Republic of the Philippines SUPREME COURT Manila THIRD DIVISION A.M. No. RTJ-07-2045 January 19, 2010 OFFICE OF THE COURT ADMINISTRATOR, Complainant, vs. JUDGE HARUN B. ISMAEL, Respondent. R E S O L U T I O N CORONA, J.: On April 25 to May 14, 2005, a judicial audit was conducted in the Regional Trial Court (RTC) of Pagadian, Zamboanga del Sur, Branch 22, presided over by respondent Judge Harun B. Ismael. The judicial audit resulted in the issuance of a memorandum dated June 9, 2005 by the Office of Court Administrator (OCA) 1 directing respondent to explain his failure to decide and act on current and inherited cases, as well as to resolve incidents in various cases pending before him, within the reglementary period provided by law. 2 Respondent was likewise directed to inform the OCA if cases already submitted for decision or resolution had in fact been decided or resolved within the reglementary period. 3 Consequently, respondent was ordered to immediately cease hearing cases in his sala and confine himself to deciding or resolving cases submitted for decision or resolution. In respondent’s stead, Judge Edilberto G. Absin was directed to handle active cases, other than cases submitted for decision, until respondent could comply with the directives or until he retired. The OCA likewise directed Atty. Insor A. Pantaran to explain the results of the audit, as was required of respondent. Atty. Pantaran was the clerk of court of the RTC of Pagadian, Zamboanga del Sur, Branch 22 during respondent’s tenure. Atty. Pantaran complied with the June 9, 2005 memorandum in a letter dated May 19, 2006. 4 In its memorandum dated February 26, 2007, 5 the OCA noted that respondent failed to fully comply with its directives in the June 9, 2005 memorandum. Neither did he ask for extensions of time within which to comply with the subject directives. On examination of Atty. Pantaran’s May 19, 2006 letter/compliance, the OCA found that respondent had partially complied with the directives of the June 9, 2005 memorandum, having already decided or resolved some of the cases he was directed to act on. Nonetheless, the OCA established that respondent committed gross inefficiency when he unduly delayed actions in a huge number of cases. The OCA recommended that respondent be fined P 20,000. Furthermore, the OCA recommended that Judge Absin be directed to decide and resolve the cases pending in respondent’s sala. The OCA likewise directed the designation of Judge Loreto C. Quinto 6 as assisting judge. The factual findings of the OCA are well-taken. However, we vary the penalty imposed in the light of the circumstances of the case. It is settled that failure to decide or resolve cases within the reglementary period constitutes gross inefficiency 7 and is not excusable. It is a less serious charge 8 and is punishable by either suspension from office without salaries and benefits for not less than one month but not more than three months, or a fine of more than P 10,000 but not exceeding P 20,000. 9 1avvphi1 The New Code of Judicial Conduct requires that a judge shall perform all judicial duties, including the delivery of reserved decisions, efficiently, fairly and with reasonable promptness. 10 Rule 3.05, Canon 3 of the Code 11 admonishes all judges to dispose of the court’s business promptly and decide cases 12 within the period specified in Section 15 (1) and (2), Article VIII of the Constitution. 13
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Republic of the PhilippinesSUPREME COURT
Manila
THIRD DIVISION
A.M. No. RTJ-07-2045 January 19, 2010
OFFICE OF THE COURT ADMINISTRATOR, Complainant, vs.JUDGE HARUN B. ISMAEL, Respondent.
R E S O L U T I O N
CORONA, J.:
On April 25 to May 14, 2005, a judicial audit was conducted in the Regional Trial Court (RTC) of Pagadian, Zamboanga del Sur, Branch 22, presided over by respondent Judge Harun B. Ismael.
The judicial audit resulted in the issuance of a memorandum dated June 9, 2005 by the Office of Court Administrator (OCA)1 directing respondent to explain his failure to decide and act on current and inherited cases, as well as to resolve incidents in various cases pending before him, within the reglementary period provided by law.2 Respondent was likewise directed to inform the OCA if cases already submitted for decision or resolution had in fact been decided or resolved within the reglementary period.3
Consequently, respondent was ordered to immediately cease hearing cases in his sala and confine himself to deciding or resolving cases submitted for decision or resolution. In respondent’s stead, Judge Edilberto G. Absin was directed to handle active cases, other than cases submitted for decision, until respondent could comply with the directives or until he retired.
The OCA likewise directed Atty. Insor A. Pantaran to explain the results of the audit, as was required of respondent. Atty. Pantaran was the clerk of court of the RTC of Pagadian, Zamboanga del Sur, Branch 22 during respondent’s tenure. Atty. Pantaran complied with the June 9, 2005 memorandum in a letter dated May 19, 2006.4
In its memorandum dated February 26, 2007,5 the OCA noted that respondent failed to fully comply with its directives in the June 9, 2005 memorandum. Neither did he ask for extensions of time within which to comply with the subject directives.
On examination of Atty. Pantaran’s May 19, 2006 letter/compliance, the OCA found that respondent had partially complied with the directives of the June 9, 2005 memorandum, having already decided or resolved some of the cases he was directed to act on. Nonetheless, the OCA established that respondent committed gross inefficiency when he unduly delayed actions in a huge number of cases. The OCA recommended that respondent be finedP20,000. Furthermore, the OCA recommended that Judge Absin be directed to decide and resolve the cases pending in respondent’s sala. The OCA likewise directed the designation of Judge Loreto C. Quinto6 as assisting judge.
The factual findings of the OCA are well-taken. However, we vary the penalty imposed in the light of the circumstances of the case.
It is settled that failure to decide or resolve cases within the reglementary period constitutes gross inefficiency7and is not excusable. It is a less serious charge8 and is punishable by either suspension from office without salaries and benefits for not less than one month but not more than three months, or a fine of more than P10,000 but not exceeding P20,000.91avvphi1
The New Code of Judicial Conduct requires that a judge shall perform all judicial duties, including the delivery of reserved decisions, efficiently, fairly and with reasonable promptness.10 Rule 3.05, Canon 3 of the Code11admonishes all judges to dispose of the court’s business promptly and decide cases12 within the period specified in Section 15 (1) and (2), Article VIII of the Constitution.13
We emphasize that the administration of justice is a joint responsibility of the judge and the lawyer.14 As aptly held in Salvador v. Judge Limsiaco:15
A judge’s foremost consideration is the administration of justice. Thus, he should follow the time limit set for deciding cases. xxx Failure to comply within the mandated period constitutes a serious violation of the constitutional right of the parties to a speedy disposition of their cases. It also undermines the people’s faith and confidence in the judiciary, lowers its standards and brings it to disrepute. Decision making, among other duties, is the most important duty of a member of the bench. (citations omitted)
Pursuant to A.M. No. 02-9-02-SC,16 this administrative case against respondent shall also be considered as a disciplinary proceeding against him as a member of the bar.17 Violation of the basic tenets of judicial conduct embodied in the New Code of Judicial Conduct for the Philippine Judiciary and the Code of Judicial Conduct constitutes a breach of Canons 118 and 1219 as well as Rules 1.0320 and 12.0421 of the Code of Professional Responsibility (CPR).
WHEREFORE, respondent Judge Harun B. Ismael is hereby found GUILTY of gross inefficiency and violation of Section 5, Canon 6 of the New Code of Judicial Conduct for the Philippine Judiciary for which he is FINED in the amount of P20,000.
Respondent is likewise found GUILTY of violation of Canons 1 and 12 as well as Rules 1.03, 10.03 and 12.04 of the Code of Professional Responsibility for which he is FINED in the amount of P10,000.
Let a copy of this resolution be attached to the personal records of respondent in the Office of Administrative Services, the Office of the Court Administrator and the Office of the Bar Confidant.
SO ORDERED.
RENATO C. CORONAAssociate JusticeChairperson
WE CONCUR:
PRESBITERO J. VELASCO, JR.Associate Justice
ANTONIO EDUARDO B. NACHURAAssociate Justice
DIOSDADO M. PERALTAAssociate Justice
JOSE C. MENDOZAAssociate Justice
Republic of the PhilippinesSUPREME COURT
Manila
EN BANC
A.C. No. 4058 March 12, 1998
BENGUET ELECTRIC COOPERATIVE, INC. complainant, vs.ATTY. ERNESTO B. FLORES, respondent.
PANGANIBAN, J.:
The profession of law exacts the highest standards from its members and brooks no violation of its code of conduct. Accordingly, a lawyer who trifles with judicial processes, engages in forum shopping and blatantly lies in his pleadings must be sanctioned.
The Case
This is an administrative complaint against Atty. Ernesto Flores filed by Benguet Electric Cooperative, Inc. (BENECO) before this Court on July 5, 1993, seeking his removal or suspension from the bar for forum shopping, which amounted to "grave misconduct, . . . unduly delaying the administration of justice, and violating with impunity his oath of office and applicable laws and jurisprudence." 1
After the respondent submitted his Comment, dated August 21, 1993, we referred the case to the Integrated Bar of the Philippines (IBP) on September 27, 1993 for investigation, report and recommendation. On August 15, 1997, we received a resolution from the IBP Board of Governors, finding respondent guilty of violating Canons 10 and 12 of the Code of Professional Responsibility and recommending his suspension from the practice of law for a period of six months, viz:
RESOLUTION NO. XII-97-149
Adm. Case NO. 4058
Benguet Electric Cooperative, Inc. vs.
Atty. Ernesto B. Flores
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, hereinmande [sic] part of this Resolution/Decision as Annex "A"; and finding the recommendation therein to be fully supported by the evidence on record and the applicable laws and rules, Respondent Atty. Ernesto Flores is hereby SUSPENDED from the practice of law for six (6) months for violating the provision of Canon[s] 10 and 12 of the Code of Professional Responsibility. 2
The Facts
Because the parties 3 agreed to dispense with the presentation of testimonial evidence, the case was submitted for resolution on the basis of their documentary evidence. As found by Investigating Commissioner Plaridel C. Jose, the facts are as follows:
. . . On February 25, 1993, Labor Arbiter Irenarco Rimando of the National Labor Relations Commission, Regional Arbitration Branch, Cordillera Administrative Region, Baguio City, issued a Writ of Execution (. . .) in NLRC Case No. RAB-1-0313-84 to enforce the decision rendered by the Supreme Court on May 18, 1992 in G.R. No. 89070 (Benguet Electric Cooperative, Inc. vs. NLRC, 209 SCRA 55). The Writ of Execution was issued on motion of Benguet Electric Cooperative (BENECO for short) to collect the amount of P344,000.00 which it paid to Peter Cosalan during the pendency of the case before the Supreme Court, on the basis of its decision ordering the respondent board members "to reimburse petitioner BENECO any amount that it may be compelled to pay to respondent Cosalan by virtue of the decision of Labor Arbiter Amado T. Adquilen."
After issuance of the writ of execution, the respondent, as new counsel for the losing litigant-members of the BENECO Board of Directors, filed a Motion for Clarification with the Third Division of the Supreme Court in G.R. No. 89070, the minute resolution to wit: "to note without action the aforesaid motion".
Thereafter, the respondent instituted a suit docketed as Civil Case NO. 2738-R (. . .) with the Regional Trial Court, Branch 7, Baguio City, seeking to enjoin the defendants Clerk of Court, et al. from levying on their properties in satisfaction of the said writ of execution. That case, however, was dismissed by the Presiding Judge Clarence Villanueva in his Order dated March 18, 1993 (. . .).
Accordingly, the Office of the Clerk of Court, MTC, Baguio City, through Sheriff III Wilfredo Mendez, proceeded to levy on the properties of the losing board members of BENECO. Thus, a sale at public auction was set on June 1, 1993, at 10:00 o'clock in the morning in front of the Baguio City Hall, per Sheriff's Notice of Sale dated May 4, 1993 (. . .), of the properties of Abundio Awal and Nicasio Aliping[,] two of the losing members of the Board of Directors of BENECO in the aforementioned case.
Respondent claims in his comment (. . .) that Branch 7, motu proprio, dismissed Civil Case No. 2738-R for lack of jurisdiction on March 18, 1993, which dismissal was [sic] became final due to respondent's failure to perfect an appeal therefrom which claim according to the complainant, constitute[s] deliberate misrepresentation, if not falsehood, because the respondent indeed interposed an appeal such that on May 11, 1993, the RTC 7 of Baguio City transmitted the entire record of Civil Case No. 2738-8 to the Court of Appeals per certified machine copy of the letter transmittal of same date (. . .).
While respondent "never essentially intended to assail the issuance by the NLRC of the Writ of Execution . . . nor sought to undo it" (. . .) the complaint in Civil Case No. 2738-R which he filed prays for the immediate issuance of a temporary restraining order and/or preliminary writ of injunction for defendants Clerk of Court and Ex-Officio City Sheriff to cease and desist from enforcing the execution and levy of the writ of execution issued by the NLRC-CAR, pending resolution of the main action in said court (. . .) which complainant likewise claims as an unprocedural maneuver to frustrate the execution of the decision of the Supreme Court in G.R. No. 89070 in complete disregard of settled jurisprudence that regular courts have no jurisdiction to hear and decide questions which arise and are incidental to the enforcement of decisions, orders and awards rendered in labor cases citing the case of Cangco vs. CA, 199 SCRA 677, a display of gross ignorance of the law.
On May 26, 1993, respondent again filed for Abundio Awal and Nicasio Aliping with the Regional Trial Court, Branch 9, La Trinidad, Benguet, separate complaints for Judicial Declaration of Family Home Constituted, Ope Lege, and thus Exempt from Levy and Execution the subject properties with Damages, etc. docketed as Civil Cases Nos. 93-F-0414 (. . .) and 93-F-0415 (. . .), which are essentially similar actions to enjoin the enforcement of the judgment rendered in NLRC Case No. RAB-1-0313-84. He also filed an urgent MotionEx-parte (. . .) praying for temporary restraining order in these two (2) cases.
The complainant further alleges that respondent's claim for damages against the defendant Sheriff is another improper and unprocedural maneuver which is likewise a violation of respondent's oath not to sue on groundless suit since the said Sheriff was merely enforcing a writ of execution as part of his job.
Recommendation of the IBP
As noted earlier, Investigating Commissioner Plaridel C. Jose recommended, and the IBP Board of Governors concurred, that respondent be suspended from the bar for six months for:
1. Falsehood, for stating in his comment before this Court that the order of the RTC dismissing the complaint in Civil Case No. 2738-R was not appealed on time
2. Failure to comply with Supreme Court Circular No. 28-91 on forum shopping
Commissioner Jose ratiocinated:
A cursory glance of (sic) . . . the complaint filed by the respondent in Civil Case No. 2738-R before the RTC of Baguio City, which complaint was signed and verified under oath by the respondent, reveals that it lacks the certification required by Supreme Court Circular No. 28-91 which took effect on January 1, 1992 to the effect that "to the best of his knowledge, no such action or proceeding is pending in the Supreme Court, Court of Appeals or different divisions thereof or any tribunal or agency. If there is any other action pending, he must state the status of the same. If he should learn that a similar action or proceeding has been filed or pending before the Supreme Court, Court of Appeals or different divisions thereof or any tribunal or agency[,] he should notify the court, tribunal or agency within five (5) days from such notice."
Among the other penalties, the said circular further provides that the lawyer may also be subjected to disciplinary proceedings for non-compliance thereof.
In sum, it is clear that the respondent violated the provisions of Canon[s] 10 and 12 of the Code of Professional Responsibility under which the lawyer owes candor, fairness and good faith to the court and exert[s] every effort and consider[s] it his duty to assist in the speedy and efficient administration of justice. 4
This Court's Ruling
We adopt and affirm the recommendation of the IBP suspending the respondent from the bar, but we increase the period from six (6) months to one (1) year and six (6) months.
Forum Shopping
Circular No. 28-91, 5 dated September 4, 1991 which took effect on January 1, 1992, requires a certificate of non-forum shopping to be attached to petitions filed before this Court and the Court of Appeals. This circular was revised on February 8, 1994. The IBP found that the respondent had violated it, because the complaint he filed before the RTC of Baguio City "lack[ed] the certification required by Supreme Court Circular No. 28-91." 6
We distinguish. Respondent's failure to attach the said certificate cannot be deemed a violation of the aforementioned circular, because the said requirement applied only to petitions filed with this Court and the Court of Appeals. 7 Likewise inapplicable is Administrative Circular No. 04-94 dated February 8, 1994 which extended the requirement of a certificate of non-forum shopping to all initiatory pleadings filed in all courts and quasi-judicialagencies other than this Court and the Court of Appeals. Circular No. 04-94 became effective only on April 1, 1994, but the assailed complaint for injunction was filed on March 18, 1993, and the petition for the constitution of a family home was instituted on May 26, 1993.
Be that as it may, respondent is still guilty of forum shopping. In Chemphil Export and Import Corporation vs. Court of Appeals, 8 this Court declared that "(t)he rule against forum shopping has long been established and subsequent circulars 9 of this Court merely formalized the prohibition and provided the appropriate penalties against transgressors." The prohibition is found in Section 1(e) of Rule 16 and Section 4 of Rule 2 of the 1964 Rules of Court, which provide:
Sec. 1. Grounds. — Within the time for pleading, a motion to dismiss the action may be made on any of the following grounds:
xxx xxx xxx
(e) That there is another action pending between the same parties for the same cause;
xxx xxx xxx 10
Sec. 4. Effect of splitting a single cause of action. — If two or more complaints are brought for different parts of a single cause of action, the filing of the first may be pleaded in abatement of the other or others, in accordance with section 1(e) of Rule 16, and a judgment upon the merits in any one is available as a bar in the others. 11
The prohibition is also contained in Circular No. 28-91. This circular did not only require that a certification of non-forum shopping be attached to the petitions filed before this Court or the Court of Appeals; it also decreed that forum shopping constituted direct contempt of court and could subject the offending lawyer to disciplinary action. The third paragraph thereof reads:
3. Penalties.
(a) Any violation of this Circular shall be a cause for the summary dismissal of the multiple petition or complaint.
(b) Any willful and deliberate forum shopping by any party and his lawyer wit the filing of multiple petitions and complaints to ensure favorable action shall constitute direct contempt of court.
(c) The submission of false certification under Par. 2 of the Circular shall likewise constitute contempt of Court, without prejudice to the filing of criminal action against the guilty party. The lawyer may also be subjected to disciplinary proceedings. (Emphasis supplied.)
The foregoing were substantially reproduced in Revised Circular No. 28-91 12 and Administrative Circular No. 04-94. 13
In a long line of cases, this Court has held that forum shopping exists when, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another, 14 or when he institutes two or more actions or proceedings grounded on the same cause, on the gamble that one or the other court would make a favorable disposition. 15 The most important factor in determining the existence of forum shopping is the "vexation caused the courts and parties-litigants by a party who asks different courts to rule on the same or related causes or grant the same or substantially the same reliefs." 16
After this Court rendered its Decision 17 in Benguet Electric Cooperative, Inc. vs. National Labor Relations Commission, et al. 18 and upon motion of BENECO, Labor Arbiter Irenarco R. Rimando issued a writ of execution19 ordering the clerk of court and ex officio city sheriff of the Municipal Trial Court of Baguio City to levy on and sell at public auction personal and real property of the members of the Board of Directors of BENECO.
On March 18, 1993, Respondent Flores, acting as counsel for BENECO Board Members Victor Laoyan, Nicasio Aliping, Lorenzo Pilando and Abundio Awal, filed with the RTC an injunction suit praying for the issuance of a temporary restraining order (TRO) "to preserve the status quo as now obtaining between the parties," as well as a writ of preliminary preventive injunction ordering the clerk of court and the ex officio city sheriff of the MTC of Baguio to "cease and desist from enforcing by execution and levy the writ of execution from the NLRC-CAR, pending resolution of the main action raised in court." 20
When this injunction case was dismissed, Respondent Flores filed with another branch of the RTC two identical but separate actions both entitled "Judicial Declaration of Family Home Constituted, ope lege, Exempt from Levy and Execution; with Damages, etc.," docketed as Civil Case Nos. 93-F-0414 and 93-F-0415. 21 The said complaints were supplemented by an "Urgent Motion Ex Parte" 22 which prayed for an order to temporarily restrain Sheriff Wilfredo V. Mendez from proceeding with the auction sale of plaintiffs' property "to avoid rendering ineffectual and functus [oficio] any judgment of the court later in this [sic] cases, until further determined by the court."
Civil Case Nos. 93-F-0414 and 93-F-0415 are groundless suits. Modequillo vs. Breva, 23 reiterated in Manacop vs.Court of Appeals, 24 shows the frivolity of these proceedings:
Under the Family Code, a family home is deemed constituted on a house and lot from the time it is occupied as a family residence. There is no need to constitute the same judicially or extrajudicially as required in the Civil Code. If the family actually resides in the premises, it is, therefore, a family home as contemplated by law. Thus, the creditors should take the necessary precautions to protect their interest before extending credit to the spouses or head of the family who owns the home.
xxx xxx xxx
The exemption provided as aforestated is effective from the time of the constitution of the family home as such, and lasts so long as any of its beneficiaries actually resides therein.
Adhering to the Court's declaration in said cases, the subject properties are deemed constituted as family homes by operation of law under Article 153 of the Family Code.
The suits for the constitution of a family home were not only frivolous and unnecessary; they were clearly asking for reliefs identical to the prayer previously dismissed by another branch of the RTC, i.e, to forestall the execution of a final judgment of the labor arbiter. That they were filed ostensibly for the judicial declaration of a family home was a mere smoke screen; in essence, their real objective was to restrain or delay the enforcement of the writ of execution. In his deliberate attempt to obtain the same relief in two different courts, Respondent Flores was obviously shopping for a "friendly" forum which would capitulate to his improvident plea for an injunction and was thereby trifling with the judicial process. 25
We remind the respondent that, under the Code of Professional Responsibility, 26 he had a duty to assist in the speedy and efficient administration of justice. 27 The Code also enjoins him from unduly delaying a case by impeding the execution of a judgment or by misusing court processes. 28
In consonance with Millare vs. Montero 29 and Garcia vs. Francisco, 30 respondent should be suspended from the practice of law for one year. In Millare, the respondent filed with different courts a total of six appeals, complaints and petitions which frustrated and delayed the execution of a final judgment. Holding that "respondent 'made a mockery of the judicial processes' and disregarded canons of professional ethics in intentionally frustrating the rights of a litigant in whose favor a judgment in the case was rendered [and], thus, 'abused procedural rules to defeat the ends of substantial justice,'" 31 this Court suspended the respondent from the practice of law for one year.
In Garcia, the respondent was also suspended for one year from the practice of law, for violating the proscription against forum shopping. This Court held that "he deserve[d] to be sanctioned, not only as a punishment for his misconduct but also as a warning to other lawyers who may be influenced by his example." 32
Falsehood
The investigating commissioner also held respondent liable for committing a falsehood because, in this administrative case, he stated in his comment that he had not "perfected an appeal on the dismissal" of his petition for injunction. In his said comment, the respondent stated:
Branch 7 (of the RTC) motu proprio, dismissed the case for lack of jurisdiction on March 18, 1993. Not having perfected an appeal on the dismissal, the order of dismissal became final under the Rules 15 days after its receipt by respondent on record, or before April 6, 1993. So that today this case is no longer pending.
xxx xxx xxx
It should be noted that when Civil Case Nos. 93-F-0414 and 93-F-0415 for family homes and damages were filed in the court below on May 26, 1993, Civil Case NO. 2378-R which seems to give basis to the present Complaint was deemed terminated, there being no appeal formally taken and perfected in accordance with the Rules.
xxx xxx xxx
And that precisely was the primal reason why respondent decided not to appeal any further anymore [sic] the order of dismissal for lack of jurisdiction of the court below in Civil Case No. 2738, and let it be deemed final by the Rules and jurisprudence. 33 (Emphasis supplied.)
The indelible fact, however, is that respondent did file an appeal which was perfected later on. The original records of the injunction suit had been transmitted to the appellate court. 34 Moreover, the Court of Appeals issued a resolution dismissing the appeal. 35 Thus, in denying that he had appealed the decision of the RTC, respondent was making a false statement.
Respondent argues that the withdrawal of his appeal means that no appeal was made under Section 2 of Rule 50 of the Rules of Court. The pertinent provisions of Rule 50 36 read:
Sec. 2. Effect of dismissal. — Fifteen (15) days after the dismissal of an appeal, the clerk shall return to the court below the record on appeal with a certificate under the seal of the court showing that the appeal has been dismissed. Upon the receipt of such certificate in the lower court the case shall stand there as though no appeal had ever been taken, and the judgment of the said court may be enforced with the additional costs allowed by the appellate court upon dismissing the appeal.
xxx xxx xxx
Sec. 4. Withdrawal of appeal. — An appeal may be withdrawn as of right at any time before the filing of appellee's brief. . . . The withdrawal of an appeal shall have the same effect as that of a dismissal in accordance with section 2 of this rule.
Respondent's explanation misses the point. True, he withdrew his appeal. But it is likewise true that he had actually filed an appeal, and that this was perfected. False then is his statement that no appeal was perfected in the injunction suit. Worse, he made the statement before this Court in order to exculpate himself, though in vain, from the charge of forum shopping.
A lawyer must be a disciple of truth. Under the Code of Professional Responsibility, he owes candor, fairness and good faith to the courts. 37 He shall neither do any falsehood, nor consent to the doing of any. He also has a duty not to mislead or allow the courts to be misled by any artifice. 38
For this offense, we suspend the respondent from the practice of law for another year. True, in Ordonio vs.Eduarte, 39 Porac Trucking, Inc., vs. Court of Appeals 40 and Erectors, Inc. vs. NLRC, 41 we imposed a suspension of only six months for a similar malfeasance. But in Flores' case, his falsehood is aggravated by its brazenness, for it was committed in an attempt, vain as it was, to cover up his forum shopping.
Before we close, we note that this simple case was referred to the IBP on September 27, 1993. It was deemed submitted for resolution per the investigating commissioner's order dated May 10, 1995. However, the investigating commissioner submitted his report only on May 5, 1997. Moreover, the IBP transmitted its recommendation to the Court only through a letter dated July 31, 1997, which was received by the Office of the Bar Confidant on August 15, 1997. Why it took the IBP almost four years to finish its investigation of the case and over two years from the date the parties filed their last pleadings to resolve it escapes us. After all, the case did not require any trial-type investigation, and the parties submitted only documentary evidence to prove or rebut their respective cases. Thus, we find it opportune to urge the IBP to hasten the disposition of administrative cases and to remind it that this Court gives it only ninety days to finish its investigation, report and recommendation. Should it require more time, it should file with the Court a request for extension, giving the reason for such request.
WHEREFORE, for trifling with judicial processes by resorting to forum shopping, Respondent Ernesto B. Flores is hereby SUSPENDED from the practice of law for a period of ONE (1) YEAR and, for violating his oath and the Canon of Professional Responsibility to do no falsehood, he is SUSPENDED for another period of ONE (1) YEAR, resulting in a total period of TWO (2) YEARS, effective upon finality of this Decision. He is WARNED that a repetition of a similar misconduct will be dealt with more severely.
Let a copy of this Decision be included in his files which are with the Office of the Bar Confidant, and circularized to all courts and to the Integrated Bar of the Philippines.
EDUARDO R. BALAOING, complainant, vs.JUDGE LEOPOLDO CALDERON, respondent.
A.M. No. RTJ-676. April 27, 1993.
EDUARDO R. BALAOING, complainant, vs.HON. SANTIAGO MALIWANAG, respondent.
SYLLABUS
1. LEGAL ETHICS; COUNSEL'S WANTON DISREGARD OF COURT'S STERN WARNING NOT TO AGAIN FILE BASELESS AND FRIVOLOUS ADMINISTRATIVE COMPLAINTS AND HIS ADAMANT REFUSAL TO ABIDE BY CANON 11, RULE 11.03 AND RULE 11.04, CODE OF PROFESSIONAL RESPONSIBILITY IS GROUND FOR DISBARMENT. — Complainant Balaoing went out of bounds when he filed his baseless and frivolous administrative complaints against respondent Judges Calderon and Maliwanag, with no other plain and clear purpose than to harass respondent Judges, and thus, exact vengeance on them for rendering adverse judgments against him and his clients. These acts of complainant Balaoing run counter to the explicit mandate of the Code of Professional Responsibility, to wit: CANON 11 — A LAWYER SHALL OBSERVE AND MAINTAIN THE RESPECT DUE TO THE COURTS AND TO JUDICIAL OFFICERS AND SHOULD INSIST ON SIMILAR CONDUCT BY OTHERS . . . Rule 11.03 — A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the Courts. Rule 11.04 — A lawyer shall not attribute to a Judge motives not supported by the record or have no materiality to the case. We have painstakingly reviewed the records of these cases and find the present administrative complaints of Atty. Balaoing against Judge Calderon, Jr. and his OIC Leonor Maniago, and against Judge Maliwanag, just as frivolous and baseless as the previous ones. Like before, his present complaints are based on his personal interpretation of the law and not on material allegations of fact, substantiated by solid evidence. This We cannot countenance. Complainant Balaoing's wanton disregard of Our stern warning not to again file baseless and frivolous complaints which only clog the already full dockets of this Court instead of serve the ends of justice, and his adamant refusal to abide by the above-quoted provisions of the Code of Professional Responsibility which serve to regulate a lawyer's conduct in this jurisdiction, have shown complainant Balaoing's unfitness to hold the license to practice law.
D E C I S I O N
PER CURIAM p:
This is the latest of the several administrative complaints filed by Atty. Eduardo R. Balaoing against different judges of Olongapo City and Zambales.
The first complaint was dated February 17, 1989, entitled "Atty. Balaoing vs. Hon. Jaime Dojillo as Judge of Municipal Trial Court in Cities, Olongapo City, et al." Said complaint was dismissed for lack of merit through this Court's Resolution dated September 18, 1990. Further, Atty. Balaoing was required to show cause why he should not be disciplinarily dealt with for having suppressed certain material facts of which he was charged with knowledge, and for having engaged in forum shopping. On September 26, 1990, Atty. Balaoing submitted his "Explanation and Motion for Reconsideration." In a Resolution 1 of the Court En Banc, said motion for reconsideration was DENIED, his explanation was DECLARED UNSATISFACTORY and he was SEVERELY CENSURED for having instituted a patently unfounded and frivolous administrative action, and WARNED that the commission by him of the same or similar misconduct will be dealt with more severely.
The second administrative complaint filed by Atty. Eduardo R. Balaoing was against Judge Santiago Maliwanag, RTC, Branch 71, Iba, Zambales, charging them with grave misconduct for their alleged failure and refusal to issue the corresponding writ of execution (pending appeal) prayed for by complainant in his motion filed in Civil Case No. 983-1 (CA-G.R. No. 01234), entitled "TEOFILO ZABALA, et al. vs. EUGENIO BUENO". The Court was disturbed by complainant Balaoing's unrestrained use of unsavory, even defamatory and offensive language against respondent Judge. One glaring example narrates: ". . . It is well to advise Judge Maliwanag not to be wearing his brief (short) while in his chamber during office hours; it is downright undignified, especially so when his body has traces of fungus, which was have been afflicted during his 26 years as Assistant City Fiscal of Olongapo City, a dirty city." (This was vehemently denied by respondent Judge.) The Court, in a Resolution 2 En Banc, dated December 4, 1990, resolved to:
(1) DISMISS the complaint;
(2) SUSPEND complainant from the practice of law for one (1) year; and
(3) IMPOSE upon complainant a FINE of ONE THOUSAND PESOS (P1,000.00), for Violation of the Canons of the Code of Professional Responsibility, with a stern warning that subsequent similar infractions shall be dealt with more severely.
Notwithstanding the above warnings, censure and suspension from the practice of law for one (1) year, Atty. Eduardo R. Balaoing is again before this Court with more administrative complaints filed against not only one, but two judges, the Honorable Leopoldo T. Calderon, Jr. and the Honorable Santiago Maliwanag, of Olongapo City and Zambales, respectively.
On September 25, 1990, Atty. Eduardo R. Balaoing filed a sworn letter-complaint 3 against Judge Leopoldo T. Calderon, Jr. of the Regional Trial Court, Branch 75, Olongapo City, for misconduct, grave abuse of authority and malicious delay in the administration of justice, allegedly committed as follows:
"Complainant alleges that in the matter of implementing the Supreme Court Circular mandating continuous trial, there is no way for it to succeed in so far as respondent Judge is concerned since the latter does not follow the Circular and merely treats it as directory; that at the start of court sessions, it has been the practice of respondent Judge to automatically grant postponements and deferments of the hearing of cases to a later hour whenever his OIC, Leonor Maniago, makes a manifestation in open court that a certain lawyer or party called up requesting that his/her case be postponed or be called later in the day; that respondent Judge drinks a lot with lawyers close to Mayor Gordon and fraternizes with them openly; that with respect to respondent's personal driver, the latter receives his salary both from Mayor Gordon as a casual employee and from the Supreme Court as a judicial aide; and, that respondent Judge sanctions the set up of having his legal researcher, Jaime Dojildo, Jr., to work under the supervision of an OIC who, according to complainant, is grossly inefficient and a notorious swindler with no background in law.
Complainant further alleges that respondent Judge has been maliciously delaying the disposition of several cases pending in his sala.
a. Civil Case No. 418-0-88, where complainant is the counsel for the plaintiff, was filed in 1988. Since the respondent Judge allowed the defendants to keep on postponing the hearings, to date, the case remains pending, without any hearing, for more than one (1) year;
b. Sp. Proc. No. 285, where complainant is the counsel for the Petitioner, the case was submitted for decision on (sic) September 1989. To date, no decision has yet been rendered on the case to the prejudice of the petitioner who is now very old and sickly;
c. In Civil Case No. 157-0-89, where complainant is the plaintiff, respondent Judge in cahoots with his Deputy Sheriff, unlawfully prevented the implementation of the Writ of Possession;
d. In Civil Case No. 253-0-90, where complainant is the Petitioner, the application for the immediate issuance of mandatory injunction was filed on April 27, 1990. To date the same has not yet been acted upon by the respondent Judge." 4
A second letter-complaint 5 dated October 5, 1990, was again filed by Atty. Eduardo R. Balaoing against the same Judge Leopoldo T. Calderon, Jr. and his Officer-in-Charge (OIC) Leonor Maniago charging them both with misconduct, grave abuse of authority and malicious delay in the administration of justice relative to Civil Case No. 201-0-89, entitled "Eduardo R. Balaoing vs. Santiago Maliwanag and Romeo Enriquez." Complainant Balaoing, who is the plaintiff in both cases, alleges that respondent Judge abused his authority by refusing to declare in default the defendants in the above-entitled cases despite their repeated failure to attend the pre-trial conferences and to submit their pre-trial briefs. Complainant further avers that at the scheduled hearing, on October 5, 1990, respondent Judge did not call complainant's case, and was told only three (3) hours later that the reason was because of the motion filed by him for respondent Judge's inhibition, which the latter allegedly refused to resolve.
With respect to the other respondent OIC Leonor Maniago, complainant Balaoing alleges that when he came out of the courtroom, he was castigated by the former for allegedly calling her notorious, swindler, insane, etc.
Respondent Judge Leopoldo T. Calderon, Jr. filed his Comment 6 on November 13, 1991. He asserts that the present administrative complaint filed against him by complainant Balaoing was precipitated by incidents in Civil Case No. 190-0-89 entitled "Atty. Eduardo R. Balaoing vs. Eliseo Gavilan, et al." for Damages, wherein defendant Gavilan defaulted. All the other cases mentioned in the letter-complaint were allegedly included to merely embellish the charges.
The factual backdrop of the Gavilan case shows that complainant Balaoing won in a foreclosure case against one Eliseo Gavilan. After the foreclosed properties (a house and lot) were sold in a public auction, where complainant Balaoing was the highest bidder, a Certificate of Sale was issued and the same was registered. Respondent Judge, however, allegedly prevented the implementation of the writ of possession, to the prejudice of complainant Balaoing. In his Comment, respondent Judge explained that the reason why he quashed the writ of possession he earlier issued in favor of complainant Balaoing was due to the fact that Gavilan's widow, Alice, and her children, were residing in the foreclosed properties and, more importantly, the period to redeem the said properties had not yet expired. This action of respondent Judge allegedly infuriated complainant Balaoing, hence, his filing of several suits, one after the other, against respondent Judge, namely:
"a) a Motion for Inhibition of respondent Judge in the Gavilan case and in the other cases mentioned in his present administrative complaint, alleging, among other things, that respondent Judge is guilty of "mental dishonesty" and "grossness of ignorance of the laws;"
b) a Petition for Certiorari and Prohibition, to prevent respondent Judge from further acting in the Gavilan case and to nullify the Order of the Quashal of the Writ of Possession rendered in his favor;
c) Civil Case No. 425-0-90, entitled "Balaoing vs. Judge Leopoldo Calderon, Jr.," for Damages, the causes of action of which were anchored on the events that transpired in the Gavilan case; and
d) a Petition to cite respondent Judge in contempt filed with the Court of Appeals for expunging his motion for inhibition.
When the redemption period in the Gavilan case had expired without the heirs redeeming the property, respondent Judge issued a writ of possession in favor of complainant Balaoing. But up to the present time, complainant Balaoing has not yet taken possession of the same, showing thereby his apparent disinterest.
As to the application of complainant Balaoing for a writ of injunction and restraining order in Civil Case No. 253-0-90, respondent Judge explains that before he could finish hearing the evidence of the parties in support of and in opposition to the petition for issuance of the ancillary writ prayed for, complainant Balaoing filed another Motion for Inhibition of respondent Judge to hear his cases. Nevertheless, respondent Judge denied the motion for the issuance of the writ prayed for failure of complainant Balaoing to show a clear right over the property and that irreparable injury would visit him if the writ would not be issued.
With regard to the charge of grave misconduct, respondent Judge vehemently denies the same. Thus,
"7.1 The charge that the undersigned drinks "whisky like water" is a canard. The undersigned is not a habitual imbiber of liquor as he suffers from an occasional high blood pressure and migraine. Since undersigned became a judge, he never "patronized" with any lawyer.
7.2 The undersigned applies the Mandatory Continuous Trial Scheme in his cases. If there were occasional lapses, it was because of the abnormal case load which is now more than 500 cases.
7.3 Court Aide Antonio Faustino does not receive any compensation from the City Government. He was, before being appointed by the Supreme Court to such a position, a casual employee of the City government. Upon his assumption to his present duty, he ceased to receive compensation from any other source.
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7.5 Atty. Jaime Dojillo was the duly appointed researcher in my sala. When he was promoted as Assistant Clerk of Court, upon his request, the Executive Judge allowed him to do researches for me. He is now a Trial Attorney in the PAO.
8. The undersigned has conducted the trial of cases and had disposed of the same consistent with the Rules of Court and various Supreme Court rulings and circulars . . ." 7
Other respondent OIC Leonor Maniago adopted the allegations in respondent Judge's Comment, and alleged further that she has "faithfully performed her duties and obligations under the law to administer justice in accordance with her authority and without any impartiality, (sic) whatsoever." 8
Consolidated with this administrative case is A.M. No. R-676-RTJ, entitled "Atty. Eduardo R. Balaoing vs. Hon. Santiago Maliwanag," wherein the former charges the latter with gross ignorance of the law for allegedly issuing a patently unjust order.
Respondent Judge Maliwanag, in his Comment dated September 2, 1986, denied the charge and alleged among others, that his order was issued based on jurisprudence, equity and justice, in order to prevent an unjust and inequitable execution of the judgment and an injustice perpetrated by a lawyer on the unlearned and poor couple from the barrio.
In a Memorandum to then Chief Justice Marcelo B. Fernan, dated September 12, 1990, the Office of the Court Administrator recommended the dismissal of Atty. Balaoing's complaint against Judge Maliwanag on the ground that the same failed "to specifically show and prove the facts constituting the charge of gross ignorance of the law. The allegation of the complainant are not only laconic and general but they are also based on mere and personal, interpretations of the complainant on the law instead of material allegations of facts." 9
As shown above, complainant Balaoing has a penchant for filing administrative charges against judges, in whose sala he has pending cases, whenever the latter render decisions or issue orders adverse to him and/or his clients. In Bagamasbad vs. Judge de Guzman, Jr., 10 We have already admonished lawyers to be more prudent in filing administrative charges against members of the judiciary. It is true that "The lawyer owes 'entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability . . . No fear of judicial disfavor or public unpopularity should restrain him from the full discharge of his duty . . . But it is steadfastly to be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of attorney does not permit, much less does it demand for him for any client, violation of law or any manner of fraud or chicanery. He must obey his own conscience and not that of his client. 11 Here, complainant Balaoing went out of bounds when he filed his baseless and frivolous administrative complaints against respondent Judges Calderon and Maliwanag, with no other plain and clear purpose than to harass respondent Judges, and thus, exact vengeance on them for rendering adverse judgments against him and his clients.
These acts of complainant Balaoing run counter to the explicit mandate of the Code of Professional Responsibility, to wit:
CANON 11 — A LAWYER SHALL OBSERVE AND MAINTAIN THE RESPECT DUE TO THE COURTS AND TO JUDICIAL OFFICERS AND SHOULD INSISTS ON SIMILAR CONDUCT BY OTHERS.
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Rule 11.03 — A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the Courts.
Rule 11.04 — A lawyer shall not attribute to a Judge motives not supported by the record or have no materiality to the case.
We have painstakingly reviewed the records of these cases and find the present administrative complaints of Atty. Balaoing against Judge Calderon, Jr. and his OIC Leonor Maniago, and against Judge Maliwanag, just as frivolous and baseless as the previous ones. Like before, his present complaints are based on his personal interpretation of the law and not on material allegations of fact, substantiated by solid evidence. This We cannot countenance.
Complainant Balaoing's wanton disregard of Our stern warning not to again file baseless and frivolous complaints which only clog the already full dockets of this Court instead of serve the ends of justice, and his adamant refusal to abide by the above-quoted provisions of the Code of Professional Responsibility which serve to regulate a lawyer's conduct in this jurisdiction, have shown complainant Balaoing's unfitness to hold the license to practice law. The Philippines abounds in lawyers. But as Justice Malcolm puts it, "the Philippines do not need so-called lawyers who . . . have no ethical standards, and who are a disgrace to a great and noble profession . . . (F)or what is needed in the Philippines is not a greater quantity, but a finer quality, of professional men and women, . . . who have a sincere understanding of the high requirements of the legal profession . . ." 12 Complainant Balaoing has utterly failed to live up to the duties and responsibilities of a member of the legal profession.
WHEREFORE, premises considered, the administrative complaints are hereby DISMISSED for lack of merit. Complainant Eduardo R. Balaoing is hereby DISBARRED and his name is ordered STRICKEN from the Roll of Attorneys. Let a copy of this decision be furnished to the Bar Confidant and the Integrated Bar of the Philippines and spread on the personal records of complainant. This decision is immediately executory.
SO ORDERED.
Republic of the PhilippinesSUPREME COURT
Manila
FIRST DIVISION
A.C. No. 6353 February 27, 2006
SPOUSES DAVID and MARISA WILLIAMS, Complainants, vs.ATTY. RUDY T. ENRIQUEZ, Respondent.
R E S O L U T I O N
CALLEJO, SR., J.:
Atty. Rudy T. Enriquez stands charged with "unlawful, dishonest, immoral and deceitful acts in violation of the Code of Professional Responsibility and the Canons of Professional Ethics, and with conduct unbecoming an attorney." The charges are contained in the Joint Complaint-Affidavit for Disbarment1 filed by the spouses David W. Williams and Marisa B. Williams.
It appears that respondent is the counsel of record of the plaintiffs in Civil Case No. 134432 pending before the Regional Trial Court, Branch 33, Dumaguete City where complainants are the defendants. According to the complainant-spouses, Marisa Williams bought the lot subject of the controversy. A Transfer Certificate of Title (TCT) was then issued in her favor, stating that she is "Filipino, married to David W. Williams, an American citizen."3 On January 8, 2004, respondent charged her with falsification of public documents before the Office of the City Prosecutor of Dumaguete City. The complaint was docketed as I.S. No. 2004-34.4
The spouses Williams further alleged, thus:
21. That, in malicious violation of the rules governing the practice of law, Attorney Rudy T. Enriquez cited outdated material in his complaint-affidavit (Annex A-1) and in his comments to counter-affidavit (Annex A-2). He then knowingly applied this stale law in a perverse fashion to argue that Marisa Batacan Williams automatically lost her Filipino citizenship when she married an American, and was thus prohibited to own land in the Philippines, thereby making her guilty of falsification in the Deed she executed to buy property in Negros Oriental.
22. That in paragraph #1 of her counter-affidavit (Annex A-2) Marisa cites Article IV, Section 4 of the 1987 Constitution, which provides that she would not lose her citizenship when she married an American unless she renounced it in a specific act.
23. That, in reply, Attorney Enriquez, quotes more outdated law, declaring that her "act of marrying" her husband was equivalent to renouncing her citizenship. He also doggedly attempts to show that the 1987 Constitution supports his position, not Marisa’s (Annex A-4).5
Complainants pointed out that the respondent is a retired judge, who knows that the false charge (that Marisa Williams is an American) "will not prevail in the end."6
In his "Comments by Way of Motion to Dismiss,"7 respondent enumerated matters which to his mind were evidence of the acts of falsification of complainant Marisa Williams. He insisted that the complaint for disbarment was a mere tactic to divert attention from the criminal charges against the complainants, and that the charges against him were bereft of any factual basis.
On December 1, 2004, the case was referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.8 Forthwith, the IBP Commission on Bar Discipline scheduled the case for mandatory conference/hearing. However, only the respondent appeared. The parties were then directed to submit their verified position papers.
In their Position Paper, complainants claimed that respondent had maliciously and knowingly filed fabricated cases against them and that his acts were forms of attempted extortion. They also adopted their joint complaint-affidavit by way of incorporation, along with their other pleadings.
For his part, respondent maintained that complainant Marisa Williams was no longer a citizen of the Republic of the Philippines as a result of her marriage to David Williams.
In her Report and Recommendation dated June 10, 1995, Commissioner Rebecca Villanueva-Maala ruled that respondent was guilty of gross ignorance of the law and should be suspended for six (6) months. The IBP Commission on Bar Discipline adopted the foregoing recommendation in its Resolution No. XVII-2005-114 dated October 22, 2005, with the modification that respondent be "reprimanded, with a warning and advice to study each and every opinion he may give to his clients."
The Court agrees that respondent is administratively liable for his actuations. As found by the Investigating Commissioner:
There is no evidence shown by respondent that complainant Marisa Bacatan-Williams has renounced her Filipino citizenship except her Certificate of Marriage, which does not show that she has automatically acquired her husband’s citizenship upon her marriage to him. The cases cited by respondent are not applicable in this case as it is clear that they refer to aliens acquiring lands in the Philippines.
The Bar has been integrated for the attainment of the following objectives: (a) elevate the standards of the legal profession, (b) improve the administration of justice, and (c) to enable the bar to discharge its public responsibility more effectively (In re: Integration of the Bar of the Philippines, 49 SCRA 22). In line with these objectives of the Integrated Bar, lawyers must keep themselves abreast of legal developments. To do this, the lawyer must walk with the dynamic movements of the law and jurisprudence. He must acquaint himself at least with the newly promulgated laws, the recent decisions of the Supreme Court and of the significant decisions of the Court of Appeals. There are other executive orders, administrative circulars, regulations and other rules promulgated by other competent authorities engaged in the administration of justice. The lawyer’s life is one of continuous and laborious study, otherwise, his skill and knowledge of the law and related disciplines will lag behind and become obscure due to obsoleteness (Canon 5, Code of Professional Responsibility.)9
As pointed out by the Investigating Commissioner, Canon 5 of the Code of Professional Responsibility requires that a lawyer be updated in the latest laws and jurisprudence.10 Indeed, when the law is so elementary, not to know it or to act as if one does not know it constitutes gross ignorance of the law.11 As a retired judge, respondent should have known that it is his duty to keep himself well-informed of the latest rulings of the Court on the issues and legal problems confronting a client.12 In this case, the law he apparently misconstrued is no less than the Constitution,13 the most basic law of the land.14 Implicit in a lawyer’s mandate to protect a client’s interest to the best of his/her ability and with utmost diligence is the duty to keep abreast of the law and legal developments, and participate in continuing legal education programs.15 Thus, in championing the interest of clients and defending cases, a lawyer must not only be guided by the strict standards imposed by the lawyer’s oath, but should likewise espouse legally sound arguments for clients, lest the latter’s cause be dismissed on a technical ground.16Ignorance encompasses both substantive and procedural laws.17lavvph!1.net
We find too harsh the recommended penalty of the Investigating Commissioner. It must be stressed that the power to disbar or suspend must be exercised with great caution. Only in a clear case of misconduct that seriously affects the standing and character of a lawyer as an officer of the Court and member of the bar will disbarment or suspension be imposed as a penalty.18 Pursuant to the IBP Commission on Bar Discipline’s Guidelines for Imposing Lawyer Sanctions,19 and considering further that this is respondent’s first infraction, we find that the penalty of reprimand as recommended by the IBP Commission on Bar Discipline, will suffice.
We likewise note that in their pleadings in this case, the parties repeatedly invoked their arguments in their pending cases below. Thus, we find it unnecessary to rule over such arguments, which have yet to be determined on the merits in the courts a quo.
WHEREFORE, for gross ignorance of the law, Atty. Rudy T. Enriquez is REPRIMANDED and ADVISED to carefully study the opinions he may give to his clients. He is STERNLY WARNED that a repetition of a similar act shall be dealt with more severely.
RODOLFO MILLARE, petitioner, vs.ATTY. EUSTAQUIO Z. MONTERO, respondent.
QUIASON, J.:
This is a complaint for disbarment. Pursuant to paragraph 2, Section 1, Rule 139-B of the Revised Rules of Court, this Court resolved to refer it to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.
On April 15, 1994, the IBP Board of Governors rendered a decision, finding respondent guilty of malpractice and recommending that he be suspended from the practice of law.
I
Pacifica Millare, the mother of the complainant, obtained a favorable judgment from the Municipal Trial Court, Bangued, Abra (MTC) which ordered Elsa Dy Co to vacate the premises subject of the ejectment case (Civil Case No. 844). Co, through respondent as counsel, appealed the decision to the Regional Trial Court, Branch 11, Bangued, Abra (RTC). She neither filed a supersedeas bond nor paid the rentals adjudged by the MTC. The RTC affirmed in toto the decision of the MTC.
The Court of Appeals (CA) dismissed Co's appeal from the decision of the RTC for failure to comply with Section 22 of B.P. Blg. 129 and Section 22(b) of the Interim Rules and Guidelines (CA-G.R. CV No. 11404). According to the CA, Co should have filed a petition for review and not an ordinary appeal (Rollo, Vol. I, p. 22).
The judgment of the MTC became final and executory on November 19, 1986.
On January 2, 1987, a Manifestation and Motion was filed by respondent as counsel for Co in CA-G.R. CV No. 11404, arguing that the decisions of the MTC and the RTC were null and void for being contrary to law, justice and equity for allowing the lessor to increase by 300% the rentals for an old house. Respondent, admitting his mistake in filing an ordinary appeal instead of a petition for review, prayed that he be allowed to file an action for annulment.
On February 23, 1987, the CA gave due course to respondent's Manifestation and Motion and let the records remain with it. However, on November 10, 1987, the said court ordered the records in CA-G.R. CV No. 11404 to be remanded to the court a quo.
On March 9, 1987, respondent filed with the CA a Petition for Annulment of Decisions and/or Reformation or Novation of Decisions of the MTC and the RTC (CA-G.R. SP No. 11690), insisting that the decisions were not in accordance with existing laws and policies. On December 17, 1987, the CA dismissed the petition for annulment or novation explaining that —
. . . , aside from the reliefs provided in these two sections (Secs. 1 & 2, Rule 38), there is no other means whereby the defeated party may procure final and executory judgment to be set aside with a view to the renewal of the litigation, unless (a) the judgment is void for want of jurisdiction or lack of due process of law, or (b) it has been obtained by fraud, . . . . There is no allegation in the present complaint to the effect that the judgments in the former cases were secured through fraud (Rollo, Vol. I, p. 35; Emphasis supplied).
On January 15, 1988, respondent filed an Urgent Motion for Reconsideration and Motion to Set Motion for Reconsideration for Oral Arguments of the CA decision. The CA denied the motion. Again, respondent requested the CA to set his Motion For Oral Arguments on April 14, 1988.
In a resolution dated February 12, 1988, the CA denied the Motion for Oral Argument and in a resolution dated October 18, 1988, denied the motion for reconsideration of the February 12 Resolution.
Respondent then filed a Petition for Review on Certiorari with this Court (G.R. No. 86084) questioning the decisions of the MTC and the RTC in favor of petitioner's mother. In a Resolution dated January 4, 1989, we denied the petition for having been filed and paid late on December 12, 1988 and November 12, 1988, respectively. A motion for reconsideration from such resolution was likewise denied with finality.
Respondent filed a Motion for the Issuance of a Prohibitory or Restraining Order (dated July 6, 1988) in CA-G.R. SP No. 11690.
On April 12, 1988, the mother of complainant filed a Motion for Execution of the judgment in Civil Case No. 844. Respondent filed an Opposition to the Motion for Execution on the ground that the case was still pending review by the CA in CA-G.R. SP No. 11690 and therefore the motion for execution was premature. On August 23, 1988, the MTC ordered the issuance of a writ of execution. Respondent filed a motion for reconsideration, which was denied. The RTC affirmed the order for the issuance of the writ of execution. Thus, a writ of execution was issued on October 18, 1988.
On October 26, 1988, respondent filed a special civil action (SP CV No. 624) with the RTC, Branch 1, Bangued, Abra for certiorari, prohibition, mandamus with preliminary injunction against the MTC, Provincial Sheriff and complainant's mother, seeking to annul the writ of execution issued in MTC Civil Case No. 844 and RTC Civil Case No. 344. Respondent alleged that the order granting the writ of execution was issued with grave abuse of discretion amounting to lack of jurisdiction since a petition to annul the decisions (CA-G.R. SP No. 11690) was still pending with the CA.
On October 28, 1988, the provincial sheriff, Romulo V. Paredes, deferred the implementation of the writ of execution until the petition filed in SP CV No. 624 for certiorari was resolved. The CA denied in SP CV No. 624 respondent's Urgent Motion to Set Aside and Declare Null and Void the Writ of Execution.
From the decision of the RTC, Branch 1, Abra in SP CV No. 624 denying the Petition for Certiorari, Prohibition,Mandamus with Preliminary Issuance of Prohibitory Order, respondent again filed an Appeal and/or Review byCertiorari, Etc. with the CA (CA-G.R. SP No. 17040).
II
We have no reason to reverse the findings of the IBP Board of Governors.
Under Canon 19 of the Code of Professional Responsibility, a lawyer is required to represent his client "within the bounds of the law." The Code enjoins a lawyer to employ only fair and honest means to attain the lawful objectives of his client (Rule 19.01) and warns him not to allow his client to dictate the procedure in handling the case (Rule 19.03). In short, a lawyer is not a gun for hire.
Advocacy, within the bounds of the law, permits the attorney to use any arguable construction of the law or rules which is favorable to his client. But the lawyer is not allowed to knowingly advance a claim or defense that is unwarranted under existing law. He cannot prosecute patently frivolous and meritless appeals or institute clearly groundless actions (Annotated Code of Professional Responsibility 310 [1979]). Professional rules impose limits on a lawyer's zeal and hedge it with necessary restrictions and qualifications (Wolfram, Modern Legal Ethics 579-582 [1986]).
Under Canon 12 of the Code of Professional Responsibility, a lawyer is required to exert every effort and consider it his duty to assist in the speedy and efficient administration of justice. Implementing said Canon are the following rules:
Rule 12.02. — A lawyer shall not file multiple actions arising from the same cause.
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Rule 12.04. — A lawyer shall not unduly delay a case, impede the execution of a judgment or misuse court processes.
It is unethical for a lawyer to abuse or wrongfully use the judicial process, like the filing of dilatory motions, repetitious litigation and frivolous appeals for the sole purpose of frustrating and delaying the execution of a judgment (Edelstein, The Ethics of Dilatory Motions Practice: Time for Change, 44 Fordham L. Rev. 1069 [1976]; Overmeyer v. Fidelista and Deposit Co., 554 F. 2d 539, 543 [2d Cir. 1971]).
The rights of respondent's client in Civil Case No. 844 of the MTC were fully protected and her defenses were properly ventilated when he filed the appeal from the MTC to the RTC. But respondent thereafter resorted to devious and underhanded means to delay the execution of the judgment rendered by the MTC adverse to his client. The said decision became executory even pending its appeal with the RTC because of the failure of Co to file a supersedeas bond and to pay the monthly rentals as they fell due. Furthermore, his petition for annulment of the decisions of the MTC and RTC which he filed with the CA (CA-G.R. No. 11690) was defective and dilatory. According to the CA, there was no allegation therein that the courts had no jurisdiction, that his client was denied due process, or "that the judgments in the former cases were secured through fraud."
As ruled in Regidor v. Court of Appeals, 219 SCRA 530 (1993):
A judgment can be annulled only on two grounds: (a) that the judgment is void for want of jurisdiction or for lack of due process of law, or (b) that it has been obtained by fraud. . . . (at p. 534).
Moreover, when the CA ordered that the records of the case be remanded, respondent knew very well that the decision of the MTC was already ripe for execution.
This Court, in People of Paombong, Bulacan v. Court of Appeals, 218 SCRA 423 (1993), ruled:
. . . [w]hen the judgment of a superior court is remanded to the trial court for execution, the function of the trial court is ministerial only; the trial court is merely obliged with becoming modesty to enforce that judgment and has no jurisdiction either to modify in any way or to reverse the same. . . . (at p. 430).
(See also Valenzona v. Court of Appeals, 226 SCRA 306 [1993] and Garbo v. Court of Appeals, 226 SCRA 250 [1993]).
Respondent filed a total of six appeals, complaints or petitions to frustrate the execution of the MTC judgment in Civil Case No. 844, to wit:
(1) Civil Case No. 344 — Appeal from the decision rendered in Civil Case No. 844 of the Municipal Trial Court, Bangued, Abra, with the Regional Trial Court, Abra;
(2) CA-G.R. CV No. 11404 — Appeal from the decision of the Regional Trial Court, Abra;
(3) CA-G.R. SP No. 11690 — An Action For the Annulment of Decisions And/Or Reformation or Novation of Decisions filed with the Court of Appeals;
(4) G.R. No. 86084 — Petition For Review On Certiorari filed with the Supreme Court;
(5) CA-G.R. SP No. 17040 — Appeal And/Or Review By Certiorari, Etc. filed also with the Court of Appeals; and,
(6) SP Civil Action No. 624 — Petition For Certiorari, Prohibition, Mandamus with Preliminary Issuance of Prohibitory Order filed with the Regional Trial Court, Branch 1, Bangued, Abra.
Judging from the number of actions filed by respondent to forestall the execution of the same judgment, respondent is also guilty of forum shopping.
In Villanueva v. Adre 172 SCRA 876 (1989), the Court explained that forum shopping exists when, by reason of an adverse decision in one forum, defendant ventures to another for a more favorable resolution of his case. In the case of Gabriel v. Court of Appeals, 72 SCRA 272 (1976), this Court explained that:
Such filing of multiple petitions constitutes abuse of the Court's processes and improper conduct that tends to impede, obstruct and degrade the administration of justice and will be punished as contempt of court. Needless to add, the lawyer who filed such multiple or repetitious petitions (which obviously delays the execution of a final and executory judgment) subjects himself to disciplinary action for incompetence (for not knowing any better) or for willful violation of his duties as an attorney to act with all good fidelity to the courts and to maintain only such actions as appear to him to be just and are consistent with truth and honor (at p. 275).
By having wilfully and knowingly abused his rights of recourse in his efforts to get a favorable judgment, which efforts were all rebuffed, respondent violated the duty of a member of the Bar to institute actions only which are just and put up such defenses as he perceives to be truly contestable under the laws (Garcia v. Francisco, 220 SCRA 512 [1993]). As correctly noted by the Committee on Bar Discipline "in filing a number of pleadings, actions and petitioner, respondent 'has made a mockery of the judicial processes' and disregarded canons of professional ethics in intentionally frustrating the rights of a litigant in whose favor a judgment in the case was rendered, thus, 'abused procedural rules to defeat ends of substantial justice'" (Report and Recommendation, IBP Committee on Bar Discipline, p. 2).
WHEREFORE, respondent is SUSPENDED for one year.
SO ORDERED.
Padilla, Davide, Jr., Bellosillo and Kapunan, JJ., concur.
Republic of the PhilippinesSUPREME COURT
Manila
SECOND DIVISION
A.C. No. 5704 May 8, 2009
WILLEM KUPERS, Complainant, vs.ATTY. JOHNSON B. HONTANOSAS, Respondent.
R E S O L U T I O N
TINGA, J.:
This administrative case against respondent Atty. Johnson B. Hontanosas was triggered by a letter-complaint1dated April 15, 2002 of complainant Willem Kupers to the Court through the Court Administrator. The Court Administrator referred the letter to the Bar Confidant on April 25, 2002.2 On May 7, 2002, the Acting Bar Confidant wrote complainant that for the court to take cognizance of an administrative case against a lawyer, a verified complaint must be filed in nineteen (19) copies together with supporting documents.3 Thus, complainant was told to submit an additional thirteen (13) copies of his complaint. On May 25, 2002, complainant complied and submitted an additional thirteen (13) copies of his complaint.
Complainant alleged that respondent4 had: (1) prepared and notarized contracts that are both invalid and illegal as these contracts violated the limitations on aliens leasing private lands; (2) served conflicting interests since he performed legal services for adverse parties; (3) refused to furnish copies of the contracts he notarized to the parties thereof; (4) notarized documents without keeping copies thereof and (5) failed to properly discharge his duty to his client Karl Novak, particularly when respondent allegedly refused to accept his dismissal as counsel for Novak, failed to turn over Novak’s documents thereafter, handled legal matters without adequate preparation, betrayed Novak’s trust and refused to see Novak with a translator of Novak’s choice.
Complainant claimed that as counsel for Hans and Vivian Busse, respondent had prepared a memorandum of agreement and a contract of lease between the spouses Busse and Hochstrasser, a Swiss national. Under said agreement, Hochstrasser would lease Vivian Busse’s property in Alcoy, Cebu for fifty (50) years, renewable for another fifty (50) years.5 Complainant added that respondent had acted despite conflict of interest on his part since the Spouses Busse and Hochstrasser were both his clients. Respondent prepared a similar agreement and lease contract between the spouses Busse and Karl Emberger, a Swiss national, over another parcel of land in Alcoy, Cebu. This time the lease contract was for a period of forty nine (49) years renewable for another forty nine (49) years.6 All four (4) documents were notarized by respondent. It was also averred that respondent drafted two deeds of sale over the leased properties of Spouses Busse to Naomie Melchior, a Filipina, and Karl Novak, a German National.
The Court required respondent to comment on the charges.7 He answered that if anyone should be penalized, it should be respondent for meddling in the affairs of his clients and otherwise making a mockery of the Philippine legal system by deceitfully passing as material facts opinionated, baseless and false allegations as well as a falsified document.8 Respondent also moved that complainant be made to show cause why he should not be cited for contempt.
Complainant filed a reply on November 6, 2002, in which he stated among other things that respondent is like Pontius Pilatus [sic].9
On February 10, 2003, the Court resolved to refer the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.10
In lieu of hearings, Commissioner Doroteo Aguila required the parties to file their respective memoranda due to the limited time period given by the Court. The parties did. The Commissioner found that respondent had prepared and notarized contracts that violated Presidential Decree No. 471 (P.D. No. 471) since leases of private lands by aliens cannot exceed twenty five (25) years, renewable for another twenty five (25) years.11 Nonetheless, complainant failed to prove the other charges he had hurled against respondent as the former was not privy to the agreements between respondent and the latter’s clients. Moreover, complainant failed to present any concrete proof of the other charges. The commissioner recommended that respondent be suspended from the practice of law for two (2) months.
Upon review, the IBP Board of Governors disregarded the recommendation of the commissioner and dismissed the complaint on February 27, 2004.12 The Board of Governors ratiocinated that suspension was not warranted since respondent did not really perform an illegal act. The act was not illegal per se since the lease agreement was likely made to reflect the agreement among the parties without considering the legality of the situation. While admittedly respondent may be guilty of ignorance of the law or plain negligence, the Board dismissed the complaint out of compassion.
We reject the Board’s recommendation. We stress that much is demanded from those who engage in the practice of law because they have a duty not only to their clients, but also to the court, to the bar, and to the public.13 The lawyer’s diligence and dedication to his work and profession ideally should not only promote the interests of his clients. A lawyer has the duty to attain the ends of justice by maintaining respect for the legal profession.14
The investigating commissioner and the IBP Board of Governors both found that the majority of the charges against the respondent lack proof. Our own review of the records confirms that most of the charges are unsupported by evidence. Such charges are simply the unsubstantiated accusations in the complaint with nary a whit of concrete proof such as affidavits of the clients whose trust respondents had allegedly breached.
However, administrative cases against lawyers are sui generes and as such the complainant in the case need not be the aggrieved party. Thus even if complainant is not a party to the contracts, the charge of drafting and notarizing contracts in contravention of law holds weight. A plain reading of these contracts clearly shows that they violate the law limiting lease of private lands to aliens for a period of twenty five (25) years renewable for another twenty five (25) years.
In his defense, respondent avers that the assailed contracts are valid under Republic Act No. 7652 (R.A. No. 7652), entitled "An Act Allowing The Long-Term Lease of Private Lands by Foreign Investors." They add that these contracts should not be viewed purely as lease contracts since they allow the leasor to nominate a Filipino citizen or corporation to purchase the subject property within the lease period. Respondent’s defenses are frivolous. Assuming that it can be duly established that his foreign clients are indeed "foreign investors" as contemplated under R.A. No. 7652,15 said law allows the lease for the original period of fifty (50) years, renewable for another period of twenty five (25) years, well below the periods of fifty (50) years renewable for another fifty (50) years, and forty-nine (49) years renewable for another forty-nine (49) years respectively, stipulated in the two lease agreements.1avvphi1
Respondent, by drafting the questioned lease agreements, caused his clients to violate Section 7 of R.A. No. 7652 which states:
Sec. 7. Penal Provision. — Any contract or agreement made or executed in violation of any of the following prohibited acts shall be null and void ab initio and both contracting parties shall be punished by a fine of not less than One Hundred thousand pesos (P100,000) nor more than One million pesos (P1,000,000), or imprisonment of six (6) months to (6) years, or both, at the discretion of the court:
(1) Any provision in the lease agreement stipulating a lease period in excess of that provided in paragraph (1) of Section 4;
(2) Use of the leased premises for the purpose contrary to existing laws of the land, public order, public policy, morals, or good customs;
(3) Any agreement or agreements resulting is the lease of land in excess of the area approved by the DTI:Provided, That, where the excess of the totality of the area leased is due to the acts of the lessee, the lessee shall be held solely liable therefor: Provided, further, That, in the case of corporations, associations, or partnerships, the president, manager, director, trustee, or officers responsible for the violation hereof shall bear the criminal liability. (Emphasis ours)
In preparing and notarizing the illegal lease contracts, respondent violated the Attorney’s Oath and several canons of the Code of Professional Responsibility. One of the foremost sworn duties of an attorney-at-law is to "obey the laws of the Philippines." This duty is enshrined in the Attorney’s Oath16 and in Canon 1, which provides that "(a) lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and legal processes." Rule 1.02 under Canon 1 states: "A lawyer shall not counsel or abet activities aimed at defiance of the law or at decreasing confidence in the legal systems."
The other canons of professional responsibility which respondent transgressed are the following:
CANON 15 – A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENTS.
x x x
Rule 15.07- A lawyer shall impress upon his client compliance with the laws and the principles of hairness.
CANON 17 – A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM.
Aside from constituting violation of the lawyer’s oath, the acts of respondents also amount to gross misconduct under Section 27, Rule 138 of the Rules of Court, which provides:
SEC. 27. Disbarment or suspension of attorneys by Supreme Court, grounds therefor. ― A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a wilful disobedience appearing as an attorney for a party to a case without authority so to do. x x x
The supreme penalty of disbarment is meted out only in clear cases of misconduct that seriously affect the standing and character of the lawyer as an officer of the court. While we will not hesitate to remove an erring attorney from the esteemed brotherhood of lawyers, where the evidence calls for it, we will also not disbar him where a lesser penalty will suffice to accomplish the desired end.
We cannot accept, however, the plea of leniency expressed by the IBP Board of Governors in behalf of respondent. We also find that the suspension for two (2) months recommended by the IBP Investigating Commissioner too light. We find six (6) months suspension to be a sufficient sanction against respondent.
WHEREFORE, respondent Atty. Johnson B. Hontanosas, is found GUILTY of violating the lawyer’s oath and gross misconduct. He is SUSPENDED from the practice of law for six (6) months with a WARNING that a repetition of the same or similar act will be dealt with more severely. Respondent’s suspension is effective upon notice hereof. Let notice of this Resolution be spread in respondent’s record as an attorney in this Court, and notice of the same served on the Integrated Bar of the Philippines and on the Office of the Court Administrator for circulation to all the courts concerned.
