Canon 1 To 2 PALE Prelim Cases Compilation

PALE CASES CANON 1-2 PRELIM 1
REMEDIOS RAMIREZ TAPUCAR, complainant, vs. ATTY. LAURO L. TAPUCAR, respondent.

DECISION
PER CURIAM:
In a letter-complaint dated November 22, 1993, complainant Remedios Ramirez Tapucar sought the disbarment of her husband, Atty.
Lauro L. Tapucar, on the ground of continuing grossly immoral conduct for cohabiting with a certain Elena (Helen) Pea under
scandalous circumstances.[1]
Prior to this complaint, respondent was already administratively charged four times for conduct unbecoming an officer of the court. in
Administrative Matter No. 1740, resolved on April 11, 1980, respondent, at that time the Judge of Butuan City, was meted the penalty
of six months suspension without pay, [2] while in Administrative Matter Nos. 1720, 1911 and 2300-CFI, which were consolidated, [3] this
Court on January 31, 1981 ordered the separation from service of respondent. [4]
Now he faces disbarment.
The records reveal the following facts:
From the Report and Recommendation of the Commission on Bar Discipline, it appears that complainant and respondent were married
on October 29, 1953 at the Sacred Heart Roman Catholic Church in Quezon City. They established their residence in Antipolo, Rizal,
were eight of their eleven children were born. In 1962 respondent relocated his family to Dadiangas, Cotabato (Now General Santos
City), where his last three children were born and where he practiced his profession until his appointment as a CFI Judge in Butuan
City on January 30, 1976.
In August, 1976, shortly after being appointed as CFI Judge, respondent began cohabiting with a certain Elena (Helen) Pea, in Nasipit,
Agusan Del Norte. On December 28, 1977 Elena gave birth to their first child, named Ofelia Sembrano Pea.
In view of this cohabitation, a certain Atty. Tranquilino Calo filed an administrative complaint against respondent for immorality. After
investigation, the penalty of suspension from office for a period of six months without pay was meted by this Court upon respondent.
[5]
Despite this penalty, respondent still continued to cohabit with Elena, giving rise to another charge of immorality and other
administrative cases, such as conduct unbecoming an officer of the court, and grossly immoral conduct. These cases were
consolidated and after investigation, this Court ordered his dismissal and separation from the service. [6]
But his dismissal as a judge did not impel respondent to mend his ways. He continued living with Elena, which resulted in the birth on
September 20, 1989, of their second child named Laella Pea Tapucar. Moreover, he completely abandoned complainant and his
children by her.
Respondent later moved from Nasipit, Agusan del Norte back to Antipolo, Rizal, bringing along Elena and their two children. And
onMarch 5, 1992, respondent contracted marriage with Elena in a ceremony solemnized by Metropolitan Trial Court Judge Isagani A.
Geronimo of Antipolo, Rizal. This was done while the respondents marriage to complainant subsists, as nothing on record shows the
dissolution thereof.
Complainant, in the meanwhile, had migrated to United States of America upon her retirement from the government service in
1990.However, her children, who remained in Antipolo, kept her posted of the misery they allegedly suffered because of their fathers
acts, including deception and intrigues against them. Thus, despite having previously withdrawn a similar case which she filed in
1976, complainant was forced to file the present petition for disbarment under the compulsion of the material impulse to shield and
protect her children from the despotic and cruel acts of their own father. Complainant secured the assistance of her eldest daughter,
Atty. Ma. Susana Tapucar-Baua, to represent her in this case.
Consistent with Section 20, Rule 139-B of the Rules of Court, the matter was referred to the Commission on Bar Discipline of the
Integrated Bar of the Philippines for investigation, report and recommendation. After conducting a thorough investigation, the
Commission through Commissioner Victor C. Fernandez recommended that respondent be disbarred, and his name be stricken off the
roll of attorneys.Mainly, this was premised on the ground that, notwithstanding sanctions previously imposed upon him by the
Honorable Supreme Court, respondent continued the illicit liaison with Elena. [7]
In his report Commissioner Fernandez noted that, instead of contradicting the charges against him, respondent displayed arrogance,
and even made a mockery of the law and the Court, as when he said:
I have been ordered suspended by Supreme Court for two months without pay in 1980 for having a mistress, the same girl Ms. Elena
(Helen) Pea, now my wife. Being ordered separated in later administrative case constitute double jeopardy. If now disbarred for
marrying Ms. Elena Pea will constitute triple jeopardy. If thats the law so be it.[8]
Based on said report, the Board of Governors of the Integrated Bar of the Philippines, passed on May 17, 1997, a Resolution adopting
the Commissioners recommendation, as follows:
RESOLUTION NO. XII-97-97
Adm. Case No. 4148
Remedios Ramirez Tapucar vs. Atty. Lauro L. Tapucar
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating
Commissioner in the above-titled case, herein made part of the Resolution/Decision as Annex A; and, finding the recommendation
therein to be fully supported by the evidence on record and the applicable laws and rules, Respondent Atty. Lauro L. Tapucar is hereby
DISBARRED and that his name be stricken off the roll of attorneys.
We find the Report and Recommendation of Commissioner Fernandez, as approved and adopted by the Board of Governors of IBP,
more than sufficient to justify and support the foregoing Resolution, herein considered as the recommendation to this Court by said
Board pursuant to Rule 139-B, Sec. 12(b), of the Rules of Court. * We are in agreement that respondents actuations merit the penalty
of disbarment.
Well settled is the rule that good moral character is not only a condition precedent for admission to the legal profession, but it must
also remain intact in order to maintain ones good standing in that exclusive and honored fraternity. [9] There is perhaps no profession
after that of the sacred ministry in which a high-toned morality is more imperative than that of law. [10] The Code of Professional
Responsibility mandates that:
Rule 1.01. A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
Rule 7.03 A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor should he, whether in public
or private life, behave in a scandalous manner to the discredit of the legal profession.*
As this Court often reminds members of the Bar, they must live up to the standards and norms expected of the legal profession, by
upholding the ideals and tenets embodied in the Code of Professional Responsibility always. Lawyers must maintain a high standards
of legal proficiency, as well as morality including honesty, integrity and fair dealing. For they are at all times subject to the
scrutinizing eye of public opinion and community approbation. Needless to state, those whose conduct both public and private fails
this scrutiny would have to be disciplined and, after appropriate proceedings, penalized accordingly.
Moreover, it should be recalled that respondent here was once a member of the judiciary, a fact that aggravates this professional
infractions. For having occupied that place of honor in the Bench, he knew a judges actuations ought to be free from any appearance
of impropriety.[11] For a judge is the visible representation of the law, more importantly, of justice. Ordinary citizens consider him as a
source of strength that fortifies their will to obey the law. [12] Indeed, a judge should avoid the slightest infraction of the law in all of his
actuations, lest it be a demoralizing example to others. [13] Surely, respondent could not have forgotten the Code of Judicial Conduct
entirely as to lose its moral imperatives.[14]
Like a judge who is held to a high standard of integrity and ethical conduct, [15] an attorney-at-law is also invested with public
trust.Judges and lawyers serve in the administration of justice. Admittedly, as officers of the court, lawyers must ensure the faith and
confidence of the public that justice is administered with dignity and civility. A high degree or moral integrity is expected of a lawyer
in the community where he resides. He must maintain due regard for public decency in an orderly society.
A lawyer is expected at all times to uphold the integrity and dignity of the legal profession by faithfully performing his duties to
society, to the bar, to the courts and to his clients. [16] Exacted from him, as a member of the profession charged with the responsibility
to stand as a shield in the defense of what is right, are such positive qualities of decency, truthfulness and responsibility that have
been compendiously described as moral character. To achieve such end, every lawyer needs to strive at all times to honor and
maintain the dignity of his profession, and thus improve not only the public regard for the Bar but also the administration of justice.
On these considerations, the Court may disbar or suspend a lawyer for misconduct, whether in his professional or private capacity,
which shows him to be wanting in moral character, in honesty, probity, and good demeanor, thus proving unworthy to continue as an
officer of the court.[17]

The power to disbar, however, is one to be exercised with great caution, and only in a clear case of misconduct which seriously
affects the standing and character of the lawyer as an officer of the Court of and member of the bar. [18] For disbarment proceedings
are intended to afford the parties thereto full opportunity to vindicate their cause before disciplinary action is taken, to assure the
general public that those who are tasked with the duty of administering justice are competent, honorable, trustworthy men and
women in whom the Courts and the clients may repose full confidence.
In the case of Obusan vs. Obusan, Jr., [19] a complaint for disbarment was filed against a member of the bar by his wife. She was able to
prove that he had abandoned his wife and their son; and that he had adulterous relations with a married but separated
woman. Respondent was not able to overcome the evidence presented by his wife that he was guilty of grossly immoral conduct. In
another case,[20] a lawyer was disbarred when he abandoned his lawful wife and cohabited with another woman who had borne him a
child. The Court held that respondent failed to maintain the highest degree of morality expected and required of a member of a bar.
In the present case, the record shows that despite previous sanctions imposed upon by this Court, respondent continued his illicit
liaison with a woman other than lawfully-wedded wife. The report of the Commissioner assigned to investigate thoroughly the
complaint found respondent far from contrite; on the contrary, he exhibited a cavalier attitude, even arrogance; in the face of charges
against him. The IBP Board of Governors, tasked to determine whether he still merited the privileges extended to a member of the
legal profession, resolved the matter against him. For indeed, evidence of grossly immoral conduct abounds against him and could
not be explained away. Keeping a mistress, entering into another marriage while a prior one still subsists, as well as abandoning
and/or mistreating complainant and their children, show his disregard of family obligations, morality and decency, the law and the
lawyers oath. Such gross misbehavior over a long period of time clearly shows a serious flaw in respondents character, his moral
indifference to scandal in the community, and his outright defiance of established norms. All these could not but put the legal
profession in disrepute and place the integrity of the administration of justice in peril, hence the need for strict but appropriate
disciplinary action.
IN VIEW THEREOF, respondent Atty. Lauro L. Tapucar is hereby DISBARRED. The Clerk of Court is directed to strike out his name from
the Roll of Attorneys.
FRANCISCO SALVADOR B. G.R. No. 156643
ACEJAS III,
Petitioner, Present:
Panganiban, CJ,
Chairman,
- versus - Ynares-Santiago,
Austria-Martinez,
Callejo, Sr., and
Chico-Nazario, JJ
PEOPLE OF THE PHILIPPINES,
Respondent.
x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x
VLADIMIR S. HERNANDEZ, G.R. No. 156891
Petitioner,
- versus -
Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent. June 27, 2006
x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x
DECISION
PANGANIBAN, CJ:
T
his Court defers to the Sandiganbayans evaluation of the factual issues. Not having heard any cogent reasons to justify an exception
to this rule, the Court adopts the anti-graft courts findings. In any event, after meticulously reviewing the records, we find no ground
to reverse the Sandiganbayan.
The Case
Before us are consolidated Petitions for Review [1] assailing the March 8, 2002 Decision,[2] and the January 3[3]and 14,
2003[4] Resolutions of the Sandiganbayan in Criminal Case No. 20194. Francisco SB. Acejas III and Vladimir S. Hernandez were found
guilty beyond reasonable doubt of direct bribery penalized under Article 210 of the Revised Penal Code.
Vladimir S. Hernandez, Victor D. Conanan, SPO3 Expedito S. Perlas, Francisco SB. Acejas III and Jose P. Victoriano were charged
on February 8, 1994, in an Information that reads thus:
That on or about January 12, 1994, or sometime prior thereto in the City of Manila, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused VLADIMIR S. HERNANDEZ and VICTOR CONANAN, being then employed both as
Immigration officers of the Bureau of Immigration and Deportation, Intramuros, Manila, hence are public officers, taking advantage of
their official positions and committing the offense in relation to office, conspiring and confederating with Senior Police Officer 3
EXPEDITO S. PERLAS of the Western Police District Command, Manila, together with co-accused Atty. FRANCISCO SB. ACEJAS III, of the
LUCENARIO, MARGATE, MOGPO, TIONGCO & ACEJAS LAW OFFICES, and co-accused JOSE P. VICTORIANO, a private individual, did then
and there, willfully, unlawfully and feloniously demand, ask, and/or extort One Million (P1,000,000.00) PESOS from the spouses
BETHEL GRACE PELINGON and Japanese TAKAO AOYAGI and FILOMENO PELINGON, JR., in exchange for the return of the passport of
said Japanese Takao Aoyagi confiscated earlier by co-accused Vladimir S. Hernandez and out of said demand, the complainants Bethel
Grace Pelingon, Takao Aoyagi and Filomeno Pelingon, Jr. produced, gave and delivered the sum of Twenty Five Thousand ( P25,000.00)
Pesos in marked money to the above-named accused at a designated place at the Coffee Shop, Ground Floor, Diamond Hotel, Ermita,
Manila, causing damage to the said complainants in the aforesaid amount of P25,000.00, and to the prejudice of government service.
[5]
PALE CASES CANON 1-2 PRELIM
After trial, all the accused -- except Victoriano -- were convicted. The challenged Decision disposed as follows:
WHEREFORE, premises considered, accused Vladimir S. Hernandez, Victor D. Conanan, Expedito S. Perlas and Francisco SB. Acejas III
are hereby found GUILTY beyond reasonable doubt of the crime of Direct Bribery, and are sentenced to suffer the indeterminate
penalty of four (4) years, nine (9) months and ten (10) days of prision correccional, as minimum, to seven (7) years and four (4)
months of prision mayor, as maximum, and to pay a fine of three million pesos ( P3,000,000.00). Accused Vladimir S. Hernandez and
Victor D. Conanan shall also suffer the penalty of special temporary disqualification. Costs against the accused.
On ground of reasonable doubt, accused Jose P. Victoriano is hereby ACQUITTED of the crime charged. The surety bond he posted for
his provisional liberty is cancelled. The Hold Departure Order against him embodied in this Courts Order dated July 24, 2000 is
recalled.[6]
The first Resolution acquitted Conanan and denied reconsideration of the other accused. The second Resolution denied
Petitioner Acejas Motion for New Trial.
Hence, petitioners now seek recourse in this Court. [7]
The Facts
The facts[8] are narrated by the Sandiganbayan as follows:
At around 4:00 to 5:00 p.m. of December 17, 1993, accused Bureau of Immigration and Deportation (BID) Intelligence Agent Vladimir
Hernandez, together with a reporter, went to the house of Takao Aoyagi and Bethel Grace Pelingon-Aoyagi at 27 Pacific Drive, Grand
Villa, Sto. Nio, Paraaque, Metro Manila. His purpose was to serve Mission Order No. 93-04-12 dated December 13, 1993, issued by BID
Commissioner Zafiro Respicio against Takao Aoyagi, a Japanese national. Hernandez told Takao Aoyagi, through his wife, Bethel Grace,
that there were complaints against him in Japan and that he was suspected to be a Yakuza big boss, a drug dependent and an
overstaying alien.
To prove that he had done nothing wrong, Takao Aoyagi showed his passport to Hernandez who issued an undertaking (Exh. B) which
Aoyagi signed. The undertaking stated that Takao Aoyagi promised to appear in an investigation at the BID on December 20, 1993,
and that as a guarantee for his appearance, he was entrusting his passport to Hernandez. Hernandez acknowledged receipt of the
passport.
On December 18, 1993, Bethel Grace Aoyagi called accused Expedito Dick Perlas [9] and informed him about the taking of her
husbands passport by Hernandez. Perlas told her he would refer their problem to his brother-in-law, Atty. Danton Lucenario of the
Lucenario, Margate, Mogpo, Tiongco and Acejas III Law Firm. It was at the Sheraton Hotel that Perlas introduced the Aoyagis to Atty.
Lucenario. They discussed the problem and Atty. Lucenario told the Aoyagis not to appear before the BID on December 20, 1993.
As advised by Atty. Lucenario, Takao Aoyagi did not appear before the BID. Instead, Atty. Rufino M. Margate of the Lucenario Law Firm
filed with the BID an Entry of Appearance (Exh. 6 Acejas). Atty. Margate requested for copies of any complaint-affidavit against Takao
Aoyagi and asked what the ground was for the confiscation of x x x Aoyagis passport.
Hernandez prepared a Progress Report (Exh. 5 Hernandez) which was submitted to Ponciano M. Ortiz, the Chief of Operations and
Intelligence Division of the BID. Ortiz recommended that Takao Aoyagi, who was reportedly a Yakuza and a drug dependent, be placed
under custodial investigation.
In the evening of December 22, 1993 at the Diamond Hotel, the Aoyagis met accused Atty. Francisco Acejas III who was then
accompanied by Perlas. Atty. Acejas informed them that it would be he who would handle their case. A Contract for Legal Services
(Exh. D) dated December 22, 1993 was entered into by Takao Aoyagi and Atty. Acejas, who represented the Lucenario Law Firm.
In the morning of December 23, 1993, Perlas and Atty. Acejas accompanied the Aoyagis to the Domestic Airport as the latter were
going to Davao. It was here that Takao Aoyagi paid Atty. Acejas P40,000.00, P25,000 of which is 50% of the acceptance fee, and
the P15,000.00 is for filing/docket fee (Exh. O). The Aoyagis were able to leave only in the afternoon as the morning flight was
postponed.
On December 24, 1993, while attending a family reunion, Bethel Grace Pelingon-Aoyagi informed her brother, Filomeno Jun Pelingon,
Jr., about her husbands passport.
On January 2, 1994, Jun Pelingon talked to BID Commissioner Zafiro Respicio in Davao and told the latter of Takao Aoyagis problem
with the BID. Respicio gave Pelingon his calling card and told Pelingon to call him up in his office.That same day, Jun Pelingon and Mr.
and Mrs. Aoyagi flew back to Manila.
On January 5, 1994, Jun Pelingon, Dick Perlas, Atty. Acejas, Vladimir Hernandez, Vic Conanan and Akira Nemoto met at the Aristocrat
Restaurant in Roxas Boulevard.
Another meeting was arranged at the Manila Nikko Hotel in Makati on January 8, 1994 with Jun Pelingon, Perlas, Atty. Acejas and
Hernandez attending.
On January 11, 1994, on account of the alleged demand of P1 million for the return of Takao Aoyagis passport, Jun Pelingon called up
Commissioner Respicio. The latter referred him to Atty. Angelica Somera, an NBI Agent detailed at the BID. It was Atty. Carlos Saunar,
also of the NBI, and Atty. Somera who arranged the entrapment operation.
On January 12, 1994, Vladimir Hernandez returned the passport to Takao Aoyagi at the Coffee Shop of the Diamond Hotel. The NBI
Team headed by Attorneys Saunar and Somera arrested Dick Perlas, Atty. Acejas and Jose Victoriano after the latter picked up the
brown envelope containing marked money representing the amount being allegedly demanded. Only Perlas, Acejas and Victoriano
were brought to the NBI Headquarters.[10]
Version of the Prosecution

Testifying for the prosecution were Bethel Grace Pelingon Aoyagi, Filomeno Jun Basaca Pelingon, Jr., and Carlos Romero Saunar.[11]

The prosecution evidence showed that it was during a meeting on January 5, 1994, when P1 million as consideration for the passport
was demanded. Conanan averred that Aoyagi was a drug trafficker and Yakuza member.The money was to be used to settle the
alleged problem and to facilitate the processing of a permanent visa. When Pelingon negotiated to lower the amount demanded,
Conanan stated that there were many of them in the Bureau of Immigration and Deportation (BID). [12]
During the second meeting held at Hotel Nikko, Pelingon was informed that the press and government enforcers were after
Aoyagi. Hernandez asked for a partial payment of P300,000, but Pelingon said that the whole amount would be given at just one time
to avoid another meeting.[13]
After talking to Commissioner Respicio on January 11, 1994,[14] Pelingon called up Dick Perlas to schedule the exchange.
Regarding the involvement of Petitioner Acejas, the Office of the Solicitor General (OSG) adds the following facts:
1.2. On 5 January 1994, [Acejas] and Perlas met Pelingon at the Aristocrat Restaurant. [Acejas] informed Pelingon that he would file
a P1 million lawsuit against the BID agents who confiscated the passport of Takao Aoyagi. [Acejas] showed Pelingon several papers,
which allegedly were in connection with the intended lawsuit.However, when Hernandez and Conanan arrived at the Aristocrat
Restaurant, [Acejas] never mentioned to the BID agents the P1 million lawsuit. [Acejas] just hid the papers he earlier showed to
Pelingon inside his [Acejas] bag.
1.3. [Acejas] was present when Hernandez proposed that Takao Aoyagi pay the amount of P1 million in exchange for the help he
would extend to him (Takao) in securing a permanent visa in the Philippines. [Acejas], who was Aoyagis lawyer, did nothing.
1.4. On 10 January 1994, [Acejas], Pelingon, Perlas and Hernandez met at the Hotel Nikko. Thereat, Hernandez informed the group
that certain government officials and even the press were after Takao Aoyagi.Hernandez said that Takao Aoyagi can make a partial
payment of P300,000.00. Pelingon however, assured the group that Takao Aoyagi would pay in full the amount of P1 million so as not
to set another meeting date. [Acejas] kept quiet throughout the negotiations.
xxxxxxxxx
1.5.a. [Acejas] was present during the entrapment that took place at the Diamond Hotel. Hernandez handed the passport to [Acejas],
who handed it then to Perlas and thereafter to Takao Aoyagi. After Takao Aoyagi went over his confiscated passport, Bethel Grace
handed to Hernandez the envelope [15] containing the supposed P1 million.Hernandez refused and motioned that [Acejas] be the one
to receive it. [Acejas] willingly got the envelope and placed it beside him and Perlas.
x x x before Hernandez handed out Aoyagis passport, he reminded the group of their earlier agreement of kaliwaan, i.e., that after
the passport is released, the Aoyagis should give the P1 million.[16]
Version of the Defense

Vladimir S. Hernandez, Expedito S. Perlas, Francisco SB. Acejas III, Victor D. Conanan and Ponciano M. Ortiz testified for the defense.
[17]
To the Sandiganbayans narration, Hernandez adds:

6. x x x [Hernandez], an intelligence agent of the Bureau of Immigration and Deportation (BID), went to the house of Private
Respondents Takao and Bethel Grace Aoyagi to enforce and serve a Mission Order issued and assigned to him by BID Commissioner
Zafiro Respicio on December 13, 1993, for the arrest of Takao Aoyagi.
7. When Bethel Grace showed [Hernandez] her husbands passport, [Hernandez] found out that the latters [authority] to stay had
already been duly extended. He invited private respondents to go with him to the BID office. They declined, but made a written
undertaking to appear at the BID office for investigation on December 20, 1993.As security for said undertaking, Bethel Grace Aoyagi
entrusted to [Hernandez] her husbands passport, receipt of which [Hernandez], in return, acknowledge[d] in the same instrument.
8. On January 19, 1994, [Hernandez] signified that the record of Aoyagi has been cleared and that he can pick up his passport at the
BID office. In connection therewith, [Hernandez] was invited by Perlas to make the return at a lunchtime meeting to be held at the
Diamond Hotel Coffee Shop. Upon arrival thereat, [Hernandez] gave the passport to Atty. Acejas, Aoyagis counsel, and within less
than ten minutes, he left the coffee shop.[18]
In his Petition, Acejas narrates some more occurrences as follows:

1. 18th December 1993 The law firm of Lucenario Margate Mogpo Tiongco & Acejas was engaged by the spouses Takao Aoyagi and
Bethel Grace Pelingon Aoyagi. x x x.
xxxxxxxxx
3. 22nd December 1993
a) The managing partner of the law firm, Atty. Lucenario, briefed [Acejas] about the facts regarding the confiscationby agents of the
BID of the passport belonging to a Japanese client. x x x.
b) Thereafter, [Acejas] was tasked by Atty. Lucenario to meet his brother-in-law Mr. Expedito Perlas, who happened to be a policeman
and a friend of Mr. Takao Aoyagi. Thus, [Acejas] met Mr. Perlas for the first time in the afternoon of this date.
c) Also, for the first time, [Acejas] met the clients, spouses Aoyagis, at the Diamond Hotel, where they were staying. x x x [Acejas]
advised them that the law firm decided that the clients can file an action for Replevin plus Damages for the recovery of the Japanese
passport.
d) The CONTRACT FOR LEGAL SERVICES was signed between the client and the law firm, thru [Acejas] as partner thereof. x x x The
amount of Fifty Thousand Pesos (Php.50,000.00) was agreed to be paid by way of Case Retainers/Acceptance Fees, which was
supposed to be payable upon (the) signing (t)hereof, and the sum of Php.2,000.00 by way of appearance fee. However, the client
proposed to pay half only of the acceptance fee (Php.25,000.00), plus the estimated judicial expenses for the filing or docket fees
(Php.15,000.00). x x x It was then further agreed that the balance of Php.25,000.00 was supposed to be given upon the successful
recovery of the Japanese passport.

e) The clients informed [Acejas] that they are supposed to leave for Davao the following day on the 23 rd because they will spend their
Christmas in Davao City; but they promised that they will be back on the 26 th, which is a Sunday, so that on the 27 th, which is a
Monday, the complaint against the BID officers will have to be filed in Court.
xxxxxxxxx
6. 27 th December 1993 (T)he law offi ce received word from Mr. Perlas that the Japanese did not come back on the
26 th (December), x x x so that the case cannot be filed on the 27 th instead (it has) to wait for clients instruction.
7. 4th January 1994 In the late afternoon, the law firm received a telephone call from Mr. Perlas informing (it) that the Japanese is
already in Manila and he was requesting for an appointment with any of the lawyer of the law firm on January 5, 1994.
8. 5th January 1994 [Acejas] met for the first time Mr. Filomeno Pelingon Jr. including a certain Nimoto Akira.
x x x.
b) [Acejas] told Mr. Pelingon Jr. that all the pleadings are ready for filing but, of course, the Japanese client and the wife should first
read the complaint and sign if they want to pursue the filing of the complaint against the BID agents.
c) For the first time, Mr. Pelingon advised against the intended filing of the case. x x x He instead suggested that he wants to directly
negotiate with the BID agents.
d) Thereafter, Mr. Pelingon instructed Mr. Dick Perlas to contact the BID agent who confiscated the Japanese passport. Mr. Perlas and
Mr. Pelingon were able to contact the BID agent.
e) For the first time [Acejas] saw Mr. Hernandez, when the latter arrived and also accused Victor Conanan. In the course of the
meeting, a confrontation ensued between [Acejas] and [Hernandez] concerning the legal basis for the confiscation of the
passport. [Acejas] demanded for the return of the Japanese passport x x x. Mr. Hernandez said that if there are no further derogatory
report concerning the Japanese client, then in a matter of week (from January 5 to 12), he will return the passport.
f) [Acejas] gave an ultimatum to Mr. Hernandez that if the Japanese passport will not be returned in one (1) weeks time, then (the law
firm) will pursue the filing of the replevin case plus the damage suit against him including the other BID agents.
g) x x x Mr. Pelingon Jr. for the second time advised against the filing thereof saying that his Japanese brother-in-law would like to
negotiate or in his own words magbibigay naman [i.e. will give money anyway].
9. 8th January 1994
a) Again, Mr. Perlas called the law office and informed x x x that the Japanese client is now in Manila. Petitioner attended the meeting
they arranged in (Makati) and meet Dick Perlas, Vladimir Hernandez and Pelingon Jr. x x x.
b) x x x according to Pelingon Jr., the Japanese does not want to meet with anybody because anyway they are willing to pay or
negotiate.
c) [Hernandez was also] present at the meeting and [Acejas] met him for the second time. x x x [Acejas] said that if [Hernandez] will
not be able to return the passport on or before January 12, 1994, then the law firm will have no choice but to file the case against
him x x x. Again, for the third time Mr. Pelingon warned against the filing of the case because he said that he would directly negotiate
with the BID agents.
d) The Makati meeting ended up with the understanding that Mr. Hernandez will have to undertake the return [of] the Japanese
passport on or before January 12, 1994.
10. 12th January 1994
a) Mr. Perlas called up the law office informing that the Japanese client was already in Manila and was requesting for an appointment
with the lawyers at lunchtime of January 12 at the Diamond Hotel where he was billeted.
xxxxxxxxx
c) x x x x x x x x x
At this meeting, the Japanese was inquiring on the status of the case and he was wondering why the Japanese passport is not yet
recovered when according to him he has already paid for the attorney fees. And so, [Acejas] explained to him that the case has to be
filed and they still have to sign the complaint, the Special Power of Attorney and the affidavit relative to the filing of replevin
case. But the Japanese would not fully understand. So, Pelingon Jr. again advised against the filing of the case saying that since there
is no derogatory record of Mr. Aoyagi at the BID office, then the BID agents should return the Japanese passport.
xxxxxxxxx
e) Thereafter, Pelingon, Jr. and Dick Perlas x x x tried to contact Mr. Hernandez. Since, they were able to contact the latter, we waited
until around 2:00 p.m.. When Mr. Hernandez came, he said that the Japanese client is cleared at the BID office and so, he can return
the Japanese passport and he gave it to [Acejas]. x x x When [Acejas] received the Japanese passport, (he) checked the authenticity
of the documents and finding that it was in good order, (he) attempted to give it to the Japanese client.
Very strangely when [Acejas] tried to hand-over the Japanese passport to the Japanese across the table, the Japanese was motioning
and wanted to get the passport under the table. x x x [Acejas] found it strange. (He) x x x thought that it was a Japanese custom to
receive things like that under the table. But nonetheless, [Acejas] did not give it under the table and instead passed it on to Mr. Dick
Perlas who was seated at (his) right. And so, it was Mr. Dick Perlas who took the passport from [Acejas] and finally handed it over to
Mr. Aoyagi. x x x. After that, there was a little chat between Mr. Hernandez and the client, and Mr. Hernandez did not stay for so long
and left.
Still, thereafter, (w)hen the Japanese passport was received, Bethel Grace Aoyagi and [Acejas] were talking and she said since the
Japanese passport had been recovered, they are now willing to pay the Php.25,000.00 balance of the acceptance fee.
Mrs. Aoyagi was giving [Acejas] a brown envelope but she want[ed] Mr. Hernandez to receive it while Mr. Hernandez was still around
standing. But Mr. Hernandez did not receive it.
Since, the payment is due to the law firm, [Acejas] received the brown envelope.
xxxxxxxxx

Not long after, [Acejas] saw his companion, accused Mr. Victoriano, who was signaling something as if there was a sense of
urgency. [Acejas] immediately stood up and left hurriedly. When [Acejas] approached Mr. Victoriano, he said that the car which
[Acejas] parked in front of the Diamond Hotel gate, somebody took the car. [Acejas] went out and checked and realized that it was
valet parking so it was the parking attendant who took the car and transferred the car to the parking area. [Acejas] requested Mr.
Victoriano to get (the) envelope and the coat, at the table.
g) When [Acejas] went out, [Acejas] already looked for the parking attendant to get the car. When the car arrived, [Acejas] just saw
from the doors of the Diamond Hotel Mr. Jose Victoriano and Mr. Dick Perlas coming out already in handcuffs and collared by the NBI
agents. They then were taken to the NBI, except the accused Vladimir Hernandez.[19]
Ruling of the Sandiganbayan
The Sandiganbayan ruled that the elements of direct bribery, [20] as well as conspiracy in the commission of the crime, [21] had been
proven. Hernandez and Conanan demanded money; [22] Perlas negotiated and dealt with the complainants;[23] and Acejas accepted the
payoff and gave it to Perlas.[24]
Victoriano was acquitted on reasonable doubt. [25] Although he had picked up the envelope containing the payoff, this act did not
sufficiently show that he had conspired with the other accused.[26]
The Sandiganbayan did not give credence to the alleged belief of Acejas that the money was the balance of the law firms legal fees.
[27]
If he had indeed believed that the money was payable to him, he should have kept and retained it. The court then inferred that he
had merely been pretending to protect his clients rights when he threatened to file a suit against Hernandez. [28]
The January 3, 2003 Resolution acquitted Conanan and denied the Motions for Reconsideration of Hernandez, Acejas and
Perlas. According to the Sandiganbayan, Conanan was not shown to be present during the meetings on January 8 and 12, 1994. [29] His
presence during one of those meetings, on January 5, 1994, did not conclusively show his participation as a co-conspirator.
The January 14, 2003 Resolution denied Acejas Supplemental Motion, which prayed for a new trial.
The Issues
Petitioner Hernandez raises the following issues:
I. Whether or not respondent court erred in ruling that [Hernandez] was part of the conspiracy to extort money from private
respondents, despite lack of clear and convincing evidence.
II. Whether or not the Honorable Sandiganbayan gravely abused its discretion when it overlooked the fact that the legal requisites of
the crime are not completely present as to warrant [Hernandez] complicity in the crime charged.
III. Whether or not respondent Sandiganbayan, 5 th Division, ruled erroneously when it relied solely on the naked and uncorroborated
testimonies of the late Filomeno Jun Pelingon, Jr. in order to declare the existence of a conspiracy to commit bribery, as well as the
guilt of the accused.
IV. Whether or not [respondent] courts acquittal of co-accused Victor Conanan and its conviction of [Hernandez] for the offense as
charged effectively belies the existence of a conspiracy.
V. Whether or not the respondent Sandiganbayan committed grave abuse of discretion amounting to lack of, or in excess of
jurisdiction when it found [Hernandez] guilty beyond reasonable doubt of the crime of direct bribery. [30]
On the other hand, Petitioner Acejas simply enumerates the following points:
1.
2.
3.
4.
5.
6.
7.
8.
The Conspiracy Theory

The presence of lawyer-client relationship; duty to clients cause; lawful performance of duties
Instigation not entrapment
Credibility of witness and testimony
Affidavit of desistance; effect: creates serious doubts as to the liability of the accused
Elements of bad faith
Elements of the crime (direct bribery)
Non-presentation of complaining victim tantamount to suppression of evidence [31]
In the main, petitioners are challenging the finding of guilt against them. The points they raised are therefore intertwined and will be
discussed jointly.
The Courts Ruling
The Petitions have no merit.
Main Issue:
Finding of Guilt
The
crime
of
direct
bribery
exists
when
a
public
officer
1)
agrees to perform an act that constitutes a crime in consideration of any offer, promise, gift or present; 2) accepts the gift in
consideration of the execution of an act that does not constitute a crime; or 3) abstains from the performance of official duties. [32]

Petitioners were convicted under the second kind of direct bribery, which contained the following elements: 1) the offender was a
public officer, 2) who received the gifts or presents personally or through another, 3) in consideration of an act that did not constitute
a crime, and 4) that act related to the exercise of official duties. [33]
Hernandez claims that the prosecution failed to show his involvement in the crime. Allegedly, he was merely
implementing Mission Order No. 93-04-12, which required him to investigate Takao Aoyagi. [34] The passport was supposed to have
been voluntarily given to him as a guarantee to appear at the BID office, but he returned it upon the instruction of his superior. [35]
The chain of circumstances, however, contradicts the contention of Hernandez. It was he who had taken the passport of Takao Aoyagi.
[36]
On various dates,[37] he met with Takao and Bethel Grace Aoyagi, and also Pelingon, regarding the return of the
passport. Hernandez then asked for a down payment on the payoff, [38] during which he directed Bethel Grace to deliver the money
to Acejas.[39]
Bethel Grace Aoyagis testimony, which was confirmed by the other witnesses, proceeded as follows:
PROSECUTOR MONTEMAYOR:
Q: When Vlademir Hernandez arrived, what happened?
A: He got the passport from his pocket and passed it on to Atty. Acejas, sir.
Q: What happened after he gave the passport to Atty. Acejas?
A: [Acejas] gave the passport to Mr. Expedito Perlas, sir.
Q: After that, what happened?
A: Then, [Perlas] gave it to Mr. Aoyagi, sir.
Q: The passport?
A: Yes, sir.
Q: And when Mr. Aoyagi received the passport, what did you do or what did Mr. Aoyagi do?
A: He checked all the pages and he kept it, sir.
xxxxxxxxx
Q: What did you do with that money after Mr. Aoyagi received the passport?
A: Because our agreement is that after giving the passport we would give the money so when Mr. Perlas handed to my husband the
passport, I gave the money placed on my lap to my husband and he passed it to Mr. Hernandez who refused the same.
ATTY. ACEJAS:
Your Honor, please, may I just make a clarification that when the witness referred to the money it pertains to the brown envelope which allegedly
contains the money x x x .
AJ ESCAREAL:
Noted.
Q: Did Mr. Hernandez got hold or touched the envelope?
A: No, sir.
Q: When he [did] not want to receive the envelope, what did your husband do?
A: When Mr. Vlademir Hernandez refused to receive the money, he pointed to Atty. Acejas so my husband handed it to Atty. Acejas
who received the same and later on passed it to Mr. Perlas.
Q: When Mr. Hernandez pointed to Atty. Acejas, did he say anything?
A: None, sir, he just motioned like this.
INTERPRETER:
Witness motioning by [waving] her two (2) hands, left and right.
Q: And at the same time pointed to Atty. Acejas?
A: Yes, sir.
Q: And your husband gave the envelope to Atty. Acejas?
A: Yes, sir.
Q: And Atty. Acejas, in turn, handed the said envelope to whom?
A: Expedito Perlas, sir.
Q: Did Expedito Perlas [receive] that envelope?
A: Yes, sir.
A: Mr. Perlas put the money on his side in between him and Atty. Acejas, sir.
Q: And then, what happened?
A: After the money was placed where it was, we were surprised, I think, it happened in just seconds[.] Mr. Vlademir Hernandez
immediately left and then all of a sudden somebody came and picked up the envelope, sir. [40]
Significantly, Hernandez does not address the lingering questions about why Takao Aoyagi or his representatives had to negotiate for
the retrieval of the passport during the meetings held outside the BID. Ponciano Ortiz, chief of the Operation and Intelligence Division
of the BID, testified that it was not a standard operating procedure to officially return withheld passports in such locations. [41] It can
readily be inferred that Hernandez had an ulterior motive for withholding the passport for some time despite the absence of any legal
purpose.

Also, Hernandez cannot claim innocence based on Conanans acquittal.[42] While the testimony of Pelingon was the only evidence
linking Conanan to the conspiracy,[43] there was an abundance of evidence showing Hernandezs involvement.
Acejas, on the other hand, belies his involvement in the conspiracy. He attacks the prosecutions version that he was silent during the
negotiations for the return of the passport. [44] According to him, he kept giving Hernandez an ultimatum to return the passport, with
threats to file a court case.
Acejas testified that he had wanted to file a case against Hernandez, but was prevented by Spouses Aoyagi. His supposed
preparedness to file a case against Hernandez might have just been a charade and was in fact belied by Pelingons testimony
regarding the January 5, 1994 meeting:
ATTY. VALMONTE:
Q: Who arrived first at Aristocrat Restaurant, you or Acejas?
A: Acejas arrived together with Dick Perlas[. T]hey arrived ahead of me, sir.
xxxxxxxxx
Q: When the three (3) of you were talking that was the time that Atty. Acejas was showing you documents that he was going to file
[a] P1 million damage suit against Hernandez?
A: Yes, sir.
Q: Now, is it not that when Hernandez and Cunanan arrived and you were talking with each other, Atty. Acejas also threatened,
reiterated his threat to Hernandez that he would file [a] P1 million damage suit should Hernandez [fails] to return the passport?
A: When the group [was] already there, the P1 million [damage suit] was not [anymore] mentioned, sir.[45]
Even assuming that Acejas negotiated for the return of the passport on his clients behalf, he still failed to justify his actions during the
entrapment operation. The witnesses all testified that he had received the purported payoff. On this point, we recount the testimony
of Bethel Grace Aoyagi:
xxxxxxxxx
Q: When he [did] not want to receive the envelope, what did your husband do?
A: When Mr. Vlademir Hernandez refused to receive the money, he pointed to Atty. Acejas so my husband handed it to Atty. Acejas
who received the same and later on passed it to Mr. Perlas.
Q: When Mr. Hernandez pointed to Atty. Acejas, did he say anything?
A: None, sir, he just motioned like this.
INTERPRETER:
Witness motioning by [waving] her two (2) hands, left and right.
Q: And at the same time pointed to Atty. Acejas?
A: Yes, sir.
Q: And your husband gave the envelope to Atty. Acejas?
A: Yes, sir.
Q: And Atty. Acejas, in turn, handed the said envelope to whom?
A: Expedito Perlas, sir.
xxxxxxxxx
A: Mr. Perlas put the money on his side in between him and Atty. Acejas, sir.
Q: And then, what happened?
WITNESS:
A: After the money was placed where it was, we were surprised, I think, it happened in just seconds[.] Mr. Vladimir Hernandez
immediately left and then all of a sudden somebody came and picked up the envelope, sir.
Q: Do you know the identity of that somebody who picked up the envelope?
xxxxxxxxx
A: Victoriano, sir.[46]
Acejas failed to justify why he received the payoff money. It would be illogical to sustain his contention that the envelope represented
the balance of his firms legal fees. That it was given to Hernandez immediately after the return of the passport leads to the
inescapable conclusion that the money was a consideration for the return. Moreover, Acejas should have kept the amount if he
believed it to be his. The Court agrees with the Sandiganbayans pronouncement on this point:
x x x. If he believed that the brown envelope contained the balance of the acceptance fee, how come he passed it to Perlas? His
passing the brown envelope to Perlas only proves that the same did not contain the balance of the acceptance fee; otherwise, he
should have kept and retained it. Moreover, the three prosecution witnesses testified that the brown envelope was being given to
Hernandez who refused to accept the same. This further shows that the brown envelope was not for the balance of the acceptance
fee because, if it were, why was it given to Hernandez.
xxxxxxxxx
Acejas defense was further weakened by the fact that his testimony as to why he left immediately after the brown envelope was
given to him was uncorroborated. He should have presented accused Victoriano to corroborate his testimony since it was the latter
who allegedly called him and caused him to leave their table. This, he did not do.The ineluctable conclusion is that he was, indeed, in
cahoots with his co-accused.[47]
Lawyers Duty
Acejas alleges that the Sandiganbayan failed to appreciate his lawyer-client relationship with the complainants. He was supposedly
only acting in their best interest[48] and had the right to be present when the passport was to be returned. [49]
True, as a lawyer, it was his duty to represent his clients in dealing with other people. His presence at Diamond Hotel for the
scheduled return of the passport was justified. This fact, however, does not support his innocence
Acejas, however, failed to act for or represent the interests of his clients. He knew of the payoff, but did nothing to assist or protect
their rights, a fact that strongly indicated that he was to get a share. Thus, he received the money purporting to be the payoff,
even if he was not involved in the entrapment operation. The facts revealed that he was a conspirator.
The Court reminds lawyers to follow legal ethics[50] when confronted by public officers who extort money. Lawyers must decline and
report the matter to the authorities. [51] If the extortion is directed at the client, they must advise the client not to perform any illegal
act. Moreover, they must report it to the authorities, without having to violate the attorney-client privilege. [52] Naturally, they must not
participate in the illegal act.[53]
Acejas did not follow these guidelines. Worse, he conspired with the extortionists.
Instigation
Also futile is the contention of petitioners that Pelingon instigated the situation to frame them into accepting the payoff. [54] Instigation
is the employment of ways and means to lure persons into the commission of an offense in order to prosecute them. [55] As opposed to
entrapment, criminal intent originates in the mind of the instigator.[56]
There was no instigation in the present case, because the chain of circumstances showed an extortion attempt. In other words, the
criminal intent originated from petitioners, who had arranged for the payoff.
During the cross-examination of Bethel Grace Aoyagi, pertinent was Associate Justice Escareal clarifying question as follows:
AJ ESCAREAL:
[Q:] Did Mr. Hernandez say anything when he returned the passport to your husband?
A: He did not say anything except that he instructed [the] group to abide with the agreement that upon handing of the passport, the
money would also be given immediately (magkaliwaan). [57]
Alleged Discrepancies
According to Acejas, Pelingons testimonies given in his Complaint-Affidavit, Supplemental-Affidavit, inquest testimony, testimony in
court, and two Affidavits of Desistance were contradictory. [58] He cites these particular portions of Pelingons Affidavit:
5. That having been enlightened of the case, and conscious that I might be prosecuting innocent men, I have decided on my own
disposition, not to further testify against any of the accused in the Sandiganbayan or in any court or tribunal, regarding the same
cause of action.
6. That this affidavit of desistance to further prosecute is voluntarily executed, and that no reward, promise, consideration, influence,
force or threat was executed to secure this affidavit.[59]
Pelingon testified that he had executed the Affidavit of Desistance because of a threat to his life. [60] He did not prepare the Affidavit;
neither was it explained to him. Allegedly, his true testimony was in the first Complaint-Affidavit that he had executed. [61]
By appearing and testifying during the trial, he effectively repudiated his Affidavit of Desistance. An affidavit of desistance must be
ignored when pitted against positive evidence given on the witness stand. [62]
Acejas has failed to identify the other material points that were allegedly inconsistent. The Court therefore adopts the
Sandiganbayans finding that these were minor details that were not indicative of the lack of credibility of the prosecution witnesses.
[63]
People v. Eligino[64] is in point:
x x x. While witnesses may differ in their recollections of an incident, it does not necessarily follow from their disagreement that all of
them should be disbelieved as liars and their testimony completely discarded as worthless.As long as the mass of testimony jibes on
material points, the slight clashing statements neither dilute the witnesses credibility nor the veracity of their testimony. Thus,
inconsistencies and contradictions referring to minor details do not, in any way, destroy the credibility of witnesses, for indeed, such
inconsistencies are but natural and even enhance credibility as these discrepancies indicate that the responses are honest and
unrehearsed.[65]
Suppression of Evidence
Acejas further raises the issue of suppression of evidence. Aoyagi, from whom the money was supposedly demanded, should have
been presented by the prosecution as a witness.[66]
The discretion on whom to present as prosecution witnesses falls on the People. [67] The freedom to devise a strategy to convict the
accused belongs to the prosecution. [68] Necessarily, its decision on which evidence, including which witnesses, to present cannot be
dictated by the accused or even by the trial court. [69] If petitioners believed that Takao Aoyagis testimony was important to their case,
they should have presented him as their witness. [70]
10
Finally, Acejas claims that his Comment/Objection to the prosecutions Formal Offer of Evidence was not resolved by the
Sandiganbayan.[71] In that Comment/Objection, he had noted the lateness in the filing of the Formal Offer of Evidence.
It may readily be assumed that the Sandiganbayan admitted the prosecutions Formal Offer of Evidence upon the promulgation of its
Decision. In effect, Acejas Comment/Objection was deemed immaterial. It could not overrule the finding of guilt. Further, it showed no
prayer that the Sandiganbayan needed to act upon.[72]
Finally we reiterate that, as a rule, factual findings of the Sandiganbayan are conclusive upon this Court. [73] We are convinced that
these were clearly based on the evidence adduced in this case.
In sum, we find that the prosecution proved the elements of direct bribery. First, there is no question that the offense was committed
by a public officer. BID Agent Hernandez extorted money from the Aoyagi spouses for the return of the passport and the promise of
assistance in procuring a visa. Petitioner Acejas was his co-conspirator. Second, the offenders received the money as payoff,
which Acejas received for the group and then gave to Perlas. Third, the money was given in consideration of the return of the
passport, an act that did not constitute a crime. Fourth, both the confiscation and the return of the passport were made in the
exercise of official duties.
For taking direct part in the execution of the crime, Hernandez and Acejas are liable as principals. [74] The evidence shows that the
parties conspired to extort money from Spouses Aoyagi. A conspiracy exists even if all the parties did not commit the same act, if the
participants performed specific acts that indicated unity of purpose in accomplishing a criminal design. [75] The act of one is the act of
all.
WHEREFORE, the Petitions are DENIED, and the assailed Decision and Resolutions AFFIRMED. Costs against petitioners.
A.C. No. 6057
June 27, 2006
PETER
T.
DONTON, Complainant,
vs.
ATTY. EMMANUEL O. TANSINGCO, Respondent.
DECISION
CARPIO, J.:
The Case
This is a disbarment complaint against respondent Atty. Emmanuel O. Tansingco ("respondent") for serious misconduct and deliberate
violation of Canon 1,1 Rules 1.012 and 1.023 of the Code of Professional Responsibility ("Code").
The Facts
In his Complaint dated 20 May 2003, Peter T. Donton ("complainant") stated that he filed a criminal complaint for estafa thru
falsification of a public document4 against Duane O. Stier ("Stier"), Emelyn A. Maggay ("Maggay") and respondent, as the notary
public who notarized the Occupancy Agreement.
The disbarment complaint arose when respondent filed a counter-charge for perjury 5 against complainant. Respondent, in his
affidavit-complaint, stated that:
5. The OCCUPANCY AGREEMENT dated September 11, 1995 was prepared and notarized by me under the following circumstances:
A. Mr. Duane O. Stier is the owner and long-time resident of a real property located at No. 33 Don Jose Street, Bgy. San Roque,
Murphy, Cubao, Quezon City.
B. Sometime in September 1995, Mr. Stier a U.S. citizen and thereby disqualified to own real property in his name agreed that the
property be transferred in the name of Mr. Donton, a Filipino.
C. Mr. Stier, in the presence of Mr. Donton, requested me to prepare several documents that would guarantee recognition of him
being the actual owner of the property despite the transfer of title in the name of Mr. Donton.
D. For this purpose, I prepared, among others, the OCCUPANCY AGREEMENT, recognizing Mr. Stiers free and undisturbed use of the
property for his residence and business operations. The OCCUPANCY AGREEMENT was tied up with a loan which Mr. Stier had
extended to Mr. Donton.6
Complainant averred that respondents act of preparing the Occupancy Agreement, despite knowledge that Stier, being a foreign
national, is disqualified to own real property in his name, constitutes serious misconduct and is a deliberate violation of the Code.
Complainant prayed that respondent be disbarred for advising Stier to do something in violation of law and assisting Stier in carrying
out a dishonest scheme.
In his Comment dated 19 August 2003, respondent claimed that complainant filed the disbarment case against him upon the
instigation of complainants counsel, Atty. Bonifacio A. Alentajan, 7 because respondent refused to act as complainants witness in the
criminal case against Stier and Maggay. Respondent admitted that he "prepared and notarized" the Occupancy Agreement and
asserted its genuineness and due execution.
In a Resolution dated 1 October 2003, the Court referred the matter to the Integrated Bar of the Philippines (IBP) for investigation,
report and recommendation.
The IBPs Report and Recommendation
In her Report dated 26 February 2004 ("Report"), Commissioner Milagros V. San Juan ("Commissioner San Juan") of the IBP
Commission on Bar Discipline found respondent liable for taking part in a "scheme to circumvent the constitutional prohibition against
foreign ownership of land in the Philippines." Commissioner San Juan recommended respondents suspension from the practice of law
for two years and the cancellation of his commission as Notary Public.
In Resolution No. XVI-2004-222 dated 16 April 2004, the IBP Board of Governors adopted, with modification, the Report and
recommended respondents suspension from the practice of law for six months.
On 28 June 2004, the IBP Board of Governors forwarded the Report to the Court as provided under Section 12(b), Rule 139-B 8 of the
Rules of Court.
On 28 July 2004, respondent filed a motion for reconsideration before the IBP. Respondent stated that he was already 76 years old
and would already retire by 2005 after the termination of his pending cases. He also said that his practice of law is his only means of
support for his family and his six minor children.
In a Resolution dated 7 October 2004, the IBP denied the motion for reconsideration because the IBP had no more jurisdiction on the
case as the matter had already been referred to the Court.
The Ruling of the Court
The Court finds respondent liable for violation of Canon 1 and Rule 1.02 of the Code.
A lawyer should not render any service or give advice to any client which will involve defiance of the laws which he is bound to uphold
and obey.9 A lawyer who assists a client in a dishonest scheme or who connives in violating the law commits an act which justifies
disciplinary action against the lawyer.10
By his own admission, respondent admitted that Stier, a U.S. citizen, was disqualified from owning real property. 11Yet, in his motion for
reconsideration,12 respondent admitted that he caused the transfer of ownership to the parcel of land to Stier. Respondent, however,
aware of the prohibition, quickly rectified his act and transferred the title in complainants name. But respondent provided "some
safeguards" by preparing several documents,13including the Occupancy Agreement, that would guarantee Stiers recognition as the
actual owner of the property despite its transfer in complainants name. In effect, respondent advised and aided Stier in
circumventing the constitutional prohibition against foreign ownership of lands 14 by preparing said documents.
Respondent had sworn to uphold the Constitution. Thus, he violated his oath and the Code when he prepared and notarized the
Occupancy Agreement to evade the law against foreign ownership of lands. Respondent used his knowledge of the law to achieve an
unlawful end. Such an act amounts to malpractice in his office, for which he may be suspended. 15
In Balinon v. De Leon,16 respondent Atty. De Leon was suspended from the practice of law for three years for preparing an affidavit
that virtually permitted him to commit concubinage. In In re: Santiago,17 respondent Atty. Santiago was suspended from the practice
of law for one year for preparing a contract which declared the spouses to be single again after nine years of separation and allowed
them to contract separately subsequent marriages.

WHEREFORE, we find respondent Atty. Emmanuel O. Tansingco GUILTY of violation of Canon 1 and Rule 1.02 of the Code of
Professional Responsibility. Accordingly, we SUSPEND respondent Atty. Emmanuel O. Tansingco from the practice of law for SIX
MONTHS effective upon finality of this Decision.
Let copies of this Decision be furnished the Office of the Bar Confidant to be appended to 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.
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 LETTER-COMPLAINT 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 2005-2007.
A.C. No. 6697
The Office of the Bar Confidant, which this Court tasked to make an investigation, report and recommendation on subject case,
[1]
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)
respondents alleged misrepresentation in concealing the suspension order rendered against him by the State Bar of
California; and
2)
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 above-mentioned 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. [2]
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. [3]
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. [4]
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.[5]
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. [6]
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. [7]
On 10 May 2005, this Court issued a Temporary Restraining Order (TRO) enjoining Atty. de Vera from assuming office as IBP National
President.[8]
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. [9]
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. [10] 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 10 th 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;
2.
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;
3.
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;
4.
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;
5.
For falsely accusing the IBP National President, Jose Anselmo I. Cadiz, during the Plenary Session of the 10 thNational 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.[11]
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. [12]
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:
13
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.
The denial of the right to answer the charges formally or in writing. The complaint against me was in writing.
2.
The denial of the right to answer the charges within a reasonable period of time after receipt of the complaint.
3.
The denial of the right to a fair hearing.
4.
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.
5.
The denial of my right to present witnesses on my behalf.
6.
time.
The denial of my right to an impartial judge. Governor Rivera was my accuser, prosecutor, and judge all at the same
7.
Gov. Riveras prejudgment of my case becomes even more evident because when his motion to expel me was lost in a 53 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.[13] (Emphasis and underscoring in original.)
On 27 May 2005, the IBP Board responded to the 18 May 2005 letter of Atty. de Vera. [14] 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 10th 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. [15]
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. [16]
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. [17]
On 17 June 2005, Atty. de Vera protested against the election of Atty. Santiago. [18] On 20 June 2005, Atty. Santiago voluntarily
relinquished the EVP position through a letter addressed to the IBP Board. [19] 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.[20] 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. [21] Also on 28 June 2005, Atty. de Vera
protested the election of Atty. Salazar.[22]
In his Extended Comment[23] 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 ByLaws 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. [24]
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 By-Laws.
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;
(v)
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. [25]
The Courts Ruling

AC No. 6697
In his Memorandum[26] 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
T[U]RPITUDE 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] [27]
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)
respondents alleged misrepresentation in concealing the suspension order rendered against him by the State Bar
in California; and
2)
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:
15
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 DelosReyes (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. [28]
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. [29] 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.[30]
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, [31] 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.
17
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.,[32] 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.[33]
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. [34] 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.[35]
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. [36] That meaning is in consonance with the elementary notion that the practice of law is a
profession, not a business.[37]
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.[38]
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; [39]
2.
The Hearing referee in the said administrative case recommended that Atty. de Vera be suspended from the practice of
law for three years;[40] and
3.
Atty. de Vera resigned from the California Bar which resignation was accepted by the Supreme Court of California. [41]
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.[42]
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.[43] It means such evidence which affords a substantial basis from which the fact in issue can be reasonably
inferred.[44]
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. A lawyer shall account for all money or property collected or received for or from the client.
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[45] 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.[46]
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[47] 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. [48] 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.[49] Where any lesser penalty can accomplish the end desired, disbarment should not be decreed.
In Mortera v. Pagatpatan,[50] 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;[51] Castillo v. Taguines;[52]Espiritu v.
Atty. Cabredo IV,[53] 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,[54] 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.
removing Atty. de Vera.
ii.
Whether the IBP Board of Governors complied with administrative due process in
Whether the IBP removed Atty. De Vera for just and valid cause.
19
II.
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 two-thirds 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. [55] 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. [56] 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. [57] The phrase is so elusive of exact
apprehension,[58] because it depends on circumstances and varies with the subject matter and the necessities of the situation. [59]
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. [60]
The right to cross-examine is not an indispensable aspect of due process. [61] Nor is an actual hearing always essential [62] 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 two-thirds 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.[63]
The IBP Board, therefore, was well within its right in removing Atty. de Vera as the latters actuations during the 10 th 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 ByLaws.
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, [64] 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 ByLaws. 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. [65] 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 [66] 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 [67] of the IBP ByLaws. 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, [68] and Section 11 (Vacancies),[69] Section 44 (Removal of
members),[70] Section 47 (National officers),[71] Section 48 (other officers),[72] and Section 49 (Terms of Office)[73]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 20052007 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 Vice-President from among themselves. The position of Executive VicePresident shall be rotated among the nine (9) IBP regions. One who has served as president may not run for election as Executive
Vice-President 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 ByLaws.
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 2003-2005 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;
2)
DISMISS the letter-complaint of Atty. Leonard de Vera, dated 18 May 2005, in A.M. No. 05-5-15-SC, 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;
3)
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 ByLaws and absent any showing of grave abuse of discretion; and
4)
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 ByLaws, upon receipt of this Resolution.
PEDRO L. LINSANGAN, A.C. No. 6672
Complainant,
Present:
PUNO, C.J., Chairperson,
CARPIO,
- v e r s u s - CORONA,
LEONARDO-DE CASTRO and
BERSAMIN, JJ.
ATTY. NICOMEDES TOLENTINO,
Respondent. Promulgated:
September 4, 2009
x-----------------------------------------x
RESOLUTION
CORONA, J.:
This is a complaint for disbarment[1] filed by Pedro Linsangan of the Linsangan Linsangan & Linsangan Law Office against Atty.
Nicomedes Tolentino for solicitation of clients and encroachment of professional services.
Complainant alleged that respondent, with the help of paralegal Fe Marie Labiano, convinced his clients [2]to transfer legal
representation. Respondent promised them financial assistance [3] and expeditious collection on their claims. [4] To induce them to hire
his services, he persistently called them and sent them text messages.
To support his allegations, complainant presented the sworn affidavit [5] of James Gregorio attesting that Labiano tried to prevail upon
him to sever his lawyer-client relations with complainant and utilize respondents services instead, in exchange for a loan of P50,000.
Complainant also attached respondents calling card:[6]
Front
NICOMEDES TOLENTINO
LAW OFFFICE
CONSULTANCY & MARITIME SERVICES
W/ FINANCIAL ASSISTANCE
Fe Marie L. Labiano
Paralegal
1st MIJI Mansion, 2nd Flr. Rm. M-01 Tel: 362-7820
6th Ave., cor M.H. Del Pilar Fax: (632) 362-7821
Grace Park, Caloocan City Cel.: (0926) 2701719
Back
SERVICES OFFERED:
CONSULTATION AND ASSISTANCE
TO OVERSEAS SEAMEN
REPATRIATED DUE TO ACCIDENT,
INJURY, ILLNESS, SICKNESS, DEATH
AND INSURANCE BENEFIT CLAIMS
ABROAD.
(emphasis supplied)
Hence, this complaint.
Respondent, in his defense, denied knowing Labiano and authorizing the printing and circulation of the said calling card. [7]
The complaint was referred to the Commission on Bar Discipline (CBD) of the Integrated Bar of the Philippines (IBP) for investigation,
report and recommendation.[8]
Based on testimonial and documentary evidence, the CBD, in its report and recommendation, [9] found that respondent had
encroached on the professional practice of complainant, violating Rule 8.02 [10] and other canons[11] of the Code of Professional
Responsibility (CPR). Moreover, he contravened the rule against soliciting cases for gain, personally or through paid agents or brokers
as stated in Section 27, Rule 138 [12]of the Rules of Court. Hence, the CBD recommended that respondent be reprimanded with a stern
warning that any repetition would merit a heavier penalty.
We adopt the findings of the IBP on the unethical conduct of respondent but we modify the recommended penalty.
The complaint before us is rooted on the alleged intrusion by respondent into complainants professional practice in violation of Rule
8.02 of the CPR. And the means employed by respondent in furtherance of the said misconduct themselves constituted distinct
violations of ethical rules.

Canons of the CPR are rules of conduct all lawyers must adhere to, including the manner by which a lawyers services are to be made
known. Thus, Canon 3 of the CPR provides:
CANON 3 - A LAWYER IN MAKING KNOWN HIS LEGAL SERVICES SHALL USE ONLY TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE
INFORMATION OR STATEMENT OF FACTS.
Time and time again, lawyers are reminded that the practice of law is a profession and not a business; lawyers should not advertise
their talents as merchants advertise their wares. [13] To allow a lawyer to advertise his talent or skill is to commercialize the practice of
law, degrade the profession in the publics estimation and impair its ability to efficiently render that high character of service to which
every member of the bar is called.[14]
Rule 2.03 of the CPR provides:
RULE 2.03. A LAWYER SHALL NOT DO OR PERMIT TO BE DONE ANY ACT DESIGNED PRIMARILY TO SOLICIT LEGAL BUSINESS.
Hence, lawyers are prohibited from soliciting cases for the purpose of gain, either personally or through paid agents or brokers.
[15]
Such actuation constitutes malpractice, a ground for disbarment. [16]
Rule 2.03 should be read in connection with Rule 1.03 of the CPR which provides:
RULE 1.03. A LAWYER SHALL NOT, FOR ANY CORRUPT MOTIVE OR INTEREST, ENCOURAGE ANY SUIT OR PROCEEDING OR DELAY ANY
MANS CAUSE.
This rule proscribes ambulance chasing (the solicitation of almost any kind of legal business by an attorney, personally or through an
agent in order to gain employment)[17] as a measure to protect the community from barratry and champerty. [18]
Complainant presented substantial evidence [19] (consisting of the sworn statements of the very same persons coaxed by Labiano and
referred to respondents office) to prove that respondent indeed solicited legal business as well as profited from referrals suits.
Although respondent initially denied knowing Labiano in his answer, he later admitted it during the mandatory hearing.
Through Labianos actions, respondents law practice was benefited. Hapless seamen were enticed to transfer representation on the
strength of Labianos word that respondent could produce a more favorable result.
Based on the foregoing, respondent clearly solicited employment violating Rule 2.03, and Rule 1.03 and Canon 3 of the CPR and
Section 27, Rule 138 of the Rules of Court.
With regard to respondents violation of Rule 8.02 of the CPR, settled is the rule that a lawyer should not steal another lawyers client
nor induce the latter to retain him by a promise of better service, good result or reduced fees for his services. [20] Again the Court notes
that respondent never denied having these seafarers in his client list nor receiving benefits from Labianos referrals. Furthermore, he
never denied Labianos connection to his office. [21] Respondent committed an unethical, predatory overstep into anothers legal
practice. He cannot escape liability under Rule 8.02 of the CPR.
Moreover, by engaging in a money-lending venture with his clients as borrowers, respondent violated Rule 16.04:
Rule 16.04 A lawyer shall not borrow money from his client unless the clients interests are fully protected by the nature of the case or
by independent advice. Neither shall a lawyer lend money to a client except, when in the interest of justice, he has to advance
necessary expenses in a legal matter he is handling for the client.
The rule is that a lawyer shall not lend money to his client. The only exception is, when in the interest of justice, he has to advance
necessary expenses (such as filing fees, stenographers fees for transcript of stenographic notes, cash bond or premium for surety
bond, etc.) for a matter that he is handling for the client.
The rule is intended to safeguard the lawyers independence of mind so that the free exercise of his judgment may not be adversely
affected.[22] It seeks to ensure his undivided attention to the case he is handling as well as his entire devotion and fidelity to the
clients cause. If the lawyer lends money to the client in connection with the clients case, the lawyer in effect acquires an interest in
the subject matter of the case or an additional stake in its outcome. [23] Either of these circumstances may lead the lawyer to consider
his own recovery rather than that of his client, or to accept a settlement which may take care of his interest in the verdict to the
prejudice of the client in violation of his duty of undivided fidelity to the clients cause. [24]
As previously mentioned, any act of solicitation constitutes malpractice [25] which calls for the exercise of the Courts disciplinary
powers. Violation of anti-solicitation statutes warrants serious sanctions for initiating contact with a prospective client for the purpose
of obtaining employment.[26] Thus, in this jurisdiction, we adhere to the rule to protect the public from the Machiavellian machinations
of unscrupulous lawyers and to uphold the nobility of the legal profession.
Considering the myriad infractions of respondent (including violation of the prohibition on lending money to clients), the sanction
recommended by the IBP, a mere reprimand, is a wimpy slap on the wrist.The proposed penalty is grossly incommensurate to its
findings.
A final word regarding the calling card presented in evidence by petitioner. A lawyers best advertisement is a well-merited reputation
for professional capacity and fidelity to trust based on his character and conduct. [27] For this reason, lawyers are only allowed to
announce their services by publication in reputable law lists or use of simple professional cards.
Professional calling cards may only contain the following details:
(a)
(b)
(c)
(d)
(e)
lawyers name;
name of the law firm with which he is connected;
address;
telephone number and
special branch of law practiced.[28]
Labianos calling card contained the phrase with financial assistance. The phrase was clearly used to entice clients (who already had
representation) to change counsels with a promise of loans to finance their legal actions. Money was dangled to lure clients away
from their original lawyers, thereby taking advantage of their financial distress and emotional vulnerability. This crass commercialism
degraded the integrity of the bar and deserved no place in the legal profession. However, in the absence of substantial evidence to
prove his culpability, the Court is not prepared to rule that respondent was personally and directly responsible for the printing and
distribution of Labianos calling cards.
WHEREFORE, respondent Atty. Nicomedes Tolentino for violating Rules 1.03, 2.03, 8.02 and 16.04 and Canon 3 of the Code of
Professional Responsibility and Section 27, Rule 138 of the Rules of Court is hereby SUSPENDED from the practice of law for a period
of one year effective immediately from receipt of this resolution. He is STERNLY WARNED that a repetition of the same or similar acts
in the future shall be dealt with more severely.
Let a copy of this Resolution be made part of his records in the Office of the Bar Confidant, Supreme Court of the Philippines, and be
furnished to the Integrated Bar of the Philippines and the Office of the Court Administrator to be circulated to all courts.
ATTY. JULITO D. VITRIOLO, PRECILLANA J. HONORICA, ARLEEN J. RAMOS, DR. ROGER PEREZ, DR. IMELDA DARAUG, DR. REMIGIA
NATHANIELZ, CELEDONIA CORONACION, and JOSE RABALO, complainants, vs. ATTY. FELINA DASIG, respondent.

RESOLUTION
PER CURIAM:
This is an administrative case for disbarment filed against Atty. Felina S. Dasig, [1] an official of the Commission on Higher Education
(CHED). The charge involves gross misconduct of respondent in violation of the Attorneys Oath for having used her public office to
secure financial spoils to the detriment of the dignity and reputation of the CHED.
Almost all complainants in the instant case are high-ranking officers of the CHED. In their sworn Complaint-Affidavit filed with this
Court on December 4, 1998, complainants allege that respondent, while she was OIC of Legal Affairs Service, CHED, committed acts
that are grounds for disbarment under Section 27,[2] Rule 138 of the Rules of Court, to wit:
a) Sometime in August 1998 and during the effectivity of Respondents designation as Officer-in-Charge of Legal Affairs Service, CHED,
she demanded from Betty C. Mangohon, a teacher of Our Lady of Mariazel Educational Center in Novaliches, Quezon City, the amount
of P20,000.00 and later reduced to P5,000.00 for the facilitation of her application for correction of name then pending before the
Legal Affairs Service, CHED...
b) Likewise, sometime in July to August 1998 and during the effectivity of Respondents designation as Officer-in-Charge of Legal
Affairs Service, CHED, she demanded from Rosalie B. Dela Torre, a student, the amount of P18,000.00 to P20,000.00 for facilitation of
her application for correction of name then pending before the Legal Affairs Service, CHED
c) Likewise, sometime in September 1998 and during the effectivity of Respondents designation as Officer-in-Charge of Legal Affairs
Service, CHED, she demanded from Rocella G. Eje, a student, the amount of P5,000.00 for facilitation of her application for correction
of name then pending before the Legal Affairs Service, CHED. . . In addition, Respondent even suggested to Ms. Eje to register her
birth anew with full knowledge of the existence of a prior registration
d) Likewise, sometime in August to September 1998 and during the effectivity of Respondents designation as Officer-in-Charge of
Legal Affairs Service, CHED, she demanded from Jacqueline N. Ng, a student, a considerable amount which was subsequently
confirmed to be P15,000.00 and initial fee of P5,000.00 more or less for facilitation of her application for correction of name then
pending before the Legal Affairs Service, CHED... In addition, the Respondent even suggested to Ms. Ng to hire a lawyer who shall be
chosen by Respondent Dasig to facilitate the application for correction of name. [3]
Complainants likewise aver that respondent violated her oath as attorney-at-law by filing eleven (11) baseless, groundless, and
unfounded suits before the Office of the City Prosecutor of Quezon City, which were subsequently dismissed. [4]
Further, complainants charge respondent of transgressing subparagraph b (22), Section 36 [5] of Presidential Decree No. 807, for her
willful failure to pay just debts owing to Borela Tire Supply and Novas Lining Brake & Clutch as evidenced by the dishonored checks
she issued,[6] the complaint sheet, and the subpoena issued to respondent.[7]
Complainants also allege that respondent instigated the commission of a crime against complainant Celedonia R. Coronacion and
Rodrigo Coronacion, Jr., when she encouraged and ordered her son, Jonathan Dasig, a guard of the Bureau of Jail Management and
Penology, to draw his gun and shoot the Coronacions on the evening of May 14, 1997. As a result of this incident, a complaint for
grave threats against the respondent and her son, docketed as Criminal Case No. 86052, was lodged with the Metropolitan Trial Court
of Quezon City, Branch 36.[8]
Finally, complainants allege that respondent authored and sent to then President Joseph Estrada a libelous and unfair report, which
maligned the good names and reputation of no less than eleven (11) CHED Directors calculated to justify her ill motive of preventing
their re-appointment and with the end view of securing an appointment for herself. [9]
In our resolution of February 3, 1999, we required respondent to file a Comment on the charges. [10] A copy of said resolution was sent
to the respondent at her address at Blk. 4, Lot 12, Hobart II Subdivision, Novaliches, Quezon City, only to be returned to this Court
with the notation Unclaimed.[11]
On July 5, 1999, we directed that a copy of the resolution of February 3, 1999, be served by registered mail to respondent at her
office address in CHED.
In a letter dated August 28, 2000, the Postmaster of the Ortigas Center Post Office informed the Court that the said mail matter had
been delivered to, received by, and signed for by one Antonio Molon, an authorized agent of respondent on August 27, 1999. [12]
On November 22, 2000, we granted complainants motion to refer the complaint to the Commission on Bar Discipline, Integrated Bar
of the Philippines (IBP) for investigation, report, and recommendation.
In its order dated February 6, 2001, the IBP Commission on Bar Discipline directed respondent to submit her Answer to the Complaint,
failing which she would be considered in default and the case heard ex parte. Respondent failed to heed said order and on January 8,
2002, the Commission directed her anew to file her Answer, but again she failed to comply with the directive. As a result, the
Commission ruled that she had waived her right to file her Comment or Answer to the Complaint and the case was mainly resolved on
the basis of the documents submitted and on record.
In its report and recommendation, dated April 5, 2002, the IBP Commission on Bar Discipline stated as follows:
From the foregoing evidence on record, it can be concluded that respondent in violation of her oath as a government official and as a
member of the Bar, indeed made unlawful demands or attempted to extort money from certain people who had pending
applications/requests before her office in exchange for her promise to act favorably on said applications/requests. Clearly, respondent
unlawfully used her public office in order to secure financial spoils to the detriment of the dignity and reputation of the Commission
on Higher Education.
For the foregoing reasons, it is recommended that respondent be suspended from the practice of law for the maximum period
allowable of three (3) years with a further warning that similar action in the future will be a ground for disbarment of respondent.
On August 3, 2002, the IBP Board of Governors passed Resolution No. XV-2002-393, the full text of which reads as follows:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating
Commissioner of the above-entitled case, herein made part of this Resolution/Decision as Annex A:; and, finding the recommendation
fully supported by the evidence on record and the applicable laws and rules; and considering that respondent unlawfully used her
public office in order to secure financial spoils to the detriment of the dignity and reputation of the Commission on Higher Education,
Respondent is hereby SUSPENDED from the practice of law for three (3) years. [13]
At the threshold is the query of whether respondent attorney-at-law, as Officer-in-Charge (OIC) of Legal Services, CHED, may be
disciplined by this Court for her malfeasance, considering that her position, at the time of filing of the complaint, was Chief Education
Program Specialist, Standards Development Division, Office of Programs and Standards, CHED.
Generally speaking, a lawyer who holds a government office may not be disciplined as a member of the Bar for misconduct in the
discharge of his duties as a government official. [14] However, if said misconduct as a government official also constitutes a violation of
his oath as a lawyer, then he may be disciplined by this Court as a member of the Bar. [15]
In this case, the record shows that the respondent, on various occasions, during her tenure as OIC, Legal Services, CHED, attempted
to extort from Betty C. Mangohon, Rosalie B. Dela Torre, Rocella G. Eje, and Jacqueline N. Ng sums of money as consideration for her
favorable action on their pending applications or requests before her office. The evidence remains unrefuted, given the respondents
failure, despite the opportunities afforded her by this Court and the IBP Commission on Bar Discipline to comment on the charges. We
find that respondents misconduct as a lawyer of the CHED is of such a character as to affect her qualification as a member of the Bar,
for as a lawyer, she ought to have known that it was patently unethical and illegal for her to demand sums of money as consideration
for the approval of applications and requests awaiting action by her office.
The Attorneys Oath is the source of the obligations and duties of every lawyer and any violation thereof is a ground for disbarment,
suspension, or other disciplinary action. The Attorneys Oath imposes upon every member of the bar the duty to delay no man for
money or malice. Said duty is further stressed in Rule 1.03 of the Code of Professional Responsibility. [16] Respondents demands for
sums of money to facilitate the processing of pending applications or requests before her office violates such duty, and runs afoul of
the oath she took when admitted to the Bar. Such actions likewise run contrary to Rule 1.03 of the Code of Professional Responsibility.
A member of the Bar who assumes public office does not shed his professional obligations. Hence, the Code of Professional
Responsibility, promulgated on June 21, 1988, was not meant to govern the conduct of private practitioners alone, but of all lawyers
including those in government service. This is clear from Canon 6 [17] of said Code. Lawyers in government are public servants who
owe the utmost fidelity to the public service. Thus, they should be more sensitive in the performance of their professional obligations,
as their conduct is subject to the ever-constant scrutiny of the public.
Respondents attempts to extort money from persons with applications or requests pending before her office are violative of Rule
1.01[18]of the Code of Professional Responsibility, which prohibits members of the Bar from engaging or participating in any unlawful,
dishonest, or deceitful acts. Moreover, said acts constitute a breach of Rule 6.02 [19] of the Code which bars lawyers in government

service from promoting their private interests. Promotion of private interests includes soliciting gifts or anything of monetary value in
any transaction requiring the approval of his office or which may be affected by the functions of his office. Respondents conduct in
office falls short of the integrity and good moral character required from all lawyers, specially from one occupying a high public office.
For a lawyer in public office is expected not only to refrain from any act or omission which might tend to lessen the trust and
confidence of the citizenry in government, she must also uphold the dignity of the legal profession at all times and observe a high
standard of honesty and fair dealing. Otherwise said, a lawyer in government service is a keeper of the public faith and is burdened
with high degree of social responsibility, perhaps higher than her brethren in private practice.
For her violation of the Attorneys Oath as well as of Rule 1.01 and Rule 1.03 of Canon 1 [20] and Rule 6.02 of Canon 6 of the Code of
Professional Responsibility, particularly for acts of dishonesty as well as gross misconduct as OIC, Legal Services, CHED, we find that
respondent deserves not just the penalty of three years suspension from membership in the Bar as well as the practice of law, as
recommended by the IBP Board of Governors, but outright disbarment. Her name shall be stricken off the list of attorneys upon
finality of this decision.
WHEREFORE, respondent Arty. Felina S. Dasig is found liable for gross misconduct and dishonesty in violation of the Attorneys Oath as
well as the Code of Professional Responsibility, and is hereby ordered DISBARRED.
Let copies of this Resolution be furnished to the Bar Confidant to be spread on the records of the respondent, as well as to the
Integrated Bar of the Philippines for distribution to all its chapters, and the Office of the Court Administrator for dissemination to all
courts throughout the country.
JON
DE
YSASI
III, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION (FOURTH DIVISION), CEBU CITY, and JON DE YSASI, respondents.
F.B. Santiago, Nalus & Associates for petitioner.
Ismael A. Serfino for private respondent.
REGALADO, J.:
The adage that blood is thicker than water obviously stood for naught in this case, notwithstanding the vinculum of paternity and
filiation between the parties. It would indeed have been the better part of reason if herein petitioner and private respondent had
reconciled their differences in an extrajudicial atmosphere of familial amity and with the grace of reciprocal concessions. Father and
son opted instead for judicial intervention despite the inevitable acrimony and negative publicity. Albeit with distaste, the Court
cannot proceed elsewise but to resolve their dispute with the same reasoned detachment accorded any judicial proceeding before it.
The records of this case reveal that petitioner was employed by his father, herein private respondent, as farm administrator of
Hacienda Manucao in Hinigaran, Negros Occidental sometime in April, 1980. Prior thereto, he was successively employed as sales
manager of Triumph International (Phil.), Inc. and later as operations manager of Top Form Manufacturing (Phil.), Inc. His employment
as farm administrator was on a fixed salary, with other allowances covering housing, food, light, power, telephone, gasoline, medical
and dental expenses.
As farm administrator, petitioner was responsible for the supervision of daily activities and operations of the sugarcane farm such as
land preparation, planting, weeding, fertilizing, harvesting, dealing with third persons in all matters relating to the hacienda and
attending to such other tasks as may be assigned to him by private respondent. For this purpose, he lived on the farm, occupying the
upper floor of the house there.
Following his marriage on June 6, 1982, petitioner moved to Bacolod City with his wife and commuted to work daily. He suffered
various ailments and was hospitalized on two separate occasions in June and August, 1982. In November, 1982, he underwent
fistulectomy, or the surgical removal of the fistula, a deep sinuous ulcer. During his recuperation which lasted over four months, he
was under the care of Dr. Patricio Tan. In June, 1983, he was confined for acute gastroenteritis and, thereafter, for infectious hepatitis
from December, 1983 to January, 1984.
During the entire periods of petitioner's illnesses, private respondent took care of his medical expenses and petitioner continued to
receive compensation. However, in April, 1984, without due notice, private respondent ceased to pay the latter's salary. Petitioner
made oral and written demands for an explanation for the sudden withholding of his salary from Atty. Apolonio Sumbingco, private
respondent's auditor and legal adviser, as well as for the remittance of his salary. Both demands, however, were not acted upon.
Petitioner then filed an action with the National Labor Relations Commission (NLRC, for brevity), Regional Arbitration Branch No. VI,
Bacolod City, on October 17, 1984, docketed therein as RAB Case No. 0452-84, against private respondent for illegal dismissal with
prayer for reinstatement without loss of seniority rights and payment of full back wages, thirteenth month pay for 1983,
consequential, moral and exemplary damages, as well as attorney's fees.
On July 31, 1991, said complaint for illegal dismissal was dismissed by the NLRC, 1 holding that petitioner abandoned his work and
that the termination of his employment was for a valid cause, but ordering private respondent to pay petitioner the amount of
P5,000.00 as penalty for his failure to serve notice of said termination of employment to the Department of Labor and Employment as
required by Batas Pambansa Blg. 130 and consonant with this Court's ruling in Wenphil Corporation vs. National Labor Relations
Commission, et al. 2 On appeal to the Fourth Division of the NLRC, Cebu City, said decision was affirmed in toto. 3
His motion for reconsideration 4 of said decision having been denied for lack of merit, 5 petitioner filed this petition presenting the
following issues for resolution: (1) whether or not the petitioner was illegally dismissed; (2) whether or not he is entitled to
reinstatement, payment of back wages, thirteenth month pay and other benefits; and (3) whether or not he is entitled to payment of
moral and exemplary damages and attorney's fees because of illegal dismissal. The discussion of these issues will necessarily
subsume the corollary questions presented by private respondent, such as the exact date when petitioner ceased to function as farm
administrator, the character of the pecuniary amounts received by petitioner from private respondent, that is, whether the same are
in the nature of salaries or pensions, and whether or not there was abandonment by petitioner of his functions as farm administrator.
In his manifestation dated September 14, 1992, the Solicitor General recommended a modification of the decision of herein public
respondent sustaining the findings and conclusions of the Executive Labor Arbiter in RAB Case No. 0452-84, 6 for which reason the
NLRC was required to submit its own comment on the petition. In compliance with the Court's resolution of November 16,
1992, 7 NLRC filed its comment on February 12, 1992 largely reiterating its earlier position in support of the findings of the Executive
Labor Arbiter. 8
Before proceeding with a discussion of the issues, the observation of the labor arbiter is worth noting:
This case is truly unique. What makes this case unique is the fact that because of the special relationship of the parties and the
nature of the action involved, this case could very well go down (in) the annals of the Commission as perhaps the first of its kind. For
this case is an action filed by an only son, his father's namesake, the only child and therefore the only heir against his own father. 9
Additionally, the Solicitor General remarked:
. . . After an exhaustive reading of the records, two (2) observations were noted that may justify why this labor case deserves special
considerations. First, most of the complaints that petitioner and private respondent had with each other, were personal matters
affecting father and son relationship. And secondly, if any of the complaints pertain to their work, they allow their personal
relationship to come in the way. 10
I. Petitioner maintains that his dismissal from employment was illegal because of want of just cause therefor and non-observance of
the requirements of due process. He also charges the NLRC with grave abuse of discretion in relying upon the findings of the
executive labor arbiter who decided the case but did not conduct the hearings thereof.
Private respondent, in refutation, avers that there was abandonment by petitioner of his functions as farm administrator, thereby
arming private respondent with a ground to terminate his employment at Hacienda Manucao. It is also contended that it is wrong for
petitioner to question the factual findings of the executive labor arbiter and the NLRC as only questions of law may be appealed for
resolution by this Court. Furthermore, in seeking the dismissal of the instant petition, private respondent faults herein petitioner for
failure to refer to the corresponding pages of the transcripts of stenographic notes, erroneously citing Sections 15(d) and 16(d), Rule
44
(should
be
Section
16[c]
and
[d],
Rule 46 and Section 1[g], Rule 50) of the Rules of Court, which provide that want of page references to the records is a ground for
dismissal of an appeal.
Prefatorily, we take advertence of the provisions of Article 221 of the Labor Code that technical rules of evidence prevailing in courts
of law and equity shall not be controlling, and that every and all reasonable means to speedily and objectively ascertain the facts in
each case shall be availed of, without regard to technicalities of law or procedure in the interest of due process.

It is settled that it is not procedurally objectionable for the decision in a case to be rendered by a judge, or a labor arbiter for that
matter, other than the one who conducted the hearing. The fact that the judge who heard the case was not the judge who penned the
decision does not impair the validity of the judgment, 11 provided that he draws up his decision and resolution with due care and
makes certain that they truly and accurately reflect conclusions and final dispositions on the bases of the facts of and evidence
submitted in the case. 12
Thus, the mere fact that the case was initially assigned to Labor Arbiter Ricardo T. Octavio, who conducted the hearings therein from
December 5, 1984 to July 11, 1985, and was later transferred to Executive Labor Arbiter Oscar S. Uy, who eventually decided the
case, presents no procedural infirmity, especially considering that there is a presumption of regularity in the performance of a public
officer's functions, 13 which petitioner has not successfully rebutted.
We are constrained to heed the underlying policy in the Labor Code relaxing the application of technical rules of procedure in labor
cases in the interest of due process, ever mindful of the long-standing legal precept that rules of procedure must be interpreted to
help secure, not defeat, justice. For this reason, we cannot indulge private respondent in his tendency to nitpick on trivial
technicalities to boost his arguments. The strength of one's position cannot be hinged on mere procedural niceties but on solid bases
in law and jurisprudence.
The fundamental guarantees of security of tenure and due process dictate that no worker shall be dismissed except for just and
authorized cause provided by law and after due process. 14 Article 282 of the Labor Code enumerates the causes for which an
employer
may
validly
terminate
an
employment,
to
wit:
(a) serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection
with his work; (b) gross and habitual neglect by the employee of his duties; (c) fraud or willful breach by the employee of the trust
reposed in him by his employer or duly authorized representative; (d) commission of a crime or offense by the employee against the
person of his employer or any immediate member of his family or his duly authorized representative; and (e) other causes analogous
to the foregoing.
The employer may also terminate the services of any employee due to the installation of labor saving devices, redundancy,
retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking, unless the closing is for
the purpose of circumventing the pertinent provisions of the Labor Code, by serving a written notice on the workers and the
Department of Labor and Employment at least one (1) month before the intended date thereof, with due entitlement to the
corresponding separation pay rates provided by law. 15 Suffering from a disease by reason whereof the continued employment of the
employee is prohibited by law or is prejudicial to his and his co-employee's health, is also a ground for termination of his services
provided he receives the prescribed separation pay. 16 On the other hand, it is well-settled that abandonment by an employee of his
work authorizes the employer to effect the former's dismissal from employment. 17
After a careful review of the records of this case, we find that public respondent gravely erred in affirming the decision of the
executive labor arbiter holding that petitioner abandoned his employment and was not illegally dismissed from such employment. For
want
of
substantial
bases,
in
fact
or
in law, we cannot give the stamp of finality and conclusiveness normally accorded to the factual findings of an administrative agency,
18
such as herein public respondent NLRC, as even decisions of administrative agencies which are declared "final" by law are not
exempt from judicial review when so warranted. 19
The following perceptive disquisitions of the Solicitor General on this point deserve acceptance:
It is submitted that the absences of petitioner in his work from October 1982 to December 1982, cannot be construed as
abandonment of work because he has a justifiable excuse. Petitioner was suffering from perennial abscess in the peri-anal around the
anus and fistula under the medical attention of Dr. Patricio Tan of Riverside Medical Center, Inc., Bacolod City (Tsn, Vol. III, Dr. Tan,
February 19, 1986 at 20-44).
This fact (was) duly communicated to private respondent by medical bills sent to Hacienda Manucao (Tsn, Vol. III, Dr. Tan, January 22,
1987 at 49-50).
During the period of his illness and recovery, petitioner stayed in Bacolod City upon the instruction(s) of private respondent to
recuperate thereat and to handle only administrative matters of the hacienda in that city. As a manager, petitioner is not really
obliged to live and stay 24 hours a day inside Hacienda Manucao.
xxx xxx xxx
After evaluating the evidence within the context of the special circumstances involved and basic human experience, petitioner's
illness and strained family relation with respondent Jon de Ysasi II may be considered as justifiable reason for petitioner Jon de Ysasi
III's absence from work during the period of October 1982 to December 1982. In any event, such absence does not warrant outright
dismissal without notice and hearing.
xxx xxx xxx
The elements of abandonment as a ground for dismissal of an employee are as follows:
(1) failure to report for work or absence without valid or justifiable reason; and (2) clear intention to sever the employer-employee tie
(Samson Alcantara, Reviewer in Labor and Social Legislation, 1989 edition, p. 133).
This Honorable Court, in several cases, illustrates what constitute abandonment. In Dagupan Bus Company v. NLRC (191 SCRA 328),
the Court rules that for abandonment to arise, there must be a concurrence of the intention to abandon and some overt act from
which it may be inferred that the employee has no more interest to work. Similarly, in Nueva Ecija I Electric Cooperative,
Inc. v. NLRC (184 SCRA 25), for abandonment to constitute a valid cause for termination of employment, there must be a deliberate,
unjustified refusal of the employee to resume his employment. . . Mere absence is not sufficient; it must be accompanied by overt
acts unerringly pointing to the fact that the employee simply does not want to work anymore.
There are significant indications in this case, that there is no abandonment. First, petitioner's absence and his decision to leave his
residence inside Hacienda Manucao, is justified by his illness and strained family relations. Second he has some medical certificates
to show his frail health. Third, once able to work, petitioner wrote a letter (Annex "J") informing private respondent of his intention to
assume again his employment. Last, but not the least, he at once instituted a complaint for illegal dismissal when he realized he was
unjustly dismissed. All these are indications that petitioner had no intention to abandon his employment. 20
The records show that the parties herein do not dispute the fact of petitioner's confinement in the hospital for his various afflictions
which required medical treatment. Neither can it be denied that private respondent was well aware of petitioner's state of health as
the former admittedly shouldered part of the medical and hospital bills and even advised the latter to stay in Bacolod City until he
was fit to work again. The disagreement as to whether or not petitioner's ailments were so serious as to necessitate hospitalization
and corresponding periods for recuperation is beside the point. The fact remains that on account of said illnesses, the details of which
were amply substantiated by the attending physician, 21 and as the records are bereft of any suggestion of malingering on the part of
petitioner, there was justifiable cause for petitioner's absence from work. We repeat, it is clear, deliberate and unjustified refusal to
resume employment and not mere absence that is required to constitute abandonment as a valid ground for termination of
employment. 22
With his position as farm administrator of Hacienda Manucao, petitioner unmistakably may be classified as a managerial
employee 23 to whom the law grants an amount of discretion in the discharge of his duties. This is why when petitioner stated that "I
assigned myself where I want to go," 24 he was simply being candid about what he could do within the sphere of his authority. His
duties as farm administrator did not strictly require him to keep regular hours or to be at the office premises at all times, or to be
subjected to specific control from his employer in every aspect of his work. What is essential only is that he runs the farm as
efficiently and effectively as possible and, while petitioner may definitely not qualify as a model employee, in this regard he proved to
be quite successful, as there was at least a showing of increased production during the time that petitioner was in charge of farm
operations.
If, as private respondent contends, he had no control over petitioner during the years 1983 to 1984, this is because that was the
period when petitioner was recuperating from illness and on account of which his attendance and direct involvement in farm
operations were irregular and minimal, hence the supervision and control exercisable by private respondent as employer was
necessarily limited. It goes without saying that the control contemplated refers only to matters relating to his functions as farm
administrator and could not extend to petitioner's personal affairs and activities.
While it was taken for granted that for purposes of discharging his duties as farm administrator, petitioner would be staying at the
house in the farm, there really was no explicit contractual stipulation (as there was no formal employment contract to begin with)
requiring him to stay therein for the duration of his employment or that any transfer of residence would justify the termination of his

employment. That petitioner changed his residence should not be taken against him, as this is undeniably among his basic rights, nor
can such fact of transfer of residence per se be a valid ground to terminate an employer-employee relationship.
Private respondent, in his pleadings, asserted that as he was yet uncertain of his son's intention of returning to work after his
confinement in the hospital, he kept petitioner on the payroll, reported him as an employee of the hacienda for social security
purposes, and paid his salaries and benefits with the mandated deductions therefrom until the end of December, 1982. It was only in
January, 1983 when he became convinced that petitioner would no longer return to work that he considered the latter to have
abandoned his work and, for this reason, no longer listed him as an employee. According to private respondent, whatever amount of
money
was
given
to
petitioner
from
that
time
until
April, 1984 was in the nature of a pension or an allowance or mere gratuitous doles from a father to a son, and not salaries as, in fact,
none of the usual deductions were made therefrom. It was only in April, 1984 that private respondent completely stopped giving said
pension or allowance when he was angered by what he heard petitioner had been saying about sending him to jail.
Private respondent capitalizes on the testimony of one Manolo Gomez taken on oral deposition regarding petitioner's alleged
statement to him, "(h)e quemado los (p)ue(n)tes de Manucao" ("I have burned my bridges with Manucao") as expressive of
petitioner's intention to abandon his job. In addition to insinuations of sinister motives on the part of petitioner in working at the farm
and thereafter abandoning the job upon accomplishment of his objectives, private respondent takes the novel position that the
agreement to support his son after the latter abandoned the administration of the farm legally converts the initial abandonment to
implied voluntary resignation. 25
As earlier mentioned, petitioner ripostes that private respondent undoubtedly knew about petitioner's illness and even paid for his
hospital and other medical bills. The assertion regarding abandonment of work, petitioner argues, is further belied by his continued
performance of various services related to the operations of the farm from May to the last quarter of 1983, his persistent inquiries
from his father's accountant and legal adviser about the reason why his pension or allowance was discontinued since April, 1984, and
his indication of having recovered and his willingness and capability to resume his work at the farm as expressed in a letter dated
September 14, 1984. 26 With these, petitioner contends that it is immaterial how the monthly pecuniary amounts are designated,
whether as salary, pension or allowance, with or without deductions, as he was entitled thereto in view of his continued service as
farm administrator. 27
To stress what was earlier mentioned, in order that a finding of abandonment may justly be made there must be a concurrence of two
elements, viz.: (1) the failure to report for work or absence without valid or justifiable reason, and (2) a clear intention to sever the
employer-employee relationship, with the second element as the more determinative factor and being manifested by some overt
acts. Such intent we find dismally wanting in this case.
It will be recalled that private respondent himself admitted being unsure of his son's plans of returning to work. The absence of
petitioner from work since mid-1982, prolonged though it may have been, was not without valid causes of which private respondent
had full knowledge. As to what convinced or led him to believe that petitioner was no longer returning to work, private respondent
neither explains nor substantiates by any reasonable basis how he arrived at such a conclusion.
Moreover, private respondent's claim of abandonment cannot be given credence as even after January, 1983, when private
respondent supposedly "became convinced" that petitioner would no longer work at the farm, the latter continued to perform
services directly required by his position as farm administrator. These are duly and correspondingly evidenced by such acts as picking
up some farm machinery/equipment from G.A. Machineries, Inc., 28 claiming and paying for additional farm equipment and machinery
shipped by said firm from Manila to Bacolod through Zip Forwarders, 29 getting the payment of the additional cash advances for
molasses for crop year 1983-1984 from Agrotex Commodities, Inc., 30 and remitting to private respondent through
Atty. Sumbingco the sums collected along with receipts for medicine and oil. 31
It will be observed that all of these chores, which petitioner took care of, relate to the normal activities and operations of the farm.
True, it is a father's prerogative to request or even command his child to run errands for him. In the present case, however,
considering the nature of these transactions, as well as the property values and monetary sums involved, it is unlikely that private
respondent would leave the matter to just anyone. Prudence dictates that these matters be handled by someone who can be trusted
or at least be held accountable therefor, and who is familiar with the terms, specifications and other details relative thereto, such as
an employee. If indeed petitioner had abandoned his job or was considered to have done so by private respondent, it would be
awkward, or even out of place, to expect or to oblige petitioner to concern himself with matters relating to or expected of him with
respect to what would then be his past and terminated employment. It is hard to imagine what further authority an employer can
have over a dismissed employee so as to compel him to continue to perform work-related tasks:
It
is
also
significant
that
the
special
power
of
attorney 32 executed
by private respondent on June 26, 1980 in favor of petitioner, specifically stating
xxx xxx xxx
That I, JON de YSASI, Filipino, of legal age, married, and a resident of Hda. Manucao, hereinafter called and referred to as PRINCIPAL,
am a sugarcane planter, BISCOM Mill District, and a duly accredited planter-member of the BINALBAGAN-ISABELA PLANTERS'
ASSOCIATION, INC.;
That as such planter-member of BIPA, I have check/checks with BIPA representing payment for all checks and papers to which I am
entitled to (sic) as such planter-member;
That
I
have
named,
appointed
and
constituted
as
by
these
presents
I HEREBY NAME, APPOINT AND CONSTITUTE as my true and lawful ATTORNEY-IN-FACT
JON de YSASI III
whose specimen signature is hereunder affixed, TO GET FOR ME and in my name, place and stead, my check/checks aforementioned,
said ATTORNEY-IN-FACT being herein given the power and authority to sign for me and in my name, place and stead, the receipt or
receipts or payroll for the said check/checks. PROVIDED, HOWEVER, that my said ATTORNEY-IN-FACT cannot cash the said
check/checks, but to turn the same over to me for my proper disposition.
That
I
HEREBY
RATIFY
AND
CONFIRM
the
acts
of
my
Attorney-in-Fact in getting the said check/checks and signing the receipts therefor.
That I further request that my said check/checks be made a "CROSSED CHECK".
xxx xxx xxx
remained in force even after petitioner's employment was supposed to have been terminated by reason of abandonment.
Furthermore, petitioner's numerous requests for an explanation regarding the stoppage of his salaries and benefits, 33 the issuance of
withholding tax reports, 34 as well as correspondence reporting his full recovery and readiness to go back to work, 35 and, specifically,
his filing of the complaint for illegal dismissal are hardly the acts of one who has abandoned his work.
We are likewise not impressed by the deposition of Manolo Gomez, as witness for private respondent, ascribing statements to
petitioner supposedly indicative of the latter's intention to abandon his work. We perceive the irregularity in the taking of such
deposition without the presence of petitioner's counsel, and the failure of private respondent to serve reasonably advance notice of
its
taking
to
said
counsel,
thereby
foreclosing
his
opportunity
to
cross-examine the deponent. Private respondent also failed to serve notice thereof on the Regional Arbitration Branch No. VI of the
NLRC, as certified to by Administrative Assistant Celestina G. Ovejera of said office. 36 Fair play dictates that at such an important
stage of the proceedings, which involves the taking of testimony, both parties must be afforded equal opportunity to examine and
cross-examine a witness.
As to the monthly monetary amounts given to petitioner, whether denominated as salary, pension, allowance or ex gratia handout,
there is no question as to petitioner's entitlement thereto inasmuch as he continued to perform services in his capacity as farm
administrator. The change in description of said amounts contained in the pay slips or in the receipts prepared by private respondent
cannot be deemed to be determinative of petitioner's employment status in view of the peculiar circumstances above set out.
Besides, if such amounts were truly in the nature of allowances given by a parent out of concern for his child's welfare, it is rather
unusual that receipts therefor 37 should be necessary and required as if they were ordinary business expenditures.
Neither can we subscribe to private respondent's theory that petitioner's alleged abandonment was converted into an implied
voluntary resignation on account of the father's agreement to support his son after the latter abandoned his work. As we have
determined that no abandonment took place in this case, the monthly sums received by petitioner, regardless of designation, were in
consideration for services rendered emanating from an employer-employee relationship and were not of a character that can qualify
them as mere civil support given out of parental duty and solicitude. We are also hard put to imagine how abandonment can be

impliedly converted into a voluntary resignation without any positive act on the part of the employee conveying a desire to terminate
his employment. The very concept of resignation as a ground for termination by the employee of his employment 38 does not square
with the elements constitutive of abandonment.
On procedural considerations, petitioner posits that there was a violation by private respondent of the due process requirements
under the Labor Code for want of notice and hearing. 39 Private respondent, in opposition, argues that Section 2, Rule XIV, Book V of
the Omnibus Rules Implementing the Labor Code applies only to cases where the employer seeks to terminate the services of an
employee on any of the grounds enumerated under Article 282 of the Labor Code, but not to the situation obtaining in this case
where private respondent did not dismiss petitioner on any ground since it was petitioner who allegedly abandoned his
employment. 40
The due process requirements of notice and hearing applicable to labor cases are set out in Rule XIV, Book V of the Omnibus Rules
Implementing the Labor Code in this wise:
Sec. 2. Notice of Dismissal. Any employer who seeks to dismiss a worker shall furnish him a written notice stating the particular
acts or omission(s) constituting the grounds for his dismissal. In cases of abandonment of work, notice shall be served at the worker's
last known address.
xxx xxx xxx
Sec. 5. Answer and hearing. The worker may answer the allegations as stated against him in the notice of dismissal within a
reasonable period from receipt of such notice. The employer shall afford the worker ample opportunity to be heard and to defend
himself with the assistance of his representative, if he so desires.
Sec. 6. Decision to dismiss. The employer shall immediately notify a worker in writing of a decision to dismiss him stating clearly
the reasons therefor.
Sec. 7. Right to contest dismissal. Any decision taken by the employer shall be without prejudice to the right of the worker to
contest the validity or legality of his dismissal by filing a complaint with the Regional Branch of the Commission.
xxx xxx xxx
Sec. 11. Report of dismissal. The employer shall submit a monthly report to the Regional Office having jurisdiction over the place of
work at all dismissals effected by him during the month, specifying therein the names of the dismissed workers, the reasons for their
dismissal, the dates of commencement and termination of employment, the positions last held by them and such other information as
may be required by the Ministry for policy guidance and statistical purposes.
Private respondent's argument is without merit as there can be no question that petitioner was denied his right to due process since
he was never given any notice about his impending dismissal and the grounds therefor, much less a chance to be heard. Even as
private respondent controverts the applicability of the mandatory twin requirements of procedural due process in this particular case,
he in effect admits that no notice was served by him on petitioner. This fact is corroborated by the certification issued on September
5, 1984 by the Regional Director for Region VI of the Department of Labor that no notice of termination of the employment of
petitioner was submitted thereto. 41
Granting arguendo that there was abandonment in this case, it nonetheless cannot be denied that notice still had to be served upon
the employee sought to be dismissed, as the second sentence of Section 2 of the pertinent implementing rules explicitly requires
service thereof at the employee's last known address, by way of substantial compliance. While it is conceded that it is the employer's
prerogative to terminate an employee, especially when there is just cause therefor, the requirements of due process cannot be lightly
taken. The law does not countenance the arbitrary exercise of such a power or prerogative when it has the effect of undermining the
fundamental guarantee of security of tenure in favor of the employee. 42
On the executive labor arbiter's misplaced reliance on the Wenphil case, the Solicitor General rejoins as follows:
The Labor Arbiter held thus:
While we are in full agreement with the respondent as to his defense of implied resignation and/or abandonment, records somehow
showed
that
he
failed
to
notify
the
Department
of
Labor and Employment for his sons' (sic)/complainants' (sic) aba(n)donment as required by BP 130. And for this failure, the other
requisite for a valid termination by an employer was not complied with. This however, would not work to invalidate the otherwise (sic)
existence of a valid cause for dismissal. The validity of the cause of dismissal must be upheld at all times provided however that
sanctions must be imposed on the respondent for his failure to observe the notice on due process requirement. (Wenphil Corp. v.
NLRC, G.R. No. 80587). (Decision Labor Arbiter, at 11-12, Annex "C" Petition), . . .
This is thus a very different case from Wenphil Corporation v. NLRC, 170 SCRA 69. In Wenphil, the rule applied to the facts is: once an
employee
is
dismissed
for
just
cause,
he
must
not
be
rewarded
re-employment and backwages for failure of his employer to observe procedural due process. The public policy behind this is that, it
may encourage the employee to do even worse and render a mockery of the rules of discipline required to be observed. However, the
employer must be penalized for his infraction of due process. In the present case, however, not only was petitioner dismissed without
due process, but his dismissal is without just cause. Petitioner did not abandon his employment because he has a justifiable excuse. 43
II. Petitioner avers that the executive labor arbiter erred in disregarding the mandatory provisions of Article 279 of the Labor Code
which entitles an illegally dismissed employee to reinstatement and back wages and, instead, affirmed the imposition of the penalty
of P5,000.00 on private respondent for violation of the due process requirements. Private respondent, for his part, maintains that
there was error in imposing the fine because that penalty contemplates the failure to submit the employer's report on dismissed
employees to the DOLE regional office, as required under Section 5 (now, Section 11), Rule XIV of the implementing rules, and not the
failure to serve notice upon the employee sought to be dismissed by the employer.
Both the Constitution and the Labor Code enunciate in no uncertain terms the right of every worker to security of tenure. 44 To give
teeth to this constitutional and statutory mandates, the Labor Code spells out the relief available to an employee in case of its denial:
Art. 279. Security of Tenure. In cases of regular employment, the employer shall not terminate the services of an employee except
for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement
without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits of
their monetary equivalent computed from the time his compensation was withheld from him up to the time of actual reinstatement.
Clearly, therefore, an employee is entitled to reinstatement with full back wages in the absence of just cause for dismissal. 45 The
Court, however, on numerous occasions has tempered the rigid application of said provision of the Labor Code, recognizing that in
some cases certain events may have transpired as would militate against the practicability of granting the relief thereunder provided,
and declares that where there are strained relations between the employer and the employee, payment of back wages and severance
pay may be awarded instead of reinstatement, 46 and more particularly when managerial employees are concerned. 47 Thus, where
reinstatement is no longer possible, it is therefore appropriate that the dismissed employee be given his fair and just share of what
the law accords him. 48
We note with favor and give our imprimatur to the Solicitor General's ratiocination, to wit:
As a general rule, an employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights
and to his backwages computed from the time his compensation was withheld up to the time of his reinstatement. (Morales vs. NLRC,
188 SCRA 295). But in Pacific Cement Company, Inc. vs. NLRC, 173 SCRA 192, this Honorable Court held that when it comes to
reinstatement, differences should be made between managers and the ordinary workingmen. The Court concluded that a company
which no longer trusts its managers cannot operate freely in a competitive and profitable manner. The NLRC should know the
difference between managers and ordinary workingmen. It cannot imprudently order the reinstatement of managers with the same
ease and liberality as that of rank and file workers who had been terminated. Similarly, a reinstatement may not be appropriate or
feasible in case of antipathy or antagonism between the parties (Morales, vs. NLRC, 188 SCRA 295).
In the present case, it is submitted that petitioner should not be reinstated as farm administrator of Hacienda Manucao. The present
relationship of petitioner and private respondent (is) so strained that a harmonious and peaceful employee-employer relationship is
hardly possible. 49
III. Finally, petitioner insists on an award of moral damages, arguing that his dismissal from employment was attended by bad faith or
fraud, or constituted oppression, or was contrary to morals, good customs or public policy. He further prays for exemplary damages to
serve as a deterrent against similar acts of unjust dismissal by other employers.
Moral damages, under Article 2217 of the Civil Code, may be awarded to compensate one for diverse injuries such as mental anguish,
besmirched reputation, wounded feelings, and social humiliation, provided that such injuries spring from a wrongful act or omission of
the defendant which was the proximate cause thereof. 50Exemplary damages, under Article 2229, are imposed by way of example or

correction for the public good, in addition to moral, temperate, liquidated or compensatory damages. They are not recoverable as a
matter of right, it being left to the court to decide whether or not they should be adjudicated. 51
We are well aware of the Court's rulings in a number of cases in the past allowing recovery of moral damages where the dismissal of
the employee was attended by bad faith or fraud, or constituted an act oppressive to labor, or was done in a manner contrary to
morals, good customs or public policy, 52 and of exemplary damages if the dismissal was effected in a wanton, oppressive or
malevolent manner. 53 We do not feel, however, that an award of the damages prayed for in this petition would be proper even if,
seemingly, the facts of the case justify their allowance. In the aforestated cases of illegal dismissal where moral and exemplary
damages were awarded, the dismissed employees were genuinely without fault and were undoubtedly victims of the erring
employers' capricious exercise of power.
In the present case, we find that both petitioner and private respondent can equally be faulted for fanning the flames which gave rise
to and ultimately aggravated this controversy, instead of sincerely negotiating a peaceful settlement of their disparate claims. The
records reveal how their actuations seethed with mutual antagonism and the undeniable enmity between them negates the likelihood
that either of them acted in good faith. It is apparent that each one has a cause for damages against the other. For this reason, we
hold that no moral or exemplary damages can rightfully be awarded to petitioner.
On this score, we are once again persuaded by the validity of the following recommendation of the Solicitor General:
The Labor Arbiter's decision in RAB Case No. 0452-84 should be modified. There was no voluntary abandonment in this case because
petitioner has a justifiable excuse for his absence, or such absence does not warrant outright dismissal without notice and hearing.
Private respondent, therefore, is guilty of illegal dismissal. He should be ordered to pay backwages for a period not exceeding three
years from date of dismissal. And in lieu of reinstatement, petitioner may be paid separation pay equivalent to one (1) month('s)
salary for every year of service, a fraction of six months being considered as one (1) year in accordance with recent jurisprudence
(Tan, Jr. vs. NLRC, 183 SCRA 651). But all claims for damages should be dismissed, for both parties are equally at fault. 54
The conduct of the respective counsel of the parties, as revealed by the records, sorely disappoints the Court and invites reproof. Both
counsel
may
well
be
reminded
that
their
ethical
duty
as
lawyers
to
represent
their
clients
with
zeal 55 goes beyond merely presenting their clients' respective causes in court. It is just as much their responsibility, if not more
importantly, to exert all reasonable efforts to smooth over legal conflicts, preferably out of court and especially in consideration of the
direct and immediate consanguineous ties between their clients. Once again, we reiterate that the useful function of a lawyer is not
only to conduct litigation but to avoid it whenever possible by advising settlement or withholding suit. He is often called upon less for
dramatic forensic exploits than for wise counsel in every phase of life. He should be a mediator for concord and a conciliator for
compromise, rather than a virtuoso of technicality in the conduct of litigation. 56
Rule 1.04 of the Code of Professional Responsibility explicitly provides that "(a) lawyer shall encourage his client to avoid, end or
settle the controversy if it will admit of a fair settlement." On this point, we find that both counsel herein fell short of what was
expected of them, despite their avowed duties as officers of the court. The records do not show that they took pains to initiate steps
geared toward effecting a rapprochement between their clients. On the contrary, their acerbic and protracted exchanges could not
but have exacerbated the situation even as they may have found favor in the equally hostile eyes of their respective clients.
In the same manner, we find that the labor arbiter who handled this regrettable case has been less than faithful to the letter and
spirit of the Labor Code mandating that a labor arbiter "shall exert all efforts towards the amicable settlement of a labor dispute
within his jurisdiction." 57 If he ever did so, or at least entertained the thought, the copious records of the proceedings in this
controversy are barren of any reflection of the same.
One final word. This is one decision we do not particularly relish having been obliged to make. The task of resolving cases involving
disputes among members of a family leaves a bad taste in the mouth and an aversion in the mind, for no truly meaningful and
enduring resolution is really achieved in such situations. While we are convinced that we have adjudicated the legal issues herein
squarely on the bases of law and jurisprudence, sans sentimentality, we are saddened by the thought that we may have failed to
bring about the reconciliation of the father and son who figured as parties to this dispute, and that our adherence here to law and
duty may unwittingly contribute to the breaking, instead of the strengthening, of familial bonds. In fine, neither of the parties herein
actually emerges victorious. It is the Court's earnest hope, therefore, that with the impartial exposition and extended explanation of
their respective rights in this decision, the parties may eventually see their way clear to an ultimate resolution of their differences on
more convivial terms.
WHEREFORE, the decision of respondent National Labor Relations Commission is hereby SET ASIDE. Private respondent is ORDERED
to pay petitioner back wages for a period not exceeding three (3) years, without qualification or deduction, 58 and, in lieu of
reinstatement, separation pay equivalent to one (1) month for every year of service, a fraction of six (6) months being considered as
one (1) whole year.
JONAR SANTIAGO, A.C. No. 6252
Complainant,
Present:
Panganiban, J.,
Chairman,
- versus - Sandoval-Gutierrez,
Corona, and
Carpio Morales,* JJ
Promulgated:
Atty. EDISON V. RAFANAN,
Respondent. October 5, 2004
x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x
DECISION
PANGANIBAN, J.:
N
otaries public are expected to exert utmost care in the performance of their duties, which are impressed with public interest. They are
enjoined to comply faithfully with the solemnities and requirements of the Notarial Law. This Court will not hesitate to mete out
appropriate sanctions to those who violate it or neglect observance thereof.
__________________
*
On leave.
The Case and the Facts
Before us is a verified Complaint[1] filed by Jonar Santiago, an employee of the Bureau of Jail Management and Penology (BJMP), for
the disbarment of Atty. Edison V. Rafanan. The Complaint was filed with the Commission on Bar Discipline (CBD) of the Integrated Bar
of the Philippines (IBP) on January 16, 2001. It charged Atty. Rafanan with deceit; malpractice or other gross misconduct in office
under Section 27 of Rule 138 [2] of the Rules of Court; and violation of Canons 1.01, 1.02 and 1.03 [3], Canon 5[4], and Canons
12.07[5] and
12.08
of the Code of Professional Responsibility (CPR).
In his Report, IBP Investigating Commissioner Leland R. Villadolid Jr. summarized the allegations of the complainant in this wise:
x x x. In his Letter-Complaint, Complainant alleged, among others, that Respondent in notarizing several documents on different
dates failed and/or refused to: a)make the proper notation regarding the cedula or community tax certificate of the affiants; b) enter

the details of the notarized documents in the notarial register; and c) make and execute the certification and enter his PTR and IBP
numbers in the documents he had notarized, all in violation of the notarial provisions of the Revised Administrative Code.
Complainant likewise alleged that Respondent executed an Affidavit in favor of his client and offered the same as evidence in the
case wherein he was actively representing his client. Finally, Complainant alleges that on a certain date, Respondent accompanied by
several persons waited for Complainant after the hearing and after confronting the latter disarmed him of his sidearm and thereafter
uttered insulting words and veiled threats.[6]
On March 23, 2001, pursuant to the January 19, 2001 Order of the CBD, [7] Atty. Rafanan filed his verified Answer.[8]He admitted having administered the oath to the affiants whose
Affidavits
were
attached
to
the
verified
Complaint. He
believed,
however,
that
the
non-notation of their Residence Certificates in the Affidavits and the Counter-affidavits was allowed.
He opined that the notation of residence certificates applied only to documents acknowledged by a notary public and was not
mandatory for affidavits related to cases pending before courts and other government offices. He pointed out that in the latter, the
affidavits, which were sworn to before government prosecutors, did not have to indicate the residence certificates of the
affiants. Neither did other notaries public in Nueva Ecija -- some of whom were older practitioners -- indicate the affiants residence
certificates on the documents they notarized, or have entries in their notarial register for these documents.
As to his alleged failure to comply with the certification required by Section 3 of Rule 112 [9] of the Rules of Criminal Procedure, respondent explained that as counsel of
the affiants, he had the option to comply or not with the certification. To nullify the Affidavits, it was complainant who was duty-bound to bring the said noncompliance to the attention of the prosecutor conducting the preliminary
investigation.
As to his alleged violation of Rule 12.08 of the CPR, respondent argued that lawyers could testify on behalf of their clients on
substantial matters, in cases where [their] testimony is essential to the ends of justice. Complainant charged respondents clients with
attempted murder. Respondent averred that since they were in his house when the alleged crime occurred, his testimony is very
essential to the ends of justice.
Respondent alleged that it was complainant who had threatened and harassed his clients after the hearing of their case by the
provincial prosecutor on January 4, 2001. Respondent requested the assistance of the Cabanatuan City Police the following day,
January 5, 2001, which was the next scheduled hearing, to avoid a repetition of the incident and to allay the fears of his clients. In
support of his allegations, he submitted Certifications [10] from the Cabanatuan City Police and the Joint Affidavit[11] of the two police officers who had assisted them.
Lastly, he contended that the case had been initiated for no other purpose than to harass him, because he was the counsel of
Barangay Captain Ernesto Ramos in the cases filed by the latter before the ombudsman and the BJMP against complainant.
After receipt of respondents Answer, the CBD, through Commissioner Tyrone R. Cimafranca, set the case for hearing on June 5, 2001,
at two oclock in the afternoon. Notices[12] of the hearing were sent to the parties by registered mail. On the scheduled date and time of the hearing, only complainant appeared. Respondent was unable to
do so, apparently because he had received the Notice only on June 8, 2001.[13] The hearing was reset to July 3, 2001 at two oclock in the afternoon.
On the same day, June 5, 2001, complainant filed his Reply [14] to the verified Answer of respondent. The latters Rejoinder was received by the CBD on July 13, 2001. [15] It also received
complainants Letter-Request[16] to dispense with the hearings. Accordingly, it granted that request in its Order[17] dated July 24, 2001, issued through Commissioner Cimafranca. It thereby directed the parties to submit their
respective memoranda within fifteen days from receipt of the Order, after which the case was to be deemed submitted for resolution.
The CBD received complainants Memorandum[18] on September 26, 2001. Respondent did not file any.
The IBPs Recommendation
On September 27, 2003, the IBP Board of Governors issued Resolution No. XVI-2003-172 [19] approving and adopting the Investigating Commissioners Report that
respondent had violated specific requirements of the Notarial Law on the execution of a certification, the entry of such certification in the notarial register, and the indication of the affiants residence certificate. The IBP Board of
Governors found his excuse for the violations unacceptable. It modified, however, the recommendation[20] of the investigating commissioner by increasing the fine to P3,000 with a warning that any repetition of the violation will be
dealt with a heavier penalty.
The other charges -- violation of Section 27 of Rule 138 of the Rules of Court; and Canons 1.01 to 1.03, 12.07 and 12.08 of the CPR -were dismissed for insufficiency of evidence.
The Courts Ruling
We agree with the Resolution of the IBP Board of Governors.
Respondents Administrative Liability

Violation of the Notarial Law
The Notarial Law is explicit on the obligations and duties of notaries public. They are required to certify that the party to every
document acknowledged before them has presented the proper residence certificate (or exemption from the residence tax); and to
enter its number, place of issue and date as part of such certification. [21] They are also required to maintain and keep a notarial
register; to enter therein all instruments notarized by them; and to give to each instrument executed, sworn to, or acknowledged
before [them] a number corresponding to the one in [their] register [and to state therein] the page or pages of [their] register, on
which the same is recorded.[22] Failure to perform these duties would result in the revocation of their commission as notaries public. [23]
These formalities are mandatory and cannot be simply neglected, considering the degree of importance and evidentiary weight
attached to notarized documents. Notaries public entering into their commissions are presumed to be aware of these elementary
requirements.
In Vda. de Rosales v. Ramos,[24] the Court explained the value and meaning of notarization as follows:
The importance attached to the act of notarization cannot be overemphasized. Notarization is not an empty, meaningless, routinary
act. It is invested with substantive public interest, such that only those who are qualified or authorized may act as notaries

public. Notarization converts a private document into a public document thus making that document admissible in evidence without
further proof of its authenticity. A notarial document is by law entitled to full faith and credit upon its face. Courts, administrative
agencies and the public at large must be able to rely upon the acknowledgment executed by a notary public and appended to a
private instrument.
For this reason, notaries public should not take for granted the solemn duties pertaining to their office. Slipshod methods in their
performance of the notarial act are never to be countenanced. They are expected to exert utmost care in the performance of their
duties,[25] which are dictated by public policy and are impressed with public interest.
It is clear from the pleadings before us -- and respondent has readily admitted -- that he violated the Notarial Law by failing to enter
in the documents notations of the residence certificate, as well as the entry number and the pages of the notarial registry.
Respondent believes, however, that noncompliance with those requirements is not mandatory for affidavits relative to cases pending
before the courts and government agencies. He points to similar practices of older notaries in Nueva Ecija.
We cannot give credence to, much less honor, his claim. His belief that the requirements do not apply to affidavits is patently
irrelevant. No law dispenses with these formalities. Au contraire, the Notarial Law makes no qualification or exception. It is appalling
and inexcusable that he did away with the basics of notarial procedure allegedly because others were doing so. Being swayed by the
bad example of others is not an acceptable justification for breaking the law.
We note further that the documents attached to the verified Complaint are the Joint Counter-Affidavit of respondents clients Ernesto
Ramos and Rey Geronimo, as well as their witnesses Affidavits relative to Criminal Case No. 69-2000 for attempted murder, filed by
complainants brother against the aforementioned clients. These documents became the basis of the present Complaint.
As correctly pointed out by the investigating commissioner, Section 3 of Rule 112 of the Rules of Criminal Procedure expressly
requires respondent as notary -- in the absence of any fiscal, state prosecutor or government official authorized to administer the
oath -- to certify that he has personally examined the affiants and that he is satisfied that they voluntarily executed and understood
their affidavits. Respondent failed to do so with respect to the subject Affidavits and Counter-Affidavits in the belief that -- as counsel
for the affiants -- he was not required to comply with the certification requirement.
It must be emphasized that the primary duty of lawyers is to obey the laws of the land and promote respect for the law and legal
processes.[26] They are expected to be in the forefront in the observance and maintenance of the rule of law. This duty carries with it
the obligation to be well-informed of the existing laws and to keep abreast with legal developments, recent enactments and
jurisprudence.[27] It is imperative that they be conversant with basic legal principles. Unless they faithfully comply with such duty, they
may not be able to discharge competently and diligently their obligations as members of the bar. Worse, they may become
susceptible to committing mistakes.
Where notaries public are lawyers, a graver responsibility is placed upon them by reason of their solemn oath to obey the laws. [28] No
custom or age-old practice provides sufficient excuse or justification for their failure to adhere to the provisions of the law. In this
case, the excuse given by respondent exhibited his clear ignorance of the Notarial Law, the Rules of Criminal Procedure, and the
importance of his office as a notary public.
Nonetheless, 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.[29] Disbarment will be imposed as a penalty only in a clear case of misconduct that seriously affects the
standing and the character of the lawyer as an officer of the court and a member of the bar. Where any lesser penalty can accomplish
the end desired, disbarment should not be decreed. [30] Considering the nature of the infraction and the absence of deceit on the part
of respondent, we believe that the penalty recommended by the IBP Board of Governors is a sufficient disciplinary measure in this
case.
Lawyer as Witness for Client
Complainant further faults respondent for executing before Prosecutor Leonardo Padolina an affidavit corroborating the defense of
alibi proffered by respondents clients, allegedly in violation of Rule 12.08 of the CPR: A lawyer shall avoid testifying in behalf of his
client.
Rule 12.08 of Canon 12 of the CPR states:
Rule 12.08 A lawyer shall avoid testifying in behalf of his client, except:
a)
on formal matters, such as the mailing, authentication or custody of an instrument and the like;
b)
on substantial matters, in cases where his testimony is essential to the ends of justice, in which event he must, during
his testimony, entrust the trial of the case to another counsel.
Parenthetically, under the law, a lawyer is not disqualified from being a witness, [31] except only in certain cases pertaining to
privileged communication arising from an attorney-client relationship.[32]
The reason behind such rule is the difficulty posed upon lawyers by the task of dissociating their relation to their clients as witnesses
from that as advocates. Witnesses are expected to tell the facts as they recall them. In contradistinction, advocates are partisans -those who actively plead and defend the cause of others. It is difficult to distinguish the fairness and impartiality of a disinterested
witness from the zeal of an advocate. The question is one of propriety rather than of competency of the lawyers who testify for their
clients.
Acting or appearing to act in the double capacity of lawyer and witness for the client will provoke unkind criticism and leave many
people to suspect the truthfulness of the lawyer because they cannot believe the lawyer as disinterested.The people will have a
plausible reason for thinking, and if their sympathies are against the lawyers client, they will have an opportunity, not likely to be
neglected, for charging, that as a witness he fortified it with his own testimony. The testimony of the lawyer becomes doubted and is
looked upon as partial and untruthful.[33]
Thus, although the law does not forbid lawyers from being witnesses and at the same time counsels for a cause, the preference is for
them to refrain from testifying as witnesses, unless they absolutely have to; and should they do so, to withdraw from active
management of the case.[34]
Notwithstanding this guideline and the existence of the Affidavit executed by Atty. Rafanan in favor of his clients, we cannot hastily
make him administratively liable for the following reasons:
First, we consider it the duty of a lawyer to assert every remedy and defense that is authorized by law for the benefit of the client,
especially in a criminal action in which the latters life and liberty are at stake. [35] It is the fundamental right of the accused to be

afforded full opportunity to rebut the charges against them. They are entitled to suggest all those reasonable doubts that may arise
from the evidence as to their guilt; and to ensure that if they are convicted, such conviction is according to law.
Having undertaken the defense of the accused, respondent, as defense counsel, was thus expected to spare no effort to save his
clients from a wrong conviction. He had the duty to present -- by all fair and honorable means -- every defense and mitigating
circumstance that the law permitted, to the end that his clients would not be deprived of life, liberty or property, except by due
process of law.[36]
The Affidavit executed by Atty. Rafanan was clearly necessary for the defense of his clients, since it pointed out the fact that on the
alleged date and time of the incident, his clients were at his residence and could not have possibly committed the crime charged
against them. Notably, in his Affidavit, complainant does not dispute the statements of respondent or suggest the falsity of its
contents.
Second, paragraph (b) of Rule 12.08 contemplates a situation in which lawyers give their testimonies during the trial. In this instance,
the Affidavit was submitted during the preliminary investigation which, as such, was merely inquisitorial. [37] Not being a trial of the
case on the merits, a preliminary investigation has the oft-repeated purposes of securing innocent persons against hasty, malicious
and oppressive prosecutions; protecting them from open and public accusations of crime and from the trouble as well as expense and
anxiety of a public trial; and protecting the State from useless and expensive prosecutions. [38] The investigation is advisedly called
preliminary, as it is yet to be followed by the trial proper.
Nonetheless, we deem it important to stress and remind respondent to refrain from accepting employment in any matter in which he
knows or has reason to believe that he may be an essential witness for the prospective client.Furthermore, in future cases in which
his testimony may become essential to serve the ends of justice, the canons of the profession require him to withdraw from the active
prosecution of these cases.
No Proof of Harassment
The charge that respondent harassed complainant and uttered insulting words and veiled threats is not supported by
evidence. Allegation is never equivalent to proof, and a bare charge cannot be equated with liability. [39] It is not the self-serving claim
of complainant but the version of respondent that is more credible, considering that the latters allegations are corroborated by the
Affidavits of the police officers and the Certifications of the Cabanatuan City Police.
WHEREFORE, Atty. Edison V. Rafanan is found guilty of violating the Notarial Law and Canon 5 of the Code of Professional
Responsibility and is hereby FINED P3,000 with a warning that similar infractions in the future will be dealt with more severely.

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PALE CASES CANON 1-2 PRELIM 1

REMEDIOS RAMIREZ TAPUCAR, complainant, vs. ATTY. LAURO L. TAPUCAR, respondent.

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Version of the Prosecution

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Version of the Defense

To the Sandiganbayans narration, Hernandez adds:

In his Petition, Acejas narrates some more occurrences as follows:

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The Conspiracy Theory

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ATTY. LEONARD S. DE VERA,

Bar Matter No. 1227

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

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The denial of the right to a fair hearing.

The denial of my right to present witnesses on my behalf.

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The Courts Ruling

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

Respondents Administrative Liability

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