G.R. No.

L-35469 October 9, 1987

ENCARNACION
BANOGON,
ZOSIMA
MUNOZ,
and
DAVIDINA
MUNOZ, petitioners,
vs.
MELCHOR ZERNA, CONSEJO ZERNA DE CORNELIO, FRANCISCO ZERNA, and
the HON. CIPRIANO VAMENTA, JR., Judge of the Court of First Instance of
Negros Oriental (Branch III).

CRUZ, J.:
It's unbelievable. The original decision in this case was rendered by the cadastral
court way back on February 9, 1926, sixty one years ago. A motion to amend that
decision was filed on March 6, 1957, thirty one years later. This was followed by an
amended petition for review of the judgment on March 18, 1957, and an opposition
thereto on March 26, 1957. On October 11, 1971, or after fourteen years, a motion
to dismiss the petition was filed. The petition was dismissed on December 8, 1971,
and the motion for reconsideration was denied on February 14, 1972. 1 The
petitioners then came to us on certiorari to question the orders of the respondent
judge. 2
These dates are not typographical errors. What is involved here are errors of law
and lawyers.
The respondent court dismissed the petition for review of the decision rendered in
1926 on the ground that it had been filed out of time, indeed thirty one years too
late. Laches, it was held, had operated against the petitioners. 3
The petitioners contend that the said judgment had not yet become final and
executory because the land in dispute had not yet been registered in favor of the
private respondents. The said judgment would become so only after one year from
the issuance of the decree of registration. If any one was guilty of laches, it was the
private respondents who had failed to enforce the judgment by having the land
registered in their the pursuant thereto. 4
For their part, the private respondents argue that the decision of February 9, 1926,
became final and executory after 30 days, same not having been appealed by the
petitioners during that period. They slept on their rights forthirty one years before it
occurred to them to question the judgment of the cadastral court. In fact, their
alleged predecessor-in-interest, Filomeno Banogon, lived for nineteen more
years after the 1926 decision and did not see fit to challenge it until his death in
1

1945. The herein petitioners themselves waited another twelve years, or until 195
7, to file their petition for review. 5
While arguing that they were not guilty of laches because the 1926 decision had not
yet become final and executory because the land subject thereof had not yet been
registered, the petitioners rationalize: "If an aggrieved party is allowed the remedy
of re-opening the case within one year after the issuance of the decree, why should
the same party be denied this remedy before the decree is issued? 6
Why not indeed? Why then did they not file their petition earlier? Why do they now
pretend that they have all the time in the world because the land has not yet been
registered and the one-year reglementary period has not yet expired?
Thinking to support their position, the petitioners cite Rivera v. Moran
held:

where it was

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

section 38 of the Land Registration Act provides that a petition for
review of such a decree on the grounds of fraud must be filed "within
one year after entry of the decree." Giving this provision a literal
interpretation, it may first blush seem that the petition for review
cannot be presented until the final decree has been entered. But on
further reflection, it is obvious that such could not have been the
intention of the Legislatureand that what it meant would have been
better expressed by stating that such petitioners must be presented
before the expiration of one year from the entry of the decree. Statutes
must be given a reasonable construction and there can be no possible
reason for requiring the complaining party to wait until the final decree
is entered before urging his claim of fraud. We therefore hold that a
petition for review under section 38, supra, may be filed at any time
the rendition of the court's decision and before the expiration of one
year from the entry of the final decree of registration.
(Emphasissupplied).
A reading thereof will show that it is against their contentions and that under this
doctrine they should not have delayed in asserting their claim of fraud. Their delay
was not only for thirty one days but for thirty one years.Laches bars their petition
now. Their position is clearly contrary to law and logic and to even ordinary common
sense.
This Court has repeatedly reminded litigants and lawyers alike:
"Litigation must end and terminate sometime and somewhere, and it is
assent essential to an effective and efficient administration of justice
2

that, once a judgment has become final, the winning party be not,
through a mere subterfuge, deprived of the fruits of the verdict. Courts
must therefore guard against any scheme calculated to bring about
that result. Constituted as they are to put an end to controversies,
courts should frown upon any attempt to prolong them." 8
There should be a greater awareness on the part of litigants that the
time of the judiciary, much more so of this Court, is too valuable to be
wasted or frittered away by efforts, far from commendable, to evade
the operation of a decision final and executory, especially so, where, as
shown in this case, the clear and manifest absence of any right calling
for vindication, is quite obvious and indisputable. 9
This appeal moreover, should fail, predicated as it is on an
insubstantial objection bereft of any persuasive force. Defendants had
to display ingenuity to conjure a technicality. From Alonso v. Villamor, a
1910 decision, we have left no doubt as to our disapproval of such a
practice. The aim of a lawsuit is to render justice to the parties
according to law. Procedural rules are precisely designed to accomplish
such a worthy objective. Necessarily, therefore, any attempt to pervert
the ends for which they are intended deserves condemnation. We have
done so before. We do so again. 10
Regarding the argument that the private respondents took fourteen years to move
for the dismissal of the petition for review, it suffices to point out that an opposition
thereto had been made as early as March 26, 1957, or nine days after the filing of
the petition. 11 Moreover, it was for the petitioners to move for the hearing of the
petition instead of waiting for the private respondents to ask for its dismissal. After
all, they were the parties asking for relief, and it was the private respondents who
were in possession of the land in dispute.
One reason why there is a degree of public distrust for lawyers is the way some of
them misinterpret the law to the point of distortion in a cunning effort to achieve
their purposes. By doing so, they frustrate the ends of justice and at the same time
lessen popular faith in the legal profession as the sworn upholders of the law. While
this is not to say that every wrong interpretation of the law is to be condemned, as
indeed most of them are only honest errors, this Court must express its disapproval
of the adroit and intentional misreading designed precisely to circumvent or violate
it.
As officers of the court, lawyers have a responsibility to assist in the proper
administration of justice. They do not discharge this duty by filing pointless petitions
that only add to the workload of the judiciary, especially this Court, which is
burdened enough as it is. A judicious study of the facts and the law should advise
3

them when a case, such as this, should not be permitted to be filed to merely clutter
the already congested judicial dockets. They do not advance the cause of law or
their clients by commencing litigations that for sheer lack of merit do not deserve
the attention of the courts.
This petition is DISMISSED, with costs against the petitioners. This decision is
immediately executory. It is so ordered.
Teehankee, C.J., Narvasa and Paras, JJ., concur.
Gancayco, J., is on leave.

G.R. No. L-23815 June 28, 1974

ADELINO
H.
LEDESMA, petitioner,
vs.
HON. RAFAEL C. CLIMACO, Presiding Judge of the Court of First Instance of
Negros Occidental, Branch I, Silay City, respondent.
Adelino H. Ledesma in his own behalf.
Hon. Rafael C. Climaco in his own behalf.

FERNANDO, J.:p
What is assailed in this certiorari proceeding is an order of respondent Judge
denying a motion filed by petitioner to be allowed to withdraw as counsel de
oficio. 1 One of the grounds for such a motion was his allegation that with his
appointment as Election Registrar by the Commission on Elections, he was not in a
position to devote full time to the defense of the two accused. The denial by
respondent Judge of such a plea, notwithstanding the conformity of the defendants,
was due "its principal effect [being] to delay this case." 2 It was likewise noted that
the prosecution had already rested and that petitioner was previously counsel de
parte, his designation in the former category being precisely to protect him in his
new position without prejudicing the accused. It cannot be plausibly asserted that
such failure to allow withdrawal of de oficio counsel could ordinarily be
characterized as a grave abuse of discretion correctible by certiorari. There is,
however, the overriding concern for the right to counsel of the accused that must be
taken seriously into consideration. In appropriate cases, it should tilt the balance.
This is not one of them. What is easily discernible was the obvious reluctance of
petitioner to comply with the responsibilities incumbent on the counsel de oficio.
Then, too, even on the assumption that he continues in his position, his volume of
work is likely to be very much less at present. There is not now the slightest pretext
for him to shirk an obligation a member of the bar, who expects to remain in good
standing, should fulfill. The petition is clearly without merit.
According to the undisputed facts, petitioner, on October 13, 1964, was appointed
Election Registrar for the Municipality of Cadiz, Province of Negros Occidental. Then
and there, he commenced to discharge its duties. As he was counsel de parte for
5

one of the accused in a case pending in the sala of respondent Judge, he filed a
motion to withdraw as such. Not only did respondent Judge deny such motion, but
he also appointed him counselde oficio for the two defendants. Subsequently, on
November 3, 1964, petitioner filed an urgent motion to be allowed to withdraw as
counsel de oficio, premised on the policy of the Commission on Elections to require
full time service as well as on the volume or pressure of work of petitioner, which
could prevent him from handling adequately the defense. Respondent Judge, in the
challenged order of November 6, 1964, denied said motion. A motion for
reconsideration having proved futile, he instituted this certiorari proceeding. 3
As noted at the outset, the petition must fail.
1. The assailed order of November 6, 1964 denying the urgent motion of petitioner
to withdraw as counsel de oficio speaks for itself. It began with a reminder that a
crime was allegedly committed on February 17, 1962, with the proceedings having
started in the municipal court of Cadiz on July 11, 1962. Then respondent Judge
spoke of his order of October 16, 1964 which reads thus: "In view of the objection of
the prosecution to the motion for postponement of October 15, 1964 (alleging that
counsel for the accused cannot continue appearing in this case without the express
authority of the Commission on Elections); and since according to the prosecution
there are two witnesses who are ready to take the stand, after which the
government would rest, the motion for postponement is denied. When counsel for
the accused assumed office as Election Registrar on October 13, 1964, he knew
since October 2, 1964 that the trial would be resumed today. Nevertheless, in order
not to prejudice the civil service status of counsel for the accused, he is hereby
designated counsel de oficio for the accused. The defense obtained postponements
on May 17, 1963, June 13, 1963, June 14, 1963, October 28, 1963, November 27,
1963, February 11, 1964, March 9, 1964, June 8, 1964 July 26, 1964, and September
7, 1964." 4 Reference was then made to another order of February 11, 1964: "Upon
petition of Atty. Adelino H. Ledesma, alleging indisposition, the continuation of the
trial of this case is hereby transferred to March 9, 1964 at 8:30 in the morning. The
defense is reminded that at its instance, this case has been postponed at least eight
(8) times, and that the government witnesses have to come all the way from
Manapala." 5 After which, it was noted in such order that there was no
incompatibility between the duty of petitioner to the accused and to the court and
the performance of his task as an election registrar of the Commission on Elections
and that the ends of justice "would be served by allowing and requiring Mr. Ledesma
to continue as counsel de oficio, since the prosecution has already rested its case." 6
2. What is readily apparent therefore, is that petitioner was less than duly mindful of
his obligation as counsel de oficio. He ought to have known that membership in the
bar is a privilege burdened with conditions. It could be that for some lawyers,
especially the neophytes in the profession, being appointed counsel de oficio is an
irksome chore. For those holding such belief, it may come as a surprise that counsel
6

of repute and of eminence welcome such an opportunity. It makes even more

manifest that law is indeed a profession dedicated to the ideal of service and not a
mere trade. It is understandable then why a high degree of fidelity to duty is
required of one so designated. A recent statement of the doctrine is found in People
v. Daban: 7 "There is need anew in this disciplinary proceeding to lay stress on the
fundamental postulate that membership in the bar carries with it a responsibility to
live up to its exacting standard. The law is a profession, not a trade or a craft. Those
enrolled in its ranks are called upon to aid in the performance of one of the basic
purposes of the State, the administration of justice. To avoid any frustration thereof,
especially in the case of an indigent defendant, a lawyer may be required to act as
counsel de oficio. The fact that his services are rendered without remuneration
should not occasion a diminution in his zeal. Rather the contrary. This is not, of
course, to ignore that other pressing matters do compete for his attention. After all,
he has his practice to attend to. That circumstance possesses a high degree of
relevance since a lawyer has to live; certainly he cannot afford either to neglect his
paying cases. Nonetheless, what is incumbent upon him as counsel de oficio must
be fulfilled." 8
So it has been from the 1905 decision of In re Robles Lahesa, 9 where respondent
was de oficio counsel, the opinion penned by Justice Carson making clear: "This
Court should exact from its officers and subordinates the most scrupulous
performance of their official duties, especially when negligence in the performance
of those duties necessarily results in delays in the prosecution of criminal
cases ...." 10 Justice Sanchez in People v. Estebia 11 reiterated such a view in these
words: "It is true that he is a court-appointed counsel. But we do say that as such
counsel de oficio, he has as high a duty to the accused as one employed and paid
by defendant himself. Because, as in the case of the latter, he must exercise his
best efforts and professional ability in behalf of the person assigned to his care. He
is to render effective assistance. The accused-defendant expects of him due
diligence, not mere perfunctory representation. For, indeed a lawyer who is a
vanguard in the bastion of justice is expected to have a bigger dose of social
conscience and a little less of self-interest." 12
The weakness of the petition is thus quite evident.
3. If respondent Judge were required to answer the petition, it was only due to the
apprehension that considering the frame of mind of a counsel loath and reluctant to
fulfill his obligation, the welfare of the accused could be prejudiced. His right to
counsel could in effect be rendered nugatory. Its importance was rightfully stressed
by Chief Justice Moran in People v. Holgado in these words: "In criminal cases there
can be no fair hearing unless the accused be given an opportunity to be heard by
counsel. The right to be heard would be of little avail if it does not include the right
to be heard by counsel. Even the most intelligent or educated man may have no
skill in the science of law, particularly in the rules of procedure, and; without
7

counsel, he may be convicted not because he is guilty but because he does not
know how to establish his innocence. And this can happen more easily to persons
who are ignorant or uneducated. It is for this reason that the right to be assisted by
counsel is deemed so important that it has become a constitutional right and it is so
implemented that under rules of procedure it is not enough for the Court to apprise
an accused of his right to have an attorney, it is not enough to ask him whether he
desires the aid of an attorney, but it is essential that the court should assign one de
oficio for him if he so desires and he is poor or grant him a reasonable time to
procure
an
attorney
of
his
13
14
own." So it was under the previous Organic Acts. The present Constitution is
even more emphatic. For, in addition to reiterating that the accused "shall enjoy the
right to be heard by himself and counsel," 15 there is this new provision: "Any person
under investigation for the commission of an offense shall have the right to remain
silent and to counsel, and to be informed of such right. No force, violence, threat,
intimidation, or any other means which vitiates the free will shall be used against
him. Any confession obtained in violation of this section shall be inadmissible in
evidence." 16
Thus is made manifest the indispensable role of a member of the Bar in the defense
of an accused. Such a consideration could have sufficed for petitioner not being
allowed to withdraw as counsel de oficio. For he did betray by his moves his lack of
enthusiasm for the task entrusted to him, to put matters mildly. He did point though
to his responsibility as an election registrar. Assuming his good faith, no such
excuse could be availed now. There is not likely at present, and in the immediate
future, an exorbitant demand on his time. It may likewise be assumed, considering
what has been set forth above, that petitioner would exert himself sufficiently to
perform his task as defense counsel with competence, if not with zeal, if only to
erase doubts as to his fitness to remain a member of the profession in good
standing. The admonition is ever timely for those enrolled in the ranks of legal
practitioners that there are times, and this is one of them, when duty to court and to
client takes precedence over the promptings of self-interest.
WHEREFORE, the petition for certiorari is dismissed. Costs against petitioner.
Zaldivar (Chairman), Antonio, Fernandez and Aquino, JJ., concur.
Barredo, J., took no part.

[A.M. SDC-97-2-P. February 24, 1997]

SOPHIA ALAWI, complainant, vs. ASHARY M. ALAUYA, Clerk of Court VI,
Shari'a District Court, Marawi City, respondent.
DECISION
NARVASA, C.J.:
Sophia Alawi was (and presumably still is) a sales representative (or
coordinator) of E. B. Villarosa & Partners Co., Ltd. of Davao City, a real estate and
housing company. Ashari M. Alauya is the incumbent executive clerk of court of the
4th Judicial Shari'a District in Marawi City. They were classmates, and used to be
friends.
It appears that through Alawi's agency, a contract was executed for the
purchase on installments by Alauya of one of the housing units belonging to the
above mentioned firm (hereafter, simply Villarosa & Co.); and in connection
therewith, a housing loan was also granted to Alauya by the National Home
Mortgage Finance Corporation (NHMFC).
Not long afterwards, or more precisely on December 15, 1995, Alauya
addressed a letter to the President of Villarosa & Co. advising of the termination of
his contract with the company. He wrote:
" ** I am formally and officially withdrawing from and notifying you of my intent to
terminate the Contract/Agreement entered into between me and your company, as
represented by your Sales Agent/Coordinator, SOPHIA ALAWI, of your company's
branch office here in Cagayan de Oro City, on the grounds that my consent was
vitiated by gross misrepresentation, deceit, fraud, dishonesty and abuse of
confidence by the aforesaid sales agent which made said contract void ab initio.
Said sales agent acting in bad faith perpetrated such illegal and unauthorized acts
which made said contract an Onerous Contract prejudicial to my rights and
interests."
He then proceeded to expound in considerable detail and quite acerbic language on
the "grounds which could evidence the bad faith, deceit, fraud, misrepresentation,
dishonesty and abuse of confidence by the unscrupulous sales agent ** ;" and
closed with the plea that Villarosa & Co. "agree for the mutual rescission of our
contract, even as I inform you that I categorically state on record that I am
terminating the contract **. I hope I do not have to resort to any legal action before
9

said onerous and manipulated contract against my interest be annulled. I was

actually fooled by your sales agent, hence the need to annul the controversial
contract."
Alauya sent a copy of the letter to the Vice-President of Villarosa & Co. at San
Pedro, Gusa, Cagayan de Oro City. The envelope containing it, and which actually
went through the post, bore no stamps. Instead at the right hand corner above the
description of the addressee, the words, "Free Postage PD 26," had been typed.
On the same date, December 15, 1995, Alauya also wrote to Mr. Fermin T.
Arzaga, Vice-President, Credit & Collection Group of the National Home Mortgage
Finance Corporation (NHMFC) at Salcedo Village, Makati City, repudiating as
fraudulent and void his contract with Villarosa & Co.; and asking for cancellation of
his housing loan in connection therewith, which was payable from salary deductions
at the rate of P4,338.00 a month. Among other things, he said:
" ** (T)hrough this written notice, I am terminating, as I hereby annul, cancel,
rescind and voided, the 'manipulated contract' entered into between me and the
E.B. Villarosa & Partner Co., Ltd., as represented by its sales agent/coordinator,
SOPHIA ALAWI, who maliciously and fraudulently manipulated said contract and
unlawfully secured and pursued the housing loan without my authority and against
my will. Thus, the contract itself is deemed to be void ab initio in view of the
attending circumstances, that my consent was vitiated by misrepresentation, fraud,
deceit, dishonesty, and abuse of confidence; and that there was no meeting of the
minds between me and the swindling sales agent who concealed the real facts from
me."
And, as in his letter to Villarosa & Co., he narrated in some detail what he took to be
the anomalous actuations of Sophia Alawi.
Alauya wrote three other letters to Mr. Arzaga of the NHMFC, dated February 21,
1996, April 15, 1996, and May 3, 1996, in all of which, for the same reasons already
cited, he insisted on the cancellation of his housing loan and discontinuance of
deductions from his salary on account thereof. a He also wrote on January 18, 1996
to Ms. Corazon M. Ordoez, Head of the Fiscal Management & Budget Office, and to
the Chief, Finance Division, both of this Court, to stop deductions from his salary in
relation to the loan in question, again asserting the anomalous manner by which he
was allegedly duped into entering into the contracts by "the scheming sales
agent."b
The upshot was that in May, 1996, the NHMFC wrote to the Supreme Court
requesting it to stop deductions on Alauya's UHLP loan "effective May 1996," and
began negotiating with Villarosa & Co. "for the buy-back of ** (Alauya's) mortgage,
and ** the refund of ** (his) payments." c
10

On learning of Alauya's letter to Villarosa & Co. of December 15, 1995, Sophia
Alawi filed with this Court a verified complaint dated January 25, 1996 -- to which
she appended a copy of the letter, and of the above mentioned envelope bearing
the typewritten words, "Free Postage PD 26."[1] In that complaint, she accused
Alauya of:
1. "Imputation of malicious and libelous charges with no solid grounds through
manifest ignorance and evident bad faith;"
2. "Causing undue injury to, and blemishing her honor and established reputation;"
3. "Unauthorized enjoyment of the privilege of free postage **;" and
4. Usurpation of the title of "attorney," which only regular members of the Philippine
Bar may properly use.
She deplored Alauya's references to her as "unscrupulous, swindler, forger,
manipulator, etc." without "even a bit of evidence to cloth (sic) his allegations with
the essence of truth," denouncing his imputations as irresponsible, "all concoctions,
lies, baseless and coupled with manifest ignorance and evident bad faith," and
asserting that all her dealings with Alauya had been regular and completely
transparent. She closed with the plea that Alauya "be dismissed from the service, or
be appropriately disciplined (sic) ** "
The Court resolved to order Alauya to comment on the complaint. Conformably
with established usage that notices of resolutions emanate from the corresponding
Office of the Clerk of Court, the notice of resolution in this case was signed by Atty.
Alfredo P. Marasigan, Assistant Division Clerk of Court. [2]
Alauya first submitted a "Preliminary Comment"[3] in which he questioned the
authority of Atty. Marasigan to require an explanation of him, this power pertaining,
according to him, not to "a mere Asst. Div. Clerk of Court investigating an Executive
Clerk of Court." but only to the District Judge, the Court Administrator or the Chief
Justice, and voiced the suspicion that the Resolution was the result of a "strong link"
between Ms. Alawi and Atty. Marasigan's office. He also averred that the complaint
had no factual basis; Alawi was envious of him for being not only "the Executive
Clerk of court and ex-officio Provincial Sheriff and District Registrar," but also "a
scion of a Royal Family **."[4]
In a subsequent letter to Atty. Marasigan, but this time in much less aggressive,
even obsequious tones,[5] Alauya requested the former to give him a copy of the
complaint in order that he might comment thereon. [6] He stated that his acts as
clerk of court were done in good faith and within the confines of the law; and that
Sophia Alawi as sales agent of Villarosa & Co. had, by falsifying his signature,
11

fraudulently bound him to a housing loan contract entailing monthly deductions

of P4,333.10 from his salary.
And in his comment thereafter submitted under date of June 5, 1996, Alauya
contended that it was he who had suffered "undue injury, mental anguish, sleepless
nights, wounded feelings and untold financial suffering," considering that in six
months, a total of P26,028.60 had been deducted from his salary. [7] He declared that
there was no basis for the complaint; in communicating with Villarosa & Co. he had
merely acted in defense of his rights. He denied any abuse of the franking privilege,
saying that he gave P20.00 plus transportation fare to a subordinate whom he
entrusted with the mailing of certain letters; that the words: "Free Postage PD 26,"
were typewritten on the envelope by some other person, an averment corroborated
by the affidavit of Absamen C. Domocao, Clerk IV (subscribed and sworn to before
respondent himself, and attached to the comment as Annex J); [8] and as far as he
knew, his subordinate mailed the letters with the use of the money he had given for
postage, and if those letters were indeed mixed with the official mail of the court,
this had occurred inadvertently and because of an honest mistake. [9]
Alauya justified his use of the title, "attorney," by the assertion that it is
"lexically synonymous" with "Counsellors-at-law," a title to which Shari'a lawyers
have a rightful claim, adding that he prefers the title of "attorney" because
"counsellor" is often mistaken for "councilor," "konsehal or the Maranao term
"consial," connoting a local legislator beholden to the mayor. Withal, he does not
consider himself a lawyer.
He pleads for the Court's compassion, alleging that what he did "is expected of
any man unduly prejudiced and injured." [10] He claims he was manipulated into
reposing his trust in Alawi, a classmate and friend. [11] He was induced to sign a blank
contract on Alawi's assurance that she would show the completed document to him
later for correction, but she had since avoided him; despite "numerous letters and
follow-ups" he still does not know where the property -- subject of his supposed
agreement with Alawi's principal, Villarosa & Co. -- is situated; [12]He says Alawi
somehow got his GSIS policy from his wife, and although she promised to return it
the next day, she did not do so until after several months. He also claims that in
connection with his contract with Villarosa & Co., Alawi forged his signature on such
pertinent documents as those regarding the down payment, clearance, lay-out,
receipt of the key of the house, salary deduction, none of which he ever saw. [13]
Averring in fine that his acts in question were done without malice, Alauya prays
for the dismissal of the complaint for lack of merit, it consisting of "fallacious,
malicious and baseless allegations," and complainant Alawi having come to the
Court with unclean hands, her complicity in the fraudulent housing loan being
apparent and demonstrable.

12

It may be mentioned that in contrast to his two (2) letters to Assistant Clerk of
Court Marasigan (dated April 19, 1996 and April 22, 1996), and his two (2) earlier
letters both dated December 15, 1996 -- all of which he signed as "Atty. Ashary M.
Alauya" -- in his Comment of June 5, 1996, he does not use the title but refers to
himself as "DATU ASHARY M. ALAUYA."
The Court referred the case to the Office of the Court Administrator for
evaluation, report and recommendation.[14]
The first accusation against Alauya is that in his aforesaid letters, he made
"malicious and libelous charges (against Alawi) with no solid grounds through
manifest ignorance and evident bad faith," resulting in "undue injury to (her) and
blemishing her honor and established reputation." In those letters, Alauya had
written inter alia that:
1) Alawi obtained his consent to the contracts in question
misrepresentation, deceit, fraud, dishonesty and abuse of confidence;"

"by

gross

2) Alawi acted in bad faith and perpetrated ** illegal and unauthorized acts ** **
prejudicial to ** (his) rights and interests;"
3) Alawi was an "unscrupulous (and "swindling") sales agent" who had fooled him
by "deceit, fraud, misrepresentation, dishonesty and abuse of confidence;" and
4) Alawi had maliciously and fraudulently manipulated the contract with Villarosa &
Co., and unlawfully secured and pursued the housing loan without ** (his) authority
and against ** (his) will," and "concealed the real facts **."
Alauya's defense essentially is that in making these statements, he was merely
acting in defense of his rights, and doing only what "is expected of any man unduly
prejudiced and injured," who had suffered "mental anguish, sleepless nights,
wounded feelings and untold financial suffering," considering that in six months, a
total of P26,028.60 had been deducted from his salary. [15]
The Code of Conduct and Ethical Standards for Public Officials and Employees
(RA 6713) inter alia enunciates the State policy of promoting a high standard of
ethics and utmost responsibility in the public service. [16] Section 4 of the Code
commands that "(p)ublic officials and employees ** at all times respect the rights of
others, and ** refrain from doing acts contrary to law, good morals, good customs,
public policy, public order, public safety and public interest." [17] More than once has
this Court emphasized that "the conduct and behavior of every official and
employee of an agency involved in the administration of justice, from the presiding
judge to the most junior clerk, should be circumscribed with the heavy burden of
responsibility. Their conduct must at all times be characterized by, among others,
13

strict propriety and decorum so as to earn and keep the respect of the public for the
judiciary."[18]
Now, it does not appear to the Court consistent with good morals, good customs
or public policy, or respect for the rights of others, to couch denunciations of acts
believed -- however sincerely -- to be deceitful, fraudulent or malicious, in
excessively intemperate. insulting or virulent language. Alauya is evidently
convinced that he has a right of action against Sophia Alawi. The law requires that
he exercise that right with propriety, without malice or vindictiveness, or undue
harm to anyone; in a manner consistent with good morals, good customs, public
policy, public order, supra; or otherwise stated, that he "act with justice, give
everyone his due, and observe honesty and good faith." [19] Righteous indignation, or
vindication of right cannot justify resort to vituperative language, or downright
name-calling. As a member of the Shari'a Bar and an officer of a Court, Alawi is
subject to a standard of conduct more stringent than for most other government
workers. As a man of the law, he may not use language which is abusive, offensive,
scandalous, menacing, or otherwise improper. [20] As a judicial employee, it is
expected that he accord respect for the person and the rights of others at all times,
and that his every act and word should be characterized by prudence, restraint,
courtesy, dignity. His radical deviation from these salutary norms might perhaps be
mitigated, but cannot be excused, by his strongly held conviction that he had been
grievously wronged.
As regards Alauya's use of the title of "Attorney," this Court has already had
occasion to declare that persons who pass the Shari'a Bar are not full-fledged
members of the Philippine Bar, hence may only practice law before Shari'a courts.
[21]
While one who has been admitted to the Shari'a Bar, and one who has been
admitted to the Philippine Bar, may both be considered "counsellors," in the sense
that they give counsel or advice in a professional capacity, only the latter is an
"attorney." The title of "attorney" is reserved to those who, having obtained the
necessary degree in the study of law and successfully taken the Bar Examinations,
have been admitted to the Integrated Bar of the Philippines and remain members
thereof in good standing; and it is they only who are authorized to practice law in
this jurisdiction.
Alauya says he does not wish to use the title, "counsellor" or "counsellor-at-law,"
because in his region, there are pejorative connotations to the term, or it is
confusingly similar to that given to local legislators. The ratiocination, valid or not, is
of no moment. His disinclination to use the title of "counsellor" does not warrant his
use of the title of attorney.
Finally, respecting Alauya's alleged unauthorized use of the franking privilege,
the record contains no evidence adequately establishing the accusation.

14

WHEREFORE, respondent Ashari M. Alauya is hereby REPRIMANDED for the use

of excessively intemperate, insulting or virulent language, i.e., language
unbecoming a judicial officer, and for usurping the title of attorney; and he is
warned that any similar or other impropriety or misconduct in the future will be
dealt with more severely.
SO ORDERED.
Davide, Jr., Melo, Francisco, and Panganiban, JJ., concur.

[A.C. No. 4904. August 12, 2004]

ANA A. CHUA and MARCELINA HSIA, complainants, vs. ATTY. SIMEON M.
MESINA, JR., respondent.
DECISION
PER CURIAM:
By a verified complaint[1] received by the Office of the Bar Confidant on May 5,
1998,[2] Ana Alvaran Chua and Marcelina Hsia administratively charged Atty. Simeon
M. Mesina, Jr., for breach of professional ethics, gross professional misconduct, and
culpable malpractice.
As related by complainants, the following facts gave rise to the filing of the
complaint.
Respondent was, for years, Ana Alvaran Chua and her now deceased husband
Chua Yap Ans legal counsel and adviser upon whom they reposed trust and
confidence. They were in fact lessees of a building situated at Burgos Street,
Cabanatuan City (Burgos property) owned by respondents family, and another
property containing an area of 854 sq. m., situated at Melencio Street, Cabanatuan
City (Melencio property), also owned by respondents family whereon they (spouses
15

Chua) constructed their house. These two properties were mortgaged by the
registered owner, respondents mother Felicisima Melencio vda. de Mesina (Mrs.
Mesina), in favor of the Planters Development Bank to secure a loan she obtained.
As Mrs. Mesina failed to meet her obligation to the bank, respondent convinced
complainant Ana Chua and her husband to help Mrs. Mesina by way of settling her
obligation in consideration for which the Melencio property would be sold to them
at P850.00/sq. m.
Accommodating respondents request, the spouses Chua and their business
partner, herein co-complainant Marcelina Hsia, settled Mrs. Mesinas bank obligation
in the amount ofP983,125.40.
A Deed of Absolute Sale dated January 19, 1985 [3] conveying the Melencio
property for P85,400.00 was thereafter executed by Mrs. Mesina, whose name
appears therein as Felicisima M. Melencio, in favor of complainants.
As complainants were later apprised of the amount of capital gains tax they
were to pay, they consulted respondent about it. Respondent thus suggested to
them that another Deed of Absolute Sale should be executed, antedated to 1979
before the effectivity of the law mandating the payment of capital gains tax. As
suggested by respondent, another Deed of Absolute Sale antedated February 9,
1979[4] was executed by Mrs. Mesina, whose name again appears therein as
Felicisima M. Melencio, in favor of complainants wherein the purchase price was also
indicated to be P85,400.00.
After liquidating the advances made by the Chua spouses in the redemption of
the MESINA properties, Mrs. Mesina was found to have an existing balance due the
spouses in the amount of P400,000.00, on account of which they advised
respondent about it. Respondent, by Affidavit of February 18, 1986, acknowledged
such obligation to be his and undertook to settle it within two years.
Complainants were subsequently issued on January 21, 1986 a title over the
Melencio property.
Not long after the execution of the February 9, 1979 Deed of Absolute Sale or in
February 1986, one Juanito Tecson (Tecson) filed an Affidavit [5] dated February 20,
1986 before the Cabanatuan City Prosecutors Office charging respondents mother,
the spouses Chua, Marcelina Hsia and the two witnesses to the said Deed of
Absolute Sale, for Falsification of Public Document and violation of the Internal
Revenue Code. In his complaint affidavit, Tecson alleged that he was also a lessee of
the Melencio property and was, along with the Chua spouses, supposed to purchase
it but that contrary to their agreement, the property was sold only to complainant
and her co-complainant, to his exclusion. Tecson went on to relate that the February
16

9, 1979 Deed of Absolute Sale did not reflect the true value of the Melencio property
and was antedated to evade payment of capital gains tax.
Tecson submitted documents showing that indeed the July 9, 1979 Deed of
Absolute Sale was antedated.
Respondent thereupon hatched a plan to dodge the falsification charge against
Mrs. Mesina et al. He proposed to complainants that they would simulate a deed of
sale of the Melencio property wherein complainants would resell it to Mrs. Mesina.
Heeding the proposal of respondent, complainants executed a Deed of Absolute
Sale dated April 1, 1986[6] conveying to Felicisima M. Melencio the Melencio property
for P85,400.00.
A new title was accordingly issued on April 4, 1986 in the name of Felicisima M.
Melencio, the owners copy of which was entrusted to complainants.
Tecson subsequently filed before the Cabanatuan City Prosecutors Office an
Affidavit of Desistance dated September 5, 1986 [7] alleging that his filing of the
criminal complaint arose out of mere misunderstanding and difference with herein
complainants and their co-respondents and he had no sufficient evidence against
them.
Some years later or on May 2, 1990, respondent approached complainants and
told them that he would borrow the owners copy of Mrs. Mesinas title with the
undertaking that he would, in four months, let Mrs. Mesina execute a deed of sale
over the Melencio property in complainants favor. In fact, respondent gave
complainants a written undertaking[8] dated May 2, 1990 reading:
Received the owners duplicate copy of TCT No. 4383 issued by the Register of
Deeds, Cabanatuan City registered in the name of Felicisima Mesina, widow,
consisting of about 854 square meters more or less located at calle Melencio,
Cabanatuan City from Mrs. Ana Chua and Marcelina Hsia.
I promise to and undertake to have the Deed of Sale of the above-mentioned proper
ty in favor of Ana
Chua and Marcelina Hsia to be signed by Mrs. Felicisima Mesina, within four (4) mon
ths from datehereof so that the above-mentioned property and title maybe
transferred in the name of Ana Chua and Macelina Hsia. (Underscoring supplied)
In the meantime, Mrs. Mesina died in the early part of 1991.

17

Despite respondents repeated promises to effect the transfer of title in

complainants name, he failed to do so. Complainants were later informed that the
Melencio property was being offered for sale to the public.
The spouses Chua and complainant Marcelina Hsia thus filed on August 24,
1992 a Complaint[9] against respondent and his two siblings before the Regional Trial
Court (RTC) of Nueva Ecija in Cabanatuan City, for Declaration of Nullity of Sale and
Reconveyance of Real Property.
As of the time of the filing of the present administrative complaint in 1998, the
civil case against the Mesina siblings was still pending.
This Court, by Resolution of July 13, 1998, [10] directed respondent to file
Comment on the complaint within ten days.
By Resolution of December 2, 1998, [11] this Court, noting that the copy of the
Resolution of July 13, 1998 requiring respondent to comment on the complaint sent
to him at his office address at S. M. Mesina Law Office, 30 Jupiter St., Paseo de
Roxas, Bel-Air Subd., Makati City was returned unserved with the notation Moved,
considered the Resolution of July 13, 1998 served on respondent by substituted
service pursuant to Rule 13, Section 8 of the 1997 Rules of Civil
Procedure. Respondent was accordingly deemed to have waived the filing of the
required comment.
By the same Resolution of December 2, 1998, the case was referred to the
Integrated Bar of the Philippines (IBP) for investigation, report and recommendation
within ninety days.
The IBP, acting on the complaint, issued a notice of hearing on September 14,
2001,[12] copy of which was sent to respondent at his office address via registered
mail, covered by Registry Receipt No. 2605 of the Meralco Post Office. [13] On the
scheduled date of hearing, complainants personally appeared with their
counsel. Respondent failed to show up.
Given the length of time that the case remained pending from its filing, the IBP
Commission on Bar Discipline, by Order of October 12, 2001,[14] directed
complainants to just file their position paper with affidavits and supporting
documents in lieu of actual presentation of witnesses and to serve a copy thereof to
respondent at his last known address.
In compliance with the IBP Order, complainants filed on April 1, 2002 their
position paper,[15] annexed to which were photocopies of: 1) a May 5, 1993
Certification[16] issued by the Metrobank Cabanatuan Branch certifying that it issued

18

the demand drafts to the payees enumerated below, which were debited from the
account of Mr. Chua Yap An under Savings Account No. 760:
D/D No. Payee Amount Date of Issue
214597 Planters Dev. Bank P 805,299.54 12-19-85
214760 Planters Dev. Bank 100,000.00 01-14-86
214761 Atty. Simeon Mesina, Jr. 77,826.10 01-14-86;
2) Affidavit dated February 18, 1986[17] of respondent acknowledging a debt
of P400,000.00 to complainant Ana Alvaran Chua and promising to pay interest
thereon within 2 years to commence upon the signing thereof [February 16, 1998]
and, in the event no partial or full payment of the principal is made within 2 years,
Ana Alvaran Chua is under no obligation to pay any lease rentals over the lot
situated in Burgos Avenue, Cabanatuan City where the Oceanic Hardware Bldg. is
erected; 3) Deed of Absolute Sale dated January 19, 1985 [18] and 4) Deed of
Absolute Sale dated July 9, 1979, [19] both executed by Felicisima M. Melencio in favor
of complainant; 5) TCT No. T-48114 [20] issued by the Cabanatuan City in the name of
complainants on January 21, 1986; 6) Affidavit of Juanito C. Tecson [21] dated January
20, 1986 charging complainants et al. for Falsification of Public Documents; 7) Deed
of Absolute Sale dated April 1, 1986 executed by complainants in favor of Mrs.
Mesina;[22] and 8) TCT No. T-48383issued on April 4, 1986 in the name of Felicisima
M. Melencio;[23] and 9) Complaint of spouses Chua Yap An and Ana Alvaran Chua and
Marcelina Hsia, for Declaration of Nullity of Deed of Sale and Reconveyance of Real
Property against respondent and his two siblings. [24]
A copy of complainants position paper was sent on March 18, 2002 to
respondent at his office address by registered mail covered by Registry Receipt No.
5278.[25] There is no showing if respondent received this mail matter.
The IBP once more scheduled, by notice of December 13, 2002, [26] a hearing of
the administrative case to January 15, 2003, copy of which notice was sent to
respondent at his office address by registered mail covered by Registry Receipt No.
2953 issued by the Meralco Post Office.[27]
On the scheduled hearing on January 15, 2003, the IBP Investigating
Commissioner, by Order of even date, [28] noted the presence of complainants, and
the absence of respondent, copy of the notice of hearing to whom was returned
unserved with the notation RTS-Moved. The case was thereupon deemed submitted
for report and recommendation.

19

On June 21, 2003, the IBP passed Resolution No. XV-2003-342 [29] adopting and
approving the report and recommendation of Atty. Rebecca Villanueva-Maala, the
Investigating Commissioner of the case.
In her March 3, 2003 Report
Commissioner Maala observed as follows:

and

Recommendation, [30] Investigation

A lawyer should not engage or participate on any unlawful, dishonest, immoral or

deceitful conduct. The moral character he displayed when he applied for admission
at the Bar must be maintained incessantly. Otherwise, his privilege to practice the
legal profession may be withdrawn from him (Rule 1.01, Code of Professional
Responsibility). On the basis of the uncontroverted facts and evidence
presented, respondent
Atty. Simeon M. Mesina has committed gross misconduct which shows him to be
unfit for the office and unworthy of the privilege which his license and law confer
upon him,
and recommended that respondent be suspended for a period of One (1) Year.
This Court finds that indeed, respondent is guilty of gross misconduct.
First, by advising complainants to execute another Deed of Absolute Sale
antedated to 1979 to evade payment of capital gains taxes, he violated his duty to
promote respect for law and legal processes, 28 and not to abet activities aimed at
defiance of the law;29 That respondent intended to, as he did defraud not a private
party but the government is aggravating.30
Second, when respondent convinced complainants to execute another
document, a simulated Deed of Absolute Sale wherein they made it appear that
complainants reconveyed the Melencio property to his mother, he committed
dishonesty.31
Third, when on May 2, 1990 respondent inveigled his own clients, the Chua
spouses, into turning over to him the owners copy of his mothers title upon the
misrepresentation that he would, in four months, have a deed of sale executed by
his mother in favor of complainants, he likewise committed dishonesty.
That the signature of Felicisima M. Melencio in the 1985 document 32 and that in
the 1979 document33 are markedly different is in fact is a badge of falsification of
either the 1979 or the 1985 document or even both.
A propos is this Courts following pronouncement in Nakpil v. Valdez34

20

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 f
aith. The measure of good faith which an attorney is required toexercise in his deali
ngs with his client is a much higher standard that is required in business dealings w
here 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 assure 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.35 (Underscoring supplied)
Respondent having welched on his promise to cause the reconveyance of the
Melencio property to complainants, consideration of whether he should be ordered
to honor such promise should be taken up in the civil case filed for the purpose, the
issue there being one of ownership while that in the case at bar is moral fitness. 37
In fine, respondent violated his oath of office and, more specifically, the
following canons of the Code of Professional Responsibility:
CANON 1. A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE
LAND AND PROMOTE RESPECT FOR LAW AND LEGAL PROCESSES.
Rule 1.01. - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful
conduct.
Rule 1.02. - A lawyer shall not counsel or abet activities aimed at defiance of the law
or at lessening confidence in the legal system.
CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND DIGNITY OF
THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR.
Rule 7.03. - A lawyer shall not engage in conduct that adversely reflects on his
fitness to practice law, nor shall he, whether in public or private life, behave in a
scandalous manner to the discredit of the legal profession.
CANON 15. A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND LOYALTY IN ALL HIS
DEALINGS AND TRANSACTIONS WITH HIS CLIENTS.
Rule 15.07. - A lawyer shall impress upon his client compliance with the laws and
the principles of fairness.CANON 17. A LAWYER OWES FIDELITY TO THE CAUSE OF
HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED
IN HIM.

21

WHEREFORE, respondent ATTY.

misconduct, hereby DISBARRED.

SIMEON

M.

MESINA,

JR.

is,

for

gross

Let copies of this Decision be furnished all courts, the Integrated Bar of the
Philippines, and the Office of the Bar Confidant.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Carpio,
Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, and ChicoNazario, JJ., concur.
Sandoval-Gutierrez, J., on leave.

EN BANC
ROBERTO SORIANO, A.C. No. 6792
Complainant,
Present:
Panganiban, CJ,
Puno,
Quisumbing,
Ynares-Santiago,
Sandoval-Gutierrez,
Carpio,
- versus - Austria-Martinez,
Corona,
Carpio Morales,
Callejo, Sr.,
Azcuna,
Tinga,
Chico-Nazario, and
Garcia, JJ
Atty. MANUEL DIZON, Promulgated:
Respondent. January 25, 2006
x---------------------------------------------------------------------------------x
DECISION
PER CURIAM:
Before us is a Complaint-Affidavit[1] for the disbarment of Atty. Manuel Dizon,
filed by Roberto Soriano with the Commission on Bar Discipine (CBD) of the
Integrated Bar of the Philippines (IBP). Complainant alleges that the conviction of
22

respondent for a crime involving moral turpitude, together with the circumstances
surrounding the conviction, violates Canon 1 of Rule 1.01 of the Code of Professional
Responsibility;[2] and constitutes sufficient ground for his disbarment under Section
27 of Rule 138 of the Rules of Court. [3]

23

Because of the failure of Atty. Dizon to submit his Answer to the Complaint,
the CBD issued a Notice dated May 20, 2004, informing him that he was in default,
and that an ex-parte hearing had been scheduled for June 11, 2004. [4] After that
hearing, complainant manifested that he was submitting the case on the basis of
the Complaint and its attachments. [5] Accordingly, the CBDdirected him to file his
Position Paper, which he did on July 27, 2004. [6] Afterwards, the case was deemed
submitted for resolution.
On December 6, 2004, Commissioner Teresita J. Herbosa rendered her Report and
Recommendation, which was later adopted and approved by the IBP Board of Governors
in its Resolution No. XVI-2005-84 dated March 12, 2005.
In his Complaint-Affidavit, Soriano alleged that respondent had violated Canon 1,
Rule 1.01 of the Code of Professional Responsibility; and that the conviction of the
latter for frustrated homicide,[7] which involved moral turpitude, should result in his
disbarment.
The facts leading to respondents conviction were summarized by Branch 60
of the Regional Trial Court of Baguio City in this wise:
x x x. The accused was driving his brown Toyota Corolla and was
on his way home after gassing up in preparation for his trip to
Concepcion, Tarlac with his wife. Along Abanao Street, a taxi driver
overtook the car driven by the accused not knowing that the driver of
the car he had overtaken is not just someone, but a lawyer and a
prominent member of the Baguio community who was under the
influence of liquor. Incensed, the accused tailed the taxi driver until the
latter stopped to make a turn at [the] Chugum and Carino Streets. The
accused also stopped his car, berated the taxi driver and held him by
his shirt. To stop the aggression, the taxi driver forced open his door
causing the accused to fall to the ground. The taxi driver knew that the
accused had been drinking because he smelled of liquor. Taking pity on
the accused who looked elderly, the taxi driver got out of his car to
help him get up. But the accused, by now enraged, stood up
immediately and was about to deal the taxi driver a fist blow when the
latter boxed him on the chest instead. The accused fell down a second
time, got up again and was about to box the taxi driver but the latter
caught his fist and turned his arm around. The taxi driver held on to
the accused until he could be pacified and then released him. The
accused went back to his car and got his revolver making sure that the
handle was wrapped in a handkerchief. The taxi driver was on his way
back to his vehicle when he noticed the eyeglasses of the accused on
the ground. He picked them up intending to return them to the
accused. But as he was handing the same to the accused, he was met
by the barrel of the gun held by the accused who fired and shot him
hitting him on the neck. He fell on the thigh of the accused so the
latter pushed him out and sped off. The incident was witnessed by
Antonio Billanes whose testimony corroborated that of the taxi driver,
the complainant in this case, Roberto Soriano. [8]

24

It was the prosecution witness, Antonio Billanes, who came to the aid of
Soriano and brought the latter to the hospital. Because the bullet had lacerated the
carotid artery on the left side of his neck, [9] complainant would have surely died of
hemorrhage if he had not received timely medical assistance, according to the
attending surgeon, Dr. Francisco Hernandez, Jr. Soriano sustained a spinal cord
injury, which caused paralysis on the left part of his body and disabled him for his
job as a taxi driver.
The trial court promulgated its Decision dated November 29, 2001. On
January 18, 2002, respondent filed an application for probation, which was granted
by the court on several conditions. These included satisfaction of the civil liabilities
imposed by [the] court in favor of the offended party, Roberto Soriano. [10]
According to the unrefuted statements of complainant, Atty. Dizon, who has
yet to comply with this particular undertaking, even appealed the civil liability to the
Court of Appeals.[11]
In her Report and Recommendation, Commissioner Herbosa recommended that
respondent be disbarred from the practice of law for having been convicted of a
crime involving moral turpitude.
The commissioner found that respondent had not only been convicted of such
crime, but that the latter also exhibited an obvious lack of good moral character,
based on the following facts:
1. He was under the influence of liquor while driving his car;
2. He reacted violently and attempted to assault Complainant only
because the latter, driving a taxi, had overtaken him;
3. Complainant having been able to ward off his attempted assault,
Respondent went back to his car, got a gun, wrapped the same
with a handkerchief and shot Complainant[,] who was unarmed;
4. When Complainant fell on him, Respondent simply pushed him out
and fled;
5. Despite positive identification and overwhelming evidence,
Respondent denied that he had shot Complainant;
6. Apart from [his] denial, Respondent also lied when he claimed that
he was the one mauled by Complainant and two unidentified
persons; and,
7. Although he has been placed on probation, Respondent has[,] to
date[,] not yet satisfied his civil liabilities to Complainant. [12]
On July 8, 2005, the Supreme Court received for its final action the IBP
Resolution adopting the Report and Recommendation of the Investigating
Commissioner.
We agree with the findings and recommendations of Commissioner Herbosa,
as approved and adopted by the IBP Board of Governors.

25

Under Section 27 of Rule 138 of the Rules of Court, conviction for a crime
involving moral turpitude is a ground for disbarment or suspension. By such
conviction, a lawyer is deemed to have become unfit to uphold the administration of
justice and to be no longer possessed of good moral character. [13] In the instant
case, respondent has been found guilty; and he stands convicted, by final judgment,
of frustrated homicide. Since his conviction has already been established and is no
longer open to question, the only issues that remain to be determined are as
follows: 1) whether his crime of frustrated homicide involves moral turpitude, and 2)
whether his guilt warrants disbarment.
Moral turpitude has been defined as everything which is done contrary to justice,
modesty, or good morals; an act of baseness, vileness or depravity in the private
and social duties which a man owes his fellowmen, or to society in general, contrary
to justice, honesty, modesty, or good morals. [14]
The question of whether the crime of homicide involves moral turpitude has
been discussed in International Rice Research Institute (IRRI) v. NLRC, [15] a labor
case concerning an employee who was dismissed on the basis of his conviction for
homicide. Considering the particular circumstances surrounding the commission of
the crime, this Court rejected the employers contention and held that homicide in
that case did not involve moral turpitude. (If it did, the crime would have been
violative of the IRRIs Employment Policy Regulations and indeed a ground for dismissal.)
The Court explained that, having disregarded the attendant circumstances, the employer made
a pronouncement that was precipitate. Furthermore, it was not for the latter to determine
conclusively whether a crime involved moral turpitude. That discretion belonged to the courts,
as explained thus:
x x x. Homicide may or may not involve moral turpitude
depending on the degree of the crime. Moral turpitude is not involved
in every criminal act and is not shown by every known and intentional
violation of statute, but whether any particular conviction involves
moral turpitude may be a question of fact and frequently depends on
all the surrounding circumstances. x x x.[16] (Emphasis supplied)

In the IRRI case, in which the crime of homicide did not involve moral
turpitude, the Court appreciated the presence of incomplete self-defense and total
absence of aggravating circumstances. For a better understanding of that Decision,
the circumstances of the crime are quoted as follows:
x x x. The facts on record show that Micosa [the IRRI employee] was
then urinating and had his back turned when the victim drove his fist
unto Micosa's face; that the victim then forcibly rubbed Micosa's face
into the filthy urinal; that Micosa pleaded to the victim to stop the
attack but was ignored and that it was while Micosa was in that
position that he drew a fan knife from the left pocket of his shirt and
desperately swung it at the victim who released his hold on Micosa
only after the latter had stabbed him several times. These facts show
that Micosa's intention was not to slay the victim but only to defend his
person. The appreciation in his favor of the mitigating circumstances of
26

self-defense and voluntary surrender, plus the total absence of any

aggravating circumstance demonstrate that Micosa's character and
intentions were not inherently vile, immoral or unjust. [17]

The present case is totally different. As the IBP correctly found, the circumstances
clearly evince the moral turpitude of respondent and his unworthiness to practice
law.
Atty. Dizon was definitely the aggressor, as he pursued and shot complainant
when the latter least expected it. The act of aggression shown by respondent will
not be mitigated by the fact that he was hit once and his arm twisted by
complainant. Under the circumstances, those were reasonable actions clearly
intended to fend off the lawyers assault.
We also consider the trial courts finding of treachery as a further indication of the
skewed morals of respondent. He shot the victim when the latter was not in a
position to defend himself. In fact, under the impression that the assault was
already over, the unarmed complainant was merely returning the eyeglasses of Atty.
Dizon when the latter unexpectedly shot him. To make matters worse, respondent
wrapped the handle of his gun with a handkerchief so as not to leave fingerprints. In
so doing, he betrayed his sly intention to escape punishment for his crime.
The totality of the facts unmistakably bears the earmarks of moral turpitude.
By his conduct, respondent revealed his extreme arrogance and feeling of selfimportance. As it were, he acted like a god on the road, who deserved to be
venerated and never to be slighted. Clearly, his inordinate reaction to a simple
traffic incident reflected poorly on his fitness to be a member of the legal
profession. His overreaction also evinced vindictiveness, which was definitely an
undesirable trait in any individual, more so in a lawyer. In the tenacity with which he
pursued complainant, we see not the persistence of a person who has been
grievously wronged, but the obstinacy of one trying to assert a false sense of
superiority and to exact revenge.

27

It is also glaringly clear that respondent seriously transgressed Canon 1 of the

Code of Professional Responsibility through his illegal possession of an unlicensed
firearm[18] and his unjust refusal to satisfy his civil liabilities. [19] He has thus brazenly
violated the law and disobeyed the lawful orders of the courts. We remind him that,
both in his attorneys oath[20] and in the Code of Professional Responsibility, he bound
himself to obey the laws of the land.
All told, Atty. Dizon has shown through this incident that he is wanting in even
a basic sense of justice. He obtained the benevolence of the trial court when it
suspended his sentence and granted him probation. And yet, it has been four
years[21] since he was ordered to settle his civil liabilities to complainant. To date,
respondent remains adamant in refusing to fulfill that obligation. By his extreme
impetuosity and intolerance, as shown by his violent reaction to a simple traffic
altercation, he has taken away the earning capacity, good health, and youthful vigor
of his victim. Still, Atty. Dizon begrudges complainant the measly amount that could
never even fully restore what the latter has lost.
Conviction for a crime involving moral turpitude may relate, not to the
exercise of the profession of lawyers, but certainly to their good moral character.
[22]
Where their misconduct outside of their professional dealings is so gross as to
show them morally unfit for their office and unworthy of the privileges conferred
upon them by their license and the law, the court may be justified in suspending or
removing them from that office.[23]
We also adopt the IBPs finding that respondent displayed an utter lack of
good moral character, which is an essential qualification for the privilege to enter
into the practice of law. Good moral character includes at least common honesty. [24]
In the case at bar, respondent consistently displayed dishonest and
duplicitous behavior. As found by the trial court, he had sought, with the aid of ViceMayor Daniel Farias, an out-of-court settlement with complainants family. [25] But
when this effort failed, respondent concocted a complete lie by making it appear
that it was complainants family that had sought a conference with him to obtain his
referral to a neurosurgeon.[26]
The lies of Atty Dizon did not end there. He went on to fabricate an entirely
implausible story of having been mauled by complainant and two other persons.
[27]
The trial court had this to say:
The physical evidence as testified to by no less than three (3)
doctors who examined [Atty. Dizon] does not support his allegation
that three people including the complainant helped each other in
kicking and boxing him. The injuries he sustained were so minor that it
is improbable[,] if not downright unbelievable[,] that three people who
he said were bent on beating him to death could do so little damage.
On the contrary, his injuries sustain the complainants version of the
incident particularly when he said that he boxed the accused on the
chest. x x x.[28]

28

Lawyers must be ministers of truth. No moral qualification for bar

membership is more important than truthfulness. [29] The rigorous ethics of the
profession places a premium on honesty and condemns duplicitous behavior.
[30]
Hence, lawyers must not mislead the court or allow it to be misled by any
artifice. In all their dealings, they are expected to act in good faith.

29

The actions of respondent erode rather than enhance public perception of the
legal profession. They constitute moral turpitude for which he should be disbarred.
Law is a noble profession, and the privilege to practice it is bestowed only upon
individuals who are competent intellectually, academically and, equally important,
morally. Because they are vanguards of the law and the legal system, lawyers must
at all times conduct themselves, especially in their dealings with their clients and
the public at large, with honesty and integrity in a manner beyond reproach. [31]
The foregoing abhorrent acts of respondent are not merely dishonorable; they
reveal a basic moral flaw. Considering the depravity of the offense he committed,
we find the penalty recommended by the IBP proper and commensurate.
The purpose of a proceeding for disbarment is to protect the administration of
justice by requiring that those who exercise this important function be competent,
honorable and reliable -- lawyers in whom courts and clients may repose
confidence.[32] Thus, whenever a clear case of degenerate and vile behavior disturbs
that vital yet fragile confidence, we shall not hesitate to rid our profession of odious
members.
We remain aware that the power to disbar must be exercised with great
caution, and that disbarment should never be decreed when any lesser penalty
would accomplish the end desired. In the instant case, however, the Court cannot
extend that munificence to respondent. His actions so despicably and wantonly
disregarded his duties to society and his profession. We are convinced that meting
out a lesser penalty would be irreconcilable with our lofty aspiration for the
legal profession -- that every lawyer be a shining exemplar of truth and justice.
We stress that membership in the legal profession is a privilege demanding 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. Sadly,
herein respondent has fallen short of the exacting standards expected of him as a
vanguard of the legal profession.
In sum, when lawyers are convicted of frustrated homicide, the attending circumstances
not the mere fact of their conviction would demonstrate their fitness to remain in the
legal profession. In the present case, the appalling vindictiveness, treachery, and brazen
dishonesty of respondent clearly show his unworthiness to continue as a member of the
bar.
WHEREFORE, RESPONDENT MANUEL DIZON is hereby DISBARRED, and his
name is ORDERED STRICKEN from the Roll of Attorneys. Let a copy of this Decision
be entered in his record as a member of the Bar; and let notice of the same be
served on the Integrated Bar of the Philippines, and on the Office of the Court
Administrator for circulation to all courts in the country.
SO ORDERED.
ARTEMIO V. PANGANIBAN
Chief Justice

30

KELD STEMMERIK, A.C. No. 8010

represented by ATTYS.
HERMINIO A. LIWANAG and
WINSTON P.L. ESGUERRA,
Complainant, Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
CORONA,
- v e r s u s - CARPIO MORALES,*
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA and
BERSAMIN, JJ.
ATTY. LEONUEL N. MAS,
Respondent. Promulgated:
June 16, 2009
x--------------------------------------------------x
RESOLUTION
Per Curiam:
Complainant Keld Stemmerik is a citizen and resident of Denmark. In one of his trips
to the Philippines, he was introduced to respondent Atty. Leonuel N. Mas. That was
his misfortune.
In one visit to the Philippines, complainant marveled at the beauty of the
country and expressed his interest in acquiring real property in the Philippines. He
consulted respondent who advised him that he could legally acquire and own real
property in the Philippines. Respondent even suggested an 86,998 sq.m. property in
Quarry, Agusuin, Cawag, Subic, Zambales with the assurance that the property was
alienable.
Trusting respondent, complainant agreed to purchase the property through
respondent as his representative or attorney-in-fact. Complainant also engaged the
services of respondent for the preparation of the necessary documents. For this
purpose, respondent demanded and received a P400,000 fee.
Confident that respondent would faithfully carry out his task, complainant returned
to Denmark, entrusting the processing of the necessary paperwork to respondent.

31

Thereafter, respondent prepared a contract to sell the property between

complainant, represented by respondent, and a certain Bonifacio de Mesa, the
purported owner of the property.[1] Subsequently, respondent prepared and
notarized a deed of sale in which de Mesa sold and conveyed the property to a
certain Ailyn Gonzales for P3.8 million.[2]Respondent also drafted and notarized an
agreement between complainant and Gonzales stating that it was complainant who
provided the funds for the purchase of the property. [3] Complainant then gave
respondent the full amount of the purchase price (P3.8 million) for which respondent
issued an acknowledgment receipt. [4]
After the various contracts and agreements were executed, complainant tried to get
in touch with respondent to inquire about when the property could be registered in
his name. However, respondent suddenly became scarce and refused to answer
complainants calls and e-mail messages.
When complainant visited the Philippines again in January 2005, he engaged the
services of the Jimenez Gonzales Liwanag Bello Valdez Caluya & Fernandez Law
Office to ascertain the status of the property he supposedly bought. He was
devastated to learn that aliens could not own land under Philippine laws. Moreover,
verification at the Community Environment & Natural Resources Office (CENRO) of
the Department of Environment and Natural Resources in Olongapo City revealed
that the property was inalienable as it was situated within the former US Military
Reservation.[5] The CENRO also stated that the property was not subject to
disposition or acquisition under Republic Act No. 141. [6]
Thereafter, complainant, through his attorneys-in-fact, [7] exerted diligent efforts to
locate respondent for purposes of holding him accountable for his fraudulent acts.
Inquiry with the Olongapo Chapter of the Integrated Bar of the Philippines (IBP)
disclosed that respondent was in arrears in his annual dues and that he had already
abandoned his law office in Olongapo City. [8] Search of court records of cases
handled by respondent only yielded his abandoned office address in Olongapo City.
Complainant filed a complaint for disbarment against respondent in the
Commission on Bar Discipline (CBD) of the IBP. [9] He deplored respondents acts of
serious misconduct. In particular, he sought the expulsion of respondent from the
legal profession for gravely misrepresenting that a foreigner could legally acquire
land in the Philippines and for maliciously absconding with complainants P3.8
million.[10]
Respondent failed to file his answer and position paper despite service of notice at
his last known address. Neither did he appear in the scheduled mandatory
conference. In this connection, the CBD found that respondent abandoned his law
practice in Olongapo City after his transaction with complainant and that he did not
see it fit to contest the charges against him. [11]
The CBD ruled that respondent used his position as a lawyer to mislead complainant
on the matter of land ownership by a foreigner. [12] He even went through the motion
of preparing falsified and fictitious contracts, deeds and agreements. And for all
these shameless acts, he collected P400,000 from complainant. Worse, he pocketed
the P3.8 million and absconded with it.[13]
32

The CBD found respondent to be nothing more than an embezzler who

misused his professional status as an attorney as a tool for deceiving complainant
and absconding with complainants money.[14] Respondent was dishonest and
deceitful. He abused the trust and confidence reposed by complainant in him. The
CBD recommended the disbarment of respondent. [15]
The Board of Governors of the IBP adopted the findings and recommendation of the
CBD with the modification that respondent was further required to return the
amount of P4.2 million to respondent.[16]
We agree with the IBP.
SUFFICIENCY OF NOTICE OF
THE DISBARMENT PROCEEDINGS
We shall first address a threshold issue: was respondent properly given notice of the
disbarment proceedings against him? Yes.
The respondent did not file any answer or position paper, nor did he appear
during the scheduled mandatory conference. Respondent in fact abandoned his last
known address, his law office in Olongapo City, after he committed the
embezzlement.
Respondent should not be allowed to benefit from his disappearing act. He
can neither defeat this Courts jurisdiction over him as a member of the bar nor
evade administrative liability by the mere ruse of concealing his whereabouts. Thus,
service of the complaint and other orders and processes on respondents office was
sufficient notice to him.
Indeed, since he himself rendered the service of notice on him impossible,
the notice requirement cannot apply to him and he is thus considered to have
waived it. The law does not require that the impossible be done. Nemo tenetur ad
impossibile.[17] The law obliges no one to perform an impossibility. Laws and rules
must be interpreted in a way that they are in accordance with logic, common sense,
reason and practicality.[18]
In this connection, lawyers must update their records with the IBP by informing the
IBP National Office or their respective chapters [19] of any change in office or
residential address and other contact details. [20] In case such change is not duly
updated, service of notice on the office or residential address appearing in the
records of the IBP National Office shall constitute sufficient notice to a lawyer for
purposes of administrative proceedings against him.
RESPONDENTS
ADMINISTRATIVE
INFRACTIONS
AND HIS LIABILITY THEREFOR

33

Lawyers, as members of a noble profession, have the duty to promote

respect for the law and uphold the integrity of the bar. As men and women
entrusted with the law, they must ensure that the law functions to protect liberty
and not as an instrument of oppression or deception.
Respondent has been weighed by the exacting standards of the legal
profession and has been found wanting.
Respondent committed a serious breach of his oath as a lawyer. He is also guilty of
culpable violation of the Code of Professional Responsibility, the code of ethics of
the legal profession.
All lawyers take an oath to support the Constitution, to obey the laws and to do no
falsehood.[21] That oath is neither mere formal ceremony nor hollow words. It is a
sacred trust that should be upheld and kept inviolable at all times. [22]
Lawyers are servants of the law[23] and the law is their master. They should
not simply obey the laws, they should also inspire respect for and obedience thereto
by serving as exemplars worthy of emulation. Indeed, that is the first precept of the
Code of Professional Responsibility:
CANON 1 A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE
LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND LEGAL
PROCESSES.
Section 7, Article XII of the Constitution provides:
SEC. 7. Save in cases of hereditary succession, no private lands shall
be transferred or conveyed except to individuals, corporations, or
associations qualified to acquire or hold lands of the public domain.
This Court has interpreted this provision, as early as the 1947 case Krivenko
v. Register of Deeds, [24] to mean that under the Constitution, aliens may not acquire
private or agricultural lands, including residential lands. The provision is a
declaration of imperative constitutional policy. [25]
Respondent, in giving advice that directly contradicted a fundamental
constitutional policy, showed disrespect for the Constitution and gross ignorance of
basic law. Worse, he prepared spurious documents that he knew were void and
illegal.
By making it appear that de Mesa undertook to sell the property to
complainant and that de Mesa thereafter sold the property to Gonzales who made
the purchase for and in behalf of complainant, he falsified public documents and
knowingly violated the Anti-Dummy Law. [26]
Respondents misconduct did not end there. By advising complainant that a
foreigner could legally and validly acquire real estate in the Philippines and by
assuring complainant that the property was alienable, respondent deliberately
foisted a falsehood on his client. He did not give due regard to the trust and
34

confidence reposed in him by complainant. Instead, he deceived complainant and

misled him into parting with P400,000 for services that were both illegal and
unprofessional. Moreover, by pocketing and misappropriating the P3.8 million given
by complainant for the purchase of the property, respondent committed a
fraudulent act that was criminal in nature.
Respondent spun an intricate web of lies. In the process, he committed
unethical act after unethical act, wantonly violating laws and professional
standards.
For all this, respondent violated not only the lawyers oath and Canon 1 of the
Code of Professional Responsibility. He also transgressed the following provisions of
the Code of Professional Responsibility:
Rule 1.01. A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct.
Rule 1.02. A lawyer shall not counsel or abet activities aimed at
defiance of the law or at lessening confidence in the legal
system.
CANON 7 A LAWYER SHALL AT ALL TIMES UPHOLD THE
INTEGRITY AND DIGNITY OF THE LEGAL PROFESSION AND
SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR.
CANON 15 A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND
LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS
CLIENT.
CANON 16 A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND
PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS
POSSESSION.
CANON 17 A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT
AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE
REPOSED IN HIM. (emphasis supplied)
A lawyer who resorts to nefarious schemes to circumvent the law and uses
his legal knowledge to further his selfish ends to the great prejudice of others, poses
a clear and present danger to the rule of law and to the legal system. He does not
only tarnish the image of the bar and degrade the integrity and dignity of the legal
profession, he also betrays everything that the legal profession stands for.
It is respondent and his kind that give lawyering a bad name and make
laymen support Dick the Butchers call, Kill all lawyers! [27] A disgrace to their
professional brethren, they must be purged from the bar.
WHEREFORE, respondent Atty. Leonuel N. Mas is hereby DISBARRED. The
Clerk of Court is directed to immediately strike out the name of respondent from the
Roll of Attorneys.

35

Respondent is hereby ORDERED to return to complainant Keld Stemmerik

the total amount of P4.2 million with interest at 12% per annum from the date of
promulgation
of
this
resolution
until
full
payment.
Respondent
is
further DIRECTED to submit to the Court proof of payment of the amount within ten
days from payment.
The National Bureau of Investigation (NBI) is ORDERED to locate Atty. Mas
and file the appropriate criminal charges against him. The NBI is
further DIRECTED to regularly report the progress of its action in this case to this
Court through the Bar Confidant.
Let copies of this resolution be furnished the Bar Confidant who shall
forthwith record it in the personal file of respondent, the Court Administrator who
shall inform all courts of the Philippines, the Integrated Bar of the Philippines which
shall disseminate copies to all its chapters and members and all administrative and
quasi-judicial agencies of the Republic of the Philippines.
SO ORDERED.
REYNATO S. PUNO
Chief Justice

[BAR MATTER No. 810. January 27, 1998]

IN RE: PETITION TO TAKE THE LAWYERS OATH BY ARTHUR M. CUEVAS, JR.
RESOLUTION
FRANCISCO, J.:
Petitioner Arthur M. Cuevas, Jr., recently passed the 1996 Bar Examinations.
His oath-taking was held in abeyance in view of the Courts resolution dated
August 27, 1996 which permitted him to take the Bar Examinations subject to the
condition that should (he) pass the same, (he) shall not be allowed to take the
[1]

36

lawyers oath pending approval of the Court x x x due to his previous conviction for
Reckless Imprudence Resulting In Homicide. The conviction stemmed from
petitioners participation in the initiation rites of the LEX TALIONIS FRATERNITAS, a
fraternity in the SAN BEDA COLLEGE OF LAW, sometime in September 1991, where
Raul I. Camaligan, a neophyte, died as a result of the personal violence inflicted
upon him. Thereafter, petitioner applied for and was granted probation. On May 16,
1995, he was discharged from probation and his case considered closed and
terminated.
In this petition , received by the Court on May 5, 1997, petitioner prays that he
be allowed to take his lawyers oath at the Courts most convenient time [2] attaching
thereto the Order dated May 16, 1995 of the Regional Trial Court, Branch 10 of
Antique discharging him from his probation, and certifications attesting to his
righteous, peaceful and law abiding character issued by: (a) the Mayor of the
Municipality of Hamtic, Antique; (b) the Officer-in-Charge of Hamtic Police Station;
(c) the Sangguniang Kabataan of Pob. III, Hamtic, through its chairman and officers;
(d) a member of the IBP Iloilo Chapter; (e) the Parish Priest and Vicar General of St.
Joseph Cathedral, San Jose, Antique, and (f) the President of the Parish Pastoral
Council, Parish of Sta. Monica, Hamtic, Antique. On July 15, 1997, the Court, before
acting on petitioners application, resolved to require Atty. Gilbert D. Camaligan,
father of the deceased hazing victim Raul I. Camaligan, to comment thereon. In
compliance with the Courts directive, Atty. Gilbert D. Camaligan filed his comment
which states as follows:
1 He fully appreciates the benign concern given by this Hon. Court in allowing him
to comment to the pending petition of Arthur M. Cuevas to take the lawyers oath,
and hereby expresses his genuine gratitude to such gesture.
2 He conforms completely to the observation of the Hon. Court in its resolution
dated March 19, 1997 in Bar Matter No.712 that the infliction of severe physical
injuries which approximately led to the death of the unfortunate Raul Camaligan
was deliberate (rather than merely accidental or inadvertent) thus, indicating
serious character flaws on the part of those who inflicted such injuries. This is
consistent with his stand at the outset of the proceedings of the criminal case
against the petitioner and his co-defendants that they are liable not only for the
crime of homicide but murder, since they took advantage of the neophytes helpless
and defenseless condition when they were beaten and kicked to death like a useless
stray dog, suggesting the presence of abuse of confidence, taking advantage of
superior strength and treachery (People vs. Gagoco, 58 Phil. 524).
3 He, however, has consented to the accused-students plea of guilty to the lesser
offense of reckless imprudence resulting to the homicide, including the petitioner,
out of pity to their mothers and a pregnant wife of the accused who went together
at his house in Lucena City, literally kneeling, crying and begging for forgiveness for
37

their sons, on a Christmas day in 1991 and on Maundy Thursday in 1992, during
which they reported that the father of one of the accused died of heart attack upon
learning of his sons involvement in the case.
4 As a Christian, he has forgiven the petitioner and his co-defendants in the criminal
case for the death of his son. But as a loving father, who lost a son in whom he has
a high hope to become a good lawyer to succeed him, he still feels the pain of his
untimely demise, and the stigma of the gruesome manner of taking his life. This he
cannot forget.
5 He is not, right now, in a position to say whether petitioner, since then has
become morally fit for admission to the noble profession of the law. He politely
submits this matter to the sound and judicious discretion of the Hon. Court. [3]
At the outset, the Court shares the sentiment of Atty. Gilbert D. Camaligan and
commiserates with the untimely death of his son. Nonetheless, Atty. Gilbert D.
Camaligan admits that [h]e is not, right now, in a position to say whether petitioner
since then has become morally fit x x x and submits petitioners plea to be admitted
to the noble profession of law to the sound and judicious discretion of the Court.
The petition before the Court requires the balancing of the reasons for
disallowing petitioners admission to the noble profession of law. His deliberate
participation in the senseless beatings over a helpless neophyte which resulted to
the latters untimely demise indicates absence of that moral fitness required for
admission to the bar. And as the practice of law is a privilege extended only to the
few who possess the high standards of intellectual and moral qualifications the
Court is duty bound to prevent the entry of undeserving aspirants, as well as to
exclude those who have been admitted but have become a disgrace to the
profession. The Court, nonetheless, is willing to give petitioner a chance in the same
manner that it recently allowed Al Caparros Argosino, petitioners co-accused below,
to take the lawyers oath.[4]
Petitioner Arthur M. Cuevas, Jr.s discharge from probation without any infraction
of the attendant conditions therefor and the various certifications attesting to his
righteous, peaceful and civic-oriented character prove that he has taken decisive
steps to purge himself of his deficiency in moral character and atone for the
unfortunate death of Raul I. Camaligan. The Court is prepared to give him the
benefit of the doubt, taking judicial notice of the general tendency of the youth to
be rash, temerarious and uncalculating. [5] Let it be stressed to herein petitioner that
the lawyers oath is not a mere formality recited for a few minutes in the glare of
flashing cameras and before the presence of select witnesses. Petitioner is exhorted
to conduct himself beyond reproach at all times and to live strictly according to his
oath and the Code of Professional Responsibility. And, to paraphrase Mr. Justice
Padillas comment in the sister case of Re: Petition of Al Argosino To Take The
38

Lawyers Oath, Bar Matter No. 712, March 19, 1997, [t]he Court sincerely hopes that
Mr. Cuevas, Jr., will continue with the assistance he has been giving to his
community. As a lawyer he will now be in a better position to render legal and other
services to the more unfortunate members of society. [6]
ACCORDINGLY, the Court hereby resolved to allow petitioner Arthur M. Cuevas,
Jr., to take the lawyers oath and to sign the Roll of Attorneys on a date to be set by
the Court, subject to the payment of appropriate fees. Let this resolution be
attached to petitioners personal records in the Office of the Bar Confidant.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan, Mendoza, Panganiban, and Martinez, JJ., concur.

[A.C. No. 2797. October 4, 2002]

ROSAURA P. CORDON, complainant, vs. JESUS BALICANTA, respondent.
RESOLUTION
PER CURIAM:
On August 21, 1985, herein complainant Rosaura Cordon filed with this Court a
complaint for disbarment, docketed as Administrative Case No. 2797, against Atty.
Jesus Balicanta.After respondents comment to the complaint and complainants reply
thereto, this Court, on March 29, 1995 referred the matter to the Integrated Bar of
the Philippines (IBP, for brevity) for investigation, report and recommendation within
90 days from notice. Commissioner George Briones of the IBP Commission on Bar
Discipline was initially tasked to investigate the case.Commissioner Briones was
later on replaced by Commissioner Renato Cunanan. Complainant filed a

39

supplemental complaint which was duly admitted and, as agreed upon, the parties
filed their respective position papers.
Based on her complaint, supplemental complaint, reply and position paper, the
complainant alleged the following facts:
When her husband Felixberto C. Jaldon died, herein complainant Rosaura Cordon
and her daughter Rosemarie inherited the properties left by the said decedent. All in
all, complainant and her daughter inherited 21 parcels of land located in
Zamboanga City. The lawyer who helped her settle the estate of her late husband
was respondent Jesus Balicanta.
Sometime in the early part of 1981, respondent enticed complainant and her
daughter to organize a corporation that would develop the said real properties into
a
high-scale
commercial
complex
with
a
beautiful
penthouse
for
complainant. Relying on these apparently sincere proposals, complainant and her
daughter assigned 19 parcels of land to Rosaura Enterprises, Incorporated, a newlyformed and duly registered corporation in which they assumed majority
ownership. The subject parcels of land were then registered in the name of the
corporation.
Thereafter, respondent single-handedly ran the affairs of the corporation in his
capacity as Chairman of the Board, President, General Manager and Treasurer. The
respondent also made complainant sign a document which turned out to be a voting
trust agreement. Respondent likewise succeeded in making complainant sign a
special power of attorney to sell and mortgage some of the parcels of land she
inherited from her deceased husband. She later discovered that respondent
transferred the titles of the properties to a certain Tion Suy Ong who became the
new registered owner thereof. Respondent never accounted for the proceeds of said
transfers.
In 1981, respondent, using a spurious board resolution, contracted a loan from
the Land Bank of the Philippines (LBP, for brevity) in the amount of Two Million Two
Hundred Twenty Pesos (P2,220,000) using as collateral 9 of the real properties that
the complainant and her daughter contributed to the corporation. The respondent
ostensibly intended to use the money to construct the Baliwasan Commercial
Center (BCC, for brevity). Complainant later on found out that the structure was
made of poor materials such as sawali, coco lumber and bamboo which could not
have cost the corporation anything close to the amount of the loan secured.
For four years from the time the debt was contracted, respondent failed to pay
even a single installment. As a result, the LBP, in a letter dated May 22, 1985,
informed respondent that the past due amortizations and interest had already
accumulated to Seven Hundred Twenty-nine Thousand Five Hundred Three Pesos
40

and Twenty-five Centavos (P729,503.25). The LBP made a demand on respondent

for payment for the tenth time. Meanwhile, when the BCC commenced its
operations, respondent started to earn revenues from the rentals of BCCs
tenants.On October 28, 1987, the LBP foreclosed on the 9 mortgaged properties due
to non-payment of the loan.
Respondent did not exert any effort to redeem the foreclosed properties. Worse,
he sold the corporations right to redeem the mortgaged properties to a certain Hadji
Mahmud Jammang through a fake board resolution dated January 14, 1989 which
clothed himself with the authority to do so. Complainant and her daughter, the
majority stockholders, were never informed of the alleged meeting held on that
date. Again, respondent never accounted for the proceeds of the sale of the right to
redeem. Respondent also sold to Jammang a parcel of land belonging to
complainant and her daughter which was contiguous to the foreclosed properties
and evidenced by Transfer Certificate of Title No. 62807. He never accounted for the
proceeds of the sale.
Sometime in 1983, complainants daughter, Rosemarie, discovered that their
ancestral home had been demolished and that her mother, herein complainant, was
being detained in a small nipa shack in a place called Culianan. Through the help of
Atty. Linda Lim, Rosemarie was able to locate her mother. Rosemarie later learned
that respondent took complainant away from her house on the pretext that said
ancestral home was going to be remodeled and painted. But respondent demolished
the ancestral home and sold the lot to Tion Suy Ong, using another spurious board
resolution designated as Board Resolution No. 1, series of 1992. The resolution
contained the minutes of an alleged organizational meeting of the directors of the
corporation and was signed by Alexander Wee, Angel Fernando, Erwin Fernando and
Gabriel Solivar. Complainant and her daughter did not know how these persons
became stockholders and directors of the corporation. Respondent again did not
account for the proceeds of the sale.
Complainant and her daughter made several demands on respondent for the
delivery of the real properties they allegedly assigned to the corporation, for an
accounting of the proceeds of the LBP loan and as well as the properties sold, and
for the rentals earned by BCC. But the demands remained unheeded. Hence,
complainant and her daughter, in a letter dated June 4, 1985, terminated the
services of respondent as their lawyer and repeated their demands for accounting
and turn-over of the corporate funds, and the return of the 19 titles that respondent
transferred to the corporation. They also threatened him with legal action in a letter
dated August 3, 1985.
Soon after, complainant found out from the Securities and Exchange
Commission (SEC, for brevity) that Rosaura Enterprises, Inc., due to respondents
refusal and neglect, failed to submit the corporations annual financial statements
41

for 1981, 1982 and 1983; SEC General Information Sheets for 1982, 1983 and 1984;
Minutes of Annual Meetings for 1982, 1983 and 1984; and Minutes of Annual
Meetings of Directors for 1982, 1983 and 1984.
Complainant also discovered that respondent collected rental payments from
the tenants of BCC and issued handwritten receipts which he signed, not as an
officer of the corporation but as the attorney-at-law of complainant. Respondent
also used the tennis court of BCC to dry his palay and did not keep the buildings in a
satisfactory state, so much so that the divisions were losing plywood and other
materials to thieves.
Complainant likewise accused respondent of circulating rumors among her
friends and relatives that she had become insane to prevent them from believing
whatever complainant said.According to complainant, respondent proposed that she
legally separate from her present husband so that the latter would not inherit from
her and that respondent be adopted as her son.
For his defense, respondent, in his comment and position paper, denied
employing deceit and machination in convincing complainant and her daughter to
assign their real properties to the corporation; that they freely and voluntary
executed the deeds of assignment and the voting trust agreement that they signed;
that he did not single-handedly manage the corporation as evidenced by
certifications of the officers and directors of the corporation; that he did not use
spurious board resolutions authorizing him to contract a loan or sell the properties
assigned by the complainant and her daughter; that complainant and her daughter
should be the ones who should render an accounting of the records and revenues
inasmuch as, since 1984 up to the present, the part-time corporate book-keeper,
with the connivance of the complainant and her daughter, had custody of the
corporate records; that complainant and her daughter sabotaged the operation of
BCC when they illegally took control of it in 1986; that he never pocketed any of the
proceeds of the properties contributed by the complainant and her daughter; that
the demolition of the ancestral home followed legal procedures; that complainant
was never detained in Culianan but she freely and voluntarily lived with the family
of P03 Joel Constantino as evidenced by complainants own letter denying she was
kidnapped; and that the instant disbarment case should be dismissed for being
premature, considering the pendency of cases before the SEC and the Regional Trial
Court of Zamboanga involving him and complainant.
Based on the pleadings and position papers submitted by the parties,
Commissioner Renato Cunanan, in his report [1] dated July 1, 1999, recommended
respondents disbarment based on the following findings:

42

A. The complainant, Rosaura Jaldon-Cordon and her daughter, Rosemarie were

stockholders of a corporation, together with respondent, named Rosaura
Enterprises, Inc.
Per the Articles of Incorporation marked as Annex A of Complainants Position Paper,
complainants subscription consists of 55% of the outstanding capital stock while her
daughters consists of 18%, giving them a total of 73%. Respondents holdings
consist of 24% while three other incorporators, Rosauro L. Alvarez, Vicente T. Maalac
and Darhan S. Graciano each held 1% of the capital stock of the corporation.
B. On April 5, 1981, complainant and her daughter Rosemarie Jaldon executed two
Deeds of Transfer and Assignment conveying and transferring to the corporation 19
parcels of land in exchange for shares of stock in the corporation.
xxx xxx xxx
C. Both Deeds of Assignment particularly page 3 thereof indicate that respondent
accepted said assignment of properties and titles in behalf of the corporation as
Treasurer. The deeds were signed on April 5, 1981.
xxx xxx xxx
Together, therefore, complainant and her daughter owned 1,711 shares of the 1,750
shares comprising the authorized capital stock of the corporation of 97% thereof.
No increase in capitalization was applied for by the corporation.
F. Respondent claims in his Comment, his Answer and his Position Paper that on
April 4, 1981 he was elected as Chairman and Director and on April 5, 1981 he was
elected President of the corporation.Respondents own Annexes marked as G and G1 of his Comment show that on April 4, 1981 he was not only elected as Chairman
and Director as he claims but as Director, Board Chairman and President. The
purported minutes was only signed by respondent and an acting Secretary by the
name of Vicente Maalac.
Said Annex does not show who was elected Treasurer.
Respondents Annex H and H-1 shows that in the alleged organizational meeting of
the directors on April 5, 1981 a certain Farnacio Bucoy was elected
Treasurer. Bucoys name does not appear as an incorporator nor a stockholder
anywhere in the documents submitted.
The purported minutes of the organizational meeting of the directors was signed
only by respondent Balicanta and a Secretary named Verisimo Martin.
43

G. Since respondent was elected as Director, Chairman and President on April 4,

1981 as respondents own Annexes G to G-1 would show, then complainants claim
that respondent was likewise acting as Treasurer of two corporations bear truth and
credence as respondent signed and accepted the titles to 19 parcels of land ceded
by the complainant and her daughter, as Treasurer on April 5, 1981 after he was
already purportedly elected as Chairman, President and Director.
H. Respondent misleads the Commission into believing that all the directors signed
the minutes marked as Exhibit H to H-1 by stating that the same was duly signed by
all the Board of Directors when the document itself shows that only he and one
Verisimo Martin signed the same.
He also claims that all the stockholders signed the minutes of organizational
meeting marked as Annexes G and G-1 of his Comment yet the same shows that
only the acting Chairman and acting Secretary signed.
I. Respondent claims that the Board or its representative was authorized by the
stockholders comprising 2/3 of the outstanding capital stock, as required by law, to
mortgage the parcels of land belonging to the corporation, which were all assigned
to the corporation by complainant and her daughter, by virtue of Annex I and I-1:
attached to his Comment.
The subject attachment however reveals that only the following persons signed
their conformity to the said resolution: respondent Balicanta who owned 109 shares,
Vicente Maalac (1 share), Daihan Graciano (1 share).
Complainants
who
collectively
held
a
total
of 1,711 shares
out
of
the 1,750 outstanding capital stock of the corporation were not represented in the
purported stockholders meeting authorizing the mortgage of the subject properties.
The 2/3 vote required by law was therefore not complied with yet respondent
proceeded to mortgage the subject 9 parcels of land by the corporation.
J. Respondent further relies on Annex J of his Comment, purportedly the minutes of
a special meeting of the Board of Directors authorizing him to obtain a loan and
mortgage the properties of the corporation dated August 29, 1981. This claim is
baseless. The required ratification of 2/3 by the stockholders of records was not
met. Again, respondent attempts to mislead the Commission and Court.
K. Further, the constitution of the Board is dubious. The alleged minutes of the
organizational meeting of the stockholders electing the members of the Board, have
not been duly signed by the stockholders as shown in respondents annex G which
was purportedly the organizational meeting of the stockholders.

44

L. Also, Annex J of respondents Comment which purportedly authorized him to

obtain a loan and to mortgage the 9 parcels of land was only signed by himself and
a secretary.
M. In said Annex 'J' of respondents Comment he stated that complainant Rosaura
Cordon was on leave by virtue of a voting trust agreement allegedly executed by
complainant in his favor covering all her shares of stock. The claim is baseless. The
voting trust referred to by respondent (annex D of his Comment), even if it were
assumed to be valid, covered only 266 shares of complainants yet she owned a
total of 1,039 shares after she and her daughter ceded in favor of the corporation
19 parcels of land.
Being a former lawyer to complainant, respondent should have ensured that her
interest was safeguarded. Yet, complainant was apparently and deliberately left our
(sic) on the pretext that, she had executed a voting trust agreement in favor of
respondent.
It is suspicious that complainant was made to sign a voting trust agreement on 21
August 1981 and immediately thereafter, the resolutions authorizing respondent to
obtain a loan and to mortgage the 9 parcels of land were passed and approved.
N. It is also highly irregular for respondent who is a lawyer, to allow a situation to
happen where, with the exclusion of complainant as director the result was that
there remained only 4 members of the Board,.
O. Respondents own pleadings submitted to the Commission contradict
each other.
1. For instance, while in his Comment respondent DENIES that he employed deceit
and machination in convincing the complainant and her daughter to sign the
articles of incorporation of Rosaura Enterprises and in ceding to the corporation 19
parcels of land in Zamboanga City, because they freely, intelligently and voluntarily
signed the same, yet, in his Position Paper, respondent took another stance.
In paragraphs 1.1 and 1.2 of his Position Paper which was submitted 12 years later,
respondent claimed that it was actually the idea of Atty. Rosaura L. Alvarez that a
corporation be put up to incorporate the estate of the late Felixberto D. Jaldon.
2. Likewise, respondent claimed that complainant and her daughter were not
directors, hence they were not notified of meetings, in paragraph 2-6 (c) of his
Comment he blamed the other stockholders and directors for the corporations
inability to comply with the Land Banks demands saying that they have consistently
failed since 1982 to convene (1.) for the annual stockholders meetings and (i.i) for
the monthly board meeting.
45

His own pleadings claim that he had been the Chairman/President since 1981 to the
present. If (sic) so, it was his duty to convene the stockholders and the directors for
meetings.
Respondent appeared able to convene the stockholders and directors when he
needed to make a loan of p2.2 million; when he sold the corporations right of
redemption over the foreclosed properties of the corporation to Jammang, when he
sold one parcel of land covered by TCT 62,807 to Jammang in addition to the 9
parcels of land which were foreclosed, and when he sold the complainants ancestral
home covered by TCT No. 72,004.
It is thus strange why respondent claims that the corporation could not do anything
to save the corporations properties from being foreclosed because the stockholders
and directors did not convene.
This assertion of respondent is clearly evident of dishonest, deceitful and immoral
conduct especially because, in all his acts constituting conveyances of corporate
property, respondent used minutes of stockholders and directors meetings signed
only by him and a secretary or signed by him and persons who were not
incorporators much less stockholders.
It is worthy of note that in respondents Exhibits 15, 16, 17 and 18 of his position
paper, there were 7 new stockholders and complainant appeared to have only 266
shares to her name while her daughter Rosemarie had no shares at all. Respondent
did not present any proof of conveyance of shares by complainant and her
daughter.
It is further worth noting that complainants voting trust (annex D of respondents
Comment) where she allegedly entrusted 266 shares to respondent on August 21,
1981 had only a validity of 5 years. Thus, she should have had her entire holdings of
1,283 shares back in her name in August 1986.
Respondents purported minutes of stockholders meeting (Exhs. 15 and 17) do not
reflect this.
There was no explanation whatsoever from respondent on how complainant and her
daughter lost their 97% control holding in the corporation.
3. As a further contradiction in respondents pleadings, we note that in paragraph
2.7.C of his Comment he said that only recently, this year, 1985, the complainant
and her aforenamed daughter examined said voluminous supporting
receipts/documents which had previously been examined by the Land Bank for loan
releases, during which occasion respondent suggested to them that the corporation
will have to hire a full-time book-keeper to put in order said voluminous supporting
46

receipts/documents, to which they adversely reacted due to lack of corporate

money to pay for said book-keeper. But in respondents Position Paper par. 6.3 he
stated that:
Anyway, it is not the respondent but rather the complainant who should
render a detailed accounting to the corporation of the corporate records
as well as corporate revenues/income precisely because since 1994 to the
present:
(a). The corporate part-time book-keeper Edilberto Benedicto, with the
indispensable connivance and instigation of the complainant and her
daughter, among others, has custody of the corporate records, xxx
4. In other contradictory stance, respondent claims in par. 7.3 of his position paper
that complainant and her daughter sabotaged the BCC operations of the corporation
by illegally taking over actual control and supervision thereof sometime in 1986,
xxx
Yet respondents own exhibits in his position paper particularly Exhibit 15 and 16
where the subject of the foreclosed properties of the corporation comprising the
Baliwasan Commercial Center (BCC) was taken up, complainant and her daughter
were not even present nor were they the subject of the discussion, belying
respondents claim that the complainant and her daughter illegally took actual
control of BCC.
5. On the matter of the receipts issued by respondent evidencing payment to him of
rentals by lessees of the corporation, attached to the complaint as Annexes H to H17, respondent claims that the receipts are temporary in nature and that
subsequently regular corporate receipts were issued. On their face however the
receipts clearly appear to be official receipts, printed and numbered duly signed by
the respondent bearing his printed name.
It is difficult to believe that a lawyer of respondent stature would issue official
receipts to lessees if he only meant to issue temporary ones.
6. With regard to respondents claim that the complainant consented to the sale of
her ancestral home, covered by TCT No. T-72,004 to one Tion Suy Ong for which he
attached as Exhibit 22 to his Position Paper the minutes of an annual meeting of the
stockholders, it behooves this Commission why complainants signature had to be
accompanied by her thumb mark. Furthermore, complainants signature appears
unstable and shaky. This Office is thus persuaded to believe complainants allegation
in paragraph 3b of her position paper that since September 1992 up to March
1993 she was being detained by one PO# (sic) Joel Constantino and his
wife under instructions from respondent Balicanta.
47

This conclusion is supported by a letter from respondent dated March 1993, Annex
H of complainants position paper, where respondent ordered Police Officer
Constantino to allow Atty. Linda Lim and Rosemarie Jaldon to talk to Tita Rosing.
The complainants thumb mark together with her visibly unstable shaky signature
lends credence to her claim that she was detained in the far flung barrio of Culianan
under instructions of respondent while her ancestral home was demolished and the
lot sold to one Tion Suy Ong.
It appears that respondent felt compelled to over-ensure complainants consent by
getting her to affix her thumb mark in addition to her signature.
7. Respondent likewise denies that he also acted as Corporate Secretary in addition
to being the Chairman, President and Treasurer of the corporation. Yet, respondent
submitted to this commission documents which are supported to be in the
possession of the Corporate Secretary such as the stock and transfer book and
minutes of meetings.
The foregoing findings of this Commission are virtual smoking guns that prove on no
uncertain terms that respondent, who was the legal counsel of complainant in the
latter part of the settlement of the estate of her deceased husband, committed
unlawful, immoral and deceitful conduct proscribed by Rule 1.01 of the code of
professional responsibility.
Likewise, respondent clearly committed a violation of Canon 15 of the same code
which provides that A lawyer should observe candor fairness and loyalty in all his
dealings and transactions with his client.
Respondents acts gravely diminish the publics respect for the integrity of the
profession of law for which this Commission recommends that he be meted the
penalty of disbarment.
The pendency of the cases at the SEC and the Regional Trial Court of Zamboanga
filed by complainant against respondent does not preclude a determination of
respondents culpability as a lawyer.
This Commission cannot further delay the resolution of this complaint filed in 1985
by complainant, and old widow who deserves to find hope and recover her
confidence in the judicial system.
The findings of this office, predominantly based on documents adduced by both
parties lead to only one rather unpalatable conclusion. That respondent Atty. Jesus F.
Balicanta, in his professional relations with herein complainant did in fact employ
unlawful, dishonest, and immoral conduct proscribed in no uncertain terms by Rule
48

1.01 of the Code of Professional Responsibility. In addition, respondents actions

clearly violated Canon 15 to 16 of the same Code.
It is therefore our unpleasant duty to recommend that respondent, having
committed acts in violation of the Canons of Professional Responsibility, thereby
causing a great disservice to the profession, be meted the ultimate sanction of
disbarment.[2]
On September 30, 1999, while Commissioner Cunanans recommendation for
respondents disbarment was pending review before Executive Vice-President and
Northern Luzon Governor Teofilo Pilando, respondent filed a motion requesting for a
full-blown investigation and for invalidation of the entire proceedings and/or
remedial action under Section 11, Rule 139-B, Revised Rules of Court, alleging that
he had evidence that Commissioner Cunanans report was drafted by the lawyers of
complainant, Attys. Antonio Cope and Rita Linda Jimeno. He presented two unsigned
anonymous letters allegedly coming from a disgruntled employee of Attys. Cope
and Jimeno. He claimed to have received these letters in his mailbox. [3]
Respondents motion alleging that Attys. Antonio Cope and Rita Linda Jimeno
drafted Commissioner Cunanans report was accompanied by a complaint praying
for the disbarment of said lawyers including Commissioner Cunanan. The complaint
was docketed as CBD Case No. 99-658. After Attys. Cope and Jimeno and
Commissioner Cunanan filed their answers, a hearing was conducted by the
Investigating Committee of the IBP Board of Governors.
On May 26, 2001, the IBP Board of Governors issued a resolution [4] dismissing
for lack of merit the complaint for disbarment against Attys. Cope and Jimeno and
Commissioner Cunanan. And in Adm. Case No. 2797, the Board adopted and
approved the report and recommendation of Commissioner Cunanan, and meted
against herein respondent Balicanta the penalty of suspension from the practice of
law for 5 years for commission of acts of misconduct and disloyalty by taking undue
and unfair advantage of his legal knowledge as a lawyer to gain material benefit for
himself at the expense of complainant Rosaura P. Jaldon-Cordon and caused serious
damage to the complainant.[5]
To support its decision, the Board uncovered respondents fraudulent acts in the
very same documents he presented to exonerate himself. It also took note of
respondents contradictory and irreconcilable statements in the pleadings and
position papers he submitted. However, it regarded the penalty of disbarment as
too severe for respondents misdeeds, considering that the same were his first
offense.[6]
Pursuant to Section 12 (b), Rule 139-B of the Rules of Court, [7] the said resolution
in Administrative Case No. 2797 imposing the penalty of suspension for 5 years on
49

respondent was automatically elevated to this Court for final action. On the other
hand, the dismissal of the complaint for disbarment against Attys. Cope and Jimeno
and Commissioner Cunanan, docketed as CBD Case No. 99-658, became final in the
absence of any petition for review.
This Court confirms the duly supported findings of the IBP Board that
respondent committed condemnable acts of deceit against his client. The fraudulent
acts he carried out against his client followed a well thought of plan to
misappropriate the corporate properties and funds entrusted to him. At the very
outset, he embarked on his devious scheme by making himself the President,
Chairman of the Board, Director and Treasurer of the corporation, although he knew
he was prohibited from assuming the position of President and Treasurer at the
same time.[8]As Treasurer, he accepted in behalf of the corporation the 19 titles that
complainant and her daughter co-owned. The other treasurer appointed, Farnacio
Bucoy, did not appear to be a stockholder or director in the corporate records. The
minutes of the meetings supposedly electing him and Bucoy as officers of the
corporation actually bore the signatures of respondent and the secretary only,
contrary to his claim that they were signed by the directors and stockholders.
He likewise misled the IBP investigating commission in claiming that the
mortgage of 9 of the properties of the corporation previously belonging to
complainant and her daughter was ratified by the stockholders owning two-thirds or
67% of the outstanding capital stock when in fact only three stockholders owning
111 out of 1,750 outstanding shares or 6.3% assented thereto. The alleged
authorization granting him the power to contract the LBP loan for Two Million Two
Hundred Twenty Pesos (P2,220,000) was also not approved by the required
minimum of two-thirds of the outstanding capital stock despite respondents claim to
the contrary. In all these transactions, complainant and her daughter who both
owned 1,711 out of the 1,750 outstanding shares of the corporation or 97.7% never
had any participation. Neither were they informed thereof.
Clearly, there was no quorum for a valid meeting for the discussion and
approval of these transactions.
Respondent cannot take refuge in the contested voting trust agreement
supposedly executed by complainant and her daughter for the reason that it
authorized respondent to represent complainant for only 266 shares.
Aside from the dishonest transactions he entered into under the cloak of sham
resolutions, he failed to explain several discrepancies in his version of the facts. We
hereby reiterate some of these statements noted by Commissioner Cunanan in his
findings.

50

First, respondent blamed the directors and the stockholders who failed to
convene for the required annual meetings since 1982. However, respondent
appeared able to convene the stockholders and directors when he contracted the
LBP debt, when he sold to Jammang the corporations right of redemption over the
foreclosed properties of the corporation, when he sold one parcel of land covered by
TCT No. 62807 to Jammang, when he mortgaged the 9 parcels of land to LBP which
later foreclosed on said mortgage, and when he sold the complainants ancestral
home covered by TCT No. 72004.
Second, the factual findings of the investigating commission, affirmed by the IBP
Board, disclosed that complainant and her daughter own 1,711 out of 1,750 shares
of the outstanding capital stock of the corporation, based on the Articles of
Incorporation and deeds of transfer of the properties. But respondents evidence
showed that complainant had only 266 shares of stock in the corporation while her
daughter had none, notwithstanding the fact that there was nothing to indicate that
complainant and her daughter ever conveyed their shares to others.
Respondent likewise did not explain why he did not return the certificates
representing the 266 shares after the lapse of 5 years from the time the voting trust
certificate was executed in 1981.[9]
The records show that up to now, the complainant and her daughter own 97% of
the outstanding shares but respondent never bothered to explain why they were
never asked to participate in or why they were never informed of important
corporate decisions.
Third, respondent, in his comment, alleged that due to the objection of
complainant and her daughter to his proposal to hire an accountant, the corporation
had no formal accounting of its revenues and income. However, respondents
position paper maintained that there was no accounting because the part-time
bookkeeper of the corporation connived with complainant and her daughter in
keeping the corporate records.
Fourth, respondents claim that complainant and her daughter took control of
the operations of the corporation in 1986 is belied by the fact that complainant and
her daughter were not even present in the alleged meeting of the board (which took
place after 1986) to discuss the foreclosure of the mortgaged properties. The truth
is that he never informed them of such meeting and he never gave control of the
corporation to them.
Fifth, Commissioner Cunanan found that:
5. on the matter of the receipts issued by respondent evidencing payment to him of
rentals by lessees of the corporation, attached to the complaint as Annexes H to H51

17, respondent claims that the receipts are temporary in nature and that
subsequently regular corporate receipts were issued. On their face however the
receipts clearly appear to be official receipts, printed and numbered duly signed by
the respondent bearing his printed name.
It is difficult to believe that a lawyer of respondents stature would issue official
receipts to lessees if he only meant to issue temporary ones. [10]
Sixth, respondent denies that he acted as Corporate Secretary aside from being
the Chairman, President and Treasurer of the corporation. Yet respondent submitted
to the investigating commission documents which were supposed to be in the
official possession of the Corporate Secretary alone such as the stock and transfer
book and minutes of meetings.
Seventh, he alleged in his comment that he was the one who proposed the
establishment of the corporation that would invest the properties of the
complainant but, in his position paper, he said that it was a certain Atty. Rosauro
Alvarez who made the proposal to put up the corporation.
After a thorough review of the records, we find that respondent committed
grave and serious misconduct that casts dishonor on the legal profession. His
misdemeanors reveal a deceitful scheme to use the corporation as a means to
convert for his own personal benefit properties left to him in trust by complainant
and her daughter.
Not even his deviousness could cover up the wrongdoings he committed. The
documents he thought could exculpate him were the very same documents that
revealed his immoral and shameless ways. These documents were extremely
revealing in that they unmasked a man who knew the law and abused it for his
personal gain without any qualms of conscience. They painted an intricate web of
lies, deceit and opportunism beneath a carefully crafted smokescreen of corporate
maneuvers.
The Code of Professional Responsibility mandates upon each lawyer, as his duty
to society, the obligation to obey the laws of the land and promote respect for law
and legal processes. Specifically, he is forbidden to engage in unlawful, dishonest,
immoral or deceitful conduct.[11] If the practice of law is to remain an honorable
profession and attain its basic ideal, those enrolled in its ranks should not only
master its tenets and principles but should also, in their lives, accord continuing
fidelity to them.[12] Thus, the requirement of good moral character is of much
greater import, as far as the general public is concerned, than the possession of
legal learning.[13] Lawyers are expected to abide by the tenets of morality, not only
upon admission to the Bar but also throughout their legal career, in order to
maintain ones good standing in that exclusive and honored fraternity. [14] Good moral
52

character is more than just the absence of bad character. Such character expresses
itself in the will to do the unpleasant thing if it is right and the resolve not to do the
pleasant thing if it is wrong.[15] This must be so because vast interests are
committed to his care; he is the recipient of unbounded trust and confidence; he
deals with his clients property, reputation, his life, his all. [16]
Indeed, the words of former Presiding Justice of the Court of Appeals Pompeyo
Diaz cannot find a more relevant application than in this case:
There are men in any society who are so self-serving that they try to make law
serve their selfish ends. In this group of men, the most dangerous is the man of the
law who has no conscience. He has, in the arsenal of his knowledge, the very tools
by which he can poison and disrupt society and bring it to an ignoble end. [17]
Good moral standing is manifested in the duty of the lawyer to hold in trust all
moneys and properties of his client that may come into his possession. [18] He is
bound to account for all money or property collected or received for or from the
client.[19] The relation between an attorney and his client is highly fiduciary in
nature. Thus, lawyers are bound to promptly account for money or property
received by them on behalf of their clients and failure to do so constitutes
professional misconduct.[20]
This Court holds that respondent cannot invoke the separate personality of the
corporation to absolve him from exercising these duties over the properties turned
over to him by complainant. He blatantly used the corporate veil to defeat his
fiduciary obligation to his client, the complainant. Toleration of such fraudulent
conduct was never the reason for the creation of said corporate fiction.
The massive fraud perpetrated by respondent on the complainant leaves us no
choice but to set aside the veil of corporate entity. For purposes of this action
therefore, the properties registered in the name of the corporation should still be
considered as properties of complainant and her daughter. The respondent merely
held them in trust for complainant (now an ailing 83-year-old) and her daughter. The
properties conveyed fraudulently and/or without the requisite authority should be
deemed as never to have been transferred, sold or mortgaged at all.Respondent
shall be liable, in his personal capacity, to third parties who may have contracted
with him in good faith.
Based on the aforementioned findings, this Court believes that the gravity of
respondents offenses cannot be adequately matched by mere suspension as
recommended by the IBP.Instead, his wrongdoings deserve the severe penalty of
disbarment, without prejudice to his criminal and civil liabilities for his dishonest
acts.

53

WHEREFORE, respondent Attorney Jesus T. Balicanta is hereby DISBARRED.

The Clerk of Court is directed to strike out his name from the Roll of Attorneys.
SO ORDERED.
Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Carpio,
Austria-Martinez, Corona, Carpio-Morales, and Callejo, Sr., JJ., concur.
Davide, Jr., C.J., Mendoza, and Sandoval-Gutierrez, JJ., on leave.

March 23, 1929

In re LUIS B. TAGORDA,
Duran
&
Lim
for
respondent.
Attorney-General Jaranilla and Provincial Fiscal Jose for the Government.
MALCOLM, J.:
The respondent, Luis B. Tagorda, a practising attorney and a member of the
provincial board of Isabela, admits that previous to the last general elections he
made use of a card written in Spanish and Ilocano, which, in translation, reads as
follows:
LUIS
B.
TAGORDA
Attorney
Notary
Public
CANDIDATE
FOR
THIRD
MEMBER
Province of Isabela
(NOTE. As notary public, he can execute for you a deed of sale for
the purchase of land as required by the cadastral office; can renew lost
documents of your animals; can make your application and final
requisites for your homestead; and can execute any kind of affidavit.
As a lawyer, he can help you collect your loans although long overdue,
as well as any complaint for or against you. Come or write to him in his
town, Echague, Isabela. He offers free consultation, and is willing to
help and serve the poor.)
The respondent further admits that he is the author of a letter addressed to a
lieutenant of barrio in his home municipality written in Ilocano, which letter, in
translation, reads as follows:
ECHAGUE, ISABELA, September 18, 1928
MY DEAR LIEUTENANT: I would like to inform you of the approaching
date for our induction into office as member of the Provincial Board,
that is on the 16th of next month. Before my induction into office I
should be very glad to hear your suggestions or recommendations for
the good of the province in general and for your barrio in particular.
You can come to my house at any time here in Echague, to submit to
me any kind of suggestion or recommendation as you may desire.
54

I also inform you that despite my membership in the Board I will have
my residence here in Echague. I will attend the session of the Board of
Ilagan, but will come back home on the following day here in Echague
to live and serve with you as a lawyer and notary public. Despite my
election as member of the Provincial Board, I will exercise my legal
profession as a lawyer and notary public. In case you cannot see me at
home on any week day, I assure you that you can always find me there
on every Sunday. I also inform you that I will receive any work
regarding preparations of documents of contract of sales and affidavits
to be sworn to before me as notary public even on Sundays.
I would like you all to be informed of this matter for the reason that
some people are in the belief that my residence as member of the
Board will be in Ilagan and that I would then be disqualified to exercise
my profession as lawyer and as notary public. Such is not the case and
I would make it clear that I am free to exercise my profession as
formerly and that I will have my residence here in Echague.
I would request you kind favor to transmit this information to your
barrio people in any of your meetings or social gatherings so that they
may be informed of my desire to live and to serve with you in my
capacity as lawyer and notary public. If the people in your locality have
not as yet contracted the services of other lawyers in connection with
the registration of their land titles, I would be willing to handle the work
in court and would charge only three pesos for every registration.
Yours respectfully,
(Sgd.)
LUIS
TAGORDA
Attorney
Notary Public.
The facts being conceded, it is next in order to write down the applicable legal
provisions. Section 21 of the Code of Civil Procedure as originally conceived related
to disbarments of members of the bar. In 1919 at the instigation of the Philippine
Bar Association, said codal section was amended by Act No. 2828 by adding at the
end thereof the following: "The practice of soliciting cases at law for the purpose of
gain, either personally or through paid agents or brokers, constitutes malpractice."
The statute as amended conforms in principle to the Canons of Professionals Ethics
adopted by the American Bar Association in 1908 and by the Philippine Bar
Association in 1917. Canons 27 and 28 of the Code of Ethics provide:
27. ADVERTISING, DIRECT OR INDIRECT. The most worthy and effective
advertisement possible, even for a young lawyer, and especially with his
brother lawyers, is the establishment of a well-merited reputation for
professional capacity and fidelity to trust. This cannot be forced, but must be
the outcome of character and conduct. The publication or circulation of
ordinary simple business cards, being a matter of personal taste or local
custom, and sometimes of convenience, is not per se improper. But
solicitation of business by circulars or advertisements, or by personal
communications or interview not warranted by personal relations, is
unprofessional. It is equally unprofessional to procure business by indirection
through touters of any kind, whether allied real estate firms or trust
companies advertising to secure the drawing of deeds or wills or offering
retainers in exchange for executorships or trusteeships to be influenced by
the lawyer. Indirect advertisement for business by furnishing or inspiring
55

newspaper comments concerning the manner of their conduct, the

magnitude of the interest involved, the importance of the lawyer's position,
and all other like self-laudation, defy the traditions and lower the tone of our
high calling, and are intolerable.
28. STIRRING UP LITIGATION, DIRECTLY OR THROUGH AGENTS. It is
unprofessional for a lawyer to volunteer advice to bring a lawsuit, except in
rare cases where ties of blood, relationship or trust make it his duty to do so.
Stirring up strife and litigation is not only unprofessional, but it is indictable at
common law. It is disreputable to hunt up defects in titles or other causes of
action and inform thereof in order to the employed to bring suit, or to breed
litigation by seeking out those with claims for personal injuries or those
having any other grounds of action in order to secure them as clients, or to
employ agents or runners for like purposes, or to pay or reward directly or
indirectly, those who bring or influence the bringing of such cases to his
office, or to remunerate policemen, court or prison officials, physicians,
hospital attaches or others who may succeed, under the guise of giving
disinterested friendly advice, in influencing the criminal, the sick and the
injured, the ignorant or others, to seek his professional services. A duty to the
public and to the profession devolves upon every member of the bar having
knowledge of such practices upon the part of any practitioner immediately to
inform thereof to the end that the offender may be disbarred.
Common barratry consisting of frequently stirring up suits and quarrels between
individuals was a crime at the common law, and one of the penalties for this offense
when committed by an attorney was disbarment. Statutes intended to reach the
same evil have been provided in a number of jurisdictions usually at the instance of
the bar itself, and have been upheld as constitutional. The reason behind statutes of
this type is not difficult to discover. The law is a profession and not a business. The
lawyer may not seek or obtain employment by himself or through others for to do so
would be unprofessional. (State vs. Rossman [1909], 53 Wash., 1; 17 Ann. Cas., 625;
Peoplevs. Mac Cabe [1893], 19 L. R. A., 231; 2 R. C. L., 1097.)
It becomes our duty to condemn in no uncertain terms the ugly practice of
solicitation of cases by lawyers. It is destructive of the honor of a great profession. It
lowers the standards of that profession. It works against the confidence of the
community in the integrity of the members of the bar. It results in needless litigation
and in incenting to strife otherwise peacefully inclined citizens.
The solicitation of employment by an attorney is a ground for disbarment or
suspension. That should be distinctly understood.
Giving application of the law and the Canons of Ethics to the admitted facts, the
respondent stands convicted of having solicited cases in defiance of the law and
those canons. Accordingly, the only remaining duty of the court is to fix upon the
action which should here be taken. The provincial fiscal of Isabela, with whom joined
the representative of the Attorney-General in the oral presentation of the case,
suggests that the respondent be only reprimanded. We think that our action should
go further than this if only to reflect our attitude toward cases of this character of
which unfortunately the respondent's is only one. The commission of offenses of this
nature would amply justify permanent elimination from the bar. But as mitigating,
circumstances working in favor of the respondent there are, first, his intimation that
he was unaware of the impropriety of his acts, second, his youth and inexperience
at the bar, and, third, his promise not to commit a similar mistake in the future. A
modest period of suspension would seem to fit the case of the erring attorney. But it
56

should be distinctly understood that this result is reached in view of the

considerations which have influenced the court to the relatively lenient in this
particular instance and should, therefore, not be taken as indicating that future
convictions of practice of this kind will not be dealt with by disbarment.
In view of all the circumstances of this case, the judgment of the court is that the
respondent Luis B. Tagorda be and is hereby suspended from the practice as an
attorney-at-law for the period of one month from April 1, 1929,
Street,
Johns,
Romualdez,
and
Villa-Real,
JJ.,
concur.
Johnson, J., reserves his vote.
Separate Opinions
OSTRAND, J., dissenting:
I dissent. Under the circumstances of the case a reprimand would have been
sufficient punishment.

[A.C. No. 5299. August 19, 2003]

ATTY. ISMAEL G. KHAN, JR., Assistant Court Administrator and Chief, Public
Information
Office, complainant,
vs. ATTY.
RIZALINO
T.
SIMBILLO,respondent.
[G.R. No. 157053. August 19, 2003]

57

ATTY. RIZALINO T. SIMBILLO, petitioner, vs. IBP COMMISSION ON BAR

DISCIPLINE and ATTY. ISMAEL G. KHAN, JR., in his capacity as
Assistant Court Administrator and Chief, Public Information
Office, respondents.
RESOLUTION
YNARES-SANTIAGO, J.:
This administrative complaint arose from a paid advertisement that appeared in
the July 5, 2000 issue of the newspaper, Philippine Daily Inquirer, which reads:
ANNULMENT OF MARRIAGE Specialist 532-4333/521-2667.[1]
Ms. Ma. Theresa B. Espeleta, a staff member of the Public Information Office of
the Supreme Court, called up the published telephone number and pretended to be
an interested party.She spoke to Mrs. Simbillo, who claimed that her husband, Atty.
Rizalino Simbillo, was an expert in handling annulment cases and can guarantee a
court decree within four to six months, provided the case will not involve separation
of property or custody of children. Mrs. Simbillo also said that her husband charges
a fee of P48,000.00, half of which is payable at the time of filing of the case and the
other half after a decision thereon has been rendered.
Further research by the Office of the Court Administrator and the Public
Information Office revealed that similar advertisements were published in the
August 2 and 6, 2000 issues of theManila Bulletin and August 5, 2000 issue of
The Philippine Star.[2]
On September 1, 2000, Atty. Ismael G. Khan, Jr., in his capacity as Assistant
Court Administrator and Chief of the Public Information Office, filed an
administrative complaint against Atty. Rizalino T. Simbillo for improper advertising
and solicitation of his legal services, in violation of Rule 2.03 and Rule 3.01 of the
Code of Professional Responsibility and Rule 138, Section 27 of the Rules of Court. [3]
In his answer, respondent admitted the acts imputed to him, but argued that
advertising and solicitation per se are not prohibited acts; that the time has come to
change our views about the prohibition on advertising and solicitation; that the
interest of the public is not served by the absolute prohibition on lawyer advertising;
that the Court can lift the ban on lawyer advertising; and that the rationale behind
the decades-old prohibition should be abandoned. Thus, he prayed that he be
exonerated from all the charges against him and that the Court promulgate a ruling
that advertisement of legal services offered by a lawyer is not contrary to law,
public policy and public order as long as it is dignified. [4]

58

The case was referred to the Integrated Bar of the Philippines for investigation,
report and recommendation.[5] On June 29, 2002, the IBP Commission on Bar
Discipline passed Resolution No. XV-2002-306, [6] finding respondent guilty of
violation of Rules 2.03 and 3.01 of the Code of Professional Responsibility and Rule
138, Section 27 of the Rules of Court, and suspended him from the practice of law
for one (1) year with the warning that a repetition of similar acts would be dealt with
more severely. The IBP Resolution was noted by this Court on November 11, 2002. [7]
In the meantime, respondent filed an Urgent Motion for Reconsideration, [8] which
was denied by the IBP in Resolution No. XV-2002-606 dated October 19, 2002 [9]
Hence, the instant petition for certiorari, which was docketed as G.R. No.
157053 entitled, Atty. Rizalino T. Simbillo, Petitioner versus IBP Commission on Bar
Discipline, Atty. Ismael G. Khan, Jr., Asst. Court Administrator and Chief, Public
Information Office, Respondents. This petition was consolidated with A.C. No. 5299
per the Courts Resolution dated March 4, 2003.
In a Resolution dated March 26, 2003, the parties were required to manifest
whether or not they were willing to submit the case for resolution on the basis of the
pleadings.[10]Complainant filed his Manifestation on April 25, 2003, stating that he is
not submitting any additional pleading or evidence and is submitting the case for its
early resolution on the basis of pleadings and records thereof. [11] Respondent, on the
other hand, filed a Supplemental Memorandum on June 20, 2003.
We agree with the IBPs Resolutions Nos. XV-2002-306 and XV-2002-606.
Rules 2.03 and 3.01 of the Code of Professional Responsibility read:
Rule 2.03. A lawyer shall not do or permit to be done any act designed primarily to
solicit legal business.
Rule 3.01. A lawyer shall not use or permit the use of any false, fraudulent,
misleading, deceptive, undignified, self-laudatory or unfair statement or claim
regarding his qualifications or legal services.
Rule 138, Section 27 of the Rules of Court states:
SEC. 27. Disbarment and suspension of attorneys by Supreme Court, grounds
therefor. 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 the admission to practice, or for a willful disobedience
appearing as attorney for a party without authority to do so.
59

It has been repeatedly stressed that the practice of law is not a business. [12] It is
a profession in which duty to public service, not money, is the primary
consideration. Lawyering is not primarily meant to be a money-making venture, and
law advocacy is not a capital that necessarily yields profits. [13] The gaining of a
livelihood should be a secondary consideration. [14] The duty to public service and to
the administration of justice should be the primary consideration of lawyers, who
must subordinate their personal interests or what they owe to themselves. [15]The
following elements distinguish the legal profession from a business:
1. A duty of public service, of which the emolument is a by-product, and in
which one may attain the highest eminence without making much
money;
2. A relation as an officer of the court to the administration of justice
involving thorough sincerity, integrity and reliability;
3. A relation to clients in the highest degree of fiduciary;
4. A relation to colleagues at the bar characterized by candor, fairness, and
unwillingness to resort to current business methods of advertising and
encroachment on their practice, or dealing directly with their clients. [16]
There is no question that respondent committed the acts complained of. He
himself admits that he caused the publication of the advertisements. While he
professes repentance and begs for the Courts indulgence, his contrition rings
hollow considering the fact that he advertised his legal services again after he
pleaded for compassion and after claiming that he had no intention to violate the
rules. Eight months after filing his answer, he again advertised his legal services in
the August 14, 2001 issue of the Buy & Sell Free Ads Newspaper.[17] Ten months
later, he caused the same advertisement to be published in the October 5, 2001
issue of Buy & Sell.[18] Such acts of respondent are a deliberate and contemptuous
affront on the Courts authority.
What adds to the gravity of respondents acts is that in advertising himself as a
self-styled Annulment of Marriage Specialist, he wittingly or unwittingly erodes and
undermines not only the stability but also the sanctity of an institution still
considered sacrosanct despite the contemporary climate of permissiveness in our
society. Indeed, in assuring prospective clients that an annulment may be obtained
in four to six months from the time of the filing of the case, [19] he in fact encourages
people, who might have otherwise been disinclined and would have refrained from
dissolving their marriage bonds, to do so.
Nonetheless, the solicitation of legal business is not altogether
proscribed. However, for solicitation to be proper, it must be compatible with the
60

dignity of the legal profession. If it is made in a modest and decorous manner, it

would bring no injury to the lawyer and to the bar. [20] Thus, the use of simple signs
stating the name or names of the lawyers, the office and residence address and
fields of practice, as well as advertisement in legal periodicals bearing the same
brief data, are permissible. Even the use of calling cards is now acceptable.
[21]
Publication in reputable law lists, in a manner consistent with the standards of
conduct imposed by the canon, of brief biographical and informative data is likewise
allowable. As explicitly stated in Ulep v. Legal Clinic, Inc.:[22]
Such data must not be misleading and may include only a statement of the lawyers
name and the names of his professional associates; addresses, telephone numbers,
cable addresses; branches of law practiced; date and place of birth and admission
to the bar; schools attended with dates of graduation, degrees and other
educational distinctions; public or quasi-public offices; posts of honor; legal
authorships; legal teaching positions; membership and offices in bar associations
and committees thereof, in legal and scientific societies and legal fraternities; the
fact of listings in other reputable law lists; the names and addresses of references;
and, with their written consent, the names of clients regularly represented.
The law list must be a reputable law list published primarily for that purpose; it
cannot be a mere supplemental feature of a paper, magazine, trade journal or
periodical which is published principally for other purposes. For that reason, a
lawyer may not properly publish his brief biographical and informative
data in a daily paper, magazine, trade journal or society program. Nor may
a lawyer permit his name to be published in a law list the conduct, management, or
contents of which are calculated or likely to deceive or injure the public or the bar,
or to lower dignity or standing of the profession.
The use of an ordinary simple professional card is also permitted. The card may
contain only a statement of his name, the name of the law firm which he is
connected with, address, telephone number and special branch of law
practiced. The publication of a simple announcement of the opening of a law firm or
of changes in the partnership, associates, firm name or office address, being for the
convenience of the profession, is not objectionable. He may likewise have his name
listed in a telephone directory but not under a designation of special branch of
law. (emphasis and italics supplied)
WHEREFORE, in view of the foregoing, respondent RIZALINO T. SIMBILLO is
found GUILTY of violation of Rules 2.03 and 3.01 of the Code of Professional
Responsibility and Rule 138, Section 27 of the Rules of Court. He is SUSPENDED
from the practice of law for ONE (1) YEAR effective upon receipt of this
Resolution. He is likewise STERNLY WARNED that a repetition of the same or similar
offense will be dealt with more severely.

61

Let copies of this Resolution be entered in his record as attorney and be

furnished the Integrated Bar of the Philippines and all courts in the country for their
information and guidance.
SO ORDERED.
Vitug, (Acting Chairman),Carpio, and Azcuna, JJ., concur.
Davide, Jr., C.J., (Chairman ), abroad, on official business.

[A. C. No. 5485. March 16, 2005]

ELMER CANOY, complainant, vs. ATTY. JOSE MAX ORTIZ, respondent.
DECISION
TINGA, J.:
There are no good reasons that would justify a lawyer virtually abandoning the
cause of the client in the midst of litigation without even informing the client of the
fact or cause of desertion. That the lawyer forsook his legal practice on account of
what might be perceived as a higher calling, election to public office, does not
mitigate the dereliction of professional duty. Suspension from the practice is the
usual penalty, and there is no reason to deviate from the norm in this case.

62

A Complaint[1] dated 10 April 2001 was filed with the Office of the Bar Confidant
by Elmer Canoy (Canoy) accusing Atty. Jose Max Ortiz (Atty. Ortiz) of misconduct and
malpractice. It was alleged that Canoy filed a complaint for illegal dismissal against
his former employer, Coca Cola Bottlers Philippines. The complaint was filed with
the National Labor Relations Commission (NLRC) Regional Arbitration Board VI in
Bacolod City.[2] Atty. Ortiz appeared as counsel for Canoy in this proceeding. In 1998,
the labor arbiter hearing the complaint ordered the parties to submit their
respective position papers. Canoy submitted all the necessary documents and
records to Atty. Ortiz for the preparation of the position paper. Thereafter, he made
several unfruitful visits to the office of Atty. Ortiz to follow-up the progress of the
case. After a final visit at the office of Atty. Ortiz in April of 2000, during which Canoy
was told to come back as his lawyer was not present, Canoy decided to follow-up
the case himself with the NLRC. He was shocked to learn that his complaint was
actually dismissed way back in 1998, for failure to prosecute, the parties not having
submitted their position papers. [3] The dismissal was without prejudice. Canoy
alleged that Atty. Ortiz had never communicated to him about the status of the
case, much less the fact that he failed to submit the position paper.
The Comment[4] filed by Atty. Ortiz is the epitome of self-hagiography. He
informs the Court that since commencing his law practice in 1987, he has mostly
catered to indigent and low-income clients, at considerable financial sacrifice to
himself. Atty. Ortiz claims that for more than ten years, his law office was a virtual
adjunct of the Public Attorneys Office with its steady stream of non-paying clients in
the hundreds or thousands.[5] At the same time, he hosted a legal assistance show
on the radio, catering to far-flung municipalities and reaching the people who need
legal advice and assistance.[6] Atty. Ortiz pursued on with this lifestyle until his
election as Councilor of Bacolod City, a victory which he generously attributes to the
help of the same people whom he had helped by way of legal assistance before. [7]
Canoy was among those low-income clients whom Atty. Ortiz deigned to
represent. The lawyer was apparently confident that the illegal dismissal case would
eventually be resolved by way of compromise. He claims having prepared the
position paper of Canoy, but before he could submit the same, the Labor Arbiter had
already issued the order dismissing the case. [8]Atty. Ortiz admits though that the
period within which to file the position paper had already lapsed. He attributes this
failure to timely file the position paper to the fact that after his election as Councilor
of Bacolod City, he was frankly preoccupied with both his functions as a local
government official and as a practicing lawyer. Eventually, his desire to help was
beyond physical limitations, and he withdrew from his other cases and his free legal
services.[9]
According to Atty. Ortiz, Mr. Canoy should have at least understood that during
all that time, he was free to visit or call the office and be entertained by the
secretary as [he] would normally report to the office in the afternoon as he had to
63

attend to court trials and report to the Sanggunian office. [10] He states that it was his
policy to inform clients that they should be the ones to follow-up their cases with his
office, as it would be too difficult and a financial burden to attend making follow-ups
with hundreds of clients, mostly indigents with only two office personnel. [11]
Nonetheless, Atty. Ortiz notes that the dismissal of Canoys complaint was
without prejudice, thus the prescriptive period had been tolled. He claims not being
able to remember whether he immediately informed Canoy of the dismissal of the
case, though as far as he could recall, Canoy had conveyed a message to him that
he had a lawyer to handle the case, thus his office did not insist on refiling the
same.[12]
The matter was referred to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.[13] Canoy eventually submitted a motion
withdrawing the complaint, but this was not favorably acted upon by the IBP in view
of the rule that the investigation of a case shall not be interrupted or terminated by
reason of withdrawal of the charges. [14]Eventually, the investigating commissioner
concluded that clearly, the records show that [Atty. Ortiz] failed to exercise that
degree of competence and diligence required of him in prosecuting his clients (sic)
claim, and recommended that Atty. Ortiz be reprimanded. [15] The IBP Commission on
Discipline adopted the recommendation, with the slight modification that Atty. Ortiz
be likewise warned that a repetition of the same negligence shall be dealt with more
severely in the future.
The Court is sensitive to the difficulties in obtaining legal representation for
indigent or low-income litigants. Apart from the heroic efforts of government entities
such as the Public Attorneys Office, groups such as the IBP National Committee on
Legal Aid and the Office of Legal Aid of the UP College of Law have likewise been at
the forefront in the quest to provide legal representation for those who could not
otherwise afford the services of lawyers. The efforts of private practitioners who
assist in this goal are especially commendable, owing to their sacrifice in time and
resources beyond the call of duty and without expectation of pecuniary reward.
Yet, the problem of under-representation of indigent or low-income clients is just
as grievous as that of non-representation. Admirable as the apparent focus of Atty.
Ortizs legal practice may have been, his particular representation of Canoy in the
latters illegal dismissal case leaves much to be desired.
Several of the canons and rules in the Code of Professional Responsibility guard
against the sort of conduct displayed by Atty. Ortiz with respect to the handling of
Canoys case.
CANON 17A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL
BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM.
64

CANON 18A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE.
...
Rule 18.03A lawyer shall not neglect a legal matter entrusted to him, and his
negligence in connection therewith shall render him liable.
Rule 18.04A lawyer shall keep the client informed of the status of his case and shall
respond within a reasonable time to the clients request for information.
...
CANON 22A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR GOOD CAUSE AND
UPON NOTICE APPROPRIATE IN THE CIRCUMSTANCES.
...
Rule 22.02 A lawyer who withdraws or is discharged shall, subject to a retainer lien,
immediately turn over all papers and property to which the client is entitled, and
shall cooperate with his successor in the orderly transfer of the matter, including all
information necessary for the proper handling of the matter.
Atty. Ortiz should have filed the position paper on time, owing to his duty as
counsel of Canoy to attend to this legal matter entrusted to him. His failure to do so
constitutes a violation of Rule 18.03 of the Code of Professional Responsibility.
Once he agrees to take up the cause of a client, a lawyer owes fidelity to such cause
and must always be mindful of the trust and confidence reposed in him. He must
serve the client with competence and diligence and champion the latter's cause
with wholehearted fidelity, care and devotion. Elsewise stated, he owes entire
devotion to the interest of the client, warm zeal in the maintenance and defense of
his client's rights, and the exertion of his utmost learning and ability to the end that
nothing be taken or withheld from his client, save by the rules of law, legally
applied. This simply means that his client is entitled to the benefit of any and every
remedy and defense that is authorized by the law of the land and he may expect his
lawyer to assert every such remedy or defense. If much is demanded from an
attorney, it is because the entrusted privilege to practice law carries with it the
correlative duties not only to the client but also to the court, to the bar and to the
public. A lawyer who performs his duty with diligence and candor not only protects
the interest of his client; he also serves the ends of justice, does honor to the bar
and helps maintain the respect of the community to the legal profession. [16]
If indeed Atty. Ortizs schedule, workload, or physical condition was such that he
would not be able to make a timely filing, he should have informed Canoy of such
65

fact. The relationship of lawyer-client being one of confidence, there is ever present
the need for the client to be adequately and fully informed of the developments of
the case and should not be left in the dark as to the mode and manner in which
his/her interests are being defended. [17]
There could have been remedies undertaken to this inability of Atty. Ortiz to file
on time the position paper had Canoy been told of such fact, such as a request for
more time to file the position paper, or maybe even the hiring of collaborating
counsel or substitution of Atty. Ortiz as counsel. Since Atty. Ortiz did not exercise the
necessary degree of care by either filing the position paper on time or informing
Canoy that the paper could not be submitted seasonably, the ignominy of having
the complaint dismissed for failure to prosecute could not be avoided.
That the case was dismissed without prejudice, thus allowing Canoy to refile the
case, hardly serves to mitigate the liability of Atty. Ortiz, as the failure to file the
position paper is per sea violation of Rule 18.03.[18]
Neither is the Court mollified by the circumstance of Atty. Ortizs election as a
City Councilor of Bacolod City, as his adoption of these additional duties does not
exonerate him of his negligent behavior. The Code of Professional Responsibility
does allow a lawyer to withdraw his legal services if the lawyer is elected or
appointed to a public office. [19] Statutes expressly prohibit the occupant of particular
public offices from engaging in the practice of law, such as governors and mayors,
[20]
and in such instance, the attorney-client relationship is terminated. [21] However,
city councilors are allowed to practice their profession or engage in any occupation
except during session hours, and in the case of lawyers such as Atty. Ortiz, subject
to certain prohibitions which are not relevant to this case. [22] In such case, the
lawyer nevertheless has the choice to withdraw his/her services. [23] Still, the
severance of the relation of attorney-client is not effective until a notice of
discharge by the client or a manifestation clearly indicating that purpose is filed
with the court or tribunal, and a copy thereof served upon the adverse party, and
until then, the lawyer continues to be counsel in the case. [24]
Assuming that Atty. Ortiz was justified in terminating his services, he, however,
cannot just do so and leave complainant in the cold unprotected. [25] Indeed, Rule
22.02 requires that a lawyer who withdraws or is discharged shall, subject to a lien,
immediately turn over all papers and property to which the client is entitled, and
shall cooperate with his successor in the orderly transfer of the matter. Atty. Ortiz
claims that the reason why he took no further action on the case was that he was
informed that Canoy had acquired the services of another counsel. Assuming that
were true, there was no apparent coordination between Atty. Ortiz and this new
counsel.

66

In fact, it took nearly two years before Canoy had learned that the position
paper had not been filed and that the case had been dismissed. This was highly
irresponsible of Atty. Ortiz, much more so considering that Canoy was one of the
indigent clients whom Atty. Ortiz proudly claims as his favored clientele. It does not
escape the Courts attention that Atty. Ortiz faults Canoy for not adequately
following up the case with his office.[26] He cannot now shift the blame to
complainant for failing to inquire about the status of the case, since, as stated
above, it was his duty as lawyer to inform his clients of the status of cases entrusted
to him.[27]
The appropriate sanction is within the sound discretion of this Court. In cases of
similar nature, the penalty imposed by the Court consisted of either a reprimand, a
fine of five hundred pesos with warning, suspension of three months, six months,
and even disbarment in aggravated cases. [28] Given the circumstances, the Court
finds the penalty recommended by the IBP too lenient and instead suspends Atty.
Ortiz from the practice of law for one (1) month. The graver penalty of suspension is
warranted in lieu of an admonition or a reprimand considering that Atty. Ortizs
undisputed negligence in failing to timely file the position paper was compounded
by his failure to inform Canoy of such fact, and the successive dismissal of the
complaint.
Lawyers who devote their professional practice in representing litigants who
could ill afford legal services deserve commendation. However, this mantle of public
service will not deliver the lawyer, no matter how well-meaning, from the
consequences of negligent acts. It is not enough to say that all pauper litigants
should be assured of legal representation. They deserve quality representation as
well.
WHEREFORE, respondent Atty. Jose Max S. Ortiz is ordered SUSPENDED from
the practice of law for one (1) month from notice, with the warning that a repetition
of the same negligence will be dealt with more severely. Let a copy of this decision
be attached to respondent's personal record in the Office of the Bar Confidant and
copies be furnished to all chapters of the Integrated Bar of the Philippines and to all
the courts in the land.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Chico-Nazario, JJ., concur.

67

PEDRO L. LINSANGAN, A.C. No. 6672

Complainant,
Present:
PUNO, C.J., Chairperson,
CARPIO,
- v e r s u s - CORONA,
LEONARDO-DE CASTRO and
BERSAMIN, JJ.
ATTY. NICOMEDES TOLENTINO,
Respondent. Promulgated:
September 4, 2009
x-----------------------------------------x
RESOLUTION
CORONA, J.:
This is a complaint for disbarment [1] filed by Pedro Linsangan of the Linsangan
Linsangan & Linsangan Law Office against Atty. Nicomedes Tolentino for solicitation
of clients and encroachment of professional services.
Complainant alleged that respondent, with the help of paralegal Fe Marie Labiano,
convinced his clients[2] to transfer legal representation. Respondent promised them
financial assistance[3] and expeditious collection on their claims. [4] To induce them to
hire his services, he persistently called them and sent them text messages.
To support his allegations, complainant presented the sworn affidavit [5] of James
Gregorio attesting that Labiano tried to prevail upon him to sever his lawyer-client
relations with complainant and utilize respondents services instead, in exchange for
a loan of P50,000. Complainant also attached respondents calling card: [6]
Front
NICOMEDES TOLENTINO
LAW OFFFICE
CONSULTANCY & MARITIME SERVICES
W/ FINANCIAL ASSISTANCE
Fe Marie L. Labiano
Paralegal
1st MIJI Mansion, 2nd Flr. Rm. M-01 Tel: 362-7820
6th Ave., cor M.H. Del Pilar Fax: (632) 362-7821
Grace Park, Caloocan City Cel.: (0926) 2701719

68

Back
SERVICES OFFERED:
CONSULTATION AND ASSISTANCE
TO OVERSEAS SEAMEN
REPATRIATED DUE TO ACCIDENT,
INJURY, ILLNESS, SICKNESS, DEATH
AND INSURANCE BENEFIT CLAIMS
ABROAD.
(emphasis supplied)
Hence, this complaint.
Respondent, in his defense, denied knowing Labiano and authorizing the printing
and circulation of the said calling card.[7]
The complaint was referred to the Commission on Bar Discipline (CBD) of the
Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.
[8]

Based on testimonial and documentary evidence, the CBD, in its report and
recommendation,[9] found that respondent had encroached on the professional
practice of complainant, violating Rule 8.02 [10] and other canons[11] of the Code of
Professional Responsibility (CPR). Moreover, he contravened the rule against
soliciting cases for gain, personally or through paid agents or brokers as stated in
Section 27, Rule 138[12] of the Rules of Court. Hence, the CBD recommended that
respondent be reprimanded with a stern warning that any repetition would merit a
heavier penalty.
We adopt the findings of the IBP on the unethical conduct of respondent but we
modify the recommended penalty.
The complaint before us is rooted on the alleged intrusion by respondent into
complainants professional practice in violation of Rule 8.02 of the CPR. And the
means employed by respondent in furtherance of the said misconduct themselves
constituted distinct violations of ethical rules.
Canons of the CPR are rules of conduct all lawyers must adhere to, including the
manner by which a lawyers services are to be made known. Thus, Canon 3 of the
CPR provides:
CANON 3 - A LAWYER IN MAKING KNOWN HIS LEGAL SERVICES SHALL
USE ONLY TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE
INFORMATION OR STATEMENT OF FACTS.
Time and time again, lawyers are reminded that the practice of law is a profession
and not a business; lawyers should not advertise their talents as merchants
advertise their wares.[13] To allow a lawyer to advertise his talent or skill is to
69

commercialize the practice of law, degrade the profession in the publics estimation
and impair its ability to efficiently render that high character of service to which
every member of the bar is called.[14]
Rule 2.03 of the CPR provides:
RULE 2.03. A LAWYER SHALL NOT DO OR PERMIT TO BE DONE ANY ACT
DESIGNED PRIMARILY TO SOLICIT LEGAL BUSINESS.
Hence, lawyers are prohibited from soliciting cases for the purpose of gain, either
personally or through paid agents or brokers. [15] Such actuation constitutes
malpractice, a ground for disbarment.[16]
Rule 2.03 should be read in connection with Rule 1.03 of the CPR which
provides:
RULE 1.03. A LAWYER SHALL NOT, FOR ANY CORRUPT MOTIVE OR
INTEREST, ENCOURAGE ANY SUIT OR PROCEEDING OR DELAY ANY
MANS CAUSE.
This rule proscribes ambulance chasing (the solicitation of almost any kind of legal
business by an attorney, personally or through an agent in order to gain
employment)[17] as a measure to protect the community from barratry and
champerty.[18]
Complainant presented substantial evidence [19] (consisting of the sworn statements
of the very same persons coaxed by Labiano and referred to respondents office) to
prove that respondent indeed solicited legal business as well as profited from
referrals suits.
Although respondent initially denied knowing Labiano in his answer, he later
admitted it during the mandatory hearing.
Through Labianos actions, respondents law practice was benefited. Hapless
seamen were enticed to transfer representation on the strength of Labianos word
that respondent could produce a more favorable result.
Based on the foregoing, respondent clearly solicited employment violating Rule
2.03, and Rule 1.03 and Canon 3 of the CPR and Section 27, Rule 138 of the Rules of
Court.
With regard to respondents violation of Rule 8.02 of the CPR, settled is the rule that
a lawyer should not steal another lawyers client nor induce the latter to retain him
by a promise of better service, good result or reduced fees for his services. [20] Again
the Court notes that respondent never denied having these seafarers in his client
list nor receiving benefits from Labianos referrals. Furthermore, he never denied
Labianos connection to his office. [21] Respondent committed an unethical, predatory
overstep into anothers legal practice. He cannot escape liability under Rule 8.02 of
the CPR.
Moreover, by engaging in a money-lending venture with his clients as borrowers,
respondent violated Rule 16.04:

70

Rule 16.04 A lawyer shall not borrow money from his client unless the clients
interests are fully protected by the nature of the case or by
independent advice. Neither shall a lawyer lend money to a client
except, when in the interest of justice, he has to advance necessary
expenses in a legal matter he is handling for the client.
The rule is that a lawyer shall not lend money to his client. The only exception
is, when in the interest of justice, he has to advance necessary expenses (such as
filing fees, stenographers fees for transcript of stenographic notes, cash bond or
premium for surety bond, etc.) for a matter that he is handling for the client.
The rule is intended to safeguard the lawyers independence of mind so that
the free exercise of his judgment may not be adversely affected. [22] It seeks to
ensure his undivided attention to the case he is handling as well as his entire
devotion and fidelity to the clients cause. If the lawyer lends money to the client in
connection with the clients case, the lawyer in effect acquires an interest in the
subject matter of the case or an additional stake in its outcome. [23] Either of these
circumstances may lead the lawyer to consider his own recovery rather than that of
his client, or to accept a settlement which may take care of his interest in the
verdict to the prejudice of the client in violation of his duty of undivided fidelity to
the clients cause.[24]
As previously mentioned, any act of solicitation constitutes malpractice [25] which
calls for the exercise of the Courts disciplinary powers. Violation of anti-solicitation
statutes warrants serious sanctions for initiating contact with a prospective client
for the purpose of obtaining employment. [26] Thus, in this jurisdiction, we adhere to
the rule to protect the public from the Machiavellian machinations of unscrupulous
lawyers and to uphold the nobility of the legal profession.
Considering the myriad infractions of respondent (including violation of the
prohibition on lending money to clients), the sanction recommended by the IBP, a
mere reprimand, is a wimpy slap on the wrist. The proposed penalty is grossly
incommensurate to its findings.
A final word regarding the calling card presented in evidence by petitioner. A
lawyers best advertisement is a well-merited reputation for professional capacity
and fidelity to trust based on his character and conduct. [27] For this reason, lawyers
are only allowed to announce their services by publication in reputable law lists or
use of simple professional cards.
Professional calling cards may only contain the following details:
(a)
(b)
(c)
(d)
(e)

lawyers name;
name of the law firm with which he is connected;
address;
telephone number and
special branch of law practiced.[28]

Labianos calling card contained the phrase with financial assistance. The
phrase was clearly used to entice clients (who already had representation) to
change counsels with a promise of loans to finance their legal actions. Money was
dangled to lure clients away from their original lawyers, thereby taking advantage
71

of their financial distress and emotional vulnerability. This crass commercialism

degraded the integrity of the bar and deserved no place in the legal profession.
However, in the absence of substantial evidence to prove his culpability, the Court
is not prepared to rule that respondent was personally and directly responsible for
the printing and distribution of Labianos calling cards.
WHEREFORE, respondent Atty. Nicomedes Tolentino for violating Rules 1.03, 2.03,
8.02 and 16.04 and Canon 3 of the Code of Professional Responsibility and Section
27, Rule 138 of the Rules of Court is hereby SUSPENDED from the practice of
law for a period of one year effective immediately from receipt of this resolution.
He is STERNLY WARNED that a repetition of the same or similar acts in the future
shall be dealt with more severely.
Let a copy of this Resolution be made part of his records in the Office of the Bar
Confidant, Supreme Court of the Philippines, and be furnished to the Integrated Bar
of the Philippines and the Office of the Court Administrator to be circulated to all
courts.
SO ORDERED.
RENATO C. CORONA
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice
Chairperson

EN BANC

DIANA RAMOS,

A. C. No. 6788

Complainant,

(Formerly, CBD 382)

72

Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,*
GARCIA,
VELASCO, JR.,
-versus-

NACHURA and
REYES, JJ.

ATTY. JOSE R. IMBANG,

Respondent.

Promulgated:

August 23, 2007

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
RESOLUTION
PER CURIAM:
This is a complaint for disbarment or suspension [1] against Atty. Jose R. Imbang for
multiple violations of the Code of Professional Responsibility.
THE COMPLAINT
73

In 1992, the complainant Diana Ramos sought the assistance of respondent

Atty. Jose R. Imbang in filing civil and criminal actions against the spouses Roque
and Elenita Jovellanos.[2] She gave respondent P8,500 as attorney's fees but the
latter issued a receipt for P5,000 only.[3]
The complainant tried to attend the scheduled hearings of her cases against the
Jovellanoses. Oddly, respondent never allowed her to enter the courtroom and
always told her to wait outside. He would then come out after several hours to
inform her that the hearing had been cancelled and rescheduled. [4] This happened
six times and for each appearance in court, respondent charged her P350.
After six consecutive postponements, the complainant became suspicious. She
personally inquired about the status of her cases in the trial courts of Bian and San
Pedro, Laguna. She was shocked to learn that respondent never filed any case
against the Jovellanoses and that he was in fact employed in the Public Attorney's
Office (PAO).[5]
RESPONDENT'S DEFENSE
According to respondent, the complainant knew that he was in the government
service from the very start. In fact, he first met the complainant when he was still a
district attorney in the Citizen's Legal Assistance Office (predecessor of PAO) of
Bian, Laguna and was assigned as counsel for the complainant's daughter. [6]
In 1992, the complainant requested him to help her file an action for damages
against the Jovellanoses.[7] Because he was with the PAO and aware that the
complainant was not an indigent, he declined. [8] Nevertheless, he advised the
complainant to consult Atty. Tim Ungson, a relative who was a private practitioner.
[9]
Atty. Ungson, however, did not accept the complainant's case as she was unable
to come up with the acceptance fee agreed upon. [10] Notwithstanding Atty. Ungson's
refusal, the complainant allegedly remained adamant. She insisted on suing the
Jovellanoses. Afraid that she might spend the cash on hand, the complainant asked
respondent to keep the P5,000 while she raised the balance of Atty. Ungson's
acceptance fee.[11]
A year later, the complainant requested respondent to issue an antedated receipt
because one of her daughters asked her to account for the P5,000 she had
previously given the respondent for safekeeping. [12] Because the complainant was a
friend, he agreed and issued a receipt dated July 15, 1992. [13]
On April 15, 1994, respondent resigned from the PAO. [14] A few months later or in
September 1994, the complainant again asked respondent to assist her in suing the
Jovellanoses. Inasmuch as he was now a private practitioner, respondent agreed to
prepare the complaint. However, he was unable to finalize it as he lost contact with
the complainant.[15]
RECOMMENDATION OF THE IBP

74

Acting on the complaint, the Commission on Bar Discipline (CBD) of the Integrated
Bar of the Philippines (IBP) where the complaint was filed, received evidence from
the parties. On November 22, 2004, the CBD submitted its report and
recommendation to the IBP Board of Governors.[16]
The CBD noted that the receipt[17] was issued on July 15, 1992 when respondent was
still with the PAO. [18] It also noted that respondent described the complainant as a
shrewd businesswoman and that respondent was a seasoned trial lawyer. For these
reasons, the complainant would not have accepted a spurious receipt nor would
respondent have issued one. The CBD rejected respondent's claim that he issued
the receipt to accommodate a friend's request. [19] It found respondent guilty of
violating the prohibitions on government lawyers from accepting private cases and
receiving lawyer's fees other than their salaries. [20] The CBD concluded that
respondent violated the following provisions of the Code of Professional
Responsibility:
Rule 1.01. A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct.
Rule 16.01. A lawyer shall account for all money or property collected
or received for or from a client.
Rule 18.01. A lawyer should not undertake a legal service which he
knows or should know that he is not qualified to render. However, he
may render such service if, with the consent of his client, he can obtain
as collaborating counsel a lawyer who is competent on the matter.
Thus, it recommended respondent's suspension from the practice of law for three
years and ordered him to immediately return to the complainant the amount
of P5,000 which was substantiated by the receipt. [21]
The IBP Board of Governors adopted and approved the findings of the CBD that
respondent violated Rules 1.01, 16.01 and 18.01 of the Code of Professional
Responsibility. It, however, modified the CBD's recommendation with regard to the
restitution of P5,000 by imposing interest at the legal rate, reckoned from 1995 or,
in case of respondent's failure to return the total amount, an additional suspension
of six months.[22]
THE COURT'S RULING
We adopt the findings of the IBP with modifications.
Lawyers are expected to conduct themselves with honesty and integrity. [23] More
specifically, lawyers in government service are expected to be more conscientious
of their actuations as they are subject to public scrutiny. They are not only members
of the bar but also public servants who owe utmost fidelity to public service. [24]

75

Government employees are expected to devote themselves completely to public

service. For this reason, the private practice of profession is prohibited. Section 7(b)
(2) of the Code of Ethical Standards for Public Officials and Employees provides:
Section 7. Prohibited Acts and Transactions. -- In addition to acts and
omissions of public officials and employees now prescribed in the
Constitution and existing laws, the following constitute prohibited acts
and transactions of any public official and employee and are hereby
declared unlawful:
xxx xxx xxx

(b) Outside employment and other activities related thereto, public

officials and employees during their incumbency shall not:

xxx xxx xxx

(1) Engage in the private practice of profession unless authorized by

the Constitution or law, provided that such practice will not conflict
with their official function.[25]

Thus, lawyers in government service cannot handle private cases for they are
expected to devote themselves full-time to the work of their respective offices.
In this instance, respondent received P5,000 from the complainant and issued a
receipt on July 15, 1992 while he was still connected with the PAO. Acceptance of
money from a client establishes an attorney-client relationship. [26] Respondent's
admission that he accepted money from the complainant and the receipt confirmed
the presence of an attorney-client relationship between him and the complainant.
Moreover, the receipt showed that he accepted the complainant's case while he was
still a government lawyer. Respondent clearly violated the prohibition on private
practice of profession.
Aggravating respondent's wrongdoing was his receipt of attorney's fees. The PAO
was created for the purpose of providing free legal assistance to indigent litigants.

76

[27]

Section 14(3), Chapter 5, Title III, Book V of the Revised Administrative Code
provides:
Sec. 14. xxx
The PAO shall be the principal law office of the Government in
extending free legal assistance to indigent persons in criminal, civil,
labor, administrative and other quasi-judicial cases. [28]

As a PAO lawyer, respondent should not have accepted attorney's fees from the
complainant as this was inconsistent with the office's mission. [29] Respondent
violated the prohibition against accepting legal fees other than his salary.
Canon 1 of the Code of Professional Responsibility provides:
CANON 1. A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE
LAWS OF THE LAND AND PROMOTE RESPECT FOR THE LAW AND LEGAL
PROCESSES.
Every lawyer is obligated to uphold the law. [30] This undertaking includes the
observance of the above-mentioned prohibitions blatantly violated by respondent
when he accepted the complainant's cases and received attorney's fees in
consideration of his legal services. Consequently, respondent's acceptance of the
cases was also a breach of Rule 18.01 of the Code of Professional Responsibility
because the prohibition on the private practice of profession disqualified him from
acting as the complainant's counsel.
Aside from disregarding the prohibitions against handling private cases and
accepting attorney's fees, respondent also surreptitiously deceived the complainant.
Not only did he fail to file a complaint against the Jovellanoses (which in the first
place he should not have done), respondent also led the complainant to believe that
he really filed an action against the Jovellanoses. He even made it appear that the
cases were being tried and asked the complainant to pay his appearance fees for
hearings that never took place. These acts constituted dishonesty, a violation of the
lawyer's oath not to do any falsehood. [31]
Respondent's conduct in office fell short of the integrity and good moral character
required of all lawyers, specially one occupying a public office. Lawyers in public
office are expected not only to refrain from any act or omission which tend to lessen
the trust and confidence of the citizenry in government but also uphold the dignity
of the legal profession at all times and observe a high standard of honesty and fair
dealing. A government lawyer is a keeper of public faith and is burdened with a high
degree of social responsibility, higher than his brethren in private practice. [32]
There is, however, insufficient basis to find respondent guilty of violating Rule 16.01
of the Code of Professional Responsibility. Respondent did not hold the money for
the benefit of the complainant but accepted it as his attorney's fees. He neither held
the amount in trust for the complainant (such as an amount delivered by the sheriff
77

in satisfaction of a judgment obligation in favor of the client) [33] nor was it given to
him for a specific purpose (such as amounts given for filing fees and bail bond).
[34]
Nevertheless, respondent should return the P5,000 as he, a government lawyer,
was not entitled to attorney's fees and not allowed to accept them. [35]
WHEREFORE, Atty. Jose R. Imbang is found guilty of violating the lawyers oath,
Canon 1, Rule 1.01 and Canon 18, Rule 18.01 of the Code of Professional
Responsibility. Accordingly, he is hereby DISBARRED from the practice of law and
his name is ORDERED STRICKEN from the Roll of Attorneys. He is also ordered to
return to complainant the amount of P5,000 with interest at the legal rate, reckoned
from 1995, within 10 days from receipt of this resolution.
Let a copy of this resolution be attached to the personal records of
respondent in the Office of the Bar Confidant and notice of the same be served on
the Integrated Bar of the Philippines and on the Office of the Court Administrator for
circulation to all courts in the country.
SO ORDERED.
REYNATO S. PUNO
Chief Justice

WILFREDO M. CATU, A.C. No. 5738

Complainant,
Present:
PUNO, C.J., Chairperson,
SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA and
LEONARDO-DE CASTRO, JJ.
ATTY. VICENTE G. RELLOSA,
78

Respondent. Promulgated:
February 19, 2008
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
RESOLUTION
CORONA, J.:

Complainant Wilfredo M. Catu is a co-owner of a lot [1] and the building erected
thereon located at 959 San Andres Street, Malate, Manila. His mother and brother,
Regina Catu and Antonio Catu, contested the possession of Elizabeth C. DiazCatu[2] and Antonio Pastor[3] of one of the units in the building. The latter ignored
demands for them to vacate the premises. Thus, a complaint was initiated against
them in the Lupong Tagapamayapa of Barangay 723, Zone 79 of the 5th District of
Manila[4] where the parties reside.
Respondent, as punong barangay of Barangay 723, summoned the parties to
conciliation meetings.[5] When the parties failed to arrive at an amicable settlement,
respondent issued a certification for the filing of the appropriate action in court.
Thereafter, Regina and Antonio filed a complaint for ejectment against Elizabeth
and Pastor in the Metropolitan Trial Court of Manila, Branch 11. Respondent entered
his appearance as counsel for the defendants in that case. Because of this,
complainant filed the instant administrative complaint, [6] claiming that respondent
committed an act of impropriety as a lawyer and as a public officer when he stood
as counsel for the defendants despite the fact that he presided over the conciliation
proceedings between the litigants as punong barangay.
In his defense, respondent claimed that one of his duties as punong barangay was
to hear complaints referred to the barangays Lupong Tagapamayapa. As such, he
heard the complaint of Regina and Antonio against Elizabeth and Pastor. As head of
the Lupon, he performed his task with utmost objectivity, without bias or partiality
towards any of the parties. The parties, however, were not able to amicably settle
their dispute and Regina and Antonio filed the ejectment case. It was then that
Elizabeth sought his legal assistance. He acceded to her request. He handled her
case for free because she was financially distressed and he wanted to prevent the
commission of a patent injustice against her.
The complaint was referred to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation. As there was no factual issue to thresh
out, the IBPs Commission on Bar Discipline (CBD) required the parties to submit
their respective position papers. After evaluating the contentions of the parties, the
IBP-CBD found sufficient ground to discipline respondent. [7]
According to the IBP-CBD, respondent admitted that, as punong barangay, he
presided over the conciliation proceedings and heard the complaint of Regina and
79

Antonio against Elizabeth and Pastor. Subsequently, however, he represented

Elizabeth and Pastor in the ejectment case filed against them by Regina and
Antonio. In the course thereof, he prepared and signed pleadings including the
answer with counterclaim, pre-trial brief, position paper and notice of appeal. By so
doing, respondent violated Rule 6.03 of the Code of Professional Responsibility:
Rule 6.03 A lawyer shall not, after leaving government service,
accept engagement or employment in connection with any matter in
which he intervened while in said service.
Furthermore, as an elective official, respondent contravened the prohibition
under Section 7(b)(2) of RA 6713:[8]
SEC. 7. Prohibited Acts and Transactions. In addition to acts and
omissions of public officials and employees now prescribed in the
Constitution and existing laws, the following shall constitute prohibited
acts and transactions of any public official ands employee and are
hereby declared to be unlawful:
xxx xxx xxx
(b) Outside employment and other activities related thereto. Public
officials and employees during their incumbency shall not:
xxx xxx xxx
(2) Engage in the private practice of profession unless
authorized by the Constitution or law, provided that such
practice will not conflict or tend to conflict with their official
functions; xxx (emphasis supplied)
According to the IBP-CBD, respondents violation of this prohibition constituted
a breach of Canon 1 of the Code of Professional Responsibility:
CANON 1. A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE
LAWS OF THE LAND, PROMOTE RESPECT FOR LAW AND LEGAL
PROCESSES. (emphasis supplied)
For these infractions, the IBP-CBD recommended the respondents suspension
from the practice of law for one month with a stern warning that the commission of
the same or similar act will be dealt with more severely. [9] This was adopted and
approved by the IBP Board of Governors. [10]
We modify the foregoing findings regarding the transgression of respondent
as well as the recommendation on the imposable penalty.
RULE 6.03 OF THE CODE
OF
PROFESSIONAL
RESPONSIBILITY
APPLIES
ONLY
TO
FORMER
GOVERNMENT LAWYERS

80

Respondent cannot be found liable for violation of Rule 6.03 of the Code of
Professional Responsibility. As worded, that Rule applies only to a lawyer who
has left government service and in connection with any matter in which he
intervened while in said service. In PCGG v. Sandiganbayan,[11] we ruled that Rule
6.03 prohibits former government lawyers from accepting engagement or
employment in connection with any matter in which [they] had intervened while in
said service.
Respondent was an incumbent punong barangay at the time he committed
the act complained of. Therefore, he was not covered by that provision.

SECTION 90 OF RA 7160, NOT SECTION

7(B)(2) OF RA 6713, GOVERNS THE
PRACTICE OF PROFESSION OF ELECTIVE
LOCAL GOVERNMENT OFFICIALS
Section 7(b)(2) of RA 6713 prohibits public officials and employees, during
their incumbency, from engaging in the private practice of their profession unless
authorized by the Constitution or law, provided that such practice will not conflict or
tend to conflict with their official functions. This is the general law which applies to
all public officials and employees.
For elective local government officials, Section 90 of RA 7160 [12] governs:
SEC. 90. Practice of Profession. (a) All governors, city and
municipal mayors are prohibited from practicing their profession or
engaging in any occupation other than the exercise of their functions
as local chief executives.
(b) Sanggunian members may practice their professions,
engage in any occupation, or teach in schools except during
session hours: Provided, That sanggunian members who are
members of the Bar shall not:
(1) Appear as counsel before any court in any civil case
wherein a local government unit or any office, agency, or
instrumentality of the government is the adverse party;
(2) Appear as counsel in any criminal case wherein an
officer or employee of the national or local government is
accused of an offense committed in relation to his office;

81

(3) Collect any fee for their appearance in administrative

proceedings involving the local government unit of which he is
an official; and
(4) Use property and personnel of the Government except
when the sanggunian member concerned is defending the
interest of the Government.
(c) Doctors of medicine may practice their profession even
during official hours of work only on occasions of
emergency: Provided, That the officials concerned do not derive
monetary compensation therefrom.

This is a special provision that applies specifically to the practice of

profession by elective local officials. As a special law with a definite scope (that is,
the practice of profession by elective local officials), it constitutes an exception to
Section 7(b)(2) of RA 6713, the general law on engaging in the private practice of
profession by public officials and employees. Lex specialibus derogat generalibus.[13]
Under RA 7160, elective local officials of provinces, cities, municipalities and
barangays are the following: the governor, the vice governor and members of
thesangguniang panlalawigan for provinces; the city mayor, the city vice mayor and
the members of the sangguniang panlungsod for cities; the municipal mayor, the
municipal vice mayor and the members of the sangguniang bayan for municipalities
and the punong barangay, the members of the sangguniang barangay and the
members of the sangguniang kabataan for barangays.
Of these elective local officials, governors, city mayors and municipal mayors
are prohibited from practicing their profession or engaging in any occupation other
than the exercise of their functions as local chief executives. This is because they
are required to render full time service. They should therefore devote all their time
and attention to the performance of their official duties.
On the other hand, members of the sangguniang panlalawigan, sangguniang
panlungsod or sangguniang bayan may practice their professions, engage in any
occupation, or teach in schools except during session hours. In other words, they
may practice their professions, engage in any occupation, or teach in schools
outside their session hours. Unlike governors, city mayors and municipal
mayors, members
of
the sangguniang
panlalawigan, sangguniang
panlungsod or sangguniang bayan are required to hold regular sessions only at least
once a week.[14] Since the law itself grants them the authority to practice their
professions, engage in any occupation or teach in schools outside session hours,
there is no longer any need for them to secure prior permission or authorization
from any other person or office for any of these purposes.
While, as already discussed, certain local elective officials (like governors,
mayors, provincial board members and councilors) are expressly subjected to a total
82

or partial proscription to practice their profession or engage in any occupation, no

such interdiction is made on the punong barangay and the members of
the sangguniang barangay.Expressio unius est exclusio alterius.[15] Since they are
excluded from any prohibition, the presumption is that they are allowed to practice
their profession. And this stands to reason because they are not mandated to serve
full time. In fact, the sangguniang barangay is supposed to hold regular sessions
only twice a month.[16]
Accordingly, as punong barangay, respondent was not forbidden to practice
his profession. However, he should have procured prior permission or authorization
from the head of his Department, as required by civil service regulations.
A LAWYER IN GOVERNMENT SERVICE
WHO IS NOT PROHIBITED TO PRACTICE
LAW MUST SECURE PRIOR AUTHORITY
FROM THE HEAD OF HIS DEPARTMENT
A civil service officer or employee whose responsibilities do not require his time to
be fully at the disposal of the government can engage in the private practice of law
only with the written permission of the head of the department concerned.
[17]
Section 12, Rule XVIII of the Revised Civil Service Rules provides:
Sec. 12. No officer or employee shall engage directly in
any private business, vocation, or profession or be connected with
any commercial, credit, agricultural, or industrial undertaking without
a
written
permission
from
the
head
of
the
Department: Provided, That this prohibition will be absolute in the
case of those officers and employees whose duties and responsibilities
require that their entire time be at the disposal of the
Government; Provided, further, That if an employee is granted
permission to engage in outside activities, time so devoted outside of
office hours should be fixed by the agency to the end that it will not
impair in any way the efficiency of the officer or employee:
And provided, finally, that no permission is necessary in the case of
investments, made by an officer or employee, which do not involve
real or apparent conflict between his private interests and public
duties, or in any way influence him in the discharge of his duties, and
he shall not take part in the management of the enterprise or become
an officer of the board of directors. (emphasis supplied)
As punong barangay, respondent should have therefore obtained the prior
written permission of the Secretary of Interior and Local Government before he
entered his appearance as counsel for Elizabeth and Pastor. This he failed to do.
The failure of respondent to comply with Section 12, Rule XVIII of the Revised Civil
Service Rules constitutes a violation of his oath as a lawyer: to obey the laws.
Lawyers are servants of the law, vires legis, men of the law. Their paramount duty
to society is to obey the law and promote respect for it. To underscore the primacy

83

and importance of this duty, it is enshrined as the first canon of the Code of
Professional Responsibility.
In acting as counsel for a party without first securing the required written
permission, respondent not only engaged in the unauthorized practice of law but
also violated civil service rules which is a breach of Rule 1.01 of the Code of
Professional Responsibility:
Rule 1.01 A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct. (emphasis supplied)
For not living up to his oath as well as for not complying with the exacting ethical
standards of the legal profession, respondent failed to comply with Canon 7 of the
Code of Professional Responsibility:
CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE
INTEGRITY AND THE DIGNITY OF THE LEGAL PROFESSION AND
SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR. (emphasis
supplied)
Indeed, a lawyer who disobeys the law disrespects it. In so doing, he
disregards legal ethics and disgraces the dignity of the legal profession.
Public confidence in the law and in lawyers may be eroded by the
irresponsible and improper conduct of a member of the bar. [18] Every lawyer should
act and comport himself in a manner that promotes public confidence in the
integrity of the legal profession.[19]
A member of the bar may be disbarred or suspended from his office as an
attorney for violation of the lawyers oath [20] and/or for breach of the ethics of the
legal profession as embodied in the Code of Professional Responsibility.
WHEREFORE, respondent Atty. Vicente G. Rellosa is hereby found GUILTY of
professional misconduct for violating his oath as a lawyer and Canons 1 and 7 and
Rule
1.01
of
the
Code
of
Professional
Responsibility.
He
is
therefore SUSPENDED from the practice of law for a period of six months
effective from his receipt of this resolution. He is sternly WARNED that any
repetition of similar acts shall be dealt with more severely.
Respondent is strongly advised to look up and take to heart the meaning of the
word delicadeza.
Let a copy of this resolution be furnished the Office of the Bar Confidant and entered
into the records of respondent Atty. Vicente G. Rellosa. The Office of the Court
Administrator shall furnish copies to all the courts of the land for their information
and guidance.
SO ORDERED.

84

RENATO C. CORONA
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice
Chairperson

85

[G.R. Nos. 151809-12. April 12, 2005]

PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), petitioner,
vs. SANDIGANBAYAN (Fifth Division), LUCIO C. TAN, CARMEN KHAO
TAN, FLORENCIO T. SANTOS, NATIVIDAD P. SANTOS, DOMINGO CHUA,
TAN HUI NEE, MARIANO TAN ENG LIAN, ESTATE OF BENITO TAN KEE
HIONG (represented by TARCIANA C. TAN), FLORENCIO N. SANTOS,
JR., HARRY C. TAN, TAN ENG CHAN, CHUNG POE KEE, MARIANO KHOO,
MANUEL KHOO, MIGUEL KHOO, JAIME KHOO, ELIZABETH KHOO,
CELSO RANOLA, WILLIAM T. WONG, ERNESTO B. LIM, BENJAMIN T.
ALBACITA, WILLY CO, ALLIED BANKING CORP., ALLIED LEASING AND
FINANCE CORPORATION, ASIA BREWERY, INC., BASIC HOLDINGS
CORP., FOREMOST FARMS, INC., FORTUNE TOBACCO CORP.,
GRANDSPAN DEVELOPMENT CORP., HIMMEL INDUSTRIES, IRIS
HOLDINGS AND DEVELOPMENT CORP., JEWEL HOLDINGS, INC.,
MANUFACTURING SERVICES AND TRADE CORP., MARANAW HOTELS
AND RESORT CORP., NORTHERN TOBACCO REDRYING PLANT,
PROGRESSIVE FARMS, INC., SHAREHOLDINGS, INC., SIPALAY TRADING
CORP., VIRGO HOLDINGS & DEVELOPMENT CORP., and ATTY. ESTELITO
P. MENDOZA, respondents.
DECISION
PUNO, J.:
This case is prima impressiones and it is weighted with significance for it
concerns on one hand, the efforts of the Bar to upgrade the ethics of lawyers in
government service and on the other, its effect on the right of government to recruit
competent counsel to defend its interests.
In 1976, General Bank and Trust Company (GENBANK) encountered financial
difficulties. GENBANK had extended considerable financial support to Filcapital
Development Corporation causing it to incur daily overdrawings on its current
86

account with the Central Bank. [1] It was later found by the Central Bank that
GENBANK had approved various loans to directors, officers, stockholders and related
interests totaling P172.3 million, of which 59% was classified as doubtful and P0.505
million as uncollectible.[2] As a bailout, the Central Bank extended emergency
loans to GENBANK which reached a total of P310 million.[3] Despite the mega
loans, GENBANK failed to recover from its financial woes. On March 25, 1977,
the Central Bank issued a resolution declaring GENBANK insolvent and
unable to resume business with safety to its depositors, creditors and the general
public, and ordering its liquidation.[4] A public bidding of GENBANKs
assets was held from March 26 to 28, 1977, wherein the Lucio Tan group submitted
the winning bid.[5] Subsequently, former Solicitor General Estelito P. Mendoza
filed a petition with the then Court of First Instance praying for the
assistance and supervision of the court in GENBANKs liquidation as mandated by
Section 29 of Republic Act No. 265.
In February 1986, the EDSA I revolution toppled the Marcos government. One of
the first acts of President Corazon C. Aquino was to establish the Presidential
Commission on Good Government (PCGG) to recover the alleged ill-gotten wealth of
former President Ferdinand Marcos, his family and his cronies. Pursuant to this
mandate, the PCGG, on July 17, 1987, filed with the Sandiganbayan a complaint
for reversion, reconveyance, restitution, accounting and damages against
respondents Lucio Tan, Carmen Khao Tan, Florencio T. Santos, Natividad P. Santos,
Domingo Chua, Tan Hui Nee, Mariano Tan Eng Lian, Estate of Benito Tan Kee Hiong,
Florencio N. Santos, Jr., Harry C. Tan, Tan Eng Chan, Chung Poe Kee, Mariano Khoo,
Manuel Khoo, Miguel Khoo, Jaime Khoo, Elizabeth Khoo, Celso Ranola, William T.
Wong, Ernesto B. Lim, Benjamin T. Albacita, Willy Co, Allied Banking Corporation
(Allied Bank), Allied Leasing and Finance Corporation, Asia Brewery, Inc., Basic
Holdings Corp., Foremost Farms, Inc., Fortune Tobacco Corporation, Grandspan
Development Corp., Himmel Industries, Iris Holdings and Development Corp., Jewel
Holdings, Inc., Manufacturing Services and Trade Corp., Maranaw Hotels and Resort
Corp., Northern Tobacco Redrying Plant, Progressive Farms, Inc., Shareholdings, Inc.,
Sipalay Trading Corp., Virgo Holdings & Development Corp., (collectively referred to
herein as respondents Tan, et al.), then President Ferdinand E. Marcos, Imelda R.
Marcos, Panfilo O. Domingo, Cesar Zalamea, Don Ferry and Gregorio Licaros. The
case was docketed as Civil Case No. 0005 of the Second Division of
theSandiganbayan.[6] In connection therewith, the PCGG issued several writs of
sequestration on properties allegedly acquired by the above-named persons by
taking advantage of their close relationship and influence with former President
Marcos.
Respondents Tan, et al. repaired to this Court and filed petitions for certiorari,
prohibition and injunction to nullify, among others, the writs of sequestration issued
by the PCGG.[7] After the filing of the parties comments, this Court referred the cases
to the Sandiganbayan for proper disposition. These cases were docketed as Civil
87

Case Nos. 0096-0099. In all these cases, respondents Tan, et al. were represented
by their counsel, former Solicitor General Estelito P. Mendoza, who has then
resumed his private practice of law.
On February 5, 1991, the PCGG filed motions to disqualify respondent
Mendoza as counsel for respondents Tan, et al. with the Second Division of
the Sandiganbayan in Civil Case Nos. 0005[8] and 0096-0099.[9] The motions
alleged that respondent Mendoza, as then Solicitor General [10] and counsel to
Central Bank, actively intervened in the liquidation of GENBANK, which was
subsequently acquired by respondents Tan, et al. and became Allied Banking
Corporation. Respondent Mendoza allegedly intervened in the acquisition of
GENBANK by respondents Tan, et al. when, in his capacity as then Solicitor General,
he advised the Central Banks officials on the procedure to bring about GENBANKs
liquidation and appeared as counsel for the Central Bank in connection with its
petition for assistance in the liquidation of GENBANK which he filed with the Court of
First Instance (now Regional Trial Court) of Manila and was docketed as Special
Proceeding No. 107812. The motions to disqualify invoked Rule 6.03 of the Code
of Professional Responsibility. Rule 6.03 prohibits former government
lawyers from accepting engagement or employment in connection with any matter
in which he had intervened while in said service.
On April 22, 1991 the Second Division of the Sandiganbayan issued a
resolution denying PCGGs motion to disqualify respondent Mendoza in Civil Case
No. 0005.[11] It found that the PCGG failed to prove the existence of an inconsistency
between respondent Mendozas former function as Solicitor General and his present
employment as counsel of the Lucio Tan group. It noted that respondent Mendoza
did not take a position adverse to that taken on behalf of the Central Bank during
his term as Solicitor General.[12] It further ruled that respondent Mendozas
appearance as counsel for respondents Tan, et al. was beyond the one-year
prohibited period under Section 7(b) of Republic Act No. 6713 since he ceased to be
Solicitor General in the year 1986. The said section prohibits a former public official
or employee from practicing his profession in connection with any matter before the
office he used to be with within one year from his resignation, retirement or
separation from public office.[13] The PCGG did not seek any reconsideration of the
ruling.[14]
It appears that Civil Case Nos. 0096-0099 were transferred from
the Sandiganbayans Second Division to the Fifth Division. [15] In its resolution dated
July 11, 2001, the Fifth Division of the Sandiganbayan denied the other PCGGs
motion to disqualify respondent Mendoza. [16] It adopted the resolution of
its Second Division dated April 22, 1991, and observed that the arguments were
the same in substance as the motion to disqualify filed in Civil Case No. 0005. The
PCGG sought reconsideration of the ruling but its motion was denied in its resolution
dated December 5, 2001.[17]
88

Hence, the recourse to this Court by the PCGG assailing the resolutions dated
July
11,
2001
and
December
5,
2001
of
the Fifth
Division of
the Sandiganbayan via a petition forcertiorari and prohibition under Rule 65 of the
1997 Rules of Civil Procedure. [18] The PCGG alleged that the Fifth Division acted
with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing
the assailed resolutions contending that: 1) Rule 6.03 of the Code of Professional
Responsibility prohibits a former government lawyer from accepting employment in
connection with any matter in which he intervened; 2) the prohibition in the Rule is
not time-bound; 3) that Central Bank could not waive the objection to respondent
Mendozas appearance on behalf of the PCGG; and 4) the resolution in Civil Case No.
0005 was interlocutory, thus res judicata does not apply.[19]
The petition at bar raises procedural and substantive issues of law. In view,
however, of the import and impact of Rule 6.03 of the Code of Professional
Responsibility to the legal profession and the government, we shall cut our way and
forthwith resolve the substantive issue.
I
Substantive Issue
The key issue is whether Rule 6.03 of the Code of Professional Responsibility
applies to respondent Mendoza. Again, the prohibition states: A lawyer shall not,
after leaving government service, accept engagement or employment in connection
with any matter in which he had intervened while in the said service.
I.A. The history of Rule 6.03
A proper resolution of this case necessitates that we trace the historical
lineage of Rule 6.03 of the Code of Professional Responsibility.
In the seventeenth and eighteenth centuries, ethical standards for lawyers
were pervasive in England and other parts of Europe. The early statements of
standards did not resemble modern codes of conduct. They were not detailed or
collected in one source but surprisingly were comprehensive for their time. The
principal thrust of the standards was directed towards the litigation conduct of
lawyers. It underscored the central duty of truth and fairness in litigation as superior
to any obligation to the client. The formulations of the litigation duties were at times
intricate, including specific pleading standards, an obligation to inform the court of
falsehoods and a duty to explore settlement alternatives. Most of the lawyer's other
basic duties -- competency, diligence, loyalty, confidentiality, reasonable fees and
service to the poor -- originated in the litigation context, but ultimately had broader
application to all aspects of a lawyer's practice.

89

The forms of lawyer regulation in colonial and early post-revolutionary

America did not differ markedly from those in England. The colonies and early
states used oaths, statutes, judicial oversight, and procedural rules to govern
attorney behavior. The difference from England was in the pervasiveness and
continuity of such regulation. The standards set in England varied over time, but the
variation in early America was far greater. The American regulation fluctuated within
a single colony and differed from colony to colony. Many regulations had the effect
of setting some standards of conduct, but the regulation was sporadic, leaving gaps
in the substantive standards. Only three of the traditional core duties can be fairly
characterized as pervasive in the formal, positive law of the colonial and postrevolutionary period: the duties of litigation fairness, competency and reasonable
fees.[20]
The nineteenth century has been termed the dark ages of legal ethics in
the United States. By mid-century, American legal reformers were filling the void in
two ways. First, David Dudley Field, the drafter of the highly influential New York
Field Code, introduced a new set of uniform standards of conduct for lawyers. This
concise statement of eight statutory duties became law in several states in the
second half of the nineteenth century. At the same time, legal educators, such as
David Hoffman and George Sharswood, and many other lawyers were working to
flesh out the broad outline of a lawyer's duties. These reformers wrote about legal
ethics in unprecedented detail and thus brought a new level of understanding to a
lawyer's duties. A number of mid-nineteenth century laws and statutes, other than
the Field Code, governed lawyer behavior. A few forms of colonial regulations e.g.,
the do no falsehood oath and the deceit prohibitions -- persisted in some states.
Procedural law continued to directly, or indirectly, limit an attorney's litigation
behavior. The developing law of agency recognized basic duties of competence,
loyalty and safeguarding of client property. Evidence law started to recognize with
less equivocation the attorney-client privilege and its underlying theory of
confidentiality. Thus, all of the core duties, with the likely exception of service to the
poor, had some basis in formal law. Yet, as in the colonial and early postrevolutionary periods, these standards were isolated and did not provide a
comprehensive statement of a lawyer's duties. The reformers, by contrast, were
more comprehensive in their discussion of a lawyer's duties, and they actually
ushered a new era in American legal ethics. [21]
Toward the end of the nineteenth century, a new form of ethical standards
began to guide lawyers in their practice the bar association code of legal ethics. The
bar codes were detailed ethical standards formulated by lawyers for lawyers. They
combined the two primary sources of ethical guidance from the nineteenth century.
Like the academic discourses, the bar association codes gave detail to the statutory
statements of duty and the oaths of office. Unlike the academic lectures, however,
the bar association codes retained some of the official imprimatur of the statutes
and oaths. Over time, the bar association codes became extremely popular that
90

states adopted them as binding rules of law. Critical to the development of the new
codes was the re-emergence of bar associations themselves. Local bar associations
formed sporadically during the colonial period, but they disbanded by the early
nineteenth century. In the late nineteenth century, bar associations began to form
again, picking up where their colonial predecessors had left off. Many of the new bar
associations, most notably the Alabama State Bar Association and the American Bar
Association, assumed on the task of drafting substantive standards of conduct for
their members.[22]
In 1887, Alabama became the first state with a comprehensive bar association
code of ethics. The 1887 Alabama Code of Ethics was the model for several states
codes, and it was the foundation for the American Bar Association's (ABA) 1908
Canons of Ethics.[23]
In 1917, the Philippine Bar found that the oath and duties of a lawyer were
insufficient to attain the full measure of public respect to which the legal profession
was entitled. In that year, the Philippine Bar Association adopted as its own, Canons
1 to 32 of the ABA Canons of Professional Ethics. [24]
As early as 1924, some ABA members have questioned the form and function
of the canons. Among their concerns was the revolving door or the process by
which lawyers and others temporarily enter government service from private life
and then leave it for large fees in private practice, where they can exploit
information, contacts, and influence garnered in government service. [25] These
concerns were classified as adverse-interest conflicts and congruent-interest
conflicts. Adverse-interest conflicts exist where the matter in which the former
government lawyer represents a client in private practice is substantially related to
a matter that the lawyer dealt with while employed by the government and the
interests of the current and former are adverse. [26] On the other hand, congruentinterest representation conflicts are unique to government lawyers and apply
primarily to former government lawyers. [27] For several years, the ABA attempted to
correct and update the canons through new canons, individual amendments and
interpretative opinions. In 1928, the ABA amended one canon and added thirteen
new canons.[28] To deal with problems peculiar to former government
lawyers, Canon 36 was minted which disqualified them both for adverse-interest
conflicts and congruent-interest representation conflicts. [29] The rationale for
disqualification is rooted in a concern that the government lawyers largely
discretionary actions would be influenced by the temptation to take action on behalf
of the government client that later could be to the advantage of parties who might
later become private practice clients.[30] Canon 36 provides, viz.:
36. Retirement from judicial position or public employment

91

A lawyer should not accept employment as an advocate in any matter upon the
merits of which he has previously acted in a judicial capacity.
A lawyer, having once held public office or having been in the public
employ should not, after his retirement, accept employment in connection
with any matter he has investigated or passed upon while in such office or
employ.
Over the next thirty years, the ABA continued to amend many of the canons and
added Canons 46 and 47 in 1933 and 1937, respectively. [31]
In 1946, the Philippine Bar Association again adopted as its own Canons 33
to 47 of the ABA Canons of Professional Ethics.[32]
By the middle of the twentieth century, there was growing consensus that
the ABA Canons needed more meaningful revision. In 1964, the ABA President-elect
Lewis Powell asked for the creation of a committee to study the adequacy and
effectiveness of the ABA Canons. The committee recommended that the canons
needed substantial revision, in part because the ABA Canons failed to distinguish
between the inspirational and the proscriptive and were thus unsuccessful in
enforcement. The legal profession in the United States likewise observed thatCanon
36 of the ABA Canons of Professional Ethics resulted in unnecessary disqualification
of lawyers for negligible participation in matters during their employment with the
government.
The unfairness of Canon 36 compelled ABA to replace it in the 1969
ABA Model Code of Professional Responsibility.[33] The basic ethical principles
in the Code of Professional Responsibility were supplemented by Disciplinary Rules
that defined minimum rules of conduct to which the lawyer must adhere. [34] In the
case of Canon 9, DR 9-101(b)[35]became the applicable supplementary norm. The
drafting committee reformulated the canons into the Model Code of Professional
Responsibility, and, in August of 1969, the ABA House of Delegates approved
the Model Code.[36]
Despite these amendments, legal practitioners remained unsatisfied with the
results and indefinite standards set forth by DR 9-101(b) and the Model Code of
Professional Responsibility as a whole. Thus, in August 1983, the ABA adopted
new Model Rules of Professional Responsibility. The Model Rules used the
restatement format, where the conduct standards were set-out in rules, with
comments following each rule. The new format was intended to give better
guidance and clarity for enforcement because the only enforceable standards were
the black letter Rules. The Model Rules eliminated the broad canons altogether and
reduced the emphasis on narrative discussion, by placing comments after the rules
and limiting comment discussion to the content of the black letter rules. The Model
92

Rules made a number of substantive improvements particularly with regard to

conflicts of interests.[37] In particular, the ABA did away with Canon 9, citing
the hopeless dependence of the concept of impropriety on the subjective
views of anxious clients as well as the norms indefinite nature. [38]
In cadence with these changes, the Integrated Bar of the Philippines (IBP)
adopted a proposed Code of Professional Responsibility in 1980 which it
submitted to this Court for approval. The Code was drafted to reflect the local
customs, traditions, and practices of the bar and to conform with new realities. On
June 21, 1988, this Court promulgated the Code of Professional
Responsibility.[39] Rule 6.03 of the Code of Professional Responsibility deals
particularly with former government lawyers, and provides, viz.:
Rule 6.03 A lawyer shall not, after leaving government service, accept engagement
or employment in connection with any matter in which he had intervened while in
said service.
Rule 6.03 of the Code of Professional Responsibility retained the general
structure of paragraph 2, Canon 36 of the Canons of Professional Ethics
but replaced the expansive phraseinvestigated and passed upon with the
word intervened. It is, therefore, properly applicable to both adverse-interest
conflicts and congruent-interest conflicts.
The case at bar does not involve the adverse interest aspect of Rule
6.03. Respondent Mendoza, it is conceded, has no adverse interest problem when
he acted as Solicitor General in Sp. Proc. No. 107812 and later as counsel of
respondents Tan, et al. in Civil Case No. 0005 and Civil Case Nos. 0096-0099 before
the Sandiganbayan. Nonetheless, there remains the issue of whether there
exists a congruent-interest conflict sufficient to disqualify respondent Mendoza
from representing respondents Tan, et al.
I.B. The congruent interest aspect of Rule 6.03
The key to unlock Rule 6.03 lies in comprehending first, the meaning
of matter referred to in the rule and, second, the metes and bounds of
the intervention made by the former government lawyer on the matter. The
American Bar Association in its Formal Opinion 342, defined matter as any
discrete, isolatable act as well as identifiable transaction or conduct involving a
particular situation and specific party, and not merely an act of drafting, enforcing
or interpreting government or agency procedures, regulations or laws, or briefing
abstract principles of law.
Firstly, it is critical that we pinpoint the matter which was the subject of
intervention by respondent Mendoza while he was the Solicitor General. The PCGG
93

relates the following acts of respondent Mendoza as constituting the matter where
he intervened as a Solicitor General, viz:[40]
The PCGGs Case for Atty. Mendozas Disqualification
The PCGG imputes grave abuse of discretion on the part of the Sandiganbayan (Fifth
Division) in issuing the assailed Resolutions dated July 11, 2001 and December 5,
2001 denying the motion to disqualify Atty. Mendoza as counsel for respondents
Tan, et al. The PCGG insists that Atty. Mendoza, as then Solicitor General, actively
intervened in the closure of GENBANK by advising the Central Bank on how to
proceed with the said banks liquidation and even filing the petition for its liquidation
with the CFI of Manila.
As proof thereof, the PCGG cites the Memorandum dated March 29, 1977 prepared
by certain key officials of the Central Bank, namely, then Senior Deputy Governor
Amado R. Brinas, then Deputy Governor Jaime C. Laya, then Deputy Governor and
General Counsel Gabriel C. Singson, then Special Assistant to the Governor Carlota
P. Valenzuela, then Asistant to the Governor Arnulfo B. Aurellano and then Director
of Department of Commercial and Savings Bank Antonio T. Castro, Jr., where they
averred that on March 28, 1977, they had a conference with the Solicitor General
(Atty. Mendoza), who advised them on how to proceed with the liquidation of
GENBANK. The pertinent portion of the said memorandum states:
Immediately after said meeting, we had a conference with the Solicitor General and
he advised that the following procedure should be taken:
1. Management should submit a memorandum to the Monetary Board
reporting that studies and evaluation had been made since the last
examination of the bank as of August 31, 1976 and it is believed that the
bank can not be reorganized or placed in a condition so that it may be
permitted to resume business with safety to its depositors and creditors
and the general public.
2. If the said report is confirmed by the Monetary Board, it shall order the
liquidation of the bank and indicate the manner of its liquidation and
approve a liquidation plan.
3. The Central Bank shall inform the principal stockholders of Genbank of the
foregoing decision to liquidate the bank and the liquidation plan
approved by the Monetary Board.
4. The Solicitor General shall then file a petition in the Court of First Instance
reciting the proceedings which had been taken and praying the
assistance of the Court in the liquidation of Genbank.
94

The PCGG further cites the Minutes No. 13 dated March 29, 1977 of the Monetary
Board where it was shown that Atty. Mendoza was furnished copies of pertinent
documents relating to GENBANK in order to aid him in filing with the court the
petition for assistance in the banks liquidation. The pertinent portion of the said
minutes reads:
The Board decided as follows:
...
E. To authorize Management to furnish the Solicitor General with a copy
of the subject memorandum of the Director, Department of
Commercial and Savings Bank dated March 29, 1977, together with
copies of:
1.

Memorandum of the Deputy Governor, Supervision and

Examination Sector, to the Monetary Board, dated March 25,
1977, containing a report on the current situation of Genbank;

2. Aide Memoire on the Antecedent Facts Re: General Bank and Trust
Co., dated March 23, 1977;
3. Memorandum of the Director, Department of Commercial and
Savings Bank, to the Monetary Board, dated March 24, 1977,
submitting, pursuant to Section 29 of R.A. No. 265, as amended
by P.D. No. 1007, a repot on the state of insolvency of Genbank,
together with its attachments; and
4. Such other documents as may be necessary or needed by the
Solicitor General for his use in then CFI-praying the assistance of
the Court in the liquidation of Genbank.
Beyond doubt, therefore, the matter or the act of respondent Mendoza as
Solicitor General involved in the case at bar is advising the Central Bank, on how to
proceed with the said banks liquidation and even filing the petition for its
liquidation with the CFI of Manila. In fine, the Court should resolve whether his act of
advising the Central Bank on the legal procedure to liquidate GENBANK is
included within the concept of matter under Rule 6.03. The procedure of
liquidation is given in black and white in Republic Act No. 265, section 29, viz:
The provision reads in part:
SEC. 29. Proceedings upon insolvency. Whenever, upon examination
by the head of the appropriate supervising or examining department or his
95

examiners or agents into the condition of any bank or non-bank financial

intermediary performing quasi-banking functions, it shall be disclosed that
the condition of the same is one of insolvency, or that its continuance in
business would involve probable loss to its depositors or creditors, it shall be
the duty of the department head concerned forthwith, in writing, to inform
the Monetary Board of the facts, and the Board may, upon finding the
statements of the department head to be true, forbid the institution to do
business in the Philippines and shall designate an official of the Central Bank
or a person of recognized competence in banking or finance, as receiver to
immediately take charge of its assets and liabilities, as expeditiously as
possible collect and gather all the assets and administer the same for the
benefit of its creditors, exercising all the powers necessary for these
purposes including, but not limited to, bringing suits and foreclosing
mortgages in the name of the bank or non-bank financial intermediary
performing quasi-banking functions.
...
If the Monetary Board shall determine and confirm within the said
period that the bank or non-bank financial intermediary performing quasibanking functions is insolvent or cannot resume business with safety to its
depositors, creditors and the general public, it shall, if the public interest
requires, order its liquidation, indicate the manner of its liquidation and
approve a liquidation plan. The Central Bank shall, by the Solicitor General,
file a petition in the Court of First Instance reciting the proceedings which
have been taken and praying the assistance of the court in the liquidation of
such institution. The court shall have jurisdiction in the same proceedings to
adjudicate disputed claims against the bank or non-bank financial
intermediary performing quasi-banking functions and enforce individual
liabilities of the stockholders and do all that is necessary to preserve the
assets of such institution and to implement the liquidation plan approved by
the Monetary Board. The Monetary Board shall designate an official of the
Central Bank, or a person of recognized competence in banking or finance,
as liquidator who shall take over the functions of the receiver previously
appointed by the Monetary Board under this Section. The liquidator shall,
with all convenient speed, convert the assets of the banking institution or
non-bank financial intermediary performing quasi-banking functions to
money or sell, assign or otherwise dispose of the same to creditors and
other parties for the purpose of paying the debts of such institution and he
may, in the name of the bank or non-bank financial intermediary performing
quasi-banking functions, institute such actions as may be necessary in the
appropriate court to collect and recover accounts and assets of such
institution.

96

The provisions of any law to the contrary notwithstanding, the actions

of the Monetary Board under this Section and the second paragraph of
Section 34 of this Act shall be final and executory, and can be set aside by
the court only if there is convincing proof that the action is plainly arbitrary
and made in bad faith. No restraining order or injunction shall be issued by
the court enjoining the Central Bank from implementing its actions under
this Section and the second paragraph of Section 34 of this Act, unless there
is convincing proof that the action of the Monetary Board is plainly arbitrary
and made in bad faith and the petitioner or plaintiff files with the clerk or
judge of the court in which the action is pending a bond executed in favor of
the Central Bank, in an amount to be fixed by the court. The restraining
order or injunction shall be refused or, if granted, shall be dissolved upon
filing by the Central Bank of a bond, which shall be in the form of cash or
Central Bank cashier(s) check, in an amount twice the amount of the bond
of the petitioner or plaintiff conditioned that it will pay the damages which
the petitioner or plaintiff may suffer by the refusal or the dissolution of the
injunction. The provisions of Rule 58 of the New Rules of Court insofar as
they are applicable and not inconsistent with the provisions of this Section
shall govern the issuance and dissolution of the restraining order or
injunction contemplated in this Section.
Insolvency, under this Act, shall be understood to mean the inability of
a bank or non-bank financial intermediary performing quasi-banking
functions to pay its liabilities as they fall due in the usual and ordinary
course of business. Provided, however, That this shall not include the
inability to pay of an otherwise non-insolvent bank or non-bank financial
intermediary performing quasi-banking functions caused by extraordinary
demands induced by financial panic commonly evidenced by a run on the
bank or non-bank financial intermediary performing quasi-banking functions
in the banking or financial community.
The appointment of a conservator under Section 28-A of this Act or the
appointment of a receiver under this Section shall be vested exclusively with
the Monetary Board, the provision of any law, general or special, to the
contrary notwithstanding. (As amended by PD Nos. 72, 1007, 1771 & 1827,
Jan. 16, 1981)
We hold that this advice given by respondent Mendoza on the procedure to
liquidate GENBANK is not the matter contemplated by Rule 6.03 of the Code of
Professional Responsibility. ABA Formal Opinion No. 342 is clear as daylight in
stressing that the drafting, enforcing or interpreting government or agency
procedures, regulations or laws, or briefing abstract principles of law are acts
which do not fall within the scope of the term matter and cannot disqualify.

97

Secondly, it can even be conceded for the sake of argument that the above act
of respondent Mendoza falls within the definition of matter per ABA Formal Opinion
No. 342. Be that as it may, the said act of respondent Mendoza which is
the matter involved in Sp. Proc. No. 107812 is entirely different from
the matter involved in Civil Case No. 0096. Again, the plain facts speak for
themselves. It is given that respondent Mendoza had nothing to do with the decision
of the Central Bank to liquidate GENBANK. It is also given that he did not participate
in the sale of GENBANK to Allied Bank. The matter where he got himself
involved was in informing Central Bank on the procedure provided by law to
liquidate GENBANK thru the courts and in filing the necessary petition in Sp. Proc.
No. 107812 in the then Court of First Instance. The subject matter of Sp. Proc.
No. 107812, therefore, is not the same nor is related to but is different
from the subject matter in Civil Case No. 0096. Civil Case No. 0096 involves
the sequestration of the stocks owned by respondents Tan, et al., in Allied Bank
on the alleged ground that they are ill-gotten. The case does not involve the
liquidation of GENBANK. Nor does it involve the sale of GENBANK to Allied Bank.
Whether the shares of stock of the reorganized Allied Bank are ill-gotten is far
removed from the issue of the dissolution and liquidation of GENBANK. GENBANK
was liquidated by the Central Bank due, among others, to the alleged banking
malpractices of its owners and officers. In other words, the legality of the liquidation
of GENBANK is not an issue in the sequestration cases. Indeed, the jurisdiction of
the PCGG does not include the dissolution and liquidation of banks. It goes without
saying that Code 6.03 of the Code of Professional Responsibility cannot apply to
respondent Mendoza because his alleged intervention while a Solicitor
General in Sp. Proc. No. 107812 is an intervention on a matter different
from the matter involved in Civil Case No. 0096.
Thirdly,
we
now
slide
to
the
metes
and
the intervention contemplated by Rule 6.03. Intervene means, viz.:

bounds

of

1: to enter or appear as an irrelevant or extraneous feature or circumstance . . . 2:

to occur, fall, or come in between points of time or events . . . 3: to come in or
between by way of hindrance or modification: INTERPOSE . . . 4: to occur or lie
between two things (Paris, where the same city lay on both sides of an intervening
river . . .)[41]
On the other hand, intervention is defined as:
1: the act or fact of intervening: INTERPOSITION; 2: interference that
may affect the interests of others.[42]
There are, therefore, two possible interpretations of the word intervene. Under
the first interpretation, intervene includes participation in a proceeding even if
the intervention is irrelevant or has no effect or little influence. [43] Under the second
98

interpretation, intervene only includes an act of a person who has the power to
influence the subject proceedings. [44]We hold that this second meaning is more
appropriate to give to the word intervention under Rule 6.03 of the Code of
Professional Responsibility in light of its history. The evils sought to be remedied by
the Rule do not exist where the government lawyer does an act which can be
considered as innocuous such as x x x drafting, enforcing or interpreting
government or agency procedures, regulations or laws, or briefing abstract
principles of law.
In fine, the intervention cannot be insubstantial and insignificant.
Originally, Canon 36 provided that a former government lawyer should not, after his
retirement, accept employment in connection with any matter which he has
investigated or passed upon while in such office or employ. As aforediscussed,
the broad sweep of the phrase which he has investigated or passed upon resulted in
unjust disqualification of former government lawyers. The 1969 Code restricted its
latitude, hence, in DR 9-101(b), the prohibition extended only to a matter in which
the lawyer, while in the government service, had substantial responsibility. The
1983 Model Rules further constricted the reach of the rule. MR 1.11(a) provides that
a lawyer shall not represent a private client in connection with a matter in which the
lawyer participated personally and substantially as a public officer or
employee.
It is, however, alleged that the intervention of respondent Mendoza in Sp. Proc.
No. 107812 is significant and substantial. We disagree. For one, the petition in the
special proceedings is an initiatory pleading, hence, it has to be signed by
respondent Mendoza as the then sitting Solicitor General. For another, the record
is arid as to the actual participation of respondent Mendoza in the subsequent
proceedings. Indeed, the case was in slumberville for a long number of years. None
of the parties pushed for its early termination. Moreover, we note that the petition
filed merely seeks the assistance of the court in the liquidation of GENBANK. The
principal role of the court in this type of proceedings is to assist the Central Bank in
determining claims of creditors against the GENBANK. The role of the court is not
strictly as a court of justice but as an agent to assist the Central Bank in
determining the claims of creditors. In such a proceeding, the participation of the
Office of the Solicitor General is not that of the usual court litigator protecting the
interest of government.
II
Balancing Policy Considerations
To be sure, Rule 6.03 of our Code of Professional Responsibility represents a
commendable effort on the part of the IBP to upgrade the ethics of lawyers in the
government service. As aforestressed, it is a take-off from similar efforts especially
99

by the ABA which have not been without difficulties. To date, the legal profession in
the United States is still fine tuning its DR 9-101(b) rule.
In fathoming the depth and breadth of Rule 6.03 of our Code of Professional
Responsibility, the Court took account of various policy considerations to
assure that its interpretation and application to the case at bar will achieve its end
without necessarily prejudicing other values of equal importance. Thus, the rule was
not interpreted to cause a chilling effect on government recruitment of able
legal talent. At present, it is already difficult for government to match
compensation offered by the private sector and it is unlikely that government will be
able to reverse that situation. The observation is not inaccurate that the only card
that the government may play to recruit lawyers is have them defer present income
in return for the experience and contacts that can later be exchanged for higher
income in private practice.[45] Rightly, Judge Kaufman warned that the sacrifice of
entering government service would be too great for most men to endure should
ethical rules prevent them from engaging in the practice of a technical specialty
which they devoted years in acquiring and cause the firm with which they become
associated to be disqualified.[46] Indeed, to make government service more difficult
to exit can only make it less appealing to enter. [47]
In interpreting Rule 6.03, the Court also cast a harsh eye on its use as
a litigation tactic to harass opposing counsel as well as deprive his client of
competent legal representation. The danger that the rule will be misused to
bludgeon an opposing counsel is not a mere guesswork. The Court of Appeals for
the District of Columbia has noted the tactical use of motions to disqualify counsel
in order to delay proceedings, deprive the opposing party of counsel of its choice,
and harass and embarrass the opponent, and observed that the tactic was so
prevalent in large civil cases in recent years as to prompt frequent judicial and
academic commentary.[48] Even the United States Supreme Court found no quarrel
with the Court of Appeals description of disqualification motions as a dangerous
game.[49] In the case at bar, the new attempt to disqualify respondent Mendoza is
difficult to divine. The disqualification of respondent Mendoza has long been a dead
issue. It was resuscitated after the lapse of many years and only after PCGG has
lost many legal incidents in the hands of respondent Mendoza. For a fact, the
recycled motion for disqualification in the case at bar was filed more than four
years after the filing of the petitions for certiorari, prohibition and injunction with
the Supreme Court which were subsequently remanded to the Sandiganbayan and
docketed as Civil Case Nos. 0096-0099.[50] At the very least, the circumstances
under which the motion to disqualify in the case at bar were refiled put petitioners
motive as highly suspect.
Similarly, the Court in interpreting Rule 6.03 was not unconcerned with
the prejudice to the client which will be caused by its misapplication. It cannot
be doubted that granting a disqualification motion causes the client to lose not only
100

the law firm of choice, but probably an individual lawyer in whom the client has
confidence.[51] The client with a disqualified lawyer must start again often without
the benefit of the work done by the latter. [52] The effects of this prejudice to the right
to choose an effective counsel cannot be overstated for it can result in denial of due
process.
The Court has to consider also the possible adverse effect of a
truncated reading of the rule on the official independence of lawyers in
the government service. According to Prof. Morgan: An individual who has the
security of knowing he or she can find private employment upon leaving the
government is free to work vigorously, challenge official positions when he or she
believes them to be in error, and resist illegal demands by superiors. An employee
who lacks this assurance of private employment does not enjoy such freedom. [53] He
adds: Any system that affects the right to take a new job affects the ability to quit
the old job and any limit on the ability to quit inhibits official independence. [54] The
case at bar involves the position of Solicitor General, the office once
occupied by respondent Mendoza. It cannot be overly stressed that the position of
Solicitor General should be endowed with a great degree of independence.
It is this independence that allows the Solicitor General to recommend acquittal of
the innocent; it is this independence that gives him the right to refuse to defend
officials who violate the trust of their office. Any undue dimunition of the
independence of the Solicitor General will have a corrosive effect on the rule of law.
No less significant a consideration is the deprivation of the former
government lawyer of the freedom to exercise his profession. Given the
current state of our law, the disqualification of a former government lawyer may
extend to all members of his law firm. [55] Former government lawyers stand in
danger of becoming the lepers of the legal profession.
It is, however, proffered that the mischief sought to be remedied by Rule 6.03 of
the Code of Professional Responsibility is the possible appearance of
impropriety and loss of public confidence in government. But as well observed, the
accuracy of gauging public perceptions is a highly speculative exercise at
best[56] which can lead to untoward results. [57] No less than Judge Kaufman doubts
that the lessening of restrictions as to former government attorneys will have any
detrimental effect on that free flow of information between the government-client
and its attorneys which the canons seek to protect. [58] Notably, the appearance
of impropriety theory has been rejected in the 1983 ABA Model Rules of
Professional Conduct[59]and some courts have abandoned per se disqualification
based on Canons 4 and 9 when an actual conflict of interest exists, and demand an
evaluation of the interests of the defendant, government, the witnesses in the case,
and the public.[60]

101

It is also submitted that the Court should apply Rule 6.03 in all its strictness for
it correctly disfavors lawyers who switch sides. It is claimed that switching sides
carries the danger that former government employee may compromise
confidential official information in the process. But this concern does not cast a
shadow in the case at bar. As afore-discussed, the act of respondent Mendoza in
informing the Central Bank on the procedure how to liquidate GENBANK is
a different matter from the subject matter of Civil Case No. 0005 which is about
the sequestration of the shares of respondents Tan, et al., in Allied Bank.
Consequently, the danger that confidential official information might be divulged is
nil, if not inexistent. To be sure, there are no inconsistent sides to be bothered
about in the case at bar. For there is no question that in lawyering for respondents
Tan, et al., respondent Mendoza is not working against the interest of Central Bank.
On the contrary, he is indirectly defending the validity of the action of Central Bank
in liquidating GENBANK and selling it later to Allied Bank. Their interests coincide
instead of colliding. It is for this reason that Central Bank offered no objection to
the lawyering of respondent Mendoza in Civil Case No. 0005 in defense of
respondents Tan, et al. There is no switching of sides for no two sides are
involved.
It is also urged that the Court should consider that Rule 6.03 is intended to
avoid conflict of loyalties, i.e., that a government employee might be subject to a
conflict of loyalties while still in government service. [61] The example given by the
proponents of this argument is that a lawyer who plans to work for the company
that he or she is currently charged with prosecuting might be tempted to prosecute
less vigorously.[62] In the cautionary words of the Association of the Bar Committee in
1960: The greatest public risks arising from post employment conduct may well
occur during the period of employment through the dampening of aggressive
administration of government policies. [63] Prof. Morgan, however, considers this
concern as probably excessive.[64] He opines x x x it is hard to imagine that a private
firm would feel secure hiding someone who had just been disloyal to his or her last
client the government. Interviews with lawyers consistently confirm that law firms
want the best government lawyers the ones who were hardest to beat not the least
qualified or least vigorous advocates. [65] But again, this particular concern is a
non factor in the case at bar. There is no charge against respondent Mendoza
that he advised Central Bank on how to liquidate GENBANK with an eye in later
defending respondents Tan, et al. of Allied Bank. Indeed, he continues defending
both the interests of Central Bank and respondents Tan, et al. in the above cases.
Likewise, the Court is nudged to consider the need to curtail what is perceived
as the excessive influence of former officials or their clout. [66] Prof. Morgan
again warns against extending this concern too far. He explains the rationale for his
warning, viz: Much of what appears to be an employees influence may actually be
the power or authority of his or her position, power that evaporates quickly upon
departure from government x x x. [67] More, he contends that the concern can
102

be demeaning to those sitting in government. To quote him further: x x x The idea

that, present officials make significant decisions based on friendship rather than on
the merit says more about the present officials than about their former co-worker
friends. It implies a lack of will or talent, or both, in federal officials that does not
seem justified or intended, and it ignores the possibility that the officials will tend to
disfavor their friends in order to avoid even the appearance of favoritism. [68]
III
The question of fairness
Mr. Justices Panganiban and Carpio are of the view, among others, that the
congruent interest prong of Rule 6.03 of the Code of Professional Responsibility
should be subject to a prescriptive period. Mr. Justice Tinga opines that the rule
cannot apply retroactively to respondent Mendoza. Obviously, and rightly so, they
are disquieted by the fact that (1) when respondent Mendoza was the Solicitor
General, Rule 6.03 has not yet adopted by the IBP and approved by this Court, and
(2) the bid to disqualify respondent Mendoza was made after the lapse of time
whose length cannot, by any standard, qualify as reasonable. At bottom, the point
they make relates to the unfairness of the rule if applied without any prescriptive
period and retroactively, at that. Their concern is legitimate and deserves to be
initially addressed by the IBP and our Committee on Revision of the Rules of Court.
IN VIEW WHEREOF, the petition assailing the resolutions dated July 11, 2001
and December 5, 2001 of the Fifth Division of the Sandiganbayan in Civil Case Nos.
0096-0099 is denied.
No cost.
SO ORDERED.
Davide, Jr., C.J., Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona and Garcia, JJ., concur.
Panganiban and Tinga, JJ., Please see separate opinion.
Carpio-Morales and Callejo, Sr., JJ., Please see dissenting opinion.
Azcuna, J., I was former PCGG Chair.
Chico-Nazario, J., No part.

103

G.R. No. 104599 March 11, 1994

JON
DE
YSASI
III, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION (FOURTH DIVISION), CEBU CITY,
and JON DE YSASI,respondents.
F.B. Santiago, Nalus & Associates for petitioner.
Ismael A. Serfino for private respondent.

REGALADO, J.:
The adage that blood is thicker than water obviously stood for naught in this case,
notwithstanding the vinculum of paternity and filiation between the parties. It would
indeed have been the better part of reason if herein petitioner and private
respondent had reconciled their differences in an extrajudicial atmosphere of
familial amity and with the grace of reciprocal concessions. Father and son opted
instead for judicial intervention despite the inevitable acrimony and negative
publicity. Albeit with distaste, the Court cannot proceed elsewise but to resolve their
dispute with the same reasoned detachment accorded any judicial proceeding
before it.
The records of this case reveal that petitioner was employed by his father, herein
private respondent, as farm administrator of Hacienda Manucao in Hinigaran,
Negros Occidental sometime in April, 1980. Prior thereto, he was successively
employed as sales manager of Triumph International (Phil.), Inc. and later as
operations manager of Top Form Manufacturing (Phil.), Inc. His employment as farm

104

administrator was on a fixed salary, with other allowances covering housing, food,
light, power, telephone, gasoline, medical and dental expenses.
As farm administrator, petitioner was responsible for the supervision of daily
activities and operations of the sugarcane farm such as land preparation, planting,
weeding, fertilizing, harvesting, dealing with third persons in all matters relating to
the hacienda and attending to such other tasks as may be assigned to him by
private respondent. For this purpose, he lived on the farm, occupying the upper
floor of the house there.
Following his marriage on June 6, 1982, petitioner moved to Bacolod City with his
wife and commuted to work daily. He suffered various ailments and was hospitalized
on two separate occasions in June and August, 1982. In November, 1982, he
underwent fistulectomy, or the surgical removal of the fistula, a deep sinuous ulcer.
During his recuperation which lasted over four months, he was under the care of Dr.
Patricio Tan. In June, 1983, he was confined for acute gastroenteritis and, thereafter,
for infectious hepatitis from December, 1983 to January, 1984.
During the entire periods of petitioner's illnesses, private respondent took care of
his medical expenses and petitioner continued to receive compensation. However,
in April, 1984, without due notice, private respondent ceased to pay the latter's
salary. Petitioner made oral and written demands for an explanation for the sudden
withholding of his salary from Atty. Apolonio Sumbingco, private respondent's
auditor and legal adviser, as well as for the remittance of his salary. Both demands,
however, were not acted upon.
Petitioner then filed an action with the National Labor Relations Commission (NLRC,
for brevity), Regional Arbitration Branch No. VI, Bacolod City, on October 17, 1984,
docketed therein as RAB Case No. 0452-84, against private respondent for illegal
dismissal with prayer for reinstatement without loss of seniority rights and payment
of full back wages, thirteenth month pay for 1983, consequential, moral and
exemplary damages, as well as attorney's fees.
On July 31, 1991, said complaint for illegal dismissal was dismissed by the
NLRC, 1 holding that petitioner abandoned his work and that the termination of his
employment was for a valid cause, but ordering private respondent to pay petitioner
the amount of P5,000.00 as penalty for his failure to serve notice of said termination
of employment to the Department of Labor and Employment as required by Batas
Pambansa Blg. 130 and consonant with this Court's ruling in Wenphil Corporation
vs. National Labor Relations Commission, et al. 2 On appeal to the Fourth Division of
the NLRC, Cebu City, said decision was affirmed in toto. 3
His motion for reconsideration 4 of said decision having been denied for lack of
merit, 5 petitioner filed this petition presenting the following issues for resolution: (1)
105

whether or not the petitioner was illegally dismissed; (2) whether or not he is
entitled to reinstatement, payment of back wages, thirteenth month pay and other
benefits; and (3) whether or not he is entitled to payment of moral and exemplary
damages and attorney's fees because of illegal dismissal. The discussion of these
issues will necessarily subsume the corollary questions presented by private
respondent, such as the exact date when petitioner ceased to function as farm
administrator, the character of the pecuniary amounts received by petitioner from
private respondent, that is, whether the same are in the nature of salaries or
pensions, and whether or not there was abandonment by petitioner of his functions
as farm administrator.
In his manifestation dated September 14, 1992, the Solicitor General recommended
a modification of the decision of herein public respondent sustaining the findings
and conclusions of the Executive Labor Arbiter in RAB Case No. 0452-84, 6 for which
reason the NLRC was required to submit its own comment on the petition. In
compliance with the Court's resolution of November 16, 1992, 7 NLRC filed its
comment on February 12, 1992 largely reiterating its earlier position in support of
the findings of the Executive Labor Arbiter. 8
Before proceeding with a discussion of the issues, the observation of the labor
arbiter is worth noting:
This case is truly unique. What makes this case unique is the fact that
because of the special relationship of the parties and the nature of the
action involved, this case could very well go down (in) the annals of the
Commission as perhaps the first of its kind. For this case is an action
filed by an only son, his father's namesake, the only child and therefore
the only heir against his own father. 9
Additionally, the Solicitor General remarked:
. . . After an exhaustive reading of the records, two (2) observations
were noted that may justify why this labor case deserves special
considerations. First, most of the complaints that petitioner and private
respondent had with each other, were personal matters affecting
father and son relationship. And secondly, if any of the complaints
pertain to their work, they allow their personal relationship to come in
the way. 10
I. Petitioner maintains that his dismissal from employment was illegal because of
want of just cause therefor and non-observance of the requirements of due process.
He also charges the NLRC with grave abuse of discretion in relying upon the findings
of the executive labor arbiter who decided the case but did not conduct the
hearings thereof.
106

Private respondent, in refutation, avers that there was abandonment by petitioner

of his functions as farm administrator, thereby arming private respondent with a
ground to terminate his employment at Hacienda Manucao. It is also contended that
it is wrong for petitioner to question the factual findings of the executive labor
arbiter and the NLRC as only questions of law may be appealed for resolution by this
Court. Furthermore, in seeking the dismissal of the instant petition, private
respondent faults herein petitioner for failure to refer to the corresponding pages of
the transcripts of stenographic notes, erroneously citing Sections 15(d) and 16(d),
Rule
44
(should
be
Section
16[c]
and
[d],
Rule 46 and Section 1[g], Rule 50) of the Rules of Court, which provide that want of
page references to the records is a ground for dismissal of an appeal.
Prefatorily, we take advertence of the provisions of Article 221 of the Labor Code
that technical rules of evidence prevailing in courts of law and equity shall not be
controlling, and that every and all reasonable means to speedily and objectively
ascertain the facts in each case shall be availed of, without regard to technicalities
of law or procedure in the interest of due process.
It is settled that it is not procedurally objectionable for the decision in a case to be
rendered by a judge, or a labor arbiter for that matter, other than the one who
conducted the hearing. The fact that the judge who heard the case was not the
judge who penned the decision does not impair the validity of the
judgment, 11 provided that he draws up his decision and resolution with due care
and makes certain that they truly and accurately reflect conclusions and final
dispositions on the bases of the facts of and evidence submitted in the case. 12
Thus, the mere fact that the case was initially assigned to Labor Arbiter Ricardo T.
Octavio, who conducted the hearings therein from December 5, 1984 to July 11,
1985, and was later transferred to Executive Labor Arbiter Oscar S. Uy, who
eventually decided the case, presents no procedural infirmity, especially considering
that there is a presumption of regularity in the performance of a public officer's
functions, 13 which petitioner has not successfully rebutted.
We are constrained to heed the underlying policy in the Labor Code relaxing the
application of technical rules of procedure in labor cases in the interest of due
process, ever mindful of the long-standing legal precept that rules of procedure
must be interpreted to help secure, not defeat, justice. For this reason, we cannot
indulge private respondent in his tendency to nitpick on trivial technicalities to
boost his arguments. The strength of one's position cannot be hinged on mere
procedural niceties but on solid bases in law and jurisprudence.
The fundamental guarantees of security of tenure and due process dictate that no
worker shall be dismissed except for just and authorized cause provided by law and
after due process. 14 Article 282 of the Labor Code enumerates the causes for which
107

an
employer
may
validly
terminate
an
employment,
to
wit:
(a) serious misconduct or willful disobedience by the employee of the lawful orders
of his employer or representative in connection with his work; (b) gross and habitual
neglect by the employee of his duties; (c) fraud or willful breach by the employee of
the trust reposed in him by his employer or duly authorized representative; (d)
commission of a crime or offense by the employee against the person of his
employer or any immediate member of his family or his duly authorized
representative; and (e) other causes analogous to the foregoing.
The employer may also terminate the services of any employee due to the
installation of labor saving devices, redundancy, retrenchment to prevent losses or
the closing or cessation of operation of the establishment or undertaking, unless the
closing is for the purpose of circumventing the pertinent provisions of the Labor
Code, by serving a written notice on the workers and the Department of Labor and
Employment at least one (1) month before the intended date thereof, with due
entitlement to the corresponding separation pay rates provided by law. 15 Suffering
from a disease by reason whereof the continued employment of the employee is
prohibited by law or is prejudicial to his and his co-employee's health, is also a
ground for termination of his services provided he receives the prescribed
separation pay. 16 On the other hand, it is well-settled that abandonment by an
employee of his work authorizes the employer to effect the former's dismissal from
employment. 17
After a careful review of the records of this case, we find that public respondent
gravely erred in affirming the decision of the executive labor arbiter holding that
petitioner abandoned his employment and was not illegally dismissed from such
employment.
For
want
of
substantial
bases,
in
fact
or
in law, we cannot give the stamp of finality and conclusiveness normally accorded
to the factual findings of an administrative agency, such as herein public
respondent NLRC, 18 as even decisions of administrative agencies which are
declared "final" by law are not exempt from judicial review when so warranted. 19
The following perceptive disquisitions of the Solicitor General on this point deserve
acceptance:
It is submitted that the absences of petitioner in his work from October
1982 to December 1982, cannot be construed as abandonment of work
because he has a justifiable excuse. Petitioner was suffering from
perennial abscess in the peri-anal around the anus and fistula under
the medical attention of Dr. Patricio Tan of Riverside Medical Center,
Inc., Bacolod City (Tsn, Vol. III, Dr. Tan, February 19, 1986 at 20-44).

108

This fact (was) duly communicated to private respondent by medical

bills sent to Hacienda Manucao (Tsn, Vol. III, Dr. Tan, January 22, 1987
at 49-50).
During the period of his illness and recovery, petitioner stayed in
Bacolod City upon the instruction(s) of private respondent to
recuperate thereat and to handle only administrative matters of the
hacienda in that city. As a manager, petitioner is not really obliged to
live and stay 24 hours a day inside Hacienda Manucao.
xxx xxx xxx
After evaluating the evidence within the context of the special
circumstances involved and basic human experience, petitioner's
illness and strained family relation with respondent Jon de Ysasi II may
be considered as justifiable reason for petitioner Jon de Ysasi III's
absence from work during the period of October 1982 to December
1982. In any event, such absence does not warrant outright dismissal
without notice and hearing.
xxx xxx xxx
The elements of abandonment as a ground for dismissal of an
employee are as follows:
(1) failure to report for work or absence without valid or
justifiable reason; and (2) clear intention to sever the
employer-employee tie (Samson Alcantara, Reviewer in
Labor and Social Legislation, 1989 edition, p. 133).
This Honorable Court, in several cases, illustrates what constitute
abandonment. In Dagupan Bus Company v. NLRC (191 SCRA 328), the
Court rules that for abandonment to arise, there must be a
concurrence of the intention to abandon and some overt act from
which it may be inferred that the employee has no more interest to
work. Similarly, in Nueva Ecija I Electric Cooperative, Inc. v. NLRC(184
SCRA 25), for abandonment to constitute a valid cause for termination
of employment, there must be a deliberate, unjustified refusal of the
employee to resume his employment. . . Mere absence is not sufficient;
it must be accompanied by overt acts unerringly pointing to the fact
that the employee simply does not want to work anymore.
There are significant indications in this case, that there is no
abandonment. First, petitioner's absence and his decision to leave his
109

residence inside Hacienda Manucao, is justified by his illness and

strained family relations. Second he has some medical certificates to
show his frail health. Third, once able to work, petitioner wrote a letter
(Annex "J") informing private respondent of his intention to assume
again his employment. Last, but not the least, he at once instituted a
complaint for illegal dismissal when he realized he was unjustly
dismissed. All these are indications that petitioner had no intention to
abandon his employment. 20
The records show that the parties herein do not dispute the fact of petitioner's
confinement in the hospital for his various afflictions which required medical
treatment. Neither can it be denied that private respondent was well aware of
petitioner's state of health as the former admittedly shouldered part of the medical
and hospital bills and even advised the latter to stay in Bacolod City until he was fit
to work again. The disagreement as to whether or not petitioner's ailments were so
serious as to necessitate hospitalization and corresponding periods for recuperation
is beside the point. The fact remains that on account of said illnesses, the details of
which were amply substantiated by the attending physician, 21 and as the records
are bereft of any suggestion of malingering on the part of petitioner, there was
justifiable cause for petitioner's absence from work. We repeat, it is clear, deliberate
and unjustified refusal to resume employment and not mere absence that is
required to constitute abandonment as a valid ground for termination of
employment. 22
With his position as farm administrator of Hacienda Manucao, petitioner
unmistakably may be classified as a managerial employee 23 to whom the law
grants an amount of discretion in the discharge of his duties. This is why when
petitioner stated that "I assigned myself where I want to go," 24 he was simply being
candid about what he could do within the sphere of his authority. His duties as farm
administrator did not strictly require him to keep regular hours or to be at the office
premises at all times, or to be subjected to specific control from his employer in
every aspect of his work. What is essential only is that he runs the farm as
efficiently and effectively as possible and, while petitioner may definitely not qualify
as a model employee, in this regard he proved to be quite successful, as there was
at least a showing of increased production during the time that petitioner was in
charge of farm operations.
If, as private respondent contends, he had no control over petitioner during the
years 1983 to 1984, this is because that was the period when petitioner was
recuperating from illness and on account of which his attendance and direct
involvement in farm operations were irregular and minimal, hence the supervision
and control exercisable by private respondent as employer was necessarily limited.
It goes without saying that the control contemplated refers only to matters relating

110

to his functions as farm administrator and could not extend to petitioner's personal
affairs and activities.
While it was taken for granted that for purposes of discharging his duties as farm
administrator, petitioner would be staying at the house in the farm, there really was
no explicit contractual stipulation (as there was no formal employment contract to
begin with) requiring him to stay therein for the duration of his employment or that
any transfer of residence would justify the termination of his employment. That
petitioner changed his residence should not be taken against him, as this is
undeniably among his basic rights, nor can such fact of transfer of residence per
se be a valid ground to terminate an employer-employee relationship.
Private respondent, in his pleadings, asserted that as he was yet uncertain of his
son's intention of returning to work after his confinement in the hospital, he kept
petitioner on the payroll, reported him as an employee of thehacienda for social
security purposes, and paid his salaries and benefits with the mandated deductions
therefrom until the end of December, 1982. It was only in January, 1983 when he
became convinced that petitioner would no longer return to work that he considered
the latter to have abandoned his work and, for this reason, no longer listed him as
an employee. According to private respondent, whatever amount of money was
given
to
petitioner
from
that
time
until
April, 1984 was in the nature of a pension or an allowance or mere gratuitous doles
from a father to a son, and not salaries as, in fact, none of the usual deductions
were made therefrom. It was only in April, 1984 that private respondent completely
stopped giving said pension or allowance when he was angered by what he heard
petitioner had been saying about sending him to jail.
Private respondent capitalizes on the testimony of one Manolo Gomez taken on oral
deposition regarding petitioner's alleged statement to him, "(h)e quemado los
(p)ue(n)tes de Manucao" ("I have burned my bridges with Manucao") as expressive
of petitioner's intention to abandon his job. In addition to insinuations of sinister
motives on the part of petitioner in working at the farm and thereafter abandoning
the job upon accomplishment of his objectives, private respondent takes the novel
position that the agreement to support his son after the latter abandoned the
administration of the farm legally converts the initial abandonment to implied
voluntary resignation. 25
As earlier mentioned, petitioner ripostes that private respondent undoubtedly knew
about petitioner's illness and even paid for his hospital and other medical bills. The
assertion regarding abandonment of work, petitioner argues, is further belied by his
continued performance of various services related to the operations of the farm
from May to the last quarter of 1983, his persistent inquiries from his father's
accountant and legal adviser about the reason why his pension or allowance was
discontinued since April, 1984, and his indication of having recovered and his
111

willingness and capability to resume his work at the farm as expressed in a letter
dated September 14, 1984. 26 With these, petitioner contends that it is immaterial
how the monthly pecuniary amounts are designated, whether as salary, pension or
allowance, with or without deductions, as he was entitled thereto in view of his
continued service as farm administrator. 27
To stress what was earlier mentioned, in order that a finding of abandonment may
justly be made there must be a concurrence of two elements, viz.: (1) the failure to
report for work or absence without valid or justifiable reason, and (2) a clear
intention to sever the employer-employee relationship, with the second element as
the more determinative factor and being manifested by some overt acts. Such
intent we find dismally wanting in this case.
It will be recalled that private respondent himself admitted being unsure of his son's
plans of returning to work. The absence of petitioner from work since mid-1982,
prolonged though it may have been, was not without valid causes of which private
respondent had full knowledge. As to what convinced or led him to believe that
petitioner was no longer returning to work, private respondent neither explains nor
substantiates by any reasonable basis how he arrived at such a conclusion.
Moreover, private respondent's claim of abandonment cannot be given credence as
even after January, 1983, when private respondent supposedly "became convinced"
that petitioner would no longer work at the farm, the latter continued to perform
services directly required by his position as farm administrator. These are duly and
correspondingly evidenced by such acts as picking up some farm
machinery/equipment from G.A. Machineries, Inc., 28 claiming and paying for
additional farm equipment and machinery shipped by said firm from Manila to
Bacolod through Zip Forwarders, 29 getting the payment of the additional cash
advances for molasses for crop year 1983-1984 from Agrotex Commodities,
Inc., 30 and
remitting
to
private
respondent
through
Atty. Sumbingco the sums collected along with receipts for medicine and oil. 31
It will be observed that all of these chores, which petitioner took care of, relate to
the normal activities and operations of the farm. True, it is a father's prerogative to
request or even command his child to run errands for him. In the present case,
however, considering the nature of these transactions, as well as the property
values and monetary sums involved, it is unlikely that private respondent would
leave the matter to just anyone. Prudence dictates that these matters be handled
by someone who can be trusted or at least be held accountable therefor, and who is
familiar with the terms, specifications and other details relative thereto, such as an
employee. If indeed petitioner had abandoned his job or was considered to have
done so by private respondent, it would be awkward, or even out of place, to expect
or to oblige petitioner to concern himself with matters relating to or expected of him
with respect to what would then be his past and terminated employment. It is hard
112

to imagine what further authority an employer can have over a dismissed employee
so as to compel him to continue to perform work-related tasks:
It is also significant that the special power of attorney 32 executed
by private respondent on June 26, 1980 in favor of petitioner, specifically stating
xxx xxx xxx
That I, JON de YSASI, Filipino, of legal age, married, and a resident of
Hda. Manucao, hereinafter called and referred to as PRINCIPAL, am a
sugarcane planter, BISCOM Mill District, and a duly accredited plantermember of the BINALBAGAN-ISABELA PLANTERS' ASSOCIATION, INC.;
That as such planter-member of BIPA, I have check/checks with BIPA
representing payment for all checks and papers to which I am entitled
to (sic) as such planter-member;
That I have named, appointed and constituted as by these presents
I HEREBY NAME, APPOINT AND CONSTITUTE as my true and lawful
ATTORNEY-IN-FACT
JON de YSASI III
whose specimen signature is hereunder affixed, TO GET FOR ME and in
my name, place and stead, my check/checks aforementioned, said
ATTORNEY-IN-FACT being herein given the power and authority to sign
for me and in my name, place and stead, the receipt or receipts or
payroll for the said check/checks. PROVIDED, HOWEVER, that my said
ATTORNEY-IN-FACT cannot cash the said check/checks, but to turn the
same over to me for my proper disposition.
That I HEREBY RATIFY AND CONFIRM the acts of my
Attorney-in-Fact in getting the said check/checks and signing the
receipts therefor.
That I further request that my said check/checks be made a "CROSSED
CHECK".
xxx xxx xxx
remained in force even after petitioner's employment was supposed to have been
terminated by reason of abandonment. Furthermore, petitioner's numerous requests
for an explanation regarding the stoppage of his salaries and benefits, 33 the
issuance of withholding tax reports, 34 as well as correspondence reporting his full
113

recovery and readiness to go back to work, 35 and, specifically, his filing of the
complaint for illegal dismissal are hardly the acts of one who has abandoned his
work.
We are likewise not impressed by the deposition of Manolo Gomez, as witness for
private respondent, ascribing statements to petitioner supposedly indicative of the
latter's intention to abandon his work. We perceive the irregularity in the taking of
such deposition without the presence of petitioner's counsel, and the failure of
private respondent to serve reasonably advance notice of its taking to said counsel,
thereby
foreclosing
his
opportunity
to
cross-examine the deponent. Private respondent also failed to serve notice thereof
on the Regional Arbitration Branch No. VI of the NLRC, as certified to by
Administrative Assistant Celestina G. Ovejera of said office. 36 Fair play dictates that
at such an important stage of the proceedings, which involves the taking of
testimony, both parties must be afforded equal opportunity to examine and crossexamine a witness.
As to the monthly monetary amounts given to petitioner, whether denominated as
salary, pension, allowance orex gratia handout, there is no question as to
petitioner's entitlement thereto inasmuch as he continued to perform services in his
capacity as farm administrator. The change in description of said amounts
contained in the pay slips or in the receipts prepared by private respondent cannot
be deemed to be determinative of petitioner's employment status in view of the
peculiar circumstances above set out. Besides, if such amounts were truly in the
nature of allowances given by a parent out of concern for his child's welfare, it is
rather unusual that receipts therefor 37 should be necessary and required as if they
were ordinary business expenditures.
Neither can we subscribe to private respondent's theory that petitioner's alleged
abandonment was converted into an implied voluntary resignation on account of
the father's agreement to support his son after the latter abandoned his work. As
we have determined that no abandonment took place in this case, the monthly
sums received by petitioner, regardless of designation, were in consideration for
services rendered emanating from an employer-employee relationship and were not
of a character that can qualify them as mere civil support given out of parental duty
and solicitude. We are also hard put to imagine how abandonment can be impliedly
converted into a voluntary resignation without any positive act on the part of the
employee conveying a desire to terminate his employment. The very concept of
resignation as a ground for termination by the employee of his employment 38 does
not square with the elements constitutive of abandonment.
On procedural considerations, petitioner posits that there was a violation by private
respondent of the due process requirements under the Labor Code for want of
notice and hearing. 39 Private respondent, in opposition, argues that Section 2, Rule
114

XIV, Book V of the Omnibus Rules Implementing the Labor Code applies only to
cases where the employer seeks to terminate the services of an employee on any of
the grounds enumerated under Article 282 of the Labor Code, but not to the
situation obtaining in this case where private respondent did not dismiss petitioner
on any ground since it was petitioner who allegedly abandoned his employment. 40
The due process requirements of notice and hearing applicable to labor cases are
set out in Rule XIV, Book V of the Omnibus Rules Implementing the Labor Code in
this wise:
Sec. 2. Notice of Dismissal. Any employer who seeks to dismiss a
worker shall furnish him a written notice stating the particular acts or
omission(s) constituting the grounds for his dismissal. In cases of
abandonment of work, notice shall be served at the worker's last
known address.
xxx xxx xxx
Sec. 5. Answer and hearing. The worker may answer the allegations
as stated against him in the notice of dismissal within a reasonable
period from receipt of such notice. The employer shall afford the
worker ample opportunity to be heard and to defend himself with the
assistance of his representative, if he so desires.
Sec. 6. Decision to dismiss. The employer shall immediately notify a
worker in writing of a decision to dismiss him stating clearly the
reasons therefor.
Sec. 7. Right to contest dismissal. Any decision taken by the
employer shall be without prejudice to the right of the worker to
contest the validity or legality of his dismissal by filing a complaint with
the Regional Branch of the Commission.
xxx xxx xxx
Sec. 11. Report of dismissal. The employer shall submit a monthly
report to the Regional Office having jurisdiction over the place of work
at all dismissals effected by him during the month, specifying therein
the names of the dismissed workers, the reasons for their dismissal,
the dates of commencement and termination of employment, the
positions last held by them and such other information as may be
required by the Ministry for policy guidance and statistical purposes.

115

Private respondent's argument is without merit as there can be no question that

petitioner was denied his right to due process since he was never given any notice
about his impending dismissal and the grounds therefor, much less a chance to be
heard. Even as private respondent controverts the applicability of the mandatory
twin requirements of procedural due process in this particular case, he in effect
admits that no notice was served by him on petitioner. This fact is corroborated by
the certification issued on September 5, 1984 by the Regional Director for Region VI
of the Department of Labor that no notice of termination of the employment of
petitioner was submitted thereto. 41
Granting arguendo that there was abandonment in this case, it nonetheless cannot
be denied that notice still had to be served upon the employee sought to be
dismissed, as the second sentence of Section 2 of the pertinent implementing rules
explicitly requires service thereof at the employee's last known address, by way of
substantial compliance. While it is conceded that it is the employer's prerogative to
terminate an employee, especially when there is just cause therefor, the
requirements of due process cannot be lightly taken. The law does not countenance
the arbitrary exercise of such a power or prerogative when it has the effect of
undermining the fundamental guarantee of security of tenure in favor of the
employee. 42
On the executive labor arbiter's misplaced reliance on the Wenphil case, the
Solicitor General rejoins as follows:
The Labor Arbiter held thus:
While we are in full agreement with the respondent as to
his defense of implied resignation and/or abandonment,
records somehow showed that he failed to notify the
Department
of
Labor and Employment for his sons' (sic)/complainants'
(sic) aba(n)donment as required by BP 130. And for this
failure, the other requisite for a valid termination by an
employer was not complied with. This however, would not
work to invalidate the otherwise (sic) existence of a valid
cause for dismissal. The validity of the cause of dismissal
must be upheld at all times provided however that
sanctions must be imposed on the respondent for his
failure to observe the notice on due process requirement.
(Wenphil Corp. v. NLRC, G.R. No. 80587). (Decision Labor
Arbiter, at 11-12, Annex "C" Petition), . . .
This is thus a very different case from Wenphil Corporation v. NLRC,
170 SCRA 69. In Wenphil, the rule applied to the facts is: once an
116

employee is dismissed for just cause, he must not be rewarded

re-employment and backwages for failure of his employer to observe
procedural due process. The public policy behind this is that, it may
encourage the employee to do even worse and render a mockery of
the rules of discipline required to be observed. However, the employer
must be penalized for his infraction of due process. In the present case,
however, not only was petitioner dismissed without due process, but
his dismissal is without just cause. Petitioner did not abandon his
employment because he has a justifiable excuse. 43
II. Petitioner avers that the executive labor arbiter erred in disregarding the
mandatory provisions of Article 279 of the Labor Code which entitles an illegally
dismissed employee to reinstatement and back wages and, instead, affirmed the
imposition of the penalty of P5,000.00 on private respondent for violation of the due
process requirements. Private respondent, for his part, maintains that there was
error in imposing the fine because that penalty contemplates the failure to submit
the employer's report on dismissed employees to the DOLE regional office, as
required under Section 5 (now, Section 11), Rule XIV of the implementing rules, and
not the failure to serve notice upon the employee sought to be dismissed by the
employer.
Both the Constitution and the Labor Code enunciate in no uncertain terms the right
of every worker to security of tenure. 44 To give teeth to this constitutional and
statutory mandates, the Labor Code spells out the relief available to an employee in
case of its denial:
Art. 279. Security of Tenure. In cases of regular employment, the
employer shall not terminate the services of an employee except for a
just cause or when authorized by this Title. An employee who is
unjustly dismissed from work shall be entitled to reinstatement without
loss of seniority rights and other privileges and to his full backwages,
inclusive of allowances, and to his other benefits of their monetary
equivalent computed from the time his compensation was withheld
from him up to the time of actual reinstatement.
Clearly, therefore, an employee is entitled to reinstatement with full back wages in
the absence of just cause for dismissal. 45 The Court, however, on numerous
occasions has tempered the rigid application of said provision of the Labor Code,
recognizing that in some cases certain events may have transpired as would
militate against the practicability of granting the relief thereunder provided, and
declares that where there are strained relations between the employer and the
employee, payment of back wages and severance pay may be awarded instead of
reinstatement, 46 and more particularly when managerial employees are
concerned. 47 Thus, where reinstatement is no longer possible, it is therefore
117

appropriate that the dismissed employee be given his fair and just share of what the
law accords him. 48
We note with favor and give our imprimatur to the Solicitor General's ratiocination,
to wit:
As a general rule, an employee who is unjustly dismissed from work
shall be entitled to reinstatement without loss of seniority rights and to
his backwages computed from the time his compensation was withheld
up to the time of his reinstatement. (Morales vs. NLRC, 188 SCRA 295).
But in Pacific Cement Company, Inc. vs. NLRC, 173 SCRA 192, this
Honorable Court held that when it comes to reinstatement, differences
should be made between managers and the ordinary workingmen. The
Court concluded that a company which no longer trusts its managers
cannot operate freely in a competitive and profitable manner. The
NLRC should know the difference between managers and ordinary
workingmen. It cannot imprudently order the reinstatement of
managers with the same ease and liberality as that of rank and file
workers who had been terminated. Similarly, a reinstatement may not
be appropriate or feasible in case of antipathy or antagonism between
the parties (Morales, vs. NLRC, 188 SCRA 295).
In the present case, it is submitted that petitioner should not be
reinstated as farm administrator of Hacienda Manucao. The present
relationship of petitioner and private respondent (is) so strained that a
harmonious and peaceful employee-employer relationship is hardly
possible. 49
III. Finally, petitioner insists on an award of moral damages, arguing that his
dismissal from employment was attended by bad faith or fraud, or constituted
oppression, or was contrary to morals, good customs or public policy. He further
prays for exemplary damages to serve as a deterrent against similar acts of unjust
dismissal by other employers.
Moral damages, under Article 2217 of the Civil Code, may be awarded to
compensate one for diverse injuries such as mental anguish, besmirched reputation,
wounded feelings, and social humiliation, provided that such injuries spring from a
wrongful act or omission of the defendant which was the proximate cause
thereof. 50Exemplary damages, under Article 2229, are imposed by way of example
or correction for the public good, in addition to moral, temperate, liquidated or
compensatory damages. They are not recoverable as a matter of right, it being left
to the court to decide whether or not they should be adjudicated. 51

118

We are well aware of the Court's rulings in a number of cases in the past allowing
recovery of moral damages where the dismissal of the employee was attended by
bad faith or fraud, or constituted an act oppressive to labor, or was done in a
manner contrary to morals, good customs or public policy, 52 and of exemplary
damages if the dismissal was effected in a wanton, oppressive or malevolent
manner. 53 We do not feel, however, that an award of the damages prayed for in this
petition would be proper even if, seemingly, the facts of the case justify their
allowance. In the aforestated cases of illegal dismissal where moral and exemplary
damages were awarded, the dismissed employees were genuinely without fault and
were undoubtedly victims of the erring employers' capricious exercise of power.
In the present case, we find that both petitioner and private respondent can equally
be faulted for fanning the flames which gave rise to and ultimately aggravated this
controversy, instead of sincerely negotiating a peaceful settlement of their
disparate claims. The records reveal how their actuations seethed with mutual
antagonism and the undeniable enmity between them negates the likelihood that
either of them acted in good faith. It is apparent that each one has a cause for
damages against the other. For this reason, we hold that no moral or exemplary
damages can rightfully be awarded to petitioner.
On this score, we are once again persuaded by the validity of the following
recommendation of the Solicitor General:
The Labor Arbiter's decision in RAB Case No. 0452-84 should be
modified. There was no voluntary abandonment in this case because
petitioner has a justifiable excuse for his absence, or such absence
does not warrant outright dismissal without notice and hearing. Private
respondent, therefore, is guilty of illegal dismissal. He should be
ordered to pay backwages for a period not exceeding three years from
date of dismissal. And in lieu of reinstatement, petitioner may be paid
separation pay equivalent to one (1) month('s) salary for every year of
service, a fraction of six months being considered as one (1) year in
accordance with recent jurisprudence (Tan, Jr. vs. NLRC, 183 SCRA
651). But all claims for damages should be dismissed, for both parties
are equally at fault. 54
The conduct of the respective counsel of the parties, as revealed by the records,
sorely disappoints the Court and invites reproof. Both counsel may well be reminded
that their ethical duty as lawyers to represent their clients with
zeal 55 goes beyond merely presenting their clients' respective causes in court. It is
just as much their responsibility, if not more importantly, to exert all reasonable
efforts to smooth over legal conflicts, preferably out of court and especially in
consideration of the direct and immediate consanguineous ties between their
clients. Once again, we reiterate that the useful function of a lawyer is not only to
119

conduct litigation but to avoid it whenever possible by advising settlement or

withholding suit. He is often called upon less for dramatic forensic exploits than for
wise counsel in every phase of life. He should be a mediator for concord and a
conciliator for compromise, rather than a virtuoso of technicality in the conduct of
litigation. 56
Rule 1.04 of the Code of Professional Responsibility explicitly provides that "(a)
lawyer shall encourage his client to avoid, end or settle the controversy if it will
admit of a fair settlement." On this point, we find that both counsel herein fell short
of what was expected of them, despite their avowed duties as officers of the court.
The records do not show that they took pains to initiate steps geared toward
effecting a rapprochement between their clients. On the contrary, their acerbic and
protracted exchanges could not but have exacerbated the situation even as they
may have found favor in the equally hostile eyes of their respective clients.
In the same manner, we find that the labor arbiter who handled this regrettable
case has been less than faithful to the letter and spirit of the Labor Code mandating
that a labor arbiter "shall exert all efforts towards the amicable settlement of a labor
dispute within his jurisdiction." 57 If he ever did so, or at least entertained the
thought, the copious records of the proceedings in this controversy are barren of
any reflection of the same.
One final word. This is one decision we do not particularly relish having been obliged
to make. The task of resolving cases involving disputes among members of a family
leaves a bad taste in the mouth and an aversion in the mind, for no truly meaningful
and enduring resolution is really achieved in such situations. While we are
convinced that we have adjudicated the legal issues herein squarely on the bases of
law and jurisprudence, sanssentimentality, we are saddened by the thought that we
may have failed to bring about the reconciliation of the father and son who figured
as parties to this dispute, and that our adherence here to law and duty may
unwittingly contribute to the breaking, instead of the strengthening, of familial
bonds. In fine, neither of the parties herein actually emerges victorious. It is the
Court's earnest hope, therefore, that with the impartial exposition and extended
explanation of their respective rights in this decision, the parties may eventually see
their way clear to an ultimate resolution of their differences on more convivial
terms.
WHEREFORE, the decision of respondent National Labor Relations Commission is
hereby SET ASIDE. Private respondent is ORDERED to pay petitioner back wages for
a period not exceeding three (3) years, without qualification or deduction, 58 and, in
lieu of reinstatement, separation pay equivalent to one (1) month for every year of
service, a fraction of six (6) months being considered as one (1) whole year.
SO ORDERED.
120

Narvasa, C.J., Padilla, Nocon and Puno, JJ., concur.

RE: REPORT ON THE A.M. No. P-06-2177
FINANCIAL AUDIT CONDUCTED (Formerly A.M. No. 06-4-268-RTC)
ON THE BOOKS OF ACCOUNTS
OF ATTY. RAQUEL G. KHO,
CLERK OF COURT IV,
REGIONAL TRIAL COURT,
ORAS, EASTERN SAMAR . Present:
PUNO, J., Chairperson,
SANDOVAL-GUTIERREZ,
CORONA,
AZCUNA and
GARCIA, JJ.
Promulgated:
June 27, 2006
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

RESOLUTION

CORONA, J.:
This administrative case is a result of the audit conducted by the Office of
the Court Administrator (OCA) of the books of accounts of Atty. Raquel G. Kho,
former
clerk
of
court
of
the
Regional
Trial
Court,
Branch
5, Oras, Eastern Samar. The audit covered the period March 1985 to October 31,
2005.
The OCA, in its memorandum dated April 18, 2006, had the following findings: (1)
there was a shortage of P545.00 in remittances to the General Fund; (2) a cash
shortage of P24.00 in the Sheriffs General Fund; and (3) Atty. Kho did not deposit on
time in the authorized depository bank the collections for the Fiduciary Fund
(P60,000) and Special Allowance for the Judiciary Fund (P5,000). It also noted that
Atty. Kho had already restituted the P545.00 and P24.00 cash shortages.
Regarding the delayed remittance of the amount of P60,000 representing the
amount of a confiscated cash bond, Kho explained that the Land Bank of the
Philippines (the authorized depository bank) had no branch in their locality. The
nearest Land Bank branch was approximately 95 kilometers away so it was his
practice to keep his collections in the courts safety vault.

121

On the other hand, the amount of P5,000 was collected as filing fee for an election
protest. According to Kho, this was collected under Rule 40 of the Commission on
Elections (COMELEC) Rules of Procedure. In defense, he presented a letter
addressed to Senior Deputy Court AdministratorZenaida N. Elepao inquiring where
to remit said amount. The OCA, through Deputy Court Administrator Jose P. Perez,
responded that pending official instructions on how to manage the money collected
under Rule 40 of the COMELEC Rules, it was to be treated as trust deposits and
temporarily deposited in the Fiduciary Fund. [1] However, Kho failed to do this.
Consequently, the audit team advised him to deposit the P5,000 in the
Special Allowance for the Judiciary Fund as provided under Sec. 21 (g) of the
amended Administrative Circular No. 35-2004. [2] He was also advised to deposit the
confiscated P60,000 cash bond in the Judicial Development Fund account. He
complied with both directives on November 15, 2005.
On January 26, 2006, the OCA received a letter-complaint with the information
that Kho,
along
with
his
alleged
common-law-wife,
stenographerRiza Amor L. Libanan, was engaged in lending out to court employees
money in his possession as clerk of court, personally deriving profit from the
interest earned.
The OCA found Kho liable for violating OCA Circular No. 8A-93 [3] dated April
21, 1993 when he kept the funds in a safety vault for more than a year. All clerks of
lower courts are supposed to deposit all collections from bail bonds, rental deposits
and other fiduciary collections with the Land Bank upon receipt thereof. Thus, it
recommended that (1) the audit report be docketed as a regular administrative
complaint againstKho and (2) a fine in the amount of P10,000 be imposed on him.
We agree with the OCAs recommendations.
Public office is a public trust. [4] Those charged with the dispensation of
justice, from the justices and judges to the lowliest clerks, should be
circumscribed with the heavy burden of responsibility. [5] Not only must their
conduct at all times be characterized by propriety and decorum but, above all
else, it must be beyond suspicion.[6]
A clerk of court, aside from being the custodian of the courts funds,
revenues, property and premises, is also entrusted with the primary
responsibility of correctly and effectively implementing regulations regarding
fiduciary funds.[7] Safekeeping of funds and collections is essential to an orderly
administration of justice and no protestation of good faith can override the
mandatory nature of the circulars designed to promote full accountability for
government funds.[8] Clerks of court have always been reminded of their duty to
immediately deposit the various funds received by them to the authorized
government depositories for they are not supposed to keep funds in their
custody.[9]

122

Kho failed to make a timely turn-over of cash deposited with him. This was
inexcusable because he could have purchased postal money orders from the
local post office payable to the chief accountant, Accounting Division, FMOOCA. The money could have earned interest had he not kept them in the vault
for over a year.[10] As found by the OCA, although Kho had restituted all his cash
accountabilities, he was nevertheless liable for failing to immediately deposit the
collections for the judiciary funds.
The failure to remit the funds in due time constitutes gross dishonesty and
gross misconduct. It diminishes the faith of the people in the Judiciary.
[11]
Dishonesty, being in the nature of a grave offense, carries the extreme
penalty of dismissal from the service even if committed for the first
time. However, Kho showed remorse by immediately restituting the cash
shortages and complying with the directives of the audit team. And considering
that this is his first offense, we find that the penalty of P10,000 fine is sufficient.
We note that Kho has already transferred to the Department of
Justice. However, it neither renders this matter moot nor frees him from liability.
Moreover, his misconduct reflects on his fitness as a member of the bar.
His malfeasance prima facie contravenes Canon 1,[12] Rule 1.01[13] of the Code of
Professional Responsibility. Hence, he should explain why no further disciplinary
sanction should be imposed on him.
WHEREFORE, Atty. Raquel G. Kho is hereby found GUILTY of gross
misconduct for his failure to make timely remittance of judiciary funds in his
custody. He is ordered to pay a FINE of P10,000 within ten (10) days from receipt of
this resolution.
Atty. Kho is further ordered to SHOW CAUSE within the same period why he
should not be disciplined for such misconduct as a lawyer and as an officer of the
Court.
SO ORDERED.
RENATO C. CORONA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Associate Justice
Chairperson

123

ANGELINA SANDOVAL-GUTIERREZ

ADOLFO S. AZCUNA

Associate Justice

Associate Justice

CANCIO C. GARCIA
Associate Justice

G.R. No. L-18727

August 31, 1964

JESUS
MA.
vs.
ANTONIO
MA.
ROMULO CUI, Intervenor-appellant.

CUI, plaintiff-appellee,
CUI, defendant-appellant,

Jose
W.
Diokno
for
Jaime
R.
Nuevas
and
Hector
L.
Hofilea
Romulo Cui in his own behalf as intervenor-appellants.

for

plaintiff-appellee.
defendant-appellant.

MAKALINTAL, J.:
This is a proving in quo warranto originally filed in the Court of First Instance of
Cebu. The office in contention is that of Administrator of the Hospicio de San Jose de
Barili. Judgment was rendered on 27 April 1961 in favor of the plaintiff, Jesus Ma.
Cui, and appealed to us by the defendant, Antonio Ma. Cui, and by the intervenor,
Romulo Cui.
The Hospicio is a charitable institution established by the spouses Don Pedro Cui
and Doa Benigna Cui, now deceased, "for the care and support, free of charge, of
indigent invalids, and incapacitated and helpless persons." It acquired corporate
existence by legislation (Act No. 3239 of the Philippine Legislature passed 27
November 1925) and endowed with extensive properties by the said spouses
through a series of donations, principally the deed of donation executed on 2
January 1926.
Section 2 of Act No. 3239 gave the initial management to the founders jointly and,
in case of their incapacity or death, to "such persons as they may nominate or
124

designate, in the order prescribed to them." Section 2 of the deed of donation

provides as follows:
Que en caso de nuestro fallecimiento o incapacidad para administrar, nos
sustituyan nuestro legitime sobrino Mariano Cui, si al tiempo de nuestra
muerte o incapacidad se hallare residiendo en la caudad de Cebu, y nuestro
sobrino politico Dionisio Jakosalem. Si nuestro dicho sobrino Mariano Cui no
estuviese residiendo entonces en la caudad de Cebu, designamos en su lugar
a nuestro otro sobrino legitime Mauricio Cui. Ambos sobrinos administraran
conjuntamente el HOSPICIO DE SAN JOSE DE BARILI. A la muerte o
incapacidad de estos dos administradores, la administracion del HOSPICIO DE
SAN JOSE DE BARILI pasara a una sola persona que sera el varon, mayor de
edad, que descienda legitimainente de cualquiera de nuestros sobrinos
legitimos Mariano Cui, Mauricio Cui, Vicente Cui y Victor Cui, y que posea
titulo de abogado, o medico, o ingeniero civil, o farmaceutico, o a falta de
estos titulos, el que pague al Estado mayor impuesto o contribution. En
igualdad de circumstancias, sera preferida el varon de mas edad
descendiente de quien tenia ultimamente la administracion. Cuando
absolutamente faltare persona de estas cualificaciones, la administracion del
HOSPICIO DE SAN JOSE DE BARILI pasara al senor Obispo de Cebu o quien
sea el mayor dignatario de la Iglesia Catolica, apostolica, Romana, que
tuviere asiento en la cabecera de esta Provincia de Cebu, y en su defecto, al
Gobierno Provincial de Cebu.
Don Pedro Cui died in 1926, and his widow continued to administer
the Hospicio until her death in 1929. Thereupon the administration passed to
Mauricio Cui and Dionisio Jakosalem. The first died on 8 May 1931 and the second
on 1 July 1931. On 2 July 1931 Dr. Teodoro Cui, only son of Mauricio Cui, became the
administrator. Thereafter, beginning in 1932, a series of controversies and court
litigations ensued concerning the position of administrator, to which, in so far as
they are pertinent to the present case, reference will be made later in this decision.
Plaintiff Jesus Ma. Cui and defendant Antonio Ma. Cui are brothers, being the sons of
Mariano Cui, one of the nephews of the spouses Don Pedro Cui and Doa Benigna
Cui. On 27 February 1960 the then incumbent administrator, Dr. Teodoro Cui,
resigned in favor of Antonio Ma. Cui pursuant to a "convenio" entered into between
them and embodied in a notarial document. The next day, 28 February, Antonio Ma.
Cui took his oath of office. Jesus Ma. Cui, however, had no prior notice of either the
"convenio" or of his brother's assumption of the position.
Dr. Teodoro Cui died on 27 August 1960; on 5 September 1960 the plaintiff wrote a
letter to the defendant demanding that the office be turned over to him; and on 13
September 1960, the demand not having been complied with the plaintiff filed the
complaint in this case. Romulo Cui later on intervened, claiming a right to the same
125

office, being a grandson of Vicente Cui, another one of the nephews mentioned by
the founders of theHospicio in their deed of donation.
As between Jesus and Antonio the main issue turns upon their respective
qualifications to the position of administrator. Jesus is the older of the two and
therefore under equal circumstances would be preferred pursuant to section 2 of
the deed of donation. However, before the test of age may be, applied the deed
gives preference to the one, among the legitimate descendants of the nephews
therein named, "que posea titulo de abogado, o medico, o ingeniero civil, o
farmaceutico, o a falta de estos titulos el que pague al estado mayor impuesto o
contribucion."
The specific point in dispute is the mealing of the term "titulo de abogado." Jesus
Ma. Cui holds the degree of Bachelor of Laws from the University of Santo Tomas
(Class 1926) but is not a member of the Bar, not having passed the examinations to
qualify him as one. Antonio Ma. Cui, on the other hand, is a member of the Bar and
although disbarred by this Court on 29 March 1957 (administrative case No. 141),
was reinstated by resolution promulgated on 10 February 1960, about two weeks
before he assumed the position of administrator of theHospicio de Barili.
The Court a quo, in deciding this point in favor of the plaintiff, said that the phrase
"titulo de abogado," taken alone, means that of a full-fledged lawyer, but that has
used in the deed of donation and considering the function or purpose of the
administrator, it should not be given a strict interpretation but a liberal one," and
therefore means a law degree or diploma of Bachelor of Laws. This ruling is assailed
as erroneous both by the defendant and by the intervenor.
We are of the opinion, that whether taken alone or in context the term "titulo de
abogado" means not mere possession of the academic degree of Bachelor of Laws
but membership in the Bar after due admission thereto, qualifying one for the
practice of law. In Spanish the word "titulo" is defined as "testimonies o instrumento
dado para ejercer un empleo, dignidad o profesion" (Diccionario de la Lengua
Espaola, Real Academia Espanola, 1947 ed., p. 1224) and the word "abogado," as
follows: "Perito en el derecho positivo que se dedica a defender en juicio, por escrito
o de palabra, los derechos o intereses de los litigantes, y tambien a dar dictmen
sobre las cuestiones o puntos legales que se le consultan (Id., p.5) A Bachelor's
degree alone, conferred by a law school upon completion of certain academic
requirements, does not entitle its holder to exercise the legal profession. The
English equivalent of "abogado" is lawyer or attorney-at-law. This term has a fixed
and general signification, and has reference to that class of persons who are by
license officers of the courts, empowered to appear, prosecute and defend, and
upon whom peculiar duties, responsibilities and liabilities are devolved by law as a
consequence.

126

In this jurisdiction admission to the Bar and to the practice of law is under the
authority of the Supreme Court. According to Rule 138 such admission requires
passing the Bar examinations, taking the lawyer's oath and receiving a certificate
from the Clerk of Court, this certificate being his license to practice the profession.
The academic degree of Bachelor of Laws in itself has little to do with admission to
the Bar, except as evidence of compliance with the requirements that an applicant
to the examinations has "successfully completed all the prescribed courses, in a law
school or university, officially approved by the Secretary of Education." For this
purpose, however, possession of the degree itself is not indispensable: completion
of the prescribed courses may be shown in some other way. Indeed there are
instances, particularly under the former Code of Civil Procedure, where persons who
had not gone through any formal legal education in college were allowed to take the
Bar examinations and to qualify as lawyers. (Section 14 of that code required
possession of "the necessary qualifications of learning ability.") Yet certainly it would
be incorrect to say that such persons do not possess the "titulo de abogado"
because they lack the academic degree of Bachelor of Laws from some law school
or university.
The founders of the Hospicio de San Jose de Barili must have established the
foregoing test advisely, and provided in the deed of donation that if not a lawyer,
the administrator should be a doctor or a civil engineer or a pharmacist, in that
order; or failing all these, should be the one who pays the highest taxes among
those otherwise qualified. A lawyer, first of all, because under Act No. 3239 the
managers or trustees of the Hospicioshall "make regulations for the government of
said institution (Sec. 3, b); shall "prescribe the conditions subject to which invalids
and incapacitated and destitute persons may be admitted to the institute" (Sec. 3,
d); shall see to it that the rules and conditions promulgated for admission are not in
conflict with the provisions of the Act; and shall administer properties of
considerable value for all of which work, it is to be presumed, a working
knowledge of the law and a license to practice the profession would be a distinct
asset.
Under this particular criterion we hold that the plaintiff is not entitled, as against the
defendant, to the office of administrator. But it is argued that although the latter is a
member of the Bar he is nevertheless disqualified by virtue of paragraph 3 of the
deed of donation, which provides that the administrator may be removed on the
ground, among others, of ineptitude in the discharge of his office or lack of evident
sound moral character. Reference is made to the fact that the defendant was
disbarred by this Court on 29 March 1957 for immorality and unprofessional
conduct. It is also a fact, however, that he was reinstated on 10 February 1960,
before he assumed the office of administrator. His reinstatement is a recognition of
his moral rehabilitation, upon proof no less than that required for his admission to
the Bar in the first place.

127

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be
admitted and approved by this Honorable Court, without prejudice to the parties
adducing other evidence to prove their case not covered by this stipulation of
facts. 1wph1.t
Whether or not the applicant shall be reinstated rests to a great extent in the
sound discretion of the court. The court action will depend, generally
speaking, on whether or not it decides that the public interest in the orderly
and impartial administration of justice will be conserved by the applicant's
participation therein in the capacity of an attorney and counselor at law. The
applicant must, like a candidate for admission to the bar, satisfy the court
that he is a person of good moral character a fit and proper person to
practice law. The court will take into consideration the applicant's character
and standing prior to the disbarment, the nature and character of the charge
for which he was disbarred, his conduct subsequent to the disbarment, and
the time that has elapsed between the disbarment and the application for
reinstatement. (5 Am. Jur., Sec. 301, p. 443)
Evidence of reformation is required before applicant is entitled to
reinstatement, notwithstanding the attorney has received a pardon following
his conviction, and the requirements for reinstatement have been held to be
the same as for original admission to the bar, except that the court may
require a greater degree of proof than in an original admission. (7 C.J.S.,
Attorney & Client, Sec. 41, p. 815.)
The decisive questions on an application for reinstatement are whether
applicant is "of good moral character" in the sense in which that phrase is
used when applied to attorneys-at-law and is a fit and proper person to be
entrusted with the privileges of the office of an attorney, and whether his
mental qualifications are such as to enable him to discharge efficiently his
duty to the public, and the moral attributes are to be regarded as a separate
and distinct from his mental qualifications. (7 C.J.S., Attorney & Client, Sec.
41, p. 816).
As far as moral character is concerned, the standard required of one seeking
reinstatement to the office of attorney cannot be less exacting than that implied in
paragraph 3 of the deed of donation as a requisite for the office which is disputed in
this case. When the defendant was restored to the roll of lawyers the restrictions
and disabilities resulting from his previous disbarment were wiped out.
This action must fail on one other ground: it is already barred by lapse of time
amounting the prescription or laches. Under Section 16 of Rule 66 (formerly sec. 16,
Rule 68, taken from section 216 of Act 190), this kind of action must be filed within
one (1) year after the right of plaintiff to hold the office arose.
128

Plaintiff Jesus Ma. Cui believed himself entitled to the office in question as long ago
as 1932. On January 26 of that year he filed a complaint in quo warranto against Dr.
Teodoro Cui, who assumed the administration of theHospicio on 2 July 1931.
Mariano Cui, the plaintiff's father and Antonio Ma. Cui came in as intervenors. The
case was dismissed by the Court of First Instance upon a demurrer by the defendant
there to the complaint and complaint in intervention. Upon appeal to the Supreme
Court from the order of dismissal, the case was remanded for further proceedings
(Cui v. Cui, 60 Phil. 37, 48). The plaintiff, however, did not prosecute the case as
indicated in the decision of this Court, but acceded to an arrangement whereby
Teodoro Cui continued as administrator, Mariano Cui was named "legal adviser" and
plaintiff Jesus Ma. Cui accepted a position as assistant administrator.
Subsequently the plaintiff tried to get the position by a series of extra-judicial
maneuvers. First he informed the Social Welfare Commissioner, by letter dated 1
February 1950, that as of the previous 1 January he had "made clear" his intention
of occupying the office of administrator of the Hospicio." He followed that up with
another letter dated 4 February, announcing that he had taken over the
administration as of 1 January 1950. Actually, however, he took his oath of office
before a notary public only on 4 March 1950, after receiving a reply of
acknowledgment, dated 2 March, from the Social Welfare Commissioner, who
thought that he had already assumed the position as stated in his communication of
4 February 1950. The rather muddled situation was referred by the Commissioner to
the Secretary of Justice, who, in an opinion dated 3 April 1950 (op. No. 45, S. 1950),
correcting another opinion previously given, in effect ruled that the plaintiff, not
beings lawyer, was not entitled to the administration of theHospicio.
Meanwhile, the question again became the subject of a court controversy. On 4
March 1950, the Hospiciocommenced an action against the Philippine National Bank
in the Court of First Instance of Cebu (Civ. No. R-1216) because the Bank had frozen
the Hospicio's deposits therein. The Bank then filed a third-party complaint against
herein plaintiff-appellee, Jesus Ma. Cui, who had, as stated above, taken oath as
administrator. On 19 October 1950, having been deprived of recognition by the
opinion of the Secretary of Justice he moved to dismiss the third-party complaint on
the ground that he was relinquishing "temporarily" his claim to the administration of
the Hospicio. The motion was denied in an order dated 2 October 1953. On 6
February 1954 he was able to take another oath of office as administrator before
President Magsaysay, and soon afterward filed a second motion to dismiss in Civil
case No. R-1216. President Magsaysay, be it said, upon learning that a case was
pending in Court, stated in a telegram to his Executive Secretary that "as far as (he)
was concerned the court may disregard the oath" thus taken. The motion to dismiss
was granted nevertheless and the other parties in the case filed their notice of
appeal from the order of dismissal. The plaintiff then filed an ex-parte motion to be
excluded as party in the appeal and the trial Court again granted the motion. This
was
on
24
November
1954.
Appellants
thereupon
instituted
129

a mandamus proceeding in the Supreme Court (G.R. No. L-8540), which was decided
on 28 May 1956, to the effect that Jesus Ma. Cui should be included in the appeal.
That appeal, however, after it reached this Court was dismiss upon motion of the
parties, who agreed that "the office of administrator and trustee of theHospicio ...
should be ventilated in quo warranto proceedings to be initiated against the
incumbent by whomsoever is not occupying the office but believes he has a right to
it" (G.R. No. L-9103). The resolution of dismissal was issued 31 July 1956. At that
time the incumbent administrator was Dr. Teodoro Cui, but no action inquo
warranto was filed against him by plaintiff Jesus Ma. Cui as indicated in the
aforesaid motion for dismissal.
On 10 February 1960, defendant Antonio Ma. Cui was reinstated by this Court as
member of the Bar, and on the following 27 February Dr. Teodoro Cui resigned as
administrator in his favor, pursuant to the "convenio" between them executed on
the same date. The next day Antonio Ma. Cui took his oath of office.
The failure of the plaintiff to prosecute his claim judicially after this Court decided
the first case of Cui v. Cui in 1934 (60 Phil. 3769), remanding it to the trial court for
further proceedings; his acceptance instead of the position of assistant
administrator, allowing Dr. Teodoro Cui to continue as administrator and his failure
to file an action inquo warranto against said Dr. Cui after 31 July 1956, when the
appeal in Civil Case No. R-1216 of the Cebu Court was dismissed upon motion of the
parties precisely so that the conflicting claims of the parties could be ventilated in
such an action all these circumstances militate against the plaintiff's present
claim in view of the rule that an action in quo warranto must be filed within one
year after the right of the plaintiff to hold the office arose. The excuse that the
plaintiff did not file an action against Dr. Teodoro Cui after 31 July 1956 because of
the latter's illness did not interrupt the running of the statutory period. And the fact
that this action was filed within one year of the defendant's assumption of office in
September 1960 does not make the plaintiff's position any better, for the basis of
the action is his own right to the office and it is from the time such right arose that
the one-year limitation must be counted, not from the date the incumbent began to
discharge the duties of said office. Bautista v. Fajardo, 38 Phil. 624; Lim vs. Yulo, 62
Phil. 161.
Now for the claim of intervenor and appellant Romulo Cui. This party is also a
lawyer, grandson of Vicente Cui, one of the nephews of the founders of
the Hospicio mentioned by them in the deed of donation. He is further, in the line of
succession, than defendant Antonio Ma. Cui, who is a son of Mariano Cui, another
one of the said nephews. The deed of donation provides: "a la muerte o incapacidad
de estos administradores (those appointed in the deed itself) pasara a una sola
persona que sera el varon, mayor de edad, que descienda legitimamente de
cualquiera de nuestros sobrinos legitimos Mariano Cui, Mauricio Cui, Vicente Cui,
Victor Cui, y que posea titulo de abogado ... En igualdad de circumstancias, sera
130

preferido el varon de mas edad descendiente de quien tenia ultimamente la

administration." Besides being a nearer descendant than Romulo Cui, Antonio Ma.
Cui is older than he and therefore is preferred when the circumstances are
otherwise equal. The intervenor contends that the intention of the founders was to
confer the administration by line and successively to the descendants of the
nephews named in the deed, in the order they are named. Thus, he argues, since
the last administrator was Dr. Teodoro Cui, who belonged to the Mauricio Cui line,
the next administrator must come from the line of Vicente Cui, to whom the
intervenor belongs. This interpretation, however, is not justified by the terms of the
deed of donation.
IN VIEW OF THE FOREGOING CONSIDERATIONS, the judgment appealed from is
reversed and set aside, and the complaint as well as the complaint in intervention
are dismissed, with costs equally against plaintiff-appellee and intervenor-appellant.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Paredes and Regala, JJ.,
concur.

131