RENATO L. CAYETANO, Petitioner, v. CHRISTIAN MONSOD, HON. JOVITO R.

SALONGA, COMMISSION
ON APPOINTMENTS, and HON. GUILLERMO CARAGUE in his capacity as Secretary of Budget and
Management, Respondents.
Renato L. Cayetano for and in his own behalf.
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.
DECISION
PARAS, J.:
We are faced here with a controversy of far-reaching proportions While ostensibly only legal issues are involved, the
Courts decision in this case would indubitably have a profound effect on the political aspect of our national existence.
The 1987 Constitution provides in Section 1(1), Article IX-C:
"There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-born
citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college
degree, and must not have been candidates for any elective position in the immediately preceding elections. However, a
majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice
of law for at least ten years." (Emphasis supplied)
The aforequoted provision is patterned after Section 1(1), Article XII-C of the 1973 Constitution which similarly provides:
"There shall be an independent Commission on Elections composed of a Chairman and eight Commissioners who shall be
natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age and holders of
a college degree. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have
been engaged in the practice of law for al least ten years." (Emphasis supplied)
Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as a legal qualification to
an appointive office.
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. An attorney engages in the practice of
law by maintaining an office where he is held out to be an attorney, using a letterhead describing himself as an attorney,
counseling clients in legal matters, negotiating with opposing counsel about pending litigation, and fixing and collecting
fees for services rendered by his associate." (Blacks Law Dictionary, 3rd ed.).
The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co. v. Dworken, 129
Ohio St. 23, 193 N.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
rights 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 Philippine 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 creditors claim in bankruptcy and
insolvency proceedings, and conducting proceedings in attachment, and in matters of 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). (Emphasis
supplied)
"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 of Court, Vol. 3 [1953 ed.], p. 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.] 179 A.
139, 144). (Emphasis ours).
The University of the Philippines Law Center in conducting orientation briefing for new lawyers (1974-1975) listed the
dimensions of the practice of law in even broader terms as advocacy, counseling and public service.
"One may be a practicing attorney in following any line of employment in the profession. If what he does exacts
knowledge of the law and is of a kind usual for attorneys engaging in the active practice of their profession, and he
follows some one or more lines of employment such as this he is a practicing attorney at law within the meaning of the
statute." (Barr D. Cardell, 155 NW 312).
Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge,
training and experience. "To engage in the practice of law is to perform those acts which are characteristics of the
profession. Generally, to practice law is to give notice or render any kind of service, which device or service requires the
use in any degree of legal knowledge or skill." (111 ALR 23).
The following records of the 1986 Constitutional Commission show that it has adopted a liberal interpretation of the term
"practice of law."
"MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do during our review of the
provisions on the Commission on Audit. May I be allowed to make a very brief statement?
"THE PRESIDING OFFICER (Mr. Jamir).
The Commissioner will please proceed.
"MR. FOZ. This has to do with the qualifications of the members of the Commission on Audit. Among others, the
qualifications provided for by Section 1 is that They must be Members of the Philippine Bar I am quoting from the
provision who have been engaged in the practice of law for at least ten years."

"To avoid any misunderstanding which would result in excluding members of the Bar who are now employed in the COA
or Commission on Audit, we would like to make the clarification that this provision on qualifications regarding members
of the Bar does not necessarily refer or involve actual practice of law outside the COA. We have to interpret this to mean
that as long as the lawyers who are employed in the COA are using their legal knowledge or legal talent in their respective
work within COA, then they are qualified to be considered for appointment as members or commissioners, even
chairman, of the Commission on Audit.
"This has been discussed by the Committee on Constitutional Commissions and Agencies and we deem it important to
take it up on the floor so that this interpretation may be made available whenever this provision on the qualifications as
regards members of the Philippine Bar engaging in the practice of law for at least ten years is taken up.
"MR. OPLE. Will Commissioner Foz yield to just one question.
"MR. FOZ. Yes, Mr. Presiding Officer.
"MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to the requirement of a law practice
that is set forth in the Article on the Commission on Audit?"
MR. FOZ. We must consider the fact that the work of COA although it is auditing, will necessarily involve legal work; it
will involve legal work. And, therefore, lawyers who are employed in COA now would have the necessary qualifications
in accordance with the provision on qualifications under our provisions on the Commission on Audit. And, therefore, the
answer is yes.
"MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the practice of law.
"MR. FOZ. Yes, Mr. Presiding Officer.
"MR. OPLE. Thank you."
. . . (Emphasis supplied)
Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman and two Commissioners of
the Commission on Audit (COA) should either be certified public accountants with not less than ten years of auditing
practice, or members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (Emphasis
supplied)
Corollary to this is the term "private practitioner" and which is in many ways synonymous with the word "lawyer." Today,
although many lawyers do not engage in private practice, it is still a fact that the majority of lawyers are private
practitioners. (Gary Munneke, Opportunities in Law Careers [VGM Career Horizons: Illinois), 1986], p. 15]).
At this point, it might be helpful to define private practice. The term, as commonly understood, means "an individual or
organization engaged in the business of delivering legal services." (Ibid.). Lawyers who practice alone are often called
"sole practitioners." Groups of lawyers are called "firms." The firm is usually a partnership and members of the firm are
the partners. Some firms may be organized as professional corporations and the members called shareholders. In either
case, the members of the firm are the experienced attorneys. In most firms, there are younger or more inexperienced
salaried attorneys called "associates." (Ibid.).
The test that defines law practice by looking to traditional areas of law practice is essentially tautologies, unhelpful
defining the practice of law as that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.:
Minnesota, 1986], p. 593). The practice of law is defined as "the performance of any acts . . . in or out of court, commonly
understood to be the practice of law. (State Bar Assn v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A. 2d 863,
870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A. 2d 623, 626 [1941]). Because lawyers perform
almost every function known in the commercial and governmental realm, such a definition would obviously be too global
to be workable. (Wolfram, op. cit.)
The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar role for lawyers as well

as an uncommon role for the average lawyer. Most lawyers spend little time in courtrooms, and a large percentage spend
their entire practice without litigating a case. (Ibid., p. 593). Nonetheless, many lawyers do continue to litigate and the
litigating lawyers role colors much of both the public image and the self-perception of the legal profession. (Ibid.).
In this regard thus, the dominance of litigation in the public mind reflects history, not reality. (Ibid.). Why is this so?
Recall that the late Alexander Sycip, a corporate lawyer, once articulated on the importance of a lawyer as a business
counselor in this wise: "Even today, there are still uninformed laymen whose concept of an attorney is one who principally
tries cases before the courts. The members of the bench and bar and the informed laymen such as businessmen, know that
in most developed societies today, substantially more legal work is transacted in law offices than in the courtrooms.
General practitioners of law who do both litigation and non-litigation work also know that in most cases they find
themselves spending more time doing what [is] loosely describe[d] as business counseling than in trying cases. The
business lawyer has been described as the planner, the diagnostician and the trial lawyer, the surgeon. I[t] need not [be]
stress[ed] that in law, as in medicine, surgery should be avoided where internal medicine can be effective." (Business Star,
"Corporate Finance Law," Jan. 11, 1989, p. 4).
In the course of a working day the average general practitioner will engage in a number of legal tasks, each involving
different legal doctrines, legal skills, legal processes, legal institutions, clients, and other interested parties. Even the
increasing numbers of lawyers in specialized practice will usually perform at least some legal services outside their
specialty. And even within a narrow specialty such as tax practice, a lawyer will shift from one legal task or role such as
advice-giving to an importantly different one such as representing a client before an administrative agency. (Wolfram,
supra, p. 687).
By no means will most of this work involve litigation, unless the lawyer is one of the relatively rare types a litigator
who specializes in this work to the exclusion of much else. Instead, the work will require the lawyer to have mastered the
full range of traditional lawyer skills of client counselling, advice-giving, document drafting, and negotiation. And
increasingly lawyers find that the new skills of evaluation and mediation are both effective for many clients and a source
of employment. (Ibid.).
Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very important ways, at
least theoretically, so as to remove from it some of the salient features of adversarial litigation. Of these special roles, the
most prominent is that of prosecutor. In some lawyers work the constraints are imposed both by the nature of the client
and by the way in which the lawyer is organized into a social unit to perform that work. The most common of these roles
are those of corporate practice and government legal service. (Ibid.).
In several issues of the Business Star, a business daily, herein below quoted are emerging trends in corporate law practice,
a departure from the traditional concept of practice of law.
We are experiencing today what truly may be called a revolutionary transformation in corporate law practice. Lawyers and
other professional groups, in particular those members participating in various legal-policy decisional contexts, are
finding that understanding the major emerging trends in corporation law is indispensable to intelligent decision-making.
Constructive adjustment to major corporate problems of today requires an accurate understanding of the nature and
implications of the corporate law research function accompanied by an accelerating rate of information accumulation. The
recognition of the need for such improved corporate legal policy formulation, particularly "model-making" and
contingency planning," has impressed upon us the inadequacy of traditional procedures in many decisional contexts.
In a complex legal problem the mass of information to be processed, the sorting and weighing of significant conditional
factors, the appraisal of major trends, the necessity of estimating the consequences of given courses of action, and the
need for fast decision and response in situations of acute danger have prompted the use of sophisticated concepts of
information flow theory, operational analysis, automatic data processing, and electronic computing equipment.
Understandably, an improved decisional structure must stress the predictive component of the policy-making process,
wherein a model", of the decisional context or a segment thereof is developed to test projected alternative courses of
action in terms of futuristic effects flowing therefrom.
Although members of the legal profession are regularly engaged in predicting and projecting the trends of the law, the
subject of corporate finance law has received relatively little organized and formalized attention in the philosophy of

advancing corporate legal education. Nonetheless, a cross-disciplinary approach to legal research has become a vital
necessity.
Certainly, the general orientation for productive contributions by those trained primarily in the law can be improved
through an early introduction to multi-variable decisional contexts and the various approaches for handling such
problems. Lawyers, particularly with either a masters or doctorate degree in business administration or management,
functioning at the legal policy level of decision-making now have some appreciation for the concepts and analytical
techniques of other professions which are currently engaged in similar types of complex decision-making.
Truth to tell, many situations involving corporate finance problems would require the services of an astute attorney
because of the complex legal implications that arise from each and every necessary step in securing and maintaining the
business issue raised. (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).
In our litigation-prone country, a corporate lawyer is assiduously referred to as the "abogado de campanilla." He is the
"big-time" lawyer, earning big money and with a clientele composed of the tycoons and magnates of business and
industry.
Despite the growing number of corporate lawyers, many people could not explain what it is that a corporate lawyer does.
For one, the number of attorneys employed by a single corporation will vary with the size and type of the corporation.
Many smaller and some large corporations farm out all their legal problems to private law firms. Many others have inhouse counsel only for certain matters. Other corporation have a staff large enough to handle most legal problems inhouse.
A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal affairs of a corporation. His areas of
concern or jurisdiction may include, inter alia: corporate legal research, tax laws research, acting out as corporate
secretary (in board meetings), appearances in both courts and other adjudicatory agencies (including the Securities and
Exchange Commission), and in other capacities which require an ability to deal with the law.
At any rate, a corporate lawyer may assume responsibilities other than the legal affairs of the business of the corporation
he is representing. These include such matters as determining policy and becoming involved in management. (Emphasis
supplied.)
In a big company, for example, one may have a feeling of being isolated from the action, or not understanding how ones
work actually fits into the work of the organization. This can be frustrating to someone who needs to see the results of his
work first hand. In short, a corporate lawyer is sometimes offered this fortune to be more closely involved in the running
of the business.
Moreover, a corporate lawyers services may sometimes be engaged by a multinational corporation (MNC). Some large
MNCs provide one of the few opportunities available to corporate lawyers to enter the international law field. After all,
international law is practiced in a relatively small number of companies and law firms. Because working in a foreign
country is perceived by many as glamorous, this is an area coveted by corporate lawyers. In most cases, however, the
overseas jobs go to experienced attorneys while the younger attorneys do their "international practice" in law libraries.
(Business Star, "Corporate Law Practice," May 25, 1990, p. 4).
This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To borrow the lines of Harvardeducated lawyer Bruce Wassertein, to wit: "A bad lawyer is one who fails to spot problems, a good lawyer is one who
perceives the difficulties, and the excellent lawyer is one who surmounts them." (Business Star, "Corporate Finance Law,"
Jan. 11, 1989, p. 4).
Today, the study of corporate law practice direly needs a "shot in the arm," so to speak. No longer are we talking of the
traditional law teaching method of confining the subject study to the Corporation Code and the Securities Code but an
incursion as well into the intertwining modern management issues.
Such corporate legal management issues deal primarily with three (3) types of learning: (1) acquisition of insights into
current advances which are of particular significance to the corporate counsel; (2) an introduction to usable disciplinary
skills applicable to a corporate counsels management responsibilities; and (3) a devotion to the organization and

management of the legal function itself.

These three subject areas may be thought of as intersecting circles, with a shared area linking them. Otherwise known as
"intersecting managerial jurisprudence," it forms a unifying theme for the corporate counsels total learning.
Some current advances in behavior and policy sciences affect the counsels role. For that matter, the corporate lawyer
reviews the globalization process, including the resulting strategic repositioning that the firms he provides counsel for are
required to make, and the need to think about a corporations strategy at multiple levels. The salience of the nation-state is
being reduced as firms deal both with global multinational entities and simultaneously with sub-national governmental
units. Firms increasingly collaborate not only with public entities but with each other often with those who are
competitors in other arenas.
Also, the nature of the lawyers participation in decision-making within the corporation is rapidly changing. The modern
corporate lawyer has gained a new role as a stockholder in some cases participating in the organization and operations
of governance through participation on boards and other decision-making roles. Often these new patterns develop
alongside existing legal institutions and laws are perceived as barriers. These trends are complicated as corporations
organize for global operations. (Emphasis supplied).
The practicing lawyer of today is familiar as well with governmental policies toward the promotion and management of
technology. New collaborative arrangements for promoting specific technologies or competitiveness more generally
require approaches from industry that differ from older, more adversarial relationships and traditional forms of seeking to
influence governmental policies. And there are lessons to be learned from other countries. In Europe, Esprit, Eureka and
Race are examples of collaborative efforts between governmental and business Japans MITI is world famous. (Emphasis
supplied)
Following the concept of boundary spanning, the office of the Corporate Counsel comprises a distinct group within the
managerial structure of all kinds of organizations. Effectiveness of both long-term and temporary groups within
organizations has been found to be related to indentifiable factors in the group-context interaction such as the groups
actively revising their knowledge of the environment, coordinating work with outsiders, promoting team achievements
within the organization. In general, such external activities are better predictors of team performance than internal group
processes.
In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-vis the managerial mettle of
corporations are challenged. Current research is seeking ways both to anticipate effective managerial procedures and to
understand relationships of financial liability and insurance considerations. (Emphasis supplied)
Regarding the skills to apply by the corporate counsel, three factors are apropos: 1aw library
First System Dynamics. The field of systems dynamics has been found an effective tool for new managerial thinking
regarding both planning and pressing immediate problems. An understanding of the role of feedback loops, inventory
levels, and rates of flow, enable users to simulate all sorts of systematic problems physical, economic, managerial,
social, and psychological. New programming techniques now make the systems dynamics principles more accessible to
managers including corporate counsels. (Emphasis supplied).
Second Decision Analysis. This enables users to make better decisions involving complexity and uncertainty. In the
context of a law department, it can be used to appraise the settlement value of litigation, aid in negotiation settlement, and
minimize the cost and risk involved in managing a portfolio of cases. (Emphasis supplied)
Third Modeling for Negotiation Management. Computer-based models can be used directly by parties and mediators in all
kinds of negotiations. All integrated set of such tools provide coherent and effective negotiation support, including handson on instruction in these techniques. A simulation case of an international joint venture may be used to illustrate the
point.
[Be this as it may,] the organization and management of the legal function, concern three pointed areas of consideration,
thus:

Preventive Lawyering. Planning by lawyers requires special skills that comprise a major part of the general counsels
responsibilities. They differ from those of remedial law. Preventive lawyering is concerned with minimizing the risks of
legal trouble and maximizing legal rights for such legal entities at that time when transactional or similar facts are being
considered and made.
Managerial Jurisprudence. This is the framework within which are undertaken those activities of the firm to which legal
consequences attach. It needs to be directly supportive of this nations evolving economic and organizational fabric as
firms change to stay competitive in a global, interdependent environment. The practice and theory of "law" is not adequate
today to facilitate the relationships needed in trying to make a global economy work.
Organization and Functioning of the Corporate Counsels Office. The general counsel has emerged in the last decade as
one of the most vibrant subsets of the legal profession. The corporate counsel hear responsibility for key aspects of the
firms strategic issues, including structuring its global operations, managing improved relationships with an increasingly
diversified body of employees, managing expanded liability exposure, creating new and varied interactions with public
decision-makers, coping internally with more complex make or by decisions.
This whole exercise drives home the thesis that knowing corporate law is not enough to make one a good general
corporate counsel nor to give him a full sense of how the legal system shapes corporate activities. And even if the
corporate lawyers aim is not the understand all of the laws effects on corporate activities, he must, at the very least, also
gain a working knowledge of the management issues if only to be able to grasp not only the basic legal "constitution" or
make-up of the modern corporation. "Business Star, The Corporate Counsel," April 10, 1991, p. 4).
The challenge for lawyers (both of the bar and the bench) is to have more than a passing knowledge of financial law
affecting each aspect of their work. Yet, many would admit to ignorance of vast tracts of the financial law territory. What
transpires next is a dilemma of professional security: Will the lawyer admit ignorance and risk opprobrium?; or will he
feign understanding and risk exposure? (Business Star, "Corporate Finance law," Jar. 11, 1989, p. 4).
Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of Chairman of the
COMELEC in a letter received by the Secretariat of the Commission on Appointments on April 25, 1991. Petitioner
opposed the nomination because allegedly Monsod does not possess the required qualification of having been engaged in
the practice of law for at least ten years.
On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as Chairman of the COMELEC.
On June 18, 1991, he took his oath of office. On the same day, he assumed office as Chairman of the COMELEC.
Challenging the validity of the confirmation by the Commission on Appointments of Monsods nomination, petitioner as a
citizen and taxpayer, filed the instant petition for Certiorari and Prohibition praying that said confirmation and the
consequent appointment of Monsod as Chairman of the Commission on Elections be declared null and void.
Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of 1960 with a grade of
86.55%. He has been a dues paying member of the Integrated Bar of the Philippines since its inception in 1972-73. He has
also been paying his professional license fees as lawyer for more than ten years. (p. 124, Rollo).
After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod worked in the law office of his
father. During his stint in the World Bank Group (1963-1970), Monsod worked as an operations officer for about two
years in Costa Rica and Panama, which involved getting acquainted with the laws of member-countries, negotiating loans
and coordinating legal, economic, and project work of the Bank. Upon returning to the Philippines in 1970, he worked
with the Meralco Group, served as chief executive officer of an investment bank and subsequently of a business
conglomerate, and since 1986, has rendered services to various companies as a legal and economic consultant or chief
executive officer. As former Secretary-General (1986) and National Chairman (1987) of NAMFREL. Monsods work
involved being knowledgeable in election law. He appeared for NAMFREL in its accreditation hearings before the
Comelec. In the field of advocacy, Monsod, in his personal capacity and as former Co-Chairman of the Bishops
Businessmens Conference for Human Development, has worked with the under privileged sectors, such as the farmer and
urban poor groups, in initiating, lobbying for and engaging in affirmative action for the agrarian reform law and lately the
urban land reform bill. Monsod also made use of his legal knowledge as a member of the Davide Commission, a quasijudicial body, which conducted numerous hearings (1990) and as a member of the Constitutional Commission (1986-

1987), and Chairman of its Committee on Accountability of Public Officers, for which he was cited by the President of the
Commission, Justice Cecilia Muoz-Palma for "innumerable amendments to reconcile government functions with
individual freedoms and public accountability and the party-list system for the House of Representative." (pp. 128-129
Rollo) (Emphasis supplied)
Just a word about the work of a negotiating team of which Atty. Monsod used to be a member.
In a loan agreement, for instance, a negotiating panel acts as a team, and which is adequately constituted to meet the
various contingencies that arise during a negotiation. Besides top officials of the Borrower concerned, there are the legal
officer (such as the legal counsel), the finance manager, and an operations officer (such as an official involved in
negotiating the contracts) who comprise the members of the team. (Guillermo V. Soliven, "Loan Negotiating Strategies for
Developing Country Borrowers," Staff Paper No. 2, Central Bank of the Philippines, Manila, 1982, p. 11). (Emphasis
supplied)
After a fashion, the loan agreement is like a countrys Constitution; it lays down the law as far as the loan transaction is
concerned. Thus, the meat of any Loan Agreement can be compartmentalized into five (5) fundamental parts: (1) business
terms; (2) borrowers representation; (3) conditions of closing; (4) covenants; and (5) events of default. (Ibid., p. 13)
In the same vein, lawyers play an important role in any debt restructuring program. For aside from performing the tasks of
legislative drafting and legal advising, they score national development policies as key factors in maintaining their
countries sovereignty. (Condensed from the work paper, entitled "Wanted: Development Lawyers for Developing
Nations," submitted by L. Michael Hager, regional legal adviser of the United States Agency for International
Development, during the Session on Law for the Development of Nations at the Abidjan World Conference in Ivory
Coast, sponsored by the World Peace Through Law Center on August 26-31, 1973). (Emphasis supplied).
Loan concessions and compromises, perhaps even more so than purely re negotiation policies, demand expertise in the
law of contracts, in legislation and agreement drafting and in re negotiation. Necessarily, a sovereign lawyer may work
with an international business specialist or an economist in the formulation of a model loan agreement. Debt restructuring
contract agreements contain such a mixture of technical language that they should be carefully drafted and signed only
with the advise of competent counsel in conjunction with the guidance of adequate technical support personnel. (See
International Law Aspects of the Philippine External Debts, an unpublished dissertation, U.S.T. Graduate School of Law,
1987, p. 321). (Emphasis supplied).
A critical aspect of sovereign debt restructuring/contract construction is the set of terms and conditions which determines
the contractual remedies for a failure to perform one or more elements of the contract. A good agreement must not only
define the responsibilities of both parties, but must also state the recourse open to either party when the other fails to
discharge an obligation. For a complete debt restructuring represents a devotion to that principle which in the ultimate
analysis is sine qua non for foreign loan agreements an adherence to the rule of law in domestic and international
affairs of whose kind U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. once said: They carry no banners, they beat
no drums; but where they are, men learn that bustle and bush are not the equal of quiet genius and serene mastery. (See
Ricardo J. Romulo, "The Role of Lawyers in Foreign Investments," Integrated Bar of the Philippine Journal, Vol. 15, Nos.
3 and 4, Third and Fourth Quarters, 1977, p. 265).
Interpreted in the light of the various definitions of the term "practice of law", particularly the modern concept of law
practice, and taking into consideration the liberal construction intended by the framers of the Constitution, Atty. Monsod s
past work experiences as a lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of
contracts, and a lawyer-legislator of both the rich and the poor verily more than satisfy the constitutional requirement
that he has been engaged in the practice of law for at least ten years.
Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court said:
"Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to
his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does,
then the appointment cannot be faulted on the ground that there are others better qualified who should have been
preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide."
(Emphasis supplied).

No less emphatic was the Court in the case of Central Bank v. Civil Service Commission, 171 SCRA 744) where it stated:
"It is well-settled that when the appointee is qualified, as in this case, and all the other legal requirements are satisfied, the
Commission has no alternative but to attest to the appointment in accordance with the Civil Service Law. The
Commission has no authority to revoke an appointment on the ground that another person is more qualified for a
particular position. It also has no authority to direct the appointment of a substitute of its choice. To do so would be an
encroachment on the discretion vested upon the appointing authority. An appointment is essentially within the
discretionary power of whomsoever it is vested, subject to the only condition that the appointee should possess the
qualifications required by law." (Emphasis supplied).
The appointing process in a regular appointment as in the case at bar, consists of four (4) stages: (1) nomination; (2)
confirmation by the Commission on Appointments; (3) issuance of a commission (in the Philippines, upon submission by
the Commission on Appointments of its certificate of confirmation, the President issues the permanent appointment; and
(4) acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson v. Romero, No. L-3081, October 14, 1949; Gonzales,
Law on Public Officers, p. 200)
The power of the Commission on Appointments to give its consent to the nomination of Monsod as Chairman of the
Commission on Elections is mandated by Section 1(2) Sub-Article C, Article IX of the Constitution which provides:
"The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on
Appointments for a term of seven years without re appointment. Of those first appointed, three Members shall hold office
for seven years, two Members for five years, and the last Members for three years, without re appointment. Appointment
to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or
designated in a temporary or acting capacity."
Anent Justice Teodoro Padillas separate opinion, suffice it to say that his definition of the practice of law is the traditional
or stereotyped notion of law practice, as distinguished from the modern concept of the practice of law, which modern
connotation is exactly what was intended by the eminent framers of the 1987 Constitution. Moreover, Justice Padillas
definition would require generally a habitual law practice, perhaps practiced two or three times a week and would outlaw
say, law practice once or twice a year for ten consecutive years. Clearly, this is far from the constitutional intent.
Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written opinion, I made use of a
definition of law practice which really means nothing because the definition says that law practice." . . is what people
ordinarily mean by the practice of law." True I cited the definition but only by way of sarcasm as evident from my
statement that the definition of law practice by "traditional areas of law practice is essentially tautologous" or defining a
phrase by means of the phrase itself that is being defined.
Justice Cruz goes on to say in substance that since the law covers almost all situations, most individuals, in making use of
the law, or in advising others on what the law means, are actually practicing law. In that sense, perhaps, but we should not
lose sight of the fact that Mr. Monsod is a lawyer, a member of the Philippine Bar, who has been practicing law for over
ten years. This is different from the acts of persons practicing law, without first becoming lawyers.
Justice Cruz also says that the Supreme Court can even disqualify an elected President of the Philippines, say, on the
ground that he lacks one or more qualifications. This matter, I greatly doubt. For one thing, how can an action or petition
be brought against the President? And even assuming that he is indeed disqualified, how can the action be entertained
since he is the incumbent President?
We now proceed:
The Commission on the basis of evidence submitted during the public hearings on Monsods confirmation, implicitly
determined that he possessed the necessary qualifications as required by law. The judgment rendered by the Commission
in the exercise of such an acknowledged power is beyond judicial interference except only upon a clear showing of a
grave abuse of discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where
such grave abuse of discretion is clearly shown shall the Court interfere with the Commissions judgment. In the instant
case, there is no occasion for the exercise of the Courts corrective power, since no abuse, much less a grave abuse of

discretion, that would amount to lack or excess of jurisdiction and would warrant the issuance of the writs prayed, for has
been clearly shown.
Additionally, consider the following:
(1) If the Commission on Appointments rejects a nominee by the President, may the Supreme Court reverse the
Commission, and thus in effect confirm the appointment? Clearly, the answer is in the negative.
(2) In the same vein, may the Court reject the nominee, whom the Commission has confirmed? The answer is likewise
clear.
(3) If the United States Senate (which is the confirming body in the U.S. Congress) decides to confirm a Presidential
nominee, it would be incredible that the U.S. Supreme Court would still reverse the U.S. Senate.
Finally, one significant legal maxim is:
"We must interpret not by the letter that killeth, but by the spirit that giveth life."
Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah (who was Samsons
beloved) for help in capturing Samson. Delilah agreed on condition that
"No blade shall touch his skin;
No blood shall flow from his veins."
When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod burning white-hot two or
three inches away from in front of Samsons eyes. This blinded the man. Upon hearing of what had happened to her
beloved, Delilah was beside herself with anger, and fuming with righteous fury, Accused the procurator of reneging on his
word. The procurator calmly replied: "Did any blade touch his skin? Did any blood flow from his veins?" The procurator
was clearly relying on the letter, not the spirit of the agreement.
In view of the foregoing, this petition is hereby DISMISSED. SO ORDERED.

[A.C. No. 5737. October 25, 2004]

FERDINAND A. CRUZ, complainant, vs. ATTY. STANLEY CABRERA, respondent.

RESOLUTION
AUSTRIA-MARTINEZ, J.:
In an administrative complaint dated July 7, 2002, Ferdinand A. Cruz charges Atty. Stanley Cabrera with misconduct
in violation of the Code of Professional Responsibility.
Complainant alleges that he is a fourth year law student; since the latter part of 2001, he instituted several actions
against his neighbors; he appeared for and in his behalf in his own cases; he met respondent who acted as the counsel of
his neighbors; during a hearing on January 14, 2002, in one case before the Regional Trial Court, Branch 112, Pasay City,
presided by Judge Caridad Cuerdo, the following exchange transpired:
xxx xxx So, may we know your honor, if he is a lawyer or not?
The Court having been inhibited by the respondent from hearing the case, replied:
You are asking for my inhibition and yet you want me to rule on his appearance xxx xxx.
Thereafter, the respondent said:
Because your honor, he (pertaining to the complainant) is misrepresenting himself to be a lawyer!
To this the complainant remarked:
Your Honor, Im not xxx xxx.
Respondent, this time engulfed with anger in a raising voice said:
Appear ka ng appear, pumasa ka muna; x x x.
Respondents imputations were uncalled for and the latters act of compelling the court to ask complainant whether he is a
lawyer or not was intended to malign him before the public, inasmuch as respondent knew that complainant is not a
lawyer, having appeared for and in his behalf as a party litigant in prior cases; respondents imputations of complainants
misrepresentation as a lawyer was patently with malice to discredit his honor, with the intention to threaten him not to
appear anymore in cases respondent was handling; the manner, substance, tone of voice and how the words appear ka ng
appear, pumasa ka muna! were uttered were totally with the intention to annoy, vex and humiliate, malign, ridicule,
incriminate and discredit complainant before the public.
Complainant claims that respondents display of improper attitude, arrogance, misbehavior, misconduct in the
performance of his duties both as a lawyer and officer of the court, before the public and the court, was a patent
transgression of the very ethics that lawyers are sworn to uphold in their dealings with society and corresponding
appropriate penalty or sanctions for the said administrative violations should be imposed on the respondent.
In his Comment, respondent contends that the complaint filed against him is a vicious scheme to dissuade him from
appearing as counsel for the Mina family against whom complainant had filed several civil and criminal cases including
him to further complainants illegal practice of law; complainants complaint occurred during a judicial proceeding wherein
complainant was able to represent himself considering that he was appearing in barong tagalog thus the presiding judge
was misled when she issued an order stating [i]n todays hearing both lawyers appeared; because of which, respondent
stated: Your honor I would like to manifest that this counsel (referring to complainant) who represents the plaintiff in this
case is not a lawyer, to which complainant replied: The counsel very well know that I am not yet a lawyer; the reason he
informed the court that complainant is not a lawyer was because the presiding judge did not know that complainant is not
a lawyer and complainant did not inform the presiding judge that he is not a lawyer when he stated: for the plaintiff your
honor; he stated pumasa ka muna out of indignation because of complainants temerity in misrepresenting himself as
lawyer; it is surprising that the City Prosecutor of Pasay City filed a complaint for oral defamation against him
considering that in a precedent case the Supreme Court stated: It is a settled principle in this jurisdiction that statements
made in the course of judicial proceedings are absolutely privileged (Navarrete vs. Court of Appeals, 325 SCRA 540); in
another malicious prosecution being perpetuated by the complainant against the Mina family pending before Judge
Priscilla Mijares of RTC Branch 108, Pasay City, they were able to prohibit the appearance of complainant as counsel for
himself as authenticated by an Order of Judge Priscilla Mijares which allegedly stated among other; to wit:

In connection with Ferdinand A. Cruzs motion to appear as counsel, the motion is likewise denied, movant
not having satisfied the requirements and conditions under Rule 138-A, Sections 1 and 2.
Respondent alleges that when complainant filed an administrative case against Judge Priscilla Mijares when said
Judge stated in Tagalog in open court Hay naku masama yung marunong pa sa Huwes! OK? the same was dismissed by
the Honorable Courts Third Division which stated among others: That the questioned remarks of respondent were uttered
more out of frustration and in reaction to complainants actuations and taking into account that complainant is not yet a
lawyer but was already lecturing the court on a matter which is not even a point of discussion was sheer arrogance on the
part of the complainant. Respondent prays that the complaint against him be dismissed for lack of merit.
The administrative case was referred to the Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.
In a report, dated March 4, 2004, IBP Commissioner Lydia A. Navarro recommended respondents suspension from
the practice of law for a period of three months for violating Rule 8.01 of the Code of Professional Responsibility which
provides:
A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise
improper.
In her report, Commissioner Navarro stated:
After going over the evidence submitted by the parties, the undersigned noted that respondents averment
that the utterances he made in open court is (sic) privileged communication does not hold water for the same
was (sic) not relevant to the issue of the case in question under trial before the said court.
Respondent did not refute the fact that the same utterances he made in open court against the complainant
had been the basis for his indictment of Oral Defamation and later Unjust Vexation under Criminal Cases Nos.
02-1031 and No. 02-2136 respectively, pending trial before MTC Branch 45, Pasay City.
Likewise respondent did not refute complainants allegation that in 1979 he was held in contempt and was
not allowed to practice law for seven years by the Supreme Court in the administrative case filed against him by
Emilia E. Andres on December 14, 1979 docketed as A.M. L-585 for his fondness in using contumacious
language in his dealing with others.
From the facts obtaining, it is apparent that the utterance hurled by the respondent in the manner, substance
and tone of his voice which was not refuted by him that appear ka ng appear, pumasa ka muna in whatever
manner it was uttered are in itself not only abusive but insulting specially on the part of law students who have
not yet taken nor passed the bar examination required of them.
Respondent should have been more discreet and cautious in informing the court if it was his purpose
relative to complainants appearance in court; although the latter appeared only in his behalf but not for others if
he had complied with the requirements of Rule 138 (Sections 1 and 3) of the Rules of Court.
Respondent should have been more temperate in making utterances in his professional dealings so as not to
offend the sensitivities of the other party as in this case.
On April 16, 2004, the IBP Board of Governors passed a Resolution to annul and set aside the recommendation of the
investigating commissioner and to approve the dismissal of the case for lack of merit.
Prefatorily, we note that the IBP Board of Governors failed to observe the procedural requirements of Sec. 12 of Rule
139-B of the Rules of Court on review and decision by the Board of Governors which states:
SEC. 12. Review and decision by the Board of Governors. (a) Every case heard by an investigator shall be
reviewed by the IBP Board of Governors upon the record and evidence transmitted to it by the Investigator with
his report. The decision of the Board upon such review shall be in writing and shall clearly and distinctly
state the facts and the reasons on which it is based. It shall be promulgated within a period not exceeding
thirty (30) days from the next meeting of the Board following the submittal of the Investigators report.
(Emphasis supplied)
In Teodosio vs. Nava,[1] the Court stressed the important function of the requirement that the decision of the Board of
Governors state the facts and the reasons on which it is based, which is akin to what is required of the decisions of courts
of record, thus:

For aside from informing the parties the reason for the decision to enable them to point out to the appellate
court the findings with which they are not in agreement, in case any of them decides to appeal the decision, it is
also an assurance that the judge, or the Board of Governors in this case, reached his judgment through the
process of legal reasoning.[2]
In this case, the Board of Governors resolution absolving respondent of any misconduct does not contain any
findings of facts or law upon which it based its ruling. Ordinarily, non-compliance with the rule would result in the
remand of the case. Nonetheless, where the controversy has been pending resolution for quite sometime and the issues
involved could be resolved on the basis of the records on appeal, the Court has opted to resolve the case in the interest of
justice and speedy disposition of cases.[3] This case falls within the exception.
We hold that respondents outburst of appear ka ng appear, pumasa ka muna does not amount to a violation of Rule
8.01 of the Code of Professional Responsibility.
Based on the facts of this case, such outburst came about when respondent pointed out to the trial court that
complainant is not a lawyer to correct the judges impression of complainants appearance, inasmuch as the judge, in her
Order of January 14, 2002, noted that complainant is a lawyer. [4] Such single outburst, though uncalled for, is not of such
magnitude as to warrant respondents suspension or reproof. It is but a product of impulsiveness or the heat of the moment
in the course of an argument between them. It has been said that lawyers should not be held to too strict an account for
words said in the heat of the moment, because of chagrin at losing cases, and that the big way is for the court to condone
even contemptuous language.[5]
Nonetheless, we remind respondent that complainant is not precluded from litigating personally his cases. A partys
right to conduct litigation personally is recognized by Section 34 of Rule 138 of the Rules of Court:
SEC. 34. By whom litigation conducted. -- In the court of a justice of the peace a party may conduct his
litigation in person, with the aid of an agent or friend appointed by him for that purpose, or with the aid of an
attorney. In any other court, a party may conduct his litigation personally or by aid of an attorney, and his
appearance must be either personal or by a duly authorized member of the bar.
In Maderada vs. Mediodea,[6] this Court expounded on the foregoing provision, thus:
This provision means that in a litigation, parties may personally do everything during its progress -- from
its commencement to its termination. When they, however, act as their own attorneys, they are restricted to the
same rules of evidence and procedure as those qualified to practice law; otherwise, ignorance would be
unjustifiably rewarded. Individuals have long been permitted to manage, prosecute and defend their own
actions; and when they do so, they are not considered to be in the practice of law. One does not practice law by
acting for himself any more than he practices medicine by rendering first aid to himself.
The practice of law, though impossible to define exactly, involves the exercise of a profession or vocation
usually for gain, mainly as attorney by acting in a representative capacity and as counsel by rendering legal
advise to others. Private practice has been defined by this Court as follows:
x x x. Practice is more than an isolated appearance, for it consists in frequent or customary action,
a succession of acts of the same kind. In other words, it is frequent habitual exercise. Practice of law to
fall within the prohibition of statute [referring to the prohibition for judges and other officials or
employees of the superior courts or of the Office of the Solicitor General from engaging in private
practice] has been interpreted as customarily or habitually holding one's self out to the public, as a
lawyer and demanding payment for such services. x x x.
Clearly, in appearing for herself, complainant was not customarily or habitually holding herself out to the
public as a lawyer. Neither was she demanding payment for such services. Hence, she cannot be said to be in the
practice of law.[7]
On the other hand, all lawyers should take heed that lawyers are licensed officers of the courts who are empowered to
appear, prosecute and defend; and upon whom peculiar duties, responsibilities and liabilities are devolved by law as a
consequence. Membership in the bar imposes upon them certain obligations. Mandated to maintain the dignity of the legal
profession, they must conduct themselves honorably and fairly. [8] Though a lawyers language may be forceful and
emphatic, it should always be dignified and respectful, befitting the dignity of the legal profession. The use of intemperate
language and unkind ascriptions has no place in the dignity of judicial forum. [9]

WHEREFORE, the complaint against respondent Atty. Stanley Cabrera for misconduct in violation of the Code of
Professional Responsibility is DISMISSED for lack of merit. He is, however, admonished to be more circumspect in the
performance of his duties as an officer of the court.
SO ORDERED.

A.C. No. 6705

March 31, 2006

RUTHIE LIM-SANTIAGO, Complainant,

vs.
ATTY. CARLOS B. SAGUCIO, Respondent.
DECISION
CARPIO, J.:
The Case
This is a disbarment complaint against Atty. Carlos B. Sagucio for violating Rule 15.03 of the Code of Professional
Responsibility and for defying the prohibition against private practice of law while working as government prosecutor.
The Facts
Ruthie Lim-Santiago ("complainant") is the daughter of Alfonso Lim and Special Administratrix of his estate. Alfonso
Lim is a stockholder and the former President of Taggat Industries, Inc.
Atty. Carlos B. Sagucio ("respondent") was the former Personnel Manager and Retained Counsel of Taggat Industries,
Inc. until his appointment as Assistant Provincial Prosecutor of Tuguegarao, Cagayan in 1992.
Taggat Industries, Inc. ("Taggat") is a domestic corporation engaged in the operation of timber concessions from the
government. The Presidential Commission on Good Government sequestered it sometime in 1986, and its operations
ceased in 1997.
Sometime in July 1997, 21 employees of Taggat ("Taggat employees") filed a criminal complaint entitled "Jesus Tagorda,
Jr. et al. v. Ruthie Lim-Santiago," docketed as I.S. No. 97-240 ("criminal complaint"). Taggat employees alleged that
complainant, who took over the management and control of Taggat after the death of her father, withheld payment of their
salaries and wages without valid cause from 1 April 1996 to 15 July 1997.
Respondent, as Assistant Provincial Prosecutor, was assigned to conduct the preliminary investigation. He resolved the
criminal complaint by recommending the filing of 651 Informations for violation of Article 288 in relation to Article 116
of the Labor Code of the Philippines.
Complainant now charges respondent with the following violations:
1. Rule 15.03 of the Code of Professional Responsibility
Complainant contends that respondent is guilty of representing conflicting interests. Respondent, being the former
Personnel Manager and Retained Counsel of Taggat, knew the operations of Taggat very well. Respondent should have
inhibited himself from hearing, investigating and deciding the case filed by Taggat employees. Furthermore, complainant
claims that respondent instigated the filing of the cases and even harassed and threatened Taggat employees to accede and
sign an affidavit to support the complaint.
2. Engaging in the private practice of law while working as a government prosecutor
Complainant also contends that respondent is guilty of engaging in the private practice of law while working as a
government prosecutor. Complainant presented evidence to prove that respondent received P10,000 as retainers fee for
the months of January and February 1995, another P10,000 for the months of April and May 1995, and P5,000 for the
month of April 1996.

Complainant seeks the disbarment of respondent for violating Rule 15.03 of the Code of Professional Responsibility and
for defying the prohibition against private practice of law while working as government prosecutor.
Respondent refutes complainants allegations and counters that complainant was merely aggrieved by the resolution of the
criminal complaint which was adverse and contrary to her expectation.
Respondent claims that when the criminal complaint was filed, respondent had resigned from Taggat for more than five
years. Respondent asserts that he no longer owed his undivided loyalty to Taggat. Respondent argues that it was his sworn
duty to conduct the necessary preliminary investigation. Respondent contends that complainant failed to establish lack of
impartiality when he performed his duty. Respondent points out that complainant did not file a motion to inhibit
respondent from hearing the criminal complaint but instead complainant voluntarily executed and filed her counteraffidavit without mental reservation.
Respondent states that complainants reason in not filing a motion to inhibit was her impression that respondent would
exonerate her from the charges filed as gleaned from complainants statement during the hearing conducted on 12
February 1999:
xxx
Q. (Atty. Dabu). What do you mean you didnt think he would do it, Madam Witness?
A. Because he is supposed to be my fathers friend and he was working with my Dad and he was supposed to be trusted
by my father. And he came to me and told me he gonna help me. x x x.
Respondent also asserts that no conflicting interests exist because he was not representing Taggat employees or
complainant. Respondent claims he was merely performing his official duty as Assistant Provincial Prosecutor.
Respondent argues that complainant failed to establish that respondents act was tainted with personal interest, malice and
bad faith.
Respondent denies complainants allegations that he instigated the filing of the cases, threatened and harassed Taggat
employees. Respondent claims that this accusation is bereft of proof because complainant failed to mention the names of
the employees or present them for cross-examination.
Respondent does not dispute his receipt, after his appointment as government prosecutor, of retainer fees from
complainant but claims that it
was only on a case-to-case basis and it ceased in 1996. Respondent contends that the fees were paid for his consultancy
services and not for representation. Respondent submits that consultation is not the same as representation and that
rendering consultancy services is not prohibited. Respondent, in his Reply-Memorandum, states:
x x x [I]f ever Taggat paid him certain amounts, these were paid voluntarily by Taggat without the respondents asking,
intended as token consultancy fees on a case-to-case basis and not as or for retainer fees. These payments do not at all
show or translate as a specie of conflict of interest. Moreover, these consultations had no relation to, or connection with,
the above-mentioned labor complaints filed by former Taggat employees.
Respondent insists that complainants evidence failed to prove that when the criminal complaint was filed with the Office
of the Provincial Prosecutor of Cagayan, respondent was still the retained counsel or legal consultant.
While this disbarment case was pending, the Resolution and Order issued by respondent to file 651 Informations against
complainant was reversed and set aside by Regional State Prosecutor of Cagayan Rodolfo B. Cadelina last 4 January
1999. Hence, the criminal complaint was dismissed.

The IBPs Report and Recommendation

The Integrated Bar of the Philippines Investigating Commissioner Ma. Carmina M. Alejandro-Abbas ("IBP
Commissioner Abbas") heard the case and allowed the parties to submit their respective memoranda. Due to IBP
Commissioner Abbas resignation, the case was reassigned to Commissioner Dennis A.B. Funa ("IBP Commissioner
Funa").
After the parties filed their memoranda and motion to resolve the case, the IBP Board of Governors issued Resolution No.
XVI-2004-479 ("IBP Resolution") dated 4 November 2004 adopting with modification IBP Commissioner Funas Report
and Recommendation ("Report") finding respondent guilty of conflict of interests, failure to safeguard a former clients
interest, and violating the prohibition against the private practice of law while being a government prosecutor. The IBP
Board of Governors recommended the imposition of a penalty of three years suspension from the practice of law. The
Report reads:
Now the issue here is whether being a former lawyer of Taggat conflicts with his role as Assistant Provincial Prosecutor
in deciding I.S. No. 97-240. A determination of this issue will require the test of whether the matter in I.S. No. 97-240 will
conflict with his former position of Personnel Manager and Legal Counsel of Taggat.
I.S. No. 97-240 was filed for "Violation of Labor Code" (see Resolution of the Provincial Prosecutors Office, Annex "B"
of Complaint). Herein Complainant, Ruthie Lim-Santiago, was being accused as having the "management and control" of
Taggat (p. 2, Resolution of the Prov. Pros. Office, supra).
Clearly, as a former Personnel Manager and Legal Counsel of Taggat, herein Respondent undoubtedly handled the
personnel and labor concerns of Taggat. Respondent, undoubtedly dealt with and related with the employees of Taggat.
Therefore, Respondent undoubtedly dealt with and related with complainants in I.S. No. 97-240. The issues, therefore, in
I.S. No. 97-240, are very much familiar with Respondent. While the issues of unpaid salaries pertain to the periods 19961997, the mechanics and personalities in that case are very much familiar with Respondent.
A lawyer owes something to a former client. Herein Respondent owes to Taggat, a former client, the duty to "maintain
inviolate the clients confidence or to refrain from doing anything which will injuriously affect him in any matter in which
he previously represented him" (Natam v. Capule, 91 Phil. 640; p. 231, Agpalo, Legal Ethics, 4th ed.)
Respondent argues that as Assistant Provincial Prosecutor, he does not represent any client or any interest except justice. It
should not be forgotten, however, that a lawyer has an immutable duty to a former client with respect to matters that he
previously handled for that former client. In this case, matters relating to personnel, labor policies, and labor relations
that he previously handled as Personnel Manager and Legal Counsel of Taggat. I.S. No. 97-240 was for "Violation of the
Labor Code." Here lies the conflict. Perhaps it would have been different had I.S. No. 97-240 not been labor-related, or if
Respondent had not been a Personnel Manager concurrently as Legal Counsel. But as it is, I.S. No. 97-240 is labor-related
and Respondent was a former Personnel Manager of Taggat.
xxxx
While Respondent ceased his relations with Taggat in 1992 and the unpaid salaries being sought in I.S. No. 97-240 were
of the years 1996 and 1997, the employees and management involved are the very personalities he dealt with as
Personnel Manager and Legal Counsel of Taggat. Respondent dealt with these persons in his fiduciary relations with
Taggat. Moreover, he was an employee of the corporation and part of its management.
xxxx
As to the propriety of receiving "Retainer Fees" or "consultancy fees" from herein Complainant while being an Assistant
Provincial Prosecutor, and for rendering legal consultancy work while being an Assistant Provincial Prosecutor, this
matter had long been settled. Government prosecutors are prohibited to engage in the private practice of law (see

Legal and Judicial Ethics, Ernesto Pineda, 1994 ed., p. 20; People v. Villanueva, 14 SCRA 109; Aquino v. Blanco 70 Phil.
647). The act of being a legal consultant is a practice of law. To engage in the practice of law is to do any of those acts that
are characteristic of the legal profession (In re: David, 93 Phil. 461). It covers any activity, in or out of court, which
required the application of law, legal principles, practice or procedures and calls for legal knowledge, training and
experience (PLA v. Agrava, 105 Phil. 173; People v. Villanueva, 14 SCRA 111; Cayetano v. Monsod, 201 SCRA 210).
Respondent clearly violated this prohibition.
As for the secondary accusations of harassing certain employees of Taggat and instigating the filing of criminal
complaints, we find the evidence insufficient.
Accordingly, Respondent should be found guilty of conflict of interest, failure to safeguard a former clients interest, and
violating the prohibition against the private practice of law while being a government prosecutor.
The IBP Board of Governors forwarded the Report to the Court as provided under Section 12(b), Rule 139-B of the Rules
of Court.
The Ruling of the Court
The Court exonerates respondent from the charge of violation of Rule 15.03 of the Code of Professional Responsibility
("Code"). However, the Court finds respondent liable for violation of Rule 1.01, Canon 1 of the Code of Professional
Responsibility against unlawful conduct. Respondent committed unlawful conduct when he violated Section 7(b)(2) of the
Code of Conduct and Ethical Standards for Public Officials and Employees or Republic Act No. 6713 ("RA 6713").
Canon 6 provides that the Code "shall apply to lawyers in government service in the discharge of their official duties." A
government lawyer is thus bound by the prohibition "not [to] represent conflicting interests." However, this rule is subject
to certain limitations. The prohibition to represent conflicting interests does not apply when no conflict of interest exists,
when a written consent of all concerned is given after a full disclosure of the facts or when no true attorney-client
relationship exists. Moreover, considering the serious consequence of the disbarment or suspension of a member of the
Bar, clear preponderant evidence is necessary to justify the imposition of the administrative penalty.
Respondent is also mandated under Rule 1.01 of Canon 1 not to engage in "unlawful x x x conduct." Unlawful conduct
includes violation of the statutory prohibition on a government employee to "engage in the private practice of [his]
profession unless authorized by the Constitution or law, provided, that such practice will not conflict or tend to conflict
with [his] official functions."
Complainants evidence failed to substantiate the claim that respondent represented conflicting interests
In Quiambao v. Bamba, the Court enumerated various tests to determine conflict of interests. One test of inconsistency of
interests is whether the lawyer will be asked to use against his former client any confidential information acquired through
their connection or previous employment. In essence, what a lawyer owes his former client is to maintain inviolate the
clients confidence or to refrain from doing anything which will injuriously affect him in any matter in which he
previously represented him.
In the present case, we find no conflict of interests when respondent handled the preliminary investigation of the criminal
complaint filed by Taggat employees in 1997. The issue in the criminal complaint pertains to non-payment of wages that
occurred from 1 April 1996 to 15 July 1997. Clearly, respondent was no longer connected with Taggat during that period
since he resigned sometime in 1992.
In order to charge respondent for representing conflicting interests, evidence must be presented to prove that respondent
used against Taggat, his former client, any confidential information acquired through his previous employment. The only
established participation respondent had with respect to the criminal complaint is that he was the one who conducted the

preliminary investigation. On that basis alone, it does not necessarily follow that respondent used any confidential
information from his previous employment with complainant or Taggat in resolving the criminal complaint.
The fact alone that respondent was the former Personnel Manager and Retained Counsel of Taggat and the case he
resolved as government prosecutor was labor-related is not a sufficient basis to charge respondent for representing
conflicting interests. A lawyers immutable duty to a former client does not cover transactions that occurred beyond the
lawyers employment with the client. The intent of the law is to impose upon the lawyer the duty to protect the clients
interests only on matters that he previously handled for the former client and not for matters that arose after the lawyerclient relationship has terminated.
Further, complainant failed to present a single iota of evidence to prove her allegations. Thus, respondent is not guilty of
violating Rule 15.03 of the Code.
Respondent engaged in the private practice of law while working as a government prosecutor
The Court has defined the practice of law broadly as
x x x any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and
experience. "To engage in the practice of law is to perform those acts which are characteristics of the profession.
Generally, to practice law is to give notice or render any kind of service, which device or service requires the use in any
degree of legal knowledge or skill."
"Private practice of law" contemplates a succession of acts of the same nature habitually or customarily holding ones self
to the public as a lawyer.
Respondent argues that he only rendered consultancy services to Taggat intermittently and he was not a retained counsel
of Taggat from 1995 to 1996 as alleged. This argument is without merit because the law does not distinguish between
consultancy services and retainer agreement. For as long as respondent performed acts that are usually rendered by
lawyers with the use of their legal knowledge, the same falls within the ambit of the term "practice of law."
Nonetheless, respondent admitted that he rendered his legal services to complainant while working as a government
prosecutor. Even the receipts he signed stated that the payments by Taggat were for "Retainers fee." Thus, as correctly
pointed out by complainant, respondent clearly violated the prohibition in RA 6713.
However, violations of RA 6713 are not subject to disciplinary action under the Code of Professional Responsibility
unless the violations also constitute infractions of specific provisions of the Code of Professional Responsibility.
Certainly, the IBP has no jurisdiction to investigate violations of RA 6713 the Code of Conduct and Ethical Standards
for Public Officials and Employees unless the acts involved also transgress provisions of the Code of Professional
Responsibility.
Here, respondents violation of RA 6713 also constitutes a violation of Rule 1.01 of Canon 1, which mandates that "[a]
lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct." Respondents admission that he received
from Taggat fees for legal services while serving as a government prosecutor is an unlawful conduct, which constitutes a
violation of Rule 1.01.
Respondent admitted that complainant also charged him with unlawful conduct when respondent stated in his Demurrer to
Evidence:
In this instant case, the complainant prays that the respondent be permanently and indefinitely suspended or disbarred
from the practice of the law profession and his name removed from the Roll of Attorneys on the following grounds:
xxxx

d) that respondent manifested gross misconduct and gross violation of his oath of office and in his dealings with the
public.
On the Appropriate Penalty on Respondent
The appropriate penalty on an errant lawyer depends on the exercise of sound judicial discretion based on the surrounding
facts.
Under Civil Service Law and rules, the penalty for government employees engaging in unauthorized private practice of
profession is suspension for six months and one day to one year. 56 We find this penalty appropriate for respondents
violation in this case of Rule 1.01, Canon 1 of the Code of Professional Responsibility.
WHEREFORE, we find respondent Atty. Carlos B. Sagucio GUILTY of violation of Rule 1.01, Canon 1 of the Code of
Professional Responsibility. Accordingly, we SUSPEND respondent Atty. Carlos B. Sagucio 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 respondents 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.

G.R. No. L-18727

August 31, 1964

JESUS MA. CUI, plaintiff-appellee,

vs.
ANTONIO MA. CUI, defendant-appellant,
ROMULO CUI, Intervenor-appellant.
Jose W. Diokno for plaintiff-appellee.
Jaime R. Nuevas and Hector L. Hofilea for defendant-appellant.
Romulo Cui in his own behalf as intervenor-appellants.
MAKALINTAL, J.:
This is a proving in quo warranto originally filed in the Court of First Instance of Cebu. The office in contention is that of
Administrator of the Hospicio de San Jose de Barili. Judgment was rendered on 27 April 1961 in favor of the plaintiff,
Jesus Ma. Cui, and appealed to us by the defendant, Antonio Ma. Cui, and by the intervenor, Romulo Cui.
The Hospicio is a charitable institution established by the spouses Don Pedro Cui and Doa Benigna Cui, now deceased,
"for the care and support, free of charge, of indigent invalids, and incapacitated and helpless persons." It acquired
corporate existence by legislation (Act No. 3239 of the Philippine Legislature passed 27 November 1925) and endowed
with extensive properties by the said spouses through a series of donations, principally the deed of donation executed on 2
January 1926.
Section 2 of Act No. 3239 gave the initial management to the founders jointly and, in case of their incapacity or death, to
"such persons as they may nominate or designate, in the order prescribed to them." Section 2 of the deed of donation
provides as follows:

Que en caso de nuestro fallecimiento o incapacidad para administrar, nos sustituyan nuestro legitime
sobrino Mariano Cui, si al tiempo de nuestra muerte o incapacidad se hallare residiendo en la caudad de
Cebu, y nuestro sobrino politico Dionisio Jakosalem. Si nuestro dicho sobrino Mariano Cui no estuviese
residiendo entonces en la caudad de Cebu, designamos en su lugar a nuestro otro sobrino legitime
Mauricio Cui. Ambos sobrinos administraran conjuntamente el HOSPICIO DE SAN JOSE DE BARILI.
A la muerte o incapacidad de estos dos administradores, la administracion del HOSPICIO DE SAN JOSE
DE BARILI pasara a una sola persona que sera el varon, mayor de edad, que descienda legitimainente de
cualquiera de nuestros sobrinos legitimos Mariano Cui, Mauricio Cui, Vicente Cui y Victor Cui, y que
posea titulo de abogado, o medico, o ingeniero civil, o farmaceutico, o a falta de estos titulos, el que
pague al Estado mayor impuesto o contribution. En igualdad de circumstancias, sera preferida el varon de
mas edad descendiente de quien tenia ultimamente la administracion. Cuando absolutamente faltare
persona de estas cualificaciones, la administracion del HOSPICIO DE SAN JOSE DE BARILI pasara al
senor Obispo de Cebu o quien sea el mayor dignatario de la Iglesia Catolica, apostolica, Romana, que
tuviere asiento en la cabecera de esta Provincia de Cebu, y en su defecto, al Gobierno Provincial de Cebu.
Don Pedro Cui died in 1926, and his widow continued to administer the Hospicio until her death in 1929. Thereupon the
administration passed to Mauricio Cui and Dionisio Jakosalem. The first died on 8 May 1931 and the second on 1 July
1931. On 2 July 1931 Dr. Teodoro Cui, only son of Mauricio Cui, became the administrator. Thereafter, beginning in
1932, a series of controversies and court litigations ensued concerning the position of administrator, to which, in so far as
they are pertinent to the present case, reference will be made later in this decision.
Plaintiff Jesus Ma. Cui and defendant Antonio Ma. Cui are brothers, being the sons of Mariano Cui, one of the nephews of
the spouses Don Pedro Cui and Doa Benigna Cui. On 27 February 1960 the then incumbent administrator, Dr. Teodoro
Cui, resigned in favor of Antonio Ma. Cui pursuant to a "convenio" entered into between them and embodied in a notarial
document. The next day, 28 February, Antonio Ma. Cui took his oath of office. Jesus Ma. Cui, however, had no prior
notice of either the "convenio" or of his brother's assumption of the position.
Dr. Teodoro Cui died on 27 August 1960; on 5 September 1960 the plaintiff wrote a letter to the defendant demanding that
the office be turned over to him; and on 13 September 1960, the demand not having been complied with the plaintiff filed
the complaint in this case. Romulo Cui later on intervened, claiming a right to the same office, being a grandson of
Vicente Cui, another one of the nephews mentioned by the founders of the Hospicio in their deed of donation.
As between Jesus and Antonio the main issue turns upon their respective qualifications to the position of administrator.
Jesus is the older of the two and therefore under equal circumstances would be preferred pursuant to section 2 of the deed
of donation. However, before the test of age may be, applied the deed gives preference to the one, among the legitimate
descendants of the nephews therein named, "que posea titulo de abogado, o medico, o ingeniero civil, o farmaceutico, o a
falta de estos titulos el que pague al estado mayor impuesto o contribucion."
The specific point in dispute is the mealing of the term "titulo de abogado." Jesus Ma. Cui holds the degree of Bachelor of
Laws from the University of Santo Tomas (Class 1926) but is not a member of the Bar, not having passed the
examinations to qualify him as one. Antonio Ma. Cui, on the other hand, is a member of the Bar and although disbarred by
this Court on 29 March 1957 (administrative case No. 141), was reinstated by resolution promulgated on 10 February
1960, about two weeks before he assumed the position of administrator of the Hospicio de Barili.
The Court a quo, in deciding this point in favor of the plaintiff, said that the phrase "titulo de abogado," taken alone,
means that of a full-fledged lawyer, but that has used in the deed of donation and considering the function or purpose of
the administrator, it should not be given a strict interpretation but a liberal one," and therefore means a law degree or
diploma of Bachelor of Laws. This ruling is assailed as erroneous both by the defendant and by the intervenor.
We are of the opinion, that whether taken alone or in context the term "titulo de abogado" means not mere possession of
the academic degree of Bachelor of Laws but membership in the Bar after due admission thereto, qualifying one for the
practice of law. In Spanish the word "titulo" is defined as "testimonies o instrumento dado para ejercer un empleo,
dignidad o profesion" (Diccionario de la Lengua Espaola, Real Academia Espanola, 1947 ed., p. 1224) and the word
"abogado," as follows: "Perito en el derecho positivo que se dedica a defender en juicio, por escrito o de palabra, los
derechos o intereses de los litigantes, y tambien a dar dictmen sobre las cuestiones o puntos legales que se le consultan
(Id., p.5) A Bachelor's degree alone, conferred by a law school upon completion of certain academic requirements, does

not entitle its holder to exercise the legal profession. The English equivalent of "abogado" is lawyer or attorney-at-law.
This term has a fixed and general signification, and has reference to that class of persons who are by license officers of the
courts, empowered to appear, prosecute and defend, and upon whom peculiar duties, responsibilities and liabilities are
devolved by law as a consequence.
In this jurisdiction admission to the Bar and to the practice of law is under the authority of the Supreme Court. According
to Rule 138 such admission requires passing the Bar examinations, taking the lawyer's oath and receiving a certificate
from the Clerk of Court, this certificate being his license to practice the profession. The academic degree of Bachelor of
Laws in itself has little to do with admission to the Bar, except as evidence of compliance with the requirements that an
applicant to the examinations has "successfully completed all the prescribed courses, in a law school or university,
officially approved by the Secretary of Education." For this purpose, however, possession of the degree itself is not
indispensable: completion of the prescribed courses may be shown in some other way. Indeed there are instances,
particularly under the former Code of Civil Procedure, where persons who had not gone through any formal legal
education in college were allowed to take the Bar examinations and to qualify as lawyers. (Section 14 of that code
required possession of "the necessary qualifications of learning ability.") Yet certainly it would be incorrect to say that
such persons do not possess the "titulo de abogado" because they lack the academic degree of Bachelor of Laws from
some law school or university.
The founders of the Hospicio de San Jose de Barili must have established the foregoing test advisely, and provided in the
deed of donation that if not a lawyer, the administrator should be a doctor or a civil engineer or a pharmacist, in that order;
or failing all these, should be the one who pays the highest taxes among those otherwise qualified. A lawyer, first of all,
because under Act No. 3239 the managers or trustees of the Hospicio shall "make regulations for the government of said
institution (Sec. 3, b); shall "prescribe the conditions subject to which invalids and incapacitated and destitute persons
may be admitted to the institute" (Sec. 3, d); shall see to it that the rules and conditions promulgated for admission are not
in conflict with the provisions of the Act; and shall administer properties of considerable value for all of which work, it
is to be presumed, a working knowledge of the law and a license to practice the profession would be a distinct asset.
Under this particular criterion we hold that the plaintiff is not entitled, as against the defendant, to the office of
administrator. But it is argued that although the latter is a member of the Bar he is nevertheless disqualified by virtue of
paragraph 3 of the deed of donation, which provides that the administrator may be removed on the ground, among others,
of ineptitude in the discharge of his office or lack of evident sound moral character. Reference is made to the fact that the
defendant was disbarred by this Court on 29 March 1957 for immorality and unprofessional conduct. It is also a fact,
however, that he was reinstated on 10 February 1960, before he assumed the office of administrator. His reinstatement is a
recognition of his moral rehabilitation, upon proof no less than that required for his admission to the Bar in the first place.
Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable
Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts.
Whether or not the applicant shall be reinstated rests to a great extent in the sound discretion of the court.
The court action will depend, generally speaking, on whether or not it decides that the public interest in
the orderly and impartial administration of justice will be conserved by the applicant's participation
therein in the capacity of an attorney and counselor at law. The applicant must, like a candidate for
admission to the bar, satisfy the court that he is a person of good moral character a fit and proper
person to practice law. The court will take into consideration the applicant's character and standing prior
to the disbarment, the nature and character of the charge for which he was disbarred, his conduct
subsequent to the disbarment, and the time that has elapsed between the disbarment and the application
for reinstatement. (5 Am. Jur., Sec. 301, p. 443)
Evidence of reformation is required before applicant is entitled to reinstatement, notwithstanding the
attorney has received a pardon following his conviction, and the requirements for reinstatement have been
held to be the same as for original admission to the bar, except that the court may require a greater degree
of proof than in an original admission. (7 C.J.S., Attorney & Client, Sec. 41, p. 815.)
The decisive questions on an application for reinstatement are whether applicant is "of good moral
character" in the sense in which that phrase is used when applied to attorneys-at-law and is a fit and
proper person to be entrusted with the privileges of the office of an attorney, and whether his mental

qualifications are such as to enable him to discharge efficiently his duty to the public, and the moral
attributes are to be regarded as a separate and distinct from his mental qualifications. (7 C.J.S., Attorney
& Client, Sec. 41, p. 816).
As far as moral character is concerned, the standard required of one seeking reinstatement to the office of attorney cannot
be less exacting than that implied in paragraph 3 of the deed of donation as a requisite for the office which is disputed in
this case. When the defendant was restored to the roll of lawyers the restrictions and disabilities resulting from his
previous disbarment were wiped out.
This action must fail on one other ground: it is already barred by lapse of time amounting the prescription or laches.
Under Section 16 of Rule 66 (formerly sec. 16, Rule 68, taken from section 216 of Act 190), this kind of action must be
filed within one (1) year after the right of plaintiff to hold the office arose.
Plaintiff Jesus Ma. Cui believed himself entitled to the office in question as long ago as 1932. On January 26 of that year
he filed a complaint in quo warranto against Dr. Teodoro Cui, who assumed the administration of the Hospicio on 2 July
1931. Mariano Cui, the plaintiff's father and Antonio Ma. Cui came in as intervenors. The case was dismissed by the Court
of First Instance upon a demurrer by the defendant there to the complaint and complaint in intervention. Upon appeal to
the Supreme Court from the order of dismissal, the case was remanded for further proceedings (Cui v. Cui, 60 Phil. 37,
48). The plaintiff, however, did not prosecute the case as indicated in the decision of this Court, but acceded to an
arrangement whereby Teodoro Cui continued as administrator, Mariano Cui was named "legal adviser" and plaintiff Jesus
Ma. Cui accepted a position as assistant administrator.
Subsequently the plaintiff tried to get the position by a series of extra-judicial maneuvers. First he informed the Social
Welfare Commissioner, by letter dated 1 February 1950, that as of the previous 1 January he had "made clear" his
intention of occupying the office of administrator of the Hospicio." He followed that up with another letter dated 4
February, announcing that he had taken over the administration as of 1 January 1950. Actually, however, he took his oath
of office before a notary public only on 4 March 1950, after receiving a reply of acknowledgment, dated 2 March, from
the Social Welfare Commissioner, who thought that he had already assumed the position as stated in his communication of
4 February 1950. The rather muddled situation was referred by the Commissioner to the Secretary of Justice, who, in an
opinion dated 3 April 1950 (op. No. 45, S. 1950), correcting another opinion previously given, in effect ruled that the
plaintiff, not beings lawyer, was not entitled to the administration of the Hospicio.
Meanwhile, the question again became the subject of a court controversy. On 4 March 1950, the Hospicio commenced an
action against the Philippine National Bank in the Court of First Instance of Cebu (Civ. No. R-1216) because the Bank
had frozen the Hospicio's deposits therein. The Bank then filed a third-party complaint against herein plaintiff-appellee,
Jesus Ma. Cui, who had, as stated above, taken oath as administrator. On 19 October 1950, having been deprived of
recognition by the opinion of the Secretary of Justice he moved to dismiss the third-party complaint on the ground that he
was relinquishing "temporarily" his claim to the administration of the Hospicio. The motion was denied in an order dated
2 October 1953. On 6 February 1954 he was able to take another oath of office as administrator before President
Magsaysay, and soon afterward filed a second motion to dismiss in Civil case No. R-1216. President Magsaysay, be it
said, upon learning that a case was pending in Court, stated in a telegram to his Executive Secretary that "as far as (he)
was concerned the court may disregard the oath" thus taken. The motion to dismiss was granted nevertheless and the other
parties in the case filed their notice of appeal from the order of dismissal. The plaintiff then filed an ex-parte motion to be
excluded as party in the appeal and the trial Court again granted the motion. This was on 24 November 1954. Appellants
thereupon instituted a mandamus proceeding in the Supreme Court (G.R. No. L-8540), which was decided on 28 May
1956, to the effect that Jesus Ma. Cui should be included in the appeal. That appeal, however, after it reached this Court
was dismiss upon motion of the parties, who agreed that "the office of administrator and trustee of the Hospicio ... should
be ventilated in quo warranto proceedings to be initiated against the incumbent by whomsoever is not occupying the
office but believes he has a right to it" (G.R. No. L-9103). The resolution of dismissal was issued 31 July 1956. At that
time the incumbent administrator was Dr. Teodoro Cui, but no action in quo warranto was filed against him by plaintiff
Jesus Ma. Cui as indicated in the aforesaid motion for dismissal.
On 10 February 1960, defendant Antonio Ma. Cui was reinstated by this Court as member of the Bar, and on the following
27 February Dr. Teodoro Cui resigned as administrator in his favor, pursuant to the "convenio" between them executed on
the same date. The next day Antonio Ma. Cui took his oath of office.

The failure of the plaintiff to prosecute his claim judicially after this Court decided the first case of Cui v. Cui in 1934 (60
Phil. 3769), remanding it to the trial court for further proceedings; his acceptance instead of the position of assistant
administrator, allowing Dr. Teodoro Cui to continue as administrator and his failure to file an action in quo warranto
against said Dr. Cui after 31 July 1956, when the appeal in Civil Case No. R-1216 of the Cebu Court was dismissed upon
motion of the parties precisely so that the conflicting claims of the parties could be ventilated in such an action all
these circumstances militate against the plaintiff's present claim in view of the rule that an action in quo warranto must be
filed within one year after the right of the plaintiff to hold the office arose. The excuse that the plaintiff did not file an
action against Dr. Teodoro Cui after 31 July 1956 because of the latter's illness did not interrupt the running of the
statutory period. And the fact that this action was filed within one year of the defendant's assumption of office in
September 1960 does not make the plaintiff's position any better, for the basis of the action is his own right to the office
and it is from the time such right arose that the one-year limitation must be counted, not from the date the incumbent
began to discharge the duties of said office. Bautista v. Fajardo, 38 Phil. 624; Lim vs. Yulo, 62 Phil. 161.
Now for the claim of intervenor and appellant Romulo Cui. This party is also a lawyer, grandson of Vicente Cui, one of
the nephews of the founders of the Hospicio mentioned by them in the deed of donation. He is further, in the line of
succession, than defendant Antonio Ma. Cui, who is a son of Mariano Cui, another one of the said nephews. The deed of
donation provides: "a la muerte o incapacidad de estos administradores (those appointed in the deed itself) pasara a una
sola persona que sera el varon, mayor de edad, que descienda legitimamente de cualquiera de nuestros sobrinos legitimos
Mariano Cui, Mauricio Cui, Vicente Cui, Victor Cui, y que posea titulo de abogado ... En igualdad de circumstancias, sera
preferido el varon de mas edad descendiente de quien tenia ultimamente la administration." Besides being a nearer
descendant than Romulo Cui, Antonio Ma. Cui is older than he and therefore is preferred when the circumstances are
otherwise equal. The intervenor contends that the intention of the founders was to confer the administration by line and
successively to the descendants of the nephews named in the deed, in the order they are named. Thus, he argues, since the
last administrator was Dr. Teodoro Cui, who belonged to the Mauricio Cui line, the next administrator must come from the
line of Vicente Cui, to whom the intervenor belongs. This interpretation, however, is not justified by the terms of the deed
of donation.
IN VIEW OF THE FOREGOING CONSIDERATIONS, the judgment appealed from is reversed and set aside, and the
complaint as well as the complaint in intervention are dismissed, with costs equally against plaintiff-appellee and
intervenor-appellant.

123 P.3d 652 (2005)

211 Ariz. 458
In the Matter of James Joseph HAMM, Applicant.
No. SB-04-0079-M.
Supreme Court of Arizona, En Banc.
December 7, 2005.
*654 James Joseph Hamm, Tempe, In Propria Persona.
Monroe & McDonough, P.C., by Lawrence McDonough, Tucson, and Juan Perez-Medrano, Phoenix, Chair Attorneys for
the Committee on Character & Fitness.
Charles W. Wirken, President, Helen Perry Grimwood, President-elect, Jim D. Smith, First Vice President, Daniel J.
McAuliffe, Second Vice President, Edward F. Novak, Secretary-Treasurer, Robert B. Van Wyck, Chief Bar Counsel,
Phoenix, Attorneys for Amicus Curiae State Bar of Arizona.
Michael D. Kimerer, Marty Lieberman, Amy L. Nguyen, Phoenix, Carla Ryan, Andrew Silverman, Tucson, Attorneys for
Amicus Curiae, Arizona Attorneys for Criminal Justice.
Andrew P. Thomas, Maricopa County Attorney, by Andrew P. Thomas, Phoenix, Attorney for Amicus Curiae Maricopa
County Attorney's Office.
OPINION
McGREGOR, Chief Justice.
1 James Hamm petitioned this Court, pursuant to Arizona Supreme Court Rule 36(g), 17A A.R.S., [1] to review the
recommendation of the Committee on Character and Fitness (the Committee) that his application for admission to the
State Bar of Arizona (the Bar) be denied. Having reviewed the record and the Committee's report, we conclude that James

Hamm has failed to establish the good moral character necessary to be admitted to the practice of law in Arizona and deny
his application.
I.
2 In September 1974, James Hamm was twenty-six years old and living on the streets of Tucson. Although he previously
had attended divinity school and worked as a part-time pastor, Hamm describes his life in 1974 as reflecting a series of
personal and social failures. In 1973, he had separated from his wife, with whom he had a son. Although he had no
criminal record, he supported himself by selling small quantities of marijuana and, again according to Hamm, he used
marijuana and other drugs and abused alcohol.
3 On September 6, 1974, Hamm met two young men who identified themselves as college students from Missouri. The
two, Willard Morley and Zane Staples, came to Tucson to buy twenty pounds of marijuana. Hamm agreed to sell it to
them, but apparently was unable to acquire that quantity of marijuana. Rather than call off the transaction, Hamm and two
accomplices, Garland Wells and Bill Reeser, agreed to rob Staples and Morley of the money intended for the purchase. On
September 7, Wells gave Hamm a gun to use during the robbery. Later that day, Wells and Hamm directed Morley and
Staples to drive to the outskirts of Tucson, purportedly to complete the drug transaction; Reeser followed in another
vehicle. Both Wells and Hamm carried guns; Morley and Staples were unarmed. Hamm sat behind Morley, the driver, and
Wells sat behind Staples. At some point, Hamm detected that Staples was becoming suspicious. As Morley stopped the
car, and without making any demand on the victims for money, Hamm shot Morley in the back of the head, killing him. At
the same time, Wells shot Staples. Hamm then shot Staples in the back as he tried to escape and shot Morley once again.
Wells also shot Morley, then pursued Staples, whom he ultimately killed outside of the car. Hamm and Wells took
$1400.00 from the glove compartment, fled the scene in the van driven by Reeser, and left the bodies of Morley and
Staples lying in the desert.
4 Hamm took his share of the money and visited his sister in California. At the hearing held to consider his application
to the Bar, he told the Committee that he "was compelled to come back to Tucson," despite knowing he probably would be
caught. Police officers arrested Hamm shortly after his return. While in custody, he told the police that Morley and Staples
were killed in a gun battle during the drug deal. Initially charged with two counts of first-degree murder and two counts of
armed robbery, Hamm *655 pled guilty to one count of first-degree murder and was sentenced to life in prison, with no
possibility of parole for twenty-five years.
5 Once in prison, Hamm began taking steps toward rehabilitation and became a model prisoner. After spending one year
in maximum security, he applied for and received a job in a computer training program that allowed him to be transferred
to medium security. Once in medium security, Hamm apparently took advantage of any and every educational opportunity
the prison system had to offer. He completed certificates in yoga and meditation and, on his own, studied Jungian
psychology. He helped fellow inmates learn to read and write and to take responsibility for their actions. He obtained a
bachelor's degree in applied sociology, summa cum laude, from Northern Arizona University through a prison study
program.
6 After Hamm completed six years in medium security, prison officials transferred him to minimum security, where he
worked on paint and construction crews. He received a significant degree of freedom, which allowed him to live in a
dormitory rather than in a cell and occasionally to drive unaccompanied to nearby towns. He testified that he was the only
inmate permitted to head a work crew. Hamm reported to the Committee that he played an instrumental role on various
prison committees, particularly the committee that developed a new grievance procedure within the Department of
Corrections. In addition, he wrote grant proposals for libraries, for handicapped prisoners, and for obtaining greater legal
assistance for prisoners.
7 While in prison, he met and married Donna Leone. She and Hamm founded Middle Ground Prison Reform (Middle
Ground), a prisoner and prisoner family advocacy organization involved in lobbying for laws related to the criminal
justice system and prisons. Middle Ground also provides public education about those topics.
8 In 1989, the Governor, acting on the recommendation of the Arizona Board of Pardons and Parole (the Board),
commuted Hamm's sentence. When he had served nearly seventeen years, in July 1992, the Board released Hamm on
parole, conditioned upon no use of alcohol or drugs, drug and alcohol testing, and fifteen hours of community service

each month. In December 2001, the Arizona Board of Executive Clemency[2] granted Hamm's third application for
absolute discharge.
9 Between his release in August 1992 and his absolute discharge in December 2001, Hamm performed thousands of
hours of community service. He advocated for prisoners' rights in various forums by writing position papers, appearing on
radio programs, testifying in legislative hearings, and speaking at churches, schools, and civic organizations. He also
appeared in a public service video encouraging children not to do drugs or join gangs. Hamm now works as the Director
of Advocacy Services at Middle Ground Prison Reform.
10 While on parole, Hamm graduated from the Arizona State University College of Law. In July 1999, Hamm passed
the Arizona bar examination and, in 2004, filed his Character and Fitness Report with the Committee.
II.
11 The Rules of the Supreme Court of Arizona establish the process through which the Committee and this Court
evaluate applications for admission to the Bar, and prior case law clarifies the burden an applicant must satisfy to establish
good moral character. We begin with a review of the rules.
A.
12 Rules 34 through 37 define the requirements for admission to the Bar.[3] The *656 Committee may recommend an
applicant for admission only if that applicant, in addition to meeting other requirements, satisfies the Committee that he or
she is of good moral character. Rule 34(a). The applicant bears the burden of establishing his or her good moral character.
In re Greenberg, 126 Ariz. 290, 292, 614 P.2d 832, 834 (1980) (citing In re Levine, 97 Ariz. 88, 397 P.2d 205 (1964)). In
determining whether an applicant's prior conduct indicates a lack of good moral character, the Committee must consider
the following non-exhaustive list of factors:
A. The applicant's age, experience and general level of sophistication at the time of the conduct
B. The recency of the conduct
C. The reliability of the information concerning the conduct
D. The seriousness of the conduct
E. Consideration given by the applicant to relevant laws, rules and responsibilities at the time of the conduct
F. The factors underlying the conduct
G. The cumulative effect of the conduct
H. The evidence of rehabilitation
I. The applicant's positive social contributions since the conduct
J. The applicant's candor in the admissions process
K. The materiality of any omissions or misrepresentations by the applicant.
Rule 36(a)3.
13 When prior conduct involves the commission of a violent crime, the Committee must, at a minimum, hold an
informal hearing. Rule 36(a)4.E. If three or more Committee members who attended the hearing or who have read the
entire record do not recommend admission of an applicant, the Committee must hold a formal hearing to consider whether
to recommend the applicant for admission to the Bar. Id.
14 If the applicant fails to convince the Committee of his or her good moral character, the Committee has a duty not to
recommend that person to this Court. In re Klahr, 102 Ariz. 529, 531, 433 P.2d 977, 979 (1967); Levine, 97 Ariz. at 91,
397 P.2d at 207 ("If the proof of good moral character falls short of convincing the Committee on Examinations and
Admissions, it is its duty not to recommend admission."); In re Courtney, 83 Ariz. 231, 233, 319 P.2d 991, 993 (1957) ("In
this it has no discretion; if the members entertain any reservations whatsoever as to the applicant's good moral character, it

should not make a favorable recommendation to this court."). After the Committee submits its report, an aggrieved
applicant may petition this Court for review. Rule 36(g).
B.
15 This Court then independently determines whether the applicant possesses good moral character and, based upon that
determination, grants or denies the candidate's application. Although we give serious consideration to the facts as found
by and the recommendation of the Committee, "[t]he ultimate decision in this difficult matter rests with the Supreme
Court." In re Kiser, 107 Ariz. 326, 327, 487 P.2d 393, 394 (1971) (holding applicant possessed good moral character); see
also Levine, 97 Ariz. at 92, 397 P.2d at 207 (holding the Court must, "using our independent judgment, de novo determine
whether the necessary qualifications have been shown"). We do not limit our independent review to matters of law; we
have "the ultimate responsibility for determination of fact and law." In re Ronwin, 139 Ariz. 576, 579, 680 P.2d 107, 110
(1983); see also In re Walker, 112 Ariz. 134, 137, 539 P.2d 891, 894 (1975) (making a finding regarding the credibility of
testimony, although in agreement with the Committee).
16 The ultimate question in cases such as this is whether the applicant has established good moral character, a concept
with which we have wrestled as we have attempted to define its boundaries. Greenberg, 126 Ariz. at 292, 614 P.2d at 834.
As Hamm asserts, the rules and standards governing admission to the practice of law in Arizona include no per se
disqualifications. Instead, we consider each case on its own merits. Id. In Walker, we described the principles on which we
rely as follows:
`Upright character' * * * is something more than an absence of bad character. *657 * * * It means that he [an applicant for
admission] must have conducted himself as a man of upright character ordinarily would, should, or does. Such character
expresses itself not in negatives nor in following the line of least resistance, but quite often in the will to do the unpleasant
thing if it is right, and the resolve not to do the pleasant thing if it is wrong.
112 Ariz. at 138, 539 P.2d at 895 (alteration in original) (quoting In re Farmer, 191 N.C. 235, 131 S.E. 661, 663 (1926)).
17 We also agree with Hamm that, under the Rule applicable to Hamm's application, our concern must be with the
applicant's present moral character. In Greenberg, we explained that "it is [the applicant's] moral character as of now with
which we are concerned." 126 Ariz. at 292, 614 P.2d at 834; see also Rule 36(a)3. Past misconduct, however, is not
irrelevant. Rather, this Court must determine what past bad acts reveal about an applicant's current character.
III.
18 In compliance with Rule 36(a)4.E, the Committee conducted a formal hearing to consider Hamm's application. The
Committee heard testimony on May 20 and June 2, 2004. Hamm, representing himself, and his wife presented extensive
testimony. In addition, the Committee heard from three licensed attorneys who had worked with Hamm and who
recommended his admission and also considered letters from those opposed to and in support of Hamm's application. In
detailed findings, the Committee specifically considered the various factors set out in Rule 36(a) to determine Hamm's
character and fitness to be admitted to the Bar. In its report, the Committee stated that, in reaching its conclusions, it
considered the following:
1) Hamm's unlawful conduct, which included the commission of two violent "execution style" murders and his testimony
as to the facts surrounding the murders.
2) Hamm's omissions on his Application and his testimony in explaining his failure to disclose all required information.
3) Hamm's neglect of his financial responsibilities and/or violation of a longstanding child support court order and his
testimony as to his failure to comply with the court order.
4) Hamm's mental or emotional instability impairing his ability to perform the functions of an attorney including his
testimony as to any diagnosis and treatment. [4]
19 After reviewing all these factors, the Committee concluded that Hamm had not met his burden of establishing that he
possesses the requisite character and fitness for admission to the Bar and accordingly recommended that his application be
denied. We now consider the Committee's findings, together with pertinent facts.

A.
20 The serious nature of Hamm's past criminal conduct is beyond dispute. Hamm acknowledges that no more serious
criminal conduct exists than committing first-degree murder. Our society reserves its harshest punishment for those
convicted of such conduct. See Tucson Rapid Transit Co. v. Rubiaz, 21 Ariz. 221, 231, 187 P. 568, 572 (1920) (describing
murder as "the most serious crime known to the law").
21 Hamm's past criminal conduct and the serious nature of that conduct affect the burden he must meet to establish good
moral character. He must first establish rehabilitation from prior criminal conduct, a requirement that adds to his burden of
showing current good moral character. See In re Adams, 273 Ga. 333, 540 S.E.2d 609, 610 (2001) ("Where an applicant
for admission to the bar has a criminal record, his or her burden of establishing present good moral character takes on the
added weight of proving full and complete rehabilitation subsequent to conviction...."); In re Allan S., 282 Md. 683, 387
A.2d 271, 275 (1978) ("Although *658 a prior conviction is not conclusive of a lack of present good moral character, ... it
adds to his burden of establishing present good character by requiring convincing proof of his full and complete
rehabilitation.").
22 The added burden becomes greater as past unlawful conduct becomes more serious. In In re Arrotta, we considered
an application for reinstatement from an attorney who, eight years earlier, pled guilty to mail fraud and bribery. 208 Ariz.
509, 96 P.3d 213 (2004). We noted there that "the more serious the misconduct that led to disbarment, the more difficult is
the applicant's task in showing rehabilitation." Id. at 512 12, 96 P.3d at 216. An applicant for initial admission to the Bar
who is attempting to overcome the negative implications of a serious felony on his current moral character likewise must
overcome a greater burden for more serious crimes. We agree with the New Jersey Supreme Court, which recognized that
"in the case of extremely damning past misconduct, a showing of rehabilitation may be virtually impossible to make." In
re Matthews, 94 N.J. 59, 462 A.2d 165, 176 (1983). Indeed, we are aware of no instance in which a person convicted of
first-degree murder has been admitted to the practice of law.
23 To show rehabilitation, Hamm must show that he has accepted responsibility for his criminal conduct. Hamm fully
recognizes his need to make this showing. Indeed, he states that his rehabilitation could not have proceeded absent such
acceptance. We recognize the Committee's concern that Hamm has not yet fully accepted responsibility for the two
murders. Hamm says he has done so, repeatedly and strongly, but some of his other statements indicate to the contrary.
The inconsistencies among his various statements related to accepting responsibility are most evident when he discusses
Staples' murder. Although he told the Committee that he accepts responsibility for Staples' murder, in fact he consistently
assigns that responsibility to his accomplice. His testimony revealed almost no attention to the commission or aftermath of
Staples' murder. Hamm concedes that he has focused on his role in Morley's murder rather than on his role in Staples'
murder. The difference in approach, he explains, resulted from one postcard written to him by Morley's grandmother and
his decision to use his connection to Morley to provide motivation to overcome difficulties. We have no reason to doubt
that Hamm's focus on Morley's murder aided him, using his words, in "accomplishing things that people have been telling
me I can't do and we're [Hamm and Morley] still doing it today." That fact, however, does nothing to assure us that Hamm
has taken responsibility for Staples' murder, as he must if he is to establish rehabilitation.
24 We also give serious consideration to the Committee's finding that Hamm was not completely forthright in his
testimony about the murders.[5] Hamm has insisted in his filings with this Court that he did not intend to kill, but only to
rob, his victims. The agreed facts, however, lead directly to the inference that Hamm intended to kill. He conspired with
his accomplices to rob the victims; he accepted the gun provided by Wells and took it with him in the car with the victims;
he testified that, although he did not intend to kill the victims, he was "afraid" they would be killed when he got in the car;
he shot Morley without ever attempting a robbery and shot him a second time to make certain he was dead; and he also
shot Staples to prevent his escape. The Committee observed Hamm testify and was able to judge the credibility of his
testimony in light of uncontested facts. We agree that the record shows that Hamm, despite his current protestations to the
contrary, intended to kill the victims. His failure to confront the fact that these murders were intentional undermines his
statements that he fully accepts responsibility for his actions.
25 As did the Committee, we give substantial weight to Hamm's attempts at rehabilitation. In Section I, supra, we
described in some detail the activities Hamm has undertaken, both while in and since his release from prison. We are
impressed with the *659 sincerity and fervor of those who testified or submitted letters on Hamm's behalf. Were
rehabilitation the only showing Hamm must make to establish good moral character, we would weigh those factors

tending to show rehabilitation against those tending to show a lack thereof. Under the facts of this case, however, we need
not decide whether the facts of record establish rehabilitation.
26 When an applicant has committed first-degree murder, a crime that demonstrates an extreme lack of good moral
character, that applicant must make an extraordinary showing of present good moral character to establish that he or she is
qualified to be admitted to the practice of law. Even assuming that Hamm has established rehabilitation, showing
rehabilitation from criminal conduct does not, in itself, establish good moral character. Rehabilitation is a necessary, but
not sufficient, ingredient of good moral character. An applicant must establish his current good moral character,
independent of and in addition to, evidence of rehabilitation. We conclude that Hamm failed to make that showing.
B.
27 We share the Committee's deep concern about Hamm's longstanding failure to fulfill, or even address, his child
support obligation to his son, born in 1969, four years before Hamm and his first wife separated. Not until he prepared his
application for admission to the Bar in 2004 did Hamm make any effort to meet his responsibility to provide support for
his son. During the Committee hearing, Hamm advanced several explanations for his failure to do so. Like the Committee,
we find none of his explanations credible.
28 Although Hamm attempts to excuse his failure to pay child support by pointing out that he never received a copy of a
final divorce decree, Hamm scarcely can claim that he lacked awareness of his obligation. A few months after he and his
wife separated in 1973, Hamm was arrested on a misdemeanor charge of failing to pay child support. On May 6, 1974,
James and Karen Hamm's divorce decree set Hamm's child support payments at $75.00 a month. Hamm made no effort to
learn the extent of his financial obligation to his son from 1974, when Hamm was twenty-six years old, until 2004, when
he was fifty-five. During those nearly thirty years, he gained sophistication and attended law school. He must have
known, and certainly should have known, that he had long avoided a basic parental obligation. [6]
29 Hamm also attempted to excuse his inattention to his obligation by explaining that he learned, first from a private
investigator hired by his wife in 1988, and later from his son, that his former wife's new husband had adopted his son. His
reliance on the private investigator's 1988 report to excuse his failure is surprising, given the fact that his son was only
months from the age of majority when Hamm learned of the report; he provides no explanation for his lack of concern
prior to that date.
30 Hamm further explained that only when he applied for admission to the Bar in 2004 did he discover that his son had
not been adopted and then "calculated the child support payment [due] over the years." Hamm determined that he owed
$10,000.00 and, even though the statute of limitations barred an action to recover past amounts due, [7] contacted his son
and set up a repayment schedule.
*660 31 "Behavior of such long duration cannot be considered as a temporary aberration...." Walker, 112 Ariz. at 138,
539 P.2d at 895; see also Office of Disciplinary Counsel v. Lewis, 493 Pa. 519, 426 A.2d 1138 (1981) (holding that even
when an attorney made belated restitution for funds taken from clients, because "[s]uch actions cannot be said to be
consistent with high ethical standards of the profession, with a lawyer's fiduciary responsibility to his client, with a
character that is beyond reproach, or with truth, candor and honesty," the attorney could not continue to practice law).
Hamm's failure to meet his parental obligation for nearly thirty years makes it more difficult for him to make the required
extraordinary showing that he "has conducted himself as a man ordinarily would, should, or does." Walker, 112 Ariz. at
138, 539 P.2d at 895.
32 We also agree with the Committee that Hamm did not display honesty and candor in discussing his failure to pay
child support with the Committee. Hamm testified both that his son told him personally that he had been adopted and that
his son "adamantly refused" to accept interest payments on the unpaid child support.
33 Hamm's son testified, however, that he had never been adopted, that prior to his contact with Hamm he had changed
his name himself, and that he had not told Hamm he had been adopted. Hamm's son also did not report adamantly
refusing interest payments. In response to a question from the Committee about interest payments, he said:

Discussions about interest? Seems like whenever we were talking about it, you know, he said it was a large amount, and it
seems like the subject of interest did come up. I can't remember exactly, you know, what we said about it. But, you know,
I didn't push the issue or anything, say, well, you know, you're going to pay me interest for this or what, or is there any
interest. It wasn't really an issue or important to me.
34 We discern no reason that Hamm's son would have been other than forthright about these matters, while Hamm had
every reason to present himself in the best possible light. [8] Like the Committee, we find the testimony of his son to be
more credible.
C.
35 We further conclude that Hamm did not adequately explain his failure to disclose an incident involving him and his
current wife, Donna, when he submitted his application to the Committee.
36 In 1996, Hamm and Donna engaged in a physical altercation outside a convenience store. Donna "yelled the word
`kidnap' out of the window" of the vehicle Hamm was driving, causing him to pull over and leave the vehicle. During
their tussle, Donna tore Hamm's shirt. Both called the police, who arrested neither Hamm nor Donna. The incident and
what Donna describes as her "embellishments" caused such great concern to the Hamms, particularly because Hamm was
on parole, that Donna submitted to a polygraph administered by a private company to demonstrate that Hamm had not
kidnapped her. The two also underwent marital counseling.
37 Nonetheless, when filling out his Character and Fitness Report, Hamm failed to disclose the incident to the
Committee. Question 25 on the report asks specifically whether the applicant, among other things, *661 has been
"questioned" concerning any felony or misdemeanor.[9] Hamm told the Committee that, in reading the application, he
missed the word "questioned" in the list of encounters with law enforcement that Question 25 directs an applicant to
report.
38 Hamm's explanation strains credulity. In Walker, this Court inferred that the son of an Army officer would understand
the requirement to register for the draft. 112 Ariz. at 138, 539 P.2d at 895. Likewise, we infer from Hamm's knowledge of
the law and his efforts in 1996 to document a defense for the domestic incident that he fully understood its importance and
must have known that the incident would be of interest to the Committee. His failure to include it in his initial application
further affects his ability to make the needed extraordinary showing of good moral character.
D.
39 Hamm's actions during these proceedings also raise questions about his fitness to practice law. The introduction to
Hamm's petition before this Court begins:
The consequences of this case for Petitioner take it out of the ordinary realm of civil cases. If the Committee's
recommendation is followed, it will prevent him from earning a living through practicing law. This deprivation has
consequences of the greatest import for Petitioner, who has invested years of study and a great deal of financial resources
in preparing to be a lawyer....
This language repeats nearly verbatim the language of the United States Supreme Court in Konigsberg v. State Bar, 353
U.S. 252, 77 S. Ct. 722, 1 L. Ed. 2d 810 (1957), in which the Court wrote:
While this is not a criminal case, its consequences for Konigsberg take it out of the ordinary run of civil cases. The
Committee's action prevents him from earning a living by practicing law. This deprivation has grave consequences for a
man who has spent years of study and a great deal of money in preparing to be a lawyer.
Id. at 257-58, 77 S. Ct. 722. If an attorney submits work to a court that is not his own, his actions may violate the rules of
professional conduct. Iowa Supreme Court Bd. of Prof'l Ethics & Conduct v. Lane, 642 N.W.2d 296, 299 (Iowa 2002)
("[P]lagiarism constitute[s], among other things, a misrepresentation to the court. An attorney may not engage in conduct
involving dishonesty, fraud, deceit, or misrepresentation."); see also Rule 42, ER 8.4(c) (defining professional misconduct
as including "engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation"). We are concerned about

Hamm's decision to quote from the Supreme Court's opinion without attribution and are equally troubled by his failure to
acknowledge his error. When the Committee's response pointed to Hamm's failure to attribute this language to
Konigsberg, he avoided the serious questions raised and refused to confront or apologize for his improper actions,
asserting instead: "From Petitioner's perspective, any eloquence that might be found in the Petition does not derive from
any prior case decided in any jurisdiction, but rather from the gradual development of his own potential through study,
reflection, and devotion to the duty created by his commission of murder." Hamm apparently either does not regard his
actions as improper or simply refuses to take responsibility. In either case, his actions here do not assist him in making the
requisite showing of good moral character.[10]
*662 E.
When Hamm committed first-degree murder in 1974, he demonstrated his extreme lack of good moral character. Although
this Court has not adopted a per se rule excluding an applicant whose past includes such serious criminal misconduct, we
agree with those jurisdictions that have held that an applicant with such a background must make an extraordinary
showing of rehabilitation and present good moral character to be admitted to the practice of law. Perhaps such a showing
is, in practical terms, a near impossibility. We need not decide that question today, however, because Hamm's lack of
candor before the Committee and this Court, his failure to accept full responsibility for his serious criminal misconduct,
and his failure to accept or fulfill, on a timely basis, his parental obligation of support for his son, all show that Hamm has
not met the stringent standard that applies to an applicant in his position who seeks to show his present good moral
character.
IV.
40 Hamm asserts that he was denied due process of law because two members of the Committee may have prejudged
the merits of his application. Both members, however, left the Committee proceedings when their potential bias came to
light, and neither played any role in the Committee's findings and recommendation.
41 Hamm, like all applicants for membership in the Bar, is entitled to receive due process of law. "The fundamental
requirement of due process is the opportunity to be heard `at a meaningful time and in a meaningful manner.'" Mathews v.
Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.
Ct. 1187, 14 L. Ed. 2d 62 (1965)). Also, "due process requires that a party be given a `fair trial in a fair tribunal.'" United
States v. Superior Court, 144 Ariz. 265, 280, 697 P.2d 658, 673 (1985) (quoting In re Murchison, 349 U.S. 133, 136, 75 S.
Ct. 623, 99 L. Ed. 942 (1955)). Both the Committee and this Court have provided Hamm ample opportunity to be heard
through hearings and written arguments. Moreover, this Court, and not the Committee, made the ultimate decision on
Hamm's application. Hamm received a full opportunity to be heard before a fair tribunal.
V.
42 Because James Hamm has failed to meet his burden of proving that he is of good moral character, we deny his
application for admission to the State Bar of Arizona.
CONCURRING: MICHAEL D. RYAN, ANDREW D. HURWITZ, W. SCOTT BALES, Justices, and JEFFERSON L.
LANKFORD, Judge.[*]
NOTES
[1] References in this opinion to "Rule ___" are to the Rules of the Arizona Supreme Court.
[2] The Board of Pardons and Paroles is now the Arizona Board of Executive Clemency. 1993 Ariz. Sess. Laws, ch. 255,
64.
[3] Amendments to Rules 32 through 40 became effective December 1, 2005. Order Amending Rules 32-40, 46, 62, 64 &
65, Rules of Supreme Ct., Ariz. Sup.Ct. No. R-04-0032 (June 9, 2005). In this opinion, we refer to the Rules effective
when Hamm filed his application for admission to the practice of law.

[4] The Committee was divided as to the significance of complaints made concerning Hamm's alleged unauthorized
practice of law. This Court's decision does not rely upon those allegations.
[5] Hamm's lack of candor on this question also impacts our analysis of whether he met his burden of showing present
good moral character. See Section III, subsections B through E, infra.
[6] Hamm also cannot attribute his failure to pay child support to the absence of funds. Even while in prison, Hamm
earned "somewhere around a hundred dollars a month probably," but used no portion of those earnings to discharge his
obligation.
[7] When asked if he had taken steps to formalize his agreement with his son to pay back child support, Hamm replied,
"No. No. I simply acknowledged the debt regardless whether it is a legal debt or not and whether it's an enforceable debt
or not." In its findings, the Committee noted that Hamm "has since taken it upon himself to attempt to comply with his
child support obligations," but expressed concern that he made no admission of a legal obligation to pay. Whether an
action to enforce Hamm's obligation to his son is in fact time-barred is unclear. In Huff v. Huff, the Texas Supreme Court
held that a ten-year statute of limitations under Tex.Rev. Civ. Stat. Ann. art. 5532, since repealed by Acts 1985, 69th Leg.,
ch. 959, 9(1), eff. Sept. 1, 1985, applied to violations of child support orders. 648 S.W.2d 286, 287-88 (Tex.1983)
(allowing a claim based on a 1973 divorce decree). Because Hamm's son turned eighteen in 1987, the ten-year statute of
limitations expired in 1997. In 2002, however, the Texas Supreme Court held that an administrative writ, created by
constitutional amendment in 1997, could be used to enforce a divorce decree issued in 1974, for which no order was
obtained, because the administrative writ is a "new and improved enforcement mechanism." In re A.D., 73 S.W.3d 244,
248 (Tex.2002). We need not resolve this question of Texas law, but share the Committee's concern over Hamm's failure to
formally investigate his legal obligations to his son.
[8] Rather than acknowledge any inconsistencies between his testimony and that of his son, Hamm lashed out at the
Committee's refusal to agree with Hamm's argument, which the Committee could accept only if it accepted Hamm's
testimony on this issue as credible. Hamm accused the Committee of "totally ignor[ing] the content of [Hamm's Petition]
to which it supposedly was responding."
[9] Question 25 asks:
Have you either as an adult or a juvenile, ever been served with a criminal summons, questioned, arrested, taken into
custody, indicted, charged with, tried for, pleaded guilty to or been convicted of, or ever been the subject of an
investigation concerning the violation of, any felony or misdemeanor? (In answering this question, include all incidents,
no matter how trivial or minor the infraction or whether guilty or not, whether expunged or not, whether you believe or
were advised that you need not disclose any such instance.)
[10] In addition to the matters discussed above, only four years have passed since James Hamm was absolutely
discharged. The fact that Hamm has been free of supervision for this relatively short time weighs against his admission to
the practice of law. Greenberg, 126 Ariz. at 293, 614 P.2d at 835 (noting that "[r]ehabilitation is seldom accomplished in
an instantaneous fashion" and holding that Greenberg had "not convinced [the Court] that he as yet evidences the requisite
good moral character")(emphasis added); see also In re Dortch, 860 A.2d 346, 348 (D.C.2004) (finding it "would be
erosive of public confidence in the legal profession and the administration of justice were we to admit an applicant who is
still on parole for crimes as serious as those committed by Dortch"). Because Hamm otherwise failed to establish good
moral character, however, we reached our decision without considering this factor.
[*] The Honorable Rebecca White Berch recused herself; pursuant to Article VI, Section 3 of the Arizona Constitution, the
Honorable Jefferson L. Lankford, Judge of the Court of Appeals, Division One was designated to sit in her stead.

ROLLY PENTECOSTES,
Complainant,

A.M. No. P-07-2337

[Formerly A.M. OCA IPI No. 042060-P]
Present:

- versus -

ATTY. HERMENEGILDO
MARASIGAN, Clerk of Court VI, Office of the
Clerk of Court, Regional Trial Court, Kabacan,
North Cotabato,
Respondent.

QUISUMBING, J.,
Chairperson,
CARPIO,
CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.
Promulgated:
August 3, 2007

x --------------------------------------------------------------------------------------- x
DECISION
CARPIO MORALES, J.:
Atty. Hermenegildo Marasigan (respondent), Clerk of Court VI of the Office of the Clerk of Court of the Regional
Trial Court (RTC) of Kabacan, North Cotabato, stands administratively charged with grave misconduct and conduct
unbecoming a public officer for the loss of a motorcycle-subject matter of a criminal case which was placed under his care
and custody.
The administrative case against respondent stemmed from a sworn affidavit-complaint filed on November 11,
2004 by Rolly Pentecostes (Pentecostes), the owner of a Kawasaki motorcycle, which was recovered by members of the

Philippine National Police (PNP) of Mlang, North Cotabato from suspected carnappers against whom a criminal case for
carnapping, Criminal Case No. 1010, was lodged at Branch 22, RTC, Kabacan, North Cotabato.
On the order of the trial court, the chief of police of Mlang, North Cotabato turned over the motorcycle to
respondent who acknowledged receipt thereof on August 1, 1995.
After the conduct of hearings to determine the true owner of the motorcycle, the trial court issued an Order of
November 15, 2000 for its release to Pentecostes.
Pentecostes immediately asked respondent to release the motorcycle to him. Respondent, however, told him to
wait and come back repeatedly from 2001 up to the filing of the complaint.
In his Comment filed on February 9, 2005, respondent gave the following explanation:
After the motorcycle was delivered to him by the Mlang chief of police on August 1, 1995, he requested Alex
Pedroso, a utility worker, to inspect the engine, chassis, and make, after which he issued an acknowledgement receipt
thereof.
He thereafter instructed Pedroso to bring the motorcycle to the Kabacan police station for which he (respondent)
prepared a receipt.
He and Pedroso visited and inspected the motorcycle every time a hearing on the criminal case was conducted.
When the court finally ordered the release of the motorcycle to Pentecostes on November 15, 2000, the latter refused to
receive it, claiming that it was already cannibalized and unserviceable.
From that time on until 2003, Pentecostes harassed him, demanding that he be responsible for reconditioning the
vehicle. During the latter part of 2004, upon the advice of the executive judge, he accompanied Pentecostes to the
Kabacan police station only to discover that the motorcycle was missing.
As no explanation could be offered by then Kabacan police chief Nestor Bastareche for the loss, he prepared a
letter-complaint requesting for assistance in the recovery of the motorcycle and for the conduct of an investigation.
Pentecostes refused to sign the letter, however.
He later discovered that the turnover receipt attached to the record of the criminal case and the page of the blotter
where the turnover was recorded were missing. Hence, he submitted the sworn statements of Pedroso and SPO4 Alex
Ocampo who confirmed the transfer of the vehicle from his custody to that of the Kabacan chief of police.
Belying respondents averments, Pentecostes, in his Rejoinder, contended as follows:
The vehicle was in good running condition when it was delivered to respondent by police operatives of Mlang.
Respondents act of passing the blame to the PNP of Kabacan was a clear case of hand washing as the records
showed that respondent was responsible for the safekeeping of the motorcycle. It was for this reason that he (Pentecostes)
refused to sign the letter to the chief of police of Kabacan protesting the loss. Moreover, the police blotter of PNP
Kabacan has no entry or record of the alleged turn over.
By Resolution of October 19, 2005, this Court referred the case to the Executive Judge of RTC, Kabacan, North
Cotabato, for investigation, report and recommendation.
Then Executive Judge Francisco G. Rabang, Jr. of the RTC, Kabacan, North Cotabato submitted on January 16,
2006 his findings and recommendation for the dismissal of the administrative complaint against respondent.
In his report, Judge Rabang noted that Pentecostes denied any knowledge about the turnover of the motorcycle to
the PNP of Kabacan.
On the evidence for the defense, the investigating judge found that the motorcycle was delivered by the PNP of
Mlang, North Cotabato to respondent who in turn transferred it to the PNP of Kabacan.

To Judge Rabang, what remained an issue was the actual physical condition of the motorcycle when it was turned
over to the PNP of Kabacan. The judge noted that there was no proof of Pentecostes claim that the vehicle was
cannibalized from the time it was under respondents custody until its transfer to the PNP of Kabacan.
In light of the peace and order situation in Kabacan in the late 1990s and in the early part of 2000 and the absence
of a suitable courthouse then, Judge Rabang believed that respondent had made a wise decision in turning over the
custody of the vehicle to the PNP of Kabacan.
To Judge Rabangs report and recommendation, Pentecostes filed a Motion for Reconsideration in which he
assailed the conclusion that the motorcycle was no longer roadworthy and was already cannibalized when it was delivered
to the office of the clerk of court from the Mlang police station.
Moreover, Pentecostes maintained that the alleged turnover of the motorcycle to the police station of Kabacan was
irrelevant because the proper custodian of the vehicle was respondent who should be held responsible for its eventual loss.
The Office of the Court Administrator (OCA) found the investigating judges recommendation to be sufficiently
supported by the evidence.
The OCA thus concurred with Judge Rabangs recommendation for the dismissal of the complaint against
respondent, subject to certain qualifications with respect to the physical condition of the vehicle upon its delivery to
respondent and the latters lack of authority for the turn over of the vehicle to the PNP of Kabacan.
While the investigating judge found no evidence to show the actual condition of the motorcycle at the time it was
turned over to respondent, the OCA observed that the evidence presented during the investigation supported a finding that
the vehicle had missing parts when it was delivered to respondent.
From the testimony of Pentecostes witness SPO2 Servando Guadalupe, the OCA noted, the motorcycle was
loaded into a service vehicle for delivery to respondent. This fact, according to the OCA, could only mean that the vehicle
could not run by itself.
Although the OCA agreed with the investigating judge that the evidence sufficiently proved that the vehicle was
turned over to the PNP of Kabacan where it got lost, it noted that respondent failed to ask prior authority from the trial
court to transfer its custody. Only when respondent was having problems with Pentecostes did he bring the matter to the
attention of the executive judge, the OCA added.
Accordingly, the OCA recommended that respondent be reminded to secure prior authority from the court before
evidence is turned over to any authorized government office or agency and that he be warned to be more careful to
prevent any similar incident from arising in the future.
The finding of the OCA insofar as respondents lack of authority to transfer the motorcycle is well taken, on
account of which respondent is administratively liable for simple misconduct.
It is the duty of the clerk of court to keep safely all records, papers, files, exhibits and public property committed
to his charge. Section D (4), Chapter VII of the 1991 Manual For Clerks of Court (now Section E[2], paragraph 2.2.3,
Chapter VI of the 2002 Revised Manual for Clerks of Court) provides:
All exhibits used as evidence and turned over to the court and before the case/s involving such
evidence shall have been terminated shall be under the custody and safekeeping of the Clerk of Court.
Similarly, Section 7 of Rule 136 of the Rules of Court, provides:
SEC. 7. Safekeeping of property. The clerk shall safely keep all record, papers, files, exhibits and
public property committed to his charge, including the library of the court, and the seals and furniture
belonging to his office.

From the above provisions, it is clear that as clerk of court of the RTC, Kabacan, respondent was charged with the
custody and safekeeping of Pentecostes motorcycle, and to keep it until the termination of the case, barring circumstances
that would justify its safekeeping elsewhere, and upon the prior authority of the trial court.
No explanation was offered by respondent, however, for turning over the motorcycle. But whatever the reason
was, respondent was mandated to secure prior consultations with and approval of the trial court.
Moreover disconcerting is the fact that the acknowledgment receipt evidencing the turnover of the motorcycle
from the trial court to the Kabacan police station was lost from the records of Criminal Case No. 1010, with nary a lead as
to who was responsible for it. This circumstance is viewed with disfavor as it reflects badly on the safekeeping of court
records, a duty entrusted to respondent as clerk of court.
With regard to the condition of the vehicle upon its delivery to respondent, the evidence indicates that it was still
serviceable when it was delivered by the Mlang police to respondent and at the time it was turned over by respondent to
the Kabacan police station. The Joint Affidavit of SPO2 Guadalupe and Police Inspector Romeo Banaybanay categorically
stated that the motorcycle was in good running condition when they delivered it to respondent. Later during his testimony,
Guadalupe narrated that he was the the driver of the service jeep while Chief Banaybanay was on board the motorcycle
when the vehicle was turned over to respondent on August 1, 1995.
Even respondents following testimony that:
x x x when x x x [he] received the motorcycle for safekeeping, he immediately delivered together with
Alex Pedroso [sic] because it could be noted that respondent do[es] not know how to drive a motorcycle,
I requested x x x Alex Pedroso to accompany me and deliver [it] to [the] chief of police of Kabacan
(Italics supplied)
suggests that the vehicle was in running condition when respondent took and subsequently transferred its custody to the
Kabacan police.
This Court has repeatedly emphasized that clerks of court are essential and ranking officers of our judicial system
who perform delicate functions vital to the prompt and proper administration of justice. Their duties include the efficient
recording, filing and management of court records and, as previously pointed out, the safekeeping of exhibits and public
property committed to their charge.
Clearly, they play a key role in the complement of the court and cannot be permitted to slacken on their jobs under
one pretext or another. They cannot err without affecting the integrity of the court or the efficient administration of justice.
The same responsibility bears upon all court personnel in view of their exalted positions as keepers of public faith.
The exacting standards of ethics and morality imposed upon court employees are reflective of the premium placed on the
image of the court of justice, and that image is necessarily mirrored in the conduct, official or otherwise, of court
personnel. It becomes the imperative and sacred duty of everyone charged with the dispensation of justice, from the judge
to the lowliest clerk, to maintain the courts good name and standing as true temples of justice.
By transferring Pentecostes motorcycle without authority, respondent failed to give premium to his avowed duty
of keeping it under his care and possession. He must, therefore, suffer the consequences of his act or omission, which is
akin to misconduct.
Misconduct is a transgression of some established or definite rule of action; more particularly, it is an unlawful
behavior by the public officer. The misconduct is grave if it involves any of the additional elements of corruption, willful
intent to violate the law or to disregard established rules, which must be proved by substantial evidence. Otherwise, the
misconduct is only simple, as in this case.

The Revised Uniform Rules on Administrative Cases in the Civil Service (Memorandum Circular No. 19, Series
of 1999) classifies simple misconduct as a less grave offense, punishable by suspension of One Month and One Day to Six
Months. Considering that this is respondents first offense and no taint of bad faith has been shown by his actuations, a 15day suspension without pay is deemed appropriate.
WHEREFORE, respondent, Clerk of Court Hermenegildo Marasigan, is found guilty of Simple Misconduct. He
is SUSPENDED for 15 days without pay, with a stern WARNING that a repetition of the same or similar act shall be
dealt with more severely.
SO ORDERED.

Re: Non-disclosure Before the Judicial and

Bar Council of the Administrative Case
Filed Against Judge Jaime V. Quitain, in
His Capacity as the then Asst. Regional
Director of the National Police
Commission, Regional Office XI, Davao
City.

JBC No. 013

Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO-MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO,
NACHURA, and
REYES, JJ.

Promulgated:

August 22, 2007

x-----------------------------------------------------------------------------------------x
DECISION
PER CURIAM:
Judge Jaime Vega Quitain was appointed Presiding Judge of the Regional Trial Court (RTC), Branch 10, Davao
City on May 17, 2003. Subsequent thereto, the Office of the Court Administrator (OCA) received confidential information
that administrative and criminal charges were filed against Judge Quitain in his capacity as then Assistant Regional
Director, National Police Commission (NAPOLCOM), Regional Office 11, Davao City, as a result of which he was
dismissed from the service per Administrative Order (A.O.) No. 183 dated April 10, 1995.

In the Personal Data Sheet (PDS) submitted to the Judicial and Bar Council (JBC) on November 26, 2001, Judge
Quitain declared that there were five criminal cases (Criminal Cases Nos. 18438, 18439, 22812, 22813, and 22814) filed
against him before the Sandiganbayan, which were all dismissed. No administrative case was disclosed by Judge Qutain
in his PDS.

To confirm the veracity of the information, then Deputy Court Administrator (DCA) Christopher O. Lock (now
Court Administrator) requested from the Sandiganbayan certified copies of the Order(s) dismissing the criminal cases. On
even date, letters were sent to the NAPOLCOM requesting for certified true copies of documents relative to the
administrative complaints filed against Judge Quitain, particularly A.O. No. 183 dated April 10, 1995 dismissing him from
the service. Likewise, DCA Lock required Judge Quitain to explain the alleged misrepresentation and deception he
committed before the JBC.

In a letter dated November 28, 2003, the NAPOLCOM furnished the Office of the Court Administrator (OCA) a
copy of A.O. No. 183 showing that respondent Judge was indeed dismissed from the service for Grave Misconduct for
falsifying or altering the amounts reflected in disbursement vouchers in support of his claim for reimbursement of
expenses. A.O. 183 partly reads:
THE PRESIDENT OF THE PHILIPPINES
ADMINISTRATIVE ORDER NO. 183

DISMISSING FROM THE SERVICE ASSISTANT REGIONAL DIRECTOR JAIME VEGA QUITAIN,
NATIONAL POLICE COMMISSION, REGIONAL OFFICE NO. 11

This refers to the administrative complaint against Jaime Vega Quitain, Assistant Regional
Director, National Police Commission (NAPOLCOM), Regional Office No. 11, Davao City, for Grave
Misconduct (Violation of Art. 48, in relation to Arts. 171 and 217 of the Revised Penal Code and Art. IX
of the Civil Service Law) filed by the NAPOLCOM.

xxxx

After circumspect study, I am in complete accord with the above findings and recommendation of
the NAPOLCOM.
It was established that the falsification could not have been consummated without respondents
direct participation, as it was upon his direction and approval that disbursement vouchers were prepared
showing the falsified amount. The subsequent endorsement and encashment of the check by respondent
only shows his complete disregard for the truth which per se constitutes misconduct and dishonesty of the
highest order. By any standard, respondent had manifestly shown that he is unfit to discharge the
functions of his office. Needless to stress, a public office is a position of trust and public service demands
of every government official or employee, no matter how lowly his position may be, the highest degree of
responsibility and integrity and he must remain accountable to the people. Moreover, his failure to adduce
evidence in support of his defense is a tacit admission of his guilt. Let this be a final reminder to him that
the government is serious enough to [weed out] misfits in the government service, and it will not be
irresolute to impose the severest sanction regardless of personalities involved. Accordingly, respondents
continuance in office becomes untenable.
WHEREFORE, and as recommended by the NAPOLCOM, Assistant Regional Director Jaime
Vega Quitain is hereby DISMISSED from the service, with forfeiture of pay and benefits, effective
upon receipt of a copy hereof.

Done in the City of Manila, this 10th day of April in the year of our Lord, nineteen hundred and
ninety-five.

(Sgd. by President Fidel V. Ramos)

By the President:
(Sgd.)
TEOFISTO T. GUINGONA, JR.
Executive Secretary

In a letter dated October 22, 2003 addressed to DCA Lock, Judge Quitain denied having committed any
misrepresentation before the JBC. He alleged that during his interview, the members thereof only inquired about the status
of the criminal cases filed by the NAPOLCOM before the Sandiganbayan, and not about the administrative case
simultaneously filed against him. He also alleged that he never received from the Office of the President an official copy
of A.O. No. 183 dismissing him from the service.

Thereafter, DCA Lock directed Judge Quitain to explain within ten (10) days from notice why he did not include
in his PDS, which was sworn to before a notary public on November 22, 2001, the administrative case filed against him,
and the fact of his dismissal from the service.

In his letters dated March 13, 2004 and June 17, 2004, respondent explained that during the investigation of his
administrative case by the NAPOLCOM Ad Hoc Committee, one of its members suggested to him that if he resigns from
the government service, he will no longer be prosecuted; that following such suggestion, he tendered his irrevocable
resignation from NAPOLCOM on June 1, 1993 which was immediately accepted by the Secretary of the Department of
Interior and Local Governments; that he did not disclose the case in his PDS because he was of the honest belief that he
had no more pending administrative case by reason of his resignation; that his resignation amounted to an automatic
dismissal of his administrative case considering that the issues raised therein became moot and academic; and that had he
known that he would be dismissed from the service, he should not have applied for the position of a judge since he knew
he would never be appointed.

Finding reasonable ground to hold him administratively liable, then Court Administrator Presbitero J. Velasco, Jr.
(now a member of this Court) and then DCA Lock submitted a Memorandum dated September 3, 2004 to then Chief
Justice Hilario G. Davide, Jr., which states:

In order that this Office may thoroughly and properly evaluate the matter, we deemed it necessary
to go over the records of the subject administrative case against Judge Jaime V. Quitain, particularly the
matter that pertains to Administrative Order No. 183 dated 10 April 1995. On 15 May 2004, we examined
the records of said administrative case on file with the NAPOLCOM, Legal Affairs Service, and secured
certified [true] copies of pertinent documents.
After careful perusal of the documents and records available, including the letters-explanations of
Judge Jaime V. Quitain, this Office finds that there are reasonable grounds to hold him administratively
liable.
An examination of the Personal Data Sheet submitted by Judge Quitain with the Judicial and
Bar Council, which was subscribed and sworn to before Notary Public Bibiano M. Bustamante of Davao
City on 22 November 2001, reveals that he concealed material facts and even committed perjury in
having answered yes to Question No. 24, but without disclosing the fact that he was dismissed from
the government service. Question No. 24 and his answer thereto are hereunder quoted as follows:

24. Have you ever been charged with or convicted of or otherwise imposed a
sanction for the violation of any law, decree, ordinance or regulation by any court,
tribunal or any other government office, agency or instrumentality in the Philippines
or in any foreign country or found guilty of an administrative offense or imposed any
administrative sanction? [ / ] Yes [ ] No. If your answer is Yes to any of the questions,
give particulars.
But all dismissed (acquitted)
Sandiganbayan Criminal Cases Nos. 18438, 18439
Date of [Dismissal] August 2, 1995
Sandiganbayan Criminal Cases Nos. 22812, 22813, 22814
Date of [Dismissal] July 17, 2000

As borne out by the records, Judge Quitain deliberately did not disclose the fact that he was
dismissed from the government service. At the time he filled up and submitted his Personal Data Sheet
with the Judicial and Bar Council, he had full knowledge of the subject administrative case, as well as
Administrative Order No. 183 dismissing him from the government service. Based on the certified
documents secured from the Office of the NAPOLCOM, the following data were gathered:
1. In compliance with the Summons dated 19 March 1993, signed by Commissioner Alexis C.
Canonizado, Chairman, Ad Hoc Committee of the NAPOLCOM, Judge Jaime V. Quitain, through Atty.
Pedro S. Castillo, filed his Answer (dated 29 March 1993) to the administrative complaint lodged against
him by the Napolcom;
2. On 30 March 1993, Judge Quitain received a copy of the Notice of Hearing of even date,
signed by Mr. Canonizado, in connection with the formal hearing of the subject administrative case
scheduled on 30 April 1993;
3. Administrative Order No. 183, dismissing Judge Quitain from the service, was dated 10 April
1995. On 18 April 1995, newspaper items relative to the dismissal of Judge Quitain were separately
published in the Mindanao Daily Mirror and in the Mindanao Times, the contents of which read as
follows:
Mindanao Times:
Dismissed NAPOLCOM chief airs appeal
Former National Police Commission (Napolcom) acting regional director Jaime
Quitain yesterday appealed for understanding to those allegedly behind his ouster from
his post two years ago. Quitain, who was one of the guests in yesterdays Kapehan sa
Dabaw, wept unabashedly as he read his prepared statement on his dismissal from
government service.
Quitain claimed that after Secretary Luis Santos resigned from the Department of
Interior and Local Governments in 1991, a series of administrative charges were hurled
against him by some regional employees.
I was dismissed from the Napolcom Office without due process, Quitain said.
He also said he had no idea as to who the people (sic) are behind the alleged
smear campaign leveled against him.

Whoever is behind all this, I have long forgiven you. My only appeal to you, give
me my day in court, give me the chance to clear my name, the only legacy that I can
leave to my children, Quitain said in his statement.
It is my constitutional right to be present in all proceedings of the administrative
case, he also said.
Quitain was appointed Assistant Regional Director of Napolcom in 1991 by then
President Corazon Aquino upon the recommendation of Secretary Santos. He was later
designated Napolcom acting regional director for Region XI.
Mindanao Daily Mirror:
Quitain vows to clear name Former assistant regional director Jaime Quitain of
the National Police Commission (Napolcom) vowed yesterday to clear his name in court
from charges of tampering with an official receipt.
Quitain[,] who is running for a council seat, expressed confidence that he would
soon be vindicated in court against the group that plotted his ouster from office: He said
his only appeal was for Interior and Local Government Secretary Rafael Alunan to grant
him his day in court to answer the charges.
Whoever was behind all of these things, I have long forgiven them, Quitain said.
Just give me the chance to clear my name because this is the only legacy that I
can give my children, Quitain said.
While the records of the subject administrative case on file with the NAPOLCOM Office does
not bear proof of receipt of Administrative Order No. 183 by Judge Quitain, the same does not necessarily
mean that he is totally unaware of said Administrative Order. As shown by the above-quoted newspaper
clippings, Judge Quitain even aired his appeal and protest to said Administrative Order.
xxxx
Judge Quitain asseverated that he should not have applied with the JBC had he known that he was
administratively charged and was consequently dismissed from the service since he will not be
considered. But this may be the reason why he deliberately concealed said fact. His claim that he did not
declare the administrative case in his Personal Data Sheet because of his honest belief that there is no
administrative or criminal case that would be filed against him by reason of his resignation and the
assurance made by the NAPOLCOM that no administrative case will be filed, does not hold water. It is
rather absurd for him to state that his resignation from the NAPOLCOM amounts to an automatic
dismissal of whatever administrative case filed against him because when he resigned and relinquished
his position, the issues raised therein became moot and academic. He claims that he did not bother to
follow up the formal dismissal of the administrative case because of said belief. All these are but futile
attempts to exonerate himself from administrative culpability in concealing facts relevant and material to
his application in the Judiciary. As a member of the Bar, he should know that his resignation from the
NAPOLCOM would not obliterate any administrative liability he may have incurred[,] much less, would
it result to the automatic dismissal of the administrative case filed against him. The acceptance of his
resignation is definitely without prejudice to the continuation of the administrative case filed against him.
If such would be the case, anyone charged administratively could easily escape from administrative
sanctions by the simple expedient of resigning from the service. Had it been true that Judge Quitain
honestly believes that his resignation amounts to the automatic dismissal of his administrative case, the
least he could have done was to personally verify the status thereof. He should not have relied on the
alleged assurance made by the NAPOLCOM.
On the strength of his misrepresentation, Judge Quitain misled the Judicial and Bar Council by
making it appear that he had a clean record and was qualified to join the Judiciary. His prior dismissal

from the government service is a blot on his record, which has gone [worse] and has spread even more
because of his concealment of it. Had he not concealed said vital fact, it could have been taken into
consideration when the Council acted on his application. His act of dishonesty renders him unfit to join
the Judiciary, much less remain sitting as a judge. It even appears that he was dismissed by the
NAPOLCOM for misconduct and dishonesty.
Thus, the OCA recommended that: (1) the instant administrative case against respondent be docketed as an
administrative matter; and (2) that he be dismissed from the service with prejudice to his reappointment to any position in
the government, including government-owned or controlled corporations, and with forfeiture of all retirement benefits
except accrued leave credits.

Respondent was required to Comment.

In compliance with the Courts Resolution respondent filed his Comment contending that before he filed his
application for RTC Judge with the JBC, he had no knowledge that he was administratively dismissed from the
NAPOLCOM service as the case was secretly heard and decided. He averred that:
1.
Being a religious lay head and eventually the Pastoral Head of the Redemptorist
Eucharistic Lay Ministry in Davao City and the surrounding provinces, he was recruited as one of the
political followers of then Mayor Luis T. Santos of Davao City, who later became the Secretary of the
Department of Interior and Local Government (DILG) and was instrumental in his appointment as
Assistant Regional Director of the National Police Commission, Region XI;
2. After Secretary Luis T. Santos was replaced as DILG Secretary, the political followers of his
successor, who were the same followers involved in the chain of corruption prevalent in their department,
began quietly pressing for his (Quitain) resignation as Assistant Regional Director;
3. Finding difficulty in attacking his honesty and personal integrity, his detractors went to the
extent of filing criminal charges against him;
4. Before these criminal charges were scheduled for trial, he was being convinced to resign in
exchange for the dismissal of said criminal charges, but when he refused to do so, he was unjustifiably
detailed or exiled at the DILG central office in Manila;
5. Upon his exile in Manila for several months, he realized that even his immediate superiors
cooperated with his detractors in instigating for his removal. Hence, upon advice of his relatives, friends
and the heads of their pastoral congregation, he resigned from his position in NAPOLCOM on condition
that all pending cases filed against him, consisting of criminal cases only, shall be dismissed, as in fact
they were dismissed;
6. From then on he was never formally aware of any administrative case filed against him.
Hence, when he submitted his Personal Data Sheet before the Judicial and Bar Council in support of his
application as RTC judge, he made the following answer in Question No. 23:
23. Is there any pending civil, criminal, or administrative (including
disbarment) case or complaint filed against you pending before any court, prosecution
office, any other office, agency or instrumentality of the government, or the Integrated
Bar of the Philippines?
He could only give a negative answer since there was no pending administrative case filed against
him that he knows;
7. Had he known that there was an administrative case filed against him he would have desisted
from applying as a judge and would have given his full attention to the said administrative case, if only to
avoid ensuing embarrassment; and

8. The filing of the administrative case against him as well as the proceedings had thereon and
the decision rendered therein, without his knowledge, could have probably occurred during his exile
period when he was detailed indefinitely in Manila. The proceedings had in the said administrative case
are null and void since he was denied due process.
Respondents Comment was submitted to the OCA for evaluation, report and recommendation.
OCA submitted its Memorandum dated August 11, 2005 stating therein that it was adopting its earlier findings
contained in its Memorandum dated September 3, 2004. Based on the documents presented, it cannot be denied that at the
time Judge Quitain applied as an RTC judge, he had full knowledge of A.O. No. 183 dismissing him from government
service. Considering that Judge Quitains explanations in his Comment are but mere reiterations of his allegations in the
previous letters to the OCA, the OCA maintained its recommendation that Judge Quitain be dismissed from the service
with prejudice to his reappointment to any position in the government, including government-owned or controlled
corporations, and with forfeiture of all retirement benefits except accrued leave credits.
The Court fully agrees with the disquisition and the recommendation of the OCA.

It behooves every prospective appointee to the Judiciary to apprise the appointing authority of every matter
bearing on his fitness for judicial office, including such circumstances as may reflect on his integrity and probity. These
are qualifications specifically required of appointees to the Judiciary by Sec. 7(3), Article VIII of the Constitution.

In this case, Judge Quitain failed to disclose that he was administratively charged and dismissed from the service
for grave misconduct per A.O. No. 183 dated April 10, 1995 by no less than the former President of the Philippines. He
insists that on November 26, 2001 or before he filed with the JBC his verified PDS in support of his application for RTC
Judge, he had no knowledge of A.O. No. 183; and that he was denied due process. He further argues that since all the
criminal cases filed against him were dismissed on August 2, 1995 and July 17, 2000, and considering the fact that he
resigned from office, his administrative case had become moot and academic.

Respondents contentions utterly lack merit.

No amount of explanation or justification can erase the fact that Judge Quitain was dismissed from the service and
that he deliberately withheld this information. His insistence that he had no knowledge of A.O. No. 183 is belied by the
newspaper items published relative to his dismissal. It bears emphasis that in the Mindanao Times dated April 18, 1995,
Judge Quitain stated in one of his interviews that I was dismissed from the (Napolcom) office without due process. It also
reads: Quitain, who was one of the guests in yesterdays Kapehan sa Dabaw, wept unabashedly as he read his prepared
statement on his dismissal from the government service. Neither can we give credence to the contention that he was
denied due process. The documents submitted by the NAPOLCOM to the OCA reveal that Commissioner Alexis C.
Canonizado, Chairman Ad Hoc Committee, sent him summons on March 19, 1993 informing him that an administrative
complaint had been filed against him and required him to file an answer. Then on March 29, 1993, respondent, through his
counsel, Atty. Pedro Castillo, filed an Answer. In administrative proceedings, the essence of due process is simply an
opportunity to be heard, or an opportunity to explain ones side or opportunity to seek a reconsideration of the action or
ruling complained of. Where opportunity to be heard either through oral arguments or through pleadings is accorded, there
is no denial of due process. Furthermore, as we have earlier mentioned and which Judge Quitain ought to know, cessation
from office by his resignation does not warrant the dismissal of the administrative complaint filed against him while he
was still in the service nor does it render said administrative case moot and academic. Judge Quitain was removed from
office after investigation and was found guilty of grave misconduct. His dismissal from the service is a clear proof of his
lack of the required qualifications to be a member of the Bench.

More importantly, it is clear that Judge Quitain deliberately misled the JBC in his bid to gain an exalted position
in the Judiciary. In Office of the Court Administrator v. Estacion, Jr., this Court stressed:

x x x The important consideration is that he had a duty to inform the appointing authority
and this Court of the pending criminal charges against him to enable them to determine on the
basis of his record, eligibility for the position he was seeking. He did not discharge that duty. His
record did not contain the important information in question because he deliberately withheld and thus
effectively hid it. His lack of candor is as obvious as his reason for the suppression of such a vital
fact, which he knew would have been taken into account against him if it had been disclosed.

Thus, we find respondent guilty of dishonesty. Dishonesty means disposition to lie, cheat or defraud;
unworthiness; lack of integrity.

Section 8(2), Rule 140 of the Rules of Court classifies dishonesty as a serious charge. Section 11, same Rules,
provides the following sanctions:

SEC. 11. Sanctions. A. If the respondent is guilty of a serious charge, any of the following
sanctions may be imposed:
1.
Dismissal from the service, forfeiture of all or part of the benefits as the
Court may determine, and disqualification from reinstatement or appointment to any
public office, including government-owned or controlled corporations. Provided,
however, That the forfeiture of benefits shall in no case include accrued leave credits;
2.
Suspension from office without salary and other benefits for more than
three (3) but not exceeding six (6) months; or
3.

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

In Re: Inquiry on the Appointment of Judge Enrique A. Cube, we held:

By his concealment of his previous dismissal from the public service, which the Judicial and Bar
Council would have taken into consideration in acting on his application, Judge Cube committed an act of
dishonesty that rendered him unfit to be appointed to, and to remain now in, the Judiciary he has tarnished
with his falsehood.
WHEREFORE, Judge Enrique A. Cube of the Metropolitan Trial Court of Manila is DISMISSED
with prejudice to his reappointment to any position in the government, including government-owned or
controlled corporations, and with forfeiture of all retirement benefits. This decision is immediately
executory.

We cannot overemphasize the need for honesty and integrity on the part of all those who are in the service of the
Judiciary. We have often stressed that the conduct required of court personnel, from the presiding judge to the lowliest
clerk of court, must always be beyond reproach and circumscribed with the heavy burden of responsibility as to let them
be free from any suspicion that may taint the Judiciary. We condemn, and will never countenance any conduct, act or
omission on the part of all those involved in the administration of justice, which would violate the norm of public
accountability and diminish or even just tend to diminish the faith of the people in the Judiciary.

Considering the foregoing, Judge Quitain is hereby found guilty of grave misconduct. He deserves the supreme
penalty of dismissal.

However, on August 9, 2007, the Court received a letter from Judge Quitain addressed to the Chief Justice stating
that he is tendering his irrevocable resignation effective immediately as Presiding Judge of the Regional Trial Court,
Branch 10, Davao City. Acting on said letter, the Court Resolved to accept the irrevocable resignation of Judge Jaime V.
Quitain effective August 15, 2007, without prejudice to the decision of the administrative case.

Verily, the resignation of Judge Quitain which was accepted by the Court without prejudice does not render moot
and academic the instant administrative case. The jurisdiction that the Court had at the time of the filing of the
administrative complaint is not lost by the mere fact that the respondent judge by his resignation and its consequent
acceptance without prejudice by this Court, has ceased to be in office during the pendency of this case. The Court retains
its authority to pronounce the respondent official innocent or guilty of the charges against him. A contrary rule would be
fraught with injustice and pregnant with dreadful and dangerous implications. Indeed, if innocent, the respondent official
merits vindication of his name and integrity as he leaves the government which he has served well and faithfully; if guilty,
he deserves to receive the corresponding censure and a penalty proper and imposable under the situation.

WHEREFORE, in view of our finding that JUDGE JAIME V. QUITAIN is guilty of grave misconduct which
would have warranted his dismissal from the service had he not resigned during the pendency of this case, he is hereby
meted the penalty of a fine of P40,000.00. It appearing that he has yet to apply for his retirement benefits and other
privileges, if any, the Court likewise ORDERS the FORFEITURE of all benefits, except earned leave credits which Judge
Quitain may be entitled to, and he is PERPETUALLY DISQUALIFIED from reinstatement and appointment to any
branch, instrumentality or agency of the government, including government-owned and/or controlled corporations.
This Decision is immediately executory.
Let a copy of this Decision be attached to Judge Jaime V. Quitains 201 File.

SO ORDERED.

RODOLFO M. BERNARDO,

Adm. Case No. 2984

Complainant,
Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO, JR.,
NACHURA, and
REYES, JJ.

- versus -

Promulgated:

August 31, 2007

ATTY. ISMAEL F. MEJIA,

Respondent.
x-----------------------------------------------------------------------------------------x

RESOLUTION

NACHURA, J.:

Before the Court is a petition for review of Administrative Case No. 2984 with plea for reinstatement in the
practice of law filed by Ismael F. Mejia (Mejia) who is already seventy-one years old and barred from the practice of law
for fifteen years.
The antecedent facts that led to Mejias disbarment are as follows.

On January 23, 1987, Rodolfo M. Bernardo, Jr. accused his retained attorney, Ismael F. Mejia, of the following
administrative offenses:
1)

misappropriating and converting to his personal use:

a)
part of the sum of P27,710.00 entrusted to him for payment of real estate
taxes on property belonging to Bernardo, situated in a subdivision known as Valle Verde
I; and

b)
part of another sum of P40,000.00 entrusted to him for payment of taxes
and expenses in connection with the registration of title of Bernardo to another property
in a subdivision known as Valle Verde V;
2)

falsification of certain documents, to wit:

a)
a special power of attorney dated March 16, 1985, purportedly executed
in his favor by Bernardo (Annex P, par. 51, complainants affidavit dates October 4,
1989);
b)

a deed of sale dated October 22, 1982 (Annex O, par. 48, id.); and

c)
a deed of assignment purportedly executed by the spouses Tomas and
Remedios Pastor, in Bernardos favor (Annex Q, par. 52, id.);
3)
issuing a check, knowing that he was without funds in the bank, in payment of a loan
obtained from Bernardo in the amount of P50,000.00, and thereafter, replacing said check with others
known also to be insufficiently funded.
On July 29, 1992, the Supreme Court En Banc rendered a Decision Per Curiam, the dispositive portion of which
reads:
WHEREFORE, the Court DECLARES the [sic] respondent, Atty. Ismael F. Mejia, guilty of all
the charges against him and hereby imposes on him the penalty of DISBARMENT. Pending finality of
this judgment, and effective immediately, Atty. Ismael F. Mejia is hereby SUSPENDED from the practice
of law. Let a copy of this Decision be spread in his record in the Bar Confidants Office, and notice thereof
furnished the Integrated Bar of the Philippines, as well as the Court Administrator who is DIRECTED to
inform all the Courts concerned of this Decision.
SO ORDERED.
On June 1, 1999, Mejia filed a Petition praying that he be allowed to reengage in the practice of law.
6, 1999, the Supreme Court En Banc issued a Resolution denying the petition for reinstatement.

On July

On January 23, 2007, Mejia filed the present petition for review of Administrative Case No. 2984 with a plea for
reinstatement in the practice of law. No comment or opposition was filed against the petition.
Whether the applicant shall be reinstated in the Roll of Attorneys rests to a great extent on the sound discretion of
the Court. The action will depend on whether or not the Court decides that the public interest in the orderly and impartial
administration of justice will continue to be preserved even with the applicants reentry as a counselor at law. The applicant
must, like a candidate for admission to the bar, satisfy the Court that he is a person of good moral character, a fit and
proper person to practice law. The Court will take into consideration the applicants character and standing prior to the
disbarment, the nature and character of the charge/s for which he was disbarred, his conduct subsequent to the disbarment,
and the time that has elapsed between the disbarment and the application for reinstatement.
In the petition, Mejia acknowledged his indiscretions in the law profession. Fifteen years had already elapsed
since Mejias name was dropped from the Roll of Attorneys. At the age of seventy-one, he is begging for forgiveness and
pleading for reinstatement. According to him, he has long repented and he has suffered enough. Through his
reinstatement, he wants to leave a legacy to his children and redeem the indignity that they have suffered due to his
disbarment.
After his disbarment, he put up the Mejia Law Journal, a publication containing his religious and social writings.
He also organized a religious organization and named it El Cristo Movement and Crusade on Miracle of Heart and Mind.
The Court is inclined to grant the present petition. Fifteen years has passed since Mejia was punished with the
severe penalty of disbarment. Although the Court does not lightly take the bases for Mejias disbarment, it also cannot
close its eyes to the fact that Mejia is already of advanced years. While the age of the petitioner and the length of time
during which he has endured the ignominy of disbarment are not the sole measure in allowing a petition for reinstatement,
the Court takes cognizance of the rehabilitation of Mejia. Since his disbarment in 1992, no other transgression has been
attributed to him, and he has shown remorse. Obviously, he has learned his lesson from this experience, and his
punishment has lasted long enough. Thus, while the Court is ever mindful of its duty to discipline its erring officers, it also

knows how to show compassion when the penalty imposed has already served its purpose. After all, penalties, such as
disbarment, are imposed not to punish but to correct offenders.
We reiterate, however, and remind petitioner that the practice of law is a privilege burdened with conditions.
Adherence to the rigid standards of mental fitness, maintenance of the highest degree of morality and faithful compliance
with the rules of the legal profession are the continuing requirements for enjoying the privilege to practice law.
WHEREFORE, in view of the foregoing, the petition for reinstatement in the Roll of Attorneys by Ismael F.
Mejia is hereby GRANTED.
SO ORDERED.

EN BANC

GOVERNMENT SERVICE

A.M. No. RTJ-04-1831

INSURANCE SYSTEM,

(Formerly OCA IPI No. 99-796-RTJ)

Petitioner,
Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
-versus-

CORONA,
CARPIO MORALES,
CALLEJO, SR.,
AZCUNA
TINGA,
CHICO-NAZARIO,
GARCIA and
VELASCO, JR., JJ.

HON. VICENTE A. PACQUING,

Presiding Judge, Branch 28 and
MARIO ANACLETO M. BAEZ, JR.,
Clerk of Court, RTC, San Fernando
City, La Union,
Respondents.
Promulgated:

February 2, 2007
x----------------------------------------------------x

RESOLUTION
CORONA, J.
In 1971, Bengson Commercial Building, Inc. (Bengson) borrowed P4,250,000 from petitioner Government
Service Insurance System (GSIS), secured by real estate and chattel mortgages. When Bengson defaulted in the payment
of the amortizations, petitioner extrajudicially foreclosed the mortgaged properties and sold them at public auction where
it emerged as the highest bidder.

In 1977, Bengson filed an action in the Regional Trial Court (RTC) of San Fernando, La Union, Branch 26 to
annul the extrajudicial foreclosure. The trial court, through Judge Antonio Fineza, declared the foreclosure void and
directed petitioner to restore to Bengson the foreclosed properties, pay damages and costs of suit.
Petitioner appealed the decision to the Court of Appeals (CA). The CA affirmed with modification the trial courts
decision and remanded the case for reception of evidence on the costs of suit and determination of the replacement value
of the properties should petitioner fail to return them. The CA decision became final and executory on February 10, 1988.
When petitioner failed to return the foreclosed properties, the new presiding judge of Branch 26, respondent
Judge Vicente A. Pacquing, ordered it to pay Bengson the equivalent value of the foreclosed properties. Thereafter,
Bengson moved that it be permitted to present evidence on the costs of suit. On April 6, 1995, the trial court directed
petitioner to pay Bengson P31 million as costs of suit. This order became final on April 24, 1995.
Petitioner filed an urgent omnibus motion with the court a quo stating that its counsel, Atty. Rogelio Terrado, went
on AWOL and never informed it of respondent judges order. This motion, treated as petition for relief from judgment by
respondent judge, was dismissed on January 16, 1997.
Petitioner filed a motion for reconsideration (MR) but respondent judge denied the same on April 23, 1998.
Petitioner then instituted a special civil action for certiorari in the CA docketed as CA-G.R. SP No. 47669
assailing the court a quos denial of its petition for relief from judgment. The CA, however, dismissed CA-G.R. SP No.
47669 for having been filed out of time as three years had elapsed since the order awarding Bengson P31 million as costs
of suit became final and executory.
Petitioner filed an MR of the above decision and, while it was pending resolution at the CA, respondent judge, on
December 16, 1998, issued an alias writ of execution ordering petitioner to pay Bengson the P31 million. Pursuant
thereto, respondent Atty. Mario Anacleto M. Baez, acting as sheriff of Branch 26, executed the writ and levied on
petitioners shares of stock in San Miguel Corporation (SMC) worth P6.2 million. The garnished shares were later sold at
public auction with Bengson as the only bidder.
Aggrieved, petitioner moved to quash the writ on the ground that its funds and properties were exempt from
garnishment, levy and execution under Section 39 of RA 8291. Respondent judge denied the motion stating that only
funds and properties that were necessary to maintain petitioners actuarial solvency, like contributions of GSIS members,
were exempt from garnishment, levy and execution under RA 8291.
Petitioner filed its MR of the trial courts denial of its motion to quash the writ but this was rejected as well.
Via a special civil action for certiorari with an urgent motion for the issuance of a writ of preliminary injunction
and/or restraining order (TRO), petitioner came to us questioning the garnishment and sale on execution of its SMC
shares. The petition was docketed as G.R. No. 136874.
We referred G.R. No. 136874 to the CA for consideration and adjudication on the merits. In the CA, it was redocketed as CA-G.R. SP. No. 51131 and was consolidated with CA-G.R. SP. No. 47669.
Later, the CA dismissed both petitions.

Petitioner questioned the CAs dismissal of CA-G.R. SP. No. 47669 via a petition for review in this Court
docketed as G.R. No. 137448, the ultimate issue of which was the existence of grounds for relief from the P31 million
costs of suit judgment by respondent judge.
Later, petitioner filed another case, a special civil action for certiorari in this Court, this time contesting the CAs
dismissal of its petition in CA-G.R. No. 51131. Docketed as G.R. No. 141454, the petition ascribed grave abuse of
discretion on the part of the CA for upholding the trial courts issuance of the alias writ of execution and the subsequent
garnishment and sale of its shares in SMC.
Petitioner also filed this administrative complaint against respondents for ignorance of the law, bias and partiality,
and for violation of RA 8291. In its complaint, petitioner alleged:
In fine, [respondent judge] refused to take cognizance of [Section 39, RA 8291]. He refused to
await an authoritative and definitive resolution of the issues [on the exemption of GSISs funds and

properties] from execution or the issue of whether GSIS is entitled to a relief from judgment of his [P]31
million peso cost[s] of suit. [H]e was in a hurry, as Bengson, to execute the P31 million costs of suit[O]n
the other hand, Sheriff Mario Anacleto M. Baez, seemed to have the same objective when he refused to
take heed of [GSISs request] to hold in abeyance the execution sale on the basis of Section 39 (RA 8291).
The foregoing only shows [respondent judges] deliberate disregard of the express provisions of
[RA 8291], specifically Section 39and his bias, given his exorbitant award for cost[s] of suit, bereft, as it
is, of any legal basis. It evidently reveals a malicious scheme that seriously undermines the very integrity
and impartiality of his court.
The same can be said of the acts of Sheriff Baez in garnishing and selling [GSISs shares of stock
in SMC] to Bengson, characterized by an unusual swiftness and in clear disregard of the express
provision of Section 39, RA 8291
We referred the complaint to the Office of the Court Administrator (OCA) for investigation, report and
recommendation. In its report to the Court, the OCA found nothing in the records to support petitioners accusations
against both respondents. According to the OCA, even assuming that respondent judge erred in interpreting RA 8291,
such error did not constitute gross ignorance of the law. It added that the records also failed to prove malice, fraud,
dishonesty or bad faith on the part of respondent judge in issuing the assailed alias writ of execution.
On petitioners allegations against respondent Atty. Baez, the OCA likewise found no reason to hold him liable for
failing to defer the execution of the writ.
The OCA then recommended the dismissal of petitioners complaint against respondents.
On petitioners motion, we referred the case to the CA for further investigation. It was assigned to Associate
Justice Roberto A. Barrios, who acted as investigating officer. Before a hearing on the case could be conducted,
respondent judge died. The hearing proceeded but we withheld his benefits pending the completion of the investigation of
his case by Justice Barrios.
Subsequently, Justice Barrios submitted his report to us agreeing with OCAs findings that petitioners complaint
against respondents was unfounded. According to Justice Barrios:
Assuming for the nonce that [respondent judge] erred in issuing the Order of 16 December 1998
without awaiting the resolution of [petitioners motion for reconsideration], and in holding that [its]
properties are not exempt from execution, these would not be errors that are gross and patent, or done
maliciously, deliberately or in evident bad faith. [Petitioner] has not presented proof to the contrary, which
with the factual milieu would call for administrative sanctions against [respondent judge]. As a matter of
public policy, the acts of the judge in his official capacity are not subject to disciplinary action, even
though such acts are erroneous. Good faith and absence of malice, corrupt motives or improper
considerations are sufficient defenses in which a judge charged with ignorance of [the] law can find
refuge.
He added that the filing of the administrative charges against respondents was premature because this Court at
that time had yet to decide G.R. No. 137448 and G.R. No. 141454. He thus recommended the dismissal of the
administrative charges against respondents.
On January 31, 2002, we handed down our decision in the above cases nullifying the CAs resolutions dismissing
G.R. Nos. 51131 and 47669. In the same decision, we set aside respondent judges January 16, 1997 order dismissing
petitioners petition for relief from judgment and his April 23, 1998 order denying the MR.
Notwithstanding the nullification of respondent judges orders, we are adopting the findings and recommendations
of the OCA and Justice Barrios.
For a judge to be administratively liable for ignorance of the law, the acts complained of must be gross or patent.
To constitute gross ignorance of the law, such acts must not only be contrary to existing law and jurisprudence but also
motivated by bad faith, fraud, malice or dishonesty. That certainly does not appear to be the case here as petitioners
complaint was spawned merely by the honest divergence of opinion between petitioner and respondent judge as to the
legal issues and applicable laws involved. Petitioner also proffered no evidence that respondent judges acts were imbued
with malice or bad faith.

In the same vein, we hold that respondent judge was neither biased nor partial against petitioner when he issued
the alias writ of execution. Petitioners assertion that respondent judge precipitately issued the alias writ is not supported
by the records. On the contrary, the records indicate that the writ was issued more than three years from the finality of the
order directing petitioner to pay Bengson P31 million as costs of suit. Its issuance was not all tainted with undue haste. In
the exercise of his judicial discretion, respondent judge believed that the issuance of the alias writ had become forthwith a
matter of right following the finality of said order. The rule is that once a judgment becomes final, the winning party is
entitled to a writ of execution and the issuance thereof becomes a courts ministerial duty.
Assuming ex gratia argumenti that respondent judge erred in issuing the alias writ, his act would still not merit
administrative sanction absent malice or bad faith. Bad faith does not simply connote poor or flawed judgment; it imports
a dishonest purpose, moral obliquity or conscious doing of a wrong.
Furthermore, for allegations of bias and partiality to stand, petitioner should have demonstrated that respondent
judges decisions and orders came from extrajudicial sources or from some bases other than what he had learned from his
study of the case. Decisions formed in the course of judicial proceedings, although they appear erroneous, are not
necessarily partial as long as they are culled from the arguments and evidence of the parties. The party who alleges
partiality must prove it with clear and convincing evidence. Petitioner failed in that aspect.
Interestingly, this Court, in our decision in G.R. Nos. 137448 and 141454, nullified the orders of respondent judge
only to give petitioner another chance to seek redress from the gross negligence and mistake of its then counsel, Atty.
Terrado. We did not at all declare respondent judges orders as erroneous or tainted with malice or bad faith. In our
decision, we said:
It is readily apparent that part of [petitioners] predicament stemmed from the negligence or
mistake, to put it mildly, of its former counsels.
Indeed, it is undisputed that despite ample opportunity, [petitioners] counsel, Atty. Rogelio
Terrado, did not rebut BENGSONs evidence on the costs of suit or, at the very least, verify the schedule
of costs and cross-examine BENGSONs witnesses. Much worse, he allowed the 6 April 1995 Order
awarding BENGSON P31 million costs of suit to attain finality by not filing a motion for reconsideration
with the trial court or a petition with the Court of Appeals. Instead, he went AWOL without informing
petitioner of the said Order. These acts constituted gross negligence, if not fraud, and resulted in the
deprivation of petitioner of an opportunity to move to reconsider or appeal the adverse order.
[A]s a general rule, the negligence or mistake of a counsel binds the client for otherwise there
would be never be no end to a suit so long as new counsel could be employed who could allege and show
that the former counsel had not been sufficiently diligent, experienced, or learned. But if under the
circumstances of the case, the rule deserts its proper office as an aid to justice and becomes a great
hindrance and chief enemy, its rigors must be relaxed to admit exceptions thereto and prevent miscarriage
of justice. In other words, the court has the power to except a particular case from the operation of the
rule whenever the purposes of justice require it.
Moreover, the filing of an administrative complaint is not the proper remedy for correcting the actions of a judge
perceived to have gone beyond the norms of propriety, where a sufficient remedy exists. The actions against judges should
not be considered as complementary or suppletory to, or substitute for, the judicial remedies which can be availed of by a
party in a case.
Regarding the accusations against respondent Atty. Baez, the Court finds no basis to hold him liable for executing
the assailed writ at that time. Undeniably, the most difficult phase of any proceeding is the execution of judgment.
Charged with this task, he must act with considerable dispatch to administer justice. Otherwise, a judgment, if not
executed at once, would just be an empty victory on the part of the prevailing party. In executing the writ, Atty. Baez
merely carried out a ministerial duty. He had no discretion to implement the writ or not.
WHEREFORE, the complaint for ignorance of the law, bias and partiality, and violation of RA 8291 against the
late Judge Vicente A. Pacquing and Atty. Mario Anacleto M. Baez, is hereby DISMISSED.

Let a copy of this resolution be forwarded to the Office of the Court Administrator so that the benefits due the late
respondent judge can be promptly released to his heirs, unless there exists some other lawful cause to withhold the same.

SO ORDERED.

ZOILO ANTONIO VELEZ,

A.C. No. 6697

Complainant,
- versus ATTY. LEONARD S. DE VERA,
Respondent.
x-------------------------x
RE: OATH-TAKING OF ATTY. LEONARD S.
DE VERA, INCOMING PRESIDENT OF THE
INTEGRATED BAR OF THE PHILIPPINES

Bar Matter No. 1227

x-------------------------x
IN THE MATTER OF THE REMOVAL OF
ATTY. LEONARD S. DE VERA FROM THE
IBP
BOARD
OF
GOVERNORS
AS
EXECUTIVE
VICE
PRESIDENT AND
GOVERNOR

IN THE MATTER OF THE LETTERCOMPLAINT OF ATTY. LEONARD S. DE

VERA DATED
MAY 18,
2005
TO
FORTHWITH DENY/DISAPPROVE THE IBP
RESOLUTION UNJUSTLY, ILLEGALLY,
ARBITRARILY,
AND
ABRUPTLY
REMOVING HIM FROM THE BOARD OF
GOVERNORS OF THE IBP FOR ABSOLUTE
LACK OF BASIS AND FOR FLAGRANT
DENIAL OF DUE PROCESS.

A.M. No. 05-5-15-SC

Present:

PANGANIBAN, C. J.,
PUNO,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
MARTINEZ,
CORONA,
CARPIO MORALES,
CALLEJO,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA and
VELASCO JJ.
Promulgated:

July 25, 2006

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
Per Curiam:

Before Us are three consolidated cases revolving around Integrated Bar of the Philippines (IBP) Governor and
Executive Vice-President (EVP) Atty. Leonard de Vera. The first pertains to a disbarment case questioning Atty. de Veras
moral fitness to remain as a member of the Philippine Bar, the second refers to Atty. de Veras letter-request to schedule his
oath taking as IBP National President, and the third case concerns the validity of his removal as Governor and EVP of the
IBP by the IBP Board. The resolution of these cases will determine the national presidency of the IBP for the term 20052007.
A.C. No. 6697
The Office of the Bar Confidant, which this Court tasked to make an investigation, report and recommendation on
subject case, summarized the antecedents thereof as follows:
In a Complaint dated 11 April 2005, complainant Zoilo Antonio Velez moved for the suspension
and/or disbarment of respondent Atty. Leonard de Vera based on the following grounds:
1
2

respondents alleged misrepresentation in concealing the suspension order

rendered against him by the State Bar of California; and
respondents alleged violation of the so-called rotation rule enunciated in
Administrative Matter No. 491 dated 06 October 1989 (in the Matter:
1989 IBP Elections).

Complainant averred that the respondent, in appropriating for his own benefit funds due his client,
was found to have performed an act constituting moral turpitude by the Hearing Referee Bill Dozier,
Hearing Department San Francisco, State Bar of California in Administrative Case No. 86-0-18429.
Complainant alleged that the respondent was then forced to resign or surrender his license to practice law
in the said state in order to evade the recommended three (3) year suspension. Complainant asserted that
the respondent lacks the moral competence necessary to lead the countrys most noble profession.
Complainant, likewise, contended that the respondent violated the so-called rotation rule provided
for in Administrative Matter No. 491 when he transferred to IBP Agusan del Sur Chapter. He claimed that
the respondent failed to meet the requirements outlined in the IBP By-Laws pertaining to transfer of
Chapter Membership. He surmised that the respondents transfer was intended only for the purpose of
becoming the next IBP National President. Complainant prayed that the respondent be enjoined from
assuming office as IBP National President.
Meanwhile, in his Comment dated 2 May 2005, respondent stated that the issues raised in abovementioned Complaint were the very issues raised in an earlier administrative case filed by the same
complainant against him. In fact, according to him, the said issues were already extensively discussed and
categorically ruled upon by this Court in its Decision dated 11 December 2005 in Administrative Case No.
6052 (In Re: Petition to Disqualify Atty. Leonard De Vera). Respondent prayed that the instant
administrative complaint be dismissed following the principle of res judicata.
On 15 June 2005, both parties appeared before the Office of the Bar Confidant for presentation of
evidence in support of their respective allegations.
Subsequently, in a Memorandum dated 20 June 2005, complainant maintained that there is
substantial evidence showing respondents moral baseness, vileness and depravity, which could be used as
a basis for his disbarment. Complainant stressed that the respondent never denied that he used his clients
money. Complainant argued that the respondent failed to present evidence that the Supreme Court of
California accepted the latters resignation and even if such was accepted, complainant posited that this
should not absolve the respondent from liability.
Moreover, complainant added that the principle of res judicata would not apply in the case at bar.
He asserted that the first administrative case filed against the respondent was one for his disqualification. x
x x.
Bar Matter No. 1227

A.M. No. 05-5-15-SC

As earlier adverted to, Bar Matter No. 1227 refers to Atty. de Veras letter-request to this Court to schedule his oath
taking as IBP National President. A.M. No. 05-5-15-SC, on the other hand, is a letter-report dated 19 May 2005 of IBP
National President Jose Anselmo I. Cadiz (IBP President Cadiz) furnishing this Court with the IBPs Resolution, dated 13
May 2005, removing Atty. De Vera as member of the IBP Board and as IBP EVP, for committing acts inimical to the IBP
Board and the IBP in general.
The controversy in Bar Matter No. 1227 and A.M. No. 05-5-15-SC arose from the regular meeting of the IBP
Board of Governors held on 14 January 2005. In said meeting, by 2/3 vote (6 voting in favor and 2 against), the IBP Board
approved the withdrawal of the Petition filed before this Court docketed as Integrated Bar of the Philippines, Jose
Anselmo I. Cadiz, et al. vs. Senate of the Philippines, et al. Petition for Certiorari and Prohibition with Prayer for the
Issuance of Temporary Restraining Order or Writ of Preliminary Injunction, SC-R165108. The Petition was intended to
question the legality and/or constitutionality of Republic Act No. 9227, authorizing the increase in the salaries of judges
and justices, and to increase filing fees.
The two IBP Governors who opposed the said Resolution approving the withdrawal of the above-described
Petition were herein respondent Governor and EVP de Vera and Governor Carlos L. Valdez.
On 19 January 2005, IBP President Cadiz informed this Court of the decision taken by the IBP Board to withdraw
the afore-mentioned Petition. Attached to his letter was a copy of the IBP Boards 14 January 2005 Resolution.
On 15 April 2005, Bar Matter No. 1227, pertaining to Atty. de Veras request for oathtaking as National President,
was filed. The same was subsequently consolidated with A.C. No. 6697, the disbarment case filed against Atty. de Vera.
On 22 April 2005, a plenary session was held at the 10 th National IBP Convention at the CAP-Camp John Hay
Convention Center, Baguio City. It was at this forum where Atty. de Vera allegedly made some untruthful statements,
innuendos and blatant lies in connection with the IBP Boards Resolution to withdraw the Petition questioning the legality
of Republic Act No. 9227.
On 10 May 2005, this Court issued a Temporary Restraining Order (TRO) enjoining Atty. de Vera from assuming
office as IBP National President.
On 12 May 2005, IBP Gov. Romulo A. Rivera wrote IBP National President Cadiz a letter wherein he prayed for
the removal of Atty. de Vera as member of the IBP Board for having committed acts which were inimical to the IBP Board
and the IBP.
On 13 May 2005, in the 20th Regular Meeting of the Board held at the Waterfront Hotel, Cebu City, the IBP
Board, by 2/3 vote, resolved to remove Atty. de Vera as member of the IBP Board of Governors and as IBP Executive
Vice President. Quoted hereunder is the dispositive portion of said Resolution:
NOW THEREFORE, BE IT RESOLVED, AS IT IS HEREBY RESOLVED, that Governor
Leonard S. de Vera is REMOVED as a member of the IBP Board of Governors and Executive Vice
President for committing acts inimical to the IBP Board of Governors and the IBP, to wit:
1

For making untruthful statements, innuendos and blatant lies in public about
the Supreme Court and members of the IBP Board of Governors, during
the Plenary Session of the IBP 10th National Convention of Lawyers,
held at CAP-Camp John Hay Convention Center on 22 April 2005,
making it appear that the decision of the IBP Board of Governors to
withdraw the PETITION docketed as Integrated Bar of the Philippines,
Jose Anselmo I. Cadiz, et al. vs. The Senate of the Philippines, et al.,
Petition for Certiorari and Prohibition With Prayer for the Issuance of A
Temporary Restraining Order or Writ of Preliminary Injunction, S.C.-R.
165108, was due to influence and pressure from the Supreme Court of
the Philippines;

For making said untruthful statements, innuendos and blatant lies that
brought the IBP Board of Governors and the IBP as a whole in public
contempt and disrepute;

For violating Canon 11 of the Code of Professional Responsibility for

Lawyers which mandates that A lawyer shall observe and maintain the
respect due to the courts and to judicial officers and should insist on
similar conduct by others, by making untruthful statements, innuendos
and blatant lies during the Plenary Session of the IBP 10 th National
Convention of Lawyers in Baguio City;

For instigating and provoking some IBP chapters to embarrass and humiliate
the IBP Board of Governors in order to coerce and compel the latter to
pursue the aforesaid PETITION;

For falsely accusing the IBP National President, Jose Anselmo I. Cadiz,
during the Plenary Session of the 10th National Convention in Baguio
City of withholding from him a copy of Supreme Court Resolution, dated
25 January 2005, granting the withdrawal of the PETITION, thereby
creating the wrong impression that the IBP National President
deliberately prevented him from taking the appropriate remedies with
respect thereto, thus compromising the reputation and integrity of the
IBP National President and the IBP as a whole.

On 18 May 2005, Atty. de Vera aired his sentiments to this Court by writing the then Hon. Chief Justice Hilario G.
Davide, Jr. a letter captioned as Urgent Plea to Correct a Glaring Injustice of the IBP Board of Governors; Vehement
Protest to the Board Resolution Abruptly Removing Atty. Leonard de Vera from the Board of Governors in Patent
Violation of Due Process; Petition to Deny/Disapprove the Completely Unjustified and Highly Arbitrary Resolution
Precipitately Ousting Atty. de Vera from the Board of Governors in Less Than Twenty Four (24) Hours from Notice and
Judgment Without Formal Investigation.
In the said letter, Atty. de Vera strongly and categorically denied having committed acts inimical to the IBP and its
Board. He alleged that on the basis of an unverified letter-complaint filed by IBP Governor Rivera, the IBP Board voted to
expel him posthaste, without just cause and in complete disregard of even the minimum standards of due process.
Pertinent portions of his letter read:
It is evident that the Board of Governors has committed a grave and serious injustice against me
especially when, as the incumbent Executive Vice President of the IBP, I am scheduled to assume my
position as National President of the IBP on July 1, 2005. x x x
I was denied the very basic rights of due process recognized by the Supreme Court even in
administrative cases:
1
2
3
4

5
6
7

The denial of the right to answer the charges formally or in writing. The
complaint against me was in writing.
The denial of the right to answer the charges within a reasonable period of time
after receipt of the complaint.
The denial of the right to a fair hearing.
The denial of the right to confront the accuser and the witnesses against me. I
challenged Gov. Rivera to testify under oath so I could question him. He
refused. I offered to testify under oath so I could be questioned. My
request was denied.
The denial of my right to present witnesses on my behalf.
The denial of my right to an impartial judge. Governor Rivera was my accuser,
prosecutor, and judge all at the same time.
Gov. Riveras prejudgment of my case becomes even more evident because when
his motion to expel me was lost in a 5-3 votes (due to his inhibition to
vote), Gov. Rivera asked for another round of voting so he can vote to

support his own complaint and motion to expel me. (Emphasis and
underscoring in original.)
On 27 May 2005, the IBP Board responded to the 18 May 2005 letter of Atty. de Vera. In their Reply, the IBP
Board explained to this Court that their decision to remove Atty. de Vera was based on valid grounds and was intended to
protect itself from a recalcitrant member. Among the grounds cited and elucidated by the IBP Board were the following:
i

Atty. de Vera engaged himself in a negative media campaign and solicited resolutions from IBP
Chapters to condemn the IBP Board of Governors for its decision to withdraw the PETITION, all
with the end in view of compelling or coercing the IBP Board of Governors to reconsider the decision
to withdraw the PETITION.
ii
Atty. de Vera embarrassed, humiliated and maligned the IBP Board of Governors and the
IBP National President in public or during the Plenary Session at the 10 th National
Convention of Lawyers.
iii
Rather than pacify the already agitated solicited speakers (at the plenary session), Atty. de
Vera fanned the fire, so to speak, and went to the extent of making untruthful statements,
innuendos and blatant lies about the Supreme Court and some members of the IBP Board
of Governors. He deliberately and intentionally did so to provoke the members of the IBP
Board of Governors to engage him in an acrimonious public debate and expose the IBP
Board of Governors to public ridicule.
iv
Atty. de Vera uttered untruthful statements, innuendos and blatant lies, e.g., that some of
the members of the IBP Board of Governors voted in favor of the withdrawal of the
petition (without mentioning names) because nakakahiya kasi sa Supreme Court,
nakakaawa kasi ang Supreme Court, kasi may mga kaibigan tayo sa Court. He made it
appear that the IBP Board of Governors approved the resolution, withdrawing the
petition, due to influence or pressure from the Supreme Court.

The IBP Board explained that Atty. de Veras actuation during the Plenary Session was the last straw that broke the
camels back. He committed acts inimical to the interest of the IBP Board and the IBP; hence, the IBP Board decided to
remove him.
On 3 June 2005, Atty. de Vera furnished the Court with copies of resolutions and a position paper coming from
various IBP Chapters all condemning his expulsion from the IBP Board and as IBP EVP.
On 15 June 2005, IBP President Cadiz informed Chief Justice Davide that in a special meeting of the IBP Board
held at the EDSA Shangri-la Plaza on 13 June 2005, the IBP Board took note of the vacancy in the position of the IBP
EVP brought about by Atty. de Veras removal. In his stead, IBP Governor Pura Angelica Y. Santiago was formally elected
and declared as IBP EVP.
On 17 June 2005, Atty. de Vera protested against the election of Atty. Santiago. On 20 June 2005, Atty. Santiago
voluntarily relinquished the EVP position through a letter addressed to the IBP Board. Thus, on 25 June 2005, during its
last regular meeting, the IBP Board elected a new EVP in the person of IBP Governor Jose Vicente B. Salazar to replace
Atty. Santiago.
On 28 June 2005, IBP National President Cadiz, through a letter addressed to Chief Justice Davide, reported to
this Court Atty. Salazars election. IBP National President Cadiz also requested, among other things, that Atty. Salazars
election be approved and that he be allowed to assume as National President in the event that Atty. de Vera is disbarred or
suspended from the practice of law or should his removal from the 2003-2005 Board of Governors and as EVP is
approved by this Court. Also on 28 June 2005, Atty. de Vera protested the election of Atty. Salazar.
In his Extended Comment dated 25 July 2005, Atty. de Vera maintained that there was absolutely no factual or
legal basis to sustain the motion to remove him from the IBP Board because he violated no law. He argued that if the
basis for his removal as EVP was based on the same grounds as his removal from the IBP Board, then his removal as EVP
was likewise executed without due notice and without the least compliance with the minimum standards of due process of
law.

Atty. de Vera strongly averred that, contrary to the utterly false and malicious charges filed against him, the
speakers at the Plenary Session of the Baguio Convention, although undeniably impassioned and articulate, were
respectful in their language and exhortations, not once undermining the stature of the IBP in general and the IBP Board of
Governors in particular. He posited that speaking in disagreement with the Resolution of the Board during the
Conventions Plenary Session is not a valid cause to remove or expel a duly-elected member of the IBP Board of
Governors; and the decision to remove him only shows that the right to freedom of speech or the right to dissent is not
recognized by the incumbent IBP Board.
Anent the charges that he accused the National President of withholding a copy of this Courts Resolution granting
the withdrawal of the Petition questioning the legality of Republic Act No. 9227, Atty. de Vera avowed that he made no
such remarks. As regards the election of a new IBP EVP, Atty. de Vera contended that the said election was illegal as it
was contrary to the provisions of the IBP By-Laws concerning national officers, to wit:
Section. 49. Term of office. - The President and the Executive Vice President shall hold office for
a term of two years from July 1 following their election until 30 June of their second year in office and
until their successors shall have been duly chosen and qualified.
In the event the President is absent or unable to act, his functions and duties shall be
performed by the Executive Vice President, and in the event of death, resignation, or removal of the
President, the Executive Vice President shall serve as Acting President for the unexpired portion of the
term. In the event of death, resignation, removal or disability of both the President and the Executive Vice
President, the Board of Governors shall elect an Acting President to hold office for the unexpired portion
of the term or during the period of disability.
Unless otherwise provided in these By-Laws, all other officers and employees appointed
by the President with the consent of the Board shall hold office at the pleasure of the Board or for such
term as the Board may fix.
To bolster his position, Atty. de Vera stressed that when both the President and the EVP die, resign, are removed,
or are disabled, the IBP By-Laws only provides for the election of an Acting President and that no mention for an election
for EVP was made. Thus, when such election for EVP occurs, such is contrary to the express provision of the IBP ByLaws.
Atty. de Vera also argued that even if he were validly removed as IBP EVP, his replacement should come from
Eastern Mindanao and not from any other region, due to the Rotation Rule embodied in par. 2, Section 47, Article VII of
the IBP By-Laws.
In response to Atty. de Veras averments, the 2003-2005 IBP Board, through its counsel, submitted a Reply dated
27 January 2006 and clarified as follows:
i

The IBP Board of Governors is vested with sufficient power and authority to protect itself from an
intractable member by virtue of Article VI, Section 44 of the IBP By-Laws;
ii Atty. de Vera was removed as a member of the IBP Board and as IBP EVP not because of his
disagreement with the IBP Boards position but because of the various acts that he
committed which the IBP Board determined to be inimical to the IBP Board and the IBP
as a whole;
iii Atty. de Vera cannot exculpate himself from liability by invoking his constitutional right to Free
Speech because, as a member of the Bar, it is his sworn duty to observe and maintain the
respect due to the courts and to judicial officers and to insist on similar conduct by others;
iv The IBP Board, in effecting the removal of Atty. de Vera, observed the fundamental principles of
due process. As the records would bear, Atty. de Vera was duly notified of the Regular
Meeting of the IBP Board held on 13 May 2004; was furnished a copy of Governor
Riveras Letter-Complaint the day before the said meeting; was furnished a copy of the
said Meetings Agenda; and was allowed to personally defend himself and his accuser,
Gov. Rivera;

Atty. de Vera was validly removed because the required number of votes under Section 44 of the
IBP By-Laws to remove Atty. de Vera as a member of the IBP Board and as IBP EVP was
duly complied with;
vi Atty. de Veras replacement as IBP EVP need not come from Eastern Mindanao Region because:
(a) the rotation rule under Article VII, Section 47, par. 2 of the IBP By-Laws had already
been complied with when Atty. de Vera, who hails from Eastern Mindanao, was elected
IBP EVP; and (b) the rotation rule need not be enforced if the same will not be
practicable, possible, feasible, doable or viable; and, finally, that
vii Atty. Salazar was validly elected as IBP EVP and, thus, should now be allowed to take his oath as
IBP National President.
The Courts Ruling
AC No. 6697
In his Memorandum dated 20 June 2005, complainant tendered the following issues for the consideration of the
Court:
I.
WHETHER OR NOT RESPONDENT ATTORNEY LEONARD S. DEVERA (sic) COMMITED
MALPRACTICE WHICH AMOUNTED TO MORAL TURPITUDE IN THE STATE BAR OF
CALIFORNIA AND IN THE PHILIPPINES, IN THE COURSE OF HIS PRACTICE OF LAW.
II.
WHETHER OR NOT THE OATH OF OFFICE AS LAWYER IS ATTACHED TO THE PERSON OF
ATTORNEY LEONARD S. DEVERA (sic) WHEREVER HE MAY GO AND NOT NECESSARILY
BOUND BY THE TERRITORIAL JURISDICTION OF THE PHILIPPINES.
III.
WHETHER OR NOT THERE IS SUBSTANTIAL EVIDENCE TO PROVE THE MORAL
T[U]RPITUDE, AS BASIS FOR DISBARMENT OF RESPONDENT IN AN ADMINISTRATIVE
PROCEEDING.
IV.
WHETHER OR NOT RES JUDICATA APPLIES IN THIS CASE, DUE TO ADMIN. CASE NO. [6052]
The disposition of the first three related issues hinges on the resolution of the fourth issue. Consequently, we will
start with the last issue.
A.C. No. 6052 is not a bar to the filing of the present administrative case.
In disposing of the question of res judicata, the Bar Confidant opined:
To reiterate, the instant case for suspension and/or disbarment against respondent Leonard De Vera
is grounded on the following:
1
2

respondents alleged misrepresentation in concealing the suspension order rendered against

him by the State Bar in California; and
respondents alleged violation of the so-called rotation rule enunciated in Administrative
Matter No. 491 dated 06 October 1989 (In the Matter: 1989 IBP Elections).

It appears that the complainant already raised the said issues in an earlier administrative case
against the respondent. Verily, these issues were already argued upon by the parties in their respective
pleadings, and discussed and ruled upon by this Court in its Decision dated 11 December 2003 in
Administrative Matter No. 6052 (In Re: Petition to Disqualify Atty. Leonard de Vera).

As such, with respect to the first issue, this Court held that:
As for the administrative complaint filed against him by one of his clients when he was
practicing law in California, which in turn compelled him to surrender his California
license to practice law, he maintains that it cannot serve as basis for determining his
moral qualification (or lack of it) to run for the position he is aspiring for. He explains
that there is as yet no final judgment finding him guilty of the administrative charge, as
the records relied upon by the petitioners are mere preliminary findings of a hearing
referee which are recommendatory findings of an IBP Commissioner on Bar Discipline
which are subject to the review of and the final decision of the Supreme Court. He also
stresses that the complainant in the California administrative case has retracted the
accusation that he misappropriated the complainants money, but unfortunately the
retraction was not considered by the investigating officer. xxx
On the administrative complaint that was filed against respondent De Vera while he was
still practicing law in California, he explained that no final judgment was rendered by the
California Supreme Court finding him guilty of the charge. He surrendered his license to
protest the discrimination he suffered at the hands of the investigator and he found it
impractical to pursue the case to the end. We find these explanations satisfactory in the
absence of contrary proof. It is a basic rule on evidence that he who alleges a fact has the
burden to prove the same. In this case, the petitioners have not shown how the
administrative complaint affects respondent De Vera's moral fitness to run for governor.
On the other hand, as regards the second issue:
Petitioners contend that respondent de Vera is disqualified for the post because he
is not really from Eastern Mindanao. His place of residence is in Paraaque and he was
originally a member of the PPLM IBP Chapter. He only changed his IBP Chapter
membership to pave the way for his ultimate goal of attaining the highest IBP post, which
is the national presidency. Petitioners aver that in changing his IBP membership,
respondent De Vera violated the domicile rule.
The contention has no merit. Under the last paragraph of Section 19, Article II, a lawyer
included in the Roll of Attorneys of the Supreme Court can register with the particular
IBP Chapter of his preference or choice, thus:
xxx
It is clearly stated in the aforequoted section of the By-Laws that it is not automatic that a
lawyer will become a member of the chapter where his place of residence or work is
located. He has the discretion to choose the particular chapter where he wishes to gain
membership. Only when he does not register his preference that he will become a member
of the Chapter of the place where he resides or maintains office. The only proscription in
registering one's preference is that a lawyer cannot be a member of more than one
chapter at the same time.
The same is provided in Section 29-2 of the IBP By-Laws. In fact, under this Section,
transfer of IBP membership is allowed as long as the lawyer complies with the conditions
set forth therein, thus:
xxx
The only condition required under the foregoing rule is that the transfer must be made not
less than three months prior to the election of officers in the chapter to which the lawyer
wishes to transfer.

In the case at bar, respondent De Vera requested the transfer of his IBP membership to
Agusan del Sur on 1 August 2001. One month thereafter, IBP National Secretary Jaime M.
Vibar wrote a letter addressed to Atty. Amador Z. Tolentino, Jr., Secretary of IBP PPLM
Chapter and Atty. Lyndon J. Romero, Secretary of IBP Agusan del Sur Chapter, informing
them of respondent de Vera's transfer and advising them to make the necessary notation in
their respective records. This letter is a substantial compliance with the certification
mentioned in Section 29-2 as aforequoted. Note that de Vera's transfer was made effective
sometime between 1 August 2001 and 3 September 2001. On 27 February 2003, the
elections of the IBP Chapter Officers were simultaneously held all over the Philippines, as
mandated by Section 29.a of the IBP By-Laws which provides that elections of Chapter
Officers and Directors shall be held on the last Saturday of February of every other year.
Between 3 September 2001 and 27 February 2003, seventeen months had elapsed. This
makes respondent de Vera's transfer valid as it was done more than three months ahead of
the chapter elections held on 27 February 2003.
In the case of Romulo G. Dinsay vs. Atty. Leopoldo D. Cioco (Administrative Case No. 2995, 27
November 1996), this Court declared that:
The doctrine of res judicata applies only to judicial or quasi-judicial proceedings and not to
the exercise of the [Courts] administrative powers.
In the said case, respondent Clerk of Court Cioco was dismissed from service for grave
misconduct highly prejudicial to the service for surreptitiously substituting the bid price in a Certificate of
Sale from P3,263,182.67 to only P730,000.00. Thereafter a complaint for disbarment was filed against the
respondent on the basis of the same incident. Respondent, interposing res judicata, argued that he may no
longer be charged on the basis of the same incident. This Court held that while the respondent is in effect
being indicted twice for the same misconduct, this does not amount to double jeopardy as both
proceedings are admittedly administrative in nature. This Court qualified that, in the first case, the
respondent was proceeded against as an erring court personnel under the Courts supervisory power over
courts while, in the second case, he was disciplined as a lawyer under the Courts plenary authority over
membersof the legal profession.
In subsequent decisions of this Court, however, it appears that res judicata still applies in
administrative cases. Thus, in the case of Atty. Eduardo C. De Vera vs. Judge William Layague
(Administrastive Matter No. RTJ-93-986), this Court ruled that:
While double jeopardy does not lie in administrative cases, it would be contrary to equity
and substantial justice to penalize respondent judge a second time for an act which he had
already answered for.
Likewise, in the recent case of Executive Judge Henry B. Basilia vs. Judge Amado L. Becamon,
Lolita Delos Reyes and Eddie Delos Reyes (Administrative Matter No. MTJ-02-1404, 14 December 2004),
this Court held that:
Applying the principle of res judicata or bar by prior judgment, the present administrative
case becomes dismissible.
xxx
Under the said doctrine, a matter that has been adjudicated by a court of competent
jurisdiction must be deemed to have been finally and conclusively settled if it arises in any
subsequent litigation between the same parties and for the same cause. It provides that
[a] final judgment on the merits rendered by a court of competent jurisdiction is
conclusive as to the rights of the parties and their privies; and constitutes an absolute bar

to subsequent actions involving the same claim, demand, or cause of action. Res judicata
is based on the ground that the party to be affected, or some other with whom he is in
privity, has litigated the same matter in the former action in a court of competent
jurisdiction, and should not be permitted to litigate it again.
This principle frees the parties from undergoing all over again the rigors of unnecessary
suits and repetitious trials. At the same time, it prevents the clogging of court dockets.
Equally important, res judicata stabilizes rights and promotes the rule of law.
In the instant administrative case, it is clear that the issues raised by the complainant had already
been resolved by this Court in an earlier administrative case. The complainants contention that the
principle of res judicata would not apply in the case at bar as the first administrative case was one for
disqualification while the instant administrative complaint is one for suspension and/or disbarment should
be given least credence. It is worthy to note that while the instant administrative complaint is denominated
as one for suspension and/or disbarment, it prayed neither the suspension nor the disbarment of the
respondent but instead merely sought to enjoin the respondent from assuming office as IBP National
President.
Contrary to the findings of the Bar Confidant, Adm. Case No. 6052 entitled, In Re: Petition to Disqualify Atty.
Leonard de Vera, on Legal and Moral Grounds, From Being Elected IBP Governor for Eastern Mindanao in the May 31
IBP Election and promulgated on 11 December 2003 does not constitute a bar to the filing of Adm. Case No. 6697.
Although the parties in the present administrative case and in Adm. Case No. 6052 are identical, their capacities in these
cases and the issues presented therein are not the same, thereby barring the application of res judicata.
In order that the principle of res judicata may be made to apply, four essential conditions must concur, namely:
(1) the judgment sought to bar the new action must be final; (2) the decision must have been rendered by a court having
jurisdiction over the subject matter and the parties; (3) the disposition of the case must be a judgment or order on the
merits, and (4) there must be between the first and second action identity of parties, identity of subject matter, and identity
of causes of action. In the absence of any one of these elements, Atty. de Vera cannot argue res judicata in his favor.
It is noteworthy that the two administrative cases involve different subject matters and causes of action. In Adm.
Case No. 6052, the subject matter was the qualification of Atty. de Vera to run as a candidate for the position of IBP
Governor for Eastern Mindanao. In the present administrative complaint, the subject matter is his privilege to practice law.
In the first administrative case, complainants cause of action was Atty. de Veras alleged violation or circumvention of the
IBP By-laws. In the present administrative case, the primary cause of action is Atty. de Veras alleged violation of lawyers
oath and the Code of Professional Responsibility.
Finally, the two administrative cases do not seek the same relief. In the first case, the complainants sought to
prevent Atty. de Vera from assuming his post as IBP Governor for Eastern Mindanao. In the present case, as clarified by
complainant in his Memorandum, what is being principally sought is Atty. de Veras suspension or disbarment.
The distinctions between the two cases are far from trivial. The previous case was resolved on the basis of the
parties rights and obligations under the IBP By-laws. We held therein that Atty. de Vera cannot be disqualified from
running as Regional Governor as there is nothing in the present IBP By-laws that sanctions the disqualification of
candidates for IBP governors. Consequently, we stressed that the petition had no firm ground to stand on. Likewise, we
held that the complainants therein were not the proper parties to bring the suit as the IBP By-laws prescribes that only
nominees - which the complainants were not - can file with the IBP President a written protest against the candidate. The
Courts statement, therefore, that Atty. de Vera cannot be disqualified on the ground that he was not morally fit was mere
obiter dictum. Precisely, the IBP By-laws do not allow for pre-election disqualification proceedings; hence, Atty. de Vera
cannot be disqualified on the basis of the administrative findings of a hearing officer of the State Bar of California
suspending him from the practice of law for three years. We held in that case that
There is nothing in the By-Laws which explicitly provides that one must be morally fit before he
can run for IBP governorship. For one, this is so because the determination of moral fitness of a candidate
lies in the individual judgment of the members of the House of Delegates. Indeed, based on each member's
standard of morality, he is free to nominate and elect any member, so long as the latter possesses the basic
requirements under the law. For another, basically the disqualification of a candidate involving lack of

moral fitness should emanate from his disbarment or suspension from the practice of law by this Court, or
conviction by final judgment of an offense which involves moral turpitude.
What this simply means is that absent a final judgment by the Supreme Court in a proper case declaring otherwise,
every lawyer aspiring to hold the position of IBP Regional Director is presumed morally fit. Any person who begs to
disagree will not be able to find a receptive audience in the IBP through a petition for disqualification but must first
file the necessary disbarment or suspension proceeding against the lawyer concerned.
And this is precisely what complainant has chosen to do in the instant case. As his petition is sufficient in form
and substance, we have given it due course pursuant to Rule 138 of the Rules of Court. And, considering that this case is
not barred by the prior judgment in Adm. Case No. 6052, the only issue left for consideration is whether or not Atty. de
Vera can be suspended or disbarred under the facts of the case and the evidence submitted by complainant.
The recommendation of the hearing officer of the State Bar of California,
standing alone, is not proof of malpractice.
In the case of the Suspension From The Practice of Law In The Territory of Guam of Atty. Leon G. Maquera we
were confronted with the question of whether or not a member of the Philippine Bar, who is concomitantly an attorney in
a foreign jurisdiction and who was suspended from the practice of law in said foreign jurisdiction, can be sanctioned as
member of the Philippine Bar for the same infraction committed in the foreign jurisdiction.
We take the issue in Atty. Maquera one notch higher in the case of Atty. de Vera who was admitted to the practice
of law in a foreign jurisdiction (State Bar of California, U.S.A.) and against whom charges were filed in connection with
his practice in said jurisdiction. However, unlike the case of Atty. Maquera, no final judgment for suspension or
disbarment was meted against Atty. de Vera despite a recommendation of suspension of three years as he surrendered his
license to practice law before his case could be taken up by the Supreme Court of California.
In Maquera, we emphasized that the judgment of suspension against a Filipino lawyer in a foreign jurisdiction
does not automatically result in his suspension or disbarment in the Philippines as the acts giving rise to his suspension are
not grounds for disbarment and suspension in this jurisdiction. Judgment of suspension against a Filipino lawyer may
transmute into a similar judgment of suspension in the Philippines only if the basis of the foreign courts action includes
any of the grounds for disbarment or suspension in this jurisdiction. We likewise held that the judgment of the foreign
court merely constitutes prima facie evidence of unethical acts as lawyer.
The Maquera ruling is consistent with Rule 39, Section 48, of the Rules of Court which provides:
Sec. 48. Effect of foreign judgments or final orders. - The effect of a judgment or final order of a tribunal
of a foreign country, having jurisdiction to render the judgment or final order is as follows:
xxxx
(b)
In case of a judgment or final order against a person, the judgment or final order is presumptive
evidence of a right as between the parties and their successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction,
want of notice to the party, collusion, fraud, or clear mistake of law or fact.

In Philippine Aluminum Wheels, Inc. v. Fasgi Enterprises, Inc., we explained that [a] foreign judgment is
presumed to be valid and binding in the country from which it comes, until a contrary showing, on the basis of a
presumption of regularity of proceedings and the giving of due notice in the foreign forum.
In herein case, considering that there is technically no foreign judgment to speak of, the recommendation by the
hearing officer of the State Bar of California does not constitute prima facie evidence of unethical behavior by Atty. de
Vera. Complainant must prove by substantial evidence the facts upon which the recommendation by the hearing officer
was based. If he is successful in this, he must then prove that these acts are likewise unethical under Philippine law.
There is substantial evidence of malpractice on the part of Atty. de Vera
independent of the recommendation of suspension by the hearing officer of the
State Bar of California
Section 27 of Rule 138 of our Rules of Court states:

SEC. 27. Disbarment or suspension of attorneys by Supreme Court; grounds therefor. A member
of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit,
malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his
conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to
take before admission to practice, or for a wilful disobedience of any lawful order of a superior court, or
for corruptly or wilfully 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
disciplinary 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.
Disciplinary action against a lawyer is intended to protect the court and the public from the misconduct of officers
of the court and to protect the administration of justice by requiring that those who exercise this important function shall
be competent, honorable and reliable men in whom courts and clients may repose confidence. The statutory enunciation of
the grounds for disbarment on suspension is not to be taken as a limitation on the general power of courts to suspend or
disbar a lawyer. The inherent power of the court over its officers cannot be restricted.
Malpractice ordinarily refers to any malfeasance or dereliction of duty committed by a lawyer. Section 27 gives a
special and technical meaning to the term Malpractice. That meaning is in consonance with the elementary notion that the
practice of law is a profession, not a business.

Unprofessional conduct in an attorney is that which violates the rules on ethical code of his profession or which is
unbecoming a member of that profession.
Now, the undisputed facts:
1

An administrative case against Atty. de Vera was filed before the State Bar of California, docketed then as Adm. Case No.
86-0-18429. It arose from an insurance case Atty. de Vera handled involving Julius Willis, III who figured in an
automobile accident in 1986. Atty. de Vera was authorized by the elder Willis (father of Julius who was given
authority by the son to control the case because the latter was then studying in San Diego California) for the
release of the funds in settlement of the case. Atty. de Vera received a check in settlement of the case which he
then deposited to his personal account;

The Hearing referee in the said administrative case recommended that Atty. de Vera be suspended from the practice of law
for three years; and

Atty. de Vera resigned from the California Bar which resignation was accepted by the Supreme Court of California.
Atty. de Vera vehemently insists that the foregoing facts do not prove that he misappropriated his clients funds as
the latters father (the elder Willis) gave him authority to use the same and that, unfortunately, the hearing officer did not
consider this explanation notwithstanding the fact that the elder Willis testified under oath that he expected de Vera might
use the money for a few days.
By insisting that he was authorized by his clients father and attorney-in-fact to use the funds, Atty. de Vera has
impliedly admitted the use of the Willis funds for his own personal use.
In fact, Atty. de Vera did not deny complainants allegation in the latters memorandum that he (de Vera) received
US$12,000.00 intended for his client and that he deposited said amount in his personal account and not in a separate trust
account and that, finally, he spent the amount for personal purposes.

At this point, it bears stressing that in cases filed before administrative and quasi-judicial bodies, a fact may be
deemed established if it is supported by substantial evidence or that amount of relevant evidence which a reasonable mind
might accept as adequate to justify a conclusion. It means such evidence which affords a substantial basis from which the
fact in issue can be reasonably inferred.
Beyond doubt, the unauthorized use by a lawyer of his clients funds is highly unethical. Canon 16 of the Code of
Professional Responsibility is emphatic about this, thus:
CANON 16. A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND PROPERTIES OF HIS
CLIENT THAT MAY COME TO HIS POSSESSION.
Rule 16.01.
client.

A lawyer shall account for all money or property collected or received for or from the

Rule 16.02.
A lawyer shall keep the funds of each client separate and apart from his own and those of
others kept by him.
In Espiritu v. Ulep we held that
The relation between attorney and client is highly fiduciary in nature. Being such, it requires
utmost good faith, loyalty, fidelity and disinterestedness on the part of the attorney. Its fiduciary nature is
intended for the protection of the client.
The Code of Professional Responsibility mandates every lawyer to hold in trust all money and
properties of his client that may come into his possession. Accordingly, he shall account for all money or
property collected or received for or from the client. Even more specific is the Canon of Professional
Ethics:
The lawyer should refrain from any action whereby for his personal benefit or
gain he abuses or takes advantage of the confidence reposed in him by his client.
Money of the client or collected for the client or other trust property coming into
the possession of the lawyer should be reported and accounted for promptly and should
not under any circumstances be commingled with his own or be used by him.
Consequently, a lawyer's failure to return upon demand the funds or property held by him on
behalf of his client gives rise to the presumption that he has appropriated the same for his own use to the
prejudice of, and in violation of the trust reposed in him by, his client. It is a gross violation of general
morality as well as of professional ethics; it impairs the public confidence in the legal profession and
deserves punishment.
Lawyers who misappropriate the funds entrusted to them are in gross violation of professional
ethics and are guilty of betrayal of public confidence in the legal profession. Those who are guilty of such
infraction may be disbarred or suspended indefinitely from the practice of law. (Emphases supplied.)

In herein case, as it is admitted by Atty. de Vera himself that he used his clients money for personal use, he has
unwittingly sealed his own fate since this admission constitutes more than substantial evidence of malpractice.
Consequently, Atty. de Vera now has the burden of rebutting the evidence which he himself supplied.
In his defense, Atty. de Vera claims that he was duly authorized by the elder Willis to use the funds intended for
the latters son. Atty. de Vera also points out that he had restituted the full amount of US$12,000.00 even before the filing
of the administrative case against him in the State Bar of California.
Aside from these self-serving statements, however, we cannot find anywhere in the records of this case proof
that indeed Atty. de Vera was duly authorized to use the funds of his client. In Radjaie v. Atty. Alovera we declared that
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. He must show proof that he still
maintains that degree of morality and integrity which at all times is expected of him.

Atty. de Vera cannot rely on the statement made by the hearing officer that the elder Willis had indeed testified
that he expected de Vera might use the money for a few days. As Atty. de Vera had vigorously objected to the admissibility
of the document containing this statement, he is now estopped from relying thereon. Besides, that the elder Willis
expected de Vera might use the money for a few days was not so much an acknowledgment of consent to the use by Atty.
de Vera of his clients funds as it was an acceptance of the probability that Atty. de Vera might, indeed, use his clients
funds, which by itself did not speak well of the character of Atty. de Vera or the way such character was perceived.
In the instant case, the act of Atty. de Vera in holding on to his clients money without the latters acquiescence is
conduct indicative of lack of integrity and propriety. It is clear that Atty. de Vera, by depositing the check in his own
account and using the same for his own benefit is guilty of deceit, malpractice, gross misconduct and unethical behavior.
He caused dishonor, not only to himself but to the noble profession to which he belongs. For, it cannot be denied that the
respect of litigants to the profession is inexorably diminished whenever a member of the profession betrays their trust and
confidence. Respondent violated his oath to conduct himself with all good fidelity to his client.

Nevertheless, we do not agree with complainants plea to disbar respondent from the practice of law. The power to
disbar must be exercised with great caution. Where any lesser penalty can accomplish the end desired, disbarment should
not be decreed.
In Mortera v. Pagatpatan, we imposed upon Atty. Pagatpatan two years suspension from his practice of law for
depositing the funds meant for his client to his personal account without the latters knowledge. In Reyes v. Maglaya;
Castillo v. Taguines; Espiritu v. Atty. Cabredo IV, the respondents were meted one year suspension each for failing to
remit to their clients monies in the amounts of P1,500.00; P500.00, and P51,161.00, respectively, received by them for
their clients without the latters permission. In Dumadag v. Atty. Lumaya, we indefinitely suspended respondent for failure
to remit to his client the amount of the measly sum of P4,344.00 representing the amount received pursuant to a writ of
execution. Considering the amount involved here US$12,000.00, we believe that the penalty of suspension for two (2)
years is appropriate.
Transferring IBP membership to a chapter where the lawyer is not a resident
of is not a ground for his suspension or disbarment
Complainant insists that Atty. de Veras transfer of membership from the Pasay, Paraaque, Las Pias and Muntinlupa
(PPLM) Chapter to the Agusan del Sur IBP Chapter is a circumvention of the rotation rule as it was made for the sole
purpose of becoming IBP National President. Complainant stresses that Atty. de Vera is not a resident of Agusan del Sur
nor does he hold office therein.
In Adm. Case No. 6052, we held that Atty. de Veras act of transferring to another IBP Chapter is not a ground for
his disqualification for the post of IBP Governor as the same is allowed under Section 19 of the IBP By-Laws with the
qualification only that the transfer be made not less than three months immediately preceding any chapter election.
As it was perfectly within Atty. de Veras right to transfer his membership, it cannot be said that he is guilty of
unethical conduct or behavior. And while one may incessantly argue that a legal act may not necessarily be ethical, in
herein case, we do not see anything wrong in transferring to an IBP chapter that -- based on the rotation rule will produce
the next IBP EVP who will automatically succeed to the National Presidency for the next term. Our Code of Professional
Responsibility as well as the Lawyers Oath do not prohibit nor punish lawyers from aspiring to be IBP National President
and from doing perfectly legal acts in accomplishing such goal.

Bar Matter No. 1227

Administrative Matter No. 05-5-15-SC
To resolve Bar Matter No. 1227 and Administrative Matter No. 05-5- 15-SC, the following issues must be
addressed:
I

Whether the IBP Board of Governors acted with grave abuse of discretion in removing Atty. de Vera as
Governor and EVP of the IBP on 13 May 2005.
i Whether the IBP Board of Governors complied with administrative due process in removing Atty.
de Vera.

II

ii Whether the IBP removed Atty. De Vera for just and valid cause.
Whether Governor Salazar was validly elected as EVP of the IBP on 25 June 2005, and can consequently
assume the Presidency of the IBP for the term 2005-2007.

The IBP Board observed due process in its removal of Atty. de Vera as IBP
Governor
We start the discussion with the veritable fact that the IBP Board is vested with the power to remove any of its
members pursuant to Section 44, Article VI of the IBP By-Laws, which states:
Sec. 44. Removal of members. If the Board of Governors should determine after proper inquiry
that any of its members, elective or otherwise, has for any reason become unable to perform his duties,
the Board, by resolution of the Majority of the remaining members, may declare his position vacant,
subject to the approval of the Supreme Court.
Any member of the Board, elective or otherwise, may be removed for cause, including three
consecutive absences from Board meetings without justifiable excuse, by resolution adopted by twothirds of the remaining members of the Board, subject to the approval of the Supreme Court.
In case of any vacancy in the office of Governor for whatever cause, the delegates from the
region shall by majority vote, elect a successor from among the members of the Chapter to which the
resigned governor is a member to serve as governor for the unexpired portion of the term. (Emphasis
supplied)
Under the aforementioned section, a member of the IBP Board may be removed for cause by resolution adopted
by two-thirds (2/3) of the remaining members of the Board, subject to the approval of this Court.
In the main, Atty. de Vera questions his removal from the Board of Governors on procedural and substantive
grounds. He argues that he was denied very basic rights of due process recognized by the Honorable Court even in
administrative cases like the right to answer formally or in writing and within reasonable time, the right to present
witnesses in his behalf, the right to a fair hearing. Atty. de Vera protests the fact that he was not able to cross-examine the
complainant, IBP Gov. Romulo H. Rivera (Atty. Rivera) and that Atty. Rivera voted as well for his expulsion which made
him accuser, prosecutor and judge at the same time. Atty. de Vera emphasized the fact that Atty. Rivera initially inhibited
himself from voting on his own motion. However, when his inhibition resulted in the defeat of his motion as the necessary
2/3 votes could not be mustered, Atty. Rivera asked for another round of voting so he could vote to support his own
motion.
The IBP Board counters that since its members were present during the plenary session, and personally witnessed
and heard Atty. de Veras actuations, an evidentiary or formal hearing was no longer necessary. Since they all witnessed
and heard Atty. de Vera, it was enough that he was given an opportunity to refute and answer all the charges imputed
against him. They emphasized that Atty. de Vera was given a copy of the complaint and that he was present at the Board
Meeting on 13 May 2005 wherein the letter-complaint against him was part of the agenda. Therein, he was given the
opportunity to be heard and that, in fact, Atty. de Vera did argue his case.
We are in agreement with the IBP Board.
First, it needs stressing that the constitutional provision on due process safeguards life, liberty and property. It
cannot be said that the position of EVP of the IBP is property within the constitutional sense especially since there is no
right to security of tenure over said position as, in fact, all that is required to remove any member of the board of governors
for cause is a resolution adopted by 2/3 of the remaining members of the board.
Secondly, even if the right of due process could be rightfully invoked, still, in administrative proceedings, the
essence of due process is simply the opportunity to explain ones side. At the outset, it is here emphasized that the term due
process of law as used in the Constitution has no fixed meaning for all purposes due to the very nature of the doctrine
which, asserting a fundamental principle of justice rather than a specific rule of law, is not susceptible of more than one
general statement. The phrase is so elusive of exact apprehension, because it depends on circumstances and varies with the
subject matter and the necessities of the situation.
Due process of law in administrative cases is not identical with judicial process for a trial in court is not always
essential to due process. While a day in court is a matter of right in judicial proceedings, it is otherwise in administrative

proceedings since they rest upon different principles. The due process clause guarantees no particular form of procedure
and its requirements are not technical. Thus, in certain proceedings of administrative character, the right to a notice or
hearing are not essential to due process of law. The constitutional requirement of due process is met by a fair hearing
before a regularly established administrative agency or tribunal. It is not essential that hearings be had before the making
of a determination if thereafter, there is available trial and tribunal before which all objections and defenses to the making
of such determination may be raised and considered. One adequate hearing is all that due process requires. What is
required for hearing may differ as the functions of the administrative bodies differ.
The right to cross-examine is not an indispensable aspect of due process. Nor is an actual hearing always essential
especially under the factual milieu of this case where the members of the IBP Board -- upon whose shoulders the
determination of the cause for removal of an IBP governor is placed subject to the approval of the Supreme Court all
witnessed Atty. de Veras actuations in the IBP National Convention in question.
It is undisputed that Atty. de Vera received a copy of the complaint against him and that he was present when the
matter was taken up. From the transcript of the stenographic notes of the 13 May 2005 meeting wherein Atty. de Vera was
removed, it is patent that Atty. de Vera was given fair opportunity to defend himself against the accusations made by Atty.
Rivera.
Atty. de Vera, however, additionally questions the fact that Atty. Rivera, who authored the complaint against him,
also voted for his expulsion making him accuser, prosecutor and judge at the same time. Atty. de Vera likewise laments the
fact that Atty. Rivera initially inhibited himself from voting but when this resulted in the defeat of his motion for lack of
the necessary 2/3 vote, he agreed to another round of voting and that, this time, he voted in favor of his motion.
For the record, of the nine governors comprising the IBP Board, six voted for Atty. de Veras expulsion (including
Atty. Rivera) while 3 voted against it (including Atty. de Vera).
Section 44 (second paragraph) of the IBP By-Laws provides:
Any member of the Board, elective or otherwise, may be removed for cause, including three
consecutive absences from Board meetings without justifiable excuse, by resolution adopted by twothirds of the remaining members of the Board, subject to the approval of the Supreme Court. (Emphasis
supplied.)
Under the rules, a resolution for expulsion of an IBP Governor is done via a resolution adopted by 2/3 of the
remaining members. The phrase remaining members refers to the members exclusive of the complainant member and the
respondent member. The reason therefore is that such members are interested parties and are thus presumed to be unable to
resolve said motion impartially. This being the case, the votes of Attys. Rivera and de Vera should be stricken-off which
means that only the votes of the seven remaining members are to be counted. Of the seven remaining members, five voted
for expulsion while two voted against it which still adds up to the 2/3 vote requirement for expulsion.
The IBP Board removed Atty. de Vera as IBP Governor for just and valid cause
All the concerned parties to this case agree that what constitutes cause for the removal of an IBP Governor has not
been defined by Section 44 of the IBP By-Laws albeit it includes three consecutive absences from Board meetings without
justifiable excuse. Thus, the IBP Board argues that it is vested with sufficient power and authority to protect itself from an
intractable member whose removal was caused not by his disagreement with the IBP Board but due to various acts
committed by him which the IBP Board considered as inimical to the IBP Board in particular and the IBP in general.
Atty. de Vera, on the other hand, insists that speaking in disagreement with the Resolution of the Board during the
Conventions Plenary Session is not a valid cause to remove or expel a duly-elected member of the IBP Board of
Governors and the decision to remove him only shows that the right to freedom of speech or the right to dissent is not
recognized by the IBP Board.
After weighing the arguments of the parties and in keeping with the fundamental objective of the IBP to discharge
its public responsibility more effectively, we hereby find that Atty. de Veras removal from the IBP Board was not
capricious or arbitrary.
Indubitably, conflicts and disagreements of varying degrees of intensity, if not animosity, are inherent in the
internal life of an organization, but especially of the IBP since lawyers are said to disagree before they agree.

However, the effectiveness of the IBP, like any other organization, is diluted if the conflicts are brought outside its
governing body for then there would be the impression that the IBP, which speaks through the Board of Governors, does
not and cannot speak for its members in an authoritative fashion. It would accordingly diminish the IBPs prestige and
repute with the lawyers as well as with the general public.
As a means of self-preservation, internecine conflicts must thus be adjusted within the governing board itself so as
to free it from the stresses that invariably arise when internal cleavages are made public.
The doctrine of majority rule is almost universally used as a mechanism for adjusting and resolving conflicts and
disagreements within the group after the members have been given an opportunity to be heard. While it does not efface
conflicts, nonetheless, once a decision on a contentious matter is reached by a majority vote, the dissenting minority is
bound thereby so that the board can speak with one voice, for those elected to the governing board are deemed to
implicitly contract that the will of the majority shall govern in matters within the authority of the board.
The IBP Board, therefore, was well within its right in removing Atty. de Vera as the latters actuations during the
10th National IBP Convention were detrimental to the role of the IBP Board as the governing body of the IBP. When the
IBP Board is not seen by the bar and the public as a cohesive unit, it cannot effectively perform its duty of helping the
Supreme Court enforce the code of legal ethics and the standards of legal practice as well as improve the administration of
justice.
In view of the importance of retaining group cohesiveness and unity, the expulsion of a member of the board who
insists on bringing to the public his disagreement with a policy/resolution approved by the majority after due discussion,
cannot be faulted. The effectiveness of the board as a governing body will be negated if its pronouncements are resisted in
public by a board member.
Indeed, when a member of a governing body cannot accept the voice of the majority, he should resign therefrom
so that he could criticize in public the majority opinion/decision to his hearts content; otherwise, he subjects himself to
disciplinary action by the body.
The removal of Atty. de Vera as member of the Board of Governors ipso facto
meant his removal as EVP as well
The removal of Atty. de Vera as member of the Board of Governors ipso facto meant his removal as EVP as well.
Section 47, Article VII of the By-Laws of the IBP provides:
SEC. 47. National Officers. The Integrated Bar of the Philippines shall have a President and
Executive Vice President to be chosen by the Board of Governors from among nine (9) regional
governors, as much as practicable, on a rotation basis. x x x

Thus, to be EVP of the IBP, one must necessarily be a member of IBP Board of Governors. Atty. de Veras removal
from the Board of Governors, automatically disqualified him from acting as IBP EVP. To insist otherwise would be
contrary to Section 47 of the IBP By-Laws.
The Court will not interfere with the Resolution of the IBP Board to remove Atty. de Vera since it was rendered without
grave abuse of discretion

While it is true that the Supreme Court has been granted an extensive power of supervision over the IBP, it is
axiomatic that such power should be exercised prudently. The power of supervision of the Supreme Court over the IBP
should not preclude the IBP from exercising its reasonable discretion especially in the administration of its internal affairs
governed by the provisions of its By-Laws. The IBP By-Laws were precisely drafted and promulgated so as to define the
powers and functions of the IBP and its officers, establish its organizational structure, and govern relations and
transactions among its officers and members. With these By-Laws in place, the Supreme Court could be assured that the
IBP shall be able to carry on its day-to-day affairs, without the Courts interference.
It should be noted that the general charge of the affairs and activities of the IBP has been vested in the Board of
Governors. The members of the Board are elective and representative of each of the nine regions of the IBP as delineated
in its By-Laws. The Board acts as a collegiate body and decides in accordance with the will of the majority. The foregoing
rules serve to negate the possibility of the IBP Board acting on the basis of personal interest or malice of its individual

members. Hence, the actions and resolutions of the IBP Board deserve to be accorded the disputable presumption of
validity, which shall continue, until and unless it is overcome by substantial evidence and actually declared invalid by the
Supreme Court. In the absence of any allegation and substantial proof that the IBP Board has acted without or in excess of
its authority or with grave abuse of discretion, we shall not be persuaded to overturn and set aside the Boards action or
resolution.
There is no question that the IBP Board has the authority to remove its members as provided in Article VI, Section
44 of the IBP By-Laws. Issue arises only as to whether the IBP Board abused its authority and discretion in resolving to
remove Atty. de Vera from his post as an IBP Governor and EVP. As has been previously established herein, Atty. de Veras
removal from the IBP Board was in accordance with due process and the IBP Board acted well within the authority and
discretion granted to it by its By-Laws. There being no grave abuse of discretion on the part of the IBP Board, we find no
reason to interfere in the Boards resolution to remove Atty. de Vera.
The election of Atty. Salazar by the IBP Board as IBP EVP in replacement of
Atty. De Vera was conducted in accordance with the authority granted to the
Board by the IBP By-Laws
In the same manner, we find no reason to disturb the action taken by the 2003-2005 IBP Board of Governors in
holding a special election to fill-in the vacant post resulting from the removal of Atty. de Vera as EVP of the IBP since the
same is a purely internal matter, done without grave abuse of discretion, and implemented without violating the Rules and
By-Laws of the IBP.
With the removal of Atty. de Vera from the Board, by virtue of the IBP Board Resolution dated 13 May 2005, he
was also removed from his post as EVP; thus, there was a resultant vacancy in the position of IBP EVP.
Article VI, Section 41(g) of the IBP By-Laws expressly grants to the Board the authority to fill vacancies,
however arising, in the IBP positions, subject to the provisions of Section 8 of the Integration Rule, and Section 11
(Vacancies), Section 44 (Removal of members), Section 47 (National officers), Section 48 (other officers), and Section 49
(Terms of Office) of the By-Laws. The IBP Board has specific and sufficient guidelines in its Rules and By-Laws on how
to fill-in the vacancies after the removal of Atty. de Vera. We have faith and confidence in the intellectual, emotional and
ethical competencies of the remaining members of the 2005-2007 Board in dealing with the situation within the bounds of
the IBP Rules and By-Laws.
The election by the 2003-2005 IBP Board of Governors of a new EVP, who will assume the Presidency for the
term 2005-2007, was well within the authority and prerogative granted to the Board by the IBP By-Laws, particularly
Article VII, Section 47, which provides that [t]he EVP shall automatically become President for the next succeeding term.
The phrase for the next succeeding term necessarily implies that the EVP that should succeed Atty. Cadiz as IBP President
for the next succeeding term (i.e., 2005-2007) should come from the members of the 2003-2005 IBP Board of Governors.
Hence, in A.M. No. 05-7-19-SC, we restrained now IBP EVP Feliciano Bautista from assuming the position of Acting
President because we have yet to resolve the question as to who shall succeed Atty. Cadiz from the 2003-2005 IBP Board
of Governors.
Accordingly, the elections of Governor Santiago on 13 June 2005 as IBP EVP, and thereafter, Governor Salazar
on 25 June 2005, as the new IBP EVP, upon the relinquishment of Gov. Santiago of the position, were valid.
Neither can this Court give credence to the argument of Atty. De Vera that, assuming his removal as IBP Governor
and EVP was valid, his replacement as IBP EVP should come from Eastern Mindanao Region pursuant to the rotation rule
set forth in Article VII, Section 47, of the IBP By-Laws.
According to Article VII, Section 47, of the IBP By-Laws, the EVP shall be chosen by the Board of Governors
from among the nine Regional Governors, as much as practicable, on a rotation basis. This is based on our
pronouncements in Bar Matter 491, wherein we ruled:
ORDER
xxxx
3.
The former system of having the IBP President and Executive Vice-President elected by the
Board of Governors (composed of the governors of the nine [9] IBP regions) from among themselves (as
provided in Sec. 47, Art. VII, Original IBP By-Laws) should be restored. The right of automatic
succession by the Executive Vice-President to the presidency upon the expiration of their two-year term

(which was abolished by this Court's resolution dated July 9, 1985 in Bar Matter No. 287) should be as it
is hereby restored.
4.
At the end of the President's two-year term, the Executive Vice-President shall automatically
succeed to the office of president. The incoming board of governors shall then elect an Executive VicePresident from among themselves. The position of Executive Vice-President shall be rotated among
the nine (9) IBP regions. One who has served as president may not run for election as Executive VicePresident in a succeeding election until after the rotation of the presidency among the nine (9) regions
shall have been completed; whereupon, the rotation shall begin anew.
xxxx
(Emphasis Supplied)
In Bar Matter 491, it is clear that it is the position of IBP EVP which is actually rotated among the nine Regional
Governors. The rotation with respect to the Presidency is merely a result of the automatic succession rule of the IBP EVP
to the Presidency. Thus, the rotation rule pertains in particular to the position of IBP EVP, while the automatic succession
rule pertains to the Presidency. The rotation with respect to the Presidency is but a consequence of the automatic
succession rule provided in Section 47 of the IBP By-Laws.
In the case at bar, the rotation rule was duly complied with since upon the election of Atty. De Vera as IBP EVP, each
of the nine IBP regions had already produced an EVP and, thus, the rotation was completed. It is only unfortunate that
the supervening event of Atty. de Veras removal as IBP Governor and EVP rendered it impossible for him to assume
the IBP Presidency. The fact remains, however, that the rotation rule had been completed despite the non-assumption
by Atty. de Vera to the IBP Presidency.
Moreover, the application of the rotation rule is not a license to disregard the spirit and purpose of the automatic
succession rule, but should be applied in harmony with the latter. The automatic succession rule affords the IBP
leadership transition seamless and enables the new IBP National President to attend to pressing and urgent matters
without having to expend valuable time for the usual adjustment and leadership consolidation period. The time that an
IBP EVP spends assisting a sitting IBP President on matters national in scope is in fact a valuable and indispensable
preparation for the eventual succession. It should also be pointed out that this wisdom is further underscored by the
fact that an IBP EVP is elected from among the members of the IBP Board of Governors, who are serving in a
national capacity, and not from the members at large. It is intrinsic in the IBP By-Laws that one who is to assume the
highest position in the IBP must have been exposed to the demands and responsibilities of national leadership.
It would therefore be consistent with the purpose and spirit of the automatic succession rule for Governor Salazar to
assume the post of IBP President. By electing the replacement EVP from among the members of the 2003-2005 Board
of Governors, the IBP benefits from the experience of the IBP EVP of 2003-2005 in this case, Governor Salazar who
would have served in a national capacity prior to his assumption of the highest position.
It will also be inconsistent with the purpose and spirit of the automatic succession rule if the EVP for the term 20032005 will be elected exclusively by the members of the House of Delegates of the Eastern Mindanao region. This
Court notes that the removal of Atty. De Vera in 13 May 2005 was about a month before the expiration of the term of
office of the 2003-2005 Board of Governors. Hence, the replacement Governor would not have been able to serve in a
national capacity for two years prior to assuming the IBP Presidency.
In any case, Section 47 of the IBP Rules uses the phrase as much as practicable to clearly indicate that the rotation
rule is not a rigid and inflexible rule as to bar exceptions in compelling and exceptional circumstances.
It is in view of the foregoing that the argument advanced by Atty. De Vera that the IBP national presidency should be
assumed by a nominee from Eastern Mindanao region from where he comes, can not hold water. It would go against
the intent of the IBP By-Laws for such a nominee would be bereft of the wealth of experience and the perspective that
only one who is honed in service while serving in a national post in the IBP would have.
We therefore rule that the IBP Board of Governors acted in accordance with the IBP By-Laws, in electing Atty.
Salazar as IBP EVP and in ensuring a succession in the leadership of the IBP. Had the Board of Governors not done so,
there would have been no one qualified to assume the Presidency of the IBP on 1 July 2005, pursuant to Section 47 of the
IBP By-Laws.

WHEREFORE, in view of the foregoing, we rule as follows:

1

SUSPEND Atty. Leonard de Vera in A.C. No. 6697 from the practice of law for TWO (2) YEARS,
effective from the finality of this Resolution. Let a copy of this Resolution be attached to the personal
record of Atty. Leonard de Vera and copies furnished the Integrated Bar of the Philippines and the
Office of the Court Administrator for dissemination to all courts;
DISMISS the letter-complaint of Atty. Leonard de Vera, dated 18 May 2005, in A.M. No. 05-5-15SC, praying for the disapproval of the Resolution, dated 13 May 2005, of the Board of Governors of
the Integrated Bar of the Philippines removing him from his posts as Governor and Executive Vice
President of the Integrated Bar of the Philippines, the said Resolution having been rendered without
grave abuse of discretion;
AFFIRM the election by the Board of Governors of Atty. Jose Vicente B. Salazar as Executive Vice
President of the Integrated Bar of the Philippines for the remainder of the term 2003-2005, such
having been conducted in accordance with its By-Laws and absent any showing of grave abuse of
discretion; and
DIRECT Atty. Jose Vicente B. Salazar to immediately take his oath of office and assume the
Presidency of the Integrated Bar of the Philippines for the term 2005-2007 in accordance with the
automatic succession rule in Article VII, Section 47 of the IBP By-Laws, upon receipt of this
Resolution.
SO ORDERED.

A.C. No. 7204

March 7, 2007

CYNTHIA ADVINCULA, Complainant,

vs.
ATTY. ERNESTO M. MACABATA, Respondent.

RESOLUTION

CHICO-NAZARIO, J.:

Before Us is a complaint1 for disbarment filed by Cynthia Advincula against respondent Atty. Ernesto M. Macabata,
charging the latter with Gross Immorality.
Complainant alleged the following:
Sometime on 1st week of December 2004 complainant [Cynthia Advincula] seek the legal advice of the respondent [Atty.
Macabata], regarding her collectibles from Queensway Travel and Tours. As promised, he sent Demand Letter dated
December 11, 2004 (copy attached as Annex "I") to the concerned parties.

On February 10, 2005, met (sic) at Zensho Restaurant in Tomas Morato, Quezon City to discuss the possibility of filing
the complaint against Queensway Travel and Tours because they did not settle their accounts as demanded. After the
dinner, respondent sent complainant home and while she is about to step out of the car, respondent hold (sic) her arm and
kissed her on the cheek and embraced her very tightly.

Again, on March 6, 2005, at about past 10:00 in the morning, she met respondent at Starbucks coffee shop in West
Avenue, Quezon City to finalize the draft of the complaint to be filed in Court. After the meeting, respondent offered

again a ride, which he usually did every time they met. Along the way, complainant was wandering (sic) why she felt so
sleepy where in fact she just got up from bed a few hours ago. At along Roosevelt Avenue immediately after corner of
Felipe St., in San Francisco Del Monte, Quezon City when she was almost restless respondent stopped his car and
forcefully hold (sic) her face and kissed her lips while the other hand was holding her breast. Complainant even in a state
of shocked (sic) succeeded in resisting his criminal attempt and immediately manage (sic) to go (sic) out of the car.

In the late afternoon, complainant sent a text message to respondent informing him that she decided to refer the case with
another lawyer and needs (sic) to get back the case folder from him. The communications transpired was recorded in her
cellular phone and read as follows:

Sent by complainant
At 5:33:46 pm - forget the case. I decided to refer it with other lawyer
replied by respondent
at 6:16:11 pm - "does this mean I can not c u anymore"
(Does this mean I cannot see you anymore)
sent by complainant
at 6:17:59 pm - I feel bad. I cant expect that u will take advantage of the situation.
Follow-up message
Sent by complainant
At 6:29:30 pm - wrong to kiss a girl especially in the lips if you dont have relationship with her.
Replied by respondent
At 6:32:43 pm - "Im veri sri. Its not tking advantage of the situation, 2 put it rightly it s an expression of feeling. S sri"
(Im very sorry. Its not taking advantage of the situation, to put it rightly it is an expression of feeling)
Follow up message
by respondent
at 6:42:25 pm - Im s sri. Il not do it again. Wil u stil c me s I can show u my sincerity" (Im so sorry. Ill not do it again.
Will you still see me so I can show you my sincerity)

On the following day, March 7, 2005 respondent sent another message to complainant at 3:55:32 pm saying "I dont know
wat 2 do s u may 4give me. "Im realy sri. Puede bati na tyo." (I dont know what to do so you may forgive me. Im really
sorry. Puede bati na tayo).

Respondent replied "talk to my lawyer in due time." Then another message was received by her at 4:06:33 pm saying
"Ano k ba. Im really sri. Pls. Nxt ime bhave n me." (Ano ka ba. Im really sorry. Please next time behave na ko), which is
a clear manifestation of admission of guilt.

In his answer, respondent admitted that he agreed to provide legal services to the complainant; that he met with
complainant on 10 February 2005 and 6 March 2005, to discuss the relevant matters relative to the case which
complainant was intending to file against the owners of Queensway Travel and Tours for collection of a sum of money;
that on both occasions, complainant rode with him in his car where he held and kissed complainant on the lips as the
former offered her lips to him; and, that the corner of Cooper Street and Roosevelt Avenue, where he dropped off the

complainant, was a busy street teeming with people, thus, it would have been impossible to commit the acts imputed to
him.

By way of defense, respondent further elucidated that: 1) there was a criminal case for Acts of Lasciviousness filed by
complainant against respondent pending before the Office of the City Prosecutor in Quezon City; 2) the legal name of
complainant is Cynthia Advincula Toriana since she remains married to a certain Jinky Toriana because the civil case for
the nullification of their marriage was archived pursuant to the Order dated 6 December 2000 issued by the Regional Trial
Court of Maburao, Occidental Mindoro; 3) the complainant was living with a man not her husband; and 4) the
complainant never bothered to discuss respondents fees and it was respondent who always paid for their bills every time
they met and ate at a restaurant.

A hearing was conducted by the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP) at the IBP
Building, Ortigas Center, Pasig City, on 26 July 2005.
On 30 September 2005, Investigating Commissioner Dennis A. B. Funa submitted his Report and Recommendation,
recommending the imposition of the penalty of one (1) month suspension on respondent for violation of the Code of
Professional Responsibility.

Thereafter, the IBP passed Resolution No. XVII-2006-117 dated 20 March 2006, approving and adopting, with
modification, the recommendation of the Investigating Commissioner, thus:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the Report and
Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as
Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules,
and considering the behavior of Respondent went beyond the norms of conduct required of a lawyer when dealing with or
relating with a client, Atty. Ernesto A. Macabata is SUSPENDED from the practice of law for three (3) months.

The issue to be resolved in this case is: whether respondent committed acts that are grossly immoral or which constitute
serious moral depravity that would warrant his disbarment or suspension from the practice of law.

Simple as the facts of the case may be, the manner by which we deal with respondents actuations shall 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. This permissiveness notwithstanding, lawyers, as keepers of public faith, are
burdened with a high degree of social responsibility and, hence, must handle their personal affairs with greater caution.

The Code of Professional Responsibility provides:

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

As may be gleaned from above, the Code of Professional Responsibility forbids lawyers from engaging in unlawful,
dishonest, immoral or deceitful conduct.

Lawyers have been repeatedly reminded that their possession of good moral character is a continuing condition to
preserve their membership in the Bar in good standing. The continued possession of good moral character is a requisite
condition for remaining in the practice of law. In Aldovino v. Pujalte, Jr., we emphasized that:
This Court has been exacting in its demand for integrity and good moral character of members of the Bar. They are
expected at all times to uphold the integrity and dignity of the legal profession and refrain from any act or omission which
might lessen the trust and confidence reposed by the public in the fidelity, honesty, and integrity of the legal profession.
Membership in the legal profession is a privilege. And whenever it is made to appear that an attorney is no longer worthy
of the trust and confidence of the public, it becomes not only the right but also the duty of this Court, which made him one
of its officers and gave him the privilege of ministering within its Bar, to withdraw the privilege.

It is the bounden duty of lawyers to adhere unwaveringly to the highest standards of morality. 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. We explained in Barrientos v. Daarol that, "as officers of the court, lawyers must not only in fact be of good
moral character but must also be seen to be of good moral character and leading lives in accordance with the highest
moral standards of the community."

Lawyers are expected to abide by the tenets of morality, not only upon admission to the Bar but also throughout their legal
career, in order to maintain their good standing in this exclusive and honored fraternity. They may be suspended from the
practice of law or disbarred for any misconduct, even if it pertains to his private activities, as long as it shows him to be
wanting in moral character, honesty, probity or good demeanor.

In Bar Matter No. 1154, good moral character was defined as what a person really is, as distinguished from good
reputation, or from the opinion generally entertained of him, or the estimate in which he is held by the public in the place
where he is known. Moral character is not a subjective term but one which corresponds to objective reality.

It should be noted that the requirement of good moral character has four ostensible purposes, namely: (1) to protect the
public; (2) to protect the public image of lawyers; (3) to protect prospective clients; and (4) to protect errant lawyers from
themselves.

In the case at bar, respondent admitted kissing complainant on the lips.

In his Answer, respondent confessed, thus:

27. When she was about to get off the car, I said can I kiss you goodnight. She offered her left cheek and I kissed it and
with my left hand slightly pulled her right face towards me and kissed her gently on the lips. We said goodnight and she
got off the car.
xxxx
35. When I stopped my car I said okay. I saw her offered (sic) her left cheek and I lightly kissed it and with my right hand
slightly pulled her right cheek towards me and plant (sic) a light kiss on her lips. There was no force used. No intimidation

made, no lewd designs displayed. No breast holding was done. Everything happened very spontaneously with no reaction
from her except saying "sexual harassment."

During the hearing held on 26 July 2005 at the 3rd floor, IBP Building, Dona Julia Vargas Avenue, Ortigas City,
respondent candidly recalled the following events:

ATTY. MACABATA:
That time in February, we met I fetched her I should say, somewhere along the corner of Edsa and Kamuning because
it was then raining so we are texting each other. So I parked my car somewhere along the corner of Edsa and Kamuning
and I was there about ten to fifteen minutes then she arrived. And so I said she opened my car and then she went inside
so I said, would you like that we have a Japanese dinner? And she said yes, okay. So I brought her to Zensho which is
along Tomas Morato. When we were there, we discussed about her case, we ordered food and then a little while I told her,
would it be okay for you of I (sic) order wine? She said yes so I ordered two glasses of red wine. After that, after
discussing matters about her case, so I said its about 9:00 or beyond that time already, so I said okay, lets go. So when
I said lets go so I stood up and then I went to the car. I went ahead of my car and she followed me then she rode on (sic)
it. So I told her where to? She told me just drop me at the same place where you have been dropping me for the last
meetings that we had and that was at the corner of Morato and Roosevelt Avenue. So, before she went down, I told her can
I kiss you goodnight? She offered her left cheek and I kissed it and with the slight use of my right hand, I ... should I say
tilted her face towards me and when shes already facing me I lightly kissed her on the lips. And then I said good night.
She went down the car, thats it.

COMM. FUNA:
February 10 iyan.
xxxx

ATTY. MACABATA:
Okay. After that were through so I said lets go because I have an appointment. So we went out, we went inside my car
and I said where to? Same place, she said, so then at the same corner. So before she went down , before she opened the
door of the car, I saw her offered her left cheek. So I kissed her again.

COMM. FUNA:
Pardon?

ATTY. MACABATA:
I saw her offered her left cheek like that, so I kissed her again and then with the use of my left hand, pushed a little bit her
face and then kissed her again softly on the lips and thats it. x x x. (Emphases supplied.)

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.

In Zaguirre v. Castillo, we reiterated the definition of immoral conduct, as such conduct which is so willful, flagrant, or
shameless as to show indifference to the opinion of good and respectable members of the community. Furthermore, for
such conduct to warrant disciplinary action, the same must not simply be immoral, but grossly immoral. It must be so
corrupt as to constitute a criminal act, or so unprincipled as to be reprehensible to a high degree or committed under such
scandalous or revolting circumstances as to shock the common sense of decency.

The following cases were considered by this Court as constitutive of grossly immoral conduct:

In Toledo v. Toledo, a lawyer was disbarred from the practice of law, when he abandoned his lawful wife and cohabited
with another woman who had borne him a child.

In Obusan v. Obusan, Jr., a lawyer was disbarred after complainant proved that he had abandoned her and maintained an
adulterous relationship with a married woman. This court declared that respondent failed to maintain the highest degree of
morality expected and required of a member of the bar.

In Dantes v. Dantes, respondents act of engaging in illicit relationships with two different women during the subsistence
of his marriage to the complainant constitutes grossly immoral conduct warranting the imposition of appropriate
sanctions. Complainants testimony, taken in conjunction with the documentary evidence, sufficiently established that
respondent breached the high and exacting moral standards set for members of the law profession.

In Delos Reyes v. Aznar, it was ruled that 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 flank in all her subjects in case
she refused.

In Cojuangco, Jr. v. Palma, respondent lawyer was disbarred when he abandoned his lawful wife and three children, lured
an innocent woman into marrying him and misrepresented himself as a "bachelor" so he could contract marriage in a
foreign land.

In Macarrubo v. Macarrubo, respondent entered into multiple marriages and then resorted to legal remedies to sever them.
There, we ruled that "[s]uch pattern of misconduct by respondent undermines the institutions of marriage and family,
institutions that this society looks to for the rearing of our children, for the development of values essential to the survival
and well-being of our communities, and for the strengthening of our nation as a whole." As such, "there can be no other
fate that awaits respondent than to be disbarred."

In Tucay v. Tucay, respondent contracted marriage with another married woman and left complainant with whom he has
been married for thirty years. We ruled that such acts constitute "a grossly immoral conduct and only indicative of an
extremely low regard for the fundamental ethics of his profession," warranting respondents disbarment.

In Villasanta v. Peralta, respondent married complainant while his first wife was still alive, their marriage still valid and
subsisting. We held that "the act of respondent of contracting the second marriage is contrary to honesty, justice, decency
and morality." Thus, lacking the good moral character required by the Rules of Court, respondent was disqualified from
being admitted to the bar.

In Cabrera v. Agustin, respondent lured an innocent woman into a simulated marriage and thereafter satisfied his lust. We
held that respondent failed to maintain that degree of morality and integrity which, at all times, is expected of members of
the bar. He is, therefore, disbarred from the practice of law.

Immorality has not been confined to sexual matters, but includes conduct inconsistent with rectitude, or indicative of
corruption, indecency, depravity and dissoluteness; or is willful, flagrant, or shameless conduct showing moral
indifference to opinions of respectable members of the community, and an inconsiderate attitude toward good order and
public welfare.

Guided by the definitions above, we perceived acts of kissing or beso-beso on the cheeks as mere gestures of friendship
and camaraderie, forms of greetings, casual and customary. The acts of respondent, though, in turning the head of
complainant towards him and kissing her on the lips are distasteful. However, such act, even if considered offensive and
undesirable, cannot be considered grossly immoral.

Complainants bare allegation that respondent made use and took advantage of his position as a lawyer to lure her to agree
to have sexual relations with him, deserves no credit. The burden of proof rests on the complainant, and she must establish
the case against the respondent by clear, convincing and satisfactory proof, disclosing a case that is free from doubt as to
compel the exercise by the Court of its disciplinary power. Thus, the adage that "he who asserts not he who denies, must
prove." As a basic rule in evidence, the burden of proof lies on the party who makes the allegationsei incumbit
probation, qui decit, non qui negat; cum per rerum naturam factum negantis probation nulla sit. In the case at bar,
complainant miserably failed to comply with the burden of proof required of her. A mere charge or allegation of
wrongdoing does not suffice. Accusation is not synonymous with guilt.

Moreover, while respondent admitted having kissed complainant on the lips, the same was not motivated by malice. We
come to this conclusion because right after the complainant expressed her annoyance at being kissed by the respondent
through a cellular phone text message, respondent immediately extended an apology to complainant also via cellular
phone text message. The exchange of text messages between complainant and respondent bears this out.

Be it noted also that the incident happened in a place where there were several people in the vicinity considering that
Roosevelt Avenue is a major jeepney route for 24 hours. If respondent truly had malicious designs on complainant, he
could have brought her to a private place or a more remote place where he could freely accomplish the same.

All told, as shown by the above circumstances, respondents acts are not grossly immoral nor highly reprehensible to
warrant disbarment or suspension.

The question as to what disciplinary sanction should be imposed against a lawyer found guilty of misconduct requires
consideration of a number of factors. When deciding upon the appropriate sanction, the Court must consider that the
primary purposes of disciplinary proceedings are to protect the public; to foster public confidence in the Bar; to preserve
the integrity of the profession; and to deter other lawyers from similar misconduct. Disciplinary proceedings are means of
protecting the administration of justice by requiring those who carry out this important function to be competent,
honorable and reliable men in whom courts and clients may repose confidence. While it is discretionary upon the Court to
impose a particular sanction that it may deem proper against an erring lawyer, it should neither be arbitrary and despotic
nor motivated by personal animosity or prejudice, but should ever be controlled by the imperative need to scrupulously
guard the purity and independence of the bar and to exact from the lawyer strict compliance with his duties to the court, to
his client, to his brethren in the profession and to the public.

The power to disbar or suspend ought always to be exercised on the preservative and not on the vindictive principle, with
great caution and only for the most weighty reasons and only on clear cases of misconduct which seriously affect the
standing and character of the lawyer as an officer of the court and member of the Bar. Only those acts which cause loss of
moral character should merit disbarment or suspension, while those acts which neither affect nor erode the moral character
of the lawyer should only justify a lesser sanction unless they are of such nature and to such extent as to clearly show the
lawyers unfitness to continue in the practice of law. The dubious character of the act charged as well as the motivation
which induced the lawyer to commit it must be clearly demonstrated before suspension or disbarment is meted out. The
mitigating or aggravating circumstances that attended the commission of the offense should also be considered.

Censure or reprimand is usually meted out for an isolated act of misconduct of a lesser nature. It is also imposed for some
minor infraction of the lawyers duty to the court or the client. In the Matter of Darell Adams, a lawyer was publicly
reprimanded for grabbing a female client, kissing her, and raising her blouse which constituted illegal conduct involving
moral turpitude and conduct which adversely reflected on his fitness to practice law.

Based on the circumstances of the case as discussed and considering that this is respondents first offense, reprimand
would suffice.

We laud complainants effort to seek redress for what she honestly believed to be an affront to her honor. Surely, it was
difficult and agonizing on her part to come out in the open and accuse her lawyer of gross immoral conduct. However, her
own assessment of the incidents is highly subjective and partial, and surely needs to be corroborated or supported by more
objective evidence.

WHEREFORE, the complaint for disbarment against respondent Atty. Ernesto Macabata, for alleged immorality, is hereby
DISMISSED. However, respondent is hereby REPRIMANDED to be more prudent and cautious in his dealing with his
clients with a STERN WARNING that a more severe sanction will be imposed on him for any repetition of the same or
similar offense in the future.

SO ORDERED.