Legal Ethics Report Atty. Gatcho Submitted by: Eblahan Rhett Mark L.

Affidavits of Desistance, Settlement, Compromise, Restitution, Withdrawal of Charges, or Failure to Prosecute

Section 5, Rule 139-B, Rules of Court

No investigation shall be interrupted or terminated by reason of the desistance, settlement, compromise, restitution, withdrawal of the charges, or failure of the complainant to prosecute the same, unless when the supreme court motu propio or upon recommendation of the IBP Board of governors,
determines that there is no compelling reason to continue with the disbarment or suspension proceedings against respondent.

Affidavits of Desistance Will Cause Dismissal of Case if There is Nothing More which Could Substantiate The Charge In the absence of convincing or clearly preponderant evidence, the disbarment case against the respondent should be dismissed. Any doubt should be resolved in his favor. IN RE ATTY. EMMANUEL S. TIPON, 79 SCRA 372 Facts: The Postmaster General in a first indorsement to the Chief Justice dated May 17, 1965 transmitted certain papers purporting to show that Atty. Emmanuel S. Tipon (admitted to the bar in 1956) might have violated the lawyer's oath for having imported the magazine Playboy, which was considered as non-mailable matter. Held: In that indorsement Secretary Raquiza rendered the opinion that Playboy magazine cannot be character as obscene and that it can be carried and deposited in Philippine mails.The Secretary concluded that "there is absolutely no to show that Atty. Tipon had violated or intended to violate the postal laws, the lawyer's oath or the Canons of Legal Ethics. Secretary Raquiza requested that the Postmaster General's complaint of May 17, 1965 be considered withdrawn. WHEREFORE, this case is considered closed for having become moot and academic.

If the complainant lacks interest in prosecution of the respondent, it may justify the dismissal of the case. DALTON WOODROW WORTHINGTON, vs. FELIPE FERNANDEZ, 73 SCRA 229 Facts: Dalton Woodrow Worthington lodged in 1972 a complaint for disbarment charging Atty. Felipe Fernandez with malpractice, fraud and deceit in connection with an estafa, regading the blending tobacco imported by the Eastern Tobacco Trading Corporation (of which Worthington was the president). The tobacco was seized by the Bureau of Customs. The estafa case was dismissed due to the efforts of Fernandez. Due to interminable postponements the case was never heard. On May 8, 1973 respondent Fernandez filed in the Office of the Solicitor General a motion to dismiss the case because of Worthington's failure to prosecute it. The Acting Solicitor General in his report dated April 20, 1976 recommends that the case be dismissed. Held: Inasmuch as complainant Worthington had apparently lost interest in the case and as there is no justification for proceeding further against the respondent, this case, including the counterclaim, which cannot be ventilated in a disbarment proceeding, is dismissed.

In Pari Delicto Rule will not Exempt Lawyers It is Immaterial that the complainant is in pari delicto because the purpose of the law is not only to grant relief to the complainant, but also to purge the law profession of unworthy members, to protect the public and the courts. (Mortel vs. Aspiras, 100 Phil., 586)

Applicability of the rule on Prejudicial Question, when proper. If the subject matter of the complaint is also the subject of, or is intertwined in the subject matter of another pending case, and the resolution of which is determinative of the guilt or innocence of the respondent in the disbarment case, the disbarment proceedings may be dismissed for being premature, or it may be held in abeyance pending the final determination of the other case.

A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests. Section 6, Rule 111 of the 2000 Revised Rules of Criminal Procedure

Ramos vs. Miculob, 3 SCRA 470 Facts: The verified complaint filed by petitioner, Eufrosino L. Ramos, a member of the bar, against respondent Eugenio P. Miculob, also a member of the bar, alleges that in a sworn statement addressed to the Secretary of Foreign Affairs on July 6, 1961, said respondent stated, among other things, that in December, 1960, he gave Jose Fornier, Philippine Consul General in Hongkong, the sum of HK$2,500.00 in order to secure the issuance of a visa for his client, one John Lau, alias Lau Chen Ping, an applicant for a visa to the Philippines; that if true, the act committed by respondent constitutes malpractice, gross misconduct, bribery, and a violation of his oath of office as a member of the bar. It appears, however, that the matter is still pending investigation in the Department of Foreign Affairs by reason of the charges filed by respondent against Consul General Fornier and Consuls Sabalones and Cataumber. Held: For the reason stated in the preceding paragraph, it is hereby resolved to dismiss the present case, without prejudice to filing it again if the decision that will be rendered in due time upon the administrative charges heretofore mentioned would so justify.

Degamo vs. Calo, 5 SCRA 580 Held: It Appears that the charges filed in this case by complainant against respondent are directly involved in two cases now pending, a civil case and a criminal case. In view of the above, upon motion of respondent, it is resolved that the investigation of the present Administrative Case be held in abeyance until such time as this court receives notice of the final determination of the two cases mentioned above.

CAMBALIZA v. ATTY. CRISTAL-TENORIO (A.C. No. 6290, July 14, 2004) FACTS: A complaint for disbarment filed with the Committee on Bar Discipline of the Integrated Bar of the Philippines. Complainant 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. 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. Furthermore, Respondent caused the dissemination to the public of a libelous affidavit derogatory to Makati City; cooperated in the illegal practice of law by her husband, who is not a member of the Philippine Bar; converted her client's money to her own use and benefit, which led to the filing of an estafa case against her; and threatened the complainant and her family on 24 January 2000 with the statement "Isang bala ka lang" to deter them from divulging respondent's illegal activities and transactions. Respondent denied all the allegations against her. The Case referred to this case to Investigating Commissioner as 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 where the name of Felicisimo R. Tenorio, Jr., is listed as a senior partner; and (2) a Sagip Communication Radio Group identification card signed by the respondent as Chairperson where her husband is identified as "Atty. Felicisimo R. Tenorio, Jr." She added that respondent's husband even appeared in court hearings. 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 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 Held: When the criminal prosecution based on the same acts 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 finding. A lawyer who allows a non-member of the bar to misrepresent himself as a lawyer and to practice is guilty of violating Canon 9 and Rule 9.01 of the code of Professional Responsibility.

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.

Where Prejudicial Question was Ruled Out In re Brillantes 76 SCRA 1 The Supreme Court ruled out the application of a prejudicial question. It proferred 4 reasons: 1. The respondent has not cited, and this court does not find, any provision of the constitution, the statutes or the Rules of Court which can satisfy the theory. 2. In a criminal case it is the duty of the prosecution to prove that the accused is guilty beyond reasonable doubt of the crime charged, which is not so in suspension or disbarment proceeding where only clearly preponderant evidence is required. 3. An accused in a criminal case my escape conviction not necessarily on the ground that he did not commit the acts charged in the information 4. It is not sound judicial policy to await the final resolution of a criminal case before we may act on a complaint or information against a lawyer and impose the judgment appropriate to the facts Dismissal of a Criminal Case is not Determinative of the Liability of the Accused for Disbarment Gerona vs Datingaling, 398 SCRA 148 Held: The power to disbar must be exercised with great caution, and only in a clear case of misconduct that seriously affects the standing and character of a respondent as an officer of the court and as a member of the bar. Disbarment should never be decreed where any lesser penalty such as temporary suspension, could accomplish the end desired. To be sure, conviction in a criminal case is not necessary for finding member of the bar guilty in an administrative proceeding. As held in Calub vs. Suller, the dismissal of a criminal case is not determinative of the liability of the accused f or disbarment. In the case at bar, however, the criminal prosecution based on the same acts charged in this case is still pending in the court. To avoid contradictory findings, therefore, any administrative disciplinary proceedings for the same act must await the outcome of the criminal case for falsification of a public document.

Catherine and Henry Yu vs Atty. Antonio Antoniutti K. Palana, AC No. 7747 Held: The fact that the criminal case against the respondent involving the same set of facts is still pending in court is of no moment. Respondent , being a member of the bar, should note that administrative cases against lawyers belong to class of their own. They are distinct from and they may proceed independently of criminal cases. A criminal prosecution will not constitute a prejudicial question even if the same facts and circumstances are attendant in the administrative proceedings. Besides, it is not sound judicial policy to await the final resolution of a criminal case before a complaint against a lawyer may be acted upon; otherwise, this court will be rendered helpless to apply the rules on admission to, and continuing membership in, the legal profession, during the whole period that the criminal case is pending final disposition, when the objectives of the two proceedings are vastly disparate.

Application for Reinstatement Reinstatement is the restoration to a disbarred lawyer the privilege to practice law. The Supreme Court has the exclusive authority to reinstate a disbarred or infinitely suspended lawyer to the office of attorney-at-law. It may reinstate him for reasons and upon assurance satisfactory to the court. The courts authority to reinstate, like the power to admit a person to the bar or to remove one therefrom, stems from its constitutional prerogative to issue rules and regulations concerning the admission to the practice of law. The sole object of the Court upon an application for reinstatement to practice, by one previously barred, is to determine whether or not the applicant has satisfied and convinced the court by positive evidence that the effort he has made toward the rehabilitation of his character has been successful, and, therefore, he is entitled to be re-admitted to a profession which is intrinsically an office of trust. (In re Rusiana, 56 SCRA 240)

Matters Taken into Account in Cases of Reinstatement In a petition for reinstatement, the petitioner must allege that he is of such good moral character acquired through positive efforts, honorable dealings and moral reformation as to be fit and proper person to practice law, and possesses such mental qualifications as to enable him to discharge his duties properly.

The quantum of evidence necessary for reinstatement is the same as that to the admission to the bar, except that the court, when the circumstances so warrant, may require an applicant to present additional proof of his qualifications. Thus, the court may require an applicant for reinstatement to enroll in and pass regular fourth year review classes in a recognized law school and to submit evidence of compliance therewith as a condition to readmission to the bar. The question as whether an applicant will be reinstated rests in the sound discretion of the court. In the exercise of such discretion, the court will take into consideration is the applicants character and standing prior to the disbarment and the nature and character of the misconduct for which he was disbarred.

Criteria for Reinstatement A disbarred lawyer may be reinstated based on the following criteria: 1. Appreciation of the significance of his dereliction; 2. Assurance to the court that he now possesses the requisite probity and integrity necessary to guarantee his worthiness to be restored to the practice of law; 3. Time elapsed between disbarment and application for reinstatement; 4. Good conduct and honorable dealing subsequent to his disbarment 5. Active involvement in civic, educational and religious organizations. 6. Favorable endorsement of IBP as well as local government officials and citizens of his community; and 7. Pleas of his mother and wife for the sake and fortune of his family. The Supreme Court, in addition to the required rehabilitation of the applicant for reinstatement may require special conditions to be fulfilled by the applicant.

Effect of Reinstatement It wipes out the restrictions and disabilities resulting from a previous disbarment. The reinstatement of a disbarred or infinitely suspended lawyer to the office of attorney-at-law is recognition of his moral rehabilitation and mental fitness to practice law. He will still thereafter be

subject to the same law, rules, and regulations as those applicable to any other lawyer and shall moreover comply with the conditions if any, imposed on his readmission.

Executive Pardon To be reinstated, there is still a need for the filing of an appropriate petition with the supreme court even if the respondent has been pardoned. Effects of Executive Pardon During the Pendency of a Disbarment Proceeding- The dismissal of the case will depend on whether the executive pardon is absolute or conditional. If the pardon is absolute or unconditional, the disbarment case will be dismissed. If the Pardon is conditional, the disbarment case will not be dismissed on the basis thereof.

In re Gutierrez, 5 SCRA 663 Attorney Gutierrez was convicted for the murder of one Filemon Samaco in 1956. He was sentenced to the penalty of reclusion perpetua. In 1958, after serving a portion of the penalty, he was granted a conditional pardon by the President. He was released on the condition that he shall not commit any crime. Subsequently, the widow of Samaco filed a disbarment case against Gutierrez by reason of the latters conviction of a crime involving moral turpitude. Murder, is without a doubt, such a crime. ISSUE: Whether or not Gutierrez may be disbarred considering the fact that he was granted pardon. HELD: Yes. The pardon granted to Gutierrez is not absolute but conditional. It merely remitted his sentence. It does not reach the offense itself. Gutierrez must be judged upon the fact of his conviction for murder without regard to the pardon (which he invoked in defense). The crime was actually qualified by treachery and aggravated by its having been committed in hand, by taking advantage of his official position (Gutierrez being municipal mayor at the time) and with the use of motor vehicle. The degree of moral turpitude involved is such as to justify his being purged from the profession.