Judges; bias and partiality must be proven by clear and convincing evidence.

The Court
held that the truth about Judge Austria’s alleged partiality cannot be determined
by simply relying on the verified complaint. Bias and prejudice cannot be
presumed, in light especially of a
judge’s sacred obligation under his oath of office to administer justice
without respect to the person, and to give equal right to the poor and rich. There
should be clear and convincing evidence to prove the charge; mere suspicion of
partiality is not enough. In this case, aside from being speculative and judicial in
character, the circumstances cited by the complainant were grounded on mere
opinion and surmises. The complainant also failed to adduce proof indicating the
judge’s predisposition to decide the case in favor of one party. Antonio M.
Lorenzana v. Judge Ma. Cecilia I. Austria, RTC, Br. 2, Batangas City, A.M. No. RTJ-09-
2200, April 2, 2014.

Republic of the Philippines

SUPREME COURT
Baguio City

SECOND DIVISION

A.M. No. RTJ-09-2200 April 2, 2014

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

ANTONIO M. LORENZANA, Complainant,

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

DECISION

BRION, J.:

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

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

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

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

1. The respondent appointed Atty. Santiago T. Gabionza, Jr. as rehabilitation receiver over
SCP’s objections and despite serious conflict of interest in being the duly appointed
rehabilitation receiver for SCP and, at the same time, the external legal counsel of most of
SCP’s creditors; he is also a partner of the law firm that he engaged as legal adviser.

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

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

3. The modified rehabilitation plan submitted by Atty. Gabionza is a replica of what the
respondent dictated to him. Thus, the respondent exceeded the limits of her authority and
effectively usurped and pre-empted the rehabilitation receiver’s exercise of functions.

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

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

6. The respondent appointed Gerardo Anonas (Anonas) as Atty. Gabionza’s financial adviser
and, at the same time, as her financial adviser to guide her in the formulation and
development of the rehabilitation plan, for a fee of P3.5M at SCP’s expense. Anonas is also
the cousin-in-law of the managing partner of Atty. Gabionza’s law firm.

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

leading to EPCIB’s filing of a motion to create a management committee.

8. When requested to conduct an evidentiary meeting and to issue a subpoena (so that SCP
could confront EPCIB’s witnesses to prove the allegation that there was a need for the
creation of a management committee), the respondent denied SCP’s requests and delayed
the issuance of the order until the last minute.

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

10. The respondent failed to observe the reglementary period prescribed by the Interim
Rules of Procedure on Corporate Rehabilitation (Rules). She approved the rehabilitation plan
beyond the 180 days given to her in the Rules, without asking for permission to extend the
period from the Supreme Court (SC).
 11. The respondent erroneously interpreted and applied Section 23, Rule 4 of the Rules (the
court’s power to approve the rehabilitation plan) to include the power to amend, modify and
alter it.

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

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

ii. Supplemental Complaint

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

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

a. Comment to January 21, 2008 Complaint

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

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

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

The respondent likewise refuted the allegations of bias and partiality. First, she claimed that her
denial of the complainant’s motion for inhibition was not due to any bias or prejudice on her part but
due to lack of basis. Second, she argued that her decision was not orchestrated to favor EPCIB, as
evidenced by the fact that EPCIP itself (as some other creditors did) promptly appealed her decision
to the Court of Appeals (CA). Third, she did not remove Atty. Gabionza as SCP’s rehabilitation
receiver because she disagreed that the grounds the complainant raised warranted his removal.
She also found no merit to the allegation of conflict of interest. Lastly, she maintained that the rest of
the complainant’s allegations were not substantiated and corroborated by evidence.

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

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

b. Comment to April 14, 2008 Supplemental Complaint

In her comment8 on the supplemental complaint, the respondent submitted that the photos she
posted in the social networking website "Friendster" could hardly be considered vulgar or lewd. She
added that an "off-shouldered" attire is an acceptable social outfit under contemporary standards
and is not forbidden. She further stated that there is no prohibition against attractive ladies being
judges; she is proud of her photo for having been aesthetically made. Lastly, she submitted that the
ruling of the Court in the case of Impao v. Judge Makilala9 should not be applied to her case since
the facts are different.

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

In a Resolution14 dated September 9, 2009, the Court re-docketed the complaints as regular
administrative matters, and referred them to the CA for investigation, report and recommendation.

The CA’s Report and Recommendation

On November 13, 2009, Justice Marlene Gonzales-Sison, the Investigating Justice, conducted a
hearing, followed by the submission of memoranda by both parties. In her January 4, 2010 Report
and Recommendation,15 Justice Gonzales-Sison ruled that the complaints were partly meritorious.
She found that the issues raised were judicial in nature since these involved the respondent’s
appreciation of evidence.

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

On the allegation of grave bias and partiality in handling the rehabilitation proceedings, Justice
Gonzales-Sison ruled that the complainant failed to present any clear and convincing proof that the
respondent intentionally and deliberately acted against SCP’s interests; the complaint merely relied
on his opinions and surmises.

On the matter of the respondent’s inhibition, she noted that in cases not covered by the rule on
mandatory inhibition, the decision to inhibit lies within the discretion of the sitting judge and is
primarily a matter of conscience.
With respect to the respondent’s informal meetings, Justice Gonzales-Sison found nothing irregular
despite the out-of-court meetings as these were agreed upon by all the parties, including SCP’s
creditors. She also found satisfactory the respondent’s explanation in approving the rehabilitation
plan beyond the 180-day period prescribed by the Rules.

The foregoing notwithstanding, Justice Gonzales-Sison noted the respondent’s unnecessary

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

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

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

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

The Action and Recommendation of the OCA

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

RECOMMENDATION: It is respectfully recommended for the consideration of the Honorable Court

that:

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

NOTED;

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

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

(Php20,000.00); and
 4) respondent Judge Austria be ADMONISHED to refrain from further acts of impropriety
with a stern warning that a repetition of the same or any similar act will be dealt with more
severely.19

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

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

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

The Court’s Ruling

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

On the Charges of Grave Abuse of Authority;

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

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

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

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

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

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

On the Charges of Grave Incompetence

and Gross Ignorance of the Law

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

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

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

The respondent approved the rehabilitation plan submitted by Atty. Gabionza, subject to the
modifications she found necessary to make the plan viable. The complainant alleged that in
modifying the plan, she exceeded her authority and effectively usurped the functions of a
rehabilitation receiver. We find, however, that in failing to show that the respondent was motivated
by bad faith or ill motives in rendering the assailed decision, the charge of gross ignorance of the law
against her should be dismissed. "To [rule] otherwise would be to render judicial office untenable, for
no one called upon to try the facts or interpret the law in the process of administering justice can be
infallible in his judgment."30

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

In the present case, nothing in the records suggests that the respondent was motivated by bad faith,
fraud, corruption, dishonesty or egregious error in rendering her decision approving the modified
rehabilitation plan. Besides his bare accusations, the complainant failed to substantiate his
allegations with competent proof. Bad faith cannot be presumed32 and this Court cannot conclude
that bad faith intervened when none was actually proven.
With respect to the action of the respondent in ordering the creation of a management committee
without first conducting an evidentiary hearing for the purpose, however, we find the error to be so
egregious as to amount to bad faith, leading to the conclusion of gross ignorance of the law, as
charged.

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

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

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

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

On the Ground of Failure to Observe

the Reglementary Period

On the respondent’s failure to observe the reglementary period prescribed by the Rules, we find the
respondent’s explanation to be satisfactory.

Section 11, Rule 4 of the previous Rules provides:

Sec. 11. Period of the Stay Order. – xxx

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

Under this provision, the matter of who would grant the extension beyond the 180-day period carried
a good measure of ambiguity as it did not indicate with particularity whether the rehabilitation court
could act by itself or whether Supreme Court approval was still required. Only recently was this
uncertainty clarified when A.M. No. 00-8-10-SC, the 2008 Rules of Procedure on Corporate
Rehabilitation, took effect.

Section 12, Rule 4 of the Rules provides:

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

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

On the Ground of Conduct

Unbecoming of a Judge

On the allegation of conduct unbecoming of a judge, Section 6, Canon 6 of the New Code of Judicial
Conduct states that:

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

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

As held in De la Cruz (Concerned Citizen of Legazpi City) v. Judge Carretas,42 a judge should be
considerate, courteous and civil to all persons who come to his court; he should always keep his
passion guarded. He can never allow it to run loose and overcome his reason. Furthermore, a
magistrate should not descend to the level of a sharp-tongued, ill-mannered petty tyrant by uttering
harsh words, snide remarks and sarcastic comments.

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

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

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

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

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

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

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

On the Ground of Impropriety

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

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

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

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

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

SECTION 2. As a subject of constant public scrutiny, judges must accept personal restrictions that
might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. In
particular, judges shall conduct themselves in a way that is consistent with the dignity of the judicial
office.

Based on this provision, we hold that the respondent disregarded the propriety and appearance of
propriety required of her when she posted Friendster photos of herself wearing an "off-shouldered"
suggestive dress and made this available for public viewing.
To restate the rule: in communicating and socializing through social networks, judges must bear in
mind that what they communicate – regardless of whether it is a personal matter or part of his or her
judicial duties – creates and contributes to the people’s opinion not just of the judge but of the entire
Judiciary of which he or she is a part. This is especially true when the posts the judge makes are
viewable not only by his or her family and close friends, but by acquaintances and the general
public.

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

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

This exacting standard applies both to acts involving the judicial office and personal matters. The
1âwphi 1

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

Imposable Penalty

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

1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may
determine, and disqualification from reinstatement or appointment to any public office,
including government-owned or controlled corporations; provided, however, that the
forfeiture of benefits shall in no case include accrued leave credits;

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

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

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

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

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

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

MARIANO C. DEL CASTILLO MARTIN S. VILLARAMA, JR.*

Associate Justice Associate Justice

BIENVENIDO L. REYES**
Associate Justice

THIRD DIVISION

[AC No. 99-634. June 10, 2002]

DOMINADOR P. BURBE, complainant, vs. ATTY. ALBERTO C. MAGULTA, respondent.

DECISION

PANGANIBAN, J.:

After agreeing to take up the cause of a client, a lawyer owes fidelity to both cause and client, even if
the client never paid any fee for the attorney-client relationship. Lawyering is not a business; it is a
profession in which duty to public service, not money, is the primary consideration.

The Case

Before us is a Complaint for the disbarment or suspension or any other disciplinary action against Atty.
Alberto C. Magulta. Filed by Dominador P. Burbe with the Commission on Bar Discipline of the
Integrated Bar of the Philippines (IBP) on June 14, 1999, the Complaint is accompanied by a Sworn
Statement alleging the following:

xxxxxxxxx

That in connection with my business, I was introduced to Atty. Alberto C. Magulta, sometime in
September, 1998, in his office at the Respicio, Magulta and Adan Law Offices at 21-B Otero Building,
Juan de la Cruz St., Davao City, who agreed to legally represent me in a money claim and possible civil
case against certain parties for breach of contract;

That consequent to such agreement, Atty. Alberto C. Magulta prepared for me the demand letter and
some other legal papers, for which services I have accordingly paid; inasmuch, however, that I failed to
secure a settlement of the dispute, Atty. Magulta suggested that I file the necessary complaint, which he
subsequently drafted, copy of which is attached as Annex A, the filing fee whereof will require the
amount of Twenty Five Thousand Pesos (P25,000.00);

That having the need to legally recover from the parties to be sued I, on January 4, 1999, deposited the
amount of P25,000.00 to Atty. Alberto C. Magulta, copy of the Receipt attached as Annex B, upon the
instruction that I needed the case filed immediately;

That a week later, I was informed by Atty. Alberto C. Magulta that the complaint had already been filed
in court, and that I should receive notice of its progress;

That in the months that followed, I waited for such notice from the court or from Atty. Magulta but
there seemed to be no progress in my case, such that I frequented his office to inquire, and he would
repeatedly tell me just to wait;

That I had grown impatient on the case, considering that I am told to wait [every time] I asked; and in
my last visit to Atty. Magulta last May 25, 1999, he said that the court personnel had not yet acted on
my case and, for my satisfaction, he even brought me to the Hall of Justice Building at Ecoland, Davao
City, at about 4:00 p.m., where he left me at the Office of the City Prosecutor at the ground floor of the
building and told to wait while he personally follows up the processes with the Clerk of Court;
whereupon, within the hour, he came back and told me that the Clerk of Court was absent on that day;

That sensing I was being given the run-around by Atty. Magulta, I decided to go to the Office of the Clerk
of Court with my draft of Atty. Magultas complaint to personally verify the progress of my case, and
there told that there was no record at all of a case filed by Atty. Alberto C. Magulta on my behalf, copy
of the Certification dated May 27, 1999, attached as Annex C;

That feeling disgusted by the way I was lied to and treated, I confronted Atty. Alberto C. Magulta at his
office the following day, May 28, 1999, where he continued to lie to with the excuse that the delay was
being caused by the court personnel, and only when shown the certification did he admit that he has
not at all filed the complaint because he had spent the money for the filing fee for his own purpose; and
to appease my feelings, he offered to reimburse me by issuing two (2) checks, postdated June 1 and
June 5, 1999, in the amounts of P12,000.00 and P8,000.00, respectively, copies of which are attached as
Annexes D and E;

That for the inconvenience, treatment and deception I was made to suffer, I wish to complain Atty.
Alberto C. Magulta for misrepresentation, dishonesty and oppressive conduct;

x x x x x x x x x.[1]

On August 6, 1999, pursuant to the July 22, 1999 Order of the IBP Commission on Bar
Discipline,[2] respondent filed his Answer[3] vehemently denying the allegations of complainant for being
totally outrageous and baseless. The latter had allegedly been introduced as a kumpadre of one of the
formers law partners. After their meeting, complainant requested him to draft a demand letter against
Regwill Industries, Inc. -- a service for which the former never paid. After Mr. Said Sayre, one of the
business partners of complainant, replied to this letter, the latter requested that another demand letter
-- this time addressed to the former -- be drafted by respondent, who reluctantly agreed to do so.
Without informing the lawyer, complainant asked the process server of the formers law office to deliver
the letter to the addressee.

Aside from attending to the Regwill case which had required a three-hour meeting, respondent drafted
a complaint (which was only for the purpose of compelling the owner to settle the case) and prepared a
compromise agreement. He was also requested by complainant to do the following:

1. Write a demand letter addressed to Mr. Nelson Tan

2. Write a demand letter addressed to ALC Corporation

3. Draft a complaint against ALC Corporation

4. Research on the Mandaue City property claimed by complainants wife

All of these respondent did, but he was never paid for his services by complainant.

Respondent likewise said that without telling him why, complainant later on withdrew all the files
pertinent to the Regwill case. However, when no settlement was reached, the latter instructed him to
draft a complaint for breach of contract. Respondent, whose services had never been paid by
complainant until this time, told the latter about his acceptance and legal fees. When told that these
fees amounted to P187,742 because the Regwill claim was almost P4 million, complainant promised to
pay on installment basis.

On January 4, 1999, complainant gave the amount of P25,000 to respondents secretary and told her that
it was for the filing fee of the Regwill case. When informed of the payment, the lawyer immediately
called the attention of complainant, informing the latter of the need to pay the acceptance and filing
fees before the complaint could be filed. Complainant was told that the amount he had paid was a
deposit for the acceptance fee, and that he should give the filing fee later.

Sometime in February 1999, complainant told respondent to suspend for the meantime the filing of the
complaint because the former might be paid by another company, the First Oriental Property Ventures,
Inc., which had offered to buy a parcel of land owned by Regwill Industries. The negotiations went on for
two months, but the parties never arrived at any agreement.

Sometime in May 1999, complainant again relayed to respondent his interest in filing the complaint.
Respondent reminded him once more of the acceptance fee. In response, complainant proposed that
the complaint be filed first before payment of respondents acceptance and legal fees. When respondent
refused, complainant demanded the return of the P25,000. The lawyer returned the amount using his
own personal checks because their law office was undergoing extensive renovation at the time, and
their office personnel were not reporting regularly. Respondents checks were accepted and encashed by
complainant.

Respondent averred that he never inconvenienced, mistreated or deceived complainant, and if anyone
had been shortchanged by the undesirable events, it was he.

The IBPs Recommendation

In its Report and Recommendation dated March 8, 2000, the Commission on Bar Discipline of the
Integrated Bar of the Philippines (IBP) opined as follows:

x x x [I]t is evident that the P25,000 deposited by complainant with the Respicio Law Office was for the
filing fees of the Regwill complaint. With complainants deposit of the filing fees for the Regwill
complaint, a corresponding obligation on the part of respondent was created and that was to file the
Regwill complaint within the time frame contemplated by his client, the complainant. The failure of
respondent to fulfill this obligation due to his misuse of the filing fees deposited by complainant, and his
attempts to cover up this misuse of funds of the client, which caused complainant additional damage
and prejudice, constitutes highly dishonest conduct on his part, unbecoming a member of the law
profession. The subsequent reimbursement by the respondent of part of the money deposited by
complainant for filing fees, does not exculpate the respondent for his misappropriation of said funds.
Thus, to impress upon the respondent the gravity of his offense, it is recommended that respondent be
suspended from the practice of law for a period of one (1) year.[4]

The Courts Ruling

We agree with the Commissions recommendation.

Main Issue:

Misappropriation of Clients Funds

Central to this case are the following alleged acts of respondent lawyer: (a) his non-filing of the
Complaint on behalf of his client and (b) his appropriation for himself of the money given for the filing
fee.

Respondent claims that complainant did not give him the filing fee for the Regwill complaint; hence, the
formers failure to file the complaint in court. Also, respondent alleges that the amount delivered by
complainant to his office on January 4, 1999 was for attorneys fees and not for the filing fee.

We are not persuaded. Lawyers must exert their best efforts and ability in the prosecution or the
defense of the clients cause. They who perform that duty with diligence and candor not only protect the
interests of the client, but also serve the ends of justice. They do honor to the bar and help maintain the
respect of the community for the legal profession.[5] Members of the bar must do nothing that may tend
to lessen in any degree the confidence of the public in the fidelity, the honesty, and integrity of the
profession.[6]

Respondent wants this Court to believe that no lawyer-client relationship existed between him and
complainant, because the latter never paid him for services rendered. The former adds that he only
drafted the said documents as a personal favor for the kumpadre of one of his partners.

We disagree. A lawyer-client relationship was established from the very first moment complainant asked
respondent for legal advice regarding the formers business. To constitute professional employment, it is
not essential that the client employed the attorney professionally on any previous occasion. It is not
necessary that any retainer be paid, promised, or charged; neither is it material that the attorney
consulted did not afterward handle the case for which his service had been sought.
If a person, in respect to business affairs or troubles of any kind, consults a lawyer with a view to
obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces with the
consultation, then the professional employment is established.[7]

Likewise, a lawyer-client relationship exists notwithstanding the close personal relationship between the
lawyer and the complainant or the nonpayment of the formers fees.[8] Hence, despite the fact that
complainant was kumpadre of a law partner of respondent, and that respondent dispensed legal advice
to complainant as a personal favor to the kumpadre, the lawyer was duty-bound to file the complaint he
had agreed to prepare -- and had actually prepared -- at the soonest possible time, in order to protect
the clients interest. Rule 18.03 of the Code of Professional Responsibility provides that lawyers should
not neglect legal matters entrusted to them.

This Court has likewise constantly held that once lawyers agree to take up the cause of a client, they
owe fidelity to such cause and must always be mindful of the trust and confidence reposed in
them.[9]They owe entire devotion to the interest of the client, warm zeal in the maintenance and the
defense of the clients rights, and the exertion of their utmost learning and abilities to the end that
nothing be taken or withheld from the client, save by the rules of law legally applied.[10]

Similarly unconvincing is the explanation of respondent that the receipt issued by his office to
complainant on January 4, 1999 was erroneous. The IBP Report correctly noted that it was quite
incredible for the office personnel of a law firm to be prevailed upon by a client to issue a receipt
erroneously indicating payment for something else. Moreover, upon discovering the mistake -- if indeed
it was one -- respondent should have immediately taken steps to correct the error. He should have lost
no time in calling complainants attention to the matter and should have issued another
receipt indicating the correct purpose of the payment.

The Practice of Law -- a

Profession, Not a Business

In this day and age, members of the bar often forget that the practice of law is a profession and not a
business.[11] Lawyering is not primarily meant to be a money-making venture, and law advocacy is not a
capital that necessarily yields profits.[12] The gaining of a livelihood is not a professional but a secondary
consideration.[13] 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. The practice of law is a noble calling in which emolument is a byproduct, and the highest
eminence may be attained without making much money.[14]

In failing to apply to the filing fee the amount given by complainant -- as evidenced by the receipt issued
by the law office of respondent -- the latter also violated the rule that lawyers must be scrupulously
careful in handling money entrusted to them in their professional capacity.[15] Rule 16.01 of the Code of
Professional Responsibility states that lawyers shall hold in trust all moneys of their clients and
properties that may come into their possession.

Lawyers who convert the funds entrusted to them are in gross violation of professional ethics and are
guilty of betrayal of public confidence in the legal profession.[16] It may be true that they have a lien
upon the clients funds, documents and other papers that have lawfully come into their possession; that
they may retain them until their lawful fees and disbursements have been paid; and that they may apply
such funds to the satisfaction of such fees and disbursements. However, these considerations do not
relieve them of their duty to promptly account for the moneys they received. Their failure to do so
constitutes professional misconduct.[17] In any event, they must still exert all effort to protect their
clients interest within the bounds of law.

If much is demanded from an attorney, it is because the entrusted privilege to practice law carries with
it correlative duties not only to the client but also to the court, to the bar, and to the
public.[18]Respondent fell short of this standard when he converted into his legal fees the filing fee
entrusted to him by his client and thus failed to file the complaint promptly. The fact that the former
returned the amount does not exculpate him from his breach of duty.

On the other hand, we do not agree with complainants plea to disbar respondent from the practice of
law. The power to disbar must be exercised with great caution. Only in a clear case of misconduct that
seriously affects the standing and the character of the bar will disbarment be imposed as a penalty.[19]

WHEREFORE, Atty. Alberto C. Magulta is found guilty of violating Rules 16.01 and 18.03 of the Code of
Professional Responsibility and is hereby SUSPENDED from the practice of law for a period of one (1)
year, effective upon his receipt of this Decision. Let copies be furnished all courts as well as the Office of
the Bar Confidant, which is instructed to include a copy in respondents file.

SO ORDERED.

Sandoval-Gutierrez, and Carpio, JJ., concur.

Puno, J., (Chairman), abroad, on official leave.

A.C. No. 3283 July 13, 1995

RODOLFO MILLARE, petitioner,
vs.
ATTY. EUSTAQUIO Z. MONTERO, respondent.

Complainant obtained a favorable judgment from the MTC which ordered respondent’s client to vacate
the premises subject of the ejectment case. respondent as counsel, appealed the decision. CA dismissed
Co's appeal from the decision of the RTC for failure to comply with the proper procedures. Respondent
thereafter resorted to devious and underhanded means to delay the execution of the judgment
rendered by the MTC adverse to his client.

Held: SUSPENDED for (1) year. Rule 12.02. — A lawyer shall not file multiple actions arising from the
same cause. Rule 12.04. — A lawyer shall not unduly delay a case, impede the execution of a judgment
or misuse court processes.

Under Canon 19 of the Code of Professional Responsibility, a lawyer is required to represent his client
"within the bounds of the law." The Code enjoins a lawyer to employ only fair and honest means to
attain the lawful objectives of his client (Rule 19.01) and warns him not to allow his client to dictate the
procedure in handling the case (Rule 19.03). In short, a lawyer is not a gun for hire.
It is unethical for a lawyer to abuse or wrongfully use the judicial process, like the filing of dilatory
motions, repetitious litigation and frivolous appeals for the sole purpose of frustrating and delaying the
execution of a judgment.

A judgment can be annulled only on two grounds: (a) that the judgment is void for want of jurisdiction
or for lack of due process of law, or (b) that it has been obtained by fraud.

Judging from the number of actions filed by respondent to forestall the execution of the same judgment,
respondent is also guilty of forum shopping. Forum shopping exists when, by reason of an adverse
decision in one forum, defendant ventures to another for a more favorable resolution of his case.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

A.C. No. 3283 July 13, 1995

RODOLFO MILLARE, petitioner,

vs.
ATTY. EUSTAQUIO Z. MONTERO, respondent.

QUIASON, J.:

This is a complaint for disbarment. Pursuant to paragraph 2, Section 1, Rule 139-B of the Revised
Rules of Court, this Court resolved to refer it to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.

On April 15, 1994, the IBP Board of Governors rendered a decision, finding respondent guilty of
malpractice and recommending that he be suspended from the practice of law.

Pacifica Millare, the mother of the complainant, obtained a favorable judgment from the Municipal
Trial Court, Bangued, Abra (MTC) which ordered Elsa Dy Co to vacate the premises subject of the
ejectment case (Civil Case No. 844). Co, through respondent as counsel, appealed the decision to
the Regional Trial Court, Branch 11, Bangued, Abra (RTC). She neither filed a supersedeas bond
nor paid the rentals adjudged by the MTC. The RTC affirmed in toto the decision of the MTC.

The Court of Appeals (CA) dismissed Co's appeal from the decision of the RTC for failure to comply
with Section 22 of B.P. Blg. 129 and Section 22(b) of the Interim Rules and Guidelines (CA-G.R. CV
No. 11404). According to the CA, Co should have filed a petition for review and not an ordinary
appeal (Rollo, Vol. I, p. 22).
The judgment of the MTC became final and executory on November 19, 1986.

On January 2, 1987, a Manifestation and Motion was filed by respondent as counsel for Co in CA-
G.R. CV No. 11404, arguing that the decisions of the MTC and the RTC were null and void for being
contrary to law, justice and equity for allowing the lessor to increase by 300% the rentals for an old
house. Respondent, admitting his mistake in filing an ordinary appeal instead of a petition for review,
prayed that he be allowed to file an action for annulment.

On February 23, 1987, the CA gave due course to respondent's Manifestation and Motion and let the
records remain with it. However, on November 10, 1987, the said court ordered the records in CA-
G.R. CV No. 11404 to be remanded to the court a quo.

On March 9, 1987, respondent filed with the CA a Petition for Annulment of Decisions and/or
Reformation or Novation of Decisions of the MTC and the RTC (CA-G.R. SP No. 11690), insisting
that the decisions were not in accordance with existing laws and policies. On December 17, 1987,
the CA dismissed the petition for annulment or novation explaining that —

. . . , aside from the reliefs provided in these two sections (Secs. 1 & 2, Rule 38),
there is no other means whereby the defeated party may procure final and executory
judgment to be set aside with a view to the renewal of the litigation, unless (a) the
judgment is void for want of jurisdiction or lack of due process of law, or (b) it has
been obtained by fraud, . . . . There is no allegation in the present complaint to the
effect that the judgments in the former cases were secured through fraud (Rollo, Vol.
I, p. 35; Emphasis supplied).

On January 15, 1988, respondent filed an Urgent Motion for Reconsideration and Motion to Set
Motion for Reconsideration for Oral Arguments of the CA decision. The CA denied the motion.
Again, respondent requested the CA to set his Motion For Oral Arguments on April 14, 1988.

In a resolution dated February 12, 1988, the CA denied the Motion for Oral Argument and in a
resolution dated October 18, 1988, denied the motion for reconsideration of the February 12
Resolution.

Respondent then filed a Petition for Review on Certiorari with this Court (G.R. No. 86084)
questioning the decisions of the MTC and the RTC in favor of petitioner's mother. In a Resolution
dated January 4, 1989, we denied the petition for having been filed and paid late on December 12,
1988 and November 12, 1988, respectively. A motion for reconsideration from such resolution was
likewise denied with finality.

Respondent filed a Motion for the Issuance of a Prohibitory or Restraining Order (dated July 6, 1988)
in CA-G.R. SP No. 11690.

On April 12, 1988, the mother of complainant filed a Motion for Execution of the judgment in Civil
Case No. 844. Respondent filed an Opposition to the Motion for Execution on the ground that the
case was still pending review by the CA in CA-G.R. SP No. 11690 and therefore the motion for
execution was premature. On August 23, 1988, the MTC ordered the issuance of a writ of execution.
Respondent filed a motion for reconsideration, which was denied. The RTC affirmed the order for the
issuance of the writ of execution. Thus, a writ of execution was issued on October 18, 1988.

On October 26, 1988, respondent filed a special civil action (SP CV No. 624) with the RTC, Branch
1, Bangued, Abra for certiorari, prohibition, mandamus with preliminary injunction against the MTC,
Provincial Sheriff and complainant's mother, seeking to annul the writ of execution issued in MTC
Civil Case No. 844 and RTC Civil Case No. 344. Respondent alleged that the order granting the writ
of execution was issued with grave abuse of discretion amounting to lack of jurisdiction since a
petition to annul the decisions (CA-G.R. SP No. 11690) was still pending with the CA.

On October 28, 1988, the provincial sheriff, Romulo V. Paredes, deferred the implementation of the
writ of execution until the petition filed in SP CV No. 624 for certiorari was resolved. The CA denied
in SP CV No. 624 respondent's Urgent Motion to Set Aside and Declare Null and Void the Writ of
Execution.

From the decision of the RTC, Branch 1, Abra in SP CV No. 624 denying the Petition for Certiorari,
Prohibition, Mandamus with Preliminary Issuance of Prohibitory Order, respondent again filed an
Appeal and/or Review by Certiorari, Etc. with the CA (CA-G.R. SP No. 17040).

II

We have no reason to reverse the findings of the IBP Board of Governors.

Under Canon 19 of the Code of Professional Responsibility, a lawyer is required to represent his
client "within the bounds of the law." The Code enjoins a lawyer to employ only fair and honest
means to attain the lawful objectives of his client (Rule 19.01) and warns him not to allow his client to
dictate the procedure in handling the case (Rule 19.03). In short, a lawyer is not a gun for hire.

Advocacy, within the bounds of the law, permits the attorney to use any arguable construction of the
law or rules which is favorable to his client. But the lawyer is not allowed to knowingly advance a
claim or defense that is unwarranted under existing law. He cannot prosecute patently frivolous and
meritless appeals or institute clearly groundless actions (Annotated Code of Professional
Responsibility 310 [1979]). Professional rules impose limits on a lawyer's zeal and hedge it with
necessary restrictions and qualifications (Wolfram, Modern Legal Ethics 579-582 [1986]).

Under Canon 12 of the Code of Professional Responsibility, a lawyer is required to exert every effort
and consider it his duty to assist in the speedy and efficient administration of justice. Implementing
said Canon are the following rules:

Rule 12.02. — A lawyer shall not file multiple actions arising from the same cause.

xxx xxx xxx

Rule 12.04. — A lawyer shall not unduly delay a case, impede the execution of a
judgment or misuse court processes.

It is unethical for a lawyer to abuse or wrongfully use the judicial process, like the filing of dilatory
motions, repetitious litigation and frivolous appeals for the sole purpose of frustrating and delaying
the execution of a judgment (Edelstein, The Ethics of Dilatory Motions Practice: Time for Change, 44
Fordham L. Rev. 1069 [1976]; Overmeyer v. Fidelista and Deposit Co., 554 F. 2d 539, 543 [2d Cir.
1971]).

The rights of respondent's client in Civil Case No. 844 of the MTC were fully protected and her
defenses were properly ventilated when he filed the appeal from the MTC to the RTC. But
respondent thereafter resorted to devious and underhanded means to delay the execution of the
judgment rendered by the MTC adverse to his client. The said decision became executory even
pending its appeal with the RTC because of the failure of Co to file a supersedeas bond and to pay
the monthly rentals as they fell due. Furthermore, his petition for annulment of the decisions of the
MTC and RTC which he filed with the CA (CA-G.R. No. 11690) was defective and dilatory.
According to the CA, there was no allegation therein that the courts had no jurisdiction, that his client
was denied due process, or "that the judgments in the former cases were secured through fraud."

As ruled in Regidor v. Court of Appeals, 219 SCRA 530 (1993):

A judgment can be annulled only on two grounds: (a) that the judgment is void for
want of jurisdiction or for lack of due process of law, or (b) that it has been obtained
by fraud. . . . (at p. 534).

Moreover, when the CA ordered that the records of the case be remanded, respondent knew very
well that the decision of the MTC was already ripe for execution.

This Court, in People of Paombong, Bulacan v. Court of Appeals, 218 SCRA 423 (1993), ruled:

. . . [w]hen the judgment of a superior court is remanded to the trial court for
execution, the function of the trial court is ministerial only; the trial court is merely
obliged with becoming modesty to enforce that judgment and has no jurisdiction
either to modify in any way or to reverse the same. . . . (at p. 430).

(See also Valenzona v. Court of Appeals, 226 SCRA 306 [1993] and Garbo v. Court of Appeals, 226
SCRA 250 [1993]).

Respondent filed a total of six appeals, complaints or petitions to frustrate the execution of the MTC
judgment in Civil Case No. 844, to wit:

(1) Civil Case No. 344 — Appeal from the decision rendered in Civil Case No. 844 of
the Municipal Trial Court, Bangued, Abra, with the Regional Trial Court, Abra;

(2) CA-G.R. CV No. 11404 — Appeal from the decision of the Regional Trial Court,
Abra;

(3) CA-G.R. SP No. 11690 — An Action For the Annulment of Decisions And/Or
Reformation or Novation of Decisions filed with the Court of Appeals;

(4) G.R. No. 86084 — Petition For Review On Certiorari filed with the Supreme
Court;

(5) CA-G.R. SP No. 17040 — Appeal And/Or Review By Certiorari, Etc. filed also
with the Court of Appeals; and,

(6) SP Civil Action No. 624 — Petition For Certiorari, Prohibition, Mandamus with
Preliminary Issuance of Prohibitory Order filed with the Regional Trial Court, Branch
1, Bangued, Abra.

Judging from the number of actions filed by respondent to forestall the execution of the same
judgment, respondent is also guilty of forum shopping.

In Villanueva v. Adre 172 SCRA 876 (1989), the Court explained that forum shopping exists when,
by reason of an adverse decision in one forum, defendant ventures to another for a more favorable
resolution of his case. In the case of Gabriel v. Court of Appeals, 72 SCRA 272 (1976), this Court
explained that:

Such filing of multiple petitions constitutes abuse of the Court's processes and
improper conduct that tends to impede, obstruct and degrade the administration of
justice and will be punished as contempt of court. Needless to add, the lawyer who
filed such multiple or repetitious petitions (which obviously delays the execution of a
final and executory judgment) subjects himself to disciplinary action for
incompetence (for not knowing any better) or for willful violation of his duties as an
attorney to act with all good fidelity to the courts and to maintain only such actions as
appear to him to be just and are consistent with truth and honor (at p. 275).

By having wilfully and knowingly abused his rights of recourse in his efforts to get a favorable
judgment, which efforts were all rebuffed, respondent violated the duty of a member of the Bar to
institute actions only which are just and put up such defenses as he perceives to be truly contestable
under the laws (Garcia v. Francisco, 220 SCRA 512 [1993]). As correctly noted by the Committee on
Bar Discipline "in filing a number of pleadings, actions and petitioner, respondent 'has made a
mockery of the judicial processes' and disregarded canons of professional ethics in intentionally
frustrating the rights of a litigant in whose favor a judgment in the case was rendered, thus, 'abused
procedural rules to defeat ends of substantial justice'" (Report and Recommendation, IBP Committee
on Bar Discipline, p. 2).

WHEREFORE, respondent is SUSPENDED for one year.

SO ORDERED.

Padilla, Davide, Jr., Bellosillo and Kapunan, JJ., concur.

Republic of the Philippines

Supreme Court

Baguio City

THIRD DIVISION

JOHN HILARIO y SIBAL, G.R. No. 161070

Petitioner,

Present:

YNARES-SANTIAGO, J.
 Chairperson,

- versus - AUSTRIA-MARTINEZ,

CHICO-NAZARIO,

NACHURA, and

REYES, JJ.

PEOPLE OF THE PHILIPPINES, Promulgated:

Respondent. April 14, 2008

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

DECISION

AUSTRIA-MARTINEZ, J.:

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court filed by
John Hilario y Sibal (petitioner), seeking to annul and set aside the Resolutions dated August 19,
2003[1] and November 28 2003[2] of the Court of Appeals in CA-G.R. SP No. 75820.

The antecedents are as follows:

Petitioner, together with one Gilbert Alijid (Alijid), was charged with two counts[3] of Murder in the
Regional Trial Court (RTC), Branch 76, Quezon City to which petitioner, assisted by counsel de parte,
pleaded not guilty.

During trial, Atty. Raul Rivera of the Public Attorney's Office (PAO), counsel of Alijid, took over
representing petitioner in view of the death of the latter's counsel.

On December 5, 2001, the RTC rendered its Decision[4] finding petitioner and his co-
accused Alijid guilty beyond reasonable doubt of the crime of homicide and sentencing them to suffer
imprisonment of eight (8) years and one (1) day of prision mayor to fourteen (14) years and eight
(8) months of reclusion temporal in each count.

On May 10, 2002, petitioner, this time unassisted by counsel, filed with the RTC a Petition for
Relief[5] from the Decision dated December 5, 2001 together with an affidavit of merit. In his petition,
petitioner contended that at the time of the promulgation of the judgment, he was already confined
at Quezon City Jail and was directed to be committed to the National Penitentiary in Muntinlupa; that
he had no way of personally filing the notice of appeal thus he instructed his lawyer to file it on his
behalf; that he had no choice but to repose his full trust and confidence to his lawyer; that he had
instructed his lawyer to file the necessary motion for reconsideration or notice of appeal; that on May 2,
2002, he was already incarcerated at the New Bilibid Prisons, Muntinlupa City and learned from the
grapevine of his impending transfer to the Iwahig Penal Colony, Palawan; that believing that the notice
of appeal filed by his counsel prevented the Decision dated December 5, 2001 from becoming final to
warrant his transfer, he instructed his representative to get a copy of the notice of appeal from the
RTC; that no notice of appeal was filed by his lawyer in defiance of his clear instructions; and that the
RTC Decision showed that it was received by his counsel on February 1, 2002 and yet the counsel did not
inform him of any action taken thereon.

Petitioner claimed that he had a meritorious defense, to wit:

1. The Decision dated December 5, 2001, on page 16 thereof states an imprisonment term of
eight (8) years and one (1) day of Prision Mayor to fourteen (14) years and eight (8) months of Reclusion
Temporal - a matter which ought to be rectified;

2. The undersigned is a first time offender;

3. No ruling was laid down on the stipulated facts (Decision, p. 3) relative to the (1) absence of
counsel during the alleged inquest, and (2) absence of warrant in arresting the accused after ten (10)
days from the commission of the crime;

4. Absence of a corroborating witness to the purported lone eyewitness, as against the

corroborated testimony of accused-petitioner's alibi;

5. The Commission on Human Rights investigation on the torture of the accused-petitioner;

6. and others.[6]

Petitioner argued that he was meted a total of 16 years imprisonment or almost equal to the previous
capital punishment of 20 years which was given an automatic review by the Supreme Court, thus it is of
greater interest of justice that his case be reviewed by the appellate court; and that no damage will be
sustained if the appeal is given due course since he continues to languish in jail while the Petition for
Relief is pending.

The Assistant City Prosecutor filed his Comment on the Petition for Relief where he contended that the
petition should no longer be entertained; and that perfection of appeal in the manner and within the
period permitted by law was not only mandatory but jurisdictional and failure to perfect the appeal
rendered the judgment final and executory.

The records do not show that the RTC required petitioner's counsel to whom petitioner attributed the
act of not filing the notice of appeal to file his comment.

On September 30, 2002, petitioner's counsel filed a Withdrawal of Appearance[7] from the case with
petitioner's consent. Again, the documents before us do not show the action taken by the RTC thereon.

In an Order[8] dated December 13, 2002, the RTC dismissed petitioner's petition for relief with the
following disquisition:

After a careful study of the instant petition and the arguments raised by the contending parties, the
Court is not persuaded by petitioner/accused's allegation that he was prevented from filing a notice of
appeal due to excusable negligence of his counsel.

Accused's allegation that he indeed specifically instructed his counsel to file a notice of appeal of the
Decision dated [sic] and the latter did not heed his instruction is at best self-serving and unsubstantiated
and thus, unworthy of credence. At any rate, even if said omission should be considered as negligence, it
is a well-settled rule that negligence of counsel is binding on the client. x x x Besides, nowhere does it
appear that accused/petitioner was prevented from fairly presenting his defense nor does it appear that
he was prejudiced as the merits of this case were adequately passed upon in the Decision dated
December 5, 2001.

It must also be pointed out that in his petition for relief, he stated that he instructed his counsel to file
the necessary motion for reconsideration or notice of appeal of the Decision dated December 5, 2001,
whereas in his affidavit of merit, he claimed to have told his counsel to simply file a notice of appeal
thereof.[9] (Emphasis supplied)
Petitioner, again by himself, filed a petition for certiorari with the CA on the ground that the RTC
committed grave abuse of discretion in dismissing his petition for relief. He claims that the delay in
appealing his case without his fault constitutes excusable negligence to warrant the granting of
his petition for relief.

In a Resolution dated August 19, 2003, the CA dismissed the petition in this wise:

It appearing that petitioner in the instant petition for certiorari failed to attach the following documents
cited in his petition, namely:

1. The December 5, 2001 Decision;

2. Comment of the City Prosecutor;

3. Manifestation of petitioner's counsel de oficio signifying his withdrawal as petitioner's counsel.

The instant petition for certiorari is hereby DISMISSED pursuant to Section 2, Rule 42 of the 1997 Rules
of Civil Procedure and as prayed for by the Solicitor General.[10]

Petitioner's motion for reconsideration was denied in a Resolution dated November 28, 2003 for having
been filed beyond the 15-day reglementary period, in violation of Section 1, Rule 52 of theRules of Court
and for failure to attach to the petition, the relevant and pertinent documents. The CA also stressed
that procedural rules are not to be belittled simply because their non-observance may have resulted in
prejudice to a party's substantive rights.

Hence, herein recourse filed by petitioner, still unassisted by counsel, raising the following issues:

Whether or not the delay in appealing the instant case due to the defiance of the petitioner's
counsel de oficio to seasonably file a Notice of Appeal, constitutes excusable negligence to entitle the
undersigned detention prisoner/ petitioner to pursue his appeal?

Whether or not pro hac vice, the mere invocation of justice warrants the review of a final
and executory judgment?

Petitioner contends that the negligence of his counsel de oficio cannot be binding on him for the latter's
defiance of his instruction to appeal automatically breaks the fiduciary relationship between counsel-
client and cannot be against the client who was prejudiced; that this breach of trust cannot easily be
concocted in this situation considering that it was a counsel de oficio, a lawyer from PAO, who broke the
fiduciary relationship; that the assailed CA Resolutions both harped on technicalities to uphold the
dismissal by the RTC of his petition for relief; that reliance on technicalities to the prejudice of petitioner
who is serving 14 years imprisonment for a crime he did not commit is an affront to the policy
promulgated by this Court that dismissal purely on technical grounds is frowned upon especially if it will
result to unfairness; and that it would have been for the best interest of justice for the CA to have
directed the petitioner to complete the records instead of dismissing the petition outright.

In his Comment, the OSG argues that the mere invocation of justice does not warrant the review of an
appeal from a final and executory judgment; that perfection of an appeal in the manner and within the
period laid down by law is not only mandatory but jurisdictional and failure to perfect the appeal
renders the judgment sought to be reviewed final and not appealable; and that petitioner's appeal after
the finality of judgment of conviction is an exercise in futility, thus the RTC properly dismissed
petitioner's petition for relief from judgment. The OSG further claims that notice to counsel is notice to
clients and failure of counsel to notify his client of an adverse judgment would not constitute excusable
negligence and therefore binding on the client.

We grant the petition.

The CA dismissed the petition for certiorari filed under Rule 65 of the Rules of Court, in relation to Rule
46, on the ground that petitioner failed to attach certain documents which the CA found to be relevant
and pertinent to the petition for certiorari.

The requirements to attach such relevant pleadings under Section 1, Rule 65 is read in relation to
Section 3, Rule 46 of the Rules of Court, thus:

Section 1, Rule 65 provides:

SECTION. 1. Petition for certiorari.

xxxx

The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject
thereof, copies of all pleadings and documents relevant and pertinent thereto x x x.

Section 3, Rule 46, provides:

SEC. 3. Contents and filing of petition; effect of non-compliance with requirements.

xxxx

[The petition] shall be x x x accompanied by a clearly legible duplicate original or certified true copy of
the judgment, order, resolution, or ruling subject thereof, such material portions of the record as are
referred to therein, and other documents relevant or pertinent thereto x x x.

xxxx

The failure of the petitioner to comply with any of the foregoing requirements shall be sufficient ground
for the dismissal of the petition.

The initial determination of what pleadings, documents or orders are relevant and pertinent to the
petition rests on the petitioner. If, upon its initial review of the petition, the CA is of the view that
additional pleadings, documents or order should have been submitted and appended to the petition,
the following are its options: (a) dismiss the petition under the last paragraph of Rule 46 of the Rules of
Court; (b) order the petitioner to submit the required additional pleadings, documents, or order within a
specific period of time; or (c) order the petitioner to file an amended petition appending thereto the
required pleadings, documents or order within a fixed period.[11]

The RTC Decision dated December 5, 2001, finding petitioner guilty of two counts of homicide, the
Comment of the City Prosecutor as well as the counsel's withdrawal of appearance were considered by
the CA as relevant and pertinent to the petition for certiorari, thus it dismissed the petition for failure to
attach the same. However, the CA failed to consider the fact that the petition before it was filed by
petitioner, a detained prisoner, without the benefit of counsel. A litigant who is not a lawyer is not
expected to know the rules of procedure. In fact, even the most experienced lawyers get tangled in the
web of procedure.[12] We have held in a civil case that to demand as much from ordinary citizens whose
only compelle intrare is their sense of right would turn the legal system into an intimidating monstrosity
where an individual may be stripped of his property rights not because he has no right to the property
but because he does not know how to establish such right.[13] This finds application specially if the liberty
of a person is at stake. As we held in Telan v. Court of Appeals:

The right to counsel in civil cases exists just as forcefully as in criminal cases, specially so when as a
consequence, life, liberty, or property is subjected to restraint or in danger of loss.
In criminal cases, the right of an accused person to be assisted by a member of the bar is
immutable. Otherwise, there would be a grave denial of due process. Thus, even if the judgment had
become final and executory, it may still be recalled, and the accused afforded the opportunity to be
heard by himself and counsel.

xxxx

Even the most experienced lawyers get tangled in the web of procedure. The demand as much from
ordinary citizens whose only compelle intrare is their sense of right would turn the legal system into an
intimidating monstrosity where an individual may be stripped of his property rights not because he has
no right to the property but because he does not know how to establish such right.

The right to counsel is absolute and may be invoked at all times. More so, in the case of an on-going
litigation, it is a right that must be exercised at every step of the way, with the lawyer faithfully keeping
his client company.

No arrangement or interpretation of law could be as absurd as the position that the right to counsel
exists only in the trial courts and that thereafter, the right ceases in the pursuit of the
appeal.[14] (Emphasis supplied)

The filing of the petition for certiorari by petitioner without counsel should have alerted the CA
and should have required petitioner to cause the entry of appearance of his counsel. Although the
petition filed before the CA was a petition for certiorari assailing the RTC Order dismissing the petition
for relief, the ultimate relief being sought by petitioner was to be given the chance to file an appeal from
his conviction, thus the need for a counsel is more pronounced. To repeat the ruling in Telan, no
arrangement or interpretation of law could be as absurd as the position that the right to counsel exists
only in the trial courts and that thereafter, the right ceases in the pursuit of the appeal.[15] It is even
more important to note that petitioner was not assisted by counsel when he filed his petition for relief
from judgment with the RTC.

It cannot be overstressed therefore, that in criminal cases, as held in Telan, the right of an accused
person to be assisted by a member of the bar is immutable; otherwise, there would be a grave denial of
due process.

Cases should be determined on the merits after full opportunity to all parties for ventilation of their
causes and defenses, rather than on technicality or some procedural imperfections. In that way, the
ends of justice would be served better.[16]
The CA denied petitioner's motion for reconsideration for having been filed late. It appears that the CA
Resolution dismissing the petition for certiorari was received at the address written in the petition
on September 1, 2003, and that petitioner filed his motion for reconsideration on September 18, 2003,
or two days late.

While as a general rule, the failure of petitioner to file his motion for reconsideration within the 15-
day reglementary period fixed by law rendered the resolution final and executory, we have on some
occasions relaxed this rule. Thus, in Barnes v. Padilla[17] we held:

However, this Court has relaxed this rule in order to serve substantial justice considering (a) matters of
life, liberty, honor or property, (b) the existence of special or compelling circumstances, (c) the merits of
the case, (d) a cause not entirely attributable to the fault or negligence of the party favored by the
suspension of the rules, (e) a lack of any showing that the review sought is merely frivolous and dilatory,
and (f) the other party will not be unjustly prejudiced thereby.

Invariably, rules of procedure should be viewed as mere tools designed to facilitate the attainment of
justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather
than promote substantial justice, must always be eschewed. Even the Rules of Court reflects this
principle. The power to suspend or even disregard rules can be so pervasive and compelling as to alter
even that which this Court itself had already declared to be final.

In De Guzman v. Sandiganbayan, this Court, speaking through the late Justice Ricardo J. Francisco, had
occasion to state:

The Rules of Court was conceived and promulgated to set forth guidelines in the dispensation of justice
but not to bind and chain the hand that dispenses it, for otherwise, courts will be mere slaves to or
robots of technical rules, shorn of judicial discretion. That is precisely why courts in rendering justice
have always been, as they ought to be guided by the norm that when on the balance, technicalities take
a backseat against substantive rights, and not the other way around. Truly then, technicalities, in the
appropriate language of Justice Makalintal, "should give way to the realities of the situation.

Indeed, the emerging trend in the rulings of this Court is to afford every party litigant the amplest
opportunity for the proper and just determination of his cause, free from the constraints of
technicalities.[18]

Moreover, in Basco v. Court of Appeals,[19] we also held:

Nonetheless, procedural rules were conceived to aid the attainment of justice. If a stringent application
of the rules would hinder rather than serve the demands of substantial justice, the former must yield to
the latter. Recognizing this, Section 2, Rule 1 of the Rules of Court specifically provides that:

SECTION 2. Construction. These rules shall be liberally construed in order to promote their object and to
assist the parties in obtaining just, speedy, and inexpensive determination of every action and
proceeding.[20]

Petitioner claims that he actually received the CA Resolution dismissing his petition for certiorari only on
September 4, 2003 even as the same Resolution was earlier received on September 1, 2003 at the
address written in his petition, i.e., c/o Robert S. Bacuraya, No. 9 Iris St., West Fairview,
1118, Quezon City, by a certain Leonora Coronel. Apparently, Bacuraya is not a lawyer. Ordinarily,
petitioner being detained at the National Penitentiary, Muntinlupa, the CA should have also sent a copy
of such Resolution to his place of detention. Considering that petitioner only received the Resolution
on September 4, 2003, we find the two days delay in filing his motion for reconsideration pardonable as
it did not cause any prejudice to the other party. There is no showing that petitioner was motivated by a
desire to delay the proceedings or obstruct the administration of justice. The suspension of the Rules is
warranted in this case since the procedural infirmity was not entirely attributable to the fault or
negligence of petitioner.

Rules of procedure are mere tools designed to expedite the decision or resolution of cases and other
matters pending in court. A strict and rigid application of rules that would result in technicalities that
tend to frustrate rather than promote substantial justice must be avoided.[21]

In dismissing the petition for certiorari filed before it, the CA clearly put a premium on technicalities and
brushed aside the issue raised before it by petitioner, i.e., whether the RTC committed grave
abuse of discretion in dismissing petitioner's petition for relief thus preventing him from taking an
appeal from his conviction.

Even if the judgment had become final and executory, it may still be recalled, and the accused afforded
the opportunity to be heard by himself and counsel.[22] However, instead of remanding the case to the
CA for a decision on the merits, we opt to resolve the same so as not to further delay
the final disposition of this case.

The RTC denied the petition for relief as it found petitioner's claim that his counsel did not heed his
instruction to file an appeal to be unsubstantiated and self serving; and that if there was indeed such
omission committed by the counsel, such negligence is binding on the client.
Petitioner insists that the failure of his counsel to timely file a notice of appeal of his judgment of
conviction despite his explicit instruction to do so constitutes excusable negligence and so his petition
for relief should have been granted.

We find that the RTC committed grave abuse of discretion in dismissing petitioner's petition for
relief from judgment.

Petitioner was represented in the RTC by Atty. Rivera of the PAO. Section 1, Article IV of PAO
Memorandum Circular No.18 series of 2002, the Amended Standard Office Procedures in Extending
Legal Assistance (PAO Memorandum Circular), provides that all appeals must be made upon the request
of the client himself and only meritorious cases shall be appealed; while Section 2, Article II of PAO
Memorandum Circular provides that in criminal cases, the accused enjoys the constitutional
presumption of innocence until the contrary is proven, hence cases of defendants in criminal actions are
considered meritorious and therefore, should be appealed, upon the client's request.

In this case, petitioner claims he had instructed the PAO lawyer to file an appeal. Under the PAO
Memorandum Circular, it was the duty of the latter to perfect the appeal. Thus, in determining whether
the petition for relief from judgment is based on a meritorious ground, it
was crucial to ascertain whether petitioner indeed gave explicit instruction to the PAO lawyer to file an
appeal but the latter failed to do so.

To determine the veracity of petitioner's claim, it was incumbent upon the RTC to have required the
PAO lawyer to comment on the petition for relief. However, it appears from the records that the RTC
only required the City Prosecutor to file a comment on the petition.

The RTC Order dismissing the petition for relief did not touch on the question whether the PAO lawyer
was indeed negligent in not filing the appeal as it merely stated that even if said omission, i.e., not filing
the appeal despite his clients instruction to do so, should be considered as negligence, it is a well-settled
rule that negligence of counsel is binding on the client.

While as a general rule, negligence of counsel may not be condoned and should bind the client,[23] the
exception is when the negligence of counsel is so gross, reckless and inexcusable that the client is
deprived of his day in court.[24] In Aguilar v. Court of Appeals,[25] we held:

x x x Losing liberty by default of an insensitive lawyer should be frowned upon despite the fiction that a
client is bound by the mistakes of his lawyer. The established jurisprudence holds:
xxxx

The function of the rule that negligence or mistake of counsel in procedure is imputed to and binding
upon the client, as any other procedural rule, is to serve as an instrument to advance the ends of justice.
When in the circumstances of each case the rule desert its proper office as an aid to justice and
becomes its great hindrance and chief enemy, its rigors must be relaxed to admit exceptions thereto and
to prevent a manifest miscarriage of justice.

xxxx

The court has the power to except a particular case from the operation of the rule whenever the
purposes of justice require it.

xxxx

If the incompetence, ignorance or inexperience of counsel is so great and the error committed as a
result thereof is so serious that the client, who otherwise has a good cause, is prejudiced and denied his
day in court, the litigation may be reopened to give the client another chance to present his case. In a
criminal proceeding, where certain evidence was not presented because of counsel's error or
incompetence, the defendant in order to secure a new trial must satisfy the court that he has a good
defense and that the acquittal would in all probability have followed the introduction of the omitted
evidence. What should guide judicial action is that a party be given the fullest opportunity to establish
the merits of his action or defense rather than for him to lose life, liberty, honor or property on mere
technicalities.[26]

The PAO lawyer, Atty. Rivera, filed his Withdrawal of Appearance on September 30, 2002, almost three
months before the RTC rendered its assailed Order dated December 13, 2002,dismissing the petition
for relief. The RTC had ample time to require the PAO lawyer to comment on the petition for relief from
judgment, before issuing the questioned Order. Had the RTC done so, there would have been a factual
basis for the RTC to determine whether or not the PAO lawyer was grossly negligent; and eventually,
whether the petition for relief from judgment is meritorious. If there was no instruction from petitioner
to file an appeal, then there was no obligation on the part of the PAO lawyer to file an appeal as stated
in the PAO Memorandum Circular and negligence could not be attributed to him. However, if indeed
there was such an instruction to appeal but the lawyer failed to do so, he could be considered negligent.
Thus, there was no basis for the RTC to conclude that the claim of petitioner that he instructed the PAO
lawyer to file an appeal as self-serving and unsubstantiated. The RTC's dismissal of the petition for relief
was done with grave abuse of discretion amounting to an undue denial of the petitioner's right to
appeal.

The RTC faulted petitioner for claiming in his petition for relief that he instructed his counsel to file the
necessary motion for reconsideration or notice of appeal; while in his affidavit of merit, he claimed to
have told his counsel to simply file a notice of appeal. We do not find such circumstance sufficient
ground to dismiss the petition considering that he filed the petition for relief unassisted by counsel.

In all criminal prosecutions, the accused shall have the right to appeal in the manner prescribed by
law. The importance and real purpose of the remedy of appeal has been emphasized in Castro v. Court
of Appeals[27] where we ruled that an appeal is an essential part of our judicial system and trial courts
are advised to proceed with caution so as not to deprive a party of the right to appeal and instructed
that every party-litigant should be afforded the amplest opportunity for the proper and just disposition
of his cause, freed from the constraints of technicalities. While this right is statutory, once it is granted
by law, however, its suppression would be a violation of due process, a right guaranteed by the
Constitution. Thus, the importance of finding out whether petitioner's loss of the right to appeal was
due to the PAO lawyer's negligence and not at all attributed to petitioner.

However, we cannot, in the present petition for review on certiorari, make a conclusive finding that
indeed there was excusable negligence on the part of the PAO lawyer which prejudiced petitioner's right
to appeal his conviction. To do so would be pure speculation or conjecture. Therefore, a remand of this
case to the RTC for the proper determination of the merits of the petition for relief from judgment is just
and proper.

WHEREFORE, the petition is GRANTED. The Resolutions dated August 19, 2003 and November
28, 2003 of the Court of Appeals are REVERSED and SET ASIDE. The Order dated December 13, 2002 of
the Regional Trial Court of Quezon City, Branch 76, is SET ASIDE. The RTC is hereby ordered to require
Atty. Raul Rivera of the Public Attorney's Office to file his comment on the petition for relief from
judgment filed by petitioner, hold a hearing thereon, and thereafter rule on the merits of the petition
for relief from judgment, with dispatch.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
 EN BANC

B.M. No. 2540 September 24, 2013

IN RE: PETITION TO SIGN IN THE ROLL OF ATTORNEYS

MICHAEL A. MEDADO, Petitioner.

RESOLUTION

SERENO, CJ.:

We resolve the instant Petition to Sign in the Roll of Attorneys filed by petitioner Michael A. Medado
(Medado).

Medado graduated from the University of the Philippines with the degree of Bachelor of Laws in
19791 and passed the same year's bar examinations with a general weighted average of 82.7.2

On 7 May 1980, he took the Attorney’s Oath at the Philippine International Convention Center
(PICC) together with the successful bar examinees.3 He was scheduled to sign in the Roll of
Attorneys on 13 May 1980,4 but he failed to do so on his scheduled date, allegedly because he had
misplaced the Notice to Sign the Roll of Attorneys5 given by the Bar Office when he went home to his
province for a vacation.6

Several years later, while rummaging through his old college files, Medado found the Notice to Sign
the Roll of Attorneys. It was then that he realized that he had not signed in the roll, and that what he
had signed at the entrance of the PICC was probably just an attendance record.7

By the time Medado found the notice, he was already working. He stated that he was mainly doing
corporate and taxation work, and that he was not actively involved in litigation practice. Thus, he
operated "under the mistaken belief that since he had already taken the oath, the signing of the Roll
of Attorneys was not as urgent, nor as crucial to his status as a lawyer";8 and "the matter of signing
in the Roll of Attorneys lost its urgency and compulsion, and was subsequently forgotten."9

In 2005, when Medado attended Mandatory Continuing Legal Education (MCLE) seminars, he was
required to provide his roll number in order for his MCLE compliances to be credited.10

Not having signed in the Roll of Attorneys, he was unable to provide his roll number.

About seven years later, or on 6 February 2012, Medado filed the instant Petition, praying that he be
allowed to sign in the Roll of Attorneys.11

The Office of the Bar Confidant (OBC) conducted a clarificatory conference on the matter on 21
September 201212 and submitted a Report and Recommendation to this Court on 4 February
2013.13 The OBC recommended that the instant petition be denied for petitioner’s gross negligence,
gross misconduct and utter lack of merit.14 It explained that, based on his answers during the
clarificatory conference, petitioner could offer no valid justification for his negligence in signing in the
Roll of Attorneys.15
After a judicious review of the records, we grant Medado’s prayer in the instant petition, subject to
the payment of a fine and the imposition of a penalty equivalent to suspension from the practice of
law.

At the outset, we note that not allowing Medado to sign in the Roll of Attorneys would be akin to
imposing upon him the ultimate penalty of disbarment, a penalty that we have reserved for the most
serious ethical transgressions of members of the Bar.

In this case, the records do not show that this action is warranted.

For one, petitioner demonstrated good faith and good moral character when he finally filed the
instant Petition to Sign in the Roll of Attorneys. We note that it was not a third party who called this
Court’s attention to petitioner’s omission; rather, it was Medado himself who acknowledged his own
lapse, albeit after the passage of more than 30 years. When asked by the Bar Confidant why it took
him this long to file the instant petition, Medado very candidly replied:

Mahirap hong i-explain yan pero, yun bang at the time, what can you say? Takot ka kung anong
mangyayari sa ‘yo, you don’t know what’s gonna happen. At the same time, it’s a combination of
apprehension and anxiety of what’s gonna happen. And, finally it’s the right thing to do. I have to
come here … sign the roll and take the oath as necessary.16

For another, petitioner has not been subject to any action for disqualification from the practice of
law,17 which is more than what we can say of other individuals who were successfully admitted as
members of the Philippine Bar. For this Court, this fact demonstrates that petitioner strove to adhere
to the strict requirements of the ethics of the profession, and that he has prima facie shown that he
possesses the character required to be a member of the Philippine Bar.

Finally, Medado appears to have been a competent and able legal practitioner, having held various
positions at the Laurel Law Office,18 Petron, Petrophil Corporation, the Philippine National Oil
Company, and the Energy Development Corporation.19

All these demonstrate Medado’s worth to become a full-fledged member of the Philippine Bar. While 1âwphi1

the practice of law is not a right but a privilege,20 this Court will not unwarrantedly withhold this
privilege from individuals who have shown mental fitness and moral fiber to withstand the rigors of
the profession.

That said, however, we cannot fully exculpate petitioner Medado from all liability for his years of
inaction.

Petitioner has been engaged in the practice of law since 1980, a period spanning more than 30
years, without having signed in the Roll of Attorneys.21 He justifies this behavior by characterizing his
acts as "neither willful nor intentional but based on a mistaken belief and an honest error of
judgment."22

We disagree.

While an honest mistake of fact could be used to excuse a person from the legal consequences of
his acts23 as it negates malice or evil motive,24 a mistake of law cannot be utilized as a lawful
justification, because everyone is presumed to know the law and its consequences.25 Ignorantia
factiexcusat; ignorantia legis neminem excusat.
Applying these principles to the case at bar, Medado may have at first operated under an honest
mistake of fact when he thought that what he had signed at the PICC entrance before the oath-
taking was already the Roll of Attorneys. However, the moment he realized that what he had signed
was merely an attendance record, he could no longer claim an honest mistake of fact as a valid
justification. At that point, Medado should have known that he was not a full-fledged member of the
Philippine Bar because of his failure to sign in the Roll of Attorneys, as it was the act of signing
therein that would have made him so.26 When, in spite of this knowledge, he chose to continue
practicing law without taking the necessary steps to complete all the requirements for admission to
the Bar, he willfully engaged in the unauthorized practice of law.

Under the Rules of Court, the unauthorized practice of law by one’s assuming to be an attorney or
officer of the court, and acting as such without authority, may constitute indirect contempt of
court,27 which is punishable by fine or imprisonment or both.28 Such a finding, however, is in the
nature of criminal contempt29 and must be reached after the filing of charges and the conduct of
hearings.30 In this case, while it appears quite clearly that petitioner committed indirect contempt of
court by knowingly engaging in unauthorized practice of law, we refrain from making any finding of
liability for indirect contempt, as no formal charge pertaining thereto has been filed against him.

Knowingly engaging in unauthorized practice of law likewise transgresses Canon 9 of 'the Code of
Professional Responsibility, which provides:

CANON 9 -A lawyer shall not, directly or indirectly, assist in the unauthorized practice of law.

While a reading of Canon 9 appears to merely prohibit lawyers from assisting in the unauthorized
practice of law, the unauthorized practice of law by the lawyer himself is subsumed under this
provision, because at the heart of Canon 9 is the lawyer's duty to prevent the unauthorized practice
of law. This duty likewise applies to law students and Bar candidates. As aspiring members of the
Bar, they are bound to comport themselves in accordance with the ethical standards of the legal
profession.

Turning now to the applicable penalty, previous violations of Canon 9have warranted the penalty of
suspension from the practice of law.31 As Medado is not yet a full-fledged lawyer, we cannot suspend
him from the practice of law. However, we see it fit to impose upon him a penalty akin to suspension
by allowing him to sign in the Roll of Attorneys one (1) year after receipt of this Resolution. For his
transgression of the prohibition against the unauthorized practice of law, we likewise see it fit to fine
him in the amount of P32,000. During the one year period, petitioner is warned that he is not allowed
to engage in the practice of law, and is sternly warned that doing any act that constitutes practice of
law before he has signed in the Roll of Attorneys will be dealt with severely by this Court.

WHEREFORE, the instant Petition to Sign in the Roll of Attorneys is hereby GRANTED. Petitioner
Michael A. Medado is ALLOWED to sign in the Roll of Attorneys ONE (1) YEAR after receipt of this
Resolution. Petitioner is likewise ORDERED to pay a FINE of P32,000 for his unauthorized practice
of law. During the one year period, petitioner is NOT ALLOWED to practice law, and is STERNLY
WARNED that doing any act that constitutes practice of law before he has signed in the Roll of
Attorneys will be dealt will be severely by this Court.

Let a copy of this Resolution be furnished the Office of the Bar Confidant, the Integrated Bar

of the Philippines, and the Office of the Court Administrator for circulation to all courts in the country.

SO ORDERED.
MARIA LOURDES P. A. SERENO
Chief Justice

THIRD DIVISION

JONAR SANTIAGO, A.C. No. 6252

Complainant,

Present:

Panganiban, J.,

Chairman,

- versus - Sandoval-Gutierrez,

Corona, and

Carpio Morales,* JJ

Promulgated:

Atty. EDISON V. RAFANAN,

Respondent. October 5, 2004

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

DECISION

PANGANIBAN, J.:
 N otaries public are expected to exert utmost care in the performance of their duties, which are
impressed with public interest. They are enjoined to comply faithfully with the solemnities and
requirements of the Notarial Law. This Court will not hesitate to mete out appropriate sanctions to
those who violate it or neglect observance thereof.

__________________

*
On leave.

The Case and the Facts

Before us is a verified Complaint[1] filed by Jonar Santiago, an employee of the Bureau of Jail
Management and Penology (BJMP), for the disbarment of Atty. Edison V. Rafanan. The Complaint
was filed with the Commission on Bar Discipline (CBD) of the Integrated Bar of the Philippines (IBP)
on January 16, 2001. It charged Atty. Rafanan with deceit; malpractice or other gross misconduct in
office under Section 27 of Rule 138[2] of the Rules of Court; and violation of Canons 1.01, 1.02 and
1.03[3], Canon 5[4], and Canons 12.07[5] and 12.08
of the Code of Professional Responsibility (CPR).

In his Report, IBP Investigating Commissioner Leland R. Villadolid Jr. summarized the allegations of
the complainant in this wise:

x x x. In his Letter-Complaint, Complainant alleged, among others, that Respondent in notarizing

several documents on different dates failed and/or refused to: a)make the proper notation regarding
the cedula or community tax certificate of the affiants; b) enter the details of the notarized documents
in the notarial register; and c) make and execute the certification and enter his PTR and IBP
numbers in the documents he had notarized, all in violation of the notarial provisions of the Revised
Administrative Code.

Complainant likewise alleged that Respondent executed an Affidavit in favor of his client and offered
the same as evidence in the case wherein he was actively representing his client. Finally,
Complainant alleges that on a certain date, Respondent accompanied by several persons waited for
Complainant after the hearing and after confronting the latter disarmed him of his sidearm and
thereafter uttered insulting words and veiled threats.[6]
On March 23, 2001, pursuant to the January 19, 2001 Order of the CBD,[7] Atty. Rafanan filed his verified
Answer.[8] He admitted having administered the oath to the affiants whose Affidavits were attached to the verified Complaint. He believed, however,
that the
non-notation of their Residence Certificates in the Affidavits and the Counter-affidavits was allowed.

He opined that the notation of residence certificates applied only to documents acknowledged by a
notary public and was not mandatory for affidavits related to cases pending before courts and other
government offices. He pointed out that in the latter, the affidavits, which were sworn to before
government prosecutors, did not have to indicate the residence certificates of the affiants. Neither
did other notaries public in Nueva Ecija -- some of whom were older practitioners -- indicate the
affiants residence certificates on the documents they notarized, or have entries in their notarial
register for these documents.

As to his alleged failure to comply with the certification required by Section 3 of Rule 112[9] of the Rules of
Criminal Procedure, respondent explained that as counsel of the affiants, he had the option to comply or not with the certification. To nullify the
Affidavits, it was complainant who was duty-bound to bring the said noncompliance to the attention of the prosecutor conducting the preliminary
investigation.

As to his alleged violation of Rule 12.08 of the CPR, respondent argued that lawyers could testify on
behalf of their clients on substantial matters, in cases where [their] testimony is essential to the ends
of justice. Complainant charged respondents clients with attempted murder. Respondent averred
that since they were in his house when the alleged crime occurred, his testimony is very essential to
the ends of justice.

Respondent alleged that it was complainant who had threatened and harassed his clients after the
hearing of their case by the provincial prosecutor on January 4, 2001. Respondent requested the
assistance of the Cabanatuan City Police the following day, January 5, 2001, which was the next
scheduled hearing, to avoid a repetition of the incident and to allay the fears of his clients. In support
of his allegations, he submitted Certifications[10] from the Cabanatuan City Police and the Joint Affidavit[11] of the two police
officers who had assisted them.

Lastly, he contended that the case had been initiated for no other purpose than to harass him,
because he was the counsel of Barangay Captain Ernesto Ramos in the cases filed by the latter
before the ombudsman and the BJMP against complainant.

After receipt of respondents Answer, the CBD, through Commissioner Tyrone R. Cimafranca, set the
case for hearing on June 5, 2001, at two oclock in the afternoon. Notices[12] of the hearing were sent to the parties
by registered mail. On the scheduled date and time of the hearing, only complainant appeared.Respondent was unable to do so, apparently because
he had received the Notice only on June 8, 2001.[13] The hearing was reset to July 3, 2001 at two oclock in the afternoon.

On the same day, June 5, 2001, complainant filed his Reply[14] to the verified Answer of respondent. The latters
Rejoinder was received by the CBD on July 13, 2001.[15] It also received complainants Letter-Request[16] to dispense with the hearings. Accordingly,
it granted that request in its Order[17] dated July 24, 2001, issued through Commissioner Cimafranca. It thereby directed the parties to submit their
respective memoranda within fifteen days from receipt of the Order, after which the case was to be deemed submitted for resolution.

The CBD received complainants Memorandum[18] on September 26, 2001. Respondent did not file any.

The IBPs Recommendation

On September 27, 2003, the IBP Board of Governors issued Resolution No. XVI-2003-172[19] approving
and adopting the Investigating Commissioners Report that respondent had violated specific requirements of the Notarial Law on the execution of a
certification, the entry of such certification in the notarial register, and the indication of the affiants residence certificate. The IBP Board of Governors
found his excuse for the violations unacceptable. It modified, however, the recommendation[20] of the investigating commissioner by increasing the
fine to P3,000 with a warning that any repetition of the violation will be dealt with a heavier penalty.

The other charges -- violation of Section 27 of Rule 138 of the Rules of Court; and Canons 1.01 to
1.03, 12.07 and 12.08 of the CPR -- were dismissed for insufficiency of evidence.

The Courts Ruling

We agree with the Resolution of the IBP Board of Governors.

Respondents Administrative Liability

Violation of the Notarial Law

The Notarial Law is explicit on the obligations and duties of notaries public. They are required to
certify that the party to every document acknowledged before them has presented the proper
residence certificate (or exemption from the residence tax); and to enter its number, place of issue
and date as part of such certification.[21] They are also required to maintain and keep a notarial
register; to enter therein all instruments notarized by them; and to give to each instrument executed,
sworn to, or acknowledged before [them] a number corresponding to the one in [their] register [and
to state therein] the page or pages of [their] register, on which the same is recorded.[22] Failure to
perform these duties would result in the revocation of their commission as notaries public.[23]

These formalities are mandatory and cannot be simply neglected, considering the degree of
importance and evidentiary weight attached to notarized documents. Notaries public entering into
their commissions are presumed to be aware of these elementary requirements.

In Vda. de Rosales v. Ramos,[24] the Court explained the value and meaning of notarization as
follows:

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

For this reason, notaries public should not take for granted the solemn duties pertaining to their
office. Slipshod methods in their performance of the notarial act are never to be countenanced. They
are expected to exert utmost care in the performance of their duties,[25] which are dictated by public
policy and are impressed with public interest.

It is clear from the pleadings before us -- and respondent has readily admitted -- that he violated the
Notarial Law by failing to enter in the documents notations of the residence certificate, as well as the
entry number and the pages of the notarial registry.

Respondent believes, however, that noncompliance with those requirements is not mandatory for
affidavits relative to cases pending before the courts and government agencies. He points to similar
practices of older notaries in Nueva Ecija.

We cannot give credence to, much less honor, his claim. His belief that the requirements do not
apply to affidavits is patently irrelevant. No law dispenses with these formalities. Au contraire, the
Notarial Law makes no qualification or exception. It is appalling and inexcusable that he did away
with the basics of notarial procedure allegedly because others were doing so. Being swayed by the
bad example of others is not an acceptable justification for breaking the law.

We note further that the documents attached to the verified Complaint are the Joint Counter-Affidavit
of respondents clients Ernesto Ramos and Rey Geronimo, as well as their witnesses Affidavits
relative to Criminal Case No. 69-2000 for attempted murder, filed by complainants brother against
the aforementioned clients. These documents became the basis of the present Complaint.

As correctly pointed out by the investigating commissioner, Section 3 of Rule 112 of the Rules of
Criminal Procedure expressly requires respondent as notary -- in the absence of any fiscal, state
prosecutor or government official authorized to administer the oath -- to certify that he has personally
examined the affiants and that he is satisfied that they voluntarily executed and understood their
affidavits. Respondent failed to do so with respect to the subject Affidavits and Counter-Affidavits in
the belief that -- as counsel for the affiants -- he was not required to comply with the certification
requirement.

It must be emphasized that the primary duty of lawyers is to obey the laws of the land and promote
respect for the law and legal processes.[26] They are expected to be in the forefront in the
observance and maintenance of the rule of law. This duty carries with it the obligation to be well-
informed of the existing laws and to keep abreast with legal developments, recent enactments and
jurisprudence.[27] It is imperative that they be conversant with basic legal principles.Unless they
faithfully comply with such duty, they may not be able to discharge competently and diligently their
obligations as members of the bar. Worse, they may become susceptible to committing mistakes.
Where notaries public are lawyers, a graver responsibility is placed upon them by reason of their
solemn oath to obey the laws.[28] No custom or age-old practice provides sufficient excuse or
justification for their failure to adhere to the provisions of the law. In this case, the excuse given by
respondent exhibited his clear ignorance of the Notarial Law, the Rules of Criminal Procedure, and
the importance of his office as a notary public.

Nonetheless, we do not agree with complainants plea to disbar respondent from the practice of
law. The power to disbar must be exercised with great caution.[29] Disbarment will be imposed as a
penalty only in a clear case of misconduct that seriously affects the standing and the character of the
lawyer as an officer of the court and a member of the bar. Where any lesser penalty can accomplish
the end desired, disbarment should not be decreed.[30] Considering the nature of the infraction and
the absence of deceit on the part of respondent, we believe that the penalty recommended by the
IBP Board of Governors is a sufficient disciplinary measure in this case.

Lawyer as Witness for Client

Complainant further faults respondent for executing before Prosecutor Leonardo Padolina an
affidavit corroborating the defense of alibi proffered by respondents clients, allegedly in violation of
Rule 12.08 of the CPR: A lawyer shall avoid testifying in behalf of his client.

Rule 12.08 of Canon 12 of the CPR states:

Rule 12.08 A lawyer shall avoid testifying in behalf of his client, except:

a) on formal matters, such as the mailing, authentication or custody of an instrument and

the like;

b) on substantial matters, in cases where his testimony is essential to the ends of justice,
in which event he must, during his testimony, entrust the trial of the case to another counsel.

Parenthetically, under the law, a lawyer is not disqualified from being a witness,[31] except only in
certain cases pertaining to privileged communication arising from an attorney-client relationship.[32]
The reason behind such rule is the difficulty posed upon lawyers by the task of dissociating their
relation to their clients as witnesses from that as advocates. Witnesses are expected to tell the facts
as they recall them. In contradistinction, advocates are partisans -- those who actively plead and
defend the cause of others. It is difficult to distinguish the fairness and impartiality of a disinterested
witness from the zeal of an advocate. The question is one of propriety rather than of competency of
the lawyers who testify for their clients.

Acting or appearing to act in the double capacity of lawyer and witness for the client will provoke
unkind criticism and leave many people to suspect the truthfulness of the lawyer because they
cannot believe the lawyer as disinterested. The people will have a plausible reason for thinking, and
if their sympathies are against the lawyers client, they will have an opportunity, not likely to be
neglected, for charging, that as a witness he fortified it with his own testimony. The testimony of the
lawyer becomes doubted and is looked upon as partial and untruthful.[33]

Thus, although the law does not forbid lawyers from being witnesses and at the same time counsels
for a cause, the preference is for them to refrain from testifying as witnesses, unless they absolutely
have to; and should they do so, to withdraw from active management of the case.[34]

Notwithstanding this guideline and the existence of the Affidavit executed by Atty. Rafanan in favor
of his clients, we cannot hastily make him administratively liable for the following reasons:

First, we consider it the duty of a lawyer to assert every remedy and defense that is authorized by
law for the benefit of the client, especially in a criminal action in which the latters life and liberty are
at stake.[35] It is the fundamental right of the accused to be afforded full opportunity to rebut the
charges against them. They are entitled to suggest all those reasonable doubts that may arise from
the evidence as to their guilt; and to ensure that if they are convicted, such conviction is according to
law.

Having undertaken the defense of the accused, respondent, as defense counsel, was thus expected
to spare no effort to save his clients from a wrong conviction. He had the duty to present -- by all fair
and honorable means -- every defense and mitigating circumstance that the law permitted, to the
end that his clients would not be deprived of life, liberty or property, except by due process of law.[36]

The Affidavit executed by Atty. Rafanan was clearly necessary for the defense of his clients, since it
pointed out the fact that on the alleged date and time of the incident, his clients were at his residence
and could not have possibly committed the crime charged against them. Notably, in his Affidavit,
complainant does not dispute the statements of respondent or suggest the falsity of its contents.
Second, paragraph (b) of Rule 12.08 contemplates a situation in which lawyers give their testimonies
during the trial. In this instance, the Affidavit was submitted during the preliminary investigation
which, as such, was merely inquisitorial.[37] Not being a trial of the case on the merits, a preliminary
investigation has the oft-repeated purposes of securing innocent persons against hasty, malicious
and oppressive prosecutions; protecting them from open and public accusations of crime and from
the trouble as well as expense and anxiety of a public trial; and protecting the State from useless
and expensive prosecutions.[38]The investigation is advisedly called preliminary, as it is yet to be
followed by the trial proper.

Nonetheless, we deem it important to stress and remind respondent to refrain from accepting
employment in any matter in which he knows or has reason to believe that he may be an essential
witness for the prospective client. Furthermore, in future cases in which his testimony may become
essential to serve the ends of justice, the canons of the profession require him to withdraw from the
active prosecution of these cases.

No Proof of Harassment

The charge that respondent harassed complainant and uttered insulting words and veiled threats is
not supported by evidence. Allegation is never equivalent to proof, and a bare charge cannot be
equated with liability.[39] It is not the self-serving claim of complainant but the version of respondent
that is more credible, considering that the latters allegations are corroborated by the Affidavits of the
police officers and the Certifications of the Cabanatuan City Police.

WHEREFORE, Atty. Edison V. Rafanan is found guilty of violating the Notarial Law and Canon 5 of
the Code of Professional Responsibility and is hereby FINED P3,000 with a warning that similar
infractions in the future will be dealt with more severely.

SO ORDERED.