B.M. No. 850 August 22, 2000

MANDATORY CONTINUING LEGAL EDUCATION (MCLE)ADOPTING THE RULES ON MANDATORY CONTINUING LEGAL EDUCATION FOR MEMBERS OF THE INTEGRATED BAR OF THE PHILIPPINES

EN BANC

R E S O L U T I O N

Considering the Rules on Mandatory Continuing Legal Education (MCLE) for members of the Integrated Bar of the Philippines (IBP), recommended by the IBP, endorsed by the Philippine Judicial Academy, and reviewed and passed upon by the Supreme Court Committee on Legal Education, the Court hereby resolves to adopt, as it hereby adopts, the following rules for proper implementation:

RULE 1PURPOSE

Section 1. Purpose of the MCLE

Continuing legal education is required of members of the Integrated Bar of the Philippines (IBP) to ensure that throughout their career, they keep abreast with law and jurisprudence, maintain the ethics of the profession and enhance the standards of the practice of law.

RULE 2MANDATORY CONTINUING LEGAL EDUCATION

Section 1. Constitution of the MCLE Committee

Within two (2) months from the approval of these Rules by the Supreme Court En Banc, the MCLE Committee shall be constituted in accordance with these Rules.

Section 2. Requirements of completion of MCLE

Members of the IBP not exempt under Rule 7 shall complete, every three (3) years, at least thirty-six (36) hours of continuing legal education activities approved by the MCLE Committee. Of the 36 hours:

(a) At least six (6) hours shall be devoted to legal ethics.

(b) At least (4) hours shall be devoted to trial and pretrial skills.

(c) At least five (5) hours shall be devoted to alternative dispute resolution.

(d) At least nine (9) hours shall be devoted to updates on substantive and procedural laws, and jurisprudence.

(e) At least four (4) hours shall be devoted to legal writing and oral advocacy.

(f) At least two (2) hours shall be devoted to international law and international conventions.

(g) The remaining six (6) hours shall be devoted to such subjects as may be prescribed by the MCLE Committee.

RULE 3COMPLIANCE PERIOD

Section 1. Initial compliance period

The initial compliance period shall begin not later than three (3) months from the constitution of the MCLE Committee. Except for the initial compliance period for members admitted or readmitted after the establishment of the program, all compliance periods shall be for thirty-six (36) months and shall begin the day after the end of the previous compliance period.

Section 2. Compliance Group 1.

Members in the National Capital Region (NCR) or Metro Manila shall be permanently assigned to Compliance Group 1.

Section 3. Compliance Group 2.

Members in Luzon outside NCR shall be permanently assigned to Compliance Group 2.

Section 4. Compliance Group 3.

Members in Visayas and Mindanao shall be permanently assigned to Compliance Group 3.

Section 5. Compliance period for members admitted or readmitted after establishment of the program.

Members admitted or readmitted to the Bar after the establishment of the program shall be permanently assigned to the appropriate Compliance Group based on their Chapter membership on the date of admission or readmission.

The initial compliance period after admission or readmission shall begin on the first day of the month of admission or readmission and shall end on the same day as that of all other members in the same Compliance Group.

(a) Where four (4) months or less remain of the initial compliance period after admission or readmission, the member is not required to comply with the program requirement for the initial compliance.

(b) Where more than four (4) months remain of the initial compliance period after admission or readmission, the member shall be required to complete a number of hours

of approved continuing legal education activities equal to the number of months remaining in the compliance period in which the member is admitted or readmitted. Such member shall be required to complete a number of hours of education in legal ethics in proportion to the number of months remaining in the compliance period. Fractions of hours shall be rounded up to the next whole number.

RULE 4COMPUTATION OF CREDIT UNITS

Section 1. Guidelines

The following are the guidelines for computation of credit units (CU):

PROGRAMS CREDIT UNITS SUPPORTING DOCUMENTS

1. SEMINARS, CONVENTIONS, CONFERENCES, SYMPOSIA, IN-HOUSE EDUCATION PROGRAMS, WORKSHOPS, DIALOGUES, ROUND TABLE DISCUSSIONS BY APPROVED PROVIDERS UNDER RULE 7 AND OTHER RELATED RULES

1.1 PARTICIPANT 1 CU PER HOUR CERTIFICATE OF ATTENDANCE WITH NUMBER OF HOURS

1.2 LECTURER 5 CU PER HOUR PHOTOCOPY OF PLAQUE OR SPONSOR'S CERTIFICATION

1.3 RESOURCE 3 CU PER HOUR PHOTOCOPY OF PLAQUE OR SPONSOR'S SPEAKER CERTIFICATION

1.4 ASSIGNED 2 CU PER HOUR CERTIFICATION FROM SPONSORING PENALIST/ ORGANIZATION REACTOR/COMMENTATOR

1.5 MODERATOR/ 2 CU PER HOUR CERTIFICATION FROM SPONSORING COORDINATOR/ ORGANIZATION FACILITATOR

2. AUTHORSHIP, EDITING AND REVIEW

2.1 RESEARCH/ 5-10 CREDIT UNITS DULY CERTIFIED/PUBLISHED INNOVATIVE TECHNICAL REPORT/PAPER PROGRAM/CREATIVE PROJECT

2.2 BOOK 50-100 PP 101+ PUBLISHED BOOK SINGLE AUTHOR 12-16 CU 17-20 CU2 AUTHORS 10-12 CU 13-16 CU3 OR MORE 5-6 CU 7-11 CU

2.3 BOOK EDITOR 1/2 OF THE CU OF PUBLISHED BOOK WITH PROOF AUTHORSHIP AS EDITOR CATEGORY

2.4 LEGAL ARTICLE 5-10 PP 11+ PUBLISHED ARTICLE SINGLE AUTHOR 6 CU 8 CU2 AUTHORS 4 CU 6 CU3 OR MORE 2 CU 4 CU

2.5 LEGAL 3-6 CU PER ISSUE PUBLISHED NEWSLETTER/JOURNAL NEWSLETTER/LAW JOURNAL EDITOR

3. PROFESSIONAL 6 CU PER CHAIR CERTIFICATION OF LAW DEAN CHAIR/BAR 1 CU PER LECTURE OR BAR REVIEW DIRECTOR REVIEW/ HOUR LECTURE/LAW TEACHING

Section 2. Limitation on certain credit units

In numbers 2 and 3 of the guidelines in the preceding Section, the total maximum credit units shall not exceed twenty (20) hours per three (3) years.

RULE 5CATEGORIES OF CREDIT

Section 1. Classes of credits

The credits are either participatory or non-participatory.

Section 2. Claim for participatory credit

Participatory credit may be claimed for:

(a) Attending approved education activities like seminars, conferences, symposia, in-house education programs, workshops, dialogues or round table discussions.

(b) Speaking or lecturing, or acting as assigned panelist, reactor, commentator, resource speaker, moderator, coordinator or facilitator in approved education activities.

(c) Teaching in a law school or lecturing in a bar review class.

Section 3. Claim for non-participatory credit

Non-participatory credit may be claimed per compliance period for:

(a) Preparing, as an author or co-author, written materials published or accepted for publication, e.g., in the form of an article, chapter, book, or book review which contribute to the legal education of the author member, which were not prepared in the ordinary course of the member's practice or employment.

(b) Editing a law book, law journal or legal newsletter.

RULE 6COMPUTATION OF CREDIT HOURS

Section 1. Computation of credit hours

Credit hours are computed based on actual time spent in an activity (actual instruction or speaking time), in hours to the nearest one-quarter hour.

RULE 7EXEMPTIONS

Section 1. Parties exempted from the MCLE

The following members of the Bar are exempt from the MCLE requirement:

(a) The President and the Vice President of the Philippines, and the Secretaries and Undersecretaries of Executives Departments;

(b) Senators and Members of the House of Representatives;

(c) The Chief Justice and Associate Justices of the Supreme Court, incumbent and retired members of the judiciary, incumbent members of the Judicial and Bar Council and incumbent court lawyers covered by the Philippine Judicial Academy program of continuing judicial education;

(d) The Chief State Counsel, Chief State Prosecutor and Assistant Secretaries of the Department of Justice;

(e) The Solicitor General and the Assistant Solicitor General;

(f) The Government Corporate Counsel, Deputy and Assistant Government Corporate Counsel;

(g) The Chairmen and Members of the Constitutional Commissions;

(h) The Ombudsman, the Overall Deputy Ombudsman, the Deputy Ombudsmen and the Special Prosecutor of the Office of the Ombudsman;

(i) Heads of government agencies exercising quasi-judicial functions;

(j) Incumbent deans, bar reviews and professors of law who have teaching experience for at least 10 years accredited law schools;

(k) The Chancellor, Vice-Chancellor and members of the Corps of Professors and Professorial Lectures of the Philippine Judicial Academy; and

(l) Governors and Mayors.

Section 2. Other parties exempted from the MCLE

The following Members of the Bar are likewise exempt:

(a) Those who are not in law practice, private or public.

(b) Those who have retired from law practice with the approval of the IBP Board of Governors.

Section 3. Good cause for exemption from or modification of requirement

A member may file a verified request setting forth good cause for exemption (such as physical disability, illness, post graduate study abroad, proven expertise in law, etc.) from compliance with or modification of any of the requirements, including an extension of time for compliance, in accordance with a procedure to be established by the MCLE Committee.

Section 4. Change of status

The compliance period shall begin on the first day of the month in which a member ceases to be exempt under Sections 1, 2, or 3 of this Rule and shall end on the same day as that of all other members in the same Compliance Group.

Section 5. Proof of exemption

Applications for exemption from or modification of the MCLE requirement shall be under oath and supported by documents.

RULE 8STANDARDS FOR APPROVAL OF EDUCATION ACTIVITIES

Section 1. Approval of MCLE program

Subject to the rules as may be adopted by the MCLE Committee, continuing legal education program may be granted approval in either of two (2) ways: (1) the provider of the activity is an approved provider and certifies that the activity meets the criteria of Section 3 of this Rules; and (2) the provider is specially mandated by law to provide continuing legal education.

Section 2. Standards for all education activities

All continuing legal education activities must meet the following standards:

(a) The activity shall have significant current intellectual or practical content.

(b) The activity shall constitute an organized program of learning related to legal subjects and the legal profession, including cross profession activities (e.g., accounting-tax or medical-legal) that enhance legal skills or the ability to practice law, as well as subjects in legal writing and oral advocacy.

(c) The activity shall be conducted by a provider with adequate professional experience.

(d) Where the activity is more than one (1) hour in length, substantive written materials must be distributed to all participants. Such materials must be distributed at or before the time the activity is offered.

(e) In-house education activities must be scheduled at a time and location so as to be free from interruption like telephone calls and other distractions.

RULE 9APPROVAL OF PROVIDERS

Section 1. Approval of providers

Approval of providers shall be done by the MCLE Committee.

Section 2. Requirements for approval of providers

Any persons or group may be approved as a provider for a term of two (2) years, which may be renewed, upon written application. All providers of continuing legal education activities, including in-house providers, are eligible to be approved providers. Application for approval shall:

(a) Be submitted on a form provided by the IBP;

(b) Contain all information requested on the form;

(c) Be accompanied by the approval fee;

Section 3. Requirements of all providers

All approved providers shall agree to the following:

(a) An official record verifying the attendance at the activity shall be maintained by the provider for at least four (4) years after the completion date. The provider shall include the member on the official record of attendance only if the member's signature was obtained at the time of attendance at the activity. The official record of attendance shall contain the member's name and number in the Roll of Attorneys and shall identify the time, date, location, subject matter, and length of the education activity. A copy of such record shall be furnished the IBP.

(b) The provider shall certify that:

(1) This activity has been approved for MCLE by the IBP in the amount of ________ hours of which hours will apply in (legal ethics, etc.), as appropriate to the content of the activity;

(2) The activity conforms to the standards for approved education activities prescribed by these Rules and such regulations as may be prescribed by the IBP pertaining to MCLE.

(c) The provider shall issue a record or certificate to all participants identifying the time, date, location, subject matter and length of the activity.

(d) The provider shall allow in-person observation of all approved continuing legal education activities by members of the IBP Board of Governors, the MCLE Committee, or designees of the Committee and IBP staff for purposes of monitoring compliance with these Rules.

(e) The provider shall indicate in promotional materials, the nature of the activity, the time devoted to each devoted to each topic and identify of the instructors. The provider shall make available to each participant a copy of IBP-approved Education Activity Evaluation Form.

(f) The provider shall maintain the completed Education Activity Evaluation Forms for a period of not less than one (1) year after the activity, copy furnished the IBP.

(g) Any person or group who conducts an unauthorized activity under this program or issues a spurious certificate in violation of these Rules shall be subject to appropriate sanctions.

Section 4. Renewal of provider approval

The approval of a provider may be renewed every two (2) years. It may be denied if the provider fails to comply with any of the requirements of these Rules or fails to provide satisfactory education activities for the preceding period.

Section 5. Revocation of provider approval

The approval of any provider referred to in Rule 9 may be revoked by a majority vote of the IBP Board of Governors, upon recommendation of the MCLE Committee, after notice and hearing and for good cause.

RULE 10ACTIVITY AND PROVIDER APPROVAL FEE

Section 1. Payment of fees

Application for approval of an education activity or as a provider requires payment of an appropriate fee.

RULE 11GENERAL COMPLIANCE PROCEDURES

Section 1. Compliance card

Each member shall secure from the MCLE Committee a Compliance Card before the end of his compliance period. He shall complete the card by attesting under oath that he has complied with the education requirement or that he is exempt, specifying the nature of the exemption. Such Compliance Card must be returned to the address indicated therein not later than the day after the end of the member's compliance period.

Section 2. Member record keeping requirement

Each member shall maintain sufficient record of compliance or exemption, copy furnished the MCLE Committee. The record required to be provided to the members by the provider pursuant to Section 3(c) of Rule 9 should be sufficient record of attendance at a participatory activity. A record of non-participatory activity shall also be maintained by the member, as referred to in Section 3 of Rule 5.

RULE 12NON-COMPLIANCE PROCEDURES

Section 1. What constitutes non-compliance

The following shall constitute non-compliance

(a) Failure to complete the education requirement within the compliance period;

(b) Failure to provide attestation of compliance or exemption;

(c) Failure to provide satisfactory evidence of compliance (including evidence of exempt status) within the prescribed period;

(d) Failure to satisfy the education requirement and furnish evidence of such compliance within sixty (60) days from receipt of a non-compliance notice;

(e) Any other act or omission analogous to any of the foregoing or intended to circumvent or evade compliance with the MCLE requirements.

Section 2. Non-compliance notice and 60-day period to attain compliance

A member failing to comply will receive a Non-Compliance Notice stating the specific deficiency and will be given sixty (60) days from the date of notification to explain the deficiency or otherwise show compliance with the requirements. Such notice shall contain, among other things, the following language in capital letters:

YOUR FAILURE TO PROVIDE ADEQUATE JUSTIFICATION FOR NON-COMPLIANCE OR PROOF OF COMPLIANCE WITH THE MCLE REQUIREMENT BY (INSERT DATE 60 DAYS FROM THE DATE OF NOTICE), SHALL BE A CAUSE FOR LISTING AS A DELINQUENT MEMBER.

The Member may use this period to attain the adequate number of credit hours for compliance. Credit hours earned during this period may only be counted toward compliance with the prior

compliance period requirement unless hours in excess of the requirement are earned, in which case, the excess hours may be counted toward meeting the current compliance period requirement.lawphil.net

RULE 13CONSEQUENCES OF NON-COMPLIANCE

Section 1. Non-compliance fee

A member who, for whatever reason, is in non-compliance at the end of the compliance period shall pay a non-compliance fee.

Section 2. Listing as delinquent member

Any member who fails to satisfactorily comply with Section 2 of Rule 12 shall be listed as a delinquent member by the IBP Board of Governors upon the recommendation of the MCLE Committee, in which case, Rule 139-A of the Rules of Court shall apply.

RULE 14REINSTATEMENT

Section 1. Process

The involuntary listing as a delinquent member shall be terminated when the member provides proof of compliance with the MCLE requirement, including payment of non-compliance fee. A member may attain the necessary credit hours to meet the requirement for the period of non-compliance during the period the member is on inactive status. These credit hours may not be counted toward meeting the current compliance period requirement. Credit hours attained during the period of non-compliance in excess of the number needed to satisfy the prior compliance period requirement may be counted toward meeting the current compliance period requirement.lawphil.net

Section 2. Termination of delinquent listing administrative process

The termination of listing as a delinquent member is administrative in nature but it shall be made with notice and hearing by the MCLE Committee.

RULE 15MANDATORY CONTINUING LEGAL EDUCATION COMMITTEE

Section 1. Composition

The MCLE Committee shall be composed of five (5) members, namely: a retired Justice of the Supreme Court, as Chair, and four (4) members, respectively, nominated by the IBP, the Philippine Judicial Academy, a law center designated by the Supreme Court and associations of law schools and/or law professors.

The members of the Committee shall be of proven probity and integrity. They shall be appointed by the Supreme Court for a term of three (3) years and shall receive such compensation as may be determined by the Court.

Section 2. Duty of the Committee

The MCLE Committee shall administer and adopt such implementing rules as may be necessary subject to the approval by the Supreme Court. It shall, in consultation with the IBP Board of Governors, prescribe a schedule of MCLE fees with the approval of the Supreme Court.

Section 3. Staff of the IBP

The IBP shall employ such staff as may be necessary to perform the record-keeping, auditing, reporting, approval and other necessary functions.

Section 4. Submission of annual budget

The IBP shall submit to the Supreme Court an annual budget for a subsidy to establish, operate and maintain the MCLE Program.

This resolution shall take effect in October 2000, following its publication in two (2) newspaper of general circulation in the Philippines.

Adopted this 22nd day of August, 2000.

B.M. No. 1922 June 3, 2008

RE. NUMBER AND DATE OF MCLE CERTIFICATE OF COMPLETION/EXEMPTION REQUIRED IN ALL PLEADINGS/MOTIONS.

Sirs/Mesdames:

Quoted hereunder, for your information is a resolution of the Court En Banc dated June 3, 2008

"Bar Matter No. 1922. – Re: Recommendation of the Mandatory Continuing Legal Education (MCLE) Board to Indicate in All Pleadings Filed with the Courts the Counsel’s MCLE Certificate of Compliance or Certificate of Exemption. – The Court Resolved to NOTE the Letter, dated May 2, 2008, of Associate Justice Antonio Eduardo B. Nachura, Chairperson, Committee on Legal Education and Bar Matters, informing the Court of the diminishing interest of the members of the Bar in the MCLE requirement program.

The Court further Resolved, upon the recommendation of the Committee on Legal Education and Bar Matters, to REQUIRE practicing members of the bar to INDICATE in all pleadings filed before the courts or quasi-judicial bodies, the number and date of issue of their MCLE Certificate of Compliance or Certificate of Exemption, as may be applicable, for the immediately preceding compliance period. Failure to disclose the

required information would cause the dismissal of the case and the expunction of the pleadings from the records.

The New Rule shall take effect sixty (60) days after its publication in a newspaper of general circulation." Caprio-Morales Velasco, Jr., Nachura, JJ., on official leave. (adv216a)

Very truly yours,

MA. LUISA D. VILLARAMA(sgd)Clerk of Court

A.C. No. 6057 June 27, 2006

PETER T. DONTON, Complainant, vs.ATTY. EMMANUEL O. TANSINGCO, Respondent.

D E C I S I O N

CARPIO, J.:

The Case

This is a disbarment complaint against respondent Atty. Emmanuel O. Tansingco ("respondent") for serious misconduct and deliberate violation of Canon 1,1 Rules 1.012 and 1.023 of the Code of Professional Responsibility ("Code").

The Facts

In his Complaint dated 20 May 2003, Peter T. Donton ("complainant") stated that he filed a criminal complaint for estafa thru falsification of a public document4 against Duane O. Stier ("Stier"), Emelyn A. Maggay ("Maggay") and respondent, as the notary public who notarized the Occupancy Agreement.

The disbarment complaint arose when respondent filed a counter-charge for perjury5 against complainant. Respondent, in his affidavit-complaint, stated that:

5. The OCCUPANCY AGREEMENT dated September 11, 1995 was prepared and notarized by me under the following circumstances:

A. Mr. Duane O. Stier is the owner and long-time resident of a real property located at No. 33 Don Jose Street, Bgy. San Roque, Murphy, Cubao, Quezon City.

B. Sometime in September 1995, Mr. Stier – a U.S. citizen and thereby disqualified to own real property in his name – agreed that the property be transferred in the name of Mr. Donton, a Filipino.

C. Mr. Stier, in the presence of Mr. Donton, requested me to prepare several documents that would guarantee recognition of him being the actual owner of the property despite the transfer of title in the name of Mr. Donton.

D. For this purpose, I prepared, among others, the OCCUPANCY AGREEMENT, recognizing Mr. Stier’s free and undisturbed use of the property for his residence and business operations. The OCCUPANCY AGREEMENT was tied up with a loan which Mr. Stier had extended to Mr. Donton.6

Complainant averred that respondent’s act of preparing the Occupancy Agreement, despite knowledge that Stier, being a foreign national, is disqualified to own real property in his name, constitutes serious misconduct and is a deliberate violation of the Code. Complainant prayed that respondent be disbarred for advising Stier to do something in violation of law and assisting Stier in carrying out a dishonest scheme.

In his Comment dated 19 August 2003, respondent claimed that complainant filed the disbarment case against him upon the instigation of complainant’s counsel, Atty. Bonifacio A. Alentajan,7 because respondent refused to act as complainant’s witness in the criminal case against Stier and Maggay. Respondent admitted that he "prepared and notarized" the Occupancy Agreement and asserted its genuineness and due execution.

In a Resolution dated 1 October 2003, the Court referred the matter to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.

The IBP’s Report and Recommendation

In her Report dated 26 February 2004 ("Report"), Commissioner Milagros V. San Juan ("Commissioner San Juan") of the IBP Commission on Bar Discipline found respondent liable for taking part in a "scheme to circumvent the constitutional prohibition against foreign ownership of

land in the Philippines." Commissioner San Juan recommended respondent’s suspension from the practice of law for two years and the cancellation of his commission as Notary Public.

In Resolution No. XVI-2004-222 dated 16 April 2004, the IBP Board of Governors adopted, with modification, the Report and recommended respondent’s suspension from the practice of law for six months.

On 28 June 2004, the IBP Board of Governors forwarded the Report to the Court as provided under Section 12(b), Rule 139-B8 of the Rules of Court.

On 28 July 2004, respondent filed a motion for reconsideration before the IBP. Respondent stated that he was already 76 years old and would already retire by 2005 after the termination of his pending cases. He also said that his practice of law is his only means of support for his family and his six minor children.

In a Resolution dated 7 October 2004, the IBP denied the motion for reconsideration because the IBP had no more jurisdiction on the case as the matter had already been referred to the Court.

The Ruling of the Court

The Court finds respondent liable for violation of Canon 1 and Rule 1.02 of the Code.

A lawyer should not render any service or give advice to any client which will involve defiance of the laws which he is bound to uphold and obey.9 A lawyer who assists a client in a dishonest scheme or who connives in violating the law commits an act which justifies disciplinary action against the lawyer.10

By his own admission, respondent admitted that Stier, a U.S. citizen, was disqualified from owning real property.11Yet, in his motion for reconsideration,12 respondent admitted that he caused the transfer of ownership to the parcel of land to Stier. Respondent, however, aware of the prohibition, quickly rectified his act and transferred the title in complainant’s name. But respondent provided "some safeguards" by preparing several documents,13including the Occupancy Agreement, that would guarantee Stier’s recognition as the actual owner of the property despite its transfer in complainant’s name. In effect, respondent advised and aided Stier in circumventing the constitutional prohibition against foreign ownership of lands14 by preparing said documents.

Respondent had sworn to uphold the Constitution. Thus, he violated his oath and the Code when he prepared and notarized the Occupancy Agreement to evade the law against foreign ownership of lands. Respondent used his knowledge of the law to achieve an unlawful end. Such an act amounts to malpractice in his office, for which he may be suspended.15

In Balinon v. De Leon,16 respondent Atty. De Leon was suspended from the practice of law for three years for preparing an affidavit that virtually permitted him to commit concubinage. In In re: Santiago,17 respondent Atty. Santiago was suspended from the practice of law for one year for preparing a contract which declared the spouses to be single again after nine years of separation and allowed them to contract separately subsequent marriages.

WHEREFORE, we find respondent Atty. Emmanuel O. Tansingco GUILTY of violation of Canon 1 and Rule 1.02 of the Code of Professional Responsibility. Accordingly, we SUSPEND respondent Atty. Emmanuel O. Tansingco from the practice of law for SIX MONTHS effective upon finality of this Decision.

Let copies of this Decision be furnished the Office of the Bar Confidant to be appended to respondent’s personal record as an attorney, the Integrated Bar of the Philippines, the Department of Justice, and all courts in the country for their information and guidance.

SO ORDERED.

A.C. No. 376 April 30, 1963

JOSEFINA ROYONG, complainant, vs.ATTY. ARISTON OBLENA, respondent.

BARRERA, J.:

In a verified complaint filed with this Court on January 14, 1959, complainant Josefina Royong charged the respondent Ariston J. Oblena, a member of the Philippine Bar, with rape allegedly committed on her person in the manner described therein. Upon requirement of this Court, the respondent filed his answer denying all the allegations in the complaint and praying that he be not disbarred. On February 3, 1959, this Court referred the case to the Solicitor General for investigation, report and recommendation.

On July 10, 1961, the Solicitor General submitted his report on the case with the recommendation that the respondent "be permanently removed from his office lawyer and his name be stricken from the roll of attorneys". The pertinent part of the report reads as follows:

The complainant testified that after lunch on August 5, 1958, Cecilia Angeles, her foster mother, left her alone in their house and went down to the pig sty to feed the pigs. At about 1:00 p.m., while she" (complainant) was ironing clothes on the second floor of the house the respondent entered and read a newspaper at her back. Suddenly he covered her mouth with one hand and with the other hand dragged her to one of the bedrooms of the house and forced her to lie down on the floor. She did not shout for help because he threatened her and her family with death. He next undressed as she lay on the floor, then had sexual intercourse with her after he removed her panties and gave her hard blows on the thigh with his fist to subdue her resistance. After the sexual intercourse, he warned her not to report him to her foster parents, otherwise, he would kill her and all the members of her family. She resumed ironing clothes after he left until 5:00 o'clock that afternoon when she joined her foster mother on the first floor of the house. As a result of

the sexual intercourse she became pregnant and gave birth to a baby on June 2, 1959 (pp. 4-8, 21, 23, 26, 27, t.s.n., hearing of Aug. 5, 1959).

She admitted that had she shouted for help she would have been heard by the neighbors that she did not report the outrage to anyone because of the threat made by the respondent; that she still frequented the respondent's house after August 5, 1959, sometimes when he was alone, ran errands for him, cooked his coffee, and received his mail for him. Once, on November 14, 1958, when respondent was sick of influenza, she was left alone with him in his house while her aunt Briccia Angeles left for Manila to buy medicine (pp. 11, 14-18, 24, t.s.n., hearing of August 5, 1959).

The respondent on the witness stand denied that he raped the complainant (p. 3, t.s.n., hearing of March 25 1960). He testified that after lunch on August 5, 1958, he went to the Commission Of Civil Service to follow up his appointment as technical assistant in the office of the mayor of Makati, Rizal, and read the record of the administrative case against Buenaventura Perez (pp. 23, 24, 34, t.s.n., hearing of March 25, 1960, Exhs. 1 and 2).

The respondent, however, admitted that he had illicit relations with the complainant from January, 1957 to December, 1958, when their clandestine affair was discovered by the complainant's foster parents, but to avoid criminal liability for seduction, according to him, he limited himself to kissing and embracing her and sucking her tongue before she completed her eighteenth birthday. They had their first sexual intercourse on May 11, 1958, after she had reached eighteen, and the second one week later, on May 18. The last intercourse took place before Christmas in December, 1958. In all, they had sexual intercourse about fifty times, mostly in her house and sometimes in his house whenever they had the opportunity. He intended to marry her when she could legally contract marriage without her foster parents' intervention, 'in case occasion will permit ... because we cannot ask permission to marry, for her foster parents will object and even my common-law wife, will object.' After the discovery of their relationship by the complainant's foster parents, he confessed the affair to Briccia, explaining that he wanted to have a child, something she (Briccia) could not give him. (pp. 14-16, 19-25, t.s.n., hearing of March 25, 1960).

x x x x x x x x x

FINDINGS AND COMMENT

There is no controversy that the respondent had carnal knowledge of the complainant. The complainant claims she surrendered to him under circumstances of violence and intimidation, but the undersigned are convinced that the sexual intercourse was performed not once but repeatedly and with her consent. From her behaviour before and after the alleged rape, she appears to have been more a sweetheart than of the victim of an outrage involving her honor ....

But the foregoing observations notwithstanding, the undersigned cannot in conscience recommend respondent's exoneration. The respondent tempted Briccia Angeles to live maritally with him not long after she and her husband parted, and it is not improbable that the spouses never reconciled because of him. His own evidence shows that, tiring of her after more than fifteen years of adulterous relationship with her and on the convenient

excuse that she, Briccia Angeles, could not bear a child, he seduced Josefina Andalis, then 17 or 18 years of age, resulting in her pregnancy and the birth of a child, on June 2, 1959. The seduction was accomplished with grave abuse of confidence and by means of promises of marriage which he knew he could not fulfill without grievous injury to the woman who forsook her husband so that he, respondent, could have all of her. He also took advantage of his moral influence over her. From childhood, Josefina Andalis, treated him as an uncle and called him 'tata' (uncle), undoubtedly because he is the paramour of a sister of her mother. Considering her age (she was 17 or 18 years old then), it is not difficult to see why she could not resist him.

The evidence further shows that on July 22, 1954, the respondent filed a sworn petition dated May 22, 1954 alleging "that he is a person of good moral character" (Par. 3) and praying that the Supreme Court permit him "to take the bar examinations to be given on the first Saturday of August, 1954, or at any time as the Court may fix.."

But he was not then the person of good moral character he represented himself to be. From 1942 to the present, he has continuously lived an adulterous life with Briccia Angeles whose husband is still alive, knowing that his concubine is a married woman and that her marriage still subsists. This fact permanently disqualified him from taking the bar examinations, and had it been known to the Supreme Court in 1954, he would not have been permitted to take the bar examinations that year or thereafter, or to take his oath of office as a lawyer. As he was then permanently disqualified from admission to the Philippine Bar by reason of his adulterous relations with a married woman, it is submitted that the same misconduct should be sufficient ground for his permanent disbarment, unless we recognize a double standard of morality, one for membership to the Philippine Bar and another for disbarment from the office of a lawyer.

x x x x x x x x x

RECOMMENDATION

Wherefore, the undersigned respectfully recommend that after due hearing, respondent Ariston J. Oblena be permanently removed from his office as a lawyer and his name be stricken from the roll of attorneys.

In view of his own findings as a result of his investigation, that even if respondent did not commit the alleged rape nevertheless he was guilty of other misconduct, the Solicitor General formulated another complaint which he appended to his report, charging the respondent of falsely and deliberately alleging in his application for admission to the bar that he is a person of good moral character; of living adulterously with Briccia Angeles at the same time maintaining illicit relations with the complainant Josefina Royong, niece of Briccia, thus rendering him unworthy of public confidence and unfit and unsafe to manage the legal business of others, and praying that this Court render judgment ordering "the permanent removal of the respondent ... from his office as a lawyer and the cancellation of his name from the roll of attorneys."

In his answer to this formal complaint, respondent alleged the special defense that "the complaint does not merit action", since the causes of action in the said complaint are different and foreign from the original cause of action for rape and that "the complaint lacks the necessary formalities called for in Sec. 1, Rule 128 of the Rules of Court." Respondent prayed that after due notice and hearing for additional evidence, the complaint be dismissed.

On September 13, 1961, this Court designated the Court Investigators to receive the additional evidence. Accordingly the case was set for hearing of which the parties were duly notified. On September 29, 1961, respondent asked leave to submit a memorandum which was granted, and on October 9, 1961 the same was filed, alleging the following: 1) That the charge of rape has not been proven; 2) That no act of seduction was committed by the respondent; 3) That no act of perjury or fraudulent concealment was committed by the respondent when he filed his petition for admission to the bar; and 4) That the respondent is not morally unfit to be a member of the bar.

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

At the hearing on November 16, 1961, respondent presented his common-law wife, Briccia Angeles, who testified as follows:

... Respondent is her common-law husband (t.s.n. 23). She first met respondent on December 16, 1941 at Cavinti, Laguna (t.s.n. 23). She and her sister Cecilia Angeles-Royong were evacuated to Cavinti by the Red Cross (t.s.n. 23). She was already married (to Teodoro Arines) at the time (t.s.n. 24). She and Arines are from Iriga, Camarines Sur (t.s.n. 24). Respondent and one Mr. Flores registered them (t.s.n. 24) as evacuees. When Mr. Flores asked her about her status she told him she was 'single' (t.s.n. 25). She and her sister, Cecilia, were then told to stay at respondent's house, respondent courted her (t.s.n. 26). Respondent asked her if she was married and she told him 'we will talk about that later on' (t.s.n. 26). She told respondent she was married (to Arines) when she and respondent were already living together as 'husband and wife', in 1942( t.s.n. 26). Respondent asked her to marry him, when they were living as husband and wife (t.s.n. 27). Her sister Cecilia left Cavinti 2 months after their arrival thereat, but she did not go with her because she and respondent 'had already a good understanding'(sexual relations) [t.s.n. 27]. Later, she left Cavinti and went to her hometown in Iriga, Camarines Sur, because respondent was already reluctant to live with her and he told her it was better for her to go home to Iriga (t.s.n. 25). Arriving at Iriga, she met her legitimate husband (Arines), who told her he had already a wife, named Conching Guevara (t.s.n. 28-29). She then went back to Cavinti (in 1943), with her father, and lived with respondent (t.s.n. 29). Respondent eventually agreed that she live with him (t.s.n. 35); in fact, she is still presently living with respondent (t.s.n. 35) [Report of Court Investigators, March 6, 1962, pp. 5-6]."

Thereafter, respondent requested permission to submit an affidavit at a later date, which request was also granted. The affidavit was filed on December 16, 1961, the respondent averring, among others, the following:.

... That he never committed any act or crime of seduction against the complainant, because the latter was born on February 19, 1940, and his first sexual intercourse with her took place on May 11, 1958, when she was already above 18 years of age; that he had been living with his common-law wife, Briccia Angeles, for almost 20 years, but from the time he began courting her, he 'had no intention to alienate' her love for her husband, Arines, or to commit the crime of adultery; that he courted Briccia on October 16, 1941, and was shortly thereafter accepted by her; that on February 21, 1942, he found Briccia alone in his house, who told him that her sister, Cecilia, had gone to Pagsanjan with the other evacuees; that from said date (February 21), to the present, he and Briccia had been living together as common-law husband and wife; that 2 or 3 weeks thereafter, he

asked Briccia to marry him, but she confessed she was already married, and maybe her husband (Arines) was still living in Iriga; that he could not then drive Briccia away, because she was a stranger in the place, nor could he urge her to join her sister Cecilia, as the latter had left Pagsanjan; that in 1943 she told Briccia to separate from him and to return to Iriga, and urged her never to see him again; that contrary to his expectations, Briccia returned to Cavinti 3 months thereafter; that Briccia strongly insisted to live with him again, telling him that she cannot separate from him anymore, as he was ashamed; that Briccia's father told him that Briccia's husband (Arines) had agreed not to molest them as in fact he (Arines) was already living with another woman; that he had 'no choice but to live with her' (Briccia) again; that when he filed his petition to take the bar examinations in 1954, he 'did not have the slightest intention to hide' from this Court the fact of his 'open cohabitation with a married woman' (Briccia Angeles); that he did not state said fact in his petition, because he did not see in the form of the petition being used in 1954 that the fact must be stated; and that since his birth, he thought and believed he was a man of good moral character, and it was only from the Solicitor General that he first learned he was not so; and that he did not commit perjury or fraudulent concealment when he filed his petition to take the bar examinations in 1954." (Report of the Court Investigators, pp. 6-8, March 6, 1962).

After hearing, the investigators submitted a report with the finding that: 1) Respondent used his knowledge of the law to take advantage by having illicit relations with complainant, knowing as he did, that by committing immoral acts on her, he was free from any criminal liability; and 2) Respondent committed gross immorality by continuously cohabiting with a married woman even after he became a lawyer in 1955 to the present; and 3) That respondent falsified the truth as to his moral character in his petition to take the 1954 bar examinations, being then immorally (adulterously) in cohabitation with his common-law wife, Briccia Angeles, a married woman. The investigators also recommended that the respondent be disbarred or alternatively, be suspended from the practice of law for a period of one year.

Upon the submission of this report, a copy of which was served on respondent, through his counsel of record, the case was set for hearing before the Court on April 30, 1962. Respondent asked leave to file his memorandum in lieu of oral argument. This was granted and the corresponding memorandum was duly filed.

It is an admitted and uncontroverted fact that the respondent had sexual relations with the complainant several times, and as a consequence she bore him a child on June 2, 1959; and that he likewise continuously cohabited with Briccia Angeles, in an adulterous manner, from 1942 up to the present.

The main point in issue is thus limited illicit relations with the complainant Josefina Royong the and the open cohabitation with Briccia Angeles, a married woman, are sufficient grounds to cause the respondent's disbarment.

It is argued by the respondent that he is not liable for disbarment notwithstanding his illicit relations with the complainant and his open cohabitation with Briccia Angeles, a married woman, because he has not been convicted of any crime involving moral turpitude. It is true that the respondent has not been convicted of rape, seduction, or adultery on this count, and that the grounds upon which the disbarment proceedings is based are not among those enumerated by Section 25, Rule 127 of the Rules of Court for which a lawyer may be disbarred. But it has already been held that this enumeration is not exclusive and that the power of the courts to exclude unfit and unworthy members of the profession is inherent; it is a necessary incident to the proper administration of

justice; it may be exercised without any special statutory authority, and in all proper cases unless positively prohibited by statute; and the power may be exercised in any manner that will give the party be disbarred a fair trial and a fair opportunity to be heard. (1 Francisco, Rules of Court [1958 ed.] 698, citing In Re Pelaez, 44 Phil. 567). Although it is a well settled rule that the legislature (or the Supreme Court by virtue of its rule-making power) may provide that certain acts or conduct shall require disbarment, the accepted doctrine is that statutes and rules merely regulate the power to disbar instead of creating it, and that such statutes (or rules) do not restrict the general powers of the court over attorneys, who are its officers, and that they may be removed for other than statutory grounds (7 C.J.S. 734). In the United States, where from our system of legal ethics is derived, "the continued possession of a fair private and professional character or a good moral character is a requisite condition for the rightful continuance in the practice of law for one who has been admitted, and its loss requires suspension or disbarment even though the statutes do not specify that as a ground of disbarment". The moral turpitude for which an attorney may be disbarred may consist of misconduct in either his professional or non-professional activities (5 Am. Jur. 417). The tendency of the decisions of this Court has been toward the conclusion that a member of the bar may be removed or suspended from office as a lawyer for other than statutory grounds. Indeed, the rule is so phrased as to be broad enough to cover practically any misconduct of a lawyer (In Re Pelaez, 44 Phil. 567). In the case at bar, the moral depravity of the respondent is most apparent. His pretension that before complainant completed her eighteenth birthday, he refrained from having sexual intercourse with her, so as not to incur criminal liability, as he himself declared — and that he limited himself merely to kissing and embracing her and sucking her tongue, indicates a scheming mind, which together with his knowledge of the law, he took advantage of, for his lurid purpose.

Moreover, his act becomes more despicable considering that the complainant was the niece of his common-law wife and that he enjoyed a moral ascendancy over her who looked up to him as her uncle. As the Solicitor General observed: "He also took advantage of his moral influence over her. From childhood, Josefina Andalis (Royong), treated him as an uncle and called him 'tata' (uncle), undoubtedly because he is the paramour of a sister of her mother. Considering her age (she was 17 or 18 years old then), her inexperience and his moral ascendency over her, it is not difficult to see why she could not resist him." Furthermore, the blunt admission of his illicit relations with the complainant reveals the respondent to be a person who would suffer no moral compunction for his acts if the same could be done without fear of criminal liability. He has, by these acts, proven himself to be devoid of the moral integrity expected of a member of the bar.

The respondent's misconduct, although unrelated to his office, may constitute sufficient grounds for disbarment. This is a principle we have followed since the ruling in In Re Pelaez, 44 Phil. 567, where this Court quoted with approval the following portion of the decision of the Supreme Court of Kansas in the case of Peyton's Appeal (12 Kan. 398, 404), to wit:.

The nature of the office, the trust relation which exists between attorney and client, as well as between court and attorney, and the statutory rule prescribing the qualifications of attorneys, uniformly require that an attorney be a person of good moral character. If that qualification is a condition precedent to a license or privilege to enter upon the practice of the law, it would seem to be equally essential during the continuance of the practice and the exercise of the privilege. So it is held that an attorney will be removed not only for malpractice and dishonesty in his profession, but also for gross misconduct not connected with his professional duties, which shows him to be unfit for the office and unworthy of the privileges which his license and the law confer upon him. (Emphasis supplied).

Respondent's conduct though unrelated to his office and in no way directly bearing on his profession, has nevertheless rendered him unfit and unworthy of the privileges of a lawyer. We cannot give sanction to his acts. For us to do so would be — as the Solicitor General puts it — recognizing "a double standard of morality, one for membership to the Philippine Bar, and another for disbarment from the office of the lawyer." If we concede that respondent's adulterous relations and his simultaneous seduction of his paramour's niece did not and do not disqualify him from continuing with his office of lawyer, this Court would in effect be requiring moral integrity as an essential prerequisite for admission to the bar, only to later on tolerate and close its eyes to the moral depravity and character degeneration of the members of the bar.

The decisions relied upon by the respondent in justifying his stand that even if he admittedly committed fornication, this is no ground for disbarment, are not controlling. Fornication, if committed under such scandalous or revolting circumstances as have proven in this case, as to shock common sense of decency, certainly may justify positive action by the Court in protecting the prestige of the noble profession of the law. The reasons advanced by the respondent why he continued his adulterous relations with Briccia Angeles, in that she helped him in some way finish his law studies, and that his "sense of propriety and Christian charity" did not allow him to abandon her after his admission to the bar after almost 13 years of cohabitation, are hardly an excuse for his moral dereliction. The means he employed, as he stated, in order to extricate himself from the predicament he found himself in, by courting the complainant and maintaining sexual relations with her makes his conduct more revolting. An immoral act cannot justify another immoral act. The noblest means he could have employed was to have married the complainant as he was then free to do so. But to continue maintaining adulterous relations with a married woman and simultaneously maintaining promiscuous relations with the latter's niece is moral perversion that can not be condoned. Respondent's conduct therefore renders him unfit and unworthy for the privileges of the legal profession. As good character is an essential qualification for admission of an attorney to practice, he may be removed therefrom whenever he ceases to possess such character (7 C.J.S. 735).

The respondent further maintains that the Solicitor General exceeded his authority in filing the present complaint against him for seduction, adultery and perjury, as it charges an offense or offenses different from those originally charged in the complaint of January 14, 1959 for rape, and cites as authority Sections 4 and 5 of Rule 128 of the Rules of Court, which state:.

SEC. 4. Report of the Solicitor General.— Based upon the evidence adduced at the hearing, if the Solicitor General finds no sufficient ground to proceed against the respondent, he shall submit a report to the Supreme Court containing his findings of fact and conclusion, whereupon the respondent shall be exonerated unless the court orders differently.

SEC. 5. Complaint of the Solicitor General. Answer of the respondent. — If the Solicitor General finds sufficient ground to proceed against the respondent, he shall file the corresponding complaint, accompanied with all the evidence introduced in his investigation, with the Supreme Court, and the respondent shall be served by the clerk of the Supreme Court with a copy of the complaint with direction to answer the same within fifteen days.

The contention is devoid of merit. Nothing in the language of the foregoing rules requires the Solicitor General to charge in his complaint the same offense charged in the complaint originally filed by the complainant for disbarment. Precisely, the law provides that should the Solicitor General find sufficient grounds to proceed against the respondent, he shall file the corresponding

complaint, accompanied by the evidence introduced in his investigation. The Solicitor General therefore is at liberty to file any case against the respondent he may be justified by the evidence adduced during the investigation..

The respondent also maintains that he did not falsify his petition to take the bar examinations in 1954 since according to his own opinion and estimation of himself at that time, he was a person of good moral character. This contention is clearly erroneous. One's own approximation of himself is not a gauge to his moral character. Moral character is not a subjective term, but one which corresponds to objective reality. Moral character is what a person really is, and not what he or other people think he is. As former Chief Justice Moran observed: An applicant for license to practice law is required to show good moral character, or what he really is, as distinguished from good reputation, or from the opinion generally entertained of him, the estimate in which he is held by the public in the place where he is known. As has been said, ante the standard of personal and professional integrity which should be applied to persons admitted to practice law is not satisfied by such conduct as merely enables them to escape the penalties of criminal law. Good moral character includes at least common honesty (3 Moran, Comments on the Rules of Court, [1957 ed.] 626, citing In Re Weinstein, 42 P. [2d] 744 B.L.D., Cooper v. Greeley. 1 Den. [N.Y.] 3447; In Re Del Rosario, 52 Phil. 399; and People v. Macauley, 82 N.E. 612). Respondent, therefore, did not possess a good moral character at the time he applied for admission to the bar. He lived an adulterous life with Briccia Angeles, and the fact that people who knew him seemed to have acquiesced to his status, did not render him a person of good moral character. It is of no moment that his immoral state was discovered then or now as he is clearly not fit to remain a member of the bar.

WHEREFORE, judgment is hereby entered striking the name of herein respondent, Ariston J. Oblena, from the roll of attorneys.

A.C. No. 6131 February 28, 2005

EDUARDO L. NUÑEZ, EUGENIO O. NUÑEZ, ELISA NUÑEZ-ALVARICO and IMELDA L. NUÑEZ, complainants, vs.Atty. ARTURO B. ASTORGA, respondent.

D E C I S I O N

PANGANIBAN, J.:

Disbarment and suspension of an attorney are the most severe forms of disciplinary action; thus, they should be imposed with great caution. They should be meted out only for duly proven serious administrative charges.1

The Case and the Facts

This administrative case stems from a Complaint-Affidavit2 filed with the Integrated Bar of the Philippines-Commission on Bar Discipline (IBP-CBD) by Eduardo L. Nuñez, Eugenio O. Nuñez, Eliza Nuñez-Alvarico and Imelda L. Nuñez. Atty. Arturo B. Astorga was charged therein with conduct unbecoming a member of the bar. The material averments of the Complaint are summarized by the IBP-CBD as follows:

"Complainants allege that sometime on June 5, 1968, the late Maria Ortega Vda. De Nu[ñ]ez executed a Sale with Right to Repurchase in favor of Eugenio O. Nu[ñ]ez Lot No. 106 covered by OCT No. 2651 (now TCT No. 8955) containing an area of 384 sq. ms. for a consideration of P400.00. In the said contract, the stipulated time of repurchase was ten (10) years from the date of execution thereof or until June 5, 1978. That said period of vendor’s right to repurchase expired without any agreement of extending said period of repurchase. To date, even the heirs of the late Maria Ortega Vda. de Nu[ñ]ez have not exercised[d] their right of repurchase. A year after the execution of the said pacto de ret[r]o sale, the late Maria Ortega Vda. de Nu[ñ]ez and her son Ricardo Nu[ñ]ez, as the surviving heirs of the late Eleuterio Nu[ñ]ez, extrajudicially partitioned his estate, among others, the subject [L]ot No. 106 was adjudicated to Ricardo Nu[ñ]ez which eventually was the basis for the issuance of TCT No. 8955 in the name of Ricardo Nu[ñ]ez. Eugenio O. Nu[ñ]ez [has] occupied and possessed said Lot No. 106 for more than 40 years up to the present and it is also where his children, Eduardo, Elisa and Imelda, all surnamed Nu[ñ]ez, grew and [are] presently residing.

"By virtue of a power of attorney executed sometime in 1982 by the late spouses Ricardo Nu[ñ]ez and Paterna Nu[ñ]ez appointing respondent as administrator, as well as on the alleged judicial confirmation of respondent’s wife, as acknowledged natural child of Ricardo Nu[ñ]ez, respondent, on the pretext of administering the properties of the late spouses, had been disturbing the peaceful occupation and possession of complainants of Lot No. 106 claiming that complainants have no right over the same. With our desire to peaceably settle the controversy, complainants agreed to buy Lot No. 106, and respondent, who, without being appointed by the court as administrator of the intestate estate of the late spouses Ricardo Nu[ñ]ez and Paterna Nu[ñ]ez, sold and conveyed to Imelda Nu[ñ]ez and Elisa Nu[ñ]ez-Alvarico the portions of Lot No. 106 they were occupying. After which Elisa Nu[ñ]ez-Alvarico filed a criminal complaint for Estafa against respondent before the Municipal Trial Court of Baybay, Leyte docketed as Criminal Case No. R-4013-A.1a\^/phi1.net

"Sometime on 29 March 2001 at around 7:30 in the evening, respondent went to the house of Eduardo L. Nu[ñ]ez at corner J.P. Laurel and M.L. Quezon Sts., Baybay, Leyte and threatened to kill Eduardo Nu[ñ]ez by uttering the words ‘ipaposil ta ka’ which means ‘I’ll have you shot.’ A complaint for Grave Threats docketed as Case No. R-4012-A was filed by Eduardo L. Nu[ñ]ez before Municipal Trial Court of Baybay, Leyte."3

In a hearing held on June 5, 2002, complainants appeared with their counsel, while respondent was represented by Atty. Arnold Logares. As respondent had not yet filed his answer to the Complaint despite a previous Order dated December 7, 2001, he was granted a period of fifteen (15) days within which to do so. The hearing was thus reset to June 26, 2002.4

On June 26, 2002, only respondent’s counsel, Atty. Arnold Logares, was present. Respondent filed a Motion seeking a cancellation of the scheduled hearing and another extension of fifteen (15) days within which to file his answer. He was thus granted a non-extendible period of fifteen (15) days within which to do so.5

On July 18, 2002, Atty. Astorga finally submitted his Answer.6 He denied that he had utilized his profession to circumvent the law and averred that there were already several pending cases involving the same issues raised by complainants in the present administrative action:

"2. That the Deed of Sale with Right to Repurchase executed by the late Maria Ortega Vda. De Nuñez on June 5, 1968 is more civil in nature and can be best threshed out in the amended complaint of Civil Case No. B-2001-10-27, entitled [‘]The Intestate Estate of the late Spouses Ricardo O. Nuñez, et al versus Spouses Bonito D. Alvarico, et al[‘] for Rescission of Contract[.] [T]he original complaint was filed in October 2001 at the Regional Trial Court, Branch 14, Baybay, Leyte; an amended complaint of which is filed where one of the issues is the declaration of invalidity of the foregoing questioned deed of sale with right to repurchase because if this document is really valid and existing then why did complainant Eugenio Nuñez [affix] his signature as one of the instrumental witnesses in the Deed of Extra-Judicial Partition among Maria Ortega Vda. De Nuñez and Ricardo O. Nuñez on May 19, 1969 otherwise he would have protested at the time of the execution thereof because he is the temporary owner of Lot No. 106, one of the properties subject of partition. Why did he allow the late Ricardo O. Nuñez to take control and full possession and ownership of Lot 106 to his exclusion after the partition in 1969?

x x x x x x x x x

"[3] b) It is not only the authority of the Spouses Ricardo O. Nuñez and Paterna Baltazar that herein respondent is relying as administrator of the said intestate estate but the same had been duly confirmed by the judicially declared daughter of Ricardo O. Nuñez, namely, respondent’s wife Dr. Linda Teresa Tan-Nuñez who confirmed undersign[ed]’s authority as administrator of the aforenamed estate;

"[3] c) With the discovery of the aforenamed deed of sale with the right to repurchase only recently, the complainants were emboldened to actively [question] [the] estate as they now [refuse] to recognize the ownership and long time possession of the real properties forming part of the aforenamed [estate] to belong to the offspring of the late Ricardo O. Nuñez;

"[3] d) Undersigned respondent did not utilize his profession to circumvent the law. Complainants Elisa L. Nuñez and Imelda L. Nuñez are actually renting the cornermost portion of the consolidated Lot Nos. 106 and 107 of the Baybay Cadastre with an area only of 201 square meters, more or less, and when respondent was trying to eject them, complainants negotiated with the respondent to buy their area of Lot No. 106 they rented and in fact actually advanced part of the agreed consideration until their father Eugenio Nuñez discovered an existing document of sale with right to repurchase when they, ill-advised by their counsel [started] filing [a] series of criminal, civil and administrative cases against respondent and his wife at the instigation of their lawyers, the late Atty. Jose C. Modina and their current counsel, Atty. Norjue I. Juego as a way of pressuring

respondent and wife to give up [the] portion they are occupying [of] Lot No. 106[,] including [the] portion which complainant Eduardo Nuñez is now renting of Lot No. 89;

"4. That respondent in response to paragraph 7 of the complaint hereby admit the pendency of Criminal Case No. R-4013-A which was personally filed by Elisa L. Nuñez without the intervention from any government prosecutor but said case is no longer pending in the Municipal Trial Court of Baybay, Leyte when then same was recommended for dismissal x x x. Later it was ordered dismissed by the Asst. Provincial Prosecutor Rosulo U. Vivero and approved by Provincial Prosecutor Teresita S. Lopez on February 22, 2001 x x x but complainants elevated the case for review to the Department of Justice x x x. Because of the pendency of this criminal case with the Department of Justice[,] a prejudicial question now exist[s] whereby this administrative case should be suspended until the resolution of that petition for review by the Department of Justice;

"5. That respondent specifically denies the material allegations of paragraph 8, 9 and 10 of the complaint, the truth of the matter is that Amado Caballes at the instigation of the complain[an]ts and their counsel filed Criminal Case No. R-4011-A with the Municipal Trial Court, Baybay, Leyte which is pending pre-trial. Like Criminal Case No. R-4013-A, the same was filed at the instance of Amado Caballes, x x x. But before the filing of this present action initiated by Mr. Caballes’s counsel and complainants Eduardo Nuñez and Eugenio Nuñez required Mr. Caballes to execute a document of resale on August 14, 2001 despite knowing that the same has already been long redeemed by respondent x x x. Despite legal redemption, and despite Amado Caballes having executed x x x a Deed of Resale which was witnessed by complainant Eugenio Nuñez x x x, the complainants convinced Amado Caballes to file Crim. Case No. R-4011-A[.] x x x. That by virtue of the pendency of Criminal Case No. R-4011-A, there exist[s] a prejudicial question and that further hearing of the present administrative action should be suspended until the outcome of this criminal case;

"6. That respondent is duly authorized to negotiate for the disposal of any part of the Intestate Estate of the late Spouses Ricardo O. Nuñez and Paterna Baltazar x x x.

"7. That regarding paragraph 12 and 13 of the complaint[,] this is a matter of existence and pend[ing] with [the IBP-CBD] and need not be a part of this complaint because this will be threshed out in another hearing[.] [T]he truth of the matter is that respondent had been already acquitted in Crim. Case No. CBU-29395 x x x.

"8. That similar to other cases filed at the instance of the Nuñezes, there is also filed Crim. Case No. R-4012-A for Grave Threats by complainant Eduardo Nuñez and now pending in the Municipal Court of Baybay, Leyte despite the lack of witnesses x x x. Again, the pendency of this case will constitute a prejudicial question which necessarily will suspend further hearing of the present administrative action until the final outcome of the aforesaid Crim. Case No. R-4011-A;"

x x x x x x x x x.7

On August 8, 2002, complainants submitted their Reply.8 Thereafter, IBP-CPD Commissioner Rebecca Villanueva-Maala scheduled the case for hearing on December 11, 2002. On this date, respondent requested and was a granted a period of fifteen (15) days to file his rejoinder. The parties agreed to file simultaneous memoranda on January 15, 2003, after which the case was to be considered submitted for resolution.91awphi1.nét

Report and Recommendation of the IBP

In her Report,10 Commissioner Villanueva-Maala found respondent guilty of serious misconduct. Thus, the investigating commissioner recommended his suspension from the practice of law for a period of one year.

In Resolution No. XV-2003-346 dated June 21, 2003, the Board of Governors of the IBP adopted the Report and Recommendation of Commissioner Villanueva-Maala.

The Resolution, together with the records of the case, was transmitted to this Court for final action, pursuant to Section 12(b) of Rule 139-B of the Rules of Court. Respondent also filed a Petition for Review under Rule 45 of the Rules of Court, to set aside Resolution No. XV-2003-346 of the IBP Board of Governors.

The Court’s Ruling

We disagree with the findings and recommendation of the IBP, but find respondent’s offensive language against complainants and their counsel unbecoming an attorney.

Administrative Liability of Respondent

The legal profession exacts a high standard from its members. Lawyers shall not engage in conduct that adversely reflects on their fitness to practice law. Neither shall they, whether in public or in private life, behave in a scandalous manner to the discredit of the legal profession.11 In gr_ Gonzaga v. Villanueva,12 this Court, citingTucay v. Tucay,13 held thus:

"A lawyer may be disbarred or suspended for any violation of his oath, a patent disregard of his duties, or an odious deportment unbecoming an attorney. Among the grounds enumerated in Section 27, Rule 138 of the Rules of Court are deceit; malpractice; gross misconduct in office; grossly immoral conduct; conviction of a crime involving moral turpitude; any violation of the oath which he is required to take before admission to the practice of law; willful disobedience of any lawful order of a superior court; corrupt or willful appearance as an attorney for a party to a case without authority to do so. The grounds are not preclusive in nature even as they are broad enough as to cover practically any kind of impropriety that a lawyer does or commits in his professional career or in his private life. A lawyer must at no time be wanting in probity and moral fiber, which are not only conditions precedent to his entrance to the Bar but are likewise essential demands for his continued membership therein."14

However, the penalties of disbarment and suspension are severe forms of disciplinary action and must be imposed with great caution.15 The allegations in the Complaint were not substantiated by clear evidence; they were bereft of convincing proof of respondent’s deceit and gross misconduct.

The admission of respondent that there are various cases filed or pending against him does not ipso factoconstitute serious misconduct. His contention that the pending cases against him pose a prejudicial question that will bar the instant administrative case is untenable. Likewise bereft of merit, however, is the finding of the IBP investigating commissioner that the mere existence of the same pending cases constitute serious misconduct on the part of respondent.

Under Section 27 of Rule 138, conviction of a crime involving moral turpitude is a ground for disbarment or suspension. Suspension or disbarment may follow as a matter of course, upon a finding that the crime a lawyer has been convicted of involves moral turpitude. By such conviction,

such lawyer has become unfit to uphold the administration of justice and is no longer possessed of good moral character.16 In the present case, however, while respondent has been charged with several criminal cases involving moral turpitude, he has yet to be convicted of any of them.

Without clear and convincing evidence that he committed acts that allegedly constituted serious misconduct, the mere existence of pending criminal charges cannot be a ground for disbarment or suspension of respondent. To hold otherwise would open the door to harassment of attorneys through the mere filing of numerous criminal cases against them.

Respondent contends that his right to due process was violated when the IBP investigating commissioner failed to conduct a formal investigation.17 As borne by the records, Investigating Commissioner Villanueva-Maala conducted hearings on the case on June 5 and June 26, 2002, during which counsel for respondent, Atty. Logares, appeared. Respondent was allowed to file his Answer, as well as his Rejoinder. And, more important, he himself appeared at the December 11, 2002 hearing when the parties agreed to file simultaneous memoranda, after which the case was deemed submitted for resolution. Records show that respondent filed his Memorandum on January 29, 2003. Hence, he cannot claim that he was not given ample opportunity to rebut the charges filed against him.1awphi1.nét

While we are not convinced that complainants have clearly and convincingly proven the charges of serious misconduct, we do, however, note the use of offensive language in respondent’s pleadings. The Code of Professional Responsibility mandates:

CANON 8 – A lawyer shall conduct himself with courtesy, fairness, and candor toward his professional colleagues, and shall avoid harassing tactics against opposing counsel.

Rule 8.01 – A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise improper.

In his Memorandum18 dated January 15, 2003, the opposing counsel, Atty. Norjue I. Juego, points out the manner and tenor of the language in the Answer19 and the Rejoinder of respondent.20 The latter suggested that complainants and their counsel had caused the filing of several baseless suits, including the present charge, merely to harass and place him in a bad light.21 He hurled insulting language in describing the opposing counsel22 and cast doubts on the latter’s integrity by implying that the lawyer had instigated the filing of the so-called baseless suits, violated the rules on non-forum shopping and committed malpractice.23

Indeed, these statements, particularly the words "who he is despite x x x his shortness not only in size but in arrogance," constitute conduct unbecoming a member of the legal profession and cannot be countenanced by this Court.

A lawyer’s language may be forceful, but should always be dignified; emphatic, but respectful as befitting an advocate. Arguments, whether written or oral, should be gracious to both court and opposing counsel and should use such language as may be properly addressed by one gentleperson to another.24

WHEREFORE, Atty. Arturo B. Astorga is ACQUITTED of the charge of serious misconduct, but is held liable for conduct unbecoming an attorney and is FINED two thousand pesos.

SO ORDERED.

Sandoval-Gutierrez, Corona, and Garcia, JJ., concur.

Carpio-Morales, J., on leave.

A.M. No. (2170-MC) P-1356 November 21, 1979

HON. REMIGIO E. ZARI, complainant, vs.DIOSDADO S. FLORES, respondent.

FERNANDEZ, J.:

In a letter dated July 15, 1976 addressed to the Supreme Court, Hon. Remigio E. Zari, Presiding Judge of Branch VI. City Court of Quezon City, recommended the dismissal from the service of Mr. Diosdado S. Flores, Deputy Clerk of Court of Branch VI, City Court, on the following grounds:

1. Conviction for libel on April 28, 1967, (Criminal Case No. Q- 7171), Branch IV, Court of First Instance, Quezon City), a crime involving moral turpitude. He was sentenced to pay a fine of P500.00, which he paid on July 18, 1974, under Receipt No. 4736418.

2. Presistent attempts to unduly influence the undersigned amounting to undue interest in cases pending before Branch VI as shown by his handwritten notes

to the undersigned and to my present deputy clerk of Court, Atty. Reynaldo Elcano.

On March 8, 1976, Mr. Flores was relieved from his position as Deputy Clerk of Court upon request of the undersigned primarily to dissociate myself from these actuations of Mr. Flores, which I strongly disapproved of, and to avail my Court of the services of a full-fledged lawyer with unquestionable integrity. After his transfer, as can be seen from his handwritten notes, he persisted in taking this unwarranted course of action in at least three (3) cases of Branch VI.

3. Gross discourtesy to superior officers as manifested by his uncalled for and unjustified use of strong and contemptuous language in addressing the City Judges, when he wrote a letter, dated March 11, 1976. 1

In a resolution of this Court dated July 29, 1976, Deputy Clerk of Court Diosdado S. Flores was required to file his answer to the letter of Judge Remigio E. Zari and this case was transferred to the First Division. 2

The respondent filed his answers 3 on August 12, 1976 wherein he alleged, among others, that his conviction for libel did not involve moral turpitude; that the then Commissioner Abelardo Subido, who was also convicted of the crime of libel and was fined P5,000.00, had approved his appointment as Deputy Clerk of Court of Branch VI of the City Court of Quezon City; that the respondent never tried to unduly influence the complainant in the discharge of the latter's duties and responsibilities; that while respondent's language in his letter dated March 11, 1976 is strong, the same could not be considered contemptuous either directly or indirectly, in as much as he was merely expressing the sentiments of an aggrieved employee who deserves a better treatment from his superior after more than six years and nine months of highly dedicated and very efficient service in the City Court of Quezon City; that if ever respondent requested favors from his superior, these were all done in the spirit of friendship which the complainant professed to him before he left Branch VI of the City Court of Quezon City on March 9, 1976; that from October 15, 1975 up to his illegal transfer on March 8, 1976, the respondent was practically doing the work of the complainant; that the respondent has tutored the complainant on the fine interpretation and application of the law; that it was Judge Zari who tried to corrupt him as may be gathered from the following instances: On January 8, 1976, after the trial in Criminal Case No VI-5783 vs. Juanito Chua and two criminal cases against Emerito Lim, Judge Zari instructed the respondent to conduct an ocular inspection on the illegal constructions, subject of the cases; that Judge Zari, likewise, told the respondent to join him for lunch at Alfredo's Steakhouse in Quezon City; that after conducting the ocular inspection, the respondent proceeded to Alfredo's Steakhouse where he joined Judge Zari, Fiscal Loja and the defense counsel of Chua and Lim; that thereafter, Judge Zari directed the respondent not to prepare anymore his report on the ocular inspection to the site; that up to the time of his illegal transfer, the respondent did not see the records of said cases anymore; that in Criminal Case No. VI-166624 vs. Corazon and Macaria Tolentino, for the crime of estafa, the respondent was instructed to convict both the accused because the complainant was a relative of a certain Judge Erochi; and that in Criminal Cases Nos. VI-170682 and VI-170689 versus Gerundio Villanueva y Elazo, Dominador Garcia y Orteza and Balbino Domingo y Ramos, for the crime of theft, he was instructed by Judge Zari to convict the accused Dominador Garcia y Orteza because according to said judge, the complainant is AVESCO.

In a resolution dated September 1, 1976, 4 this Court required Judge Zari to file a reply to the answer of the respondent within ten (10) days from notice thereof.

The complainant alleged in his reply to the answer of the respondent that he had not allowed the respondent to interfere in the preparation of orders and decisions; that while the complainant is aware of his limitations, he is certainly not so naive as to allow someone not a member of the Philippine Bar to "tutor" and give him finer interpretation of the law; that he admits that Criminal Cases Nos. VI-5783 against Juanito Chua and VI-5788-5789 against Emerito Lim are pending before this court; that he did not call the respondent to his chamber and instruct him to conduct an ocular inspection on the illegal constructions; that he did not invite the respondent for lunch that day; that the truth was that after the trial, he went to Alfredo's Steakhouse in the company of his fiscal, Fiscal Guillermo Loja; that while in the said place, the complainant was surprised to see the respondent in the company of the accused; that he counseled the respondent to be more circumspect as these people had cases before his sala; that it is true that from then on up to the relief of the respondent on March 8, 1976, the records of the aforesaid case could not be found by the respondent because the complainant had the records brought inside his chamber in order to forestall any attempt on the part of the respondent to manipulate the records; that he did not instruct the respondent to convict the accused in Criminal Case No. VI-166624 and in Criminal Cases Nos. VI-170682 and VI-170689 just because the complainant is a relative of a certain Judge Erochi and AVESCO, respectively; and that he requested Atty. Reynaldo Elcano to affix his initial in all orders, decisions and sentences in order to pinpoint responsibility. 5

In his reply, the complainant additionally charged that when the respondent applied for the position of Deputy Clerk of Court, Branch VI, City Court of Quezon City, he submitted, among others, an affidavit dated June 10, 1969 that contains the following statement "That I am a person of good moral character and integrity and have no administrative, criminal or police record;" that the respondent also accomplished Civil Service Form No. 212 (1965) which was subscribed and sworn to before then Judge Oscar A. Inocentes; that in the aforesaid data sheet, the respondent admits having acted as counsel for three companies; and that the giving of legal advice by notaries and others who are not admitted to the practice of law is dangerous to the welfare of the community, because such persons have not demonstrated their capacity by submitting to examinations lawfully established in the practice of law.

This administrative case was referred to the Executive Judge of Rizal, Quezon City, for investigation, report and recommendation after City Judge Minerva Genovea and City Judge Aloysius Alday had been allowed to inhibit themselves from investigating this case. 6

District Judge Sergio A. F. Apostol who conducted the investigation of this administrative case recommended that the respondent be separated from the service on the following findings:

The first charge is "conviction for libel which is a crime allegedly involving moral turpitude."

Presidential Decree No. 807, Sec. 36(b) No. 10 provides that one of the grounds for disciplinary action is "conviction of a crime involving moral turpitude."

Evidence adduced by the complainant which was admitted by the respondent was that on April 28, 1967 respondent was convicted of the crime of Libel in Criminal Case No. Q-7171 of Branch IV of the Court of First Instance of Quezon City. Respondent was sentenced to pay a fine of P5,000.00 which he paid on July 18, 1974 under Official Receipt No. 276418.

Moral turpitude has been defined as including any act done contrary to justice, honesty, modesty or good morals. 7

Some of the particular crimes which have been held to involve moral turpitude are adultery, concubinage, 8 rape, arson, evasion of income tax, barratry, bigamy, blackmail, bribery, 9criminal conspiracy to smuggle opium, dueling, embezzlement, extortion, forgery, libel, making fraudulent proof of loss on insurance contract, murder, mutilation of public records, fabrication of evidence, offenses against pension laws, perjury, seduction under promise of marriage, 10estafa, 11 falsification of public document, 12 estafa thru falsification of public document. 13

"Moral turpitude" has been defined as an act of baseness, vileness, or depravity in the private and social duties which a man owes his fellow men, to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals. 14 It implies something immoral in itself, regardless of the fact that it is punishable by law or not. It must not merely be mala prohibita but, the act itself must be inherently immoral. The doing of the act itself, and not its prohibition by statute fixes the moral turpitude. 15 Moral turpitude does not, however, include such acts as are not of themselves immoral but whose illegality lies in the fact of their being positively prohibited. 16Hence, the crime of illegal possession of firearm or ammunition does not involve moral turpitude for under our laws, what is punishable is the possession of a firearm or ammunition without a license or authority. 17

Bribery is admittedly a felony involving moral turpitude. 18

However in another, the Supreme Court seems to imply that libel is not a crime involving moral turpitude.

The mere filing of an information for libel, or serious slander, against a municipal officer is not a ground for suspending him from office, as such offenses do not necessarily involve moral turpitude. 19

When respondent submitted his application for the position of Deputy Clerk of Court of Branch VI, City Court of Quezon City, he submitted among others an affidavit dated June 10, 1969, which reads as follows:

That I am a person of good moral character and integrity and have no administrative, criminal or police record.

On blank space of a personal data sheet opposite question No. 10, which asked if applicant has previously been convicted of a criminal offense, accused placed no. It was later discovered that accused was previously convicted of theft. Accused was acquitted of falsification of public document under Art. 171, par. 4, because there is no legal obligation to reveal previous conviction. 20 However he maybe guilty of perjury under Art. 183. 21

One of the grounds for disciplinary action under PD 807, Sec. 36(b) under No. 13 is "falsification of public documents."

The second charge is "persistent attempts to unduly influence the complainant amounting to undue interest in cases pending before Branch VI as shown by his handwritten notes to the complainant and to his present Deputy Clerk of Court, Atty. Reynaldo Elcano."

Respondent admitted that in writing the four (4) notes (Exhibits "F", "F-1", "F-2", & "F-3"), he intervened for and in behalf of Gaw Chin in Criminal Case No. VI-6196 pending before the sala of the complainant because the accused was a compadre of his friend, Salvador Estrada.

On the other hand, the defense of the respondent is that he was practically doing the work of the complainant and tutoring him in the finer interpretation and application of the law, and he was preparing the decisions in both criminal and civil cases. Thus he was not trying to influence the complainant.

The notes marked as Exhibits "F", "F-1, "F-2", & "F-3" speak for themselves. There is no need for the undersigned to quote the same.

A proposition by an attorney to his client to visit with his wife the family of the judge before whom the client's cause is to be heard, and to endeavor, in conversation thus to be had in advance of the hearing, to commit the judge to an expression of opinion favorable to the client's case warrants his dismissal from the bar. 22

The acts of the respondent amounts to conducts prejudicial to the best interest of the service. 23

The Third charge is "discourtesy to superior Officers as manifested by respondent in calling for and unjust use of strong and contemptuous language in addressing the city judges when he wrote the letter, dated March 11, 1976."

To quote the pertinent provisions of Exhibit "D":

'By the tenor of your reply, you have made the change of heart and have developed cold feet. You have badly

shaken my belief in your credibility. Indeed, you are truly a woman, very fickle and unpredictable, but very impulsive.

I take this as a clear indication of your desire to enlist the sympathies and, if possible, like the other five (5) judges, involved them in the mess originally of your own making and design and align them with you against me, hoping to impress upon me that by the tyranny of numbers, I will be convinced that mine is a lost cause.

However, I regret to inform the six of you that by your conduct, you have dismally failed to live up to your oaths, ...

Kindly pardon me if I say that, the six of you must be out of your wits when you all decided to lay the blame on me and condemned without trial for the alleged inefficiency.

Yes, when you all decided to sacrifice me you are all laboring under deep and nagging hallucinations, induced and prompted by your serious concern to save the face of a colleague.

By the way, could any of the Honorable Judges of Branches I, III, V & IX honestly and truthfully say the public service in their respective branches is efficient, so that they could now come to the succor of a colleague and are also competent to promote the efficiency in Branch VI. My God, if that is true, promotions of Judges in the City Court would be fast, the Purge in the Judiciary would not have affected Quezon City and the unprepared and the inexperienced would not have come to the Bench.'

Respondent reasoned out that the use of strong language by him in his letter was justified and very much called for it being the indubitable manifestation of the indignation and disgust of the respondent, urged upon him by the complainant who engineered the respondent's illegal transfer from Branch VI of the City Court of Quezon City which he holds a valid and subsisting appointment to the Appeal and Docket Division, by virtue of a letter of the Executive Judge (Exhibit "43"), to quote the pertinent provision of which:

'as a measure to promote more efficient public service, after due and circumspect deliberation by and among the judges. '

pursuant to the authority granted to the executive judge under Administrative Order No. 6 of the Supreme Court which provides as follows:

To re-assign temporarily the personnel of one branch (sala) to another branch (sala) or to the Office of the Clerk of

Court, in case of vacancy in the position of Presiding Judge of a branch (sala), or when the interest of the service requires. In the latter case, the assignment shall be made in consultation with the Presiding Judge of the branch (sala) concerned; and in case of disagreement, the assignment of the Executive Judge shall be effective immediately, unless revoked by the Supreme Court.

The transfer was made in consultation with the presiding judge of the branch concerned who is the complainant in this case.

A detail is the movement of an employee from one agency to another without the issuance of an appointment and shall be allowed, only for a limited period in the case of employees occupying professional, technical and scientific positions. If the employee believes that there is no justification for the detail, he may appeal his case to the commission. Pending appeal, the decision to detail the employee shall be executory unless otherwise ordered by the commission.24

An employee may be reassigned from one organizational unit to another in the same agency. Provided: That such reassignment shall not involve reduction in rank, status or salary. 25

In the instant case there was actually a reassignment of employee from one branch to the Office of the Clerk of Court in accordance with Administrative Order No. 6 of the Supreme Court and in consonance with PD 807.

The language of attorney in his motion for reconsideration referring to the Supreme Court as a "Civilized, democratic tribunal," but by innuendo would suggest that it is not; in his motion to inhibit, categorizing the Court's decision as "false, erroneous and illegal" and accusing two justices for being interested in the decision of the case without any basis in fact; asking the other members of the Court to inhibit themselves for favors or benefits received from any of the petitioners including the President — constitute disrespectful language to the Court. It undermines and degrades the administration of justice.

The language is necessary for the defense of client is no justification. It ill behooves an attorney to justify his disrespectful language with the statement that it was necessary for the defense of his client. A client's cause does not permanent an attorney to cross the line between liberty and license. Lawyers must always keep in perspective the thought that "since lawyers are administrators of justice, oathbound servants of society, their first duty is not to their clients, as many suppose, but

to the administration of justice; to this their client's success is wholly subordinate; and their conduct ought to and must be scrupulously observant of law and ethics.26

Thru the use of uncalled language, respondent had committed insubordination, a ground for disciplinary action. 27

The evidence of record supports the findings of the investigating judge.

It is a fact that the respondent was convicted of libel in Criminal Case No. Q-7171 of the Court of First Instance of Rizal, Branch IV, at Quezon City. 7 While this fact alone is not sufficient to warrant disciplinary action, the respondent's conviction for libel shows his propensity to speak ill of others. His letter dated March 11, 1976 to Judge Minerva C. Genovea, then Executive Judge of the City Court of Quezon City 8 contains defamatory and uncalled for language.

The handwritten notes of the respondent regarding different cases pending in Branch VI of the City Court of Quezon City, presided by the complainant, Judge Remigio E. Zari, show that the respondent had exerted undue influence in the disposition of the cases mentioned therein. 9

It is true that conviction for libel does not automatically justify removal of a public officer. 10 However, the fact of conviction for libel of the respondent, taken together with the letter he wrote to then Executive City Judge of the City Court of Quezon City, Judge Minerva C. Genovea, shows the tendency of the respondent to malign people.

Respondent's act of interfering in the cases pending before Branch VI of the City Court of Quezon City presided by the complainant is inimical to the service. This alone warrants severe disciplinary measures.

In his affidavit subscribed and sworn to before then City Judge Oscar A. Inocentes on June 10, 1969, the respondent stated "That I am a person of good moral character and integrity and have no administrative, criminal or police record. " This averment is not true because the respondent had been convicted of libel in Criminal Case No. Q-7171, of the Court of First Instance of Rizal, Branch IV, in a sentence dated April 28, 1967. This prevarication in a sworn statement is another ground for serious disciplinary action.

The removal from the service of the respondent is warranted by the evidence adduced during the investigation conducted by Judge Sergio A. F. Apostol of the Court of First Instance of Rizal, Branch XVI, Quezon City.

WHEREFORE, the respondent, Diosdado S. Flores, is hereby DISMISSED as Deputy Clerk of Court of Branch VI of the City Court of Quezon City, with forfeiture of all retirement privileges and with prejudice to reinstatement in the national and local governments, as well as, in any government instrumentality or agency including government owned or controlled corporations effective upon the finality of this decision.

Let a copy of this decision be attached to his personal record.

SO ORDERED.

A.M. No. 1334 November 28, 1989

ROSARIO DELOS REYES, complainant, vs.ATTY. JOSE B. AZNAR, respondent.

Federico A. Blay for complainant.

Luciano Babiera for respondent.

PER CURIAM:

This is a complaint for disbarment filed against respondent on the ground of gross immorality.

Complainant, a second year medical student of the Southwestern University (Cebu), alleged in her verified complaint that respondent Atty. Jose B. Aznar, then chairman of said university, had carnal knowledge of her for several times under threat that she would fail in her Pathology subject if she would not submit to respondent's lustful desires. Complainant further alleged that when she became pregnant, respondent, through a certain Dr. Gil Ramas, had her undergo forced abortion.

In compliance with the Resolution of the Court dated July 9, 1974, respondent filed his Answer denying any personal knowledge of complainant as well as all the allegations contained in the complaint and by way of special defense, averred that complainant is a woman of loose morality.

On September 2, 1974, the Court Resolved to refer the case to the Solicitor General for investigation, report and recommendation.

The findings of the Solicitor General is summarized as follows:

EVIDENCE FOR THE COMPLAINANT

Complainant Rosario delos Reyes testified that:

1) she was a second year medical student of the Southwestern University, the Chairman of the Board of which was respondent Jose B. Aznar (pp. 11, 15, tsn, June 6, 1975);

2) she however failed in her Pathology subject which prompted her to approach respondent in the latter's house who assured her that she would pass the said subject (pp. 15,16, 26, 33, tsn, June 6, 1975);

3) despite this assurance, however, she failed (p. 33, tsn, June 6, 1975);

4) sometime in February, 1973, respondent told her that she should go with him to Manila, otherwise, she would flunk in all her subjects (pp. 42, 50, tsn, June 6, 1975); ... ... ... ;

5) on February 12, 1973, both respondent and complainant boarded the same plane (Exh. "A") for Manila; from the Manila Domestic Airport, they proceeded to Room 905, 9th Floor of the Ambassador Hotel where they stayed for three days (Exhs. "K", "K-1" to "K-6"; p. 55, tsn, June 6, 1 975);

6) after arriving at the Ambassador Hotel, they dined at a Spanish restaurant at San Marcelino, Malate, Manila for around three hours (pp 56-57, tsn, June 6, 1975);

7) they returned to the hotel at around twelve o'clock midnight, where respondent had carnal knowledge of her twice and then thrice the next morning (p. 59, tsn, June 6, 1975; pp. 154, 155 & 157, tsn, July 18, 1975);

8) complainant consented to the sexual desires of respondent because for her, she would sacrifice her personal honor rather than fail in her subjects (p.6l, tsn, June 6, 1975); ... ... ...;

9) sometime in March, 1973, complainant told respondent that she was suspecting pregnancy because she missed her menstruation (p. 76, tsn, July 17, 1975); ... ... ...;

10) later, she was informed by Dr. Monsanto (an instructor in the college of medicine) that respondent wanted that an abortion be performed upon her (p.82, tsn, July l7, 1975); ... ... ... ;

11) thereafter, Ruben Cruz, a confidant of respondent, and Dr. Monsato fetched her at her boarding house on the pretext that she would be examined by Dr. Gil Ramas (pp. 87-88, tsn, July 17, 1975);

12) upon reaching the clinic of Dr. Ramas she was given an injection and an inhalation mask was placed on her mouth and nose (pp. 88-90, tsn, July 17, 1 975);

13) as a result, she lost consciousness and when she woke up, an abortion had already been performed upon her and

she was weak, bleeding and felt pain all over her body (pp. 90-91, tsn, July 17, 1975); ... ... ... (Rollo, pp. 38-40)

Monica Gutierrez Tan testified that she met complainant and a man whom complainant introduced as Atty. Aznar in front of the Ambassador Hotel (pp. 183-184, tsn, Sept. 10, 1975; Rollo, p. 41).

Dr. Rebecca Gucor and Dr. Artemio Ingco, witnesses for the complainant, testified that abdominal examinations and x-ray examination of the lumbro-sacral region of complainant showed no signs of abnormality (Rollo, p. 42).

The evidence for the respondent as reported by the Solicitor General is summarized as follows:

Edilberto Caban testified that:

1. In December, 1972, respondent Atty. Aznar stayed at Ambassador Hotel with his wife and children; respondent never came to Manila except in December, 1972; (pp. 8-9,. tsn, Nov. 24, 1977);

2. He usually slept with respondent everytime the latter comes to Manila (p. 13, tsn, Nov. 24, 1977; Rollo, pp. 42-43).

Oscar Salangsang, another witness for the respondent stated that:

1. In February, 1973, he went to Ambassador Hotel to meet respondent; the latter had male companions at the hotel but he did not see any woman companion of respondent Aznar;

2. He usually slept with respondent at the Ambassador Hotel and ate with him outside the hotel together with Caban (pp. 8-9, 13-15, tsn, Jan. 13, 1978; Rollo, p. 43).

The Court notes that throughout the period of the investigation conducted by the Solicitor General, respondent Aznar was never presented to refute the allegations made against him.

In his Answer, respondent Aznar alleges that he does not have any knowledge of the allegations in the complaint. As special defense, respondent further alleged that the charge levelled against him is in furtherance of complainant's vow to wreck vengeance against respondent by reason of the latter's approval of the recommendation of the Board of Trustees barring complainant from enrollment for the school year 1973-1974 because she failed in most of her subjects. It is likewise contended that the defense did not bother to present respondent in the investigation conducted by the Solicitor General because nothing has been shown in the hearing to prove that respondent had carnal knowledge of the complainant.

Contrary to respondent's averments, the Solicitor General made a categorical finding to the effect that respondent had carnal knowledge of complainant, to wit:

From the foregoing, it is clear that complainant was compelled to go to Manila with respondent upon the threat of respondent that if she failed to do so, she would flunk in all her subjects and she would never become a medical intern (pp. 42, 50, tsn, June 6, 1975). As respondent was Chairman of the College of Medicine, complainant had every reason to believe him.

It has been established also that complainant was brought by respondent to Ambassador Hotel in Manila for three days where he repeatedly had carnal knowledge of her upon the threat that if she would not give in to his lustful desires, she would fail in her Pathology subject (Exhs. "A", "K", "K-1" to "K-6" pp. 51, 52, 55-59, tsn, June 6, 1975);

xxx xxx xxx

On the other hand, respondent did not bother to appear during the hearing. It is true that he presented Edilberto Caban and Oscar Salangsang who testified that respondent usually slept with them every time the latter came to Manila, but their testimony (sic) is not much of help. None of them mentioned during the hearing that they stayed and slept with respondent on February 12 to February 14, 1973 at Ambassador Hotel. ... ... ... Besides, Edilberto Caban testified that respondent stayed at Ambassador Hotel with his wife and children in December, 1972. The dates in question, however, are February 12 to 14, 1973, inclusive. His (Caban's) testimony, therefore, is immaterial to the present case" (Rollo, pp. 43-44).

In effect, the Solicitor General found that the charge of immorality against respondent Aznar has been substantiated by sufficient evidence both testimonial and documentary; while finding insufficient and uncorroborated the accusation of intentional abortion. The Solicitor General then recommends the suspension of respondent from the practice of law for a period of not less than three (3) years.

On March 16, 1989, the Court Resolved to require the parties to Move in the premises to determine whether any intervening event occurred which would render the case moot and academic (Rollo, p. 69).

On April 12, 1989, the Solicitor General filed a manifestation and motion praying that the case at bar be considered submitted for decision on the bases of the report and recommendation previously submitted together with the record of the case and the evidence adduced (Rollo, p. 75).

After a thorough review of the records, the Court agrees with the finding of the Solicitor General that respondent Aznar, under the facts as stated in the Report of the investigation conducted in the case, is guilty of "grossly immoral conduct" and may therefore be removed or suspended by the Supreme Court for conduct unbecoming a member of the Bar (Sec. 27, Rule 138, Rules of Court).

Respondent failed to adduce evidence sufficient to engender doubt as to his culpability of the offense imputed upon him. With the exception of the self-serving testimonies of two witnesses presented on respondent's behalf, the records are bereft of evidence to exonerate respondent of the act complained of, much less contradict, on material points, the testimonies of complainant herself.

While respondent denied having taken complainant to the Ambassador Hotel and there had sexual intercourse with the latter, he did not present any evidence to show where he was at that date. While this is not a criminal proceeding, respondent would have done more than keep his silence if he really felt unjustly traduced.

It is the duty of a lawyer, whenever his moral character is put in issue, to satisfy this Court that he is a fit and proper person to enjoy continued membership in the Bar. He cannot dispense with nor downgrade the high and exacting moral standards of the law profession (Go v. Candoy, 21 SCRA 439 [1967]). As once pronounced by the Court:

When his integrity is challenged by evidence, it is not enough that he denies the charges against him; he must meet the issue and overcome the evidence for the relator (Legal and Judicial Ethics, by Malcolm, p. 93) and show proofs that he still maintains the highest degree of morality and integrity, which at all times is expected of him. ... In the case of United States v. Tria, 17 Phil. 303, Justice Moreland, speaking for the Court, said:

An accused person sometimes owes a duty to himself if not to the State. If he does not perform that duty, he may not always expect the State to perform it for him. If he fails to meet the obligation which he owes to himself, when to meet it is the easiest of easy things, he is hardy indeed if he demand and expect that same full and wide consideration which the State voluntarily gives to those who by reasonable effort seek to help themselves. This is particularly so when he not only declines to help himself but actively conceals from the State the very means by which it may assist him (Quingwa SCRA 439 [1967]).

The Solicitor General recommends that since the complainant is partly to blame for having gone with respondent to Manila knowing fully well that respondent is a married man ,with children, respondent should merely be suspended from the practice of law for not less than three (3) years (Rollo, p. 47).

On the other hand, respondent in his manifestation and motion dated April 18, 1989 alleges that since a period of about ten (10) years had already elapsed from the time the Solicitor General made his recommendation for a three (3) years suspension and respondent is not practicing his profession as a lawyer, the court may now consider the respondent as having been suspended during the said period and the case dismissed for being moot and academic.

We disagree.

Complainant filed the instant case for disbarment not because respondent reneged on a promise to marry (Quingwa v. Puno, supra). More importantly. complainant's knowledge of of respondent's marital status is not at issue in the case at bar. Complainant submitted to respondent's solicitation for sexual intercourse not because of a desire for sexual gratification but because of respondent's moral ascendancy over her and fear that if she would not accede, she would flunk in her subjects. As chairman of the college of medicine where complainant was enrolled, the latter had every reason to believe that respondent could make good his threats. Moreover, as counsel for respondent would deem it "worthwhile to inform the the Court that the respondent is a scion of a rich family and a very rich man in his own right and in fact is not practicing his profession before the court" (Rollo, p. 70), mere suspension for a limited period, per se, would therefore serve no redeeming purpose. The fact that he is a rich man and does not practice his profession as a

lawyer, does not render respondent a person of good moral character. Evidence of good moral character precedes admission to bar (Sec.2, Rule 138, Rules of Court) and such requirement is not dispensed with upon admission thereto. Good moral character is a continuing qualification necessary to entitle one to continue in the practice of law. The ancient and learned profession of law exacts from its members the highest standard of morality (Quingwa v. Puno, supra).

Under Section 27, Rule 138, "(a) member of the bar may be removed 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, ... " In Arciga v. Maniwang (106 SCRA 591, [1981]), this Court had occasion to define the concept of immoral conduct, as follows:

A lawyer may be disbarred for grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude. A member of the bar should have moral integrity in addition to professional probity.

It is difficult to state with precision and to fix an inflexible standard as to what is grossly immoral conduct or to specify the moral delinquency and obliquity which render a lawyer unworthy of continuing as a member of the bar. The rule implies that what appears to be unconventional behavior to the straight-laced may not be the immoral conduct that warrants disbarment.

Immoral conduct has been defined as 'that which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community' (7 C.J.S. 959).

Where an unmarried female dwarf possessing the intellect of a child became pregnant by reason of intimacy with a married lawyer who was the father of six children, disbarment of the attorney on the ground of immoral conduct was justified (In re Hicks 20 Pac. 2nd 896).

In the present case, it was highly immoral of respondent, a married man with children, to have taken advantage of his position as chairman of the college of medicine in asking complainant, a student in said college, to go with him to Manila where he had carnal knowledge of her under the threat that she would flunk in all her subjects in case she refused.

WHEREFORE, respondent Jose B. Aznar is hereby DISBARRED and his name is ordered stricken off from the Roll of Attorneys.

SO ORDERED.

A.C. No. 7136 August 1, 2007

JOSELANO GUEVARRA, complainant, vs.ATTY. JOSE EMMANUEL EALA, respondent.

D E C I S I O N

PER CURIAM:

Joselano Guevarra (complainant) filed on March 4, 2002 a Complaint for Disbarment1 before the Integrated Bar of the Philippines (IBP) Committee on Bar Discipline (CBD) against Atty. Jose Emmanuel M. Eala a.k.a. Noli Eala (respondent) for "grossly immoral conduct and unmitigated violation of the lawyer's oath."

In his complaint, Guevarra gave the following account:

He first met respondent in January 2000 when his (complainant's) then-fiancee Irene Moje (Irene) introduced respondent to him as her friend who was married to Marianne (sometimes spelled "Mary Ann") Tantoco with whom he had three children.

After his marriage to Irene on October 7, 2000, complainant noticed that from January to March 2001, Irene had been receiving from respondent cellphone calls, as well as messages some of which read "I love you," "I miss you," or "Meet you at Megamall."

Complainant also noticed that Irene habitually went home very late at night or early in the morning of the following day, and sometimes did not go home from work. When he asked about her whereabouts, she replied that she slept at her parents' house in Binangonan, Rizal or she was busy with her work.

In February or March 2001, complainant saw Irene and respondent together on two occasions. On the second occasion, he confronted them following which Irene abandoned the conjugal house.

On April 22, 2001, complainant went uninvited to Irene's birthday celebration at which he saw her and respondent celebrating with her family and friends. Out of embarrassment, anger and humiliation, he left the venue immediately. Following that incident, Irene went to the conjugal house and hauled off all her personal belongings, pieces of furniture, and her share of the household appliances.

Complainant later found, in the master's bedroom, a folded social card bearing the words "I Love You" on its face, which card when unfolded contained a handwritten letter dated October 7, 2000, the day of his wedding to Irene, reading:

My everdearest Irene,

By the time you open this, you'll be moments away from walking down the aisle. I will say a prayer for you that you may find meaning in what you're about to do.

Sometimes I wonder why we ever met. Is it only for me to find fleeting happiness but experience eternal pain? Is it only for us to find a true love but then lose it again? Or is it because there's a bigger plan for the two of us?

I hope that you have experienced true happiness with me. I have done everything humanly possible to love you. And today, as you make your vows . . . I make my own vow to YOU!

I will love you for the rest of my life. I loved you from the first time I laid eyes on you, to the time we spent together, up to the final moments of your single life. But more importantly, I will love you until the life in me is gone and until we are together again.

Do not worry about me! I will be happy for you. I have enough memories of us to last me a lifetime. Always remember though that in my heart, in my mind and in my soul, YOU WILL ALWAYS

. . . AND THE WONDERFUL THINGS YOU DO!

BE MINE . . . . AND MINE ALONE, and I WILL ALWAYS BE YOURS AND YOURS ALONE!

I LOVE YOU FOREVER, I LOVE YOU FOR ALWAYS. AS LONG AS I'M LIVING MY TWEETIE YOU'LL BE!"2

Eternally yours,NOLI

Complainant soon saw respondent's car and that of Irene constantly parked at No. 71-B 11th Street, New Manila where, as he was to later learn sometime in April 2001, Irene was already residing. He also learned still later that when his friends saw Irene on or about January 18, 2002 together with respondent during a concert, she was pregnant.

In his ANSWER,3 respondent admitted having sent the I LOVE YOU card on which the above-quoted letter was handwritten.

On paragraph 14 of the COMPLAINT reading:

14. Respondent and Irene were even FLAUNTING THEIR ADULTEROUS RELATIONSHIP as they attended social functions together. For instance, in or about the third week of September 2001, the couple attended the launch of the "Wine All You Can" promotion of French wines, held at the Mega Strip of SM Megamall B at Mandaluyong City. Their attendance was reported in Section B of the Manila Standard issue of 24 September 2001, on page 21. Respondent and Irene were photographed together; their picture was captioned: "Irene with Sportscaster Noli Eala." A photocopy of the report is attached as Annex C.4 (Italics and emphasis in the original; CAPITALIZATION of the phrase "flaunting their adulterous relationship" supplied),

respondent, in his ANSWER, stated:

4. Respondent specifically denies having ever flaunted an adulterous relationship with Irene as alleged in paragraph 14 of the Complaint, the truth of the matter being that their relationship was low profile and known only to the immediate members of their respective families , and that Respondent, as far as the general public was concerned, was still known to be legally married to Mary Anne Tantoco.5 (Emphasis and underscoring supplied)

On paragraph 15 of the COMPLAINT reading:

15. Respondent's adulterous conduct with the complainant's wife and his apparent abandoning or neglecting of his own family, demonstrate his gross moral depravity, making him morally unfit to keep his membership in the bar. He flaunted his aversion to the institution of marriage, calling it a "piece of paper." Morally reprehensible was his writing the love letter to complainant's bride on the very day of her wedding, vowing to continue his love for her "until we are together again," as now they are.6 (Underscoring supplied),

respondent stated in his ANSWER as follows:

5. Respondent specifically denies the allegations in paragraph 15 of the Complaint regarding his adulterousrelationship and that his acts demonstrate gross moral depravity thereby making him unfit to keep his membership in the bar, the reason being that Respondent's relationship with Irene was not under scandalous circumstances and that as far as his relationship with his own family :

5.1 Respondent has maintained a civil, cordial and peaceful relationship with [his wife] Mary Anne as in fact they still occasionally meet in public, even if Mary Anne is aware of Respondent's special friendship with Irene.

x x x x

5.5 Respondent also denies that he has flaunted his aversion to the institution of marriage by calling the institution of marriage a mere piece of paper because his reference [in his above-quoted handwritten letter to Irene] to the marriage between Complainant and Irene as a piece of paper was merely with respect to the formality of the marriage contract.7 (Emphasis and underscoring supplied)

Respondent admitted8 paragraph 18 of the COMPLAINT reading:

18. The Rules of Court requires lawyers to support the Constitution and obey the laws. The Constitution regards marriage as an inviolable social institution and is the foundation of the family (Article XV, Sec. 2).9

And on paragraph 19 of the COMPLAINT reading:

19. Respondent's grossly immoral conduct runs afoul of the Constitution and the laws he, as a lawyer, has been sworn to uphold. In pursuing obsessively his illicit love for the complainant's wife, he mocked the institution of marriage, betrayed his own family, broke up the complainant's marriage, commits adultery with his wife, and degrades the legal profession.10 (Emphasis and underscoring supplied),

respondent, in his ANSWER, stated:

7. Respondent specifically denies the allegations in paragraph 19 of the Complaint, the reason being thatunder the circumstances the acts of Respondent with respect to his purely personal and low profile special relationship with Irene is neither under

scandalous circumstances nor tantamount to grossly immoral conduct as would be a ground for disbarment pursuant to Rule 138, Section 27 of the Rules of Court.11 (Emphasis and underscoring supplied)

To respondent's ANSWER, complainant filed a REPLY,12 alleging that Irene gave birth to a girl and Irene named respondent in the Certificate of Live Birth as the girl's father. Complainant attached to the Reply, as Annex "A," a copy of a Certificate of Live Birth13 bearing Irene's signature and naming respondent as the father of her daughter Samantha Irene Louise Moje who was born on February 14, 2002 at St. Luke's Hospital.

Complainant's REPLY merited a REJOINDER WITH MOTION TO DISMISS14 dated January 10, 2003 from respondent in which he denied having "personal knowledge of the Certificate of Live Birth attached to the complainant's Reply."15 Respondent moved to dismiss the complaint due to the pendency of a civil case filed by complainant for the annulment of his marriage to Irene, and a criminal complaint for adultery against respondent and Irene which was pending before the Quezon City Prosecutor's Office.

During the investigation before the IBP-CBD, complainant's Complaint-Affidavit and Reply to Answer were adopted as his testimony on direct examination.16 Respondent's counsel did not cross-examine complainant.17

After investigation, IBP-CBD Investigating Commissioner Milagros V. San Juan, in a 12-page REPORT AND RECOMMENDATION18 dated October 26, 2004, found the charge against respondent sufficiently proven.

The Commissioner thus recommended19 that respondent be disbarred for violating Rule 1.01 of Canon 1 of the Code of Professional Responsibility reading:

Rule 1.01: A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct (Underscoring supplied),

and Rule 7.03 of Canon 7 of the same Code reading:

Rule 7.03: A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession. (Underscoring supplied)

The IBP Board of Governors, however, annulled and set aside the Recommendation of the Investigating Commissioner and accordingly dismissed the case for lack of merit, by Resolution dated January 28, 2006 briefly reading:

RESOLUTION NO. XVII-2006-06

CBD Case No. 02-936Joselano C. Guevarra vs.

Atty. Jose Emmanuel M. Ealaa.k.a. Noli Eala

RESOLVED to ANNUL and SET ASIDE, as it is hereby ANNULLED AND SET ASIDE, the Recommendation of the Investigating Commissioner, and to APPROVE the DISMISSAL of the above-entitled case for lack of merit.20 (Italics and emphasis in the original)

Hence, the present petition21 of complainant before this Court, filed pursuant to Section 12 (c), Rule 13922 of the Rules of Court.

The petition is impressed with merit.

Oddly enough, the IBP Board of Governors, in setting aside the Recommendation of the Investigating Commissioner and dismissing the case for lack of merit, gave no reason therefor as its above-quoted 33-word Resolution shows.

Respondent contends, in his Comment23 on the present petition of complainant, that there is no evidence against him.24 The contention fails. As the IBP-CBD Investigating Commissioner observed:

While it may be true that the love letter dated October 7, 2000 (Exh. "C") and the news item published in theManila Standard (Exh. "D"), even taken together do not sufficiently prove that respondent is carrying on an adulterous relationship with complainant's wife, there are other pieces of evidence on record which support the accusation of complainant against respondent.

It should be noted that in his Answer dated 17 October 2002, respondent through counsel made the following statements to wit: "Respondent specifically denies having [ever] flaunted an adulterous relationship with Irene as alleged in paragraph [14] of the Complaint, the truth of the matter being [that] their relationship was low profile and known only to immediate members of their respective families . . . , and Respondent specifically denies the allegations in paragraph 19 of the complaint, the reason being that under the circumstances the acts of the respondents with respect to his purely personal and low profile relationship with Irene is neither under scandalous circumstances nor tantamount to grossly immoral conduct . . ."

These statements of respondent in his Answer are an admission that there is indeed a "special" relationship between him and complainant's wife, Irene, [which] taken together with the Certificate of Live Birth of Samantha Louise Irene Moje (Annex "H-1") sufficiently prove that there was indeed an illicit relationship between respondent and Irene which resulted in the birth of the child "Samantha". In the Certificate of Live Birth of Samantha it should be noted that complainant's wife Irene supplied the information that respondent was the father of the child. Given the fact that the respondent admitted his special relationship with Irene there is no reason to believe that Irene would lie or make any misrepresentation regarding the paternity of the child. It should be underscored that respondent has not categorically denied that he is the father of Samantha Louise Irene Moje.25 (Emphasis and underscoring supplied)

Indeed, from respondent's Answer, he does not deny carrying on an adulterous relationship with Irene, "adultery" being defined under Art. 333 of the Revised Penal Code as that "committed by any married woman who shall have sexual intercourse with a man not her husband and by the man

who has carnal knowledge of her, knowing her to be married, even if the marriage be subsequently declared void."26 (Italics supplied) What respondent denies ishaving flaunted such relationship, he maintaining that it was "low profile and known only to the immediate members of their respective families."

In other words, respondent's denial is a negative pregnant,

a denial pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. It was in effect an admission of the averments it was directed at. Stated otherwise, a negative pregnant is a form of negative expression which carries with it in affirmation or at least an implication of some kind favorable to the adverse party. It is a denial pregnant with an admission of the substantial facts alleged in the pleading. Where a fact is alleged with qualifying or modifying language and the words of the allegation as so qualified or modified are literally denied, it has been held that the qualifying circumstances alone are denied while the fact itself is admitted.27 (Citations omitted; emphasis and underscoring supplied)

A negative pregnant too is respondent's denial of having "personal knowledge" of Irene's daughter Samantha Louise Irene Moje's Certificate of Live Birth. In said certificate, Irene named respondent – a "lawyer," 38 years old – as the child's father. And the phrase "NOT MARRIED" is entered on the desired information on "DATE AND PLACE OF MARRIAGE." A comparison of the signature attributed to Irene in the certificate28 with her signature on the Marriage Certificate29 shows that they were affixed by one and the same person. Notatu dignum is that, as the Investigating Commissioner noted, respondent never denied being the father of the child.

Franklin A. Ricafort, the records custodian of St. Luke's Medical Center, in his January 29, 2003 Affidavit30 which he identified at the witness stand, declared that Irene gave the information in the Certificate of Live Birth that the child's father is "Jose Emmanuel Masacaet Eala," who was 38 years old and a lawyer.31

Without doubt, the adulterous relationship between respondent and Irene has been sufficiently proven by more than clearly preponderant evidence – that evidence adduced by one party which is more conclusive and credible than that of the other party and, therefore, has greater weight than the other32 – which is the quantum of evidence needed in an administrative case against a lawyer.

Administrative cases against lawyers belong to a class of their own. They are distinct from and they may proceed independently of civil and criminal cases.

. . . of proof for these types of cases differ. In a criminal case, proof beyond reasonable doubt is necessary; in an administrative case for disbarment or suspension, "clearly preponderant evidence" is all that is required.33 (Emphasis supplied)

Respondent insists, however, that disbarment does not lie because his relationship with Irene was not, under Section 27 of Rule 138 of the Revised Rules of Court, reading:

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 willful disobedience appearing as an attorney for a party to a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.

The disbarment or suspension of a member of the Philippine Bar by a competent court or other disciplinatory agency in a foreign jurisdiction where he has also been admitted as an attorney is a ground for his disbarment or suspension if the basis of such action includes any of the acts hereinabove enumerated.

The judgment, resolution or order of the foreign court or disciplinary agency shall be prima facie evidence of the ground for disbarment or suspension (Emphasis and underscoring supplied),

under scandalous circumstances.34

The immediately-quoted Rule which provides the grounds for disbarment or suspension uses the phrase "grossly immoral conduct," not "under scandalous circumstances." Sexual intercourse under scandalous circumstances is, following Article 334 of the Revised Penal Code reading:

ART. 334. Concubinage. - Any husband who shall keep a mistress in the conjugal dwelling, or, shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be punished by prision correccional in its minimum and medium periods.

x x x x,

an element of the crime of concubinage when a married man has sexual intercourse with a woman elsewhere.

"Whether a lawyer's sexual congress with a woman not his wife or without the benefit of marriage should be characterized as 'grossly immoral conduct' depends on the surrounding circumstances."35 The case at bar involves a relationship between a married lawyer and a married woman who is not his wife. It is immaterial whether the affair was carried out discreetly. Apropos is the following pronouncement of this Court in Vitug v. Rongcal:36

On the charge of immorality, respondent does not deny that he had an extra-marital affair with complainant, albeit brief and discreet, and which act is not "so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree" in order to merit disciplinary sanction. We disagree.

x x x x

While it has been held in disbarment cases that the mere fact of sexual relations between two unmarriedadults is not sufficient to warrant administrative sanction for such illicit behavior, it is not so with respect to betrayals of the marital vow of fidelity . Even if not all forms of extra-marital relations are punishable under penal law, sexual relations outside marriage is considered disgraceful and immoral as it manifests deliberate disregard of the sanctity of marriage and the marital vows protected by the Constitution and affirmed by our laws.37 (Emphasis and underscoring supplied)

And so is the pronouncement in Tucay v. Atty. Tucay:38

The Court need not delve into the question of whether or not the respondent did contract a bigamous marriage . . . It is enough that the records of this administrative case substantiate the findings of the Investigating Commissioner, as well as the IBP Board of Governors, i.e., that indeed respondent has beencarrying on an illicit affair with a married woman, a grossly immoral conduct and indicative of an extremely low regard for the fundamental ethics of his profession. This detestable behaviorrenders him regrettably unfit and undeserving of the treasured honor and privileges which his license confers upon him.39 (Underscoring supplied)

Respondent in fact also violated the lawyer's oath he took before admission to practice law which goes:

I _________, having been permitted to continue in the practice of law in the Philippines, do solemnly swear that I recognize the supreme authority of the Republic of the Philippines; I will support its Constitution andobey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same; I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well as to the courts as to my clients; and I impose upon myself this voluntary obligation without any mental reservation or purpose of evasion. So help me God. (Underscoring supplied)

Respondent admittedly is aware of Section 2 of Article XV (The Family) of the Constitution reading:

Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.

In this connection, the Family Code (Executive Order No. 209), which echoes this constitutional provision, obligates the husband and the wife "to live together, observe mutual love, respect and fidelity, and render mutual help and support."40

Furthermore, respondent violated Rule 1.01 of Canon 1 of the Code of Professional Responsibility which proscribes a lawyer from engaging in "unlawful, dishonest, immoral or deceitful conduct," and Rule 7.03 of Canon7 of the same Code which proscribes a lawyer from engaging in any "conduct that adversely reflects on his fitness to practice law."

Clutching at straws, respondent, during the pendency of the investigation of the case before the IBP Commissioner, filed a Manifestation41 on March 22, 2005 informing the IBP-CBD that complainant's petition for nullity of his (complainant's) marriage to Irene had been granted by Branch 106 of the Quezon City Regional Trial Court, and that the criminal complaint for adultery complainant filed against respondent and Irene "based on the same set of facts alleged in the instant case," which was pending review before the Department of Justice (DOJ), on petition of complainant, had been, on motion of complainant, withdrawn.

The Secretary of Justice's Resolution of January 16, 2004 granting complainant's Motion to Withdraw Petition for Review reads:

Considering that the instant motion was filed before the final resolution of the petition for review, we are inclined to grant the same pursuant to Section 10 of Department Circular No. 70 dated July 3, 2000, which provides that "notwithstanding the perfection of the appeal, the petitioner may withdraw the same at any time before it is finally resolved, in which case the appealed resolution shall stand as though no appeal has been taken."42 (Emphasis supplied by complainant)

That the marriage between complainant and Irene was subsequently declared void ab initio is immaterial. The acts complained of took place before the marriage was declared null and void.43 As a lawyer, respondent should be aware that a man and a woman deporting themselves as husband and wife are presumed, unless proven otherwise, to have entered into a lawful contract of marriage.44 In carrying on an extra-marital affair with Irene prior to the judicial declaration that her marriage with complainant was null and void, and despite respondent himself being married, he showed disrespect for an institution held sacred by the law. And he betrayed his unfitness to be a lawyer.

As for complainant's withdrawal of his petition for review before the DOJ, respondent glaringly omitted to state thatbefore complainant filed his December 23, 2003 Motion to Withdraw his Petition for Review, the DOJ had already promulgated a Resolution on September 22, 2003 reversing the dismissal by the Quezon City Prosecutor's Office of complainant's complaint for adultery. In reversing the City Prosecutor's Resolution, DOJ Secretary Simeon Datumanong held:

Parenthetically the totality of evidence adduced by complainant would, in the fair estimation of the Department, sufficiently establish all the elements of the offense of adultery on the part of both respondents. Indeed, early on, respondent Moje conceded to complainant that she was going out on dates with respondent Eala, and this she did when complainant confronted her about Eala's frequent phone calls and text messages to her. Complainant also personally witnessed Moje and Eala having a rendezvous on two occasions. Respondent Eala never denied the fact that he knew Moje to be married to complainant[.] In fact, he (Eala) himself was married to another woman. Moreover, Moje's eventual abandonment of their conjugal home, after complainant had once more confronted her about Eala, only served to confirm the illicit relationship involving both respondents. This becomes all the more apparent by Moje's subsequent relocation in No. 71-B, 11th Street, New Manila, Quezon City, which was a few blocks away from the church where she had exchange marital vows with complainant.

It was in this place that the two lovers apparently cohabited. Especially since Eala's vehicle and that of Moje's were always seen there. Moje herself admits that she came to live in the said address whereas Eala asserts that that was where he held office. The happenstance that it was in that said address that Eala and Moje had decided to hold office for the firm that both had formed smacks too much of a coincidence. For one, the said address appears to be a residential house, for that was where Moje stayed all throughout after her separation from complainant. It was both respondent's love nest, to put short; their illicit affair that was carried out there bore fruit a few months later when Moje gave birth to a girl at the nearby hospital of St. Luke's Medical Center. What finally militates against the respondents is the indubitable fact that in the certificate of birth of the girl, Moje furnished the information that Eala was the father. This speaks all too eloquently of the unlawful and damning nature of the adulterous acts of the respondents. Complainant's supposed illegal procurement of the birth certificate is most certainly beside the point for bothrespondents Eala and Moje have not denied, in any

categorical manner, that Eala is the father of the child Samantha Irene Louise Moje.45 (Emphasis and underscoring supplied)

It bears emphasis that adultery is a private offense which cannot be prosecuted de oficio and thus leaves the DOJ no choice but to grant complainant's motion to withdraw his petition for review. But even if respondent and Irene were to be acquitted of adultery after trial, if the Information for adultery were filed in court, the same would not have been a bar to the present administrative complaint.

Citing the ruling in Pangan v. Ramos,46 viz:

x x x The acquittal of respondent Ramos [of] the criminal charge is not a bar to these [administrative] proceedings. The standards of legal profession are not satisfied by conduct which merely enables one to escape the penalties of x x x criminal law. Moreover, this Court, in disbarment proceedings is acting in an entirely different capacity from that which courts assume in trying criminal case47 (Italics in the original),

this Court in Gatchalian Promotions Talents Pools, Inc. v. Atty. Naldoza,48 held:

Administrative cases against lawyers belong to a class of their own. They are distinct from and they mayproceed independently of civil and criminal cases.

WHEREFORE, the petition is GRANTED. Resolution No. XVII-2006-06 passed on January 28, 2006 by the Board of Governors of the Integrated Bar of the Philippines is ANNULLED and SET ASIDE.

Respondent, Atty. Jose Emmanuel M. Eala, is DISBARRED for grossly immoral conduct, violation of his oath of office, and violation of Canon 1, Rule 1.01 and Canon 7, Rule 7.03 of the Code of Professional Responsibility.

Let a copy of this Decision, which is immediately executory, be made part of the records of respondent in the Office of the Bar Confidant, Supreme Court of the Philippines. And let copies of the Decision be furnished the Integrated Bar of the Philippines and circulated to all courts.

This Decision takes effect immediately.

SO ORDERED.

ADM. CASE No. 3319 June 8, 2000

LESLIE UI, complainant, vs.ATTY. IRIS BONIFACIO, respondent.

DE LEON, JR., J.:

Before us is an administrative complaint for disbarment against Atty. Iris Bonifacio for allegedly carrying on an immoral relationship with Carlos L. Ui, husband of complainant, Leslie Ui.

The relevant facts are:

On January 24, 1971 complainant Leslie Ui married Carlos L. Ui at the Our Lady of Lourdes Church in Quezon City1 and as a result of their marital union, they had four (4) children, namely, Leilani, Lianni, Lindsay and Carl Cavin, all surnamed Ui. Sometime in December 1987, however, complainant found out that her husband. Carlos Ui, was carrying on an illicit relationship with respondent Atty. Iris Bonifacio with whom he begot a daughter sometime in 1986, and that they had been living together at No. 527 San Carlos Street, Ayala Alabang Village in Muntinlupa City. Respondent who is a graduate of the College of Law of the University of the Philippines was admitted to the Philippine Bar in 1982.

Carlos Ui admitted to complainant his relationship with the respondent. Complainant then visited respondent at her office in the later part of June 1988 and introduced herself as the legal wife of Carlos Ui. Whereupon, respondent admitted to her that she has a child with Carlos Ui and alleged, however; that everything was over between her and Carlos Ui. Complainant believed the representations of respondent and thought things would turn out well from then on and that the illicit relationship between her husband and respondent would come to an end.

However, complainant again discovered that the illicit relationship between her husband and respondent continued, and that sometime in December 1988, respondent and her husband, Carlos Ui, had a second child. Complainant then met again with respondent sometime in March 1989 and pleaded with respondent to discontinue her illicit relationship with Carlos Ui but to no avail. The illicit relationship persisted and complainant even came to know later on that respondent had been employed by her husband in his company.

A complaint for disbarment, docketed as Adm. Case No. 3319, was then filed on August 11, 1989 by the complainant against respondent Atty. Iris Bonifacio before the Commission on Bar Discipline

of the Integrated Bar of the Philippines (hereinafter, Commission) on the ground of immorality, more particularly, for carrying on an illicit relationship with the complainant's husband, Carlos Ui. In her Answer,2 respondent averred that she met Carlos Ui sometime in 1983 and had known him all along to be a bachelor, with the knowledge, however, that Carlos Ui had children by a Chinese woman in Amoy, China, from whom he had long been estranged. She stated that during one of their trips abroad, Carlos Ui formalized his intention to marry her and they in fact got married in Hawaii, USA in 19853. Upon their return to Manila, respondent did not live with Carlos Ui. The latter continued to live with his children in their Greenhills residence because respondent and Carlos Ui wanted to let the children gradually to know and accept the fact of his second marriage before they would live together.4

In 1986, respondent left the country and stayed in Honolulu, Hawaii and she would only return occasionally to the Philippines to update her law practice and renew legal ties. During one of her trips to Manila sometime in June 1988, she was confronted by a woman who insisted that she was the lawful wife of Carlos Ui. Hurt and desolate upon her discovery of the true civil status of Carlos Ui, respondent then left for Honolulu, Hawaii sometime in July 1988 and returned only in March 1989 with her two (2) children. On March 20, 1989, a few days after she reported to work with the law firm5 she was connected with, the woman who represented herself to be the wife of Carlos Ui again came to her office, demanding to know if Carlos Ui has been communicating with her.

It is respondent's contention that her relationship with Carlos Ui is not illicit because they were married abroad and that after June 1988, when respondent discovered Carlos Ui's true civil status, she cut off all her ties with him. Respondent averred that Carlos Ui never lived with her in Alabang, and that he resided at 26 Potsdam Street, Greenhills, San Juan, Metro Manila. It was respondent who lived in Alabang in a house which belonged to her mother, Rosalinda L. Bonifacio; and that the said house was built exclusively from her parents' funds.6 By way of counterclaim, respondent sought moral damages in the amount of Ten Million Pesos (Php10,000,000.00) against complainant for having filed the present allegedly malicious and groundless disbarment case against respondent.

In her Reply7 dated April 6, 1990, complainant states, among others, that respondent knew perfectly well that Carlos Ui was married to complainant and had children with her even at the start of her relationship with Carlos Ui, and that the reason respondent went abroad was to give birth to her two (2) children with Carlos Ui.

During the pendency of the proceedings before the Integrated Bar, complainant also charged her husband, Carlos Ui, and respondent with the crime of Concubinage before the Office of the Provincial Fiscal of Rizal, docketed as I.S. No. 89-5247, but the same was dismissed for insufficiency of evidence to establish probable cause for the offense charged. The resolution dismissing the criminal complaint against respondent reads:

Complainant's evidence had prima facie established the existence of the "illicit relationship" between the respondents allegedly discovered by the complainant in December 1987. The same evidence however show that respondent Carlos Ui was still living with complainant up to the latter part of 1988 and/or the early part of 1989.

It would therefore be logical and safe to state that the "relationship" of respondents started and was discovered by complainant sometime in 1987 when she and respondent Carlos were still living at No. 26 Potsdam Street, Northeast Greenhills, San Juan, Metro Manila and they, admittedly, continued to live together at their conjugal home up to early (sic) part of 1989 or later 1988, when respondent Carlos left the same.

From the above, it would not be amiss to conclude that altho (sic) the relationship, illicit as complainant puts it, had been prima facie established by complainant's evidence, this same evidence had failed to even prima facie establish the "fact of respondent's cohabitation in the concept of husband and wife at the 527 San Carlos St., Ayala Alabang house, proof of which is necessary and indispensable to at least create probable cause for the offense charged. The statement alone of complainant, worse, a statement only of a conclusion respecting the fact of cohabitation does not make the complainant's evidence thereto any better/stronger (U.S. vs. Casipong and Mongoy, 20 Phil. 178).

It is worth stating that the evidence submitted by respondents in support of their respective positions on the matter support and bolster the foregoing conclusion/recommendation.

WHEREFORE, it is most respectfully recommended that the instant complaint be dismissed for want of evidence to establish probable cause for the offense charged.

RESPECTFULLY SUBMITTED.8

Complainant appealed the said Resolution of the Provincial Fiscal of Rizal to the Secretary of Justice, but the same was dismissed9 on the ground of insufficiency of evidence to prove her allegation that respondent and Carlos Ui lived together as husband and wife at 527 San Carlos Street, Ayala Alabang, Muntinlupa, Metro Manila.

In the proceedings before the IBP Commission on Bar Discipline, complainant filed a Motion to Cite Respondent in Contempt of the Commission 10 wherein she charged respondent with making false allegations in her Answer and for submitting a supporting document which was altered and intercalated. She alleged that in the Answer of respondent filed before the Integrated Bar, respondent averred, among others, that she was married to Carlos Ui on October 22, 1985 and attached a Certificate of Marriage to substantiate her averment. However, the Certificate of Marriage 11 duly certified by the State Registrar as a true copy of the record on file in the Hawaii State Department of Health, and duly authenticated by the Philippine Consulate General in Honolulu, Hawaii, USA revealed that the date of marriage between Carlos Ui and respondent Atty. Iris Bonifacio was October 22, 1987, and not October 22, 1985 as claimed by respondent in her Answer. According to complainant, the reason for that false allegation was because respondent wanted to impress upon the said IBP that the birth of her first child by Carlos Ui was within the wedlock. 12 It is the contention of complainant that such act constitutes a violation of Articles 183 13 and 184 14 of the Revised Penal Code, and also contempt of the Commission; and that the act of respondent in making false allegations in her Answer and submitting an altered/intercalated document are indicative of her moral perversity and lack of integrity which make her unworthy to be a member of the Philippine Bar.

In her Opposition (To Motion To Cite Respondent in Contempt), 15 respondent averred that she did not have the original copy of the marriage certificate because the same was in the possession of Carlos Ui, and that she annexed such copy because she relied in good faith on what appeared on the copy of the marriage certificate in her possession.

Respondent filed her Memorandum 16 on February 22, 1995 and raised the lone issue of whether or not she has conducted herself in an immoral manner for which she deserves to be barred from the practice of law. Respondent averred that the complaint should be dismissed on two (2) grounds, namely:

(i) Respondent conducted herself in a manner consistent with the requirement of good moral character for the practice of the legal profession; and

(ii) Complainant failed to prove her allegation that respondent conducted herself in an immoral manner.

In her defense, respondent contends, among others, that it was she who was the victim in this case and not Leslie Ui because she did not know that Carlos Ui was already married, and that upon learning of this fact, respondent immediately cut-off all her ties with Carlos Ui. She stated that there was no reason for her to doubt at that time that the civil status of Carlos Ui was that of a bachelor because he spent so much time with her, and he was so open in his courtship. 18

On the issue of the falsified marriage certificate, respondent alleged that it was highly incredible for her to have knowingly attached such marriage certificate to her Answer had she known that the same was altered. Respondent reiterated that there was no compelling reason for her to make it appear that her marriage to Carlos Ui took place either in 1985 or 1987, because the fact remains that respondent and Carlos Ui got married before complainant confronted respondent and informed the latter of her earlier marriage to Carlos Ui in June 1988. Further, respondent stated that it was Carlos Ui who testified and admitted that he was the person responsible for changing the date of the marriage certificate from 1987 to 1985, and complainant did not present evidence to rebut the testimony of Carlos Ui on this matter.

Respondent posits that complainant's evidence, consisting of the pictures of respondent with a child, pictures of respondent with Carlos Ui, a picture of a garage with cars, a picture of a light colored car with Plate No. PNS 313, a picture of the same car, and portion of the house and ground, and another picture of the same car bearing Plate No. PNS 313 and a picture of the house and the garage, 19 does not prove that she acted in an immoral manner. They have no evidentiary value according to her. The pictures were taken by a photographer from a private security agency and who was not presented during the hearings. Further, the respondent presented the Resolution of the Provincial Fiscal of Pasig in I.S. Case No. 89-5427 dismissing the complaint filed by Leslie Ui against respondent for lack of evidence to establish probable cause for the offense charged 20 and the dismissal of the appeal by the Department of Justice21 to bolster her argument that she was not guilty of any immoral or illegal act because of her relationship with Carlos Ui. In fine, respondent claims that she entered the relationship with Carlos Ui in good faith and that her conduct cannot be considered as willful, flagrant, or shameless, nor can it suggest moral indifference. She fell in love with Carlos Ui whom she believed to be single, and, that upon her discovery of his true civil status, she parted ways with him.

In the Memorandum 22 filed on March 20, 1995 by complainant Leslie Ui, she prayed for the disbarment of Atty. Iris Bonifacio and reiterated that respondent committed immorality by having intimate relations with a married man which resulted in the birth of two (2) children. Complainant testified that respondent's mother, Mrs. Linda Bonifacio, personally knew complainant and her husband since the late 1970s because they were clients of the bank where Mrs. Bonifacio was the Branch Manager. 23 It was thus highly improbable that respondent, who was living with her parents as of 1986, would not have been informed by her own mother that Carlos Ui was a married man. Complainant likewise averred that respondent committed disrespect towards the Commission for submitting a photocopy of a document containing an intercalated date.

In her Reply to Complainant's Memorandum 24, respondent stated that complainant miserably failed to show sufficient proof to warrant her disbarment. Respondent insists that contrary to the allegations of complainant, there is no showing that respondent had knowledge of the fact of marriage of Carlos Ui to complainant. The allegation that her mother knew Carlos Ui to be a married man does not prove that such information was made known to respondent.

Hearing on the case ensued, after which the Commission on Bar Discipline submitted its Report and Recommendation, finding that:

In the case at bar, it is alleged that at the time respondent was courted by Carlos Ui, the latter represented himself to be single. The Commission does not find said claim too difficult to believe in the light of contemporary human experience.

Almost always, when a married man courts a single woman, he represents himself to be single, separated, or without any firm commitment to another woman. The reason therefor is not hard to fathom. By their very nature, single women prefer single men.

The records will show that when respondent became aware the (sic) true civil status of Carlos Ui, she left for the United States (in July of 1988). She broke off all contacts with him. When she returned to the Philippines in March of 1989, she lived with her brother, Atty. Teodoro Bonifacio, Jr. Carlos Ui and respondent only talked to each other because of the children whom he was allowed to visit. At no time did they live together.

Under the foregoing circumstances, the Commission fails to find any act on the part of respondent that can be considered as unprincipled or disgraceful as to be reprehensible to a high degree. To be sure, she was more of a victim that (sic) anything else and should deserve compassion rather than condemnation. Without cavil, this sad episode destroyed her chance of having a normal and happy family life, a dream cherished by every single girl.

x x x x x x x x x

Thereafter, the Board of Governors of the Integrated Bar of the Philippines issued a Notice of Resolution dated December 13, 1997, the dispositive portion of which reads as follows:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner in the above-entitled case, herein made part of this Resolution/Decision as Annex "A", and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, the complaint for Gross Immorality against Respondent is DISMISSED for lack of merit. Atty. Iris Bonifacio is REPRIMANDED for knowingly and willfully attaching to her Answer a falsified Certificate of Marriage with a stern warning that a repetition of the same will merit a more severe penalty.

We agree with the findings aforequoted.

The practice of law is a privilege. A bar candidate does not have the right to enjoy the practice of the legal profession simply by passing the bar examinations. It is a privilege that can be revoked,

subject to the mandate of due process, once a lawyer violates his oath and the dictates of legal ethics. The requisites for admission to the practice of law are:

a. he must be a citizen of the Philippines;

b. a resident thereof;

c. at least twenty-one (21) years of age;

d. a person of good moral character;

e. he must show that no charges against him involving moral turpitude, are filed or pending in court;

f. possess the required educational qualifications; and

g. pass the bar examinations. 25 (Emphasis supplied)

Clear from the foregoing is that one of the conditions prior to admission to the bar is that an applicant must possess good moral character. More importantly, possession of good moral character must be continuous as a requirement to the enjoyment of the privilege of law practice, otherwise, the loss thereof is a ground for the revocation of such privilege. It has been held —

If good moral character is a sine qua non for admission to the bar, then the continued possession of good moral character is also a requisite for retaining membership in the legal profession. Membership in the bar may be terminated when a lawyer ceases to have good moral character. (Royong vs. Oblena, 117 Phil. 865).

A lawyer may be disbarred for "grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude". A member of the bar should have moral integrity in addition to professional probity.

It is difficult to state with precision and to fix an inflexible standard as to what is "grossly immoral conduct" or to specify the moral delinquency and obliquity which render a lawyer unworthy of continuing as a member of the bar. The rule implies that what appears to be unconventional behavior to the straight-laced may not be the immoral conduct that warrants disbarment.

Immoral conduct has been defined as "that conduct which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community." (7 C.J.S. 959).26

In the case at bar, it is the claim of respondent Atty. Bonifacio that when she met Carlos Ui, she knew and believed him to be single. Respondent fell in love with him and they got married and as a result of such marriage, she gave birth to two (2) children. Upon her knowledge of the true civil status of Carlos Ui, she left him.

Simple as the facts of the case may sound, the effects of the actuations of respondent are not only far from simple, they will have a rippling effect on how the standard norms of our legal practitioners should be defined. Perhaps morality in our liberal society today is a far cry from what it used to be before. This permissiveness notwithstanding, lawyers, as keepers of public faith, are burdened with a higher degree of social responsibility and thus must handle their personal affairs with greater caution. The facts of this case lead us to believe that perhaps respondent would not have found herself in such a compromising situation had she exercised prudence and been more vigilant in finding out more about Carlos Ui's personal background prior to her intimate involvement with him.

Surely, circumstances existed which should have at least aroused respondent's suspicion that something was amiss in her relationship with Carlos Ui, and moved her to ask probing questions. For instance, respondent admitted that she knew that Carlos Ui had children with a woman from Amoy, China, yet it appeared that she never exerted the slightest effort to find out if Carlos Ui and this woman were indeed unmarried. Also, despite their marriage in 1987, Carlos Ui never lived with respondent and their first child, a circumstance that is simply incomprehensible considering respondent's allegation that Carlos Ui was very open in courting her.

All these taken together leads to the inescapable conclusion that respondent was imprudent in managing her personal affairs. However, the fact remains that her relationship with Carlos Ui, clothed as it was with what respondent believed was a valid marriage, cannot be considered immoral. For immorality connotes conduct that shows indifference to the moral norms of society and the opinion of good and respectable members of the community. 27 Moreover, for such conduct to warrant disciplinary action, the same must be "grossly immoral," that is, it must be so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree. 28

We have held that "a member of the Bar and officer of the court is not only required to refrain from adulterous relationships . . . but must also so behave himself as to avoid scandalizing the public by creating the belief that he is flouting those moral standards." 29 Respondent's act of immediately distancing herself from Carlos Ui upon discovering his true civil status belies just that alleged moral indifference and proves that she had no intention of flaunting the law and the high moral standard of the legal profession. Complainant's bare assertions to the contrary deserve no credit. After all, the burden of proof rests upon the complainant, and the Court will exercise its disciplinary powers only if she establishes her case by clear, convincing and satisfactory evidence. 30 This, herein complainant miserably failed to do.

On the matter of the falsified Certificate of Marriage attached by respondent to her Answer, we find improbable to believe the averment of respondent that she merely relied on the photocopy of the Marriage Certificate which was provided her by Carlos Ui. For an event as significant as a marriage ceremony, any normal bride would verily recall the date and year of her marriage. It is difficult to fathom how a bride, especially a lawyer as in the case at bar, can forget the year when she got married. Simply stated, it is contrary to human experience and highly improbable.

Furthermore, any prudent lawyer would verify the information contained in an attachment to her pleading, especially so when she has personal knowledge of the facts and circumstances contained therein. In attaching such Marriage Certificate with an intercalated date, the defense of good faith of respondent on that point cannot stand.

It is the bounden duty of lawyers to adhere unwaveringly to the highest standards of morality.1avvphi1 The legal profession exacts from its members nothing less. Lawyers are called

upon to safeguard the integrity of the Bar, free from misdeeds and acts constitutive of malpractice. Their exalted positions as officers of the court demand no less than the highest degree of morality.

WHEREFORE, the complaint for disbarment against respondent Atty. Iris L. Bonifacio, for alleged immorality, is hereby DISMISSED.

However, respondent is hereby REPRIMANDED for attaching to her Answer a photocopy of her Marriage Certificate, with an altered or intercalated date thereof, with a STERN WARNING that a more severe sanction will be imposed on her for any repetition of the same or similar offense in the future.

SO ORDERED.

A.C. No. 4256 February 13, 2004

JOVITA BUSTAMANTE-ALEJANDRO, complainant vs.ATTYS. WARFREDO TOMAS ALEJANDRO and MARICRIS A. VILLARIN, respondents.

D E C I S I O N

PER CURIAM:

This is an administrative case filed in 1994 by Jovita Bustamante-Alejandro charging respondents Atty. Warfredo Tomas Alejandro and Atty. Maricris A. Villarin with bigamy and concubinage.

Complainant alleged that respondent, Atty. Warfredo Tomas Alejandro, is her husband; that they were married on March 3, 1971 at Alicia, Isabela, as evidenced by their Marriage Contract;1 that she bore him three (3) sons, namely, Dino, Eric, and Carlo, born in 1971, 1973, and 1978, respectively, as evidenced by their respective Certificates of Live Birth;2 that respondent abandoned her and their children in 1990 to live with his mistress, respondent Atty. Ma. Cristina Arrieta Villarin,3 at 27-C Masbate St., Quezon City; that respondents have since then been publicly representing themselves as husband and wife; that respondent Atty. Villarin gave birth to Paolo Villarin Alejandro on January 17, 1992 as a result of her immoral and scandalous relationship with complainant’s husband whom she named as the father of her son in the latter’s Certificate of Live Birth;4 and, that in said Certificate of Live Birth, respondent Atty. Villarin identified herself as "Ma. Cristina V. Alejandro" having been married to Atty. Alejandro on May 1, 1990 at Isabela Province. Complainant alleged that she filed this administrative complaint when she learned that her husband has been nominated as a regional trial court judge. She insists that he is not fit to be a judge considering that he, and co-respondent Atty. Villarin, do not even possess the basic integrity to remain as members of the Philippine Bar.

We required respondent to comment on the administrative complaint in our Resolution dated July 4, 1994. When copies of our resolution and of the complaint and its annexes addressed to respondent Atty. Alejandro at 27-C Masbate St., Quezon City were returned unserved with notation "moved," we required complainant to submit the correct and present address of her husband.5 No similar return of service with respect to respondent Atty. Villarin appears on the record.

In an Ex-Parte Manifestation and Motion dated December 5, 1994, complainant insisted that her husband’s correct address remains to be 27-C Masbate St., Quezon City; that it was him who told the postman that he had already moved; and, that any subsequent service by mail will result in the same failure as respondent will either refuse service or misrepresent a change of address again. Complainant therefore asked that copies of the complaint and Court resolution requiring comment be served personally upon her husband by the Court’s process servers. We noted and granted the prayer.6 However, when the Court’s process server attempted to effect personal service on February 16, 1995, respondent Atty. Alejandro was allegedly out of the house and his house helper refused to accept service. Consequently we considered the copies as having been served upon respondent Atty. Alejandro in our Resolution of July 31, 1996,7 and required him to show cause why he should not be disciplinary dealt with or held in contempt for his continued failure to file comment, and to file such comment, considering the considerable length of time that has lapsed since he has been first required to do so. Respondent Atty. Alejandro failed to comply. Hence, we fined him P1,000.00 and directed that he file the required explanation and comment on the administrative complaint.8

When copies of both resolutions were again returned unserved with postal notations "moved," we required complainant anew to submit the correct and present address of respondents, within ten (10) days from notice, under pain of dismissal of her administrative complaint.9 In a handwritten letter dated September 10, 1998, complainant disclosed respondents’ present address as "12403 Dunlop Drive, Houston, Texas."10

We referred this case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation, within ninety (90) days from notice, in our Resolution of March 17, 2003.

In a Report dated August 26, 2003, IBP Commissioner Milagros V. San Juan recommended that both respondents be disbarred on the following rationalization:

In its Resolution dated 31 July 1996, the Supreme Court (Second Division) ruled that respondent Atty. Alejandro was deemed served a copy of the instant administrative complaint and of the Court’s Resolution dated 4 July 1994, by substituted service pursuant to Rule 1, Section 6 of the Rules of Court.

In the earlier Resolution of the Supreme Court dated 4 July 1994, respondents Atty. Alejandro and Atty. Villarin were directed to file their Comment on the instant Complaint within ten (10) days from notice of said Resolution. To date, no Comment has been filed by either respondent Atty. Alejandro or Atty. Villarin. x x x

Complainant submitted a photocopy of the Marriage Contract (Annex A of the letter-complaint) between herself and respondent Atty. Alejandro executed on 3 March 1971. Complainant also submitted photocopies of the Birth Certificates (Annexes B to D of the letter-complaint) of the children born out of her marriage to respondent Atty. Alejandro. These documentary evidence submitted by complainant clearly show that there was and is a valid and subsisting marriage between herself and respondent Atty. Alejandro at the time she filed the instant administrative complaint against said respondent, her husband.

In support of her charge of bigamy and concubinage against respondents Alejandro and Villarin, complainant submitted a photocopy of the Birth Certificate (Annex E of the letter-complaint) of one Paolo Villarin Alejandro. The said Birth Certificates states that the mother of said Paolo Villarin Alejandro is "Ma. Cristina Arrieta Villarin", while his father is one "Warfredo Tomas Alejandro". Said Birth Certificate also states that the parents of Paolo Villarin Alejandro were married on May 1, 1990 in Isabela Province.

Given the Birth Certificate of Paolo Villarin Alejandro (Annex E of the letter-complaint), and considering the failure of respondents Atty. Alejandro and Atty. Villarin to deny the charges of complainant, it is submitted that there is sufficient evidence on record which establishes the immoral/illicit relationship between respondents Atty. Alejandro and Atty. Villarin. However, there is no evidence on record which would establish beyond doubt that respondent Atty. Alejandro indeed contracted a second marriage with Atty. Villarin while his marriage to herein complainant was subsisting. Thus, it is recommended that as prayed for by complainant, respondents Atty. Alejandro and Atty. Villarin be disbarred for willful violation of Rule 1.01 of the Code of Professional Responsibility.

The IBP Commission on Bar Discipline adopted and approved the above report and recommendation in its Resolution No. XVI-2003-169 dated September 27, 2003.

We agree with the IBP recommendation with respect to respondent Atty. Alejandro.

Indeed Rule 1.01, Canon 1 of the Code of Professional Responsibility provides –

A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

Thus we have in a number of cases11 disciplined members of the Bar whom we found guilty of misconduct which demonstrated a lack of that good moral character required of them not only as a

condition precedent for their admission to the Bar but, likewise, for their continued membership therein. No distinction has been made as to whether the misconduct was committed in the lawyer’s professional capacity or in his private life. This is because a lawyer may not divide his personality so as to be an attorney at one time and a mere citizen at another.12 He is expected to be competent, honorable and reliable at all times since he who cannot apply and abide by the laws in his private affairs, can hardly be expected to do so in his professional dealings nor lead others in doing so. Professional honesty and honor are not to be expected as the accompaniment of dishonesty and dishonor in other relations.13 The administration of justice, in which the lawyer plays an important role being an officer of the court, demands a high degree of intellectual and moral competency on his part so that the courts and clients may rightly repose confidence in him.14

In the instant case, sufficient evidence was presented to show that respondent Atty. Alejandro, while being lawfully married to complainant, carried on an illicit relationship with another woman, co-respondent Atty. Villarin. Although the evidence presented was not sufficient to prove that he contracted a subsequent bigamous marriage with her, the fact remains that respondent Atty. Alejandro exhibited by his conduct a deplorable lack of that degree of morality required of him as a member of the Bar. We have already held that disbarment proceedings is warranted against a lawyer who abandons his lawful wife and maintains an illicit relationship with another woman15 who had borne him a child.16 We can do no less in the instant case where respondent Atty. Alejandro made himself unavailable to this Court and even fled to another country to escape the consequences of his misconduct.

The same penalty however cannot be imposed on respondent Atty. Villarin. I is noted that our Resolution dated July 4, 1994 requiring comment on the administrative complaint was never "deemed served" upon her, in the same way that it was upon Atty. Alejandro. In fact, it does not appear that copies of the administrative complaint, its annexes, and of our resolution requiring comment were even sent to her. Although sent at the address she allegedly shared with co-respondent Atty. Alejandro, the envelope bearing the copies was addressed to the latter only.17 That was why when both service by registered mail and personal service failed, the copies were deemed served solely upon Atty. Alejandro.18

The IBP for its part attempted to serve copy of the complaint upon Atty. Villarin with directive for her to file answer. It is noted however that the same was sent to respondent’s old address at 27-C Masbate St., Quezon City, not "12403 Dunlop Drive, Houston, Texas," which was respondents’ new address on record supplied by the complainant. The return of service therefore showed the postal notation "moved." Considering the serious consequences of disbarment proceedings, full opportunity upon reasonable notice must have been given respondent to answer the charge and present evidence in her behalf. It is only in clear cases of waiver that an administrative case be resolved sans respondent’s answer.

WHEREFORE, for Gross Immorality, respondent Atty. Warfredo Tomas Alejandro is DISBARRED from the practice of law, to take effect immediately upon his receipt of this Decision. Let copy of this Decision be attached to Atty. Alejandro’s personal record in the Office of the Bar Confidant and a copy thereof be furnished the Integrated Bar of the Philippines.

The complaint against respondent Atty. Maricris A. Villarin is REFERRED BACK to the Integrated Bar of the Philippines for further appropriate proceedings.

SO ORDERED.

A.M. No. P-06-2177 April 19, 2007(Formerly A.M. No. 06-4-268-RTC)

RE: REPORT ON THE FINANCIAL AUDIT CONDUCTED ON THE BOOKS OF ACCOUNTS OF ATTY. RAQUEL G. KHO, CLERK OF COURT IV, REGIONAL TRIAL COURT, ORAS, EASTERN SAMAR

R E S O L U T I O N

CORONA, J.:

In our resolution dated June 27, 2006, we found Atty. Raquel G. Kho, former clerk of court of the Regional Trial Court, Branch 5, Oras, Eastern Samar, guilty of gross misconduct for his failure to make a timely remittance of judiciary funds in his custody as required by OCA Circular No. 8A-93.1 We ordered him to pay a fine of P10,000 for his transgression. The matter did not end there, however. Because his malfeasance prima facie contravened Canon 1, Rule 1.012 of the Code of Professional Responsibility, we ordered him to show cause why he should not be disciplined as a lawyer and as an officer of the court. Atty. Kho submitted his explanation in compliance with our directive. We shall now resolve this pending matter and bring to a close this regrettable chapter in his career as a government lawyer.

In his explanation, Atty. Kho admitted that his failure to make a timely remittance of the cash deposited with him was inexcusable. He maintained, however, that he kept the money in the court’s safety vault and never once used it for his own benefit.

Atty. Kho’s apparent good faith and his ready admission of the infraction, although certainly mitigating, cannot negate the fact that his failure to remit P65,000 in judiciary funds for over a year was contrary to the mandatory provisions of OCA Circular 8A-93. That omission was a breach of his oath to obey the laws as well as the legal orders of the duly constituted authorities3 and of his duties under Canon 1, Rule 1.01 of the Code of Professional Responsibility:

CANON 1 — A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and for legal processes.

RULE 1.01. A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

It is no accident that these are the first edicts laid down in the Code of Professional Responsibility for these are a lawyer’s foremost duties. Lawyers should always keep in mind that, although upholding the Constitution and obeying the law is an obligation imposed on every citizen, a lawyer’s responsibilities under Canon 1 mean more than just staying out of trouble with the law. As servants of the law and officers of the court, lawyers are required to be at the forefront of observing and maintaining the rule of law. They are expected to make themselves exemplars worthy of emulation.4 This, in fact, is what a lawyer’s obligation to promote respect for law and legal processes entails.

The least a lawyer can do in compliance with Canon 1 is to refrain from engaging in unlawful conduct.5 By definition, any act or omission contrary to law is unlawful.6 It does not necessarily imply the element of criminality although it is broad enough to include it.7 Thus, the presence of evil intent on the part of the lawyer is not essential in order to bring his act or omission within the terms of Rule 1.01 which specifically prohibits lawyers from engaging in unlawful conduct.

Atty. Kho’s conduct was not only far from exemplary, it was unlawful as well. For this, he must be called to account. However, his candid and repentant admission of his error, his lack of intent to gain and the fact that this is his first offense should temper his culpability considerably. Under the circumstances, a fine of P5,000 should suffice.

WHEREFORE, Atty. Raquel G. Kho is hereby found GUILTY of unlawful conduct in violation of the Attorney’s Oath, Section 20(a), Rule 138 of the Rules of Court, and Canon 1, Rule 1.01 of the Code of Professional Responsibility. He is ordered to pay a FINE of P5,000 within ten days from receipt of this resolution.

The Financial Management Office, Office of the Court Administrator, is hereby DIRECTED to deduct from Atty. Kho’s accrued leave credits as a former clerk of court of the Regional Trial Court, Branch 5, Oras, Eastern Samar the fines imposed in this resolution and in the resolution dated June 27, 2006.

SO ORDERED.

A.C. No. 4904 August 12, 2004

ANA A. CHUA and MARCELINA HSIA, complainants, vs.ATTY. SIMEON M. MESINA, JR., respondent.

PER CURIAM:

By a verified complaint1 received by the Office of the Bar Confidant on May 5, 1998,2 Ana Alvaran Chua and Marcelina Hsia administratively charged Atty. Simeon M. Mesina, Jr., for breach of professional ethics, gross professional misconduct, and culpable malpractice.

As related by complainants, the following facts gave rise to the filing of the complaint.

Respondent was, for years, Ana Alvaran Chua and her now deceased husband Chua Yap An’s legal counsel and adviser upon whom they reposed trust and confidence. They were in fact lessees of a building situated at Burgos Street, Cabanatuan City (Burgos property) owned by respondent’s family, and another property containing an area of 854 sq. m., situated at Melencio Street, Cabanatuan City (Melencio property), also owned by respondent’s family whereon they (spouses Chua) constructed their house. These two properties were mortgaged by the registered owner, respondent’s mother Felicisima Melencio vda. de Mesina (Mrs. Mesina), in favor of the Planters Development Bank to secure a loan she obtained.

As Mrs. Mesina failed to meet her obligation to the bank, respondent convinced complainant Ana Chua and her husband to help Mrs. Mesina by way of settling her obligation in consideration for which the Melencio property would be sold to them at P850.00/sq. m.

Accommodating respondent’s request, the spouses Chua and their business partner, herein co-complainant Marcelina Hsia, settled Mrs. Mesina’s bank obligation in the amount of P983,125.40.

A Deed of Absolute Sale dated January 19, 19853 conveying the Melencio property for P85,400.00 was thereafter executed by Mrs. Mesina, whose name appears therein as "Felicisima M. Melencio," in favor of complainants.

As complainants were later apprised of the amount of capital gains tax they were to pay, they consulted respondent about it. Respondent thus suggested to them that another Deed of Absolute Sale should be executed, antedated to 1979 before the effectivity of the law mandating the payment of capital gains tax. As suggested by respondent, another Deed of Absolute Sale antedated February 9, 19794 was executed by Mrs. Mesina, whose name again appears therein as "Felicisima M. Melencio," in favor of complainants wherein the purchase price was also indicated to be P85,400.00.

After liquidating the advances made by the Chua spouses "in the redemption of the MESINA properties," Mrs. Mesina was found to have "an existing balance" due the spouses in the amount of P400,000.00, on account of which they advised respondent about it. Respondent, by Affidavit of February 18, 1986, "acknowledged such obligation" to be his and undertook to settle it within two years.

Complainants were subsequently issued on January 21, 1986 a title over the Melencio property.

Not long after the execution of the February 9, 1979 Deed of Absolute Sale or in February 1986, one Juanito Tecson (Tecson) filed an Affidavit5 dated February 20, 1986 before the Cabanatuan City Prosecutor’s Office charging respondent’s mother, the spouses Chua, Marcelina Hsia and the two witnesses to the said Deed of Absolute Sale, for Falsification of Public Document and violation of the Internal Revenue Code. In his complaint affidavit, Tecson alleged that he was also a lessee of the Melencio property and was, along with the Chua spouses, supposed to purchase it but that contrary to their agreement, the property was sold only to complainant and her co-complainant, to his exclusion. Tecson went on to relate that the February 9, 1979 Deed of Absolute Sale did not reflect the true value of the Melencio property and was antedated "to evade payment of capital gains tax."

Tecson submitted documents showing that indeed the July 9, 1979 Deed of Absolute Sale was antedated.

Respondent thereupon hatched a plan to dodge the falsification charge against Mrs. Mesina et al. He proposed to complainants that they would simulate a deed of sale of the Melencio property wherein complainants would resell it to Mrs. Mesina.

Heeding the proposal of respondent, complainants executed a Deed of Absolute Sale dated April 1, 19866conveying to "Felicisima M. Melencio" the Melencio property for P85,400.00.

A new title was accordingly issued on April 4, 1986 in the name of "Felicisima M. Melencio," the owner’s copy of which was entrusted to complainants.

Tecson subsequently filed before the Cabanatuan City Prosecutor’s Office an Affidavit of Desistance dated September 5, 19867 alleging that his filing of the criminal complaint "arose out of mere misunderstanding and difference" with herein complainants and their co-respondents and he had no sufficient evidence against them.

Some years later or on May 2, 1990, respondent approached complainants and told them that he would borrow the owner’s copy of Mrs. Mesina’s title with the undertaking that he would, in four months, let Mrs. Mesina execute a deed of sale over the Melencio property in complainants’ favor. In fact, respondent gave complainants a written undertaking8 dated May 2, 1990 reading:

Received the owner’s duplicate copy of TCT No. 4383 issued by the Register of Deeds, Cabanatuan City registered in the name of Felicisima Mesina, widow, consisting of about 854 square meters more or less located at calle Melencio, Cabanatuan City from Mrs. Ana Chua and Marcelina Hsia.

I promise to and undertake to have the Deed of Sale of the above-mentioned property in favor of Ana Chua and Marcelina Hsia to be signed by Mrs. Felicisima Mesina, within four (4) months from date hereof so that the above-mentioned property and title maybe transferred in the name of Ana Chua and Macelina Hsia. (Underscoring supplied)

In the meantime, Mrs. Mesina died "in the early part of 1991."

Despite respondent’s repeated promises "to effect" the transfer of title in complainants’ name, he failed to do so. Complainants were later informed that the Melencio property was being offered for sale to the public.

The spouses Chua and complainant Marcelina Hsia thus filed on August 24, 1992 a Complaint9 against respondent and his two siblings before the Regional Trial Court (RTC) of Nueva Ecija in Cabanatuan City, for "Declaration of Nullity of Sale and Reconveyance of Real Property."

As of the time of the filing of the present administrative complaint in 1998, the civil case against the Mesina siblings was still pending.

This Court, by Resolution of July 13, 1998,10 directed respondent to file Comment on the complaint within ten days.

By Resolution of December 2, 1998,11 this Court, noting that the copy of the Resolution of July 13, 1998 requiring respondent to comment on the complaint sent to him at his office address at S. M. Mesina Law Office, 30 Jupiter St., Paseo de Roxas, Bel-Air Subd., Makati City was returned unserved with the notation "Moved," considered the Resolution of July 13, 1998 served on respondent by substituted service pursuant to Rule 13, Section 8 of the 1997 Rules of Civil Procedure. Respondent was accordingly deemed to have waived the filing of the required comment.

By the same Resolution of December 2, 1998, the case was referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation within ninety days.

The IBP, acting on the complaint, issued a notice of hearing on September 14, 2001,12 copy of which was sent to respondent at his office address via registered mail, covered by Registry Receipt No. 2605 of the Meralco Post Office.13 On the scheduled date of hearing, complainants personally appeared with their counsel. Respondent failed to show up.

Given the length of time that the case remained pending from its filing, the IBP Commission on Bar Discipline, by Order of October 12, 2001,14 directed complainants to just file their position paper with affidavits and supporting documents in lieu of actual presentation of witnesses and to serve a copy thereof to respondent at his last known address.

In compliance with the IBP Order, complainants filed on April 1, 2002 their position paper,15 annexed to which were photocopies of: 1) a May 5, 1993 Certification16 issued by the Metrobank Cabanatuan Branch certifying that "it issued the demand drafts to the payees enumerated below, which were debited from the account of Mr. Chua Yap An under Savings Account No. 760:

D/D No. Payee Amount Date of Issue

214597 Planters Dev. Bank P 805,299.54 12-19-85

214760 Planters Dev. Bank 100,000.00 01-14-86

214761 Atty. Simeon Mesina, Jr. 77,826.10 01-14-86";

2) Affidavit dated February 18, 198617 of respondent acknowledging a debt of P400,000.00 to complainant Ana Alvaran Chua and promising to pay interest thereon within 2 years to commence upon the signing thereof [February 16, 1998] and, in the event no partial or full payment of the principal is made within 2 years, Ana Alvaran Chua "is under no obligation to pay any lease rentals over the lot situated in Burgos Avenue, Cabanatuan City where the Oceanic Hardware Bldg. is erected;" 3) Deed of Absolute Sale dated January 19, 198518 and 4) Deed of Absolute Sale dated July 9, 1979,19 both executed by "Felicisima M. Melencio" in favor of complainant; 5) TCT No. T-4811420 issued by the Cabanatuan City in the name of complainants on January 21, 1986; 6) Affidavit of Juanito C. Tecson21 dated January 20, 1986 charging complainants et al. for Falsification of Public Documents; 7) Deed of Absolute Sale dated April 1, 1986 executed by complainants in favor of Mrs. Mesina;22 and 8) TCT No. T-48383issued on April 4, 1986 in the name of "Felicisima M. Melencio;"23 and 9) Complaint of spouses Chua Yap An and Ana Alvaran Chua and Marcelina Hsia, for Declaration of Nullity of Deed of Sale and Reconveyance of Real Property against respondent and his two siblings.24

A copy of complainant’s position paper was sent on March 18, 2002 to respondent at his office address by registered mail covered by Registry Receipt No. 5278.25 There is no showing if respondent received this mail matter.

The IBP once more scheduled, by notice of December 13, 2002,26 a hearing of the administrative case to January 15, 2003, copy of which notice was sent to respondent at his office address by registered mail covered by Registry Receipt No. 2953 issued by the Meralco Post Office.27

On the scheduled hearing on January 15, 2003, the IBP Investigating Commissioner, by Order of even date,28noted the presence of complainants, and the absence of respondent, copy of the notice of hearing to whom was returned unserved with the notation "RTS-Moved." The case was thereupon deemed submitted for report and recommendation.

On June 21, 2003, the IBP passed Resolution No. XV-2003-34229 adopting and approving the report and recommendation of Atty. Rebecca Villanueva-Maala, the Investigating Commissioner of the case.

In her March 3, 2003 Report and Recommendation,30 Investigation Commissioner Maala observed as follows:

A lawyer should not engage or participate on any unlawful, dishonest, immoral or deceitful conduct. The moral character he displayed when he applied for admission at the Bar must be maintained incessantly. Otherwise, his privilege to practice the legal profession may be withdrawn from him (Rule 1.01, Code of Professional Responsibility). On the basis of the uncontroverted facts and evidence presented, respondent Atty. Simeon M. Mesina has committed gross misconduct which shows him to be unfit for the office and unworthy of the privilege which his license and law confer upon him,

and recommended that respondent be suspended for a period of One (1) Year.

This Court finds that indeed, respondent is guilty of gross misconduct.

First, by advising complainants to execute another Deed of Absolute Sale antedated to 1979 to evade payment of capital gains taxes, he violated his duty to promote respect for law and legal processes,31 and not to abet activities aimed at defiance of the law;32 That respondent intended to, as he did defraud not a private party but the government is aggravating.33

Second, when respondent convinced complainants to execute another document, a simulated Deed of Absolute Sale wherein they made it appear that complainants reconveyed the Melencio property to his mother, he committed dishonesty.34

Third, when on May 2, 1990 respondent inveigled his own clients, the Chua spouses, into turning over to him the owner’s copy of his mother’s title upon the misrepresentation that he would, in four months, have a deed of sale executed by his mother in favor of complainants, he likewise committed dishonesty.

That the signature of "Felicisima M. Melencio" in the 1985 document35 and that in the 1979 document36 are markedly different is in fact is a badge of falsification of either the 1979 or the 1985 document or even both.

A propos is this Court’s following pronouncement in Nakpil v. Valdez 37

As a rule, a lawyer is not barred from dealing with his client but the business transaction must be characterized with utmost honesty and good faith. The measure of good faith which an attorney is required to exercise in his dealings with his client is a much higher standard that is required in business dealings where the parties trade at "arms length." Business transactions between an attorney and his client are disfavored and discouraged by the policy of the law. Hence, courts carefully watch these transactions to assure that no advantage is taken by a lawyer over his client. This rule is founded on public policy for, by virtue of his office, an attorney is in an easy position to take advantage of the credulity and ignorance of his client. Thus, no presumption of innocence or improbability of wrongdoing is considered in an attorney’s favor.38 (Underscoring supplied)

Respondent having welched on his promise to cause the reconveyance of the Melencio property to complainants, consideration of whether he should be ordered to honor such promise should be taken up in the civil case filed for the purpose, the issue there being one of ownership while that in the case at bar is moral fitness.39

In fine, respondent violated his oath of office and, more specifically, the following canons of the Code of Professional Responsibility:

CANON 1. A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND LEGAL PROCESSES.

Rule 1.01. - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

Rule 1.02. - A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system.

CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR.

Rule 7.03. - A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.

CANON 15. A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENTS.

Rule 15.07. - A lawyer shall impress upon his client compliance with the laws and the principles of fairness.

CANON 17. A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM.

WHEREFORE, respondent ATTY. SIMEON M. MESINA, JR. is, for gross misconduct, hereby DISBARRED.

Let copies of this Decision be furnished all courts, the Integrated Bar of the Philippines, and the Office of the Bar Confidant.

SO ORDERED.

A.M. No. 1048 July 14, 1995

WELLINGTON REYES, complainant, vs.ATTY. SALVADOR M. GAA, respondent.

PER CURIAM:

This administrative complaint for disbarment charges respondent, a former Assistant City Fiscal of manila, with malpractice and willful violation of his oath as an attorney.

I

On March 30, 1971, at around 9:00 A.M. complainant reported to the National Bureau of Investigation (NBI) that he had been the victim of extortion by respondent, an Assistant City Fiscal of Manila, who was investigating a complaint for estafa filed by complainant's business rival. According to complainant, he had given respondent P500.00 on March 1, 1971 and a total of P500.00 on three other occasions. He said that another "payoff" was scheduled at 11:00 A.M. that day in respondent's office at the City Hall.

An entrapment was set up by the NBI.

Complainant furnished the NBI agents several peso bills totalling P150.00 for marking. The paper bills were sent to the Forensic and Chemistry Division of the NBI and subsequently returned to complainant for the use in the entrapment.

When complainant went to respondent's office, he was told that the latter would not return until around 2:30 P.M. So complainant and the NBI agents went back at around 2:30 P.M. As there

were other persons doing business with respondent, complainant had to wait for thirty minutes. When finally complainant was able to see respondent, the latter greeted him in Tagalog "Ano ba ang sa iyo?" Complainant answered "Hindi tayo nagkita kaninang umaga." To which respondent replied "Oo, kanina pa kita hinihintay." Complainant then handed to respondent the marked money which he placed inside his right pocket. The NBI agents then apprehended respondent and brought him to the NBI Forensic and Chemistry Division for examination. Respondent's hands were found positive of the yellow florescent powder applied earlier to the marked money. Respondent was thereafter taken to the Office of the Anti-Organized Crime Division of the NBI where he was photographed, fingerprinted and record checked. Respondent declined to give a sworn statement to explain his side of the case, invoking his right against self-incrimination.

On the same date, the NBI recommended the prosecution of respondent for violation of Section 3(b) of R.A. No. 3019.

On April 13, 1971, the NBI recommended to the Secretary of Justice the filing of administrative charges and the institution of disbarment proceedings against him.

On April 21, 1971, President Marcos suspended respondent from office pending investigation and disposition of his administrative case (Case No. 74).

Aside from the criminal complaint and Administrative Case No. 74, two other cases were earlier filed against respondent: namely, Administrative Case No. 10 for Grave Misconduct filed by one Angel Alora on October 13, 1969, wherein respondent was found guilty as charged and was recommended for suspension; and Administrative Case No. 10-A. for partiality filed by Fabiola Fajardo on April 26, 1970, which was pending resolution.

In his answer to the complaint for disbarment, respondent asserted that complainant surreptitiously planted the marked money in his pocket without his knowledge and consent.

He further said that the criminal case (IS No. 71-6558) filed against him by the NBI at the instance of complainant was still pending preliminary investigation by the City Fiscal of Manila. In connection with the incident of March 30, 1971, he said that he had filed a criminal complaint for incriminatory machination, perjury and attempted corruption of a public official against complainant with the City Fiscal of Manila.

In reply to the answer, complainant denied that the several cases against respondent were motivated by revenge, malice or personal ill will. He said that the investigating fiscal had recommended the dismissal of the charges filed by respondent against him.

In a resolution dated December 23, 1971, this Court resolved to refer the disbarment case to the Solicitor General for investigation, report and recommendation. However, upon the adoption of Rule 139-B of the Revised Rules of Court., the case was transferred to the IBP Board of Governors for investigation and disposition.

On March 15, 1993, Commissioner Vicente Q. Roxas of the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP) recommended that respondent be disbarred. Said recommendation was approved by the IBP Board of Governors in its resolution dated March 26, 1994.

II

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

In the case at bench, respondent was caught in flagrante delicto in the act of receiving the marked money from complainant during the entrapment conducted by the NBI agents, which resulted in his arrest and the subsequent filing of administrative and criminal cases against him. In his defense, respondent merely denied the charge of extortion and retorted that the marked money was planted by complainant.

It is settled that affirmative testimony is given greater weight than negative testimony (Delos Reyes v. Aznar, 179 SCRA 653 [1989]). When the integrity of a member of the bar is challenged, it is not enough that he denies the charges against him; he must meet the issue and overcome the evidence against him (Malcolm, Legal and Judicial Ethics 93 [1949]). He must show proof that he still maintains that degree of morality and integrity which at all times is expected of him (Bayasen v. Court of Appeals, 103 SCRA 197 [1981]; Vda. de Ramos v. Court of Appeals, 81 SCRA 393 [1978]).

Where the misconduct of a lawyer as a government official is of such a character as to affect his qualification as a lawyer or to show moral delinquency, then he may be disciplined as a member of the bar on such grounds (Gonzales-Austria v. Abaya, 176 SCRA 634 [1989]).

The extortion committed by respondent constitutes misconduct as a public official, which also constitutes a violation of his oath as a lawyer. The lawyer's oath (Revised Rules of Court, Rule 138, Section 18; People v. De Luna, 102 Phil. 968 [1958]), imposes upon every lawyer the duty to delay no man for money or malice. The lawyer's oath is a source of his obligations and its violation is a ground for his suspension, disbarment or other disciplinary action (Agpalo, Legal Ethics 66-67 [1983]).

WHEREFORE, respondent is DISBARRED and his name is ordered STRICKEN OFF from the Roll of Attorneys. Let a copy of this resolution be furnished the Bar Confidant and the Integrated Bar of the Philippines and spread on the personal records of respondent.

SO ORDERED.

G.R. No. L-47121 July 30, 1979

RODOLFO BERMUDEZ, petitioner, vs.HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

Arceli A. Rubin & Reynold S. Fajardo (CLAO) for petitioner.

Office of the Solicitor General for respondents.

MAKASIAR, J:

Rodolfo Bermudez was accused of having violated paragraph 3 of P.D. No. 9, in an information alleging: têñ.£îhqwâ£

That on or about 10:30 A.M. on the 28th day of December 1975, at Barangay Macarcarmay, Municipality of Bangued, Province of Abra, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously possess, carry and have in his custody outside of his residence one (1) sharp pointed bolo measuring 9 3/4 inches long including handle which is violative of said Presidential Decree.

Convicting said accused as charged, the lower court sentenced him to suffer an imprisonment "of from FIVE (5) to TEN (10) YEARS, with costs de oficio," and ordered the bolo confiscated in favor of the government.

From this decision, the petitioner appealed to the Court of Appeals.

In the brief filed by petitioner herein before the Court of Appeals (therein defendant-appellant), the following statement of facts was made: têñ.£îhqwâ£

In the morning of December 28, 1975 during the town fiesta the accused- appellant in group of five namely Cornelio Buenafe, Jorge Tuzon and one were in their way to the basketball court, when suddenly the accused saw a bolo in a sheath. The bolo look similar to the bolo of Jorge Tuzon so he picked and kept it and placed on his waistline. When he saw Jorge Tuzon, he draw the bolo with intention to show it to him and inquiring whether it belongs to him but he answered no, so he intended to surrender the same to the barrio captain but at

that precise moment Paulino Acena grabbed and got hold of the bolo and ran away, ...

On the other hand, therein plaintiff-appellee (respondent herein) made a counter statement of facts, which follows:têñ.£îhqwâ£

On December 28, 1975, barrio Macarcarmay, Bangued, Abra was celebrating its barrio fiesta. At about 10:30 a.m. on the same day, appellant Rodolfo Bermudez was in the company of Cornelio Buenafe and three (3) other persons near the vicinity of the church in the said barrio, The appellant was then making trouble and challenging all the people.

Suddenly, Paulino Acena, who was also in the said vicinity in his capacity as member of the officials of the Barrio Home Defense Unit saw the appellant drawing a bolo and in the act of injuring Jorge Tuzon. So he immediately rushed at the appellant and grabbed the latter's bolo. When the police authorities arrived about four (4) hours later, he turned over to them the said bolo.

Substantially adopting the foregoing counter-statement of facts by therein plaintiff-appellee, respondent Court of Appeals rendered a decision affirming with modification the decision of the lower court. The dispositive portion of the Court of Appeals decision reads as follows: têñ.£îhqwâ£

... In view of the equities of the case and in the exercise of judicial discretion consonant with the principle that imposition of the absolute minimum penalty prescribed by a special law is not a contravention of the Indeterminate Sentence Law (People vs. Nang Kay, 88 Phil. 515) the judgment of the trial court is hereby modified to the end that the appellant be, as he is hereby, sentenced to suffer the straight penalty of five (5) years imprisonment.

The petitioner subsequently filed a motion for reconsideration which was denied.

Hence, the present petition for review on certiorari.

Presented for Our consideration are two issues, the discussion of the first of which would suffice for Us to grant the petitioner's plea.

The first issue raised by the petitioner is whether or not conviction for violation of Presidential Decree No. 9, paragraph 3, requires that the carrying of the prohibited weapons be connected with the crimes of rebellion, subversion, insurrection, lawless violence, chaos, or disorder.

Even a cursory perusal of Presidential Decree No. 9 would reveal that said decree was handed down by the President for some very definitive purposes-which We quote hereunder for ready reference: têñ.£îhqwâ£

WHEREAS, pursuant to Proclamation No. 1081 dated September 21, 1972, the Philippines has been placed under a state of martial law;

WHEREAS, pursuant to Proclamation No. 1081, General Order No. 6 dated September 22, 1972 and General Order No. 7 dated September 23, 1972, have been promulgated by me;

WHEREAS, subversion, rebellion, insurrection, lawless violence, criminality, chaos and public disorder mentioned in the aforesaid Proclamation No. 1081 are committed and abetted by the use of firearms, explosives and other deadly weapons;

NOW, THEREFORE, I, FERDINAND E. MARCOS. Commander-in- Chief of all the Armed Forces of the Philippines, in order to attain the desired result of the aforesaid Proclamation No. 1081 and General Orders Nos. 6 and 7, do hereby order and decree that;

xxx xxx xxx

3. It is unlawful to carry outside of residence any bladed, pointed or blunt weapon, such as "fanknife," "spear," "dagger," "bolo," "balisong," 'barong," "kris," or club, except where such articles are being used as necessary tools or implements to earn a livelihood and while used in connection therewith, and any person found guilty thereof shall suffer the penalty of imprisonment ranging from five to ten years as a Military Court/Tribunal/Commission may direct.

The foregoing stated purposes of Presidential Decree No. 9 leave no room for doubt that indeed said Decree is one of those issued by the President to further the ends for which Martial Law was declared, that is, to repel, or at least to prevent the spread of rebellion, insurrection, lawless violence, sedition, criminality, chaos and public disorder. In other words, the raison d' etre for P.D. No. 9 is primarily linked with the political purposes for which Proclamation No. 1081 was proclaimed.

The recent case of Abril vs. People (L-46265, Feb. 28, 1978) would serve to enlighted us in this respect. This Court stated thus: têñ.£îhqwâ£

It can safely be stated here that P.D. 9 was issued by His Excellency, the President of the Republic of the Philippines as an offshoot of Proclamation No. 1081, otherwise known as the Martial Law Proclamation. Said Proclamation No. 1081 was declared by the President in view of the situation then attending in our country. In other words, there was reason of primary national interest which led to the said proclamation. And to add more teeth to the same, the President issued Presidential Decree No. 9 which was to repel rebemon, insurrection and sedition then becoming widespread in this country or to prevent at least the further spread of the same. So that, it can be said and admitted that the issuance of PD 9 was based on Proclamation No. 1081.

In this light, an element surfaces as essential for conviction under PD No. 9 ("3. It is unlawful to carry outside of residence any bladed, pointed or blunt weapon, such as 'fanknife,' 'spear,' 'dagger,' 'bolo,' 'balisong,' 'barong,' 'kris,' or club, except where such articles are being used as necessary tools or implements to earn a livelihood and while used in connection therewith, any person found guilty thereof shall suffer the penalty of imprisonment ranging from five to ten years as a Military Court/Tribunal/Commission may direct.") — and that is, that the carrying of the prohibited weapon

was made in connection with the crime of subversion, rebellion, insurrection lawless violence, criminality, chaos and public disorder mentioned in Proclamation No. 1081, considering the penalty attached thereto. Absent this essential element as in this case, an acquittal must follow.

In this case, the record reveals that when state witness Paulino Acena grabbed the bolo from the accused Rodolfo Bermudez on the morning of December 28, 1975 during the barrio fiesta, said accused was not, in any way, involved in any unlawful act of criminality, and more so, in any act of rebellion, subversion, insurrection, lawless violence, criminality and public disorder. The accused was merely in the act of showing the bolo to Jorge Tuzon (or Rodolfo Tuazon) since the former thought it to be the same bolo owned by the latter. Government witness Paulino Acena was ignorant of these events, which is apparent from his own testimony, to sit: têñ.£îhqwâ£

Q On December 28, 1975 do you recall if there was a celebration in Barrio Macarcarmay, Bangued, Abra?

A Yes, there was, sir.

Q What was that celebration on December 28, 1975?

A It was a barrio fiesta, sir.

Q During that celebration of the barrio at about 10:30 in the morning do you recall if you have seen one Rodolfo Bermudez?

A Yes, sir.

Q Where did you see him?

A Near the vicinity of the chapel, sir.

Q What transpired in that place when you saw Rodolfo Bermudez near the vicinity of the chapel?

A I saw Rodolfo Bermudez drawing a knife in front of one person by the name of Rodolfo Tuazon.

Q What did you do as a member of the Home Defense that when you see Rodolfo Bermudez drawing a bolo to Mr. Rodolfo Tuazon?

A Upon my sight I immediately proceeded to him and get the bolo, sir.

COURT

Q What did you apprehend?

A The knife from Rodolfo Bermudez, your Honor.

FISCAL PAREDES

Q At the very moment you confiscated the bolo what was Rodolfo Bermudez doing with the bolo?

ATTY. GENEROSA têñ.£îhqwâ£

It was already answered.

FISCAL PAREDES têñ.£îhqwâ£

We are asking the moment he grabbed the bolo, your Honor.

COURT têñ.£îhqwâ£

Answer the question.

WITNESS

A When I approached the knife was half-drawn from the scabbard, sir.

ATTY. PAREDES têñ.£îhqwâ£

Were you able to get that bolo?

A Yes, sir.

Q At the time you saw the accused in possession of that bolo how many meters?

A About 25 yards, sir.

Q On that date, time and day I presumed there were plenty of people in your barrio?

A Yes, sir.

Q As a matter of fact these people were near the vicinity where the accused was allegedly see him have the bolo?

A They were many of them saw (sic), sir.

Q And the 5 persons were also there near the vicinity?

A They were, sir.

Q When you first saw the accused with the bolo he was already holding the same in his hands?

A No, sir.

Q How then were you able to see the bolo in the possession of the accused?

A I only see the bolo when he was drawing the bolo to Rodolfo Tuazon, sir.

Q Removing the bolo in his scabbard?

A Yes, sir.

Q One hand the scabbard and the other hand holding the bolo?

A Yes, sir.

Q He was showing the bolo to Rodolfo Tuazon?

A That is what I do not know, sir.

Q When you saw the accused doing that thing to the bolo you immediately apprehend him and get hold of the bolo?

A Yes, sir.

Q You see that from a distance of 25 yards?

A Yes, sir.

Q And when you grabbed the bolo from him as your son-in- law he voluntarily gave the bolo to you?

A Yes, sir (pp. 14-16, rec.; emphasis supplied).

The foregoing testimony belies the finding of the respondent Court that before Acena rushed at the accused, the former suddenly saw the latter in the act of drawing a bolo and injuring Jorge Tuzon. In his testimony, Acena denied knowledge of the accused's intention in drawing the bolo from its scabbard. He did not know whether the accused was merely showing the bolo to Tuzon (or Tuazon). He just saw from a distance of 25 yards the accused drawing the bolo in front of Tuzon

(or Tuazon). If the accused wanted to assault Tuzon (or Tuazon), he could have done so before Acena could reach him from 25 yards away. The accused's statement, therefore, that he picked up the bolo to show it to Rodolfo (or Jorge) Tuzon is more tenable, corroborated as it is by the testimony of Jorge Tuzon (or Rodolfo Tuazon) who declared that the accused merely asked him whether the bolo found by the accused belongs to him (Tuzon or Tuazon) [t. s.n., pp. 63-64, hearing of June 28, 1976].

Hence, accused's testimony that he found the bolo at the middle of the barrio road at about 10:30 in the morning of December 28,1975, becomes credible.

In his affidavit taken on December 29, 1975 by policeman Catalino Buenafe of Bangued, Abra, principal state witness Paulino Acena y Bautista stated that he is a retired PC soldier residing at Barangay Macacarmay, Bangued, Abra; that about 11:30 in the morning of December 28, 1975, while the barrio people were in the barrio church, he saw the accused Rodolfo Bermudez (husband of his daughter) holding a bolo facing somebody else; that he went near them and confiscated the bolo from his son-in-law, the accused herein, whom he pulled away from the crowd and advised to keep quiet; that when the accused did not heed his advice, he let him go; that he did not return the bolo because as a retired soldier, he knows that the accused has violated the law; that because he did not return the bolo to the accused, the latter threatened him by saying "there will be a time for you" and thereafter went away; that soon after Patrolman Eduardo Bringas arrived; that he handed to Patrolman Bringas the bolo he confiscated from the accused; that Nicanor Valera and many other persons were present when the incident happened; that Cornelio Buenafe was the companion of the accused who was creating trouble and challenging all the people who panicked; that the bolo he confiscated from the accused was sharp-pointed about 9-3/4 niches long, including its handle and wooden scabbard; that he did not know the person whom the accused was "charging on" when he was holding the bolo; that the accused was then facing Rudy Tuzon (referring to George Tuzon) and many others whom he can no longer remember; and that nobody was wounded during the incident (Exh. C, Translation, p. 2, rec.).

In his testimony in court, state witness Paulino Acena declared at the hearing on June 21, 1976 that he is a member of the Civilian Home Defense Unit of the barrio and a retired PC soldier; that on December 28, 1975, they were celebrating the fiesta of Barrio Macarcarmay, Bangued, Abra; that at about 10:30 in the morning of said date, December 28, 1975, he saw about 25 yards away the accused Rodolfo Bermudez about two meters from the barrio chapel drawing a knife in front of Rodolfo Tuzon (obviously referring to George Tuzon, nicknamed Rudy) in the company of five other persons including Cornelio Buenafe; that he immediately proceeded to the accused from whom he confiscated the bolo; that when he approached the accused the bolo was already half-drawn from its scabbard (Exhibits A & A-1); that he does not know why the accused drew the bolo half- way; that after seizing the bolo from the accused, he counselled him after which the police force arrived; that he gave the bolo to policeman Felipe Bello; that the accused is from Tayum, Abra and resides about 500 yards from the chapel of Barrio Macarcarmay, Bangued, Abra; that he does not know that the accused herein, his son-in-law, is a friend of Rodolfo Tuzon (referring to George Tuzon); that there were many people in the vicinity of the incident; that he did not know whether the accused then was showing the bolo to him; that he did not inquire as to who owned the bolo, but that after the crowd dispersed, he asked the accused who answered that the bolo is his; that Cornelio Buenafe was still with the accused after he confiscated the bolo from the latter, but Cornelio Buenafe also left when the crowd dispersed, although Cornelio Buenafe accompanied the accused to his (Acena's) house to talk with him about the incident; that after getting the bolo from the accused, he immediately left the area because the accused and his companions were challenging him to a fight; that only the accused followed him to his house to get the bolo from him to be used in killing a pig, that after two hours the accused went to his (Acena's) house asking for the bolo; that he told the accused that he will keep the bolo until everything is over; that he kept the

bolo for about three hours inside Ws dresser until the arrival of the police force to whom he surrendered the bolo; that the companions of the accused challenged him to a fight because he refused to return the bolo; and that Tuzon did not run away although he did not see him in the place of the incident after he got the bolo from the accused.

When he was recalled to the witness stand, state witness Acena further stated that as a member of the Civilian Home Defense Force and as a citizen, he was authorized to arrest any person who commits a crime in his presence; and that he reported the incident to the barrio captain and the PC Commander, but he did not state whether he investigated the incident or the circumstances giving rise thereto.

Policeman Felipe Bello testified that he was at the municipal building of Bangued, Abra when a certain Mrs. Brilliantes, the head teacher of Macarcarmay Elementary School, reported to him the trouble that took place in barrio Macarcarmay in the morning of December 28, 1975; that together with patrolmen Eduardo Bringas and Manuel Marilag, he proceeded on a jeep to and reached said barrio about 12 o'clock noon: that he went to the house of Paulino Acena who surrendered the bolo to him telling him that he (Acena) confiscated the bolo from the accused Rodolfo Bermudez; that he issued to Acena a receipt for the bolo; that upon his query, Acena told him that he did not know where the accused had run away; and that they looked vainly for the accused in the vicinity of the incident.

In his defense, the accused presented his testimony and those of Romeo Buenafe, Jorge Tuzon, and Cornelio Buenafe.

The accused Rodolfo Bermudez testified on July 16, 1976 that he was 24 years old (now 26), married and a farmer and resident of Barrio Velasco, Tayug, Abra; that in the morning of December 28, 1975, he was walking on the road going towards the basketball court of barrio Macarcarmay, Bangued, Abra, together with Cornelio Buenafe, Rodolfo Buenafe and two others; that he went to the house of Cornelio Buenafe before proceeding to the basketball court; that on the way, he saw a bolo which he picked up, despite the advice of Cornelio Buenafe not to pick it up as it might work against him later on; that he picked up the bolo because it appeared similar to the bolo of Jorge (or George) Tuzon, one of his defense witnesses and his good friend; that he saw Jorge Tuzon near the church that morning; that he placed the bolo on his waistline; that when he saw Jorge Tuzon at the basketball court he showed the bolo to him and asked him whether it was his and Jorge Tuzon replied that it was not his, he told Tuazon that he had to surrender the same or to any member of the barrio council; that the basketball court is about 80 to 100 meters from where he first saw him (Jorge) near the church; that when he showed the bolo to Tuzon, Cornelio and Rodolfo Buenafe were with him; that after he showed the bolo to Tuzon, he was about to deliver the bolo to Romeo Buenafe, barrio councilman of Barrio Macarcarmay who was approaching them when his father-in-law Paulino Acena, state witness, came from behind him and took the bolo from him; that after Paulino Acena grabbed the bolo from him, Jorge Tuzon and some people nearby ran away leaving only Cornelio Buenafe with them; that after grabbing the bolo from him Paulino Acena pointed a gun at him asking him who owns the bolo, adding "shet;" that thereafter Paulino Acena left together with his wife (the accused's mother-in-law); that after Paulino Acena left, barrio councilman Romeo Buenafe asked him why Paulino Acena grabbed the bolo in his (Romeo Buenafe's) presence; that councilman Romeo Buenafe told him that they will get the bolo to butcher chickens and a pig and that he will deliver the bolo to him (the accused) for him to turn over the same to the barrio captain; that thereafter he and Cornelio Buenafe proceeded to the house of Paulino Acena to get the bolo; that when they tried to get the bolo from Paulino Acena, an altercation ensued between Paulino Acena and Cornelio Buenafe in the yard of Paulino Acena fronting the road; that during the altercation between Paulino Acena and Cornelio Buenafe there were plenty of people passing

along the road because it was then a barrio fiesta; that the passersby stopped and listened to the verbal exchange between Paulino Acena and Cornelio Buenafe and ran away when Paulino Acena tried to rush at him and Cornelio Buenafe; that his wife Aurelia Acena is the daughter of Paulino Acena; that during the altercation between Paulino Acena and Cornelio Buenafe, he just listened and did not utter any word because he did not have the temerity to answer his father-in-law Paulino Acena; that when Paulino Acena got the bolo from him while in front of the barrio chapel, he did not make any protest because he considered Paulino Acena as his own father; that he was not even able to tell Paulino Acena that he was surrendering the bolo to barrio councilman Romeo Buenafe because Paulino Acena just grabbed the bolo from him; that the place where he picked up the bolo was about 30 to 35 meters from the place where he showed the bolo to Jorge Tuzon; that they went direct to him from the place where he picked up the bolo; that he was wearing a shirt then as he was going to play basketball; that Paulino Acena smelt of liquor when he (Acena) grabbed the bolo from him; that Paulino Acena filed the complaint of illegal possession of deadly weapon and the charge of public scandal against him because Paulino Acena did not like him to marry his daughter, possibly because of his poverty; that he paid a fine for public scandal because he wanted the case to be terminated as he was Ashamed of a case existing between him and his father-in-law; that he was not able to tell his father-in-law that he just picked up the bolo because his father- in-law appeared suddenly and took the bolo away from him and soon after his mother-in-law took him (Acena) away and brought him to their house; that thereafter he was not able to tell his father-in-law that he just picked up the bolo on the road because he was afraid to go to their house as he was informed that his father-in-law would kill him; that he was never investigated by the authorities because of the incident; that he learned of this case only when he was arrested on February 27, 1976; that the bolo Exhibit "A" together with its scabbard, Exhibit "A-1", is not the same as the bolo he picked up because the bolo he picked up was smaller than Exhibit "A" and that the scabbard is made of leather unlike Exhibit "A-1" which is made of wood; that he did not have any intention to own the bolo which he picked up; that he was the only one who picked up the bolo despite the many people walking along the same road where he found it; that he tucked the bolo in his waistline but still visible; that he did not have any intention to stab Jorge Tuzon with the bolo; that when he brought out the bolo the people near Jorge Tuzon did not run; that he was not able to tell his father-in-law Paulino Acena that he picked up the bolo after Acena grabbed it from him because Acena pointed a gun at him — a .22 caliber magnum; that he reported the fact that Paulino Acena pointed a gun at him to the persons in the cadre who told him to settle the case between themselves since Paulino Acena is his father-in-law and they belong to the same family and that when the case will not be settled between him and his father-in-law, they advised him to return to the cadre so that they will help him settle the case; that his statement was taken down in writing; that he has no copy of his statement or report; that he did not insist in filing a case against his father-in-law Paulino Acena because he considers him as his own father, being the father of his wife; that while the other persons in the vicinity may not have seen his father-in-law pointing a gun at him because they ran away after Paulino Acena grabbed the bolo from him, Cornelio Buenafe did see; that three days after the incident, he told barrio captain Emilio Bigornia that he just picked up the bolo which was grabbed by Paulino Acena, when he and barrio captain Bigornia talked by chance near their place because the barrio captain learned of the incident but he did not purposely go to the barrio captain to report the matter to him; that he and Cornelio Buenafe were sent to the house of Paulino Acena to get the bolo from him because it will be used in butchering a pig, not of their own volition but because Romeo Buenafe sent them for said purpose; that the altercation between Paulino Acena and Cornelio Buenafe was due to the fact that Paulino Acena uttered many words which provoked Cornelio Buenafe to answer back; that when he was showing the bolo to Jorge Tuzon before Paulino Acena grabbed it from him councilman Romeo Buenafe was about six meters away; that the barrio captain did not like to accompany him to his father-in-law to tell him that he just picked up the bolo; that people told him that his father-in-law will kill him if he goes to him; and that his own wife told him that his father-in-law did not like any person to be presented to him.

Defense witness Cornelio Buenafe testified on August 2, 1976 that he was then 28 years old, single, laborer and resident of barrio Macarcarmay, Bangued, Abra; that in the morning of December 28, 1975, his four friends including the accused Rodolfo Bermudez fetched him from his house and they proceeded to the basketball court to play basketball near the barrio school; that on the way to the basketball court they saw a bolo on the road which the accused picked up, in spite of his warning not to do so because the bolo might work against him; that the accused replied that the bolo appeared to be similar to the bolo of Jorge Tuzon; that as they continued walking towards the basketball court, the accused was looking for Jorge Tuzon who was about five meters away and whom he believed to be the owner of the bolo, when Paulino Acena grabbed the bolo from the accused while they were about 75 meters from the chapel with only a few persons near them; that when Paulino Acena grabbed the bolo from the accused causing the people around to scamper, Jorge Tuzon said that it was not his bolo; that councilman Buenafe told the- accused to get the bolo and surrender it to him; that the place where the accused picked up the bolo is about 150 to 170 meters from the place near the church where Paulino Acena grabbed the bolo from the accused; that soon after Paulino Acena grabbed the bolo from the accused, the wife of Paulino Acena took him home; that obeying the orders of barrio councilman Romeo Buenafe, he and Rodolfo Bermudez went to the house of Paulino Acena to get the bolo to be used in butchering a pig; that there were many people passing by when he was trying to get the bolo from Paulino Acena; that the passersby gathered around and listened to the exchange of ,words between him and Paulino Acena; that, thinking that they were quarreling, the passersby ran away; that the accused Rodolfo Bermudez left when he (Buenafe) was trying to get the bolo from Paulino Acena; that he also left after the passersby ran away; that the bolo marked Exhibit "A" is not the bolo which was picked up by the accused because the bolo the accused picked up was shorter and had a leather scabbard; that the barrio road was about three meters wide; that the accused showed the bolo to the people in the vicinity to find out who owns it; that when Paulino Acena from behind, grabbed the bolo from the accused, a scandal was created by him and the accused, to which charge they both pleaded guilty and paid a fine because they did not like any trouble; that the scandal might have occured at the time he and the accused went to the house of Acena to get the bolo upon instruction of barrio councilman Romeo Buenafe which gave rise to an altercation between him and Paulino Acena; that the altercation was due to the fact that Paulino Acena did not like to give the bolo which they wanted to use for butchering a pig; that during the latter part of his altercation with Paulino Acena, the accused left; that after butchering the pig with the bolo ',hey would surrender the bolo to barrio councilman Romeo Buenafe, who told them to surrender the same to him after butchering a pig; that at the time the accused picked up the bolo lying on the road, he said that the bolo is similar to the bolo of Jorge Tuazon, after he advised the accused not to pick it up or it might later involve him; that when they saw Jorge Tuazon two meters away, barrio councilman Romeo Buenafe was at)out five meters from them; and that he was about three meters behind the accused and Jorge Tuzon when the accused showed the bolo to Tuzon.

Defense witness Romeo Buenafe declared that he was 32 years old (on June 28, 1976), married, farmer, barrio councilman of barrio Macarcarmay, and member of Civilian Home Defense Force (CHDF) and resident of said barrio; that about 10:35 in the morning of December 28, 1975, he was near the barrio church with his companions waiting for the mass to start: that the accused Rodolfo Bermudez showed a bolo to Jorge Tuazon: that being a barrio councilman, he thought it was his duty to take the bolo but that was the time when Paulino Acena, the father-in-law of the accused arrived; Chat he was informed that the accused found a bolo on the barrio road; that the accused was about to give him the bolo when Paulino Acena grabbed it; that the accused had five other companions; that the accused obeyed him when he told him to go with his father-in-law; that he was not able to do anything because the bolo was already taken by Paulino Acena but he was able to tell the accused why his father-in-law did that to him; that the accused and his father-in-law are not in good terms because his father-in-law does not like the accused: that the accused is not -notorious and has been conducting himself properly; that it was only in the morning of the trial that

day when the accused him to testify in his defense; that the wife of the accused is his niece by a second degree cousin; that the head teacher of the barrio elementary school reported to the municipal building the trouble of a commotion caused by the possession of the bolo; that the accused and Cornelio Buenafe (lid not create the trouble: that he does not know that the accused and Cornelio Buenafe were charged with public scandal in the municipal court: that the accused took the bolo from his waist, because he was looking for its owner; that he came to testify to tell the truth: that the people thought that there was trouble when the accused showed the bolo to Jorge Tuazon although actually there was no trouble; that he is not sure whether Exhibits "A" and "A-1" are the same bolo and its scabbard: that he had no chance to hold the bolo; that he was about five meters from the accused when the latter drew the bolo from his waist and that he wanted to approach the accused because he was looking for the owner of the bolo but that before he could reach him, the father-in-law of the accused grabbed the bolo from behind.

Jorge (George) Tuzon testified that he is 23 years old (on June 28, 1976), married, farmer and resident of barrio Macarcarmay, Bangued, Abra; that he knows the accused when he ,harried the daughter of Paulino Acena, a resident of the barrio, and thereafter they became friends: that about 10 o'clock in the morning of December 28, 1975, he was sitting near the chapel with his "barkada" and listening to barrio councilman Romeo Buenafe conversing with other people; that there were many persons then because it was a barrio fiesta; that the accused, with Cornelio Buenafe and other friends, came to their place asking who was the owner of the bolo which he drew from his waist; that when the accused told them that he was going to surrender the bolo to the barrio councilman, is father- in law Paulino Acena from behind grabbed the bolo from him; that after grabbing the bolo Paulino Acena left; that he does not know of any quarrel between the accused and his father-in law then; that when Paulino Acena grabbed the bolo from the accused, he and the others ran away because they were afraid; that he does not know whether there was any trouble created by the accused and Cornelio Buenafe because he was no longer in the vicinity after Acena seized the bolo from the accused; that Exhibits "A" and "A-1" are not similar to the bolo and the scabbard grabbed by Acena from the accused because the scabbard found by the accused was made of leather; that he was about one meter from the accused when the latter showed him the bolo and asked him whether the bolo was his; that he was there to tell the story he had just related; that when he told the accused that it was not his bolo, the accused said that they will have to surrender the same to the authorities.

On rebuttal, state witness Paulino Acena denied that he pointed a gun at the accused after grabbing the bolo from him; reiterated his Identification of Exhibits "A" and "A-1" as the bolo and scabbard that he grabbed from the accused; stated that he thought he saw Cornelio Buenafe when he grabbed the bolo from the accused; denied that the accused and Cornelio Buenafe went to his house to get the bolo to be used in butchering a pig nor was there an altercation between him and Cornelio Buenafe; that he had a magnum gun which he carried with him during the fiesta to maintain peace and order; that he kept the bolo he seized from the accused in his house until the arrival of the police to whom he surrendered the same that very day; that he kept the bolo in the drawer of Ms dresser; that after he seized the bolo from the accused, the latter went to his house to get the bolo; and that he advised the accused as a son that he should not get the bolo.

Under the established facts, We cannot conclude that petitioner was engaged in subversion, insurrection, rebellion, criminality, public disorder, or lawless violence. His plea of guilty to the charge of public scandal for which he was accordingly sentenced to pay a fine, does not necessarily give rise to the inference that he was then a participant in subversive activities, or lawless violence or criminality or public disorder. A rebel, dissident, or criminal would not carry openly such a deadly weapon in front of many people in broad daylight (about 10:30 in the morning) during a barrio fiesta near the barrio chapel beside which a program for children had just ended. If the bolo were his (as intimated by witness Nicanor Valera, pp. 3-4, 7, rec.), petitioner

could be carrying it as his usual farm or household tool or implement. If it was not his, then his story that he found the bolo and that he was showing it to his companion Jorge Tuzon (or Rodolfo Tuazon) when his father-in-law Paulino Acena saw him and grabbed it from him thinking that petitioner was about to injure Jorge Tuzon (or Rodolfo Tuazon) with it, appears credible.

Likewise, the testimony of the accused, a retired army soldier (Exh. "C", p. 2, rec.), that his father-in-law made up the case against him, because his father-in-law, Paulino Acena-also a retired PC (Exh. "C", p. 2, rec.), did not like him as a husband for his daughter, cannot be entirely ignored.

In view of Our findings of fact as aforestated, there is no need to discuss the second issue of double jeopardy raised by petitioner.

It should be stressed that the petitioner herein was first charged with public scandal for the same incident and paid the corresponding fine immediately.

WHEREFORE, THE DECISION RENDERED BY THE COURT OF APPEALS ON JULY 29, 1977, AFFIRMING THAT OF THE LOWER COURT WHICH FOUND THE ACCUSED GUILTY OF VIOLATION OF PD NO. 9[3], MUST BE, AS IT IS HEREBY, SET ASIDE AND REVERSED; THE ACCUSED IS HEREBY ACQUITTED OF SAID CHARGE. NO COSTS.

Bar Matter No. 553 June 17, 1993

MAURICIO C. ULEP, petitioner, vs.THE LEGAL CLINIC, INC., respondent.

REGALADO, J.:

Petitioner prays this Court "to order the respondent to cease and desist from issuing advertisements similar to or of the same tenor as that of annexes "A" and "B" (of said petition) and to perpetually prohibit persons or entities from making advertisements pertaining to the exercise of the law profession other than those allowed by law."

The advertisements complained of by herein petitioner are as follows:

Annex A

SECRET MARRIAGE?P560.00 for a valid marriage.Info on DIVORCE. ABSENCE.ANNULMENT. VISA.

THE Please call: 521-0767 LEGAL 5217232, 5222041 CLINIC, INC. 8:30 am— 6:00 pm 7-Flr. Victoria Bldg., UN Ave., Mla.

Annex B

GUAM DIVORCE.

DON PARKINSON

an Attorney in Guam, is giving FREE BOOKS on Guam Divorce through The Legal Clinic beginning Monday to Friday during office hours.

Guam divorce. Annulment of Marriage. Immigration Problems, Visa Ext. Quota/Non-quota Res. & Special Retiree's Visa. Declaration of Absence. Remarriage to Filipina Fiancees. Adoption. Investment in the Phil. US/Foreign Visa for Filipina Spouse/Children. Call Marivic.

THE 7F Victoria Bldg. 429 UN Ave., LEGAL Ermita, Manila nr. US Embassy CLINIC, INC. 1 Tel. 521-7232; 521-7251; 522-2041; 521-0767

It is the submission of petitioner that the advertisements above reproduced are champterous, unethical, demeaning of the law profession, and destructive of the confidence of the community in the integrity of the members of the bar and that, as a member of the legal profession, he is ashamed and offended by the said advertisements, hence the reliefs sought in his petition as hereinbefore quoted.

In its answer to the petition, respondent admits the fact of publication of said advertisement at its instance, but claims that it is not engaged in the practice of law but in the rendering of "legal support services" through paralegals with the use of modern computers and electronic machines. Respondent further argues that assuming that the services advertised are legal services, the act of advertising these services should be allowed supposedlyin the light of the case of John R. Bates and Van O'Steen vs. State Bar of Arizona, 2 reportedly decided by the United States Supreme Court on June 7, 1977.

Considering the critical implications on the legal profession of the issues raised herein, we required the (1) Integrated Bar of the Philippines (IBP), (2) Philippine Bar Association (PBA), (3) Philippine Lawyers' Association (PLA), (4) U.P. Womens Lawyers' Circle (WILOCI), (5) Women Lawyers Association of the Philippines (WLAP), and (6) Federacion International de Abogadas (FIDA) to submit their respective position papers on the controversy and, thereafter, their memoranda. 3 The said bar associations readily responded and extended their valuable services and cooperation of which this Court takes note with appreciation and gratitude.

The main issues posed for resolution before the Court are whether or not the services offered by respondent, The Legal Clinic, Inc., as advertised by it constitutes practice of law and, in either case, whether the same can properly be the subject of the advertisements herein complained of.

Before proceeding with an in-depth analysis of the merits of this case, we deem it proper and enlightening to present hereunder excerpts from the respective position papers adopted by the aforementioned bar associations and the memoranda submitted by them on the issues involved in this bar matter.

1. Integrated Bar of the Philippines:

xxx xxx xxx

Notwithstanding the subtle manner by which respondent endeavored to distinguish the two terms, i.e., "legal support services" vis-a-vis "legal services", common sense would readily dictate that the same are essentially without substantial distinction. For who could deny that document search, evidence gathering, assistance to layman in need of basic institutional services from government or non-government agencies like birth, marriage, property, or business registration, obtaining documents like clearance, passports, local or foreign visas, constitutes practice of law?

xxx xxx xxx

The Integrated Bar of the Philippines (IBP) does not wish to make issue with respondent's foreign citations. Suffice it to state that the IBP has made its position manifest, to wit, that it strongly opposes the view espoused by respondent (to the effect that today it is alright to advertise one's legal services).

The IBP accordingly declares in no uncertain terms its opposition to respondent's act of establishing a "legal clinic" and of concomitantly advertising the same through newspaper publications.

The IBP would therefore invoke the administrative supervision of this Honorable Court to perpetually restrain respondent from undertaking highly unethical activities in the field of law practice as aforedescribed. 4

xxx xxx xxx

A. The use of the name "The Legal Clinic, Inc." gives the impression that respondent corporation is being operated by lawyers and that it renders legal services.

While the respondent repeatedly denies that it offers legal services to the public, the advertisements in question give the impression that respondent is offering legal services. The Petition in fact simply assumes this to be so, as earlier mentioned, apparently because this (is) the effect that the advertisements have on the reading public.

The impression created by the advertisements in question can be traced, first of all, to the very name being used by respondent — "The Legal Clinic, Inc." Such a name, it is respectfully submitted connotes the rendering of legal services for legal problems, just like a medical clinic connotes medical services for medical problems. More importantly, the term "Legal Clinic" connotes lawyers, as the term medical clinic connotes doctors.

Furthermore, the respondent's name, as published in the advertisements subject of the present case, appears with (the) scale(s) of justice, which all the more reinforces the impression that it is being operated by members of the bar and that it offers legal services. In addition, the advertisements in question appear with a picture and name of a person being represented as a lawyer from Guam, and this practically removes whatever doubt may still remain as to the nature of the service or services being offered.

It thus becomes irrelevant whether respondent is merely offering "legal support services" as claimed by it, or whether it offers legal services as any lawyer actively engaged in law practice does. And it becomes unnecessary to make a distinction between "legal services" and "legal support services," as the respondent would have it. The advertisements in question leave no room for doubt in the minds of the reading public that legal services are being offered by lawyers, whether true or not.

B. The advertisements in question are meant to induce the performance of acts contrary to law, morals, public order and public policy.

It may be conceded that, as the respondent claims, the advertisements in question are only meant to inform the general public of the services being offered by it. Said advertisements, however, emphasize to Guam divorce, and any law student ought to know that under the Family Code, there is only one instance when a foreign divorce is recognized, and that is:

Article 26. . . .

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine Law.

It must not be forgotten, too, that the Family Code (defines) a marriage as follows:

Article 1. Marriage is special contract of permanent union between a man and woman entered into accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that

marriage settlements may fix the property relation during the marriage within the limits provided by this Code.

By simply reading the questioned advertisements, it is obvious that the message being conveyed is that Filipinos can avoid the legal consequences of a marriage celebrated in accordance with our law, by simply going to Guam for a divorce. This is not only misleading, but encourages, or serves to induce, violation of Philippine law. At the very least, this can be considered "the dark side" of legal practice, where certain defects in Philippine laws are exploited for the sake of profit. At worst, this is outright malpractice.

Rule 1.02. — A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system.

In addition, it may also be relevant to point out that advertisements such as that shown in Annex "A" of the Petition, which contains a cartoon of a motor vehicle with the words "Just Married" on its bumper and seems to address those planning a "secret marriage," if not suggesting a "secret marriage," makes light of the "special contract of permanent union," the inviolable social institution," which is how the Family Code describes marriage, obviously to emphasize its sanctity and inviolability. Worse, this particular advertisement appears to encourage marriages celebrated in secrecy, which is suggestive of immoral publication of applications for a marriage license.

If the article "Rx for Legal Problems" is to be reviewed, it can readily be concluded that the above impressions one may gather from the advertisements in question are accurate. The Sharon Cuneta-Gabby Concepcion example alone confirms what the advertisements suggest. Here it can be seen that criminal acts are being encouraged or committed (a bigamous marriage in Hong Kong or Las Vegas) with impunity simply because the jurisdiction of Philippine courts does not extend to the place where the crime is committed.

Even if it be assumed, arguendo, (that) the "legal support services" respondent offers do not constitute legal services as commonly understood, the advertisements in question give the impression that respondent corporation is being operated by lawyers and that it offers legal services, as earlier discussed. Thus, the only logical consequence is that, in the eyes of an ordinary newspaper reader, members of the bar themselves are encouraging or inducing the performance of acts which are contrary to law, morals, good customs and the public good, thereby destroying and demeaning the integrity of the Bar.

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It is respectfully submitted that respondent should be enjoined from causing the publication of the advertisements in question, or any other advertisements similar thereto. It is also submitted that respondent should be prohibited from

further performing or offering some of the services it presently offers, or, at the very least, from offering such services to the public in general.

The IBP is aware of the fact that providing computerized legal research, electronic data gathering, storage and retrieval, standardized legal forms, investigators for gathering of evidence, and like services will greatly benefit the legal profession and should not be stifled but instead encouraged. However, when the conduct of such business by non-members of the Bar encroaches upon the practice of law, there can be no choice but to prohibit such business.

Admittedly, many of the services involved in the case at bar can be better performed by specialists in other fields, such as computer experts, who by reason of their having devoted time and effort exclusively to such field cannot fulfill the exacting requirements for admission to the Bar. To prohibit them from "encroaching" upon the legal profession will deny the profession of the great benefits and advantages of modern technology. Indeed, a lawyer using a computer will be doing better than a lawyer using a typewriter, even if both are (equal) in skill.

Both the Bench and the Bar, however, should be careful not to allow or tolerate the illegal practice of law in any form, not only for the protection of members of the Bar but also, and more importantly, for the protection of the public. Technological development in the profession may be encouraged without tolerating, but instead ensuring prevention of illegal practice.

There might be nothing objectionable if respondent is allowed to perform all of its services, but only if such services are made available exclusively to members of the Bench and Bar. Respondent would then be offering technical assistance, not legal services. Alternatively, the more difficult task of carefully distinguishing between which service may be offered to the public in general and which should be made available exclusively to members of the Bar may be undertaken. This, however, may require further proceedings because of the factual considerations involved.

It must be emphasized, however, that some of respondent's services ought to be prohibited outright, such as acts which tend to suggest or induce celebration abroad of marriages which are bigamous or otherwise illegal and void under Philippine law. While respondent may not be prohibited from simply disseminating information regarding such matters, it must be required to include, in the information given, a disclaimer that it is not authorized to practice law, that certain course of action may be illegal under Philippine law, that it is not authorized or capable of rendering a legal opinion, that a lawyer should be consulted before deciding on which course of action to take, and that it cannot recommend any particular lawyer without subjecting itself to possible sanctions for illegal practice of law.

If respondent is allowed to advertise, advertising should be directed exclusively at members of the Bar, with a clear and unmistakable disclaimer that it is not authorized to practice law or perform legal services.

The benefits of being assisted by paralegals cannot be ignored. But nobody should be allowed to represent himself as a "paralegal" for profit, without such term being clearly defined by rule or regulation, and without any adequate and effective means of regulating his activities. Also, law practice in a corporate form may prove to be advantageous to the legal profession, but before allowance of such practice may be considered, the corporation's Article of Incorporation and By-laws must conform to each and every provision of the Code of Professional Responsibility and the Rules of Court. 5

2. Philippine Bar Association:

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Respondent asserts that it "is not engaged in the practice of law but engaged in giving legal support services to lawyers and laymen, through experienced paralegals, with the use of modern computers and electronic machines" (pars. 2 and 3, Comment). This is absurd. Unquestionably, respondent's acts of holding out itself to the public under the trade name "The Legal Clinic, Inc.," and soliciting employment for its enumerated services fall within the realm of a practice which thus yields itself to the regulatory powers of the Supreme Court. For respondent to say that it is merely engaged in paralegal work is to stretch credulity. Respondent's own commercial advertisement which announces a certainAtty. Don Parkinson to be handling the fields of law belies its pretense. From all indications, respondent "The Legal Clinic, Inc." is offering and rendering legal services through its reserve of lawyers. It has been held that the practice of law is not limited to the conduct of cases in court, but includes drawing of deeds, incorporation, rendering opinions, and advising clients as to their legal right and then take them to an attorney and ask the latter to look after their case in court See Martin, Legal and Judicial Ethics, 1984 ed., p. 39).

It is apt to recall that only natural persons can engage in the practice of law, and such limitation cannot be evaded by a corporation employing competent lawyers to practice for it. Obviously, this is the scheme or device by which respondent "The Legal Clinic, Inc." holds out itself to the public and solicits employment of its legal services. It is an odious vehicle for deception, especially so when the public cannot ventilate any grievance for malpractice against the business conduit. Precisely, the limitation of practice of law to persons who have been duly admitted as members of the Bar (Sec. 1, Rule 138, Revised Rules of Court) is to subject the members to the discipline of the Supreme Court. Although respondent uses its business name, the persons and the lawyers who act for it are subject to court discipline. The practice of law is not a profession open to all who wish to engage in it nor can it be assigned to another (See 5 Am. Jur. 270). It is a personal right limited to persons who have qualified themselves under the law. It follows that not only respondent but also all the persons who are acting for respondent are the persons engaged in unethical law practice. 6

3. Philippine Lawyers' Association:

The Philippine Lawyers' Association's position, in answer to the issues stated herein, are wit:

1. The Legal Clinic is engaged in the practice of law;

2. Such practice is unauthorized;

3. The advertisements complained of are not only unethical, but also misleading and patently immoral; and

4. The Honorable Supreme Court has the power to supress and punish the Legal Clinic and its corporate officers for its unauthorized practice of law and for its unethical, misleading and immoral advertising.

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Respondent posits that is it not engaged in the practice of law. It claims that it merely renders "legal support services" to answers, litigants and the general public as enunciated in the Primary Purpose Clause of its Article(s) of Incorporation. (See pages 2 to 5 of Respondent's Comment). But its advertised services, as enumerated above, clearly and convincingly show that it is indeed engaged in law practice, albeit outside of court.

As advertised, it offers the general public its advisory services on Persons and Family Relations Law, particularly regarding foreign divorces, annulment of marriages, secret marriages, absence and adoption; Immigration Laws, particularly on visa related problems, immigration problems; the Investments Law of the Philippines and such other related laws.

Its advertised services unmistakably require the application of the aforesaid law, the legal principles and procedures related thereto, the legal advices based thereon and which activities call for legal training, knowledge and experience.

Applying the test laid down by the Court in the aforecited Agrava Case, the activities of respondent fall squarely and are embraced in what lawyers and laymen equally term as "the practice of law." 7

4. U.P. Women Lawyers' Circle:

In resolving, the issues before this Honorable Court, paramount consideration should be given to the protection of the general public from the danger of being exploited by unqualified persons or entities who may be engaged in the practice of law.

At present, becoming a lawyer requires one to take a rigorous four-year course of study on top of a four-year bachelor of arts or sciences course and then to take and pass the bar examinations. Only then, is a lawyer qualified to practice law.

While the use of a paralegal is sanctioned in many jurisdiction as an aid to the administration of justice, there are in those jurisdictions, courses of study

and/or standards which would qualify these paralegals to deal with the general public as such. While it may now be the opportune time to establish these courses of study and/or standards, the fact remains that at present, these do not exist in the Philippines. In the meantime, this Honorable Court may decide to make measures to protect the general public from being exploited by those who may be dealing with the general public in the guise of being "paralegals" without being qualified to do so.

In the same manner, the general public should also be protected from the dangers which may be brought about by advertising of legal services. While it appears that lawyers are prohibited under the present Code of Professional Responsibility from advertising, it appears in the instant case that legal services are being advertised not by lawyers but by an entity staffed by "paralegals." Clearly, measures should be taken to protect the general public from falling prey to those who advertise legal services without being qualified to offer such services. 8

A perusal of the questioned advertisements of Respondent, however, seems to give the impression that information regarding validity of marriages, divorce, annulment of marriage, immigration, visa extensions, declaration of absence, adoption and foreign investment, which are in essence, legal matters , will be given to them if they avail of its services. The Respondent's name — The Legal Clinic, Inc. — does not help matters. It gives the impression again that Respondent will or can cure the legal problems brought to them. Assuming that Respondent is, as claimed, staffed purely by paralegals, it also gives the misleading impression that there are lawyers involved in The Legal Clinic, Inc., as there are doctors in any medical clinic, when only "paralegals" are involved in The Legal Clinic, Inc.

Respondent's allegations are further belied by the very admissions of its President and majority stockholder, Atty. Nogales, who gave an insight on the structure and main purpose of Respondent corporation in the aforementioned "Starweek" article." 9

5. Women Lawyer's Association of the Philippines:

Annexes "A" and "B" of the petition are clearly advertisements to solicit cases for the purpose of gain which, as provided for under the above cited law, (are) illegal and against the Code of Professional Responsibility of lawyers in this country.

Annex "A" of the petition is not only illegal in that it is an advertisement to solicit cases, but it is illegal in that in bold letters it announces that the Legal Clinic, Inc., could work out/cause the celebration of a secret marriage which is not only illegal but immoral in this country. While it is advertised that one has to go to said agency and pay P560 for a valid marriage it is certainly fooling the public for valid marriages in the Philippines are solemnized only by officers authorized to do so under the law. And to employ an agency for said purpose of contracting marriage is not necessary.

No amount of reasoning that in the USA, Canada and other countries the trend is towards allowing lawyers to advertise their special skills to enable people to obtain from qualified practitioners legal services for their particular needs can justify the use of advertisements such as are the subject matter of the petition, for one (cannot) justify an illegal act even by whatever merit the illegal act may serve. The law has yet to be amended so that such act could become justifiable.

We submit further that these advertisements that seem to project that secret marriages and divorce are possible in this country for a fee, when in fact it is not so, are highly reprehensible.

It would encourage people to consult this clinic about how they could go about having a secret marriage here, when it cannot nor should ever be attempted, and seek advice on divorce, where in this country there is none, except under the Code of Muslim Personal Laws in the Philippines. It is also against good morals and is deceitful because it falsely represents to the public to be able to do that which by our laws cannot be done (and) by our Code of Morals should not be done.

In the case (of) In re Taguda, 53 Phil. 37, the Supreme Court held that solicitation for clients by an attorney by circulars of advertisements, is unprofessional, and offenses of this character justify permanent elimination from the Bar. 10

6. Federacion Internacional de Abogados:

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1.7 That entities admittedly not engaged in the practice of law, such as management consultancy firms or travel agencies, whether run by lawyers or not, perform the services rendered by Respondent does not necessarily lead to the conclusion that Respondent is not unlawfully practicing law. In the same vein, however, the fact that the business of respondent (assuming it can be engaged in independently of the practice of law) involves knowledge of the law does not necessarily make respondent guilty of unlawful practice of law.

. . . . Of necessity, no one . . . . acting as a consultant can render effective service unless he is familiar with such statutes and regulations. He must be careful not to suggest a course of conduct which the law forbids. It seems . . . .clear that (the consultant's) knowledge of the law, and his use of that knowledge as a factor in determining what measures he shall recommend, do not constitute the practice of law . . . . It is not only presumed that all men know the law, but it is a fact that most men have considerable acquaintance with broad features of the law . . . . Our knowledge of the law — accurate or inaccurate — moulds our conduct not only when we are acting for ourselves, but when we are serving others.

Bankers, liquor dealers and laymen generally possess rather precise knowledge of the laws touching their particular business or profession. A good example is the architect, who must be familiar with zoning, building and fire prevention codes, factory and tenement house statutes, and who draws plans and specification in harmony with the law. This is not practicing law.

But suppose the architect, asked by his client to omit a fire tower, replies that it is required by the statute. Or the industrial relations expert cites, in support of some measure that he recommends, a decision of the National Labor Relations Board. Are they practicing law? In my opinion, they are not, provided no separate fee is charged for the legal advice or information, and the legal question is subordinate and incidental to a major non-legal problem.

It is largely a matter of degree and of custom.

If it were usual for one intending to erect a building on his land to engage a lawyer to advise him and the architect in respect to the building code and the like, then an architect who performed this function would probably be considered to be trespassing on territory reserved for licensed attorneys. Likewise, if the industrial relations field had been pre-empted by lawyers, or custom placed a lawyer always at the elbow of the lay personnel man. But this is not the case. The most important body of the industrial relations experts are the officers and business agents of the labor unions and few of them are lawyers. Among the larger corporate employers, it has been the practice for some years to delegate special responsibility in employee matters to a management group chosen for their practical knowledge and skill in such matter, and without regard to legal thinking or lack of it. More recently, consultants like the defendants have the same service that the larger employers get from their own specialized staff.

The handling of industrial relations is growing into a recognized profession for which appropriate courses are offered by our leading universities. The court should be very cautious about declaring [that] a widespread, well-established method of conducting business is unlawful, or that the considerable class of men who customarily perform a certain function have no right to do so, or that the technical education given by our schools cannot be used by the graduates in their business.

In determining whether a man is practicing law, we should consider his work for any particular client or customer, as a whole. I can imagine defendant being engaged primarily to

advise as to the law defining his client's obligations to his employees, to guide his client's obligations to his employees, to guide his client along the path charted by law. This, of course, would be the practice of the law. But such is not the fact in the case before me. Defendant's primarily efforts are along economic and psychological lines. The law only provides the frame within which he must work, just as the zoning code limits the kind of building the limits the kind of building the architect may plan. The incidental legal advice or information defendant may give, does not transform his activities into the practice of law. Let me add that if, even as a minor feature of his work, he performed services which are customarily reserved to members of the bar, he would be practicing law. For instance, if as part of a welfare program, he drew employees' wills.

Another branch of defendant's work is the representations of the employer in the adjustment of grievances and in collective bargaining, with or without a mediator. This is not per se the practice of law. Anyone may use an agent for negotiations and may select an agent particularly skilled in the subject under discussion, and the person appointed is free to accept the employment whether or not he is a member of the bar. Here, however, there may be an exception where the business turns on a question of law. Most real estate sales are negotiated by brokers who are not lawyers. But if the value of the land depends on a disputed right-of-way and the principal role of the negotiator is to assess the probable outcome of the dispute and persuade the opposite party to the same opinion, then it may be that only a lawyer can accept the assignment. Or if a controversy between an employer and his men grows from differing interpretations of a contract, or of a statute, it is quite likely that defendant should not handle it. But I need not reach a definite conclusion here, since the situation is not presented by the proofs.

Defendant also appears to represent the employer before administrative agencies of the federal government, especially before trial examiners of the National Labor Relations Board. An agency of the federal government, acting by virtue of an authority granted by the Congress, may regulate the representation of parties before such agency. The State of New Jersey is without power to interfere with such determination or to forbid representation before the agency by one whom the agency admits. The rules of the National Labor Relations Board give to a party the right to appear in person, or by counsel, or by other representative. Rules and Regulations, September 11th, 1946, S. 203.31. 'Counsel' here means a licensed attorney, and ther representative' one not a lawyer. In this phase of

his work, defendant may lawfully do whatever the Labor Board allows, even arguing questions purely legal. (Auerbacher v. Wood, 53 A. 2d 800, cited in Statsky, Introduction to Paralegalism [1974], at pp. 154-156.).

1.8 From the foregoing, it can be said that a person engaged in a lawful calling (which may involve knowledge of the law) is not engaged in the practice of law provided that:

(a) The legal question is subordinate and incidental to a major non-legal problem;.

(b) The services performed are not customarily reserved to members of the bar; .

(c) No separate fee is charged for the legal advice or information.

All these must be considered in relation to the work for any particular client as a whole.

1.9. If the person involved is both lawyer and non-lawyer, the Code of Professional Responsibility succintly states the rule of conduct:

Rule 15.08 — A lawyer who is engaged in another profession or occupation concurrently with the practice of law shall make clear to his client whether he is acting as a lawyer or in another capacity.

1.10. In the present case. the Legal Clinic appears to render wedding services (See Annex "A" Petition). Services on routine, straightforward marriages, like securing a marriage license, and making arrangements with a priest or a judge, may not constitute practice of law. However, if the problem is as complicated as that described in "Rx for Legal Problems" on the Sharon Cuneta-Gabby Concepcion-Richard Gomez case, then what may be involved is actually the practice of law. If a non-lawyer, such as the Legal Clinic, renders such services then it is engaged in the unauthorized practice of law.

1.11. The Legal Clinic also appears to give information on divorce, absence, annulment of marriage and visas (See Annexes "A" and "B" Petition). Purely giving informational materials may not constitute of law. The business is similar to that of a bookstore where the customer buys materials on the subject and determines on the subject and determines by himself what courses of action to take.

It is not entirely improbable, however, that aside from purely giving information, the Legal Clinic's paralegals may apply the law to the particular problem of the client, and give legal advice. Such would constitute unauthorized practice of law.

It cannot be claimed that the publication of a legal text which publication of a legal text which purports to say what the law is amount to legal practice. And the mere fact that the principles or rules stated in the text may be accepted by a particular reader as a solution to his problem does not affect this. . . . . Apparently it is urged that the conjoining of these two, that is, the text and the forms, with advice as to how the forms should be filled out, constitutes the unlawful practice of law. But that is the situation with many approved and accepted texts. Dacey's book is sold to the public at large. There is no personal contact or relationship with a particular individual. Nor does there exist that relation of confidence and trust so necessary to the status of attorney and client. THIS IS THE ESSENTIAL OF LEGAL PRACTICE — THE REPRESENTATION AND ADVISING OF A PARTICULAR PERSON IN A PARTICULAR SITUATION. At most the book assumes to offer general advice on common problems, and does not purport to give personal advice on a specific problem peculiar to a designated or readily identified person. Similarly the defendant's publication does not purport to give personal advice on a specific problem peculiar to a designated or readily identified person in a particular situation — in their publication and sale of the kits, such publication and sale did not constitutes the unlawful practice of law . . . . There being no legal impediment under the statute to the sale of the kit, there was no proper basis for the injunction against defendant maintaining an office for the purpose of selling to persons seeking a divorce, separation, annulment or separation agreement any printed material or writings relating to matrimonial law or the prohibition in the memorandum of modification of the judgment against defendant having an interest in any publishing house publishing his manuscript on divorce and against his having any personal contact with any prospective purchaser. The record does fully support, however, the finding that for the change of $75 or $100 for the kit, the defendant gave legal advice in the course of personal contacts concerning particular problems which might arise in the preparation and presentation of the purchaser's asserted matrimonial cause of action or pursuit of other legal remedies and assistance in the preparation of necessary documents (The injunction therefore sought to) enjoin conduct constituting the practice of law, particularly with reference to the giving of advice and counsel by the defendant relating to specific problems of particular individuals in connection with a divorce, separation, annulment of separation agreement sought and should be affirmed. (State v. Winder, 348, NYS 2D 270 [1973], cited in Statsky, supra at p. 101.).

1.12. Respondent, of course, states that its services are "strictly non-diagnostic, non-advisory. "It is not controverted, however, that if the services "involve giving legal advice or counselling," such would constitute practice of law (Comment, par. 6.2). It is in this light that FIDA submits that a factual inquiry may be necessary for the judicious disposition of this case.

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2.10. Annex "A" may be ethically objectionable in that it can give the impression (or perpetuate the wrong notion) that there is a secret marriage. With all the solemnities, formalities and other requisites of marriages (See Articles 2, et seq., Family Code), no Philippine marriage can be secret.

2.11. Annex "B" may likewise be ethically objectionable. The second paragraph thereof (which is not necessarily related to the first paragraph) fails to state the limitation that only "paralegal services?" or "legal support services", and not legal services, are available." 11

A prefatory discussion on the meaning of the phrase "practice of law" becomes exigent for the proper determination of the issues raised by the petition at bar. On this score, we note that the clause "practice of law" has long been the subject of judicial construction and interpretation. The courts have laid down general principles and doctrines explaining the meaning and scope of the term, some of which we now take into account.

Practice of law means any activity, in or out of court, which requires the application of law, legal procedures, knowledge, training and experience. To engage in the practice of law is to perform those acts which are characteristic of the profession. Generally, to practice law is to give advice or render any kind of service that involves legal knowledge or skill. 12

The practice of law is not limited to the conduct of cases in court. It includes legal advice and counsel, and the preparation of legal instruments and contract by which legal rights are secured, although such matter may or may not be pending in a court. 13

In the practice of his profession, a licensed attorney at law generally engages in three principal types of professional activity: legal advice and instructions to clients to inform them of their rights and obligations, preparation for clients of documents requiring knowledge of legal principles not possessed by ordinary layman, and appearance for clients before public tribunals which possess power and authority to determine rights of life, liberty, and property according to law, in order to assist in proper interpretation and enforcement of law. 14

When a person participates in the a trial and advertises himself as a lawyer, he is in the practice of law. 15 One who confers with clients, advises them as to their legal rights and then takes the business to an attorney and asks the latter to look after the case in court, is also practicing law. 16 Giving advice for compensation regarding the legal status and rights of another and the conduct with respect thereto constitutes a practice of law. 17 One who renders an opinion as to the proper interpretation of a statute, and receives pay for it, is, to that extent, practicing law. 18

In the recent case of Cayetano vs. Monsod, 19 after citing the doctrines in several cases, we laid down the test to determine whether certain acts constitute "practice of law," thus:

Black defines "practice of law" as:

The rendition of services requiring the knowledge and the application of legal principles and technique to serve the interest of another with his consent. It is not limited to appearing in court, or advising and assisting in the conduct of litigation, but embraces the preparation of pleadings, and other papers incident to actions and special proceedings, conveyancing, the preparation of legal instruments of all kinds, and the giving of all legal advice to clients. It embraces all advice to clients and all actions taken for them in matters connected with the law.

The practice of law is not limited to the conduct of cases on court.(Land Title Abstract and Trust Co. v. Dworken , 129 Ohio St. 23, 193N. E. 650). A person is also considered to be in the practice of law when he:

. . . . for valuable consideration engages in the business of advising person, firms, associations or corporations as to their right under the law, or appears in a representative capacity as an advocate in proceedings, pending or prospective, before any court, commissioner, referee, board, body, committee, or commission constituted by law or authorized to settle controversies and there, in such representative capacity, performs any act or acts for the purpose of obtaining or defending the rights of their clients under the law. Otherwise stated, one who, in a representative capacity, engages in the business of advising clients as to their rights under the law, or while so engaged performs any act or acts either in court or outside of court for that purpose, is engaged in the practice of law. (State ex. rel. Mckittrick v. C.S. Dudley and Co., 102 S. W. 2d 895, 340 Mo. 852).

This Court, in the case of Philippines Lawyers Association v. Agrava (105 Phil. 173, 176-177),stated:

The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings and other papers incident to actions and special proceedings, the management of such actions and proceedings on behalf of clients before judges and courts, and in addition, conveying. In general, all advice to clients, and all action taken for them in matters connected with the law incorporation services, assessment and condemnation services contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy and insolvency proceedings, and conducting proceedings in attachment, and in matters or estate and guardianship have been held to constitute law practice, as do the preparation and drafting of legal instruments, where the work done involves the determination by the trained legal mind of the legal effect of facts and conditions. (5 Am. Jr. p. 262, 263).

Practice of law under modern conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety of subjects and the preparation and execution of legal instruments covering an extensive field of business and trust relations and other affairs. Although these transactions may have no direct connection with court

proceedings, they are always subject to become involved in litigation. They require in many aspects a high degree of legal skill, a wide experience with men and affairs, and great capacity for adaptation to difficult and complex situations. These customary functions of an attorney or counselor at law bear an intimate relation to the administration of justice by the courts. No valid distinction, so far as concerns the question set forth in the order, can be drawn between that part of the work of the lawyer which involves appearance in court and that part which involves advice and drafting of instruments in his office. It is of importance to the welfare of the public that these manifold customary functions be performed by persons possessed of adequate learning and skill, of sound moral character, and acting at all times under the heavy trust obligations to clients which rests upon all attorneys. (Moran, Comments on the Rules o Court, Vol. 3 [1973 ed.], pp. 665-666, citing In Re Opinion of the Justices [Mass], 194 N. E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 197 A. 139, 144).

The practice of law, therefore, covers a wide range of activities in and out of court. Applying the aforementioned criteria to the case at bar, we agree with the perceptive findings and observations of the aforestated bar associations that the activities of respondent, as advertised, constitute "practice of law."

The contention of respondent that it merely offers legal support services can neither be seriously considered nor sustained. Said proposition is belied by respondent's own description of the services it has been offering, to wit:

Legal support services basically consists of giving ready information by trained paralegals to laymen and lawyers, which are strictly non-diagnostic, non-advisory, through the extensive use of computers and modern information technology in the gathering, processing, storage, transmission and reproduction of information and communication, such as computerized legal research; encoding and reproduction of documents and pleadings prepared by laymen or lawyers; document search; evidence gathering; locating parties or witnesses to a case; fact finding investigations; and assistance to laymen in need of basic institutional services from government or non-government agencies, like birth, marriage, property, or business registrations; educational or employment records or certifications, obtaining documentation like clearances, passports, local or foreign visas; giving information about laws of other countries that they may find useful, like foreign divorce, marriage or adoption laws that they can avail of preparatory to emigration to the foreign country, and other matters that do not involve representation of clients in court; designing and installing computer systems, programs, or software for the efficient management of law offices, corporate legal departments, courts and other entities engaged in dispensing or administering legal services. 20

While some of the services being offered by respondent corporation merely involve mechanical and technical knowhow, such as the installation of computer systems and programs for the efficient management of law offices, or the computerization of research aids and materials, these will not suffice to justify an exception to the general rule.

What is palpably clear is that respondent corporation gives out legal information to laymen and lawyers. Its contention that such function is non-advisory and non-diagnostic is more apparent than

real. In providing information, for example, about foreign laws on marriage, divorce and adoption, it strains the credulity of this Court that all the respondent corporation will simply do is look for the law, furnish a copy thereof to the client, and stop there as if it were merely a bookstore. With its attorneys and so called paralegals, it will necessarily have to explain to the client the intricacies of the law and advise him or her on the proper course of action to be taken as may be provided for by said law. That is what its advertisements represent and for the which services it will consequently charge and be paid. That activity falls squarely within the jurisprudential definition of "practice of law." Such a conclusion will not be altered by the fact that respondent corporation does not represent clients in court since law practice, as the weight of authority holds, is not limited merely giving legal advice, contract drafting and so forth.

The aforesaid conclusion is further strengthened by an article published in the January 13, 1991 issue of the Starweek/The Sunday Magazine of the Philippines Star, entitled "Rx for Legal Problems," where an insight into the structure, main purpose and operations of respondent corporation was given by its own "proprietor," Atty. Rogelio P. Nogales:

This is the kind of business that is transacted everyday at The Legal Clinic, with offices on the seventh floor of the Victoria Building along U. N. Avenue in Manila. No matter what the client's problem, and even if it is as complicated as the Cuneta-Concepcion domestic situation, Atty. Nogales and his staff of lawyers, who, like doctors are "specialists" in various fields can take care of it. The Legal Clinic, Inc. has specialists in taxation and criminal law, medico-legal problems, labor, litigation, and family law. These specialist are backed up by a battery of paralegals, counsellors and attorneys.

Atty. Nogales set up The Legal Clinic in 1984. Inspired by the trend in the medical field toward specialization, it caters to clients who cannot afford the services of the big law firms.

The Legal Clinic has regular and walk-in clients. "when they come, we start by analyzing the problem. That's what doctors do also. They ask you how you contracted what's bothering you, they take your temperature, they observe you for the symptoms and so on. That's how we operate, too. And once the problem has been categorized, then it's referred to one of our specialists.

There are cases which do not, in medical terms, require surgery or follow-up treatment. These The Legal Clinic disposes of in a matter of minutes. "Things like preparing a simple deed of sale or an affidavit of loss can be taken care of by our staff or, if this were a hospital the residents or the interns. We can take care of these matters on a while you wait basis. Again, kung baga sa hospital, out-patient, hindi kailangang ma-confine. It's just like a common cold or diarrhea," explains Atty. Nogales.

Those cases which requires more extensive "treatment" are dealt with accordingly. "If you had a rich relative who died and named you her sole heir, and you stand to inherit millions of pesos of property, we would refer you to a specialist in taxation. There would be real estate taxes and arrears which would need to be put in order, and your relative is even taxed by the state for the right to transfer her property, and only a specialist in taxation would be properly trained to deal with the problem. Now, if there were other heirs contesting your rich relatives will, then you would need a litigator, who knows

how to arrange the problem for presentation in court, and gather evidence to support the case. 21

That fact that the corporation employs paralegals to carry out its services is not controlling. What is important is that it is engaged in the practice of law by virtue of the nature of the services it renders which thereby brings it within the ambit of the statutory prohibitions against the advertisements which it has caused to be published and are now assailed in this proceeding.

Further, as correctly and appropriately pointed out by the U.P. WILOCI, said reported facts sufficiently establish that the main purpose of respondent is to serve as a one-stop-shop of sorts for various legal problems wherein a client may avail of legal services from simple documentation to complex litigation and corporate undertakings. Most of these services are undoubtedly beyond the domain of paralegals, but rather, are exclusive functions of lawyers engaged in the practice of law. 22

It should be noted that in our jurisdiction the services being offered by private respondent which constitute practice of law cannot be performed by paralegals. Only a person duly admitted as a member of the bar, or hereafter admitted as such in accordance with the provisions of the Rules of Court, and who is in good and regular standing, is entitled to practice law. 23

Public policy requires that the practice of law be limited to those individuals found duly qualified in education and character. The permissive right conferred on the lawyers is an individual and limited privilege subject to withdrawal if he fails to maintain proper standards of moral and professional conduct. The purpose is to protect the public, the court, the client and the bar from the incompetence or dishonesty of those unlicensed to practice law and not subject to the disciplinary control of the court. 24

The same rule is observed in the american jurisdiction wherefrom respondent would wish to draw support for his thesis. The doctrines there also stress that the practice of law is limited to those who meet the requirements for, and have been admitted to, the bar, and various statutes or rules specifically so provide. 25 The practice of law is not a lawful business except for members of the bar who have complied with all the conditions required by statute and the rules of court. Only those persons are allowed to practice law who, by reason of attainments previously acquired through education and study, have been recognized by the courts as possessing profound knowledge of legal science entitling them to advise, counsel with, protect, or defend the rights claims, or liabilities of their clients, with respect to the construction, interpretation, operation and effect of law. 26 The justification for excluding from the practice of law those not admitted to the bar is found, not in the protection of the bar from competition, but in the protection of the public from being advised and represented in legal matters by incompetent and unreliable persons over whom the judicial department can exercise little control. 27

We have to necessarily and definitely reject respondent's position that the concept in the United States of paralegals as an occupation separate from the law profession be adopted in this jurisdiction. Whatever may be its merits, respondent cannot but be aware that this should first be a matter for judicial rules or legislative action, and not of unilateral adoption as it has done.

Paralegals in the United States are trained professionals. As admitted by respondent, there are schools and universities there which offer studies and degrees in paralegal education, while there are none in the Philippines.28 As the concept of the "paralegals" or "legal assistant" evolved in the United States, standards and guidelines also evolved to protect the general public. One of the

major standards or guidelines was developed by the American Bar Association which set up Guidelines for the Approval of Legal Assistant Education Programs (1973). Legislation has even been proposed to certify legal assistants. There are also associations of paralegals in the United States with their own code of professional ethics, such as the National Association of Legal Assistants, Inc. and the American Paralegal Association. 29

In the Philippines, we still have a restricted concept and limited acceptance of what may be considered as paralegal service. As pointed out by FIDA, some persons not duly licensed to practice law are or have been allowed limited representation in behalf of another or to render legal services, but such allowable services are limited in scope and extent by the law, rules or regulations granting permission therefor. 30

Accordingly, we have adopted the American judicial policy that, in the absence of constitutional or statutory authority, a person who has not been admitted as an attorney cannot practice law for the proper administration of justice cannot be hindered by the unwarranted intrusion of an unauthorized and unskilled person into the practice of law. 31 That policy should continue to be one of encouraging persons who are unsure of their legal rights and remedies to seek legal assistance only from persons licensed to practice law in the state. 32

Anent the issue on the validity of the questioned advertisements, the Code of Professional Responsibility provides that a lawyer in making known his legal services shall use only true, honest, fair, dignified and objective information or statement of facts. 33 He is not supposed to use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services. 34 Nor shall he pay or give something of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business. 35 Prior to the adoption of the code of Professional Responsibility, the Canons of Professional Ethics had also warned that lawyers should not resort to indirect advertisements for professional employment, such as furnishing or inspiring newspaper comments, or procuring his photograph to be published in connection with causes in which the lawyer has been or is engaged or concerning the manner of their conduct, the magnitude of the interest involved, the importance of the lawyer's position, and all other like self-laudation. 36

The standards of the legal profession condemn the lawyer's advertisement of his talents. A lawyer cannot, without violating the ethics of his profession. advertise his talents or skill as in a manner similar to a merchant advertising his goods. 37 The prescription against advertising of legal services or solicitation of legal business rests on the fundamental postulate that the that the practice of law is a profession. Thus, in the case of The Director of Religious Affairs. vs. Estanislao R. Bayot 38 an advertisement, similar to those of respondent which are involved in the present proceeding, 39 was held to constitute improper advertising or solicitation.

The pertinent part of the decision therein reads:

It is undeniable that the advertisement in question was a flagrant violation by the respondent of the 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 his wares. 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 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 worthy and effective advertisement possible, even for a young lawyer, . . . . is the establishment of a well-merited reputation for professional capacity and fidelity to trust. This cannot be forced but must be the outcome of character and conduct." (Canon 27, Code of Ethics.).

We repeat, the canon of the profession tell us that the best advertising possible for a lawyer is a well-merited reputation for professional capacity and fidelity to trust, which must be earned as the outcome of character and conduct. Good and efficient service to a client as well as to the community has a way of publicizing itself and catching public attention. That publicity is a normal by-product of effective service which is right and proper. A good and reputable lawyer needs no artificial stimulus to generate it and to magnify his success. He easily sees the difference between a normal by-product of able service and the unwholesome result of propaganda. 40

Of course, not all types of advertising or solicitation are prohibited. The canons of the profession enumerate exceptions to the rule against advertising or solicitation and define the extent to which they may be undertaken. The exceptions are of two broad categories, namely, those which are expressly allowed and those which are necessarily implied from the restrictions. 41

The first of such exceptions is the publication in reputable law lists, in a manner consistent with the standards of conduct imposed by the canons, of brief biographical and informative data. "Such data must not be misleading and may include only a statement of the lawyer's name and the names of his professional associates; addresses, telephone numbers, cable addresses; branches of law practiced; date and place of birth and admission to the bar; schools attended with dates of graduation, degrees and other educational distinction; public or quasi-public offices; posts of honor; legal authorships; legal teaching positions; membership and offices in bar associations and committees thereof, in legal and scientific societies and legal fraternities; the fact of listings in other reputable law lists; the names and addresses of references; and, with their written consent, the names of clients regularly represented." 42

The law list must be a reputable law list published primarily for that purpose; it cannot be a mere supplemental feature of a paper, magazine, trade journal or periodical which is published principally for other purposes. For that reason, a lawyer may not properly publish his brief biographical and informative data in a daily paper, magazine, trade journal or society program. Nor may a lawyer permit his name to be published in a law list the conduct, management or contents of which are calculated or likely to deceive or injure the public or the bar, or to lower the dignity or standing of the profession. 43

The use of an ordinary simple professional card is also permitted. The card may contain only a statement of his name, the name of the law firm which he is connected with, address, telephone number and special branch of law practiced. The publication of a simple announcement of the opening of a law firm or of changes in the partnership, associates, firm name or office address, being for the convenience of the profession, is not objectionable. He may likewise have his name listed in a telephone directory but not under a designation of special branch of law. 44

Verily, taking into consideration the nature and contents of the advertisements for which respondent is being taken to task, which even includes a quotation of the fees charged by said respondent corporation for services rendered, we find and so hold that the same definitely do not and conclusively cannot fall under any of the above-mentioned exceptions.

The ruling in the case of Bates, et al. vs. State Bar of Arizona, 45 which is repeatedly invoked and constitutes the justification relied upon by respondent, is obviously not applicable to the case at bar. Foremost is the fact that the disciplinary rule involved in said case explicitly allows a lawyer, as an exception to the prohibition against advertisements by lawyers, to publish a statement of legal fees for an initial consultation or the availability upon request of a written schedule of fees or an estimate of the fee to be charged for the specific services. No such exception is provided for, expressly or impliedly, whether in our former Canons of Professional Ethics or the present Code of Professional Responsibility. Besides, even the disciplinary rule in the Bates case contains a proviso that the exceptions stated therein are "not applicable in any state unless and until it is implemented by such authority in that state." 46 This goes to show that an exception to the general rule, such as that being invoked by herein respondent, can be made only if and when the canons expressly provide for such an exception. Otherwise, the prohibition stands, as in the case at bar.

It bears mention that in a survey conducted by the American Bar Association after the decision in Bates, on the attitude of the public about lawyers after viewing television commercials, it was found that public opinion dropped significantly 47 with respect to these characteristics of lawyers:

Trustworthy from 71% to 14%Professional from 71% to 14%Honest from 65% to 14%Dignified from 45% to 14%

Secondly, it is our firm belief that with the present situation of our legal and judicial systems, to allow the publication of advertisements of the kind used by respondent would only serve to aggravate what is already a deteriorating public opinion of the legal profession whose integrity has consistently been under attack lately by media and the community in general. At this point in time, it is of utmost importance in the face of such negative, even if unfair, criticisms at times, to adopt and maintain that level of professional conduct which is beyond reproach, and to exert all efforts to regain the high esteem formerly accorded to the legal profession.

In sum, it is undoubtedly a misbehavior on the part of the lawyer, subject to disciplinary action, to advertise his services except in allowable instances 48 or to aid a layman in the unauthorized practice of law. 49 Considering that Atty. Rogelio P. Nogales, who is the prime incorporator, major stockholder and proprietor of The Legal Clinic, Inc. is a member of the Philippine Bar, he is hereby reprimanded, with a warning that a repetition of the same or similar acts which are involved in this proceeding will be dealt with more severely.

While we deem it necessary that the question as to the legality or illegality of the purpose/s for which the Legal Clinic, Inc. was created should be passed upon and determined, we are constrained to refrain from lapsing into an obiter on that aspect since it is clearly not within the adjudicative parameters of the present proceeding which is merely administrative in nature. It is, of course, imperative that this matter be promptly determined, albeit in a different proceeding and forum, since, under the present state of our law and jurisprudence, a corporation cannot be organized for or engage in the practice of law in this country. This interdiction, just like the rule against unethical advertising, cannot be subverted by employing some so-called paralegals supposedly rendering the alleged support services.

The remedy for the apparent breach of this prohibition by respondent is the concern and province of the Solicitor General who can institute the corresponding quo warranto action, 50 after due ascertainment of the factual background and basis for the grant of respondent's corporate charter,

in light of the putative misuse thereof. That spin-off from the instant bar matter is referred to the Solicitor General for such action as may be necessary under the circumstances.

ACCORDINGLY, the Court Resolved to RESTRAIN and ENJOIN herein respondent, The Legal Clinic, Inc., from issuing or causing the publication or dissemination of any advertisement in any form which is of the same or similar tenor and purpose as Annexes "A" and "B" of this petition, and from conducting, directly or indirectly, any activity, operation or transaction proscribed by law or the Code of Professional Ethics as indicated herein. Let copies of this resolution be furnished the Integrated Bar of the Philippines, the Office of the Bar Confidant and the Office of the Solicitor General for appropriate action in accordance herewith.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Davide, Jr., Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur

A.C. No. 5438 March 10, 2004

DAN JOEL V. LIM* and RICHARD C. TAN, complainants, vs.ATTY. EDILBERTO BARCELONA, respondent.

PER CURIAM:

On May 9, 2001, Dan Joel V. Lim and Richard C. Tan,1 both businessmen, filed a complaint for alleged robbery or extortion and violation of the Anti-Graft and Corrupt Practices Act against Atty. Edilberto Barcelona, a lawyer formerly employed with the National Labor Relations Commission (NLRC). The complaint was simultaneously filed with this Court and the Integrated Bar of the Philippines.2

Complainant Lim alleged that on the first week of August 2000, respondent phoned him and introduced himself as a lawyer and chief of the Public Assistance Center, NLRC. Respondent informed him that his employees filed a labor complaint against him in his office and it was necessary for him to see and talk with respondent. From then on respondent would often call him. Respondent visited him in his office and told him to settle the case or else his business, Top Gun Billiards, would be shut down. Lim recalled that on August 14, 2000, at around 7:30 p.m., respondent again visited his establishment and told him to settle the case for P20,000.00.

In support of his allegations, Lim submitted a written complaint of Arnel E. Ditan and Pilipino Ubante; an endorsement letter dated August 2, 2000 of Atty. Jonathan F. Baligod of the Presidential Action Center; handwritten calling cards of the respondent; and an affidavit of desistance executed by Ditan and Ubante.

In their joint affidavit, Ditan and Ubante confirmed the filing of their complaint against their employer, Lim, and that after some dialogue, the aforenamed employees executed an affidavit dated August 8, 2000 withdrawing their complaint. According to Ditan and Ubante, they met the respondent in Top Gun Billiards where the latter often played billiards. One day, respondent gave them a letter and asked them to sign it. Since they were busy at that time, they signed it without reading and understanding its contents. Their employer, Lim, asked what it was about and they told him that they were just made to sign a document without their understanding it. They added, they did not have any complaint against their employer. Despite such withdrawal, respondent still called

Lim threatening the latter that he would pursue the case, have his establishment closed and he would be jailed if he did not come up with P20,000.00 as settlement. In the evening of August 14, 2000, respondent reiterated his demand for P20,000.00, again with the threat of closure of the billiard center and putting Lim in jail.

Complainant Lim said that after his meeting with respondent, he agreed to give the amount but did not fix any date when payment would be made, whereupon, respondent gave notice that he would drop in at around 7:00 in the evening, on August 16, 2000, to pick up the money.

Aurora Cruz y Libunao, owner of the carinderia adjacent to Top Gun Billiards, stated in her sworn statement as well as court testimony that she met respondent when he ate in her carinderia. She recalled that the respondent told her that he would shut down the billiard business if the owner would not talk to him. She also recounted that on August 14, 2000, at around 8:30 p.m., she saw on the second floor of the pool house, the respondent and Lim talking. After a while, the respondent came down and passed by her carinderia. The respondent then informed her that he and Lim talked about the P20,000.00 which respondent would give to his alleged boss in Malacañang. During the hearing, she also recalled seeing Lim hand money to respondent who in turn put the cash in his attaché case and immediately thereafter, she saw three men arrest respondent.3

Notably, almost nine months before the filing of his complaint, or on August 14, 2000, complainant Lim personally submitted a letter to the NBI requesting the NBI to investigate respondent Atty. Edilberto Barcelona.4 According to the NBI report, after due investigation, it decided to conduct an entrapment operation. On August 15, 2000, Special Investigator Marvin de Jemil, sent nine five hundred peso bills and five one hundred peso bills for fluorescent powder dusting to the NBI Forensic Chemistry Division. Further, the NBI reported that thru the NBI Identification and Records Division, it found no record of such person named Edilberto Barcelona.

The NBI report also stated that on August 16, 2000, Lim informed the NBI operatives that at around 7:00 p.m. respondent would drop by his pool house to collect the money. At around 6:30 p.m., the operatives went to the pool house and strategically positioned themselves and posed as pool players. At about 7:20 p.m., respondent arrived, sat on a plastic chair and talked to complainant Lim. At around 7:30 p.m., Lim handed the marked money to the respondent who, in turn, received it. While respondent was counting the money and about to place it inside his bag, he was immediately arrested. The respondent initially resisted and tried to create scandal but was later pacified.

The NBI averred that the respondent was informed of his constitutional rights and was brought to the NBI office where he was booked and fingerprinted. In his fingerprint chart, the respondent indicated that he was a government lawyer and assigned at the office of the Chief, Public Assistance Center, NLRC, Banawe, Quezon City. He showed his identification card. Later he was brought to the Forensic Chemistry Division for ultraviolet examination. The certification issued by Forensic Chemist Loren G. Janobas stated that there were "yellow fluorescent specks and smudges" on the back and palm of the left and right hand of the respondent. On August 17, 2000, the NBI turned over respondent to the City Prosecutor of Manila who eventually indicted him for robbery/extortion.5

Complainant Richard Tan, owner of Tai Hing Glass Supply, a co-signee in the herein complaint, executed a sworn statement dated August 16, 2000. In it he alleged that he went to the Criminal Intelligence Division, Intelligence Service of the NBI to complain about respondent Barcelona. He said that sometime during the last week of July, respondent called him, introduced himself and

informed him that one of his employees filed an illegal dismissal case against him. He remembered that before respondent's call, he had suspended an employee, Bryan Tellen, for leaving his workplace without permission. Tellen received several warning letters from him regarding his misdemeanors. Tan remembered that Tellen once hinted that he knew someone in the Department of Labor, who turned out to be herein respondent, Atty. Barcelona. Before Tan sent his accountant, Ditas Guitierrez, to respondent's office to represent him, he told her to bring a copy of Tellen's suspension letter and to inform respondent that Tellen had not been dismissed. When Guitierrez returned, she told him that respondent wanted him to pay his employee. She added that respondent did not give her any copy of a formal complaint on the alleged illegal dismissal. After two days, according to Tan, respondent went to his office, showed him an identification card and gave him a handwritten calling card. Respondent told him to pay his employee P20,000.00 to P30,000.00, otherwise respondent would go on with the filing of the illegal dismissal case. When he said he did not have that kind of money, respondent lowered the amount to P15,000.00. Complainant Tan added that when he gave respondent the money, the latter promised to take care of the illegal dismissal complaint. On July 29, 2000, according to Tan, respondent came to see him again. Respondent appeared drunk and told Tan to go to the respondent's office because a problem regarding the case arose. Tan stated that before respondent left, respondent invited his employees to a game of billiards. Tan said he did not consent to the employees playing because they had work. On July 31, 2000, respondent went to him a third time and asked for an additional P10,000.00 allegedly for his employee, Tellen, since the P15,000.00 Tan gave earlier was for respondent only. After a few more visits by respondent, Tan finally told the respondent to show him the formal complaint and he would just get himself a lawyer.6

The Joint Affidavit of Arrest, signed on August 17, 2000 by Agent Don R. Hernandez, SI Felix O. Senora and SI Marvin de Jemil, cited complainant Tan's allegations.7

Respondent Atty. Barcelona filed his Comment8 on December 10, 2001, praying for the dismissal of the complaint against him. Respondent, in his defense, alleges that he normally played billiards at the Top Gun Billiard Center where he would drop by from his office before going to his residence; that when certain employees of the billiard center learned that he was a lawyer and Chief of the Public Assistance Center of the NLRC, they confided in him their grievance against their employer, Lim, for alleged violation of labor laws, there respondent gave them assistance; that with the proper complaint and required documentation accomplished, respondent's office scheduled the case for a dialogue-conference between the complaining workers and their employer; that on instigation and coercion of complainant Lim, respondent became a victim of theft, billiard hustling, swindling and syndicated gambling on August 9, 2000; that on or about August 9, 2000, respondent filed a complaint for theft of cellphone and pack of cigarettes, billiard hustling, syndicated gambling, and swindling against Lim and his three workers, eventually docketed as I.S. No. 38251 to 53.9

Respondent's Comment narrated his version on how the money allegedly was given to him. According to the respondent, on August 16, 2000, at about 3 p.m., he received a phone call from complainant Lim informing him that Ian Gonvan,10 one of the accused in I.S. No. 38251, admitted taking his cellphone and was willing and ready to return it at around 7 p.m., at the Top Gun Billiard Center. It was the birthday of his daughter that was why he took the day off from office. At about 7:30 p.m., he arrived at the billiard hall and there found Lim with one of his complaining workers, fixing the lamp of one of the billiard tables. He did not see Gonvan within the premises so he sat and watched the billiard games going on while he waited. After about 15 minutes Lim sat beside him and told him that Gonvan could no longer return the cellphone and instead Gonvan entrusted Lim with the equivalent value in cash. According to respondent, Lim persistently whispered to him to accept and count the wad of paper money Lim pulled out. According to respondent, he consistently refused to touch the money and he insisted, "Gusto ko munang makaharap ang

sinasabi mong si Gumban,"11 continuously refusing to accept, much less count, the offered wad of money. Respondent added that when Lim realized that he could not be prevailed upon to accept it, he placed and inserted the wad of money in the open side pocket of respondent's shoulder bag that respondent normally carried, again pleading to respondent that he should count the money. Respondent added that Lim's behavior was rude and intimidating so much so that respondent protested such rudeness. But respondent said while he was trying to retrieve the wad of money to throw it back to Lim, about five or seven burly men accosted respondent and handcuffed him over his vehement protestations.12

On Tan's complaint, respondent declared that he never demanded nor received money from Tan, and Tan's accusations are but a product of the former's fertile imagination as leverage because he actively assisted a complaining worker of Tan.13 Respondent added that a formal labor complaint has been filed against Tan.14

Eventually, we referred the complaint against Atty. Barcelona to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. Its report with recommendation is now before us. We shall now proceed to the merits of the complaint.

Respondent's version seeks to discredit the NBI report to the effect that respondent accepted the marked money which Lim handed to him. His version, however, fails to explain why he was found positive for yellow fluorescent specks and smudges in his dorsal and palmar aspects of the left and right hands by the Forensic Department of the NBI.

Respondent claims that he continuously refused to accept, much less count, the offered wad of money. Because of such refusal, according to respondent, Lim inserted the wad of money in respondent's shoulder bag's open pocket while complainant Lim was still pleading to count the wad of money.

Respondent alleges that the alleged bribery or extortion is a mere concoction of complainant and as leverage for the cases against Lim and Tan.

Based on the NBI report, this case appears to be an entrapment operation. Notably, Atty. Don Hernandez and his team of arresting officers confirm the entrapment operation against respondent on the basis of complainant Lim's call for NBI assistance.

While respondent alleges that complainant Lim merely concocted a charge of extortion against him in retaliation to a complaint for theft which he had filed, it may be noted that the complaint for theft was not directed against Lim but only against his workers who were accused by respondent. Hence, there appears to be no strong reason for Lim to resort to a counter-charge for extortion against respondent.

The Commission on Bar Discipline of the IBP concluded that it is highly improbable that the NBI could be misled by complainant Lim into conducting an entrapment operation against respondent, if there was no merit to his complaint against respondent. From a reading of the NBI Report as well as the documents attached to said report, it is evident that the NBI considered the merits of Lim's complaint of extortion against respondent. Finding it worth pursuing, the NBI conducted an entrapment operation against respondent. On the basis of the entrapment operation conducted by the NBI, respondent was caught in the act, so to speak, of attempted extortion. Respondent was brought to the City Prosecutor of Manila for inquest and the appropriate complaint for Robbery/Extortion was filed against respondent.15

Based on its own evaluation and the NBI Report, the Investigating Commissioner of the Commission on Bar Discipline recommended the suspension of respondent from the practice of law for a period of two years.16

In the final resolution dated September 27, 2003, the Board of Governors of the IBP imposed the penalty of disbarment for the reason that respondent in fact attempted to extort money as Chief of the Public Assistance Center of the NLRC to threaten/coerce Lim and that no less than the NBI caught him in the act of receiving and counting the money extorted from Lim.17

The grounds for disbarment or suspension of an attorney are: (1) deceit; (2) malpractice or other gross misconduct in office; (3) grossly immoral conduct; (4) conviction of a crime involving moral turpitude; (5) violation of the lawyer's oath; (6) willful disobedience of any lawful order of a superior court; and (7) willfully appearing as an attorney for a party without authority.18

The NBI found that respondent's hands had yellow fluorescent specks and smudges with which the money used for the entrapment of the respondent had been powdered. We find no reason to doubt the NBI report. Also, we see no basis to overturn the presumption that the NBI had done its duty regularly.

Respondent would make us believe that the specks and smudges of yellow fluorescent were in his hands because Lim offered him what was allegedly the payment for the stolen cellphone by a certain Gonvan. Regrettably, there is no corroboration from Gonvan nor anyone else on this matter. Thus, respondent's story appears to us entirely self-serving.

We had held previously that if a lawyer's misconduct in the discharge of his official duties as government official is of such a character as to affect his qualification as a lawyer or to show moral delinquency, he may be disciplined as a member of the Bar on such ground.19 More significantly, lawyers in government service in the discharge of their official tasks have more restrictions than lawyers in private practice. Want of moral integrity is to be more severely condemned in a lawyer who holds a responsible public office. 20 Rule 1.02 of the Code of Professional Responsibility provides that a lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system. Extortion by a government lawyer, an outright violation of the law, calls for the corresponding grave sanctions. With the aforesaid rule a high standard of integrity is demanded of a government lawyer as compared to a private practitioner because the delinquency of a government lawyer erodes the people's trust and confidence in the government.

Needless to say, lawyers owe it to the court and to society not to stir up litigations. Employees of the billiards hall, Ditan and Ubante, swore that respondent public officer encouraged complainant Lim's workers to file a case against the latter. Rule 1.03 of the same Code states that a lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or delay any man's cause.

Noteworthy, as an Attorney IV and Chief of the Public Assistance Center of the NLRC, respondent failed to observe prudence by hanging out and playing in the billiard hall. By so doing, he exposed himself unnecessarily to certain elements and situations which could compromise his official position and his status as a lawyer.

Time and again, we have declared that the practice of law is a noble profession. It is a special privilege bestowed only upon those who are competent intellectually, academically and morally. A lawyer must at all times conduct himself, especially in his dealings with his clients and the public at large, with honesty and integrity in a manner beyond reproach. He must faithfully perform his duties

to society, to the bar, to the courts and to his clients. A violation of the high standards of the legal profession subjects the lawyer to administrative sanctions which includes suspension and disbarment.21 More importantly, possession of good moral character must be continuous as a requirement to the enjoyment of the privilege of law practice; otherwise, the loss thereof is a ground for the revocation of such privilege.22

Indeed, the primary objective of administrative cases against lawyers is not only to punish and discipline the erring individual lawyers, but also to safeguard the administration of justice by protecting the courts and the public from the misconduct of lawyers and to remove from the legal profession persons whose utter disregard of the lawyer's oath has proven them unfit to continue discharging the trust reposed in them as members of the bar.23 These pronouncements gain practical significance in this case, considering that respondent is a senior lawyer of the NLRC. It bears stressing also that government lawyers who are public servants owe fidelity to the public service, a public trust. As such, government lawyers should be more sensitive to their professional obligations as their disreputable conduct is more likely to be magnified in the public eye.24

As a lawyer, who was also a public officer, respondent miserably failed to cope with the strict demands and high standards of the legal profession.

In Montano v. IBP,25 this Court said that only in a clear case of misconduct that seriously affects the standing and character of the lawyer may disbarment be imposed as a penalty. In the instant case, the Court is convinced that the evidence against respondent is clear and convincing. He is administratively liable for corrupt activity, deceit, and gross misconduct. As correctly held by the Board of Governors of the Integrated Bar of the Philippines, he should not only be suspended from the practice of law but disbarred.

WHEREFORE, respondent Atty. Edilberto Barcelona is found administratively guilty of corrupt activity, deceit, and gross misconduct and is hereby ordered DISBARRED. Let his name be stricken from the Roll of Attorneys effective immediately, and this resolution spread in his record in this Court and circulated to all courts in the Philippines.

SO ORDERED.

Davide, Jr., C. J., Vitug, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.Puno, J., on leave.Panganiban, J., on official leave.

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

PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), Petitioners, vs.SANDIGANBAYAN (Fifth Division), LUCIO C. TAN, CARMEN KHAO TAN, FLORENCIO T.

SANTOS, NATIVIDAD P. SANTOS, DOMINGO CHUA, TAN HUI NEE, MARIANO TAN ENG LIAN, ESTATE OF BENITO TAN KEE HIONG (represented by TARCIANA C. TAN), FLORENCIO N. SANTOS, JR., HARRY C. TAN, TAN ENG CHAN, CHUNG POE KEE, MARIANO KHOO, MANUEL KHOO, MIGUEL KHOO, JAIME KHOO, ELIZABETH KHOO, CELSO RANOLA, WILLIAM T. WONG, ERNESTO B. LIM, BENJAMIN T. ALBACITA, WILLY CO, ALLIED BANKING CORP., ALLIED LEASING AND FINANCE CORPORATION, ASIA BREWERY, INC., BASIC HOLDINGS CORP., FOREMOST FARMS, INC., FORTUNE TOBACCO CORP., GRANDSPAN DEVELOPMENT CORP., HIMMEL INDUSTRIES, IRIS HOLDINGS AND DEVELOPMENT CORP., JEWEL HOLDINGS, INC., MANUFACTURING SERVICES AND TRADE CORP., MARANAW HOTELS AND RESORT CORP., NORTHERN TOBACCO REDRYING PLANT, PROGRESSIVE FARMS, INC., SHAREHOLDINGS, INC., SIPALAY TRADING CORP., VIRGO HOLDINGS & DEVELOPMENT CORP., and ATTY. ESTELITO P. MENDOZA, Respondents.

D E C I S I O N

PUNO, J.:

This case is prima impressiones and it is weighted with significance for it concerns on one hand, the efforts of the Bar to upgrade the ethics of lawyers in government service and on the other, its effect on the right of government to recruit competent counsel to defend its interests.

In 1976, General Bank and Trust Company (GENBANK) encountered financial difficulties. GENBANK had extended considerable financial support to Filcapital Development Corporation causing it to incur daily overdrawings on its current account with the Central Bank.1 It was later found by the Central Bank that GENBANK had approved various loans to directors, officers, stockholders and related interests totaling P172.3 million, of which 59% was classified as doubtful and P0.505 million as uncollectible.2 As a bailout, the Central Bank extended emergency loans to GENBANK which reached a total of P310 million.3 Despite the mega loans, GENBANK failed to recover from its financial woes. On March 25, 1977, the Central Bank issued a resolution declaring GENBANK insolvent and unable to resume business with safety to its depositors, creditors and the general public, and ordering its liquidation.4 A public bidding of GENBANK’s assets was held from March 26 to 28, 1977, wherein the Lucio Tan group submitted the winning bid.5 Subsequently, former Solicitor General Estelito P. Mendoza filed a petition with the then Court of First Instance praying for the assistance and supervision of the court in GENBANK’s liquidation as mandated by Section 29 of Republic Act No. 265.

In February 1986, the EDSA I revolution toppled the Marcos government. One of the first acts of President Corazon C. Aquino was to establish the Presidential Commission on Good Government (PCGG) to recover the alleged ill-gotten wealth of former President Ferdinand Marcos, his family and his cronies. Pursuant to this mandate, the PCGG, on July 17, 1987, filed with the Sandiganbayan a complaint for "reversion, reconveyance, restitution, accounting and damages" against respondents Lucio Tan, Carmen Khao Tan, Florencio T. Santos, Natividad P. Santos, Domingo Chua, Tan Hui Nee, Mariano Tan Eng Lian, Estate of Benito Tan Kee Hiong, Florencio N. Santos, Jr., Harry C. Tan, Tan Eng Chan, Chung Poe Kee, Mariano Khoo, Manuel Khoo, Miguel Khoo, Jaime Khoo, Elizabeth Khoo, Celso Ranola, William T. Wong, Ernesto B. Lim, Benjamin T. Albacita, Willy Co, Allied Banking Corporation (Allied Bank), Allied Leasing and Finance Corporation, Asia Brewery, Inc., Basic Holdings Corp., Foremost Farms, Inc., Fortune Tobacco Corporation, Grandspan Development Corp., Himmel Industries, Iris Holdings and Development Corp., Jewel Holdings, Inc., Manufacturing Services and Trade Corp., Maranaw Hotels and Resort Corp., Northern Tobacco Redrying Plant, Progressive Farms, Inc.,

Shareholdings, Inc., Sipalay Trading Corp., Virgo Holdings & Development Corp., (collectively referred to herein as respondents Tan, et al.), then President Ferdinand E. Marcos, Imelda R. Marcos, Panfilo O. Domingo, Cesar Zalamea, Don Ferry and Gregorio Licaros. The case was docketed as Civil Case No. 0005 of the Second Division of the Sandiganbayan.6 In connection therewith, the PCGG issued several writs of sequestration on properties allegedly acquired by the above-named persons by taking advantage of their close relationship and influence with former President Marcos.

Respondents Tan, et al. repaired to this Court and filed petitions for certiorari, prohibition and injunction to nullify, among others, the writs of sequestration issued by the PCGG.7 After the filing of the parties’ comments, this Court referred the cases to the Sandiganbayan for proper disposition. These cases were docketed as Civil Case Nos. 0096-0099. In all these cases, respondents Tan, et al. were represented by their counsel, former Solicitor General Estelito P. Mendoza, who has then resumed his private practice of law.

On February 5, 1991, the PCGG filed motions to disqualify respondent Mendoza as counsel for respondents Tan, et al. with the Second Division of the Sandiganbayan in Civil Case Nos. 00058 and 0096-0099.9 The motions alleged that respondent Mendoza, as then Solicitor General10 and counsel to Central Bank, "actively intervened" in the liquidation of GENBANK, which was subsequently acquired by respondents Tan, et al. and became Allied Banking Corporation. Respondent Mendoza allegedly "intervened" in the acquisition of GENBANK by respondents Tan, et al. when, in his capacity as then Solicitor General, he advised the Central Bank’s officials on the procedure to bring about GENBANK’s liquidation and appeared as counsel for the Central Bank in connection with its petition for assistance in the liquidation of GENBANK which he filed with the Court of First Instance (now Regional Trial Court) of Manila and was docketed as Special Proceeding No. 107812. The motions to disqualify invoked Rule 6.03 of the Code of Professional Responsibility. Rule 6.03 prohibits former government lawyers from accepting "engagement or employment in connection with any matter in which he had intervened while in said service."

On April 22, 1991 the Second Division of the Sandiganbayan issued a resolution denying PCGG’s motion to disqualify respondent Mendoza in Civil Case No. 0005.11 It found that the PCGG failed to prove the existence of an inconsistency between respondent Mendoza’s former function as Solicitor General and his present employment as counsel of the Lucio Tan group. It noted that respondent Mendoza did not take a position adverse to that taken on behalf of the Central Bank during his term as Solicitor General.12 It further ruled that respondent Mendoza’s appearance as counsel for respondents Tan, et al. was beyond the one-year prohibited period under Section 7(b) of Republic Act No. 6713 since he ceased to be Solicitor General in the year 1986. The said section prohibits a former public official or employee from practicing his profession in connection with any matter before the office he used to be with within one year from his resignation, retirement or separation from public office.13 The PCGG did not seek any reconsideration of the ruling.14

It appears that Civil Case Nos. 0096-0099 were transferred from the Sandiganbayan’s Second Division to the Fifth Division.15 In its resolution dated July 11, 2001, the Fifth Division of the Sandiganbayan denied the other PCGG’s motion to disqualify respondent Mendoza.16 It adopted the resolution of its Second Division dated April 22, 1991, and observed that the arguments were the same in substance as the motion to disqualify filed in Civil Case No. 0005. The PCGG sought reconsideration of the ruling but its motion was denied in its resolution dated December 5, 2001.17

Hence, the recourse to this Court by the PCGG assailing the resolutions dated July 11, 2001 and December 5, 2001 of the Fifth Division of the Sandiganbayan via a petition for certiorari and prohibition under Rule 65 of the 1997 Rules of Civil Procedure.18 The PCGG alleged that the Fifth Division acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed resolutions contending that: 1) Rule 6.03 of the Code of Professional Responsibility prohibits a former government lawyer from accepting employment in connection with any matter in which he intervened; 2) the prohibition in the Rule is not time-bound; 3) that Central Bank could not waive the objection to respondent Mendoza’s appearance on behalf of the PCGG; and 4) the resolution in Civil Case No. 0005 was interlocutory, thus res judicata does not apply.19

The petition at bar raises procedural and substantive issues of law. In view, however, of the import and impact of Rule 6.03 of the Code of Professional Responsibility to the legal profession and the government, we shall cut our way and forthwith resolve the substantive issue.

I

Substantive Issue

The key issue is whether Rule 6.03 of the Code of Professional Responsibility applies to respondent Mendoza. Again, the prohibition states: "A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened while in the said service."

I.A. The history of Rule 6.03

A proper resolution of this case necessitates that we trace the historical lineage of Rule 6.03 of the Code of Professional Responsibility.

In the seventeenth and eighteenth centuries, ethical standards for lawyers were pervasive in England and other parts of Europe. The early statements of standards did not resemble modern codes of conduct. They were not detailed or collected in one source but surprisingly were comprehensive for their time. The principal thrust of the standards was directed towards the litigation conduct of lawyers. It underscored the central duty of truth and fairness in litigation as superior to any obligation to the client. The formulations of the litigation duties were at times intricate, including specific pleading standards, an obligation to inform the court of falsehoods and a duty to explore settlement alternatives. Most of the lawyer's other basic duties -- competency, diligence, loyalty, confidentiality, reasonable fees and service to the poor -- originated in the litigation context, but ultimately had broader application to all aspects of a lawyer's practice.

The forms of lawyer regulation in colonial and early post-revolutionary America did not differ markedly from those in England. The colonies and early states used oaths, statutes, judicial oversight, and procedural rules to govern attorney behavior. The difference from England was in the pervasiveness and continuity of such regulation. The standards set in England varied over time, but the variation in early America was far greater. The American regulation fluctuated within a single colony and differed from colony to colony. Many regulations had the effect of setting some standards of conduct, but the regulation was sporadic, leaving gaps in the substantive standards. Only three of the traditional core duties can be fairly characterized as pervasive in the formal, positive law of the colonial and post-revolutionary period: the duties of litigation fairness, competency and reasonable fees.20

The nineteenth century has been termed the "dark ages" of legal ethics in the United States. By mid-century, American legal reformers were filling the void in two ways. First, David Dudley Field, the drafter of the highly influential New York "Field Code," introduced a new set of uniform standards of conduct for lawyers. This concise statement of eight statutory duties became law in several states in the second half of the nineteenth century. At the same time, legal educators, such as David Hoffman and George Sharswood, and many other lawyers were working to flesh out the broad outline of a lawyer's duties. These reformers wrote about legal ethics in unprecedented detail and thus brought a new level of understanding to a lawyer's duties. A number of mid-nineteenth century laws and statutes, other than the Field Code, governed lawyer behavior. A few forms of colonial regulations – e.g., the "do no falsehood" oath and the deceit prohibitions -- persisted in some states. Procedural law continued to directly, or indirectly, limit an attorney's litigation behavior. The developing law of agency recognized basic duties of competence, loyalty and safeguarding of client property. Evidence law started to recognize with less equivocation the attorney-client privilege and its underlying theory of confidentiality. Thus, all of the core duties, with the likely exception of service to the poor, had some basis in formal law. Yet, as in the colonial and early post-revolutionary periods, these standards were isolated and did not provide a comprehensive statement of a lawyer's duties. The reformers, by contrast, were more comprehensive in their discussion of a lawyer's duties, and they actually ushered a new era in American legal ethics.21

Toward the end of the nineteenth century, a new form of ethical standards began to guide lawyers in their practice — the bar association code of legal ethics. The bar codes were detailed ethical standards formulated by lawyers for lawyers. They combined the two primary sources of ethical guidance from the nineteenth century. Like the academic discourses, the bar association codes gave detail to the statutory statements of duty and the oaths of office. Unlike the academic lectures, however, the bar association codes retained some of the official imprimatur of the statutes and oaths. Over time, the bar association codes became extremely popular that states adopted them as binding rules of law. Critical to the development of the new codes was the re-emergence of bar associations themselves. Local bar associations formed sporadically during the colonial period, but they disbanded by the early nineteenth century. In the late nineteenth century, bar associations began to form again, picking up where their colonial predecessors had left off. Many of the new bar associations, most notably the Alabama State Bar Association and the American Bar Association, assumed on the task of drafting substantive standards of conduct for their members.22

In 1887, Alabama became the first state with a comprehensive bar association code of ethics. The 1887 Alabama Code of Ethics was the model for several states’ codes, and it was the foundation for the American Bar Association's (ABA) 1908 Canons of Ethics.23

In 1917, the Philippine Bar found that the oath and duties of a lawyer were insufficient to attain the full measure of public respect to which the legal profession was entitled. In that year, the Philippine Bar Association adopted as its own, Canons 1 to 32 of the ABA Canons of Professional Ethics.24

As early as 1924, some ABA members have questioned the form and function of the canons. Among their concerns was the "revolving door" or "the process by which lawyers and others temporarily enter government service from private life and then leave it for large fees in private practice, where they can exploit information, contacts, and influence garnered in government service."25 These concerns were classified as adverse-interest conflicts" and "congruent-interest conflicts." "Adverse-interest conflicts" exist where the matter in which the former government lawyer represents a client in private practice is substantially related to a matter that the

lawyer dealt with while employed by the government and the interests of the current and former are adverse.26 On the other hand, "congruent-interest representation conflicts" are unique to government lawyers and apply primarily to former government lawyers.27 For several years, the ABA attempted to correct and update the canons through new canons, individual amendments and interpretative opinions. In 1928, the ABA amended one canon and added thirteen new canons.28 To deal with problems peculiar to former government lawyers, Canon 36 was minted which disqualified them both for "adverse-interest conflicts" and "congruent-interest representation conflicts."29 The rationale for disqualification is rooted in a concern that the government lawyer’s largely discretionary actions would be influenced by the temptation to take action on behalf of the government client that later could be to the advantage of parties who might later become private practice clients.30 Canon 36 provides,viz.:

36. Retirement from judicial position or public employment

A lawyer should not accept employment as an advocate in any matter upon the merits of which he has previously acted in a judicial capacity.

A lawyer, having once held public office or having been in the public employ should not, after his retirement, accept employment in connection with any matter he has investigated or passed upon while in such office or employ.

Over the next thirty years, the ABA continued to amend many of the canons and added Canons 46 and 47 in 1933 and 1937, respectively.31

In 1946, the Philippine Bar Association again adopted as its own Canons 33 to 47 of the ABA Canons of Professional Ethics.32

By the middle of the twentieth century, there was growing consensus that the ABA Canons needed more meaningful revision. In 1964, the ABA President-elect Lewis Powell asked for the creation of a committee to study the "adequacy and effectiveness" of the ABA Canons. The committee recommended that the canons needed substantial revision, in part because the ABA Canons failed to distinguish between "the inspirational and the proscriptive" and were thus unsuccessful in enforcement. The legal profession in the United States likewise observed that Canon 36 of the ABA Canons of Professional Ethics resulted in unnecessary disqualification of lawyers for negligible participation in matters during their employment with the government.

The unfairness of Canon 36 compelled ABA to replace it in the 1969 ABA Model Code of Professional Responsibility.33 The basic ethical principles in the Code of Professional Responsibility were supplemented by Disciplinary Rules that defined minimum rules of conduct to which the lawyer must adhere.34 In the case of Canon 9, DR 9-101(b)35 became the applicable supplementary norm. The drafting committee reformulated the canons into the Model Code of Professional Responsibility, and, in August of 1969, the ABA House of Delegates approved the Model Code.36

Despite these amendments, legal practitioners remained unsatisfied with the results and indefinite standards set forth by DR 9-101(b) and the Model Code of Professional Responsibility as a whole. Thus, in August 1983, the ABA adopted new Model Rules of Professional Responsibility. The Model Rules used the "restatement format," where the conduct standards were set-out in rules, with comments following each rule. The new format was intended to give better guidance and clarity for enforcement "because the only enforceable standards were the

black letter Rules." The Model Rules eliminated the broad canons altogether and reduced the emphasis on narrative discussion, by placing comments after the rules and limiting comment discussion to the content of the black letter rules. The Model Rules made a number of substantive improvements particularly with regard to conflicts of interests.37 In particular, the ABA did away with Canon 9, citing the hopeless dependence of the concept of impropriety on the subjective views of anxious clients as well as the norm’s indefinite nature.38

In cadence with these changes, the Integrated Bar of the Philippines (IBP) adopted a proposed Code of Professional Responsibility in 1980 which it submitted to this Court for approval. The Code was drafted to reflect the local customs, traditions, and practices of the bar and to conform with new realities. On June 21, 1988, this Court promulgated the Code of Professional Responsibility.39 Rule 6.03 of the Code of Professional Responsibility deals particularly with former government lawyers, and provides, viz.:

Rule 6.03 – A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened while in said service.

Rule 6.03 of the Code of Professional Responsibility retained the general structure of paragraph 2, Canon 36 of the Canons of Professional Ethics but replaced the expansive phrase "investigated and passed upon" with the word "intervened." It is, therefore, properly applicable to both "adverse-interest conflicts" and"congruent-interest conflicts."

The case at bar does not involve the "adverse interest" aspect of Rule 6.03. Respondent Mendoza, it is conceded, has no adverse interest problem when he acted as Solicitor General in Sp. Proc. No. 107812 and later as counsel of respondents Tan, et al. in Civil Case No. 0005 and Civil Case Nos. 0096-0099 before theSandiganbayan. Nonetheless, there remains the issue of whether there exists a "congruent-interest conflict" sufficient to disqualify respondent Mendoza from representing respondents Tan, et al.

I.B. The "congruent interest" aspect of Rule 6.03

The key to unlock Rule 6.03 lies in comprehending first, the meaning of "matter" referred to in the rule and, second, the metes and bounds of the "intervention" made by the former government lawyer on the "matter." The American Bar Association in its Formal Opinion 342, defined "matter" as any discrete, isolatable act as well as identifiable transaction or conduct involving a particular situation and specific party, and not merely an act of drafting, enforcing or interpreting government or agency procedures, regulations or laws, or briefing abstract principles of law.

Firstly, it is critical that we pinpoint the "matter" which was the subject of intervention by respondent Mendoza while he was the Solicitor General. The PCGG relates the following acts of respondent Mendoza as constituting the "matter" where he intervened as a Solicitor General, viz:40

The PCGG’s Case for Atty. Mendoza’s Disqualification

The PCGG imputes grave abuse of discretion on the part of the Sandiganbayan (Fifth Division) in issuing the assailed Resolutions dated July 11, 2001 and December 5, 2001 denying the motion to disqualify Atty. Mendoza as counsel for respondents Tan, et al. The PCGG insists that Atty. Mendoza, as then Solicitor General, actively intervened in the closure of GENBANK by advising

the Central Bank on how to proceed with the said bank’s liquidation and even filing the petition for its liquidation with the CFI of Manila.

As proof thereof, the PCGG cites the Memorandum dated March 29, 1977 prepared by certain key officials of the Central Bank, namely, then Senior Deputy Governor Amado R. Brinas, then Deputy Governor Jaime C. Laya, then Deputy Governor and General Counsel Gabriel C. Singson, then Special Assistant to the Governor Carlota P. Valenzuela, then Asistant to the Governor Arnulfo B. Aurellano and then Director of Department of Commercial and Savings Bank Antonio T. Castro, Jr., where they averred that on March 28, 1977, they had a conference with the Solicitor General (Atty. Mendoza), who advised them on how to proceed with the liquidation of GENBANK. The pertinent portion of the said memorandum states:

Immediately after said meeting, we had a conference with the Solicitor General and he advised that the following procedure should be taken:

1. Management should submit a memorandum to the Monetary Board reporting that studies and evaluation had been made since the last examination of the bank as of August 31, 1976 and it is believed that the bank can not be reorganized or placed in a condition so that it may be permitted to resume business with safety to its depositors and creditors and the general public.

2. If the said report is confirmed by the Monetary Board, it shall order the liquidation of the bank and indicate the manner of its liquidation and approve a liquidation plan.

3. The Central Bank shall inform the principal stockholders of Genbank of the foregoing decision to liquidate the bank and the liquidation plan approved by the Monetary Board.

4. The Solicitor General shall then file a petition in the Court of First Instance reciting the proceedings which had been taken and praying the assistance of the Court in the liquidation of Genbank.

The PCGG further cites the Minutes No. 13 dated March 29, 1977 of the Monetary Board where it was shown that Atty. Mendoza was furnished copies of pertinent documents relating to GENBANK in order to aid him in filing with the court the petition for assistance in the bank’s liquidation. The pertinent portion of the said minutes reads:

The Board decided as follows:

. . .

E. To authorize Management to furnish the Solicitor General with a copy of the subject memorandum of the Director, Department of Commercial and Savings Bank dated March 29, 1977, together with copies of:

1. Memorandum of the Deputy Governor, Supervision and Examination Sector, to the Monetary Board, dated March 25, 1977, containing a report on the current situation of Genbank;

2. Aide Memoire on the Antecedent Facts Re: General Bank and Trust Co., dated March 23, 1977;

3. Memorandum of the Director, Department of Commercial and Savings Bank, to the Monetary Board, dated March 24, 1977, submitting, pursuant to Section 29 of R.A. No. 265, as amended by P.D. No. 1007, a repot on the state of insolvency of Genbank, together with its attachments; and

4. Such other documents as may be necessary or needed by the Solicitor General for his use in then CFI-praying the assistance of the Court in the liquidation of Genbank.

Beyond doubt, therefore, the "matter" or the act of respondent Mendoza as Solicitor General involved in the case at bar is "advising the Central Bank, on how to proceed with the said bank’s liquidation and even filing the petition for its liquidation with the CFI of Manila." In fine, the Court should resolve whether his act of advising the Central Bank on the legal procedure to liquidate GENBANK is included within the concept of "matter" under Rule 6.03. The procedure of liquidation is given in black and white in Republic Act No. 265, section 29, viz:

The provision reads in part:

SEC. 29. Proceedings upon insolvency. – Whenever, upon examination by the head of the appropriate supervising or examining department or his examiners or agents into the condition of any bank or non-bank financial intermediary performing quasi-banking functions, it shall be disclosed that the condition of the same is one of insolvency, or that its continuance in business would involve probable loss to its depositors or creditors, it shall be the duty of the department head concerned forthwith, in writing, to inform the Monetary Board of the facts, and the Board may, upon finding the statements of the department head to be true, forbid the institution to do business in the Philippines and shall designate an official of the Central Bank or a person of recognized competence in banking or finance, as receiver to immediately take charge of its assets and liabilities, as expeditiously as possible collect and gather all the assets and administer the same for the benefit of its creditors, exercising all the powers necessary for these purposes including, but not limited to, bringing suits and foreclosing mortgages in the name of the bank or non-bank financial intermediary performing quasi-banking functions.

. . .

If the Monetary Board shall determine and confirm within the said period that the bank or non-bank financial intermediary performing quasi-banking functions is insolvent or cannot resume business with safety to its depositors, creditors and the general public, it shall, if the public interest requires, order its liquidation, indicate the manner of its liquidation and approve a liquidation plan. The Central Bank shall, by the Solicitor General, file a petition in the Court of First Instance reciting the proceedings which have been taken and praying the assistance of the court in the liquidation of such institution. The court shall have jurisdiction in the same proceedings to adjudicate disputed claims against the bank or non-bank financial intermediary performing quasi-banking functions and enforce individual liabilities of the stockholders and do all that is necessary to preserve the assets of such institution and to implement the liquidation plan approved by the Monetary Board. The Monetary Board shall designate an official of the Central Bank, or a person of recognized competence in banking or finance, as liquidator who shall take over the functions of the receiver previously appointed by the Monetary Board under this Section. The liquidator shall, with all convenient speed, convert the assets of the banking institution or non-bank financial intermediary performing quasi-banking functions to money or sell, assign or otherwise dispose of the same to creditors and other parties for the purpose of paying the debts of such institution and he may, in the name of the bank or non-bank financial intermediary performing quasi-banking functions, institute such actions as may be necessary in the appropriate court to collect and recover accounts and assets of such institution.

The provisions of any law to the contrary notwithstanding, the actions of the Monetary Board under this Section and the second paragraph of Section 34 of this Act shall be final and executory, and can be set aside by the court only if there is convincing proof that the action is plainly arbitrary and made in bad faith. No restraining order or injunction shall be issued by the court enjoining the Central Bank from implementing its actions under this Section and the second paragraph of Section 34 of this Act, unless there is convincing proof that the action of the Monetary Board is plainly arbitrary and made in bad faith and the petitioner or plaintiff files with the clerk or judge of the court in which the action is pending a bond executed in favor of the Central Bank, in an amount to be fixed by the court. The restraining order or injunction shall be refused or, if granted, shall be dissolved upon filing by the Central Bank of a bond, which shall be in the form of cash or Central Bank cashier(s) check, in an amount twice the amount of the bond of the petitioner or plaintiff conditioned that it will pay the damages which the petitioner or plaintiff may suffer by the refusal or the dissolution of the injunction. The provisions of Rule 58 of the New Rules of Court insofar as they are applicable and not inconsistent with the provisions of this Section shall govern the issuance and dissolution of the restraining order or injunction contemplated in this Section.

Insolvency, under this Act, shall be understood to mean the inability of a bank or non-bank financial intermediary performing quasi-banking functions to pay its liabilities as they fall due in the usual and ordinary course of business. Provided, however, That this shall not include the inability to pay of an otherwise non-insolvent bank or non-bank financial intermediary performing quasi-banking functions caused by extraordinary demands induced by financial panic commonly evidenced by a run on the bank or non-bank financial intermediary performing quasi-banking functions in the banking or financial community.

The appointment of a conservator under Section 28-A of this Act or the appointment of a receiver under this Section shall be vested exclusively with the Monetary Board, the provision of any law, general or special, to the contrary notwithstanding. (As amended by PD Nos. 72, 1007, 1771 & 1827, Jan. 16, 1981)

We hold that this advice given by respondent Mendoza on the procedure to liquidate GENBANK is not the "matter" contemplated by Rule 6.03 of the Code of Professional Responsibility. ABA Formal Opinion No. 342 is clear as daylight in stressing that the "drafting, enforcing or interpreting government or agency procedures, regulations or laws, or briefing abstract principles of law" are acts which do not fall within the scope of the term"matter" and cannot disqualify.

Secondly, it can even be conceded for the sake of argument that the above act of respondent Mendoza falls within the definition of matter per ABA Formal Opinion No. 342. Be that as it may, the said act of respondent Mendoza which is the "matter" involved in Sp. Proc. No. 107812 is entirely different from the "matter" involved in Civil Case No. 0096. Again, the plain facts speak for themselves. It is given that respondent Mendoza had nothing to do with the decision of the Central Bank to liquidate GENBANK. It is also given that he did not participate in the sale of GENBANK to Allied Bank. The "matter" where he got himself involved was in informing Central Bank on the procedure provided by law to liquidate GENBANK thru the courts and in filing the necessary petition in Sp. Proc. No. 107812 in the then Court of First Instance. The subject "matter" of Sp. Proc. No. 107812, therefore, is not the same nor is related to but is different from the subject "matter" in Civil Case No. 0096. Civil Case No. 0096 involves the sequestration of the stocks owned by respondents Tan, et al., in Allied Bank on the alleged ground that they are ill-gotten. The case does not involve the liquidation of GENBANK. Nor does it involve the sale of GENBANK to Allied Bank. Whether the shares of stock of the reorganized Allied Bank are ill-gotten is far removed from the issue of the dissolution and liquidation of GENBANK. GENBANK was liquidated by the Central Bank due, among others, to the alleged banking

malpractices of its owners and officers. In other words, the legality of the liquidation of GENBANK is not an issue in the sequestration cases. Indeed, the jurisdiction of the PCGG does not include the dissolution and liquidation of banks. It goes without saying that Code 6.03 of the Code of Professional Responsibility cannot apply to respondent Mendoza because his alleged intervention while a Solicitor General in Sp. Proc. No. 107812 is an intervention on a matter different from the matter involved in Civil Case No. 0096.

Thirdly, we now slide to the metes and bounds of the "intervention" contemplated by Rule 6.03. "Intervene" means, viz.:

1: to enter or appear as an irrelevant or extraneous feature or circumstance . . . 2: to occur, fall, or come in between points of time or events . . . 3: to come in or between by way of hindrance or modification: INTERPOSE . . . 4: to occur or lie between two things (Paris, where the same city lay on both sides of an intervening river . . .)41

On the other hand, "intervention" is defined as:

1: the act or fact of intervening: INTERPOSITION; 2: interference that may affect the interests of others.42

There are, therefore, two possible interpretations of the word "intervene." Under the first interpretation, "intervene" includes participation in a proceeding even if the intervention is irrelevant or has no effect or little influence.43 Under the second interpretation, "intervene" only includes an act of a person who has the power to influence the subject proceedings.44 We hold that this second meaning is more appropriate to give to the word "intervention" under Rule 6.03 of the Code of Professional Responsibility in light of its history. The evils sought to be remedied by the Rule do not exist where the government lawyer does an act which can be considered as innocuous such as "x x x drafting, enforcing or interpreting government or agency procedures, regulations or laws, or briefing abstract principles of law."

In fine, the intervention cannot be insubstantial and insignificant. Originally, Canon 36 provided that a former government lawyer "should not, after his retirement, accept employment in connection with any matter which he has investigated or passed upon while in such office or employ." As aforediscussed, the broad sweep of the phrase "which he has investigated or passed upon" resulted in unjust disqualification of former government lawyers. The 1969 Code restricted its latitude, hence, in DR 9-101(b), the prohibition extended only to a matter in which the lawyer, while in the government service, had "substantial responsibility." The 1983 Model Rules further constricted the reach of the rule. MR 1.11(a) provides that "a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee."

It is, however, alleged that the intervention of respondent Mendoza in Sp. Proc. No. 107812 is significant and substantial. We disagree. For one, the petition in the special proceedings is an initiatory pleading, hence, it has to be signed by respondent Mendoza as the then sitting Solicitor General. For another, the record is arid as to the actual participation of respondent Mendoza in the subsequent proceedings. Indeed, the case was in slumberville for a long number of years. None of the parties pushed for its early termination. Moreover, we note that the petition filed merely seeks the assistance of the court in the liquidation of GENBANK. The principal role of the court in this type of proceedings is to assist the Central Bank in determining claims of creditors against the GENBANK. The role of the court is not strictly as a court of justice but as an

agent to assist the Central Bank in determining the claims of creditors. In such a proceeding, the participation of the Office of the Solicitor General is not that of the usual court litigator protecting the interest of government.

II

Balancing Policy Considerations

To be sure, Rule 6.03 of our Code of Professional Responsibility represents a commendable effort on the part of the IBP to upgrade the ethics of lawyers in the government service. As aforestressed, it is a take-off from similar efforts especially by the ABA which have not been without difficulties. To date, the legal profession in the United States is still fine tuning its DR 9-101(b) rule.

In fathoming the depth and breadth of Rule 6.03 of our Code of Professional Responsibility, the Court took account of various policy considerations to assure that its interpretation and application to the case at bar will achieve its end without necessarily prejudicing other values of equal importance. Thus, the rule was not interpreted to cause a chilling effect on government recruitment of able legal talent. At present, it is already difficult for government to match compensation offered by the private sector and it is unlikely that government will be able to reverse that situation. The observation is not inaccurate that the only card that the government may play to recruit lawyers is have them defer present income in return for the experience and contacts that can later be exchanged for higher income in private practice.45 Rightly, Judge Kaufman warned that the sacrifice of entering government service would be too great for most men to endure should ethical rules prevent them from engaging in the practice of a technical specialty which they devoted years in acquiring and cause the firm with which they become associated to be disqualified.46 Indeed, "to make government service more difficult to exit can only make it less appealing to enter."47

In interpreting Rule 6.03, the Court also cast a harsh eye on its use as a litigation tactic to harass opposing counsel as well as deprive his client of competent legal representation. The danger that the rule will be misused to bludgeon an opposing counsel is not a mere guesswork. The Court of Appeals for the District of Columbia has noted "the tactical use of motions to disqualify counsel in order to delay proceedings, deprive the opposing party of counsel of its choice, and harass and embarrass the opponent," and observed that the tactic was "so prevalent in large civil cases in recent years as to prompt frequent judicial and academic commentary."48 Even the United States Supreme Court found no quarrel with the Court of Appeals’ description of disqualification motions as "a dangerous game."49 In the case at bar, the new attempt to disqualify respondent Mendoza is difficult to divine. The disqualification of respondent Mendoza has long been a dead issue. It was resuscitated after the lapse of many years and only after PCGG has lost many legal incidents in the hands of respondent Mendoza. For a fact, the recycled motion for disqualification in the case at bar was filed more than four years after the filing of the petitions for certiorari, prohibition and injunction with the Supreme Court which were subsequently remanded to the Sandiganbayan and docketed as Civil Case Nos. 0096-0099.50 At the very least, the circumstances under which the motion to disqualify in the case at bar were refiled put petitioner’s motive as highly suspect.

Similarly, the Court in interpreting Rule 6.03 was not unconcerned with the prejudice to the client which will be caused by its misapplication. It cannot be doubted that granting a disqualification motion causes the client to lose not only the law firm of choice, but probably an individual lawyer in whom the client has confidence.51 The client with a disqualified lawyer must start again often without the benefit of the work done by the latter.52 The effects of this prejudice to

the right to choose an effective counsel cannot be overstated for it can result in denial of due process.

The Court has to consider also the possible adverse effect of a truncated reading of the rule on the official independence of lawyers in the government service. According to Prof. Morgan: "An individual who has the security of knowing he or she can find private employment upon leaving the government is free to work vigorously, challenge official positions when he or she believes them to be in error, and resist illegal demands by superiors. An employee who lacks this assurance of private employment does not enjoy such freedom."53 He adds: "Any system that affects the right to take a new job affects the ability to quit the old job and any limit on the ability to quit inhibits official independence."54 The case at bar involves the position of Solicitor General, the office once occupied by respondent Mendoza. It cannot be overly stressed that the position of Solicitor General should be endowed with a great degree of independence. It is this independence that allows the Solicitor General to recommend acquittal of the innocent; it is this independence that gives him the right to refuse to defend officials who violate the trust of their office. Any undue dimunition of the independence of the Solicitor General will have a corrosive effect on the rule of law.

No less significant a consideration is the deprivation of the former government lawyer of the freedom to exercise his profession. Given the current state of our law, the disqualification of a former government lawyer may extend to all members of his law firm.55 Former government lawyers stand in danger of becoming thelepers of the legal profession.

It is, however, proffered that the mischief sought to be remedied by Rule 6.03 of the Code of Professional Responsibility is the possible appearance of impropriety and loss of public confidence in government. But as well observed, the accuracy of gauging public perceptions is a highly speculative exercise at best56 which can lead to untoward results.57 No less than Judge Kaufman doubts that the lessening of restrictions as to former government attorneys will have any detrimental effect on that free flow of information between the government-client and its attorneys which the canons seek to protect.58 Notably, the appearance of impropriety theory has been rejected in the 1983 ABA Model Rules of Professional Conduct59 and some courts have abandoned per se disqualification based on Canons 4 and 9 when an actual conflict of interest exists, and demand an evaluation of the interests of the defendant, government, the witnesses in the case, and the public.60

It is also submitted that the Court should apply Rule 6.03 in all its strictness for it correctly disfavors lawyers who"switch sides." It is claimed that "switching sides" carries the danger that former government employee maycompromise confidential official information in the process. But this concern does not cast a shadow in the case at bar. As afore-discussed, the act of respondent Mendoza in informing the Central Bank on the procedure how to liquidate GENBANK is a different matter from the subject matter of Civil Case No. 0005 which is about the sequestration of the shares of respondents Tan, et al., in Allied Bank. Consequently, the danger that confidential official information might be divulged is nil, if not inexistent. To be sure, there are no inconsistent "sides" to be bothered about in the case at bar. For there is no question that in lawyering for respondents Tan, et al., respondent Mendoza is not working against the interest of Central Bank. On the contrary, he is indirectly defending the validity of the action of Central Bank in liquidating GENBANK and selling it later to Allied Bank. Their interests coincide instead of colliding. It is for this reason that Central Bank offered no objection to the lawyering of respondent Mendoza in Civil Case No. 0005 in defense of respondents Tan, et al. There is no switching of sides for no two sides are involved.

It is also urged that the Court should consider that Rule 6.03 is intended to avoid conflict of loyalties, i.e., that a government employee might be subject to a conflict of loyalties while still in government service.61 The example given by the proponents of this argument is that a lawyer who plans to work for the company that he or she is currently charged with prosecuting might be tempted to prosecute less vigorously.62 In the cautionary words of the Association of the Bar Committee in 1960: "The greatest public risks arising from post employment conduct may well occur during the period of employment through the dampening of aggressive administration of government policies."63 Prof. Morgan, however, considers this concern as "probably excessive."64 He opines "x x x it is hard to imagine that a private firm would feel secure hiding someone who had just been disloyal to his or her last client – the government. Interviews with lawyers consistently confirm that law firms want the ‘best’ government lawyers – the ones who were hardest to beat – not the least qualified or least vigorous advocates."65 But again, this particular concern is a non factor in the case at bar. There is no charge against respondent Mendoza that he advised Central Bank on how to liquidate GENBANK with an eye in later defending respondents Tan, et al. of Allied Bank. Indeed, he continues defending both the interests of Central Bank and respondents Tan, et al. in the above cases.

Likewise, the Court is nudged to consider the need to curtail what is perceived as the "excessive influence of former officials" or their "clout."66 Prof. Morgan again warns against extending this concern too far. He explains the rationale for his warning, viz: "Much of what appears to be an employee’s influence may actually be the power or authority of his or her position, power that evaporates quickly upon departure from government x x x."67 More, he contends that the concern can be demeaning to those sitting in government. To quote him further: "x x x The idea that, present officials make significant decisions based on friendship rather than on the merit says more about the present officials than about their former co-worker friends. It implies a lack of will or talent, or both, in federal officials that does not seem justified or intended, and it ignores the possibility that the officials will tend to disfavor their friends in order to avoid even the appearance of favoritism."68

III

The question of fairness

Mr. Justices Panganiban and Carpio are of the view, among others, that the congruent interest prong of Rule 6.03 of the Code of Professional Responsibility should be subject to a prescriptive period. Mr. Justice Tinga opines that the rule cannot apply retroactively to respondent Mendoza. Obviously, and rightly so, they are disquieted by the fact that (1) when respondent Mendoza was the Solicitor General, Rule 6.03 has not yet adopted by the IBP and approved by this Court, and (2) the bid to disqualify respondent Mendoza was made after the lapse of time whose length cannot, by any standard, qualify as reasonable. At bottom, the point they make relates to the unfairness of the rule if applied without any prescriptive period and retroactively, at that. Their concern is legitimate and deserves to be initially addressed by the IBP and our Committee on Revision of the Rules of Court.

IN VIEW WHEREOF, the petition assailing the resolutions dated July 11, 2001 and December 5, 2001 of the Fifth Division of the Sandiganbayan in Civil Case Nos. 0096-0099 is denied.