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CAYETANO VS MONSOD FACTS Monsod was nominated by President Aquino to the position of Chairman of the COMELEC on April 25,

1991. Cayetano opposed the nomination because allegedly Monsod does not possess the required qualification of having been engaged in the practice of law for at least ten years. Challenging the validity of the confirmation by the Commission on Appointments of Monsods nomination, petitioner filed a petition for Certiorari and Prohibition praying that said confirmation and the consequent appointment of Monsod as Chairman of the Commission on Elections be declared null and void because Monsod did not meet the requirement of having practiced law for the last ten years. ISSUE: Whether or not Monsod satisfies the requirement of the position of Chairman of the COMELEC. HELD: The practice of law is not limited to the conduct of cases in court. A person is also considered to be in the practice of law when he: . . . for valuable consideration engages in the business of advising person, firms, associations or corporations as to their rights under the law, or appears in a representative capacity as an advocate in proceedings pending or prospective, before any court, commissioner, referee, board, body, committee, or commission constituted by law or authorized to settle controversies. Otherwise stated, one who, in a representative capacity, engages in the business of advising clients as to their rights under the law, or while so engaged performs any act or acts either in court or outside of court for that purpose, is engaged in the practice of law. Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of 1960 with a grade of 86.55%. He has been a dues paying member of the Integrated Bar of the Philippines since its inception in 1972-73. He has also been paying his professional license fees as lawyer for more than ten years. Atty. Monsods past work experiences as a lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyerlegislator of both the rich and the poor verily more than satisfy the constitutional requirement that he has been engaged in the practice of law for at least ten years. G.R. No. 100113 September 3, 1991 RENATO CAYETANO, petitioner, vs. CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacity as Secretary of Budget and Management, respondents. Renato L. Cayetano for and in his own behalf. Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.

PARAS, J.:p

We are faced here with a controversy of far-reaching proportions. While ostensibly only legal issues are involved, the Court's decision in this case would indubitably have a profound effect on the political aspect of our national existence. The 1987 Constitution provides in Section 1 (1), Article IX-C: There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elective position in the immediately preceding -elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (Emphasis supplied) The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution which similarly provides: There shall be an independent Commission on Elections composed of a Chairman and eight Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age and holders of a college degree. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years.' (Emphasis supplied) Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as a legal qualification to an appointive office. Black defines "practice of law" as: The rendition of services requiring the knowledge and the application of legal principles and technique to serve the interest of another with his consent. It is not limited to appearing in court, or advising and assisting in the conduct of litigation, but embraces the preparation of pleadings, and other papers incident to actions and special proceedings, conveyancing, the preparation of legal instruments of all kinds, and the giving of all legal advice to clients. It embraces all advice to clients and all actions taken for them in matters connected with the law. An attorney engages in the practice of law by maintaining an office where he is held out to be-an attorney, using a letterhead describing himself as an attorney, counseling clients in legal matters, negotiating with opposing counsel about pending litigation, and fixing and collecting fees for services rendered by his associate. (Black's Law Dictionary, 3rd ed.) The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co. v. Dworken,129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in the practice of law when he: ... for valuable consideration engages in the business of advising person, firms, associations or corporations as to their rights under the law, or appears in a representative capacity as an advocate in proceedings pending or prospective, before any court, commissioner, referee, board, body, committee, or commission constituted by law or authorized to settle controversies and there, in such representative capacity performs any act or acts for the purpose of obtaining or defending the rights of their clients under the law. Otherwise stated, one who, in a representative capacity, engages in the business of advising clients as to their rights

under the law, or while so engaged performs any act or acts either in court or outside of court for that purpose, is engaged in the practice of law. (State ex. rel. Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852) This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177) stated: The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings and other papers incident to actions and special proceedings, the management of such actions and proceedings on behalf of clients before judges and courts, and in addition, conveying. In general, all advice to clients, and all action taken for them in mattersconnected with the law incorporation services, assessment and condemnation services contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy and insolvency proceedings, and conducting proceedings in attachment, and in matters of estate and guardianship have been held to constitute law practice, as do the preparation and drafting of legal instruments, where the work done involves the determination by the trained legal mind of the legal effect of facts and conditions. (5 Am. Jr. p. 262, 263). (Emphasis supplied) Practice of law under modem conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety of subjects, and the preparation and execution of legal instruments covering an extensive field of business and trust relations and other affairs. Although these transactions may have no direct connection with court proceedings, they are always subject to become involved in litigation. They require in many aspects a high degree of legal skill, a wide experience with men and affairs, and great capacity for adaptation to difficult and complex situations. These customary functions of an attorney or counselor at law bear an intimate relation to the administration of justice by the courts. No valid distinction, so far as concerns the question set forth in the order, can be drawn between that part of the work of the lawyer which involves appearance in court and that part which involves advice and drafting of instruments in his office. It is of importance to the welfare of the public that these manifold customary functions be performed by persons possessed of adequate learning and skill, of sound moral character, and acting at all times under the heavy trust obligations to clients which rests upon all attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] , p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139,144). (Emphasis ours) The University of the Philippines Law Center in conducting orientation briefing for new lawyers (1974-1975) listed the dimensions of the practice of law in even broader terms as advocacy, counselling and public service. One may be a practicing attorney in following any line of employment in the profession. If what he does exacts knowledge of the law and is of a kind usual for attorneys engaging in the active practice of their profession, and he follows some one or more lines of employment such as this he is a practicing attorney at law within the meaning of the statute. (Barr v. Cardell, 155 NW 312) Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. "To engage in the practice of law is to perform those

acts which are characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill." (111 ALR 23) The following records of the 1986 Constitutional Commission show that it has adopted a liberal interpretation of the term "practice of law." MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do during our review of the provisions on the Commission on Audit. May I be allowed to make a very brief statement? THE PRESIDING OFFICER (Mr. Jamir). The Commissioner will please proceed. MR. FOZ. This has to do with the qualifications of the members of the Commission on Audit. Among others, the qualifications provided for by Section I is that "They must be Members of the Philippine Bar" I am quoting from the provision "who have been engaged in the practice of law for at least ten years". To avoid any misunderstanding which would result in excluding members of the Bar who are now employed in the COA or Commission on Audit, we would like to make the clarification that this provision on qualifications regarding members of the Bar does not necessarily refer or involve actual practice of law outside the COA We have to interpret this to mean that as long as the lawyers who are employed in the COA are using their legal knowledge or legal talent in their respective work within COA, then they are qualified to be considered for appointment as members or commissioners, even chairman, of the Commission on Audit. This has been discussed by the Committee on Constitutional Commissions and Agencies and we deem it important to take it up on the floor so that this interpretation may be made available whenever this provision on the qualifications as regards members of the Philippine Bar engaging in the practice of law for at least ten years is taken up. MR. OPLE. Will Commissioner Foz yield to just one question. MR. FOZ. Yes, Mr. Presiding Officer. MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to the requirement of a law practice that is set forth in the Article on the Commission on Audit? MR. FOZ. We must consider the fact that the work of COA, although it is auditing, will necessarily involve legal work; it will involve legal work. And, therefore, lawyers who are employed in COA now would have the necessary qualifications in accordance with the Provision on qualifications under our provisions on the Commission on Audit. And, therefore, the answer is yes.

MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the practice of law. MR. FOZ. Yes, Mr. Presiding Officer. MR. OPLE. Thank you. ... ( Emphasis supplied) Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman and two Commissioners of the Commission on Audit (COA) should either be certified public accountants with not less than ten years of auditing practice, or members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (emphasis supplied) Corollary to this is the term "private practitioner" and which is in many ways synonymous with the word "lawyer." Today, although many lawyers do not engage in private practice, it is still a fact that the majority of lawyers are private practitioners. (Gary Munneke, Opportunities in Law Careers [VGM Career Horizons: Illinois], [1986], p. 15). At this point, it might be helpful to define private practice. The term, as commonly understood, means "an individual or organization engaged in the business of delivering legal services." (Ibid.). Lawyers who practice alone are often called "sole practitioners." Groups of lawyers are called "firms." The firm is usually a partnership and members of the firm are the partners. Some firms may be organized as professional corporations and the members called shareholders. In either case, the members of the firm are the experienced attorneys. In most firms, there are younger or more inexperienced salaried attorneyscalled "associates." (Ibid.). The test that defines law practice by looking to traditional areas of law practice is essentially tautologous, unhelpful defining the practice of law as that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. 593). The practice of law is defined as the performance of any acts . . . in or out of court, commonly understood to be the practice of law. (State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers perform almost every function known in the commercial and governmental realm, such a definition would obviously be too global to be workable.(Wolfram, op. cit.). The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar role for lawyers as well as an uncommon role for the average lawyer. Most lawyers spend little time in courtrooms, and a large percentage spend their entire practice without litigating a case. (Ibid., p. 593). Nonetheless, many lawyers do continue to litigate and the litigating lawyer's role colors much of both the public image and the self perception of the legal profession. (Ibid.). In this regard thus, the dominance of litigation in the public mind reflects history, not reality. (Ibid.). Why is this so? Recall that the late Alexander SyCip, a corporate lawyer, once articulated on the importance of a lawyer as a business counselor in this wise: "Even today, there are still uninformed laymen whose concept of an attorney is one who principally tries cases before the courts. The members of the bench and bar and the informed laymen such as businessmen, know that in most developed societies today, substantially more legal work is transacted in law offices than in the courtrooms. General practitioners of law who do both litigation and non-litigation work also know that in most cases they find themselves spending more time doing what [is] loosely desccribe[d] as business counseling than in trying cases. The business lawyer has been described as the planner, the diagnostician and the trial lawyer, the surgeon. I[t] need not [be] stress[ed] that in law, as in

medicine, surgery should be avoided where internal medicine can be effective." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4). In the course of a working day the average general practitioner wig engage in a number of legal tasks, each involving different legal doctrines, legal skills, legal processes, legal institutions, clients, and other interested parties. Even the increasing numbers of lawyers in specialized practice wig usually perform at least some legal services outside their specialty. And even within a narrow specialty such as tax practice, a lawyer will shift from one legal task or role such as advice-giving to an importantly different one such as representing a client before an administrative agency. (Wolfram, supra, p. 687). By no means will most of this work involve litigation, unless the lawyer is one of the relatively rare types a litigator who specializes in this work to the exclusion of much else. Instead, the work will require the lawyer to have mastered the full range of traditional lawyer skills of client counselling, advice-giving, document drafting, and negotiation. And increasingly lawyers find that the new skills of evaluation and mediation are both effective for many clients and a source of employment. (Ibid.). Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very important ways, at least theoretically, so as to remove from it some of the salient features of adversarial litigation. Of these special roles, the most prominent is that of prosecutor. In some lawyers' work the constraints are imposed both by the nature of the client and by the way in which the lawyer is organized into a social unit to perform that work. The most common of these roles are those of corporate practice and government legal service. (Ibid.). In several issues of the Business Star, a business daily, herein below quoted are emerging trends in corporate law practice, a departure from the traditional concept of practice of law. We are experiencing today what truly may be called a revolutionary transformation in corporate law practice. Lawyers and other professional groups, in particular those members participating in various legal-policy decisional contexts, are finding that understanding the major emerging trends in corporation law is indispensable to intelligent decision-making. Constructive adjustment to major corporate problems of today requires an accurate understanding of the nature and implications of the corporate law research function accompanied by an accelerating rate of information accumulation. The recognition of the need for such improved corporate legal policy formulation, particularly "modelmaking" and "contingency planning," has impressed upon us the inadequacy of traditional procedures in many decisional contexts. In a complex legal problem the mass of information to be processed, the sorting and weighing of significant conditional factors, the appraisal of major trends, the necessity of estimating the consequences of given courses of action, and the need for fast decision and response in situations of acute danger have prompted the use of sophisticated concepts of information flow theory, operational analysis, automatic data processing, and electronic computing equipment. Understandably, an improved decisional structure must stress the predictive component of the policy-making process, wherein a "model", of the decisional context or a segment thereof is developed to test projected alternative courses of action in terms of futuristic effects flowing therefrom.

Although members of the legal profession are regularly engaged in predicting and projecting the trends of the law, the subject of corporate finance law has received relatively little organized and formalized attention in the philosophy of advancing corporate legal education. Nonetheless, a cross-disciplinary approach to legal research has become a vital necessity. Certainly, the general orientation for productive contributions by those trained primarily in the law can be improved through an early introduction to multi-variable decisional context and the various approaches for handling such problems. Lawyers, particularly with either a master's or doctorate degree in business administration or management, functioning at the legal policy level of decision-making now have some appreciation for the concepts and analytical techniques of other professions which are currently engaged in similar types of complex decision-making. Truth to tell, many situations involving corporate finance problems would require the services of an astute attorney because of the complex legal implications that arise from each and every necessary step in securing and maintaining the business issue raised. (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4). In our litigation-prone country, a corporate lawyer is assiduously referred to as the "abogado de campanilla." He is the "big-time" lawyer, earning big money and with a clientele composed of the tycoons and magnates of business and industry. Despite the growing number of corporate lawyers, many people could not explain what it is that a corporate lawyer does. For one, the number of attorneys employed by a single corporation will vary with the size and type of the corporation. Many smaller and some large corporations farm out all their legal problems to private law firms. Many others have in-house counsel only for certain matters. Other corporation have a staff large enough to handle most legal problems in-house. A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal affairs of a corporation. His areas of concern or jurisdiction may include, inter alia: corporate legal research, tax laws research, acting out as corporate secretary (in board meetings), appearances in both courts and other adjudicatory agencies (including the Securities and Exchange Commission), and in other capacities which require an ability to deal with the law. At any rate, a corporate lawyer may assume responsibilities other than the legal affairs of the business of the corporation he is representing. These include such matters as determining policy and becoming involved in management. ( Emphasis supplied.) In a big company, for example, one may have a feeling of being isolated from the action, or not understanding how one's work actually fits into the work of the orgarnization. This can be frustrating to someone who needs to see the results of his work first hand. In short, a corporate lawyer is sometimes offered this fortune to be more closely involved in the running of the business. Moreover, a corporate lawyer's services may sometimes be engaged by a multinational corporation (MNC). Some large MNCs provide one of the few opportunities available to corporate lawyers to enter the international law field. After all, international law is practiced in a relatively small number of companies and law

firms. Because working in a foreign country is perceived by many as glamorous, tills is an area coveted by corporate lawyers. In most cases, however, the overseas jobs go to experienced attorneys while the younger attorneys do their "international practice" in law libraries. (Business Star, "Corporate Law Practice," May 25,1990, p. 4). This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To borrow the lines of Harvard-educated lawyer Bruce Wassertein, to wit: "A bad lawyer is one who fails to spot problems, a good lawyer is one who perceives the difficulties, and the excellent lawyer is one who surmounts them." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4). Today, the study of corporate law practice direly needs a "shot in the arm," so to speak. No longer are we talking of the traditional law teaching method of confining the subject study to the Corporation Code and the Securities Code but an incursion as well into the intertwining modern management issues. Such corporate legal management issues deal primarily with three (3) types of learning: (1) acquisition of insights into current advances which are of particular significance to the corporate counsel; (2) an introduction to usable disciplinary skins applicable to a corporate counsel's management responsibilities; and (3) a devotion to the organization and management of the legal function itself. These three subject areas may be thought of as intersecting circles, with a shared area linking them. Otherwise known as "intersecting managerial jurisprudence," it forms a unifying theme for the corporate counsel's total learning. Some current advances in behavior and policy sciences affect the counsel's role. For that matter, the corporate lawyer reviews the globalization process, including the resulting strategic repositioning that the firms he provides counsel for are required to make, and the need to think about a corporation's; strategy at multiple levels. The salience of the nation-state is being reduced as firms deal both with global multinational entities and simultaneously with sub-national governmental units. Firms increasingly collaborate not only with public entities but with each other often with those who are competitors in other arenas. Also, the nature of the lawyer's participation in decision-making within the corporation is rapidly changing. The modem corporate lawyer has gained a new role as a stakeholder in some cases participating in the organization and operations of governance through participation on boards and other decision-making roles. Often these new patterns develop alongside existing legal institutions and laws are perceived as barriers. These trends are complicated as corporations organize for global operations. ( Emphasis supplied) The practising lawyer of today is familiar as well with governmental policies toward the promotion and management of technology. New collaborative arrangements for promoting specific technologies or competitiveness more generally require approaches from industry that differ from older, more adversarial relationships and traditional forms of seeking to influence governmental policies. And there are lessons to be learned from other countries. In Europe, Esprit, Eureka and Race are examples of collaborative efforts between governmental and business Japan's MITI is world famous. (Emphasis supplied)

Following the concept of boundary spanning, the office of the Corporate Counsel comprises a distinct group within the managerial structure of all kinds of organizations. Effectiveness of both long-term and temporary groups within organizations has been found to be related to indentifiable factors in the groupcontext interaction such as the groups actively revising their knowledge of the environment coordinating work with outsiders, promoting team achievements within the organization. In general, such external activities are better predictors of team performance than internal group processes. In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-vis the managerial mettle of corporations are challenged. Current research is seeking ways both to anticipate effective managerial procedures and to understand relationships of financial liability and insurance considerations. (Emphasis supplied) Regarding the skills to apply by the corporate counsel, three factors are apropos: First System Dynamics. The field of systems dynamics has been found an effective tool for new managerial thinking regarding both planning and pressing immediate problems. An understanding of the role of feedback loops, inventory levels, and rates of flow, enable users to simulate all sorts of systematic problems physical, economic, managerial, social, and psychological. New programming techniques now make the system dynamics principles more accessible to managers including corporate counsels. (Emphasis supplied) Second Decision Analysis. This enables users to make better decisions involving complexity and uncertainty. In the context of a law department, it can be used to appraise the settlement value of litigation, aid in negotiation settlement, and minimize the cost and risk involved in managing a portfolio of cases. (Emphasis supplied) Third Modeling for Negotiation Management. Computer-based models can be used directly by parties and mediators in all lands of negotiations. All integrated set of such tools provide coherent and effective negotiation support, including hands-on on instruction in these techniques. A simulation case of an international joint venture may be used to illustrate the point. [Be this as it may,] the organization and management of the legal function, concern three pointed areas of consideration, thus: Preventive Lawyering. Planning by lawyers requires special skills that comprise a major part of the general counsel's responsibilities. They differ from those of remedial law. Preventive lawyering is concerned with minimizing the risks of legal trouble and maximizing legal rights for such legal entities at that time when transactional or similar facts are being considered and made. Managerial Jurisprudence. This is the framework within which are undertaken those activities of the firm to which legal consequences attach. It needs to be directly supportive of this nation's evolving economic and organizational fabric as firms change to stay competitive in a global, interdependent environment. The practice and theory of "law" is not adequate today to facilitate the relationships needed in trying to make a global economy work.

Organization and Functioning of the Corporate Counsel's Office. The general counsel has emerged in the last decade as one of the most vibrant subsets of the legal profession. The corporate counsel hear responsibility for key aspects of the firm's strategic issues, including structuring its global operations, managing improved relationships with an increasingly diversified body of employees, managing expanded liability exposure, creating new and varied interactions with public decision-makers, coping internally with more complex make or by decisions. This whole exercise drives home the thesis that knowing corporate law is not enough to make one a good general corporate counsel nor to give him a full sense of how the legal system shapes corporate activities. And even if the corporate lawyer's aim is not the understand all of the law's effects on corporate activities, he must, at the very least, also gain a working knowledge of the management issues if only to be able to grasp not only the basic legal "constitution' or makeup of the modem corporation. "Business Star", "The Corporate Counsel," April 10, 1991, p. 4). The challenge for lawyers (both of the bar and the bench) is to have more than a passing knowledge of financial law affecting each aspect of their work. Yet, many would admit to ignorance of vast tracts of the financial law territory. What transpires next is a dilemma of professional security: Will the lawyer admit ignorance and risk opprobrium?; or will he feign understanding and risk exposure? (Business Star, "Corporate Finance law," Jan. 11, 1989, p. 4). Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of Chairman of the COMELEC in a letter received by the Secretariat of the Commission on Appointments on April 25, 1991. Petitioner opposed the nomination because allegedly Monsod does not possess the required qualification of having been engaged in the practice of law for at least ten years. On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as Chairman of the COMELEC. On June 18, 1991, he took his oath of office. On the same day, he assumed office as Chairman of the COMELEC. Challenging the validity of the confirmation by the Commission on Appointments of Monsod's nomination, petitioner as a citizen and taxpayer, filed the instant petition for certiorari and Prohibition praying that said confirmation and the consequent appointment of Monsod as Chairman of the Commission on Elections be declared null and void. Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of 1960 with a grade of 86-55%. He has been a dues paying member of the Integrated Bar of the Philippines since its inception in 1972-73. He has also been paying his professional license fees as lawyer for more than ten years. (p. 124, Rollo) After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod worked in the law office of his father. During his stint in the World Bank Group (1963-1970), Monsod worked as an operations officer for about two years in Costa Rica and Panama, which involved getting acquainted with the laws of member-countries negotiating loans and coordinating legal, economic, and project work of the Bank. Upon returning to the Philippines in 1970, he worked with the Meralco Group, served as chief executive officer of an investment bank and subsequently of a business conglomerate, and since 1986, has rendered services to various companies as a legal and economic consultant or chief executive officer. As former Secretary-General (1986) and National Chairman (1987) of NAMFREL. Monsod's work involved being knowledgeable in election law. He

appeared for NAMFREL in its accreditation hearings before the Comelec. In the field of advocacy, Monsod, in his personal capacity and as former Co-Chairman of the Bishops Businessmen's Conference for Human Development, has worked with the under privileged sectors, such as the farmer and urban poor groups, in initiating, lobbying for and engaging in affirmative action for the agrarian reform law and lately the urban land reform bill. Monsod also made use of his legal knowledge as a member of the Davide Commission, a quast judicial body, which conducted numerous hearings (1990) and as a member of the Constitutional Commission (1986-1987), and Chairman of its Committee on Accountability of Public Officers, for which he was cited by the President of the Commission, Justice Cecilia Muoz-Palma for "innumerable amendments to reconcile government functions with individual freedoms and public accountability and the party-list system for the House of Representative. (pp. 128-129 Rollo) ( Emphasis supplied) Just a word about the work of a negotiating team of which Atty. Monsod used to be a member. In a loan agreement, for instance, a negotiating panel acts as a team, and which is adequately constituted to meet the various contingencies that arise during a negotiation. Besides top officials of the Borrower concerned, there are the legal officer (such as the legal counsel), the finance manager, and an operations officer (such as an official involved in negotiating the contracts) who comprise the members of the team. (Guillermo V. Soliven, "Loan Negotiating Strategies for Developing Country Borrowers," Staff Paper No. 2, Central Bank of the Philippines, Manila, 1982, p. 11). (Emphasis supplied) After a fashion, the loan agreement is like a country's Constitution; it lays down the law as far as the loan transaction is concerned. Thus, the meat of any Loan Agreement can be compartmentalized into five (5) fundamental parts: (1) business terms; (2) borrower's representation; (3) conditions of closing; (4) covenants; and (5) events of default. (Ibid., p. 13). In the same vein, lawyers play an important role in any debt restructuring program. For aside from performing the tasks of legislative drafting and legal advising, they score national development policies as key factors in maintaining their countries' sovereignty. (Condensed from the work paper, entitled "Wanted: Development Lawyers for Developing Nations," submitted by L. Michael Hager, regional legal adviser of the United States Agency for International Development, during the Session on Law for the Development of Nations at the Abidjan World Conference in Ivory Coast, sponsored by the World Peace Through Law Center on August 26-31, 1973). ( Emphasis supplied) Loan concessions and compromises, perhaps even more so than purely renegotiation policies, demand expertise in the law of contracts, in legislation and agreement drafting and in renegotiation. Necessarily, a sovereign lawyer may work with an international business specialist or an economist in the formulation of a model loan agreement. Debt restructuring contract agreements contain such a mixture of technical language that they should be carefully drafted and signed only with the advise of competent counsel in conjunction with the guidance of adequate technical support personnel. (See International Law Aspects of the Philippine External Debts, an unpublished dissertation, U.S.T. Graduate School of Law, 1987, p. 321). ( Emphasis supplied) A critical aspect of sovereign debt restructuring/contract construction is the set of terms and conditions which determines the contractual remedies for a failure to

perform one or more elements of the contract. A good agreement must not only define the responsibilities of both parties, but must also state the recourse open to either party when the other fails to discharge an obligation. For a compleat debt restructuring represents a devotion to that principle which in the ultimate analysis is sine qua non for foreign loan agreements-an adherence to the rule of law in domestic and international affairs of whose kind U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. once said: "They carry no banners, they beat no drums; but where they are, men learn that bustle and bush are not the equal of quiet genius and serene mastery." (See Ricardo J. Romulo, "The Role of Lawyers in Foreign Investments," Integrated Bar of the Philippine Journal, Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265). Interpreted in the light of the various definitions of the term Practice of law". particularly the modern concept of law practice, and taking into consideration the liberal construction intended by the framers of the Constitution, Atty. Monsod's past work experiences as a lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both the rich and the poor verily more than satisfy the constitutional requirement that he has been engaged in the practice of law for at least ten years. Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court said: Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide. (emphasis supplied) No less emphatic was the Court in the case of (Central Bank v. Civil Service Commission, 171 SCRA 744) where it stated: It is well-settled that when the appointee is qualified, as in this case, and all the other legal requirements are satisfied, the Commission has no alternative but to attest to the appointment in accordance with the Civil Service Law. The Commission has no authority to revoke an appointment on the ground that another person is more qualified for a particular position. It also has no authority to direct the appointment of a substitute of its choice. To do so would be an encroachment on the discretion vested upon the appointing authority. An appointment is essentially within the discretionary power of whomsoever it is vested, subject to the only condition that the appointee should possess the qualifications required by law. ( Emphasis supplied) The appointing process in a regular appointment as in the case at bar, consists of four (4) stages: (1) nomination; (2) confirmation by the Commission on Appointments; (3) issuance of a commission (in the Philippines, upon submission by the Commission on Appointments of its certificate of confirmation, the President issues the permanent appointment; and (4) acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson v. Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers, p. 200) The power of the Commission on Appointments to give its consent to the nomination of Monsod as Chairman of the Commission on Elections is mandated by Section 1(2) Sub-Article C, Article IX of the Constitution which provides:

The Chairman and the Commisioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition of the practice of law is the traditional or stereotyped notion of law practice, as distinguished from the modern concept of the practice of law, which modern connotation is exactly what was intended by the eminent framers of the 1987 Constitution. Moreover, Justice Padilla's definition would require generally a habitual law practice, perhaps practised two or three times a week and would outlaw say, law practice once or twice a year for ten consecutive years. Clearly, this is far from the constitutional intent. Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written opinion, I made use of a definition of law practice which really means nothing because the definition says that law practice " . . . is what people ordinarily mean by the practice of law." True I cited the definition but only by way of sarcasm as evident from my statement that the definition of law practice by "traditional areas of law practice is essentially tautologous" or defining a phrase by means of the phrase itself that is being defined. Justice Cruz goes on to say in substance that since the law covers almost all situations, most individuals, in making use of the law, or in advising others on what the law means, are actually practicing law. In that sense, perhaps, but we should not lose sight of the fact that Mr. Monsod is a lawyer, a member of the Philippine Bar, who has been practising law for over ten years. This is different from the acts of persons practising law, without first becoming lawyers. Justice Cruz also says that the Supreme Court can even disqualify an elected President of the Philippines, say, on the ground that he lacks one or more qualifications. This matter, I greatly doubt. For one thing, how can an action or petition be brought against the President? And even assuming that he is indeed disqualified, how can the action be entertained since he is the incumbent President? We now proceed: The Commission on the basis of evidence submitted doling the public hearings on Monsod's confirmation, implicitly determined that he possessed the necessary qualifications as required by law. The judgment rendered by the Commission in the exercise of such an acknowledged power is beyond judicial interference except only upon a clear showing of a grave abuse of discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of discretion is clearly shown shall the Court interfere with the Commission's judgment. In the instant case, there is no occasion for the exercise of the Court's corrective power, since no abuse, much less a grave abuse of discretion, that would amount to lack or excess of jurisdiction and would warrant the issuance of the writs prayed, for has been clearly shown. Additionally, consider the following:

(1) If the Commission on Appointments rejects a nominee by the President, may the Supreme Court reverse the Commission, and thus in effect confirm the appointment? Clearly, the answer is in the negative. (2) In the same vein, may the Court reject the nominee, whom the Commission has confirmed? The answer is likewise clear. (3) If the United States Senate (which is the confirming body in the U.S. Congress) decides to confirma Presidential nominee, it would be incredible that the U.S. Supreme Court would still reverse the U.S. Senate. Finally, one significant legal maxim is: We must interpret not by the letter that killeth, but by the spirit that giveth life. Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah (who was Samson's beloved) for help in capturing Samson. Delilah agreed on condition that No blade shall touch his skin; No blood shall flow from his veins. When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod burning white-hot two or three inches away from in front of Samson's eyes. This blinded the man. Upon hearing of what had happened to her beloved, Delilah was beside herself with anger, and fuming with righteous fury, accused the procurator of reneging on his word. The procurator calmly replied: "Did any blade touch his skin? Did any blood flow from his veins?" The procurator was clearly relying on the letter, not the spirit of the agreement. In view of the foregoing, this petition is hereby DISMISSED. SO ORDERED.

G.R. No. 161070 : April 14, 2008 JOHN HILARIO y SIBAL, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent. DECISION AUSTRIA-MARTINEZ, J.: Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court filed by John Hilario y Sibal (petitioner), seeking to annul and set aside the Resolutions dated August 19, 20031 and November 28 20032 of the Court of Appeals in CA-G.R. SP No. 75820. The antecedents are as follows:
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Petitioner, together with one Gilbert Alijid (Alijid), was charged with two counts3 of Murder in the Regional Trial Court (RTC), Branch 76, Quezon City to which petitioner, assisted by counsel de parte, pleaded not guilty. During trial, Atty. Raul Rivera of the Public Attorney's Office (PAO), counsel of Alijid, took over representing petitioner in view of the death of the latter's counsel. On December 5, 2001, the RTC rendered its Decision4 finding petitioner and his co-accused Alijid guilty beyond reasonable doubt of the crime of homicide and sentencing them to suffer imprisonment of eight (8) years and one (1) day of prision mayor to fourteen (14) years and eight (8) months of reclusion temporal in each count. On May 10, 2002, petitioner, this time unassisted by counsel, filed with the RTC a Petition for Relief5 from the Decision dated December 5, 2001 together with an affidavit of merit. In his petition, petitioner contended that at the time of the promulgation of the judgment, he was already confined at Quezon City Jail and was directed to be committed to the National Penitentiary in Muntinlupa; that he had no way of personally filing the notice of appeal thus he instructed his lawyer to file it on his behalf; that he had no choice but to repose his full trust and confidence to his lawyer; that he had instructed his lawyer to file the necessary motion for reconsideration or notice of appeal; that on May 2, 2002, he was already incarcerated at the New Bilibid Prisons, Muntinlupa City and learned from the grapevine of his impending transfer to the Iwahig Penal Colony, Palawan; that believing that the notice of appeal filed by his counsel prevented the Decision dated December 5, 2001 from becoming final to warrant his transfer, he instructed his representative to get a copy of the notice of appeal from the RTC; that no notice of appeal was filed by his lawyer in defiance of his clear instructions; and that the RTC Decision showed that it was received by his counsel on February 1, 2002 and yet the counsel did not inform him of any action taken thereon. Petitioner claimed that he had a meritorious defense, to wit: 1. The Decision dated December 5, 2001, on page 16 thereof states an imprisonment term of eight (8) years and one (1) day of Prision Mayor to fourteen (14) years and eight (8) months of Reclusion Temporal - a matter which ought to be rectified; 2. The undersigned is a first time offender; 3. No ruling was laid down on the stipulated facts (Decision, p. 3) relative to the (1) absence of counsel during the alleged inquest, and (2) absence of warrant in arresting the accused after ten (10) days from the commission of the crime;

4. Absence of a corroborating witness to the purported lone eyewitness, as against the corroborated testimony of accused-petitioner's alibi; 5. The Commission on Human Rights investigation on the torture of the accused-petitioner; 6. and others.6 Petitioner argued that he was meted a total of 16 years imprisonment or almost equal to the previous capital punishment of 20 years which was given an automatic review by the Supreme Court, thus it is of greater interest of justice that his case be reviewed by the appellate court; and that no damage will be sustained if the appeal is given due course since he continues to languish in jail while the Petition for Relief is pending. The Assistant City Prosecutor filed his Comment on the Petition for Relief where he contended that the petition should no longer be entertained; and that perfection of appeal in the manner and within the period permitted by law was not only mandatory but jurisdictional and failure to perfect the appeal rendered the judgment final and executory. The records do not show that the RTC required petitioner's counsel to whom petitioner attributed the act of not filing the notice of appeal to file his comment. On September 30, 2002, petitioner's counsel filed a Withdrawal of Appearance7 from the case with petitioner's consent. Again, the documents before us do not show the action taken by the RTC thereon. In an Order8 dated December 13, 2002, the RTC dismissed petitioner's petition for relief with the following disquisition: After a careful study of the instant petition and the arguments raised by the contending parties, the Court is not persuaded by petitioner/accused's allegation that he was prevented from filing a notice of appeal due to excusable negligence of his counsel. Accused's allegation that he indeed specifically instructed his counsel to file a notice of appeal of the Decision dated [sic] and the latter did not heed his instruction is at best self-serving and unsubstantiated and thus, unworthy of credence. At any rate, even if said omission should be considered as negligence, it is a well-settled rule that negligence of counsel is binding on the client. x x x Besides, nowhere does it appear that accused/petitioner was prevented from fairly presenting his defense nor does it appear that he was prejudiced as the merits of this case were adequately passed upon in the Decision dated December 5, 2001. It must also be pointed out that in his petition for relief, he stated that he instructed his counsel to file the necessary motion for reconsideration or notice of appeal of the Decision dated December 5, 2001, whereas in his affidavit of merit, he claimed to have told his counsel to simply file a notice of appeal thereof.9 (Emphasis supplied) Petitioner, again by himself, filed a petition for certiorari with the CA on the ground that the RTC committed grave abuse of discretion in dismissing his petition for relief. He claims that the delay in appealing his case without his fault constitutes excusable negligence to warrant the granting of his petition for relief. In a Resolution dated August 19, 2003, the CA dismissed the petition in this wise: It appearing that petitioner in the instant petition for certiorari failed to attach the following documents cited in his petition, namely:

1. The December 5, 2001 Decision; 2. Comment of the City Prosecutor; 3. Manifestation of petitioner's counsel de oficio signifying his withdrawal as petitioner's counsel. The instant petition for certiorari is hereby DISMISSED pursuant to Section 2, Rule 42 of the 1997 Rules of Civil Procedure and as prayed for by the Solicitor General.10 Petitioner's motion for reconsideration was denied in a Resolution dated November 28, 2003 for having been filed beyond the 15-day reglementary period, in violation of Section 1, Rule 52 of the Rules of Court and for failure to attach to the petition, the relevant and pertinent documents. The CA also stressed that procedural rules are not to be belittled simply because their non-observance may have resulted in prejudice to a party's substantive rights. Hence, herein recourse filed by petitioner, still unassisted by counsel, raising the following issues: Whether or not the delay in appealing the instant case due to the defiance of the petitioner's counselde oficio to seasonably file a Notice of Appeal, constitutes excusable negligence to entitle the undersigned detention prisoner/ petitioner to pursue his appeal?
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Whether or not pro hac vice, the mere invocation of justice warrants the review of a final and executory judgment? Petitioner contends that the negligence of his counsel de oficio cannot be binding on him for the latter's defiance of his instruction to appeal automatically breaks the fiduciary relationship between counsel-client and cannot be against the client who was prejudiced; that this breach of trust cannot easily be concocted in this situation considering that it was a counsel de oficio, a lawyer from PAO, who broke the fiduciary relationship; that the assailed CA Resolutions both harped on technicalities to uphold the dismissal by the RTC of his petition for relief; that reliance on technicalities to the prejudice of petitioner who is serving 14 years imprisonment for a crime he did not commit is an affront to the policy promulgated by this Court that dismissal purely on technical grounds is frowned upon especially if it will result to unfairness; and that it would have been for the best interest of justice for the CA to have directed the petitioner to complete the records instead of dismissing the petition outright. In his Comment, the OSG argues that the mere invocation of justice does not warrant the review of an appeal from a final and executory judgment; that perfection of an appeal in the manner and within the period laid down by law is not only mandatory but jurisdictional and failure to perfect the appeal renders the judgment sought to be reviewed final and not appealable; and that petitioner's appeal after the finality of judgment of conviction is an exercise in futility, thus the RTC properly dismissed petitioner's petition for relief from judgment. The OSG further claims that notice to counsel is notice to clients and failure of counsel to notify his client of an adverse judgment would not constitute excusable negligence and therefore binding on the client. We grant the petition. The CA dismissed the petition for certiorari filed under Rule 65 of the Rules of Court, in relation to Rule 46, on the ground that petitioner failed to attach certain documents which the CA found to be relevant and pertinent to the petition for certiorari. The requirements to attach such relevant pleadings under Section 1, Rule 65 is read in relation to Section 3, Rule 46 of the Rules of Court, thus: Section 1, Rule 65 provides:
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SECTION. 1. Petition for certiorari . xxx The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto x x x. Section 3, Rule 46, provides:
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SEC. 3. Contents and filing of petition; effect of non-compliance with requirements. xxx [The petition] shall be x x x accompanied by a clearly legible duplicate original or certified true copy of the judgment, order, resolution, or ruling subject thereof, such material portions of the record as are referred to therein, and other documents relevant or pertinent thereto x x x. xxx The failure of the petitioner to comply with any of the foregoing requirements shall be sufficient ground for the dismissal of the petition. The initial determination of what pleadings, documents or orders are relevant and pertinent to the petition rests on the petitioner. If, upon its initial review of the petition, the CA is of the view that additional pleadings, documents or order should have been submitted and appended to the petition, the following are its options: (a) dismiss the petition under the last paragraph of Rule 46 of the Rules of Court; (b) order the petitioner to submit the required additional pleadings, documents, or order within a specific period of time; or (c) order the petitioner to file an amended petition appending thereto the required pleadings, documents or order within a fixed period.11
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The RTC Decision dated December 5, 2001, finding petitioner guilty of two counts of homicide, the Comment of the City Prosecutor as well as the counsel's withdrawal of appearance were considered by the CA as relevant and pertinent to the petition for certiorari, thus it dismissed the petition for failure to attach the same. However, the CA failed to consider the fact that the petition before it was filed by petitioner, a detained prisoner, without the benefit of counsel. A litigant who is not a lawyer is not expected to know the rules of procedure. In fact, even the most experienced lawyers get tangled in the web of procedure.12 We have held in a civil case that to demand as much from ordinary citizens whose only compelle intrare is their sense of right would turn the legal system into an intimidating monstrosity where an individual may be stripped of his property rights not because he has no right to the property but because he does not know how to establish such right.13 This finds application specially if the liberty of a person is at stake. As we held in Telan v. Court of Appeals: The right to counsel in civil cases exists just as forcefully as in criminal cases, specially so when as a consequence, life, liberty, or property is subjected to restraint or in danger of loss. In criminal cases, the right of an accused person to be assisted by a member of the bar is immutable. Otherwise, there would be a grave denial of due process. Thus, even if the judgment had become final and executory, it may still be recalled, and the accused afforded the opportunity to be heard by himself and counsel. xxx Even the most experienced lawyers get tangled in the web of procedure. The demand as much from ordinary citizens whose only compelle intrare is their sense of right would turn the legal system into

an intimidating monstrosity where an individual may be stripped of his property rights not because he has no right to the property but because he does not know how to establish such right. The right to counsel is absolute and may be invoked at all times. More so, in the case of an on-going litigation, it is a right that must be exercised at every step of the way, with the lawyer faithfully keeping his client company. No arrangement or interpretation of law could be as absurd as the position that the right to counsel exists only in the trial courts and that thereafter, the right ceases in the pursuit of the appeal.14(Emphasis supplied) The filing of the petition for certiorari by petitioner without counsel should have alerted the CA and should have required petitioner to cause the entry of appearance of his counsel. Although the petition filed before the CA was a petition for certiorari assailing the RTC Order dismissing the petition for relief, the ultimate relief being sought by petitioner was to be given the chance to file an appeal from his conviction, thus the need for a counsel is more pronounced. To repeat the ruling in Telan, no arrangement or interpretation of law could be as absurd as the position that the right to counsel exists only in the trial courts and that thereafter, the right ceases in the pursuit of the appeal.15 It is even more important to note that petitioner was not assisted by counsel when he filed his petition for relief from judgment with the RTC. It cannot be overstressed therefore, that in criminal cases, as held in Telan, the right of an accused person to be assisted by a member of the bar is immutable; otherwise, there would be a grave denial of due process. Cases should be determined on the merits after full opportunity to all parties for ventilation of their causes and defenses, rather than on technicality or some procedural imperfections. In that way, the ends of justice would be served better.16
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The CA denied petitioner's motion for reconsideration for having been filed late. It appears that the CA Resolution dismissing the petition for certiorari was received at the address written in the petition on September 1, 2003, and that petitioner filed his motion for reconsideration on September 18, 2003, or two days late. While as a general rule, the failure of petitioner to file his motion for reconsideration within the 15-day reglementary period fixed by law rendered the resolution final and executory, we have on some occasions relaxed this rule. Thus, in Barnes v. Padilla17 we held: However, this Court has relaxed this rule in order to serve substantial justice considering (a) matters of life, liberty, honor or property, (b) the existence of special or compelling circumstances, (c) the merits of the case, (d) a cause not entirely attributable to the fault or negligence of the party favored by the suspension of the rules, (e) a lack of any showing that the review sought is merely frivolous and dilatory, and (f) the other party will not be unjustly prejudiced thereby. Invariably, rules of procedure should be viewed as mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be eschewed. Even the Rules of Court reflects this principle. The power to suspend or even disregard rules can be so pervasive and compelling as to alter even that which this Court itself had already declared to be final. In De Guzman v. Sandiganbayan, this Court, speaking through the late Justice Ricardo J. Francisco, had occasion to state: The Rules of Court was conceived and promulgated to set forth guidelines in the dispensation of justice but not to bind and chain the hand that dispenses it, for otherwise, courts will be mere slaves to or robots of technical rules, shorn of judicial discretion. That is precisely why courts in rendering

justice have always been, as they ought to be guided by the norm that when on the balance, technicalities take a backseat against substantive rights, and not the other way around. Truly then, technicalities, in the appropriate language of Justice Makalintal, "should give way to the realities of the situation. Indeed, the emerging trend in the rulings of this Court is to afford every party litigant the amplest opportunity for the proper and just determination of his cause, free from the constraints of technicalities.18 Moreover, in Basco v. Court of Appeals,19 we also held: Nonetheless, procedural rules were conceived to aid the attainment of justice. If a stringent application of the rules would hinder rather than serve the demands of substantial justice, the former must yield to the latter. Recognizing this, Section 2, Rule 1 of the Rules of Court specifically provides that:
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SECTION 2. Construction. - These rules shall be liberally construed in order to promote their object and to assist the parties in obtaining just, speedy, and inexpensive determination of every action and proceeding.20 Petitioner claims that he actually received the CA Resolution dismissing his petition for certiorari only on September 4, 2003 even as the same Resolution was earlier received on September 1, 2003 at the address written in his petition,i.e., c/o Robert S. Bacuraya, No. 9 Iris St., West Fairview, 1118, Quezon City, by a certain Leonora Coronel. Apparently, Bacuraya is not a lawyer. Ordinarily, petitioner being detained at the National Penitentiary, Muntinlupa, the CA should have also sent a copy of such Resolution to his place of detention. Considering that petitioner only received the Resolution on September 4, 2003, we find the two days delay in filing his motion for reconsideration pardonable as it did not cause any prejudice to the other party. There is no showing that petitioner was motivated by a desire to delay the proceedings or obstruct the administration of justice. The suspension of the Rules is warranted in this case since the procedural infirmity was not entirely attributable to the fault or negligence of petitioner. Rules of procedure are mere tools designed to expedite the decision or resolution of cases and other matters pending in court. A strict and rigid application of rules that would result in technicalities that tend to frustrate rather than promote substantial justice must be avoided.21
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In dismissing the petition for certiorari filed before it, the CA clearly put a premium on technicalities and brushed aside the issue raised before it by petitioner, i.e., whether the RTC committed grave abuse of discretion in dismissing petitioner's petition for relief thus preventing him from taking an appeal from his conviction. Even if the judgment had become final and executory, it may still be recalled, and the accused afforded the opportunity to be heard by himself and counsel.22 However, instead of remanding the case to the CA for a decision on the merits, we opt to resolve the same so as not to further delay the final disposition of this case. The RTC denied the petition for relief as it found petitioner's claim that his counsel did not heed his instruction to file an appeal to be unsubstantiated and self serving; and that if there was indeed such omission committed by the counsel, such negligence is binding on the client. Petitioner insists that the failure of his counsel to timely file a notice of appeal of his judgment of conviction despite his explicit instruction to do so constitutes excusable negligence and so his petition for relief should have been granted. We find that the RTC committed grave abuse of discretion in dismissing petitioner's petition for relief from judgment.

Petitioner was represented in the RTC by Atty. Rivera of the PAO. Section 1, Article IV of PAO Memorandum Circular No.18 series of 2002, the Amended Standard Office Procedures in Extending Legal Assistance (PAO Memorandum Circular), provides that all appeals must be made upon the request of the client himself and only meritorious cases shall be appealed; while Section 2, Article II of PAO Memorandum Circular provides that in criminal cases, the accused enjoys the constitutional presumption of innocence until the contrary is proven, hence cases of defendants in criminal actions are considered meritorious and therefore, should be appealed, upon the client's request. In this case, petitioner claims he had instructed the PAO lawyer to file an appeal. Under the PAO Memorandum Circular, it was the duty of the latter to perfect the appeal. Thus, in determining whether the petition for relief from judgment is based on a meritorious ground, it was crucial to ascertain whether petitioner indeed gave explicit instruction to the PAO lawyer to file an appeal but the latter failed to do so. To determine the veracity of petitioner's claim, it was incumbent upon the RTC to have required the PAO lawyer to comment on the petition for relief. However, it appears from the records that the RTC only required the City Prosecutor to file a comment on the petition. The RTC Order dismissing the petition for relief did not touch on the question whether the PAO lawyer was indeed negligent in not filing the appeal as it merely stated that even if said omission, i.e., not filing the appeal despite his client's instruction to do so, should be considered as negligence, it is a well-settled rule that negligence of counsel is binding on the client. While as a general rule, negligence of counsel may not be condoned and should bind the client,23 the exception is when the negligence of counsel is so gross, reckless and inexcusable that the client is deprived of his day in court.24In Aguilar v. Court of Appeals,25 we held: x x x Losing liberty by default of an insensitive lawyer should be frowned upon despite the fiction that a client is bound by the mistakes of his lawyer. The established jurisprudence holds: xxx The function of the rule that negligence or mistake of counsel in procedure is imputed to and binding upon the client, as any other procedural rule, is to serve as an instrument to advance the ends of justice. When in the circumstances of each case the rule desert its proper office as an aid to justice and becomes its great hindrance and chief enemy, its rigors must be relaxed to admit exceptions thereto and to prevent a manifest miscarriage of justice. xxx The court has the power to except a particular case from the operation of the rule whenever the purposes of justice require it. xxx If the incompetence, ignorance or inexperience of counsel is so great and the error committed as a result thereof is so serious that the client, who otherwise has a good cause, is prejudiced and denied his day in court, the litigation may be reopened to give the client another chance to present his case. In a criminal proceeding, where certain evidence was not presented because of counsel's error or incompetence, the defendant in order to secure a new trial must satisfy the court that he has a good defense and that the acquittal would in all probability have followed the introduction of the omitted evidence. What should guide judicial action is that a party be given the fullest opportunity to establish the merits of his action or defense rather than for him to lose life, liberty, honor or property on mere technicalities.26

The PAO lawyer, Atty. Rivera, filed his Withdrawal of Appearance on September 30, 2002, almost three months before the RTC rendered its assailed Order dated December 13, 2002, dismissing the petition for relief. The RTC had ample time to require the PAO lawyer to comment on the petition for relief from judgment, before issuing the questioned Order. Had the RTC done so, there would have been a factual basis for the RTC to determine whether or not the PAO lawyer was grossly negligent; and eventually, whether the petition for relief from judgment is meritorious. If there was no instruction from petitioner to file an appeal, then there was no obligation on the part of the PAO lawyer to file an appeal as stated in the PAO Memorandum Circular and negligence could not be attributed to him. However, if indeed there was such an instruction to appeal but the lawyer failed to do so, he could be considered negligent. Thus, there was no basis for the RTC to conclude that the claim of petitioner that he instructed the PAO lawyer to file an appeal as self-serving and unsubstantiated. The RTC's dismissal of the petition for relief was done with grave abuse of discretion amounting to an undue denial of the petitioner's right to appeal. The RTC faulted petitioner for claiming in his petition for relief that he instructed his counsel to file the necessary motion for reconsideration or notice of appeal; while in his affidavit of merit, he claimed to have told his counsel to simply file a notice of appeal. We do not find such circumstance sufficient ground to dismiss the petition considering that he filed the petition for relief unassisted by counsel. In all criminal prosecutions, the accused shall have the right to appeal in the manner prescribed by law. The importance and real purpose of the remedy of appeal has been emphasized in Castro v. Court of Appeals27 where we ruled that an appeal is an essential part of our judicial system and trial courts are advised to proceed with caution so as not to deprive a party of the right to appeal and instructed that every party-litigant should be afforded the amplest opportunity for the proper and just disposition of his cause, freed from the constraints of technicalities.While this right is statutory, once it is granted by law, however, its suppression would be a violation of due process, a right guaranteed by the Constitution. Thus, the importance of finding out whether petitioner's loss of the right to appeal was due to the PAO lawyer's negligence and not at all attributed to petitioner. However, we cannot, in the present petition for review on certiorari, make a conclusive finding that indeed there was excusable negligence on the part of the PAO lawyer which prejudiced petitioner's right to appeal his conviction. To do so would be pure speculation or conjecture. Therefore, a remand of this case to the RTC for the proper determination of the merits of the petition for relief from judgment is just and proper. WHEREFORE, the petition is GRANTED. The Resolutions dated August 19, 2003 and November 28, 2003 of the Court of Appeals are REVERSED and SET ASIDE. The Order dated December 13, 2002 of the Regional Trial Court of Quezon City, Branch 76, is SET ASIDE. The RTC is hereby ordered to require Atty. Raul Rivera of the Public Attorney's Office to file his comment on the petition for relief from judgment filed by petitioner, hold a hearing thereon, and thereafter rule on the merits of the petition for relief from judgment, with dispatch. SO ORDERED.

JONAR SANTIAGO vs. ATTY. EDISON V. RAFANAN A.C. No. 6252, October 5, 2004 FACTS: Complainant Jonar Santiago, an employee of the Bureau of Jail Management and Penology, lodged a disbarment complaint against respondent Atty. Edison Rafanan before the Integrated Bar of the Philippines alleging, inter alia, that Atty. Rafanan violated Rule 12.07 and Rule 12.08 of Canon 12 of the Code of Professional Responsibility when the latter executed an affidavit in favour of his client and offered the same as evidence in a case where he is actively representing his client. The complaint also alleged that after the hearing of the case, respondent accompanied by several persons waited for Complainant and after confronting the latter disarmed him of his sidearm and thereafter uttered insulting words and veiled threats. In his answer, respondent denied having disarmed the complainant and uttered insulting words nor veiled threats against the latter. He however admitted that he executed an affidavit in favour of his client and offered the same as evidence in a case where he is actively representing his client but interposed the defense that lawyers could testify on behalf of their clients "on substantial matters, in cases where [their] testimony is essential to the ends of justice." Complainant charged respondents clients with attempted murder. Respondent averred that since they were in his house when the alleged crime occurred, "his testimony is very essential to the ends of justice. The IBP, while finding that administrative offense was committed by respondent for violating the notarial law, recommended the dismissal of the complaint for alleged violation of Rule 12.07 and Rule 12.08 of Canon 12 of the Code of Professional Responsibility for insufficiency of evidence. Hence, the present action was commenced. ISSUE: May a lawyer testify on substantial matters relative to the cause of the party which he is actively representing in a case without violating the Code of Professional Responsibility? HELD: YES. Parenthetically, under the law, a lawyer is not disqualified from being a witness, except only in certain cases pertaining to privileged communication arising from an attorneyclient relationship. The reason behind such rule is the difficulty posed upon lawyers by the task of dissociating their relation to their clients as witnesses from that as advocates. Witnesses are expected to tell the facts as they recall them. In contradistinction, advocates are partisans -- those who actively plead and defend the cause of others. It is difficult to distinguish the fairness and impartiality of a disinterested witness from the zeal of an advocate. The question is one of propriety rather than of competency of the lawyers who testify for their clients. Thus, although the law does not forbid lawyers from being witnesses and at the same time counsels for a cause, the preference is for them to refrain from testifying as witnesses, unless they absolutely have to; and should they do so, to withdraw from active management of the case. Notwithstanding this guideline and the existence of the Affidavit executed by Atty. Rafanan in favor of his clients, we cannot hastily make him administratively liable for the following reasons:

First, we consider it the duty of a lawyer to assert every remedy and defense that is authorized by law for the benefit of the client, especially in a criminal action in which the latters life and liberty are at stake. Having undertaken the defense of the accused, respondent, as defense counsel, was thus expected to spare no effort to save his clients from a wrong conviction. The Affidavit executed by Atty. Rafanan was clearly necessary for the defense of his clients, since it pointed out the fact that on the alleged date and time of the incident, his clients were at his residence and could not have possibly committed the crime charged against them. Notably, in his Affidavit, complainant does not dispute the statements of respondent or suggest the falsity of its contents. Second, paragraph (b) of Rule 12.08 contemplates a situation in which lawyers give their testimonies during the trial. In this instance, the Affidavit was submitted during the preliminary investigation which, as such, was merely inquisitorial. Not being a trial of the case on the merits, a preliminary investigation has the oft-repeated purposes of securing innocent persons against hasty, malicious and oppressive prosecutions; protecting them from open and public accusations of crime and from the trouble as well as expense and anxiety of a public trial; and protecting the State from useless and expensive prosecutions. The investigation is advisedly called preliminary, as it is yet to be followed by the trial proper. Nonetheless, we deem it important to stress and remind respondent to refrain from accepting employment in any matter in which he knows or has reason to believe that he may be an essential witness for the prospective client. Furthermore, in future cases in which his testimony may become essential to serve the "ends of justice," the canons of the profession require him to withdraw from the active prosecution of these cases.

A.C. No. 6252

October 5, 2004

JONAR SANTIAGO, complainant, vs. Atty. EDISON V. RAFANAN, respondent. DECISION PANGANIBAN, J.: Notaries public are expected to exert utmost care in the performance of their duties, which are impressed with public interest. They are enjoined to comply faithfully with the solemnities and requirements of the Notarial Law. This Court will not hesitate to mete out appropriate sanctions to those who violate it or neglect observance thereof. The Case and the Facts Before us is a verified Complaint1 filed by Jonar Santiago, an employee of the Bureau of Jail Management and Penology (BJMP), for the disbarment of Atty. Edison V. Rafanan. The Complaint was filed with the Commission on Bar Discipline (CBD) of the Integrated Bar of the Philippines (IBP) on January 16, 2001. It charged Atty. Rafanan with deceit; malpractice or other gross misconduct in office under Section 27 of Rule 1382 of the Rules of Court; and violation of Canons 1.01, 1.02 and 1.033, Canon 54, and Canons 12.075 and 12.08 of the Code of Professional Responsibility (CPR).

In his Report, IBP Investigating Commissioner Leland R. Villadolid Jr. summarized the allegations of the complainant in this wise: "x x x. In his Letter-Complaint, Complainant alleged, among others, that Respondent in notarizing several documents on different dates failed and/or refused to: a)make the proper notation regarding the cedula or community tax certificate of the affiants; b) enter the details of the notarized documents in the notarial register; and c) make and execute the certification and enter his PTR and IBP numbers in the documents he had notarized, all in violation of the notarial provisions of the Revised Administrative Code. "Complainant likewise alleged that Respondent executed an Affidavit in favor of his client and offered the same as evidence in the case wherein he was actively representing his client. Finally, Complainant alleges that on a certain date, Respondent accompanied by several persons waited for Complainant after the hearing and after confronting the latter disarmed him of his sidearm and thereafter uttered insulting words and veiled threats."6 On March 23, 2001, pursuant to the January 19, 2001 Order of the CBD,7 Atty. Rafanan filed his verified Answer.8He admitted having administered the oath to the affiants whose Affidavits were attached to the verified Complaint. He believed, however, that the non-notation of their Residence Certificates in the Affidavits and the Counter-affidavits was allowed. He opined that the notation of residence certificates applied only to documents acknowledged by a notary public and was not mandatory for affidavits related to cases pending before courts and other government offices. He pointed out that in the latter, the affidavits, which were sworn to before government prosecutors, did not have to indicate the residence certificates of the affiants. Neither did other notaries public in Nueva Ecija -- some of whom were older practitioners -- indicate the affiants residence certificates on the documents they notarized, or have entries in their notarial register for these documents. As to his alleged failure to comply with the certification required by Section 3 of Rule 1129 of the Rules of Criminal Procedure, respondent explained that as counsel of the affiants, he had the option to comply or not with the certification. To nullify the Affidavits, it was complainant who was dutybound to bring the said noncompliance to the attention of the prosecutor conducting the preliminary investigation. As to his alleged violation of Rule 12.08 of the CPR, respondent argued that lawyers could testify on behalf of their clients "on substantial matters, in cases where [their] testimony is essential to the ends of justice." Complainant charged respondents clients with attempted murder. Respondent averred that since they were in his house when the alleged crime occurred, "his testimony is very essential to the ends of justice." Respondent alleged that it was complainant who had threatened and harassed his clients after the hearing of their case by the provincial prosecutor on January 4, 2001. Respondent requested the assistance of the Cabanatuan City Police the following day, January 5, 2001, which was the next scheduled hearing, to avoid a repetition of the incident and to allay the fears of his clients. In support of his allegations, he submitted Certifications10 from the Cabanatuan City Police and the Joint Affidavit11 of the two police officers who had assisted them. Lastly, he contended that the case had been initiated for no other purpose than to harass him, because he was the counsel of Barangay Captain Ernesto Ramos in the cases filed by the latter before the ombudsman and the BJMP against complainant.

After receipt of respondents Answer, the CBD, through Commissioner Tyrone R. Cimafranca, set the case for hearing on June 5, 2001, at two oclock in the afternoon. Notices12 of the hearing were sent to the parties by registered mail. On the scheduled date and time of the hearing, only complainant appeared. Respondent was unable to do so, apparently because he had received the Notice only on June 8, 2001.13 The hearing was reset to July 3, 2001 at two oclock in the afternoon. On the same day, June 5, 2001, complainant filed his Reply14 to the verified Answer of respondent. The latters Rejoinder was received by the CBD on July 13, 2001.15 It also received complainants Letter-Request16 to dispense with the hearings. Accordingly, it granted that request in its Order17 dated July 24, 2001, issued through Commissioner Cimafranca. It thereby directed the parties to submit their respective memoranda within fifteen days from receipt of the Order, after which the case was to be deemed submitted for resolution. The CBD received complainants Memorandum18 on September 26, 2001. Respondent did not file any. The IBPs Recommendation On September 27, 2003, the IBP Board of Governors issued Resolution No. XVI-200317219 approving and adopting the Investigating Commissioners Report that respondent had violated specific requirements of the Notarial Law on the execution of a certification, the entry of such certification in the notarial register, and the indication of the affiants residence certificate. The IBP Board of Governors found his excuse for the violations unacceptable. It modified, however, the recommendation20 of the investigating commissioner by increasing the fine to "P3,000 with a warning that any repetition of the violation will be dealt with a heavier penalty." The other charges -- violation of Section 27 of Rule 138 of the Rules of Court; and Canons 1.01 to 1.03, 12.07 and 12.08 of the CPR -- were dismissed for insufficiency of evidence. The Courts Ruling We agree with the Resolution of the IBP Board of Governors. Respondents Administrative Liability Violation of the Notarial Law The Notarial Law is explicit on the obligations and duties of notaries public. They are required to certify that the party to every document acknowledged before them has presented the proper residence certificate (or exemption from the residence tax); and to enter its number, place of issue and date as part of such certification.21 They are also required to maintain and keep a notarial register; to enter therein all instruments notarized by them; and to "give to each instrument executed, sworn to, or acknowledged before [them] a number corresponding to the one in [their] register [and to state therein] the page or pages of [their] register, on which the same is recorded."22Failure to perform these duties would result in the revocation of their commission as notaries public.23 These formalities are mandatory and cannot be simply neglected, considering the degree of importance and evidentiary weight attached to notarized documents. Notaries public entering into their commissions are presumed to be aware of these elementary requirements.

In Vda. de Rosales v. Ramos,24 the Court explained the value and meaning of notarization as follows: "The importance attached to the act of notarization cannot be overemphasized. Notarization is not an empty, meaningless, routinary act. It is invested with substantive public interest, such that only those who are qualified or authorized may act as notaries public. Notarization converts a private document into a public document thus making that document admissible in evidence without further proof of its authenticity. A notarial document is by law entitled to full faith and credit upon its face. Courts, administrative agencies and the public at large must be able to rely upon the acknowledgment executed by a notary public and appended to a private instrument." For this reason, notaries public should not take for granted the solemn duties pertaining to their office. Slipshod methods in their performance of the notarial act are never to be countenanced. They are expected to exert utmost care in the performance of their duties,25 which are dictated by public policy and are impressed with public interest. It is clear from the pleadings before us -- and respondent has readily admitted -- that he violated the Notarial Law by failing to enter in the documents notations of the residence certificate, as well as the entry number and the pages of the notarial registry. Respondent believes, however, that noncompliance with those requirements is not mandatory for affidavits relative to cases pending before the courts and government agencies. He points to similar practices of older notaries in Nueva Ecija. We cannot give credence to, much less honor, his claim. His belief that the requirements do not apply to affidavits is patently irrelevant. No law dispenses with these formalities. Au contraire, the Notarial Law makes no qualification or exception. It is appalling and inexcusable that he did away with the basics of notarial procedure allegedly because others were doing so. Being swayed by the bad example of others is not an acceptable justification for breaking the law. We note further that the documents attached to the verified Complaint are the Joint Counter-Affidavit of respondents clients Ernesto Ramos and Rey Geronimo, as well as their witnesses Affidavits relative to Criminal Case No. 69-2000 for attempted murder, filed by complainants brother against the aforementioned clients. These documents became the basis of the present Complaint. As correctly pointed out by the investigating commissioner, Section 3 of Rule 112 of the Rules of Criminal Procedure expressly requires respondent as notary -- in the absence of any fiscal, state prosecutor or government official authorized to administer the oath -- to "certify that he has personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits." Respondent failed to do so with respect to the subject Affidavits and Counter-Affidavits in the belief that -- as counsel for the affiants -- he was not required to comply with the certification requirement. It must be emphasized that the primary duty of lawyers is to obey the laws of the land and promote respect for the law and legal processes.26 They are expected to be in the forefront in the observance and maintenance of the rule of law. This duty carries with it the obligation to be well-informed of the existing laws and to keep abreast with legal developments, recent enactments and jurisprudence.27 It is imperative that they be conversant with basic legal principles. Unless they faithfully comply with such duty, they may not be able to discharge competently and diligently their obligations as members of the bar. Worse, they may become susceptible to committing mistakes.

Where notaries public are lawyers, a graver responsibility is placed upon them by reason of their solemn oath to obey the laws.28 No custom or age-old practice provides sufficient excuse or justification for their failure to adhere to the provisions of the law. In this case, the excuse given by respondent exhibited his clear ignorance of the Notarial Law, the Rules of Criminal Procedure, and the importance of his office as a notary public. Nonetheless, we do not agree with complainants plea to disbar respondent from the practice of law. The power to disbar must be exercised with great caution.29 Disbarment will be imposed as a penalty only in a clear case of misconduct that seriously affects the standing and the character of the lawyer as an officer of the court and a member of the bar. Where any lesser penalty can accomplish the end desired, disbarment should not be decreed.30 Considering the nature of the infraction and the absence of deceit on the part of respondent, we believe that the penalty recommended by the IBP Board of Governors is a sufficient disciplinary measure in this case. Lawyer as Witness for Client Complainant further faults respondent for executing before Prosecutor Leonardo Padolina an affidavit corroborating the defense of alibi proffered by respondents clients, allegedly in violation of Rule 12.08 of the CPR: "A lawyer shall avoid testifying in behalf of his client." Rule 12.08 of Canon 12 of the CPR states: "Rule 12.08 A lawyer shall avoid testifying in behalf of his client, except: a) on formal matters, such as the mailing, authentication or custody of an instrument and the like; b) on substantial matters, in cases where his testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel." Parenthetically, under the law, a lawyer is not disqualified from being a witness,31 except only in certain cases pertaining to privileged communication arising from an attorney-client relationship.32 The reason behind such rule is the difficulty posed upon lawyers by the task of dissociating their relation to their clients as witnesses from that as advocates. Witnesses are expected to tell the facts as they recall them. In contradistinction, advocates are partisans -- those who actively plead and defend the cause of others. It is difficult to distinguish the fairness and impartiality of a disinterested witness from the zeal of an advocate. The question is one of propriety rather than of competency of the lawyers who testify for their clients. "Acting or appearing to act in the double capacity of lawyer and witness for the client will provoke unkind criticism and leave many people to suspect the truthfulness of the lawyer because they cannot believe the lawyer as disinterested. The people will have a plausible reason for thinking, and if their sympathies are against the lawyers client, they will have an opportunity, not likely to be neglected, for charging, that as a witness he fortified it with his own testimony. The testimony of the lawyer becomes doubted and is looked upon as partial and untruthful."33 Thus, although the law does not forbid lawyers from being witnesses and at the same time counsels for a cause, the preference is for them to refrain from testifying as witnesses, unless they absolutely have to; and should they do so, to withdraw from active management of the case.34

Notwithstanding this guideline and the existence of the Affidavit executed by Atty. Rafanan in favor of his clients, we cannot hastily make him administratively liable for the following reasons: First, we consider it the duty of a lawyer to assert every remedy and defense that is authorized by law for the benefit of the client, especially in a criminal action in which the latters life and liberty are at stake.35 It is the fundamental right of the accused to be afforded full opportunity to rebut the charges against them. They are entitled to suggest all those reasonable doubts that may arise from the evidence as to their guilt; and to ensure that if they are convicted, such conviction is according to law. Having undertaken the defense of the accused, respondent, as defense counsel, was thus expected to spare no effort to save his clients from a wrong conviction. He had the duty to present -- by all fair and honorable means -- every defense and mitigating circumstance that the law permitted, to the end that his clients would not be deprived of life, liberty or property, except by due process of law.36 The Affidavit executed by Atty. Rafanan was clearly necessary for the defense of his clients, since it pointed out the fact that on the alleged date and time of the incident, his clients were at his residence and could not have possibly committed the crime charged against them. Notably, in his Affidavit, complainant does not dispute the statements of respondent or suggest the falsity of its contents. Second, paragraph (b) of Rule 12.08 contemplates a situation in which lawyers give their testimonies during the trial. In this instance, the Affidavit was submitted during the preliminary investigation which, as such, was merely inquisitorial.37 Not being a trial of the case on the merits, a preliminary investigation has the oft-repeated purposes of securing innocent persons against hasty, malicious and oppressive prosecutions; protecting them from open and public accusations of crime and from the trouble as well as expense and anxiety of a public trial; and protecting the State from useless and expensive prosecutions.38 The investigation is advisedly called preliminary, as it is yet to be followed by the trial proper. Nonetheless, we deem it important to stress and remind respondent to refrain from accepting employment in any matter in which he knows or has reason to believe that he may be an essential witness for the prospective client. Furthermore, in future cases in which his testimony may become essential to serve the "ends of justice," the canons of the profession require him to withdraw from the active prosecution of these cases. No Proof of Harassment The charge that respondent harassed complainant and uttered insulting words and veiled threats is not supported by evidence. Allegation is never equivalent to proof, and a bare charge cannot be equated with liability.39 It is not the self-serving claim of complainant but the version of respondent that is more credible, considering that the latters allegations are corroborated by the Affidavits of the police officers and the Certifications of the Cabanatuan City Police. WHEREFORE, Atty. Edison V. Rafanan is found guilty of violating the Notarial Law and Canon 5 of the Code of Professional Responsibility and is hereby FINED P3,000 with a warning that similar infractions in the future will be dealt with more severely. SO ORDERED.

SIMON D. PAZ, Complainant,

A.C. No. 6125 Present: QUISUMBING, J., Chairperson, CARPIO, CARPIO MORALES, TINGA, and VELASCO, JR., JJ. Promulgated: September 19, 2006

- versus -

ATTY. PEPITO A. SANCHEZ, Respondent.

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION CARPIO, J.: The Case This is a disbarment complaint filed by Simon D. Paz (complainant) against Atty. Pepito A. Sanchez (respondent) for representing conflicting interests and violation of the lawyers oath. The Facts In his complaint dated 23 July 2003, complainant stated that sometime in 1995, complainant and his partners, Alfredo Uyecioand Petronila Catap, engaged the services of respondent to assist them purchase, as well as document the purchase, of several parcels of land from tenant-farmers in Pampanga. Respondent was also tasked to defend complainants claim on the properties against the claim of a certain George Lizares (Lizares). The complaint arose because respondent, allegedly after the termination of his services in May 2000, filed a complaint before the Department of Agrarian Reform Board (DARAB case) in behalf of one Isidro Dizon (Dizon) for annulment of Transfer Certificate Title No. 420127-R (TCT No. 420127-R) in the name of complainant and his partners.[1] Complainant explained

thatDizons property, covered by Emancipation Patent No. 00708554/Transfer Certificate Title No. 25214 (TCT No. 25214), was among those properties purchased by complainant with respondents assistance. Complainant alleged that respondent is guilty of representing conflicting interests when he represented Dizon in a case involving the same properties and transactions in which he previously acted as complainants counsel. Complainant added that respondent filed the DARAB case with malicious machination because respondent used complainants old address to serve the complaint and summons, enabling respondent to obtain a judgment by default in Dizons favor. Complainant also stated that on 23 June 2003, respondent, despite knowledge of complainants pending petition for review of judgment in the DARAB case, filed a civil case (RTC case) against complainant and Sycamore Venture Corporation[2](Sycamore) before the Regional Trial Court of San Fernando, Pampanga, for annulment of Transfer Certificate of Title No. 483629-R (TCT No. 483629-R).[3] Complainant pointed out that respondent should be punished for forum shopping and preparing a false certification of non-forum shopping because respondent failed to disclose complainants pending petition before the DARAB. Complainant also charged respondent with violation of the lawyers oath because, with malice and full knowledge of the real facts, respondent filed groundless and false suits against complainant, his partners and Sycamore. In his comment dated 2 October 2003, respondent stated that he has been representing the tenant-farmers, including Dizon, in their cases before the DARAB and the courts since 1978. Respondent also represented the tenant-farmers against the claims ofLizares, who filed cases for the cancellation of their emancipation patents. Respondent confirmed that in 1995, complainant and his partners expressed interest in acquiring Dizons property. Respondent also explained that complainant and his partners, as buyers of the tenant-farmers properties, were impleaded as defendants in the Lizares cases. Respondent came to represent complainant and his partners because they did not get a lawyer of their own and allowed respondent to represent them too.[4] On the DARAB case, respondent clarified that the complaint[5] was filed on 15 May 1997 and not, as complainant claimed, after respondents services was terminated in May 2000. Respondent declared that he was compelled to file the case because he felt responsible for the cancellation of TCT No.

25214. Respondent explained that he lent Dizons title to complainant and his partners enabling them to transfer the title in their names. Denying that there was malicious machination in the filing of the DARAB case, respondent stated that the address he placed was the address of complainant in 1997. The 20 August 2002 DARAB decision[6]specifically stated that a copy of the complaint, summons and notices were duly served and received by complainant and his partners. However, complainant and his partners ignored the complaint, summons and notices, which led to the issuance of a judgment [7] in Dizons favor. Moreover, there was entry of judgment on 21 November 2002 and the writ of execution[8] was issued on 10 December 2002. On the RTC case, respondent explained that he was compelled to file the case when he discovered that TCT No. 420127-R, in the name of complainant and his partners, was transferred in the name of Sycamore. Respondent pointed out that unless TCT No. 483629-R is nullified, the Register of Deeds cannot execute the DARAB decision. Respondent denied that he violated the prohibition on forum shopping.[9] Respondent also maintained that the cases he filed were justifiable, tenable and meritorious. In a Resolution dated 12 November 2003, the Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. Commissioner Milagros V. San Juan (Commissioner San Juan) set the case for mandatory conference on 4 March 2004. Both parties appeared and were given ten days to submit their position papers. Both parties complied. The IBPs Report and Recommendation The IBP Board of Governors issued Resolution No. XVI-2005-78 dated 12 March 2005 adopting, with modification,[10]Commissioner San Juans Report and Recommendation finding respondent guilty of violating the prohibition against representing conflicting interests. The IBP Board of Governors recommended the imposition on respondent of a penalty of one year suspension from the practice of law with a warning that a similar offense in the future will be dealt with more severely.

The IBP Board of Governors forwarded the case to the Court as provided under Section 12(b), Rule 139-B[11] of the Rules of Court.

The Courts Ruling The Court finds insufficient evidence to hold respondent liable for forum shopping and for filing groundless suits. However, the Court finds respondent liable for violation of the prohibition on representing conflicting interests. On Respondents Violation of the Rules on Non-Forum Shopping Forum shopping takes place when a litigant files multiple suits, either simultaneously or successively, involving the same parties to secure a favorable judgment.[12] Forum shopping exists if the actions raise identical causes of action, subject matter and issues.[13] The mere filing of several

cases based on the same incident does not necessarily constitute forum shopping.[14] The Court notes that the certification against forum shopping did not form part of the records of the case. However, a comparison of the two cases reveal that there was no forum shopping. Although both cases are related because Dizons property is involved, the reliefs prayed for are different. In the DARAB case, Dizon prayed for the cancellation of TCT No. 420127-R in the name of complainant and his partners. In the RTC case, Dizons widow prayed for the cancellation of TCT No. 483629-R in the name of Sycamore. Respondent cannot be held liable for forum shopping. On Respondents Violation of the Lawyers Oath

Lawyers take an oath that they will not wittingly or willingly promote any groundless, false or unlawful suit, nor give aid or consent to the same. The Court notes that the cases are still pending before the DARAB and the RTC. The Court, therefore, does not have any basis for ruling if there was a violation of the oath. On Respondents Violation of the Prohibition against Representing Conflicting Interests

Rule 15.03 of the Code of Professional Responsibility provides that a lawyer shall not represent conflicting interests except by written consent of all concerned given after full disclosure of the facts. Lawyers are deemed to represent conflicting interests when, in behalf of one client, it is their duty to contend for that which duty to another client requires them to oppose.[15] The proscription against representation of conflicting interest applies to a situation where the opposing parties are present clients in the same action or in an unrelated action.[16] By respondents own admission, when he filed the DARAB case on Dizons behalf against complainant, both complainant and Dizon were respondents clients at that time. Respondent was representing complainant in the cases against Lizares where respondent was duty-bound to defend complainants title over the properties against the claims of Lizares. While it is not clear from the records that the Lizares cases included Dizons property, it is undisputed that respondent acted as complainants counsel in the Lizares cases. At the same time, respondent was also representing Dizon before the DARAB for cancellation of lis pendens[17]involving Dizons property, which cancellation was needed for complainant to purchase the Dizon property. In filing the second DARAB case on Dizons behalf, respondent was duty-bound to assail complainants title over Dizons property, which complainant had purchased from Dizon. Respondent was clearly in a conflict of interest situation. The Court notes that respondent did not specifically deny that he represented conflicting interests. Respondent merely offered to justify his actuations by stating that he felt it was his duty and responsibility to file the case because he f elt responsible for the cancellation of TCT No. 25214 and its subsequent transfer in complainants name.[18] Respondent stated that he will forever be bothered by his conscience if he did not file the case.[19] However, good faith and honest intentions do not excuse the violation of this prohibition.[20] In representing both complainant and Dizon, respondents duty of undivided fidelity and loyalty to his clients was placed under a cloud of doubt. Respondent should have inhibited himself from representing Dizon against complainant in the DARAB and RTC cases to avoid conflict of interest. In Maturan v. Gonzales, the Court said:
The reason for the prohibition is found in the relation of attorney and client, which is one of trust and confidence of the highest

degree. A lawyer becomes familiar with all the facts connected with his clients case. He learns from his client the weak points of the action as well as the strong ones. Such knowledge must be considered sacred and guarded with care. No opportunity must be given him to take advantage of the clients secrets. A lawyer must have the fullest confidence of his client. For if the confidence is abused, the profession will suffer by the loss thereof.[21]

On the Appropriate Penalty Against Respondent In cases involving representation of conflicting interests, the Court has imposed on the erring lawyer either a reprimand,[22] or a suspension from the practice of law from six months[23] to two years.[24] In this case, we deem it proper to suspend respondent from the practice of law for one year as recommended by the IBP. WHEREFORE, the Court finds respondent Atty. Pepito A. Sanchez GUILTY of violating Rule 15.03 of the Code of Professional Responsibility. The Court SUSPENDS respondent from the practice of law for ONE YEAR and WARNS respondent that the commission of a similar act in the future will merit a more severe penalty. Let copies of this decision be furnished the Office of the Bar Confidant, to be appended to respondents personal record as attorney. Likewise, copies shall be furnished to the Integrated Bar of the Philippines and all courts in the country for their information and guidance. SO ORDERED.

FIGUEROA VS BARRANCO JR Facts: Figueroa and Barranco were sweethearts since their teens. Their intimacy eventually resulted to a son born out of wedlock. At this point (1964) Barranco promised Figueroa that he would marry her when he passes the bar examinations. After four takes, he finally passed but did not hold true to his promise of marriage. In 1971, their relationship ended. Years later, he married another woman. When Barranco was about to take his oath to enter the legal profession, Figueroa filed a complaint relaying to the court what happened between her and Barranco. Until 1988, Barranco has filed three motions to dismiss because Figueroa still would not persecute and because for the past years, he has become elected in theSangguniang Bayan, has actively participated in various civicorganizations and has acquired a good standing within his community while the case was pending. The court sought theopinion of the IBP which recommended that Barranco be allowed to take his oath. Figueroa reappeared and intercepted the scheduled oath-taking of Barranco which led to its delay.

Issue: Whether or not Barranco should be allowed to take his oath despite the accusations of Figueroa.

Held: Yes. The maintenance of an intimate relationship between a man and a woman, both of whom had no impediment to marry and voluntarily carried on with the affair, does not amount to a grossly immoral conduct even if a child was born out of the relationship. His previous acts may be said to be a question to his moral character but none of these are so corrupt and false as to constitute a criminal actor so unprincipled or disgraceful as to be reprehensible to a high degree. Her allegations that she was forced to have sexual relations with him cannot lie as evidenced by her continued cohabitation with him even after their child was born in 1964. The ignobleness of his treatment of Figueroa is sufficiently punished by the 26 years that he has been prevented from entering the profession he has worked so hard for.

PATRICIA FIGUEROA, complainant, JR., respondent.

vs. SIMEON

BARRANCO,

RESOLUTION
ROMERO, J.:

In a complaint made way back in 1971, Patricia Figueroa petitioned that respondent Simeon Barranco, Jr. be denied admission to the legal profession. Respondent had passed the 1970 bar examinations on the fourth attempt, after unsuccessful attempts in 1966, 1967 and 1968. Before he could take his oath, however, complainant filed the instant petition averring that respondent and she had been sweethearts, that a child out of wedlock was

born to them and that respondent did not fulfill his repeated promises to marry her. The facts were manifested in hearings held before Investigator Victor F. Sevilla in June and July 1971. Respondent and complainant were townmates in Janiuay, Iloilo. Since 1953, when they were both in their teens, they were steadies. Respondent even acted as escort to complainant when she reigned as Queen at the 1953 town fiesta. Complainant first acceded to sexual congress with respondent sometime in 1960. Their intimacy yielded a son, Rafael Barranco, born on December 11, 1964. It was after the child was born, complainant alleged, that respondent first promised he would marry her after he passes the bar examinations. Their relationship continued and respondent allegedly made more than twenty or thirty promises of marriage. He gave only P10.00 for the child on the latters birthdays. Her trust in him and their relationship ended in 1971, when she learned that respondent married another woman. Hence, this petition.
[1]

Upon complainants motion, the Court authorized the taking of testimonies of witnesses by deposition in 1972. On February 18, 1974, respondent filed a Manifestation and Motion to Dismiss the case citing complainants failure to comment on the motion of Judge Cuello seeking to be relieved from the duty to take aforesaid testimonies by deposition. Complainant filed her comment stating that she had justifiable reasons in failing to file the earlier comment required and that she remains interested in the resolution of the present case. On June 18, 1974, the Court denied respondents motion to dismiss. On October 2, 1980, the Court once again denied a motion to dismiss on the ground of abandonment filed by respondent on September 17, 1979. Respondents third motion to dismiss was noted in the Courts Resolution dated September 15, 1982. In 1988, respondent repeated his request, citing his election as a member of the Sangguniang Bayan of Janiuay, Iloilo from 1980-1986, his active participation in civic organizations and good standing in the community as well as the length of time this case has been pending as reasons to allow him to take his oath as a lawyer.
[2] [3] [4]

On September 29, 1988, the Court resolved to dismiss the complaint for failure of complainant to prosecute the case for an unreasonable period of time and to allow Simeon Barranco, Jr. to take the lawyers oath upon payment of the required fees.
[5]

Respondents hopes were again dashed on November 17, 1988 when the Court, in response to complainants opposition, resolved to cancel his scheduled oath-taking. On June 1, 1993, the Court referred the case to the

Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. The IBPs report dated May 17, 1997 recommended the dismissal of the case and that respondent be allowed to take the lawyers oath. We agree. Respondent was prevented from taking the lawyers oath in 1971 because of the charges of gross immorality made by complainant. To recapitulate, respondent bore an illegitimate child with his sweetheart, Patricia Figueroa, who also claims that he did not fulfill his promise to marry her after he passes the bar examinations. We find that these facts do not constitute gross immorality warranting the permanent exclusion of respondent from the legal profession. His engaging in premarital sexual relations with complainant and promises to marry suggests a doubtful moral character on his part but the same does not constitute grossly immoral conduct. The Court has held that to justify suspension or disbarment the act complained of must not only be immoral, but grossly immoral. A grossly immoral act is one that is so corrupt and false as to constitute a criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree. It is a willful, flagrant, or shameless act which shows a moral indifference to the opinion of respectable members of the community.
[6] [7]

We find the ruling in Arciga v. Maniwang quite relevant because mere intimacy between a man and a woman, both of whom possess no impediment to marry, voluntarily carried on and devoid of any deceit on the part of respondent, is neither so corrupt nor so unprincipled as to warrant the imposition of disciplinary sanction against him, even if as a result of such relationship a child was born out of wedlock.
[8] [9]

Respondent and complainant were sweethearts whose sexual relations were evidently consensual. We do not find complainants assertions that she had been forced into sexual intercourse, credible. She continued to see and be respondents girlfriend even after she had given birth to a son in 1964 and until 1971. All those years of amicable and intimate relations refute her allegations that she was forced to have sexual congress with him. Complainant was then an adult who voluntarily and actively pursued their relationship and was not an innocent young girl who could be easily led astray. Unfortunately, respondent chose to marry and settle permanently with another woman. We cannot castigate a man for seeking out the partner of his

dreams, for marriage is a sacred and perpetual bond which should be entered into because of love, not for any other reason. We cannot help viewing the instant complaint as an act of revenge of a woman scorned, bitter and unforgiving to the end. It is also intended to make respondent suffer severely and it seems, perpetually, sacrificing the profession he worked very hard to be admitted into. Even assuming that his past indiscretions are ignoble, the twenty-six years that respondent has been prevented from being a lawyer constitute sufficient punishment therefor. During this time there appears to be no other indiscretion attributed to him. Respondent, who is now sixty-two years of age, should thus be allowed, albeit belatedly, to take the lawyers oath.
[10]

WHEREFORE, the instant petition is hereby DISMISSED. Respondent Simeon Barranco, Jr. is ALLOWED to take his oath as a lawyer upon payment of the proper fees. SO ORDERED.

[A.C. No. 5916. July 1, 2003]

SELWYN F. LAO, complainant, MEDEL, respondent.

vs. ATTY.

ROBERT

W.

DECISION
PANGANIBAN, J.:

The deliberate failure to pay just debts and the issuance of worthless checks constitute gross misconduct, for which a lawyer may be sanctioned with one-year suspension from the practice of law. The Case and the Facts This administrative case stems from a Complaint-Affidavit filed with the Integrated Bar of the Philippines-Commission on Bar Discipline (IBP-CBD) by Selwyn F. Lao. Atty. Robert W. Medel was charged therein with dishonesty, grave misconduct and conduct unbecoming an attorney.
[1]

The material averments of the Complaint are summarized by the IBP-CBD in this wise: The Complaint arose from the [respondents] persistent refusal to make good on four (4) RCBC checks totaling [t]wenty [t]wo [t]housand (P22,000.00) [p]esos. These dishonored checks were issued by defendant in replacement for previous checks issued to the complainant. Based on the exchange of letters between the parties, it appears that [respondent], in a letter dated June 19, 2001, had committed to forthwith effect immediate settlement of my outstanding obligation ofP22,000.00 with Engr. Lao, at the earliest possible time, preferably, on or before the end of June 2000. Again, in a letter dated July 3, 2000, the [respondent] made a request for a final extension of only ten (10) days from June 30, 2000 (or not later than July 10, 2000), within which to effect payment of P22,000.00 to Engr. Lao. Needless to say, the initiation of this present complaint proves that contrary to his written promises, Atty. Medel never made good on his dishonored checks. Neither has he paid his indebtedness.
[2]

In his Answer dated July 30, 2001, Atty. Medel reasons that because all of his proposals to settle his obligation were rejected, he was unable to comply with his promise to pay complainant. Respondent maintains that the
[3]

Complaint did not constitute a valid ground for disciplinary action because of the following: (a). Under Sec. 27, Rule 138 of the Rules, a member of the Bar, may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a wil[l]ful disobedience of any lawful order of a superior court, or for corruptly or wil[l]fully appearing as an attorney for a party to case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice; (a.1). Applying the afore-cited legal provision to the facts obtaining in the present case, it is clear that the offense with which the respondent is being charged by the complainant, is merely a violation of Batas Pambansa Bilang 22 (B.P. 22, for brevity), which is a special law, and is not punishable under the Revised Penal Code (RPC, for brevity). It is self-evident therefore, that the offense is not in the same category as a violation of Article 315, paragraph 2, (d), RPC, which is issuing a post-dated check or a check in payment of an obligation, with insufficient funds in the drawee bank, through false pretenses or fraudulent acts, executed prior to or simultaneously with the commission of the fraud, which is a crime involving moral turpitude; (b). If the respondent is to be disciplined by the Supreme Court, under Sec. 27, Rule 138 of the Rules, for the issuance of a worthless check, in violation of B.P. 22, for payment of a pre-existing obligation to the complainant, then, verily, the said Rule 138, Sec. 27, would be a cruel and an unjust law, which the Honorable Supreme Court would not countenance; (c). A careful examination of the specific grounds enumerated, for disbarment or suspension of a member of the Bar, under Sec. 27 of Rule 138 of the Rules, clearly shows beyond a shadow of doubt that the alleged issuance of a worthless check, in violation of B.P. 22, is NOT one of the grounds for disciplinary action against a member of the Bar, to warrant his disbarment or suspension from his office as attorney, by the Supreme Court; and (d). The issuance of a worthless check by a member of the Bar, in violation of B.P. 22, does NOT constitute dishonest, immoral or deceitful conduct, under Canon 1 and Rule 1.01 of the Code of Professional Responsibility. This is because, the door to the law profession swings on reluctant hinges. Stated otherwise, unless there is a clear, palpable and unmitigated immoral or deceitful conduct, of a member of the Bar, in violation of his oath as an attorney, by the mere issuance of a worthless check, in

violation of B.P. 22, the Supreme Court is inclined to give the said attorney, the benefit of the doubt.
[4]

On August 22, 2001, complainant submitted his Reply. Thereafter, IBPCBD Commissioner Renato G. Cunanan, to whom the case was assigned by the IBP for investigation and report, scheduled the case for hearing on October 4, 2001. After several cancellations, the parties finally met on May 29, 2002. In that hearing, respondent acknowledged his obligation and committed himself to pay a total of P42,000 (P22,000 for his principal debt and P20,000 for attorneys fees). Complainant agreed to give him until July 4, 2002 to settle the principal debt and to discuss the plan of payment for attorneys fees in the next hearing.
[5]

On July 4, 2002, both parties appeared before the IBP-CBD for their scheduled hearing. But, while waiting for the case to be called, respondent suddenly insisted on leaving, supposedly to attend to a family emergency. Complainants counsel objected and Commissioner Cunanan, who was still conducting a hearing in another case, ordered him to wait. He, however, retorted in a loud voice, Its up to you, this is only disbarment, my family is more important. And, despite the objection and the warning, he arrogantly left. He made no effort to comply with his undertaking to settle his indebtedness before leaving.
[6]

Report and Recommendation of the IBP In his September 19, 2002 Report, Commissioner Cunanan found respondent guilty of violating the attorneys oath and the Code of Professional Responsibility. The former explained that, contrary to the latters claim, violation of BP 22 was a crime that involved moral turpitude. Further, he observed that [w]hile no criminal case may have been instituted against [respondent], it is beyond cavil that indeed, [the latter] committed not one (1) but four counts of violation of BP 22. The refusal [by respondent] to pay his indebtedness, his broken promises, his arrogant attitude towards complainants counsel and the [commission sufficiently] warrant the imposition of sanctions against him. Thus, the investigating commissioner recommended that respondent be suspended from the practice of law.
[7] [8] [9]

In Resolution No. XV-2002-598, the Board of Governors of the IBP adopted the Report and Recommendation of Commissioner Cunanan and resolved to suspend respondent from the practice of law for two years. The
[10]

Resolution, together with the records of the case, was transmitted to this Court for final action, pursuant to Rule 139-B Sec. 12(b). The Courts Ruling We agree with the findings and recommendation of the IBP Board of Governors, but reduce the period of suspension to one year. Administrative Liability of Respondent Lawyers are instruments for the administration of justice. As vanguards of our legal system, they are expected to maintain not only legal proficiency but also a high standard of morality, honesty, integrity and fair dealing. In so doing, the peoples faith and confidence in the judicial system is ensured.
[11]

In the present case, respondent has been brought to this Court for failure to pay his debts and for issuing worthless checks as payment for his loan from complainant. While acknowledging the fact that he issued several worthless checks, he contends that such act constitutes neither a violation of the Code of Professional Responsibility; nor dishonest, immoral or deceitful conduct. The defense proffered by respondent is untenable. It is evident from the records that he made several promises to pay his debt promptly. However, he reneged on his obligation despite sufficient time afforded him. Worse, he refused to recognize any wrongdoing and transferred the blame to complainant, on the contorted reasoning that the latter had refused to accept the formers plan of payment. It must be pointed out that complainant had no obligation to accept it, considering respondents previous failure to comply with earlier payment plans for the same debt. Moreover, before the IBP-CBD, respondent had voluntarily committed himself to the payment of his debts, yet failed again to fulfill his promise. That he had no real intention to settle them is evident from his unremitting failed commitments. His cavalier attitude in incurring debts without any intention of paying for them puts his moral character in serious doubt. Verily, lawyers must at all times faithfully perform their duties to society, to the bar, to the courts and to their clients. As part of those duties, they must promptly pay their financial obligations. Their conduct must always reflect the values and norms of the legal profession as embodied in the Code of Professional Responsibility. On these considerations, the Court may disbar or

suspend lawyers for any professional or private misconduct showing them to be wanting in moral character, honesty, probity and good demeanor -- or to be unworthy to continue as officers of the Court.
[12]

It is equally disturbing that respondent remorselessly issued a series of worthless checks, unmindful of the deleterious effects of such act to public interest and public order.
[13]

Canon 1 of the Code of Professional Responsibility mandates all members of the bar to obey the laws of the land and promote respect for law. Rule 1.01 of the Code specifically provides that [a] lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. In Co v.Bernardino, the Court considered the issuance of worthless checks as a violation of this Rule and an act constituting gross misconduct. It explained thus:
[14]

The general rule is that a lawyer may not be suspended or disbarred, and the court may not ordinarily assume jurisdiction to discipline him for misconduct in his nonprofessional or private capacity (In Re Pelaez, 44 Phil. 5569 [1923]). Where, however, the misconduct outside of the lawyer's professional dealings is so gross a character as to show him morally unfit for the office and unworthy of the privilege which his licenses and the law confer on him, the court may be justified in suspending or removing him from the office of attorney (In Re Sotto, 38 Phil. 569 [1923]). The evidence on record clearly shows respondent's propensity to issue bad checks. This gross misconduct on his part, though not related to his professional duties as a member of the bar, puts his moral character in serious doubt. The Commission, however, does not find him a hopeless case in the light of the fact that he eventually paid his obligation to the complainant, albeit very much delayed. While it is true that there was no attorney-client relationship between complainant and respondent as the transaction between them did not require the professional legal services of respondent, nevertheless respondent's abject conduct merits condemnation from this Court. As early as 1923, however, the Court laid down in In Re Vicente Pelaez [44 Phil.567 (1923)] the principle that it can exercise its power to discipline lawyers for causes which do not involve the relationship of an attorney and client x x x In disciplining the respondent, Mr. Justice Malcolm said: x x x As a general rule, a court will not assume jurisdiction to discipline one of its officers for misconduct alleged to have been committed in his private capacity. But this is a general rule with many exceptions x x x. The nature of the office, the trust relation which exists between attorney and client, as well as between court and attorney, and the statutory rules prescribing the qualifications of attorneys, uniformly require that an attorney shall be

a person of good moral character. If that qualification is a condition precedent to a license or privilege to enter upon the practice of the law, it would seem to be equally essential during the continuance of the practice and the exercise of the privilege. So it is held that an attorney will be removed not only for malpractice and dishonesty in his profession, but also for gross misconduct not connected with his professional duties, which shows him to be unfit for the office and unworthy of the privileges which his license and the law confer upon him x x x. Ten years later, in Piatt v. Abordo where the erring lawyer was suspended for one year from the practice of law for attempting to engage in an opium deal, Justice Malcolm reiterated that an attorney may be removed not only for malpractice and dishonesty in his profession, but also for gross misconduct not related to his professional duties which show him to be an unfit and unworthy lawyer. The courts are not curators of the morals of the bar. At the same time the profession is not compelled to harbor all persons whatever their character, who are fortunate enough to keep out of prison. As good character is an essential qualification for admission of an attorney to practice, when the attorney's character is bad in such respects as to show that he is unsafe and unfit to be entrusted with the powers of an attorney, the courts retain the power to discipline him x x x Of all classes and professions, the lawyer is most sacredly bound to uphold the law x x x and to that doctrine we give our unqualified support." We likewise take notice of the high-handed manner in which respondent dealt with Commissioner Cunanan during the July 4, 2002 hearing, when the former was expected to settle his obligation with complainant. We cannot countenance the discourtesy of respondent. He should be reminded that the IBP has disciplinary authority over him by virtue of his membership therein.
[15]

Thus, it was imperative for him to respect the authority of the officer assigned to investigate his case. Assuming that he had a very important personal matter to attend to, he could have politely explained his predicament to the investigating commissioner and asked permission to leave immediately. Unfortunately, the former showed dismal behavior by raising his voice and leaving without the consent of complainant and the investigating commissioner. We stress that membership in the legal profession is a privilege. It demands a high degree of good moral character, not only as a condition precedent to admission, but also as a continuing requirement for the practice of law. In this case, respondent fell short of the exacting standards expected of him as a guardian of law and justice.
[16] [17] [18]

Accordingly, administrative sanction is warranted by his gross misconduct. The IBP Board of Governors recommended that he be suspended from the practice of law for two years. However, in line with Co v. Bernardino, Ducat Jr. v. Villalon Jr. and Saburnido v.Madroo -which also involved gross misconduct of lawyers -- we find the suspension of one year sufficient in this case.
[19] [20] [21]

WHEREFORE, Atty. Robert W. Medel is found guilty of gross misconduct and is hereby SUSPENDED for one year from the practice of law, effective upon his receipt of this Decision. He is warned that a repetition of the same or a similar act will be dealt with more severely. Let copies of this Decision be entered in the record of respondent and served on the IBP, as well as on the court administrator who shall circulate it to all courts for their information and guidance. SO ORDERED.

Cheng vs. Agravante [A.C. No. 6183. March 23, 2004] Ponente: YNARES-SANTIAGO, J. FACTS: Respondent Atty. Alexander M. Agravante served as counsel for The Rogemson Co., Inc. (Rogemson for brevity) in a case filed against it before the National Labor Relations Commissions (NLRC) by its former employee, a certain Beaver Martin B. Barril. The decision ordered Rogemson to pay Barril separation pay and backwages. A copy of said decision was received by respondents law office on September 8, 1998. However, respondent filed a Memorandum of Appeal with the NLRC only on September 22, 1998. Consequently, the NLRC dismissed Rogemsons appeal. The complainants terminated the services of Atty. Agravante. Through their new lawyers, complainants wrote Atty. Agravante, demanding that they be compensated for the pecuniary damages they had suffered as a result of his negligence. When it appeared that Atty. Agravante had no intention of responding to their letter, Edison G. Cheng, General Manager of Rogemson, filed an affidavit-complaint with the IBP Commission on Bar Discipline. Agravante tells a different story. Respondent alleges that he was out of town on said date and only returned to his office on September 10, 1998. Upon arriving at the office, his secretary handed to him all the correspondence addressed to him, including the envelope containing the Labor Arbiters decision. He alleges that there were several markings on this particular envelope, one of which was the date September 10, 1998, and he allegedly assumed that this was the date of receipt by his office. ISSUE: Whether or not the Atty. Agravante is guilty of violating Rules 10.01 and 18.03 of the Code of Professional Responsibility. HELD: YES. Respondent was suspended from practice of law for one (1) year and is fined the amount of Ten Thousand Pesos (P10,000.00). RATIO: *R+espondents filing of the Memorandum of Appeal four (4) days after the deadline proves that his efforts fell short of the diligence required of a lawyer. His failure to perfect an appeal within the prescribed period constitutes negligence and malpractice proscribed by the Code of Professional Responsibility, which provide that a lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable. 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 18.03 A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable. *T+he belated filing of the Memorandum of Appeal cannot in any way mitigate respondents liability; on the contrary, it shows ignorance on his part. As a lawyer, he ought to know that his Memorandum of Appeal, having been filed beyond the reglementary period, would surely be struck down for late filing.

[A.C. No. 6183. March 23, 2004]

EDISON G. CHENG, complainant, AGRAVANTE, respondent.

vs. ATTY.

ALEXANDER

M.

DECISION
YNARES-SANTIAGO, J.:

This is an administrative case for disbarment filed with the Integrated Bar of Philippines (IBP) Commission on Bar Discipline. The following facts have been established by the evidence. Respondent Atty. Alexander M. Agravante served as counsel for The Rogemson Co., Inc. (hereinafter, Rogemson) in a case filed against it before the National Labor Relations Commissions (NLRC) Regional Arbitration Branch No. XI in Davao City by its former employee, a certain Beaver Martin B. Barril. On June 18, 1998, Labor Arbiter Newton R. Sancho rendered a decision in favor of the complainant, and ordered Rogemson to pay Barril separation pay and backwages. A copy of said decision was received by respondents law office on September 8, 1998. However, respondent filed a Memorandum of Appeal with the NLRC only on September 22, 1998. Consequently, the NLRC dismissed Rogemsons appeal in a Resolution dated May 27, 1999, and made the following incisive observation:
[1]

In the case at bar, respondents through counsel were duly served with a copy of the decision (Vol. 1, pp. 67-70) of Labor Arbiter Newton R. Sancho, dated 18 June 1998, declaring complainant illegally dismissed from employment and awarding him with separation pay and backwages in the total sum of P130,000.00 on September 8, 1998, Tuesday, said date being indicated in the mailed decisions registry return receipt which is attached to the records (Vol. 1, p. 75). Consequently, respondents had ten

(10) calendar days but not later than September 18, 1998, Friday to perfect their appeal therefrom. However, the records similarly bear that this present appeal was filed belatedly by way of mail on 22 September 1998. It is necessary to state these facts candidly given the inaccurate certification by respondents counsel that he received the decision being assailed on September 10, 1998. (Vol. 2, p. 7) The complainants terminated the services of Atty. Agravante. Through their new lawyers, complainants wrote Atty. Agravante, demanding that they be compensated for the pecuniary damages they had suffered as a result of his negligence.
[2]

When it appeared that Atty. Agravante had no intention of responding to their letter, Edison G. Cheng, General Manager of Rogemson, filed an affidavit-complaint with the IBP Commission on Bar Discipline. The case was then assigned to Commissioner Caesar R. Dulay for investigation.
[3]

Allan P. Abelgas, Rogemsons Regional Sales Manager for Cebu, testified that he only learned of the decision of the Labor Arbiter when a secretary of Atty. Agravante informed him that a bond was required in filing an appeal to the NLRC. Abelgas was then about to take an emergency leave of absence, so he delegated the task of securing the bond to his sister Sheila A. Balandra, another Rogemson employee.
[4]

Balandra testified that on September 18, 1998, she called up Cheng in Manila by phone, who then authorized her to procure the bond. Balandra then called the office of Atty. Agravante to ask if she can submit the bond on Monday, September 21, 1998. She was told to stay on the line while the secretary consulted with one of the other lawyers in the office. When the secretary came back, she informed Balandra that she could submit the bond on Monday, September 21, 1998 as long as it reached the law office before 5:00 p.m.
[5]

On September 21, 1998, Balandra arrived at the office of Atty. Agravante with the bond at 4:00 p.m. She learned that Atty. Agravante had just returned from out of town and had just opened the envelope containing the adverse decision.
[6]

Not surprisingly, Agravante tells a different story. He neither admitted nor denied receiving the decision of the Labor Arbiter on September 8, 1998. Instead, he alleges that he was out of town on said date and only returned to his office on September 10, 1998. Upon arriving at the office, his secretary handed to him all the correspondence addressed to him, including the envelope containing the Labor Arbiters decision. He alleges that there were several markings on this particular envelope, one of which was the date

September 10, 1998, and he allegedly assumed that this was the date of receipt by his office. He then informed Abelgas of the result of the case and the period within which to file a Memorandum of Appeal. The instruction for Rogemson to proceed with the appeal came a full six (6) days later. He offered the services of his law office for procuring the appeal bond, but he was informed that Rogemson would take care of it. He alleges that Rogemson furnished them with the bond only in the morning of September 22, 1998, although the bond documents were notarized on September 21, 1998.
[7] [8] [9]

On July 23, 2003, Commissioner Dulay submitted his Report recommending that respondent be suspended from the practice of law for two (2) months with an admonition that a similar offense would be dealt with more severely.
[10]

On August 30, 2003, the Board of Governors of the IBP passed Resolution No. XVI-2003-97, approving the Report and Recommendation of the Investigating Commissioner. The investigating commissioner found that Balandras testimony that she furnished Agravantes law office with the appeal bond on September 21, 1998 and not on September 22, 1998, was not sufficiently rebutted by Agravante, who did not even cross-examine her. More importantly, the fact that the Memorandum of Appeal was filed four (4) days beyond the reglementary period for filing the same, which resulted in its dismissal by the NLRC, shows that Agravante was guilty of negligence.
[11]

With regard to the date of receipt of the Labor Arbiters decision, the registry return card indicated that respondent received the same on September 8, 1998. Thus, Commissioner Dulay concluded that Agravante misled the NLRC when he certified in his Memorandum of Appeal that he received the adverse decision of the Labor Arbiter on September 10, 1998.
[12] [13]

Before lawyers are admitted to the bar, they must first solemnly swear to do no falsehood nor consent to the doing of any in court. This oath, to which all lawyers subscribe in solemn agreement to dedicate themselves to the pursuit of justice, is not a mere ceremony or formality for practicing law to be forgotten afterwards, nor is it mere words, drift and hollow, but a sacred trust that every lawyer must uphold and keep inviolable at all times. This duty is expressed in general terms in the Code of Professional Responsibility, thus:
[14] [15]

CANON 10--- A lawyer owes candor, fairness and good faith to the court. It is codified further in the following rule of the Code of Professional Responsibility:

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. In the case at bar, Agravante lied when he said he received the Labor Arbiters decision on September 10, 1998 in order to make it appear that his Memorandum of Appeal was filed on time. It cannot be stressed enough how important it is for a lawyer as an officer of the court to observe honesty at all times, especially before the courts. A lawyer must be a disciple of truth, and Agravante has clearly failed to live up to this duty.
[16] [17]

Moreover, the Code of Professional Responsibility states that: CANON 18 --- A lawyer shall serve his client with competence and diligence. xxx xxx xxx

Rule 18.03 --- A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable. A lawyer owes entire devotion in protecting the interest of his client, warmth and zeal in the defense of his rights. He must use all his learning and ability to the end that nothing can be taken or withheld from his client except in accordance with the law. He must present every remedy or defense within the authority of the law in support of his clients 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.
[18]

In this case, respondents filing of the Memorandum of Appeal four (4) days after the deadline proves that his efforts fell short of the diligence required of a lawyer. His failure to perfect an appeal within the prescribed period constitutes negligence and malpractice proscribed by the Code of Professional Responsibility, which provide that a lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable.
[19]

Agravantes insistence that it was not his place to file an appeal without express instructions from his client to do so is not persuasive. He could easily withdraw the appeal if his client should later decide not to pursue the same.
[20]

Furthermore, the belated filing of the Memorandum of Appeal cannot in any way mitigate respondents liability; on the contrary, it shows ignorance on

his part. As a lawyer, he ought to know that his Memorandum of Appeal, having been filed beyond the reglementary period, would surely be struck down for late filing.
[21]

In sum, respondent utterly failed to perform his duties and responsibilities faithfully and well as to protect the rights and interests of his client.
[22]

A word regarding the imposable penalty. In the case of Perea v. Almadro, the respondent therein was similarly punished for negligence in the discharge of his duty as well as misrepresentation committed before the court. In said case, the respondent lawyer failed to file a demurrer to the evidence after asking for leave to file the same. He compounded this transgression by spinning concocting stories about the loss of the file of his draft, which somehow led him to believe that the pleading had already been filed. Finding him guilty of serious neglect of his duties as a lawyer and of open disrespect for the court and the authority it represents, as embodied in Canon 18, Rules 18.03 and 18.04 and Canon 10, Rule 10.01 of the Code of Professional Responsibility, the Court suspended the respondent therein from the practice of law for one (1) year and imposed a fine in the amount of Ten Thousand (P10,000.00) Pesos, with warning that any similar acts of dishonesty would be dealt with more severely. Evidently, this case seems to be on all fours with the case at bar, so we are thus constrained to increase the penalty recommended by the IBP.
[23] [24]

WHEREFORE, in view of the foregoing, respondent Atty. Alexander M. Agravante is SUSPENDED from the practice of law for a period of one (1) year and is FINED in the amount of Ten Thousand Pesos (P10,000.00). He is STERNLY WARNED that a repetition of the same or similar offense will be dealt with more severely. No costs. SO ORDERED.

[A.C. No. 2884. January 28, 1998]

IRENE RAYOS-OMBAC, complainant, RAYOS, respondent. DECISION


PUNO, J.:

vs. ATTY.

ORLANDO

A.

This case stemmed from a petition for disbarment filed with this Court by Mrs. Irene Rayos-Ombac against her nephew, Atty. Orlando A. Rayos, a legal practitioner in Metro Manila, for "his failure to adhere to the standards of mental and moral fitness set up for members of the bar."[1] The records show that in January 1985, respondent induced complainant who was then 85 years old to withdraw all her bank deposits and entrust them to him for safekeeping. Respondent told her that if she withdraws all her money in the bank, they will be excluded from the estate of her deceased husband and his other heirs will be precluded from inheriting part of it. Acting on respondent's suggestion, complainant preterminated all her time deposits with the Philippine National Bank on January 18, 1985. She withdrew P588,000.00. Respondent then advised complainant to deposit the money with Union Bank where he was working. He also urged her to deposit the money in his name to prevent the other heirs of her husband from tracing the same. Complainant heeded the advice of respondent. On January 22, 1985, respondent deposited the amount of P588,000.00 with Union Bank under the name of his wife in trust for seven beneficiaries, including his son. The maturity date of the time deposit was May 22, 1985. On May 21, 1985, complainant made a demand on respondent to return the P588,000.00 plus interest. Respondent told her that he has renewed the deposit for another month and promised to return the whole amount including interest on June 25, 1985. Respondent, however, failed to return the money on June 25, 1985. On August 16, 1985, respondent informed complainant that he could only return P400,000.00 to be paid on installment. Complainant acceded to respondent's proposal as she was already old and was in dire need of money. On the same date, respondent and complainant executed a memorandum of agreement stating:

"WHEREAS, on January 22, 1985, (complainant) entrusted for safekeeping to (respondent) the sum of FIVE HUNDRED EIGHTY EIGHT THOUSAND PESOS (P588,000.00) which sum of money was withdrawn by the parties from the Philippine National Bank on said date.

WHEREAS, the said amount was deposited by (respondent) with the consent of (complainant) with the UNION BANK, J.P. Rizal Branch, Makati, Metro Manila. WHEREAS, upon mutual agreement of the parties, they have agreed as they hereby agree on the following terms for the purpose of disposing of the above sum, to wit: 1. Of the sum of P588,000.00 received in trust, (respondent) shall return only the sum of P400,000.00 to (complainant) in the following manner: a) P100,000.00 upon execution of this agreement; b) P200,000.00 on or before October 19, 1985, to be covered by postdated check; c) P100,000.00 on or before November 19, 1985, to be covered by a postdated check. 2. (Respondent) hereby undertakes and guarantees that at the time the aforesaid postdated checks fall due, the same should be backed up with sufficient funds on a best efforts basis. 3. That the remaining balance of P188,000.00, (respondent) hereby acknowledges the same as his indebtedness to (complainant) to be paid by the former when able or at his option. (Complainant) however assures (respondent) that she will not institute any collection suit against (respondent) (sic), neither will she transmit the same by way of testamentary succession to her heirs, neither are (respondent's) heirs liable. 4. That the parties have executed this agreement with the view of restoring their previous cordial filial relationship."
[2]

In accordance with the memorandum of agreement, respondent issued to complainant the following checks:

1. UCPB Check No. 487974 dated August 19, 1985 in the amount of P100,000.00; 2. UCPB Check No. 487975 dated October 19, 1985 in the amount of P200,000;

3. UCPB Check No. 487976 dated November 19, 1985 in the amount of P100,000.00.
Complainant was not able to encash UCPB Check No. 487974 as it was dishonored due to insufficient funds. Respondent, nonetheless, asserted that he was not duty-bound to fund the check because under paragraph 2 of the memorandum of agreement, he only guaranteed that the checks shall be "backed up with sufficient funds on a best efforts basis." This prompted the other relatives of respondent and complainant to intervene in the brewing dispute between the two. They begged respondent to pay his obligation to complainant. Heeding their plea, respondent replaced UCPB Check No. 487974 with two new checks, one for P64,800.00 and another forP35,200.00. Complainant was able to encash the first check but not the second because it was dishonored by the drawee bank. The remaining checks, UCPB Check No. 487975 and UCPB Check No. 487976, were likewise dishonored by the drawee bank for lack of funds. On November 15, 1985, complainant filed a complaint for estafa against respondent and a corresponding information was filed against him by the provincial fiscal. Respondent thereafter made a proposal to complainant for an amicable settlement. To pay his debt, respondent offered to complainant two second hand cars and cash amounting to P40,000.00. Complainant refused the offer because she needed cash to provide for her daily needs. The records also show that respondent filed several suits against complainant. First, in February 1985, respondent filed a criminal case for estafa against complainant. It appears that respondent has previously told the tenants of a parcel of land owned by complainant that she had promised to sell them the land and that she had authorized him to negotiate with them. He obtained from the tenants advance payment for the lots they were occupying. Respondent then prepared a special power of attorney[3]authorizing him to sell the land and asked complainant to sign it. Complainant, however, refused to sign because she did not intend to make respondent her attorney-in-fact. Hence, the tenants sued respondent for estafa. Respondent, in turn, sued complainant for estafa for allegedly reneging on her promise to sell the land. Then, on April 5, 1986, respondent filed a pleading entitled "Motion to Review Acts of Administratrix as a Prelude for Formal Motion to (sic) her Discharge" in Special Proceedings No. 5544 for the settlement of the estate of complainant's husband, pending before the Regional Trial Court of Lingayen, Pangasinan.[4] Respondent filed the pleading although he was not a party to the case. Finally, on May 19, 1986, respondent indicted complainant for "falsification by private individuals and use of falsified documents under Article 172 of the Revised Penal Code" for allegedly making untruthful statements in her petition for appointment as administratrix of the estate of her deceased husband.[5]

Thus, in June 1986, complainant filed with this Court a complaint to disbar respondent on two grounds: (1) that respondent employed clever scheme to defraud complainant, and (2) that respondent filed frivolous cases against complainant to harass her. Respondent subsequently filed a complaint for disbarment against complainant's counsel, Atty. Abelardo Viray. The complaint cited four causes of action: (1) assisting client to commit tax fraud; (2) use of unorthodox collection method; (3) ignorance of the law; and (4) subornation of perjury.[6] Both disbarment cases were consolidated and referred to the Office of the Solicitor General for investigation, report and recommendation. The cases were transferred to the Integrated Bar of the Philippines (IBP) for investigation and disposition pursuant to Section 20 Rule 139-B which took effect on June 1, 1988. After investigation, the Commission on Bar Discipline of the IBP recommended the suspension of respondent from the practice of law for two years. It also recommended the dismissal of the complaint to disbar Atty. Viray for lack of merit.[7] On January 27, 1996, the Board of Governors of the IBP passed Resolution No. XII96-22 stating:

"RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner in the above entitled case, hereinmade part of this Resolution/Decision as Annex "A"; and, finding the recommendation therein to be supported by the evidence on record and the applicable laws and rules, Respondent Atty. Orlando A. Rayos is hereby SUSPENDED from the practice of law for two (2) years and the complaint against Atty. Abelardo V. Viray is hereby DISMISSED for lack of merit."
[8]

On June 6, 1996, respondent filed a Motion for Reconsideration with regard to Administrative Case No. 2884.[9] The Board of Governors of the IBP, however, denied the motion in Resolution No. XII-96-193.[10] On September 15, 1997, respondent filed with this Court a Motion to Lift Suspension for Two Years, alleging that complainant has executed an affidavit withdrawing the complaint for disbarment.[11] We deny the motion of respondent. Rule 1.01 of the Code of Professional Responsibility states:

"A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct."
Rule 1.03 of the same Code, on the other hand, provides:

"A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or delay any man's cause."
Respondent violated the Code of Professional Responsibility, as well as his oath as an attorney when he deceived his 85-year old aunt into entrusting to him all her money, and later refused to return the same despite demand. Respondent's wicked deed was aggravated by the series of unfounded suits he filed against complainant to compel her to withdraw the disbarment case she filed against him. Indeed, respondent's deceitful conduct makes him unworthy of membership in the legal profession. The nature of the office of a lawyer requires that he shall be of good moral character. This qualification is not only a condition precedent to admission to the legal profession, but its continued possession is essential to maintain one's good standing in the profession. [12] Considering the depravity of respondent's offense, we find the penalty recommended by the IBP to be too mild. Such offense calls for the severance of respondent's privilege to practice law not only for two years, but for life. 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. [13] 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.[14] 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. In the instant case, it has been sufficiently proved that respondent has engaged in deceitful conduct, in violation of the Code of Professional Responsibility. IN VIEW WHEREOF, respondent is hereby DISBARRED. Let a copy of this decision be attached to respondent's record in the Bar Confidant's Office and furnished the IBP and all our courts. SO ORDERED.

CRUZ vs. JACINTO A.C. No. 5235, March 22, 2000

Facts: Respondent Atty. Jacinto, being the lawyer of the complainants, requested the Cruz spouses to grant a loan in behalf of Padilla, who he claimed to be his old friend. The spouses, believing and trusting the representations of their lawyer that Padilla was a good risk, authorized him to start preparing all the necessary documents relative to the registration of the Real Estate Mortgage to secure the payment of the loan in favor of the Cruz spouses. Upon maturity of the loan, the spouses demanded payment from Padilla by going to the address given by respondent but there proved to be no person by that name living therein. They also discovered that the certificate of title given to them by virtue of the mortgage was fake. In their sworn affidavits, the spouses claim that they relied much on reassurances made by Atty. Jacinto as to Padillas credit, considering that he was their

lawyer. There was also an unrebutted evidence that respondent had ordered his secretary and housemaid to falsify the signatures of the notary public and the Deputy Register of Deeds respectively to make it appear that the real estate mortgage contract was duly registered and thus binding.

Issue:

Is the respondent lawyer guilty of professional misconduct?

Held: YES. Respondent represented complainants in the loan transaction. By his own admission, he was the one who negotiated with the borrower, his long-time friend and a former client. He acted not merely as an agent but as a lawyer of complainants, thus, the execution of the real estate mortgage contract, as well as its registration and annotation on the title were entrusted to him. In fact, respondent even received his share in the interest earnings which complainants realized from the transaction. His refusal to recognize any wrongdoing or carelessness by claiming that he is likewise a victim when it was shown that the title to the property, the registration of the real estate mortgage contract, and the annotation thereon were all feigned, will not at all exonerate him. As a rule, a lawyer is not barred from dealing with his client but the business transaction must be characterized with utmost honesty and good faith. However, the measure of good faith which an attorney is required to exercise in his dealings with his client is a much higher standard than is required in business dealings where the parties trade at arms length. Business transactions between an attorney and his client are disfavored and discouraged by the policy of the law. Hence, courts carefully watch these transactions to be sure that no advantage is taken by a lawyer over his client. This rule is founded on public policy for, by virtue of his office, an attorney is in an easy position to take advantage of the credulity and ignorance of his client. Thus, no presumption of innocence or improbability of wrongdoing is considered in an attorney's favor. Further, his fidelity to the cause of his client requires him to be ever mindful of the responsibilities that should be expected of him. Respondent utterly failed to perform his duties and responsibilities faithfully as well as to protect the rights and interests of his clients and by his deceitful actuations constituting violations of the Code of Professional Responsibilities must be subjected to disciplinary measures for his own good, as well as for the good o the entire membership of the Bar as a whole.

[A.C. No. 5235. March 22, 2000] FERNANDO C. CRUZ AND AMELIA CRUZ, complainants, vs. ATTY. ERNESTO C. JACINTO, respondents. Juris RESOLUTION MELO, J.: In their sworn complaint, spouses Fernando C. Cruz and Amelia Manimbo Cruz seek the disbarment of Atty. Ernesto C. Jacinto. The Integrated Bar of the Philippines, through Commissioner Jesulito A. Manalo of the Commissioner on Bar discipline, conducted an investigation. Thereafter, he submitted his Findings and Recommendation, thusly:
This is a disbarment case filed by the spouses Fernando and Amelia Cruz against Atty. Ernesto C. Jacinto. This case was filed with the Commission on Bar Discipline last 30 January 1991. The evidence of the complainants show that sometime in June 1990, Atty. Ernesto Jacinto, lawyer of the couple in an unrelated case, requested the Cruz spouses for a loan in behalf of a certain Concepcion G. Padilla, who he claimed to be an old friend as she was allegedly in need of money. The loan requested was for PhP 285,000.00 payable after 100 days for PhP 360,000 to be secured by a real estate mortgage on a parcel of land located at Quezon City. Sc juris The spouses, believing and trusting the representations of their lawyer that Padilla was a good risk, authorized him to start preparing all the necessary documents relative to the registration of the Real Estate Mortgage to secure the payment of the loan in favor of the Cruz spouses. On 4 July 1990, the complainants agreed to the request of Atty. Jacinto and were presented by the latter with a Real Estate Mortgage Contract and a Transfer Certificate of Title No. 127275 in the name of Concepcion G. Padilla. The amount of PhP 285,000.00 was given by the spouses to the respondent in cash (PhP 270,000.00) and a PBCom check no. 713929 for PhP 15,000.00. Upon maturity of the loan on 15 October 1990, the spouses demanded payment from Concepcion G. Padilla by going to the address given by the respondent but there proved to be no person by that name living therein. When the complainants verified the genuineness of TCT No. 127275 with Register of Deeds of Quezon City, it was certified by the said office to be a

fake and spurious title. Further efforts to locate the debtor-mortgagor likewise proved futile. Juris sc In their sworn affidavits given before the National Bureau of Investigation (NBI), the spouses claim that they relied much on the reassurances made by Atty. Jacinto as to Concepcion G. Padillas credit, considering that he was their lawyer. It was also their trust and confidence in Atty. Jacinto that made them decide to forego meeting the debtor-mortgagor. The complainants evidence also included the sworn statements of Estrella Ermino-Palipada, the secretary of the respondent at the Neri Law Office, and Avegail Payos, a housemaid of Atty. Jacinto. Ms. Palipada stated that: 1. she was the one who prepared the Real Estate Mortgage Contract and the Receipt of the loan upon the instruction of the respondents; 2. she was a witness to the transaction and never once saw the person of Concepcion G. Padilla, the alleged mortgagor; and that 3. she was instructed by Atty. Jacinto to notarize the said contract by signing the name of one Atty. Ricardo Neri. Avegail Payos, the housemaid of the respondent, in turn stated that she was the one who simulated the signature of one Emmanuel Gimarino, the Deputy Register of Deeds of Quezon City upon the instruction of Atty. Jacinto. This was done to make it appear that the real estate mortgage was registered and the annotation to appear at the back of the TCT as an encumbrance. On 14 November 1997, a case for Estafa thru Falsification of Public documents under Art. 315 was filed against Atty. Jacinto. He was arrested and detained by the NBI. The defense of the respondent, on the other hand, was embodied in his Answer with Motion to Dismiss filed with the Commission on Bar Discipline. Therein, he alleged that the criminal information for estafa thru falsification filed against him had already been dismissed because of the voluntary desistance of the complainants. Misj uris In his version of the facts, Atty. Jacinto averred that while he indeed facilitated the loan agreement between the Cruz spouses and Concepcion G. Padilla, he had no idea that the latter would give a falsified Certificate of Title and use it to obtain a loan. He claimed that he himself was a victim under the circumstances.

Respondent further alleged that he had not been remiss nor negligent in collecting the proceeds of the loan; that in fact, he had even advanced the full payment of the loan due to the complainants from his own savings, even if Concepcion G. Padilla had not yet paid, much less found. RECOMMENDATIONS It is every lawyers sworn duty to obey the laws of the land to promote respect for law and legal processes. The Code of Professional Responsibility command that he shall not engage in unlawful, dishonest, immoral or deceitful conduct. (Rule 1.01, Code of Professional Responsibility) Jj lex In the instant case, there was a clear yet unrebutted allegation in the complaint that the Respondent had ordered his secretary and housemaid to falsify the signatures of the notary public and the Deputy Register of Deeds respectively to make it appear that the real estate mortgage contract was duly registered and thus binding. While it may be true that the complaint for Estafa thru Falsification filed against the Respondent had been dismissed, the dismissal was because of the complainants voluntary desistance and not a finding of innocence. It neither confirms nor denies Respondents non-culpability. Furthermore, it is well-settled that disciplinary proceedings are "sui generis", the primary object of which is not so much to punish the individual attorney himself, as to safeguard the administration of justice by protecting the court and the public from the misconduct of lawyers, and to remove from the professions persons whose disregard of their oath have proven them unfit to continue discharging the trust reposed in them as members of the bar. Thus, disciplinary cases may still proceed despite the dismissal of civil and/or criminal cases against a lawyer. A lawyer who does any unlawful fraudulent or dishonest act may and should be held administratively liable therefor. In the case at bar, the Respondent should not be made an exception. While it may be shown that he indeed advanced the payment due to his erstwhile clients, such will not exempt him from administrative liability. At best it can only mitigate. Respondent is recommended to be suspended for six (6) months from the practice of law. (Findings and Recommendation, pp. 1-4) New miso

On February 28, 1998, the Board of Governors of the IBP passed Resolution XIII-97-199 adopting and approving the Findings and Recommendation of the Investigating Commissioner, which reads:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner in the above-entitled case, herein made part of this Resolution/Decision as Annex "A" and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, respondent Atty. Ernesto C. Jacinto is SUSPENDED from the practice of law for six (6) months for his unlawful, fraudulent or dishonest act. (Notice of resolution [dated Feb. 28, 1998]).

In his Comment and Answer with Motion to Dismiss, respondent averred that complainants have no cause of action against him as the same has been waived, settled, and extinguished on account of the affidavits of voluntary desistance and quitclaim executed by them in the criminal case filed against him. Ncmmis The assertion must necessarily fail. The practice of law is so intimately affected with public interest that it is both a right and a duty of the State to control and regulate it in order to promote the public welfare. The Constitution vests this power of control and regulation in this Court. Since the practice of law is inseparably connected with the exercise of its judicial power in administration of justice, the Court cannot be divested of its constitutionally ordained prerogative which includes the authority to discipline, suspend or disbar any unfit and unworthy member of the Bar by a mere execution of affidavits of voluntary desistance and quitclaim (par. [5], Sec. 5, 1987 Constitution). A lawyer may be disciplined or suspended for any misconduct, whether in his professional or private capacity, which shows him to be wanting in moral character, in honesty, in probity and good demeanor, thus rendering unworthy to continue as an officer of the court (Maligsa vs. Cabanting, 272 SCRA 408 [1997]), and the complainants who called the attention of the Court to the attorneys alleged misconduct are in no sense a party, and have generally no interest in the outcome except as all good citizens may have in the proper administration of justice (Rayos-Ombac vs. Rayos, 285 SCRA 93 [1998]). Undeniably, respondent represented complainants in the loan transaction. By his own admission, he was the one who negotiated with the borrower, his long-time friend and a former client. He acted not merely as an agent but as a lawyer of complaints, thus, the execution of the real estate mortgage contract, as well as its registration and annotation on the title were entrusted to him. In fact, respondent even received his share in the interest earnings which complainants realized from the transaction. His refusal to recognize any

wrongdoing or carelessness by claiming that he is likewise a victim when it was shown that the title to the property, the registration of the real estate mortgage contract, and the annotation thereon were all feigned, will not at all exonerate him. Scncm As a rule, a lawyer is not barred from dealing with his client but the business transaction must be characterized with utmost honesty and good faith. However, the measure of good faith which an attorney is required to exercise in his dealings with this client is a much higher standard than is required in business dealings where the parties trade at arms length. Business transactions between an attorney and his client are disfavored and discouraged by the policy of the law. Hence, courts carefully watch these transactions to be sure that no advantage is taken by a lawyer over his client. This rule is founded on public policy for, by virtue of his office, an attorney is in an easy position to take advantage of the credulity and ignorance of his client. Thus, no presumption of innocence or improbability of wrongdoing is considered in an attorneys favor (Nakpit vs. Valdes, 286 SCRA 758 [1998]). Further, his fidelity to the cause of his client requires him to be evermindful of the responsibilities that should be expected of him. Verily, a lawyer may not, without being guilty of professional misconduct, act as counsel for a person whose interest conflicts with that of his former client. The reason for the prohibition is found in the relation of attorney and client, which is one of trust and confidence at the highest degree (Maturan vs. Gonzales, 287 SCRA 943 [1998]). Sdaamiso Respondent utterly failed to perform his duties and responsibilities faithfully and well as to protect the rights and interests of his clients and by his deceitful actuations constituting violations of the Code of Professional Responsibilities must be subjected to disciplinary measures for his own good, as well as for the good of the entire membership of the Bar as a whole. WHEREFORE, the Court hereby adopts the resolution of the Board of Governors of the Integrated Bar of the Philippines and orders respondent Atty. Ernesto C. Jacinto suspended from the practice of law for six (6) months with the warning that a repetition of the same or similar offense will be dealt with more severely. Sda

[CBD A.C. No. 313. January 30, 1998]

ATTY. AUGUSTO G. NAVARRO, for and in behalf of PAN-ASIA INTERNATIONAL COMMODITIES, INC.,complainant, vs. ATTY. ROSENDO MENESES III, respondent. DECISION
PER CURIAM:

This administrative case against respondent Atty. Rosendo Meneses III was initiated by a complaint-affidavit[1] filed by Atty. Augusto G. Navarro on June 7, 1994 before the Commission on Bar Discipline of the Integrated Bar of the Philippines (hereinafter, the Commission), for and in behalf of Pan-Asia International Commodities, Inc. Herein complainant charges respondent Meneses with the following offenses, viz.: (1) malpractice and gross misconduct unbecoming a public defender; (2) dereliction of duty, by violating his oath to do everything within his power to protect his clients interest; (3) willful abandonment; and (4) loss of trust and confidence, due to his continued failure to account for the amount ofP50,000.00 entrusted to him to be paid to a certain complainant for the amicable settlement of a pending case.[2] The complaint-affidavit alleged that Frankwell Management and Consultant, Inc., a group of companies which includes Pan Asia International Commodities, Inc., through its Administrative Manager Estrellita Valdez, engaged the legal services of respondent Atty. Meneses. While serving as such counsel, Atty. Meneses handled various cases and was properly compensated by his client in accordance with their retainer agreement.[3] One of the litigations handled by him was the case of People vs. Lai Chan Kow, a.k.a. Wilson Lai, and Arthur Bretaa, pending before Branch 134, Regional Trial Court of Makati. On December 24. 1993, respondent received the sum of P50,000.00 from Arthur Bretaa, the accused in said case, to be given to therein offended party, a certain Gleason, as consideration for an out-of-court settlement and with the understanding that a motion to dismiss the case would be filed by respondent Meneses. Despite subsequent repeated requests, respondent failed to present to his client the receipt acknowledging that Gleason received said amount. A verification made with the Regional Trial Court of Makati revealed that no motion to dismiss or any pleading in connection therewith had been filed, and the supposed amicable settlement was not finalized and concluded. Despite repeated demands in writing or by telephone for an explanation, as well as the turnover of all documents pertaining to the aforementioned case, respondent Meneses deliberately ignored the pleas of herein complainant.

The case was assigned by the Commission to Commissioner Victor C. Fernandez for investigation. Respondent was thereafter ordered to submit his answer to the complaint pursuant to Section 5, rule 139-B of the Rules of Court.[4] Two successive ex parte motions for extension of time to file an answer were filed by respondent and granted by the Commission.[5] On November 14, 1994, respondent filed a motion to dismiss,[6] instead of an answer. In said motion, respondent argued that Atty. Navarro had no legal personality to sue him for and in behalf of Pan-Asia International Commodities, Inc. because his legal services were retained by Frankwell Management and Consultant, Inc.; that Navarro had not represented Pan-Asia International Commodities, Inc. in any case nor had been authorized by its board of directors to file this disbarment case against respondent; that the retainer agreement between him and Frankwell Management and Consultant, Inc. had been terminated as of December 31, 1993 according to the verbal advice of its Administrative Officer Estrellita Valdez; that the case of Arthur Bretaa was not part of their retainer agreement, and Bretaa was not an employee of Frankwell Management and Consultant, Inc. which retained him as its legal counsel; and that the settlement of said case cannot be concluded because the same was archived and accused Bretaa is presently out of the country. Herein complainant, in his opposition to the motion to dismiss, [7] stresses that respondent Meneses is resorting to technicalities to evade the issue of his failure to account for the amount of P 50,000.00 entrusted to him; that the respondents arguments in his motion to dismiss were all designed to mislead the Commission; and that he was fully aware of the interrelationship of the two corporations and always coordinated his legal work with Estrellita Valdez. On November 28, 1994, Investigating Commissioner Victor C. Fernandez resolved to deny said motion to dismiss for lack of merit and directed respondent to file his answer.[8] On January 2, 1995, respondent filed a manifestation that he was adopting the allegations in his motion to dismiss his answer.[9] When the case was set for hearing on February 9, 1995, respondent failed to attend despite due notice. He thereafter moved to postpone and reset the hearing of the case several times allegedly due to problems with his health. On the scheduled hearing on June 15, 1995, respondent again failed to attend. The commissioner accordingly received an ex parte the testimony of complainants sole witness, Estrellita Valdez, and other documentary evidence. [10] Thereafter, complainant rested its case. Respondent filed a so-called Urgent Ex-parte Motion for Reconsideration with Motion to Recall Complainants Witnes s for CrossExamination[11] which was granted by the Commission.[12] Estrellita Valdez was directed by the Commission to appear on the scheduled hearing for cross-examination. Several postponement and resetting of hearings were later requested and granted by the Commission. When the case was set for hearing for the last time on May 31, 1996, respondent failed to attend despite due notice and repeated warnings. Consequently, the Commission considered him to have waived his right to present evidence in his defense and declared the case submitted for resolution. [13]

On February 4, 1997, the Commission on Bar Discipline, through its Investigating Commissioner Victor C. Fernandez, submitted its Report and Recommendation [14] to the Board of Governors of the Integrated Bar of the Philippines. The Commission ruled that the refusal and/or failure of respondent to account for the sum of P50,000.00 he received from complainant for the settlement of the aforestated case of Lai Chan Kow and Arthur Bretaa proves beyond any shadow of a doubt that he misappropriated the same, hence he deserved to be penalized. The Commission recommended that respondent Meneses he suspended from the practice of the legal profession for a period of three (3) years and directed to return the P50,000.00 he received from the petitioner within fifteen (15) days from notice of the resolution. It further provided that failure on his part to comply with such requirement would result in his disbarment.[15] The Board of Governors adopted and approved the report and recommendation of the Investigating Commissioner in its Resolution No. XII97-133, dated July 26, 1997.[16] On August 15, 1997, the Court received the Notice of Resolution, the Report and Recommendation of the Investigating Commissioner, and the records of this case through the Office of the Bar Confidant for final action pursuant to Section 12 (b) of Rule 139-B.[17] It appears therefrom that respondent was duly furnished a copy of said resolution, with the investigating commissioners report and recommendation annexed thereto. The Court agrees with the findings and conclusion of the Integrated Bar of the Philippines that respondent Meneses misappropriated the money entrusted to him and which he has failed and/or refused to account for to his client despite repeated demands therefor. Such conduct on the part of respondent indicating his unfitness for the confidence and trust reposed on him, or showing such lack of personal honesty or of good moral character as to render him unworthy of public confidence, constitutes a ground for disciplinary action extending to disbarment.[18] Respondent Meneses misconduct constitute a gross violation of his oath as a lawyer which, inter alia, imposes upon every lawyer the duty to delay no man for money or malice. He blatantly disregarded Rule 16.01 of Canon 16 of the Code of Professional Responsibility which provides that a lawyer shall account for all money or property collected or received for or from his client. Respondent was merely holding in trust the money he received from his client to used as consideration for amicable settlement of a case he was handling. Since the amicable settlement did no materialize, he was necessarily under obligation to immediate return the money, as there is no showing that he has a lien over it. As a lawyer, he should be scrupulously careful in handling money entrusted to him in his professional capacity, because a high degree of fidelity and good faith on his part is exacted.[19] The argument of respondent that complainant has no legal personality to sue him is unavailing. Section 1 Rule 139-B of the Rules of Court provides that proceedings for the disbarment, suspension, or discipline of attorneys may be taken by the Supreme Court motu propio or by the Integrated Bar of the Philippines upon the verified complainant of any person. The right to institute a disbarment proceeding is not confined to clients nor is it necessary that the person complaining suffered injury from

the alleged wrongdoing. Disbarment proceedings are matters of public interest and the only basis for judgment is the proof or failure of proof of the charge. The evidence submitted by complainant before the Commission on Bar Discipline sufficed to sustain its resolution and recommended sanctions. It is settled that a lawyer is not obliged to act as counsel for every person who may wish to become his client. He has the right to decline employment[20] subject however, to the provision of Canon 14 of the Code of Professional Responsibility.[21] Once he agrees to take up the cause of a client, he owes fidelity to such cause and must always be mindful of the trust and confidence reposed to him.[22] Respondent Meneses, as counsel, had the obligation to inform his client of the status of the case and to respond within a reasonable time to his clients request for information. Respondents failure to communicate with his client by deliberately disregarding its request for an audience or conference is an unjustifiable denial of its right to be fully informed of the developments in and the status of its case. On January 7, 1998, the Bar Confidant submitted to the Court a copy of the letter of Atty. Augusto G. Navarro, dated December 18, 1997, to the effect that although a copy of the aforestated Resolution No. XII-97-133 was personally delivered to respondents address and received by his wife on October 9, 1997, he had failed to restitute the amount of P50,000.00 to complainant within the 15-day period provided therein. Neither has he filed with this Court any pleading or written indication of his having returned said amount to complainant. In line with the resolution in this case, his disbarment is consequently warranted and exigent. A note and advice on the penalty imposed in the resolution is in order. The dispositive portion thereof provides that:

x x x Respondent Atty. Rosendo Meneses is hereby SUSPENDED from the practice of law for three (3) years and is hereby directed to return the Fifty Thousand Pesos he received from the petitioner within fifteen (15) days from receipt of this resolution. Failure on his part to comply will result (i)n his DISBARMENT.
[23]

In other words, it effectively purports to impose either a 3-year suspension or disbarment, depending on whether or not respondent duly returns the amount to complainant. Viewed from another angle, it directs that he shall only be suspended, subject to the condition that he should make restitution as prescribed therein. Dispositions of this nature should be avoided. In the imposition of penalties in criminal cases, it has long been the rule that the penalty imposed in a judgment cannot be in the alternative, even if the law provides for alternative penalties, [24] not can such penalty be subject to a condition.[25] There is no reason why such legal principles in penal law should not apply in administrative disciplinary actions which, as in this case, also involve punitive sanctions. Besides, if the purpose was to extenuate the liability of respondent, the only possible and equivalent rule is in malversation cases holding that the restitution of the peculated funds would be analogous to voluntary surrender if it was immediately and

voluntarily made before the case was instituted.[26] The evidently is not the situation here. Also the implementation of the penalty provided in the resolution will involve a cumbersome process since, in order to arrive at the final action to be taken by this Court, it will have to wait for a verified report on whether or not respondent complied with the condition subsequent. WHEREFORE, Atty. Rosendo Meneses III is hereby DISBARRED. Let a copy of this decision be attached to respondents personal records in this Court and furnished the Integrated Bar of the Philippines, together with all courts in the county. SO ORDERED.

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