CASE NO.

7
A.C. No. 7204 March 7, 2007

CYNTHIA ADVINCULA, Complainant,

vs.
ATTY. ERNESTO M. MACABATA, Respondent

Facts:

The case is a disbarment case against respondent on the ground of gross immorality. It was alleged
that sometime in December 2004, complainant seek for legal advice from petitioner regarding her
collectibles from a travel company. Respondent sent Demand Letter and sometime in February 2005, they
met at Zensho Restaurant to discuss the possibility of filing complaint against the travel company because
the latter failed to settle the accounts. That after that said meeting, the respondent "held her arm and kissed
her on the cheek while embracing her very tightly."

The two met again to finalize the draft for the complaint and while on their way home after the
said meeting, the respondent suddenly stopped the car and things went out of hand. Thus she decided to
refer the case to another lawyer.

A hearing was conducted by the Commission on Bar Discipline of the Integrated Bar of the
Philippines (IBP) at the IBP Building, Ortigas Center, Pasig City, on 26 July 2005.

On 30 September 2005, Investigating Commissioner Dennis A. B. Funa submitted his Report and
Recommendation,4 recommending the imposition of the penalty of one (1) month suspension on respondent
for violation of the Code of Professional Responsibility.

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

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with

modification, the Report and Recommendation of the Investigating Commissioner of the above-entitled
case, herein made part of this Resolution as Annex "A"; and, finding the recommendation fully supported
by the evidence on record and the applicable laws and rules, and considering the behavior of Respondent
went beyond the norms of conduct required of a lawyer when dealing with or relating with a client, Atty.
Ernesto A. Macabata is SUSPENDED from the practice of law for three (3) months.5

Issue:

Whether or not the respondent committed acts are grossly immoral which would warrant the
disbarment or suspension from the practice of law.

Held: NO. The Code of Professional Responsibility provides:

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

CANON 7-- A lawyer shall at all times uphold the integrity and dignity of the legal profession and support
the activities of the Integrated Bar.

xxxx

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

The SC held that lawyers are expected to abide the tenets of morality, not only upon admission
to the Bar but all throughout their legal career as lawyers belong to an exclusive and honored fraternity.
Lawyers are called upon to safeguard the integrity of the legal profession and should adhere to the
unwaveringly to the highest standard of morality. Yes, the respondent admitted to the act of kissing the
complainant on the lips as evidenced as well of his asking for apology from complainant in his text message.
Regardless of the fact that the respondent admitted that he kissed the complainant but the Court held that
this was not accompanied by malice because the respondent immediately asked for forgiveness after sensing
the annoyance of the respondent after texting him. Thus the Court held that this is not grossly immoral nor
highly reprehensible which will warrant disbarment or suspension. But the Court reprimanded respondent
to be more prudent and cautious.

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CASE NO. 19
CRUZ VS MINA

THIRD DIVISION
[ G.R. No. 154207, April 27, 2007 ]
FERDINAND A. CRUZ, PETITIONER,
VS.
ALBERTO MINA, HON. ELEUTERIO F GUERRERO AND HON. ZENAIDA LAGUILLES,
RESPONDENTS

Facts:

Ferdinand A. Cruz filed before the MeTC a formal Entry of Appearance, as private prosecutor, where his
father, Mariano Cruz, is the complaining witness.

The petitioner, describing himself as a third year law student, justifies his appearance as private prosecutor
on the bases of Section 34 of Rule 138 of the Rules of Court and the ruling of the Court En Banc in
Cantimbuhan v. Judge Cruz, Jr. that a non-lawyer may appear before the inferior courts as an agent or friend
of a party litigant. The petitioner furthermore avers that his appearance was with the prior conformity of
the public prosecutor and a written authority of Mariano Cruz appointing him to be his agent in the
prosecution of the said criminal case.

However, in an Order dated February 1, 2002, the MeTC denied permission for petitioner to appear as
private prosecutor on the ground that Circular No. 19 governing limited law student practice in conjunction
with Rule 138-A of the Rules of Court (Law Student Practice Rule) should take precedence over the ruling
of the Court laid down in Cantimbuhan; and set the case for continuation of trial. Cruz filed a motion for
reconsideration, but this was denied by the MeTC and elevated his petition the RTC, where he filed a
petition for certiorari and mandamus with prayer for preliminary injunction and temporary restraining order
against private respondent and public respondent MeTC.

RTC denied the issuance of the injunctive writ on the ground that the crime of grave threats, is one that can
be prosecuted de oficio, there being no claim for civil indemnity, and that therefore, the intervention of the
prosecutor is not legally tanable.

Issue:

Whether the petitioner, a law student, may appear before an inferior court as an agent or friend of a party
litigant

Ruling:
Yes. The rule, however, is different if the law student appears before an inferior court, where the issues
and procedure are relatively simple. In inferior courts, a law student may appear in his personal capacity
without the supervision of a lawyer. Section 34, Rule 138 provides:

Sec. 34. By whom litigation is conducted. In the court of a justice of the peace, a party may conduct his
litigation in person, with the aid of an agent or friend appointed by him for that purpose, or with the aid of
an attorney. In any other court, a party may conduct his litigation personally or by aid of an attorney, and
his appearance must be either personal or by a duly authorized member of the bar.

Thus, a law student may appear before an inferior court as an agent or friend of a party without the
supervision of a member of the bar.

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CASE NO. 31

BR SEBASTIAN ENTERPRISES VS CA

GR NO. L-41862

Feb. 7, 1992

FACTS:
Eulogio B. Reyes, now deceased, filed an action for damages against the Director of Public Works and
BR Sebastian Enterprises. Trial court found B.R. Sebastian liable for damages but absolved other
defendants. B.R. Sebastian, thru its counsel, the law firm of Baizas, Alberto and Associates, timely
appealed the adverse decision to the respondent Court of Appeals. During the pendency of the appeal,
Eulogio B. Reyes died and was substituted by his heirs. On February 1974, B.R Sebastian, thru its
counsel of record, received notice to file Appellants Brief within 45 days from receipt thereof; however,
it failed to comply. Court of Appeals issued a Resolution requiring said counsel to show cause why the
appeal should not be dismissed for failure to file the Appellants Brief within the reglementary period. On
September 1974, Court of Appeals dismissed the appeal. On September 1974, petitioner, this time thru
the BAIZAS LAW OFFICE, filed a motion for reconsideration of the resolution dismissing its appeal
alleging that as a result of the death of Atty. Crispin Baizas, senior partner in the law firm. Atty. Rodolfo
Espiritu, the lawyer who handled this case in the trial court and who is believed to have also attended to
the preparation of the Appellants Brief but failed to submit it through oversight and inadvertence, had
also left the firm. Court denied the motion for reconsideration. No action was taken by petitioner from
within the period to file a petition for review, the same became final and executory, and the records of the
case were remanded. Trial court issued a writ of execution. But on November 1975, petitioner filed with
Court of Appeals a Motion to Reinstate Appeal with Prayer for Issuance of a Writ of Preliminary
Injunction but was subsequently denied. Petitioner filed prohibition and mandamus, with prayer for
preliminary injunction with the Supreme Court to Court of Appeals denial of petitioners motion. SC
required them to comment and soon after, some amendments were made. Ultimately, the petition was
denied. But on May 1976, petitioner filed a motion for its reconsideration claiming that since it was
deprived of the right to appeal without fault on its part, the petition should be given due course. Supreme
Court reconsidered and required both parties to submit simultaneously their respective Memoranda.

ISSUE:
Whether or not the respondent Court of Appeals gravely abused its discretion in denying petitioners
motion to reinstate its appeal, previously dismissed for failure to file the Appellants Brief

HELD:
No. The Supreme Court held that no fraud is involved in the present case. What was present was simple
negligence on the part of petitioners counsel, which is neither excusable nor unavoidable. Petitioner thus
failed to demonstrate sufficient cause to warrant a favorable action on its plea. Granting that the power or
discretion to reinstate an appeal that had been dismissed is included in or implied from the power or
discretion to dismiss an appeal, still such power or discretion must be exercised upon a showing of good
and sufficient cause, in like manner as the power or discretion vested in the appellate court to allow
extensions of time for the filing of briefs. There must be such a showing which would call for, prompt and
justify its exercise. Otherwise, it cannot and must not be upheld. The confusion in the office of the law
firm following the death of Atty. Crispin Baizas is not a valid justification for its failure to file the Brief.
With Baizas death, the responsibility of Atty. Alberto and his Associates to the petitioner as counsel
remained until withdrawal by the former of their appearance in the manner provided by the Rules of
Court. The law firm should have re-assigned the case to another associate or, it could have withdrawn as
counsel in the manner provided by the Rules of Court so that the petitioner could contract the services of
a new lawyer. The rule is settled that negligence of counsel binds the client. Moreover, petitioner itself
was guilty of negligence when it failed to make inquiries from counsel regarding its case.

Petition DISMISSED.