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LEDESMA VS. CLIMACO

G.R. No. L-23815 June 28, 1974 Adelino H. Ledesma vs. Rafael C. Climaco

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-23815 June 28, 1974 ADELINO H. LEDESMA, Petitioner, vs. HON. RAFAEL C. CLIMACO, Presiding Judge of the Court of First Instance of Negros Occidental, Branch I, Silay City, Respondent. FERNANDO, J.: What is assailed in this certiorari proceeding is an order of respondent Judge denying a motion filed by petitioner to be allowed to withdraw as counsel de oficio. 1 One of the grounds for such a motion was his allegation that with his appointment as Election Registrar by the Commission on Elections, he was not in a position to devote full time to the defense of the two accused. The denial by respondent Judge of such a plea, notwithstanding the conformity of the defendants, was due "its principal effect [being] to delay this case." 2 It was likewise noted that the prosecution had already rested and that petitioner was previously counsel de parte, his designation in the former category being precisely to protect him in his new position without prejudicing the accused. It cannot be plausibly asserted that such failure to allow withdrawal of de oficio counsel could ordinarily be characterized as a grave abuse of discretion correctible by certiorari. There is, however, the overriding concern for the right to counsel of the accused that must be taken seriously into consideration. In appropriate cases, it should tilt the balance. This is not one of them. What is easily discernible was the obvious reluctance of petitioner to comply with the responsibilities incumbent on the counsel de oficio. Then, too, even on the assumption that he continues in his position, his volume of work is likely to be very much less at present. There is not now the slightest pretext for him to shirk an obligation a member of the bar, who expects to remain in good standing, should fulfill. The petition is clearly without merit.chanroblesvirtualawlibrary chanrobles virtual law library According to the undisputed facts, petitioner, on October 13, 1964, was appointed Election Registrar for the Municipality of Cadiz, Province of Negros Occidental. Then and there, he commenced to discharge its duties. As he was counsel de parte for one of the accused in a case pending in the sala of respondent Judge, he filed a motion to withdraw as such. Not only did respondent Judge deny such motion, but he also appointed him counsel de oficio for the two defendants. Subsequently, on November 3, 1964, petitioner filed an urgent motion to be allowed to withdraw as counsel de oficio, premised on the policy of the Commission on Elections to require full time service as well as on the volume or pressure of work of petitioner, which could prevent him from handling adequately the defense. Respondent Judge, in the challenged order of November 6, 1964, denied said motion. A motion for reconsideration having proved futile, he instituted this certiorari proceeding. 3 chanrobles virtual law library As noted at the outset, the petition must fail.chanroblesvirtualawlibrary chanrobles virtual law library 1. The assailed order of November 6, 1964 denying the urgent motion of petitioner to withdraw as counsel de oficiospeaks for itself. It began with a reminder that a crime was allegedly committed on February 17, 1962, with the proceedings having started in the municipal court of Cadiz on July 11, 1962. Then respondent Judge spoke of his order of October 16, 1964 which reads thus: "In view of the objection of the prosecution to the motion for postponement of October 15, 1964 (alleging that counsel for the accused cannot continue appearing in this case without the express authority of the Commission on Elections); and since according to the prosecution there are two witnesses who are ready to take the stand, after which the government would rest, the motion for postponement is denied. When counsel for the accused assumed office as Election Registrar on October 13, 1964, he knew since October 2, 1964 that the trial would be resumed today. Nevertheless, in order not to prejudice the civil service status of counsel for the accused, he is hereby designated counsel de oficio for the accused. The defense obtained postponements on May 17, 1963, June 13, 1963, June 14, 1963, October 28, 1963, November 27, 1963, February 11, 1964, March 9, 1964, June 8, 1964 July 26, 1964, and September 7, 1964." 4 Reference was then made to another order of February 11, 1964: "Upon petition of Atty. Adelino H. Ledesma, alleging indisposition, the continuation of the trial of this case is hereby transferred to March 9, 1964 at 8:30 in the morning. The defense is reminded that at its instance, this case has been postponed at least eight (8) times, and that the government witnesses have to come all the way from Manapala." 5 After which, it was noted in such order that there was no incompatibility between the duty of petitioner to the accused and to the court and the performance of his task as an election registrar of the Commission on Elections and that the ends of justice "would be served by allowing and requiring Mr. Ledesma to continue as counsel de oficio, since the prosecution has already rested its case." 6 chanrobles virtual law library 2. What is readily apparent therefore, is that petitioner was less than duly mindful of his obligation as counsel de oficio. He ought to have known that membership in the bar is a privilege burdened with conditions. It could be that for some lawyers, especially the neophytes in the profession, being appointed counsel de oficio is an irksome chore. For those holding such belief, it may come as a surprise that counsel of repute and of eminence welcome such an opportunity. It makes even more manifest that law is indeed a profession dedicated to the ideal of service and not a mere trade. It is understandable then why a high degree of fidelity to duty is required of one so designated. A recent statement of the doctrine is found

in People v. Daban: 7 "There is need anew in this disciplinary proceeding to lay stress on the fundamental postulate that membership in the bar carries with it a responsibility to live up to its exacting standard. The law is a profession, not a trade or a craft. Those enrolled in its ranks are called upon to aid in the performance of one of the basic purposes of the State, the administration of justice. To avoid any frustration thereof, especially in the case of an indigent defendant, a lawyer may be required to act as counsel de oficio. The fact that his services are rendered without remuneration should not occasion a diminution in his zeal. Rather the contrary. This is not, of course, to ignore that other pressing matters do compete for his attention. After all, he has his practice to attend to. That circumstance possesses a high degree of relevance since a lawyer has to live; certainly he cannot afford either to neglect his paying cases. Nonetheless, what is incumbent upon him as counsel de oficio must be fulfilled." 8 chanrobles virtual law library So it has been from the 1905 decision of In re Robles Lahesa, 9 where respondent was de oficio counsel, the opinion penned by Justice Carson making clear: "This Court should exact from its officers and subordinates the most scrupulous performance of their official duties, especially when negligence in the performance of those duties necessarily results in delays in the prosecution of criminal cases ...." 10 Justice Sanchez in People v. Estebia 11reiterated such a view in these words: "It is true that he is a court-appointed counsel. But we do say that as such counsel de oficio, he has as high a duty to the accused as one employed and paid by defendant himself. Because, as in the case of the latter, he must exercise his best efforts and professional ability in behalf of the person assigned to his care. He is to render effective assistance. The accused-defendant expects of him due diligence, not mere perfunctory representation. For, indeed a lawyer who is a vanguard in the bastion of justice is expected to have a bigger dose of social conscience and a little less of self-interest." 12 chanrobles virtual law library The weakness of the petition is thus quite evident.chanroblesvirtualawlibrary chanrobles virtual law library 3. If respondent Judge were required to answer the petition, it was only due to the apprehension that considering the frame of mind of a counsel loath and reluctant to fulfill his obligation, the welfare of the accused could be prejudiced. His right to counsel could in effect be rendered nugatory. Its importance was rightfully stressed by Chief Justice Moran in People v. Holgado in these words: "In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of law, particularly in the rules of procedure, and; without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. And this can happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign one de oficio for him if he so desires and he is poor or grant him a reasonable time to procure an attorney of his own." 13 So it was under the previous Organic Acts. 14 The present Constitution is even more emphatic. For, in addition to reiterating that the accused "shall enjoy the right to be heard by himself and counsel," 15 there is this new provision: "Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence." 16 chanrobles virtual law library Thus is made manifest the indispensable role of a member of the Bar in the defense of an accused. Such a consideration could have sufficed for petitioner not being allowed to withdraw as counsel de oficio. For he did betray by his moves his lack of enthusiasm for the task entrusted to him, to put matters mildly. He did point though to his responsibility as an election registrar. Assuming his good faith, no such excuse could be availed now. There is not likely at present, and in the immediate future, an exorbitant demand on his time. It may likewise be assumed, considering what has been set forth above, that petitioner would exert himself sufficiently to perform his task as defense counsel with competence, if not with zeal, if only to erase doubts as to his fitness to remain a member of the profession in good standing. The admonition is ever timely for those enrolled in the ranks of legal practitioners that there are times, and this is one of them, when duty to court and to client takes precedence over the promptings of self-interest.chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, the petition for certiorari is dismissed. Costs against petitioner. Zaldivar (Chairman), Antonio, Fernandez and Aquino, JJ., concur.chanroblesvirtualawlibrary chanrobles virtual law library Barredo, J., took no part.

Endnotes: 1 Petition, Annex B. 2 Ibid, Annex C. 3 Petition, pars. 3-9. 4 Petition, Annex C. 5 Ibid. 6 Ibid.. 7 L-31429, January 31, 1972, 43 SCRA 185. 8 Ibid, 186. Cf. People v. Apduhan, L-19491, Aug. 30, 1968, 24 SCRA 798; People v. Solacito, L-29209, Aug. 25, 1969, 29 SCRA 61; People v. Serafica, L-29092-93, Aug. 28, 1969, 29 SCRA 123; People v. Englatera, L-30820, July 31, 1970, 34 SCRA 245; People v. Aguilar, L-30932, Jan. 29, 1971, 37 SCRA 115; People v. Estebia, L-26868, July 29, 1971, 40 SCRA 90; People v. Flores, L-32692, July 30, 1971, 40 SCRA 230; People v. Alincastre, L-29891, Aug. 30, 1971, 40 SCRA 391; People v. Valera, L-30039; Feb. 8, 1972, 43 SCRA 207; People v. Francisco, L-30763, June 29, 1972, 45 SCRA 451; People v. Espia, L-33028, June 30, 1972, 45 SCRA 614; People v. Esteves, L34811, Aug. 18, 1972, 46 SCRA 680; People v. Simeon, L-33730, Sept. 28, 1972, 47 SCRA 129; People v. Daeng, L-34091, Jan. 30, 1973, 49 SCRA 221; People v. Ricalde, L-34673, Jan. 30, 1973, 49 SCRA 228; People v. Martinez, L-35353, April 30, 1973, 50 SCRA 509; People v. Silvestre, L-33821, June 22, 1973, 51 SCRA 286; People v. Busa, L-32047, June 25, 1973, 51 SCRA 317; People v. Alamada, L-34594, July 13, 1973, 52 SCRA 103; People v. Andaya, L-29644, July 25, 1973, 52 SCRA 137; People v. Duque, L-33267, Sept. 27, 1973, 53 SCRA 132; People v. Saligan, L-35792, Nov. 29, 1973, 54 SCRA 190; People v. Bacong, L-36161, Dec. 19, 1973, 54 SCRA 288. 9 4 Phil. 298. 10 Ibid, 300. 11 L-26868, February 27, 1969, 27 SCRA 106. 12 Ibid, 109-110, Cf. Javellana v. Lutero, L-23956, July 21, 1967, 20 SCRA 717; Blanza v. Arcangel, Adm. Case No. 492, Sept. 5, 1967, 21 SCRA 1. 13 85 Phil. 752, 756-757 (1950). 14 Cf. United States v. Gimeno, 1 Phil. 236 (1902); United States v. Palisoc, 4 Phil. 207 (1905); United States v. Go-Leng, 21 Phil. 426 (1912); United States v. Laranja, 21 Phil. 500 (1912); United States v. Ramirez, 26 Phil. 616 (1914); United States v. Labial, 27 Phil. 82 (1914); United States v. Custan, 28 Phil. 19 (1914); United States v. Kilayco, 31 Phil. 371 (1915); United States v. Escalante, 36 Phil. 743 (1917); People v. Abuyen, 52 Phil. 722 (1929). 15 Cf. Article IV, Section 19. 16 Section 20.

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A.M. SDC-97-2-P. FEBRUARY 24, 1997, SOPHIA ALAWI VS. ASHARY M. ALAUYA, ETC.

THIRD DIVISION [A.M. SDC-97-2-P. February 24, 1997] SOPHIA ALAWI, Complainant, vs. ASHARY M. ALAUYA, Clerk of Court VI, Shari'a District Court, Marawi City,Respondent. DECISION NARVASA, C.J.: Sophia Alawi was (and presumably still is) a sales representative (or coordinator) of E. B. Villarosa & Partners Co., Ltd. of Davao City, a real estate and housing company. Ashari M. Alauya is the incumbent executive clerk of court of the 4th Judicial Shari'a District in Marawi City. They were classmates, and used to be friends. It appears that through Alawi's agency, a contract was executed for the purchase on installments by Alauya of one of the housing units belonging to the above mentioned firm (hereafter, simply Villarosa & Co.); and in connection therewith, a housing loan was also granted to Alauya by the National Home Mortgage Finance Corporation (NHMFC). Not long afterwards, or more precisely on December 15, 1995, Alauya addressed a letter to the President of Villarosa & Co. advising of the termination of his contract with the company. He wrote: " ** I am formally and officially withdrawing from and notifying you of my intent to terminate the Contract/Agreement entered into between me and your company, as represented by your Sales Agent/Coordinator, SOPHIA ALAWI, of your company's branch office here in Cagayan de Oro City, on the grounds that my consent was vitiated by gross misrepresentation, deceit, fraud, dishonesty and abuse of confidence by the aforesaid sales agent which made said contract void ab initio. Said sales agent acting in bad faith perpetrated such illegal and unauthorized acts which made said contract an Onerous Contract prejudicial to my rights and interests." He then proceeded to expound in considerable detail and quite acerbic language on the "grounds which could evidence the bad faith, deceit, fraud, misrepresentation, dishonesty and abuse of confidence by the unscrupulous sales agent ** ;" and closed with the plea that Villarosa & Co. "agree for the mutual rescission of our contract, even as I inform you that I categorically state on record that I am terminating the contract **. I hope I do not have to resort to any legal action before said onerous and manipulated contract against my interest be annulled. I was actually fooled by your sales agent, hence the need to annul the controversial contract." Alauya sent a copy of the letter to the Vice-President of Villarosa & Co. at San Pedro, Gusa, Cagayan de Oro City. The envelope containing it, and which actually went through the post, bore no stamps. Instead at the right hand corner above the description of the addressee, the words, "Free Postage PD 26," had been typed. On the same date, December 15, 1995, Alauya also wrote to Mr. Fermin T. Arzaga, Vice-President, Credit & Collection Group of the National Home Mortgage Finance Corporation (NHMFC) at Salcedo Village, Makati City, repudiating as fraudulent and void his contract with Villarosa & Co.; and asking for cancellation of his housing loan in connection therewith, which was payable from salary deductions at the rate of P4,338.00 a month. Among other things, he said: " ** (T)hrough this written notice, I am terminating, as I hereby annul, cancel, rescind and voided, the 'manipulated contract' entered into between me and the E.B. Villarosa & Partner Co., Ltd., as represented by its sales agent/coordinator, SOPHIA ALAWI, who maliciously and fraudulently manipulated said contract and unlawfully secured and pursued the housing loan without my authority and against my will. Thus, the contract itself is deemed to be void ab initio in view of the attending circumstances, that my consent was vitiated by misrepresentation, fraud, deceit, dishonesty, and abuse of confidence; and that there was no meeting of the minds between me and the swindling sales agent who concealed the real facts from me." And, as in his letter to Villarosa & Co., he narrated in some detail what he took to be the anomalous actuations of Sophia Alawi. Alauya wrote three other letters to Mr. Arzaga of the NHMFC, dated February 21, 1996, April 15, 1996, and May 3, 1996, in all of which, for the same reasons already cited, he insisted on the cancellation of his housing loan and discontinuance of deductions from his salary on account thereof.a He also wrote on January 18, 1996 to Ms. Corazon M. Ordoez, Head of the Fiscal Management & Budget Office, and to the Chief, Finance Division, both of this Court, to stop deductions from his salary in relation to the loan in question, again asserting the anomalous manner by which he was allegedly duped into entering into the contracts by "the scheming sales agent."b The upshot was that in May, 1996, the NHMFC wrote to the Supreme Court requesting it to stop deductions on Alauya's UHLP loan "effective May 1996," and began negotiating with Villarosa & Co. "for the buy-back of ** (Alauya's) mortgage, and ** the refund of ** (his) payments."c

On learning of Alauya's letter to Villarosa & Co. of December 15, 1995, Sophia Alawi filed with this Court a verified complaint dated January 25, 1996 -- to which she appended a copy of the letter, and of the above mentioned envelope bearing the typewritten words, "Free Postage PD 26."1 In that complaint, she accused Alauya of:

1. "Imputation of malicious and libelous charges with no solid grounds through manifest ignorance and evident bad faith;" 2. "Causing undue injury to, and blemishing her honor and established reputation;" 3. "Unauthorized enjoyment of the privilege of free postage **;" and 4. Usurpation of the title of "attorney," which only regular members of the Philippine Bar may properly use. She deplored Alauya's references to her as "unscrupulous, swindler, forger, manipulator, etc." without "even a bit of evidence to cloth (sic) his allegations with the essence of truth," denouncing his imputations as irresponsible, "all concoctions, lies, baseless and coupled with manifest ignorance and evident bad faith," and asserting that all her dealings with Alauya had been regular and completely transparent. She closed with the plea that Alauya "be dismissed from the service, or be appropriately disciplined (sic) ** " The Court resolved to order Alauya to comment on the complaint. Conformably with established usage that notices of resolutions emanate from the corresponding Office of the Clerk of Court, the notice of resolution in this case was signed by Atty. Alfredo P. Marasigan, Assistant Division Clerk of Court.2chanroblesvirtuallawlibrary Alauya first submitted a "Preliminary Comment"3 in which he questioned the authority of Atty. Marasigan to require an explanation of him, this power pertaining, according to him, not to "a mere Asst. Div. Clerk of Court investigating an Executive Clerk of Court." but only to the District Judge, the Court Administrator or the Chief Justice, and voiced the suspicion that the Resolution was the result of a "strong link" between Ms. Alawi and Atty. Marasigan's office. He also averred that the complaint had no factual basis; Alawi was envious of him for being not only "the Executive Clerk of court and ex-officio Provincial Sheriff and District Registrar," but also "a scion of a Royal Family **."4 In a subsequent letter to Atty. Marasigan, but this time in much less aggressive, even obsequious tones, 5 Alauya requested the former to give him a copy of the complaint in order that he might comment thereon. 6 He stated that his acts as clerk of court were done in good faith and within the confines of the law; and that Sophia Alawi as sales agent of Villarosa & Co. had, by falsifying his signature, fraudulently bound him to a housing loan contract entailing monthly deductions of P4,333.10 from his salary. And in his comment thereafter submitted under date of June 5, 1996, Alauya contended that it was he who had suffered "undue injury, mental anguish, sleepless nights, wounded feelings and untold financial suffering," considering that in six months, a total of P26,028.60 had been deducted from his salary.7 He declared that there was no basis for the complaint; in communicating with Villarosa & Co. he had merely acted in defense of his rights. He denied any abuse of the franking privilege, saying that he gave P20.00 plus transportation fare to a subordinate whom he entrusted with the mailing of certain letters; that the words: "Free Postage PD 26," were typewritten on the envelope by some other person, an averment corroborated by the affidavit of Absamen C. Domocao, Clerk IV (subscribed and sworn to before respondent himself, and attached to the comment as Annex J);8 and as far as he knew, his subordinate mailed the letters with the use of the money he had given for postage, and if those letters were indeed mixed with the official mail of the court, this had occurred inadvertently and because of an honest mistake.9chanroblesvirtuallawlibrary Alauya justified his use of the title, "attorney," by the assertion that it is "lexically synonymous" with "Counsellorsat-law," a title to which Shari'a lawyers have a rightful claim, adding that he prefers the title of "attorney" because "counsellor" is often mistaken for "councilor," "konsehal or the Maranao term "consial," connoting a local legislator beholden to the mayor. Withal, he does not consider himself a lawyer. He pleads for the Court's compassion, alleging that what he did "is expected of any man unduly prejudiced and injured."10 He claims he was manipulated into reposing his trust in Alawi, a classmate and friend. 11 He was induced to sign a blank contract on Alawi's assurance that she would show the completed document to him later for correction, but she had since avoided him; despite "numerous letters and follow-ups" he still does not know where the property -- subject of his supposed agreement with Alawi's principal, Villarosa & Co. -- is situated;12 He says Alawi somehow got his GSIS policy from his wife, and although she promised to return it the next day, she did not do so until after several months. He also claims that in connection with his contract with Villarosa & Co., Alawi forged his signature on such pertinent documents as those regarding the down payment, clearance, lay-out, receipt of the key of the house, salary deduction, none of which he ever saw.13chanroblesvirtuallawlibrary Averring in fine that his acts in question were done without malice, Alauya prays for the dismissal of the complaint for lack of merit, it consisting of "fallacious, malicious and baseless allegations," and complainant Alawi having come to the Court with unclean hands, her complicity in the fraudulent housing loan being apparent and demonstrable. It may be mentioned that in contrast to his two (2) letters to Assistant Clerk of Court Marasigan (dated April 19, 1996 and April 22, 1996), and his two (2) earlier letters both dated December 15, 1996 -- all of which he signed

as "Atty. Ashary M. Alauya" -- in his Comment of June 5, 1996, he does not use the title but refers to himself as "DATU ASHARY M. ALAUYA." The Court referred the case to the Office of the Court Administrator for evaluation, report and recommendation.14chanroblesvirtuallawlibrary The first accusation against Alauya is that in his aforesaid letters, he made "malicious and libelous charges (against Alawi) with no solid grounds through manifest ignorance and evident bad faith," resulting in "undue injury to (her) and blemishing her honor and established reputation." In those letters, Alauya had written inter alia that:

1) Alawi obtained his consent to the contracts in question "by gross misrepresentation, deceit, fraud, dishonesty and abuse of confidence;" 2) Alawi acted in bad faith and perpetrated ** illegal and unauthorized acts ** ** prejudicial to ** (his) rights and interests;" 3) Alawi was an "unscrupulous (and "swindling") sales agent" who had fooled him by "deceit, fraud, misrepresentation, dishonesty and abuse of confidence;" and 4) Alawi had maliciously and fraudulently manipulated the contract with Villarosa & Co., and unlawfully secured and pursued the housing loan without ** (his) authority and against ** (his) will," and "concealed the real facts **." Alauya's defense essentially is that in making these statements, he was merely acting in defense of his rights, and doing only what "is expected of any man unduly prejudiced and injured," who had suffered "mental anguish, sleepless nights, wounded feelings and untold financial suffering," considering that in six months, a total ofP26,028.60 had been deducted from his salary.15chanroblesvirtuallawlibrary The Code of Conduct and Ethical Standards for Public Officials and Employees (RA 6713) inter alia enunciates the State policy of promoting a high standard of ethics and utmost responsibility in the public service. 16 Section 4 of the Code commands that "(p)ublic officials and employees ** at all times respect the rights of others, and ** refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety and public interest."17 More than once has this Court emphasized that "the conduct and behavior of every official and employee of an agency involved in the administration of justice, from the presiding judge to the most junior clerk, should be circumscribed with the heavy burden of responsibility. Their conduct must at all times be characterized by, among others, strict propriety and decorum so as to earn and keep the respect of the public for the judiciary."18 Now, it does not appear to the Court consistent with good morals, good customs or public policy, or respect for the rights of others, to couch denunciations of acts believed -- however sincerely -- to be deceitful, fraudulent or malicious, in excessively intemperate. insulting or virulent language. Alauya is evidently convinced that he has a right of action against Sophia Alawi. The law requires that he exercise that right with propriety, without malice or vindictiveness, or undue harm to anyone; in a manner consistent with good morals, good customs, public policy, public order, supra; or otherwise stated, that he "act with justice, give everyone his due, and observe honesty and good faith."19 Righteous indignation, or vindication of right cannot justify resort to vituperative language, or downright name-calling. As a member of the Shari'a Bar and an officer of a Court, Alawi is subject to a standard of conduct more stringent than for most other government workers. As a man of the law, he may not use language which is abusive, offensive, scandalous, menacing, or otherwise improper. 20 As a judicial employee, it is expected that he accord respect for the person and the rights of others at all times, and that his every act and word should be characterized by prudence, restraint, courtesy, dignity. His radical deviation from these salutary norms might perhaps be mitigated, but cannot be excused, by his strongly held conviction that he had been grievously wronged. As regards Alauya's use of the title of "Attorney," this Court has already had occasion to declare that persons who pass the Shari'a Bar are not full-fledged members of the Philippine Bar, hence may only practice law before Shari'a courts.21 While one who has been admitted to the Shari'a Bar, and one who has been admitted to the Philippine Bar, may both be considered "counsellors," in the sense that they give counsel or advice in a professional capacity, only the latter is an "attorney." The title of "attorney" is reserved to those who, having obtained the necessary degree in the study of law and successfully taken the Bar Examinations, have been admitted to the Integrated Bar of the Philippines and remain members thereof in good standing; and it is they only who are authorized to practice law in this jurisdiction. Alauya says he does not wish to use the title, "counsellor" or "counsellor-at-law," because in his region, there are pejorative connotations to the term, or it is confusingly similar to that given to local legislators. The ratiocination, valid or not, is of no moment. His disinclination to use the title of "counsellor" does not warrant his use of the title of attorney. Finally, respecting Alauya's alleged unauthorized use of the franking privilege, the record contains no evidence adequately establishing the accusation. WHEREFORE, respondent Ashari M. Alauya is hereby REPRIMANDED for the use of excessively intemperate, insulting or virulent language, i.e., language unbecoming a judicial officer, and for usurping the title of attorney; and he is warned that any similar or other impropriety or misconduct in the future will be dealt with more severely. SO ORDERED. Davide, Jr., Melo, Francisco, and Panganiban, JJ., concur.

Endnotes: a 'Annexes B, B, B-1, B-3 of Alauya's Comment dated June 5, 1996 b Annexes F and G, id. c Annex C-2, id. 1 Annexes A and A-1 of complaint; Rollo at p. 14; copies of the letter were also furnished the National Home Mortgage Finance Corporation. The Finance Management and Budget Office and the Financial Division of the Supreme Court.

2 Resolution dated March 25, 1996 3 Dated April 19, 1996. 4 Rollo at p. 23. 5 Evidently, he had since become aware of the immemorial practice that NOTICES (or communications informing) of Resolutions adopted by the Court En Banc or any of its three (3) Divisions are sent to the parties by and over the signature of the corresponding Clerk or Court or his Assistant, the Court's Resolutions being incorporated verbatim in said notices. 6 Dated April 22, 1996 7 Rollo at p. 28. 8 Id. at p. 60. 9 Id. at p. 32. 10 Id. at p. 34. 11 Id. at p. 35, et seq. 12 Id. at p. 35. 13 Id. 14 See Resolution of the Court en banc dated August 21, 1996; Rollo at p. 61 et seq. 15 SEE footnote No. 7, supra. 16 Policarpio v. Fortus, 248 SCRA 272, 275 17 RA. No. 6713, Section 11 of the same law punishes any violation of the Act with (1) a fine not exceeding the equivalent of six (6) months' salary, or (2) suspension not exceeding one (1) year, or (3) removal, depending on the gravity of the offense, after due notice and hearing by the appropriate body or agency, and even if no criminal prosecution is instituted against him. 18 Apaga v. Ponce. 245 SCRA 233, 240, citing Callejo. Jr. v. Garcia, etc., 206 SCRA 491; Angeles v. Bantug, et al., 209 SCRA 413; Icasiano, Jr. v. Sandiganbayan, et al., 2109 SCRA 377; Medilo, et al. v. Asodisen, etc., 233 SCRA 68; SEE also Policarpio v. Fortus, 248 SCRA 272, 275 19 ART. 19, Civil Code 20 Rules 8.01 and 11.03 of the Code of Professional Responsibility, which should apply by analogy to Members of the Shari'a Bar. The Code also proscribes behavior in a scandalous manner to the discredit of the legal profession (Rule 7.03). 21 Resolution of the Court En Banc dated August 5, 1993 in Bar Matter No. 681, entitled "Petition to allow Shari'a lawyers to exercise their profession at the regular courts;" SEE Rule 138 (secs. 1, 4), Rules of Court

3)

TEJAN VS. CUSI, 57 CSRZ 154 G.R. No. L-28899 May 30, 1974 Alfredo C. Tajan vs. Vicente N. Cusi, Jr.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-28899 May 30, 1974 ALFREDO C. TAJAN, Petitioner, vs. HON. VICENTE N. CUSI, JR., Judge, Court of First Instance of Davao,respondent. Jose P. Arro for petitioner. Hon. Vicente N. Cusi, Jr. in his own behalf. --> ANTONIO, J.: In this original action of prohibition petitioner Alfredo C. Tajan challenges the authority of respondent Judge of the Court of First Instance of Davao to hear Administrative Case No. 59 of said court involving a disciplinary action initiated against petitioner as a member of the Philippine Bar.chanroblesvirtualawlibrary chanrobles virtual law library In a letter dated December 5, 1967 addressed to petitioner Alfredo C. Tajan, he was required by respondent Judge to explain within 72 hours why he should not be removed or suspended from the practice of law for preparing, or causing to be prepared, a petition in court containing factual averments which petitioner knew were false, to wit: The records and the transcript of stenographic notes of Misc. Case No. 2968 of this Court show that you prepared and/or caused to be prepared a verified petition for issuance of a new owner's duplicate copy of Transfer Certificate of Title No. T-7312 in favor of Vicente Calongo, alleging therein as grounds therefor, "That the aforesaid Transfer Certificate was lost by the herein petitioner in his house in Mati, Davao; That in spite of the diligent search of the aforesaid title, the same could not be found and is therefore now presumed to be lost," and had the petition signed by Atty. Justo Cinco, when you know very well that the owner's duplicate copy has always been in the custody of Municipal Judge Bernardo P. Saludares of the Municipality of Kapalong to whom the same was entrusted by Vicente Calongo, and that as a result of the petition, this Court, through the Hon. Vicente P. Bullecer, Presiding Judge of Branch IV, issued an Order on June 28, 1967, directing the Register of Deeds of the City of Davao to issue a new owner's duplicate of Transfer Certificate of Title No. T7312.chanroblesvirtualawlibrary chanrobles virtual law library In view thereof, you are hereby given seventy-two (72) hours from the receipt hereof to explain why you shall not be removed or suspended from the practice of law. Petitioner, in answer thereto, wrote a letter to respondent Judge on December 7, 1967 denying the material averments of respondent Judge's letter and explaining the circumstances under which he prepared the aforementioned petition.chanroblesvirtualawlibrary chanrobles virtual law library Apparently not satisfied with petitioner's answer, respondent Judge had his letter filed and docketed as Adm. Case No. 59 against petitioner, and, together with Adm. Case No. 58 against Atty. Justo Cinco, gave due course thereto and set the same for hearing on January 24 and 25, 1968. At the hearing on January 24, 1968, petitioner

questioned, among others, the propriety of the proceedings, contending that since the case was one for disbarment, respondent Judge had no jurisdiction over the person of petitioner as well as the subject matter thereof. Petitioner orally moved that respondent Judge inhibit himself from hearing the administrative case in view of the latter's conflicting positions as prosecutor and judge at the same time. The oral motion was denied.chanroblesvirtualawlibrary chanrobles virtual law library On February 1, 1968, respondent Judge proceeded to hear the evidence against petitioner. At the said hearing Municipal Judge Saludares testified by more or less reiterating the testimony he previously gave at the hearing of the petition for relief from the order in Misc. Case No. 2968 allowing the issuance of an owner's duplicate of title. The continuation of the hearing was set for April 26, 1968.chanroblesvirtualawlibrary chanrobles virtual law library On April 15, 1968, petitioner filed the present petition, and on April 17, 1968, this Court gave due course thereto and ordered the issuance of a writ of preliminary injunction upon petitioner's posting of a bond.chanroblesvirtualawlibrary chanrobles virtual law library

Petitioner's thesis is that respondent Judge has no authority on his own motion to hear and determine proceedings for disbarment or suspension of attorneys because jurisdiction thereon is vested exclusively and originally in the Supreme Court and not in courts of first instance. Petitioner also contends that assuming arguendo that courts of first instance have such authority, the procedure outlined in Rule 139 of the Revised Rules of Court should govern the filing and investigation of the complaint.chanroblesvirtualawlibrary chanrobles virtual law library We find petitioner's contentions without merit.chanroblesvirtualawlibrary chanrobles virtual law library 1. The power to exclude unfit and unworthy members of the legal profession stems from the inherent power of the Supreme Court to regulate the practice of law and the admission of persons to engage in that practice. It is a necessary incident to the proper administration of justice. An attorney-at-law is an officer of the court in the administration of justice and as such he is continually accountable to the Court for the manner in which he exercises the privilege which has been granted to him. His admission to the practice of law is upon the implied condition that his continued enjoyment of the right conferred, is dependent upon his remaining a fit and safe person to exercise it. When it appears by acts of misconduct, that he has become unfit to continue with the trust reposed upon him, his right to continue in the enjoyment of that trust and for the enjoyment of the professional privilege accorded to him may and ought to be forfeited. The law accords to the Court of Appeals and the Court of First Instance the power to investigate and suspend members of the bar.chanroblesvirtualawlibrary chanrobles virtual law library The following provisions of Rule 138 of the Revised Rules of Court are applicable: SEC. 28. Suspension of attorney by the Court of Appeals or a Court of First Instance. The Court of Appeals or a Court of First Instance may suspend an attorney from practice for any of the causes named in the last preceding section, and after such suspension such attorney shall not practice his profession until further action of the Supreme Court in the premises.chanroblesvirtualawlibrary chanrobles virtual law library SEC. 29. Upon suspension by Court of Appeals or Court of First Instance, further proceedings in Supreme Court. Upon such suspension, the Court of Appeals or the Court of First Instance forthwith transmit to the Supreme Court a certified copy of the order of suspension and a full statement of the facts upon which the same was based. Upon the receipt of such certified copy and statement, the Supreme Court shall make full investigation of the facts involved and make such order revoking or extending the suspension, or removing the attorney from his office as such, as the facts warrant.chanroblesvirtualawlibrary chanrobles virtual law library SEC. 30. Attorney to be heard before removal or suspension.- No attorney shall be removed or suspended from the practice of his profession, until he has had full opportunity upon reasonable notice to answer the charges against him, to produce witnesses in his own behalf, and to be heard by himself or counsel. But if upon reasonable notice he fails to appear and answer the accusation, the court may proceed to determine the matter ex parte. These provisions were taken from Sections 22, 23 and 25, respectively, of the Code of Civil Procedure, which read: SEC. 22. Suspension of lawyers.- Courts of First Instance may suspend a lawyer from the further practice of his profession for any of the causes named in the last preceding section, and after such suspension such lawyer will not be privileged to practice his profession in any of the courts of the Islands until further action of the Supreme Court in the premises. chanrobles virtual law library SEC. 23. Proceedings upon suspension. - Upon such suspension the judge of the Court of First Instance ordering the suspension shall forthwith transmit to the Supreme Court a certified copy of the order of suspension and a full statement of the facts upon which the same was based. Upon the receipt of such certified copy and statement, the Supreme Court shall make full investigation of the facts involved and make such order revoking or extending the suspension, or removing the lawyer permanently from the

roll as it shall find the facts to warrant.chanroblesvirtualawlibrary chanrobles virtual law library SEC. 25. Hearing of charges.- No lawyer shall be removed from the roll or be suspended from the performance of his profession until he has had full opportunity to answer the charges against him, and to produce witnesses in his own behalf and to be heard by himself and counsel, if he so desires, upon reasonable notice. But if upon reasonable notice the accused fails to appear and answer the accusation, the court may proceed to determine the matter ex parte.

2. It should be observed that proceedings for the disbarment of members of the bar are not in any sense a civil action where there is a plaintiff and the respondent is a defendant. Disciplinary proceedings involve no private interest and afford no redress for private grievance. They are undertaken and prosecuted solely for the public welfare. They are undertaken for the purpose of preserving courts of justice from the official ministration of persons unfit to practice in them. The attorney is called to answer to the court for his conduct as an officer of the court. The complainant or the person who called the attention of the court to the attorney's alleged misconduct is in no sense a party, and has generally no interest in the outcome except as all good citizens may have in the proper administration of justice. The court may therefore act upon its own motion and thus be the initiator of the proceedings, because, obviously the court may investigate into the conduct of its own officers. 1Indeed it is not only the right but the duty of the Court to institute upon its own motion, proper proceedings for the suspension or the disbarment of an attorney, when from information submitted to it or of its own knowledge it appears that any attorney has so conducted himself in a case pending before said court as to show that he is wanting in the proper measure of respect for the court of which he is an officer, or is lacking in the good character essential to his continuance as an attorney. This is for the protection of the general public and to promote the purity of the administration of justice.chanroblesvirtualawlibrary chanrobles virtual law library 3. Procedural due process requires that no attorney may be "removed or suspended from the practice of his profession, until he has had full opportunity upon reasonable notice to answer the charges against him, to produce witnesses in his own behalf, and to be heard by himself or counsel" (Sec. 30, Rule 138, Revised Rules of Court). 2 chanrobles virtual law library While the aforecited Sec. 30 of Rule 138 does not state what is a reasonable notice, Sec. 9 of Rule 139, of the Revised Rules, provides that as far as applicable, the procedure outlined by the preceding actions of Rule 139 "shall govern the filing and investigation of complaints against attorneys in the Court of Appeals or in Courts of First Instance." Section 2 of Rule 139, provides that the respondent lawyer in disciplinary proceedings is granted 10 days from service of a copy of the complaint within which to file his answer. It is desirable, therefore, that a similar period should be granted by the Court of First Instance to attorneys charged before it, for the purpose of uniformity in procedure. We find, however, that in the case at bar, petitioner not only failed to question as unreasonable, the period granted to him by the court within which to answer the complaint, but actually was not substantially prejudiced thereby as he filed his answer to the complaint within the period of 72 hours from receipt thereof.chanroblesvirtualawlibrary chanrobles virtual law library Petitioner claims that pursuant to Section 9 of Rule 139, which provides that as far as may be applicable, the procedure for the investigation by the Solicitor General of complaints against lawyers referred to said official by the Supreme Court shall govern the filing and investigation of complaints against lawyers in the Court of Appeals and in Courts of First Instance, the Solicitor General, and not respondent Judge, should be the one to conduct the present investigation. Sections 3 to 6 of Rule 139 are not applicable to the investigation of complaints against attorneys in the Court of Appeals and in Courts of First Instance. The investigation by the Solicitor General in Section 3 of Rule 139 refers to complaints referred to said office by this Court and not to investigations in suspension proceedings before the Court of Appeals or Courts of First Instance, because Sections 28 to 30 of Rule 138 authorize said courts and confer upon them the power to conduct the investigation themselves, subject to another and final investigation by the Supreme Court in the event of suspension of the lawyer. On the basis of the certified copy of the order of suspension and the statement of the facts upon which the same is based, required by Section 29 of Rule 138, the Supreme Court "shall make full investigation of the facts involved and make such order revoking or extending the suspension or removing the attorney from his office as such, as the facts warrant." In other words, under such circumstances the intervention of the Solicitor General would, therefore, be unnecessary.chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, the present person is denied, and the writ of preliminary injunction previously issued by this Court is ordered dissolved, with costs against petitioner. Zaldivar (Chairman), Fernando, Barredo, Fernandez and Aquino, JJ., concur.

Endnotes: 1 The practice regulating disbarment proceedings is not as we have noted regulated by statute, but all courts of general jurisdiction have at all times in the history of the law possessed the inherent power to suspend and disbar attorneys for professional

misconduct of such a character as showed them to be unworthy to hold the place of officers of the court; and the books are full of cases in which the court, on its own motion, has instituted proceedings like this. Indeed, we think that it is not only the right, but the duty, of a judge of a circuit court to institute, upon his own motion, proper proceedings for the suspension or disbarment of an attorney when from information laid before him, or from his personal knowledge, it appears to his satisfaction that the attorney in so demeaning himself as to be unworthy to continue as an officer of the court. xxx xxx xxx In Rice v. Com., 18 B. Mon. 472, which was a disbarment proceeding, this court, in answering an objection that the judge of the circuit court did not have authority to institute, on his own motion, the proceeding, said:

This objection is founded on a misconception as well of the power as of the duty of the court. The defendant in the rule was an attorney at law and an officer of the court. All courts have the power to control and regulate to a certain extent, the conduct of their officers, and to inflict on them for their official misconduct such punishment as the law prescribes. If a court have knowledge of the existence of such official misconduct on the part of any of its officers, it not only has the power, but it is its duty, to institute an appropriate proceeding against the offender, and to bring him, if guilty, to condign punishment. And it is much to be regretted that this duty, which the law devolves upon the court of the country, is so little regarded, and that the obligations which it imposes are so frequently overlooked or neglected. In Walker v. Com., 8 Bush, 86, it was again said: It is a well-established rule of common law that courts may inquire into the conduct of their officers, such as attorneys and counselors who practice in their courts, and punish for offenses. xxx xxx xxx In Ex parte Wall, 107 U.S. 265, 2 Sup. Ct. 569, 27 L. Ed. 552, the Supreme Court, quoting with approval from an opinion by Chief Justice Sharswood, said: We entertain no doubt that a court has jurisdiction without any formal complaint or petition, upon its own motion, to strike the name of an attorney from the roll in a proper case, provided he has had reasonable notice, and been afforded an opportunity to be heard in his defense. (Lenihan v. Commonwealth, 176 S.W. 948, 953.) 2 In re MacDougall, 3 Phil., 70 (1903); In re Calderon, 5 Phil., 658 (1906); In re Cuenco, 41 Phil., 32 (1920).

4)

In re: IBP, 49 SCRA 22 IN RE: IBP, January 9, 1973, In the Matter of the Integration of the Bar of the Philippines.

Republic of the Philippines SUPREME COURT Manila EN BANC January 9, 1973 IN THE MATTER OF THE INTEGRATION OF THE BAR OF THE PHILIPPINES. RESOLUTION PER CURIAM: On December 1, 1972, the Commission on Bar Integration 1 submitted its Report dated November 30, 1972, with the "earnest recommendation" - on the basis of the said Report and the proceedings had in Administrative Case No. 5262 of the Court, and "consistently with the views and counsel received from its [the Commission's] Board of Consultants, as well as the overwhelming nationwide sentiment of the Philippine Bench and Bar" that "this Honorable Court ordain the integration of the Philippine Bar as soon as possible through the adoption and promulgation of an appropriate Court Rule." The petition in Adm. Case No. 526 formally prays the Court to order the integration of the Philippine Bar, after due hearing, giving recognition as far as possible and practicable to existing provincial and other local Bar associations. On August 16, 1962, arguments in favor of as well as in opposition to the petition were orally expounded before the Court. Written oppositions were admitted, 3 and all parties were thereafter granted leave to file written memoranda.4 Since then, the Court has closely observed and followed significant developments relative to the matter of the integration of the Bar in this jurisdiction. In 1970, convinced from preliminary surveys that there had grown a strong nationwide sentiment in favor of Bar integration, the Court created the Commission on Bar Integration for the purpose of ascertaining the advisability of unifying the Philippine Bar. In September, 1971, Congress passed House Bill No. 3277 entitled "An Act Providing for the Integration of the Philippine Bar, and Appropriating Funds Therefor." The measure was signed by President Ferdinand E. Marcos on September 17, 1971 and took effect on the same day as Rep. Act 6397. This law provides as follows: SECTION 1. Within two years from the approval of this Act, the Supreme Court may adopt rules of court to effect the integration of the Philippine Bar under such conditions as it shall see fit in order to raise the standards of the legal profession, improve the administration of justice, and enable the Bar to discharge its public responsibility more effectively. SEC. 2. The sum of five hundred thousand pesos is hereby appropriated, out of any funds in the National Treasury not otherwise appropriated, to carry out the purposes of

this Act. Thereafter, such sums as may be necessary for the same purpose shall be included in the annual appropriations for the Supreme Court. SEC. 3. This Act shall take effect upon its approval. The Report of the Commission abounds with argument on the constitutionality of Bar integration and contains all necessary factual data bearing on the advisability (practicability and necessity) of Bar integration. Also embodied therein are the views, opinions, sentiments, comments and observations of the rank and file of the Philippine lawyer population relative to Bar integration, as well as a proposed integration Court Rule drafted by the Commission and presented to them by that body in a national Bar plebiscite. There is thus sufficient basis as well as ample material upon which the Court may decide whether or not to integrate the Philippine Bar at this time. The following are the pertinent issues: (1) Does the Court have the power to integrate the Philippine Bar? (2) Would the integration of the Bar be constitutional? (3) Should the Court ordain the integration of the Bar at this time?

A resolution of these issues requires, at the outset, a statement of the meaning of Bar integration. It will suffice, for this purpose, to adopt the concept given by the Commission on Bar Integration on pages 3 to 5 of its Report, thus: Integration of the Philippine Bar means the official unification of the entire lawyer population of the Philippines. This requires membership and financial support (in reasonable amount) of every attorney as conditions sine qua non to the practice of law and the retention of his name in the Roll of Attorneys of the Supreme Court. The term "Bar" refers to the collectivity of all persons whose names appear in the Roll of Attorneys. An Integrated Bar (or Unified Bar) perforce must include all lawyers. Complete unification is not possible unless it is decreed by an entity with power to do so: the State. Bar integration, therefore, signifies the setting up by Government authority of a national organization of the legal profession based on the recognition of the lawyer as an officer of the court. Designed to improve the position of the Bar as an instrumentality of justice and the Rule of Law, integration fosters cohesion among lawyers, and ensures, through their own organized action and participation, the promotion of the objectives of the legal profession, pursuant to the principle of maximum Bar autonomy with minimum supervision and regulation by the Supreme Court. The purposes of an integrated Bar, in general, are: (1) Assist in the administration of justice; (2) Foster and maintain on the part of its members high ideals of integrity, learning, professional competence, public service and conduct; (3) Safeguard the professional interests of its members; (4) Cultivate among its members a spirit of cordiality and brotherhood; (5) Provide a forum for the discussion of law, jurisprudence, law reform, pleading, practice and procedure, and the relations of the Bar to the Bench and to the public, and publish information relating thereto; (6) Encourage and foster legal education; (7) Promote a continuing program of legal research in substantive and adjective law, and make reports and recommendations thereon; and (8) Enable the Bar to discharge its public responsibility effectively. Integration of the Bar will, among other things, make it possible for the legal profession to:

(1) Render more effective assistance in maintaining the Rule of Law; (2) Protect lawyers and litigants against the abuse of tyrannical judges and prosecuting officers; (3) Discharge, fully and properly, its responsibility in the disciplining and/or removal of incompetent and unworthy judges and prosecuting officers; (4) Shield the judiciary, which traditionally cannot defend itself except within its own forum, from the assaults that politics and self-interest may level at it, and assist it to maintain its integrity, impartiality and independence; (5) Have an effective voice in the selection of judges and prosecuting officers; (6) Prevent the unauthorized practice of law, and break up any monopoly of local practice maintained through influence or position; (7) Establish welfare funds for families of disabled and deceased lawyers; (8) Provide placement services, and establish legal aid offices and set up lawyer reference services throughout the country so that the poor may not lack competent legal service;

(9) Distribute educational and informational materials that are difficult to obtain in many of our provinces; (10) Devise and maintain a program of continuing legal education for practising attorneys in order to elevate the standards of the profession throughout the country; (11) Enforce rigid ethical standards, and promulgate minimum fees schedules; (12) Create law centers and establish law libraries for legal research; (13) Conduct campaigns to educate the people on their legal rights and obligations, on the importance of preventive legal advice, and on the functions and duties of the Filipino lawyer; and (14) Generate and maintain pervasive and meaningful country-wide involvement of the lawyer population in the solution of the multifarious problems that afflict the nation. Anent the first issue, the Court is of the view that it may integrate the Philippine Bar in the exercise of its power, under Article VIII, Sec. 13 of the Constitution, "to promulgate rules concerning pleading, practice, and procedure in all courts, and the admission to the practice of law." Indeed, the power to integrate is an inherent part of the Court's constitutional authority over the Bar. In providing that "the Supreme Court may adopt rules of court to effect the integration of the Philippine Bar," Republic Act 6397 neither confers a new power nor restricts the Court's inherent power, but is a mere legislative declaration that the integration of the Bar will promote public interest or, more specifically, will "raise the standards of the legal profession, improve the administration of justice, and enable the Bar to discharge its public responsibility more effectively." Resolution of the second issue - whether the unification of the Bar would be constitutional - hinges on the effects of Bar integration on the lawyer's constitutional rights of freedom of association and freedom of speech, and on the nature of the dues exacted from him. The Court approvingly quotes the following pertinent discussion made by the Commission on Bar Integration pages 44 to 49 of its Report: Constitutionality of Bar Integration Judicial Pronouncements. In all cases where the validity of Bar integration measures has been put in issue, the Courts have upheld their constitutionality. The judicial pronouncements support this reasoning: - Courts have inherent power to supervise and regulate the practice of law. - The practice of law is not a vested right but a privilege; a privilege, moreover, clothed with public interest, because a lawyer owes duties not only to his client, but also to his brethren in the profession, to the courts, and to the nation; and takes part in one of the most important functions of the State, the administration of justice, as an officer of the court.

- Because the practice of law is privilege clothed with public interest, it is far and just that the exercise of that privilege be regulated to assure compliance with the lawyer's public responsibilities. - These public responsibilities can best be discharged through collective action; but there can be no collective action without an organized body; no organized body can operate effectively without incurring expenses; therefore, it is fair and just that all attorneys be required to contribute to the support of such organized body; and, given existing Bar conditions, the most efficient means of doing so is by integrating the Bar through a rule of court that requires all lawyers to pay annual dues to the Integrated Bar. 1. Freedom of Association. To compel a lawyer to be a member of an integrated Bar is not violative of his constitutional freedom to associate (or the corollary right not to associate). Integration does not make a lawyer a member of any group of which he is not already a member. He became a member of the Bar when he passed the Bar examinations. All that integration actually does is to provide an official national organization for the welldefined but unorganized and incohesive group of which every lawyer is already a member.

Bar integration does not compel the lawyer to associate with anyone. He is free to attend or not attend the meetings of his Integrated Bar Chapter or vote or refuse to vote in its elections as he chooses. The body compulsion to which he is subjected is the payment of annual dues. Otherwise stated, membership in the Unified Bar imposes only the duty to pay dues in reasonable amount. The issue therefore, is a question of compelled financial support of group activities, not involuntary membership in any other aspect. The greater part of Unified Bar activities serves the function of elevating the educational and ethical standards of the Bar to the end of improving the quality of the legal service available to the people. The Supreme Court, in order to further the State's legitimate interest in elevating the quality of professional services, may require that the cost of improving the profession in this fashion be shared by the subjects and beneficiaries of the regulatory program - the lawyers. Assuming that Bar integration does compel a lawyer to be a member of the Integrated Bar, such compulsion is justified as an exercise of the police power of the State. The legal profession has long been regarded as a proper subject of legislative regulation and control. Moreover, the inherent power of the Supreme Court to regulate the Bar includes the authority to integrate the Bar. 2. Regulatory Fee. For the Court to prescribe dues to be paid by the members does not mean that the Court levies a tax. A membership fee in the Integrated Bar is an exaction for regulation, while the purpose of a tax is revenue. If the Court has inherent power to regulate the Bar, it follows that as an incident to regulation, it may impose a membership fee for that purpose. It would not be possible to push through an Integrated Bar program without means to defray the concomitant expenses. The doctrine of implied powers necessarily includes the power to impose such an exaction. The only limitation upon the State's power to regulate the Bar is that the regulation does not impose an unconstitutional burden. The public interest promoted by the integration of the Bar far outweighs the inconsequential inconvenience to a member that might result from his required payment of annual dues. 3. Freedom of Speech. A lawyer is free, as he has always been, to voice his views on any subject in any manner he wishes, even though such views be opposed to positions taken by the Unified Bar. For the Integrated Bar to use a member's due to promote measures to which said member is opposed, would not nullify or adversely affect his freedom of speech.

Since a State may constitutionally condition the right to practice law upon membership in the Integrated Bar, it is difficult to understand why it should become unconstitutional for the Bar to use the member's dues to fulfill the very purposes for which it was established. The objection would make every Governmental exaction the material of a "free speech" issue. Even the income tax would be suspect. The objection would carry us to lengths that have never been dreamed of. The conscientious objector, if his liberties were to be thus extended, might refuse to contribute taxes in furtherance of war or of any other end condemned by his conscience as irreligious or immoral. The right of private judgment has never yet been exalted above the powers and the compulsion of the agencies of Government. 4. Fair to All Lawyers. Bar integration is not unfair to lawyers already practising because although the requirement to pay annual dues is a new regulation, it will give the members of the Bar a new system which they hitherto have not had and through which, by proper work, they will receive benefits they have not heretofore enjoyed, and discharge their public responsibilities in a more effective manner than they have been able to do in the past. Because the requirement to pay dues is a valid exercise of regulatory power by the Court, because it will apply equally to all lawyers, young and old, at the time Bar integration takes effect, and because it is a new regulation in exchange for new benefits, it is not retroactive, it is not unequal, it is not unfair. To resolve the third and final issue - whether the Court should ordain the integration of the Bar at this time requires a careful overview of the practicability and necessity as well as the advantages and disadvantages of Bar integration. In many other jurisdictions, notably in England, Canada and the United States, Bar integration has yielded the following benefits: (1) improved discipline among the members of the Bar; (2) greater influence and ascendancy of the Bar; (3) better and more meaningful participation of the individual lawyer in the activities of the Integrated Bar; (4) greater Bar facilities and services; (5) elimination of unauthorized practice; (6) avoidance of costly membership campaigns; (7) establishment of an official status for the Bar; (8) more cohesive profession; and (9) better and more effective discharge by the Bar of its obligations and responsibilities to its members, to the courts, and to the public. No less than these salutary consequences are envisioned and in fact expected from the unification of the Philippine Bar. Upon the other hand, it has been variously argued that in the event of integration, Government authority will dominate the Bar; local Bar associations will be weakened; cliquism will be the inevitable result; effective lobbying will not be possible; the Bar will become an impersonal Bar; and politics will intrude into its affairs. It is noteworthy, however, that these and other evils prophesied by opponents of Bar integration have failed to materialize in over fifty years of Bar integration experience in England, Canada and the United States. In all the jurisdictions where the Integrated Bar has been tried, none of the abuses or evils feared has arisen; on the other hand, it has restored public confidence in the Bar, enlarged professional consciousness, energized the Bar's responsibilities to the public, and vastly improved the administration of justice. How do the Filipino lawyers themselves regard Bar integration? The official statistics compiled by the Commission on Bar integration show that in the national poll recently conducted by the Commission in the matter of the integration of the Philippine Bar, of a total of 15,090 lawyers from all over the archipelago who have turned in their individual responses, 14,555 (or 96.45 per cent) voted in favor of Bar integration, while only 378 (or 2.51 per cent) voted against it, and 157 (or 1.04 per cent) are non-commital. In addition, a total of eighty (80) local Bar association and lawyers' groups all over the Philippines have submitted resolutions and other expressions of unqualified endorsement and/or support for Bar integration, while not a single local Bar association or lawyers' group has expressed opposed position thereto. Finally, of the 13,802 individual lawyers who cast their plebiscite ballots on the proposed integration Court Rule drafted by the Commission, 12,855 (or 93.14 per cent) voted in favor thereof, 662 (or 4.80 per cent) vote against it, and 285 (or 2.06 per cent) are non-committal. 5 All these clearly indicate an overwhelming nationwide demand for Bar integration at this time. The Court is fully convinced, after a thoroughgoing conscientious study of all the arguments adduced in Adm. Case No. 526 and the authoritative materials and the mass of factual data contained in the exhaustive Report of the Commission on Bar Integration, that the integration of the Philippine Bar is "perfectly constitutional and legally unobjectionable," within the context of contemporary conditions in the Philippines, has become an imperative means to raise the standards of the legal profession, improve the administration of justice, and enable the Bar to discharge its public responsibility fully and effectively. ACCORDINGLY, the Court, by virtue of the power vested in it by Section 13 of Article VIII of the Constitution, hereby ordains the integration of the Bar of the Philippines in accordance with the attached COURT RULE, effective on January 16, 1973.

5)

Apostasy in the Legal Profession, 64 SCRA 784, 790

6)

Cantiller vs. Potenciano, 180 SCRA 246

A.M. Case No. 3195 December 18, 1989 Ma. Libertad Sj Cantiller vs. Atty. Humberto V. Potenciano

Republic of the Philippines SUPREME COURT Manila EN BANC A.M. Case No. 3195. December 18, 1989 MA. LIBERTAD SJ CANTILLER, Complainant, vs. ATTY. HUMBERTO V. POTENCIANO, Respondent. RESOLUTION PER CURIAM Public interest requires that an attorney exert his best efforts and ability in the prosecution or defense of his client's cause. A lawyer who performs that duty with diligence and candor not only protects the interests of his client; he also serves the ends of justice, does honor to the bar and helps maintain the respect of the community to the legal profession. This is so because the entrusted privilege to practice law carries with it the correlative duties not only to the client but also to the court, to the bar or to the public. That circumstance explains the public concern for the maintenance of an untarnished standard of conduct by every attorney towards his client. 1 Subject of this administrative complaint is Humberto V. Potenciano, a practicing lawyer and a member of the Philippine Bar under Roll No. 21862. He is charged with deceit, fraud, and misrepresentation, and also with gross misconduct, malpractice and of acts unbecoming of an officer of the court.chanrobles virtual law library The essential facts are as follows: 2

Complainant herein is the sister of Peregrina Cantiller, defendant in an action for "ejectment" docketed as Civil Case No. 6046 before the Metropolitan Trial Court of Manila, Branch 57, San Juan, Metro Manila.chanrobles virtual law library Another action, likewise involving Peregrina but this time as plaintiff, was then pending before the Regional Trial Court, Branch 168, Pasig, Metro Manila docketed as Civil Case No. 54117 for "reconveyance with damages." Both actions involve the apartment unit being rented by complainant and her sister.chanrobles virtual law library When the two cases were concluded, Peregrina came out the losing party. Civil Case No. 54117 for reconveyance was ordered dismissed by the Regional Trial Court on June 8, 1987 while Civil Case No. 6046 for ejectment was decided by the Metropolitan Trial Court against her.chanrobles virtual law library On October 8, 1987 pursuant to the writ of execution issued in Civil Case No. 6046 for ejectment, complainant and Peregrina were served a notice to vacate the rented premises within four (4) days from receipt of notice.chanrobles virtual law library Desperate and at a loss on what to do, they consulted a certain Sheriff Pagalunan, on the matter. Pagalunan, in turn, introduced them to herein respondent. After such introduction, the parties "impliedly agreed" that respondent would handle their case. Forthwith, a petition entitled "Annulment of Judgment, Annulment of Sale and Damages with prayer for Preliminary Injunction and/or Status Quo Order, etc." was prepared by respondent to forestall the execution of the order to vacate in Civil Case No. 6046.chanrobles virtual law library In the afternoon of October 9,1987, the complainant was made to sign by respondent what she described as a "[h]astily prepared, poorly conceived, and haphazardly composed 3 petition for annulment of judgment. Complainant alleges that respondent promised her that the necessary restraining order would be secured if only because the judge who would hear the matter was his "katsukaran" (close friend).chanrobles virtual law library Thereupon, the petition was filed with the Regional Trial Court, Branch 153, Pasig, Metro Manila and docketed as Civil Case No. 55118. Respondent demanded from the complainant one thousand pesos (P l,000.00) as attorney's fee which the latter paid that same afternoon.chanrobles virtual law library However, when the case was raffled and assigned to Branch 153, the presiding judge asked respondent to withdraw as counsel in the case on the ground of their friendship.chanrobles virtual law library On October 11, 1987, respondent went to the house of complainant and asked her to be ready with two thousand pesos (P 2,000.00) to be given to another judge who will issue the restraining order in the ejectment case (Civil Case No. 6046). Complainant and her sister were only able to raise the amount of one thousand pesos which they immediately gave to respondent.chanrobles virtual law library Later respondent informed the complainant and her sister that he could not locate the judge who would issue the restraining order. The parties, then, instead went to the Max's Restaurant where respondent ordered some food including two plastic bags of food allegedly to be given to the judge who would issue the restraining order. At this juncture, respondent asked for the remaining balance of the two thousand pesos (P 2,000.00) which he earlier demanded. Complainant gave her last money-a ten dollar ($ 10.00) bill.chanrobles virtual law library Sometime after the filing of Civil Case No. 55118, respondent informed complainant and Peregrina that there was a need to file another case with the Regional Trial Court to enable them to retain possession of the apartment. For this purpose, respondent told complainant to prepare the amount of Ten Thousand Pesos (P 10,000.00) allegedly to be deposited with the Treasurer's Office of Pasig as purchase price of the apartment and another one thousand pesos (P 1,000.00) to cover the expenses of the suit. Respondent stressed to the complainant the need and urgency of filing the new complaint.chanrobles virtual law library Complainant and Peregrina raised the said amounts through the kindness of some friends and relatives. On October 26,1987, the money was handed over to the respondent.chanrobles virtual law library On the same date, a complaint for "Specific Performance, Annulment of Simulated or Spurious Sale with Damages," later docketed as Civil Case No. 55210, was filed by respondent with the Regional Trial Court, Branch 165, Pasig, Metro Manila.chanrobles virtual law library At the hearing of the preliminary injunction in Civil Case No. 55118 on October 30, 1987, respondent, contrary to his promise that he would secure a restraining order, withdrew his appearance as counsel for complainant. Complainant was not able to get another lawyer as replacement. Thus, no restraining order or preliminary injunction was obtained. As a consequence, the order to vacate in Civil Case No. 6046 was eventually enforced and executed.chanrobles virtual law library Sometime thereafter, it came to complainant's knowledge that there was really no need to make a deposit of ten thousand pesos (P l0,000.00) relative to Civil Case No. 55210. After further inquiry, she found out that in fact there was no such deposit made. Thus, on December 23,1987, complainant sent a demand letter to respondent asking for the return of the total amount of eleven thousand pesos (P 11,000.00) which the former earlier gave to the latter. However, this letter was never answered and the money was never returned. Hence, complainant lodged this administrative complaint against herein respondent.chanrobles virtual law library Meanwhile, on December 29,1987, the Regional Trial Court, Branch 153, dismissed Civil Case No. 55118 for failure to state a cause of action. 4 On January 20,1988, Civil Case No. 5521 0 was likewise dismissed for being identical with Civil Case No. 55118. 5 Respondent in his answer contends that the filing of Civil Cases Nos. 55118 and 55210 was done in good faith and that the allegations of complainant relative to the administrative charge against him are all lies, product of one's imagination and only intended to harrass him. 6 This Court agrees that the petitions in Civil Cases Nos. 55118 and 55210 appear to be poorly prepared and written. having represented himself capable of picking up the cudgels for the apparently lost cause of

complainant respondent should have carefully prepared the pleadings if only to establish the justness of his representation. The little time involved is no excuse. Complainant reposed full faith in him. His first duty was to file the best pleading within his capability. Apparently respondent was more interested in getting the most out of the complainant who was in a hopeless situation. He bragged about his closeness to the judge concerned in one case and talked about the need to "buy" the restraining order in the other. Worse still he got P 10,000.00 as alleged deposit in court which he never deposited. Instead he pocketed the same. The pattern to milk the complainant dry is obvious.chanrobles virtual law library When a lawyer takes a client's cause, he thereby covenants that he will exert all effort for its prosecution until its final conclusion. The failure to exercise due diligence or the abandonment of a client's cause makes such lawyer unworthy of the trust which the client had reposed on him. The acts of respondent in this case violate the most elementary principles of professional ethics . 7 The Court finds that respondent failed to exercise due diligence in protecting his client's interests. Respondent had knowledge beforehand that he would be asked by the presiding judge in Civil Case No. 55118 to withdraw his appearance as counsel by reason of their friendship. Despite such prior knowledge, respondent took no steps to find a replacement nor did he inform complainant of this fact.chanrobles virtual law library Even assuming that respondent had no previous knowledge that he would be asked to withdraw, the record is quite clear that four (4) days prior to the hearing of the preliminary injunction in Civil Case No. 55118 respondent already filed a motion therein withdrawing as complainant's counsel interposing as reason therefor his frequent attacks of pain due to hemorrhoids. Despite this void, respondent failed to find a replacement. He did not even ask complainant to hire another lawyer in his stead. 8 His actuation is definitely inconsistent with his duty to protect with utmost dedication the interest of his client and of the fidelity, trust and confidence which he owes his client. 9 More so in this case, where by reason of his gross negligence complainant thereby suffered by losing all her cases.chanrobles virtual law library The filing of Civil Case No. 55210 on October 26, 1987, the same day that he had already filed a motion to withdraw as counsel for complainant in Civil Case No. 55118, reveals his lack of good faith as an advocate. He also failed to appear for the complainant in said case. It was all a show to get more money from her. This adversely reflects on his fitness to practice law. When confronted with this evident irregularity, he lamely stated that while he did not physically appear for complainant he nevertheless prepared and drafted the pleadings.chanrobles virtual law library His services were engaged by complainant hoping that the property subject of the ejectment proceeding would be returned to her. In fact, it was respondent who persuaded complainant that the filing of these two cases simultaneously were the means by which this objective can be achieved. His duty was not only to prepare the pleadings but to represent complainant until the termination of the cases. This he failed to do.chanrobles virtual law library

His representation that there was an immediate need to file Civil Case No. 55210 when he already knew that he could no longer physically handle the same is an act of deception of his client. 10 It shows lack of fidelity to his oath of office as a member of the Philippine bar.chanrobles virtual law library The allegation of respondent that the ten thousand pesos (P 10,000.00) was given to him as fee for his services, is simply incredible. Indeed, such amount is grossly disproportionate with the service he actually rendered. 11 And his failure to return even a portion of the amount upon demand of complainant all the more bolsters the protestation of complainant that respondent does not deserve to remain as an officer of the court.chanrobles virtual law library Lawyers are indispensable part of the whole system of administering justice in this jurisdiction. At a time when strong and disturbing criticisms are being hurled at the legal profession, strict compliance with one's oath of office and the canons of professional ethics is an imperative.chanrobles virtual law library Lawyers should be fair, honest, respectable, above suspicion and beyond reproach in dealing with their clients. The profession is not synonymous with an ordinary business proposition. It is a matter of public interest.chanrobles virtual law library WHEREFORE, after considering the entirety of the circumstances present in this case, this Court finds Atty. Humberto V. Potenciano to be guilty of the charges against him and hereby SUSPENDS him from the practice of law for an indefinite period until such time he can demonstrate that he has rehabilitated himself as to deserve to resume the practice of law.chanrobles virtual law library Finally, respondent is hereby ordered to return to complainant herein the sum of eleven thousand pesos (P11,000.00) with legal interest from the date of this resolution until it is actually returned.chanrobles virtual law library SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.

Endnotes: 1 Agpalo, Legal Ethics, 3rd ed. (Law Publishing House, 1985), page 153.chanrobles virtual law library 2 Pages 1-13, Rollo.chanrobles virtual law library 3 Page 2, Rollo.chanrobles virtual law library 4 Pages 26-32, Record.chanrobles virtual law library 5 Pages 39-40, Supra.chanrobles virtual law library 6 Pages 48-51, Rollo.chanrobles virtual law library 7 In re Yeager 56 P 1 691 (1932).chanrobles virtual law library 8 Page 11, Report.chanrobles virtual law library 9 Canon 17, Code of Professional Responsibility.chanrobles virtual law library 10 Sta. Maria vs. Tuason, I I SCRA 562 (1964) 11 Canon 22, Code of Professional Responsibility.chanrobles virtual law library

7)

Metrobank v. CA, 181 SCRA 367

8)

IN RE: SYCIP, 92 SCRA 1

July 30, 1979, Petition For Authority To Continue Use of the Firm Name "Sycip.

Republic of the Philippines SUPREME COURT Manila EN BANC July 30, 1979 PETITION FOR AUTHORITY TO CONTINUE USE OF THE FIRM NAME "SYCIP, SALAZAR, FELICIANO, HERNANDEZ & CASTILLO." LUCIANO E. SALAZAR, FLORENTINO P. FELICIANO, BENILDO G. HERNANDEZ. GREGORIO R. CASTILLO. ALBERTO P. SAN JUAN, JUAN C. REYES. JR., ANDRES G. GATMAITAN, JUSTINO H. CACANINDIN, NOEL A. LAMAN, ETHELWOLDO E. FERNANDEZ, ANGELITO C. IMPERIO, EDUARDO R. CENIZA, TRISTAN A. CATINDIG, ANCHETA K. TAN, and ALICE V. PESIGAN, petitioners.

IN THE MATTER OF THE PETITION FOR AUTHORITY TO CONTINUE USE OF THE FIRM NAME "OZAETA, ROMULO, DE LEON, MABANTA & REYES." RICARDO J. ROMULO, BENJAMIN M. DE LEON, ROMAN MABANTA, JR., JOSE MA, REYES, JESUS S. J. SAYOC, EDUARDO DE LOS ANGELES, and JOSE F. BUENAVENTURA, petitioners. RESOLUTION MELENCIO-HERRERA, J.: Two separate Petitions were filed before this Court 1) by the surviving partners of Atty. Alexander Sycip, who died on May 5, 1975, and 2) by the surviving partners of Atty. Herminio Ozaeta, who died on February 14, 1976, praying that they be allowed to continue using, in the names of their firms, the names of partners who had passed away. In the Court's Resolution of September 2, 1976, both Petitions were ordered consolidated.chanrobles virtual law library Petitioners base their petitions on the following arguments: 1. Under the law, a partnership is not prohibited from continuing its business under a firm name which includes the name of a deceased partner; in fact, Article 1840 of the Civil Code explicitly sanctions the practice when it provides in the last paragraph that: The use by the person or partnership continuing the business of the partnership name, orthe name of a deceased partner as part thereof, shall not of itself make the individual property of the deceased partner liable for any debts contracted by such person or partnership. 1 2. In regulating other professions, such as accountancy and engineering, the legislature has authorized the adoption of firm names without any restriction as to the use, in such firm name, of the name of a deceased partner;2 the legislative authorization given to those engaged in the practice of accountancy - a profession requiring the same degree of trust and confidence in respect of clients as that implicit in the relationship of attorney and client - to acquire and use a trade name, strongly indicates that there is no fundamental policy that is offended by the continued use by a firm of professionals of a firm name which includes the name of a deceased partner, at least where such firm name has acquired the characteristics of a "trade name." 3 3. The Canons of Professional Ethics are not transgressed by the continued use of the name of a deceased partner in the firm name of a law partnership because Canon 33 of the Canons of Professional Ethics adopted by the American Bar Association declares that: ... The continued use of the name of a deceased or former partner when permissible by local custom, is not unethical but care should be taken that no imposition or deception is practiced through this use. ... 4 4. There is no possibility of imposition or deception because the deaths of their respective deceased partners were well-publicized in all newspapers of general circulation for several days; the stationeries now being used by them carry new letterheads indicating the years when their respective deceased partners were connected with the firm; petitioners will notify all leading national and international law directories of the fact of their respective deceased partners' deaths. 5 5. No local custom prohibits the continued use of a deceased partner's name in a professional firm's name; 6 there is no custom or usage in the Philippines, or at least in the Greater Manila Area, which recognizes that the name of a law firm necessarily Identifies the individual members of the firm. 7 6. The continued use of a deceased partner's name in the firm name of law partnerships has been consistently allowed by U.S. Courts and is an accepted practice in the legal profession of most countries in the world. 8 The question involved in these Petitions first came under consideration by this Court in 1953 when a law firm in Cebu (the Deen case) continued its practice of including in its firm name that of a deceased partner, C.D. Johnston. The matter was resolved with this Court advising the firm to desist from including in their firm designation the name of C. D. Johnston, who has long been dead."

The same issue was raised before this Court in 1958 as an incident in G. R. No. L-11964, entitled Register of Deeds of Manila vs. China Banking Corporation. The law firm of Perkins & Ponce Enrile moved to intervene as amicus curiae.Before acting thereon, the Court, in a Resolution of April 15, 1957, stated that it "would like to be informed why the name of Perkins is still being used although Atty. E. A. Perkins is already dead." In a Manifestation dated May 21, 1957, the law firm of Perkins and Ponce Enrile, raising substantially the same arguments as those now being raised by petitioners, prayed that the continued use of the firm name "Perkins & Ponce Enrile" be held proper.chanrobles virtual law library On June 16, 1958, this Court resolved: After carefully considering the reasons given by Attorneys Alfonso Ponce Enrile and Associates for their continued use of the name of the deceased E. G. Perkins, the Court found no reason to depart from the policy it adopted in June 1953 when it required Attorneys Alfred P. Deen and Eddy A. Deen of Cebu City to desist from including in their firm designation, the name of C. D. Johnston, deceased. The Court believes that, in view of the personal and confidential nature of the relations between attorney and client, and the high standards demanded in the canons of professional ethics, no practice should be allowed which even in a remote degree could give rise to

the possibility of deception. Said attorneys are accordingly advised to drop the name "PERKINS" from their firm name. Petitioners herein now seek a re-examination of the policy thus far enunciated by the Court.chanrobles virtual law library The Court finds no sufficient reason to depart from the rulings thus laid down.chanrobles virtual law library A. Inasmuch as "Sycip, Salazar, Feliciano, Hernandez and Castillo" and "Ozaeta, Romulo, De Leon, Mabanta and Reyes" are partnerships, the use in their partnership names of the names of deceased partners will run counter to Article 1815 of the Civil Code which provides: Art. 1815. Every partnership shall operate under a firm name, which may or may not include the name of one or more of the partners.chanrobles virtual law library Those who, not being members of the partnership, include their names in the firm name, shall be subject to the liability, of a partner. It is clearly tacit in the above provision that names in a firm name of a partnership must either be those of living partners and. in the case of non-partners, should be living persons who can be subjected to liability. In fact, Article 1825 of the Civil Code prohibits a third person from including his name in the firm name under pain of assuming the liability of a partner. The heirs of a deceased partner in a law firm cannot be held liable as the old members to the creditors of a firm particularly where they are non-lawyers. Thus, Canon 34 of the Canons of Professional Ethics "prohibits an agreement for the payment to the widow and heirs of a deceased lawyer of a percentage, either gross or net, of the fees received from the future business of the deceased lawyer's clients, both because the recipients of such division are not lawyers and because such payments will not represent service or responsibility on the part of the recipient. " Accordingly, neither the widow nor the heirs can be held liable for transactions entered into after the death of their lawyer-predecessor. There being no benefits accruing, there ran be no corresponding liability.chanrobles virtual law library Prescinding the law, there could be practical objections to allowing the use by law firms of the names of deceased partners. The public relations value of the use of an old firm name can tend to create undue advantages and disadvantages in the practice of the profession. An able lawyer without connections will have to make a name for himself starting from scratch. Another able lawyer, who can join an old firm, can initially ride on that old firm's reputation established by deceased partners.chanrobles virtual law library B. In regards to the last paragraph of Article 1840 of the Civil Code cited by petitioners, supra, the first factor to consider is that it is within Chapter 3 of Title IX of the Code entitled "Dissolution and Winding Up." The Article primarily deals with the exemption from liability in cases of a dissolved partnership, of the individual property of the deceased partner for debts contracted by the person or partnership which continues the business using the partnership name or the name of the deceased partner as part thereof. What the law contemplates therein is a hold-over situation preparatory to formal reorganization.chanrobles virtual law library Secondly, Article 1840 treats more of a commercial partnership with a good will to protect rather than of aprofessional partnership, with no saleable good will but whose reputation depends on the personal qualifications of its individual members. Thus, it has been held that a saleable goodwill can exist only in a commercial partnership and cannot arise in a professional partnership consisting of lawyers. 9 As a general rule, upon the dissolution of a commercial partnership the succeeding partners or parties have the right to carry on the business under the old name, in the absence of a stipulation forbidding it, (s)ince the name of a commercial partnership is a partnership asset inseparable from the good will of the firm. ... (60 Am Jur 2d, s 204, p. 115) (Emphasis supplied) On the other hand, ... a professional partnership the reputation of which depends or; the individual skill of the members, such as partnerships of attorneys or physicians, has no good win to be distributed as a firm asset on its dissolution, however intrinsically valuable such skill and reputation may be, especially where there is no provision in the partnership agreement relating to good will as an asset. ... (ibid, s 203, p. 115) (Emphasis supplied) C. A partnership for the practice of law cannot be likened to partnerships formed by other professionals or for business. For one thing, the law on accountancy specifically allows the use of a trade name in connection with the practice of accountancy. 10 A partnership for the practice of law is not a legal entity. It is a mere relationship or association for a particular purpose. ... It is not a partnership formed for the purpose of carrying on trade or business or of holding property." 11 Thus, it has been stated that "the use of a nom de plume, assumed or trade name in law practice is improper. 12 The usual reason given for different standards of conduct being applicable to the practice of law from those pertaining to business is that the law is a profession.chanrobles virtual law library

Dean Pound, in his recently published contribution to the Survey of the Legal Profession, (The Lawyer from Antiquity to Modern Times, p. 5) defines a profession as "a group of men pursuing a learned art as a common calling in the spirit of public service, - no less a public service because it may incidentally be a means of livelihood." xxx xxx xxx Primary characteristics which distinguish the legal profession from business are: 1. A duty of public service, of which the emolument is a byproduct, and in which one may attain the highest eminence without making much money.chanrobles virtual law library 2. A relation as an "officer of court" to the administration of justice involving thorough sincerity, integrity, and reliability.chanrobles virtual law library 3. A relation to clients in the highest degree fiduciary.chanrobles virtual law library 4. A relation to colleagues at the bar characterized by candor, fairness, and unwillingness to resort to current business methods of advertising and encroachment on their practice, or dealing directly with their clients. 13 "The right to practice law is not a natural or constitutional right but is in the nature of a privilege or franchise. 14 It is limited to persons of good moral character with special qualifications duly ascertained and certified. 15 The right does not only presuppose in its possessor integrity, legal standing and attainment, but also the exercise of a special privilege, highly personal and partaking of the nature of a public trust." 16 D. Petitioners cited Canon 33 of the Canons of Professional Ethics of the American Bar Association" in support of their petitions.chanrobles virtual law library It is true that Canon 33 does not consider as unethical the continued use of the name of a deceased or former partner in the firm name of a law partnership when such a practice is permissible by local custom but the Canon warns that care should be taken that no imposition or deception is practiced through this use.chanrobles virtual law library It must be conceded that in the Philippines, no local custom permits or allows the continued use of a deceased or former partner's name in the firm names of law partnerships. Firm names, under our custom, Identify the more active and/or more senior members or partners of the law firm. A glimpse at the history of the firms of petitioners and of other law firms in this country would show how their firm names have evolved and changed from time to time as the composition of the partnership changed. The continued use of a firm name after the death of one or more of the partners designated by it is proper only where sustained by local custom and not where by custom this purports to Identify the active members. ...chanrobles virtual law library There would seem to be a question, under the working of the Canon, as to the propriety of adding the name of a new partner and at the same time retaining that of a deceased partner who was never a partner with the new one. (H.S. Drinker, op. cit., supra, at pp. 207208) (Emphasis supplied). The possibility of deception upon the public, real or consequential, where the name of a deceased partner continues to be used cannot be ruled out. A person in search of legal counsel might be guided by the familiar ring of a distinguished name appearing in a firm title.chanrobles virtual law library E. Petitioners argue that U.S. Courts have consistently allowed the continued use of a deceased partner's name in the firm name of law partnerships. But that is so because it is sanctioned by custom.chanrobles virtual law library

In the case of Mendelsohn v. Equitable Life Assurance Society (33 N.Y.S. 2d 733) which petitioners Salazar, et al. quoted in their memorandum, the New York Supreme Court sustained the use of the firm name Alexander & Green even if none of the present ten partners of the firm bears either name because the practice was sanctioned by customand did not offend any statutory provision or legislative policy and was adopted by agreement of the parties. The Court stated therein: The practice sought to be proscribed has the sanction of custom and offends no statutory provision or legislative policy. Canon 33 of the Canons of Professional Ethics of both the American Bar Association and the New York State Bar Association provides in part as follows: "The continued use of the name of a deceased or former partner, when permissible by local custom is not unethical, but care should be taken that no imposition or deception is practiced through this use." There is no question as to local custom. Many firms in the city use the names of deceased members with the approval

of other attorneys, bar associations and the courts. The Appellate Division of the First Department has considered the matter and reached The conclusion that such practice should not be prohibited. (Emphasis supplied) xxx xxx xxx Neither the Partnership Law nor the Penal Law prohibits the practice in question. The use of the firm name herein is also sustainable by reason of agreement between the partners.18 Not so in this jurisdiction where there is no local custom that sanctions the practice. Custom has been defined as a rule of conduct formed by repetition of acts, uniformly observed (practiced) as a social rule, legally binding and obligatory. 19 Courts take no judicial notice of custom. A custom must be proved as a fact, according to the rules of evidence. 20 A local custom as a source of right cannot be considered by a court of justice unless such custom is properly established by competent evidence like any other fact. 21We find such proof of the existence of a local custom, and of the elements requisite to constitute the same, wanting herein. Merely because something is done as a matter of practice does not mean that Courts can rely on the same for purposes of adjudication as a juridical custom. Juridical custom must be differentiated from social custom. The former can supplement statutory law or be applied in the absence of such statute. Not so with the latter.chanrobles virtual law library Moreover, judicial decisions applying or interpreting the laws form part of the legal system. 22 When the Supreme Court in the Deen and Perkins cases issued its Resolutions directing lawyers to desist from including the names of deceased partners in their firm designation, it laid down a legal rule against which no custom or practice to the contrary, even if proven, can prevail. This is not to speak of our civil law which clearly ordains that a partnership is dissolved by the death of any partner. 23Custom which are contrary to law, public order or public policy shall not be countenanced. 24 The practice of law is intimately and peculiarly related to the administration of justice and should not be considered like an ordinary "money-making trade." ... It is of the essence of a profession that it is practiced in a spirit of public service. A trade ... aims primarily at personal gain; a profession at the exercise of powers beneficial to mankind. If, as in the era of wide free opportunity, we think of free competitive self assertion as the highest good, lawyer and grocer and farmer may seem to be freely competing with their fellows in their calling in order each to acquire as much of the world's good as he may within the allowed him by law. But the member of a profession does not regard himself as in competition with his professional brethren. He is not bartering his services as is the artisan nor exchanging the products of his skill and learning as the farmer sells wheat or corn. There should be no such thing as a lawyers' or physicians' strike. The best service of the professional man is often rendered for no equivalent or for a trifling equivalent and it is his pride to do what he does in a way worthy of his profession even if done with no expectation of reward, This spirit of public service in which the profession of law is and ought to be exercised is a prerequisite of sound administration of justice according to law. The other two elements of a profession, namely, organization and pursuit of a learned art have their justification in that they secure and maintain that spirit.25 In fine, petitioners' desire to preserve the Identity of their firms in the eyes of the public must bow to legal and ethical impediment.chanrobles virtual law library ACCORDINGLY, the petitions filed herein are denied and petitioners advised to drop the names "SYCIP" and "OZAETA" from their respective firm names. Those names may, however, be included in the listing of individuals who have been partners in their firms indicating the years during which they served as such.chanrobles virtual law library SO ORDERED. Teehankee, Concepcion, Jr., Santos, Fernandez, Guerrero and De Castro, JJ., concur Fernando, C.J. and Abad Santos, J., took no part.chanrobles virtual law library

Separate Opinions FERNANDO, C.J., concurring: The petitions are denied, as there are only four votes for granting them, seven of the Justices being of the contrary view, as explained in the plurality opinion of Justice Ameurfina Melencio-Herrera. It is out of delicadeza

that the undersigned did not participate in the disposition of these petitions, as the law office of Sycip, Salazar, Feliciano, Hernandez and Castillo started with the partnership of Quisumbing, Sycip, and Quisumbing, the senior partner, the late Ramon Quisumbing, being the father-in-law of the undersigned, and the most junior partner then, Norberto J. Quisumbing, being his brother- in-law. For the record, the undersigned wishes to invite the attention of all concerned, and not only of petitioners, to the last sentence of the opinion of Justice Ameurfina Melencio-Herrera: 'Those names [Sycip and Ozaeta] may, however, be included in the listing of individuals wtes AQUINO, J., dissenting: I dissent. The fourteen members of the law firm, Sycip, Salazar, Feliciano, Hernandez & Castillo, in their petition of June 10, 1975, prayed for authority to continue the use of that firm name, notwithstanding the death of Attorney Alexander Sycip on May 5, 1975 (May he rest in peace). He was the founder of the firm which was originally known as the Sycip Law Office.chanrobles virtual law library On the other hand, the seven surviving partners of the law firm, Ozaeta, Romulo, De Leon, Mabanta & Reyes, in their petition of August 13, 1976, prayed that they be allowed to continue using the said firm name notwithstanding the death of two partners, former Justice Roman Ozaeta and his son, Herminio, on May 1, 1972 and February 14, 1976, respectively.chanrobles virtual law library They alleged that the said law firm was a continuation of the Ozaeta Law Office which was established in 1957 by Justice Ozaeta and his son and that, as to the said law firm, the name Ozaeta has acquired an institutional and secondary connotation.chanrobles virtual law library Article 1840 of the Civil Code, which speaks of the use by the partnership of the name of a deceased partner as part of the partnership name, is cited to justify the petitions. Also invoked is the canon that the continued use by a law firm of the name of a deceased partner, "when permissible by local custom, is not unethical" as long as "no imposition or deception is practised through this use" (Canon 33 of the Canons of Legal Ethics).chanrobles virtual law library I am of the opinion that the petition may be granted with the condition that it be indicated in the letterheads of the two firms (as the case may be) that Alexander Sycip, former Justice Ozaeta and Herminio Ozaeta are dead or the period when they served as partners should be stated therein.chanrobles virtual law library Obviously, the purpose of the two firms in continuing the use of the names of their deceased founders is to retain the clients who had customarily sought the legal services of Attorneys Sycip and Ozaeta and to benefit from the goodwill attached to the names of those respected and esteemed law practitioners. That is a legitimate motivation.chanrobles virtual law library The retention of their names is not illegal per se. That practice was followed before the war by the law firm of James Ross. Notwithstanding the death of Judge Ross the founder of the law firm of Ross, Lawrence, Selph and Carrascoso, his name was retained in the firm name with an indication of the year when he died. No one complained that the retention of the name of Judge Ross in the firm name was illegal or unethical. # Separate Opinions FERNANDO, C.J., concurring: The petitions are denied, as there are only four votes for granting them, seven of the Justices being of the contrary view, as explained in the plurality opinion of Justice Ameurfina Melencio-Herrera. It is out of delicadeza that the undersigned did not participate in the disposition of these petitions, as the law office of Sycip, Salazar, Feliciano, Hernandez and Castillo started with the partnership of Quisumbing, Sycip, and Quisumbing, the senior partner, the late Ramon Quisumbing, being the father-in-law of the undersigned, and the most junior partner then, Norberto J. Quisumbing, being his brother- in-law. For the record, the undersigned wishes to invite the attention of all concerned, and not only of petitioners, to the last sentence of the opinion of Justice Ameurfina Melencio-Herrera: 'Those names [Sycip and Ozaeta] may, however, be included in the listing of individuals wtes AQUINO, J., dissenting: I dissent. The fourteen members of the law firm, Sycip, Salazar, Feliciano, Hernandez & Castillo, in their petition of June 10, 1975, prayed for authority to continue the use of that firm name, notwithstanding the death of Attorney Alexander Sycip on May 5, 1975 (May he rest in peace). He was the founder of the firm which was originally known as the Sycip Law Office.chanrobles virtual law library On the other hand, the seven surviving partners of the law firm, Ozaeta, Romulo, De Leon, Mabanta & Reyes, in their petition of August 13, 1976, prayed that they be allowed to continue using the said firm name notwithstanding the death of two partners, former Justice Roman Ozaeta and his son, Herminio, on May 1, 1972 and February 14, 1976, respectively.chanrobles virtual law library They alleged that the said law firm was a continuation of the Ozaeta Law Office which was established in 1957 by Justice Ozaeta and his son and that, as to the said law firm, the name Ozaeta has acquired an institutional and secondary connotation.chanrobles virtual law library

Article 1840 of the Civil Code, which speaks of the use by the partnership of the name of a deceased partner as part of the partnership name, is cited to justify the petitions. Also invoked is the canon that the continued use by a law firm of the name of a deceased partner, "when permissible by local custom, is not unethical" as long as "no imposition or deception is practised through this use" (Canon 33 of the Canons of Legal Ethics).chanrobles virtual law library I am of the opinion that the petition may be granted with the condition that it be indicated in the letterheads of the two firms (as the case may be) that Alexander Sycip, former Justice Ozaeta and Herminio Ozaeta are dead or the period when they served as partners should be stated therein.chanrobles virtual law library

Obviously, the purpose of the two firms in continuing the use of the names of their deceased founders is to retain the clients who had customarily sought the legal services of Attorneys Sycip and Ozaeta and to benefit from the goodwill attached to the names of those respected and esteemed law practitioners. That is a legitimate motivation.chanrobles virtual law library The retention of their names is not illegal per se. That practice was followed before the war by the law firm of James Ross. Notwithstanding the death of Judge Ross the founder of the law firm of Ross, Lawrence, Selph and Carrascoso, his name was retained in the firm name with an indication of the year when he died. No one complained that the retention of the name of Judge Ross in the firm name was illegal or unethical. #

Endnotes: 1 See Memorandum of Salazar, et al., p. 5: see also Petition of Romulo, et al., p. 3.chanrobles virtual law library 2 Citing Sec, 16-A, Public Act No. 3105, as amended by Commonwealth Act No. 342; Sec. 39, Commonwealth Act No. 294; Sec. 23, Republic Act No. 318; Sec. 39, Republic Act No. 184.chanrobles virtual law library 3 Memorandum of Salazar, et al., pp. 7-8.chanrobles virtual law library 4 Memorandum of Salazar, et al., pp. 8-10; Petition of Romulo, et al., pp. 34.chanrobles virtual law library 5 Memorandum of Salazar, et al., p. 13; Petition of Romulo, et al., p. 4.chanrobles virtual law library 6 Petition of Romulo, et al., p. 4.chanrobles virtual law library 7 Memorandum of Salazar, et al., p. 11.chanrobles virtual law library 8 Memorandum of Salazar, et al., pp. 6-7 and pp. 16-18; Petition of Romulo. et al., p, 5.chanrobles virtual law library 9 Seddal vs. Keating, 8 App. Div. 2d 44, 185 NYS 2d 630, affd 7 NY 2d 846, 196 NYS 2d 986, 164 NE 2d 860.chanrobles virtual law library 10 Section 16-A, Commonwealth Act No. 342.chanrobles virtual law library 11 In re Crawford's Estate, 184 NE 2d 779, 783.chanrobles virtual law library 12 H.S. Drinker, Legal Ethics (1953), p. 206; see also Canon 33, par. 2, Canons of Professional Ethics.chanrobles virtual law library 13 H.S, Drinker, Legal Ethics (1953) pp. 4-5.chanrobles virtual law library 14 7 C.J.S. 708.chanrobles virtual law library 15 Am Jur 270.chanrobles virtual law library 16 In re Lavine, 41 P2d 161, all cited in Martin, Legal and Judicial Ethics, Fifth Ed., p. 8.chanrobles virtual law library 17 Canons 1 to 32 which were adopted by the American Bar Association in 1908 were also adopted by the Philippine Bar Association in 1917. The American Bar Association adopted Canons 33 to 45 in 1928, Canon 46 in 1933 and Canon 47 in 1937. On April 20, 1946, when Canons 33 to 47 where already in effect, the Revised Constitution of the Philippine Bar Association was approved and it provided that the Association "adopts and makes its own the Code of Ethics of the American Bar Association." (Martin, Legal and Judicial Ethics, Fifth Ed. p, 341).chanrobles virtual law library

18 33 N.Y.S. 2d 733, 734.chanrobles virtual law library 19 JBL Reyes & RC Puno, Outline of Philippine Civil Law. Fourth Ed., Vol. I, p. 7 20 Article 12, Civil Code.chanrobles virtual law library 21 Patriarca vs. Orate, 7 Phil. 390, 395 (1907).chanrobles virtual law library

22 Art. 8, Civil Code 23 Art. 1830, Civil Code.chanrobles virtual law library 24 Art. 11, Civil Code.chanrobles virtual law library 25 Roscoe Pound, The Lawyer From Antiquity To Modern Times, (1953), pp. 9-10.

9)

DOCENA V. LIMON, 295 SCRA 264 A.C. 2387. September 10, 1998 Cleto Docena vs. Atty. Dominador Q. Limon

EN BANC A.C. No. 2387. September 10, 1998 CLETO DOCENA, complainant, v. ATTY. DOMINADOR Q. LIMON, respondent. DECISION PER CURIAM On April 15, 1982, a complaint for disbarment was filed by Cleto Docena against Atty. Dominador Q. Limon, Sr., on grounds of malpractice, gross misconduct, and violation of attorney's oath. It appears that respondent Atty. Limon was complainant's lawyers on appeal in Civil Case No. 425 for Forcible Entry. While the appeal was pending before the then Court of First Instance of Eartern Samar, Branch I, respondent required therein defendants-appellants Docena spouses to post a supersedeas bond in the amount of P10,000.00 allegedly to stay the execution of the appealed decision. To raise the required, complainant Cleto Docena obtained a loan of P3,000.00 from the Borongan, Eastern Samar Branch of the Development Bank of the Philippines; borrowed P2,140.00 from a private individual; and applied for an agricultural loan of P4,860.00 from the Borongan, Samar Branch of the Philippine National Bank, wherein respondent himself acted as guarantor (tsn, Session of July 8, 1983, pp. 33-34). The amount ofP4,860.00 was produced by complainant in response to respondent's letter dated September 2, 1979 (Exh. "C", tsn, p. 26, ibid.) demanding delivery of the aforesaid amount, thus: Dear Mr. and Mrs. Docena: I wish to remind you that today is the last day for the deposit of the balance of P4,860.00. Atty. Batica was in court yesterday verifying whether you have deposited the said balance and the Honorable Judge informed him that you have until today to deposit the said amount. I wish to inform you that the Honorable Judge will be in Sta. Fe tomorrow for rural service. We will be waiting for you tomorrow September 22, 1979, at Sta. Fe as you promised. Very truly yours, (Signed) On November 14, 1980, the Court of First Instance of Eastern Samar rendered a decision on the appealed case in favor of the Docena spouses. After receipt of said decision, complainant went to the CFI to withdraw the supersedeas bond of P10,000.00 but he thereupon discovered that no such bond was ever posted by respondent. When confronted, respondent promised to restitute the amount, but he never complied with such undertaking despite repeated demands from the Docena spouses. In his answer the herein complaint, respondent claimed that the P10,000.00 was his attorney's fees for representing the Docena spouses in their appeal. But this self-serving allegation is belied by the letter (quoted above) of respondent himself demanding from the Docena spouses the balance of P4,860.00 supposedly to be deposited in court to stay the execution of the appealed decision of the MTC. Moreover, the fact that he had promised to return the P10,000.00 to the Docena spouses is also an admission that the money was never his, and that it was only entrusted to him for deposit. After due investigation and hearing, the Intergrated Bar of the Philippines recommended that respondent be suspended from the practice of law for one year and ordered to return the amount of P8,500.00 (he had earlier paid complainant P1,500.00, but nothing more) within 1 month from notice, and should he fail to do so, he shall be suspended indefinitely. The Court finds the recommended penalty too light. Truly, the amount involved may be small, but the nature of the transgression calls for a heavier sanction. The Code of Professional Responsibility mandates that: Canon 1. x x x Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. Canon 16. x x x Canon 16.01 - A lawyer shall account for all money or property collected or received from the client.

Respondent infringed and breached these rules. Verily, good moral character is not a condition precedent to admission to the legal profession, but it must also be possessed at all times in order to maintain one's good standing in the exclusive and honored fraternity (Villanueva vs. Atty. Teresita Sta. Ana, 245 SCRA 707 [1995]). It has been said time and again, and this cannot overemphasize, that the law is not a trade nor a craft but a profession (Agpalo, Legal Ethics, 1983, p. 1). Its basic ideal is to render public service and to secure justice for those who seek its aid. [Mayer vs. State Bar, 2 Call2d 71, 39 P2d 206 (1934), cited in Agpalo, id.] If it has to remain an honorable profession and attain its basic ideal, those enrolled in its ranks should not only master its tenets and principles but should also, by their live, accord continuing fidelity to them. (Agpalo, id) By extorting money from his client through deceit and misrepresentation, respondent Limon has reduced the law profession to a level so base, so low and dishonorable, and most contemptible. He has sullied the integrity of his brethren in the law and has, indirectly, eroded the peoples' confidence in the judicial system. By his reprehensible conduct, which is reflective of his depraved character, respondent has made himself unworthy to remain in the Roll of Attorneys. He should be disbarred. WHEREFORE, respondent Atty. Dominador Q. Limon, Sr. is hereby DISBARRED. The Office of the Clerk of Court is directed to strike out his name from the Roll of Attorneys. Respondent is likewise ordered to return the amount of P8,500.00, the balance of the money entrusted to him by complainant Docena, within one (1) month from the finality of this Decision. SO ORDERED. Narvasa, C.J., Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Martinez, Quisumbing and Purisima, JJ., concur. Regalado, J., on official leave.

10)

RESURRECION VS. SAYSON, 300 SCRA 129

Case Digest: Facts: respondent was accused of having appropriated for his own benefit the amount of P 2, 5000.00 representing the amount which was delivered by the Resurreccion to the respondent as compensation or settlement money of a case for homicide thru reckless imprudence. Sayson did not turn over the amount to his client, the Complainant in the criminal case, forcing Resurreccion to pay the same amount again. Sayson was later convicted for estafa.

Held: Held: Sayson DISBARRED. Good moral character is not only a condition precedent to admission to the legal profession, but it must also remain extant in order to maintain ones good standing in that exclusive and honored fraternity. Acts of moral turpitude (i.e. done contrary to justices, honesty & good morals) such as estafa or falsification render one unfit to be a member of the legal proession. Also, Saysons acts of delaying the hearings before the OSG and the IBP reinforce this view.

A.C. No. 1037. December 14, 1998 Victoriano P. Resurreccion vs . Atty. Ciriaco C. Sayson

EN BANC A.C. No. 1037. December 14, 1998 VICTORIANO P. RESURRECCION, complainant, vs. ATTY. CIRIACO C. SAYSON, Respondent. DECISION PER CURIAM: To say that lawyers must at all times uphold and respect the law is to state the obvious, but such statement can never be overemphasized. Considering that, "of all classes and professions, [lawyers are] most sacredly bound to uphold the law,"1 it is imperative that they live by the law. Accordingly, lawyers who violate their oath and engage in deceitful conduct have no place in the legal profession. In a Complaint-Affidavit, Victoriano P. Resurrecion charged Respondent Atty. Ciriaco C. Sayson with acts constituting "malpractice, deceit and gross misconduct in his office and a violation of his duties and oath as a lawyer." The Complaint arose from a homicide through reckless imprudence case, in which Complainant Resurrecion was the defendant and Respondent Sayson was the counsel for the offended party, Mr. Armando Basto Sr. The complainant alleged that, pursuant to the amicable settlement previously reached by the parties, he gave P2,500 to the respondent who, however, never gave the money to his client. Thus, the complainant was compelled to give anotherP2,500 to Mr. Basto as settlement of the case. The complainant then demanded the return of the money from respondent, to no avail. Thus, the Complaint for Disbarment. The records show that the Office of the Solicitor General (OSG) conducted several hearings on the matter; during which the complainant was represented by Atty. Ronaldo Lopez. Although respondent had been notified, he failed to attend a number of such hearings. He eventually appeared through his new counsel, Atty. Wenceslao Fajardo. Because respondent once again failed to attend the next hearing, the OSG, in its September 4, 1973 Order,2deemed the investigation of the case terminated. But upon the motion of the respondent, the OSG on October 31, 1973, set aside its earlier Order and once again set the case for a hearing of the former's evidence. Since then, however, it appears that the OSG has not been able to submit its report and recommendation on the case. In 1990, the Integrated Bar of the Philippines (IBP) took cognizance of the case 3 and tasked Commissioner Jesulito A. Manalo with the investigation, of which both the complainant and the respondent were duly notified. Complainant Resurreccion manifested his assent to the pursuit of the matter, but Respondent Sayson could not be found.4 In his Report, Commissioner Manalo presented the following facts:

"Respondent, a member of the Philippine Bar was accused of having converted and appropriated [for] his own personal benefit the amount of P2,500.00 representing the amount which was delivered by the complainant to the respondent as compensation or settlement money of a case for homicide thru reckless imprudence. xxx xxx xxx

"Complainant alleged that on 13 May 1970, he was involved in a vehicular accident which occurred at Epifanio delos Santos Avenue, Quezon City which involved a boy [named] the name of Armando Basto resulting [in] the death of the latter. By reason of the said incident, complainant was accused of homicide thru reckless imprudence before the City Fiscal's Office at Quezon City. In the preliminary investigation, the father of the victim Mr. Armando Basto, Sr., was represented by respondent. Complainant was however, represented by Atty. Ramon Umali. The case for homicide thru reckless imprudence was amicably settled on 8 August 1970 and respondent received from the complainant the amount of P2,500.00. Respondent allegedly assured complainant that the sum [would] be delivered to his client Mr. Armando Basto, Sr. Respondent acknowledged in writing having received the amount of P2,500.00. "Contrary however, to the assurances of the respondent, he had not delivered the said amount of P2,500.00 and the case was not dismissed for which reason complainant was compelled to pay anew the heirs of the victim the amount of P2,500.00. Demands were made for the respondent to return the said amount of P2,500.00 but the latter failed. By reason thereof, complainant filed a complaint for estafa against the respondent before the City Court of Quezon City which was docketed as Criminal Case No. III-149358 entitled 'People of the Philippines vs. Ciriaco C. Sayson'. "In the hearing held on 22 May 1973, complainant Victoriano P. Resurreccion appeared assisted by his counsel. There was however, no appearance for the respondent Ciriaco C. Sayson. The investigator declared his failure to appear as a waiver of his presence and Mr. Armando Basto, Sr. was presented as witness. He testified that he [was] the father of Armando Basto, Jr. who was ran over by a motor vehicle then driven by the respondent. By reason of such death a case was filed in court and he was represented by Atty. Ciriaco Sayson, respondent in this case. A settlement arrangement was arrived at and complainant entrusted the amount of P2,500.00 to the respondent for the latter to turn over the same to his client. Atty. Ciriaco Sayson, however, failed to turn over the said amount of P2,500.00 to his client for which reason the case was not immediately dismissed. To effect dismissal of the case, complainant was forced to pay anew the sum of P2,500.00. "Complainant was next presented as witness and he testified that on 30 May 1970, he was involved in a vehicular accident which resulted in the death of one Armando Basto, Jr. By reason thereof, he was accused of homicide thru reckless imprudence[,] and to effect settlement of that case he agreed to pay the amount of P2,500.00. "On 8 August 1970, complainant together with his counsel conferred with [the] respondent in the latter's office at May Building, Rizal Avenue, Manila and in a conference, a settlement was arrived at whereby complainant [would] pay the amount of P2,500.00. This was done and payment was delivered to the respondent who acknowledged having received the said amount. "Subsequently, complainant learned that the said amount of P2,500.00 was not delivered by respondent to Mr. Armando Basto, Sr., the father of the victim for which reason he was compelled to pay another amount of P2,500.00 to the heirs of the victim. "Thereafter, he demanded [the] return of the said amount of P2,500.00 from the respondent. Despite visiting the latter fifteen or sixteen times, Atty. Ciriaco C. Sayson still failed to return the money. Thus, complainant filed a complaint for estafa which was elevated in Court and docketed as Criminal Case No. 49358. "A Decision finding the respondent guilty of [the] crime of estafa was promulgated by the City Court of Quezon City."5 Commissioner Manalo then rendered his evaluation and recommendation in this wise: "Complainant was able to establish by more than convincing evidence that the misappropriation was in fact committed by the respondent. This fact [is] eloquently proven by Exhibits "A" to "E", all of which were not controverted by the respondent. xxx xxx xxx "In view of the foregoing, undersigned Commissioner respectfully recommends that the above-entitled case be endorsed by the Honorable Board Governors to the Supreme Court with the recommendation that the complain[ant be] disbarred and his name be stricken off xxx the roll of attorneys. xxx xxx xxx"6 On February 28, 1998, the IBP Board of Governors issued a Resolution adopting and approving the report and recommendation of Commissioner Manalo. The Resolution, signed by IBP National Secretary Roland B. Inting and forwarded to this Court on March 28, 1998, is worded as follows: "RESOLUTION NO. XIII-97-202 Adm. Case No. 1037 Victoriano P. Resurreccion vs. Atty. Ciriaco C. Sayson RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED AND APPROVED, the Report and Recommendation of the Investigating Commissioner in the above-entitled case, herein made part of this

Resolution/Decision as Annex "A" and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, respondent Atty. Ciriaco C. Sayson is DISBARRED and xxx his name xxx stricken from the Roll of Attorneys for having been found guilty of Estafa promulgated by the City Court of Quezon City and [which] complainant was able to establish by more convincing evidences that misappropriation was in fact committed by the respondent, all of which were not controverted by the respondent."7 The Court agrees with Commissioner Manalo's findings and conclusion, as approved and adopted by the IBP Board of Governors. Atty. Ciriaco C. Sayson must be disbarred.

Respondent Sayson was convicted of estafa by the Regional Trial Court of Quezon City on September 20, 1973.8Such conviction was affirmed by the Court of Appeals9 and upheld by this Court.10 In In re Vinzon,11 the Court disbarred a lawyer who had been convicted of estafa and held that "moral turpitude includes everything which is done contrary to justice, honesty or good morals. In essence and in all respects, estafa, no doubt, is a crime involving moral turpitude because the act is unquestionably against justice, honesty and good morals." In a more recent case,12 the Court upheld the recommendation of the IBP Board of Governors to disbar a lawyer who had been convicted of estafa through falsification of public documents, because she was "totally unfit to be a member of the legal profession." In adopting the recommendation, we held that "good moral character is not only a condition precedent to admission to the legal profession, but it must also remain extant in order to maintain one's good standing in that exclusive and honored fraternity." True, the power to disbar must be exercised with great caution and only in a clear case of misconduct that seriously affects the standing and character of the lawyer as an officer of the Court and member of the bar.13 Disbarment should never be decreed where any lesser penalty, such as temporary suspension, would accomplish the end desired.14 However, in the present case, the Court notes that even if respondent's culpability for estafa has been indubitably established, there is no indication that he has served sentence, returned to complainant what was due him or showed any remorse for what he did. The 27-year delay in the resolution of this case was, to a large extent, caused by his failure to appear before the Office of the Solicitor General and to inform the IBP of his change of address, a failure that also indicated his lack of regard for the very serious charges brought against him. Respondent Sayson, by his conduct, has shown that he is not worthy to remain a member of the bar. Law is a noble profession, and the privilege to practice it is bestowed only upon individuals who are competent intellectually, academically and, equally important, morally. Because they are vanguards of the law and the legal system, lawyers must at all times conduct themselves, especially in their dealings with their clients and the public at large, with honesty and integrity in a manner beyond reproach. WHEREFORE, Respondent Ciriaco C. Sayson is hereby DISBARRED. The Clerk of Court is directed to strike out his name from the Roll of Attorneys. SO ORDERED. Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Martinez, Quisumbing, Purisima, and Pardo, JJ., concur.

Endnotes: 1 Ex parte Wall, 107 U.S. 265; cited in Malcolm, Legal and Judicial Ethics, p. 214. 2 Issued by the investigating officer, Solicitor Norberto P. Eduardo. 3 Largely due to Complainant Resurreccion's steadfast determination to pursue the case. He had written letters bewailing the delay in the resolution of the disbarment case and had submitted documents which he thought were necessary for the proper disposition of the case, which were either lost or misplaced at the Office of the Solicitor General. 4 All letters to Sayson were returned to the IBP. 5 Rollo, Vol. I, pp. 36-38. 6 Ibid., p. 39. 7 Rollo, vol. I, p. 35. 8 The decretal part of the trial court's Decision, penned by Judge Pacifico I. Punzalan, reads as follows:

"WHEREFORE, the court finds the accused Atty. Ciriaco C. Sayson GUILTY beyond reasonable doubt of the crime of estafa as charged in the information, defined and penalized under Article 315, sub-division three, sub. par. 1-b of the Revised Penal Code, and hereby imposes upon him as penalty, to suffer an indeterminate imprisonment of four (4) months of arresto mayor as minimum, to one (1) year and eight (8) months of prision correccional as maximum, to indemnify the offended party Victoriano Resurreccion in the sum of P2,500.00 without subsidiary imprisonment in case of insolvency, together with all the accessory penalties of law, and to pay the costs." (CA Decision, p. 1). 9 In People of the Philippines v. Atty, Ciriaco C. Sayson, CA-GR No. 15299-CR, the Court of Appeals (First Division, composed of Justice Roseller T. Lim, ponente; and Justices Magno S. Gatmaitan and Sixto A. Domondon, concurring) disposed of the case as follows: "The failure, therefore, of appellant to produce the money when confronted at the Fiscal's Office, or even when the present action was filed, is a clear indication of converting or misappropriating for his own use and benefit the money he received for his client. We agree with the conclusion of the lower court as follows: 'From the facts of the above-entitled case, brought out during the trial by clear, satisfactory and convincing evidence, this court is of the view that when the accused received the amount of P2,500.00 in Manila from the offended party REsurreccion, pursuant to the agreement reached by parties in Quezon City, accused imposed upon himself the obligation and duty to deliver the said amount to his client Basto, Sr. in Quezon City, and should he fail to do so, to return the said amount to Resurreccion, as borne out [by] the testimonies of Resurreccion and Atty. Umali. The failure of the accused to deliver the amount of P2,500.00 to Basto and the subsequent failure of the accused to return the said amount to Resurreccion, coupled with his failure to give any reason for such failure despite demands, clearly show misappropriation or conversion, or at least part thereof, as an essential ingredient of the offense of the estafa, occurred in Quezon City. The fact that Resurreccion was constrained to pay Basto again the amount of P2,500.00 in order that the case against him would be dropped, as it was indeed dropped, sufficiently prove[s] prejudice and damage on the part of the complainant Resurreccion.' "IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED, with costs against appellant." (CA Decision, pp. 9-10). 10 Rollo, vol. I, p. 15. The Court's March 18, 1977 Resolution is worded thus: "L-43834 (Atty. Ciriaco Sayson vs. Court of Appeals, eat. al.). Considering the grounds of petitioner's motion for reconsideration of the resolution of August 20, 1976 which denied the petition for review on certiorari of the decision of the Court of Appeals as well as the Solicitor General's comment thereon, the Court Resolved to DENY the motion for lack of merit and this denial is FINAL. The Court of Appeals is directed to remand the records of this case to the trial court for prompt execution of judgment to the trial court and to submit to this Court proof of such remand, both within five (5) days from notice hereof." 11 19 SCRA 815, April 27, 1967. See also Medina v. Bautista, 12 SCRA 1, September 26, 1964, and In Re: Abesamis, 102 Phil. 1182, January 17, 1958. 12 Villanueva v. Sta. Ana, 245 SCRA 707, July 11, 1995. 13 Tapucar v. Tapucar, Adm. Case No. 4148, July 30, 1998. 14 For example, in Castillo v. Taguines, 254 SCRA 554, March 11, 1996, the respondent, who was accused of estafa by his client, was suspended for one year from the practice of law. Likewise, in Igualv. Javier (254 SCRA 416, March 7, 1996), suspended from the practice of law for one year was the respondent, who was accused of having unlawfully withheld and misappropriated complainant's money in the amount of P7,000.00, allegedly paid as acceptance fee for a matter on which respondent never performed any work.

11)

Reyes Vs. CA, 267 SCRA 543

G.R. 111682. February 6, 1997 Zenaida Reyes vs. Court of Appeals, et al.

SECOND DIVISION [G.R. No. 111682. February 6, 1997]

ZENAIDA REYES, Petitioner, vs. COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, Respondents. RESOLUTION MENDOZA, J.: This is a motion for reconsideration of the resolution, dated November 29, 1995, of the Court, denying the petition for review of the decision, dated May 28, 1993, and the resolution, dated August 30, 1993, of the Court of Appeals1in CA-G.R. CR. No. 08410, affirming the conviction of petitioner Zenaida P. Reyes of falsification of public document. Petitioners motion is based on her contention that because of her counsels unexplained absences at the trial she was prevented from presenting evidence in her defense and therefore denied the due process of law. The facts are as follows: In an information filed on April 7, 1986 with the Regional Trial Court of Bulacan and later assigned to Branch 22 thereof as Criminal Case No. 9252-M, petitioner Zenaida Reyes was accused of falsifying a deed of sale of four (4) parcels of land by feigning and signing the name of Pablo Floro, who could not affix his signature anymore due to age infirmity, on the said document as seller and causing it to appear that said Pablo Floro [had] participated in the execution of the said document when in truth and in fact, as said accused well knew, said deed of sale was not executed and signed by the said Pablo Floro, nor did he ever appear before any notary public for the purpose of acknowledging the deed above mentioned.2chanroblesvirtuallawlibrary Upon being arraigned, petitioner pleaded not guilty. Trial on the merits then followed. After the prosecution had rested its case, the presentation of the defense evidence was scheduled on February 6, 1989, which, however, was reset for the last time to March 10, 1989 due to petitioners illness.3 The hearing on March 10, 1989 was, however, cancelled also because of the absence of both the private prosecutor and defense counsel, Atty. Analuz Cristal-Tenorio. The new schedule was April 12, 1989.4 However, Atty. Tenorio was again absent on April 12, 1989. Petitioner was also absent, but her husband appeared and submitted to the court a medical certificate that she was sick. The hearing on that date was therefore postponed to May 17, 1989 [f]or the last time.5chanroblesvirtuallawlibrary On May 11, 1989, Atty. Tenorio moved for the postponement of the hearing from May 17, 1989 to June 5, 1989, allegedly because she had to leave for Malaybalay, Bukidnon to assist in the prosecution of her brother-in-laws killers. The trial court, while noting that the hearing on May 17, 1989 was intransferrable in character, nonetheless granted Atty. Tenorios motion and postponed the hearing to June 5, 1989 over the objection of the private prosecutor. Petitioner was warned that if she did not present her evidence on that date, she would be considered to have waived her right to do so.6 But the hearing on June 5, 1989 had to be rescheduled again because petitioners counsel, Atty. Tenorio, was absent.7 On July 10, 1989, the new date of hearing, both petitioner and Atty. Tenorio were absent, so that on motion of private prosecutor, the court declared petitioner to have waived the right to present her evidence. 8 Four days later (on July 14, 1989), petitioner gave a medical certificate9 stating that she was suffering from hypertension and rheumatism which required bed rest for at least 5-7 days. The court merely noted the medical certificate but maintained its previous order, on the ground that the same is not a motion and [as] counsel was also not in Court during the last hearing, the Order of the Court dated July 10, 1989 to the effect that the presentation of defense evidence is considered waived, stands.10chanroblesvirtuallawlibrary Petitioner by herself moved for reconsideration, alleging that she failed to appear in court on July 10, 1989 because she was indisposed and had been unable to contact Atty. Tenorio. She asked for permission to present her evidence. Her motion, however, was denied by the court in its order of August 29, 198911 in which it also scheduled the promulgation of judgment on September 29, 1989. On September 29, 1989, the court rendered its decision12 finding petitioner guilty of falsification and sentencing her to 4 months of arresto mayor, as minimum, to 4 years and 2 months of prision correccional, as maximum, and to pay a fine of P5,000.00. Petitioner through a new counsel, Atty. Ronolfo S. Pasamba, filed a notice of appeal. 13 On May 9, 1990, petitioner by herself filed a motion in the Court of Appeals for extension of 30 days to file her brief as appellant.14 About the same time Atty. Pasamba also filed a motion for an extension of 45 days for the same purpose, but later asked to be relieved as petitioners counsel on the ground that despite his request, petitioner did not give him the records of the case and confer with him but instead acted as her own counsel by filing her own motion for time to file brief. The Court of Appeals granted Atty. Pasambas motion and required petitioner to submit the name and address of her new counsel within ten (10) days from notice. Petitioner instead filed a motion for new trial in lieu of appellants brief, claiming that because of the negligence of her counsel, she had been deprived of her right to present evidence on her behalf in the trial court. After the Solicitor General filed his comment, the Court of Appeals in its resolution dated January 15, 1992 denied petitioners motion for new trial and gave her 30 days within which to file her appellants brief. 15 The appellate court held: All that appellant is invoking as ground for new trial is the policy of liberality in the application of the rules and the alleged negligence of her counsel. Appellant, who has, in fact, prepared the motion herself, without the assistance of counsel, is probably a member of the Bar. If she is not, she must have gone through law school as her handiwork is written in forensic style and

is even better than the pleadings of some licensed advocates who are handling appealed cases or original special civil actions before this Court. Under the Rules the grounds for new trial are (a) That errors of law or irregularities have been committed during the trial prejudicial to the substantial rights of the accused; and (b) That new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial, and which if introduced and admitted, would probably change the judgment. (Rule 121, Section 2) There is not even a wee bit of a hint about the second ground. So, in effect, what the accused would want of Us is to bend over backwards and in a gesture of liberality consider as an error of law or as an irregularity the trial courts conclusion that she was deemed to have waived her right to present evidence in her defense. In connection with this course of action she already filed before the trial court a motion for reconsideration: this was denied, whereupon the trial court proceeded to rendition of the judgment appealed from by the accused to this court. We have meticulously gone over the entire record, and We find that accused appellant was not at all deprived of her day in court or denied due process. She was afforded ample opportunity to present evidence in her defense. Regardless of the nature of the offense charged, a criminal case, even if it involves only a light offense, the penalty for which might be mere censure, is a serious matter that deserves equally serious attention by the one accused. The appellant, it seems never gave to this case while it was still at the lower court the serious attention that it deserves. For good reason -- repeated absences of the accused and her counsel -- the trial court was eventually constrained to consider the accused to have waived the presentation of evidence in her defense. As pointed out by the Solicitor General, it is settled in our jurisprudence that dilatory moves by the accused that tend to defeat the expeditious termination of a criminal case is tantamount to trifling with the administration of justice that certainly can not and should not be condoned. (PP vs. Angco, 103 Phil. 33; PP vs. Dichoso, 96 SCRA 957) Petitioner filed a very urgent motion for 90 days from February 22, 1992 to secure services of counsel to file her appellants brief. The Court of Appeals gave petitioner 15 days from February 22, 1992, the last day of the extension previously granted her. The Court of Appeals stated that it had given petitioner notice to file brief as early as March 27, 1990, but petitioner has been trifling with our judicial processes long enough. On March 6, 1992, without the assistance of counsel, accused-appellant filed an appellants brief. Thereafter the Solicitor General filed the appellees brief to which petitioner filed a reply brief. On May 28, 1993, the Court of Appeals rendered its decision, affirming the trial courts ruling. On August 30, 1993 it denied reconsideration. Petitioner filed this case for review on certiorari, claiming that her conviction by the trial court was void because she was denied due process, since she was denied the opportunity to present evidence in her behalf. The Solicitor General filed his comment to which petitioner filed a reply. On November 29, 1995 this Court denied the petition for lack of merit. Hence this motion for reconsideration. After due consideration of the motion and its supplement and the separate comments thereto by the respondents as well as petitioners replies and private respondents consolidated rejoinder, the Court now resolves to grant petitioners motion for reconsideration. First. The issue in this case is whether the trial court properly held petitioner to have waived the right to present evidence because of her failure to proceed despite several postponements granted to her. To be sure, the postponement of the trial of a case to allow the presentation of evidence of a party is a matter which lies in the discretion of the trial court, but it is a discretion which must be exercised wisely, considering the peculiar circumstances obtaining in each case and with a view to doing substantial justice. 16 In the case at bar, hearings were scheduled for the presentation of petitioners evidence on six different dates, to wit: (1) February 6, 1989; (2) March 10, 1989; (3) April 12, 1989; (4) May 17, 1989; (5) June 5, 1989; and (6) July 10, 1989. Petitioner was absent thrice, i.e., on February 6, 1989, April 12, 1989, and July 10, 1989. On the first date, petitioner could not come because she was sick and her counsel so informed the court. She was absent also on June 5, 1989 and July 10, 1989 because of illness (hypertension and rheumatism). Thus, while petitioners absences were explained, those of her counsel were not. Atty. Tenorio simply disappeared without a trace, despite warning to counsel that her failure to present evidence for her client on June 5, 1989 would be considered a waiver of the latters right to present her evidence. But counsel failed to heed the warning. Petitioner had to soldier on and, by herself, had to plead with the court for a chance to present her evidence. Contrary to what the appellate court thought in affirming petitioners conviction, this was not the case of a woman who treated the criminal proceedings against her with cavalier disdain. Indeed, we do not think that petitioners absences were so many, capricious, or egregious as to indubitably indicate an attempt to stall the proceedings of the criminal case as was the case in People v. Angco17 and People v. Dichoso.18Petitioner might have tried to delay the filing of her appellants brief, but her effort can be attributed to an understandable desire to be allowed to present her evidence. Hence, the filing of a motion for new trial. Even in her present petition before this Court petitioners prayer is not that she be exonerated but only that she be given the chance to prove her innocence by being allowed to present her evidence. Respondent People and the counsel for the private respondent oppose petitioners motion. They point out that, unlike the cases19 which petitioner cites in support of her motion, petitioner herself was negligent. They contend that she could not have been unaware of the absences of her lawyer but despite that she did nothing to protect her interests. Private respondent argues that if granted a second chance to present her side, nothing will stop the petitioner from once again engaging the services of her erstwhile absentee counsel. Anyway, after another 10 years of litigation, she can easily sound her reliable refrain: I was denied due process! I was ready to present my evidence, but my lawyer was absent for five consecutive times.... Private respondents contention is exaggerated. Of course there is a limit to petitioners credibility should she repeat what had happened here just for delay, not to mention that she would be taking a big risk of losing her

defense. As for the private respondents argument that petitioner should have gotten another lawyer, only with the benefit of hindsight does this course appear to be the only tenable one to take. Petitioner might have thought that her counsel would be more sedulous in her behalf. Or perhaps petitioner tried to get another counsel, but failed and, left with no choice, stuck it out with Atty. Tenorio and simply hoped for the best rather than be left without a counsel. In any case, the fact that on May 17, 1989 and June 5, 1989 petitioner was present even when counsel was absent tends to negate an intention to delay the criminal proceedings. It was Atty. Tenorios absences, then, rather than petitioners, which appear to be the cause for the defenses failure to present its evidence. Atty. Tenorios negligence did not consist in error of procedure or even a lapse in strategy but something as basic as failing to appear in court despite clear warning that such failure would amount to waiver of her clients right to present evidence in her defense. Keeping in mind that this case involves personal liberty, the negligence of counsel was certainly so gross that it should not be allowed to prejudice petitioners constitutional right to be heard. The judicial conscience certainly cannot rest easy on a conviction based solely on the evidence of the prosecution just because the presentation of the defense evidence had been barred by technicality. Rigid application of rules must yield to the duty of courts to render justice where justice is due to secure to every individual all possible legal means to prove his innocence of a crime with which he or she might be charged.20 Only last year, this Court set aside its decision after finding that the right of the accused to due process had been violated. In De Guzman v. Sandiganbayan,21 this Court set aside its decision affirming petitioners conviction by the Sandiganbayan and its resolution denying reconsideration, after being shown that petitioners conviction had been brought about by his counsels gross ignorance of law and procedure. The Court held: Petitioners present dilemma is certainly not something reducible to pesos and centavos. No less than his liberty is at stake here. And he is just about to lose it simply because his former lawyers pursued a carelessly contrived procedural strategy of insisting on what has already become an imprudent remedy, which thus forbade petitioner from offering his evidence all the while available for presentation before the Sandiganbayan. Under the circumstances, higher interests of justice and equity demand that petitioner be not penalized for the costly importunings of his previous lawyers based on the same principles why this Court had, on many occasions where it granted new trial, excused parties from the negligence or mistakes of counsel. To cling to the general rule in this case is only to condone rather than rectify a serious injustice to petitioners whose only fault was to repose his faith and entrust his innocence to his previous lawyers.... The Court remanded the case to the Sandiganbayan for reception and appreciation of petitioners evidence. In another case, People v. Del Mundo,22 in which the accused was convicted of rape in six cases and sentenced toreclusion perpetua on five of them and to death on the sixth, this Court ordered a new trial after it was shown that complainant had executed prior to accuseds conviction an affidavit of desistance, while an NBI medico-legal report given after such conviction found that complainants physical virginity preserved. The report belied the contrary finding of the city health officer on which the trial court relied in convicting the accused. Although the NBI report did not constitute newly-discovered evidence, a new trial was nonetheless ordered on the broader ground of substantial justice [as] the rule for granting a motion for new trial, among others, should be liberally construed to assist the parties in obtaining a just and speedy determination of their rights.... Court litigations are primarily for the search for truth, and a liberal interpretation of the rules by which both parties are given the fullest opportunity to adduce proofs is the best way to ferret out such truth. Reconsideration of the resolution in this case is compelled by these precedents. Indeed, to deny petitioner the opportunity to present her evidence on the merest chance that she might be innocent would be to disregard the wisdom that it is better to acquit ten guilty individuals than to convict one innocent person. The Court is as aware as anyone of the need for the speedy disposition of cases. At the same time, however, it has ever been mindful of its responsibility as the highest tribunal of justice to see to it that the paramount interests of justice are not sacrificed for the sake of speed and efficiency. As Justice Teehankee wrote:23chanroblesvirtuallawlibrary The Court has consistently maintained that although a speedy determination of an action implies a speedy trial, speed is not the chief objective of a trial. Careful and deliberate consideration for the administration of justice, a genuine respect for the rights of all parties and the requirements of procedural due process and an adherence to the Courts standing admonition that the discretion granted judges in the granting or denial of motions for postponement and the setting aside of denial orders previously issued should always be predicated on the consideration that more than the mere convenience of the courts or of the parties in the case, the ends of justice and fairness would be served thereby are more important than a race to end the trial. Second. In denying petitioners plea for a chance to present her evidence, the Court of Appeals observed that petitioner has more than a laymans acquaintance with the law, having been able to prepare and file her own motion for new trial and appellants brief, to be given the benefit of the doubt. But even lawyers, who are parties in a case, need the guiding hand of counsel. Skill in drafting pleadings (which is practically the only lawyerly thing petitioner did) is vastly different from skill needed in the courtroom. Preparing pleadings can be done at leisure with the luxury of consultation, either of books or of people. Trial work, however, demands more. It requires the ability to think fast on ones feet and the psychologists feel for the witness mood and motive. As then Chief Justice Moran said for the Court in People v. Holgado:24chanroblesvirtuallawlibrary Even the most intelligent or educated man may have no skill in the science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. It is entirely probable that, forced to be her own lawyer, petitioner nonetheless felt some inadequacy and experienced some moments of doubt whether she could go through the ordeal of presenting her evidence by her lonesome, and that could be the reason why she hesitated from doing so when she found herself without the assistance of counsel and not because petitioner tried to delay the proceedings and obstruct the course of justice.

In sum, it is better to allow petitioner another chance to present her evidence than to let her conviction stand based solely on the evidence of the prosecution. In accordance with Rule 121, 6,25 the evidence of the prosecution shall be understood preserved, subject to the right of the prosecution to supplement it and/or to rebut the evidence which petitioner may present. WHEREFORE, the motion for reconsideration of the resolution of November 29, 1995 is GRANTED and the decision dated May 28, 1993 of the Court of Appeals and that of the Regional Trial Court of Bulacan, Branch 22 dated September 29, 1989 in Criminal Case No. 9252-M are SET ASIDE and this case is REMANDED to the Regional Trial Court of Bulacan for a new trial for the purpose of allowing petitioner to present evidence in her defense with directive to the court thereafter to decide the case with all deliberate speed. SO ORDERED. Regalado, (Chairman), Romero, Puno, and Torres, Jr., JJ., concur.

Endnotes: 1 (Tenth Division) per Justice Regina G. Ordoez-Benitez and concurred in by Justices Arturo B. Buena and Eduardo G. Montenegro. 2 Vol. I of Records, p. 1. 3 RTC Order of February 6, 1989, id., p. 276. 4 RTC Order of March 10, 1989, id., p. 281. 5 RTC Order of April 12, 1989, id., p. 286. 6 RTC Order of May 17, 1989, id., p. 293 7 RTC Order of June 5, 1989, id., p. 297. 8 RTC Order of July 10, 1989, id., p. 300. 9 Id., p. 301. 10 RTC Order of July 17, 1989, id., p. 303. 11 Id., p. 314. 12 Id., pp. 326-334. 13 Id., p. 338. 14 CA Rollo, p.14. 15 (Special Eleventh Division) per Justice Fortunato A. Vailoces and concurred in by Justices Nathanael P. de Pano, Jr. and Luis A. Victor, CA Rollo, pp. 69-71. 16 Piedad v. Batuyong, 55 SCRA 763 (1974); People v. Martinez, 105 Phil. 200 (1959); United States v. Ramirez, 39 Phil. 738 (1919). 17 103 Phil. 33 (1953). 18 96 SCRA 957 (1980). 19 The cases are (1) Aceyork Aguilar v. Court of Appeals, 250 SCRA 371 (1995) where the Court set aside the dismissal of petitioners appeal for failure to file the appellants brief on time, it appearing that petitioners former counsel had abandoned him and could not be contacted despite earnest efforts; (2) Legarda v. Court of Appeals, 195 SCRA 418 (1991) where the Court found petitioners counsels negligence in allowing petitioner to be declared in default and the ensuing judgment against her to lapse in finality resulting in the loss of her property worth millions so gross and inexcusable as to warrant reinstating her title to the property; (3) Escudero v. Dulay, 158 SCRA 69 (1988) where the Court set aside the decision of the trial court against the petitioner, the same being due to their trial counsels blunder in procedure and gross ignorance of existing jurisprudence; and (4) Peoples Homesite and Housing Corp. v. Tiongco, 12 SCRA 471 (1964) where the Court held that a petition for relief although filed outside the reglementary period of 60 days was

nonetheless seasonably filed because the delay was attributed to the negligence of petitioners counsel. 20 People v. Jose, 70 SCRA 257 (1976). 21 G.R. No. 103276, April 11, 1996. 22 G.R. Nos. 119964-69, September 20, 1996. 23 Amberti v. Court of Appeals, 89 SCRA 240, 249-250 (1979). 24 85 Phil. 752, 756 (1959). 25 Rule 121, 6: Effects of granting a new trial or reconsideration. - The effects of granting a new trial or reconsideration are the following: (a) When a new trial is granted on the ground of errors of law or irregularities committed during the trial, all the proceedings and evidence not affected by the commission of such errors and irregularities shall stand, but those affected thereby shall be set aside and taken anew. The court may, in the interest of justice, allow the introduction of additional evidence. .... (c) In all cases, when the court grants new trial or reconsideration, the original judgment shall be set aside and a new judgment rendered accordingly. (Emphasis added)

12)

People vs. Agustin, 240 SCRA 541

G.R. No. 110290 January 25, 1995 People of the Philippines vs. Jaime Agustin, et al.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 110290 January 25, 1995 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. JAIME "JIMMY" AGUSTIN, WILFREDO "SONNY QUIAO, MANUEL "JUN" ABENOJA, JR., and FREDDIE "BOY" CARTEL, accused. JAIME "JIMMY" AGUSTIN, accused-appellant. DAVIDE, JR., J.: chanrobles virtual law library In five separate informations filed on 22 May 1987 with the Regional Trial Court (RTC), Branch 3, Baguio City, the accused were charged with murder in Criminal Cases Nos. 4647-R and 4648-R, with frustrated murder in Criminal Case No. 4649-R, and with attempted murder in Criminal Cases Nos. 4650-R and 4651-R. The crimes were allegedly committed on 6 September 1986 in Baguio City and resulted in the deaths of Dr. Napoleon Bayquen and Anna Theresa Francisco and the wounding of Anthony Bayquen, Dominic Bayquen, and Danny Ancheta.chanroblesvirtualawlibrary chanrobles virtual law library The informations in the murder cases charged that the accused acted in conspiracy and alleged the presence of the qualifying circumstance of treachery and the ordinary aggravating circumstances of evident premeditation and price.1 Only the appellant and Wilfredo Quiao were arrested. However, before Quiao could be arraigned, he escaped on 12 July 1987 while under the custody of the Philippine Constabulary/PNP Regional Command I at Camp Dangwa, La Trinidad, Benguet. 2 The cases, which were consolidated and jointly tried, proceeded only against the appellant.chanroblesvirtualawlibrarychanrobles virtual law library After the appellant pleaded not guilty at his arraignment on 4 September 1987, trial on the merits was held on various dates from 11 May 1988 until 10 January 1990.chanroblesvirtualawlibrary chanrobles virtual law library On 30 May 1990, the trial court promulgated its decision 3 in the consolidated cases acquitting the appellant in Criminal Case No. 4649-R (frustrated murder) and Criminal Cases Nos. 4650-R and 4651-R (attempted murder) for insufficiency of evidence but convicting him in the two murder cases, Criminal Cases Nos. 4647-R and 4648R, with treachery as the qualifying circumstance. 4 It also ruled that the aggravating circumstances of evident premeditation and price had been duly established. It then sentenced the appellant as follows:

Upon these premises, the accused Jaime Agustin is found GUILTY of two (2) counts of murder, the prosecution having proven his guilt beyond reasonable doubt. In each of the criminal cases aforesaid, he should be sentenced to the maximum penalty of Death, there being two aggravating circumstances. However, since the death penalty is not imposable at this time, the accused is sentenced to Reclusion Perpetua. He is further ordered to indemnify the heirs of the victims; Anna Theresa Francisco the sum of sixty Three Thousand Pesos (P63,000.00) as actual damages (Exhibits "F," "I" and "G"); and Dr. Napoleon Bayquen, the sum of Thirty Thousand Pesos (P30,000.00). With costs against the accused, Jaime Agustin.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED. 5 chanrobles virtual law library The version of the prosecution is based on the testimonies of (1) Isidoro Magpantay, a member of the Baguio City Police Force, who identified the initial report (Exhibit "A"); (2) Christie Napeas, a stenographic reporter in the Office of the City Fiscal of Baguio City, who took down the stenographic notes of City Fiscal Erdolfo Balajadia's investigations of accused Wilfredo Quiao (Exhibit "D") on 30 January 1987 and of the appellant on 10 February 1987, and who identified her stenographic notes containing the statement of the appellant (Exhibit "B") and the transcript of said stenographic notes (Exhibit "C"); (3) Dominic Bayquen, the victim in Criminal Case No. 4650-R, who testified on how they were shot; (5) Eulogio Francisco, the father of Anna Theresa Francisco, who identified her death certificate (Exhibit "I") and testified on the list of expenses (Exhibit "G"); (6) Rogelio Mumar, a supervising ballistics expert, who declared that the fourteen shell recovered from the scene of the crime were not fired from any of the three armalite rifles submitted to him; (7) Atty. Reynaldo Cajucom, who testified that he was the lawyer who assisted the appellant and accused Wilfredo Quiao while they were being investigated by City Fiscal Balajadia; and (8) Lilian San Luis Bayquen, wife of Dr. Napoleon Bayquen and mother of Dominic Bayquen, who testified on what she did after Dominic informed her by telephone about the shooting incident.chanroblesvirtualawlibrary chanrobles virtual law library The evidence for the prosecution established the following facts. At past 7:30 p.m. of 6 September 1986 in Baguio City, Dr. Napoleon Bayquen, a dentist, together with his son, Anthony; Anthony's girlfriend, Anna Theresa Francisco; his daughter, Dominic; and Danny Ancheta, a family friend, were on their way aboard their Brasilia to the doctor's residence at Trancoville at 21-D Malvar Street, Baguio City, from his driving the car. While they were cruising along Malvar Street and nearing the Baptist church, a man came out from the right side of a car parked about two meters to the church. The man approached the Brasilia, aimed his armalite rifle through its window, and fired at the passengers. The Brasilia swerved and hit a fence. The gunman immediately returned to the parked car which then sped away.chanroblesvirtualawlibrary chanrobles virtual law library All those in the car were hit and Dr. Bayquen and Anna Theresa died on the spot. Dr. Bayquen's head was blown off. Dominic was bale to get out of the Brasilia to run to the Alabanza store where she telephoned her mother and told her what had happened. Later, she and her mother brought her father and Anthony to the hospital. 6 Danny Ancheta went home and was then brought to the Notre Dame Hospital for treatment. 7 Anna Theresa Francisco was brought to the funeral parlor. 8 The police later arrived at the crime scene and conducted an investigation. they recovered some empty shells of an armalite rifle. 9 On 30 January 1987, accused Wilfredo "Sonny" Quiao, an alleged former military agent or "asset" who had been picked up in La Union by the police authorities, confessed during the investigation conducted by Baguio City Fiscal Erdolfo Balajadia in his office that he was the triggerman in the fatal shooting of Dr. Bayquen and Anna Theresa Francisco. He implicated Manuel "Jun" Abenoja, Jr., allegedly a fellow military agent and the "bagman" who engaged him to kill Dr. Bayquen for a fee, Freddie "Boy" Cartel, who provided the armalite, and a certain "Jimmy." During the investigation, Wilfredo Quiao was assisted by Atty. Reynaldo Cajucom, a representative of the Integrated bar of the Philippines (IBP). Ms. Christie Napeas, a stenographic notes of the proceedings during the investigation. 10Thereafter, she transcribed the notes and the transcription became the sworn statement of Wilfredo Quiao which he signed, with the assistance of Atty. Cajucom, and swore to before City Fiscal Balajadia. 11 In the morning of 10 February 1987, "Jimmy," who turned out to be appellant Jaime Agustin, was picked up in Sto. Tomas, Pangasinan, by military personnel and brought to Baguio city. At 4:00 p.m. of that date, he was taken to the office of City Fiscal Erdolfo Balajadia where he was investigated in connection with the crime. Atty. Reynaldo Cajucom assisted the appellant during the investigation. Ms. Christie Napeas took down stenographic notes of the proceedings during the investigation. The stenographic notes consisted of 22 pages (Exhibit "B"), each of which was signed afterwards by the appellant and Atty. Cajucom. Ms. Napeas subsequently transcribed these notes which the prosecution marked as Exhibit "C." The appellant narrated therein his knowledge of the shooting of Dr. Bayquen and revealed the identities of his cohorts in the crime. In a confrontation two days later, he identified Quiao as "Sony," the triggerman.chanroblesvirtualawlibrary chanrobles virtual law library The defense presented the appellant and his wife, Elizabeth Agustin. The appellant, who is a farmer and whose highest educational attainment was grad four, impugned the validity of his extrajudicial statement. he alleged that in the morning of 10 February 1987, he went to Carmen, Pangasinan, to buy some fertilizer and upon his return he was met by two armed men who took him to their car where two other companions, armed with armalites, were waiting. They then brought him out of Pangasinan. He later learned that they were on their way to Baguio City.chanroblesvirtualawlibrarychanrobles virtual law library Inside the car, he was asked if he knew Boy and Jun, and he answered that he did not. Along Kennon Road, he was made to stoop down at the back seat whenever they would reach a toll booth, and then brought out three times near the ravines and made to kneel at gunpoint in order to force him to admit his involvement in the

shooting, which he finally did out of fear. Then he was brought to the Office of the City Fiscal of Baguio City.chanroblesvirtualawlibrary chanrobles virtual law library While he was giving his statement at the fical's office, the armed men stayed with him and their presence deterred him from telling the investigating fiscal that he was being threatened. He further declared that although he was given a lawyer, Atty. Reynaldo Cajucom, to assist him, he, nevertheless, asked for his uncle who is a lawyer, Atty. Oliver Tabin, and that Atty. Cajucom interviewed him from only two minutes in English and Tagalog but not in Ilocano, the dialect he understands. Then later, at Camp Dangwa to where he was taken, he told his wife to get in touch and talk with Atty. Tabin. Finally, he asserted that he was promised by his captors that he would be discharged as a state witness if he cooperates, but the plan did not push through because his coaccused, Quiao, escaped. 12 Elizabeth Agustin corroborated her husband's story that he went to Carmen in the morning of 10 February 1987 to buy some fertilizer and that he failed to return. Her efforts to locate him proved futile until days later when she finally learned that he was detained at Camp Dangwa. 13 The trial court admitted the appellant's extrajudicial statement and gave scant consideration to his claim of force, intimidation, and other irregularities because of the following reasons: (a) the presence of material improbabilities in his tale of when and how he was allegedly taken at gunpoint from his hometown in Pangasinan; (b) it was improbable that he was made to kneel thrice at gunpoint along Kennon Road considering the vehicles which were passing along that road; (c) it was unbelievable that when he was in the Fiscal's Office he asked for his uncle, Atty. Tabin if he could not go home for a period of one month; (d) no less than the city Fiscal of Baguio City interrogated him and yet he did not tell the fiscal that he was being forced to give a statement; (e) the fiscal even provided him with a lawyer who conferred with him and apprised him of his rights; (f) he signed each and every page of the stenographic notes of his statement and this was witnessed by no less than the City Fiscal of Baguio and the lawyer who assisted him; and (g) he disclosed in his statement that he voluntarily gave it because of his ill feeling against his co-accused who did not give him any money.chanroblesvirtualawlibrary chanrobles virtual law library The trial court then concluded that "[t]here was conspiracy and the accused was a direct participant in the crime," and that while he tried to minimize his culpability, his "extrajudicial confession" shows that "he was in on the plan," and even "expected to be paid, to be rewarded monetarily"; and that he "decided to give a statement only when he was not given the money." Since the proof of corpus delicti required in Section 3, Rule 133 of the Rules of Court was established by the prosecution's evidence, it found his conviction for murder inevitable.chanroblesvirtualawlibrary chanrobles virtual law library The appellant filed a notice of appeal. In this brief, he imputes upon the trial court the commission of this lone error: THE COURT A QUO COMMITTED A REVERSIBLE ERROR IN CONSIDERING ACCUSED-APPELLANT'S EXTRAJUDICIAL CONFESSION AS ADMISSIBLE EVIDENCE AGAINST HIM. 14 chanrobles virtual law library The appellant insists that his extrajudicial confession was taken in violation of his rights under Section 11, Article III of the constitution. He argues that the lawyer who assisted him, Atty. Reynaldo Cajucom, was not of his own choice but was foisted upon him by the city Fiscal. Worse, the said lawyer is a law partner of the private prosecutor, Atty. Arthur Galace, and conferred with him in English and Tagalog although he understood only Ilocano. Moreover, when Atty. Cajucom briefly conferred with him and when the city Fiscal interrogated him, his military escorts were present.chanroblesvirtualawlibrary chanrobles virtual law library He stresses that the lawyer "who assists the suspect under custodial interrogation should be of the latter's choice, not one foisted on him by the police investigator or other parties," 15 and that where there are serious doubts on the voluntariness of the extrajudicial confession, the doubts must be resolved in favor of the accused. 16 He then concludes that his extrajudicial confession is inadmissible and his conviction cannot stand, there being no other evidence linking him to the crimes charged.chanroblesvirtualawlibrary chanrobles virtual law library In its brief, 17 the appellee, reiterating the reasons of the trial court in upholding the validity of the confession, prays for the affirmance of the appealed decision.chanroblesvirtualawlibrary chanrobles virtual law library After a careful study of the records of Criminal Cases Nos. 4647-R and 4648-R and a painstaking evaluation of the evidence, we find this appeal to be impressed with merit. Indeed, the extrajudicial admission - not extrajudicial confession - of the appellant, which is the only evidence of the prosecution linking him to the commission of the crime charged, is wholly inadmissible because it was taken in violation of Section 12, Article III of the Constitution. We also see in these cases a blatant disregard of the appellant's right under Section 2 of Article III when he was unlawfully arrested.chanroblesvirtualawlibrary chanrobles virtual law library Before we go any further, it should be pointed out that, contrary to the pronouncement of the trial court and the characterization given by the appellant himself, the assailed extrajudicial statement is not extrajudicial confession. It is only an extrajudicial admission. We take this opportunity to once more distinguish one from the other. Sections 26 and 33, rule 30 of the Rules of 18 clearly show such a distinction.chanroblesvirtualawlibrary chanrobles virtual law library Court In a confession, there is an acknowledgment of guilt of the accused or of the criminal intent to commit the offense with which he is charged. 19 Wharton 20 defines a confession as follows: A confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime charged, while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt. In other words, and admission is something less than a

confession, and is but an acknowledgment of some fact or circumstance which in itself is insufficient to authorize a conviction, and which tends only to establish the ultimate fact of guilt. We have examined the assailed extrajudicial statement of the appellant, and we are satisfied that nothing therein indicates that he expressly acknowledged his guilt; he merely admitted some facts or circumstances which in themselves are insufficient to authorize a conviction and which can only tend to establish the ultimate fact of guilt. Nevertheless, when what is involved is the issue of admissibly in evidence under Section 12, Article III of the Constitution, the distinction is irrelevant because Paragraph 3 thereof expressly refers to both confession and admission. Thus: (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. The first two paragraphs of Section 12 read: Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.chanroblesvirtualawlibrary chanrobles virtual law library (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. These first and second paragraphs are taken from Section 20, Article IV (Bill of Rights) of the 1973 Constitution which read: Sec. 20. No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. The first two paragraphs of Section 12, Article III of the present Constitution have broadened the aforesaid Section 20 in these respects: (1) the right to counsel means not just any counsel, but a "competent and independent counsel, preferably of his own choice"; (2) the right to remain silent and to counsel can only be waived in writing and in the presence of counsel; and (3) the rule on inadmissibility expressly includes admissions, not just confessions.chanroblesvirtualawlibrary chanrobles virtual law library In Morales vs. Enrile, 21 this Court, applying Section 20, Article IV of the 1973 Constitution, laid down the duties of an investigator during custodial investigation and ruled that the waiver of the right to counsel would not be valid unless made with the assistance of counsel: At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means - by telephone if possible - or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory of inculpatory, in whole or in part, shall be inadmissible in evidence. We reiterated the above ruling in People vs. Galit, 22 People vs. Lumayok, 23 People vs. Albofera, 24 People vs. Marquez,25 People vs. Penillos, 26 and People vs. Basay, 27 among other cases.chanroblesvirtualawlibrary chanrobles virtual law library The right to be informed of the right to remain silent and to counsel contemplates "the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle." 28 It is not enough for the investigator to merely repeat to the person under investigation the provisions of Section 20, Article IV of the 1973 Constitution or Section 12, Article III of the present Constitution; the former must also explain the effects of such provision in practical terms, e.g., what the person under investigation may or may not do, and in language the subject fairly understands. The right to be informed carries with it a correlative obligation on the part of the investigator to explain, and contemplates effective communication which results in the subject understanding what is conveyed. Since it is comprehension that is sought to be attained, the degree of explanation required will necessarily vary and depend on the education, intelligence, and other relevant personal circumstances of the person undergoing the investigation.chanroblesvirtualawlibrary chanrobles virtual law library

In further ensuring the right to counsel, it is not enough that the subject is informed of such right; he should also be asked if he wants to avail of the same and should be told that he can ask for counsel if he so desires or that one will be provided him at his request. If he decides not to retain counsel of his choice or avail of one to be provided for him and, therefore, chooses to waive his right to counsel, such waiver, to be valid and effective, must be made with the assistance of counsel. That counsel must be a lawyer. 29 The waiver of the right to counsel must be voluntary, knowing, and intelligent. 30 Consequently, even if the confession of an accused speaks the truth, if it was made without the assistance off counsel, it is inadmissible in evidence regardless of the absence of coercion or even if it had been voluntarily given. 31 The extrajudicial admission of the appellant, 32 contained in twenty-two pages of yellow pad, does, indeed, appear to be signed by him and Atty. Reynaldo Cajucom. what we find in these yellow pads are stenographic notes. these were transcribed by the stenographer who took down the stenographic notes, but for reasons not explained in the records, the transcript of the notes (Exhibit "C"), which consists of twelve pages, 33 was not signed by the appellant since it does not indicate any jurat. On the other hand, the same stenographic reporter, who took down the stenographic notes when accused Wilfredo Quiao was being investigated by City Fiscal Balajadia, transcribed the notes, and the transcription 34 was subscribed and sworn to by the accused before City Fiscal Balajadia and also signed by Atty. Cajucom, who represented the accused in the investigation.chanroblesvirtualawlibrary chanrobles virtual law library Since we cannot even reads or decipher the stenographic notes in the yellow pads, we cannot expect the appellant, who is a farmer and who reached only the fourth grade, to read or decipher its contents. We have to rely solely on the transcript and presume its accuracy. A perusal of the transcript convinces us that the appellant was not given a fair deal and was deprived of his rights under Section 12(1), Article III of the Constitution. Firstly, he was not fully and properly informed of his rights. The transcript (Exhibit "C") shows the following preliminary questions of the City Fiscal and the answers of the appellant: 01. QUESTION - Mr. Jaime Agustin, I am informing you that you are under investigation in connection with the death of Dr. Nap Bayquen of which you are one of the principal suspects. I am informing you of your constitutional rights before you give any statement. First, you have the right to remain silent meaning, you may give a statement or you may not give any statement. If you will not give a statement, you will not be forced to do so, do you understand this right? chanrobles virtual law library ANSWER - I understand, sir.chanroblesvirtualawlibrary chanrobles virtual law library 02. Q If you will give a statement, you have the right to be assisted by a lawyer of your own choice, if you cannot afford to secure the services of a lawyer the government will provide a lawyer for you, do you understand this right? chanrobles virtual law library A - I understand, sir.chanroblesvirtualawlibrary chanrobles virtual law library 03. Q - Now, do you want to be assisted by alawyer? chanrobles virtual law library A - Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library 04. Q I am now informing you that a person of Atty. Reynaldo Cajucom present in this investigation room, wish to avail of his assistance with this investigation? chanrobles virtual law library lawyer in the is now do you in connection

A - I want, sir.chanroblesvirtualawlibrary chanrobles virtual law library 05. Q I am also informing you that whatever you say in this investigation can be used as evidence in your favor and it can also be used as evidence against you in any criminal or civil case, do you understand that? chanrobles virtual law library A - Yes, sir, I understand.chanroblesvirtualawlibrary chanrobles virtual law library 06. Q After informing rights, are you now statement? chanrobles virtual law library you of willing your to constitutional give a

A - Yes, sir, I agree.chanroblesvirtualawlibrary chanrobles virtual law library Investigator Atty. Reynaldo Cajucom, the witness respondent Jaime Agustin has chosen you give him assistance in this investigation, you willing to assist him? chanrobles virtual law library or to are

Answer - I am willing, fiscal, to assist the witness.chanroblesvirtualawlibrary chanrobles virtual law library Investigator Have you appraised constitutional rights? chanrobles virtual law library [sic] him of his

Answer - Yes, fiscal.chanroblesvirtualawlibrary chanrobles virtual law library Investigator Do you know after examining him or not he is giving a free and statement of his own volition without intimidation or force exerted on him? chanrobles virtual law library A As stated a free and what really happened. by him, voluntary fiscal, he statement is in whether voluntary any

willing to relation

give to

It is at once observed that the appellant was not explicitly told of his right to have a competent and independentcounsel of his choice, specifically asked if he had in mind any such counsel and, if so, whether he could afford to hire his services, and, if he could not, whether he would agree to be assisted by one to be provided for him. He was not categorically informed that he could waive his rights to remain silent and to counsel and that this waiver must be in writing and in the presence of his counsel. He had, in fact, waived his right to remain silent by agreeing to be investigated. Yet, no written waiver of such right appears in the transcript and no other independent evidence was offered to prove its existence.chanroblesvirtualawlibrary chanrobles virtual law library Secondly, Atty. Cajucom can hardly be said to have been voluntarily and intelligently "accepted" by the appellant as his counsel to assist him in the investigation. Atty. Cajucom's presence in the Office of the City fiscal at the time the appellant was brought there for investigation is unclear to us. At least two possibilities may explain it: it was a mere coincidence in the sense that he happened to be attending to some professional matter, or he was earlier called by the City Fiscal for the purpose of giving free legal aid to the appellant. These possibilities are not remote but whether it was one or the other, it is clear to us that Atty. Cajucom was in fact foisted upon the appellant, for as shown in the above-quoted portion of Exhibit "C," the city fiscal immediately suggested the availability of Atty. Cajucom without first distinctly asking the appellant if he had a counsel of his own choice and if he had one, whether he could hire such counsel; and if he could not, whether he would simply exercise his right to remain silent and to counsel. In short, after the appellant said that he wanted to be assisted by counsel, the City fiscal, through suggestive language, immediately informed him that Atty. Cajucom was ready to assist him.chanroblesvirtualawlibrary chanrobles virtual law library While it is true that in custodial investigations the party to be investigated has the final choice of counsel and may reject the counsel chosen for him by the investigator and ask for another one, 35 the circumstances obtaining in the custodial interrogation of the appellant left him no freedom to intelligently and freely do so. For as earlier stated, he was not even asked if he had a lawyer of his own choice and whether he could afford to hire such lawyer; on the other hand, the city Fiscal clearly suggested the availability of Atty. Cajucom. then too, present at that time were Capt. Antonio Ayat and Sgt. Roberto Rambac, military officers of RUC I, who brought him to the City Fiscal's Office for investigation in the afternoon of the day when he was unlawfully arrested in Sto. Tomas, Pangasinan. Along Kennon road, on the way to Baguio City, he was coerced and threatened with death if he would not admit knowing "Jun" and "Sonny" and hi participation in the crime. This testimony was unrebutted by the prosecution. The presence of the military officers and the continuing fear that if he did not cooperate, something would happen to him, was like a Damocles sword which vitiated his free will.chanroblesvirtualawlibrary chanrobles virtual law library Why it was the City Fiscal who had to conduct the custodial investigation is beyond us. Nothing in the records shows that at that time the criminal cases against the culprits had already been filed with the City Fiscal's Office for preliminary investigation and had, therefore, ceased to be a police matter. If they had been so filed, then the City Fiscal should have followed the usual course of procedure in preliminary investigations. It appears, however, from the informations in Criminal Cases Nos. 4647-R and 46648-R that it was Assistant City Fiscal Octavio M. Banta who conducted the preliminary investigation and who prepared, signed, and certified the informations. city Fiscal Balajadia merely approved them and administered the jurat in the certification. the conclusion then is inevitable that he did not conduct the preliminary investigation.chanroblesvirtualawlibrary chanrobles virtual law library Even assuming for the sake of argument that the appellant voluntarily agreed to be assisted by Atty. Cajucom, we doubt it very much if he was an independent counsel. While we wish to give him the benefit of the doubt because he is an officer of the court upon whose shoulders lies the responsibility to see to it that protection be accorded the appellant and that no injustice be committed to him, 36 and, moreover, he generally has in his favor the presumption of regularity in the performance of his duties, 37 there are special circumstances in these cases which convince us that he was unable to assist the appellant in a satisfactory manner. For one, he

admitted on cross-examination that at that time, and even until the time he took the witness stand, he was an associate of the private prosecutor, Atty. Arthur Galace, in these and the companion cases. Thus: Q Mr. Witness, at the time you assisted the accused you belonged to the office of Atty. Galace, you were an associate at the time when you assisted the accused? chanrobles virtual law library A I was represented [sic] then as IBP Legal Aid.chanroblesvirtualawlibrary chanrobles virtual law library Q The question is not answered, we are only requesting him if he was an associate of Atty. Galace up to the present? chanrobles virtual law library A Yes. 38 Then we have misgivings on whether Atty. Cajucom was in fact understood by the appellant when the former informed the appellant of his constitutional rights in English and Tagalog considering that the appellant, a fourth grader and a farmer, could only understand Ilocano. Thus: ATTY. TABIN: chanrobles virtual law library So in other words when you appraised [sic] him of his constitutional rights using English Language and Tagalog Dialect you did not have any Ilocano dialect Interpreter. . . . xxx xxx xxx WITNESS: chanrobles virtual law library As far as I can remember, I explained it in Tagalog and English. 39 And when asked whether he was sure if the appellant understood him, Atty. Cajucom merely answered: A At least I put everything as far as I could give to him to appraise [sic] him of his constitutional rights. 40 Then too, even if he were fully understood by the appellant, we are not satisfied that his explanations were adequate. On direct examination, he gave the following answers: Q - Did you explain the constitutional rights of the accused to caution him of the consequences of his statement? chanrobles virtual law library A - I explained to him that he has the right to remain silent, to confront in person the witnesses against him and that he has the right to choose a counsel to assist him in the hearing of the case which was being investigated then.chanroblesvirtualawlibrary chanrobles virtual law library Q - And what was his reply regarding the consequences of this statement? chanrobles virtual law library A - He told me that he is willing to give a truthful statement and in order to shed light. 41 It appears to us that Atty. Cajucom did not actually impress upon the appellant that he was one of the accused; rather, Atty. Cajucom made the appellant believe that he was only a witness. Thus: Q [by the prosecutor] chanrobles virtual law library - But, nevertheless, you gave the precautionary measure entitled to any witness? chanrobles virtual law library A - Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library Q - Why do you say that it was given voluntarily? chanrobles virtual law library

A - Before presenting him to the investigation we were given time to talk personally without any other people and that was the time that I explained to him all his rights and consequences pertaining to him as witness to this case. 42 On cross-examination, Atty. Cajucom also declared: ATTY. TABIN: chanrobles virtual law library That is why I am requesting him how he explained in that language, Your Honor.chanroblesvirtualawlibrary chanrobles virtual law library WITNESS: chanrobles virtual law library I told him that this is a grave case which he would be giving some narrations as a witness and his involvement would mean the most grievous offense and if found guilty will bring him for some years in jail and I told him that I could help him if he will be presenting the truth and narrate is the truth. This is in combination, English and Tagalog, and most of the time, I made it in Tagalog. 43 Moreover, considering that the appellant is familiar only with Ilocano, the Court has serious doubts about his ability to understand Atty. Cajucom's explanation of his constitutional rights since Atty. Cajucom did so in English and Tagalog.chanroblesvirtualawlibrary chanrobles virtual law library Finally, Atty. Cajucom knew, as admitted by him on cross-examination, that the appellant was picked up on 10 February 1987 by military men in Pangasinan without a warrant for his arrest. 44 Since the crimes with which the appellant was charged were allegedly committed on 6 September 1986 or more than five months earlier, no arrest without a warrant could have been legally and validly effected. a warrantless arrest should comply with the conditions prescribed in Section 5, rule 113 of the Rules of Court. Said section provides: Sec. 5. Arrest without warrant when lawful. - A peace officer or a private person may, without a warrant, arrest a person: chanrobles virtual law library (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; chanrobles virtual law library (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and chanrobles virtual law library (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. None of these exceptional circumstances were present at the time the appellant was arrested on 10 February 1987. The prosecution did not even insinuate that the crimes were committed in the presence of the arresting officers (for otherwise they could have arrested the appellant on 6 September 1986 yet) or that the appellant was a prisoner who had escaped from his place of detention; or that the crimes had just been committed for they were in fact committed more than five months earlier. Atty. Cajucom knew or ought to have known that the arrest was unlawful. If he were then truly moved by his duty to fully assist the appellant, he should have forthwith taken the appropriate measures for the immediate release of the appellant instead of allowing the City Fiscal to investigate him. Needless to say, the conduct of Atty. Cajucom under the circumstances only strengthen our belief that the appellant had all the cards stacked against him.chanroblesvirtualawlibrary chanrobles virtual law library Thus, we do not hesitate to declare the appellant's extrajudicial statement inadmissible in evidence because it was obtained in violation of Section 12 (1), Article III of the Constitution. since it is the only evidence which links him to the crimes of which he was convicted, he must then be acquitted.chanroblesvirtualawlibrary chanrobles virtual law library His acquittal must not write finis to these murder cases. These crimes must be solved and the triggerman and the mastermind apprehended. We see in these cases the failure of the Government to exert the necessary efforts to bring the guilty parties to the bar of justice. Until now, the accused, who were implicated by the triggerman as having ordered for a price the murder of Dr. Bayquen, remain at large and the records do not show any diligent effort to effect their arrest. The triggerman escaped while in the custody of the PC/INP at Camp Dangwa. The City Prosecutor's Office of Baguio City should then use all the resources at its command, in coordination with the law-enforcement agencies of the Government, such as the National Bureau of Investigation and the Philippine National Police, to immediately arrest the other accused.chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, judgment is hereby rendered REVERSING the challenged judgment of the Regional Trial Court, branch 3, Baguio City, in Criminal Case No. 4647-R and Criminal Case No. 4648-R, and ACQUITTING appellant

JAIME "JIMMY" AGUSTIN. His immediate release from confinement is hereby ORDERED unless for some other lawful cause his continued detention is warranted.chanroblesvirtualawlibrary chanrobles virtual law library Costs de oficio.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED. Padilla, Bellosillo, Quiason and Kapunan, JJ., concur.

Endnotes: 1 Original Records (OR), Criminal Case No. 4647-R, 1-2; Id., Criminal Case No. 4648R, 1-2. The records of the three other cases were not anymore forwarded to this Court in view of the acquittal therein of the appellant.chanrobles virtual law library 2 Id., Criminal Case No. 4647-R, 33.chanrobles virtual law library 3 Id., 406-416; Rollo, 25-35. Per Judge Marcelino F. Bautista, Jr.chanrobles virtual law library 4 Id., 415; Id., 34.chanrobles virtual law library 5 OR, Criminal Case No. 4647-R, 415-416; Rollo, 34-35. 6 TSN, 11 May 1988, 23-24.chanrobles virtual law library 7 TSN, 12 May 1988, 7-10.chanrobles virtual law library 8 TSN, 120 May 1988, 3-4.chanrobles virtual law library 9 Police Report, Exhibit "A," OR, 96-97; TSN, 11 May 1988, 3-11.chanrobles virtual law library 10 TSN, 11 May 1988, 14-18.chanrobles virtual law library 11 Exhibit "D," OR, 131-142.chanrobles virtual law library 12 TSN, 11 May 1989, 3-16; 10 January 1990, 2-23; 10 April 1989, 2-12.chanrobles virtual law library 13 TSN, 10 April 1989, 3-4, 9.chanrobles virtual law library 14 Rollo, 51.chanrobles virtual law library 15 Citing People vs. Jimenez, 204 SCRA 719 [1991].chanrobles virtual law library 16 Citing people vs. Solis, 182 SCRA 182 [1990].chanrobles virtual law library 17 Rollo, 92.chanrobles virtual law library 18 These sections provide: "Sec. 26. Admission of a party. - The act, declaration or omission of a party as to a relevant fact may be given against him.chanrobles virtual law library xxx xxx xxx "Sec. 33. Confession. - The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him." 19 U.S. vs. Corrales, 28 Phil. 362 [1914].chanrobles virtual law library 20 2 Wharton's Criminal Evidence 337 (12th ed. 1955). see also 2 Underhill's Criminal Evidence 385 (5th ed. 1956); 3 Wigmore on Evidence 821 (3d ed. 1940).chanrobles virtual law library 21 121 SCRA 538 [1983].chanrobles virtual law library

22 135 SCRA 465 [1985].chanrobles virtual law library 23 139 SCRA 1 [1985].chanrobles virtual law library 24 152 SCRA 123 [1987].chanrobles virtual law library 25 153 SCRA 700 [1987] 26 205 SCRA 546 [1992].chanrobles virtual law library 27 219 SCRA 404 [1993].chanrobles virtual law library 28 People vs. Nicandro, 141 SCRA 289 [1986]. See People vs. Duhan, 142 100 [1986]; People vs. Albofera, supra at note 24, People vs. Canela, 208 SCRA 842 [1992]; People vs. Basay, supra at note 27.chanrobles virtual law library 29 People vs. Basay, supra at note 27, citing People vs. Pecardal, 145 SCRA 647 [1986]; People vs. Lasac, 148 SCRA 624 [1987]; People vs. Decierdo, 149 SCRA 496 [1987].chanrobles virtual law library 30 People vs. Nolasco, 163 SCRA 623 [1988].chanrobles virtual law library 31 People vs. Repe, 175 SCRA 422 [1989]; People vs. Estevan 186 SCRA 34 [1990]; People vs. Javar, 226 SCRA 103 [1993].chanrobles virtual law library 32 Exhibit "B" and sub-markings; OR, 98-118a.chanrobles virtual law library 33 OR, 119-130.chanrobles virtual law library 34 Exhibit "D"; Id., 131-142.chanrobles virtual law library 35 People vs. Parojinog, 203 SCRA 673 [1991]; People vs. Baello, 224 SCRA 218 [1993].chanrobles virtual law library 36 People vs. Lavarez, 201 SCRA 364 [1991]; People vs. Pinzon, SCRA 93 [1992]; People vs. Remollo, 227 SCRA 375 [1993].chanrobles virtual law library 37 People vs. Barlis, 231 SCRA 428 [1994].chanrobles virtual law library 38 TSN, 19 July 1988, 17.chanrobles virtual law library 39 TSN, 19 July 1988, 12.chanrobles virtual law library 40 Id.chanrobles virtual law library 41 TSN, 19 July 1988, 9.chanrobles virtual law library 42 Id. (Emphasis supplied).chanrobles virtual law library 43 Id., 14.chanrobles virtual law library 44 TSN, 19 July 1988, 15-16.

13)

Tljan vs. CA, 202 SCRA 534

14)

People vs. Santocildes, 321 SCRA 310

SECOND DIVISION [G.R. No. 109149. December 21, 1999] PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. LEONCIO SANTOCILDES, JR. y SIGA-AN, AccusedAppellant. DECISION QUISUMBING, J.:

Where an accused was not duly represented by a member of the Philippine Bar during trial, the judgment should be set aside and the case remanded to the trial court for a new trial. A person who misrepresents himself as a lawyer shall be held liable for indirect contempt of court. Subject of the present appeal is the decision dated October 29, 1992, of the Regional Trial Court of Iloilo City, Branch 33, convicting accused-appellant of the crime of rape, sentencing him to suffer the penalty of reclusion perpetua, and ordering him to pay the offended party the amount of P50,000.00 and to pay the costs. The antecedent facts of the case are as follows: On February 17, 1992, appellant was charged with the crime of rape[1 of a girl less than nine (9) years old, committed on December 28, 1991, in the town of Barangay San Luis, San Joaquin, Iloilo. Upon arraignment, appellant entered a plea of not guilty. Trial ensued and the prosecution presented as its witnesses the victim, her mother, her six (6) year-old playmate, and the medico-legal officer who examined the victim. For the defense, appellant presented one German Toriales and himself. Appellant denied committing the rape and claimed that he merely tried to stop the two girls, the victim and her playmate, from quarreling. On October 29, 1992, the trial court rendered a decision[2 finding appellant guilty as charged. The dispositive portion of the decision states: WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the crime of rape and sentences him to suffer the penalty of reclusion perpetua together its accessory penalty. The accused is ordered to pay the amount of P50,000.00 to the complainant and another amount for costs, without subsidiary penalty in case of failure to pay the civil liability and the cost. If qualified under Art. 29 of the Revised Penal Code, as amended by R.A. 6127, as amended, and he has agreed in writing to abide by the same rules imposed upon convicted prisoners, he shall be credited with the full duration of his preventive imprisonment; otherwise, he shall only be credited with 4/5 of the same. SO ORDERED. Hence, appellant duly filed a Notice of Appeal.[3 In his brief,[4 appellant made the following assignment of errors: I. THE HONORABLE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING THAT THE ACCUSED IS GUILTY OF RAPE INSPITE OF CONFLICTING TESTIMONIES OF THE PRIVATE COMPLAINANT AND HER WITNESSES ON MATERIAL POINTS. II. THAT THE ACCUSED-APPELLANT WAS DEPRIVED THOUGH NO FAULT OF HIS OWN TO BE DEFENDED BY A PERSON AUTHORIZED TO PRACTICE LAW AMOUNTING TO DENIAL OF DUE PROCESS. Considering the importance of the constitutional right to counsel, we shall now first resolve the issue of proper representation by a member of the bar raised by appellant. Appellant contends that he was represented during trial by a person named Gualberto C. Ompong, who for all intents and purposes acted as his counsel and even conducted the direct examination and cross-examinations of the witnesses. On appeal, however, appellant secured the services of a new lawyer, Atty. Igmedio S. Prado, Jr., who discovered that Gualberto C. Ompong is actually not a member of the bar. Further verification with the Office of the Bar Confidant confirmed this fact.[5 Appellant therefore argues that his deprivation of the right to counsel should necessarily result in his acquittal of the crime charged. The Office of the Solicitor General, on the other hand, maintains that notwithstanding the fact that appellants counsel during trial was not a member of the bar, appellant was afforded due process since he has been given an opportunity to be heard and the records reveal that said person presented the evidence for the defense with the ability of a seasoned lawyer and in general handled the case of appellant in a professional and skillful manner. However, the right of the accused to be heard by himself and his counsel, in our view, goes much deeper than the question of ability or skill. It lies at the heart of our adversarial system of justice. Where the interplay of basic rights of the individual may collide with the awesome forces of the state, we need a professional learned in the law as well as ethically committed to defend the accused by all means fair and reasonable. On the matter of proper representation by a member of the bar, we had occasion to resolve a similar issue in the case of Delgado v. Court of Appeals.[6 In Delgado, petitioner and two others were convicted by the trial court of the crime of estafa thru falsification of public and/or official documents. One accused did not appeal. Petitioner Delgado and her remaining co-accused appealed to the Court of Appeals, which affirmed petitioners conviction but acquitted her co-accused. After entry of judgment, petitioner discovered that her lawyer was not a member of the bar and moved to set aside the entry of judgment. The Court of Appeals denied petitioners motion, hence, she filed a petition for certiorariwith this Court. The Court set aside the assailed judgment and remanded the case to the trial court for a new trial, explaining that This is so because an accused person is entitled to be represented by a member of the bar in a criminal case filed against her before the Regional Trial Court. Unless she is represented by a lawyer, there is great danger that any defense presented in her behalf will be inadequate considering the legal perquisites and skills needed in the court proceedings. This would certainly be a denial of due process.[7 Indeed, the right to counsel is of such primordial importance that even if an accused was represented by three successive counsels from the Public Attorneys Office, the Court has ordered the remand of a rape case when it found that accused was given mere perfunctory representation by aforesaid counsels such that appellant was not properly and effectively accorded the right to counsel. In the recent en banc case of People v. Bermas, G.R. No. 120420, April 21, 1999, the Court, speaking through Justice Vitug, admonished three (3) PAO lawyers for failing to genuinely protect the interests of the accused and for having fallen much too short of their responsibility as officers of the court and as members of the Bar. Verily, we can do no less where the accused was not even duly represented by a certified member of the Philippine Bar, no matter how zealous his representation might have been.

The presence and participation of counsel in criminal proceedings should never be taken lightly.[8 Even the most intelligent or educated man may have no skill in the science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence.[9 The right of an accused to counsel is guaranteed to minimize the imbalance in the adversarial system where the accused is pitted against the awesome prosecutory machinery of the State.[10 Such a right proceeds from the fundamental principle of due process which basically means that a person must be heard before being condemned. The due process requirement is a part of a persons basic rights; it is not a mere formality that may be dispensed with or performed perfunctorily.[11 The right to counsel of an accused is enshrined in no less than Article III, Sections 12 and 14 (2) of the 1987 Constitution. This constitutional mandate is reflected in Section 1 of Rule 115 of the 1985 Rules of Criminal Procedure which declares the right of the accused at the trial to be present in person and by counsel at every stage of the proceedings from the arraignment to the promulgation of judgment. In turn, Section 5 of Article VIII of the 1987 Constitution vests the power to promulgate rules concerning the admission to the practice of law to the Supreme Court. Section 1 of Rule 138 of the Rules of Court explicitly states who are entitled to practice law in the Philippines, and Section 2 thereof clearly provides for the requirements for all applicants for admission to the bar. Jurisprudence has also held that the right to practice law is not a natural or constitutional right but is in the nature of a privilege or franchise. It is limited to persons of good moral character with special qualifications duly ascertained and certified. The right does not only presuppose in its possessor integrity, legal standing and attainment, but also the exercise of a special privilege, highly personal and partaking of the nature of a public trust.[12 Indeed, so strict is the regulation of the practice of law that in Beltran, Jr. v. Abad,[13 a Bar candidate who has already successfully hurdled the Bar examinations but has not yet taken his oath and signed the roll of attorneys, and who was caught in the unauthorized practice of law was held in contempt of court. Under Section 3 (e) of Rule 71 of the Rules of Court, a person who undertakes the unauthorized practice of law is liable for indirect contempt of court for assuming to be an attorney and acting as such without authority. WHEREFORE, the assailed judgment is SET ASIDE, and the case is hereby REMANDED to the trial court for new trial. With respect to the unauthorized practice of law by the person named Gualberto C. Ompong in connection with this case, the local Chapter of the Integrated Bar of the Philippines of Iloilo City is DIRECTED to conduct a prompt and thorough investigation regarding this matter and to report its recommendations to the Court within ninety (90) days from notice of this order. Let all concerned parties, including the Office of the Bar Confidant, be each furnished a copy of this Decision for their appropriate action. No pronouncement as to costs. SO ORDERED. Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

Endnotes: [1 Information, Rollo, p. 6. [2 Rollo, pp. 12-23. [3 Id. at 24. [4 Id. at 47. [5 Certification of the Bar Car Confidant, Rollo, p. 59. [6 145 SCRA 357 (1986). [7 Id. at 360. [8 People v. Bermas, G.R. No. 120420, April 21, 1999, p.14; Flores v. Ruiz, 90 SCRA 428 (1979). [9 Id., citing People v. Holgado, 85 Phil. 752 (1950). [10 People v. Serzo, Jr., 274 SCRA 553, 562 (1997). [11 People v. Bermas, G.R. No. 120420, April 21, 1999, p. 15. [12 In the Matter of the Petition for Authority To Continue use of the Firm Name Ozaeta, Romulo, etc,. 92 SCRA 1, 10 (1979). [13 121 SCRA 217, 220 (1983).

15)

Lumiqued vs. Exevea, 282 SCRA 125

G.R. No. 117565. November 18, 1997 Arsenio P. Lumiqued (deceased) et al. vs. Hon. Apolonio G. Exevea, et al. EN BANC [G.R. No. 117565. November 18, 1997] ARSENIO P. LUMIQUED (deceased), Regional Director, DAR CAR, Represented by his Heirs, Francisca A. Lumiqued, May A. Lumiqued, Arlene A. Lumiqued and Richard A. Lumiqued, Petitioners, vs. Honorable APOLINIO G. EXEVEA, ERDOLFO V. BALAJADIA and FELIX T. CABADING, ALL Members of Investigating Committee, created by DOJ Order No. 145 on May 30, 1992; HON. FRANKLIN M. DRILON, SECRETARY OF JUSTICE, HON. ANTONIO T. CARPIO, CHIEF Presidential Legal Adviser/Counsel; and HON. LEONARDO A. QUISIMBING, Senior Deputy Executive Secretary of the Office of the President, and JEANNETTE OBARZAMUDIO, Private Respondent, Respondents. DECISION ROMERO, J.: Does the due process clause encompass the right to be assisted by counsel during an administrative inquiry? Arsenio P. Lumiqued was the Regional Director of the Department of Agrarian Reform Cordillera Autonomous Region (DAR-CAR) until President Fidel V. Ramos dismissed him from that position pursuant to Administrative Order No. 52 dated May 12, 1993. In view of Lumiqueds death on May 19, 1994, his heirs instituted this petition for certiorari and mandamus, questioning such order. The dismissal was the aftermath of three complaints filed by DAR-CAR Regional Cashier and private respondent Jeannette Obar-Zamudio with the Board of Discipline of the DAR. The first affidavit-complaint dated November 16, 1989,1 charged Lumiqued with malversation through falsification of official documents. From May to September 1989, Lumiqued allegedly committed at least 93 counts of falsification by padding gasoline receipts. He even submitted a vulcanizing shop receipt worth P550.00 for gasoline bought from the shop, and another receipt for P660.00 for a single vulcanizing job. With the use of falsified receipts, Lumiqued claimed and was reimbursed the sum of P44,172.46. Private respondent added that Lumiqued seldom made field trips and preferred to stay in the office, making it impossible for him to consume the nearly 120 liters of gasoline he claimed everyday. In her second affidavit-complaint dated November 22, 1989,2 private respondent accused Lumiqued with violation of Commission on Audit (COA) rules and regulations, alleging that during the months of April, May, July, August, September and October, 1989, he made unliquidated cash advances in the total amount of P116,000.00. Lumiqued purportedly defrauded the government by deliberately concealing his unliquidated cash advances through the falsification of accounting entries in order not to reflect on `Cash advances of other officials under code 8-70-600 of accounting rules. The third affidavit-complaint dated December 15, 1989,3 charged Lumiqued with oppression and harassment. According to private respondent, her two previous complaints prompted Lumiqued to retaliate by relieving her from her post as Regional Cashier without just cause. The three affidavit-complaints were referred in due course to the Department of Justice (DOJ) for appropriate action. On May 20, 1992, Acting Justice Secretary Eduardo G. Montenegro issued Department Order No. 145 creating a committee to investigate the complaints against Lumiqued. The order appointed Regional State Prosecutor Apolinario Exevea as committee chairman with City Prosecutor Erdolfo Balajadia and Provincial Prosecutor Felix Cabading as members. They were mandated to conduct an investigation within thirty days from receipt of the order, and to submit their report and recommendation within fifteen days from its conclusion. The investigating committee accordingly issued a subpoena directing Lumiqued to submit his counter-affidavit on or before June 17, 1992. Lumiqued, however, filed instead an urgent motion to defer submission of his counteraffidavit pending actual receipt of two of private respondents complaints. The committee granted the motion and gave him a five-day extension. In his counter-affidavit dated June 23, 1992,4 Lumiqued alleged, inter alia, that the cases were filed against him to extort money from innocent public servants like him, and were initiated by private respondent in connivance with a certain Benedict Ballug of Tarlac and a certain Benigno Aquino III. He claimed that the apparent weakness of the charge was bolstered by private respondents execution of an affidavit of 5chanroblesvirtuallawlibrary desistance. Lumiqued admitted that his average daily gasoline consumption was 108.45 liters. He submitted, however, that such consumption was warranted as it was the aggregate consumption of the five service vehicles issued under his name and intended for the use of the Office of the Regional Director of the DAR. He added that the receipts which were issued beyond his region were made in the course of his travels to Ifugao Province, the DAR Central Office in Diliman, Quezon City, and Laguna, where he attended a seminar. Because these receipts were merely turned over to him by drivers for reimbursement, it was not his obligation but that of auditors and accountants to determine whether they were falsified. He affixed his signature on the receipts only to signify that the same were validly issued by the establishments concerned in order that official transactions of the DAR-CAR could be carried out. Explaining why a vulcanizing shop issued a gasoline receipt, Lumiqued said that he and his companions were cruising along Santa Fe, Nueva Vizcaya on their way to Ifugao when their service vehicle ran out of gas. Since it was almost midnight, they sought the help of the owner of a vulcanizing shop who readily furnished them with

the gasoline they needed. The vulcanizing shop issued its own receipt so that they could reimburse the cost of the gasoline. Domingo Lucero, the owner of said vulcanizing shop, corroborated this explanation in an affidavit dated June 25, 1990.6 With respect to the accusation that he sought reimbursement in the amount of P660.00 for one vulcanizing job, Lumiqued submitted that the amount was actually only P6.60. Any error committed in posting the amount in the books of the Regional Office was not his personal error or accountability. To refute private respondents allegation that he violated COA rules and regulations in incurring unliquidated cash advances in the amount of P116,000.00, Lumiqued presented a certification7 of DAR-CAR Administrative Officer Deogracias F. Almora that he had no outstanding cash advances on record as of December 31, 1989. In disputing the charges of oppression and harassment against him, Lumiqued contended that private respondent was not terminated from the service but was merely relieved of her duties due to her prolonged absences. While admitting that private respondent filed the required applications for leave of absence, Lumiqued claimed that the exigency of the service necessitated disapproval of her application for leave of absence. He allegedly rejected her second application for leave of absence in view of her failure to file the same immediately with the head office or upon her return to work. He also asserted that no medical certificate supported her application for leave of absence. In the same counter-affidavit, Lumiqued also claimed that private respondent was corrupt and dishonest because a COA examination revealed that her cash accountabilities from June 22 to November 23, 1989, were short by P30,406.87. Although private respondent immediately returned the amount on January 18, 1990, the day following the completion of the cash examination, Lumiqued claimed that she should be relieved from her duties and assigned to jobs that would not require handling of cash and money matters. Committee hearings on the complaints were conducted on July 3 and 10, 1992, but Lumiqued was not assisted by counsel. On the second hearing date, he moved for its resetting to July 17, 1992, to enable him to employ the services of counsel. The committee granted the motion, but neither Lumiqued nor his counsel appeared on the date he himself had chosen, so the committee deemed the case submitted for resolution. On August 12, 1992, Lumiqued filed an urgent motion for additional hearing,8 alleging that he suffered a stroke on July 10, 1992. The motion was forwarded to the Office of the State Prosecutor apparently because the investigation had already been terminated. In an order dated September 7, 1992, 9 State Prosecutor Zoila C. Montero denied the motion,viz: The medical certificate given show(s) that respondent was discharged from the Sacred Heart Hospital on July 17, 1992, the date of the hearing, which date was upon the request of respondent (Lumiqued). The records do not disclose that respondent advised the Investigating committee of his confinement and inability to attend despite his discharge, either by himself or thru counsel. The records likewise do not show that efforts were exerted to notify the Committee of respondents condition on any reasonable date after July 17, 1992. It is herein noted that as early as June 23, 1992, respondent was already being assisted by counsel. Moreover an evaluation of the counter-affidavit submitted reveal(s) the sufficiency, completeness and thoroughness of the counter-affidavit together with the documentary evidence annexed thereto, such that a judicious determination of the case based on the pleadings submitted is already possible. Moreover, considering that the complaint-affidavit was filed as far back as November 16, 1989 yet, justice can not be delayed much longer. Following the conclusion of the hearings, the investigating committee rendered a report dated July 31, 1992,10 finding Lumiqued liable for all the charges against him. It made the following findings: After a thorough evaluation of the evidences (sic) submitted by the parties, this committee finds the evidence submitted by the complainant sufficient to establish the guilt of the respondent for Gross Dishonesty and Grave Misconduct. That most of the gasoline receipts used by the respondent in claiming for the reimbursement of his gasoline expenses were falsified is clearly established by the 15 Certified Xerox Copies of the duplicate receipts (Annexes G-1 to G-15) and the certifications issued by the different gasoline stations where the respondent purchased gasoline. Annexes `G-1 to `G-15 show that the actual average purchase made by the respondent is about 8.46 liters only at a purchase price of P50.00, in contrast to the receipts used by the respondent which reflects an average of 108.45 liters at a purchase price of P550.00. Here, the greed of the respondent is made manifest by his act of claiming reimbursements of more than 10 times the value of what he actually spends. While only 15 of the gasoline receipts were ascertained to have been falsified, the motive, the pattern and the scheme employed by the respondent in defrauding the government has, nevertheless, been established. That the gasoline receipts have been falsified was not rebutted by the respondent. In fact, he had in effect admitted that he had been claiming for the payment of an average consumption of 108.45 liters/day by justifying that this was being used by the 4 vehicles issued to his office. Besides he also admitted having signed the receipts. Respondents act in defrauding the government of a considerable sum of money by falsifying receipts constitutes not only Dishonesty of a high degree but also a criminal offense for Malversation through Falsification of Official Documents. This committee likewise finds that the respondent have (sic) unliquidated cash advances in the year 1989 which is in violation of established office and auditing rules. His cash advances totalling to about P116,000.00 were properly documented. The requests for obligation of allotments and the vouchers covering the amounts were all signed by him. The mere certification issued by the Administrative Officer of the DAR-CAR cannot therefore rebut these concrete evidences (sic). On the third complaint, this committee likewise believes that the respondents act in relieving the complainant of her functions as a Regional Cashier on December 1, 1989 was an act of harassment. It is noted that this was

done barely two weeks after the complainant filed charges against her (sic). The recommendation of Jose G. Medina of the Commission on Audit came only on May 11, 1990 or almost six months after the respondents order relieving the complainant was issued. His act in harassing a subordinate employee in retaliation to a complaint she filed constitute(s) Gross Misconduct on the part of the respondent who is a head of office. The affidavits of Joseph In-uyay and Josefina Guting are of no help to the respondent. In fact, this only show(s) that he is capable of giving bribes if only to have the cases against him dismissed. He could not have given a certain Benigno Aquino III the sum of P10,000.00 for any other purpose. Accordingly, the investigating committee recommended Lumiqueds dismissal or removal from office, without prejudice to the filing of the appropriate criminal charges against him. Acting on the report and recommendation, former Justice Secretary Franklin M. Drilon adopted the same in his Memorandum to President Fidel V. Ramos dated October 22, 1992. He added that the filing of the affidavit of desistance11would not prevent the issuance of a resolution on the matter considering that what was at stake was not only the violation of complainants (herein private respondents) personal rights but also the competence and fitness of the respondent (Lumiqued) to remain in public office. He opined that, in fact, the evidence on record could call for a punitive action against the respondent on the initiative of the DAR. On December 17, 1992, Lumiqued filed a motion for reconsideration of the findings of the Committee with the DOJ.12Undersecretary Ramon S. Esguerra indorsed the motion to the investigating committee. 13 In a letter dated April 1, 1993, the three-member investigating committee informed Undersecretary Esguerra that the committee had no more authority to act on the same (motion for reconsideration) considering that the matter has already been forwarded to the Office of the President and that their authority under Department Order No. 145 ceased when they transmitted their report to the DOJ.14 Concurring with this view, Undersecretary Esguerra informed Lumiqued that the investigating committee could no longer act on his motion for reconsideration. He added that the motion was also prematurely filed because the Office of the President (OP) had yet to act on Secretary Drilons recommendation.15chanroblesvirtuallawlibrary On May 12, 1993, President Fidel V. Ramos himself issued Administrative Order No. 52 (A.O. No. 52), 16 finding Lumiqued administratively liable for dishonesty in the alteration of fifteen gasoline receipts, and dismissing him from the service, with forfeiture of his retirement and other benefits. Thus: That the receipts were merely turned over to him by his drivers and that the auditor and accountant of the DARCAR should be the ones to be held liable is untenable. The receipts in question were signed by respondent for the purpose of attesting that those receipts were validly issued by the commercial establishments and were properly disbursed and used in the official business for which it was intended. This Office is not about to shift the blame for all these to the drivers employed by the DAR-CAR as respondent would want us to do. The OP, however, found that the charges of oppression and harassment, as well as that of incurring unliquidated cash advances, were not satisfactorily established. In a petition for appeal17 addressed to President Ramos, Lumiqued prayed that A.O. No. 52 be reconsidered and that he be reinstated to his former position with all the benefits accorded to him by law and existing rules and regulations. This petition was basically premised on the affidavit dated May 27, 1993, of a certain Dwight L. Lumiqued, a former driver of the DAR-CAR, who confessed to having authored the falsification of gasoline receipts and attested to petitioner Lumiqueds being an honest man who had no premonition that the receipts he (Dwight) turned over to him were altered.18 Treating the petition for appeal as a motion for the reconsideration of A.O. No. 52, the OP, through Senior Deputy Executive Secretary Leonardo A. Quisumbing, denied the same on August 31, 1993. Undaunted, Lumiqued filed a second motion for reconsideration, alleging, among other things, that he was denied the constitutional right to counsel during the hearing.19 On May 19, 1994,20 however, before his motion could be resolved, Lumiqued died. On September 28, 1994,21 Secretary Quisumbing denied the second motion for reconsideration for lack of merit. Hence, the instant petition for certiorari and mandamus praying for the reversal of the Report and Recommendation of the Investigating Committee, the October 22, 1992, Memorandum of then Justice Secretary Drilon, A.O. No. 52 issued by President Ramos, and the orders of Secretary Quisumbing. In a nutshell, it prays for the payment of retirement benefits and other benefits accorded to deceased Arsenio Lumiqued by law, payable to his heirs; and the backwages from the period he was dismissed from service up to the time of his death on May 19, 1994.22chanroblesvirtuallawlibrary Petitioners fault the investigating committee for its failure to inform Lumiqued of his right to counsel during the hearing. They maintain that his right to counsel could not be waived unless the waiver was in writing and in the presence of counsel. They assert that the committee should have suspended the hearing and granted Lumiqued a reasonable time within which to secure a counsel of his own. If suspension was not possible, the committee should have appointed a counsel de oficio to assist him. These arguments are untenable and misplaced. The right to counsel, which cannot be waived unless the waiver is in writing and in the presence of counsel, is a right afforded a suspect or an accused during custodial investigation.23 It is not an absolute right and may, thus, be invoked or rejected in a criminal proceeding and, with more reason, in an administrative inquiry. In the case at bar, petitioners invoke the right of an accused in criminal proceedings to have competent and independent counsel of his own choice. Lumiqued, however, was not accused of any crime in the proceedings below. The investigation conducted by the committee created by Department Order No. 145 was for the purpose of determining if he could be held administratively liable under

the law for the complaints filed against him. The order issued by Acting Secretary of Justice Montenegro states thus: In the interest of the public service and pursuant to the provisions of existing laws, a Committee to conduct the formal investigation of the administrative complaint for oppression, dishonesty, disgraceful and immoral conduct, being notoriously undesirable and conduct prejudicial to the best interest of the service against Mr. ARSENIO P. LUMIQUED, Regional Director, Department of Agrarian Reform, Cordillera Autonomous Region, is hereby created x x x.24chanroblesvirtuallawlibrary As such, the hearing conducted by the investigating committee was not part of a criminal prosecution. This was even made more pronounced when, after finding Lumiqued administratively liable, it hinted at the filing of criminal case for malversation through falsification of public documents in its report and recommendation. Petitioners misconception on the nature of the investigation 25 conducted against Lumiqued appears to have been engendered by the fact that the DOJ conducted it. While it is true that under the Administrative Code of 1987, the DOJ shall administer the criminal justice system in accordance with the accepted processes thereof consisting in the investigation of the crimes, prosecution of offenders and administration of the correctional system,26 conducting criminal investigations is not its sole function. By its power to perform such other functions as may be provided by law, 27prosecutors may be called upon to conduct administrative investigations. Accordingly, the investigating committee created by Department Order No. 145 was duty-bound to conduct the administrative investigation in accordance with the rules therefor. While investigations conducted by an administrative body may at times be akin to a criminal proceeding, the fact remains that under existing laws, a party in an administrative inquiry may or may not be assisted by counsel, irrespective of the nature of the charges and of the respondents capacity to represent himself and no duty rests on such a body to furnish the person being investigated with counsel. 28 In an administrative proceeding such as the one that transpired below, a respondent (such as Lumiqued) has the option of engaging the services of counsel or not. This is clear from the provisions of Section 32, Article VII of Republic Act No. 226029 (otherwise known as the Civil Service Act) and Section 39, paragraph 2, Rule XIV (on discipline) of the Omnibus Rules Implementing Book V of Executive Order No. 29230 (otherwise known as the Administrative Code of 1987). Excerpts from the transcript of stenographic notes of the hearings attended by Lumiqued31 clearly show that he was confident of his capacity and so opted to represent himself. Thus, the right to counsel is not imperative in administrative investigations because such inquiries are conducted merely to determine whether there are facts that merit disciplinary measures against erring public officers and employees, with the purpose of maintaining the dignity of government service. Furthermore, petitioners reliance on Resolution No. 94-0521 of the Civil Service Commission on the Uniform Procedure in the Conduct of Administrative Investigation stating that a respondent in an administrative complaint must be informed of his right to the assistance of a counsel of his choice, 32 is inappropriate. In the first place, this resolution is applicable only to cases brought before the Civil Service Commission.33 Secondly, said resolution, which is dated January 25, 1994, took effect fifteen days following its publication in a newspaper of general circulation,34 much later than the July 1992 hearings of the investigating committee created by Department Order No. 145. Thirdly, the same committee was not remiss in the matter of reminding Lumiqued of his right to counsel. Thus at the July 3, 1992, hearing, Lumiqued was repeatedly appraised of his option to secure services of counsel: RSP EXEVEA: This is an administrative case against Director Lumiqued. Director Lumiqued is present. The complainant is present, Janet Obar-Zamudio. Complainant has just been furnished with a copy of the counter-affidavit of the respondent. Do you have a counsel, Director? DIR. LUMIQUED: I did not bring anybody, Sir, because when I went to see him, he told me, Sir, that he has already set a hearing, morning and afternoon today. RSP EXEVEA: So, we will proceed with the hearing even without your counsel? You are willing to proceed with the hearing even without your counsel? DIR. LUMIQUED: Yes, I am confident... CP BALAJADIA: You are confident that you will be able to represent yourself? DIR. LUMIQUED: That is my concern.35 (Underscoring supplied) In the course of private respondents damaging testimony, the investigating committee once again reminded Lumiqued of his need for a counsel. Thus: CP BALAJADIA: Q. (To Director Lumiqued) You really wish to go through with this even without your counsel? DIRECTOR LUMIQUED:

A. I think so, Sir. CP BALAJADIA: Let us make it of record that we have been warning you to proceed with the assistance of counsel but you said that you can take care of yourself so we have no other alternative but to proceed.36 (Underscoring supplied) Thereafter, the following colloquies transpired: CP BALAJADIA: We will suspend in the meantime that we are waiting for the supplemental affidavit you are going to present to us. Do you have any request from the panel of investigators, Director Lumiqued? DIRECTOR LUMIQUED: I was not able to bring a lawyer since the lawyer I requested to assist me and was the one who prepared my counter-affidavit is already engaged for a hearing and according to him he is engaged for the whole month of July. RSP EXEVEA: We cannot wait... CP BALAJADIA: Why dont you engage the services of another counsel. The charges against you are quite serious. We are not saying you are guilty already. We are just apprehensive that you will go through this investigation without a counsel. We would like you to be protected legally in the course of this investigation. Why dont you get the services of another counsel. There are plenty here in Baguio... DIRECTOR LUMIQUED: I will try to see, Sir... CP BALAJADIA: Please select your date now, we are only given one month to finish the investigation, Director Lumiqued. RSP EXEVEA: We will not entertain any postponement. With or without counsel, we will proceed. CP BALAJADIA: Madam Witness, will you please submit the document which we asked for and Director Lumiqued, if you have other witnesses, please bring them but reduce their testimonies in affidavit form so that we can expedite with the proceedings.37chanroblesvirtuallawlibrary At the hearing scheduled for July 10, 1992, Lumiqued still did not avail of the services of counsel. Pertinent excerpts from said hearing follow: FISCAL BALAJADIA: I notice also Mr. Chairman that the respondent is not being represented by a counsel. The last time he was asked to invite his lawyer in this investigation. May we know if he has a lawyer to represent him in this investigation? DIR. LUMIQUED: There is none Sir because when I went to my lawyer, he told me that he had set a case also at 9:30 in the other court and he told me if there is a possibility of having this case postponed anytime next week, probably Wednesday so we will have good time (sic) of presenting the affidavit. FISCAL BALAJADIA: Are you moving for a postponement Director? May I throw this to the panel. The charges in this case are quite serious and he should be given a chance to the assistance of a counsel/lawyer. RSP EXEVEA: And is (sic) appearing that the supplemental-affidavit has been furnished him only now and this has several documents attached to it so I think we could grant him one last postponement considering that he has already asked for an extension. DIR. LUMIQUED: Furthermore Sir, I am now being bothered by my heart ailment.38chanroblesvirtuallawlibrary The hearing was reset to July 17, 1992, the date when Lumiqued was released from the hospital. Prior to said date, however, Lumiqued did not inform the committee of his confinement. Consequently, because the hearing could not push through on said date, and Lumiqued had already submitted his counter-affidavit, the committee decided to wind up the proceedings. This did not mean, however, that Lumiqued was short-changed in his right to due process. Lumiqued, a Regional Director of a major department in the executive branch of the government, graduated from the University of the Philippines (Los Baos) with the degree of Bachelor of Science major in Agriculture, was a recipient of various scholarships and grants, and underwent training seminars both here and abroad. 39 Hence, he could have defended himself if need be, without the help of counsel, if truth were on his side. This, apparently, was the thought he entertained during the hearings he was able to attend. In his statement, That is my concern, one could detect that it had been uttered testily, if not exasperatedly, because of the doubt or

skepticism implicit in the question, You are confident that you will be able to represent yourself? despite his having positively asserted earlier, Yes, I am confident. He was obviously convinced that he could ably represent himself. Beyond repeatedly reminding him that he could avail himself of counsel and as often receiving the reply that he is confident of his ability to defend himself, the investigating committee could not do more. One can lead a horse to water but cannot make him drink. The right to counsel is not indispensable to due process unless required by the Constitution or the law. In Nera v. Auditor General,40 the Court said: x x x. There is nothing in the Constitution that says that a party in a non-criminal proceeding is entitled to be represented by counsel and that, without such representation, he shall not be bound by such proceedings. The assistance of lawyers, while desirable, is not indispensable. The legal profession was not engrafted in the due process clause such that without the participation of its members, the safeguard is deemed ignored or violated. The ordinary citizen is not that helpless that he cannot validly act at all except only with a lawyer at his side. In administrative proceedings, the essence of due process is simply the opportunity to explain ones side. One may be heard, not solely by verbal presentation but also, and perhaps even much more creditably as it is more practicable than oral arguments, through pleadings.41 An actual hearing is not always an indispensable aspect of due process.42 As long as a party was given the opportunity to defend his interests in due course, he cannot be said to have been denied due process of law, for this opportunity to be heard is the very essence of due process.43 Moreover, this constitutional mandate is deemed satisfied if a person is granted an opportunity to seek reconsideration of the action or ruling complained of. 44 Lumiqueds appeal and his subsequent filing of motions for reconsideration cured whatever irregularity attended the proceedings conducted by the committee.45 The constitutional provision on due process safeguards life, liberty and property.46 In the early case of Cornejo v. Gabriel and Provincial Board of Rizal 47 the Court held that a public office is not property within the sense of the constitutional guarantee of due process of law for it is a public trust or agency. This jurisprudential pronoucement has been enshrined in the 1987 Constitution under Article XI, Section 1 on accountability of public officers, as follows: Section 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. When the dispute concerns ones constitutional right to security of tenure, however, public office is deemed analogous to property in a limited sense; hence, the right to due process could rightfully be invoked. Nonetheless, the right to security of tenure is not absolute. Of equal weight is the countervailing mandate of the Constitution that all public officers and employees must serve with responsibility, integrity, loyalty and efficiency.48 In this case, it has been clearly shown that Lumiqued did not live up to this constitutional precept. The committees findings pinning culpability for the charges of dishonesty and grave misconduct upon Lumiqued were not, as shown above, fraught with procedural mischief. Its conclusions were founded on the evidence presented and evaluated as facts. Well-settled in our jurisdiction is the doctrine that findings of fact of administrative agencies must be respected as long as they are supported by substantial evidence, even if such evidence is not overwhelming or preponderant.49 The quantum of proof necessary for a finding of guilt in administrative cases is only substantial evidence or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.50chanroblesvirtuallawlibrary Consequently, the adoption by Secretary Drilon and the OP of the committees recommendation of dismissal may not in any way be deemed tainted with arbitrariness amounting to grave abuse of discretion. Government officials are presumed to perform their functions with regularity. Strong evidence is not necessary to rebut that presumption,51 which petitioners have not successfully disputed in the instant case. Dishonesty is a grave offense penalized by dismissal under Section 23 of Rule XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987. Under Section 9 of the same Rule, the penalty of dismissal carries with it cancellation of eligibility, forfeiture of leave credits and retirement benefits, and the disqualification for reemployment in the government service. The instant petition, which is aimed primarily at the payment of retirement benefits and other benefits plus backwages from the time of Lumiqueds dismissal until his demise, must, therefore, fail. WHEREFORE, the instant petition for certiorari and mandamus is hereby DISMISSED and Administrative Order No. 52 of the Office of the President is AFFIRMED. Costs against petitioners. SO ORDERED. Regalado, Davide, Jr., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, and Panganiban, JJ., concur. Narvasa, C.J., on leave.

Endnotes: 1 Rollo, pp. 37-75, including annexes. 2 Ibid., pp. 76-103, including annexes.

3 Id., pp. 104-105. Private respondent submitted a supplemental affidavit-complaint on July 6, 1992. This fourth complaint is substantially similar to the first complaint except that it contained allegations of falsified gasoline receipts covering the month of April, 1989. 4 Id., pp. 107-115. 5 See Footnote 11, infra. 6 Rollo, p. 123. 7 Ibid., p. 131. 8 Id., pp. 167-168. 9 Id., pp. 169-170. 10 Petitioners did not attach a copy of the investigating committees report to their petition. It is found in the folder containing the transcripts of stenographic notes that the Judicial Records Office of this Court had requested from the Office of the Solicitor General. 11 The affidavit of desistance was executed on July 10, 1991. When she testified on July 3, 1992, Ms. Zamudio swore that she executed that affidavit because of the length of time that transpired before her complaints were acted upon, and that Lumiqued was already pressuring her and her family that, considering that she had children, she succumbed to the pressure (TSN, July 3, 1992, p. 10). 12 Rollo, pp. 174-190. 13 Ibid, p. 199. 14 Id., p. 200. 15 Id., p. 202. 16 Id., pp. 32-35. 17 Id., pp. 203-216. 18 Id., pp. 217-218. 19 Id., pp. 225-247. 20 Id., pp. 272-273. 21 Id., p. 36. 22 Id., pp. 27-28. 23 Art. III, Sec. 12 (1), 1987 Constitution. Custodial investigation has been defined as x x x any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. It is only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that lends itself to eliciting incriminating statements that the rule (on the right of an accused to be informed of his right to remain silent and to have competent and independent counsel of his choice) begins to operate (People v. Marra, 236 SCRA 565 [1994]). 24 A copy of this Department Order is found in the folder of photocopies of the transcript of stenographic notes that the Office of the Solicitor General furnished the Judicial Records Office of this Court. 25 In his motion for reconsideration dated December 17, 1992, Lumiqued charged the investigating committee with having viewed the case against him from purely tenuous technical angle thereby leading the Secretary of Justice to arrive at his recommendation contrary to the spirit if not to the letters of Revised Penal Code and the Administrative Code and COA Rules and Regulations (sic).

26 Sec. 1, Title III, Book IV, 1987 Administrative Code. 27 Sec. 3 (8), supra. 28 Bancroft v. Board of Governors of Registered Dentists of Oklahoma, 210 P.2d 666 (1949). 29 Sec. 31. Disciplinary Action -- No officer or employee in the civil service shall be removed or suspended except for cause as provided by law and after due process: Provided, That a transfer from one position to another without reduction in rank or salary shall not be considered disciplinary when made in the interest of public service: Provided, further, That no complaint against a civil service official or employee shall be given due course unless the same is in writing and subscribed and sworn to by complaint: And provided, finally, That the respondent shall be entitled to a formal investigation if he so elects, in which case he shall have the right to appear and defend himself at said investigation in person or by counsel, to confront and cross-examine the witnesses against him, and to have the attendance of witnesses and production of documents in his favor by compulsory process of subpoena or subpoena duces tecum. (Underscoring supplied) 30 Sec. 39. x x x Either party may avail himself of the services of counsel and may require the attendance of witnesses and the production of documentary evidence in his favor through the compulsory process of subpoena or subpoena duces tecum. xxx. (Underscoring supplied) 31 Infra 32 Section 21. Formal charge. When the Commission finds the existence of a prima facie case, the respondent shall be formally charged. He shall be furnished copies of the complaint, sworn statements and other documents submitted by the complainant, unless he had already received the same during the preliminary investigation. The respondent shall be given at least seventy-two (72) hours from receipt of said formal charge to submit his answer under oath, together with the affidavits of his witnesses and other evidence, and a statement indicating whether or not he elects a formal investigation.He shall also be informed of his right to the assistance of a counsel of his choice. If the respondent has already submitted his comment and counter-affidavits during the preliminary investigation, he shall be given the opportunity to submit additional evidence. (Underscoring supplied). 33 Sec. 2. CSC Resolution No. 94-0521. 34 Ibid.,Sec. 55. 35 TSN, July 3, 1992, pp. 1-2. 36 Ibid., pp. 13-14. 37 Id., pp. 18-19. 38 TSN, July 10, 1992, pp. 3-4. 39 Rollo, p. 206. 40 164 SCRA 1 (1988), cited in Feeder v. International Line, Pte., Ltd. v. Court of Appeals, 197 SCRA 842 (1991). 41 Concerned Officials of MWSS v. Vasquez, 310 Phil. 549 citing Mutuc v. Court of Appeals, 190 SCRA 43 (1990). 42 Pamantasan ng Lungsod ng Maynila (PLM) v. Civil Service Commission, 311 Phil. 573. 43 Legarda v. Court of Appeals, G.R. No. 94457, October 16, 1997. 44 Pizza Hut/Progressive Development Corporation v. NLRC, 322 Phil. 579. 45 Rubenecia v. Civil Service Commission, 314 Phil. 612; T.H. Valderama & Sons, Inc. and/or Roberto Tinsay v. Drilon, 181 SCRA 308 (1990). 46 Sec. 1, Art. III, 1987 Constitution.

47 41 Phil. 188. 48 De Luna v. Ricon, 250 SCRA 1 (1995). 49 Ynson v. Court of Appeals, 257 SCRA 411(1996). 50 Office of the Court Administrator v. Bucoy, 235 SCRA 588 (1994), citing Tolentino v. Court of Appeals, 150 SCRA 26 (1987)and Biak-na-Bato Mining Company v. Tanco, Jr., 193 SCRA 323 (1991). 51 Tatad v. Garcia, Jr., 313 Phil. 296.

16)

Bonagan vs. Zerna, 154 SCRA 593