as wholly trivial and
indecisive all imperfections of form and technicalities of
procedure, asks that justice be done upon the merits. Lawsuits,
unlike duels, are not to be won by the a rapier's thrust ... 33
It is a ruling that almost eight decades after it was rendered, holds true as ever.
By Atty. Canlas' own account, "due to lack of paying capacity of respondent
Herrera, no financing entity was willing to extend him any loan with which to pay
the redemption price of his mortgaged properties and petitioner's P100,000.00
attorney's fees awarded in the Compromise Judgment," 34 a development that
should have tempered his demand for his fees. For obvious reasons, he placed his
interests over and above those of his client, in opposition to his oath to "conduct
himself as a lawyer ... with all good fidelity ... to [his] clients." 35 The Court finds
the occasion fit to stress that lawyering is not a moneymaking venture and lawyers
are not merchants, a fundamental standard that has, as a matter of judicial notice,
eluded not a few law advocates. The petitioner's efforts partaking of a shakedown"
of his own client are not becoming of a lawyer and certainly, do not speak well of
his fealty to his oath to "delay no man for money." 36
It is true that lawyers are entitled to make a living, in spite of the fact that the
practice of law is not a commercial enterprise; but that does not furnish an excuse
for plain lust for material wealth, more so at the expense of another. Law
advocacy, we reiterate, is not capital that yields profits. The returns it births are
simple rewards for a job done or service rendered. It is a calling that, unlike
mercantile pursuits which enjoy a greater deal of freedom from government
interference, is impressed with a public interest, for which it is subject to State
regulation. 37Anent attomey's fees, section 24, of Rule 138, of the Rules, provides
in part as follows:
SEC. 24. Compensation of attorneys, agreement as to fees. An
attorney shall be entitled to have and recover from his client no
more than a reasonable compensation for his services, with a
view to the importance of the subject matter of the controversy,
the extent of the services rendered, and the professional standing
of the attorney... A written contract for services shall control the
amount to be paid therefor unless found by the court to be
unconscionable or unreasonable.
So also it is decreed by Article 2208 of the Civil Code, reproduced in part, as
follows:
Art. 2208 ...
In all cases, the attorney's fees and expenses of litigation must be
reasonable.
We do not find the petitioner's claim of attorney's fees in the sum of P100,000.00
reasonable. We do not believe that it satisfies the standards set forth by the Rules.
The extent of the services he had rendered in Civil Case No. 30679, and as far as
the records will yield, is not impressive to justify payment of such a gargantuan
amount. The case itself moreover did not involve complex questions of fact or law
that would have required substantial effort as to research or leg work for the
petitioner to warrant his demands. The fact that the properties subject thereof
commanded quite handsome prices in the market should not be a measure of the
importance or non-importance of the case. We are not likewise persuaded that the
petitioner's stature warrants the sum claimed.
All things considered, we reduce the petitioner's fees, on a quantum meruit basis,
to P20,000.00.
It is futile to invoke the rule granting attorneys a lien upon the things won in
litigation similar to that vested upon redemptioners. 38 To begin with, the rule
refers to realty sold as a result of execution in satisfaction of judgment. In this
case, however, redemption was decreed by agreement (on compromise) between
the mortgagor and mortgagee. It did not give the petitioner any right to the
properties themselves, much less the right of redemption, although provisions for
his compensation were purportedly provided. It did not make him a redemptioner
for the plain reason that he was not named one in the amicable settlement. To this
extent, we reverse Judge Pedro Santiago's ruling in Civil Case No. 40066,
recognizing Atty. Canlas' "legal right, independent of the questioned deed of sale
and transfer which was executed subsequently on May 3, 1983, to redeem the
subject realty from the L & R Corporation pursuant to Sec. 29 (b), Rule 39 of the
Rules of Court." 39 Whatever right he had, it was, arguably with respect alone to his
renumeration. It did not extend to the lands.
Secondly, and assuming that such a right exists, it must be in proportion to the
"just fees and disbursements" 40due him. It is still subject to the tempering hand of
this Court.
The Court notes a hidden agenda in the petitioner's haste to execute the
compromise agreement and subsequently, to force the transfer of the properties to
himself. As we have observed, in spite of the issuance of the writ of execution, it
does not appear that the petitioner took pains to implement it. We find this
perplexing given his passionate and persistent pleas that he was entitled to the
proceeds. There can indeed be no plausible explanation other than to enable him
to keep an "ace" against the private respondent that led finally, to the conveyance
of the properties in his favor. To be sure, he would have us beheve that by
redeeming the same from the mortgagee and by in fact parting with his own
money he had actually done the private respondent a favor, but this is to assume
that he did not get anything out of the transaction. Indeed, he himself admits that
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"[t]itles to the properties have been issued to the new owners long before the filing
of private respondents [sic] petition for annulment." 41 To say that he did not profit
therefrom is to take either this Court or the petitioner for naive, a proposition this
Court is not prepared to accept under the circumstances.
We are likewise convinced that it was the petitioner who succeeded in having the
private respondent sign the "Deed of Sale and Transfer of Rights of Equity of
Redemption and/or to Redeem," a pre-prepared document apparently, that allowed
him (the petitioner) to exercise the right of redemption over the properties and to
all intents and purposes, acquire ownership thereof. As we have earlier averred,
the private respondent, by reason of bankruptcy, had become an easy quarry to
his counsel's moral influence and ascendancy. We are hard put to believe that it
was the private respondent who "earnestly implored" 42 him to undertake the
redemption amid the former's obstinate attempts to keep his lands that have
indeed led to the multiple suits the petitioner now complains of, apart from the
fact that the latter himself had something to gain from the transaction, as alluded
to above. We are of the opinion that in ceding his right of redemption, the private
respondent had intended merely to forestall the total loss of the parcels to the
mortgagee upon the understanding that his counsel shall acquire the same and
keep them therefore within reach, subject to redemption by his client under easier
terms and conditions. Surely, the petitioner himself would maintain that he agreed
to make the redemption"in order that [he] may already be paid the P100,000.00
attorney's fees awarded him in the Compromise Agreement," 43 and if his sole
concern was his fees, there was no point in keeping the properties in their entirety.
The Court simply cannot fag for the petitioner's pretensions that he acquired the
properties as a gesture of magnanimity and altruism He denies, of course, having
made money from it, but what he cannot dispute is the fact that he did resell the
properties. 44
But if he did not entertain intents of making any profit, why was it necessary to
reword the conveyance document executed by the private respondent? It shall be
recalled that the deed, as originally drafted, provided for conveyance of the private
respondent's "rights of equity of redemption and/or redeem" 45 the properties in his
favor, whereas the instrument registered with the Register of Deeds purported to
transfer "any and all my rights of the real properties and/or to redeem," 46 in his
favor. He admits having entered the intercalations in question but argues that he
did so "to facilitate the registration of the questioned deed with the Register of
Deeds" 47 and that it did not change the meaning of the paper, for which Judge
Santiago acquitted him of any falsification charges. 48 To start with, the Court is at
a loss how such an alteration could "facilitate" registration. Moreover, if it did not
change the tenor of the deed, why was it necessary then? And why did he not
inform his client? At any rate, the agreement is clearly a contract of adhesion. Its
provisions should be read against the party who prepared it.
But while we cannot hold the petitioner liable for falsification this is not the
proper occasion for it we condemn him nonetheless for infidelity to his oath "to
do no falsehood" 49
This brings us to the final question: Whether or not the conveyance in favor of the
petitioner is subject to the ban on acquisition by attorneys of things in litigation.
The pertinent provisions of the Civil Code state as follows:
Art. 1491. The following persons cannot acquire by purchase,
even at a public or judicial action, either in person or through the
mediation of another:
(1) The guardian, the property of the person or persons who may
be under his guardianship;
(2) Agents, the property whose administration or sale may have
been intrusted to them, unless the consent of the principal have
been given;
(3) Executors and administrators, the property of the estate under
administration;
(4) Public officers and employees, the property of the State or of
any subdivision thereof, or of any government owned or
controlled corporation, or institution, the administration of which
has been instrusted to them; this provision shall apply to judges
and government experts who, in any manner whatsoever, take
part in the sale;
(5) Justice judges prosecuting attorneys clerks of superior and
inferior courts, and other officers and employees connected with
the administration of justice, the property and rights in litigation
or levied upon an execution before the court within whose
jurisdiction or territory they exercise their respective functions;
this prohibition includes the act of acquiring by assignment and
shall apply to lawyers, with respect to the property and rights
which may be the object of any litigation in which they may take
part by virtue of their profession.
(6) Any others specially disqualified by law.**
In Rubias v. Batiller, 50 we declared such contracts to be void by force of Article
1409, paragraph (7), of the Civil Code, defining inexistent contracts. In Director of
Lands v. Ababa51 however, we said that the prohibition does not apply to
contingent contracts, in which the conveyance takes place after judgment, so that
the property can no longer be said to be "subject of litigation."
In the instant case, the Court observes that the "Deed of Sale and Transfer of
Rights of Equity of Redemption and/or to Redeem" was executed following the
finality of the decision approving the compromise agreement. It is actually a new
contract not one in pursuance of what had been agreed upon on compromise
in which, as we said, the petitioner purportedly assumed redemption rights over
the disputed properties (but in reality, acquired absolute ownership thereof). By
virtue of such a subsequent agreement, the lands had ceased to be properties
which are "the object of any litigation." Parenthetically, the Court states that a writ
of possession is improper to eject another from possession unless sought in
connection with: (1) a land registration proceeding; (2) an extrajudicial foreclosure
of mortgage of real property; (3) in a judicial foreclosure of property provided that
the mortgagor has possession and no third party has intervened; and (4) in
execution sales. 52 It is noteworthy that in this case, the petitioner moved for the
issuance of the writ pursuant to the deed of sale between him and the private
respondent and not the judgment on compromise. (He was, as we said, issued a
writ of execution on the compromise agreement but as we likewise observed, he
did not have the same enforced. The sale agreement between the parties, it
should be noted, superseded the compromise.) The writ does not lie in such a
case. His remedy is specific performance.
At any rate, the transfer, so we hold, is not subject to the injunction of Article 1491
of the Civil Code. But like all voidable contracts, it is open to annulment on the
ground of mistake, fraud, or undue influence, 53 which is in turn subject to the right
of innocent purchasers for value. 54
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For this reason, we invalidate the transfer in question specifically for undue
influence as earlier detailed. While the respondent Herrera has not specifically
prayed for invalidation, this is the clear tenor of his petition for annulment in the
Appellate Court. It appearing, however, that the properties have been conveyed to
third persons whom we presume to be innocent purchasers for value, the
petitioner, Atty. Paterno Canlas, must be held liable, by way of actual damages, for
such a loss of properties.
We are not, however, condoning the private respondent's own shortcomings. In
condemning Atty. Canlas monetarily, we cannot overlook the fact that the private
respondent has not settled his hability for payment of the properties. To hold Atty.
Canlas alone liable for damages is to enrich said respondent at the expense of his
lawyer. The parties must then set off their obligations against the other. To obviate
debate as the actual amounts owing by one to the other, we hold Francisco
Herrera, the private respondent, liable to Atty. Paterno Canlas, the petitioner, in the
sum of P654,000.00 representing the redemption price of the properties, 55 in
addition to the sum of P20,000. 00 as and for attomey's fees. We order Atty.
Canlas, in turn, to pay the respondent Herrera the amount of P1,000,000.00, the
sum he earned from the resale thereof, 56 such that he shall, after proper
adjustments, be indebted to his client in the sum of P326,000.00 as and for
damages.
Needless to say, we sustain the action of the respondent Court of Appeals in taking
cognizance of the petition below. But as we have stated, we are compelled, as the
final arbiter of justiciable cases and in the highest interests ofjustice, to
write finis to the controversy that has taxed considerably the dockets of the
inferior courts.
Let the Court further say that while its business is to settle actual controversies
and as a matter of general policy, to leave alone moot ones, its mission is, first and
foremost, to dispense justice. At the outset, we have made clear that from a
technical vantage point, certiorari, arguably lies, but as we have likewise stated,
the resolution of the case rests not only on the mandate of technical rules, but if
the decision is to have any real meaning, on the merits too. This is not the first
time we would have done so; in many cases we have eschewed the rigidity of the
Rules of Court if it would establish a barrier upon the administration ofjustice. It is
especially so in the case at bar, in which no end to suit and counter-suit appears
imminent and for which it is high time that we have the final say. We likewise
cannot, as the overseer of good conduct in both the bench and the bar, let go
unpunished what convinces us as serious indiscretions on the part of a lawyer.
WHEREFORE, judgment is hereby rendered.
1. ORDERING the petitioner, Atty. Patemo Canlas, to pay to the private respondent,
Francisco Herrera, the sum of P326,000.00, as and for damages;
2. ORDERING the petitioner to SHOW CAUSE why no disciplinary action may be
imposed on him for violation of his oath, as a lawyer, within ten (10) days from
notice, after which the same will be consolidated with AC No. 2625;
3. DISMISSING this petition and REMANDING the case to the respondent Court of
Appeals for execution; and
4. ORDERING the petitioner to pay costs.
SO ORDERED.

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In re VICENTE SOTTO, for contempt of court.
Vicente Sotto in his own behalf.
This is a proceeding for contempt of our court against the respondent Atty.
Vicente Sotto, who was required by their Court on December 7, 1948, to show
cause why he should not be punished for contempt to court for having issued
a written statement in connection with the decision of this Court in In re Angel
Parazo for contempt of court, which statement, as published in the Manila
Times and other daily newspapers of the locality, reads as follows:
As author of the Press Freedom Law (Republic Act No. 53.) interpreted
by the Supreme Court in the case of Angel Parazo, reporter of a local
daily, who now has to suffer 30 days imprisonment, for his refusal to
divulge the source of a news published in his paper, I regret to say
that our High Tribunal has not only erroneously interpreted said law,
but that it is once more putting in evidence the incompetency of
narrow mindedness o the majority of its members, In the wake of so
many mindedness of the majority deliberately committed during these
last years, I believe that the only remedy to put an end to so much
evil, is to change the members of the Supreme Court. To his effect, I
announce that one of the first measures, which as its objects the
complete reorganization of the Supreme Court. As it is now
constituted, a constant peril to liberty and democracy. It need be said
loudly, very loudly, so that even the deaf may hear: the Supreme
Court very of today is a far cry from the impregnable bulwark of
Justice of those memorable times of Cayetano Arellano, Victorino
Mapa, Manuel Araullo and other learned jurists who were the honor
and glory of the Philippine Judiciary.
Upon his request, the respondent was granted ten days more besides the five
originally given him to file his answer, and although his answer was filed after
the expiration of the period of time given him the said answer was admitted.
This Court could have rendered a judgment for contempt after considering his
answer, because he does not deny the authenticity of the statement as it has
been published. But, in order to give the respondent ample opportunity to
defend himself or justify the publication of such libelous statement, the case
was set for hearing or oral argument on January 4, the hearing being later
postponed to January 10, 1949. As the respondent did not appear at the date
set for hearing, the case was submitted for decision.
In his answer, the respondent does not deny having published the above
quoted threat, and intimidation as well as false and calumnious charges
against this Supreme Court. But he therein contends that under section 13,
Article VIII of the Constitution, which confers upon this Supreme Court the
power to promulgate rules concerning pleading, practice, and procedure, "this
Court has no power to impose correctional penalties upon the citizens, and
that the Supreme Court can only impose fines and imprisonment by virtue of a
law, and has to be promulgated by Congress with the approval of the Chief
Executive." And he also alleges in his answer that "in the exercise of the
freedom of speech guaranteed by the Constitution, the respondent made his
statement in the press with the utmost good faith and with no intention of
offending any of the majority of the honorable members of this high Tribunal,
who, in his opinion, erroneously decided the Parazo case; but he has not
attacked, or intended to attack the honesty or integrity of any one.' The other
arguments set forth by the respondent in his defenses observe no
consideration.
Rules 64 of the rules promulgated by this court does not punish as for
contempt of court an act which was not punishable as such under the law and
the inherent powers of the court to punish for contempt. The provisions of
section 1 and 3 of said Rule 64 are a mere reproduction of section 231 and
232 of the old Code of Civil Procedure, Act No. 190, amended, in connection
with the doctrine laid down by this Court on the inherent power if the superior
courts to punish for contempt is several cases, among them In re Kelly, 35
Phil., 944. That the power to punish for contempt is inherent in all courts of
superior statue, is a doctrine or principle uniformly accepted and applied by
the courts of last resort in the United States, which is applicable in this
jurisdiction since our Constitution and courts of justice are patterned as
expounded in American Jurisprudence is as follows:
The power of inflicting punishment upon persons guilty of contempt of
court may be regarded as an essential element of judicial authority, IT
is possessed as a part of the judicial authority granted to courts
created by the Constitution of the United States or by the
Constitutions of the several states. It is a power said to be inherent in
all courts general jurisdiction, whether they are State or Federal; such
power exists in courts of general jurisdiction independently of any
special express grant of statute. In many instances the right of certain
courts of tribunals to punish for contempt is expressly bestowed by
statue, but such statutory authorization is unnecessary, so far as the
courts of general jurisdiction are concerned, and in general adds
nothing statutory authority may be necessary as concerns the inferior
courts statutory authority may be necessary to empower them to act.
(Contempt, 12 Jur., pp. 418, 419.)
In conformity with the principle enunciated in the above quotation from
American Jurisprudence, this Court, in In re Kelly, held the following:
The publication of a criticism of a party or of the court to a pending
cause, respecting the same, has always been considered as
misbehavior, tending to obstruct the administration of justice, and
subjects such persons to contempt proceedings. Parties have a
constitutional right to have their fairly in court, by an impartial
tribunal, uninfluenced by publications or public clamor. Every citizen
has a profound personal interest in the enforcement of the
fundamental right to have justice administered by the courts, under
the protection and forms of law, free from outside coercion or
interference. Any publication, pending a suit, reflecting upon the upon
court, the parties, the officers of the court, the counsel, etc., with
reference to the suit, or tending to influence the decision of the
controversy, is contempt of court and is punishable. The power to
punish for contempt is inherent in all court. The summary power to
commit and punish for contempt tending to obstructed or degrade the
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administration of justice, as inherent in courts as essential to the
execution of their powers and to the maintenance of their authority is
a part of the law of the land. (In reKelly, 35 Phil., 944, 945.)
Mere criticism or comment on the correctness or wrongness, soundness or
unsoundness of the decision of the court in a pending case made in good faith
may be tolerated; because if well founded it may enlighten the court and
contribute to the correction of an error if committed; but if it is not well taken
and obviously erroneous, it should, in no way, influence the court in reversing
or modifying its decision. Had the respondent in the present case limited
himself to as statement that our decision is wrong or that our construction of
the intention of the law is not correct, because it is different from what he, as
proponent of the original bill which became a law had intended, his criticism
might in that case be tolerated, for it could not in any way influence the final
disposition of the Parazo case by the court; inasmuch as it is of judicial notice
that the bill presented by the respondent was amended by both Houses of
Congress, and the clause "unless the court finds that such revelation is
demanded by the interest of the State" was added or inserted; and that, as
the Act was passed by Congress and not by any particular member thereof,
the intention of Congress and not that of the respondent must be the one to
be determined by this Court in applying said act.
But in the above-quoted written statement which he caused to be published in
the press, the respondent does not merely criticize or comment on the
decision of the Parazo case, which was then and still is pending
reconsideration by this Court upon petition of Angel Parazo. He not only
intends to intimidate the members of this Court with the presentation of a bill
in the next Congress, of which he is one of the members, reorganizing the
Supreme Court and reducing the members, reorganizing the Supreme Court
and reducing the members of Justices from eleven to seven, so as to change
the members of this Court which decided the Parazo case, who according to
his statement, are incompetent and narrow minded, in order to influence the
final decision of said case by this Court, and thus embarrass or obstruct the
administration of justice. But the respondent also attacks the honesty and
integrity of this Court for the apparent purpose of bringing the Justices of this
Court into disrepute and degrading the administration of justice, for in his
above-quoted statement he says:
In the wake of so many blunders and injustices deliberately committed
during these last years, I believe that the only remedy to put an end
to so much evil, is to change the members of the Supreme Court. To
this effect, I announce that one of the first measures, which I will
introduce in the coming congressional sessions, will have as its object
the complete reorganization of the Supreme Court. As it is now the
Supreme Court of today constitutes a constant peril to liberty and
democracy.
To hurl the false charge that this Court has been for the last years committing
deliberately "so many blunders and injustices," that is to say, that it has been
deciding in favor of one party knowing that the law and justice is on the part
of the adverse party and not on the one in whose favor the decision was
rendered, in many cases decided during the last years, would tend necessarily
to undermine the confidence of the people in the honesty and integrity of the
members of this Court, and consequently to lower or degrade the
administration of justice by this Court. The Supreme Court of the Philippines
is, under the Constitution, the last bulwark to which the Filipino people may
repair to obtain relief for their grievances or protection of their rights when
these are trampled upon, and if the people lose their confidence in the
honesty and integrity of the members of this Court and believe that they
cannot expect justice therefrom, they might be driven to take the law into
their own hands, and disorder and perhaps chaos might be the result. As a
member of the bar and an officer of the courts Atty. Vicente Sotto, like any
other, is in duty bound to uphold the dignity and authority of this Court, to
which he owes fidelity according to the oath he has taken as such attorney,
and not to promote distrust in the administration of justice. Respect to the
courts guarantees the stability of other institutions, which without such
guaranty would be resting on a very shaky foundation.
Respondent's assertion in his answer that "he made his statement in the press
with the utmost good faith and without intention of offending any of the
majority of the honorable members of this high Tribunal," if true may mitigate
but not exempt him from liability for contempt of court; but it is belied by his
acts and statements during the pendency of this proceeding. The respondent
in his petition of December 11, alleges that Justice Gregorio Perfecto is the
principal promoter of this proceeding for contempt, conveying thereby the
idea that this Court acted in the case through the instigation of Mr. Justice
Perfecto.
It is true that the constitutional guaranty of freedom of speech and the press
must be protected to its fullest extent, but license or abuse of liberty of the
press and of the citizen should not be confused with liberty in its true sense.
As important as the maintenance of an unmuzzled press and the free exercise
of the right of the citizen, is the maintenance of the independence of the
judiciary. As Judge Holmes very appropriately said U. S vs Sullens (1929), 36
Fed. (2nd), 230, 238, 239: "The administration of justice and the freedom of
the press, though separate and distinct, are equally sacred, and neither
should be violated by the other. The press and the courts have correlative
rights and duties and should cooperate to uphold the principles of the
Constitution and laws, from which the former receives its prerogatives and the
latter its jurisdiction. The right of legitimate publicity must be scrupulously
recognized and care taken at all times to avoid impinging upon it. In a clear
case where it is necessary, in order to dispose of judicial business
unhampered by publications which reasonably tend to impair the impartiality
of verdicts, or otherwise obstruct the administration of justice, this court will
not hesitate to exercise its undoubted power to punish for contempt. This
Court must be permitted to proceed with the disposition if its business in an
orderly manner free from outside interference obstructive of its constitutional
functions. This right will be insisted upon as vital to an impartial court, and, as
a last resort, as a individual exercises the right of self-defense, it will act to
preserve its existence as an unprejudiced tribunal. . . ."
It is also well settled that an attorney as an officer of the court is under special
obligation to be respectful in his conduct and communication to the courts, he
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Legal Ethics
may be removed from office or stricken from the roll of attorneys as being
guilty of flagrant misconduct (17 L. R. A. [N.S.], 586, 594).
In view of all the foregoing, we find the respondent Atty. Vicente Sotto guilty of
contempt of this Court by virtue of the above-quoted publication, and he is
hereby sentenced to pay, within the period of fifteen days from the
promulgation of this judgment, a fine of P1,000, with subsidiary imprisonment
in case of insolvency.
The respondent is also hereby required to appear, within the same period, and
show cause to this Court why he should not be disbarred form practicing as an
attorney-at-law in any of the courts of this Republic, for said publication and
the following statements made by him during the pendency of the case
against Angel Parazo for contempt of Court.
In his statement to the press as published in the Manila Times in its issue of
December 9, 1948, the respondent said "The Supreme Court can send me to
jail, but it cannot close my mouth; " and in his other statement published on
December 10, 1948, in the same paper, he stated among others: "It is not the
imprisonment that is degrading, but the cause of the imprisonment." In his
Rizal day speech at the Abellana High School in Cebu, published on January 3,
1949, in the Manila Daily Bulletin, the respondent said that "there was more
freedom of speech when American Justices sat in the Tribunal than now when
it is composed of our countrymen;" reiterated that "even if it succeeds in
placing him behind bars, the court can not close his mouth," and added: "I
would consider imprisonment a precious heritage to leave for those who
would follow me because the cause is noble and lofty." And the Manila
Chronicle of January 5 published the statement of the respondent in Cebu to
the effect that this Court "acted with malice" in citing him to appear before
this Court on January 4 when "the members of this Court know that I came
here on vacation." In all said statements the respondent misrepresents to the
public the cause of the charge against him for contempt of court. He says that
the cause is for criticizing the decision of this Court in said Parazo case in
defense of the freedom of the press, when in truth and in fact he is charged
with intending to interfere and influence the final disposition of said case
through intimidation and false accusations against this Supreme Court. So
ordered.

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Legal Ethics
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LIBERATO GAGUI, ET AL., defendants.
EUSEBIO V. NAVARRO, respondent.
On November 8, 1957, when Criminal Case No. 2193 of the Court of First
Instance of Pampanga was called for trial, Atty. Eusebio V. Navarro, counsel of
record for one of the accused, failed to appear and forthwith the court issued
an order, which is quoted verbatim as follows:
By virtue of the order dated October 8, 1957, the assignment of this
case was set for today, November 8, 1957. Present were Fiscal Pedro
S. David and counsel, Mr. Ahmed Garcia, for the accused Arsenio
Mangila.
Attached to the record is an urgent motion for postponement filed by
Mr. Eusebio Navarro, counsel for the other accused Liberato Gagui,
alleging that he cannot attend to this case, as he is engaged in a civil
case in the Court of First Instance of Camarines Sur.
The record clearly shows that when the trial was set for November 8,
1957, it was done in open court and after consultation with Mr.
Navarro. As a matter of fact, the court ordered the detail of a Tagalog
interpreter. The said interpreter is also present.
The reasons given by Mr. Navarro are not satisfactory. Mr. Navarro is
fully aware of the fact that this case has been pending for a
considerable length of time. He should have, therefore, given priority
to this case.
IN VIEW OF THE FOREGOING, the Court hereby imposes a fine of
P100.00 upon Mr. Navarro for delaying this criminal case. The court
announces in advance that it will not reconsider this order.
Reset the trial on January 7, 1958, at 9:00 o'clock in the morning.
Let a copy of this order be served upon the Department of Justice for
the detail again of the Tagalog interpreter on the said date.
In another order issued on November 16, 1957, the above quoted order was
amended by providing in the dispositive part thereof that "in the event that
Mr. Navarro fails to pay the fine of P100.00 he shall suffer a subsidiary
imprisonment not to exceed five (5) days." Subsequently, on December 2,
1957, the lower court issued still another order warning Atty. Navarro "that if
he fails to pay the said fine on or before December 14, 1957, the court will
order his arrest and confinement."
From the three orders above referred to, Atty. Eusebio V. Navarro has
interposed the present appeal.
It would appear that for the absence from court of the appellant Atty. Navarro
when Criminal Case No. 2193, in which he was counsel of record for one of the
accused, was called for trial, the lower court summarily adjudged him guilty of
direct contempt and sentenced him to pay a fine under penalty of
imprisonment if he fails to do so within a given period.
In our opinion, the contempt supposed to have been committed by appellant
is not a direct contempt so as to be summarily punishable under section 1 of
Rule 64, for it is not a misbehavior in the presence of or so near a court or
judge as to interrupt the administration of justice. If any contempt occurred he
failure of said appellant to appear for trial under the circumstances mentioned
in the order of November 8, 1957 complained of, it would be an indirect
contempt, punishable only after written charge and hearing, under section 3
of the same Rule 64, paragraph (b) of which mentions "disobedience of or
resistance to a lawful writ, process, order, judgment, or command of a court,
or injunction granted by a court or judge." As held in the case of Rivera vs.
Arellano (83 Phil. 744)
. . . failure or refusal of an accused or of his attorney to appear from
trial comes closer to the definition of indirect contempt in paragraph
(b) of section 3 (Rule 64) than to a misbehavior in the presence of or
near the court contemplated in Section 1.
In State vs. Winthrop, 148 Wash., 526 P. 793; 59 A.L.R. 1265, it was
held that the unexcused absence of an attorney from the court when a
case in which he was attorney of record for one of the parties was
called for trial is not a contempt occurring in the presence or view of
the court, so as to be summarily punishable, but contempt therein, if
any occurred, away from, and out of, the presence of the court, and
he is not subject to discipline and punishment, other than by a charge
being first made against him substantially as required by statute.'
(Footnote, 12 Am. Jur. Sec. 11, p. 396).
In Finnick vs. Peterson, 6 Phil. 172, this Court said: 'A witness who fails
or refuses to comply with a subpoena duces tecum is guilty of
contempt. Such contempt is not committed in the presence of the
court, even though, upon appearance of the witness, the court should
make a verbal order commanding him to comply with the terms of the
subpoena. Such a witness can not be punished summarily. He is
entitled to the hearing provided for under sections 232-240 of the
Code of Procedure in Civil Actions. (See also Francisco vs. Enriquez, G.
R. No. L-7058, March 20, 1954.) .
It clearly appearing that no charge in writing for contempt has been filed
against herein appellant, nor An opportunity given to him to be heard by
himself or counsel, Are find and so hold that the lower court acted in excess if
not in grave abuse, of its jurisdiction in proceeding against and declaring said
appellant guilty of contempt. (See. 3, Rule 64; Nava vs. Teodoro, et al., G.R.
No. L-10074, April 30, 1959).
Having arrived at the above conclusion, we deem it unnecessary to pass upon
the other questions raised by appellant.
WHEREFORE, the orders complained of are hereby set aside. So ordered
without costs.
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Legal Ethics
SPS. APOLINARIO MELO and LILIA T. MELO, and JULIA
BARRETO, petitioners,
vs.
THE HON. COURT OF APPEALS and ARSENIA CORONEL, respondents.
This is a petition for review on certiorari of the resolution 1 of the Court of Appeals,
dated January 2, 1996, affirming the denial by the Regional Trial Court, Branch 57,
Angeles City, of the motion to dismiss filed by petitioners spouses Apolinario and
Lilia Melo and Julia Barreto.
The facts are not disputed:
Private respondent Arsenia Coronel mortgaged to the Rural Bank of Mabalacat, Inc.
a parcel of land in Angeles City, covered by T.C.T. No. 43872, to secure a loan of
P60,000.00. Because of her failure to pay the loan, the bank caused the extra-
judicial foreclosure of the mortgage pursuant to Act. No. 3135, as amended by Act
No. 4118, as a result of which the land was sold to petitioners as the highest
bidders. Petitioners then filed a Petition for the Ex-Parte Issuance of a Writ of
Possession with the Regional Trial Court, Branch 60, Angeles City. 2
To counter the petition, private respondent filed, on June 8, 1995, a complaint for
injunction against petitioners in the Regional Trial Court, Branch 57, Angeles City. In
turn, petitioners moved to dismiss private respondent's action on the following
grounds: (1) litis pendentia; (2) forum shopping; and (3) failure of private
respondent to attach a certification of non-forum shopping to her complaint. 3
On July 3, 1995, private respondent amended her complaint by including the
certification of non-forum shopping which stated: 4
AMENDED VERIFICATION/CERTIFICATION
I, ARSENIA CORONEL, being duly sworn in accordance with law do
hereby declare and depose:
1. That I am the plaintiff in Civil Case No. 8022 filed before Branch
57 of the Regional Trial Court of Angeles City;
2. That I caused the foregoing complaint to be prepared and have
read and understood the allegations thereof;
3. That said allegations are true and correct of my own personal
knowledge;
4. That I have not commenced any other complaint/petition
involving the same issues similar to the instant complaint;
5. That to the best of my knowledge or belief, there is no other
complaint/petition filed involving the same issues at bar;
6. That there is, however, a Petition for Issuance of Writ of
Possession filed against me by the defendants herein docketed as
Cad. Case No. A-124-694 before Branch 60 of the Regional Trial
Court, Angeles City;
7. That I execute this affidavit to attest to the truth of the
foregoing.
FURTHER AFFIANT SAYETH NONE.
(SGD. ARSENIA CORONEL)
On August 7, 1995, the trial court denied petitioners' motion to dismiss explaining
A reading of the complaint shows that the plaintiff, in order to
exercise her right of redemption, seeks to prevent the defendants
and the Register of Deeds of Angeles City from doing something.
Paragraph 14 of the complaint reads as follows:
14. That defendants are about to consolidate the
ownership of the plaintiff's property (T.C.T. No.
43872 of the Register of Deeds of Angeles City)
in their names and register the said consolidation
of ownership with the Register of Deeds of
Angeles City, upon the expiry date of the
redemption period (June 9, 1995); the desire and
willingness of the plaintiff to exercise her right of
redemption notwithstanding.
It only avers that she has a right to redeem the property and that
she is entitled to the reliefs prayed for, such as the issuance of a
permanent injunction. Furthermore, the complaint states a
sufficient cause of action which is set out in its paragraph 4 to 6,
inclusive, that is, the right to redeem the property and to prevent
the defendant-spouses Apolinario Melo and Lilia T. Melo and
defendant Julio Barreto to consolidate their ownership over the
property.
xxx xxx xxx
On Forum Shopping:
In the case at bar, there is no forum shopping. There is forum
shopping whenever, as a result of an adverse opinion in one
forum, a party seeks a favorable opinion (other than by appeal
or certiorari) in another, and the principle applies not only with
respect to suits filed in the courts while an administrative
proceeding is pending, in order to defeat administrative processes
and in anticipation of an unfavorable administrative ruling and a
favorable court ruling.
The petition for the issuance of a writ of possession and the
present case, as heretofore stated, are oceans apart, so to speak.
Thus, even if a writ of possession is issued, this will not prevent
the plaintiff from exercising her right to redeem the property, if
warranted. And it may be added that an indemnity bond is
required to be posted in order that possession may then be
obtained under a writ which may be applied for ex-parte, pursuant
to Section 7 of Act 3135 as amended by Act 116.
Plaintiff, in compliance with Circular No. 28-91 and Section 17 of
the Interim Rules and Guidelines, submitted an Amended
Verification/Certification.
On certiorari brought by petitioners, the Court of Appeals upheld the trial court's
order. It ruled:
What happened in this case was totally different since the ex-
parte petition for the issuance of a writ of possession was filed by
the petitioners against private respondent. On the other hand, the
complaint with preliminary injunction was filed by the private
respondent against herein petitioners. It is not a case, therefore,
of the private respondent instituting two (2) remedies in two (2)
different fora. Her case entailed only one (1) forum, to be precise,
with the RTC, Branch 57.
Hence, this petition for review on certiorari, raising the following issues: (1)
whether private respondent is guilty of forum shopping by filing her complaint with
preliminary injunction before the Regional Trial Court, Branch 57, Angeles City
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Legal Ethics
when there was a Petition for Ex-Parte Issuance of Writ of Possession pending
before Branch 60 of the same court; and (2) whether there was substantial
compliance by private respondent with the rule requiring the submission of a
certification of non-forum shopping together with initiatory pleadings.
We shall deal with these issues seriatim.
To begin with, the essence of forum-shopping is the filing of multiple suits involving
the same parties for the same cause of action, either simultaneously or
successively, for the purpose of obtaining a favorable judgment. 5 It exists where
the elements of litis pendentia are present or where a final judgment in one case
will amount to res judicata in another. 6 On the other hand, for litis pendentia to be
a ground for the dismissal of an action, the following requisites must concur: (a)
identity of parties, or at least such parties who represent the same interests in
both actions; (b) identity of rights asserted and relief prayed for, the relief being
founded on the same facts; and (c) the identity with respect to the two preceding
particulars in the two cases is such that any judgment that may be rendered in the
pending case, regardless of which party is successful, would amount to res
judicata in the other case. 7
But, in the instant case, the petition for the Ex-Parte Issuance of a Writ of
Possession which petitioners filed involved a different cause of action from the
complaint for injunction filed by private respondent. Petitioners sought possession
of the subject property, whereas private respondent sought to enjoin them from
consolidating title over the same. Petitioners' action is founded on Act No. 3135,
7, which gives the purchaser at a public auction the right to have possession of
the property sold to him during the redemption period even if eventually they do
not succeed in consolidating their title to it. On the other hand, private
respondents' action is based on R.A. No. 337, 78, which gives a mortgagor the
right to redeem the property sold at foreclosure sale within one year thereof. Thus,
private respondent could very well oppose petitioners' action to obtain possession
of the property while trying to prevent them from consolidating title in a separate
case. The decision in one is not conclusive of the other.
Nonetheless, petitioners contend that private respondent failed to comply with the
requirements of Administrative Circular No. 09-94 on non-forum shopping and,
therefore, her complaint should have been dismissed by the trial court. We find
this contention to be well taken.
Administrative Circular No. 09-94 states in pertinent parts:
The plaintiff, petitioner, applicant or principal party seeking relief
in the complaint, petition, application or other initiatory pleadings
shall certify under oath in such original pleadings, or in a sworn
certification annexed thereto and simultaneously filed therewith,
to the truth of the following facts and undertakings: (a) he has not
heretofore commenced any other action or proceeding involving
the same issues in the Supreme Court, the Court of Appeals, or
any other tribunal or agency; (b) to the best of his knowledge, no
such action or proceeding is pending in the Supreme Court, the
Court of Appeals, or any other tribunal or agency; (c) if there is
any such action or proceeding which is either pending or may
have been terminated, he must state the status thereof; and, (d)
if he should thereafter learn that a similar action or proceeding
has been filed or is pending before the Supreme Court, the Court
of Appeals or any other tribunal or agency, he undertakes to
report that fact within five (5) days therefrom to the court or
agency wherein the original pleading and sworn certification
contemplated herein have been filed.
xxx xxx xxx
Any violation of this Circular shall be cause for the dismissal of the
complaint, petition, application or other initiatory pleading, upon
motion and after hearing. However, any clearly willful and
deliberate forum shopping by any party and his counsel through
the filing of multiple complaints or other initiatory pleadings to
obtain favorable action shall be a ground for summary dismissal
thereof and shall constitute direct contempt of court. Furthermore,
the submission of a false certification or non-compliance with the
undertakings therein, as provided in Paragraph 1 hereof, shall
constitute indirect contempt of court, without prejudice to
disciplinary proceedings against the counsel and the filing of a
criminal action against the guilty party.
The requirement to file a certificate of non-forum shopping is
mandatory. 8 Failure to comply with this requirement cannot be excused by the fact
that plaintiff is not guilty of forum shopping. The Court of Appeals, therefore, erred
in concluding that Administrative Circular No. 04-94 did not apply to private
respondent's case merely because her complaint was not based on petitioner's
cause of action. The Circular applies to any complaint, petition, application, or
other initiatory pleading, regardless of whether the party filing it has actually
committed forum shopping. Every party filing a complaint or any other initiatory
pleading is required to swear under oath that he has not committed nor will he
commit forum shopping. Otherwise, we would have an absurd situation where the
parties themselves would be the judge of whether their actions constitute a
violation of said Circular, and compliance therewith would depend on their belief
that they might or might not have violated the requirement. Such interpretation of
the requirement would defeat the very purpose of Circular 04-94.
Indeed, compliance with the certification against forum shopping is separate from,
and independent of, the avoidance of forum shopping itself. Thus, there is a
difference in the treatment in terms of imposable sanctions between failure to
comply with the certification requirement and violation of the prohibition against
forum shopping. The former is merely a cause for the dismissal, without prejudice,
of the complaint or initiatory pleading, while the latter is a ground for summary
dismissal thereof and constitutes direct contempt.
Nor can subsequent compliance with the requirement excuse a party's failure to
comply in the first instance. As Justice Regalado explains in his works on the
Revised Rules of Civil Procedure:
1. This section, with modifications, is taken from Administrative
Circular No. 04-94 issued by the Supreme Court on February 8,
1994 for this purpose explained therein:
Revised Circular No. 28-91, dated February 8, 1994 applies to and
governs the filing of petitions in the Supreme Court and the Court
of Appeals and is intended to prevent the multiple filing of
petitions or complaints involving the same issues in other
tribunals or agencies as a form of forum shopping.
Complementary thereto and for the same purpose, the following
requirements, in addition to those in pertinent provisions of the
Rules of Court and existing circulars, shall be strictly complied
with in the filing of complaints, petitions, applications or other
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Legal Ethics
initiatory pleadings in all courts and agencies other than the may consequently be refiled within the balance of the
Supreme Court and the Court of Appeals and shall be subject to reglementary period but subject to the provisions on prescription
the sanctions provided hereunder. of actions.
The provisions of Revised Circular No. 28-91 have been adopted In those cases in which we excused non-compliance with the requirements of
and incorporated in Rules 42, 43, 45, 46, 47, 64 and 65. Administrative Circular No. 04-94, there were special circumstances or compelling
2. Aside from some amendments to the original sanctions reasons which made the strict application of said Circular clearly unjustified. 9 In
imposed in Administrative Circular 04-94, this section reiterates contrast private respondent gave no reason at all for her failure to submit the
as a regular requirement under the Rules that the certification certificate in question. Indeed, she cannot even feign ignorance of the Circular as
against forum shopping may be incorporated in the complaint or her complaint was filed more than one year after the effectivity thereof.
contained in a sworn certification annexed thereto and We are not unmindful of the adverse consequence to private respondent of a
simultaneously filed therewith. This enunciates the policy of the dismissal of her complaint, nor of the time, effort, and money spent litigating up to
Supreme Court expressed as early as Circular No. 1-88 that this Court solely on a so-called technical ground. Nonetheless, we hold that
subsequent compliance with the requirements for the filing of compliance with the certification requirement on non-forum shopping should not
petitions or motions is not a ground for reconsideration of the be made subject to a party's afterthought, lest the policy of the law be
dismissal of said pleadings, except for compelling reasons. In light undermined.
hereof, the view that belated filing of the certification may be WHEREFORE, the resolution of the Court of Appeals is REVERSED, the orders of the
deemed a substantial compliance should no longer be sustained. Regional Trial Court of Angeles City, Branch 57, in Civil Case No. 8022 are SET
With respect to the contents of the certification which the pleader ASIDE, and the complaint filed against petitioners is DISMISSED without prejudice.
may prepare, the rule of substantial compliance may be availed SO ORDERED.
of. While this section requires that it be strictly complied with, it
merely underscores its mandatory nature in that it cannot be
altogether dispensed with or its requirement completely
disregarded but it does not thereby prevent substantial
compliance on this aspect of its provisions under justifiable
circumstances (see Gabionza vs. Court of Appeals, et al., G.R. No.
112547, July 18, 1994). This certification on non-forum shopping
was designed to promote and facilitate the orderly administration
of justice and, therefore, should not be interpreted with absolute
literalness (Loyola vs. Court of Appeals, et al., G.R. No. 117186,
June 29, 1995).
More importantly, this section specifically states that the "(f)ailure
to comply with the foregoing requirements shall not be curable by
mere amendment of the complaint or other initiatory pleading but
shall be cause for the dismissal of the case without prejudice,
unless otherwise provided, upon motion and after hearing." This
will obviate the former practice of some trial courts in allowing
amendment of the incomplete pleading for the incorporation
therein of the certificate against forum shopping. That was
erroneous since this undertaking against multiple filing of cases is
not part of the operative facts required to be alleged in an
initiatory pleading, such as allegations on the cause of action, but
is a special requirement for admission of the initiatory pleading for
filing in court, hence the absence thereof is not curable by mere
amendment.
Instead, the case shall be dismissed on motion but, just like the
practice under Revised Circular No. 28-91 in the appellate courts,
such dismissal shall be without prejudice. This more liberal rule is
distinguishable from the effects of dismissal of the case for non-
compliance with the Rules under the provisions of Sec. 3, Rule 17
which presupposes the pendency of the case, whereas what is
contemplated in this section is the initiation of the case. The case
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Legal Ethics
RE: LETTER OF THE UP LAW FACULTY ENTITLED "RESTORING
INTEGRITY: A STATEMENT BY THE FACULTY OF THE UNIVERSITY OF
THE PHILIPPINES COLLEGE OF LAW ON THE ALLEGATIONS OF
PLAGIARISM AND MISREPRESENTATION IN THE SUPREME COURT"
For disposition of the Court are the various submissions of the 37 respondent
law professors1 in response to the Resolution dated October 19, 2010 (the
Show Cause Resolution), directing them to show cause why they should not be
disciplined as members of the Bar for violation of specific provisions of the
Code of Professional Responsibility enumerated therein.
At the outset, it must be stressed that the Show Cause Resolution clearly
dockets this as an administrative matter, not a special civil action for indirect
contempt under Rule 71 of the Rules of Court, contrary to the dissenting
opinion of Associate Justice Maria Lourdes P. A. Sereno (Justice Sereno) to the
said October 19, 2010 Show Cause Resolution. Neither is this a disciplinary
proceeding grounded on an allegedly irregularly concluded finding of indirect
contempt as intimated by Associate Justice Conchita Carpio Morales (Justice
Morales) in her dissenting opinions to both the October 19, 2010 Show Cause
Resolution and the present decision.
With the nature of this case as purely a bar disciplinary proceeding firmly in
mind, the Court finds that with the exception of one respondent whose
compliance was adequate and another who manifested he was not a member
of the Philippine Bar, the submitted explanations, being mere denials and/or
tangential to the issues at hand, are decidedly unsatisfactory. The proffered
defenses even more urgently behoove this Court to call the attention of
respondent law professors, who are members of the Bar, to the relationship of
their duties as such under the Code of Professional Responsibility to their civil
rights as citizens and academics in our free and democratic republic.
The provisions of the Code of Professional Responsibility involved in this case
are as follows:
CANON 1 A lawyer shall uphold the constitution, obey the laws of the land
and promote respect for law and legal processes.
RULE 1.02 - A lawyer shall not counsel or abet activities aimed at
defiance of the law or at lessening confidence in the legal system.
CANON 10 - A lawyer owes candor, fairness and good faith to the court.
Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the
doing of any in court; nor shall he mislead, or allow the Court to be
misled by any artifice.
Rule 10.02 - A lawyer shall not knowingly misquote or misrepresent
the contents of paper, the language or the argument of opposing
counsel, or the text of a decision or authority, or knowingly cite as law
a provision already rendered inoperative by repeal or amendment, or
assert as a fact that which has not been proved.
Rule 10.03 - A lawyer shall observe the rules of procedure and shall
not misuse them to defeat the ends of justice.
CANON 11 A lawyer shall observe and maintain the respect due to the
courts and to judicial officers and should insist on similar conduct by others.
RULE 11.05 A lawyer shall submit grievances against a Judge to the
proper authorities only.
CANON 13 A lawyer shall rely upon the merits of his cause and refrain from
any impropriety which tends to influence, or gives the appearance of
influencing the court.
Established jurisprudence will undeniably support our view that when lawyers
speak their minds, they must ever be mindful of their sworn oath to observe
ethical standards of their profession, and in particular, avoid foul and abusive
language to condemn the Supreme Court, or any court for that matter, for a
decision it has rendered, especially during the pendency of a motion for such
decisions reconsideration. The accusation of plagiarism against a member of
this Court is not the real issue here but rather this plagiarism issue has been
used to deflect everyones attention from the actual concern of this Court to
determine by respondents explanations whether or not respondent members
of the Bar have crossed the line of decency and acceptable professional
conduct and speech and violated the Rules of Court through improper
intervention or interference as third parties to a pending case. Preliminarily, it
should be stressed that it was respondents themselves who called upon the
Supreme Court to act on their Statement, 2 which they formally submitted,
through Dean Marvic M.V.F. Leonen (Dean Leonen), for the Courts proper
disposition. Considering the defenses of freedom of speech and academic
freedom invoked by the respondents, it is worth discussing here that the legal
reasoning used in the past by this Court to rule that freedom of expression is
not a defense in administrative cases against lawyers for using intemperate
speech in open court or in court submissions can similarly be applied to
respondents invocation of academic freedom. Indeed, it is precisely because
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Legal Ethics
respondents are not merely lawyers but lawyers who teach law and mould the
minds of young aspiring attorneys that respondents own non-observance of
the Code of Professional Responsibility, even if purportedly motivated by the
purest of intentions, cannot be ignored nor glossed over by this Court.
To fully appreciate the grave repercussions of respondents actuations, it is
apropos to revisit the factual antecedents of this case.
BACKGROUND OF THE CASE
Antecedent Facts and Proceedings
On April 28, 2010, the ponencia of Associate Justice Mariano del Castillo
(Justice Del Castillo) in Vinuya, et al. v. Executive Secretary (G.R. No. 162230)
was promulgated. On May 31, 2010, the counsel 3 for Vinuya, et al. (the
"Malaya Lolas"), filed a Motion for Reconsideration of the Vinuya decision,
raising solely the following grounds:
I. Our own constitutional and jurisprudential histories reject this
Honorable Courts (sic) assertion that the Executives foreign policy
prerogatives are virtually unlimited; precisely, under the relevant
jurisprudence and constitutional provisions, such prerogatives are
proscribed by international human rights and humanitarian standards,
including those provided for in the relevant international conventions
of which the Philippines is a party.4
II. This Honorable Court has confused diplomatic protection with the
broader, if fundamental, responsibility of states to protect the human
rights of its citizens especially where the rights asserted are subject
of erga omnes obligations and pertain to jus cogens norms. 5
On July 19, 2010,6 counsel for the Malaya Lolas, Attys. H. Harry L. Roque, Jr.
(Atty. Roque) and Romel Regalado Bagares (Atty. Bagares), filed a
Supplemental Motion for Reconsideration in G.R. No. 162230, where they
posited for the first time their charge of plagiarism as one of the grounds for
reconsideration of the Vinuya decision. Among other arguments, Attys. Roque
and Bagares asserted that:
I.
IN THE FIRST PLACE, IT IS HIGHLY IMPROPER FOR THIS HONORABLE COURTS
JUDGMENT OF APRIL 28, 2010 TO PLAGIARIZE AT LEAST THREE SOURCES AN
ARTICLE PUBLISHED IN 2009 IN THE YALE LAW JOURNAL OF INTERNATIONAL
LAW, A BOOK PUBLISHED BY THE CAMBRIDGE UNIVERSITY PRESS IN 2005 AND
AN ARTICLE PUBLISHED IN 2006 IN THE CASE WESTERN RESERVE JOURNAL OF
INTERNATIONAL LAW AND MAKE IT APPEAR THAT THESE SOURCES SUPPORT
THE JUDGMENTS ARGUMENTS FOR DISMISSING THE INSTANT PETITION WHEN
IN TRUTH, THE PLAGIARIZED SOURCES EVEN MAKE A STRONG CASE FOR THE
PETITIONS CLAIMS.7
They also claimed that "[i]n this controversy, the evidence bears out the fact
not only of extensive plagiarism but of (sic) also of twisting the true intents of
the plagiarized sources by the ponencia to suit the arguments of the assailed
Judgment for denying the Petition."8
According to Attys. Roque and Bagares, the works allegedly plagiarized in the
Vinuya decision were namely: (1) Evan J. Criddle and Evan Fox-Decents article
"A Fiduciary Theory of Jus Cogens;" 9 (2) Christian J. Tams book Enforcing Erga
Omnes Obligations in International Law;10 and (3) Mark Ellis article "Breaking
the Silence: On Rape as an International Crime." 11
On the same day as the filing of the Supplemental Motion for Reconsideration
on July 19, 2010, journalists Aries C. Rufo and Purple S. Romero posted an
article, entitled "SC justice plagiarized parts of ruling on comfort women," on
the Newsbreak website.12 The same article appeared on the GMA News TV
website also on July 19, 2010.13
On July 22, 2010, Atty. Roques column, entitled "Plagiarized and Twisted,"
appeared in the Manila Standard Today. 14 In the said column, Atty. Roque
claimed that Prof. Evan Criddle, one of the authors purportedly not properly
acknowledged in the Vinuya decision, confirmed that his work, co-authored
with Prof. Evan Fox-Decent, had been plagiarized. Atty. Roque quoted Prof.
Criddles response to the post by Julian Ku regarding the news report 15 on the
alleged plagiarism in the international law blog, Opinio Juris. Prof. Criddle
responded to Kus blog entry in this wise:
The newspapers16 [plagiarism] claims are based on a motion for
reconsideration filed yesterday with the Philippine Supreme Court yesterday.
The motion is available here:
http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-
in-the-supreme-court/
The motion suggests that the Courts decision contains thirty-four sentences
and citations that are identical to sentences and citations in my 2009 YJIL
article (co-authored with Evan Fox-Decent). Professor Fox-Decent and I were
unaware of the petitioners [plagiarism] allegations until after the motion was
filed today.
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Legal Ethics
Speaking for myself, the most troubling aspect of the courts jus cogens
discussion is that it implies that the prohibitions against crimes against
humanity, sexual slavery, and torture are not jus cogens norms. Our article
emphatically asserts the opposite. The Supreme Courts decision is available
here: http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/162230.htm 17
On even date, July 22, 2010, Justice Del Castillo wrote to his colleagues on the
Court in reply to the charge of plagiarism contained in the Supplemental
Motion for Reconsideration.18
In a letter dated July 23, 2010, another purportedly plagiarized author in the
Vinuya decision, Dr. Mark Ellis, wrote the Court, to wit:
Your Honours:
I write concerning a most delicate issue that has come to my attention in the
last few days.
Much as I regret to raise this matter before your esteemed Court, I am
compelled, as a question of the integrity of my work as an academic and as an
advocate of human rights and humanitarian law, to take exception to the
possible unauthorized use of my law review article on rape as an international
crime in your esteemed Courts Judgment in the case of Vinuya et al. v.
Executive Secretary et al. (G.R. No. 162230, Judgment of 28 April 2010).
My attention was called to the Judgment and the issue of possible plagiarism
by the Philippine chapter of the Southeast Asia Media Legal Defence Initiative
(SEAMLDI),19 an affiliate of the London-based Media Legal Defence Initiative
(MLDI), where I sit as trustee.
In particular, I am concerned about a large part of the extensive discussion in
footnote 65, pp. 27-28, of the said Judgment of your esteemed Court. I am
also concerned that your esteemed Court may have misread the arguments I
made in the article and employed them for cross purposes. This would be
ironic since the article was written precisely to argue for the appropriate legal
remedy for victims of war crimes, genocide, and crimes against humanity.
I believe a full copy of my article as published in the Case Western Reserve
Journal of International Law in 2006 has been made available to your
esteemed Court. I trust that your esteemed Court will take the time to
carefully study the arguments I made in the article.
I would appreciate receiving a response from your esteemed Court as to the
issues raised by this letter.
With respect,
(Sgd.)
Dr. Mark Ellis20
In Memorandum Order No. 35-2010 issued on July 27, 2010, the Court formed
the Committee on Ethics and Ethical Standards (the Ethics Committee)
pursuant to Section 13, Rule 2 of the Internal Rules of the Supreme Court. In
an En Banc Resolution also dated July 27, 2010, the Court referred the July 22,
2010 letter of Justice Del Castillo to the Ethics Committee. The matter was
subsequently docketed as A.M. No. 10-7-17-SC.
On August 2, 2010, the Ethics Committee required Attys. Roque and Bagares
to comment on the letter of Justice Del Castillo.21
On August 9, 2010, a statement dated July 27, 2010, entitled "Restoring
Integrity: A Statement by the Faculty of the University of the Philippines
College of Law on the Allegations of Plagiarism and Misrepresentation in the
Supreme Court" (the Statement), was posted in Newsbreaks website 22 and on
Atty. Roques blog.23 A report regarding the statement also appeared on
various on-line news sites, such as the GMA News TV 24 and the Sun
Star25 sites, on the same date. The statement was likewise posted at the
University of the Philippines College of Laws bulletin board allegedly on
August 10, 201026 and at said colleges website.27
On August 11, 2010, Dean Leonen submitted a copy of the Statement of the
University of the Philippines College of Law Faculty (UP Law faculty) to the
Court, through Chief Justice Renato C. Corona (Chief Justice Corona). The cover
letter dated August 10, 2010 of Dean Leonen read:
The Honorable
Supreme Court of the Republic of the Philippines
Through: Hon. Renato C. Corona
Chief Justice
Subject: Statement of faculty
from the UP College of Law
on the Plagiarism in the case of
Vinuya v Executive Secretary
Your Honors:
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Legal Ethics
We attach for your information and proper disposition a statement signed by best, and stealing at worst. It constitutes a taking of someone elses ideas and
thirty[-]eight (38)28members of the faculty of the UP College of Law. We hope expressions, including all the effort and creativity that went into committing
that its points could be considered by the Supreme Court en banc. such ideas and expressions into writing, and then making it appear that such
ideas and expressions were originally created by the taker. It is dishonesty,
Respectfully, pure and simple. A judicial system that allows plagiarism in any form is one
that allows dishonesty. Since all judicial decisions form part of the law of the
land, to allow plagiarism in the Supreme Court is to allow the production of
(Sgd.) laws by dishonest means. Evidently, this is a complete perversion and
Marvic M.V.F. Leonen falsification of the ends of justice.
Dean and Professor of Law
A comparison of the Vinuya decision and the original source material shows
(Emphases supplied.) that the ponente merely copied select portions of other legal writers works
and interspersed them into the decision as if they were his own, original work.
The copy of the Statement attached to the above-quoted letter did not contain Under the circumstances, however, because the Decision has been
the actual signatures of the alleged signatories but only stated the names of promulgated by the Court, the Decision now becomes the Courts and no
37 UP Law professors with the notation (SGD.) appearing beside each name. longer just the ponentes. Thus the Court also bears the responsibility for the
For convenient reference, the text of the UP Law faculty Statement is Decision. In the absence of any mention of the original writers names and the
reproduced here: publications from which they came, the thing speaks for itself.

RESTORING INTEGRITY
A STATEMENT BY THE FACULTY OF
THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW
ON THE ALLEGATIONS OF PLAGIARISM AND MISREPRESENTATION
IN THE SUPREME COURT
An extraordinary act of injustice has again been committed against the brave
Filipinas who had suffered abuse during a time of war. After they courageously
came out with their very personal stories of abuse and suffering as "comfort
women", waited for almost two decades for any meaningful relief from their
own government as well as from the government of Japan, got their hopes up
for a semblance of judicial recourse in the case of Vinuya v. Executive
Secretary, G.R. No. 162230 (28 April 2010), they only had these hopes
crushed by a singularly reprehensible act of dishonesty and misrepresentation
by the Highest Court of the land.
It is within this frame that the Faculty of the University of the Philippines
College of Law views the charge that an Associate Justice of the Supreme
Court committed plagiarism and misrepresentation in Vinuya v. Executive
Secretary. The plagiarism and misrepresentation are not only affronts to the
individual scholars whose work have been appropriated without correct
attribution, but also a serious threat to the integrity and credibility of the
Philippine Judicial System.
In common parlance, plagiarism is the appropriation and misrepresentation
of another persons work as ones own. In the field of writing, it is cheating at
So far there have been unsatisfactory responses from the ponente of this case
and the spokesman of the Court.
It is argued, for example, that the inclusion of the footnotes from the original
articles is a reference to the primary sources relied upon. This cursory
explanation is not acceptable, because the original authors writings and the
effort they put into finding and summarizing those primary sources are
precisely the subject of plagiarism. The inclusion of the footnotes together
with portions of their writings in fact aggravates, instead of mitigates, the
plagiarism since it provides additional evidence of a deliberate intention to
appropriate the original authors work of organizing and analyzing those
primary sources.
It is also argued that the Members of the Court cannot be expected to be
familiar with all legal and scholarly journals. This is also not acceptable,
because personal unfamiliarity with sources all the more demands correct and
careful attribution and citation of the material relied upon. It is a matter of
diligence and competence expected of all Magistrates of the Highest Court of
the Land.
But a far more serious matter is the objection of the original writers,
Professors Evan Criddle and Evan Fox-Descent, that the High Court actually
misrepresents the conclusions of their work entitled "A Fiduciary Theory of Jus
Cogens," the main source of the plagiarized text. In this article they argue that
the classification of the crimes of rape, torture, and sexual slavery as crimes
against humanity have attained the status of jus cogens, making it obligatory
upon the State to seek remedies on behalf of its aggrieved citizens. Yet, the
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Legal Ethics
Vinuya decision uses parts of the same article to arrive at the contrary
conclusion. This exacerbates the intellectual dishonesty of copying works
without attribution by transforming it into an act of intellectual fraud by
copying works in order to mislead and deceive.
The case is a potential landmark decision in International Law, because it
deals with State liability and responsibility for personal injury and damage
suffered in a time of war, and the role of the injured parties home States in
the pursuit of remedies against such injury or damage. National courts rarely
have such opportunities to make an international impact. That the petitioners
were Filipino "comfort women" who suffered from horrific abuse during the
Second World War made it incumbent on the Court of last resort to afford
them every solicitude. But instead of acting with urgency on this case, the
Court delayed its resolution for almost seven years, oblivious to the deaths of
many of the petitioners seeking justice from the Court. When it dismissed
the Vinuya petition based on misrepresented and plagiarized materials, the
Court decided this case based on polluted sources. By so doing, the Supreme
Court added insult to injury by failing to actually exercise its "power to urge
and exhort the Executive Department to take up the claims of
the Vinuya petitioners. Its callous disposition, coupled with false sympathy
and nonchalance, belies a more alarming lack of concern for even the most
basic values of decency and respect. The reputation of the Philippine Supreme
Court and the standing of the Philippine legal profession before other
Judiciaries and legal systems are truly at stake.
The High Court cannot accommodate less than absolute honesty in its
decisions and cannot accept excuses for failure to attain the highest standards
of conduct imposed upon all members of the Bench and Bar because these
undermine the very foundation of its authority and power in a democratic
society. Given the Courts recent history and the controversy that surrounded
it, it cannot allow the charges of such clear and obvious plagiarism to pass
without sanction as this would only further erode faith and confidence in the
judicial system. And in light of the significance of this decision to the quest for
justice not only of Filipino women, but of women elsewhere in the world who
have suffered the horrors of sexual abuse and exploitation in times of war, the
Court cannot coldly deny relief and justice to the petitioners on the basis of
pilfered and misinterpreted texts.
The Court cannot regain its credibility and maintain its moral authority without
ensuring that its own conduct, whether collectively or through its Members, is
beyond reproach. This necessarily includes ensuring that not only the content,
but also the processes of preparing and writing its own decisions, are credible
and beyond question. The Vinuya Decision must be conscientiously reviewed
and not casually cast aside, if not for the purpose of sanction, then at least for
the purpose of reflection and guidance. It is an absolutely essential step
toward the establishment of a higher standard of professional care and
practical scholarship in the Bench and Bar, which are critical to improving the
system of administration of justice in the Philippines. It is also a very crucial
step in ensuring the position of the Supreme Court as the Final Arbiter of all
controversies: a position that requires competence and integrity completely
above any and all reproach, in accordance with the exacting demands of
judicial and professional ethics.
With these considerations, and bearing in mind the solemn duties and trust
reposed upon them as teachers in the profession of Law, it is the opinion of
the Faculty of the University of the Philippine College of Law that:
(1) The plagiarism committed in the case of Vinuya v. Executive
Secretary is unacceptable, unethical and in breach of the high
standards of moral conduct and judicial and professional competence
expected of the Supreme Court;
(2) Such a fundamental breach endangers the integrity and credibility
of the entire Supreme Court and undermines the foundations of the
Philippine judicial system by allowing implicitly the decision of cases
and the establishment of legal precedents through dubious means;
(3) The same breach and consequent disposition of the Vinuya case
does violence to the primordial function of the Supreme Court as the
ultimate dispenser of justice to all those who have been left without
legal or equitable recourse, such as the petitioners therein;
(4) In light of the extremely serious and far-reaching nature of the
dishonesty and to save the honor and dignity of the Supreme Court as
an institution, it is necessary for the ponente of Vinuya v. Executive
Secretary to resign his position, without prejudice to any other
sanctions that the Court may consider appropriate;
(5) The Supreme Court must take this opportunity to review the
manner by which it conducts research, prepares drafts, reaches and
finalizes decisions in order to prevent a recurrence of similar acts, and
to provide clear and concise guidance to the Bench and Bar to ensure
only the highest quality of legal research and writing in pleadings,
practice, and adjudication.
Malcolm Hall, University of the Philippines College of Law, Quezon City, 27 July
2010.
(SGD.) MARVIC M.V.F. LEONEN
Dean and Professor of Law
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Legal Ethics
(SGD.) FROILAN M.
BACUNGAN
Dean (1978-1983)
(SGD.) MERLIN M.
MAGALLONA
Dean (1995-1999)
REGULAR FACULTY
(SGD.) CARMELO V. SISON
Professor
(SGD.) PATRICIA R.P.
SALVADOR DAWAY
Associate Dean and Associate
Professor
(SGD.) DANTE B.
GATMAYTAN
Associate Professor
(SGD.) THEODORE O. TE
Assistant Professor
(SGD.) FLORIN T. HILBAY
Assistant Professor
LECTURERS
(SGD.) JOSE GERARDO A. ALAMPAY
(SGD.) ARTHUR P. AUTEA
(SGD.) ROSA MARIA J. BAUTISTA
(SGD.) MARK R. BOCOBO
(SGD.) DAN P. CALICA
(SGD.) TRISTAN A. CATINDIG
(SGD.) SANDRA MARIE O.
CORONEL
(SGD.) ROSARIO O. GALLO
(SGD.) PACIFICO A. AGABIN
Dean (1989-1995)
(SGD.) SALVADOR T.
CARLOTA
Dean (2005-2008) and
Professor of Law
(SGD.) JAY L. BATONGBACAL
Assistant Professor
(SGD.) EVELYN (LEO) D.
BATTAD
Assistant Professor
(SGD.) GWEN G. DE VERA
Assistant Professor
(SGD.) SOLOMON F. LUMBA
Assistant Professor
(SGD.) ROMMEL J. CASIS
Assistant Professor
(SGD.) JOSE C. LAURETA
(SGD.) DINA D. LUCENARIO
(SGD.) OWEN J. LYNCH
(SGD.) ANTONIO M. SANTOS
(SGD.) VICENTE V. MENDOZA
(SGD.) RODOLFO NOEL S. QUIMBO
(SGD.) GMELEEN FAYE B. TOMBOC
(SGD.) NICHOLAS FELIX L. TY
(SGD.) CONCEPCION L. JARDELEZA (SGD.) EVALYN G. URSUA
(SGD.) ANTONIO G.M. LA VIA (SGD.) RAUL T. VASQUEZ
(SGD.) SUSAN D. VILLANUEVA29
(SGD.) CARINA C. LAFORTEZA
(Underscoring supplied.)
Meanwhile, in a letter dated August 18, 2010, Prof. Christian J. Tams made
known his sentiments on the alleged plagiarism issue to the Court. 30 We quote
Prof. Tams letter here:
Glasgow, 18 August 2010
Vinuya, et al. v. Executive Secretary et al. (G.R. No. 162230)
Hon. Renato C. Corona, Chief Justice
Your Excellency,
My name is Christian J. Tams, and I am a professor of international law at the
University of Glasgow. I am writing to you in relation to the use of one of my
publications in the above-mentioned judgment of your Honourable Court.
The relevant passage of the judgment is to be found on p. 30 of your Courts
Judgment, in the section addressing the concept of obligations erga omnes. As
the table annexed to this letter shows, the relevant sentences were taken
almost word by word from the introductory chapter of my book Enforcing
Obligations Erga Omnes in International Law (Cambridge University Press
2005). I note that there is a generic reference to my work in footnote 69 of the
Judgment, but as this is in relation to a citation from another author (Bruno
Simma) rather than with respect to the substantive passages reproduced in
the Judgment, I do not think it can be considered an appropriate form of
referencing.
I am particularly concerned that my work should have been used to support
the Judgments cautious approach to the erga omnes concept. In fact, a most
cursory reading shows that my books central thesis is precisely the opposite:
namely that the erga omnes concept has been widely accepted and has a firm
place in contemporary international law. Hence the introductory chapter notes
that "[t]he present study attempts to demystify aspects of the very
mysterious concept and thereby to facilitate its implementation" (p. 5). In the
same vein, the concluding section notes that "the preceding chapters show
that the concept is now a part of the reality of international law, established in
the jurisprudence of courts and the practice of States" (p. 309).
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Legal Ethics
With due respect to your Honourable Court, I am at a loss to see how my work
should have been cited to support as it seemingly has the opposite
approach. More generally, I am concerned at the way in which your
Honourable Courts Judgment has drawn on scholarly work without properly
acknowledging it.
On both aspects, I would appreciate a prompt response from your Honourable
Court.
I remain
Sincerely yours
(Sgd.)
Christian J. Tams31
In the course of the submission of Atty. Roque and Atty. Bagares exhibits
during the August 26, 2010 hearing in the ethics case against Justice Del
Castillo, the Ethics Committee noted that Exhibit "J" (a copy of the Restoring
Integrity Statement) was not signed but merely reflected the names of certain
faculty members with the letters (SGD.) beside the names. Thus, the Ethics
Committee directed Atty. Roque to present the signed copy of the said
Statement within three days from the August 26 hearing. 32
It was upon compliance with this directive that the Ethics Committee was
given a copy of the signed UP Law Faculty Statement that showed on the
signature pages the names of the full roster of the UP Law Faculty, 81 faculty
members in all. Indubitable from the actual signed copy of the Statement was
that only 37 of the 81 faculty members appeared to have signed the same.
However, the 37 actual signatories to the Statement did not include former
Supreme Court Associate Justice Vicente V. Mendoza (Justice Mendoza) as
represented in the previous copies of the Statement submitted by Dean
Leonen and Atty. Roque. It also appeared that Atty. Miguel R. Armovit (Atty.
Armovit) signed the Statement although his name was not included among
the signatories in the previous copies submitted to the Court. Thus, the total
number of ostensible signatories to the Statement remained at 37.
The Ethics Committee referred this matter to the Court en banc since the
same Statement, having been formally submitted by Dean Leonen on August
11, 2010, was already under consideration by the Court. 33
In a Resolution dated October 19, 2010, the Court en banc made the following
observations regarding the UP Law Faculty Statement:
Notably, while the statement was meant to reflect the educators opinion on
the allegations of plagiarism against Justice Del Castillo, they treated such
allegation not only as an established fact, but a truth. In particular, they
expressed dissatisfaction over Justice Del Castillos explanation on how he
cited the primary sources of the quoted portions and yet arrived at a contrary
conclusion to those of the authors of the articles supposedly plagiarized.
Beyond this, however, the statement bore certain remarks which raise
concern for the Court. The opening sentence alone is a grim preamble to
the institutional attack that lay ahead. It reads:
An extraordinary act of injustice has again been committed against the brave
Filipinas who had suffered abuse during a time of war.
The first paragraph concludes with a reference to the decision in Vinuya v.
Executive Secretary as a reprehensible act of dishonesty and
misrepresentation by the Highest Court of the land. x x x.
The insult to the members of the Court was aggravated by imputations of
deliberately delaying the resolution of the said case, its dismissal on the basis
of "polluted sources," the Courts alleged indifference to the cause of
petitioners [in the Vinuya case], as well as the supposed alarming lack of
concern of the members of the Court for even the most basic values of
decency and respect.34 x x x. (Underscoring ours.)
In the same Resolution, the Court went on to state that:
While most agree that the right to criticize the judiciary is critical to
maintaining a free and democratic society, there is also a general consensus
that healthy criticism only goes so far. Many types of criticism leveled at the
judiciary cross the line to become harmful and irresponsible attacks. These
potentially devastating attacks and unjust criticism can threaten the
independence of the judiciary. The court must "insist on being permitted to
proceed to the disposition of its business in an orderly manner, free from
outside interference obstructive of its functions and tending to embarrass the
administration of justice."
The Court could hardly perceive any reasonable purpose for the facultys less
than objective comments except to discredit the April 28, 2010 Decision in the
Vinuya case and undermine the Courts honesty, integrity and competence in
addressing the motion for its reconsideration. As if the case on the comfort
womens claims is not controversial enough, the UP Law faculty would fan the
flames and invite resentment against a resolution that would not reverse the
said decision. This runs contrary to their obligation as law professors and
officers of the Court to be the first to uphold the dignity and authority of this
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Legal Ethics
Court, to which they owe fidelity according to the oath they have taken as
attorneys, and not to promote distrust in the administration of justice. 35 x x x.
(Citations omitted; emphases and underscoring supplied.)
Thus, the Court directed Attys. Marvic M.V.F. Leonen, Froilan M. Bacungan,
Pacifico A. Agabin, Merlin M. Magallona, Salvador T. Carlota, Carmelo V. Sison,
Patricia R.P. Salvador Daway, Dante B. Gatmaytan, Theodore O. Te, Florin T.
Hilbay, Jay L. Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera, Solomon
F. Lumba, Rommel J. Casis, Jose Gerardo A. Alampay, Miguel R. Armovit, Arthur
P. Autea, Rosa Maria J. Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A.
Catindig, Sandra Marie O. Coronel, Rosario O. Gallo, Concepcion L. Jardeleza,
Antonio G.M. La Via, Carina C. Laforteza, Jose C. Laureta, Owen J. Lynch,
Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen Faye B. Tomboc,
Nicholas Felix L. Ty, Evalyn G. Ursua, Raul T. Vasquez, Susan D. Villanueva and
Dina D. Lucenario to show cause, within ten (10) days from receipt of the copy
of the Resolution, why they should not be disciplined as members of the Bar
for violation of Canons 1, 36 11 and 13 and Rules 1.02 and 11.05 of the Code of
Professional Responsibility.37
Dean Leonen was likewise directed to show cause within the same period why
he should not be disciplinarily dealt with for violation of Canon 10, Rules
10.01, 10.02 and 10.03 for submitting through his letter dated August 10,
2010, during the pendency of G.R. No. 162230 and of the investigation before
the Ethics Committee, for the consideration of the Court en banc, a dummy
which is not a true and faithful reproduction of the UP Law Faculty
Statement.38
In the same Resolution, the present controversy was docketed as a regular
administrative matter.
Summaries of the Pleadings Filed by Respondents in Response to the October
19, 2010 Show Cause Resolution
On November 19, 2010, within the extension for filing granted by the Court,
respondents filed the following pleadings:
(1) Compliance dated November 18, 2010 by counsels for 35 of the 37
respondents, excluding Prof. Owen Lynch and Prof. Raul T. Vasquez, in
relation to the charge of violation of Canons 1, 11 and 13 and Rules
1.02 and 11.05 of the Code of Professional Responsibility;
(2) Compliance and Reservation dated November 18, 2010 by Prof.
Rosa Maria T. Juan-Bautista in relation to the same charge in par. (1);
(3) Compliance dated November 19, 2010 by counsel for Prof. Raul T.
Vasquez in relation to the same charge in par. (1);
(4) Compliance dated November 19, 2010 by counsels for Dean
Leonen, in relation to the charge of violation of Canon 10, Rules 10.01,
10.02 and 10.03; and
(5) Manifestation dated November 19, 2010 by counsel for Prof. Owen
Lynch.
Common Compliance of 35 Respondents (Excluding Prof. Owen Lynch and Prof.
Raul Vasquez)
Thirty-five (35) of the respondent UP Law professors filed on November 19,
2010 a common compliance which was signed by their respective counsels
(the Common Compliance). In the "Preface" of said Common Compliance,
respondents stressed that "[they] issued the Restoring Integrity Statement in
the discharge of the solemn duties and trust reposed upon them as teachers
in the profession of law, and as members of the Bar to speak out on a matter
of public concern and one that is of vital interest to them." 39 They likewise
alleged that "they acted with the purest of intentions" and pointed out that
"none of them was involved either as party or counsel" 40 in the Vinuya case.
Further, respondents "note with concern" that the Show Cause Resolutions
findings and conclusions were "a prejudgment that respondents indeed are
in contempt, have breached their obligations as law professors and officers of
the Court, and have violated Canons [1], 11 and 13 and Rules 1.02 and 11.05
of the Code of Professional Responsibility."41
By way of explanation, the respondents emphasized the following points:
(a) Respondents alleged noble intentions
In response to the charges of failure to observe due respect to legal
processes42 and the courts43 and of tending to influence, or giving the
appearance of influencing the Court44 in the issuance of their
Statement, respondents assert that their intention was not to malign
the Court but rather to defend its integrity and credibility and to
ensure continued confidence in the legal system. Their noble motive
was purportedly evidenced by the portion of their Statement "focusing
on constructive action."45 Respondents call in the Statement for the
Court "to provide clear and concise guidance to the Bench and Bar to
ensure only the highest quality of legal research and writing in
adjudication," was reputedly "in keeping with strictures enjoining
lawyers to participate in the development of the legal system by
initiating or supporting efforts in law reform and in the improvement
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of the administration of justice" (under Canon 4 of the Code of
Professional Responsibility) and to "promote respect for the law and
legal processes" (under Canon 1, id.). 46 Furthermore, as academics,
they allegedly have a "special interest and duty to vigilantly guard
against plagiarism and misrepresentation because these unwelcome
occurrences have a profound impact in the academe, especially in our
law schools."47
Respondents further "[called] on this Court not to misconstrue the
Restoring Integrity Statement as an institutional attack x x x on the
basis of its first and ninth paragraphs." 48 They further clarified that at
the time the Statement was allegedly drafted and agreed upon, it
appeared to them the Court "was not going to take any action on the
grave and startling allegations of plagiarism and
misrepresentation."49 According to respondents, the bases for their
belief were (i) the news article published on July 21, 2010 in the
Philippine Daily Inquirer wherein Court Administrator Jose Midas P.
Marquez was reported to have said that Chief Justice Corona would not
order an inquiry into the matter;50 and (ii) the July 22, 2010 letter of
Justice Del Castillo which they claimed "did nothing but to downplay
the gravity of the plagiarism and misrepresentation
charges."51 Respondents claimed that it was their perception of the
Courts indifference to the dangers posed by the plagiarism
allegations against Justice Del Castillo that impelled them to urgently
take a public stand on the issue.
(b) The "correctness" of respondents position that Justice Del Castillo
committed plagiarism and should be held accountable in accordance
with the standards of academic writing
A significant portion of the Common Compliance is devoted to a
discussion of the merits of respondents charge of plagiarism against
Justice Del Castillo. Relying on University of the Philippines Board of
Regents v. Court of Appeals52 and foreign materials and jurisprudence,
respondents essentially argue that their position regarding the
plagiarism charge against Justice Del Castillo is the correct view and
that they are therefore justified in issuing their Restoring Integrity
Statement. Attachments to the Common Compliance included, among
others: (i) the letter dated October 28, 2010 of Peter B. Payoyo, LL.M,
Ph.D.,53 sent to Chief Justice Corona through Justice Sereno, alleging
that the Vinuya decision likewise lifted without proper attribution the
text from a legal article by Mariana Salazar Albornoz that appeared in
the Anuario Mexicano De Derecho Internacional and from an
International Court of Justice decision; and (ii) a 2008 Human Rights
Law Review Article entitled "Sexual Orientation, Gender Identity and
International Human Rights Law" by Michael OFlaherty and John
Fisher, in support of their charge that Justice Del Castillo also lifted
passages from said article without proper attribution, but this time, in
his ponencia in Ang Ladlad LGBT Party v. Commission on Elections. 54
(c) Respondents belief that they are being "singled out" by the Court
when others have likewise spoken on the "plagiarism issue"
In the Common Compliance, respondents likewise asserted that "the
plagiarism and misrepresentation allegations are legitimate public
issues."55 They identified various published reports and opinions, in
agreement with and in opposition to the stance of respondents, on the
issue of plagiarism, specifically:
(i) Newsbreak report on July 19, 2010 by Aries Rufo and Purple
Romero;56
(ii) Column of Ramon Tulfo which appeared in the Philippine
Daily Inquirer on July 24, 2010;57
(iii) Editorial of the Philippine Daily Inquirer published on July
25, 2010;58
(iv) Letter dated July 22, 2010 of Justice Del Castillo published
in the Philippine Star on July 30, 2010;59
(v) Column of Former Intellectual Property Office Director
General Adrian Cristobal, Jr. published in the Business Mirror
on August 5, 2010;60
(vi) Column of Former Chief Justice Artemio Panganiban
published in the Philippine Daily Inquirer on August 8, 2010; 61
(vii) News report regarding Senator Francis Pangilinans call for
the resignation of Justice Del Castillo published in the Daily
Tribune and the Manila Standard Today on July 31, 2010; 62
(viii) News reports regarding the statement of Dean Cesar
Villanueva of the Ateneo de Manila University School of Law
on the calls for the resignation of Justice Del Castillo published
in The Manila Bulletin, the Philippine Star and the Business
Mirror on August 11, 2010;63
(ix) News report on expressions of support for Justice Del
Castillo from a former dean of the Pamantasan ng Lungsod ng
Maynila, the Philippine Constitutional Association, the Judges
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Legal Ethics
Association of Bulacan and the Integrated Bar of the
Philippines Bulacan Chapter published in the Philippine Star
on August 16, 2010;64 and
(x) Letter of the Dean of the Liceo de Cagayan University
College of Law published in the Philippine Daily Inquirer on
August 10, 2010.65
In view of the foregoing, respondents alleged that this Court has
singled them out for sanctions and the charge in the Show Cause
Resolution dated October 19, 2010 that they may have violated
specific canons of the Code of Professional Responsibility is unfair and
without basis.
(d) Freedom of expression
In paragraphs 28 to 30 of the Common Compliance, respondents
briefly discussed their position that in issuing their Statement, "they
should be seen as not only to be performing their duties as members
of the Bar, officers of the court, and teachers of law, but also as
citizens of a democracy who are constitutionally protected in the
exercise of free speech."66 In support of this contention, they cited
United States v. Bustos,67 In re: Atty. Vicente Raul Almacen, 68 and In
the Matter of Petition for Declaratory Relief Re: Constitutionality of
Republic Act 4880, Gonzales v. Commission on Elections. 69
(e) Academic freedom
In paragraphs 31 to 34 of the Common Compliance, respondents asserted that
their Statement was also issued in the exercise of their academic freedom as
teachers in an institution of higher learning. They relied on Section 5 of the
University of the Philippines Charter of 2008 which provided that "[t]he
national university has the right and responsibility to exercise academic
freedom." They likewise adverted to Garcia v. The Faculty Admission
Committee, Loyola School of Theology 70 which they claimed recognized the
extent and breadth of such freedom as to encourage a free and healthy
discussion and communication of a faculty members field of study without
fear of reprisal. It is respondents view that had they remained silent on the
plagiarism issue in the Vinuya decision they would have "compromised [their]
integrity and credibility as teachers; [their silence] would have created a
culture and generation of students, professionals, even lawyers, who would
lack the competence and discipline for research and pleading; or, worse,
[that] their silence would have communicated to the public that plagiarism
and misrepresentation are inconsequential matters and that intellectual
integrity has no bearing or relevance to ones conduct." 71
In closing, respondents Common Compliance exhorted this Court to consider
the following portion of the dissenting opinion of Justice George A. Malcolm in
Salcedo v. Hernandez,72 to wit:
Respect for the courts can better be obtained by following a calm and
impartial course from the bench than by an attempt to compel respect for the
judiciary by chastising a lawyer for a too vigorous or injudicious exposition of
his side of a case. The Philippines needs lawyers of independent thought and
courageous bearing, jealous of the interests of their clients and unafraid of
any court, high or low, and the courts will do well tolerantly to overlook
occasional intemperate language soon to be regretted by the lawyer which
affects in no way the outcome of a case. 73
On the matter of the reliefs to which respondents believe they are entitled,
the Common Compliance stated, thus:
WHEREFORE:
A. Respondents, as citizens of a democracy, professors of law,
members of the Bar and officers of the Court, respectfully pray that:
1. the foregoing be noted; and
2. the Court reconsider and reverse its adverse findings in the
Show Cause Resolution, including its conclusions that
respondents have: [a] breached their "obligation as law
professors and officers of the Court to be the first to uphold
the dignity and authority of this Court, and not to promote
distrust in the administration of justice;" and [b] committed
"violations of Canons 10, 11, and 13 and Rules 1.02 and 11.05
of the Code of Professional Responsibility."
B. In the event the Honorable Court declines to grant the foregoing
prayer, respondents respectfully pray, in the alternative, and in
assertion of their due process rights, that before final judgment be
rendered:
1. the Show Cause Resolution be set for hearing;
2. respondents be given a fair and full opportunity to refute
and/or address the findings and conclusions of fact in the
Show Cause Resolution (including especially the finding and
conclusion of a lack of malicious intent), and in that
connection, that appropriate procedures and schedules for
hearing be adopted and defined that will allow them the full
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and fair opportunity to require the production of and to
present testimonial, documentary, and object evidence
bearing on the plagiarism and misrepresentation issues in
Vinuya v. Executive Secretary (G.R. No. 162230, April 28,
2010) and In the Matter of the Charges of Plagiarism, etc.
Against Associate Justice Mariano C. Del Castillo (A.M. No. 10-
7-17-SC); and
3. respondents be given fair and full access to the transcripts,
records, drafts, reports and submissions in or relating to, and
accorded the opportunity to cross-examine the witnesses who
were or could have been called in In The Matter of the
Charges of Plagiarism, etc. Against Associate Justice Mariano
C. Del Castillo (A.M. No. 10-7-17-SC).74
Compliance and Reservation of Prof. Rosa Maria T. Juan-Bautista
Although already included in the Common Compliance, Prof. Rosa Maria T.
Juan-Bautista (Prof. Juan-Bautista) filed a separate Compliance and
Reservation (the Bautista Compliance), wherein she adopted the allegations in
the Common Compliance with some additional averments.
Prof. Juan-Bautista reiterated that her due process rights allegedly entitled her
to challenge the findings and conclusions in the Show Cause Resolution.
Furthermore, "[i]f the Restoring Integrity Statement can be considered indirect
contempt, under Section 3 of Rule 71 of the Rules of Court, such may be
punished only after charge and hearing."75
Prof. Juan-Bautista stressed that respondents signed the Statement "in good
faith and with the best intentions to protect the Supreme Court by asking one
member to resign."76 For her part, Prof. Juan-Bautista intimated that her deep
disappointment and sadness for the plight of the Malaya Lolas were what
motivated her to sign the Statement.
On the point of academic freedom, Prof. Juan-Bautista cited
jurisprudence77 which in her view highlighted that academic freedom is
constitutionally guaranteed to institutions of higher learning such that schools
have the freedom to determine for themselves who may teach, what may be
taught, how lessons shall be taught and who may be admitted to study and
that courts have no authority to interfere in the schools exercise of discretion
in these matters in the absence of grave abuse of discretion. She claims the
Court has encroached on the academic freedom of the University of the
Philippines and other universities on their right to determine how lessons shall
be taught.
Lastly, Prof. Juan-Bautista asserted that the Statement was an exercise of
respondents constitutional right to freedom of expression that can only be
curtailed when there is grave and imminent danger to public safety, public
morale, public health or other legitimate public interest. 78
Compliance of Prof. Raul T. Vasquez
On November 19, 2010, Prof. Raul T. Vasquez (Prof. Vasquez) filed a separate
Compliance by registered mail (the Vasquez Compliance). In said Compliance,
Prof. Vasquez narrated the circumstances surrounding his signing of the
Statement. He alleged that the Vinuya decision was a topic of conversation
among the UP Law faculty early in the first semester (of academic year 2010-
11) because it reportedly contained citations not properly attributed to the
sources; that he was shown a copy of the Statement by a clerk of the Office of
the Dean on his way to his class; and that, agreeing in principle with the main
theme advanced by the Statement, he signed the same in utmost good faith. 79
In response to the directive from this Court to explain why he should not be
disciplined as a member of the Bar under the Show Cause Resolution, Prof.
Vasquez also took the position that a lawyer has the right, like all citizens in a
democratic society, to comment on acts of public officers. He invited the
attention of the Court to the following authorities: (a) In re: Vicente Sotto; 80 (b)
In re: Atty. Vicente Raul Almacen;81 and (c) a discussion appearing in American
Jurisprudence (AmJur) 2d.82 He claims that he "never had any intention to
unduly influence, nor entertained any illusion that he could or should
influence, [the Court] in its disposition of the Vinuya case"83 and that
"attacking the integrity of [the Court] was the farthest thing on respondents
mind when he signed the Statement." 84 Unlike his colleagues, who wish to
impress upon this Court the purported homogeneity of the views on what
constitutes plagiarism, Prof. Vasquez stated in his Compliance that:
13. Before this Honorable Court rendered its Decision dated 12 October 2010,
some espoused the view that willful and deliberate intent to commit
plagiarism is an essential element of the same. Others, like respondent, were
of the opinion that plagiarism is committed regardless of the intent of the
perpetrator, the way it has always been viewed in the academe. This
uncertainty made the issue a fair topic for academic discussion in the College.
Now, this Honorable Court has ruled that plagiarism presupposes deliberate
intent to steal anothers work and to pass it off as ones own. 85 (Emphases
supplied.)
Also in contrast to his colleagues, Prof. Vasquez was willing to concede that he
"might have been remiss in correctly assessing the effects of such language
[in the Statement] and could have been more careful." 86 He ends his
discussion with a respectful submission that with his explanation, he has
faithfully complied with the Show Cause Resolution and that the Court will rule
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that he had not in any manner violated his oath as a lawyer and officer of the
Court.
Separate Compliance of Dean Leonen regarding the charge of violation of
Canon 10 in relation to his submission of a "dummy" of the UP Law Faculty
Statement to this Court
In his Compliance, Dean Leonen claimed that there were three drafts/versions
of the UP Law Faculty Statement, which he described as follows:
"Restoring Integrity I" which bears the entire roster of the faculty
of the UP College of Law in its signing pages, and the actual
signatures of the thirty-seven (37) faculty members subject of the
Show Cause Resolution. A copy was filed with the Honorable Court by
Roque and Butuyan on 31 August 2010 in A.M. No. 10-7-17-SC.
"Restoring Integrity II" which does not bear any actual physical
signature, but which reflects as signatories the names of thirty-seven
(37) members of the faculty with the notation "(SGD.)". A copy of
Restoring Integrity II was publicly and physically posted in the UP
College of Law on 10 August 2010. Another copy of Restoring Integrity
II was also officially received by the Honorable Court from the Dean of
the UP College of Law on 11 August 2010, almost three weeks before
the filing of Restoring Integrity I.
"Restoring Integrity III" which is a reprinting of Restoring Integrity
II, and which presently serves as the official file copy of the Deans
Office in the UP College of Law that may be signed by other faculty
members who still wish to. It bears the actual signatures of the thirty-
seven original signatories to Restoring Integrity I above their printed
names and the notation "(SGD.") and, in addition, the actual
signatures of eight (8) other members of the faculty above their
handwritten or typewritten names.87
For purposes of this discussion, only Restoring Integrity I and Restoring
Integrity II are relevant since what Dean Leonen has been directed to explain
are the discrepancies in the signature pages of these two documents.
Restoring Integrity III was never submitted to this Court.
On how Restoring Integrity I and Restoring Integrity II were prepared and
came about, Dean Leonen alleged, thus:
2.2 On 27 July 2010, sensing the emergence of a relatively broad
agreement in the faculty on a draft statement, Dean Leonen
instructed his staff to print the draft and circulate it among the faculty
members so that those who wished to may sign. For this purpose, the
staff encoded the law faculty roster to serve as the printed drafts
signing pages. Thus did the first printed draft of the Restoring Integrity
Statement, Restoring Integrity I, come into being.
2.3. As of 27 July 2010, the date of the Restoring Integrity Statement,
Dean Leonen was unaware that a Motion for Reconsideration of the
Honorable Courts Decision in Vinuya vs. Executive Secretary (G.R. No.
162230, 28 April 2010) had already been filed, or that the Honorable
Court was in the process of convening its Committee on Ethics and
Ethical Standards in A.M. No. 10-7-17-SC.
2.4. Dean Leonens staff then circulated Restoring Integrity I among
the members of the faculty. Some faculty members visited the Deans
Office to sign the document or had it brought to their classrooms in
the College of Law, or to their offices or residences. Still other faculty
members who, for one reason or another, were unable to sign
Restoring Integrity I at that time, nevertheless conveyed to Dean
Leonen their assurances that they would sign as soon as they could
manage.
2.5. Sometime in the second week of August, judging that Restoring
Integrity I had been circulated long enough, Dean Leonen instructed
his staff to reproduce the statement in a style and manner appropriate
for posting in the College of Law. Following his own established
practice in relation to significant public issuances, he directed them to
reformat the signing pages so that only the names of those who
signed the first printed draft would appear, together with the
corresponding "(SGD.)" note following each name. Restoring Integrity
II thus came into being.88
According to Dean Leonen, the "practice of eliminating blanks opposite or
above the names of non-signatories in the final draft of significant public
issuances, is meant not so much for aesthetic considerations as to secure the
integrity of such documents."89 He likewise claimed that "[p]osting statements
with blanks would be an open invitation to vandals and pranksters."90
With respect to the inclusion of Justice Mendozas name as among the
signatories in Restoring Integrity II when in fact he did not sign Restoring
Integrity I, Dean Leonen attributed the mistake to a miscommunication
involving his administrative officer. In his Compliance, he narrated that:
2.7. Upon being presented with a draft of Restoring Integrity II with
the reformatted signing pages, Dean Leonen noticed the inclusion of
the name of Justice Mendoza among the "(SGD.)" signatories. As
Justice Mendoza was not among those who had physically signed
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Legal Ethics
Restoring Integrity I when it was previously circulated, Dean Leonen
called the attention of his staff to the inclusion of the Justices name
among the "(SGD.)" signatories in Restoring Integrity II.
2.8. Dean Leonen was told by his administrative officer that she had
spoken to Justice Mendoza over the phone on Friday, 06 August 2010.
According to her, Justice Mendoza had authorized the dean to sign the
Restoring Integrity Statement for him as he agreed fundamentally
with its contents. Also according to her, Justice Mendoza was unable at
that time to sign the Restoring Integrity Statement himself as he was
leaving for the United States the following week. It would later turn
out that this account was not entirely accurate.91 (Underscoring and
italics supplied.)
Dean Leonen claimed that he "had no reason to doubt his administrative
officer, however, and so placed full reliance on her account" 92 as "[t]here were
indeed other faculty members who had also authorized the Dean to indicate
that they were signatories, even though they were at that time unable to affix
their signatures physically to the document."93
However, after receiving the Show Cause Resolution, Dean Leonen and his
staff reviewed the circumstances surrounding their effort to secure Justice
Mendozas signature. It would turn out that this was what actually transpired:
2.22.1. On Friday, 06 August 2010, when the deans staff talked to
Justice Mendoza on the phone, he [Justice Mendoza] indeed initially
agreed to sign the Restoring Integrity Statement as he fundamentally
agreed with its contents. However, Justice Mendoza did not exactly
say that he authorized the dean to sign the Restoring Integrity
Statement. Rather, he inquired if he could authorize the dean to sign it
for him as he was about to leave for the United States. The deans
staff informed him that they would, at any rate, still try to bring the
Restoring Integrity Statement to him.
2.22.2. Due to some administrative difficulties, Justice Mendoza was
unable to sign the Restoring Integrity Statement before he left for the
U.S. the following week.
2.22.3. The staff was able to bring Restoring Integrity III to Justice
Mendoza when he went to the College to teach on 24 September
2010, a day after his arrival from the U.S. This time, Justice Mendoza
declined to sign.94
According to the Dean:
2.23. It was only at this time that Dean Leonen realized the true import of the
call he received from Justice Mendoza in late September. Indeed, Justice
Mendoza confirmed that by the time the hard copy of the Restoring Integrity
Statement was brought to him shortly after his arrival from the U.S., he
declined to sign it because it had already become controversial. At that time,
he predicted that the Court would take some form of action against the
faculty. By then, and under those circumstances, he wanted to show due
deference to the Honorable Court, being a former Associate Justice and not
wishing to unduly aggravate the situation by signing the
Statement.95(Emphases supplied.)
With respect to the omission of Atty. Armovits name in the signature page of
Restoring Integrity II when he was one of the signatories of Restoring Integrity
I and the erroneous description in Dean Leonens August 10, 2010 letter that
the version of the Statement submitted to the Court was signed by 38
members of the UP Law Faculty, it was explained in the Compliance that:
Respondent Atty. Miguel Armovit physically signed Restoring Integrity I when it
was circulated to him. However, his name was inadvertently left out by Dean
Leonens staff in the reformatting of the signing pages in Restoring Integrity II.
The dean assumed that his name was still included in the reformatted signing
pages, and so mentioned in his cover note to Chief Justice Corona that 38
members of the law faculty signed (the original 37 plus Justice Mendoza.) 96
Dean Leonen argues that he should not be deemed to have submitted a
dummy of the Statement that was not a true and faithful reproduction of the
same. He emphasized that the main body of the Statement was unchanged in
all its three versions and only the signature pages were not the same. This
purportedly is merely "reflective of [the Statements] essential nature as a
live public manifesto meant to continuously draw adherents to its message,
its signatory portion is necessarily evolving and dynamic x x x many other
printings of [the Statement] may be made in the future, each one reflecting
the same text but with more and more signatories."97 Adverting to criminal law
by analogy, Dean Leonen claims that "this is not an instance where it has
been made to appear in a document that a person has participated in an act
when the latter did not in fact so participate" 98 for he "did not misrepresent
which members of the faculty of the UP College of Law had agreed with the
Restoring Integrity Statement proper and/or had expressed their desire to be
signatories thereto."99
In this regard, Dean Leonen believes that he had not committed any violation
of Canon 10 or Rules 10.01 and 10.02 for he did not mislead nor misrepresent
to the Court the contents of the Statement or the identities of the UP Law
faculty members who agreed with, or expressed their desire to be signatories
to, the Statement. He also asserts that he did not commit any violation of Rule
10.03 as he "coursed [the Statement] through the appropriate channels by
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Legal Ethics
transmitting the same to Honorable Chief Justice Corona for the latters
information and proper disposition with the hope that its points would be duly
considered by the Honorable Court en banc." 100 Citing Rudecon Management
Corporation v. Camacho,101 Dean Leonen posits that the required quantum of
proof has not been met in this case and that no dubious character or
motivation for the act complained of existed to warrant an administrative
sanction for violation of the standard of honesty provided for by the Code of
Professional Responsibility.102
Dean Leonen ends his Compliance with an enumeration of nearly identical
reliefs as the Common Compliance, including the prayers for a hearing and for
access to the records, evidence and witnesses allegedly relevant not only in
this case but also in A.M. No. 10-7-17-SC, the ethical investigation involving
Justice Del Castillo.
Manifestation of Prof. Owen Lynch (Lynch Manifestation)
For his part, Prof. Owen Lynch (Prof. Lynch) manifests to this Court that he is
not a member of the Philippine bar; but he is a member of the bar of the State
of Minnesota. He alleges that he first taught as a visiting professor at the UP
College of Law in 1981 to 1988 and returned in the same capacity in 2010. He
further alleges that "[h]e subscribes to the principle, espoused by this Court
and the Supreme Court of the United States, that [d]ebate on public issues
should be uninhibited, robust and wide open and that it may well include
vehement, caustic, and sometimes unpleasantly sharp attacks on government
and public officials."103 In signing the Statement, he believes that "the right to
speak means the right to speak effectively."104 Citing the dissenting opinions in
Manila Public School Teachers Association v. Laguio, Jr., 105 Prof. Lynch argued
that "[f]or speech to be effective, it must be forceful enough to make the
intended recipients listen"106 and "[t]he quality of education would deteriorate
in an atmosphere of repression, when the very teachers who are supposed to
provide an example of courage and self-assertiveness to their pupils can
speak only in timorous whispers."107 Relying on the doctrine in In the Matter of
Petition for Declaratory Relief Re: Constitutionality of Republic Act 4880,
Gonzales v. Commission on Elections, 108 Prof. Lynch believed that the
Statement did not pose any danger, clear or present, of any substantive evil
so as to remove it from the protective mantle of the Bill of Rights (i.e.,
referring to the constitutional guarantee on free speech). 109 He also stated
that he "has read the Compliance of the other respondents to the Show Cause
Resolution" and that "he signed the Restoring Integrity Statement for the
same reasons they did."110
ISSUES
Based on the Show Cause Resolution and a perusal of the submissions of
respondents, the material issues to be resolved in this case are as follows:
1.) Does the Show Cause Resolution deny respondents their freedom
of expression?
2.) Does the Show Cause Resolution violate respondents academic
freedom as law professors?
3.) Do the submissions of respondents satisfactorily explain why they
should not be disciplined as Members of the Bar under Canons 1, 11,
and 13 and Rules 1.02 and 11.05 of the Code of Professional
Responsibility?
4.) Does the separate Compliance of Dean Leonen satisfactorily
explain why he should not be disciplined as a Member of the Bar
under Canon 10, Rules 10.01, 10.02 and 10.03?
5.) Are respondents entitled to have the Show Cause Resolution set for
hearing and in relation to such hearing, are respondents entitled to
require the production or presentation of evidence bearing on the
plagiarism and misrepresentation issues in the Vinuya case (G.R. No.
162230) and the ethics case against Justice Del Castillo (A.M. No. 10-
7-17-SC) and to have access to the records and transcripts of, and the
witnesses and evidence presented, or could have been presented, in
the ethics case against Justice Del Castillo (A.M. No. 10-7-17-SC)?
DISCUSSION
The Show Cause Resolution does not deny respondents their freedom of
expression.
It is respondents collective claim that the Court, with the issuance of the
Show Cause Resolution, has interfered with respondents constitutionally
mandated right to free speech and expression. It appears that the underlying
assumption behind respondents assertion is the misconception that this Court
is denying them the right to criticize the Courts decisions and actions, and
that this Court seeks to "silence" respondent law professors dissenting view
on what they characterize as a "legitimate public issue."
This is far from the truth. A reading of the Show Cause Resolution will plainly
show that it was neither the fact that respondents had criticized a decision of
the Court nor that they had charged one of its members of plagiarism that
motivated the said Resolution. It was the manner of the criticism and the
contumacious language by which respondents, who are not parties nor
counsels in the Vinuya case, have expressed their opinion in favor of the
petitioners in the said pending case for the "proper disposition" and
consideration of the Court that gave rise to said Resolution. The Show Cause
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Resolution painstakingly enumerated the statements that the Court
considered excessive and uncalled for under the circumstances surrounding
the issuance, publication, and later submission to this Court of the UP Law
facultys Restoring Integrity Statement.
To reiterate, it was not the circumstance that respondents expressed a belief
that Justice Del Castillo was guilty of plagiarism but rather their expression of
that belief as "not only as an established fact, but a truth" 111 when it was "[o]f
public knowledge [that there was] an ongoing investigation precisely to
determine the truth of such allegations."112 It was also pointed out in the Show
Cause Resolution that there was a pending motion for reconsideration of the
Vinuya decision.113 The Show Cause Resolution made no objections to the
portions of the Restoring Integrity Statement that respondents claimed to be
"constructive" but only asked respondents to explain those portions of the
said Statement that by no stretch of the imagination could be considered as
fair or constructive, to wit:
Beyond this, however, the statement bore certain remarks which raise
concern for the Court. The opening sentence alone is a grim preamble to
the institutional attack that lay ahead. It reads:
An extraordinary act of injustice has again been committed against the brave
Filipinas who had suffered abuse during a time of war.
The first paragraph concludes with a reference to the decision in Vinuya v.
Executive Secretary as a reprehensible act of dishonesty and
misrepresentation by the Highest Court of the land. x x x.
The insult to the members of the Court was aggravated by imputations of
deliberately delaying the resolution of the said case, its dismissal on the basis
of "polluted sources," the Courts alleged indifference to the cause of
petitioners [in the Vinuya case], as well as the supposed alarming lack of
concern of the members of the Court for even the most basic values of
decency and respect.114 x x x. (Underscoring ours.)
To be sure, the Show Cause Resolution itself recognized respondents freedom
of expression when it stated that:
While most agree that the right to criticize the judiciary is critical to
maintaining a free and democratic society, there is also a general consensus
that healthy criticism only goes so far. Many types of criticism leveled at the
judiciary cross the line to become harmful and irresponsible attacks. These
potentially devastating attacks and unjust criticism can threaten the
independence of the judiciary. The court must "insist on being permitted to
proceed to the disposition of its business in an orderly manner, free from
outside interference obstructive of its functions and tending to embarrass the
administration of justice."
The Court could hardly perceive any reasonable purpose for the facultys less
than objective comments except to discredit the April 28, 2010 Decision in the
Vinuya case and undermine the Courts honesty, integrity and competence in
addressing the motion for its reconsideration. As if the case on the comfort
womens claims is not controversial enough, the UP Law faculty would fan the
flames and invite resentment against a resolution that would not reverse the
said decision. This runs contrary to their obligation as law professors and
officers of the Court to be the first to uphold the dignity and authority of this
Court, to which they owe fidelity according to the oath they have taken as
attorneys, and not to promote distrust in the administration of justice. 115 x x x.
(Citations omitted; emphases and underscoring supplied.)
Indeed, in a long line of cases, including those cited in respondents
submissions, this Court has held that the right to criticize the courts and
judicial officers must be balanced against the equally primordial concern that
the independence of the Judiciary be protected from due influence or
interference. In cases where the critics are not only citizens but members of
the Bar, jurisprudence has repeatedly affirmed the authority of this Court to
discipline lawyers whose statements regarding the courts and fellow lawyers,
whether judicial or extrajudicial, have exceeded the limits of fair comment and
common decency.
As early as the 1935 case of Salcedo v. Hernandez, 116 the Court found Atty.
Vicente J. Francisco both guilty of contempt and liable administratively for the
following paragraph in his second motion for reconsideration:
We should like frankly and respectfully to make it of record that the resolution
of this court, denying our motion for reconsideration, is absolutely erroneous
and constitutes an outrage to the rights of the petitioner Felipe Salcedo and a
mockery of the popular will expressed at the polls in the municipality of
Tiaong, Tayabas. We wish to exhaust all the means within our power in order
that this error may be corrected by the very court which has committed it,
because we should not want that some citizen, particularly some voter of the
municipality of Tiaong, Tayabas, resort to the press publicly to denounce, as
he has a right to do, the judicial outrage of which the herein petitioner has
been the victim, and because it is our utmost desire to safeguard the prestige
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of this honorable court and of each and every member thereof in the eyes of
the public. But, at the same time we wish to state sincerely that erroneous
decisions like these, which the affected party and his thousands of voters will
necessarily consider unjust, increase the proselytes of 'sakdalism' and make
the public lose confidence in the administration of justice. 117 (Emphases
supplied.)
The highlighted phrases were considered by the Court as neither justified nor
necessary and further held that:
[I]n order to call the attention of the court in a special way to the essential
points relied upon in his argument and to emphasize the force thereof, the
many reasons stated in his said motion were sufficient and the phrases in
question were superfluous. In order to appeal to reason and justice, it is highly
improper and amiss to make trouble and resort to threats, as Attorney Vicente
J. Francisco has done, because both means are annoying and good practice
can never sanction them by reason of their natural tendency to disturb and
hinder the free exercise of a serene and impartial judgment, particularly in
judicial matters, in the consideration of questions submitted for resolution.
There is no question that said paragraph of Attorney Vicente J. Francisco's
motion contains a more or less veiled threat to the court because it is
insinuated therein, after the author shows the course which the voters of
Tiaong should follow in case he fails in his attempt, that they will resort to the
press for the purpose of denouncing, what he claims to be a judicial outrage of
which his client has been the victim; and because he states in a threatening
manner with the intention of predisposing the mind of the reader against the
court, thus creating an atmosphere of prejudices against it in order to make it
odious in the public eye, that decisions of the nature of that referred to in his
motion promote distrust in the administration of justice and increase the
proselytes of sakdalism, a movement with seditious and revolutionary
tendencies the activities of which, as is of public knowledge, occurred in this
country a few days ago. This cannot mean otherwise than contempt of the
dignity of the court and disrespect of the authority thereof on the part of
Attorney Vicente J. Francisco, because he presumes that the court is so devoid
of the sense of justice that, if he did not resort to intimidation, it would
maintain its error notwithstanding the fact that it may be proven, with good
reasons, that it has acted erroneously.118 (Emphases supplied.)
Significantly, Salcedo is the decision from which respondents culled their
quote from the minority view of Justice Malcolm. Moreover, Salcedo
concerned statements made in a pleading filed by a counsel in a case, unlike
the respondents here, who are neither parties nor counsels in the Vinuya case
and therefore, do not have any standing at all to interfere in the Vinuya case.
Instead of supporting respondents theory, Salcedo is authority for the
following principle:
As a member of the bar and an officer of this court, Attorney Vicente J.
Francisco, as any attorney, is in duty bound to uphold its dignity and authority
and to defend its integrity, not only because it has conferred upon him the
high privilege, not a right (Malcolm, Legal Ethics, 158 and 160), of being
what he now is: a priest of justice(In re Thatcher, 80 Ohio St. Rep., 492,
669), but also because in so doing, he neither creates nor promotes distrust in
the administration of justice, and prevents anybody from harboring and
encouraging discontent which, in many cases, is the source of disorder, thus
undermining the foundation upon which rests that bulwark called judicial
power to which those who are aggrieved turn for protection and
relief.119 (Emphases supplied.)
Thus, the lawyer in Salcedo was fined and reprimanded for his injudicious
statements in his pleading, by accusing the Court of "erroneous ruling." Here,
the respondents Statement goes way beyond merely ascribing error to the
Court.
Other cases cited by respondents likewise espouse rulings contrary to their
position. In re: Atty. Vicente Raul Almacen, 120 cited in the Common Compliance
and the Vasquez Compliance, was an instance where the Court indefinitely
suspended a member of the Bar for filing and releasing to the press a
"Petition to Surrender Lawyers Certificate of Title" in protest of what he
claimed was a great injustice to his client committed by the Supreme Court. In
the decision, the petition was described, thus:
He indicts this Court, in his own phrase, as a tribunal "peopled by men who
are calloused to our pleas for justice, who ignore without reasons their own
applicable decisions and commit culpable violations of the Constitution with
impunity." His client's he continues, who was deeply aggrieved by this Court's
"unjust judgment," has become "one of the sacrificial victims before the altar
of hypocrisy." In the same breath that he alludes to the classic symbol of
justice, he ridicules the members of this Court, saying "that justice as
administered by the present members of the Supreme Court is not only blind,
but also deaf and dumb." He then vows to argue the cause of his client "in the
people's forum," so that "the people may know of the silent injustices
committed by this Court," and that "whatever mistakes, wrongs and injustices
that were committed must never be repeated." He ends his petition with a
prayer that
"x x x a resolution issue ordering the Clerk of Court to receive the certificate of
the undersigned attorney and counsellor-at-law IN TRUST with reservation that
at any time in the future and in the event we regain our faith and confidence,
we may retrieve our title to assume the practice of the noblest profession." 121
It is true that in Almacen the Court extensively discussed foreign
jurisprudence on the principle that a lawyer, just like any citizen, has the right
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to criticize and comment upon actuations of public officers, including judicial
authority. However, the real doctrine in Almacen is that such criticism of the
courts, whether done in court or outside of it, must conform to standards of
fairness and propriety. This case engaged in an even more extensive
discussion of the legal authorities sustaining this view.1awphi1 To quote from
that decision:
But it is the cardinal condition of all such criticism that it shall be bona fide,
and shall not spill over the walls of decency and propriety. A wide chasm
exists between fair criticism, on the one hand, and abuse and slander of
courts and the judges thereof, on the other. Intemperate and unfair criticism is
a gross violation of the duty of respect to courts. It is such a misconduct that
subjects a lawyer to disciplinary action.
For, membership in the Bar imposes upon a person obligations and duties
which are not mere flux and ferment. His investiture into the legal profession
places upon his shoulders no burden more basic, more exacting and more
imperative than that of respectful behavior toward the courts. He vows
solemnly to conduct himself "with all good fidelity x x x to the courts;" and the
Rules of Court constantly remind him "to observe and maintain the respect
due to courts of justice and judicial officers." The first canon of legal ethics
enjoins him "to maintain towards the courts a respectful attitude, not for the
sake of the temporary incumbent of the judicial office, but for the
maintenance of its supreme importance."
As Mr. Justice Field puts it:
"x x x the obligation which attorneys impliedly assume, if they do not by
express declaration take upon themselves, when they are admitted to the Bar,
is not merely to be obedient to the Constitution and laws, but to maintain at
all times the respect due to courts of justice and judicial officers. This
obligation is not discharged by merely observing the rules of courteous
demeanor in open court, but includes abstaining out of court from all insulting
language and offensive conduct toward judges personally for their judicial
acts." (Bradley, v. Fisher, 20 Law. 4d. 647, 652)
The lawyer's duty to render respectful subordination to the courts is essential
to the orderly administration of justice. Hence, in the assertion of their clients'
rights, lawyers even those gifted with superior intellect are enjoined to
rein up their tempers.
"The counsel in any case may or may not be an abler or more learned lawyer
than the judge, and it may tax his patience and temper to submit to rulings
which he regards as incorrect, but discipline and self-respect are as necessary
to the orderly administration of justice as they are to the effectiveness of an
army. The decisions of the judge must be obeyed, because he is the tribunal
appointed to decide, and the bar should at all times be the foremost in
rendering respectful submission." (In Re Scouten, 40 Atl. 481)
xxxx
In his relations with the courts, a lawyer may not divide his personality so as
to be an attorney at one time and a mere citizen at another. Thus, statements
made by an attorney in private conversations or communications or in the
course of a political campaign, if couched in insulting language as to bring into
scorn and disrepute the administration of justice, may subject the attorney to
disciplinary action.122 (Emphases and underscoring supplied.)
In a similar vein, In re: Vicente Sotto, 123 cited in the Vasquez Compliance,
observed that:
[T]his Court, in In re Kelly, held the following:
The publication of a criticism of a party or of the court to a pending cause,
respecting the same, has always been considered as misbehavior, tending to
obstruct the administration of justice, and subjects such persons to contempt
proceedings. Parties have a constitutional right to have their causes tried
fairly in court, by an impartial tribunal, uninfluenced by publications or public
clamor. Every citizen has a profound personal interest in the enforcement of
the fundamental right to have justice administered by the courts, under the
protection and forms of law, free from outside coercion or interference. x x x.
Mere criticism or comment on the correctness or wrongness, soundness or
unsoundness of the decision of the court in a pending case made in good faith
may be tolerated; because if well founded it may enlighten the court and
contribute to the correction of an error if committed; but if it is not well taken
and obviously erroneous, it should, in no way, influence the court in reversing
or modifying its decision. x x x.
xxxx
To hurl the false charge that this Court has been for the last years committing
deliberately "so many blunders and injustices," that is to say, that it has been
deciding in favor of one party knowing that the law and justice is on the part
of the adverse party and not on the one in whose favor the decision was
rendered, in many cases decided during the last years, would tend necessarily
to undermine the confidence of the people in the honesty and integrity of the
members of this Court, and consequently to lower or degrade the
administration of justice by this Court. The Supreme Court of the Philippines
is, under the Constitution, the last bulwark to which the Filipino people may
repair to obtain relief for their grievances or protection of their rights when
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these are trampled upon, and if the people lose their confidence in the
honesty and integrity of the members of this Court and believe that they
cannot expect justice therefrom, they might be driven to take the law into
their own hands, and disorder and perhaps chaos might be the result. As a
member of the bar and an officer of the courts Atty. Vicente Sotto, like any
other, is in duty bound to uphold the dignity and authority of this Court, to
which he owes fidelity according to the oath he has taken as such attorney,
and not to promote distrust in the administration of justice. Respect to the
courts guarantees the stability of other institutions, which without such
guaranty would be resting on a very shaky foundation. 124 (Emphases and
underscoring supplied.)
That the doctrinal pronouncements in these early cases are still good law can
be easily gleaned even from more recent jurisprudence.
In Choa v. Chiongson,125 the Court administratively disciplined a lawyer,
through the imposition of a fine, for making malicious and unfounded
criticisms of a judge in the guise of an administrative complaint and held,
thus:
As an officer of the court and its indispensable partner in the sacred task of
administering justice, graver responsibility is imposed upon a lawyer than any
other to uphold the integrity of the courts and to show respect to its officers.
This does not mean, however, that a lawyer cannot criticize a judge. As we
stated in Tiongco vs. Hon. Aguilar:
It does not, however, follow that just because a lawyer is an officer of the
court, he cannot criticize the courts. That is his right as a citizen, and it is
even his duty as an officer of the court to avail of such right. Thus, in In Re:
Almacen (31 SCRA 562, 579-580 [1970]), this Court explicitly declared:
Hence, as a citizen and as officer of the court, a lawyer is expected not only to
exercise the right, but also to consider it his duty to avail of such right. No law
may abridge this right. Nor is he "professionally answerable to a scrutiny into
the official conduct of the judges, which would not expose him to legal
animadversion as a citizen." (Case of Austin, 28 Am Dec. 657, 665).
xxxx
Nevertheless, such a right is not without limit. For, as this Court warned in
Almacen:
But it is a cardinal condition of all such criticism that it shall be bona fide, and
shall not spill over the walls of decency and propriety. A wide chasm exists
between fair criticism, on the one hand, and abuse and slander of courts and
the judges thereof, on the other. Intemperate and unfair criticism is a gross
violation of the duty of respect to courts. It is such a misconduct, that subjects
a lawyer to disciplinary action.
xxxx
Elsewise stated, the right to criticize, which is guaranteed by the freedom of
speech and of expression in the Bill of Rights of the Constitution, must be
exercised responsibly, for every right carries with it a corresponding
obligation. Freedom is not freedom from responsibility, but freedom with
responsibility. x x x.
xxxx
Proscribed then are, inter alia, the use of unnecessary language which
jeopardizes high esteem in courts, creates or promotes distrust in judicial
administration (Rheem, supra), or tends necessarily to undermine the
confidence of people in the integrity of the members of this Court and to
degrade the administration of justice by this Court (In re: Sotto, 82 Phil. 595
[1949]); or of offensive and abusive language (In re: Rafael Climaco, 55 SCRA
107 [1974]); or abrasive and offensive language (Yangson vs. Salandanan, 68
SCRA 42 [1975]; or of disrespectful, offensive, manifestly baseless, and
malicious statements in pleadings or in a letter addressed to the judge (Baja
vs. Macandog, 158 SCRA [1988], citing the resolution of 19 January 1988 in
Phil. Public Schools Teachers Association vs. Quisumbing, G.R. No. 76180, and
Ceniza vs. Sebastian, 130 SCRA 295 [1984]); or of disparaging, intemperate,
and uncalled-for remarks (Sangalang vs. Intermediate Appellate Court, 177
SCRA 87 [1989]).
Any criticism against a judge made in the guise of an administrative complaint
which is clearly unfounded and impelled by ulterior motive will not excuse the
lawyer responsible therefor under his duty of fidelity to his client. x x
x.126 (Emphases and underscoring supplied.)
In Saberon v. Larong,127 where this Court found respondent lawyer guilty of
simple misconduct for using intemperate language in his pleadings and
imposed a fine upon him, we had the occasion to state:
The Code of Professional Responsibility mandates:
CANON 8 - A lawyer shall conduct himself with courtesy, fairness and candor
toward his professional colleagues, and shall avoid harassing tactics against
opposing counsel.
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Legal Ethics
Rule 8.01 - A lawyer shall not, in his professional dealings, use language which
is abusive, offensive or otherwise improper.
CANON 11 - A lawyer shall observe and maintain the respect due to
the courts and to judicial officers and should insist on similar conduct
by others.
Rule 11.03 - A lawyer shall abstain from scandalous, offensive or
menacing language or behavior before the Courts.
To be sure, the adversarial nature of our legal system has tempted members
of the bar to use strong language in pursuit of their duty to advance the
interests of their clients.
However, while a lawyer is entitled to present his case with vigor and
courage, such enthusiasm does not justify the use of offensive and
abusive language. Language abounds with countless possibilities for
one to be emphatic but respectful, convincing but not derogatory,
illuminating but not offensive.
On many occasions, the Court has reminded members of the Bar to
abstain from all offensive personalityand to advance no fact prejudicial to
the honor or reputation of a party or witness, unless required by the justice of
the cause with which he is charged. In keeping with the dignity of the legal
profession, a lawyers language even in his pleadings must be dignified. 128
Verily, the accusatory and vilifying nature of certain portions of the Statement
exceeded the limits of fair comment and cannot be deemed as protected free
speech. Even In the Matter of Petition for Declaratory Relief Re:
Constitutionality of Republic Act 4880, Gonzales v. Commission on
Elections,129 relied upon by respondents in the Common Compliance, held
that:
From the language of the specific constitutional provision, it would appear that
the right is not susceptible of any limitation. No law may be passed abridging
the freedom of speech and of the press. The realities of life in a complex
society preclude however a literal interpretation. Freedom of expression is not
an absolute. It would be too much to insist that at all times and under all
circumstances it should remain unfettered and unrestrained. There are other
societal values that press for recognition. x x x.130 (Emphasis supplied.)
One such societal value that presses for recognition in the case at bar is the
threat to judicial independence and the orderly administration of justice that
immoderate, reckless and unfair attacks on judicial decisions and institutions
pose. This Court held as much in Zaldivar v. Sandiganbayan and
Gonzales,131 where we indefinitely suspended a lawyer from the practice of
law for issuing to the media statements grossly disrespectful towards the
Court in relation to a pending case, to wit:
Respondent Gonzales is entitled to the constitutional guarantee of free
speech. No one seeks to deny him that right, least of all this Court. What
respondent seems unaware of is that freedom of speech and of expression,
like all constitutional freedoms, is not absolute and that freedom of expression
needs on occasion to be adjusted to and accommodated with the
requirements of equally important public interest. One of these fundamental
public interests is the maintenance of the integrity and orderly functioning of
the administration of justice. There is no antinomy between free expression
and the integrity of the system of administering justice. For the protection and
maintenance of freedom of expression itself can be secured only within the
context of a functioning and orderly system of dispensing justice, within the
context, in other words, of viable independent institutions for delivery of
justice which are accepted by the general community. x x x. 132 (Emphases
supplied.)
For this reason, the Court cannot uphold the view of some respondents 133 that
the Statement presents no grave or imminent danger to a legitimate public
interest.
The Show Cause Resolution does not interfere with respondents academic
freedom.
It is not contested that respondents herein are, by law and jurisprudence,
guaranteed academic freedom and undisputably, they are free to determine
what they will teach their students and how they will teach. We must point out
that there is nothing in the Show Cause Resolution that dictates upon
respondents the subject matter they can teach and the manner of their
instruction. Moreover, it is not inconsistent with the principle of academic
freedom for this Court to subject lawyers who teach law to disciplinary action
for contumacious conduct and speech, coupled with undue intervention in
favor of a party in a pending case, without observing proper procedure, even
if purportedly done in their capacity as teachers.
A novel issue involved in the present controversy, for it has not been passed
upon in any previous case before this Court, is the question of whether
lawyers who are also law professors can invoke academic freedom as a
defense in an administrative proceeding for intemperate statements tending
to pressure the Court or influence the outcome of a case or degrade the
courts.
Applying by analogy the Courts past treatment of the "free speech" defense
in other bar discipline cases, academic freedom cannot be successfully
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invoked by respondents in this case. The implicit ruling in the jurisprudence
discussed above is that the constitutional right to freedom of expression of
members of the Bar may be circumscribed by their ethical duties as lawyers
to give due respect to the courts and to uphold the publics faith in the legal
profession and the justice system. To our mind, the reason that freedom of
expression may be so delimited in the case of lawyers applies with greater
force to the academic freedom of law professors.
It would do well for the Court to remind respondents that, in view of the broad
definition in Cayetano v. Monsod, 134 lawyers when they teach law are
considered engaged in the practice of law. Unlike professors in other
disciplines and more than lawyers who do not teach law, respondents are
bound by their oath to uphold the ethical standards of the legal profession.
Thus, their actions as law professors must be measured against the same
canons of professional responsibility applicable to acts of members of the Bar
as the fact of their being law professors is inextricably entwined with the fact
that they are lawyers.
Even if the Court was willing to accept respondents proposition in the
Common Compliance that their issuance of the Statement was in keeping with
their duty to "participate in the development of the legal system by initiating
or supporting efforts in law reform and in the improvement of the
administration of justice" under Canon 4 of the Code of Professional
Responsibility, we cannot agree that they have fulfilled that same duty in
keeping with the demands of Canons 1, 11 and 13 to give due respect to legal
processes and the courts, and to avoid conduct that tends to influence the
courts. Members of the Bar cannot be selective regarding which canons to
abide by given particular situations. With more reason that law professors are
not allowed this indulgence, since they are expected to provide their students
exemplars of the Code of Professional Responsibility as a whole and not just
their preferred portions thereof.
The Courts rulings on the submissions regarding the charge of violation of
Canons 1, 11 and 13.
Having disposed of respondents main arguments of freedom of expression
and academic freedom, the Court considers here the other averments in their
submissions.
With respect to good faith, respondents allegations presented two main
ideas: (a) the validity of their position regarding the plagiarism charge against
Justice Del Castillo, and (b) their pure motive to spur this Court to take the
correct action on said issue.
The Court has already clarified that it is not the expression of respondents
staunch belief that Justice Del Castillo has committed a misconduct that the
majority of this Court has found so unbecoming in the Show Cause Resolution.
No matter how firm a lawyers conviction in the righteousness of his cause
there is simply no excuse for denigrating the courts and engaging in public
behavior that tends to put the courts and the legal profession into disrepute.
This doctrine, which we have repeatedly upheld in such cases as Salcedo, In
re Almacen and Saberong, should be applied in this case with more reason, as
the respondents, not parties to the Vinuya case, denounced the Court and
urged it to change its decision therein, in a public statement using
contumacious language, which with temerity they subsequently submitted to
the Court for "proper disposition."
That humiliating the Court into reconsidering the Vinuya Decision in favor of
the Malaya Lolas was one of the objectives of the Statement could be seen in
the following paragraphs from the same:
And in light of the significance of this decision to the quest for justice not only
of Filipino women, but of women elsewhere in the world who have suffered the
horrors of sexual abuse and exploitation in times of war, the Court cannot
coldly deny relief and justice to the petitioners on the basis of pilfered and
misinterpreted texts.
xxxx
(3) The same breach and consequent disposition of the Vinuya case does
violence to the primordial function of the Supreme Court as the ultimate
dispenser of justice to all those who have been left without legal or equitable
recourse, such as the petitioners therein. 135 (Emphases and underscoring
supplied.)
Whether or not respondents views regarding the plagiarism issue in
the Vinuya case had valid basis was wholly immaterial to their liability for
contumacious speech and conduct. These are two separate matters to be
properly threshed out in separate proceedings. The Court considers it highly
inappropriate, if not tantamount to dissembling, the discussion devoted in one
of the compliances arguing the guilt of Justice Del Castillo. In the Common
Compliance, respondents even go so far as to attach documentary evidence
to support the plagiarism charges against Justice Del Castillo in the present
controversy. The ethics case of Justice Del Castillo (A.M. No. 10-7-17-SC), with
the filing of a motion for reconsideration, was still pending at the time of the
filing of respondents submissions in this administrative case. As respondents
themselves admit, they are neither parties nor counsels in the ethics case
against Justice Del Castillo. Notwithstanding their professed overriding interest
in said ethics case, it is not proper procedure for respondents to bring up their
plagiarism arguments here especially when it has no bearing on their own
administrative case.
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Still on motive, it is also proposed that the choice of language in the
Statement was intended for effective speech; that speech must be "forceful
enough to make the intended recipients listen." 136 One wonders what sort of
effect respondents were hoping for in branding this Court as, among others,
callous, dishonest and lacking in concern for the basic values of decency and
respect. The Court fails to see how it can ennoble the profession if we allow
respondents to send a signal to their students that the only way to effectively
plead their cases and persuade others to their point of view is to be offensive.
This brings to our mind the letters of Dr. Ellis and Prof. Tams which were
deliberately quoted in full in the narration of background facts to illustrate the
sharp contrast between the civil tenor of these letters and the antagonistic
irreverence of the Statement. In truth, these foreign authors are the ones who
would expectedly be affected by any perception of misuse of their works.
Notwithstanding that they are beyond the disciplinary reach of this Court, they
still obviously took pains to convey their objections in a deferential and
scholarly manner. It is unfathomable to the Court why respondents could not
do the same. These foreign authors letters underscore the universality of the
tenet that legal professionals must deal with each other in good faith and due
respect. The mark of the true intellectual is one who can express his opinions
logically and soberly without resort to exaggerated rhetoric and unproductive
recriminations.
As for the claim that the respondents noble intention is to spur the Court to
take "constructive action" on the plagiarism issue, the Court has some doubts
as to its veracity. For if the Statement was primarily meant for this Courts
consideration, why was the same published and reported in the media first
before it was submitted to this Court? It is more plausible that the Statement
was prepared for consumption by the general public and designed to capture
media attention as part of the effort to generate interest in the most
controversial ground in the Supplemental Motion for Reconsideration filed in
the Vinuya case by Atty. Roque, who is respondents colleague on the UP Law
faculty.
In this regard, the Court finds that there was indeed a lack of observance of
fidelity and due respect to the Court, particularly when respondents knew fully
well that the matter of plagiarism in the Vinuya decision and the merits of the
Vinuya decision itself, at the time of the Statements issuance, were still both
sub judice or pending final disposition of the Court. These facts have been
widely publicized. On this point, respondents allege that at the time the
Statement was first drafted on July 27, 2010, they did not know of the
constitution of the Ethics Committee and they had issued the Statement
under the belief that this Court intended to take no action on the ethics
charge against Justice Del Castillo. Still, there was a significant lapse of time
from the drafting and printing of the Statement on July 27, 2010 and its
publication and submission to this Court in early August when the Ethics
Committee had already been convened. If it is true that the respondents
outrage was fueled by their perception of indifference on the part of the Court
then, when it became known that the Court did intend to take action, there
was nothing to prevent respondents from recalibrating the Statement to take
this supervening event into account in the interest of fairness.
Speaking of the publicity this case has generated, we likewise find no merit in
the respondents reliance on various news reports and commentaries in the
print media and the internet as proof that they are being unfairly "singled
out." On the contrary, these same annexes to the Common Compliance show
that it is not enough for one to criticize the Court to warrant the institution of
disciplinary137 or contempt138 action. This Court takes into account the nature
of the criticism and weighs the possible repercussions of the same on the
Judiciary. When the criticism comes from persons outside the profession who
may not have a full grasp of legal issues or from individuals whose personal or
other interests in making the criticism are obvious, the Court may perhaps
tolerate or ignore them. However, when law professors are the ones who
appear to have lost sight of the boundaries of fair commentary and worse,
would justify the same as an exercise of civil liberties, this Court cannot
remain silent for such silence would have a grave implication on legal
education in our country.
With respect to the 35 respondents named in the Common Compliance,
considering that this appears to be the first time these respondents have been
involved in disciplinary proceedings of this sort, the Court is willing to give
them the benefit of the doubt that they were for the most part well-
intentioned in the issuance of the Statement. However, it is established in
jurisprudence that where the excessive and contumacious language used is
plain and undeniable, then good intent can only be mitigating. As this Court
expounded in Salcedo:
In his defense, Attorney Vicente J. Francisco states that it was not his intention
to offend the court or to be recreant to the respect thereto but, unfortunately,
there are his phrases which need no further comment. Furthermore, it is a well
settled rule in all places where the same conditions and practice as those in
this jurisdiction obtain, that want of intention is no excuse from liability (13 C.
J., 45). Neither is the fact that the phrases employed are justified by the facts
a valid defense:
"Where the matter is abusive or insulting, evidence that the language used
was justified by the facts is not admissible as a defense. Respect for the
judicial office should always be observed and enforced." (In re Stewart, 118
La., 827; 43 S., 455.) Said lack or want of intention constitutes at most an
extenuation of liability in this case, taking into consideration Attorney Vicente
J. Francisco's state of mind, according to him when he prepared said motion.
This court is disposed to make such concession. However, in order to avoid a
recurrence thereof and to prevent others, by following the bad example, from
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taking the same course, this court considers it imperative to treat the case of
said attorney with the justice it deserves.139 (Emphases supplied.)
Thus, the 35 respondents named in the Common Compliance should,
notwithstanding their claim of good faith, be reminded of their lawyerly duty,
under Canons 1, 11 and 13, to give due respect to the courts and to refrain
from intemperate and offensive language tending to influence the Court on
pending matters or to denigrate the courts and the administration of justice.
With respect to Prof. Vasquez, the Court favorably notes the differences in his
Compliance compared to his colleagues. In our view, he was the only one
among the respondents who showed true candor and sincere deference to the
Court. He was able to give a straightforward account of how he came to sign
the Statement. He was candid enough to state that his agreement to the
Statement was in principle and that the reason plagiarism was a "fair topic of
discussion" among the UP Law faculty prior to the promulgation of the October
12, 2010 Decision in A.M. No. 10-7-17-SC was the uncertainty brought about
by a division of opinion on whether or not willful or deliberate intent was an
element of plagiarism. He was likewise willing to acknowledge that he may
have been remiss in failing to assess the effect of the language of the
Statement and could have used more care. He did all this without having to
retract his position on the plagiarism issue, without demands for undeserved
reliefs (as will be discussed below) and without baseless insinuations of
deprivation of due process or of prejudgment. This is all that this Court
expected from respondents, not for them to sacrifice their principles but only
that they recognize that they themselves may have committed some ethical
lapse in this affair. We commend Prof. Vaquez for showing that at least one of
the respondents can grasp the true import of the Show Cause Resolution
involving them. For these reasons, the Court finds Prof. Vasquezs Compliance
satisfactory.
As for Prof. Lynch, in view of his Manifestation that he is a member of the Bar
of the State of Minnesota and, therefore, not under the disciplinary authority
of this Court, he should be excused from these proceedings. However, he
should be reminded that while he is engaged as a professor in a Philippine law
school he should strive to be a model of responsible and professional conduct
to his students even without the threat of sanction from this Court. For even if
one is not bound by the Code of Professional Responsibility for members of
the Philippine Bar, civility and respect among legal professionals of any
nationality should be aspired for under universal standards of decency and
fairness.
The Courts ruling on Dean Leonens Compliance regarding the charge of
violation of Canon 10.
To recall, the Show Cause Resolution directed Dean Leonen to show cause why
he should not be disciplinary dealt with for violation of Canon 10, Rules 10.01,
10.02 and 10.03 and for submitting a "dummy" that was not a true and
faithful reproduction of the signed Statement.
In his Compliance, Dean Leonen essentially denies that Restoring Integrity
II was not a true and faithful reproduction of the actual signed
copy, Restoring Integrity I, because looking at the text or the body, there
were no differences between the two. He attempts to downplay the
discrepancies in the signature pages of the two versions of the Statement
(i.e., Restoring Integrity I and Restoring Integrity II) by claiming that it is
but expected in "live" public manifestos with dynamic and evolving pages as
more and more signatories add their imprimatur thereto. He likewise stresses
that he is not administratively liable because he did not misrepresent the
members of the UP Law faculty who "had agreed with the Restoring Integrity
Statement proper and/or who had expressed their desire to be signatories
thereto."140
To begin with, the Court cannot subscribe to Dean Leonens implied view that
the signatures in the Statement are not as significant as its contents. Live
public manifesto or not, the Statement was formally submitted to this Court at
a specific point in time and it should reflect accurately its signatories at that
point. The value of the Statement as a UP Law Faculty Statement lies precisely
in the identities of the persons who have signed it, since the Statements
persuasive authority mainly depends on the reputation and stature of the
persons who have endorsed the same. Indeed, it is apparent from
respondents explanations that their own belief in the "importance" of their
positions as UP law professors prompted them to publicly speak out on the
matter of the plagiarism issue in the Vinuya case.
Further, in our assessment, the true cause of Dean Leonens predicament is
the fact that he did not from the beginning submit the signed copy, Restoring
Integrity I, to this Court on August 11, 2010 and, instead, submitted Restoring
Integrity II with its retyped or "reformatted" signature pages. It would turn out,
according to Dean Leonens account, that there were errors in the retyping of
the signature pages due to lapses of his unnamed staff. First, an unnamed
administrative officer in the deans office gave the dean inaccurate
information that led him to allow the inclusion of Justice Mendoza as among
the signatories of Restoring Integrity II. Second, an unnamed staff also failed
to type the name of Atty. Armovit when encoding the signature pages of
Restoring Integrity II when in fact he had signed Restoring Integrity I.
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The Court can understand why for purposes of posting on a bulletin board or a
website a signed document may have to be reformatted and signatures may
be indicated by the notation (SGD). This is not unusual. We are willing to
accept that the reformatting of documents meant for posting to eliminate
blanks is necessitated by vandalism concerns.
However, what is unusual is the submission to a court, especially this Court, of
a signed document for the Courts consideration that did not contain the
actual signatures of its authors. In most cases, it is the original signed
document that is transmitted to the Court or at the very least a photocopy of
the actual signed document. Dean Leonen has not offered any explanation
why he deviated from this practice with his submission to the Court of
Restoring Integrity II on August 11, 2010. There was nothing to prevent the
dean from submitting Restoring Integrity I to this Court even with its blanks
and unsigned portions. Dean Leonen cannot claim fears of vandalism with
respect to court submissions for court employees are accountable for the care
of documents and records that may come into their custody. Yet, Dean Leonen
deliberately chose to submit to this Court the facsimile that did not contain
the actual signatures and his silence on the reason therefor is in itself a
display of lack of candor.
Still, a careful reading of Dean Leonens explanations yield the answer. In the
course of his explanation of his willingness to accept his administrative
officers claim that Justice Mendoza agreed to be indicated as a signatory,
Dean Leonen admits in a footnote that other professors had likewise only
authorized him to indicate them as signatories and had not in fact signed the
Statement. Thus, at around the time Restoring Integrity II was printed, posted
and submitted to this Court, at least one purported signatory thereto had not
actually signed the same. Contrary to Dean Leonens proposition, that is
precisely tantamount to making it appear to this Court that a person or
persons participated in an act when such person or persons did not.
We are surprised that someone like Dean Leonen, with his reputation for
perfection and stringent standards of intellectual honesty, could proffer the
explanation that there was no misrepresentation when he allowed at least one
person to be indicated as having actually signed the Statement when all he
had was a verbal communication of an intent to sign. In the case of Justice
Mendoza, what he had was only hearsay information that the former intended
to sign the Statement. If Dean Leonen was truly determined to observe candor
and truthfulness in his dealings with the Court, we see no reason why he could
not have waited until all the professors who indicated their desire to sign the
Statement had in fact signed before transmitting the Statement to the Court
as a duly signed document. If it was truly impossible to secure some
signatures, such as that of Justice Mendoza who had to leave for abroad, then
Dean Leonen should have just resigned himself to the signatures that he was
able to secure.
We cannot imagine what urgent concern there was that he could not wait for
actual signatures before submission of the Statement to this Court. As
respondents all asserted, they were neither parties to nor counsels in the
Vinuya case and the ethics case against Justice Del Castillo. The Statement
was neither a pleading with a deadline nor a required submission to the Court;
rather, it was a voluntary submission that Dean Leonen could do at any time.
In sum, the Court likewise finds Dean Leonens Compliance unsatisfactory.
However, the Court is willing to ascribe these isolated lapses in judgment of
Dean Leonen to his misplaced zeal in pursuit of his objectives. In due
consideration of Dean Leonens professed good intentions, the Court deems it
sufficient to admonish Dean Leonen for failing to observe full candor and
honesty in his dealings with the Court as required under Canon 10.
Respondents requests for a hearing, for production/presentation of evidence
bearing on the plagiarism and misrepresentation issues in G.R. No. 162230
and A.M. No. 10-7-17-SC, and for access to the records of A.M. No. 10-7-17-SC
are unmeritorious.
In the Common Compliance, respondents named therein asked for alternative
reliefs should the Court find their Compliance unsatisfactory, that is, that the
Show Cause Resolution be set for hearing and for that purpose, they be
allowed to require the production or presentation of witnesses and evidence
bearing on the plagiarism and misrepresentation issues in the Vinuya case
(G.R. No. 162230) and the plagiarism case against Justice Del Castillo (A.M.
No. 10-7-17-SC) and to have access to the records of, and evidence that were
presented or may be presented in the ethics case against Justice Del Castillo.
The prayer for a hearing and for access to the records of A.M. No. 10-7-17-SC
was substantially echoed in Dean Leonens separate Compliance. In Prof. Juan-
Bautistas Compliance, she similarly expressed the sentiment that "[i]f the
Restoring Integrity Statement can be considered indirect contempt, under
Section 3 of Rule 71 of the Rules of Court, such may be punished only after
charge and hearing."141 It is this group of respondents premise that these
reliefs are necessary for them to be accorded full due process.
The Court finds this contention unmeritorious.
Firstly, it would appear that the confusion as to the necessity of a hearing in
this case springs largely from its characterization as a special civil action for
indirect contempt in the Dissenting Opinion of Justice Sereno (to the October
19, 2010 Show Cause Resolution) and her reliance therein on the majoritys
purported failure to follow the procedure in Rule 71 of the Rules of Court as
her main ground for opposition to the Show Cause Resolution.
However, once and for all, it should be clarified that this is not an indirect
contempt proceeding and Rule 71 (which requires a hearing) has no
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application to this case. As explicitly ordered in the Show Cause Resolution
this case was docketed as an administrative matter.
The rule that is relevant to this controversy is Rule 139-B, Section 13, on
disciplinary proceedings initiated motu proprio by the Supreme Court, to wit:
SEC. 13. Supreme Court Investigators.In proceedings initiated motu
proprio by the Supreme Court or in other proceedings when the interest of
justice so requires, the Supreme Court may refer the case for investigation to
the Solicitor General or to any officer of the Supreme Court or judge of a lower
court, in which case the investigation shall proceed in the same manner
provided in sections 6 to 11 hereof, save that the review of the report of
investigation shall be conducted directly by the Supreme Court. (Emphasis
supplied.)
From the foregoing provision, it cannot be denied that a formal investigation,
through a referral to the specified officers, is merely discretionary, not
mandatory on the Court. Furthermore, it is only if the Court deems such an
investigation necessary that the procedure in Sections 6 to 11 of Rule 139-A
will be followed.
As respondents are fully aware, in general, administrative proceedings do not
require a trial type hearing. We have held that:
The essence of due process is simply an opportunity to be heard or, as applied
to administrative proceedings, an opportunity to explain one's side or an
opportunity to seek a reconsideration of the action or ruling complained of.
What the law prohibits is absolute absence of the opportunity to be heard,
hence, a party cannot feign denial of due process where he had been afforded
the opportunity to present his side. A formal or trial type hearing is not at all
times and in all instances essential to due process, the requirements of which
are satisfied where the parties are afforded fair and reasonable opportunity to
explain their side of the controversy.142 (Emphases supplied.)
In relation to bar discipline cases, we have had the occasion to rule in Pena v.
Aparicio143 that:
Disciplinary proceedings against lawyers are sui generis. Neither purely civil
nor purely criminal, they do not involve a trial of an action or a suit, but is
rather an investigation by the Court into the conduct of one of its officers. Not
being intended to inflict punishment, it is in no sense a criminal prosecution.
Accordingly, there is neither a plaintiff nor a prosecutor therein. It may be
initiated by the Court motu proprio. Public interest is its primary objective, and
the real question for determination is whether or not the attorney is still a fit
person to be allowed the privileges as such. Hence, in the exercise of its
disciplinary powers, the Court merely calls upon a member of the Bar to
account for his actuations as an officer of the Court with the end in view of
preserving the purity of the legal profession and the proper and honest
administration of justice by purging the profession of members who by their
misconduct have proved themselves no longer worthy to be entrusted with
the duties and responsibilities pertaining to the office of an attorney. In such
posture, there can thus be no occasion to speak of a complainant or a
prosecutor.144 (Emphases supplied.)
In Query of Atty. Karen M. Silverio-Buffe, Former Clerk of Court Br. 81,
Romblon On the Prohibition from Engaging in the Private Practice of
Law,145 we further observed that:
[I]n several cases, the Court has disciplined lawyers without further inquiry or
resort to any formal investigation where the facts on record sufficiently
provided the basis for the determination of their administrative liability.
In Prudential Bank v. Castro, the Court disbarred a lawyer without need of any
further investigation after considering his actions based on records showing
his unethical misconduct; the misconduct not only cast dishonor on the image
of both the Bench and the Bar, but was also inimical to public interest and
welfare. In this regard, the Court took judicial notice of several cases handled
by the errant lawyer and his cohorts that revealed their modus operandi in
circumventing the payment of the proper judicial fees for the astronomical
sums they claimed in their cases. The Court held that those cases sufficiently
provided the basis for the determination of respondents' administrative
liability, without need for further inquiry into the matter under the principle
of res ipsa loquitur.
Also on the basis of this principle, we ruled in Richards v. Asoy, that no
evidentiary hearing is required before the respondent may be disciplined for
professional misconduct already established by the facts on record.
xxxx
These cases clearly show that the absence of any formal charge against
and/or formal investigation of an errant lawyer do not preclude the Court from
immediately exercising its disciplining authority, as long as the errant lawyer
or judge has been given the opportunity to be heard. As we stated earlier,
Atty. Buffe has been afforded the opportunity to be heard on the present
matter through her letter-query and Manifestation filed before this
Court.146 (Emphases supplied.)
Under the rules and jurisprudence, respondents clearly had no right to a
hearing and their reservation of a right they do not have has no effect on
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Legal Ethics
these proceedings. Neither have they shown in their pleadings any
justification for this Court to call for a hearing in this instance. They have not
specifically stated what relevant evidence, documentary or testimonial, they
intend to present in their defense that will necessitate a formal hearing.
Instead, it would appear that they intend to present records, evidence, and
witnesses bearing on the plagiarism and misrepresentation issues in
the Vinuya case and in A.M. No. 10-7-17-SC on the assumption that the
findings of this Court which were the bases of the Show Cause Resolution were
made in A.M. No. 10-7-17-SC, or were related to the conclusions of the Court
in the Decision in that case. This is the primary reason for their request for
access to the records and evidence presented in A.M. No. 10-7-17-SC.
This assumption on the part of respondents is erroneous. To illustrate, the only
incident in A.M. No. 10-7-17-SC that is relevant to the case at bar is the fact
that the submission of the actual signed copy of the Statement (or Restoring
Integrity I, as Dean Leonen referred to it) happened there. Apart from that
fact, it bears repeating that the proceedings in A.M. No. 10-7-17-SC, the ethics
case against Justice Del Castillo, is a separate and independent matter from
this case.
To find the bases of the statements of the Court in the Show Cause Resolution
that the respondents issued a Statement with language that the Court deems
objectionable during the pendency of the Vinuya case and the ethics case
against Justice Del Castillo, respondents need to go no further than the four
corners of the Statement itself, its various versions, news reports/columns
(many of which respondents themselves supplied to this Court in their
Common Compliance) and internet sources that are already of public
knowledge.
Considering that what respondents are chiefly required to explain are the
language of the Statement and the circumstances surrounding the drafting,
printing, signing, dissemination, etc., of its various versions, the Court does
not see how any witness or evidence in the ethics case of Justice Del Castillo
could possibly shed light on these facts. To be sure, these facts are within the
knowledge of respondents and if there is any evidence on these matters the
same would be in their possession.
We find it significant that in Dean Leonens Compliance he narrated how as
early as September 2010, i.e., before the Decision of this Court in the ethics
case of Justice Del Castillo on October 12, 2010 and before the October 19,
2010 Show Cause Resolution, retired Supreme Court Justice Vicente V.
Mendoza, after being shown a copy of the Statement upon his return from
abroad, predicted that the Court would take some form of action on the
Statement. By simply reading a hard copy of the Statement, a reasonable
person, even one who "fundamentally agreed" with the Statements
principles, could foresee the possibility of court action on the same on an
implicit recognition that the Statement, as worded, is not a matter this Court
should simply let pass. This belies respondents claim that it is necessary for
them to refer to any record or evidence in A.M. No. 10-7-17-SC in order to
divine the bases for the Show Cause Resolution.
If respondents have chosen not to include certain pieces of evidence in their
respective compliances or chosen not to make a full defense at this time,
because they were counting on being granted a hearing, that is respondents
own look-out. Indeed, law professors of their stature are supposed to be aware
of the above jurisprudential doctrines regarding the non-necessity of a hearing
in disciplinary cases. They should bear the consequence of the risk they have
taken.
Thus, respondents requests for a hearing and for access to the records of,
and evidence presented in, A.M. No. 10-7-17-SC should be denied for lack of
merit.
A final word
In a democracy, members of the legal community are hardly expected to have
monolithic views on any subject, be it a legal, political or social issue. Even as
lawyers passionately and vigorously propound their points of view they are
bound by certain rules of conduct for the legal profession. This Court is
certainly not claiming that it should be shielded from criticism. All the Court
demands is the same respect and courtesy that one lawyer owes to another
under established ethical standards. All lawyers, whether they are judges,
court employees, professors or private practitioners, are officers of the Court
and have voluntarily taken an oath, as an indispensable qualification for
admission to the Bar, to conduct themselves with good fidelity towards the
courts. There is no exemption from this sworn duty for law professors,
regardless of their status in the academic community or the law school to
which they belong.
WHEREFORE, this administrative matter is decided as follows:
(1) With respect to Prof. Vasquez, after favorably noting his
submission, the Court finds his Compliance to be satisfactory.
(2) The Common Compliance of 35 respondents, namely, Attys. Marvic
M.V.F. Leonen, Froilan M. Bacungan, Pacifico A. Agabin, Merlin M.
Magallona, Salvador T. Carlota, Carmelo V. Sison, Patricia R.P. Salvador
Daway, Dante B. Gatmaytan, Theodore O. Te, Florin T. Hilbay, Jay L.
Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera, Solomon F.
Lumba, Rommel J. Casis, Jose Gerardo A. Alampay, Miguel R. Armovit,
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Legal Ethics
Arthur P. Autea, Rosa Maria J. Bautista, Mark R. Bocobo, Dan P. Calica,
Tristan A. Catindig, Sandra Marie O. Coronel, Rosario O. Gallo,
Concepcion L. Jardeleza, Antonio G.M. La Via, Carina C. Laforteza,
Jose C. Laureta, Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen
Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Susan D.
Villanueva and Dina D. Lucenario, is found UNSATISFACTORY. These 35
respondent law professors are reminded of their lawyerly duty, under
Canons 1, 11 and 13 of the Code of Professional Responsibility, to give
due respect to the Court and to refrain from intemperate and
offensive language tending to influence the Court on pending matters
or to denigrate the Court and the administration of justice and warned
that the same or similar act in the future shall be dealt with more
severely.

(3) The separate Compliance of Dean Marvic M.V.F. Leonen regarding

the charge of violation of Canon 10 is found UNSATISFACTORY. He is
further ADMONISHED to be more mindful of his duty, as a member of
the Bar, an officer of the Court, and a Dean and professor of law, to
observe full candor and honesty in his dealings with the Court and
warned that the same or similar act in the future shall be dealt with
more severely.

(4) Prof. Lynch, who is not a member of the Philippine bar, is excused
from these proceedings. However, he is reminded that while he is
engaged as a professor in a Philippine law school he should strive to
be a model of responsible and professional conduct to his students
even without the threat of sanction from this Court.

(5) Finally, respondents requests for a hearing and for access to the
records of A.M. No. 10-7-17-SC are denied for lack of merit.

SO ORDERED.

143
Legal Ethics
VICTORIA LEGARDA, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, NEW CATHAY HOUSE, INC., THE
HONORABLE REGIONAL TRIAL COURT OF QUEZON CITY, BRANCH
94, respondents.
Nothing is more settled than the rule that the mistake of a counsel binds the client.
It is only in case of gross or palpable negligence of counsel when the courts must
step in and accord relief to a client who suffered thereby.
The present case is a typical example of such rare exception.
Petitioner Victoria Legarda was the owner of a parcel of land and the
improvements thereon located at 123 West Avenue, Quezon City. On January 11,
1985 respondent New Cathay House, Inc. filed a complaint against the petitioner
for specific performance with preliminary injunction and damages in the Regional
Trial Court (RTC) for Quezon City alleging, among others, that petitioner entered
into a lease agreement with the private respondent through its representative,
Roberto V. Cabrera, Jr., of the aforestated property of petitioner effective January 1,
1985 until December 31, 1989 or for a period of five (5) years; that the rental is
P25,000.00 per month with 5% escalation per year; that on November 23, 1984,
private respondent deposited the amount of P72,000.00 with petitioner as down
payment of rentals; that respondent drew up the written contract and sent it to
petitioner, that petitioner failed and refused to execute and sign the same despite
demands of respondent; and that the respondent suffered damages due to the
delay in the renovation and opening of its restaurant business. The private
respondent prayed that pending the resolution of the case a restraining order be
issued against petitioner or her agents enjoining them from stopping the
renovation and use of the premises by private respondent. It was also prayed that
after due hearing the petitioner be ordered to execute the lease contract; to pay
actual compensatory, exemplary and other damages in such amount as may be
proved during the trial including P30,000.00 attorney's fees plus P300.00 per
appearance of counsel, and to pay the expenses of litigation. 1
Petitioner engaged the services of counsel to handle her case. Said counsel filed
his appearance with an urgent motion for extension of time to file the answer
within ten (10) days from February 26, 1985. 2 However, said counsel failed to file
the answer within the extended period prayed for. Counsel for private respondent
filed an ex-parte motion to declare petitioner in default. This was granted by the
trial court on March 25, 1985 and private respondent was allowed to present
evidence ex-parte. Thereafter, on March 25, 1985, the trial court rendered its
decision, the dispositive part of which reads as follows:
WHEREFORE, judgment is hereby rendered ordering defendant Victoria G.
Legarda to execute and sign Exhibit "D":, the lease contract for the
premises at 123 West Avenue, Quezon City. Accordingly, the preliminary
injunction earlier issued on January 31, 1985 is hereby made permanent.
Judgment is likewise rendered ordering defendant to pay exemplary
damages in the sum of P100,000.00 to serve as example and deterrent for
others, and actual and compensatory damages as follows:
1. For loss and destroyed goodwill and reputation in the amount of
P100,000.00;
2. The sum of P61,704.40 as adjustments in the costs of labor and
materials for the renovation of the premises;
3. The sum of P50,000.00 as unearned income for the delay of plaintiff 's
operations from January 1, 1985 up to February 25, 1985 or a period of
almost two (2) months;
4. The sum of P16,635.57 and P50,424.40 as additional compensatory
damages incurred by plaintiff for the extension of the lease of its premises
at Makati and salaries of idle employees, respectively;
5. The sum of P10,000.00 as and by way of attorney's fees; and
6. The costs of suit. 3
Copy of said decision was duly served on counsel for the petitioner but he did not
take any action. Thus, the judgment became final and executory. On May 8, 1985,
upon motion of private respondent, a writ of execution of the judgment was issued
by the trial court. 4
At public auction, the sheriff sold the aforestated property of petitioner to Roberto
V. Cabrera, Jr. for the sum of P376,500.00 to satisfy the judgment. The sheriff
issued a certificate of sale dated June 8, 1985 covering the said property. 5 After the
one year redemption period expired without the petitioner redeeming the property,
ownership was consolidated in the name of Roberto V. Cabrera, Jr. The sheriff
issued a final deed of sale on July 8, 1986 in his favor. Cabrera registered the same
in the office of the Register of Deeds on July 11, 1986.
Upon learning of this unfortunate turn of events, petitioner prevailed upon her
counsel, to seek the appropriate relief. On November 6, 1986 said counsel filed in
the Court of Appeals a petition for annulment of judgment calling attention to the
unjust enrichment of private respondent in securing the transfer in its name of the
property valued at P 2.5 million without justification; that when the complaint was
filed in court by private respondent against the petitioner, the parties came to an
agreement to settle their differences, the private respondent assuring petitioner
144
Legal Ethics
that the complaint it filed shall be withdrawn so petitioner advised her lawyer that
there was no longer any need to file an answer to the complaint; that on February
22, 1985, private respondent nevertheless filed an ex-partemotion to declare the
petitioner in default; that petitioner was deprived of the right to present her
defense through false pretenses, misrepresentation and fraud practiced upon her
by private respondent warranting the annulment of the judgment; that the
documentary evidence presented by private respondent, which served as the basis
of the decision, is falsified and tampered with; that as an example, the voucher
filed by petitioner, contains typewritten entries to the effect that the term of the
lease is for five (5) years to which petitioner never agreed, and that the option to
buy the property was given to the private respondent; that the fact that the
property worth P2 million was sold at public auction at a shockingly and
questionably low price of P376,500.00 is by itself a sufficient basis for annulling the
sale for being grossly inadequate to shock the conscience and understanding of
men, giving rise to a presumption of fraud. 6 Thus, it was prayed that a preliminary
mandatory injunction issue ordering the private respondent to surrender the
property to petitioner and to enjoin the former from further harassing and
threatening the peaceful possession of petitioner; and that after hearing, the
decision of the trial court in Civil Case No. Q-43811 and the sheriffs certificate of
sale7 be likewise annulled; that private respondent be adjudged to pay petitioner
no less than P500,000.00 actual and moral damages, as well as exemplary
damages and attorney's fees in the amount of P50,000.00, plus the costs of the
suit. 8
On February 2, 1987 an amended petition was filed by counsel for petitioner in the
Court of Appeals raising the additional issue that the decision is not supported by
the allegations in the pleadings or by the evidence submitted. 9
In due course, a decision was rendered by the Court of Appeals on November 29,
1989. 10 The appellate court made the following observations:
On the other hand, petitioner's above allegation of fraud supposedly
practiced upon her by Roberto V. Cabrera, Jr. is so improbable as to inspire
belief. For the Coronel Law Office had already entered its appearance as
petitioner's counsel by then, so that if it were true that Cabrera had
already agreed to the conditions imposed by petitioner, said law office
would have asked plaintiff to file the proper motion to dismiss or withdraw
complaint with the Court, and if plaintiff had refused to do so, it would
have filed defendant's answer anyway so that she would not be declared
in default. Or said law office would have prepared a compromise
agreement embodying the conditions imposed by their client in the lease
contract in question which plaintiff had allegedly already accepted, so that
the same could have been submitted to the Court and judgment on a
compromise could be entered. All these, any conscientious lawyer of
lesser stature than the Coronel Law Office, headed by no less than a
former law dean, Dean Antonio Coronel, or even a new member of the bar,
would normally have done under the circumstances to protect the
interests of their client, instead of leaving it to the initiative of plaintiff to
withdraw its complaint against defendant, as it had allegedly promised the
latter. Thus, it is our belief that this case is one of-pure and simple
negligence on the part of defendant's counsel who simply failed to file the
answer in behalf of defendant, But counsel's negligence does not stop
here. For after it had been furnished with copy of the decision by default
against defendant, it should then have appealed therefrom or file a
petition from relief from the order declaring their client in default or from
the judgment by default. [sic] Again, counsel negligently failed to do
either. Hence, defendant is bound by the acts of her counsel in this case
and cannot be heard to complain that the result might have been different
if it had proceeded differently (Pulido vs. C.A., 122 SCRA 63; Ayllon vs.
Sevilla, 156 SCRA 257, among other cases). And the rationale of this rule
is obvious and clear. For "if such grounds were to be admitted as reasons
for opening cases, there would never be an end to a suit so long as new
counsel could be employed who could allege and show that the prior
counsel had not been sufficiently diligent, or experienced, or learned"
(Fernandez vs. Tan Tiong Tick, 1 SCRA 1138). 11
Despite these findings, the appellate court nevertheless dismissed the petition for
annulment of judgment with costs against the petitioner. A copy of the said
judgment appears to have been served on counsel for the petitioner. However,
said counsel did not file a motion for reconsideration or appeal therefrom, so it
became final.
It was only in March 1990 when the secretary of counsel for petitioner informed the
latter of the adverse decision against her only after persistent telephone inquiries
of the petitioner.
Hence, petitioner secured the services of another lawyer who filed this petition
for certiorari under Rule 65 of the Rules of Court wherein it is prayed that the
judgment of the Regional Trial Court of Quezon City in Civil Case No. Q-43811, the
decision of the Court of Appeals in CA-G.R. No. 10487 and the sheriff's sale at
public auction of the property in question be annulled, as the same are attributable
to the gross negligence and inefficiency of petitioner's counsel, whose blunder
cannot bind the petitioner who was deprived of due process thereby. It is further
prayed that private respondent Cathay House, Inc. be ordered to reconvey to
petitioner the property covered by TCT No. 270814, which was sold at public
auction to Roberto V. Cabrera, Jr. and in whose favor its ownership was
consolidated, and thereafter ownership appears to have been transferred to
private respondent.
The petition is impressed with merit.
Petitioner's counsel is a well-known practicing lawyer and dean of a law school. It is
to be expected that he would extend the highest quality of service as a lawyer to
the petitioner. Unfortunately, counsel appears to have abandoned the cause of
petitioner. After agreeing to defend the petitioner in the civil case filed against her
by private respondent, said counsel did nothing more than enter his appearance
and seek for an extension of time to file the answer. Nevertheless, he failed to file
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Legal Ethics
the answer. Hence, petitioner was declared in default on motion of private
respondent's counsel. After the evidence of private respondent was received ex-
parte, a judgment was rendered by the trial court.
Said counsel for petitioner received a copy of the judgment but took no steps to
have the same set aside or to appeal therefrom. Thus, the judgment became final
and executory. The property of petitioner was sold at public auction to satisfy the
judgment in favor of private respondent. The property was sold to Roberto V.
Cabrera, Jr., representative of private respondent, and a certificate of sale was
issued in his favor. The redemption period expired after one year so a final deed of
sale was issued by the sheriff in favor of Cabrera, who in turn appears to have
transferred the same to private respondent.
During all the time, the petitioner was abroad. When, upon her return, she learned,
to her great shock, what happened to her case and property, she nevertheless did
not lose faith in her counsel. She still asked Atty. Coronel to take such appropriate
action possible under the circumstances.
As above related, said counsel filed a petition for annulment of judgment and its
amendment in the Court of Appeals.1wphi1 But that was all he did. After an
adverse judgment was rendered against petitioner, of which counsel was duly
notified, said counsel did not inform the petitioner about it. He did not even ask for
a reconsideration thereof, or file a petition for review before this Court. Thus, the
judgment became final. It was only upon repeated telephone inquiries of petitioner
that she learned from the secretary of her counsel of the judgment that had
unfortunately become final.
A lawyer owes entire devotion to the interest of his client, warmth and zeal in the
maintenance and defense of his rights and the exertion of his utmost learning and
ability, to the end that nothing can be taken or withheld from his client except in
accordance with the law. He should present every remedy or defense authorized
by the law in support of his client's cause, regardless of his own personal views. In
the full discharge of his duties to his client, the lawyer should not be afraid of the
possibility that he may displease the judge or the general public. 12
Judged by the actuations of said counsel in this case, he has miserably failed in his
duty to exercise his utmost learning and ability in maintaining his client's
cause.13 It is not only a case of simple negligence as found by the appellate court,
but of reckless and gross negligence, so much so that his client was deprived of
her property without due process of law.
In People's Homesite & Housing Corp. vs. Tiongco and Escasa, 14
this Court ruled as
follows:
Procedural technicality should not be made a bar to the vindication of a
legitimate grievance. When such technicality deserts from being an aid to
justice, the courts are justified in excepting from its operation a particular
case. Where there was something fishy and suspicious about the
actuations of the former counsel of petitioner in the case at bar, in that he
did not given any significance at all to the processes of the court, which
has proven prejudicial to the rights of said clients, under a lame and flimsy
explanation that the court's processes just escaped his attention, it is held
that said lawyer deprived his clients of their day in court, thus entitling
said clients to petition for relief from judgment despite the lapse of the
reglementary period for filing said period for filing said petition.
In Escudero vs. Judge Dulay, 15 this Court, in holding that the counsel's blunder in
procedure is an exception to the rule that the client is bound by the mistakes of
counsel, made the following disquisition:
Petitioners contend, through their new counsel, that the judgments
rendered against them by the respondent court are null and void, because
they were therein deprived of their day in court and divested of their
property without due process of law, through the gross ignorance, mistake
and negligence of their previous counsel. They acknowledge that, while as
a rule, clients are bound by the mistake of their counsel, the rule should
not be applied automatically to their case, as their trial counsel's blunder
in procedure and gross ignorance of existing jurisprudence changed their
cause of action and violated their substantial rights.
We are impressed with petitioner's contentions.
Ordinarily, a special civil action under Rule 65 of the Rules of Court will not
be a substitute or cure for failure to file a timely petition for review
on certiorari (appeal) under Rule 45 of the Rules. Where, however, the
application of the rule will result in a manifest failure or miscarriage of
justice, the rule may be relaxed.
xxx xxx xxx
While this Court is cognizant of the rule that, generally, a client will suffer
the consequences of the negligence, mistake or lack of competence of his
counsel, in the interest of justice and equity, exceptions may be made to
such rule, in accordance with the facts and circumstances of each case.
Adherence to the general rule would, in the instant case, result in the
outright deprivation of their property through a technicality.
In its questioned decision dated November 19, 1989 the Court of Appeals found, in
no uncertain terms, the negligence of the then counsel for petitioner when he
failed to file the proper motion to dismiss or to draw a compromise agreement if it
was true that they agreed on a settlement of the case; or in simply filing an
answer; and that after having been furnished a copy of the decision by the court
he failed to appeal therefrom or to file a petition for relief from the order declaring
petitioner in default. In all these instances the appellate court found said counsel
negligent but his acts were held to bind his client, petitioner herein, nevertheless.
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Legal Ethics
The Court disagrees and finds that the negligence of counsel in this case appears
to be so gross and inexcusable. This was compounded by the fact, that after
petitioner gave said counsel another chance to make up for his omissions by
asking him to file a petition for annulment of the judgment in the appellate court,
again counsel abandoned the case of petitioner in that after he received a copy of
the adverse judgment of the appellate court, he did not do anything to save the
situation or inform his client of the judgment. He allowed the judgment to lapse
and become final. Such reckless and gross negligence should not be allowed to
bind the petitioner. Petitioner was thereby effectively deprived of her day in court.

Thus, We have before Us a case where to enforce an alleged lease agreement of

the property of petitioner, private respondent went to court, and that because of
the gross negligence of the counsel for the petitioner, she lost the case as well as
the title and ownership of the property, which is worth millions. The mere lessee
then now became the owner of the property. Its true owner then, the petitioner,
now is consigned to penury all because her lawyer appear to have abandoned her
case not once but repeatedly.

The Court cannot allow such a grave injustice to prevail. It cannot tolerate such
unjust enrichment of the private respondent at the expense of the petitioner. The
situation is aggravated by the fact that said counsel is a well-known practicing
lawyer and the dean of a law school as the Court at the beginning of this discourse
observed. His competence should be beyond cavil. Thus, there appears to be no
cogent excuse for his repeated negligence and inaction. His lack of devotion to
duty is so gross and palpable that this Court must come to the aid of his distraught
client, the petitioner herein.

As member of the Philippine Bar he owes complete fidelity to the cause of his
client. He should give adequate attention, care and time to his cases. This is the
reason why a practicing lawyer should accept only so many cases he can afford to
handle. And once he agrees to handle a case, he should undertake the task with
dedication and care. If he should do any less, then he is not true to his oath as a
lawyer.

WHEREFORE, the petition is GRANTED and the questioned decision of the Regional
Trial Court of Quezon City dated March 25, 1985 in Civil Case No. Q-43811; the
decision of the Court of Appeals dated November 29, 1989 in CA-G.R. No. SP-
10487; the Sheriff 's Certificate of Sale dated June 27, 1985 of the property in
question; and the subsequent final deed of sale covering the same property, are all
hereby declared null and void. Private respondent New Cathay House, Inc. is
directed to reconvey said property to the petitioner, and the Register of Deeds is
ordered to cancel the registration of said property in the name of private
respondent and to issue a new one in the name of petitioner. Costs against private
respondent. Said counsel for petitioner is hereby required to show cause within ten
(10) days from notice why he should not be held administratively liable for his acts
and omissions hereinabove described in this decision.

SO ORDERED.

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Legal Ethics
ROSITA TAN, petitioner, vs., ATTY. JOSE L. LAPAK, respondent.
This is a complaint filed by Rosita Tan against Atty. Jose L. Lapak for
misconduct, based on respondents failure to file with this Court a petition for
review on certiorari of a resolution of the Court of Appeals dismissing
complainants appeal. Complainant alleged that despite the fact that this Court
had granted respondent an extension of the time to file the petition for review
on certiorari and she had paid respondent his fee, the latter nonetheless failed
to file the petition in this Court. Complainants letter, dated January 10, 1991,
addressed to then Chief Justice Marcelo B. Fernan, stated:
Ako po ay sumusulat sa iyo upang ihingi ng tulong ang aking suliranin na may
kaugnayan sa aking kaso, G.R. No. 93707 ROSITA TAN v. CA, et al. na dahilan
sa kapabayaan ng aking abogado na si Atty. Jose Lapak ay hindi nakapagfile
ng Certiorari nasa ngayon kanyang inihihinging palugit ay naibigay naman, at
ako po ay nagbigay naman ng halagang P4,000.00 upang gawain lamang ang
petition sa pagrerepaso ng Certiorari subalit inuulit pang hindi gawain.
Kgg. Na Chief Justice ako poy pinaasa lamang ng aking abogado na wala man
lamang nagawa kung ano ang nararapat. Ako naman ay isang walang
karanasan sa bagay na ito ay naniwala at naghintay. Nang makausap ko po
siya ay aking tinapat kung ano na at walang nadating na resulta sa ginawa
niya ang sagot sa aking maghintay na lamang daw ako. Ngunit ng ako po ay
pumunta sa Maynila at napadaan ako sa Korte Suprema saka ko pa lamang
napag-alaman na ang aking abogado ay hindi nakapaggawa ng brief ng
Certiorari at kaya napawalaan ng bisa ang aking apelasyon.
Akin pong naisip na idulog ang aking kaapihan sa Pangulo ng IBP ng
Camarines Norte ang mga bagay na ito ang sagot po sa aking ay maari akong
maghain ng demanda laban sa aking abogado na si Atty. Jose L. Lapak ngunit
ako po ay mahirap lamang at isa pa wala akong matutustos sa aking
abogado. Isa pa po wala akong pera at sapat na pinag-aralan kaya po hindi ko
alam kung sino ang aking dudulungan para tumulong sa mahihirap. Kaya
naisip ko pong sumulat sa opisina ninyo, para ihain ang aking karaingan.Kung
inyo pong mamarapatin ako ay humihingi ng tulong sa iyo bilang
pinakamataas na hustisya ang aking kaapihan.
Respondent denied the allegations against him. In his manifestation and
comment, dated March 4, 1991, he contended:
a) Ms. Rosita Tan was formerly represented by Atty. Juanito Subia in
Civil Case No. 5295, Rosita Tan vs. Wilfredo Enriquez before the
Regional Trial Court of Camarines Norte; said case was dismissed
due to failure of Rosita Tan and his (sic) counsel to appear during
the scheduled Pre-Trial of the case; . . .said Order of dismissal was
however reconsidered;
b) On November 11, 1986, Atty. Marciano C. Dating, Jr. entered his
appearance for the said Rosita Tan as her original counsel, Atty.
Juanito Subia, had withdrawn for reasons only known to her; . .
.Atty. Marciano C. Dating, Jr. filed an Amended Complaint;
c) That on September 20, 1988, the Court, through Hon. Luis
Dictado, who heard the case, rendered a decision dismissing
Rosita Tans complaint;
d) That on October 13, 1988, Atty. Dating, Rosita Tans counsel,
appealed from the adverse decision against her to the Court of
Appeals;
e) That Atty. Marciano Dating also withdrew later as Rosita Tans
counsel and certain Leopoldo P. San Buenaventura entered his
appearance as new counsel for the said Rosita Tan in the
appealed case before the Court of Appeals which was docketed
as C.A. G.R. CV No. 20669;
f) On October 26, 1989, Atty. Leopoldo E. San Buenaventura filed a
Motion for Extension of Time to File Brief for Rosita Tan; however,
for reasons only known to said lawyer, he failed to file his
Appellants Brief; hence, on February 20, 1990, the Court of
Appeals issued a Resolution dismissing the appeal for failure of
Rosita Tans counsel to file Appellants Brief despite extension of
time granted to him;
g) That upon receipt by Ms. Rosita Tan of said Resolution dismissing
her appeal due to the failure of her Manila lawyer to file
Appellants Brief, she came to the law office of undersigned
counsel in the company of her friend, Mrs. Gloria Gatan, to
employ the latters services to seek reconsideration of the Order
of dismissal and file Appellants Brief to enable her to pursue her
appeal; Rosita employed the legal services of undersigned
counsel not to file a Petition for Review but to seek
reconsideration of the order of dismissal of her appeal;
considering then that she does not have the papers to the case
on appeal, Rosita Tan agreed to pay counsel P5,000.00 to go to
Manila, study the records of the case in the Court of Appeals, file
a Motion for Reconsideration and prepare Appellants Brief for her;
she was able to pay P3,000.00 only instead of P5,000.00
promising to pay the balance later; consequently, the
undersigned counsel filed an URGENT MOTION FOR
RECONSIDERATION with the Court of Appeals.;
h) Unfortunately, the Court of Appeals denied said Motion for
Reconsideration in a Resolution promulgated on May 2, 1990 .;
I) That upon receipt by the undersigned counsel of said Resolution of
the Court of Appeals denying the Motion for Reconsideration, the
undersigned counsel summoned the appellant Rosita Tan and
requested her to bring the balance of P2,000.00 so that a Petition
for Review on Certiorari could be filed with the Supreme Court;
however, the said appellant Rosita Tan upon knowing of the
adverse Resolution of the Court of Appeals became apathetic and
when she came to the law office of the undersigned she
expressed her misgivings of bringing the case to the Supreme
Court and told counsel that she has no more money; despite her
indifference and lukewarm attitude, the undersigned counsel filed
a Motion for Extension of Time to file a Petition for Review with
the Supreme Court paying the docket fees therefore in behalf of
said appellant; in the meantime the undersigned counsel went to
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Legal Ethics
Manila to make researches preparatory to the filing of the Petition
for Review with the Supreme Court; The undersigned counsel
then requested the appellant Rosita Tan to pay him the balance of
P2,000.00 as per agreement for him to be able to prepare the
Petition for review in Manila and file it with the Supreme Court;
but said appellant hesitantly paid only P1,000.00 which was her
only money available promising to pay the balance of P1,000.00
later; therafter, the undersigned counsel went to the Court of
Appeals to get certified true copies of the Resolution denying the
Motion for Reconsideration; he then learned that there was
already an Entry of Judgment in the case as the Resolution
dismissing the appeal had already become final; the undersigned
then informed Rosita Tan of her misfortune and informed her that
he would study the propriety of filing an action for annulment of
the decision because of his discovery of an anomaly which
resulted in a mistrial; because of continuous setbacks she
suffered from beginning to end; Rosita Tan said she had lost all
hope and was unwilling to go any further; she then demanded
the refund of P4,000.00 from the undersigned; when the
undersigned gave back the P1,000.00 he received from her, she
refused to receive the amount insisting that the whole amount of
P4,000.00 be returned to her claiming that the undersigned
counsel had not done anything for her anyway; hence the
misunderstanding which culminated in her sending a letter
complaint to the Honorable Chief Justice of the Supreme Court.
The case was referred to the Integrated Bar of the Philippines for
investigation, report, and recommendation. On July 29, 2000, the IBP passed a
resolution aadopting the report and recommendation of its Investigating
Commissioner Jaime M. Vibar that respondent be reprimanded and ordered to
restitute to complainant the amount of P1,000.00.
In finding respondent guilty of betrayal of his clients trust and confidence,
the investigating commissioner said in his report:
Regardless of the agreement on the total amount of fees, it is clear that
respondent committed to prepare and file a petition with the Supreme Court
and for which he received P1,000.00 from the complainant (annex B, Sagot,
dated May 31, 1991). Despite such commitment, he failed to file the petition.
It is not explained why the payment of PHP1,000.00 was made by complainant
for the petition on August 8, 1990. At that time, the period to file the petition
for review as contemplated by respondent and which was the subject of an
extension motion, dated May 18, 1990, filed with and granted by the Hon.
Supreme Court, had already expired. It is to be noted that respondents motion
sought an extension of thirty (30) days from May 26, 1990 or up to June 25,
1990. It would appear that respondent received P1,000.00 on August 8, 1990
from complainant at a time when the remedy of a review of the dismissal
order of the Court of Appeals was no longer available. Yet, complainant was
never informed or favored with an explanation that a petition for review was
no longer possible, or perhaps that another remedy was still open to the
complainant. To aggravate his situation, respondent alleges in his comment to
the complaint (at page 3) that after he received P1,000.00 from the
complainant he immediately went to the Court of Appeals to get certified
copies of the resolution denying his motion for reconsideration and that
thereat he discovered that an Entry of Judgment had already been
issued. Respondent should have known that when he went to the Court of
Appeals after reciept of P1,000.00, or after August 8, 1990. The period he
requested from the Hon. Supreme Court to institute the petition for review had
long expired.
But the silence of respondent at the time of receipt of the amount of
P1,000.00 on august 8, 1990 and the petition with the Supreme Court was no
longer an available remedy smacks of a betrayal of a clients cause and the
trust and confidence reposed in him. If indeed his clients cause was no longer
worth fighting for, the lawyer should not have demanded a feeand made
representations that there is merit in her case. He should have dealt with his
client with all candor and honesty by informing her that on August 8, 1990 the
period to file the petition had already expired.
Complainant has been a victim of negligence on the part of the law firm of
San Buenaventura, et al., or particularly Atty. Leopoldo San Buenaventura, for
their failure to file the Appellants Brief in behalf of complainant within the
period allowed. The dismissal of the appeal gave complainant a slim chance, if
not a futile remedy, with the Hon. Supreme Court. Atty. Lapak would have
been shackled in any disquisition for complainants cause considering that she
alredy lost in the trial court and her appeal had been dismissed without any
argument being advanced in her behalf. Atty. Lapak should have been candid
with complainant. He should not have asked more at a time when nothing
fruitful could be done anymore.
With respect to respondents offer to return the amount of P1,000.00 paid
to him to file the petition for review on certiorari, the investigating
commissioner stated:
[T]his willingness to return P1,000.00 does not erase his breach of the Code of
Professional Responsibility for lacking in honesty, diligence and fairness in
dealing with his client as shown by the very fact that he received the amount
at a time when he could no longer file the petition with the Supreme
Court. His client deserved the information that on such date the decision of
the Court of Appeals was already final. Respondents actuation of filing an
extension motion with the Hon. Supreme Court and yet not filing an extension
motion with the Hon. Supreme Court and yet not filing the pleading within the
period requested and granted speaks well of respondents lack of candor,
honesty and judicious conduct in dealing with his client or in the handling of
his case. This conduct violates Canon 17, & Rule 18.03, Rule 18.04 of Canon
18 of the Code of Professional Responsibility.
The investigating commissioner recommends that respondent only be
reprimanded considering his old age and the negligent conduct of
complainants previous counsel. The commissioner reasoned that it was the
negligent conduct of complainants previous counsel which caused the
dismissal of the appeal and rendered inutile any further legal action before the
Supreme Court.
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Legal Ethics
The investigating commissioners findings are supported by the
evidence. However, we hold that the appropriate sanction should be
reprimand and order respondent to return the amount of P4,000.00 which he
received from complainant.
Respondent advances two reasons why he did not file a petition for
review on certiorari in this Court, to wit: (1) because he found that the
resolution of the Court of Appeals to be appealed to the Supreme Court had
become final on May 27, 1990 and (2) because complainant failed to pay the
balance of P1,000.00 of his fee.
First. With respect to the first reason, Rule 18.03 thereof which provides
that A lawyer shall not neglect a legal matter entrusted to him and his
negligence in connection therewith shall render him liable. Respondent alleges
that upon receipt of the Court of Appeals resolution denying the motion for
reconsideration which he had filed, he summoned complainant and told her
that it was imperative that a petition for review on certiorari be filed with this
Court.
At this point, it is important to note the material dates on record to
determine if respondents justification for his failure to file a petition for review
is tenable. The resolution of the Court of Appeals dismissing complainants
appeal for failure to file an appellants brief was promulgated on February 20,
1990. Within the reglementary period for filing an appeal, respondent filed a
motion for reconsideration which the Court of Appeals denied on May 2,
1990. Respondent received a copy of this resolution (denying the motion for
reconsideration) on May 11, 1990 so that respondent had 15 days from May
11, 1990, or until May 26, within which to file a petition for review on certiorari
with the Supreme Court. Respondent therafter asked for, and was granted by
this Court, an extension of 30 days counted from the reglementary period, or
until June 25, 1990, within which to file the petition. As respondent failed to
file the petition within the extended period, the Supreme Court issued a
resolution on August 20, 1990 declaring the judgment sought to be reviewed
to have become final and executory.
It is not true, therefore, that respondent failed to file a petition for review
on certiorari because the judgment sought to be reviewed had become final
on May 27, 1990.
When respondent summoned complainant and told her that in view of the
denial of his motion for reconsideration it was imperative that a petition for
review be filed with this Court, the resolution of the Court of Appeals was not
yet final. In fact, this Court granted respondents motion for extension of time
to file the petition for review, because the resolution of the Court of Appeals
denying the motion for reconsideration had not yet attained finality. Despite
having been granted an extension, however, respondent failed to file the
petition within the reglementary period. This constitutes a serious
breach. Rule 12.03 of the Code of Professional Responsibility provides that A
lawyer shall not, after obtaining extensions of time to file pleadings,
memoranda or briefs, let the period lapse without submitting the same or
offering an explanation for his failure to do so.
The filing of a petition for review is similar to the filing of an appellants or
appellees brief. In Mariveles v. Mallari,[1] it was held that the lawyers failure to
file an appellants brief despite numerous extensions of time to file the same
constitutes a blatant violation of Rule 12.03 of the Code of Professional
Responsibility. As already noted, this Rule provides that after obtaining
extensions of time to file pleadings, memoranda, or briefs, a lawyer should not
let the period lapse without submitting the same or offering an explanation for
his failure to do so.
In Re: Santiago F. Marcos,[2] the Court considered a lawyers failure to file
a brief for his client as amounting to inexcusable negligence. Said the Court:
An attorney is bound to protect his clients interest to the best of his ability and
with utmost diligence. (Del Rosario v. CA, 114 SCRA 159). A failure to file a
brief for his client certainly constitutes inexcusable negligence on his
part. (People v. 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. (People v.
Daban, 43 SCRA 185; People v. Estocada, 43 SCRA 515).
At any rate, even assuming that the resolution of the Court of Appeals
expired on May 27, 1990, he should not have asked on August, 8, 1990 for the
balance of P5,000.00 which complainant had agreed to pay since the
resolution had already become final at that time. As the investigating
commissioner pointed out in his report:
To aggravate his situation, respondent alleges in his comment to the
complaint (at page 3) that after he received P1,000.00 from the complainant
he immediately went to the Court of Appeals to get certified copies of the
resolution denying his motion for reconsideration and that thereat he
discovered that an Entry of Judgment had already been issued. Respondent
should have known that when he went to the Court of Appeals after receipt of
P1,000.00, or after August 8, 1990, (t)he period he requested from the Hon.
Supreme Court to institute the petition for review had long expired. [3]
It would, therefore, appear that if an entry of judgment had been made in
the Court of Appeals, it was precisely because respondent failed to file a
petition for review with the Supreme Court within the extended period granted
him. He cannot, therefore, excuse his breach of the duty to his client by his
own negligent act.
Second. Respondent asserts that complainant only engaged his services
to pursue her appeal in the Court of Appeals which was dismissed due to the
failure of complainants former counsel, Atty. Leopoldo E. San Buenaventura, to
file the appellants brief. Whether or not he was engaged to represent
complainant only in the Court of Appeals and not also in the Supreme Court is
immaterial. For the fact is that respondent already commenced the
representation of complainant in the Supreme Court by filing a motion for
extension of the time to file a petition for review. In fact, according to
respondent, upon receipt of the Court of Appeals resolution denying
reconsideration of the dismissal of complainants appeal, respondent
summoned complainant to his office precisely to tell her that it was imperative
that a petition for review be filed with the Supreme Court. Once he took the
cudgels of his clients case and assured her that he would represent her in the
Supreme Court, respondent owed it to his client to do his utmost to ensure
that every remedy allowed by law was availed of. As this Court has held:
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Legal Ethics
It is axiomatic that no lawyer is obliged to act either as adviser or advocate for
every person who may wish to become his client. He has the right to decline
employment, subject, however, to Canon 14 of the Code of Professional
Responsibility. Once he agrees to take up the cause of a client, the lawyer
owes fidelity to such cause and must always be mindful of the trust and
confidence reposed in him. He must serve the client with competence and
diligence, and champion the latters cause with wholehearted fidelity, care and
devotion. Elsewise stated, he owes entire devotion to the interest of his client,
warm zeal in the maintenance and defense of his clients rights, and the
exertion of his utmost learning and ability to the end that nothing be taken or
withheld from his client, saved by the rules of law legally applied. This simply
means that his cleint is entitled to the benefit of any and every remedy and
defense that is authorized by the law of the land and he may expect his
lawyer to assert every such remedy or defense.[4]
Third. Nor can respondent excuse himself for his failure to file the petition
for review on certiorari on the ground that complainant failed to pay what she
promised to pay. Complainant agreed to pay P5,000.00. Of this amount, she
paid respondent P3,000.00 and later P1,000.00, leaving only a balance of
P1,000.00. Even if this balance had not been paid, this fact was not sufficient
to justify the failure of respondent to comply with his professional obligation
which does not depend for compliance on the payment of a lawyers fees.
As respondent utterly failed to comply with his professional commitment
to complainant, it is, therefore, not just for him to keep the legal fee of
P4,000.00 which complainant paid him. He has not rightfully earned that fee
and should return it to complainant.
WHEREFORE, Atty. Jose L. Lapak is REPRIMANDED and ORDERED to
refund to complainant Rosita Tan the amount of P4,000.00. He is admonished
henceforth to exercise greater care and diligence in the performance of his
duties towards his clients and the courts and warned that repetition of the
same or similar offense will be more severely dealt with.
SO ORDERED.

151
Legal Ethics
MA. GINA L. FRANCISCO, JOSEPHINE S. TAN and CARLOS M.
JOAQUIN, Complainants,
vs.
ATTY. JAIME JUANITO P. PORTUGAL, Respondent.
Complainants filed before this Court an affidavit-complaint1 on 15 August 2003
against Atty. Jaime Juanito P. Portugal (respondent) for violation of the
Lawyers Oath, gross misconduct, and gross negligence. Complainants are
related to petitioners in G.R. No. 152621-23 entitled SPO1 Ernest C. Francisco,
SPO1 Donato F. Tan and PO3 Rolando M. Joaquin v. People of the Philippines, in
whose behalf respondent filed the Petition for Review on Certiorari (Ad
Cautelam) in the case.
The complaint against respondent originated from his alleged mishandling of
the above-mentioned petition which eventually led to its denial with finality by
this Court to the prejudice of petitioners therein.
The facts are as follows:
On 21 March 1994, SPO1 Ernesto C. Francisco, SPO1 Donato F. Tan and PO3
Rolando M. Joaquin (eventually petitioners in G.R. No. 152621-23, collectively
referred to herein as the accused) were involved in a shooting incident which
resulted in the death of two individuals and the serious injury of another. As a
result, Informations were filed against them before the Sandiganbayan for
murder and frustrated murder. The accused pleaded not guilty and trial
ensued. After due trial, the Sandiganbayan 2 found the accused guilty of two
counts of homicide and one count of attempted homicide.
At that juncture, complainants engaged the services of herein respondent for
the accused. Respondent then filed a Motion for Reconsideration with the
Sandiganbayan but it was denied in a Resolution dated 21 August 2001.
Unfazed by the denial, respondent filed an Urgent Motion for Leave to File
Second Motion for Reconsideration, with the attached Second Motion for
Reconsideration.3 Pending resolution by the Sandiganbayan, respondent also
filed with this Court a Petition for Review on Certiorari (Ad Cautelam) on 3 May
2002.
Thereafter, complainants never heard from respondent again despite the
frequent telephone calls they made to his office. When respondent did not
return their phone inquiries, complainants went to respondents last known
address only to find out that he had moved out without any forwarding
address.
More than a year after the petition was filed, complainants were constrained
to personally verify the status of the ad cautelam petition as they had neither
news from respondent about the case nor knowledge of his whereabouts.
They were shocked to discover that the Court had already issued a
Resolution4 dated 3 July 2002, denying the petition for late filing and non-
payment of docket fees.
Complainants also learned that the said Resolution had attained finality and
warrants of arrest5 had already been issued against the accused because
respondent, whose whereabouts remained unknown, did nothing to prevent
the reglementary period for seeking reconsideration from lapsing.
In his Comment,6 respondent states that it is of vital significance that the
Court notes that he was not the original counsel of the accused. He only met
the accused during the promulgation of the Sandiganbayan decision
convicting the accused of two counts of homicide and one count of attempted
homicide. He was merely requested by the original counsel to be on hand,
assist the accused, and be present at the promulgation of the Sandiganbayan
decision.
Respondent claims that there was no formal engagement undertaken by the
parties. But only because of his sincere effort and in true spirit of the Lawyers
Oath did he file the Motion for Reconsideration. Though admitting its highly
irregular character, respondent also made informal but urgent and personal
representation with the members of the Division of the Sandiganbayan who
promulgated the decision of conviction. He asserts that because of all the
efforts he put into the case of the accused, his other professional obligations
were neglected and that all these were done without proper and adequate
remuneration.
As to the ad cautelam petition, respondent maintains that it was filed on time.
He stresses that the last day of filing of the petition was on 3 April 2002 and
on that very day, he filed with this Court a Motion for Extension of Time to File
Petition for Review,7 seeking an additional thirty (30) days to file the petition.
Subsequently, on 3 May 2002, he filed the petition by registered mail and paid
the corresponding docket fees. Hence, so he concludes, it was filed within the
reglementary period.
Soon thereafter, respondent recounted all the "herculean" efforts he made in
assisting the accused for almost a year after the promulgation of the
Sandiganbayan decision. He considered the fact that it was a case he had just
inherited from the original counsel; the effect of his handling the case on his
other equally important professional obligations; the lack of adequate financial
consideration for handling the case; and his plans to travel to the United
States to explore further professional opportunities. He then decided to
152
Legal Ethics
formally withdraw as counsel for the accused. He wrote a letter to PO3
Rolando Joaquin (PO3 Joaquin), who served as the contact person between
respondent and complainants, explaining his decision to withdraw as their
counsel, and attaching the Notice to Withdraw which respondent instructed
the accused to sign and file with the Court. He sent the letter through
registered mail but unfortunately, he could not locate the registry receipt
issued for the letter.
Respondent states that he has asked the accused that he be discharged from
the case and endorsed the Notice of Withdrawal to PO3 Joaquin for the latter
to file with the Court. Unfortunately, PO3 Joaquin did not do so, as he was
keenly aware that it would be difficult to find a new counsel who would be as
equally accommodating as respondent. Respondent suggests this might have
been the reason for the several calls complainants made to his office.
On 9 February 2004, the Court resolved to refer the matter to the Integrated
Bar of the Philippines (IBP) for investigation, report and
recommendation.1awph!l.net
The case was assigned to Investigating Commissioner Leland R. Villadolid, Jr.
(Commissioner Villadolid) who sent notices of hearing to the parties but of the
three complainants, only complainant Carlos Joaquin appeared. Thus, in the
mandatory conference held, the other two complainants were declared as
having waived their rights to further participate in the IBP proceedings. 8
The parties were directed to file their respective position papers and on 27
May 2005, Commissioner Villadolid submitted his Report and
Recommendation finding respondent guilty of violation of the Code of
Professional Responsibility9 and recommended the imposition of penalty
ranging from reprimand to suspension of six (6) months.1awph!l.net10 On 12
November 2005, the Board of Directors of the IBP resolved to adopt and
approve Commissioner Villadolids recommendation to find respondent guilty
and specifically to recommend his suspension for six (6) months as penalty.
The only issue to be resolved in the case at bar is, considering all the facts
presented, whether respondent committed gross negligence or misconduct in
handling G.R. No. 152621-23, which eventually led to the ad
cautelam petitions dismissal with finality.
After careful consideration of the records of the case, the Court finds the
suspension recommended by the IBP proper.
In a criminal case like that handled by respondent in behalf of the accused,
respondent has a higher duty to be circumspect in defending the accused for
it is not only the property of the accused which stands to be lost but more
importantly, their right to their life and liberty. As held in Regala v.
Sandiganbayan:11
Thus, in the creation of lawyer-client relationship, there are rules, ethical
conduct and duties that breathe life into it, among those, the fiduciary duty to
his client which is of very delicate, exacting and confidential character,
requiring a very high degree of fidelity and good faith, that is required by
reason of necessity and public interest x x x .
It is also the strict sense of fidelity of a lawyer to his client that distinguishes
him from any other profession in society. x x x12
At the onset, the Court takes notice that the ad cautelam petition was actually
filed out of time. Though respondent filed with the Sandiganbayan an Urgent
Motion for Leave to File Second Motion for Reconsideration with the attached
Second Motion for Reconsideration, he should have known that a second
motion for reconsideration is a prohibited pleading 13 and it rests on the sound
discretion of the Sandiganbayan to admit it or not. Thus, in effect, the motion
did not toll the reglementary period to appeal. Having failed to do so, the
accused had already lost their right to appeal long before respondent filed his
motion for extension. Therefore, respondent cannot now say he filed the ad
cautelam petition on time. Also important to note is the allegation of
complainants that the Sandiganbayan denied the second motion for
reconsideration in its Resolution dated 7 February 2002. This respondent does
not dispute.
As to respondents conduct in dealing with the accused and complainants, he
definitely fell short of the high standard of assiduousness that a counsel must
perform to safeguard the rights of his clients. As aptly observed by
Commissioner Villadolid, respondent had not been quite candid in his dealings
with the accused or complainants. The Court notes that though respondent
represented to the accused that he had changed his office address, still, from
the examination of the pleadings14 he filed, it can be gleaned that all of the
pleadings have the same mailing address as that known to complainants.
Presumably, at some point, respondents office would have received the
Courts Resolution dismissing the petition. Of course, the prudent step to take
in that situation was to at least inform the client of the adverse resolution
since they had constantly called respondents office to check the status of the
case. Even when he knew that complainants had been calling his office, he
opted not to return their calls.
Respondent professed an inkling that the several phone calls of complainants
may have been about the letter he sent PO3 Joaquin regarding his desire to be
153
Legal Ethics
discharged as counsel of the case. However, though aware of such likelihood,
respondent still did not return their calls. Had he done so, he and
complainants could have threshed out all unresolved matters between them.
Had respondent truly intended to withdraw his appearance for the accused, he
as a lawyer who is presumably steeped in court procedures and practices,
should have filed the notice of withdrawal himself instead of the accused. At
the very least, he should have informed this Court through the appropriate
manifestation that he had already given instructions to his clients on the
proper way to go about the filing of the Notice of Withdrawal, as suggested by
Commissioner Villadolid. In not so doing, he was negligent in handling the
case of the accused.
Certainly, respondent ought to know that he was the one who should have
filed the Notice to Withdraw and not the accused. His tale that he sent a
registered letter to the accused and gave them instructions on how to go
about respondents withdrawal from the case defies credulity. It should have
been respondent who undertook the appropriate measures for the proper
withdrawal of his representation. He should not have relied on his client to do
it for him if such was truly the case. Without the presentation of the alleged
registry receipt (or the return card, which confirms the receipt of the mail by
the recipient) of the letter he allegedly sent to PO3 Joaquin, the Court cannot
lend credence to respondents naked claim, especially so that complainants
have been resolute in their stand that they did not hear from respondent after
the latter had filed the ad cautelam petition. He could relieve himself of his
responsibility as counsel only first by securing the written conformity of the
accused and filing it with the court pursuant to Rule 138, Section 26 of the
Rules of Court.15
The rule in this jurisdiction is that a client has the absolute right to terminate
the attorney-client relation at anytime with or without cause. The right of an
attorney to withdraw or terminate the relation other than for sufficient cause
is, however, considerably restricted. Among the fundamental rules of ethics is
the principle that an attorney who undertakes to conduct an action impliedly
stipulates to carry it to its conclusion. He is not at liberty to abandon it without
reasonable cause. A lawyers right to withdraw from a case before its final
adjudication arises only from the clients written consent or from a good
cause.16
We agree with Commissioner Villadolid that the dismissal of the ad
cautelam petition was primarily due to the gross negligence of respondent.
The Court has stressed in Aromin v. Boncavil17 that:
Once he agrees to take up the cause of the client, the lawyer owes fidelity to
such cause and must always be mindful of the trust and confidence reposed in
him. He must serve the client with competence and diligence, and champion
the latters cause with wholehearted fidelity, care, and devotion. Elsewise
stated, he owes entire devotion to the interest of the client, warm zeal in the
maintenance and defense of his clients rights, and the exertion of the his
utmost learning and ability to the end that nothing be taken or withheld from
his client, save by the rules of law, legally applied. This simply means that his
client is entitled to the benefit of any and every remedy and defense that is
authorized by the law of the land and he may expect his lawyer to assert
every such remedy or defense. If much is demanded from an attorney, it is
because the entrusted privilege to practice law carries with it the correlative
duties not only to the client but also to the court, to the bar, and to the public.
A lawyer who performs his duty with diligence and candor not only protects
the interest of his client; he also serves the ends of justice, does honor to the
bar, and helps maintain the respect of the community to the legal
profession.18
Respondent has time and again stated that he did all the endeavors he
enumerated without adequate or proper remuneration. However,
complainants have sufficiently disputed such claim when they attached in
their position paper filed before the IBP a machine validated deposit slip in the
amount of P15,500.00 for the Metro Bank savings account of one Jaime
Portugal with account number 7186509273. 19 Respondent has neither
admitted nor denied having claimed the deposited amount.
The Court also rejects respondents claim that there was no formal
engagement between the parties and that he made all his efforts for the case
without adequate and proper consideration. In the words of then Justice
Panganiban (presently Chief Justice) in Burbe v. Atty. Magulta: 20
After agreeing to take up the cause of a client, a lawyer owes fidelity to both
cause and client, even if the client never paid any fee for the attorney-client
relationship. Lawyering is not a business; it is a profession in which duty of
public service, not money, is the primary consideration. 21
Also to the point is another case where this Court ruled, thus:
A written contract is not an essential element in the employment of an
attorney; the contract may be express or implied. To establish the relation, it
is sufficient that the advice and assistance of an attorney is sought and
received in any matter pertinent to his profession. x x x 22
Hence, even if respondent felt under-compensated in the case he undertook
to defend, his obligation embodied in the Lawyers Oath and the Code of
Professional Responsibility still remains unwavering. The zeal and the degree
of fervor in handling the case should neither diminish nor cease just because
of his perceived insufficiency of remuneration.
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Legal Ethics
Lastly, the Court does not appreciate the offensive appellation respondent
called the shooting incident that the accused was engaged in. He described
the incident, thus: "the accused police officers who had been convicted of
[h]omicide for the salvage of Froilan G. Cabiling and Jose M. Chua and
[a]ttempted [h]omicide of Mario C. Macato."23 Rule 14.0124 of the Code of
Professional Responsibility clearly directs lawyers not to discriminate clients as
to their belief of the guilt of the latter. It is ironic that it is the defense counsel
that actually branded his own clients as being the culprits that "salvaged" the
victims. Though he might think of his clients as that, still it is unprofessional to
be labeling an event as such when even the Sandiganbayan had not done so.

The IBP Board of Governors recommended the suspension of respondent for

six (6) months, the most severe penalty recommended by Commissioner
Villadolid, but did not explain why such penalty was justified. In a fairly recent
case where the lawyer failed to file an appeal brief which resulted to the
dismissal of the appeal of his client in the Court of Appeals, the Court imposed
upon the erring lawyer the penalty of three (3) months suspension. 25The
Court finds it fit to impose the same in the case at bar.

WHEREFORE, premises considered, respondent is hereby SUSPENDED from

the practice of law for three (3) months. Let a copy of the Resolution be
furnished the Bar Confidant for appropriate annotation in the record of
respondent.

SO ORDERED.

155
Legal Ethics
VERONICA S. SANTIAGO, BENJAMIN Q. HONTIVEROS, MR. SOCORRO F.
MANAS, and TRINIDAD NORDISTA, complainants,
vs.
ATTY. AMADO R. FOJAS, respondent.
In their letter of 8 September 1993, the complainants, former clients of the
respondent, pray that the latter be disbarred for "malpractice, neglect and
other offenses which may be discovered during the actual investigation of this
complaint." They attached thereto an Affidavit of Merit wherein they
specifically allege:
1. That we are Defendants-Appellates [sic] in the Court of
Appeals Case No. CA-G.N. CV No. 38153 of which to our
surprise lost unnecessarily the aforesaid Petition [sic]. A close
perusal of the case reveals the serious misconduct of our
attorney on record, Atty. Amado Fojas tantamount to
malpractice and negligence in the performance of his duty
obligation to us, to defend us in the aforesaid case. That the
said attorney without informing us the reason why and riding
high on the trust and confidence we repose on him either
abandoned, failed to act accordingly, or seriously neglected to
answer the civil complaint against us in the sala of Judge
Teresita Capulong Case No. 3526-V-91 Val. Metro Manila so
that we were deduced [sic] in default.
2. That under false pretenses Atty. Fojas assured us that
everything was in order. That he had already answered the
complaint so that in spite of the incessant demand for him to
give us a copy he continued to deny same to us. Only to
disclose later that he never answered it after all because
according to him he was a very busy man. Please refer to
Court of Appeals decision dated August 17, 1993.
3. That because of Atty. Amado Foja's neglect and malpractice
of law we lost the Judge Capulong case and our appeal to the
Court of Appeals. So that it is only proper that Atty. Fojas be
disciplined and disbarred in the practice of his profession.
In his Comment, the respondent admits his "mistake" in failing to file the
complainants' answer in Civil Case No. 3526-V-91, but he alleges that it was
cured by his filing of a motion for reconsideration, which was unfortunately
denied by the court. He asserts that Civil Case No. 3526-V-91 was a "losing
cause" for the complainants because it was based on the expulsion of the
plaintiff therein from the Far Eastern University Faculty Association (FEUFA)
which was declared unlawful in the final decision in NCR-OD-M-90-10-050.
Thus, "[t]he unfavorable judgment in the Regional Trial Court is not imputable
to [his] mistake but rather imputable to the merits of the case, i.e., the
decision in the Expulsion case wherein defendants (complainants herein)
illegally removed from the union (FEUFA) membership Mr. Paulino
Salvador. . . ." He further claims that the complainants filed this case to harass
him because he refused to share his attorney's fees in the main labor case he
had handled for them. The respondent then prays for the dismissal of this
complaint for utter lack of merit, since his failure to file the answer was cured
and, even granting for the sake of argument that such failure amounted to
negligence, it cannot warrant his disbarment or suspension from the practice
of the law profession.
The complainants filed a Reply to the respondent's Comment.
Issues having been joined, we required the parties to inform us whether they
were willing to submit this case for decision on the basis of the pleadings they
have filed. In their separate compliance, both manifested in the affirmative.
The facts in this case are not disputed.
Complainants Veronica Santiago, Benjamin Hontiveros, Ma. Socorro Manas,
and Trinidad Nordista were the President, Vice-President, Treasurer, and
Auditor, respectively, of the FEUFA. They allegedly expelled from the union
Paulino Salvador. The latter then commenced with the Department of Labor
and Employment (DOLE) a complaint (NCR-OD-M-90-10-050) to declare illegal
his expulsion from the union.
In his resolution of 22 November 1990, Med-Arbiter Tomas Falconitin declared
illegal Salvador's expulsion and directed the union and all its officers to
reinstate Salvador's name in the roll of union members with all the rights and
privileges appurtenant thereto. This resolution was affirmed in toto by the
Secretary of Labor and Employment.
Subsequently, Paulino Salvador filed with the Regional Trial Court (RTC) of
Valenzuela, Metro Manila, Branch 172, a complaint against the complainants
herein for actual, moral, and exemplary damages and attorney's fees, under
Articles 19, 20, and 21 of the Civil Code. The case was docketed as Civil Case
No. 3526-V-91.
As the complainants' counsel, the respondent filed a motion to dismiss the
said case on grounds of (1) res judicata by virtue of the final decision of the
Med-Arbiter in NCR-OD-M-90-10-050 and (2) lack of jurisdiction, since what
was involved was an intra-union issue cognizable by the DOLE. Later, he filed
a supplemental motion to dismiss.
The trial court, per Judge Teresita Dizon-Capulong, granted the motion and
ordered the dismissal of the case. Upon Salvador's motion for reconsideration,
however, it reconsidered the order of dismissal, reinstated the case, and
required the complainants herein to file their answer within a nonextendible
period of fifteen days from notice.
Instead of filing an answer, the respondent filed a motion for reconsideration
and dismissal of the case. This motion having been denied, the respondent
filed with this Court a petition for certiorari, which was later referred to the
Court of Appeals and docketed therein as CA-G.R. SP No. 25834.
Although that petition and his subsequent motion for reconsideration were
both denied, the respondent still did not file the complainants' answer in Civil
Case No. 3526-V-91. Hence, upon plaintiff Salvador's motion, the complainants
were declared in default, and Salvador was authorized to present his
evidence ex-parte.
The respondent then filed a motion to set aside the order of default and to
stop the ex-parte reception of evidence before the Clerk of Court, but to no
avail.
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Legal Ethics
Thereafter, the trial court rendered a decision ordering the complainants
herein to pay, jointly and severally, plaintiff Salvador the amounts of
P200,000.00 as moral damages; P50,000.00 as exemplary damages or
corrective damages; and P65,000.00 as attorney's fees; plus cost of suit.
The complainants, still assisted by the respondent, elevated the case to the
Court of Appeals, which, however, affirmed in toto the decision of the trial
court.
The respondent asserts that he was about to appeal the said decision to this
Court, but his services as counsel for the complainants and for the union were
illegally and unilaterally terminated by complainant Veronica Santiago.
The core issue that presents itself is whether the respondent committed
culpable negligence, as would warrant disciplinary action, in failing to file for
the complainants an answer in Civil Case No. 3526-V-91 for which reason the
latter were declared in default and judgment was rendered against them on
the basis of the plaintiff's evidence, which was received ex-parte.
It is axiomatic that no lawyer is obliged to act either as adviser or advocate for
every person who may wish to become his client. He has the right to decline
employment, 1 subject, however, to Canon 14 of the Code of Professional
Responsibility. Once he agrees to take up the cause of a client, the lawyer
owes fidelity to such cause and must always be mindful of the trust and
confidence reposed in him. 2 He must serve the client with competence and
diligence, 3 and champion the latter's cause with wholehearted fidelity, care,
and devotion. 4 Elsewise stated, he owes entire devotion to the interest of the
client, warm zeal in the maintenance and defense of his client's rights, and
the exertion of his utmost learning and ability to the end that nothing be taken
or withheld from his client, save by the rules of law, legally applied. 5 This
simply means that his client is entitled to the benefit of any and every remedy
and defense that is authorized by the law of the land and he may expect his
lawyer to assert every such remedy or defense. 6 If much is demanded from
an attorney, it is because the entrusted privilege to practice law carries with it
the correlative duties not only to the client but also to the court, to the bar,
and to the public. A lawyer who performs his duty with diligence and candor
not only protects the interest of his client; he also serves the ends of justice,
does honor to the bar, and helps maintain the respect of the community to the
legal profession. 7
The respondent admits that it was his duty to file an answer in Civil Case No.
3526-V-91. He justifies his failure to do so in this wise:
[I]n his overzealousness to question the Denial Order of the
trial court, 8 [he] instead, thru honest mistake and excusable
neglect, filed a PETITION FOR CERTIORARI with the Honorable
Court, docketed as G.R. No. 100983. . . .
And, when the Court of Appeals, to which G.R. No. 100983 was
referred, dismissed the petition, he again "inadvertently" failed to file
an answer "[d]ue to honest mistake and because of his
overzealousness as stated earlier. . . . "
In their Reply, the complainants allege that his failure to file an answer was
not an honest mistake but was "deliberate, malicious and calculated to place
them on the legal disadvantage, to their damage and prejudice" for, as
admitted by him in his motion to set aside the order of default, his failure to
do so was "due to volume and pressure of legal work." 9 In short, the
complainants want to impress upon this Court that the respondent has given
inconsistent reasons to justify his failure to file an answer.
We agree with the complainants. In his motion for reconsideration of the
default order, the respondent explained his non-filing of the required answer
by impliedly invoking forgetfulness occasioned by a large volume and
pressure of legal work, while in his Comment in this case he attributes it to
honest mistake and excusable neglect due to his overzealousness to question
the denial order of the trial court.
Certainly, "overzealousness" on the one hand and "volume and pressure of
legal work" on the other are two distinct and separate causes or grounds. The
first presupposes the respondent's full and continuing awareness of his duty to
file an answer which, nevertheless, he subordinated to his conviction that the
trial court had committed a reversible error or grave abuse of discretion in
issuing an order reconsidering its previous order of dismissal of Salvador's
complaint and in denying the motion to reconsider the said order. The second
ground is purely based on forgetfulness because of his other commitments.
Whether it be the first or the second ground, the fact remains that the
respondent did not comply with his duty to file an answer in Civil Case No.
3526-V-91. His lack of diligence was compounded by his erroneous belief that
the trial court committed such error or grave abuse of discretion and by his
continued refusal to file an answer even after he received the Court of
Appeals' decision in the certiorari case. There is no showing whatsoever that
he further assailed the said decision before this Court in a petition for review
under Rule 45 of the Rules of Court to prove his claim of overzealousness to
challenge the trial court's order. Neither was it shown that he alleged in his
motion to lift the order of default that the complainants had a meritorious
defense. 10 And, in his appeal from the judgment by default, he did not even
raise as one of the errors of the trial court either the impropriety of the order
of default or the court's grave abuse of discretion in denying his motion to lift
that order.
Pressure and large volume of legal work provide no excuse for the
respondent's inability to exercise due diligence in the performance of his duty
to file an answer. Every case a lawyer accepts deserves his full attention,
diligence, skill, and competence, regardless of its importance and whether he
accepts it for a fee or for free.
All told, the respondent committed a breach of Canon 18 of the Code of
Professional Responsibility which requires him to serve his clients, the
complainants herein, with diligence and, more specifically, Rule 18.03 thereof
which provides: "A lawyer shall not neglect a legal matter entrusted to him,
and his negligence in connection therewith shall render him liable."
The respondent's negligence is not excused by his claim that Civil Case No.
3526-V-91 was in fact a "losing cause" for the complainants since the claims
therein for damages were based on the final decision of the Med-Arbiter
declaring the complainants' act of expelling Salvador from the union to be
illegal. This claim is a mere afterthought which hardly persuades us. If indeed
the respondent was so convinced of the futility of any defense therein, he
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Legal Ethics
should have seasonably informed the complainants thereof. Rule 15.05, Canon
15 of the Code of Professional Responsibility expressly provides:
A lawyer, when advising his client, shall give a candid and
honest opinion on the merits and probable results of the
client's case, neither overstating nor understanding the
prospects of the case.
Then too, if he were unconvinced of any defense, we are unable to
understand why he took all the trouble of filing a motion to dismiss on
the grounds of res judicata and lack of jurisdiction and of questioning
the adverse ruling thereon initially with this Court and then with the
Court of Appeals, unless, of course, he meant all of these to simply
delay the disposition of the civil case. Finally, the complainants were
not entirely without any valid or justifiable defense. They could prove
that the plaintiff was not entitled to all the damages sought by him or
that if he were so, they could ask for a reduction of the amounts
thereof.
We do not therefore hesitate to rule that the respondent is not free from any
blame for the sad fate of the complainants. He is liable for inexcusable
negligence.
WHEREFORE, ATTY. AMADO R. FOJAS is hereby REPRIMANDED and
ADMONISHED to be, henceforth, more careful in the performance of his duty
to his clients.
SO ORDERED.

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Legal Ethics
ADELINO H. LEDESMA, petitioner,
vs.
HON. RAFAEL C. CLIMACO, Presiding Judge of the Court of First
Instance of Negros Occidental, Branch I, Silay City, respondent.
What is assailed in this certiorari proceeding is an order of respondent Judge
denying a motion filed by petitioner to be allowed to withdraw as counsel de
oficio. 1 One of the grounds for such a motion was his allegation that with his
appointment as Election Registrar by the Commission on Elections, he was not
in a position to devote full time to the defense of the two accused. The denial
by respondent Judge of such a plea, notwithstanding the conformity of the
defendants, was due "its principal effect [being] to delay this case." 2 It was
likewise noted that the prosecution had already rested and that petitioner was
previously counsel de parte, his designation in the former category being
precisely to protect him in his new position without prejudicing the accused. It
cannot be plausibly asserted that such failure to allow withdrawal of de
oficio counsel could ordinarily be characterized as a grave abuse of discretion
correctible by certiorari. There is, however, the overriding concern for the right
to counsel of the accused that must be taken seriously into consideration. In
appropriate cases, it should tilt the balance. This is not one of them. What is
easily discernible was the obvious reluctance of petitioner to comply with the
responsibilities incumbent on the counsel de oficio. Then, too, even on the
assumption that he continues in his position, his volume of work is likely to be
very much less at present. There is not now the slightest pretext for him to
shirk an obligation a member of the bar, who expects to remain in good
standing, should fulfill. The petition is clearly without merit.
According to the undisputed facts, petitioner, on October 13, 1964, was
appointed Election Registrar for the Municipality of Cadiz, Province of Negros
Occidental. Then and there, he commenced to discharge its duties. As he was
counsel de parte for one of the accused in a case pending in the sala of
respondent Judge, he filed a motion to withdraw as such. Not only did
respondent Judge deny such motion, but he also appointed him counsel de
oficio for the two defendants. Subsequently, on November 3, 1964, petitioner
filed an urgent motion to be allowed to withdraw as counsel de oficio,
premised on the policy of the Commission on Elections to require full time
service as well as on the volume or pressure of work of petitioner, which could
prevent him from handling adequately the defense. Respondent Judge, in the
challenged order of November 6, 1964, denied said motion. A motion for
reconsideration having proved futile, he instituted this certiorari proceeding. 3
As noted at the outset, the petition must fail.
1. The assailed order of November 6, 1964 denying the urgent motion of
petitioner to withdraw as counsel de oficio speaks for itself. It began with a
reminder that a crime was allegedly committed on February 17, 1962, with
the proceedings having started in the municipal court of Cadiz on July 11,
1962. Then respondent Judge spoke of his order of October 16, 1964 which
reads thus: "In view of the objection of the prosecution to the motion for
postponement of October 15, 1964 (alleging that counsel for the accused
cannot continue appearing in this case without the express authority of the
Commission on Elections); and since according to the prosecution there are
two witnesses who are ready to take the stand, after which the government
would rest, the motion for postponement is denied. When counsel for the
accused assumed office as Election Registrar on October 13, 1964, he knew
since October 2, 1964 that the trial would be resumed today. Nevertheless, in
order not to prejudice the civil service status of counsel for the accused, he is
hereby designated counsel de oficio for the accused. The defense obtained
postponements on May 17, 1963, June 13, 1963, June 14, 1963, October 28,
1963, November 27, 1963, February 11, 1964, March 9, 1964, June 8, 1964
July 26, 1964, and September 7, 1964." 4 Reference was then made to another
order of February 11, 1964: "Upon petition of Atty. Adelino H. Ledesma,
alleging indisposition, the continuation of the trial of this case is hereby
transferred to March 9, 1964 at 8:30 in the morning. The defense is reminded
that at its instance, this case has been postponed at least eight (8) times, and
that the government witnesses have to come all the way from
Manapala." 5 After which, it was noted in such order that there was no
incompatibility between the duty of petitioner to the accused and to the court
and the performance of his task as an election registrar of the Commission on
Elections and that the ends of justice "would be served by allowing and
requiring Mr. Ledesma to continue as counsel de oficio, since the prosecution
has already rested its case." 6
2. What is readily apparent therefore, is that petitioner was less than duly
mindful of his obligation as counsel de oficio. He ought to have known that
membership in the bar is a privilege burdened with conditions. It could be that
for some lawyers, especially the neophytes in the profession, being appointed
counsel de oficio is an irksome chore. For those holding such belief, it may
come as a surprise that counsel of repute and of eminence welcome such an
opportunity. It makes even more manifest that law is indeed a profession
dedicated to the ideal of service and not a mere trade. It is understandable
then why a high degree of fidelity to duty is required of one so designated. A
recent statement of the doctrine is found in People v. Daban: 7 "There is need
anew in this disciplinary proceeding to lay stress on the fundamental
postulate that membership in the bar carries with it a responsibility to live up
to its exacting standard. The law is a profession, not a trade or a craft. Those
enrolled in its ranks are called upon to aid in the performance of one of the
basic purposes of the State, the administration of justice. To avoid any
frustration thereof, especially in the case of an indigent defendant, a lawyer
may be required to act as counsel de oficio. The fact that his services are
rendered without remuneration should not occasion a diminution in his zeal.
Rather the contrary. This is not, of course, to ignore that other pressing
matters do compete for his attention. After all, he has his practice to attend
to. That circumstance possesses a high degree of relevance since a lawyer
has to live; certainly he cannot afford either to neglect his paying cases.
Nonetheless, what is incumbent upon him as counsel de oficio must be
fulfilled." 8
So it has been from the 1905 decision of In re Robles Lahesa, 9 where
respondent was de oficiocounsel, the opinion penned by Justice Carson
making clear: "This Court should exact from its officers and subordinates the
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Legal Ethics
most scrupulous performance of their official duties, especially when that petitioner would exert himself sufficiently to perform his task as defense
negligence in the performance of those duties necessarily results in delays in counsel with competence, if not with zeal, if only to erase doubts as to his
the prosecution of criminal cases ...." 10 Justice Sanchez in People v. fitness to remain a member of the profession in good standing. The
Estebia 11 reiterated such a view in these words: "It is true that he is a court- admonition is ever timely for those enrolled in the ranks of legal practitioners
appointed counsel. But we do say that as such counsel de oficio, he has as that there are times, and this is one of them, when duty to court and to client
high a duty to the accused as one employed and paid by defendant himself. takes precedence over the promptings of self-interest.
Because, as in the case of the latter, he must exercise his best efforts and WHEREFORE, the petition for certiorari is dismissed. Costs against petitioner.
professional ability in behalf of the person assigned to his care. He is to render
effective assistance. The accused-defendant expects of him due diligence, not
mere perfunctory representation. For, indeed a lawyer who is a vanguard in
the bastion of justice is expected to have a bigger dose of social conscience
and a little less of self-interest." 12
The weakness of the petition is thus quite evident.
3. If respondent Judge were required to answer the petition, it was only due to
the apprehension that considering the frame of mind of a counsel loath and
reluctant to fulfill his obligation, the welfare of the accused could be
prejudiced. His right to counsel could in effect be rendered nugatory. Its
importance was rightfully stressed by Chief Justice Moran in People v.
Holgado in these words: "In criminal cases there can be no fair hearing unless
the accused be given an opportunity to be heard by counsel. The right to be
heard would be of little avail if it does not include the right to be heard by
counsel. Even the most intelligent or educated man may have no skill in the
science of law, particularly in the rules of procedure, and; without counsel, he
may be convicted not because he is guilty but because he does not know how
to establish his innocence. And this can happen more easily to persons who
are ignorant or uneducated. It is for this reason that the right to be assisted by
counsel is deemed so important that it has become a constitutional right and
it is so implemented that under rules of procedure it is not enough for the
Court to apprise an accused of his right to have an attorney, it is not enough
to ask him whether he desires the aid of an attorney, but it is essential that
the court should assign one de oficio for him if he so desires and he is poor or
grant him a reasonable time to procure an attorney of his
own." 13 So it was under the previous Organic Acts. 14 The present Constitution
is even more emphatic. For, in addition to reiterating that the accused "shall
enjoy the right to be heard by himself and counsel," 15 there is this new
provision: "Any person under investigation for the commission of an offense
shall have the right to remain silent and to counsel, and to be informed of
such right. No force, violence, threat, intimidation, or any other means which
vitiates the free will shall be used against him. Any confession obtained in
violation of this section shall be inadmissible in evidence." 16
Thus is made manifest the indispensable role of a member of the Bar in the
defense of an accused. Such a consideration could have sufficed for petitioner
not being allowed to withdraw as counsel de oficio. For he did betray by his
moves his lack of enthusiasm for the task entrusted to him, to put matters
mildly. He did point though to his responsibility as an election registrar.
Assuming his good faith, no such excuse could be availed now. There is not
likely at present, and in the immediate future, an exorbitant demand on his
time. It may likewise be assumed, considering what has been set forth above,
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Legal Ethics
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RlCARDO RIO, accused-appellant.
Convicted of rape and sentenced to reclusion perpetua by the Regional Trial
Court, Branch CXLVI * of Makati, Metro Manila, in Criminal Case No. 12042,
accused-appellant Ricardo Rio interposed his appeal and as a consequence,
the clerk of court of said regional trial court branch forwarded the records of
the case to the Court of Appeals. The appellate court, however, forwarded the
records of the case to the Supreme Court in view of the penalty imposed upon
the accused.
On 29 December 1989, the accused-appellant Ricardo Rio, in two (2) letters
dated 14 December 1989, addressed to Division Clerk of Court Fermin J.
Garma and to Assistant Clerk of Court Tomasita M. Dris, manifested his
intention to withdraw the appeal due to his poverty. 1
The Court resolved in a resolution dated 22 June 1990 to require the Solicitor
General to comment on the appellant's manifestation to withdraw the appeal.
In the Comment filed by the Solicitor General, the action recommended was
for the Court to ascertain from the accused-appellant, through the clerk of
court of the trial court, whether he desired the appointment of a counsel de
oficio on appeal, in view of the reasons stated by him for the withdrawal of his
appeal, and inasmuch as poverty should not preclude anyone from pursuing a
cause. It was also recommended that the clerk of court of the trial court be
required by the Court to submit the response of the accused-appellant along
with a certificate of compliance with the duty imposed on him 2 by Section 13,
of Rule 122 of the Rules of Court, which provides:
Sec. 13. Appointment of counsel de oficio for accused on
appeal. It shall be the duty of the clerk of the trial court
upon the presentation of a notice of appeal in a criminal case,
to ascertain from the appellant, if he is confined in prison,
whether he desires the Intermediate Appellate Court or the
Supreme Court to appoint a counsel to defend him de
oficio and to transmit with the record, upon a form to be
prepared by the clerk of the appellate court, a certificate of
compliance with this duty and of the response of the appellant
to his inquiry.
The branch clerk of the trial court, in a letter addressed to the Assistant Clerk
of Court of the Second Division, this Court, in compliance with the resolution
of this Court, dated 16 April 1990, adopting the suggestions of the Solicitor
General, which required him to comply with his duty mandated in Section 13,
Rule 122 of the Rules of Court, submitted the reply of the accused-appellant
informing the Court that he was no longer interested in pursuing his appeal
and had, in fact, withdrawn his appeal. 3
Upon recommendation of the Solicitor General, however, the Court in a
resolution dated 1 October 1990, denied the appellant's motion withdrawing
the appeal and appointed a counsel de oficio for the accused-appellant for, as
correctly observed by the Solicitor General, all the letters of the accused-
appellant reveal that the only reason offered by him for the withdrawal of his
appeal is his inability to retain the services of a counsel de parte on account of
his poverty, a reason which should not preclude anyone from seeking justice
in any forum. 4
It seems that the accused-appellant was unaware that this Court can appoint
a counsel de oficio to prosecute his appeal pursuant to Section 13 of Rule 122
of the Rules of Court and the constitutional mandate provided in Section 11 of
Article III of the 1987 Constitution which reads as follows:
Sec. 11. Free access to the courts and quasi-judicial bodies
and adequate legal assistance shall not be denied to any
person by reason of poverty.
This constitutional provision imposes a duty on the judicial branch of the
government which can cannot be taken lightly. "The Constitution", as aptly
stated in one case, "is a law for rulers and for people equally in war and in
peace and covers with the shield of its protection all classes of men at all
times and under all circumstances." 5
Paraphrasing Mr. Justice Malcolm, "Two (2) of the basic privileges of the
accused in a criminal prosecution are the right to the assistance of counsel
and the right to a preliminary examination. President Mckinley made the first
a part of the Organic Law in his Instructions to the Commission by imposing
the inviolable rule that in all criminal prosecutions the accused 'shall enjoy the
right ... to have assistance of counsel for the defense' ". 6 Today said right is
enshrined in the 1987 Constitution for, as Judge Cooley says, this is "perhaps
the privilege most important to the person accused of crime." 7
"In criminal cases there can be no fair hearing unless the accused be given an
opportunity to be heard by counsel. The right to be heard would be of little
meaning if it does not include the right to be heard by counsel. Even the most
intelligent or educated man may have no skill in the science of the law,
particularly in the rules of procedure, and, without counsel, he may be
convicted not because he is guilty but because he does not know how to
establish his innocence. And this can happen more easily to persons who are
ignorant or uneducated. It is for this reason that the right to be assisted by
counsel is deemed so important that it has become a constitutional right and
it is so implemented that under our rules of procedure it is not enough for the
Court to apprise an accused of his right to have an attorney, it is not enough
to ask him whether he desires the aid of an attorney, but it is essential that
the court should assign one de oficio for him if he so desires and he is poor, or
grant him a reasonable time to procure an attorney of his own." 8
This right to a counsel de oficio does not cease upon the conviction of an
accused by a trial court. It continues, even during appeal, such that the duty
of the court to assign a counsel de oficio persists where an accused interposes
an intent to appeal. Even in a case, such as the one at bar, where the accused
had signified his intent to withdraw his appeal, the court is required to inquire
into the reason for the withdrawal. Where it finds the sole reason for the
withdrawal to be poverty, as in this case, the court must assign a counsel de
oficio, for despite such withdrawal, the duty to protect the rights of the
accused subsists and perhaps, with greater reason. After all, "those who have
less in life must have more in law." 9 Justice should never be limited to those
who have the means. It is for everyone, whether rich or poor. Its scales should
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Legal Ethics
always be balanced and should never equivocate or cogitate in order to favor
one party over another.
It is with this thought in mind that we charge clerks of court of trial courts to
be more circumspect with the duty imposed on them by law (Section 13, Rule
122 of the Rules of Court) so that courts will be above reproach and that never
(if possible) will an innocent person be sentenced for a crime he has not
committed nor the guilty allowed to go scot-free.
In this spirit, the Court ordered the appointment of a counsel de oficio for the
accused-appellant and for said counsel and the Solicitor General to file their
respective briefs, upon submission of which the case would be deemed
submitted for decision.
From the records of the case, it is established that the accused-appellant was
charged with the crime of rape in a verified complaint filed by complainant
Wilma Phua Rio, duly subscribed before 3rd Assistant Fiscal Rodolfo M.
Alejandro of the province of Rizal, which reads as follows:
That on or about the 24th day of March, 1984, in the
Municipality of Muntinlupa, Metro Manila, Philippines, a place
within the jurisdiction of this Honorable Court, the above-
named accused, by means of force and intimidation did then
and there wilfully, unlawfully and feloniously have carnal
knowledge of the undersigned Wilma Phua against her will. 10
On 26 June 1985, at the arraignment, the accused-appellant, assisted by Atty.
Leonido Manalo of the Makati CLAO office, as counsel de oficio, entered a plea
of not guilty to the offense charged. 11 The evidence for the prosecution
adduced at the trial established the following facts:
During the months of February and March 1984, complainant Wilma Phua,
then only 13 years of age, was living with her mother and three (3) sisters in a
house in Barangay Bayanan, Municipality of Muntinlupa, Metro Manila. At a
distance of about three (3) meters from this house is another house with a
toilet and bath also owned by complainant's mother but which was
uninhabited at that time. The accused, complainant's uncle, being the
younger brother of complainant's mother, was staying in their house, free of
board and lodging, although he helped in the household chores. The children
used the bathroom in the uninhabited house because the amenities in the
inhabited house were used only by the adults. 12
At about 2:00 o'clock in the afternoon of 24 March 1984, classes having closed
for vacation and while Maria Zena Phua Rio was in the house occupied by her
family, her daughter Wilma (complainant) asked her for the key to the comfort
room of the uninhabited house because she had to answer a call of nature.
After having delivered the key to Wilma, the latter proceeded to the other
house, entered the comfort room, and seeing that nobody was around and
that her uncle was washing dishes in their house, proceeded to answer
nature's call without taking the precaution of locking the comfort room from
inside. 13
After relieving herself but before she could raise her panty, the accused
entered the bathroom with his body already exposed, held Wilma's hands, and
ordered her in a loud voice to lie down and when she resisted, the accused got
mad and ordered her to lie down. After she lay down on her back, the accused
put himself on top of her and tried to insert his private organ into her private
part. Wilma kept pushing the accused away and calling for her mother;
however, since the accused was heavier than she, the accused succeeded in
overpowering her, inserting his penis into her vagina and having sexual
intercourse with her. After satisfying his lust, the accused released Wilma and
allowed her to leave the bathroom. 14
Outside the bathroom door, complainant met her mother Maria Zena who,
meanwhile, had proceeded to the said other house after sensing that an
inordinate length of time had passed and her daughter, complainant herein,
had not returned from the bathroom. Maria Zena, upon noticing that Wilma
was speechless, trembling and looking fearful, suspected something remiss so
she tried to open the door of the bathroom. Unable to open it the first time
because it was locked from inside, Maria Zena waited a few minutes before
pushing the door again. This time she was successful in finding her brother,
the herein accused-appellant in the process of raising his pants. Maria Zena
was ignored by her brother when she asked him the reason for his presence
inside the bathroom. 15
Still suspecting that the accused has done something to her daughter, Maria
Zena continued her inquisition of her brother for several days but to no avail.
Finally, on 9 April 1984, the accused was asked to leave the house and move
out by his sister Maria Zena. 16
Only after the departure of the accused did Wilma report to her mother the
fact that she had been raped by the accused four (4) times between the
months of February and March of that year (1984). After receiving such
information, Maria Zena wanted her daughter to immediately undergo
physical examination; however, Wilma, apparently traumatized by her
experience, was too weak to go with her for such examination and frequently
suffered from fainting spells. It was only on 30 April 1984 that Maria Zena was
able to bring Wilma to the police to report the matter and to file the
complaint. After the report to the police, they were referred to the P.C. Crime
Laboratory at Camp Crame where Wilma underwent physical examination. 17
Dr. Dario Gajardo, the physician who conducted the internal examination of
Wilma, submitted a report of his examination dated 6 May 1984. The medical
report showed, among others, the following findings:
There is a scanty growth of pubic hair. Labia majora are full,
convex and gaping which pale brown, slightly hypertrophied
labia minora presenting in between. On separating the same
is disclosed an elastic, fleshly-type hymen with deep
lacerations at 3, 8 and 9 o'clock. ... 18
The medical report also showed that "there was (sic) no external signs of
recent application of any form of trauma." 19 All these findings led him to
conclude that Wilma is "in a non-virgin state physicially." 20 Later, on the
witness stand, Dr. Gajardo would further testify that Wilma, on inquiry,
revealed that the first rape happened in the month of February 1984, but that
he could not tell the approximate period or age of the lacerations. 21
Armed with this medical report, Maria Zena and Wilma went back to the police
where a sworn statement of Wilma was taken and the complaint for rape
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Legal Ethics
against the accused was filed before Third Assistant Fiscal Rodolfo M.
Alejandro on 12 May 1984. 22
The evidence for the defense consisted of the testimony of the accused
himself and his brother, Amado Rio. The accused's defense was anchored on
alibi and he substantially testified as follows: that contrary to the statements
made by the witnesses for the prosecution, he was not asked to leave their
house in April 1984, the truth being that he left in the month of January 1984
or about a month before the alleged first rape on Wilma was committed
because, contrary to an alleged employment agreement between brother and
sister, his sister, Maria Zena, had not paid him any salary as helper in their
house; that from the month of January 1984, up to 24 March 1984 when the
rape charged in the complaint was allegedly committed, he was in their
hometown in Kambalo, Cahidiocan, province of Romblon; that at the time of
his arrest, he was informed of the criminal charge of rape on his niece filed
against him in court; that from January 1984 up to the time of his arrest on 6
May 1984, he had stayed in the house of his uncle, Francisco Rio, and had
never left the place during the whole period.
The accused vehemently denied the rape and conjectured that his sister could
have fabricated the charge because he left her house due to her non-payment
of his salary as helper. The brother of the accused in the person of Amado Rio
corroborated the defense of alibi of the accused. 23
On rebuttal, the prosecution presented Nemesia B. Merca, the Election
Registrar of the Municipality of Muntinlupa, who brought with her a Voter's
Affidavit which was executed on 31 March 1984 by one Ricardo Rio and was
subscribed and sworn to on 31 March 1984 before Tessie Balbas, Chairman of
Voting Center No. 37-A of Bayanan, Muntinlupa, Metro Manila. On cross-
examination, Registrar Merca admitted that she does not know the accused
personally but that the xerox copy of the Voter's Affidavit that she brought to
court was copied from a book containing about 60 voter's affidavits of said
precinct. 24
After comparing the signature appealing in the Voter's Affidavit with the
penmanship appearing on a letter 25dated 12 December 1985 written by the
accused to his brother, Amado Rio and on the envelope of said letter, 26 the
trial court ruled that the writing characteristics on the presented documents
are the same, especially the rounded dot over the letter "i" appearing in the
afore-mentioned mentioned documents. It was, therefore, satisfied that the
Voter's Affidavit was indeed prepared by the accused in Bayanan, Muntinlupa,
Metro Manila, on 31 March 1984, before Tessie Balbas and that this piece of
evidence completely belies the defense of the accused as corroborated by his
brother, Amado, that he was in Romblon continuously from the month of
January 1984 up to the time that he was arrested on 6 May 1984. 27
Thus, the trial court found the accused-appellant guilty of the crime of rape.
The dispositive portion of the decision reads as follows:
WHEREFORE, finding the above-named accused guilty of the
crime charged in the information beyond reasonable doubt the
Court hereby sentences him to suffer the penalty of reclusion
perpetua, with the accessory penalties of the law, to
indemnify Wilma Phua in the sum of P15,000.00, Philippine
currency, and to pay the costs.
SO ORDERED.
The theory of the defense at the trial level was grounded on alibi. The accused
claimed that at the time of the alleged commission of the crime of rape he
was in Romblon. This claim was corroborated by the accused's brother, Amado
Rio. However, this claim was, as aforestated, rebutted by the prosecution's
submission of the voter's affidavit executed by the accused in Muntinlupa,
Metro Manila on 31 March 1984 when appellant claimed he was in Romblon.
Upon careful examination of the voter's affidavit, the Court is convinced, as
the trial court, that the affidavit was indeed executed by the accused himself
and the date appearing therein must be presumed correct and genuine.
Alibi is inherently a weak defense, easy of fabrication especially between
parents and children, husband and wife, and other relatives and even among
those not related to each other. For such defense to prosper, the accused
must prove that it was not possible for him to have been at the scene of the
crime at the time of its commission. 28
In the present case, where nothing supports the alibi except the testimony of
a relative, in this case the accused's brother Amado, it deserves but scant
consideration. 29 Moreover, the Court notes the fact that while the accused-
appellant had another brother and sister living in Manila besides the
complainant's mother, those two never came to his aid. Were the accused the
innocent man he claims to be, these siblings would have readily helped in his
defense. The testimony of his other brother Amado alone cannot raise the
necessary doubt to acquit him as against the evidence presented by the
prosecution.
Furthermore, it would be hard to believe that a female, especially a twelve-
year old child, would undergo the expense, trouble and inconvenience of a
public trial, not to mention suffer the scandal, embarrassment and humiliation
such action inevitably invites, as wen as allow an examination of her private
parts if her motive were not to bring to justice the person who had abused her.
A victim of rape will not come out in the open if her motive were not to obtain
justice. 30
It is harder still to believe that the mother of a child of twelve will abuse her
child and make her undergo the trauma of a public trial only to punish
someone, let alone a brother, for leaving her without the services of an unpaid
helper were it not with the aim to seek justice for her child. Nobody in his right
mind could possibly wish to stamp his child falsely with the stigma that follows
a rape.
On appeal, appellant's counsel de oficio changed the theory of the defense.
The new theory presented by counsel de oficio is that Wilma Phua consented
when accused-appellant had sexual intercourse with her on 24 March 1984. It
was stressed by counsel de oficio that the rape occurred on 24 March 1984
and that, allegedly, it was the fourth time accused had abused complainant.
This allegation as well as the fact that complainant failed to lock the door to
the bathroom could only have been due to the fact that there was consent.
The charge was filed, according to defense counsel de oficio, only because the
complainant's mother caught them. 31
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Legal Ethics
This theory of the defense on appeal that there had been consent from the
complainant, fails to generate doubt as to the accused's guilt, for it would be
an incredulous situation indeed to believe that one, so young and as yet
uninitiated to the ways of the world, would permit the occurrence of an
incestuous relationship with an uncle, a brother of her very own mother.
The Court notes the sudden swift in the theory of the defense from one of
total denial of the incident in question, by way of alibi, to one of participation,
that is, with the alleged consent of the complainant. This new version could
only be attributed by the Court to the fact that counsel on appeal is different
from the counsel in the trial court. Although the Solicitor General has
suggested that this sudden shift be interpreted as an afterthought by the
accused or a desperate effort to get himself acquitted, 32 the Court deems it
more likely that this shift was caused by counsel de oficio's preparation of the
appellant's brief without examining the entire records of the case. If the
appointed counsel for the accused, on appeal, had read the records and
transcripts of the case thoroughly, he would not have changed the theory of
the defense for such a shift can never speak well of the credibility of the
defense. Moreover, the rule in civil procedure, which applies equally in
criminal cases, is that a party may not shift his theory on appeal. If the
counsel de oficio had been more conscientious, he would have known that the
sudden shift would be violative of aforementioned procedural rule and
detrimental to the cause of the accused-appellant (his client).
The Court hereby admonishes members of the Bar to be more conscious of
their duties as advocates of their clients' causes, whether acting de
parte or de oficio, for "public interest requires that an attorney exert his best
efforts and ability in the prosecution or defense of his client's
cause." 33 Lawyers are an indispensable part of the whole system of
administering justice in this jurisdiction. 34 And a lawyer who performs that
duty with diligence and candor not only protects the interests of his client; he
also serves the ends of justice, does honor to the Bar and helps maintain the
respect of the community to the legal profession. This is so because the
entrusted privilege to practice law carries with it correlative duties not only to
the client but also to the court, to the bar and to the public. 35
While a lawyer is not supposed to know all the laws, 36 he is expected to take
such reasonable precaution in the discharge of his duty to his client and for
his professional guidance as will not make him, who is sworn to uphold the
law, a transgressor of its precepts. 37
The fact that he merely volunteered his services or the circumstance that he
was a counsel de oficio neither diminishes nor alters the degree of
professional responsibility owed to his client. 38 The ethics of the profession
require that counsel display warm zeal and great dedication to duty
irrespective of the client's capacity to pay him his fees. 39 Any attempted
presentation of a case without adequate preparation distracts the
administration of justice and discredits the Bar. 40
Returning to the case at bar, even if we consider the sudden shift of defense
theory as warranted (which we do not), the Court is just as convinced, beyond
reasonable doubt, that the accused-appellant is guilty of the crime as
charged. His conviction must be sustained.
WHEREFORE, the decision of the trial court finding the accused-appellant
Ricardo Rio guilty beyond reasonable doubt of the crime of rape and
sentencing him to the penalty of reclusion perpetua with all the accessory
penalties of the law, is hereby AFFIRMED. The Court, however, increases the
amount of indemnity to be paid by the accused-appellant to Wilma Phua to
thirty thousand pesos (P30,000.00) in line with prevailing jurisprudence on
this matter. Costs against accused-appellant.
SO ORDERED.
164