Cases on Introduction to Legal Ethics

8/19/2019 Cases on Introduction to Legal Ethics

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Republic of the Philippines

SUPREME COURT Manila

EN BANC

A.C. No. L-1117 March 20, 1944

THE DIRECTOR OF RELIGIOUS AFFAIRS, complainant, vs.

ESTANISLAO R. BAYOT, respondent.

Office of the Solicitor General De la Costa and Solicitor Feria for complainant.

Francisco Claravall for respondent.

OZAETA, J.:

The respondent, who is an attorney-at-law, is charged with malpractice for having published an

advertisement in the Sunday Tribune of June 13, 1943, which reads as follows:

Marriage

license promptly secured thru our assistance & the annoyance of delay or publicity

avoided if desired, and marriage arranged to wishes of parties. Consultation on any

matter free for the poor. Everything confidential.

Legal assistance service

12 Escolta, Manila, Room, 105Tel. 2-41-60.

Appearing in his own behalf, respondent at first denied having published the said advertisement; but subsequently, thru his attorney, he admitted having caused its publication and prayed for "the

indulgence and mercy" of the Court, promising "not to repeat such professional misconduct in

the future and to abide himself to the strict ethical rules of the law profession." In furthermitigation he alleged that the said advertisement was published only once in the Tribune and that

he never had any case at law by reason thereof.

Upon that plea the case was submitted to the Court for decision.

It is undeniable that the advertisement in question was a flagrant violation by the respondent ofthe ethics of his profession, it being a brazen solicitation of business from the public. Section 25

of Rule 127 expressly provides among other things that "the practice of soliciting cases at law for

the purpose of gain, either personally or thru paid agents or brokers, constitutes malpractice." It

is highly unethical for an attorney to advertise his talents or skill as a merchant advertises hiswares. Law is a profession and not a trade. The lawyer degrades himself and his profession who

stoops to and adopts the practices of mercantilism by advertising his services or offering them to


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the public. As a member of the bar, he defiles the temple of justice with mercenary activities as

the money-changers of old defiled the temple of Jehovah. "The most worth and effective

advertisement possible, even for a young lawyer, . . . is the establishment of a well-meritedreputation for professional capacity and fidelity to trust. This cannot be forced but must be the

outcome of character and conduct." (Canon 27, Code of Ethics.)

In In re Tagorda, 53 Phil., the respondent attorney was suspended from the practice of law for

the period of one month for advertising his services and soliciting work from the public by

writing circular letters. That case, however, was more serious than this because there thesolicitations were repeatedly made and were more elaborate and insistent.

Considering his plea for leniency and his promise not to repeat the misconduct, the Court is ofthe opinion and so decided that the respondent should be, as he hereby is, reprimanded.

Yulo, C.J., Moran, Horrilleno, Paras and Bocobo, JJ., concur.

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 ofNegros Occidental, Branch I, Silay City, respondent.

Adelino H. Ledesma in his own behalf.

Hon. Rafael C. Climaco in his own behalf.

FERNANDO, J .: p

What is assailed in this certiorari proceeding is an order of respondent Judge denying amotion filed by petitioner to be allowed to withdraw as counsel de oficio. 1 One of thegrounds for such a motion was his allegation that with his appointment as ElectionRegistrar by the Commission on Elections, he was not in a position to devote full time tothe 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] todelay 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 beingprecisely to protect him in his new position without prejudicing the accused. It cannot beplausibly asserted that such failure to allow withdrawal of de oficio counsel couldordinarily be characterized as a grave abuse of discretion correctible by certiorari. Thereis, however, the overriding concern for the right to counsel of the accused that must betaken seriously into consideration. In appropriate cases, it should tilt the balance. This isnot one of them. What is easily discernible was the obvious reluctance of petitioner tocomply with the responsibilities incumbent on the counsel de oficio. Then, too, even on


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the assumption that he continues in his position, his volume of work is likely to be verymuch less at present. There is not now the slightest pretext for him to shirk an obligationa member of the bar, who expects to remain in good standing, should fulfill. The petitionis clearly without merit.

According to the undisputed facts, petitioner, on October 13, 1964, was appointedElection Registrar for the Municipality of Cadiz, Province of Negros Occidental. Thenand there, he commenced to discharge its duties. As he was counsel de parte for one ofthe accused in a case pending in the sala of respondent Judge, he filed a motion towithdraw as such. Not only did respondent Judge deny such motion, but he alsoappointed 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 aswell as on the volume or pressure of work of petitioner, which could prevent him fromhandling adequately the defense. Respondent Judge, in the challenged order ofNovember 6, 1964, denied said motion. A motion for reconsideration having proved

futile, he instituted this certiorari proceeding.

3

As noted at the outset, the petition must fail.

1. The assailed order of November 6, 1964 denying the urgent motion of petitioner towithdraw as counsel de oficio speaks for itself. It began with a reminder that a crimewas allegedly committed on February 17, 1962, with the proceedings having started inthe municipal court of Cadiz on July 11, 1962. Then respondent Judge spoke of hisorder of October 16, 1964 which reads thus: "In view of the objection of the prosecutionto the motion for postponement of October 15, 1964 (alleging that counsel for theaccused cannot continue appearing in this case without the express authority of the

Commission on Elections); and since according to the prosecution there are twowitnesses who are ready to take the stand, after which the government would rest, themotion for postponement is denied. When counsel for the accused assumed office asElection Registrar on October 13, 1964, he knew since October 2, 1964 that the trialwould be resumed today. Nevertheless, in order not to prejudice the civil service statusof 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 anotherorder of February 11, 1964: "Upon petition of Atty. Adelino H. Ledesma, allegingindisposition, 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 hasbeen postponed at least eight (8) times, and that the government witnesses have tocome all the way from Manapala." 5 After which, it was noted in such order that therewas no incompatibility between the duty of petitioner to the accused and to the courtand the performance of his task as an election registrar of the Commission on Electionsand that the ends of justice "would be served by allowing and requiring Mr. Ledesma tocontinue as counsel de oficio, since the prosecution has already rested its case." 6


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2. What is readily apparent therefore, is that petitioner was less than duly mindful of hisobligation as counsel de oficio. He ought to have known that membership in the bar is aprivilege burdened with conditions. It could be that for some lawyers, especially theneophytes in the profession, being appointed counsel de oficio is an irksome chore. Forthose 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 indeeda profession dedicated to the ideal of service and not a mere trade. It is understandablethen why a high degree of fidelity to duty is required of one so designated. A recentstatement 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 inthe bar carries with it a responsibility to live up to its exacting standard. The law is aprofession, not a trade or a craft. Those enrolled in its ranks are called upon to aid in theperformance of one of the basic purposes of the State, the administration of justice. Toavoid any frustration thereof, especially in the case of an indigent defendant, a lawyermay be required to act as counsel de oficio. The fact that his services are renderedwithout 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 ofrelevance since a lawyer has to live; certainly he cannot afford either to neglect hispaying cases. Nonetheless, what is incumbent upon him as counsel de oficio must befulfilled." 8

So it has been from the 1905 decision of In re Robles Lahesa, 9

where respondent wasde oficio counsel, the opinion penned by Justice Carson making clear: "This Courtshould exact from its officers and subordinates the most scrupulous performance oftheir official duties, especially when negligence in the performance of those dutiesnecessarily results in delays in the prosecution of criminal cases ...."

10 Justice Sanchez

in People v. Estebia 11 reiterated such a view in these words: "It is true that he is a court-appointed counsel. But we do say that as such counsel de oficio, he has as high a dutyto the accused as one employed and paid by defendant himself. Because, as in thecase of the latter, he must exercise his best efforts and professional ability in behalf ofthe 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 biggerdose of social conscience and a little less of self-interest." 12

The weakness of the petition is thus quite evident.

3. If respondent Judge were required to answer the petition, it was only due to theapprehension that considering the frame of mind of a counsel loath and reluctant tofulfill his obligation, the welfare of the accused could be prejudiced. His right to counselcould in effect be rendered nugatory. Its importance was rightfully stressed by ChiefJustice Moran in People v. Holgado in these words: "In criminal cases there can be nofair hearing unless the accused be given an opportunity to be heard by counsel. Theright to be heard would be of little avail if it does not include the right to be heard bycounsel. Even the most intelligent or educated man may have no skill in the science of


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law, particularly in the rules of procedure, and; without counsel, he may be convictednot 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 forthis reason that the right to be assisted by counsel is deemed so important that it hasbecome 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 notenough to ask him whether he desires the aid of an attorney, but it is essential that thecourt should assign one de oficio for him if he so desires and he is poor or grant him areasonable time to procure an attorney of hisown." 13 So it was under the previous Organic Acts. 14 The present Constitution is evenmore emphatic. For, in addition to reiterating that the accused "shall enjoy the right to beheard 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 andto counsel, and to be informed of such right. No force, violence, threat, intimidation, orany other means which vitiates the free will shall be used against him. Any confessionobtained in violation of this section shall be inadmissible in evidence."

16

Thus is made manifest the indispensable role of a member of the Bar in the defense ofan accused. Such a consideration could have sufficed for petitioner not being allowed towithdraw as counsel de oficio. For he did betray by his moves his lack of enthusiasm forthe task entrusted to him, to put matters mildly. He did point though to his responsibilityas 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 histime. It may likewise be assumed, considering what has been set forth above, thatpetitioner would exert himself sufficiently to perform his task as defense counsel withcompetence, if not with zeal, if only to erase doubts as to his fitness to remain amember of the profession in good standing. The admonition is ever timely for thoseenrolled in the ranks of legal practitioners that there are times, and this is one of them,when duty to court and to client takes precedence over the promptings of self-interest.

WHEREFORE, the petition for certiorari is dismissed. Costs against petitioner.

Zaldivar (Chairman), Antonio, Fernandez and Aquino, JJ., concur.

Barredo, J., took no part.

Footnotes

1 Petition, Annex B.

2 Ibid , Annex C.

3 Petition, pars. 3-9.


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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 SCRA798; 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, 40SCRA 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. Espiña, L-33028, June30, 1972, 45 SCRA 614; People v. Esteves, L-34811, Aug. 18, 1972, 46SCRA 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, June22, 1973, 51 SCRA 286; People v. Busa, L-32047, June 25, 1973, 51SCRA 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, 20SCRA 717; Blanza v. Arcangel, Adm. Case No. 492, Sept. 5, 1967, 21SCRA 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, 26Phil. 616 (1914); United States v. Labial, 27 Phil. 82 (1914); United Statesv. Custan, 28 Phil. 19 (1914); United States v. Kilayco, 31 Phil. 371


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(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.

G.R. No. L-18727 August 31, 1964

JESUS MA. CUI, plaintiff-appellee,

vs.

ANTONIO MA. CUI, defendant-appellant,

ROMULO CUI, Intervenor-appellant.

Jose W. Diokno for plaintiff-appellee.

Jaime R. Nuevas and Hector L. Hofileña for defendant-appellant.

Romulo Cui in his own behalf as intervenor-appellants.

MAKALINTAL, J.:

This is a proving in quo warranto originally filed in the Court of First Instance of Cebu. The

office in contention is that of Administrator of the Hospicio de San Jose de Barili. Judgment was

rendered on 27 April 1961 in favor of the plaintiff, Jesus Ma. Cui, and appealed to us by thedefendant, Antonio Ma. Cui, and by the intervenor, Romulo Cui.

The Hospicio is a charitable institution established by the spouses Don Pedro Cui and DoñaBenigna Cui, now deceased, "for the care and support, free of charge, of indigent invalids, and

incapacitated and helpless persons." It acquired corporate existence by legislation (Act No. 3239of the Philippine Legislature passed 27 November 1925) and endowed with extensive properties by the said spouses through a series of donations, principally the deed of donation executed on 2

January 1926.

Section 2 of Act No. 3239 gave the initial management to the founders jointly and, in case of

their incapacity or death, to "such persons as they may nominate or designate, in the order

prescribed to them." Section 2 of the deed of donation provides as follows:

Que en caso de nuestro fallecimiento o incapacidad para administrar, nos sustituyan

nuestro legitime sobrino Mariano Cui, si al tiempo de nuestra muerte o incapacidad se

hallare residiendo en la caudad de Cebu, y nuestro sobrino politico Dionisio Jakosalem.Si nuestro dicho sobrino Mariano Cui no estuviese residiendo entonces en la caudad de

Cebu, designamos en su lugar a nuestro otro sobrino legitime Mauricio Cui. Ambos

sobrinos administraran conjuntamente el HOSPICIO DE SAN JOSE DE BARILI. A lamuerte o incapacidad de estos dos administradores, la administracion del HOSPICIO DE

SAN JOSE DE BARILI pasara a una sola persona que sera el varon, mayor de edad, que

descienda legitimainente de cualquiera de nuestros sobrinos legitimos Mariano Cui,Mauricio Cui, Vicente Cui y Victor Cui, y que posea titulo de abogado, o medico, o


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ingeniero civil, o farmaceutico, o a falta de estos titulos, el que pague al Estado mayor

impuesto o contribution. En igualdad de circumstancias, sera preferida el varon de mas

edad descendiente de quien tenia ultimamente la administracion. Cuando absolutamentefaltare persona de estas cualificaciones, la administracion del HOSPICIO DE SAN JOSE

DE BARILI pasara al senor Obispo de Cebu o quien sea el mayor dignatario de la Iglesia

Catolica, apostolica, Romana, que tuviere asiento en la cabecera de esta Provincia deCebu, y en su defecto, al Gobierno Provincial de Cebu.

Don Pedro Cui died in 1926, and his widow continued to administer the Hospicio until her deathin 1929. Thereupon the administration passed to Mauricio Cui and Dionisio Jakosalem. The first

died on 8 May 1931 and the second on 1 July 1931. On 2 July 1931 Dr. Teodoro Cui, only son of

Mauricio Cui, became the administrator. Thereafter, beginning in 1932, a series of controversies

and court litigations ensued concerning the position of administrator, to which, in so far as theyare pertinent to the present case, reference will be made later in this decision.

Plaintiff Jesus Ma. Cui and defendant Antonio Ma. Cui are brothers, being the sons of Mariano

Cui, one of the nephews of the spouses Don Pedro Cui and Doña Benigna Cui. On 27 February1960 the then incumbent administrator, Dr. Teodoro Cui, resigned in favor of Antonio Ma. Cui

pursuant to a "convenio" entered into between them and embodied in a notarial document. Thenext day, 28 February, Antonio Ma. Cui took his oath of office. Jesus Ma. Cui, however, had no

prior notice of either the "convenio" or of his brother's assumption of the position.

Dr. Teodoro Cui died on 27 August 1960; on 5 September 1960 the plaintiff wrote a letter to the

defendant demanding that the office be turned over to him; and on 13 September 1960, the

demand not having been complied with the plaintiff filed the complaint in this case. Romulo Cui

later on intervened, claiming a right to the same office, being a grandson of Vicente Cui, anotherone of the nephews mentioned by the founders of the Hospicio in their deed of donation.

As between Jesus and Antonio the main issue turns upon their respective qualifications to the position of administrator. Jesus is the older of the two and therefore under equal circumstances

would be preferred pursuant to section 2 of the deed of donation. However, before the test of age

may be, applied the deed gives preference to the one, among the legitimate descendants of thenephews therein named, "que posea titulo de abogado, o medico, o ingeniero civil, o

farmaceutico, o a falta de estos titulos el que pague al estado mayor impuesto o contribucion."

The specific point in dispute is the mealing of the term "titulo de abogado." Jesus Ma. Cui holds

the degree of Bachelor of Laws from the University of Santo Tomas (Class 1926) but is not a

member of the Bar, not having passed the examinations to qualify him as one. Antonio Ma. Cui,on the other hand, is a member of the Bar and although disbarred by this Court on 29 March

1957 (administrative case No. 141), was reinstated by resolution promulgated on 10 February

1960, about two weeks before he assumed the position of administrator of the Hospicio de Barili.

The Court a quo, in deciding this point in favor of the plaintiff, said that the phrase "titulo de

abogado," taken alone, means that of a full-fledged lawyer, but that has used in the deed ofdonation and considering the function or purpose of the administrator, it should not be given a


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strict interpretation but a liberal one," and therefore means a law degree or diploma of Bachelor

of Laws. This ruling is assailed as erroneous both by the defendant and by the intervenor.

We are of the opinion, that whether taken alone or in context the term "titulo de abogado" means

not mere possession of the academic degree of Bachelor of Laws but membership in the Bar after

due admission thereto, qualifying one for the practice of law. In Spanish the word "titulo" isdefined as "testimonies o instrumento dado para ejercer un empleo, dignidad o profesion"

(Diccionario de la Lengua Española, Real Academia Espanola, 1947 ed., p. 1224) and the word

"abogado," as follows: "Perito en el derecho positivo que se dedica a defender en juicio, porescrito o de palabra, los derechos o intereses de los litigantes, y tambien a dar dictmen sobre las

cuestiones o puntos legales que se le consultan ( Id ., p.5) A Bachelor's degree alone, conferred by

a law school upon completion of certain academic requirements, does not entitle its holder to

exercise the legal profession. The English equivalent of "abogado" is lawyer or attorney-at-law.This term has a fixed and general signification, and has reference to that class of persons who are

by license officers of the courts, empowered to appear, prosecute and defend, and upon whom

peculiar duties, responsibilities and liabilities are devolved by law as a consequence.

In this jurisdiction admission to the Bar and to the practice of law is under the authority of the

Supreme Court. According to Rule 138 such admission requires passing the Bar examinations,taking the lawyer's oath and receiving a certificate from the Clerk of Court, this certificate being

his license to practice the profession. The academic degree of Bachelor of Laws in itself has little

to do with admission to the Bar, except as evidence of compliance with the requirements that an

applicant to the examinations has "successfully completed all the prescribed courses, in a lawschool or university, officially approved by the Secretary of Education." For this purpose,

however, possession of the degree itself is not indispensable: completion of the prescribed

courses may be shown in some other way. Indeed there are instances, particularly under theformer Code of Civil Procedure, where persons who had not gone through any formal legal

education in college were allowed to take the Bar examinations and to qualify as lawyers.

(Section 14 of that code required possession of "the necessary qualifications of learning ability.")

Yet certainly it would be incorrect to say that such persons do not possess the "titulo deabogado" because they lack the academic degree of Bachelor of Laws from some law school or

university.

The founders of the Hospicio de San Jose de Barili must have established the foregoing test

advisely, and provided in the deed of donation that if not a lawyer, the administrator should be a

doctor or a civil engineer or a pharmacist, in that order; or failing all these, should be the onewho pays the highest taxes among those otherwise qualified. A lawyer, first of all, because under

Act No. 3239 the managers or trustees of the Hospicio shall "make regulations for the

government of said institution (Sec. 3, b); shall "prescribe the conditions subject to which

invalids and incapacitated and destitute persons may be admitted to the institute" (Sec. 3, d);shall see to it that the rules and conditions promulgated for admission are not in conflict with the

provisions of the Act; and shall administer properties of considerable value — for all of which

work, it is to be presumed, a working knowledge of the law and a license to practice the profession would be a distinct asset.


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Under this particular criterion we hold that the plaintiff is not entitled, as against the defendant,

to the office of administrator. But it is argued that although the latter is a member of the Bar he is

nevertheless disqualified by virtue of paragraph 3 of the deed of donation, which provides thatthe administrator may be removed on the ground, among others, of ineptitude in the discharge of

his office or lack of evident sound moral character. Reference is made to the fact that the

defendant was disbarred by this Court on 29 March 1957 for immorality and unprofessionalconduct. It is also a fact, however, that he was reinstated on 10 February 1960, before heassumed the office of administrator. His reinstatement is a recognition of his moral

rehabilitation, upon proof no less than that required for his admission to the Bar in the first place.

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and

approved by this Honorable Court, without prejudice to the parties adducing other evidence to

prove their case not covered by this stipulation of facts. 1äwphï1.ñët

Whether or not the applicant shall be reinstated rests to a great extent in the sound

discretion of the court. The court action will depend, generally speaking, on whether or

not it decides that the public interest in the orderly and impartial administration of justicewill be conserved by the applicant's participation therein in the capacity of an attorney

and counselor at law. The applicant must, like a candidate for admission to the bar,satisfy the court that he is a person of good moral character — a fit and proper person to

practice law. The court will take into consideration the applicant's character and standing

prior to the disbarment, the nature and character of the charge for which he was

disbarred, his conduct subsequent to the disbarment, and the time that has elapsed between the disbarment and the application for reinstatement. (5 Am. Jur., Sec. 301, p.

443)

Evidence of reformation is required before applicant is entitled to reinstatement,

notwithstanding the attorney has received a pardon following his conviction, and therequirements for reinstatement have been held to be the same as for original admission tothe bar, except that the court may require a greater degree of proof than in an original

admission. (7 C.J.S., Attorney & Client, Sec. 41, p. 815.)

The decisive questions on an application for reinstatement are whether applicant is "of

good moral character" in the sense in which that phrase is used when applied to

attorneys-at-law and is a fit and proper person to be entrusted with the privileges of theoffice of an attorney, and whether his mental qualifications are such as to enable him to

discharge efficiently his duty to the public, and the moral attributes are to be regarded as

a separate and distinct from his mental qualifications. (7 C.J.S., Attorney & Client, Sec.

41, p. 816).

As far as moral character is concerned, the standard required of one seeking reinstatement to the

office of attorney cannot be less exacting than that implied in paragraph 3 of the deed ofdonation as a requisite for the office which is disputed in this case. When the defendant was

restored to the roll of lawyers the restrictions and disabilities resulting from his previous

disbarment were wiped out.


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This action must fail on one other ground: it is already barred by lapse of time amounting the

prescription or laches. Under Section 16 of Rule 66 (formerly sec. 16, Rule 68, taken from

section 216 of Act 190), this kind of action must be filed within one (1) year after the right of plaintiff to hold the office arose.

Plaintiff Jesus Ma. Cui believed himself entitled to the office in question as long ago as 1932. OnJanuary 26 of that year he filed a complaint in quo warranto against Dr. Teodoro Cui, who

assumed the administration of the Hospicio on 2 July 1931. Mariano Cui, the plaintiff's father

and Antonio Ma. Cui came in as intervenors. The case was dismissed by the Court of FirstInstance upon a demurrer by the defendant there to the complaint and complaint in intervention.

Upon appeal to the Supreme Court from the order of dismissal, the case was remanded for

further proceedings (Cui v. Cui, 60 Phil. 37, 48). The plaintiff, however, did not prosecute the

case as indicated in the decision of this Court, but acceded to an arrangement whereby TeodoroCui continued as administrator, Mariano Cui was named "legal adviser" and plaintiff Jesus Ma.

Cui accepted a position as assistant administrator.

Subsequently the plaintiff tried to get the position by a series of extra-judicial maneuvers. Firsthe informed the Social Welfare Commissioner, by letter dated 1 February 1950, that as of the

previous 1 January he had "made clear" his intention of occupying the office of administrator ofthe Hospicio." He followed that up with another letter dated 4 February, announcing that he had

taken over the administration as of 1 January 1950. Actually, however, he took his oath of office

before a notary public only on 4 March 1950, after receiving a reply of acknowledgment, dated 2

March, from the Social Welfare Commissioner, who thought that he had already assumed the position as stated in his communication of 4 February 1950. The rather muddled situation was

referred by the Commissioner to the Secretary of Justice, who, in an opinion dated 3 April 1950

(op. No. 45, S. 1950), correcting another opinion previously given, in effect ruled that the plaintiff, not beings lawyer, was not entitled to the administration of the Hospicio.

Meanwhile, the question again became the subject of a court controversy. On 4 March 1950, the Hospicio commenced an action against the Philippine National Bank in the Court of First

Instance of Cebu (Civ. No. R-1216) because the Bank had frozen the Hospicio's deposits therein.

The Bank then filed a third-party complaint against herein plaintiff-appellee, Jesus Ma. Cui, whohad, as stated above, taken oath as administrator. On 19 October 1950, having been deprived of

recognition by the opinion of the Secretary of Justice he moved to dismiss the third-party

complaint on the ground that he was relinquishing "temporarily" his claim to the administration

of the Hospicio. The motion was denied in an order dated 2 October 1953. On 6 February 1954he was able to take another oath of office as administrator before President Magsaysay, and soon

afterward filed a second motion to dismiss in Civil case No. R-1216. President Magsaysay, be it

said, upon learning that a case was pending in Court, stated in a telegram to his Executive

Secretary that "as far as (he) was concerned the court may disregard the oath" thus taken. Themotion to dismiss was granted nevertheless and the other parties in the case filed their notice of

appeal from the order of dismissal. The plaintiff then filed an ex-parte motion to be excluded as

party in the appeal and the trial Court again granted the motion. This was on 24 November 1954.Appellants thereupon instituted a mandamus proceeding in the Supreme Court (G.R. No. L-

8540), which was decided on 28 May 1956, to the effect that Jesus Ma. Cui should be included

in the appeal. That appeal, however, after it reached this Court was dismiss upon motion of the


12/98

parties, who agreed that "the office of administrator and trustee of the Hospicio ... should be

ventilated in quo warranto proceedings to be initiated against the incumbent by whomsoever is

not occupying the office but believes he has a right to it" (G.R. No. L-9103). The resolution ofdismissal was issued 31 July 1956. At that time the incumbent administrator was Dr. Teodoro

Cui, but no action in quo warranto was filed against him by plaintiff Jesus Ma. Cui as indicated

in the aforesaid motion for dismissal.

On 10 February 1960, defendant Antonio Ma. Cui was reinstated by this Court as member of the

Bar, and on the following 27 February Dr. Teodoro Cui resigned as administrator in his favor, pursuant to the "convenio" between them executed on the same date. The next day Antonio Ma.

Cui took his oath of office.

The failure of the plaintiff to prosecute his claim judicially after this Court decided the first case

of Cui v. Cui in 1934 (60 Phil. 3769), remanding it to the trial court for further proceedings; his

acceptance instead of the position of assistant administrator, allowing Dr. Teodoro Cui to

continue as administrator and his failure to file an action in quo warranto against said Dr. Cui

after 31 July 1956, when the appeal in Civil Case No. R-1216 of the Cebu Court was dismissedupon motion of the parties precisely so that the conflicting claims of the parties could be

ventilated in such an action — all these circumstances militate against the plaintiff's presentclaim in view of the rule that an action in quo warranto must be filed within one year after the

right of the plaintiff to hold the office arose. The excuse that the plaintiff did not file an action

against Dr. Teodoro Cui after 31 July 1956 because of the latter's illness did not interrupt the

running of the statutory period. And the fact that this action was filed within one year of thedefendant's assumption of office in September 1960 does not make the plaintiff's position any

better, for the basis of the action is his own right to the office and it is from the time such right

arose that the one-year limitation must be counted, not from the date the incumbent began todischarge the duties of said office. Bautista v. Fajardo, 38 Phil. 624; Lim vs. Yulo, 62 Phil. 161.

Now for the claim of intervenor and appellant Romulo Cui. This party is also a lawyer, grandsonof Vicente Cui, one of the nephews of the founders of the Hospicio mentioned by them in the

deed of donation. He is further, in the line of succession, than defendant Antonio Ma. Cui, who is

a son of Mariano Cui, another one of the said nephews. The deed of donation provides: "a lamuerte o incapacidad de estos administradores (those appointed in the deed itself) pasara a una

sola persona que sera el varon, mayor de edad, que descienda legitimamente de cualquiera de

nuestros sobrinos legitimos Mariano Cui, Mauricio Cui, Vicente Cui, Victor Cui, y que posea

titulo de abogado ... En igualdad de circumstancias, sera preferido el varon de mas edaddescendiente de quien tenia ultimamente la administration." Besides being a nearer descendant

than Romulo Cui, Antonio Ma. Cui is older than he and therefore is preferred when the

circumstances are otherwise equal. The intervenor contends that the intention of the founders

was to confer the administration by line and successively to the descendants of the nephewsnamed in the deed, in the order they are named. Thus, he argues, since the last administrator was

Dr. Teodoro Cui, who belonged to the Mauricio Cui line, the next administrator must come from

the line of Vicente Cui, to whom the intervenor belongs. This interpretation, however, is not justified by the terms of the deed of donation.


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IN VIEW OF THE FOREGOING CONSIDERATIONS, the judgment appealed from is reversed

and set aside, and the complaint as well as the complaint in intervention are dismissed, with costs

equally against plaintiff-appellee and intervenor-appellant.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Paredes and Regala, JJ., concur.

RAUL A. VILLEGAS, petitioner,vs.ASSEMBLYMAN VALENTINO L. LEGASPI, COURT OF FIRST INSTANCE OFCEBU, BRANCH 11, presided by HON. FRANCISCO P. BURGOS, District Judge;BRIGIDA VERA CRUZ, joined in and assisted by her husband JOSE VERA CRUZ,and PRIMITIVO CANIA JR., respondents.

G.R. No. L-51928 March 25, 1982

EUGENIO J. PUYAT, ERWIN L. CHIONGBIAN, EDGARDO P. REYES, ANTONIO G.

PUYAT, JAIME R. BLANCO, RAFAEL R. RECTO and REYNALDO L. LARDIZABAL,petitioners,

HON. SIXTO T. J. DE GUZMAN, JR., as Associate Commissioner of the Securities& Exchange Commission, EUSTAQUIO T. C. ACERO, R. G. VILDZIUS ENRIQUE M.BELO, MANUEL G. ABELLO, SERVILLANO DOLINA, JUANITO MERCADO andESTANISLAO A. FERNANDEZ, respondents.

MELENCIO-HERRERA, J.:

These two cases (L-53869 and L-51928) filed in May, 1980 and September, 1979,respective, involved the prohibition in Section 11, Article VIII of the 1973 Charter, whichused to read:

Sec. 11. No member of the National Assembly shall appear as counselbefore any court inferior to a court with appellate jurisdiction, ...

The antecedents facts follows:

L-53869

On September 27, 1979, a complaint for annulment of bank checks and damages wasfiled by Raul A. Villegas against the Vera Cruz spouses and Primitivo Cania, Jr. (privaterespondents) before the Court of First Instance of Cebu, Branch XVI, then presided byHon. Ceferino E. Dulay (Civil Case No. 431-L). An answer, dated October 11, 1979,was filed by private respondents through their counsel, Assemblyman Valentino 1.Legaspi, a member of the Batasang Pambansa from the province of Cebu. Raul A.Villegas "challenged" the appearance of Assemblyman Legaspi as counsel of record on


14/98

the ground that he is barred under the Constitution from appearing before Courts ofFirst Instance, which are essentially trial Courts or Courts of First Instance, which areessentially trial Courts or Courts of First Instance, which are essentially trial Courts orCourts of original jurisdiction. After the Opposition and Reply to the Opposition werefiled, Judge Dulay issued an Order inhibiting himself from the aforesaid case because

Assemblyman Legaspi was likewise the lawyer of his wife in two pending cases. Thecase was re-raffled and redocketed as Civil Case No. R-18857, and transferred toBranch II, presided by Judged Francisco P. Burgos (respondent Court).

In an Order, dated February 27, 1980, Judge Burgos denied the disqualification of Assemblyman Legaspi, as well as the Motion for Reconsideration filed thereafter.Hence, this recourse to certiorari and Prohibition.

A temporary Restraining Order was issued ex-parte by this Tribunal on May 22, 1980enjoining respondent Court from acting in Civil Case No. R-18857 below.

L-51928

Edgardo P. Reyes filed, on July 3, 1979, Civil Case No. 33739 before the Court of FirstInstance of Rizal (Pasig), Branch XXI, against N. V. Verenigde BuinzenfabriekenExcelsior-De Maas and private respondent Eustaquio T.C. Acero to annul the sale ofExcelsior's shares in the International Pipe Industries Corporation (IPI) to Eustaquio T.C

Acero, allegedly on the ground that, prior thereto, the same shares had already beensold to him (Reyes). Assemblyman Estanislao Fernandez entered his appearance ascounsel for Excelsior. This appearance was questioned on the ground that it was barredby Section 11, Article VIII of the 1973 Constitution, above-quoted.

Initially, this case (L-51928) was filed as a Supplemental Petition to L-51122 (EugenioPuyat, et als. Hon. Sixto T.J. de Guzman), but this Court ordered it docketed separately. And since the issue involved is on all fours with L-53869, the Court opted to resolveCase No. L-51928 jointly with L-53869 instead of with L-51122 as originally directed.

The novel issue for determination is whether or not members of the BatasangPambansa, like Attorneys Valentino L. Legaspi and Estanislao A. Fernandez, canappear as counsel before Courts of First Instance.

A comparison of Section 11, Article VIII, of the 1973 Constitution prohibiting any Assemblyman from appearing as counsel "before any Court inferior to a Court with

appellate jurisdiction", and the "similar" provision of Section 17, Article VI, of the 1935Charter is elucidating. The last sentence of the latter provision reads:

... No member of the Commission on Appointments shall appear ascounsel before any Court inferior to a collegiate Court of appellate

jurisdiction.


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A significant amendment is the deletion of the term "collegiate". Further, the limitationnow comprehends all members of the Batasang Pambansa, and is no longer confinedto members of the Commissions on Appointments, a body not provided for under the1973 Constitution.

Under the amendment to Article VIII of the 1973 Constitution, ratified in a nationalplebiscite held on April 7, 1981, Section 11 now reads:

SEC. 11. No member of the Batasang Pambansa shall appear as counselbefore any court without appellate jurisdiction, ...

The term 'collegiate" remains deleted , and the terminology is now "Court withoutappellate jurisdiction."

Although the cases at bar were filed prior to the aforesaid amendment, they should beresolved under the amended provision. We abide by the proposition that "as a general

rule, the provisions of a new Constitution take effect immediately and become operativeon pending litigation." 1

Clearly, what is prohibited to a Batasang Pambansa member is "appearance ascounsel" "before any Court without appellate jurisdiction.

"Appearance" has been defined as "voluntary submission to a court's jurisdiction".2

"Counsel" means "an adviser, a person professionally engaged in the trial ormanagement of a cause in court; a legal advocate managing a case at law; a lawyerappointed or engaged to advise and represent in legal matters a particular client, publicofficer, or public body". 3 Ballantine's Law Dictionary says a counsel is "counselor, an

attorney at law; one or more attorneys representing parties in an action".

4

Thus,"appearance as counsel" is a voluntary submission to a court's jurisdiction by a legaladvocate or advising lawyer professionally engaged to represent and plead the cause ofanother . This is the common, popular connotation of this word which the Constitutionmust have adopted. In one case, 5 in resolving the question of what constitutes'appearance as an advocate," the Court held that "advocate" the Court held that"advocate" means one who pleads the cause of another before a tribunal or judicialcourt, a counselor.

Judging from the prescribed criteria, there should be no question that AssemblymanValentino L. Legaspi, in preparing the Answer for private respondent-spouses in Civil

Case No. R-18857 before the Court of First Instance of Cebu, Branch II, appears astheir counsel. Similarly, Assemblyman Estanislao A. Fernandez appears as counsel forExcelsior in Civil Case No. 33739 of the Court of First Instance of Rizal (Pasig), BranchXXI. They represent and plead the cause of another before a Court of justice.

The next poser then arises: are the Courts of First Instance, where AssemblymanLegaspi and Fernandez, respectively, appear as counsel of record, Courts withappellate jurisdiction?


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There are authorities to the effect that the essential criterion of appellate jurisdiction isthat it revises and corrects the proceedings in a case already instituted and does notcreate that cause

6 Or, that it necessarily implies that the subject-matter has been

instated in and acted upon by some other court whose judgment or proceedings are tobe reviewed. 7 In an early Philippine case, 8 it was held to mean jurisdiction to review

the judgment of an inferior court. And, that it calls for and demands previous legitimate jurisdiction by a court of origin. 9

By law, Courts of First Instance are Courts of general original jurisdiction.10

However,under the same statute, their jurisdiction has been stated to be of two kinds: (a) originaland (b) appellate. 11 They have appellate jurisdiction over all cases arising in City andMunicipal Courts in their respective provinces except over appeals from cases tried byMunicipal judges of provincial capatals or City Judges pursuants to the authority grantedunder the last paragraph of Section 87 of the Judiciary Act. 12

It is rather clear that Courts of First Instance, by virtue of a specific bestowal by the

Judiciary Act of 1948, as amended, can be Courts with appellate jurisdiction. And, bythe deliberate omission of the word "collegiate" in both the original and amendedSection 11, Article VIII of the 1973 Constitution, the obvious intention of the framers isthat Courts of First Instance, as appellate Tribunals, no longer fall within the ambit of theprevious prohibition. They are single-Judge Courts with appellate jurisdiction fromdecisions and orders of City and Municipal Courts.

13 Stated otherwise, under theamended proviso, Courts of First Instance are not Courts without appellate jurisdiction.

It is contended, however, that the Courts of First Instance in these two cases tookcognizance of the suits in the exercise of their exclusive original and not appellate

jurisdiction, hence, Assemblymen Fernandez and Legaspi are still prohibited from

appearing before said Courts as counsel. There is merit to this contention.

It should be borne in mind that Courts of First Instance have dual "personality".Depending on the case before it, said Courts can be either of appellate or original

jurisdiction. The question then to be resolved is whether or not Assemblymen canappear as counsel before Courts of First Instance in cases originally filed with them.

We are of the considered opinion that, to render effective the Constitutional provision,appearance by legislators before Courts of First Instance should be limited to caseswherein said Courts exercise appellate jurisdiction. This is true to the time-honoredprinciple that whatever is necessary to render effective any provision of a Constitution,whether the same be a prohibition or a restriction, must be deemed implied andintended in the provision itself. 14

It bears repeating that under Section 17, Article VI of the 1935 Charter, it was providedthat members of the Commission on Appointments shall not "appear as counsel beforeany Court inferior to a collegiate Court of appellate jurisdiction." The intent was clearthat members of the Commission on Appointments shall not "appear as counsel beforeany Court inferior to a collegiate Court of appellate jurisdiction." The intent was clear


17/98

that members of the Commission on Appointments could not appear before Courts ofFirst Instance. Uppermost in the minds of the framers was "appellate jurisdiction" morethan Court. Under Section 11, Article VIII of the 1973 Constitution, the scope of theprohibition was expanded to embrace all members of the National Assembly who werebarred from "appear(ing) as counsel before any Court without appellate jurisdiction."

Consistently, the principal criterion is "appellate jurisdiction." So that, when a legislatorappears in an original case filed with a Court with "appellate jurisdiction."

Appellate practice is all that is permitted because of the admitted predominance oflawyers in the legislature. 15 Their office has always favored them with the influence andprestige that it carried. Today, as before, it is only "appellate practice" that is allowedwith the significant difference that, this time, the Court need not be a collegial body. Thisso because with the removal of the legislative power to review appointments the sourceof power and influence that members of the National Assembly could unduly exert in theexercise of the legal profession has been greatly minimized.

This is a situation where the restricted meaning must prevail over the general becausethe nature of the subject matter of the context clearly indicates that the limited sense isintended.

16 In fact, the original emandement proposed by Antonio V. Raquiza, Delegateof the First District, Ilocos Norte, in Resolution No. 345 entitled "Prohibiting Members ofthe National Assembly to Use Their Office As a Means of Promoting Sel-Interest" — was to bar a National Assembly member from appearing as counsel before any Court.In the "Whereas" clauses, that proposal was believed to be an "improvement" overSection 17, Article VI of the 1935 Constitution and the purpose of the proposedamendement was explained as follows:

xxx xxx xxx

2. The Constitutional provision enumerates the kind of court oradministrative cases where a legislator cannot appear. In our proposal heis absolutely barred because it is feared that the practice of his professionwill interfere with the performance of his duties or that because the powerof his office might influence the administration of justice.

... (Emphasis supplied) 17

The co-author of Resolution No. 345. Delegate Leocadio E. Ignacio from the loneDistrict of Isabela, and Floor Leader of the 1971 Constitutional Convention, elucidated

further on the purpose behind the prohibition when he wrote in his Position Paper that'The prohibition against appearing as counsel is necessary because of the underinfluence which members of Congress enjoy when they practice before the Courts andespecially before administrative agencies. It is an accepted fat that our legislature iscomposed of a predominance of practicing lawyers, and who are therefor expected tobe naturally not averse to exerting all influence that they can muster in the pursuit oftheir profession." Continuing, he said: "The inability to practice as counsel ... should bepart of the sacrifices entailed in running for the position of lawmaker. 18 The


18/98

amendement proposed by Delegate Gonzalo O. Catan, Jr. of Negros Oriental evenwent further: "No member of the National Assembly shall, during his term of office,appear as counsel, directly or indirectly, in any Court or administrative body ..."

19 Delegate Emerito M. Salva from the Second District, Ilocos Norte, substituted his ownamendment, thus:

Section 13. No member of the National Assembly shall, during his term ofoffice, practice directly or indirectly any occupation or profession or beallowed to engage directly or indirectly in any trade, business, or industry.20

and explained:

10.2. Explaining the substitute amendment, Delegate Salva said that theassemblymen should render full-time service to the national. He pointedout that they should be barred from the practice of their respective

professions since they would reasonably be compensated for devotingtheir time to the work of the National Assembly.21

While Section 11, Article VIII, as finally adopted by the Constitutional Convention, didnot carry the several amendments proposed, they are reflective of the sentimentprevailing at the 1971 Constitutional Conventional, and reinforce the condition thatappearance as counsel by Assemblymen was meant to be confined to appellatepractice and not unlimited practice before Courts of First Instance. That sentiment hasbeen carried over the amendment ratified in the April, 1981 plebiscite. For, there is nosubstantial difference between "Court inferior to a Court with appellate jurisdiction" (theoriginal 1973 provision) and "Court without appellate jurisdiction' (the amended

provision).

The objective of the prohibition, then and now, is clearly to remove any possibility ofundue influence upon the administration of justice, to eliminate the possible use of officefor personal gain, to ensure impartiality in trials and thus preserve the independence ofthe Judiciary. The possible influence of an Assemblyman on a signed Judge of theCourt of First Instance, though not entirely removed, is definitely diminished where thelatter Court acts in the exercise of its appellate instead of original jurisdiction. The upperhand that a party represented by an Assemblyman by virtue of his office possesses ismore felt and could be more feared in original cases than in appealed cases becausethe decision or resolution appealed from the latter situation has already a presumptionnot only of regularity but also of correctness in its favor.

In fine, "appellate practice" is an intended qualification dictated by principles of reason, justice and public interest.

The limited application to "appellate practice" is a view-point favored by constitutionalistof eminence, Chief Justice Enrique M. Fernando, in his scholarly work "The Constitutionof the Philippine,

22 where he said:


19/98

It is to be noted that at present he may appear as counsel in any criminalcase, but he cannot do so before any administrative body. Also, while it isonly appellate practice that is allowed a member of the National Assembly,formerly, such a limitation applied solely to a Senator or Representativewho was in the Commission on Appointments, a body abolished under the

present Constitution. Those differences should be noted (Emphasissupplied) 23

Chief Justice Enrique M. Fernando also expounded on the reason behind theConstitutional prohibition, thus:

... The need for it was felt by the 1934 Constitutional Convention, asentiment shared by the last Constitutional Convention, because of thewidespread belief that legislators found it difficult to resist, as perhapsmost men, the promptings of self-interest. Clearly, the purpose was and isto stress the fiduciary aspect of the position. There is thus fidelity to the

maxim that a public office is a public trust. ...

24

Since the respective Courts of First Instance, before which Assemblymen Legaspi andFernandez appeared as counsel, were acting in the exercise of original and notappellate jurisdiction, they must be held barred from appearing as counsel before saidCourts in the two cases involved herein.

WHEREFORE, granting the Writs prayed for, the Order issued on February 27, 1980 bythe Court of First Instance of Cebu, Branch II, in Civil Case No. R-18857, is hereby setaside, and Attorneys Estanislao A. Fernandez and Valentino Legaspi hereby declaredprohibited from appearing as counsel before the Court of First Instance of Rizal (Pasig),

Branch XXI, in Civil Case No. 33739, and before the Court of First Instance of Cebu,Branch II, in Civil Case No. r-18857, respectively. The Restraining Order issuedheretofore in L-53869 is hereby made permanent.

No costs in either case.

SO ORDERED.

Fernando, C.J., Teehankee, Barredo, Makasiar, Concepcion, Jr., Fernandez, Guerrero, Abad Santos, De Castro, Ericta, Plana and Escolin, JJ., concur.

Aquino, J., took no part.

Footnotes

1 16 Am Jur., 2d. p. 219 citing Cassard v. Tracy, 52 la Ann 835, 27 So368.


20/98

2 Pacilio vs. Scarpati, 300 N.Y.S. 473, 478.

3 Webster's Third New International Dictionary, 1966, p. 518.

4 Third Edition, 1969, p. 278.

5 Haverty Furniture Co. vs. Fausta, 124 S.N. 2d 694, 697.

6 Marbury vs. Madison, 5 U.S. 137, 175, 2 L. Ed. 60; In re Constitutionalityof House Bill No. 222, 90 SW2d 692, 293.

7 Ex parte Evans, 52 S.E. 419, 420.

8 U.s. vs. Atienza, 1 Phil. 737 (1903).

14 Black, on Interpretation of laws, 2nd ed., 1911, p. 29.

15 "Legislative Department, " (U.P. Law Center Constitutional RevisionProject, 1970) p. 297.

16 Marcos and Concordia vs. Chief of Staff, AFP, 89 Phil. 246, 248 citing11 Am. Jur. 680-682.

17 "Committee Reports, Vol. 33 Committee on Legis, Power, Part I, ascompiled by the National Library."

18 "Speeches and Positions Papers, V.6; Hermoso-Oliverso: Compiled by

National Library, 1976.

19 Prop. Amend. No. 69 to CC/C Legis. Power Rep. 03/4-6-72; DateSubmitted: 7-14-72; 5:31 P.M.

20 Prop. Amend. No 127 to CC/C Legis. Power/Rep. 03/4-6-72; DateSubmitted: 8-28-72; 2:50 p.m.

21 Minutes, October 11, 1972 p. 4.

23 Under the amendment to Article VIII of the 1973 Constitution ratified in

a national plebiscite held on April 7, 1981 "no member of the BatasangPambansa shall appear as counsel ... before any court ... in any originalcase wherein any officer or employee of the Government is accused of anoffense committed in relation to his office, ...". (Emphasis supplied).

24 Fernando, The Constitution of the Philippines, p. 205, Second Edition.


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JULIO D. ENRIQUEZ, SR., representing the law firm of ENRIQUEZ and ENRIQUEZ, petitioner,

vs.

HON. PEDRO M. GIMENEZ in his capacity as AUDITOR GENERAL OF THE

PHILIPPINES, respondent.

Julio D. Enriquez, Sr. for petitioner.

Assistant Solicitor General Florencio Villamor and Solicitor Jorge R. Coquia for respondent.

PADILLA, J .:

This is a petition filed under the provisions of Rule 45 of the Rules of Court and section 2 ( c) of

Commonwealth Act No. 327 for a review of a decision of the Auditor General dated 24 June

1957.

On 18 June 1955 Republic Act No. 1383 creating the National Waterworks and Sewerage

Authority as a public corporation and vesting in it the ownership, jurisdiction, supervision andcontrol over all territory embraced by the Metropolitan Water District as well as all areas served by existing government-owned waterworks and sewerage and drainage systems within the

boundaries of cities, municipalities, and municipal districts in the Philippines, and those served

by the Waterworks and Wells and Drills Section of the Bureau of Public Works, was passed. On19 September 1955 the President of the Philippines promulgated Executive Order No. 127 providing, among others, for the transfer to the National Waterworks and Sewerage Authority of

all the records, properties, machinery, equipment, appropriations, assets, choses in actions,

liabilities, obligations, notes, bonds and all indebtedness of all government-owned waterworksand sewerage systems in the provinces, cities, municipalities and municipal districts (51 Off.

Gaz. 4415-4417). On 31 March 1956 the municipal council of Bauan, Batangas, adopted and

passed Resolution No. 152 stating "that it is the desire of this municipality in this presentadministration not to submit our local Waterworks to the provisions of the said Republic Act No.1383." (Annex A.) On 20 April 1956 the municipal mayor transmitted a copy of Resolution No.

152 to the Provincial Fiscal through the Provincial Board requesting him to render an opinion on

the matter treated therein and to inform the municipal council whether he would handle and prosecute its case in court should the council decide to question and test judicially the legality of

Republic Act No. 1383 and to prevent the National Waterworks and Sewerage Authority from

exercising its authority over the waterworks system of the municipality, (Annex B). On 2 May1956 the provincial fiscal rendered an opinion holding that Republic Act No. 1383 is valid and

constitutional and declined to represent the municipality of Bauan in an action to be brought

against the National Waterworks and Sewerage Authority to test the validity and constitutionality

of the Act creating it (Annex C). On 26 May 1956 the municipal council adopted and passedResolution No. 201 authorizing the municipal mayor to take steps to commence an action or

proceedings in court to challenge the constitutionality of Republic Act No. 1383 and to engage

the services of a special counsel, and appropriating the sum of P2,000 to defray the expenses of

litigation and attorney's fees (Annex D). On 2 June 1956 the municipal mayor wrote a letter tothe petitioner engaging his services as counsel for the municipality in its contemplated action

against the National Waterworks and Sewerage Authority (Annex F.) On 27 June 1956 the

Provincial Board of Batangas adopted and passed Resolution No. 1829 approving Resolution No.


22/98

201 of the municipal council of Bauan (Annex E). On 28 June 1956 the petitioner wrote to the

municipal mayor accepting his offer in behalf of the municipality under the following terms and

conditions: that his professional services shall commence from the filing of the complaint up toand including the appeal, if any, to the appellate courts; that his professional fee shall be P1,500

and payable as follows: P500 upon the filing of the complaint, P500 upon the termination of the

hearing of the case in the Court of First Instance, and P500 after judgment shall have becomefinal or, should the judgment be appealed, after the appeal shall have been submitted for judgment to the appellate court; and that the municipality shall defray all reasonable and

necessary expenses for the prosecution of the case in the trial and appellate courts including

court and sheriff fees, transportation and subsistence of counsel and witnesses and cost oftranscripts of stenographic notes and other documents (Annex G). On the same date, 28 June

1956, the petitioner filed the necessary complaint in the Court of First Instance of Batangas (civil

No. 542, Annex I). On 9 July 1956 the municipal mayor wrote to the petitioner agreeing to the

terms and conditions set forth in his (the petitioner's) letter of 28 June 1956 (Annex H). On 16July 1956 the defendant filed its answer to the complaint (Annex J). On 24 July 1956 the

petitioner wrote a letter to the municipal treasurer requesting reimbursement of the sum of P40

paid by him to the Court as docket fee and payment of the sum of P500 as initial attorney's fee.Attached to the letter were the pertinent supporting papers (Annex K). The municipal treasurer

forwarded the petitioner's claim letter and enclosures to the Auditor General through channels for

pre-audit. On 24 June 1957 the Auditor General disallowed in audit the petitioner's claim for

initial attorney's fees in the sum of P500, based upon an opinion rendered on 10 May 1957 by theSecretary of Justice who held that the Provincial Fiscal was not disqualified to handle and

prosecute in court the case of the municipality of Bauan and that its municipal council had no

authority to engage the services of a special counsel (Annex L), but offered no objection to therefund to the petitioner of the sum of P40 paid by him to the Court as docket fee (Annex M). On

15 August 1957 the petitioner received notice of the decision of the Auditor General and on 11

September 1957 he filed with the Auditor General a notice of appeal from his decision under

section 4, Rule 45, of the Rules of Court Annex N). On 13 September 1957 the petitioner filedthis petition for review in this Court.

The Revised Administrative Code provides:

SEC. 2241. Submission of questions to provincial fiscal . — When the council is desirousof securing a legal opinion upon any question relative to its own powers or the

constitution or attributes of the municipal government, it shall frame such question in

writing and submit the same to the provincial fiscal for decision.

SEC. 1682. Duty of fiscal as legal adviser of province and provincial subdivisions. —

The provincial fiscal shall be the legal adviser of the provincial government and its

officers, including district health officers, and of the mayor and council of the variousmunicipalities and municipal districts of the province. As such he shall, when so

requested, submit his opinion in writing upon any legal question submitted to him by any

such officer or body pertinent to the duties thereof.

SEC. 1683. Duty of fiscal to represent provinces and provincial subdivisions in litigation.

— The provincial fiscal shall represent the province and any municipality or municipal


23/98

district thereof in any court, except in cases whereof original jurisdiction is vested in the

Supreme Court or in cases where the municipality or municipal district in question is a

party adverse to the provincial government or to some other municipality or municipaldistrict in the same province. When the interests of a provincial government and of any

political division thereof are opposed, the provincial fiscal shall act on behalf of the

province.

When the provincial fiscal is disqualified to serve any municipality or other political

subdivision of a province, a special attorney may be employed by its council.

Under the foregoing provisions of law, the Provincial Fiscal is the legal adviser of the mayor and

counsel of the various municipalities of a province and it is his duty to represent the municipalityin any court except when he is disqualified by law. When he is disqualified to represent the

municipality, the municipal council may engage the services of a special attorney. The Provincial

Fiscal is disqualified to represent in court the municipality if and when original jurisdiction of

the case involving the municipality is vested in the Supreme Court; when the municipality is a

party adverse to the provincial government or to some other municipality in the same province;

1

and when in the case involving the municipality, he, or his wife, or child, is pecuniarily involved

as heir, legatee, creditor or otherwise.2 The fact that the Provincial Fiscal in the case at bar was

of the opinion that Republic Act No. 1383 was valid and constitutional, and, therefore, would not

be in a position to prosecute the case of the municipality with earnestness and vigor, could not

justify the act of the municipal council in engaging the services of a special counsel. Bias or

prejudice and animosity or hostility on the part of a fiscal not based on any of the conditionsenumerated in the law and the Rules of Court do not constitute a legal and valid excuse for

inhibition or disqualification.3 And unlike a practising lawyer who has the right to decline

employment,4 a fiscal cannot refuse the performance of his functions on grounds not provided

for by law without violating his oath of office, where he swore, among others, "that he will well

and faithfully discharge to the best of his ability the duties of the office or position upon which

he is about to enter. . . ."5 Instead of engaging the services of a special attorney, the municipal

council should have requested the Secretary of Justice to appoint an acting provincial fiscal in place of the provincial fiscal who had declined to handle and prosecute its case in court, pursuant

to section 1679 of the Revised Administrative Code. The petitioner claims that the municipal

council could not do this because the Secretary of Justice, who has executive supervision over theGovernment Corporate Counsel, who represented the National Waterworks and Sewerage

Authority in the case filed against it by the municipality of Bauan (civil No. 542, Annex J) and

direct supervision and control over the Provincial Fiscal, would be placed in an awkward andabsurd position of having control of both sides of the controversy. The petitioner's contention is

untenable. Section 83 of the Revised Administrative Code, as amended by Executive Order No.

94, series of 1947 and further amended by Executive Order No. 392, series of 1950, 46 Off.

Gaz., 5913, 5917, provides that the Secretary of Justice shall have executive supervision over theGovernment Corporate Counsel and supervision and control over Provincial Fiscals. In Mondano

vs. Silvosa, 97 Phil., 143; 51 Off. Gaz., 2884, 2888, this Court distinguished supervision from

control as follows:

. . . In administrative law supervision means overseeing or the power or authority of an

officer to see that subordinate officers perform their duties. If the latter fail or neglect to


24/98

fulfill them the former may take such action or step as prescribed by law to make them

perform their duties. Control, on the other hand, means the power of an officer to alter or

modify or nullify or set aside what a subordinate officer had done in the performance ofhis duties and to substitute the judgment of the former for that of the latter. . . .

The fact that the Secretary of Justice had, on several occasions, upheld the validity andconstitutionality of Republic Act No. 1383 does not exempt the municipal council of Bauan from

requesting the Secretary of Justice to detail a provincial fiscal to prosecute its case.

The services of the petitioner having been engaged by the municipal council and mayor without

authority of law, the Auditor General was correct in disallowing in audit the petitioner's claim for

payment of attorney's fees. The decision under review is affirmed, without pronouncement as tocosts.

Bengzon, Montemayor, Bautista Angelo, Concepcion, Barrera and Gutierrez David, JJ., concur.

Footnotes

1 See Reyes vs. Cornista, 92 Phil., 838; 49 Off. Gaz. 931; Municipality of Bocaue and

Province of Bulacan vs. Manotok, 93 Phil., 173.

2 Section 13, Rule 115 and Section 1, Rule 126, Rules of Court.

3 Cf. Benusa vs. Torres, 55 Phil., 7337; People vs. Lopez, 78 Phil., 286.

4

Canon No. 31 of the Canons of Professional Ethics.5 Section 23, Revised Administrative Code.

G.R. No. L-42992 August 8, 1935

FELIPE SALCEDO, petitioner-appellant,

vs.

FRANCISCO HERNANDEZ, respondent-appellee.

I n re contempt proceedings against Attorney VICENTE J. FRANCISCO.

Vicente J. Francisco in his own behalf.

DIAZ, J.:

In a motion filed in this case, which is pending resolution because the second motion for

reconsideration of Attorney Vicente J. Francisco, who represents the herein petitioner, has not

been acted upon to date, for the reason that the question whether or not the decision which hasalready been promulgated should be reconsidered by virtue of the first assignment of error relied


25/98

upon in said petitioner's brief, has not yet been determined, for which purpose the case was set

for hearing on August 5, 1935, said attorney inserted a paragraph the translation of which reads

as follows:

We should like frankly and respectfully to make it of record that the resolution of this

court, denying our motion for reconsideration, is absolutely erroneous and constitutes anoutrage to the rights of the petitioner Felipe Salcedo and a mockery of the popular will

expressed at the polls in the municipality of Tiaong, Tayabas. We wish to exhaust all the

means within out power in order that this error may be corrected by the very court whichhas committed it, because we should not want that some citizen, particularly some voter

of the municipality of Tiaong, Tayabas, resort to the press publicly to denounce, as he has

a right to do, the judicial outrage of which the herein petitioner has been the victim, and

because it is our utmost desire to safeguard the prestige of this honorable court and ofeach and every member thereof in the eyes of the public. But, at the same time we wish to

state sincerely that erroneous decisions like these, which the affected party and his

thousands of voters will necessarily consider unjust, increase the proselytes of

" sakdalism" and make the public lose confidence in the administration of justice.

When the court's attention was called to said paragraph, it required Attorney Vicente J. Franciscoto show cause, if any, why he should not be found guilty of contempt, giving him a period of ten

days for that purpose. In this answer attorney Vicente J. Francisco, far from regretting having

employed the phrases contained in said paragraph in his motion, reiterated them several times

contending that they did not constitute contempt because, according to him it is not contempt totell the truth.

The phrases:

. . . and constitutes an outrage to the rights of the petitioner Felipe Salcedo and a mockeryof the popular will expressed at the polls . . . .

. . . because we should not want that some citizen, particularly some voter of themunicipality of Tiaong, Tayabas, resort to the press publicly to denounce, as he has a

right to do, the judicial outrage . . . .

and ... we wish to state sincerely that erroneous decisions like these, which the affected

party and his thousands of voters will necessarily consider unjust, increase the proselytes

of " sakdalism" and make the public lose confidence in the administration of justice",

disclose, in the opinion of this court, an inexcusable disrespect of the authority of thecourt and an intentional contempt of its dignity, because the court is thereby charged with

no less than having proceed in utter disregard of the laws, the rights of the parties, and of

the untoward consequences, or with having abused its power and mocked and flouted therights of Attorney Vicente J. Francisco's client, because the acts of outraging and

mocking from which the words "outrage" and "mockery" used therein are derived, mean

exactly the same as all these, according to the Dictionary of the Spanish Language published by the Spanish Academy (Dictionary of the Spanish Language, 15th ed., pages

132 and 513).


26/98

The insertion of the phrases in question in said motion of Attorney Vicente J. Francisco, for

many years a member of the Philippine bar, was neither justified nor in the least necessary,

because in order to call the attention of the court in a special way to the essential points reliedupon in his argument and to emphasize the force thereof, the many reasons stated in his said

motion were sufficient and the phrases in question were superfluous. In order to appeal to reason

and justice, it is highly improper and amiss to make trouble and resort to threats, as AttorneyVicente J. Francisco has done, because both means are annoying and good practice can neversanction them by reason of their natural tendency to disturb and hinder the free exercise of a

serene and impartial judgment, particularly in judicial matters, in the consideration of questions

submitted for resolution.

There is no question that said paragraph of Attorney Vicente J. Francisco's motion contains a

more or less veiled threat to the court because it is insinuated therein, after the author shows thecourse which the voters of Tiaong should follow in case he fails in his attempt, that they will

resort to the press for the purpose of denouncing, what he claims to be a judicial outrage of

which his client has been the victim; and because he states in a threatening manner with the

intention of predisposing the mind of the reader against the court, thus creating an atmosphere of prejudices against it in order to make it odious in the public eye, that decisions of the nature of

that referred to in his motion promote distrust in the administration of justice and increase the proselytes of sakdalism, a movement with seditious and revolutionary tendencies the activities ofwhich, as is of public knowledge, occurred in this country a few days ago. This cannot mean

otherwise than contempt of the dignity of the court and disrespect of the authority thereof on the

part of Attorney Vicente J. Francisco, because he presumes that the court is so devoid of thesense of justice that, if he did not resort to intimidation, it would maintain its error

notwithstanding the fact that it may be proven, with good reasons, that it has acted erroneously.

As a member of the bar and an officer of this court, Attorney Vicente J. Francisco, as any

attorney, is in duty bound to uphold its dignity and authority and to defend its integrity, not only

because it has conferred upon him the high privilege, not á right (Malcolm, Legal Ethics, 158

and 160), of being what he now is : a priest of justice ( In re Thatcher, 80 Ohio St. Rep., 492,669), but also because in so doing, he neither creates nor promotes distrust in the administration

of justice, and prevents anybody from harboring and encouraging discontent which, in many

cases, is the source of disorder, thus undermining the foundation upon which rests that bulwarkcalled judicial power to which those who are aggrieved turn for protection and relief.

It is right and plausible that an attorney, in defending the cause and rights of his client, should doso with all the fervor and energy of which he is capable, but it is not, and never will be so for him

to exercise said right by resorting to intimidation or proceeding without the propriety and respect

which the dignity of the courts require. The reason for this is that respect of the courts guarantees

the stability of their institution. Without such guaranty, said institution would be resting on avery shaky foundation.

At this juncture, it is not amiss to invite attention to the provisions of rule 1 of Chapter 2 of LegalEthics, which reads as follows:


27/98

It is the duty of the lawyer to maintain towards the courts a respectful attitude, not for the

sake of the temporary incumbent of the judicial office, but for the maintenance of its

importance. Judges, not being wholly free to defend themselves, are peculiarly entitled toreceive the support of the bar against unjust criticism and clamor. Whenever there is

proper ground for serious complaint of a judicial officer, it is the right and duty of the

lawyer to submit his grievances to the proper authorities. In such cases but not otherwise,such charges should be encouraged and the person making them should be protected.

In his defense, Attorney Vicente J. Francisco states that it was not his intention to offend thecourt or to be recreant to the respect thereto but, unfortunately, there are his phrases which need

no further comment. Furthermore, it is a well settled rule in all places where the same conditions

and practice as those in this jurisdiction obtain, that want of intention is no excuse from liability

(13 C.J., 45). Neither is the fact that the phrases employed are justified by the facts a validdefense:

"Where the matter is abusive or insulting, evidence that the language used was justified by the

facts is not admissible as a defense. Respect for the judicial office should always be observedand enforced." ( In re Stewart, 118 La., 827; 43 S., 455.) Said lack or want of intention

constitutes at most an extenuation of liability in this case, taking into consideration AttorneyVicente J. Francisco's state of mind, according to him when he prepared said motion. This court

is disposed to make such concession. However, in order to avoid a recurrence thereof and to

prevent others by following the bad example, from taking the same course, this court considers it

imperative to treat the case of said attorney with the justice it deserves.

Briefly, this court is of the opinion and so holds that the act committed by Attorney Vicente J.

Francisco constitutes a contempt in the face of the court (in facie curiae) and, reiterating whatthis court said on another occasion that the power to punish for contempt is inherent in the courts

in order that there be due administration of justice ( In re Kelly, 35 Phil., 944), and so that theinstitution of the courts of justice may be stable and said courts may not fail in their mission, saidattorney is ordered to pay a fine of P200 within the period of ten days, and to be reprimanded,

and he is hereby reprimanded; and it is ordered that the entire paragraph of his motion containing

the phrases which as has been stated, constitute contempt of court be stricken from the record deoficio. So ordered.

Avanceña, C.J., Villa-Real, Abad Santos, Hull Imperial, Butte, and Goddard, JJ., concur.

Separate Opinions

MALCOLM, J., dissenting:

From 1918 when in the case of the United States vs. Bustos (37 Phil., 731), it was declared that"The guaranties of a free speech and a free press include the right to criticize judicial conduct",

until the present, I have consistently and steadfastly stood for the fullest expression of freedom of

speech. I stand for the application of that basic principle now.


28/98

The language which the majority of the court finds contemptuous and punishes as such is found

in a second motion of reconsideration in an election case, a class of cases out of which arise

more bitter feelings than any other. The motion is phrased in vigorous language, in fact vigorousand convincing enough to induce the granting of a rehearing on the merits. It is hardly necessary

to add that that action was taken entirely uninfluenced by the peroration of the motion here

judicially penalized.

Following microscopic examination in the majority opinion of the paragraph, attention is

directed to words which prophesy the loss of public confidence in the courts and the growth ofSakdalism. If, however, the passage flowing from the pen of Mr. Francisco be set side by side

with passages written by the late Mr. Justice Johnson in the case of Garchitorena vs. Crescini

and Imperial ( [1918, 39 Phil., 258), little difference in phraseology will be noted. One came

from a lawyer and is condemned; the other came from a judge and is accepted.

The main burden of the charge is that threats against this court were made by the respondent.

Admittedly a lawyer should maintain a respectful attitude towards the courts. Any attempt on the

part of a lawyer to influence the action of the court by intimidation will justify not alone punishment for contempt but also disbarment. But does anyone believe that the action taken in

this case has been obtained by coercion or could be obtained by such methods? Judges are ofsterner stuff than weak plants which bend with every wind.1avvphil.ñet

The lawyer possesses the privilege of standing up for his rights even in the face of a hostilecourt. He owes entire devotion to the interests of his client. His zeal when a case is lost, which he

thinks should have been won, may induce intemperate outbursts. Courts will do well charitably

to overlook professional improprieties of the moment induced by chagrin at losing a case.

So that it may not be assumed that the position taken by me is isolated or peculiar, permit me to

offer a few corroborative authorities.

Mr. Chief Justice Sharswood of the Supreme Court of Pennsylvania was the pioneer authority in

the subject of professional ethics. Speaking for the court in one case, he said: "No class of thecommunity ought to be allowed freer scope in the expression or publication of opinions as to the

capacity, impartiality or integrity of judges than members of the bar. ... To say that an attorney

can only act or speak on this subject under liability to be called to account and to be deprived ofhis profession and livelihood by the very judge or judges whom he may consider it his duty to

attack and expose, is a position too monstrous to be entertained for a moment under our present

system." ( Ex parte Steinman [1880], 40 Am. Rep., 637.)

Mr. Justice Brewer was first a member of the Supreme Court of Kansas and subsequently was

elevated to the Supreme Court of the United States. In the former capacity, in sustaining a

contempt of court, he nevertheless observed: "We remark again, that a judge will generally andwisely pass unnoticed any mere hasty and unguarded expression of

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Cases on Introduction to Legal Ethics

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