WHAT IS THE PRACTICE OF LAW

ADM. CASE NO. 5737 October 25, 2004

FERDINAND A. CRUZ, complainant,

vs.
ATTY. STANLEY CABRERA, respondent.

RESOLUTION

AUSTRIA-MARTINEZ, J.:

In an administrative complaint dated July 7, 2002, Ferdinand A. Cruz charges Atty. Stanley Cabrera
with misconduct in violation of the Code of Professional Responsibility.

Complainant alleges that he is a fourth year law student; since the latter part of 2001, he instituted
several actions against his neighbors; he appeared for and in his behalf in his own cases; he met
respondent who acted as the counsel of his neighbors; during a hearing on January 14, 2002, in one
case before the Regional Trial Court, Branch 112, Pasay City, presided by Judge Caridad Cuerdo,
the following exchange transpired:

xxx xxx So, may we know your honor, if he is a lawyer or not?

The Court having been inhibited by the respondent from hearing the case, replied:

You are asking for my inhibition and yet you want me to rule on his appearance xxx
xxx.

Thereafter, the respondent said:

Because your honor, he (pertaining to the complainant) is misrepresenting himself to

be a lawyer!

To this the complainant remarked:

"Your Honor, I’m not xxx xxx."

Respondent, this time engulfed with anger in a raising voice said:

Appear ka ng appear, pumasa ka muna; x x x.

Respondent’s imputations were uncalled for and the latter’s act of compelling the court to ask
complainant whether he is a lawyer or not was intended to malign him before the public, inasmuch
as respondent knew that complainant is not a lawyer, having appeared for and in his behalf as a
party litigant in prior cases; respondent’s imputations of complainant’s misrepresentation as a lawyer
was patently with malice to discredit his honor, with the intention to threaten him not to appear
anymore in cases respondent was handling; the manner, substance, tone of voice and how the
words "appear ka ng appear, pumasa ka muna!" were uttered were totally with the intention to
annoy, vex and humiliate, malign, ridicule, incriminate and discredit complainant before the public.

Complainant claims that respondent’s display of improper attitude, arrogance, misbehavior,

misconduct in the performance of his duties both as a lawyer and officer of the court, before the
public and the court, was a patent transgression of the very ethics that lawyers are sworn to uphold
in their dealings with society and corresponding appropriate penalty or sanctions for the said
administrative violations should be imposed on the respondent.

In his Comment, respondent contends that the complaint filed against him is a vicious scheme to
dissuade him from appearing as counsel for the Mina family against whom complainant had filed
several civil and criminal cases including him to further complainant’s illegal practice of law;
complainant’s complaint occurred during a judicial proceeding wherein complainant was able to
represent himself considering that he was appearing in barong tagalogthus the presiding judge was
misled when she issued an order stating "[i]n today’s hearing both lawyers appeared;" because of
which, respondent stated: "Your honor I would like to manifest that this counsel (referring to
complainant) who represents the plaintiff in this case is not a lawyer," to which complainant replied:
"The counsel very well know that I am not yet a lawyer;" the reason he informed the court that
complainant is not a lawyer was because the presiding judge did not know that complainant is not a
lawyer and complainant did not inform the presiding judge that he is not a lawyer when he stated:
"for the plaintiff your honor;" he stated "pumasa ka muna" out of indignation because of
complainant’s temerity in misrepresenting himself as lawyer; it is surprising that the City Prosecutor
of Pasay City filed a complaint for oral defamation against him considering that in a precedent case
the Supreme Court stated: "It is a settled principle in this jurisdiction that statements made in the
course of judicial proceedings are absolutely privileged (Navarrete vs. Court of Appeals, 325 SCRA
540);" in another malicious prosecution being perpetuated by the complainant against the Mina
family pending before Judge Priscilla Mijares of RTC Branch 108, Pasay City, they were able to
prohibit the appearance of complainant as counsel for himself as authenticated by an Order of Judge
Priscilla Mijares which allegedly stated among other; to wit:

In connection with Ferdinand A. Cruz’s motion to appear as counsel, the motion is likewise
denied, movant not having satisfied the requirements and conditions under Rule 138-A,
Sections 1 and 2.

Respondent alleges that when complainant filed an administrative case against Judge Priscilla
Mijares when said Judge stated in Tagalog in open court "Hay naku masama yung marunong pa sa
Huwes! OK?" the same was dismissed by the Honorable Court’s Third Division which stated among
others: "That the questioned remarks of respondent were uttered more out of frustration and in
reaction to complainant’s actuations and taking into account that complainant is not yet a lawyer but
was already lecturing the court on a matter which is not even a point of discussion was sheer
arrogance on the part of the complainant." Respondent prays that the complaint against him be
dismissed for lack of merit.

The administrative case was referred to the Integrated Bar of the Philippines (IBP) for investigation,
report and recommendation.

In a report, dated March 4, 2004, IBP Commissioner Lydia A. Navarro recommended respondent’s
suspension from the practice of law for a period of three months for violating Rule 8.01 of the Code
of Professional Responsibility which provides:

A lawyer shall not, in his professional dealings, use language which is abusive, offensive or
otherwise improper.
In her report, Commissioner Navarro stated:

After going over the evidence submitted by the parties, the undersigned noted that
respondent’s averment that the utterances he made in open court is (sic) privileged
communication does not hold water for the same was (sic) not relevant to the issue of the
case in question under trial before the said court.

Respondent did not refute the fact that the same utterances he made in open court against the
complainant had been the basis for his indictment of Oral Defamation and later Unjust Vexation
under Criminal Cases Nos. 02-1031 and No. 02-2136 respectively, pending trial before MTC Branch
45, Pasay City.

Likewise respondent did not refute complainant’s allegation that in 1979 he was held in contempt
and was not allowed to practice law for seven years by the Supreme Court in the administrative case
filed against him by Emilia E. Andres on December 14, 1979 docketed as A.M. L-585 for his
fondness in using contumacious language in his dealing with others.

From the facts obtaining, it is apparent that the utterance hurled by the respondent in the manner,
substance and tone of his voice which was not refuted by him "that appear ka ng appear, pumasa ka
muna" in whatever manner it was uttered are in itself not only abusive but insulting specially on the
part of law students who have not yet taken nor passed the bar examination required of them.

Respondent should have been more discreet and cautious in informing the court if it was his purpose
relative to complainant’s appearance in court; although the latter appeared only in his behalf but not
for others if he had complied with the requirements of Rule 138 (Sections 1 and 3) of the Rules of
Court.

Respondent should have been more temperate in making utterances in his professional dealings so
as not to offend the sensitivities of the other party as in this case.

On April 16, 2004, the IBP Board of Governors passed a Resolution to annul and set aside the
recommendation of the investigating commissioner and to approve the dismissal of the case for lack
of merit.

Prefatorily, we note that the IBP Board of Governors failed to observe the procedural requirements
of Sec. 12 of Rule 139-B of the Rules of Court on review and decision by the Board of Governors
which states:

SEC. 12. Review and decision by the Board of Governors. – (a) Every case heard by an
investigator shall be reviewed by the IBP Board of Governors upon the record and evidence
transmitted to it by the Investigator with his report. The decision of the Board upon such
review shall be in writing and shall clearly and distinctly state the facts and the reasons on
which it is based. It shall be promulgated within a period not exceeding thirty (30) days from
the next meeting of the Board following the submittal of the Investigator’s report. (Emphasis
supplied)

In Teodosio vs. Nava,1 the Court stressed the important function of the requirement that the decision
of the Board of Governors state the facts and the reasons on which it is based, which is akin to what
is required of the decisions of courts of record, thus:
 For aside from informing the parties the reason for the decision to enable them to point out to
the appellate court the findings with which they are not in agreement, in case any of them
decides to appeal the decision, it is also an assurance that the judge, or the Board of
Governors in this case, reached his judgment through the process of legal reasoning.2

In this case, the Board of Governors’ resolution absolving respondent of any misconduct does not
contain any findings of facts or law upon which it based its ruling. Ordinarily, non-compliance with
the rule would result in the remand of the case. Nonetheless, where the controversy has been
pending resolution for quite sometime and the issues involved could be resolved on the basis of the
records on appeal, the Court has opted to resolve the case in the interest of justice and speedy
disposition of cases.3 This case falls within the exception.

We hold that respondent’s outburst of "appear ka ng appear, pumasa ka muna" does not amount to
a violation of Rule 8.01 of the Code of Professional Responsibility.

Based on the facts of this case, such outburst came about when respondent pointed out to the trial
court that complainant is not a lawyer to correct the judge’s impression of complainant’s appearance,
inasmuch as the judge, in her Order of January 14, 2002, noted that complainant is a lawyer.4 Such
single outburst, though uncalled for, is not of such magnitude as to warrant respondent’s suspension
or reproof. It is but a product of impulsiveness or the heat of the moment in the course of an
argument between them. It has been said that lawyers should not be held to too strict an account for
words said in the heat of the moment, because of chagrin at losing cases, and that the big way is for
the court to condone even contemptuous language.5

Nonetheless, we remind respondent that complainant is not precluded from litigating personally his
cases. A party’s right to conduct litigation personally is recognized by Section 34 of Rule 138 of the
Rules of Court:

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

In Maderada vs. Mediodea,6 this Court expounded on the foregoing provision, thus:

This provision means that in a litigation, parties may personally do everything during its
progress -- from its commencement to its termination. When they, however, act as their own
attorneys, they are restricted to the same rules of evidence and procedure as those qualified
to practice law; otherwise, ignorance would be unjustifiably rewarded. Individuals have long
been permitted to manage, prosecute and defend their own actions; and when they do so,
they are not considered to be in the practice of law. "One does not practice law by acting for
himself any more than he practices medicine by rendering first aid to himself."

The practice of law, though impossible to define exactly, involves the exercise of a profession or
vocation usually for gain, mainly as attorney by acting in a representative capacity and as counsel by
rendering legal advise to others. Private practice has been defined by this Court as follows:

x x x. Practice is more than an isolated appearance, for it consists in frequent or customary

action, a succession of acts of the same kind. In other words, it is frequent habitual exercise.
Practice of law to fall within the prohibition of statute [referring to the prohibition for judges
and other officials or employees of the superior courts or of the Office of the Solicitor General
 from engaging in private practice] has been interpreted as customarily or habitually holding
one's self out to the public, as a lawyer and demanding payment for such services. x x x.

Clearly, in appearing for herself, complainant was not customarily or habitually holding
herself out to the public as a lawyer. Neither was she demanding payment for such services.
Hence, she cannot be said to be in the practice of law.7

On the other hand, all lawyers should take heed that lawyers are licensed officers of the courts who
are empowered to appear, prosecute and defend; and upon whom peculiar duties, responsibilities
and liabilities are devolved by law as a consequence. Membership in the bar imposes upon them
certain obligations. Mandated to maintain the dignity of the legal profession, they must conduct
themselves honorably and fairly.8 Though a lawyer’s language may be forceful and emphatic, it
should always be dignified and respectful, befitting the dignity of the legal profession. The use of
intemperate language and unkind ascriptions has no place in the dignity of judicial forum.9

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

SO ORDERED.
A.C. No. 6705 March 31, 2006

RUTHIE LIM-SANTIAGO, Complainant,

vs.
ATTY. CARLOS B. SAGUCIO, Respondent.

DECISION

CARPIO, J.:

The Case

This is a disbarment complaint against Atty. Carlos B. Sagucio for violating Rule 15.03 of the Code
of Professional Responsibility and for defying the prohibition against private practice of law while
working as government prosecutor.

The Facts

Ruthie Lim-Santiago ("complainant") is the daughter of Alfonso Lim and Special Administratrix of his
estate. 1Alfonso Lim is a stockholder and the former President of Taggat Industries, Inc. 2

Atty. Carlos B. Sagucio ("respondent") was the former Personnel Manager and Retained Counsel of
Taggat Industries, Inc. 3 until his appointment as Assistant Provincial Prosecutor of Tuguegarao,
Cagayan in 1992. 4

Taggat Industries, Inc. ("Taggat") is a domestic corporation engaged in the operation of timber
concessions from the government. The Presidential Commission on Good Government sequestered
it sometime in 1986, 5 and its operations ceased in 1997. 6

Sometime in July 1997, 21 employees of Taggat ("Taggat employees") filed a criminal complaint
entitled "Jesus Tagorda, Jr. et al. v. Ruthie Lim-Santiago," docketed as I.S. No. 97-240 ("criminal
complaint"). 7 Taggat employees alleged that complainant, who took over the management and
control of Taggat after the death of her father, withheld payment of their salaries and wages without
valid cause from 1 April 1996 to 15 July 1997. 8

Respondent, as Assistant Provincial Prosecutor, was assigned to conduct the preliminary

investigation. 9 He resolved the criminal complaint by recommending the filing of 651
Informations 10 for violation of Article 288 11 in relation to Article 116 12 of the Labor Code of the
Philippines. 13

Complainant now charges respondent with the following violations:

1. Rule 15.03 of the Code of Professional Responsibility

Complainant contends that respondent is guilty of representing conflicting interests. Respondent,

being the former Personnel Manager and Retained Counsel of Taggat, knew the operations of
Taggat very well. Respondent should have inhibited himself from hearing, investigating and deciding
the case filed by Taggat employees. 14 Furthermore, complainant claims that respondent instigated
the filing of the cases and even harassed and threatened Taggat employees to accede and sign an
affidavit to support the complaint. 15
2. Engaging in the private practice of law while working as a government prosecutor

Complainant also contends that respondent is guilty of engaging in the private practice of law while
working as a government prosecutor. Complainant presented evidence to prove that respondent
received P10,000 as retainer’s fee for the months of January and February 1995, 16 another P10,000
for the months of April and May 1995, 17 and P5,000 for the month of April 1996. 18

Complainant seeks the disbarment of respondent for violating Rule 15.03 of the Code of
Professional Responsibility and for defying the prohibition against private practice of law while
working as government prosecutor.

Respondent refutes complainant’s allegations and counters that complainant was merely aggrieved
by the resolution of the criminal complaint which was adverse and contrary to her expectation. 19

Respondent claims that when the criminal complaint was filed, respondent had resigned from Taggat
for more than five years. 20 Respondent asserts that he no longer owed his undivided loyalty to
Taggat. 21 Respondent argues that it was his sworn duty to conduct the necessary preliminary
investigation. 22 Respondent contends that complainant failed to establish lack of impartiality when
he performed his duty. 23 Respondent points out that complainant did not file a motion to inhibit
respondent from hearing the criminal complaint 24 but instead complainant voluntarily executed and
filed her counter-affidavit without mental reservation. 25

Respondent states that complainant’s reason in not filing a motion to inhibit was her impression that
respondent would exonerate her from the charges filed as gleaned from complainant’s statement
during the hearing conducted on 12 February 1999:

xxx

Q. (Atty. Dabu). What do you mean you didn’t think he would do it, Madam Witness?

A. Because he is supposed to be my father’s friend and he was working with my Dad and he was
supposed to be trusted by my father. And he came to me and told me he gonna help me. x x x. 26

Respondent also asserts that no conflicting interests exist because he was not representing Taggat
employees or complainant. Respondent claims he was merely performing his official duty as
Assistant Provincial Prosecutor. 27Respondent argues that complainant failed to establish that
respondent’s act was tainted with personal interest, malice and bad faith. 28

Respondent denies complainant’s allegations that he instigated the filing of the cases, threatened
and harassed Taggat employees. Respondent claims that this accusation is bereft of proof because
complainant failed to mention the names of the employees or present them for cross-examination. 29

Respondent does not dispute his receipt, after his appointment as government prosecutor, of
retainer fees from complainant but claims that it

was only on a case-to-case basis and it ceased in 1996. 30 Respondent contends that the fees were
paid for his consultancy services and not for representation. Respondent submits that consultation is
not the same as representation and that rendering consultancy services is not
prohibited. 31 Respondent, in his Reply-Memorandum, states:
x x x [I]f ever Taggat paid him certain amounts, these were paid voluntarily by Taggat without the
respondent’s asking, intended as token consultancy fees on a case-to-case basis and not as or for
retainer fees. These payments do not at all show or translate as a specie of ‘conflict of interest’.
Moreover, these consultations had no relation to, or connection with, the above-mentioned labor
complaints filed by former Taggat employees. 32

Respondent insists that complainant’s evidence failed to prove that when the criminal complaint was
filed with the Office of the Provincial Prosecutor of Cagayan, respondent was still the retained
counsel or legal consultant. 33

While this disbarment case was pending, the Resolution and Order issued by respondent to file 651
Informations against complainant was reversed and set aside by Regional State Prosecutor of
Cagayan Rodolfo B. Cadelina last 4 January 1999. 34 Hence, the criminal complaint was
dismissed. 35

The IBP’s Report and Recommendation

The Integrated Bar of the Philippines’ Investigating Commissioner Ma. Carmina M. Alejandro-Abbas
("IBP Commissioner Abbas") heard the case 36 and allowed the parties to submit their respective
memoranda. 37 Due to IBP Commissioner Abbas’ resignation, the case was reassigned to
Commissioner Dennis A.B. Funa ("IBP Commissioner Funa"). 38

After the parties filed their memoranda and motion to resolve the case, the IBP Board of Governors
issued Resolution No. XVI-2004-479 ("IBP Resolution") dated 4 November 2004 adopting with
modification 39 IBP Commissioner Funa’s Report and Recommendation ("Report") finding
respondent guilty of conflict of interests, failure to safeguard a former client’s interest, and violating
the prohibition against the private practice of law while being a government prosecutor. The IBP
Board of Governors recommended the imposition of a penalty of three years suspension from the
practice of law. The Report reads:

Now the issue here is whether being a former lawyer of Taggat conflicts with his role as Assistant
Provincial Prosecutor in deciding I.S. No. 97-240. A determination of this issue will require the test of
whether the matter in I.S. No. 97-240 will conflict with his former position of Personnel Manager and
Legal Counsel of Taggat.

I.S. No. 97-240 was filed for "Violation of Labor Code" (see Resolution of the Provincial Prosecutors
Office, Annex "B" of Complaint). Herein Complainant, Ruthie Lim-Santiago, was being accused as
having the "management and control" of Taggat (p. 2, Resolution of the Prov. Pros. Office, supra).

Clearly, as a former Personnel Manager and Legal Counsel of Taggat, herein Respondent
undoubtedly handled the personnel and labor concerns of Taggat. Respondent, undoubtedly dealt
with and related with the employees of Taggat. Therefore, Respondent undoubtedly dealt with and
related with complainants in I.S. No. 97-240. The issues, therefore, in I.S. No. 97-240, are very much
familiar with Respondent. While the issues of unpaid salaries pertain to the periods 1996-1997, the
mechanics and personalities in that case are very much familiar with Respondent.

A lawyer owes something to a former client. Herein Respondent owes to Taggat, a former client,
the duty to "maintain inviolate the client’s confidence or to refrain from doing anything which will
injuriously affect him in any matter in which he previously represented him" (Natam v. Capule, 91
Phil. 640; p. 231, Agpalo, Legal Ethics, 4th ed.)
Respondent argues that as Assistant Provincial Prosecutor, he does not represent any client or any
interest except justice. It should not be forgotten, however, that a lawyer has an immutable duty to
a former client with respect to matters that he previously handled for that former client. In this case,
matters relating to personnel, labor policies, and labor relations that he previously handled as
Personnel Manager and Legal Counsel of Taggat. I.S. No. 97-240 was for "Violation of the Labor
Code." Here lies the conflict. Perhaps it would have been different had I.S. No. 97-240 not been
labor-related, or if Respondent had not been a Personnel Manager concurrently as Legal Counsel.
But as it is, I.S. No. 97-240 is labor-related and Respondent was a former Personnel Manager of
Taggat.

xxxx

While Respondent ceased his relations with Taggat in 1992 and the unpaid salaries being sought in
I.S. No. 97-240 were of the years 1996 and 1997, the employees and management involved are the
very personalities he dealt with as Personnel Manager and Legal Counsel of Taggat.
Respondent dealt with these persons in his fiduciary relations with Taggat. Moreover, he was an
employee of the corporation and part of its management.

xxxx

As to the propriety of receiving "Retainer Fees" or "consultancy fees" from herein Complainant while
being an Assistant Provincial Prosecutor, and for rendering legal consultancy work while being an
Assistant Provincial Prosecutor, this matter had long been settled. Government prosecutors are
prohibited to engage in the private practice of law (see Legal and Judicial Ethics, Ernesto
Pineda, 1994 ed., p. 20; People v. Villanueva, 14 SCRA 109; Aquino v. Blanco 70 Phil. 647). The act
of being a legal consultant is a practice of law. To engage in the practice of law is to do any of those
acts that are characteristic of the legal profession (In re: David, 93 Phil. 461). It covers any activity, in
or out of court, which required the application of law, legal principles, practice or procedures and
calls for legal knowledge, training and experience (PLA v. Agrava, 105 Phil. 173; People v.
Villanueva, 14 SCRA 111; Cayetano v. Monsod, 201 SCRA 210).

Respondent clearly violated this prohibition.

As for the secondary accusations of harassing certain employees of Taggat and instigating the filing
of criminal complaints, we find the evidence insufficient.

Accordingly, Respondent should be found guilty of conflict of interest, failure to safeguard a former
client’s interest, and violating the prohibition against the private practice of law while being a
government prosecutor. 40

The IBP Board of Governors forwarded the Report to the Court as provided under Section 12(b),
Rule 139-B 41 of the Rules of Court.

The Ruling of the Court

The Court exonerates respondent from the charge of violation of Rule 15.03 of the Code of
Professional Responsibility ("Code"). However, the Court finds respondent liable for violation of Rule
1.01, Canon 1 of the Code of Professional Responsibility against unlawful conduct. 42 Respondent
committed unlawful conduct when he violated Section 7(b)(2) of the Code of Conduct and Ethical
Standards for Public Officials and Employees or Republic Act No. 6713 ("RA 6713").
Canon 6 provides that the Code "shall apply to lawyers in government service in the discharge of
their official duties." 43 A government lawyer is thus bound by the prohibition "not [to] represent
conflicting interests." 44However, this rule is subject to certain limitations. The prohibition to represent
conflicting interests does not apply when no conflict of interest exists, when a written consent of all
concerned is given after a full disclosure of the facts or when no true attorney-client relationship
exists. 45 Moreover, considering the serious consequence of the disbarment or suspension of a
member of the Bar, clear preponderant evidence is necessary to justify the imposition of the
administrative penalty. 46

Respondent is also mandated under Rule 1.01 of Canon 1 not to engage in "unlawful x x x conduct."
Unlawful conduct includes violation of the statutory prohibition on a government employee to
"engage in the private practice of [his] profession unless authorized by the Constitution or law,
provided, that such practice will not conflict or tend to conflict with [his] official functions." 47

Complainant’s evidence failed to substantiate the claim that respondent represented conflicting
interests

In Quiambao v. Bamba, 48 the Court enumerated various tests to determine conflict of interests. One
test of inconsistency of interests is whether the lawyer will be asked to use against his former client
any confidential information acquired through their connection or previous employment. 49 In
essence, what a lawyer owes his former client is to maintain inviolate the client’s confidence or to
refrain from doing anything which will injuriously affect him in any matter in which he previously
represented him. 50

In the present case, we find no conflict of interests when respondent handled the preliminary
investigation of the criminal complaint filed by Taggat employees in 1997. The issue in the criminal
complaint pertains to non-payment of wages that occurred from 1 April 1996 to 15 July 1997.
Clearly, respondent was no longer connected with Taggat during that period since he resigned
sometime in 1992.

In order to charge respondent for representing conflicting interests, evidence must be presented to
prove that respondent used against Taggat, his former client, any confidential information acquired
through his previous employment. The only established participation respondent had with respect to
the criminal complaint is that he was the one who conducted the preliminary investigation. On that
basis alone, it does not necessarily follow that respondent used any confidential information from his
previous employment with complainant or Taggat in resolving the criminal complaint.

The fact alone that respondent was the former Personnel Manager and Retained Counsel of Taggat
and the case he resolved as government prosecutor was labor-related is not a sufficient basis to
charge respondent for representing conflicting interests. A lawyer’s immutable duty to a former client
does not cover transactions that occurred beyond the lawyer’s employment with the client. The intent
of the law is to impose upon the lawyer the duty to protect the client’s interests only on matters that
he previously handled for the former client and not for matters that arose after the lawyer-client
relationship has terminated.

Further, complainant failed to present a single iota of evidence to prove her allegations. Thus,
respondent is not guilty of violating Rule 15.03 of the Code.

Respondent engaged in the private practice of law while working as a government prosecutor

The Court has defined the practice of law broadly as –

x x x any activity, in or out of court, which requires the application of law, legal procedure,
knowledge, training and experience. "To engage in the practice of law is to perform those acts which
are characteristics of the profession. Generally, to practice law is to give notice or render any kind of
service, which device or service requires the use in any degree of legal knowledge or skill." 51

"Private practice of law" contemplates a succession of acts of the same nature habitually or
customarily holding one’s self to the public as a lawyer. 52

Respondent argues that he only rendered consultancy services to Taggat intermittently and he was
not a retained counsel of Taggat from 1995 to 1996 as alleged. This argument is without merit
because the law does not distinguish between consultancy services and retainer agreement. For as
long as respondent performed acts that are usually rendered by lawyers with the use of their legal
knowledge, the same falls within the ambit of the term "practice of law."

Nonetheless, respondent admitted that he rendered his legal services to complainant while working
as a government prosecutor. Even the receipts he signed stated that the payments by Taggat were
for "Retainer’s fee." 53 Thus, as correctly pointed out by complainant, respondent clearly violated the
prohibition in RA 6713.

However, violations of RA 6713 are not subject to disciplinary action under the Code of Professional
Responsibility unless the violations also constitute infractions of specific provisions of the Code of
Professional Responsibility. Certainly, the IBP has no jurisdiction to investigate violations of RA 6713
– the Code of Conduct and Ethical Standards for Public Officials and Employees – unless the acts
involved also transgress provisions of the Code of Professional Responsibility.

Here, respondent’s violation of RA 6713 also constitutes a violation of Rule 1.01 of Canon 1, which
mandates that "[a] lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct."
Respondent’s admission that he received from Taggat fees for legal services while serving as a
government prosecutor is an unlawful conduct, which constitutes a violation of Rule 1.01.

Respondent admitted that complainant also charged him with unlawful conduct when respondent
stated in his Demurrer to Evidence:

In this instant case, the complainant prays that the respondent be permanently and indefinitely
suspended or disbarred from the practice of the law profession and his name removed from the Roll
of Attorneys on the following grounds:

xxxx

d) that respondent manifested gross misconduct and gross violation of his oath of office and in his
dealings with the public. 54

On the Appropriate Penalty on Respondent

The appropriate penalty on an errant lawyer depends on the exercise of sound judicial discretion
based on the surrounding facts. 55

Under Civil Service Law and rules, the penalty for government employees engaging in unauthorized
private practice of profession is suspension for six months and one day to one year. 56 We find this
penalty appropriate for respondent’s violation in this case of Rule 1.01, Canon 1 of the Code of
Professional Responsibility.
WHEREFORE, we find respondent Atty. Carlos B. Sagucio GUILTY of violation of Rule 1.01, Canon
1 of the Code of Professional Responsibility. Accordingly, we SUSPEND respondent Atty. Carlos B.
Sagucio from the practice of law for SIX MONTHS effective upon finality of this Decision.

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

SO ORDERED.
A.C. No. 5333 October 18, 2000

ROSA YAP PARAS, complainant,

vs.
ATTY. JUSTO DE JESUS PARAS, respondent.

DECISION

MELO, J:

This has reference to a case for disbarment initiated by complainant Rosa Yap Paras against her
husband, Atty. Justo de Jesus Paras. The parties exchanged tirades and barbs in their copious
pleadings, hurling invectives, cutting remarks and insults at each other. Reduced to its essentials,
Rosa Paras charged her husband with dishonesty and falsification of public documents, harassment
and intimidation, and immorality for siring a child with another woman. Respondent denied the
allegations, contending that his wife, in cahoots with her family, is out to destroy and strip him of his
share in their multi-million conjugal assets.

The parties come from wealthy families in Negros Oriental. They were married on May 21, 1964 and
have two grown-up children. They have vast sugarlands and other businesses. Respondent was a
Municipal Judge for 14 years and served as Mayor in their town for 2 terms during the administration
of President Aquino. Complainant is a businesswoman. Sometime in 1988, their marriage fell apart
when due to "marital strain that has developed through the years," respondent left his wife and
children to live with his mother and sister in Dumaguete City and thence started his law practice.
Complainant, in the meantime, filed a case for the dissolution of their marriage, which case is still
pending in court.

The complaint charged:

DISHONESTY, FALSIFICATION and FRAUD

… respondent obtained loans from certain banks in the name of complainant by counterfeiting
complainant's signature, falsely making it appear that complainant was the applicant for said loans.
Thereafter, he carted away and misappropriated the proceeds of the loans.

. . . to guarantee the above loans, respondent mortgaged some personal properties belonging to the
conjugal partnership without the consent of complainant.

GROSSLY IMMORAL CONDUCT AND CONCUBINAGE

Respondent is . . . engaged in the immoral and criminal act of concubinage as he maintained an

illicit relationship with one Ms. Jocelyn A. Ching, siring an illegitimate child with her while married to
complainant.

UNETHICAL AND UNPROFESSIONAL CONDUCT

Respondent abused courts of justice and misused his legal skills to frighten, harass and intimidate
all those who take a position diametrically adverse to his sinister plans by unethically filing
complaints and other pleadings against them. He utilized strategies to obstruct justice.

OBSTRUCTION OF JUSTICE
(Respondent) utilized strategies to obstruct justice. In the criminal actions initiated against him,
respondent used his legal skills not to prove his innocence but to derail all the proceedings.

(Complaint, Rollo, p. 2)

In his Answer, respondent interposed the following defenses:

(1) On the Charge of Falsification of Public Documents:

That during the sugarboom in the 1970's, his wife executed in his favor a Special Power of Attorney
to negotiate for an agricultural or crop loan authorizing him "to borrow money and apply for and
secure any agricultural or crop loan for sugar cane from the Bais Rural Bank, Bais City . . ." (Rollo,
Annex "3", p. 262)

(2) On the Charge of Forgery:

That the Report of the National Bureau of Investigation which found that "the questioned signatures
(referring to the alleged forged signatures of complainant) and the standard sample signatures
JUSTO J. PARAS were written by one and the same person…"(Annex "B" of the Complaint, Rollo,
p. 26) was doctored, and that his wife filed against him a string of cases for falsification of public
documents because he intends to disinherit his children and bequeath his inchoate share in the
conjugal properties to his own mother.

(3) On the Charge of Grossly Immoral Conduct and Concubinage:

That this is a malicious accusation fabricated by his brother-in-law, Atty. Francisco D. Yap to
disqualify him from getting any share in the conjugal assets. He cites the dismissal of the complaint
for concubinage filed against him by his wife before the City Prosecutor of Negros Oriental as proof
of his innocence.

Respondent, however, admits that he, his mother and sister, are solicitous and hospitable to his
alleged concubine, Ms. Jocelyn Ching and her daughter, Cyndee Rose (named after his own
deceased daughter), by allowing them to stay in their house and giving them some financial
assistance, because they pity Ms. Ching, a secretary in his law office, who was deserted by her
boyfriend after getting her pregnant.

(4) On the Charge of Obstruction of Justice:

That "the legal remedies pursued by (him) in defense and offense are legitimate courses of action
done by an embattled lawyer."

The Commission on Bar Discipline (CBD) of the Integrated Bar of the Philippines investigated the
complaint against respondent summarizing the causes of action as follows:

(1) Falsification of complainant's signature and misuse of conjugal assets; and

(2) Immorality and criminal acts of concubinage with one Ms. Ma. Jocelyn A. Ching (for) siring an
illegitimate child with her while married to complainant, and, abandonment of his own family.

(Rollo, Report of the IBP, p. 34)

No actual hearing was conducted as the parties agreed to merely submit their respective
memoranda, depositions, and other pieces of evidence attached to their pleadings.

Thereafter, the CBD found respondent guilty as charged and recommended:

(1) Respondent's suspension from the practice of law for three (3) months on the first
charge; and

(2) Respondent's indefinite suspension from the practice of law on the second charge.

(ibid., p. 57)

The CBD held that the dismissal of the criminal cases against respondent for falsification and use of
falsified documents (Criminal Case No. 11768) and for concubinage (I.S. No. 93-578) will not bar the
filing of an administrative case for disbarment against him. In a criminal case, proof beyond
reasonable doubt is required for conviction, while in an administrative complaint, only a
preponderance of evidence is necessary.

The CBD gave credence to the NBI Report that "the questioned signatures (referring to the
signatures appearing in the loan agreements, contracts of mortgage, etc.) and the standard sample
signatures of respondent were written by one and the same person." This affirms the allegation of
complainant Rosa Yap Paras that her husband forged her signatures in those instruments.
Respondent denies this but his denial was unsubstantiated and is, therefore, self-serving.

In finding respondent liable for Immorality, the CBD relied heavily on the uncontroverted sworn
affidavit-statements of respondent's children and three other eyewitnesses to respondent's illicit
affair with Ms. Jocelyn Ching. For a better appreciation of their statements, their affidavits are hereby
reproduced in full. Thusly,

"I, DAHLIA Y. PARAS, of legal age, single, resident of Bindoy, Negros Oriental, but presently living
in Dumaguete City, after being duly sworn hereby depose and say:

1. I am a nurse by profession. I finished my BSN degree at the College of Nursing, Silliman

University.

2. My mother is Rosa Yap Paras and my father Justo J. Paras. My father has left the family
home in Bindoy and now lives at his mother's house at San Jose Ext., Dumaguete City.

3. My father has a "kabit" or concubine by the name of Ma. Jocelyn Ching. They have a
1âw phi 1

child named Cyndee Rose, who was delivered at the Silliman University Hospital Medical
Center on July 19, 1990.

4. Jocelyn used to be the secretary of my father and Atty. Melchor Arboleda when they
practice law together in 1988 to 1989. Their relationship started in 1989. When she became
pregnant, my father rented an apartment for her at the Amigo Subdivision, Dumaguete City.

5. Following delivery of the baby, my father built a house for Jocelyn in Maayong Tubig,
Dauin, Negros Oriental. My father spend time there often with Jocelyn and their child.
 6. I used to visit my father at San Jose Extension these past years, and almost every time I
was there, I would see Jocelyn, sitting, watching TV, serving coffee in my father's law office,
and one time, she was washing my father's clothes.

7. I first saw their child Cyndee Rose in 1992, about early May, at San Jose Extension. I was
there to ask for my allowance. He was there at the time, and when I looked at Cyndee Rose
closely, I became convinced that she was my father's daughter with Jocelyn.

8. Incidentally, I had an elder sister also named Cindy Rose (now deceased).

9. In September 1992 when I went to visit my father, I saw toys and child's clothes in my
father's room.

10. Whenever, I saw Jocelyn at San Jose Extension, I wanted to talk to her or be alone with
her, but she would deliberately avoid me. I could see that she was hiding something from
me." p. 109, Records.

SUPPLEMENTAL AFFIDAVIT

xxx xxx xxx

1. . . . sometime during the period of April-September, 1992, I made several visits to my

father at his mother's house in San Jose Extension, Dumaguete City, where he had moved
after he left our home in Bindoy;

2. That these visits were made on different times and different days of the week;

3. That most of my visits, I would meet a woman who was also living at my father's place.
This woman is now known to me to be Ma. Jocelyn Ching;

4. That my basis for observing that Ms. Ching was living in my father's house is that during
my visits, whether during office hours or after office hours, I would meet her at my father's
place, not his office; she was wearing house clothes and slippers, such as skimpy clothes,
shorts and T-shirt, not street or office clothes; she was generally unkempt, not made up for
work or going out; on one occasion, I even saw her, washing my father's clothes as well as a
small child's clothing; and she conducted herself around the house in the manner of
someone who lived there;

5. That on one of my visits, I confirmed that Ms. Ching was living with my father from Josie
Vailoces, who was then a working student living at my father's place;

6. Ms. Vailoces subsequently confirmed under oath the fact that my father and Ms. Jocelyn
Ching were living together as husband and wife at my father's place in a deposition taken in
connection with Civil Case No. 10613, RTC-Dumaguete City, Branch 30, the Honorable
Enrique C. Garovillo, presiding. A copy of the transcript of the deposition of Ms. Vailoces is
already part of the record of this case. For emphasis, photocopies of the pertinent portion of
the written deposition of Josie Vailoces is hereto attached as Annexes "A"and "A-1." p. 111,
Records

Respondent's son has this to say:

"I, RHOUEL Y. PARAS, 15 years old, single, resident of Bindoy, Negros Oriental, but presently living
in Dumaguete City, after being duly sworn according to law, depose and say:

1. I am a high school student at the Holy Cross High School, Dumaguete City.

2. My mother is Rosa Yap Paras, and my father Justo J. Paras, a lawyer.

3. My father has left our home in Bindoy, and now lives at his mother's house in San Jose
Extension, Dumaguete City. He is not giving us support any more.

4. However, from October 1991 to December 1992, I was getting my allowance of P50.00 a
week. I would go to their house at San Jose Extension and personally ask him for it.

5. In October 1992, between 11:30 AM and 1:00 PM, I went to San Jose Extension for my
weekly allowance. I asked Josephus, an adopted son of my father's sister, if my father was
around. Josephus said my father was in his room.

6. So I went direct to his room and because the door was not locked, I entered the room
without knocking. There I saw my father lying in bed side by side with a woman. He was only
wearing a brief. The woman was wearing shorts and T-shirt.

7. They both appeared scared upon seeing me. My father hurriedly gave me P100.00 and I
left immediately because I felt bad and embarrassed.

8. Before that incident, I used to see the woman at my father's house in San Jose Extension.
Every time I went to see my father, she was also there.

9. I later came to know that she was Ms. Jocelyn Ching, and that she was my father's "kabit"
or concubine.

10. I am no longer getting my weekly allowance from my father." p. 112, Records

Added to the foregoing sworn statements of respondent's children is the damaging statement under
oath of Virgilio Kabrisante who was respondent's secretary when respondent was a mayor of Bindoy,
Negros Oriental which reads as follows:

"I, VIRGILIO V. KABRISANTE, of legal age, married, Filipino, a resident of Malaga, Bindoy, Negros
Oriental, after having been sworn in accordance with law, do hereby depose and state that:

1. I personally know Justo J. Paras, having been his secretary during his incumbency as
Mayor of Bindoy, Negros Oriental. In fact, through the latter's recommendation and
intercession, I was later on appointed as OIC Mayor of the same town from December 1986
to January 1987.

2. When Justo J. Paras decided to practice law in Dumaguete City, I became his personal
aide and performed various chores for the same. As his personal aide, I stayed in the same
house and room with the latter.

3. Sometime in January 1989, Justo J. Paras confided to me that he felt attracted to my lady
friend named Ma. Jocelyn A. Ching. He then requested me to invite the latter to a dinner date
at Chin Loong Restaurant.
4. Conveying the invitation which was accepted by Ma. Jocelyn Ching, the latter, Justo J.
Paras and myself then had dinner at the above-mentioned restaurant.

5. At the behest of Justo J. Paras, I invited Ma. Jocelyn A. Ching, on several occasions,
always to a picnic at a beach in Dauin, Negros Oriental. Said invitations were always
accepted by the latter.

6. At each of the above-mentioned picnics, I observed that Justo J. Paras and Ma. Jocelyn
A. Ching had become more and more intimate with each other.

7. Sometime in March 1989, at around 7:00 o'clock in the evening on a Friday, I

accompanied Justo J. Paras to the area in front of the Silliman University Medical Center,
where he said he was going to meet someone.

8. After waiting for a few minutes, Ma. Jocelyn Ching arrived and immediately boarded at the
back seat of the Sakbayan vehicle I was driving for Justo J. Paras. The latter then requested
me to drive both of them (Justo Paras and Ma. Jocelyn A. Ching) to Honeybee Motel
somewhere in Sibulan, Negros Oriental.

9. When we arrived there, Justo J. Paras asked me to wait for them outside the room, while
he and Ma. Jocelyn A. Ching entered the said room.

10. I waited outside the room for about two (2) hours after which the two of them emerged
from the room. We then proceeded to Chin Loong to eat supper.

11. After eating supper, we dropped Ma. Jocelyn A. Ching off in front of the Dumaguete City
Cockpit.

12. This meeting was repeated two more times, at the same place and always on a Friday.

13. On April 3, 1988, I went home to Bindoy and stopped working for Justo Paras." pp. 56-
57, Records.

SUPPLEMENTAL AFFIDAVIT

xxx xxx xxx

1. Sometime in May 1989, I returned to Dumaguete City to look for a job, having been
jobless since I left Dumaguete City to go home to Bindoy, Negros Oriental.

2. While looking for a job, I stayed at the house where my friend, Bernard Dejillo was staying
at Mangnao, Dumaguete City. My friend Bernard Dejillo was occupying a room at the second
floor of the said house which he shared with me.

3. Sometime in the last week of May 1989, in the course of my job hunting, I met Justo J.
Paras. Having not seen each other for some time, we talked for a while, discussing matters
about the barangay elections in Bindoy, Negros Oriental.

4. When our discussion was finished, Justo J. Paras asked me where I was staying, to which
I answered that I was staying at the aforementioned house. He then requested me to find out
if there was an available room at the said house which he could rent with Ma. Jocelyn A.
Ching. I told him that I would have to ask my friend Bernard Dejillo about the matter.

5. When I arrived at the house that evening, I asked my friend Bernard Dejillo about the
matter, to which the latter signified his approval. He told me that a room at the first floor of
the same house was available for rental to Justo Paras and Ma. Jocelyn A. Ching.

6. The next day, I immediately informed Justo J. Paras of Bernard Dejillo's approval of his
request.

7. Sometime in the first week of June 1989, Ma. Jocelyn Ching moved in to the room she
had rented at the first floor of the house I was also staying at.

8. Almost every night thereafter, Justo J. Paras would come to the house and stay overnight.
When he came at night Justo J. Paras and I would converse and while conversing, drink a
bottle of Tanduay Rum. Oftentimes, Ma. Jocelyn Ching would join in our conversation.

9. After we finish drinking and talking, Justo J. Paras and Ma. Jocelyn Ching would enter the
room rented and sleep there, while I would also go upstairs to my room.

10. The next morning I could always observe Justo J. Paras came out of said room and
depart from the house.

11. The coming of Justo J. Paras to the house I was staying ceased after about one (1)
month when they transferred to another house.

12. I myself left the house and returned to Bindoy, Negros Oriental some time in June 1989.

13. Sometime in January 1993, on a Saturday at about noontime, I went to the house of
Justo J. Paras to consult him about a Kabataang Barangay matter involving my son. When I
arrived at his house, I noticed that the same was closed and there was no one there.

14. Needing to consult him about the above-mentioned matter, I proceeded to the resthouse
of Justo J. Paras located at Maayong Tubig, Dauin, Negros Oriental.

15. When I arrived at the said resthouse, Justo J. Paras was not there but the person in
charge of the said resthouse informed me that Justo J. Paras was at his house at Barangay
Maayong Tubig, Dauin, Negros Oriental. The same person also gave me directions so that I
could locate the house of Justo J. Paras he referred to earlier.

16. With the help of the directions given by said person, I was able to locate the house of
Justo J. Paras.

17. At the doorway of the said house, I called out if anybody was home while knocking on the
door.

18. After a few seconds, Ma. Jocelyn Ching opened the door. Upon seeing the latter, I asked
her if Justo J. Paras was home. She then let me in the house and told me to sit down and
wait for a while. She then proceeded to a room.
 19. A few minutes later, Justo J. Paras came out of the same room and sat down near me. I
noticed that the latter had just woke up from a nap.

20. We then started to talk about the matter involving my son and sometime later, Ma.
Jocelyn Ching served us coffee.

21. While we were talking and drinking coffee I saw a little girl, about three (3) years old,
walking around the sala, whom I later came to know as Cyndee Rose, the daughter of Justo
J. Paras and Ma. Jocelyn Ching.

22. After our conversation was finished, Justo J. Paras told me to see him at this office at
San Jose Extension, Dumaguete City, the following Monday to discuss the matter some
more.

23. I then bid them goodbye and went home to Bindoy, Negros Oriental.

24. I am executing this affidavit as a supplement to my affidavit dated 22 July 1993." pp. 58-
60, Records

(ibid., pp. 44-52)

The CBD likewise gave credence to the sworn affidavits and the deposition of two other witnesses,
namely, Salvador de Jesus, a former repairman of the Paras' household, and, Josie Vailoces, a
working student and former ward of the Paras' family, who both gave personal accounts of the illicit
relationship between respondent and Jocelyn Ching, which led to the birth of Cyndee Rose. De
Jesus swore that while doing repair works in the Paras' household he observed Ms. Ching and
Cyndee Rose practically living in the Paras' house (p. 85, Rollo, Annex "H"). Vailoces, on the other
hand, deposed that she was asked by respondent Paras to deliver money to Ms. Ching for the
payment of the hospital bill after she gave birth to Cyndee Rose. Vailoces was also asked by
respondent to procure Cyndee Rose Paras' baptismal certificate after the latter was baptized in the
house of respondent; she further testified that in said baptismal certificate, respondent appears as
the father of Cyndee Rose which explains why the latter is using the surname "Paras." (p. 87, Annex
"I", Rollo)

The findings and the recommendations of the CBD are substantiated by the evidentiary record.

ON THE CHARGE OF FALSIFICATION OF COMPLAINANT'S SIGNATURE

The handwriting examination conducted by the National Bureau of Investigation on the signatures of
complainant Rosa Yap Paras and respondent Justo de Jesus Paras vis-à-vis the questioned
signature "Rosa Y. Paras" appearing in the questioned bank loan documents, contracts of mortgage
and other related instrument, yielded the following results:

CONCLUSION:

1. The questioned and the standard sample signatures JUSTO J. PARAS were written by
one and the same person.

2. The questioned and the standard sample signatures ROSA YAP PARAS were not written
by one and the same person.
(Annex "B", Rollo, p. 26, emphasis ours;)

The NBI did not make a categorical statement that respondent forged the signatures of complainant.
However, an analysis of the above findings lead to no other conclusion than that the questioned or
falsified signatures of complainant Rosa Y. Paras were authored by respondent as said falsified
signatures were the same as the sample signatures of respondent.

To explain this anomaly, respondent presented a Special Power of Attorney (SPA) executed in his
favor by complainant to negotiate for an agricultural or crop loan from the Bais Rural Bank of Bais
City. Instead of exculpating respondent, the presence of the SPA places him in hot water. For if he
was so authorized to obtain loans from the banks, then why did he have to falsify his wife's
signatures in the bank loan documents? The purpose of an SPA is to especially authorize the
attorney-in-fact to sign for and on behalf of the principal using his own name.

ON THE CHARGE OF IMMORALITY AND CONCUBINAGE

The evidence against respondent is overwhelming. The affidavit-statements of his children and three
other persons who used to work with him and have witnessed the acts indicative of his infidelity
more than satisfy this Court that respondent has strayed from the marital path. The baptismal
certificate of Cyndee Rose Paras where respondent was named as the father of the child (Annex "J",
Rollo, p. 108); his naming the child after his deceased first-born daughter Cyndee Rose; and his
allowing Jocelyn Ching and the child to live in their house in Dumaguete City bolster the allegation
that respondent is carrying on an illicit affair with Ms. Ching, the mother of his illegitimate child.

It is a time-honored rule that good moral character is not only a condition precedent to admission to
the practice of law. Its continued possession is also essential for remaining in the practice of law
(People vs. Tunda, 181 SCRA 692 [1990]; Leda vs. Tabang, 206 SCRA 395 [1992]). In the case at
hand, respondent has fallen below the moral bar when he forged his wife's signature in the bank
loan documents, and, sired a daughter with a woman other than his wife. However, the power to
disbar must be exercised with great caution, and only in a clear case of misconduct that seriously
affects the standing and character of the lawyer as an officer of the Court and as a member of the
bar (Tapucar vs. Tapucar, Adm. Case No. 4148, July 30, 1998). Disbarment should never be
decreed where any lesser penalty, such as temporary suspension, could accomplish the end desired
(Resurrecion vs. Sayson, 300 SCRA 129 [1998]).

In the light of the foregoing, respondent is hereby SUSPENDED from the practice of law for SIX (6)
MONTHS on the charge of falsifying his wife's signature in bank documents and other related loan
instruments; and for ONE (1) YEAR from the practice of law on the charges of immorality and
abandonment of his own family, the penalties to be served simultaneously. Let notice of this decision
be spread in respondent's record as an attorney, and notice of the same served on the Integrated
Bar of the Philippines and on the Office of the Court Administrator for circulation to all the courts
concerned.

SO ORDERED.
REQUIREMENT OF GOOD MORAL CHARACTER

Supreme Court of Arizona,En Banc.

IN RE: James Joseph HAMM, Applicant.

No. SB-04-0079-M.
Decided: December 07, 2005
James Joseph Hamm, Tempe, In Propria Persona. Monroe & McDonough, P.C., by Lawrence
McDonough, Tucson, and Juan Perez-Medrano, Phoenix, Chair Attorneys for the Committee on Character
& Fitness. Charles W. Wirken, President, Helen Perry Grimwood, President-elect, Jim D. Smith, First Vice
President, Daniel J. McAuliffe, Second Vice President, Edward F. Novak, Secretary-Treasurer, Robert B.
Van Wyck, Chief Bar Counsel, Phoenix, Attorneys for Amicus Curiae State Bar of Arizona. Michael D.
Kimerer, Marty Lieberman, Amy L. Nguyen, Phoenix, Carla Ryan, Andrew Silverman, Tucson, Attorneys
for Amicus Curiae, Arizona Attorneys for Criminal Justice. Andrew P. Thomas, Maricopa County
Attorney, by Andrew P. Thomas, Phoenix, Attorney for Amicus Curiae Maricopa County Attorney's Office.
OPINION

¶ 1 James Hamm petitioned this Court, pursuant to Arizona Supreme Court Rule 36(g), 17A A.R.S., 1 to
review the recommendation of the Committee on Character and Fitness (the Committee) that his
application for admission to the State Bar of Arizona (the Bar) be denied. Having reviewed the record
and the Committee's report, we conclude that James Hamm has failed to establish the good moral
character necessary to be admitted to the practice of law in Arizona and deny his application.

I.

¶ 2 In September 1974, James Hamm was twenty-six years old and living on the streets of Tucson.
Although he previously had attended divinity school and worked as a part-time pastor, Hamm describes
his life in 1974 as reflecting a series of personal and social failures. In 1973, he had separated from his
wife, with whom he had a son. Although he had no criminal record, he supported himself by selling
small quantities of marijuana and, again according to Hamm, he used marijuana and other drugs and
abused alcohol.

¶ 3 On September 6, 1974, Hamm met two young men who identified themselves as college students from
Missouri. The two, Willard Morley and Zane Staples, came to Tucson to buy twenty pounds of
marijuana. Hamm agreed to sell it to them, but apparently was unable to acquire that quantity of
marijuana. Rather than call off the transaction, Hamm and two accomplices, Garland Wells and Bill
Reeser, agreed to rob Staples and Morley of the money intended for the purchase. On September 7,
Wells gave Hamm a gun to use during the robbery. Later that day, Wells and Hamm directed Morley
and Staples to drive to the outskirts of Tucson, purportedly to complete the drug transaction;  Reeser
followed in another vehicle. Both Wells and Hamm carried guns;  Morley and Staples were unarmed.
Hamm sat behind Morley, the driver, and Wells sat behind Staples. At some point, Hamm detected that
Staples was becoming suspicious. As Morley stopped the car, and without making any demand on the
victims for money, Hamm shot Morley in the back of the head, killing him. At the same time, Wells shot
Staples. Hamm then shot Staples in the back as he tried to escape and shot Morley once again. Wells
also shot Morley, then pursued Staples, whom he ultimately killed outside of the car. Hamm and Wells
took $1400.00 from the glove compartment, fled the scene in the van driven by Reeser, and left the bodies
of Morley and Staples lying in the desert.

¶ 4 Hamm took his share of the money and visited his sister in California. At the hearing held to
consider his application to the Bar, he told the Committee that he “was compelled to come back to
Tucson,” despite knowing he probably would be caught. Police officers arrested Hamm shortly after his
return. While in custody, he told the police that Morley and Staples were killed in a gun battle during
the drug deal. Initially charged with two counts of first-degree murder and two counts of armed
robbery, Hamm pled guilty to one count of first-degree murder and was sentenced to life in prison, with
no possibility of parole for twenty-five years.
¶ 5 Once in prison, Hamm began taking steps toward rehabilitation and became a model prisoner. After
spending one year in maximum security, he applied for and received a job in a computer training program
that allowed him to be transferred to medium security. Once in medium security, Hamm apparently
took advantage of any and every educational opportunity the prison system had to offer. He completed
certificates in yoga and meditation and, on his own, studied Jungian psychology. He helped fellow
inmates learn to read and write and to take responsibility for their actions. He obtained a bachelor's
degree in applied sociology, summa cum laude, from Northern Arizona University through a prison study
program.

¶ 6 After Hamm completed six years in medium security, prison officials transferred him to minimum
security, where he worked on paint and construction crews. He received a significant degree of freedom,
which allowed him to live in a dormitory rather than in a cell and occasionally to drive unaccompanied to
nearby towns. He testified that he was the only inmate permitted to head a work crew. Hamm
reported to the Committee that he played an instrumental role on various prison committees, particularly
the committee that developed a new grievance procedure within the Department of Corrections. In
addition, he wrote grant proposals for libraries, for handicapped prisoners, and for obtaining greater legal
assistance for prisoners.

¶ 7 While in prison, he met and married Donna Leone. She and Hamm founded Middle Ground Prison
Reform (Middle Ground), a prisoner and prisoner family advocacy organization involved in lobbying for
laws related to the criminal justice system and prisons. Middle Ground also provides public education
about those topics.

¶ 8 In 1989, the Governor, acting on the recommendation of the Arizona Board of Pardons and Parole (the
Board), commuted Hamm's sentence. When he had served nearly seventeen years, in July 1992, the
Board released Hamm on parole, conditioned upon no use of alcohol or drugs, drug and alcohol testing,
and fifteen hours of community service each month. In December 2001, the Arizona Board of Executive
Clemency 2granted Hamm's third application for absolute discharge.

¶ 9 Between his release in August 1992 and his absolute discharge in December 2001, Hamm performed
thousands of hours of community service. He advocated for prisoners' rights in various forums by
writing position papers, appearing on radio programs, testifying in legislative hearings, and speaking at
churches, schools, and civic organizations. He also appeared in a public service video encouraging
children not to do drugs or join gangs. Hamm now works as the Director of Advocacy Services at Middle
Ground Prison Reform.

¶ 10 While on parole, Hamm graduated from the Arizona State University College of Law. In July 1999,
Hamm passed the Arizona bar examination and, in 2004, filed his Character and Fitness Report with the
Committee.

II.

¶ 11 The Rules of the Supreme Court of Arizona establish the process through which the Committee and
this Court evaluate applications for admission to the Bar, and prior case law clarifies the burden an
applicant must satisfy to establish good moral character. We begin with a review of the rules.

A.

¶ 12 Rules 34 through 37 define the requirements for admission to the Bar.3 The Committee may
recommend an applicant for admission only if that applicant, in addition to meeting other requirements,
satisfies the Committee that he or she is of good moral character. Rule 34(a). The applicant bears the
burden of establishing his or her good moral character. In re Greenberg, 126 Ariz. 290, 292, 614 P.2d
832, 834 (1980) (citing In re Levine, 97 Ariz. 88, 397 P.2d 205 (1964)). In determining whether an
applicant's prior conduct indicates a lack of good moral character, the Committee must consider the
following non-exhaustive list of factors:
A. The applicant's age, experience and general level of sophistication at the time of the conduct

B. The recency of the conduct

C. The reliability of the information concerning the conduct

D. The seriousness of the conduct

E. Consideration given by the applicant to relevant laws, rules and responsibilities at the time of the
conduct

F. The factors underlying the conduct

G. The cumulative effect of the conduct

H. The evidence of rehabilitation

I. The applicant's positive social contributions since the conduct

J. The applicant's candor in the admissions process

K. The materiality of any omissions or misrepresentations by the applicant.

Rule 36(a)3.

¶ 13 When prior conduct involves the commission of a violent crime, the Committee must, at a minimum,
hold an informal hearing. Rule 36(a)4.E. If three or more Committee members who attended the
hearing or who have read the entire record do not recommend admission of an applicant, the Committee
must hold a formal hearing to consider whether to recommend the applicant for admission to the Bar. Id.

¶ 14 If the applicant fails to convince the Committee of his or her good moral character, the Committee
has a duty not to recommend that person to this Court. In re Klahr, 102 Ariz. 529, 531, 433 P.2d 977, 979
(1967);  Levine, 97 Ariz. at 91, 397 P.2d at 207 (“If the proof of good moral character falls short of
convincing the Committee on Examinations and Admissions, it is its duty not to recommend
admission.”);  In re Courtney, 83 Ariz. 231, 233, 319 P.2d 991, 993 (1957) (“In this it has no discretion;  if
the members entertain any reservations whatsoever as to the applicant's good moral character, it should
not make a favorable recommendation to this court.”). After the Committee submits its report, an
aggrieved applicant may petition this Court for review. Rule 36(g).

B.

¶ 15 This Court then independently determines whether the applicant possesses good moral character
and, based upon that determination, grants or denies the candidate's application. Although we give
serious consideration to the facts as found by and the recommendation of the Committee, “[t]he ultimate
decision in this difficult matter rests with the Supreme Court.” In re Kiser, 107 Ariz. 326, 327, 487 P.2d
393, 394 (1971) (holding applicant possessed good moral character);  see also Levine, 97 Ariz. at 92, 397
P.2d at 207 (holding the Court must, “using our independent judgment, de novo determine whether the
necessary qualifications have been shown”). We do not limit our independent review to matters of law;
 we have “the ultimate responsibility for determination of fact and law.” In re Ronwin, 139 Ariz. 576, 579,
680 P.2d 107, 110 (1983);  see also In re Walker, 112 Ariz. 134, 137, 539 P.2d 891, 894 (1975) (making a
finding regarding the credibility of testimony, although in agreement with the Committee).

¶ 16 The ultimate question in cases such as this is whether the applicant has established good moral
character, a concept with which we have wrestled as we have attempted to define its boundaries.
Greenberg, 126 Ariz. at 292, 614 P.2d at 834. As Hamm asserts, the rules and standards governing
admission to the practice of law in Arizona include no per se disqualifications. Instead, we consider each
case on its own merits. Id. In Walker, we described the principles on which we rely as follows:
‘Upright character’ * * * is something more than an absence of bad character. * * * It means that he
[an applicant for admission] must have conducted himself as a man of upright character ordinarily would,
should, or does. Such character expresses itself not in negatives nor in following the line of least
resistance, but quite often in the will to do the unpleasant thing if it is right, and the resolve not to do the
pleasant thing if it is wrong.

112 Ariz. at 138, 539 P.2d at 895 (alteration in original) (quoting In re Farmer, 191 N.C. 235, 131 S.E. 661,
663 (1926)).

¶ 17 We also agree with Hamm that, under the Rule applicable to Hamm's application, our concern must
be with the applicant's present moral character. In Greenberg, we explained that “it is [the applicant's]
moral character as of now with which we are concerned.” 126 Ariz. at 292, 614 P.2d at 834;  see also Rule
36(a)3. Past misconduct, however, is not irrelevant. Rather, this Court must determine what past bad
acts reveal about an applicant's current character.

III.

¶ 18 In compliance with Rule 36(a)4.E, the Committee conducted a formal hearing to consider Hamm's
application. The Committee heard testimony on May 20 and June 2, 2004. Hamm, representing
himself, and his wife presented extensive testimony. In addition, the Committee heard from three
licensed attorneys who had worked with Hamm and who recommended his admission and also
considered letters from those opposed to and in support of Hamm's application. In detailed findings,
the Committee specifically considered the various factors set out in Rule 36(a) to determine Hamm's
character and fitness to be admitted to the Bar. In its report, the Committee stated that, in reaching its
conclusions, it considered the following:

1) Hamm's unlawful conduct, which included the commission of two violent “execution style” murders
and his testimony as to the facts surrounding the murders.

2) Hamm's omissions on his Application and his testimony in explaining his failure to disclose all
required information.

3) Hamm's neglect of his financial responsibilities and/or violation of a longstanding child support court
order and his testimony as to his failure to comply with the court order.

4) Hamm's mental or emotional instability impairing his ability to perform the functions of an attorney
including his testimony as to any diagnosis and treatment.4

¶ 19 After reviewing all these factors, the Committee concluded that Hamm had not met his burden of
establishing that he possesses the requisite character and fitness for admission to the Bar and accordingly
recommended that his application be denied. We now consider the Committee's findings, together with
pertinent facts.

A.

¶ 20 The serious nature of Hamm's past criminal conduct is beyond dispute. Hamm acknowledges that
no more serious criminal conduct exists than committing first-degree murder. Our society reserves its
harshest punishment for those convicted of such conduct. See Tucson Rapid Transit Co. v. Rubiaz, 21 Ariz.
221, 231, 187 P. 568, 572 (1920) (describing murder as “the most serious crime known to the law”).

¶ 21 Hamm's past criminal conduct and the serious nature of that conduct affect the burden he must
meet to establish good moral character. He must first establish rehabilitation from prior criminal
conduct, a requirement that adds to his burden of showing current good moral character. See In re
Adams, 273 Ga. 333, 540 S.E.2d 609, 610 (2001) (“Where an applicant for admission to the bar has a
criminal record, his or her burden of establishing present good moral character takes on the added weight
of proving full and complete rehabilitation subsequent to conviction․”);  In re Allan S., 282 Md. 683, 387
A.2d 271, 275 (1978) (“Although a prior conviction is not conclusive of a lack of present good moral
character, ․ it adds to his burden of establishing present good character by requiring convincing proof of
his full and complete rehabilitation.”).

¶ 22 The added burden becomes greater as past unlawful conduct becomes more serious. In In re
Arrotta, we considered an application for reinstatement from an attorney who, eight years earlier, pled
guilty to mail fraud and bribery. 208 Ariz. 509, 96 P.3d 213 (2004). We noted there that “the more
serious the misconduct that led to disbarment, the more difficult is the applicant's task in showing
rehabilitation.” Id. at 512 ¶ 12, 96 P.3d at 216. An applicant for initial admission to the Bar who is
attempting to overcome the negative implications of a serious felony on his current moral character
likewise must overcome a greater burden for more serious crimes. We agree with the New Jersey
Supreme Court, which recognized that “in the case of extremely damning past misconduct, a showing of
rehabilitation may be virtually impossible to make.” In re Matthews, 94 N.J. 59, 462 A.2d 165, 176
(1983). Indeed, we are aware of no instance in which a person convicted of first-degree murder has been
admitted to the practice of law.

¶ 23 To show rehabilitation, Hamm must show that he has accepted responsibility for his criminal
conduct. Hamm fully recognizes his need to make this showing. Indeed, he states that his
rehabilitation could not have proceeded absent such acceptance. We recognize the Committee's concern
that Hamm has not yet fully accepted responsibility for the two murders. Hamm says he has done so,
repeatedly and strongly, but some of his other statements indicate to the contrary. The inconsistencies
among his various statements related to accepting responsibility are most evident when he discusses
Staples' murder. Although he told the Committee that he accepts responsibility for Staples' murder, in
fact he consistently assigns that responsibility to his accomplice. His testimony revealed almost no
attention to the commission or aftermath of Staples' murder. Hamm concedes that he has focused on
his role in Morley's murder rather than on his role in Staples' murder. The difference in approach, he
explains, resulted from one postcard written to him by Morley's grandmother and his decision to use his
connection to Morley to provide motivation to overcome difficulties. We have no reason to doubt that
Hamm's focus on Morley's murder aided him, using his words, in “accomplishing things that people have
been telling me I can't do and we're [Hamm and Morley] still doing it today.” That fact, however, does
nothing to assure us that Hamm has taken responsibility for Staples' murder, as he must if he is to
establish rehabilitation.

¶ 24 We also give serious consideration to the Committee's finding that Hamm was not completely
forthright in his testimony about the murders.5 Hamm has insisted in his filings with this Court that he
did not intend to kill, but only to rob, his victims. The agreed facts, however, lead directly to the
inference that Hamm intended to kill. He conspired with his accomplices to rob the victims;  he
accepted the gun provided by Wells and took it with him in the car with the victims;  he testified that,
although he did not intend to kill the victims, he was “afraid” they would be killed when he got in the car;
 he shot Morley without ever attempting a robbery and shot him a second time to make certain he was
dead;  and he also shot Staples to prevent his escape. The Committee observed Hamm testify and was
able to judge the credibility of his testimony in light of uncontested facts. We agree that the record
shows that Hamm, despite his current protestations to the contrary, intended to kill the victims. His
failure to confront the fact that these murders were intentional undermines his statements that he fully
accepts responsibility for his actions.

¶ 25 As did the Committee, we give substantial weight to Hamm's attempts at rehabilitation. In Section
I, supra, we described in some detail the activities Hamm has undertaken, both while in and since his
release from prison. We are impressed with the sincerity and fervor of those who testified or submitted
letters on Hamm's behalf. Were rehabilitation the only showing Hamm must make to establish good
moral character, we would weigh those factors tending to show rehabilitation against those tending to
show a lack thereof. Under the facts of this case, however, we need not decide whether the facts of
record establish rehabilitation.

¶ 26 When an applicant has committed first-degree murder, a crime that demonstrates an extreme lack
of good moral character, that applicant must make an extraordinary showing of present good moral
character to establish that he or she is qualified to be admitted to the practice of law. Even assuming
that Hamm has established rehabilitation, showing rehabilitation from criminal conduct does not, in
itself, establish good moral character. Rehabilitation is a necessary, but not sufficient, ingredient of
good moral character. An applicant must establish his current good moral character, independent of
and in addition to, evidence of rehabilitation. We conclude that Hamm failed to make that showing.

B.

¶ 27 We share the Committee's deep concern about Hamm's longstanding failure to fulfill, or even
address, his child support obligation to his son, born in 1969, four years before Hamm and his first wife
separated. Not until he prepared his application for admission to the Bar in 2004 did Hamm make any
effort to meet his responsibility to provide support for his son. During the Committee hearing, Hamm
advanced several explanations for his failure to do so. Like the Committee, we find none of his
explanations credible.

¶ 28 Although Hamm attempts to excuse his failure to pay child support by pointing out that he never
received a copy of a final divorce decree, Hamm scarcely can claim that he lacked awareness of his
obligation. A few months after he and his wife separated in 1973, Hamm was arrested on a
misdemeanor charge of failing to pay child support. On May 6, 1974, James and Karen Hamm's divorce
decree set Hamm's child support payments at $75.00 a month. Hamm made no effort to learn the
extent of his financial obligation to his son from 1974, when Hamm was twenty-six years old, until 2004,
when he was fifty-five. During those nearly thirty years, he gained sophistication and attended law
school. He must have known, and certainly should have known, that he had long avoided a basic
parental obligation.6

¶ 29 Hamm also attempted to excuse his inattention to his obligation by explaining that he learned, first
from a private investigator hired by his wife in 1988, and later from his son, that his former wife's new
husband had adopted his son. His reliance on the private investigator's 1988 report to excuse his failure
is surprising, given the fact that his son was only months from the age of majority when Hamm learned of
the report;  he provides no explanation for his lack of concern prior to that date.

¶ 30 Hamm further explained that only when he applied for admission to the Bar in 2004 did he discover
that his son had not been adopted and then “calculated the child support payment [due] over the years.”
Hamm determined that he owed $10,000.00 and, even though the statute of limitations barred an action
to recover past amounts due,7 contacted his son and set up a repayment schedule.

¶ 31 “ Behavior of such long duration cannot be considered as a temporary aberration․” Walker, 112
Ariz. at 138, 539 P.2d at 895;  see also Office of Disciplinary Counsel v. Lewis, 493 Pa. 519, 426 A.2d 1138
(1981) (holding that even when an attorney made belated restitution for funds taken from clients, because
“[s]uch actions cannot be said to be consistent with high ethical standards of the profession, with a
lawyer's fiduciary responsibility to his client, with a character that is beyond reproach, or with truth,
candor and honesty,” the attorney could not continue to practice law). Hamm's failure to meet his
parental obligation for nearly thirty years makes it more difficult for him to make the required
extraordinary showing that he “has conducted himself as a man ordinarily would, should, or does.”
Walker, 112 Ariz. at 138, 539 P.2d at 895.

¶ 32 We also agree with the Committee that Hamm did not display honesty and candor in discussing his
failure to pay child support with the Committee. Hamm testified both that his son told him personally
that he had been adopted and that his son “adamantly refused” to accept interest payments on the unpaid
child support.

¶ 33 Hamm's son testified, however, that he had never been adopted, that prior to his contact with Hamm
he had changed his name himself, and that he had not told Hamm he had been adopted. Hamm's son
also did not report adamantly refusing interest payments. In response to a question from the Committee
about interest payments, he said:
Discussions about interest? Seems like whenever we were talking about it, you know, he said it was a
large amount, and it seems like the subject of interest did come up. I can't remember exactly, you know,
what we said about it. But, you know, I didn't push the issue or anything, say, well, you know, you're
going to pay me interest for this or what, or is there any interest. It wasn't really an issue or important to
me.

¶ 34 We discern no reason that Hamm's son would have been other than forthright about these matters,
while Hamm had every reason to present himself in the best possible light.8 Like the Committee, we find
the testimony of his son to be more credible.

C.

¶ 35 We further conclude that Hamm did not adequately explain his failure to disclose an incident
involving him and his current wife, Donna, when he submitted his application to the Committee.

¶ 36 In 1996, Hamm and Donna engaged in a physical altercation outside a convenience store. Donna
“yelled the word ‘kidnap’ out of the window” of the vehicle Hamm was driving, causing him to pull over
and leave the vehicle. During their tussle, Donna tore Hamm's shirt. Both called the police, who
arrested neither Hamm nor Donna. The incident and what Donna describes as her “embellishments”
caused such great concern to the Hamms, particularly because Hamm was on parole, that Donna
submitted to a polygraph administered by a private company to demonstrate that Hamm had not
kidnapped her. The two also underwent marital counseling.

¶ 37 Nonetheless, when filling out his Character and Fitness Report, Hamm failed to disclose the incident
to the Committee. Question 25 on the report asks specifically whether the applicant, among other
things, has been “questioned” concerning any felony or misdemeanor.9 Hamm told the Committee that,
in reading the application, he missed the word “questioned” in the list of encounters with law enforcement
that Question 25 directs an applicant to report.

¶ 38 Hamm's explanation strains credulity. In Walker, this Court inferred that the son of an Army
officer would understand the requirement to register for the draft. 112 Ariz. at 138, 539 P.2d at 895.
Likewise, we infer from Hamm's knowledge of the law and his efforts in 1996 to document a defense for
the domestic incident that he fully understood its importance and must have known that the incident
would be of interest to the Committee. His failure to include it in his initial application further affects
his ability to make the needed extraordinary showing of good moral character.

D.

¶ 39 Hamm's actions during these proceedings also raise questions about his fitness to practice law.
The introduction to Hamm's petition before this Court begins:

The consequences of this case for Petitioner take it out of the ordinary realm of civil cases. If the
Committee's recommendation is followed, it will prevent him from earning a living through practicing
law. This deprivation has consequences of the greatest import for Petitioner, who has invested years of
study and a great deal of financial resources in preparing to be a lawyer․

This language repeats nearly verbatim the language of the United States Supreme Court in Konigsberg v.
State Bar, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957), in which the Court wrote:

While this is not a criminal case, its consequences for Konigsberg take it out of the ordinary run of civil
cases. The Committee's action prevents him from earning a living by practicing law. This deprivation
has grave consequences for a man who has spent years of study and a great deal of money in preparing to
be a lawyer.

Id. at 257-58, 77 S.Ct. 722. If an attorney submits work to a court that is not his own, his actions may
violate the rules of professional conduct. Iowa Supreme Court Bd. of Prof'l Ethics & Conduct v. Lane,
642 N.W.2d 296, 299 (Iowa 2002) (“[P]lagiarism constitute[s], among other things, a misrepresentation
to the court. An attorney may not engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation.”);   see also Rule 42, ER 8.4(c) (defining professional misconduct as including
“engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation”). We are concerned
about Hamm's decision to quote from the Supreme Court's opinion without attribution and are equally
troubled by his failure to acknowledge his error. When the Committee's response pointed to Hamm's
failure to attribute this language to Konigsberg, he avoided the serious questions raised and refused to
confront or apologize for his improper actions, asserting instead:  “From Petitioner's perspective, any
eloquence that might be found in the Petition does not derive from any prior case decided in any
jurisdiction, but rather from the gradual development of his own potential through study, reflection, and
devotion to the duty created by his commission of murder.” Hamm apparently either does not regard
his actions as improper or simply refuses to take responsibility. In either case, his actions here do not
assist him in making the requisite showing of good moral character.10

E.

¶ 40 When Hamm committed first-degree murder in 1974, he demonstrated his extreme lack of good
moral character. Although this Court has not adopted a per se rule excluding an applicant whose past
includes such serious criminal misconduct, we agree with those jurisdictions that have held that an
applicant with such a background must make an extraordinary showing of rehabilitation and present good
moral character to be admitted to the practice of law. Perhaps such a showing is, in practical terms, a
near impossibility. We need not decide that question today, however, because Hamm's lack of candor
before the Committee and this Court, his failure to accept full responsibility for his serious criminal
misconduct, and his failure to accept or fulfill, on a timely basis, his parental obligation of support for his
son, all show that Hamm has not met the stringent standard that applies to an applicant in his position
who seeks to show his present good moral character.

IV.

¶ 41 Hamm asserts that he was denied due process of law because two members of the Committee may
have prejudged the merits of his application. Both members, however, left the Committee proceedings
when their potential bias came to light, and neither played any role in the Committee's findings and
recommendation.

¶ 42 Hamm, like all applicants for membership in the Bar, is entitled to receive due process of law.
“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in
a meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)
(quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). Also, “due
process requires that a party be given a ‘fair trial in a fair tribunal.’ ” United States v. Superior Court, 144
Ariz. 265, 280, 697 P.2d 658, 673 (1985) (quoting In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99
L.Ed. 942 (1955)). Both the Committee and this Court have provided Hamm ample opportunity to be
heard through hearings and written arguments. Moreover, this Court, and not the Committee, made the
ultimate decision on Hamm's application. Hamm received a full opportunity to be heard before a fair
tribunal.

V.

¶ 43 Because James Hamm has failed to meet his burden of proving that he is of good moral character, we
deny his application for admission to the State Bar of Arizona.

FOOTNOTES

1. References in this opinion to “Rule _” are to the Rules of the Arizona Supreme Court.

2. The Board of Pardons and Paroles is now the Arizona Board of Executive Clemency. 1993 Ariz.
Sess. Laws, ch. 255, § 64.
3. Amendments to Rules 32 through 40 became effective December 1, 2005. Order Amending Rules
32-40, 46, 62, 64 & 65, Rules of Supreme Ct., Ariz. Sup.Ct. No. R-04-0032 (June 9, 2005). In this
opinion, we refer to the Rules effective when Hamm filed his application for admission to the practice of
law.

4. The Committee was divided as to the significance of complaints made concerning Hamm's alleged
unauthorized practice of law. This Court's decision does not rely upon those allegations.

5. Hamm's lack of candor on this question also impacts our analysis of whether he met his burden of
showing present good moral character. See Section III, subsections B through E, infra.

6. Hamm also cannot attribute his failure to pay child support to the absence of funds. Even while in
prison, Hamm earned “somewhere around a hundred dollars a month probably,” but used no portion of
those earnings to discharge his obligation.

7. When asked if he had taken steps to formalize his agreement with his son to pay back child support,
Hamm replied, “No. No. I simply acknowledged the debt regardless whether it is a legal debt or not and
whether it's an enforceable debt or not.” In its findings, the Committee noted that Hamm “has since
taken it upon himself to attempt to comply with his child support obligations,” but expressed concern that
he made no admission of a legal obligation to pay. Whether an action to enforce Hamm's obligation to
his son is in fact time-barred is unclear. In Huff v. Huff, the Texas Supreme Court held that a ten-year
statute of limitations under Tex.Rev.Civ. Stat. Ann. art. 5532, since repealed by Acts 1985, 69th Leg., ch.
959, § 9(1), eff. Sept. 1, 1985, applied to violations of child support orders. 648 S.W.2d 286, 287-88
(Tex.1983) (allowing a claim based on a 1973 divorce decree). Because Hamm's son turned eighteen in
1987, the ten-year statute of limitations expired in 1997. In 2002, however, the Texas Supreme Court
held that an administrative writ, created by constitutional amendment in 1997, could be used to enforce a
divorce decree issued in 1974, for which no order was obtained, because the administrative writ is a “new
and improved enforcement mechanism.” In re A.D., 73 S.W.3d 244, 248 (Tex.2002). We need not
resolve this question of Texas law, but share the Committee's concern over Hamm's failure to formally
investigate his legal obligations to his son.

8. Rather than acknowledge any inconsistencies between his testimony and that of his son, Hamm
lashed out at the Committee's refusal to agree with Hamm's argument, which the Committee could accept
only if it accepted Hamm's testimony on this issue as credible. Hamm accused the Committee of “totally
ignor[ing] the content of [Hamm's Petition] to which it supposedly was responding.”

9. Question 25 asks:Have you either as an adult or a juvenile, ever been served with a criminal
summons, questioned, arrested, taken into custody, indicted, charged with, tried for, pleaded guilty to or
been convicted of, or ever been the subject of an investigation concerning the violation of, any felony or
misdemeanor? (In answering this question, include all incidents, no matter how trivial or minor the
infraction or whether guilty or not, whether expunged or not, whether you believe or were advised that
you need not disclose any such instance.)

10. In addition to the matters discussed above, only four years have passed since James Hamm was
absolutely discharged. The fact that Hamm has been free of supervision for this relatively short time
weighs against his admission to the practice of law. Greenberg, 126 Ariz. at 293, 614 P.2d at 835 (noting
that “[r]ehabilitation is seldom accomplished in an instantaneous fashion” and holding that Greenberg
had “not convinced [the Court] that he as yet evidences the requisite good moral character”) (emphasis
added);  see also In re Dortch, 860 A.2d 346, 348 (D.C.2004) (finding it “would be erosive of public
confidence in the legal profession and the administration of justice were we to admit an applicant who is
still on parole for crimes as serious as those committed by Dortch”). Because Hamm otherwise failed to
establish good moral character, however, we reached our decision without considering this factor.

McGREGOR, Chief Justice.

A.C. No. 5095 November 28, 2007

FATHER RANHILIO C. AQUINO, LINA M. GARAN, ESTRELLA C. LOZADA, POLICARPIO L.

MABBORANG, DEXTER R. MUNAR, MONICO U. TENEDRO, ANDY R. QUEBRAL, NESTOR T.
RIVERA, EDUARDO C. RICAMORA, ARTHUR G. IBAÑEZ, AURELIO C. CALDEZ and DENU A.
AGATEP, complainants,
vs.
ATTY. EDWIN PASCUA, respondent.

DECISION

SANDOVAL-GUTIERREZ, J.:

For our resolution is the letter-complaint dated August 3, 1999 of Father Ranhilio C. Aquino, then
Academic Head of the Philippine Judicial Academy, joined by Lina M. Garan and the other above-
named complainants, against Atty. Edwin Pascua, a Notary Public in Cagayan.

In his letter-complaint, Father Aquino alleged that Atty. Pascua falsified two documents committed
as follows:

(1) He made it appear that he had notarized the "Affidavit-Complaint" of one Joseph B.
Acorda entering the same as "Doc. No. 1213, Page No. 243, Book III, Series of 1998, dated
December 10, 1998".

(2) He also made it appear that he had notarized the "Affidavit-Complaint" of one Remigio B.
Domingo entering the same as "Doc. No. 1214, Page 243, Book III, Series of 1998, dated
December 10, 1998.

Father Aquino further alleged that on June 23 and July 26, 1999, Atty. Angel Beltran, Clerk of Court,
Regional Trial Court, Tuguegarao, certified that none of the above entries appear in the Notarial
Register of Atty. Pascua; that the last entry therein was Document No. 1200 executed on December
28, 1998; and that, therefore, he could not have notarized Documents Nos. 1213 and 1214 on
December 10, 1998.

In his comment on the letter-complaint dated September 4, 1999, Atty. Pascua admitted having
notarized the two documents on December 10, 1998, but they were not entered in his Notarial
Register due to the oversight of his legal secretary, Lyn Elsie C. Patli, whose affidavit was attached
to his comment.

The affidavit-complaints referred to in the notarized documents were filed by Atty. Pascua with the
Civil Service Commission. Impleaded as respondents therein were Lina M. Garan and the other
above-named complainants. They filed with this Court a "Motion to Join the Complaint and Reply to
Respondent's Comment." They maintain that Atty. Pascua's omission was not due to inadvertence
but a clear case of falsification.1 On November 16, 1999, we granted their motion.2

Thereafter, we referred the case to the Office of the Bar Confidant for investigation, report and
recommendation.

On April 21, 2003, the Office of the Bar Confidant issued its Report and Recommendation partly
reproduced as follows:
A notarial document is by law entitled to full faith and credit upon its face. For this reason,
notaries public must observe the utmost care to comply with the formalities and the basic
requirement in the performance of their duties (Realino v. Villamor, 87 SCRA 318).

Under the notarial law, "the notary public shall enter in such register, in chronological order,
the nature of each instrument executed, sworn to, or acknowledged before him, the person
executing, swearing to, or acknowledging the instrument, xxx xxx. The notary shall give to
each instrument executed, sworn to, or acknowledged before him a number corresponding to
the one in his register, and shall also state on the instrument the page or pages of his
register on which the same is recorded. No blank line shall be left between entries" (Sec.
246, Article V, Title IV, Chapter II of the Revised Administrative Code).

Failure of the notary to make the proper entry or entries in his notarial register touching his
notarial acts in the manner required by law is a ground for revocation of his
commission (Sec. 249, Article VI).

In the instant case, there is no question that the subject documents allegedly notarized by
Atty. Pascua were not recorded in his notarial register.

Atty. Pascua claims that the omission was not intentional but due to oversight of his staff.
Whichever is the case, Atty. Pascua cannot escape liability. His failure to enter into his
notarial register the documents that he admittedly notarized is a dereliction of duty on his
part as a notary public and he is bound by the acts of his staff.

The claim of Atty. Pascua that it was simple inadvertence is far from true.

The photocopy of his notarial register shows that the last entry which he notarized on
December 28, 1998 is Document No. 1200 on Page 240. On the other hand, the two
affidavit-complaints allegedly notarized on December 10, 1998 are Document Nos. 1213 and
1214, respectively, under Page No. 243, Book III. Thus, Fr. Ranhilio and the other
complainants are, therefore, correct in maintaining that Atty. Pascua falsely assigned
fictitious numbers to the questioned affidavit-complaints, a clear dishonesty on his part not
only as a Notary Public, but also as a member of the Bar.

This is not to mention that the only supporting evidence of the claim of inadvertence by Atty.
Pascua is the affidavit of his own secretary which is hardly credible since the latter cannot be
considered a disinterested witness or party.

Noteworthy also is the fact that the questioned affidavit of Acorda (Doc. No. 1213) was
submitted only when Domingo's affidavit (Doc. No. 1214) was withdrawn in the
administrative case filed by Atty. Pascua against Lina Garan, et al. with the CSC. This
circumstance lends credence to the submission of herein complainants that Atty. Pascua
ante-dated another affidavit-complaint making it appear as notarized on December 10, 1998
and entered as Document No. 1213. It may not be sheer coincidence then that both
documents are dated December 10, 1998 and numbered as 1213 and 1214.

A member of the legal fraternity should refrain from doing any act which might lessen in any
degree the confidence and trust reposed by the public in the fidelity, honesty and integrity of
the legal profession (Maligsa v. Cabanting, 272 SCRA 409).
 As a lawyer commissioned to be a notary public, Atty. Pascua is mandated to subscribe to
the sacred duties appertaining to his office, such duties being dictated by public policy and
impressed with public interest.

A member of the Bar may be disciplined or disbarred for any misconduct in his
professional or private capacity. The Court has invariably imposed a penalty for notaries
public who were found guilty of dishonesty or misconduct in the performance of their
duties.

In Villarin v. Sabate, Jr. (325 SCRA 123), respondent lawyer was suspended from his
Commission as Notary Public for a period of one year for notarizing a document without
affiants appearing before him, and for notarizing the same instrument of which he was one of
the signatories. The Court held that respondent lawyer failed to exercise due diligence in
upholding his duties as a notary public.

In Arrieta v. Llosa (282 SCRA 248), respondent lawyer who certified under oath a Deed of
Absolute Sale knowing that some of the vendors were dead was suspended from the
practice of law for a period of six (6) months, with a warning that another infraction would be
dealt with more severely. In said case, the Court did not impose the supreme penalty of
disbarment, it being the respondent's first offense.

In Maligsa v. Cabanting (272 SCRA 409), respondent lawyer was disbarred from the practice
of law, after being found guilty of notarizing a fictitious or spurious document. The Court
considered the seriousness of the offense and his previous misconduct for which he was
suspended for six months from the practice of law.

It appearing that this is the first offense of Atty. Pascua, a suspension from the practice of
law for a period of six (6) months may be considered enough penalty for him as a lawyer.
Considering that his offense is also a ground for revocation of notarial commission, the same
should also be imposed upon him.

PREMISES CONSIDERED, it is most respectfully recommended that the notarial

commission of Atty. EDWIN V. PASCUA, if still existing, be REVOKED and that he be
SUSPENDED from the practice of law for a period of six (6) months."3

After a close review of the records of this case, we resolve to adopt the findings of facts and
conclusion of law by the Office of the Bar Confidant. We find Atty. Pascua guilty of misconduct in the
performance of his duties for failing to register in his Notarial Register the affidavit-complaints of
Joseph B. Acorda and Remigio B. Domingo.

"Misconduct" generally means wrongful, improper or unlawful conduct motivated by a premeditated,

obstinate or intentional purpose.4 The term, however, does not necessarily imply corruption or
criminal intent.5

The penalty to be imposed for such act of misconduct committed by a lawyer is addressed to the
sound discretion of the Court. In Arrieta v. Llosa,6 wherein Atty. Joel A. Llosa notarized a Deed of
Absolute Sale knowing that some of the vendors were already dead, this Court held that such
wrongful act "constitutes misconduct" and thus imposed upon him the penalty of suspension from
the practice of law for six months, this being his first administrative offense. Also, in Vda. de Rosales
v. Ramos,7 we revoked the notarial commission of Atty. Mario G. Ramos and suspended him from
the practice of law for six months for violating the Notarial Law in not registering in his notarial book
the Deed of Absolute Sale he notarized. In Mondejar v. Rubia,8 however, a lesser penalty of one
month suspension from the practice of law was imposed on Atty. Vivian G. Rubia for making a false
declaration in the document she notarized.

In the present case, considering that this is Atty. Pascua's first offense, we believe that the
imposition of a three-month suspension from the practice of law upon him is in order. Likewise, since
his offense is a ground for revocation of notarial commission, the same should also be imposed
upon him.

WHEREFORE, Atty. Edwin Pascua is declared GUILTY of misconduct and is SUSPENDED from
the practice of law for three (3) months with a STERN WARNING that a repetition of the same or
similar act will be dealt with more severely. His notarial commission, if still existing, is
ordered REVOKED.

SO ORDERED.
JBC No. 013 August 22, 2007

Re: Non-disclosure Before the Judicial and Bar Council of the Administrative Case Filed
Against Judge Jaime V. Quitain, in His Capacity as the then Asst. Regional Director of the
National Police Commission, Regional Office XI, Davao City.

DECISION

PER CURIAM:

Judge Jaime Vega Quitain was appointed Presiding Judge of the Regional Trial Court (RTC),
Branch 10, Davao City on May 17, 2003.1 Subsequent thereto, the Office of the Court Administrator
(OCA) received confidential information that administrative and criminal charges were filed against
Judge Quitain in his capacity as then Assistant Regional Director, National Police Commission
(NAPOLCOM), Regional Office 11, Davao City, as a result of which he was dismissed from the
service per Administrative Order (A.O.) No. 183 dated April 10, 1995.

In the Personal Data Sheet (PDS)2 submitted to the Judicial and Bar Council (JBC) on November 26,
2001, Judge Quitain declared that there were five criminal cases (Criminal Cases Nos. 18438,
18439, 22812, 22813, and 22814) filed against him before the Sandiganbayan, which were all
dismissed. No administrative case was disclosed by Judge Qutain in his PDS.

To confirm the veracity of the information, then Deputy Court Administrator (DCA) Christopher O.
Lock (now Court Administrator) requested from the Sandiganbayan certified copies of the Order(s)
dismissing the criminal cases.3On even date, letters4 were sent to the NAPOLCOM requesting for
certified true copies of documents relative to the administrative complaints filed against Judge
Quitain, particularly A.O. No. 183 dated April 10, 1995 dismissing him from the service. Likewise,
DCA Lock required Judge Quitain to explain the alleged misrepresentation and deception he
committed before the JBC.5

In a letter6 dated November 28, 2003, the NAPOLCOM furnished the Office of the Court
Administrator (OCA) a copy of A.O. No. 183 showing that respondent Judge was indeed dismissed
from the service for Grave Misconduct for falsifying or altering the amounts reflected in disbursement
vouchers in support of his claim for reimbursement of expenses. A.O. 183 partly reads:

THE PRESIDENT OF THE PHILIPPINES

ADMINISTRATIVE ORDER NO. 183

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

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

xxxx

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

WHEREFORE, and as recommended by the NAPOLCOM, Assistant Regional Director Jaime Vega
Quitain is hereby DISMISSED from the service, with forfeiture of pay and benefits, effective upon
receipt of a copy hereof.

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

(Sgd. by President Fidel V. Ramos)

By the President:

(Sgd.)
TEOFISTO T. GUINGONA, JR.

Executive Secretary7

In a letter8 dated October 22, 2003 addressed to DCA Lock, Judge Quitain denied having committed
any misrepresentation before the JBC. He alleged that during his interview, the members thereof
only inquired about the status of the criminal cases filed by the NAPOLCOM before the
Sandiganbayan, and not about the administrative case simultaneously filed against him. He also
alleged that he never received from the Office of the President an official copy of A.O. No. 183
dismissing him from the service.

Thereafter, DCA Lock directed Judge Quitain to explain within ten (10) days from notice why he did
not include in his PDS, which was sworn to before a notary public on November 22, 2001, the
administrative case filed against him, and the fact of his dismissal from the service.9

In his letters10 dated March 13, 2004 and June 17, 2004, respondent explained that during the
investigation of his administrative case by the NAPOLCOM Ad Hoc Committee, one of its members
suggested to him that if he resigns from the government service, he will no longer be prosecuted;
that following such suggestion, he tendered his irrevocable resignation from NAPOLCOM on June 1,
199311 which was immediately accepted by the Secretary of the Department of Interior and Local
Governments; that he did not disclose the case in his PDS because he was of the "honest belief"
that he had no more pending administrative case by reason of his resignation; that his resignation
"amounted to an automatic dismissal" of his administrative case considering that "the issues raised
therein became moot and academic"; and that had he known that he would be dismissed from the
service, he should not have applied for the position of a judge since he knew he would never be
appointed.
Finding reasonable ground to hold him administratively liable, then Court Administrator Presbitero J.
Velasco, Jr. (now a member of this Court) and then DCA Lock submitted a Memorandum12 dated
September 3, 2004 to then Chief Justice Hilario G. Davide, Jr., which states:

In order that this Office may thoroughly and properly evaluate the matter, we deemed it necessary to
go over the records of the subject administrative case against Judge Jaime V. Quitain, particularly
the matter that pertains to Administrative Order No. 183 dated 10 April 1995. On 15 May 2004, we
examined the records of said administrative case on file with the NAPOLCOM, Legal Affairs Service,
and secured certified [true] copies of pertinent documents.

After careful perusal of the documents and records available, including the letters-explanations of
Judge Jaime V. Quitain, this Office finds that there are reasonable grounds to hold him
administratively liable.

An examination of the Personal Data Sheet submitted by Judge Quitain with the Judicial and Bar
Council, which was subscribed and sworn to before Notary Public Bibiano M. Bustamante of Davao
City on 22 November 2001, reveals that he concealed material facts and even committed perjury in
having answered "yes" to Question No. 24, but without disclosing the fact that he was dismissed
from the government service. Question No. 24 and his answer thereto are hereunder quoted as
follows:

24. Have you ever been charged with or convicted of or otherwise imposed a sanction for the
violation of any law, decree, ordinance or regulation by any court, tribunal or any other government
office, agency or instrumentality in the Philippines or in any foreign country or found guilty of an
administrative offense or imposed any administrative sanction? [ / ] Yes [ ] No. If your answer is
"Yes" to any of the questions, give particulars.

But all dismissed (acquitted)

Sandiganbayan Criminal Cases Nos. 18438, 18439

Date of [Dismissal] – August 2, 1995

Sandiganbayan Criminal Cases Nos. 22812, 22813, 22814

Date of [Dismissal] – July 17, 2000

As borne out by the records, Judge Quitain deliberately did not disclose the fact that he was
dismissed from the government service. At the time he filled up and submitted his Personal Data
Sheet with the Judicial and Bar Council, he had full knowledge of the subject administrative case, as
well as Administrative Order No. 183 dismissing him from the government service. Based on the
certified documents secured from the Office of the NAPOLCOM, the following data were gathered:

1. In compliance with the "Summons" dated 19 March 1993, signed by Commissioner Alexis
C. Canonizado, Chairman, Ad Hoc Committee of the NAPOLCOM, Judge Jaime V. Quitain,
through Atty. Pedro S. Castillo, filed his Answer (dated 29 March 1993) to the administrative
complaint lodged against him by the Napolcom;

2. On 30 March 1993, Judge Quitain received a copy of the "Notice of Hearing" of even date,
signed by Mr. Canonizado, in connection with the formal hearing of the subject administrative
case scheduled on 30 April 1993;
 3. Administrative Order No. 183, dismissing Judge Quitain from the service, was dated 10
April 1995. On 18 April 1995, newspaper items relative to the dismissal of Judge Quitain
were separately published in the Mindanao Daily Mirror and in the Mindanao Times, the
contents of which read as follows:

Mindanao Times:

Dismissed NAPOLCOM chief airs appeal

Former National Police Commission (Napolcom) acting regional director Jaime Quitain yesterday
appealed for understanding to those allegedly behind his ouster from his post two years ago.
Quitain, who was one of the guests in yesterday’s Kapehan sa Dabaw, wept unabashedly as he
read his prepared statement on his dismissal from government service.

Quitain claimed that after Secretary Luis Santos resigned from the Department of Interior and Local
Governments in 1991, a series of administrative charges were hurled against him by some regional
employees.

"I was dismissed from the Napolcom Office without due process," Quitain said.

He also said he had no idea as to who the people (sic) are behind the alleged smear campaign
leveled against him.

"Whoever is behind all this, I have long forgiven you. My only appeal to you, give me my day in
court, give me the chance to clear my name, the only legacy that I can leave to my children," Quitain
said in his statement.

"It is my constitutional right to be present in all proceedings of the administrative case," he also said.

Quitain was appointed Assistant Regional Director of Napolcom in 1991 by then President Corazon
Aquino upon the recommendation of Secretary Santos. He was later designated Napolcom acting
regional director for Region XI.

Mindanao Daily Mirror:

Quitain vows to clear name

Former assistant regional director Jaime Quitain of the National Police Commission (Napolcom)
vowed yesterday to clear his name in court from charges of tampering with an official receipt.

Quitain[,] who is running for a council seat, expressed confidence that he would soon be vindicated
in court against the group that plotted his ouster from office: He said his only appeal was for Interior
and Local Government Secretary Rafael Alunan to grant him his day in court to answer the charges.

"Whoever was behind all of these things, I have long forgiven them," Quitain said.

"Just give me the chance to clear my name because this is the only legacy that I can give my
children," Quitain said.

While the records of the subject administrative case on file with the NAPOLCOM Office does not
bear proof of receipt of Administrative Order No. 183 by Judge Quitain, the same does not
necessarily mean that he is totally unaware of said Administrative Order. As shown by the above-
quoted newspaper clippings, Judge Quitain even aired his appeal and protest to said Administrative
Order.

xxxx

Judge Quitain asseverated that he should not have applied with the JBC had he known that he was
administratively charged and was consequently dismissed from the service since he will not be
considered. But this may be the reason why he deliberately concealed said fact. His claim that he
did not declare the administrative case in his Personal Data Sheet because of his honest belief that
there is no administrative or criminal case that would be filed against him by reason of his
resignation and the assurance made by the NAPOLCOM that no administrative case will be filed,
does not hold water. It is rather absurd for him to state that his resignation from the NAPOLCOM
amounts to an automatic dismissal of whatever administrative case filed against him because when
he resigned and relinquished his position, the issues raised therein became moot and academic. He
claims that he did not bother to follow up the formal dismissal of the administrative case because of
said belief. All these are but futile attempts to exonerate himself from administrative culpability in
concealing facts relevant and material to his application in the Judiciary. As a member of the Bar, he
should know that his resignation from the NAPOLCOM would not obliterate any administrative
liability he may have incurred[,] much less, would it result to the automatic dismissal of the
administrative case filed against him. The acceptance of his resignation is definitely without
prejudice to the continuation of the administrative case filed against him. If such would be the case,
anyone charged administratively could easily escape from administrative sanctions by the simple
expedient of resigning from the service. Had it been true that Judge Quitain honestly believes that
his resignation amounts to the automatic dismissal of his administrative case, the least he could
have done was to personally verify the status thereof. He should not have relied on the alleged
assurance made by the NAPOLCOM.

On the strength of his misrepresentation, Judge Quitain misled the Judicial and Bar Council by
making it appear that he had a clean record and was qualified to join the Judiciary. His prior
dismissal from the government service is a blot on his record, which has gone [worse] and has
spread even more because of his concealment of it. Had he not concealed said vital fact, it could
have been taken into consideration when the Council acted on his application. His act of dishonesty
renders him unfit to join the Judiciary, much less remain sitting as a judge. It even appears that he
was dismissed by the NAPOLCOM for misconduct and dishonesty.

Thus, the OCA recommended that: (1) the instant administrative case against respondent be
docketed as an administrative matter; and (2) that he be dismissed from the service with prejudice to
his reappointment to any position in the government, including government-owned or controlled
corporations, and with forfeiture of all retirement benefits except accrued leave credits.

Respondent was required to Comment.13

In compliance with the Court’s Resolution respondent filed his Comment14 contending that before he
filed his application for RTC Judge with the JBC, he had no knowledge that he was administratively
dismissed from the NAPOLCOM service as the case was "secretly heard and decided." He averred
that:

1. Being a religious lay head and eventually the Pastoral Head of the Redemptorist
Eucharistic Lay Ministry in Davao City and the surrounding provinces, he was recruited as
one of the political followers of then Mayor Luis T. Santos of Davao City, who later became
the Secretary of the Department of Interior and Local Government (DILG) and was
 instrumental in his appointment as Assistant Regional Director of the National Police
Commission, Region XI;

2. After Secretary Luis T. Santos was replaced as DILG Secretary, the political followers of
his successor, who were the same followers involved in the chain of corruption prevalent in
their department, began quietly pressing for his (Quitain) resignation as Assistant Regional
Director;

3. Finding difficulty in attacking his honesty and personal integrity, his detractors went to the
extent of filing criminal charges against him;

4. Before these criminal charges were scheduled for trial, he was being convinced to resign
in exchange for the dismissal of said criminal charges, but when he refused to do so, he was
unjustifiably detailed or "exiled" at the DILG central office in Manila;

5. Upon his "exile" in Manila for several months, he realized that even his immediate
superiors cooperated with his detractors in instigating for his removal. Hence, upon advice of
his relatives, friends and the heads of their pastoral congregation, he resigned from his
position in NAPOLCOM on condition that all pending cases filed against him, consisting of
criminal cases only, shall be dismissed, as in fact they were dismissed;

6. From then on he was never formally aware of any administrative case filed against him.
Hence, when he submitted his Personal Data Sheet before the Judicial and Bar Council in
support of his application as RTC judge, he made the following answer in Question No. 23:

23. Is there any pending civil, criminal, or administrative (including disbarment) case
or complaint filed against you pending before any court, prosecution office, any other
office, agency or instrumentality of the government, or the Integrated Bar of the
Philippines?

He could only give a negative answer since there was no pending administrative case filed
against him that he knows;

7. Had he known that there was an administrative case filed against him he would have
desisted from applying as a judge and would have given his full attention to the said
administrative case, if only to avoid ensuing embarrassment; and

8. The filing of the administrative case against him as well as the proceedings had thereon
and the decision rendered therein, without his knowledge, could have probably occurred
during his "exile period" when he was detailed indefinitely in Manila. The proceedings had in
the said administrative case are null and void since he was denied due process.

Respondent’s Comment was submitted to the OCA for evaluation, report and recommendation.15

OCA submitted its Memorandum16 dated August 11, 2005 stating therein that it was adopting its
earlier findings contained in its Memorandum dated September 3, 2004. Based on the documents
presented, it can not be denied that at the time Judge Quitain applied as an RTC judge, he had full
knowledge of A.O. No. 183 dismissing him from government service. Considering that Judge
Quitain’s explanations in his Comment are but mere reiterations of his allegations in the previous
letters to the OCA, the OCA maintained its recommendation that Judge Quitain be dismissed from
the service with prejudice to his reappointment to any position in the government, including
government-owned or controlled corporations, and with forfeiture of all retirement benefits except
accrued leave credits.

The Court fully agrees with the disquisition and the recommendation of the OCA.

It behooves every prospective appointee to the Judiciary to apprise the appointing authority of every
matter bearing on his fitness for judicial office, including such circumstances as may reflect on his
integrity and probity. These are qualifications specifically required of appointees to the Judiciary by
Sec. 7(3), Article VIII of the Constitution.17

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

Respondent’s contentions utterly lack merit.

No amount of explanation or justification can erase the fact that Judge Quitain was dismissed from
the service and that he deliberately withheld this information. His insistence that he had no
knowledge of A.O. No. 183 is belied by the newspaper items published relative to his dismissal. It
bears emphasis that in the Mindanao Times dated April 18, 1995,18 Judge Quitain stated in one of
his interviews that "I was dismissed from the (Napolcom) office without due process." It also reads:
"Quitain, who was one of the guests in yesterday’s Kapehan sa Dabaw, wept unabashedly as he
read his prepared statement on his dismissal from the government service." Neither can we give
credence to the contention that he was denied due process. The documents submitted by the
NAPOLCOM to the OCA reveal that Commissioner Alexis C. Canonizado, Chairman Ad Hoc
Committee, sent him summons on March 19, 1993 informing him that an administrative complaint
had been filed against him and required him to file an answer.19 Then on March 29, 1993,
respondent, through his counsel, Atty. Pedro Castillo, filed an Answer.20 In administrative
proceedings, the essence of due process is simply an opportunity to be heard, or an opportunity to
explain one’s side or opportunity to seek a reconsideration of the action or ruling complained of.
Where opportunity to be heard either through oral arguments or through pleadings is accorded, there
is no denial of due process.21Furthermore, as we have earlier mentioned and which Judge Quitain
ought to know, cessation from office by his resignation does not warrant the dismissal of the
administrative complaint filed against him while he was still in the service nor does it render said
administrative case moot and academic.22 Judge Quitain was removed from office after investigation
and was found guilty of grave misconduct. His dismissal from the service is a clear proof of his lack
of the required qualifications to be a member of the Bench.

More importantly, it is clear that Judge Quitain deliberately misled the JBC in his bid to gain an
exalted position in the Judiciary. In Office of the Court Administrator v. Estacion, Jr.,23 this Court
stressed:

x x x The important consideration is that he had a duty to inform the appointing authority and this
Court of the pending criminal charges against him to enable them to determine on the basis of his
record, eligibility for the position he was seeking. He did not discharge that duty. His record did not
contain the important information in question because he deliberately withheld and thus effectively
hid it. His lack of candor is as obvious as his reason for the suppression of such a vital fact, which he
knew would have been taken into account against him if it had been disclosed."
Thus, we find respondent guilty of dishonesty. "Dishonesty" means "disposition to lie, cheat or
defraud; unworthiness; lack of integrity."24

Section 8(2), Rule 14025 of the Rules of Court classifies dishonesty as a serious charge. Section 11,
same Rules, provides the following sanctions:

SEC. 11. Sanctions. – A. If the respondent is guilty of a serious charge, any of the following
sanctions may be imposed:

1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may
determine, and disqualification from reinstatement or appointment to any public office,
including government-owned or controlled corporations. Provided, however, That the
forfeiture of benefits shall in no case include accrued leave credits;

2. Suspension from office without salary and other benefits for more than three (3) but not
exceeding six (6) months; or

3. A fine of not less than ₱20,000.00 but not exceeding P40,000.00.

In Re: Inquiry on the Appointment of Judge Enrique A. Cube,26 we held:

By his concealment of his previous dismissal from the public service, which the Judicial and Bar
Council would have taken into consideration in acting on his application, Judge Cube committed an
act of dishonesty that rendered him unfit to be appointed to, and to remain now in, the Judiciary he
has tarnished with his falsehood.

WHEREFORE, Judge Enrique A. Cube of the Metropolitan Trial Court of Manila is DISMISSED with
prejudice to his reappointment to any position in the government, including government-owned or
controlled corporations, and with forfeiture of all retirement benefits. This decision is immediately
executory.

We cannot overemphasize the need for honesty and integrity on the part of all those who are in the
service of the Judiciary.27 We have often stressed that the conduct required of court personnel, from
the presiding judge to the lowliest clerk of court, must always be beyond reproach and circumscribed
with the heavy burden of responsibility as to let them be free from any suspicion that may taint the
Judiciary. We condemn, and will never countenance any conduct, act or omission on the part of all
those involved in the administration of justice, which would violate the norm of public accountability
and diminish or even just tend to diminish the faith of the people in the Judiciary.28
lav vphil

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

However, on August 9, 2007, the Court received a letter from Judge Quitain addressed to the Chief
Justice stating that he is tendering his irrevocable resignation effective immediately as Presiding
Judge of the Regional Trial Court, Branch 10, Davao City. Acting on said letter, "the Court Resolved
to accept the irrevocable resignation of Judge Jaime V. Quitain effective August 15, 2007, without
prejudice to the decision of the administrative case."29

Verily, the resignation of Judge Quitain which was accepted by the Court without prejudice does not
render moot and academic the instant administrative case. The jurisdiction that the Court had at the
time of the filing of the administrative complaint is not lost by the mere fact that the respondent judge
by his resignation and its consequent acceptance – without prejudice – by this Court, has ceased to
be in office during the pendency of this case. The Court retains its authority to pronounce the
respondent official innocent or guilty of the charges against him. A contrary rule would be fraught
with injustice and pregnant with dreadful and dangerous implications.30 Indeed, if innocent, the
respondent official merits vindication of his name and integrity as he leaves the government which
he has served well and faithfully; if guilty, he deserves to receive the corresponding censure and a
penalty proper and imposable under the situation.31

WHEREFORE, in view of our finding that JUDGE JAIME V. QUITAIN is guilty of grave misconduct
which would have warranted his dismissal from the service had he not resigned during the pendency
of this case, he is hereby meted the penalty of a fine of ₱40,000.00. It appearing that he has yet to
apply for his retirement benefits and other privileges, if any, the Court likewise ORDERS the
FORFEITURE of all benefits, except earned leave credits which Judge Quitain may be entitled to,
and he is PERPETUALLY DISQUALIFIED from reinstatement and appointment to any branch,
instrumentality or agency of the government, including government-owned and/or controlled
corporations.

This Decision is immediately executory.

Let a copy of this Decision be attached to Judge Jaime V. Quitain’s 201 File.

SO ORDERED.
Adm. Case No. 2984 August 31, 2007

RODOLFO M. BERNARDO, Complainant,

vs.
ATTY. ISMAEL F. MEJIA, Respondent.

RESOLUTION

NACHURA, J.:

Before the Court is a petition for review of Administrative Case No. 2984 with plea for reinstatement
in the practice of law filed by Ismael F. Mejia (Mejia) who is already seventy-one years old and
barred from the practice of law for fifteen years.

The antecedent facts that led to Mejia’s disbarment are as follows.

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

1) misappropriating and converting to his personal use:

a) part of the sum of ₱27,710.00 entrusted to him for payment of real estate taxes on
property belonging to Bernardo, situated in a subdivision known as Valle Verde I; and

b) part of another sum of ₱40,000.00 entrusted to him for payment of taxes and
expenses in connection with the registration of title of Bernardo to another property in
a subdivision known as Valle Verde V;

2) falsification of certain documents, to wit:

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

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

c) a deed of assignment purportedly executed by the spouses Tomas and Remedios

Pastor, in Bernardo’s favor (Annex Q, par. 52, id.);

3) issuing a check, knowing that he was without funds in the bank, in payment of a loan
obtained from Bernardo in the amount of ₱50,000.00, and thereafter, replacing said check
with others known also to be insufficiently funded.1

On July 29, 1992, the Supreme Court En Banc rendered a Decision Per Curiam, the dispositive
portion of which reads:

WHEREFORE, the Court DECLARES the [sic] respondent, Atty. Ismael F. Mejia, guilty of all the
charges against him and hereby imposes on him the penalty of DISBARMENT. Pending finality of
this judgment, and effective immediately, Atty. Ismael F. Mejia is hereby SUSPENDED from the
practice of law. Let a copy of this Decision be spread in his record in the Bar Confidant’s Office, and
notice thereof furnished the Integrated Bar of the Philippines, as well as the Court Administrator who
is DIRECTED to inform all the Courts concerned of this Decision.
SO ORDERED.

On June 1, 1999, Mejia filed a Petition praying that he be allowed to reengage in the practice of law.
On July 6, 1999, the Supreme Court En Banc issued a Resolution denying the petition for
reinstatement.

On January 23, 2007, Mejia filed the present petition for review of Administrative Case No. 2984 with
a plea for reinstatement in the practice of law. No comment or opposition was filed against the
petition.2

Whether the applicant shall be reinstated in the Roll of Attorneys rests to a great extent on the sound
discretion of the Court. The action will depend on whether or not the Court decides that the public
interest in the orderly and impartial administration of justice will continue to be preserved even with
the applicant’s reentry as a counselor at law. The applicant must, like a candidate for admission to
the bar, satisfy the Court that he is a person of good moral character, a fit and proper person to
practice law. The Court will take into consideration the applicant’s character and standing prior to the
disbarment, the nature and character of the charge/s for which he was disbarred, his conduct
subsequent to the disbarment, and the time that has elapsed between the disbarment and the
application for reinstatement.3

In the petition, Mejia acknowledged his indiscretions in the law profession. Fifteen years had
1avv phi 1

already elapsed since Mejia’s name was dropped from the Roll of Attorneys. At the age of seventy-
one, he is begging for forgiveness and pleading for reinstatement. According to him, he has long
repented and he has suffered enough. Through his reinstatement, he wants to leave a legacy to his
children and redeem the indignity that they have suffered due to his disbarment.

After his disbarment, he put up the Mejia Law Journal, a publication containing his religious and
social writings. He also organized a religious organization and named it "El Cristo Movement and
Crusade on Miracle of Heart and Mind."

The Court is inclined to grant the present petition. Fifteen years has passed since Mejia was
punished with the severe penalty of disbarment. Although the Court does not lightly take the bases
for Mejia’s disbarment, it also cannot close its eyes to the fact that Mejia is already of advanced
years. While the age of the petitioner and the length of time during which he has endured the
ignominy of disbarment are not the sole measure in allowing a petition for reinstatement, the Court
takes cognizance of the rehabilitation of Mejia. Since his disbarment in 1992, no other transgression
has been attributed to him, and he has shown remorse. Obviously, he has learned his lesson from
this experience, and his punishment has lasted long enough. Thus, while the Court is ever mindful of
its duty to discipline its erring officers, it also knows how to show compassion when the penalty
imposed has already served its purpose. After all, penalties, such as disbarment, are imposed not to
punish but to correct offenders.

We reiterate, however, and remind petitioner that the practice of law is a privilege burdened with
conditions. Adherence to the rigid standards of mental fitness, maintenance of the highest degree of
morality and faithful compliance with the rules of the legal profession are the continuing
requirements for enjoying the privilege to practice law.4

WHEREFORE, in view of the foregoing, the petition for reinstatement in the Roll of Attorneys by
Ismael F. Mejia is hereby GRANTED.

SO ORDERED.
A.C. No. 6697 July 25, 2006

ZOILO ANTONIO VELEZ, complainant,

vs.
ATTY. LEONARD S. DE VERA, respondent.

x-------------------------x

Bar Matter No. 1227 July 25, 2006

RE: OATH-TAKING OF ATTY. LEONARD S. DE VERA, INCOMING PRESIDENT OF THE

INTEGRATED BAR OF THE PHILIPPINES.

x-------------------------x

A.M. No. 05-5-15-SC July 25, 2006

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.

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 Vera's moral fitness to remain as a member of the Philippine
Bar, the second refers to Atty. de Vera's 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) respondent's alleged misrepresentation in concealing the suspension order

rendered against him by the State Bar of California; and
 2) respondent's 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 country's 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 respondent's
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 respondent's 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 client's money. Complainant argued that the respondent failed to
present evidence that the Supreme Court of California accepted the latter's 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 Vera's 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 IBP's 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 Board's
14 January 2005 Resolution.5

On 15 April 2005, Bar Matter No. 1227, pertaining to Atty. de Vera's 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 10th 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 Board's
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 10th National Convention of Lawyers, held at CAP-Camp John
Hay Convention Center on 22 April 2005, making it appear that the decision of the
IBP Board of Governors to withdraw the PETITION docketed as "Integrated Bar of
the Philippines, Jose Anselmo I. Cadiz, et al. vs. The Senate of the Philippines, et al.,
Petition for Certiorari and Prohibition With Prayer for the Issuance of A Temporary
Restraining Order or Writ of Preliminary Injunction, S.C.-R. 165108", was due to
influence and pressure from the Supreme Court of the Philippines;
 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 10th 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 10th National Convention in Baguio City of withholding from
him a copy of Supreme Court Resolution, dated 25 January 2005, granting the
withdrawal of the PETITION, thereby creating the wrong impression that the IBP
National President deliberately prevented him from taking the appropriate remedies
with respect thereto, thus compromising the reputation and integrity of the IBP
National President and the IBP as a whole.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:

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. The denial of my right to an impartial judge. Governor Rivera was my accuser,

prosecutor, and judge all at the same time.

7. Gov. Rivera's prejudgment of my case becomes even more evident because when
his motion to expel me was lost in a 5-3 votes (due to his inhibition to vote), Gov.
Rivera asked for another round of voting so he can vote to support his own
complaint and motion to expel me.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 Vera's actuation during the Plenary Session was "the last
straw that broke the camel's 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 Vera's 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. Salazar's election.20 IBP National President Cadiz also requested, among
other things, that Atty. Salazar's 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 Comment23 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 Convention's
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 Court's
Resolution granting the withdrawal of the Petition questioning the legality of Republic Act No. 9227,
Atty. de Vera avowed that he made no such remarks. As regards the election of a new IBP EVP,
Atty. de Vera contended that the said election was illegal as it was contrary to the provisions of the
IBP By-Laws concerning national officers, to wit:

Section. 49. Term of office. - The President and the Executive Vice President shall hold
office for a term of two years from July 1 following their election until 30 June of their second
year in office and until their successors shall have been duly chosen and qualified.

In the event the President is absent or unable to act, his functions and duties shall be
performed by the Executive Vice President, and in the event of death, resignation, or
removal of the President, the Executive Vice President shall serve as Acting President for
the unexpired portion of the term. In the event of death, resignation, removal or disability of
both the President and the Executive Vice President, the Board of Governors shall elect an
Acting President to hold office for the unexpired portion of the term or during the period of
disability.
 Unless otherwise provided in these By-Laws, all other officers and employees appointed by
the President with the consent of the Board shall hold office at the pleasure of the Board or
for such term as the Board may fix.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 Vera's 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 Board's 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
Rivera's Letter-Complaint the day before the said meeting; was furnished a copy of the said
Meeting's 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 Vera's 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 Court's Ruling

AC No. 6697

In his Memorandum26 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) respondent's alleged misrepresentation in concealing the suspension order

rendered against him by the State Bar in California; and

2) respondent's alleged violation of the so-called "rotation rule" enunciated in

Administrative Matter No. 491 dated 06 October 1989 (In the Matter: 1989 IBP
Elections).

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

"As for the administrative complaint filed against him by one of his clients when he
was practicing law in California, which in turn compelled him to surrender his
California license to practice law, he maintains that it cannot serve as basis for
determining his moral qualification (or lack of it) to run for the position he is aspiring
for. He explains that there is as yet no final judgment finding him guilty of the
administrative charge, as the records relied upon by the petitioners are mere
preliminary findings of a hearing referee which are recommendatory findings of an
IBP Commissioner on Bar Discipline which are subject to the review of and the final
decision of the Supreme Court. He also stresses that the complainant in the
California administrative case has retracted the accusation that he misappropriated
the complainant's 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 Parañaque 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 [Court's] 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 Court's supervisory power
over courts while, in the second case, he was disciplined as a lawyer under the Court's
plenary authority over membersof the legal profession.

In subsequent decisions of this Court, however, it appears that res judicata still applies in
administrative cases. Thus, in the case of Atty. Eduardo C. De Vera vs. Judge William
Layague (Administrastive Matter No. RTJ-93-986), this Court ruled that:

"While double jeopardy does not lie in administrative cases, it would be contrary to
equity and substantial justice to penalize respondent judge a second time for an act
which he had already answered for.";

Likewise, in the recent case of Executive Judge Henry B. Basilia vs. Judge Amado L.
Becamon, Lolita Delos Reyes and Eddie Delos Reyes (Administrative Matter No. MTJ-02-
1404, 14 December 2004), this Court held that:
 "Applying the principle of res judicata or bar by prior judgment, the present
administrative case becomes dismissible.

xxx

Under the said doctrine, a matter that has been adjudicated by a court of competent
jurisdiction must be deemed to have been finally and conclusively settled if it arises
in any subsequent litigation between the same parties and for the same cause. It
provides that

[a] final judgment on the merits rendered by a court of competent jurisdiction is

conclusive as to the rights of the parties and their privies; and constitutes an absolute
bar to subsequent actions involving the same claim, demand, or cause of action. Res
judicata is based on the ground that the party to be affected, or some other with
whom he is in privity, has litigated the same matter in the former action in a court of
competent jurisdiction, and should not be permitted to litigate it again.

This principle frees the parties from undergoing all over again the rigors of
unnecessary suits and repetitious trials. At the same time, it prevents the clogging of
court dockets. Equally important, res judicata stabilizes rights and promotes the rule
of law."

In the instant administrative case, it is clear that the issues raised by the complainant had
already been resolved by this Court in an earlier administrative case. The complainant's
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 Vera's alleged violation or circumvention of the IBP By-
laws. In the present administrative case, the primary cause of action is Atty. de Vera's alleged
violation of lawyer's 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 Vera's 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 Court's 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 court's action includes any of the
grounds for disbarment or suspension in this jurisdiction. We likewise held that the judgment of the
foreign court merely constitutes prima facie evidence of unethical acts as lawyer.

The Maquera ruling is consistent with Rule 39, Section 48, of the Rules of Court which provides:

Sec. 48. Effect of foreign judgments or final orders. - The effect of a judgment or final order
of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is as
follows:

xxxx

(b) In case of a judgment or final order against a person, the judgment or final order is
presumptive evidence of a right as between the parties and their successors in interest by a
subsequent title.

In either case, the judgment or final order may be repelled by evidence of a want of
jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.

In Philippine Aluminum Wheels, Inc. v. Fasgi Enterprises, Inc.,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
client's funds as the latter's 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 client's 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 complainant's allegation in the latter's 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 client's 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. Ulep45 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 client's 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 latter's 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. Alovera47 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
client's funds as it was an acceptance of the probability that Atty. de Vera might, indeed, use his
client's 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 client's money without the latter's
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 complainant's 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
latter's 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 latter's 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 Vera's transfer of membership from the Pasay, Parañaque, Las
Piñas 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 Vera's 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 Vera's 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 Lawyer's Oath do not prohibit nor punish lawyers from aspiring to be IBP National
President and from doing perfectly legal acts in accomplishing such goal.

Bar Matter No. 1227

Administrative Matter No. 05-5-15-SC

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

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

i. Whether the IBP Board of Governors complied with administrative due process in
removing Atty. de Vera.

ii. Whether the IBP removed Atty. De Vera for just and valid cause.

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 Vera's 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 one's 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 essential62 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 Vera's 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 Vera's
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 Convention's 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 Vera's 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 IBP's 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 latter's actuations
during the 10th National IBP Convention were detrimental to the role of the IBP Board as the
governing body of the IBP. When the IBP Board is not seen by the bar and the public as a cohesive
unit, it cannot effectively perform its duty of helping the Supreme Court enforce the code of legal
ethics and the standards of legal practice as well as improve the administration of justice.

In view of the importance of retaining group cohesiveness and unity, the expulsion of a member of
the board who insists on bringing to the public his disagreement with a policy/resolution approved by
the majority after due discussion, cannot be faulted. The effectiveness of the board as a governing
body will be negated if its pronouncements are resisted in public by a board member.

Indeed, when a member of a governing body cannot accept the voice of the majority, he should
resign therefrom so that he could criticize in public the majority opinion/decision to his heart's
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
Vera's removal from the Board of Governors, automatically disqualified him from acting as IBP EVP.
To insist otherwise would be contrary to Section 47 of the IBP By-Laws.

The Court will not interfere with the Resolution of the IBP Board to remove Atty. de Vera
since it was rendered without grave abuse of discretion

While it is true that the Supreme Court has been granted an extensive power of supervision over the
IBP,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 By-Laws. The
IBP By-Laws were precisely drafted and promulgated so as to define the powers and functions of the
IBP and its officers, establish its organizational structure, and govern relations and transactions
among its officers and members. With these By-Laws in place, the Supreme Court could be assured
that the IBP shall be able to carry on its day-to-day affairs, without the Court's 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 presumption66 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 Board's action or resolution.

There is no question that the IBP Board has the authority to remove its members as provided in
Article VI, Section 4467 of the IBP By-Laws. Issue arises only as to whether the IBP Board abused its
authority and discretion in resolving to remove Atty. de Vera from his post as an IBP Governor and
EVP. As has been previously established herein, Atty. de Vera's 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 Board's 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),72and 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 2005-2007 Board in dealing
with the situation within the bounds of the IBP Rules and By-Laws.

The election by the 2003-2005 IBP Board of Governors of a new EVP, who will assume the
Presidency for the term 2005-2007, was well within the authority and prerogative granted to the
Board by the IBP By-Laws, particularly Article VII, Section 47, which provides that "[t]he EVP shall
automatically become President for the next succeeding term." The phrase "for the next succeeding
term" necessarily implies that the EVP that should succeed Atty. Cadiz as IBP President for the next
succeeding term (i.e., 2005-2007) should come from the members of the 2003-2005 IBP Board of
Governors. Hence, in A.M. No. 05-7-19-SC, we restrained now IBP EVP Feliciano Bautista from
assuming the position of Acting President because we have yet to resolve the question as to who
shall succeed Atty. Cadiz from the 2003-2005 IBP Board of Governors.

Accordingly, the elections of Governor Santiago on 13 June 2005 as IBP EVP, and thereafter,
Governor Salazar on 25 June 2005, as the new IBP EVP, upon the relinquishment of Gov. Santiago
of the position, were valid.

Neither can this Court give credence to the argument of Atty. De Vera that, assuming his removal as
IBP Governor and EVP was valid, his replacement as IBP EVP should come from Eastern Mindanao
Region pursuant to the rotation rule set forth in Article VII, Section 47, of the IBP By-Laws.

According to Article VII, Section 47, of the IBP By-Laws, the EVP shall be chosen by the Board of
Governors from among the nine Regional Governors, as much as practicable, on a rotation basis.
This is based on our pronouncements in Bar Matter 491, wherein we ruled:

"ORDER

xxxx

3. The former system of having the IBP President and Executive Vice-President elected by
the Board of Governors (composed of the governors of the nine [9] IBP regions) from among
themselves (as provided in Sec. 47, Art. VII, Original IBP By-Laws) should be restored. The
right of automatic succession by the Executive Vice-President to the presidency upon the
expiration of their two-year term (which was abolished by this Court's resolution dated July 9,
1985 in Bar Matter No. 287) should be as it is hereby restored.

4. At the end of the President's two-year term, the Executive Vice-President shall
automatically succeed to the office of president. The incoming board of governors shall then
elect an Executive Vice-President from among themselves. The position of Executive
Vice-President shall be rotated among the nine (9) IBP regions. One who has served as
president may not run for election as Executive 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 By-Laws.

In the case at bar, the rotation rule was duly complied with since upon the election of Atty. De Vera
as IBP EVP, each of the nine IBP regions had already produced an EVP and, thus, the rotation was
completed. It is only unfortunate that the supervening event of Atty. de Vera's 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 By-Laws 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 By-Laws, upon receipt
of this Resolution.

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

CYNTHIA ADVINCULA, Complainant,

vs.
ATTY. ERNESTO M. MACABATA, Respondent.

RESOLUTION

CHICO-NAZARIO, J.:

Before Us is a complaint1 for disbarment filed by Cynthia Advincula against respondent Atty. Ernesto
M. Macabata, charging the latter with Gross Immorality.

Complainant alleged the following:

Sometime on 1st week of December 2004 complainant [Cynthia Advincula] seek the legal advice of
the respondent [Atty. Macabata], regarding her collectibles from Queensway Travel and Tours. As
promised, he sent Demand Letter dated December 11, 2004 (copy attached as Annex "I") to the
concerned parties.

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

Again, on March 6, 2005, at about past 10:00 in the morning, she met respondent at Starbucks
coffee shop in West Avenue, Quezon City to finalize the draft of the complaint to be filed in Court.
After the meeting, respondent offered again a ride, which he usually did every time they met. Along
the way, complainant was wandering (sic) why she felt so sleepy where in fact she just got up from
bed a few hours ago. At along Roosevelt Avenue immediately after corner of Felipe St., in San
Francisco Del Monte, Quezon City when she was almost restless respondent stopped his car and
forcefully hold (sic) her face and kissed her lips while the other hand was holding her breast.
Complainant even in a state of shocked (sic) succeeded in resisting his criminal attempt and
immediately manage (sic) to go (sic) out of the car.

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

Sent by complainant - forget the case. I decided to

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

On the following day, March 7, 2005 respondent sent another message to complainant at 3:55:32
pm saying "I don’t know wat 2 do s u may 4give me. "Im realy sri. Puede bati na tyo." (I don’t know
what to do so you may forgive me. I’m really sorry. Puede bati na tayo).

Respondent replied "talk to my lawyer in due time." Then another message was received by her at
4:06:33 pm saying "Ano k ba. I’m really sri. Pls. Nxt ime bhave n me." (Ano ka ba. I’m really sorry.
Please next time behave na ko), which is a clear manifestation of admission of guilt.2

In his answer,3 respondent admitted that he agreed to provide legal services to the complainant; that
he met with complainant on 10 February 2005 and 6 March 2005, to discuss the relevant matters
relative to the case which complainant was intending to file against the owners of Queensway Travel
and Tours for collection of a sum of money; that on both occasions, complainant rode with him in his
car where he held and kissed complainant on the lips as the former offered her lips to him; and, that
the corner of Cooper Street and Roosevelt Avenue, where he dropped off the complainant, was a
busy street teeming with people, thus, it would have been impossible to commit the acts imputed to
him.

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

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

On 30 September 2005, Investigating Commissioner Dennis A. B. Funa submitted his Report and
Recommendation,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

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

Simple as the facts of the case may be, the manner by which we deal with respondent’s actuations
shall have a rippling effect on how the standard norms of our legal practitioners should be defined.
Perhaps morality in our liberal society today is a far cry from what it used to be. This permissiveness
notwithstanding, lawyers, as keepers of public faith, are burdened with a high degree of social
responsibility and, hence, must handle their personal affairs with greater caution.

The Code of Professional Responsibility provides:

CANON I – x x x

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

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

xxxx

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

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

Lawyers have been repeatedly reminded that their possession of good moral character is a
continuing condition to preserve their membership in the Bar in good standing. The continued
possession of good moral character is a requisite condition for remaining in the practice of law.6 In
Aldovino v. Pujalte, Jr.,7 we emphasized that:

This Court has been exacting in its demand for integrity and good moral character of members of the
Bar. They are expected at all times to uphold the integrity and dignity of the legal profession and
refrain from any act or omission which might lessen the trust and confidence reposed by the public in
the fidelity, honesty, and integrity of the legal profession. Membership in the legal profession is a
privilege. And whenever it is made to appear that an attorney is no longer worthy of the trust and
confidence of the public, it becomes not only the right but also the duty of this Court, which made
him one of its officers and gave him the privilege of ministering within its Bar, to withdraw the
privilege.
It is the bounden duty of lawyers to adhere unwaveringly to the highest standards of morality. The
legal profession exacts from its members nothing less. Lawyers are called upon to safeguard the
integrity of the Bar, free from misdeeds and acts constitutive of malpractice. Their exalted positions
as officers of the court demand no less than the highest degree of morality.8 We explained
in Barrientos v. Daarol9 that, "as officers of the court, lawyers must not only in fact be of good moral
character but must also be seen to be of good moral character and leading lives in accordance with
the highest moral standards of the community."

Lawyers are expected to abide by the tenets of morality, not only upon admission to the Bar but also
throughout their legal career, in order to maintain their good standing in this exclusive and honored
fraternity. They may be suspended from the practice of law or disbarred for any misconduct, even if
it pertains to his private activities, as long as it shows him to be wanting in moral character, honesty,
probity or good demeanor.10

In Bar Matter No. 1154,11 good moral character was defined as what a person really is, as
distinguished from good reputation, or from the opinion generally entertained of him, or the estimate
in which he is held by the public in the place where he is known. Moral character is not a subjective
term but one which corresponds to objective reality.

It should be noted that the requirement of good moral character has four ostensible purposes,
namely: (1) to protect the public; (2) to protect the public image of lawyers; (3) to protect prospective
clients; and (4) to protect errant lawyers from themselves.12

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

In his Answer,13 respondent confessed, thus:

27. When she was about to get off the car, I said can I kiss you goodnight. She offered her left cheek
and I kissed it and with my left hand slightly pulled her right face towards me and kissed her gently
on the lips. We said goodnight and she got off the car.

xxxx

35. When I stopped my car I said okay. I saw her offered (sic) her left cheek and I lightly kissed it
and with my right hand slightly pulled her right cheek towards me and plant (sic) a light kiss on her
lips. There was no force used. No intimidation made, no lewd designs displayed. No breast holding
was done. Everything happened very spontaneously with no reaction from her except saying "sexual
harassment."

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

ATTY. MACABATA:

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

COMM. FUNA:

February 10 iyan.

xxxx

ATTY. MACABATA:

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

COMM. FUNA:

Pardon?

ATTY. MACABATA:

I saw her offered her left cheek like that, so I kissed her again and then with the use of my left hand,
pushed a little bit her face and then kissed her again softly on the lips and that’s it. x x
x.14 (Emphases supplied.)

It is difficult to state with precision and to fix an inflexible standard as to what is "grossly immoral
conduct" or to specify the moral delinquency and obliquity which render a lawyer unworthy of
continuing as a member of the bar. The rule implies that what appears to be unconventional
behavior to the straight-laced may not be the immoral conduct that warrants disbarment.15

In Zaguirre v. Castillo,16 we reiterated the definition of immoral conduct, as such conduct which is so
willful, flagrant, or shameless as to show indifference to the opinion of good and respectable
members of the community. Furthermore, for such conduct to warrant disciplinary action, the same
must not simply be immoral, but grossly immoral. It must be so corrupt as to constitute a criminal act,
or so unprincipled as to be reprehensible to a high degree or committed under such scandalous or
revolting circumstances as to shock the common sense of decency.

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

In Toledo v. Toledo,17 a lawyer was disbarred from the practice of law, when he abandoned his
lawful wife and cohabited with another woman who had borne him a child.
In Obusan v. Obusan, Jr.,18 a lawyer was disbarred after complainant proved that he had abandoned
her and maintained an adulterous relationship with a married woman. This court declared that
respondent failed to maintain the highest degree of morality expected and required of a member of
the bar.

In Dantes v. Dantes,19 respondent’s act of engaging in illicit relationships with two different women
during the subsistence of his marriage to the complainant constitutes grossly immoral conduct
warranting the imposition of appropriate sanctions. Complainant’s testimony, taken in conjunction
with the documentary evidence, sufficiently established that respondent breached the high and
exacting moral standards set for members of the law profession.

In Delos Reyes v. Aznar,20 it was ruled that it was highly immoral of respondent, a married man with
children, to have taken advantage of his position as chairman of the college of medicine in asking
complainant, a student in said college, to go with him to Manila where he had carnal knowledge of
her under the threat that she would flank in all her subjects in case she refused.

In Cojuangco, Jr. v. Palma,21 respondent lawyer was disbarred when he abandoned his lawful wife
and three children, lured an innocent woman into marrying him and misrepresented himself as a
"bachelor" so he could contract marriage in a foreign land.

In Macarrubo v. Macarrubo,22 respondent entered into multiple marriages and then resorted to legal
remedies to sever them. There, we ruled that "[s]uch pattern of misconduct by respondent
undermines the institutions of marriage and family, institutions that this society looks to for the
rearing of our children, for the development of values essential to the survival and well-being of our
communities, and for the strengthening of our nation as a whole." As such, "there can be no other
fate that awaits respondent than to be disbarred."

In Tucay v. Tucay,23 respondent contracted marriage with another married woman and left
complainant with whom he has been married for thirty years. We ruled that such acts constitute "a
grossly immoral conduct and only indicative of an extremely low regard for the fundamental ethics of
his profession," warranting respondent’s disbarment.

In Villasanta v. Peralta,24 respondent married complainant while his first wife was still alive, their
marriage still valid and subsisting. We held that "the act of respondent of contracting the second
marriage is contrary to honesty, justice, decency and morality." Thus, lacking the good moral
character required by the Rules of Court, respondent was disqualified from being admitted to the
bar.

In Cabrera v. Agustin,25 respondent lured an innocent woman into a simulated marriage and
thereafter satisfied his lust. We held that respondent failed to maintain that degree of morality and
integrity which, at all times, is expected of members of the bar. He is, therefore, disbarred from the
practice of law.

Immorality has not been confined to sexual matters, but includes conduct inconsistent with rectitude,
or indicative of corruption, indecency, depravity and dissoluteness; or is willful, flagrant, or
shameless conduct showing moral indifference to opinions of respectable members of the
community, and an inconsiderate attitude toward good order and public welfare.26

Guided by the definitions above, we perceived acts of kissing or beso-beso on the cheeks as mere
gestures of friendship and camaraderie,27 forms of greetings, casual and customary. The acts of
respondent, though, in turning the head of complainant towards him and kissing her on the lips are
distasteful. However, such act, even if considered offensive and undesirable, cannot be considered
grossly immoral.

Complainant’s bare allegation that respondent made use and took advantage of his position as a
lawyer to lure her to agree to have sexual relations with him, deserves no credit. The burden of proof
rests on the complainant, and she must establish the case against the respondent by clear,
convincing and satisfactory proof,28 disclosing a case that is free from doubt as to compel the
exercise by the Court of its disciplinary power.29 Thus, the adage that "he who asserts not he who
denies, must prove."30 As a basic rule in evidence, the burden of proof lies on the party who makes
the allegations—ei incumbit probation, qui decit, non qui negat; cum per rerum naturam factum
negantis probation nulla sit.31 In the case at bar, complainant miserably failed to comply with the
burden of proof required of her. A mere charge or allegation of wrongdoing does not suffice.
Accusation is not synonymous with guilt.32

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

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

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

The question as to what disciplinary s anction should be imposed against a lawyer found guilty of
misconduct requires consideration of a number of factors.33 When deciding upon the appropriate
sanction, the Court must consider that the primary purposes of disciplinary proceedings are to
protect the public; to foster public confidence in the Bar; to preserve the integrity of the profession;
and to deter other lawyers from similar misconduct.34 Disciplinary proceedings are means of
protecting the administration of justice by requiring those who carry out this important function to be
competent, honorable and reliable men in whom courts and clients may repose confidence.35 While it
is discretionary upon the Court to impose a particular sanction that it may deem proper against an
erring lawyer, it should neither be arbitrary and despotic nor motivated by personal animosity or
prejudice, but should ever be controlled by the imperative need to scrupulously guard the purity and
independence of the bar and to exact from the lawyer strict compliance with his duties to the court,
to his client, to his brethren in the profession and to the public.

The power to disbar or suspend ought always to be exercised on the preservative and not on the
vindictive principle, with great caution and only for the most weighty reasons and only on clear cases
of misconduct which seriously affect the standing and character of the lawyer as an officer of the
court and member of the Bar. Only those acts which cause loss of moral character should merit
disbarment or suspension, while those acts which neither affect nor erode the moral character of the
lawyer should only justify a lesser sanction unless they are of such nature and to such extent as to
clearly show the lawyer’s unfitness to continue in the practice of law. The dubious character of the
act charged as well as the motivation which induced the lawyer to commit it must be clearly
demonstrated before suspension or disbarment is meted out. The mitigating or aggravating
circumstances that attended the commission of the offense should also be considered.36
Censure or reprimand is usually meted out for an isolated act of misconduct of a lesser nature. It is
also imposed for some minor infraction of the lawyer’s duty to the court or the client.37 In the Matter
of Darell Adams,38 a lawyer was publicly reprimanded for grabbing a female client, kissing her, and
raising her blouse which constituted illegal conduct involving moral turpitude and conduct which
adversely reflected on his fitness to practice law.

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

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

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

SO ORDERED.
A.C. No. 7591 March 20, 2012

CORAZON T. NEVADA, Complainant,

vs.
ATTY. RODOLFO D. CASUGA, Respondent.

DECISION

VELASCO, JR., J.:

Corazon T. Nevada (Nevada) seeks the disbarment of Atty. Rodolfo D. Casuga (Casuga) for alleged
violation of his lawyer’s oath and the 2004 Rules on Notarial Practice (Notarial Rules).

The Facts

Nevada is the principal stockholder of C.T. Nevada & Sons, Inc., a family corporation which operates
the Mt. Crest Hotel located at Legarda Road, Baguio City (the Hotel).

In her affidavit-complaint1 dated June 28, 2007, with annexes, Nevada alleges that she and Casuga
are members of the One in Jesus Christ Church, a religious group which counts the latter as one of
its "elders." According to Nevada, she has allowed the use of one of the Hotel’s functions rooms for
church services. And in time, Casuga was able to gain her trust and confidence.

Nevada further alleges that unbeknownst to her, Casuga, sometime in 2006, started to represent
himself as the administrator of the Hotel. In fact, on March 1, 2006, he entered into a contract of
lease2 with a certain Jung Jong Chul (Chul) covering an office space in the Hotel. Notably, Casuga
signed the lease contract over the printed name of one Edwin T. Nevada and notarized the
document himself.

Annex "B"3 of the affidavit-complaint is a notarized letter dated May 15, 2007, wherein Chul attested
that he gave Casuga, upon contract signing, the amount of ninety thousand pesos (PhP 90,000) as
rental deposit for the office space. The amount thus deposited, so Nevada claims, was never turned
over to her or to C.T. Nevada & Sons, Inc.

Nevada adds that, in the course of their acquaintanceship, Casuga was able to acquire from her
several pieces of jewelry: a ¾ K diamond solitaire ring, earrings with three (3) diamonds each and a
ring with three (3) diamonds, with an aggregate value of three hundred thousand pesos (PhP
300,000), and a solid gold Rolex watch with diamond dials valued at twelve thousand US dollars
(USD 12,000). Casuga took possession of the valuables purportedly with the obligation of selling
them and to remit any proceeds to Nevada. However, despite repeated demands by Nevada for
Casuga to return the valuables or otherwise remit the proceeds of the sale, no jewelry or money was
ever returned.

In compliance with a directive from the Court, Casuga submitted an Affidavit4 dated December 5,
2007, as comment on the administrative complaint. In it, Casuga claims that Nevada informally
instituted him as the administrator of the Hotel in a limited capacity but denied receiving the PhP
90,000 from Chul. With regard to the pieces of jewelry and the Rolex watch, Casuga stated that
Nevada actually pawned them in a pawnshop and that she later asked his wife to redeem them
using their own money. Thereafter, Nevada asked Casuga’s wife to sell the valuables and reimburse
herself from the proceeds of the sale.
By Resolution of July 2, 2008, the Court, thru the Office of the Bar Confidant, referred the case to the
Integrated Bar of the Philippines (IBP) for investigation, report and recommendation/decision. The
case was docketed as CBD Case No. 7591 entitled Corazon T. Nevada v. Atty. Rodolfo D. Casuga.

On September 22, 2008, the IBP Commission on Bar Discipline (CBD), thru Commisioner Norberto
B. Ruiz, issued and sent out a Notice of Mandatory Conference directing the parties to appear
before it on October 23, 2008. On that date, only Nevada showed up, prompting the designated
commissioner to reset the conference to November 25, 2008, with a warning that he, Casuga, will be
declared in default and the case submitted for resolution should he again fail to appear. November
25, 2008 came, but only Nevada was present at the conference. Thus, CBD Case No. 7591 was
submitted for resolution on the basis of Nevada’s Position Paper dated December 3, 2008 and the
evidence she submitted consisting of, among others, twenty-one (21) official rental receipts Casuga
issued to at least two (2) lessors of the Hotel.

Results of the Investigation

In its Report and Recommendation5 dated January 14, 2009, the IBP CBD found Casuga guilty of the
charges against him, disposing as follows:

WHEREFORE, premises considered it is hereby recommended that Casuga be suspended for one
(1) year for gross misconduct, violation of the notarial law and infidelity in the custody of monies,
jewelries and a Rolex watch which pertain to the complainant and the family corporation.

The IBP Board of Governors later adopted and approved the CBD’s Report and Recommendation,
with modification, as indicated in Resolution No. XIX-2010-461 dated August 28, 2010, to wit:

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

with modification, the Report and Recommendation of the Investigating Commissioner of the above
entitled case x x x; and, finding the recommendation fully supported by the evidence on record and
the applicable laws and rules, and considering Casuga’s violation of Canon 16 of the Code of
Professional Responsibility, for misappropriation of his client[’s] funds and jewelries, for violation of
the Notarial Law when he signed as a party to a lease contract and notarized the same and also
taking into consideration the gravity of the offense committed, Atty. Rodolfo D. Casuga is hereby
SUSPENDED from the practice of law for four (4) years. In addition, Atty. Casuga is Suspended or
Disqualified from reappointment as Notary Public for two (2) years and Ordered to Return the
amount of P90,000.00, jewelries amounting to P300,000.00 and the Rolex watch valued at
$12,000.00 or its equivalent to Mr. Jung Jong Chul, otherwise his Suspension shall continue.

The CBD Report and Recommendation and a copy of Resolution No. XIX-2010-461 were
subsequently forwarded to the Court along with the records of the case.

In the meantime, Nevada, upon receipt of a copy of Resolution No. XIX-2010-461, wrote and asked
the IBP Board of Governors to rectify said resolution. Instead of the return of the amount of PhP
90,000, the jewelry and the Rolex watch or their monetary value to Chul, as directed in the
resolution, Nevada requested the return to be made in her favor. The letter-request of Nevada had
remained not acted upon owing obviously to the fact that the records of the case have been
transmitted to the Court in the interim.

The Issues
The principal but simple issues in this case pivot on the guilt of Casuga for the charges detailed or
implied in the basic complaint; and the propriety of the return to Nevada of the items, or their money
value, and the amount subject of the case.

The Court’s Ruling

We agree with the CBD’s inculpatory findings, as endorsed by the IBP Board of Governors, and the
recommended upgrading of penalties, as shown in Resolution No. XIX-2010-461, but subject to the
modification as shall be discussed.

Casuga is guilty of gross misconduct for misrepresenting himself

In re Horrilleno6 defined "gross misconduct" in the following wise:

The grounds for removal of a judge of first instance under Philippine law are two: (1) Serious
misconduct and (2) inefficiency. The latter ground is not involved in these proceedings. As to the
first, the law provides that "sufficient cause" must exist in the judgment of the Supreme Court
involving "serious misconduct." The adjective is "serious;" that is, important, weighty, momentous,
and not trifling. The noun is "misconduct;" that is, a transgression of some established and definite
rule of action, more particularly, unlawful behavior or gross negligence by the public officer. The
word "misconduct" implies a wrongful intention and not a mere error or judgment. For serious
misconduct to exist, there must be reliable evidence showing that the judicial acts complained of
were corrupt or inspired by an intention to violate the law, or were in persistent disregard of well-
known legal rules. (Lawlor vs. People [1874], 74 Ill., 228; Citizens' Insurance Co. vs. Marsh [1861],
41 Pa., 386; Miller vs. Roby [1880], 9 Neb., 471; Smith vs. Cutler [1833], 10 Wend. [N.Y.], 590; U.S.
vs. Warner [1848], 28 Fed. Cas. No. 16643; In re Tighe [1904], 89 N.Y. Supra., 719.) (Emphasis
supplied.)

The above definition was to be reiterated in Ajeno v. Judge Inserto,7 where the Court wrote:

In the case of In re [Horrilleno], 43 Phil. 212, this Court previously ruled that "For serious misconduct
to exist, there must be reliable evidence showing that the judicial acts complained of were corrupt or
inspired by an intention to violate the law, or were in persistent disregard of well-known legal rules."

Of similar tenor is the definition provided in Jamsani-Rodriguez v. Ong:8

x x x The respondent Justices were not liable for gross misconduct – defined as the transgression of
some established or definite rule of action, more particularly, unlawful behavior or gross negligence,
or the corrupt or persistent violation of the law or disregard of well-known legal rules x x x.

Respondent Casuga represented himself as a duly-authorized representative of Nevada when in fact

he was not. Casuga admitted signing the subject contract of lease, but claimed that he was duly
authorized to do so by Nevada. However, Casuga failed to adduce an iota of evidence to prove that
he was indeed so authorized. One who alleges the existence of an agency relationship must prove
such fact. The Court ruled in Yun Kwan Byung v. Philippine Amusement and Gaming
Corporation,9 "The law makes no presumption of agency and proving its existence, nature and extent
is incumbent upon the person alleging it."

Plainly enough, Casuga is guilty of misrepresentation, when he made it appear that he was
authorized to enter into a contract of lease in behalf of Nevada when, in fact, he was not.
Furthermore, the records reveal that Casuga received the rentals by virtue of the contract of lease,
benefitting from his misrepresentation. Chul’s notarized letter of May 15, 2007 sufficiently shows that
Casuga indeed received PhP 90,000 as rental deposit from Chul. In his affidavit-comment dated
December 5, 2007, Casuga denied having received such amount, alleging that a certain Pastor Oh,
who purportedly introduced him to Chul, received the money. However, Casuga again failed to
adduce a single piece of evidence to support his contention. A bare denial must fail in light of the
positive assertion of Chul, who appears to have no ulterior motive to incriminate Casuga.

In Tan v. Gumba,10 the respondent lawyer similarly misrepresented herself to have been authorized
to sell a parcel of land by virtue of a Special Power of Attorney (SPA). By virtue of the SPA, the
lawyer was able to obtain a loan from the complainant, secured by the said parcel of land through an
"open" deed of sale. When the respondent lawyer defaulted in the payment of the loan, it turned out
that the SPA only authorized the lawyer to mortgage the property to a bank. Thus, the complainant
could not register the deed of sale with the register of deeds and could not recover the amount that
he loaned to the lawyer. In that case, the Court ruled:

Here, respondent’s actions clearly show that she deceived complainant into lending money to her
through the use of documents and false representations and taking advantage of her education and
complainant’s ignorance in legal matters. As manifested by complainant, he would have never
granted the loan to respondent were it not for respondent’s misrepresentation that she was
authorized to sell the property and if respondent had not led him to believe that he could register the
"open" deed of sale if she fails to pay the loan. By her misdeed, respondent has eroded not only
complainant’s perception of the legal profession but the public’s perception as well. Her actions
constitute gross misconduct for which she may be disciplined, following Section 27, Rule 138 of the
Revised Rules of Court, as amended x x x. (Emphasis supplied.)

In the instant case, by maintaining an office within the Hotel, taking advantage of his apparent close
relationship to Nevada, and through the use of false representations, Casuga led Chul to believe that
he was the administrator of the Hotel, when in fact he was not. By doing so, he made it appear that
he was duly authorized to enter into contracts for the Hotel and to receive rentals from its occupants.
His fraudulent scheme enabled Casuga to collect rentals from the occupants of the Hotel, Chul in
particular, which he did not transmit to Nevada. Worse still, Casuga obtained money belonging to the
Hotel. Following the principle laid down in Tan, Casuga’s misrepresentation properly constitutes
gross misconduct for which he must be disciplined.

Notably, in Tan, the respondent lawyer was held guilty of misconduct and suspended from the
practice of law for six (6) months.

Casuga also violated Canon 16

of the Code of Professional Responsibility

With regard to the jewelry and watch entrusted to him, Casuga alleged that Nevada pawned them
and thereafter instructed Casuga’s wife to redeem them with the latter’s money. He added that
Nevada then instructed his wife to sell the valuables and use the proceeds to reimburse herself for
the redemption price. Again, however, Casuga’s allegations are unsupported by a single shred of
evidence. Pawnshop receipts would have provided the best evidence under the circumstances. But
they were not presented, too.

Moreover, Casuga’s admission that the valuables are indeed in his possession, without any
adequate reason, supports Nevada’s version of the story. Casuga’s failure to return such property or
remit the proceeds of the sale is a blatant violation of Canon 16 of the Code of Professional
Responsibility (the Code). The Code’s Canon 16 and Rule 16.3 state:
CANON 16 - A lawyer shall hold in trust all moneys and properties of his client that may come into
his profession.

Rule 16.03 - A lawyer shall deliver the funds and property of his client when due or upon demand.
However, he shall have a lien over the funds and may apply so much thereof as may be necessary
to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client. He shall
also have a lien to the same extent on all judgments and executions he has secured for his client as
provided for in the Rules of Court.

Having been tasked to sell such valuables, Casuga was duty-bound to return them upon Nevada’s
demand. His failure to do so renders him subject to disciplinary action. To be sure, he cannot use, as
a defense, the lack of a lawyer-client relationship as an exonerating factor. In Barcenas v.
Alvero,11 the Court suspended a lawyer from the practice of law for two (2) years after he failed to
account for or return PhP 300,000 that was entrusted to him for deposit with the courts. The Court
ruled:

From the records of the case, there is likewise a clear breach of lawyer-client relations. When a
lawyer receives money from a client for a particular purpose, the lawyer is bound to render an
accounting to the client showing that the money was spent for a particular purpose. And if he does
not use the money for the intended purpose, the lawyer must immediately return the money to his
client. x x x

Jurisprudence dictates that a lawyer who obtains possession of the funds and properties of his client
in the course of his professional employment shall deliver the same to his client (a) when they
become due, or (b) upon demand. x x x

[Respondent] Atty. Alvero cannot take refuge in his claim that there existed no attorney-client
relationship between him and Barcenas. Even if it were true that no attorney-client relationship
existed between them, case law has it that an attorney may be removed, or otherwise disciplined,
not only for malpractice and dishonesty in the profession, but also for gross misconduct not
connected with his professional duties, making him unfit for the office and unworthy of the privileges
which his license and the law confer upon him.

Atty. Alvero’s failure to immediately account for and return the money when due and upon demand
violated the trust reposed in him, demonstrated his lack of integrity and moral soundness, and
warranted the imposition of disciplinary action. It gave rise to the presumption that he converted the
money for his own use, and this act constituted a gross violation of professional ethics and a
betrayal of public confidence in the legal profession. They constitute gross misconduct and gross
unethical behavior for which he may be suspended, following Section 27, Rule 138 of the Rules of
Court x x x. (Emphasis supplied.)

Having failed to return, upon demand, the items entrusted to him by Nevada or remit the proceeds of
the sale, Casuga violated Canon 16 and Rule 16.03 of the Code.

In Almendarez, Jr. v. Langit,12 the Court suspended a lawyer from the practice of law for two (2) years
for failing to account for the money and properties of his client. Similarly, in Small v. Banares,13 a
lawyer was also suspended from the practice of law for two (2) years, as he failed to return the
money of his client that he was holding in trust and for failing to file an answer to the complaint and
his refusal to appear at the mandatory conference before the IBP. Thus, the same penalty should be
imposed upon Casuga.

Casuga violated the Notarial Rules

The Notarial Rules, A.M. No. 02-8-13-SC, provides in its Rule IV, Section 1(c) and Sec. 3(a) when a
notary public may sign a document in behalf of another person, thus:

SEC. 1. Powers. – x x x

xxxx

(c) A notary public is authorized to sign on behalf of a person who is physically unable to sign or
make a mark on an instrument or document if:

(1) the notary public is directed by the person unable to sign or make a mark to sign on his
behalf;

(2) the signature of the notary public is affixed in the presence of two disinterested and
unaffected witnesses to the instrument or document;

(3) both witnesses sign their own names;

(4) the notary public writes below his signature: "Signature affixed by notary in presence of
(names and addresses of person and two (2) witnesses)";

(5) the notary public notarizes his signature by acknowledgment or jurat.

On the other hand, the succeeding Sec. 3(a) disqualifies a notary public from performing a notarial
act if he or she "is a party to the instrument or document that is to be notarized."

None of the requirements contained in Rule IV, Sec. 1(c), as would justify a notary signing in behalf
of a contracting party, was complied with in this case. Moreover, Casuga’s act of affixing his
signature above the printed name "Edwin T. Nevada," without any qualification, veritably made him a
party to the contract of lease in question. Thus, his act of notarizing a deed to which he is a party is a
plain violation of the aforequoted Rule IV, Sec. 3(a) of the Notarial Rules, for which he can be
disciplinarily sanctioned provided under Rule XI, Sec. 1(b)(10) of the Notarial Rules, which provides:

SECTION 1. Revocation and Administrative Sanctions. – x x x.

(b) In addition, the Executive Judge may revoke the commission of, or impose appropriate
administrative sanctions upon, any notary public who:

(10) knowingly performs or fails to perform any other act prohibited or mandated by these Rules;

Aside from being a violation of the Notarial Rules, Casuga’s aforementioned act partakes of
malpractice of law and misconduct punishable under the ensuing Sec. 27, Rule 138 of the Rules of
Court:

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, x x x or for any violation of the oath
which he is required to take before admission to practice x x x. (Emphasis supplied.)
So it was that in Lanuzo v. Bongon14 the Court suspended a notary public from the practice of law for
one (1) year for violation of the Notarial Rules. This was on top of the penalty of disqualification from
being commissioned as a notary public for two (2) years.

In Dela Cruz v. Zabala,15 the Court adjudged the respondent notary public guilty of gross negligence
for failing to require the parties to be physically present before him. In revoking the erring notary’s
commission, the Court, in Dela Cruz, stressed the significance of notarization and proceeded to
define the heavy burden that goes when a lawyer is commissioned as a notary public. The Court
wrote:

x x x [N]otarization is not an empty, meaningless routinary act. It is invested with substantive public
interest. It must be underscored that x x x notarization x x x converts a private document into a
public document making that document admissible in evidence without further proof of authenticity
thereof. A notarial document is, by law, entitled to full faith and credit upon its face. For this reason, a
notary public must observe with utmost care the basic requirements in the performance of x x x
duties; otherwise, the confidence of the public in the integrity of this form of conveyance would be
undermined.

xxxx

A notary public should not notarize a document unless the persons who signed the same are the
very same persons who executed and personally appeared before him to attest to the contents and
the truth of what are stated therein. These acts of the affiants cannot be delegated because what are
stated therein are facts they have personal knowledge of and are personally sworn to. Otherwise,
their representative’s names should appear in the said documents as the ones who executed the
same.

The function of a notary public is, among others, to guard against any illegal or immoral
arrangements. By affixing his notarial seal on the instrument, he converted the Deed of Absolute
1âwphi1

Sale, from a private document into a public document. x x x As a lawyer commissioned to be a

notary public, respondent is mandated to discharge his sacred duties with faithful observance and
utmost respect for the legal solemnity of an oath in an acknowledgment or jurat. Simply put, such
responsibility is incumbent upon him, he must now accept the commensurate consequences of his
professional indiscretion.16 x x x (Emphasis supplied.)

The recommended penalty must be modified

Considering the various infractions Casuga committed, as discussed above, the aggregate penalty
recommended by the IBP Board of Governors of suspension from the practice of law for four (4)
years was correct. It hews with prevailing jurisprudence as cited above. However, Casuga’s
disqualification from reappointment as notary public for two (2) years should match his suspension
from the practice of law. The disqualification should accordingly be increased to four (4) years, since
only a lawyer in good standing can be granted the commission of a notary public.

The desired disbarment of Casuga, however, is too severe a sanction to impose under the premises;
it cannot be granted. The penalty of disbarment shall be meted out only when the lawyer’s
misconduct borders on the criminal and/or is committed under scandalous circumstance.17

The money, jewelry and Rolex watch should be returned to Nevada

Nevada’s plea that the rental deposit of PhP 90,000, the pieces of jewelry worth PhP 300,000, and
the Rolex watch valued at USD 12,000 or its equivalent in Philippine Peso should be ordered
returned to her instead of to Jung Jong Chul is well-taken. We need not belabor the fact that Chul
has no right whatsoever over the amount or property mentioned above.

WHEREFORE, the Court finds Atty. Rodolfo D. Casuga GUILTY of gross misconduct for violation of
Canon 16 of the Code of Professional Responsibility and the Notarial Rules. He is hereby
SUSPENDED for a period of four (4) years from the practice of law. The notarial commission of Atty.
Casuga, if still existing, is hereby REVOKED and he is DISQUALIFIED from being commissioned as
Notary Public also for four (4) years. Additionally, he is ordered to return the amount of PhP 90,000,
the pieces of jewelry subject of this case or their equivalent of PhP 300,000, and the Rolex watch
valued at USD 12,000 or its equivalent in Philippine Peso to Corazon T. Nevada within thirty (30)
days from finality of this Decision; otherwise, he shall be cited for contempt. Lastly, Atty. Casuga is
warned that a repetition of the same or similar acts will be dealt with more severely.

Let a copy of this Decision be furnished the Office of the Bar Confidant, to be appended to the
personal record of Atty. Rodolfo D. Casuga as a member of the Bar; the Integrated Bar of the
Philippines; and the Office of the Court Administrator for dissemination to all trial courts for their
information and guidance.

SO ORDERED.
 A.C. No. 9226 (Formerly CBD 06-1749), June 14, 2016

MA. CECILIA CLARISSA C, ADVINCULA, Complainant, v. ATTY. LEONARDO C.

ADVINCULA, Respondent.

DECISION

BERSAMIN, J.:

This administrative case stemmed from the complaint for disbarment dated June 16, 2006 brought to the
Integrated Bar of the Philippines (IBP) against Atty. Leonardo C. Advincula (Atty. Advincula) by no less than
his wife, Dr. Ma. Cecilia Clarissa C. Advincula (Dr. Advincula).

In her complaint,1 Dr. Advincula has averred that Atty. Advincula committed unlawful and immoral
acts;2that while Atty. Advincula was still married to her, he had extra-marital sexual relations with Ma.
Judith Ortiz Gonzaga (Ms. Gonzaga);3 that the extra-marital relations bore a child in the name of Ma.
Alexandria Gonzaga Advincula (Alexandria);4 that Atty. Advincula failed to give financial support to their own
children, namely: Ma. Samantha Paulina, Ma. Andrea Lana, and Jose Leandro, despite his having sufficient
financial resources;5 that he admitted in the affidavit of late registration of birth of Alexandria that he had
contracted another marriage with Ms. Gonzaga;6 that even should Atty. Advincula prove that his declaration
in the affidavit of late registration of birth was motivated by some reason other than the fact that he truly
entered into a subsequent marriage with Ms. Gonzaga, then making such a declaration was in itself still
unlawful;7 that siring a child with a woman other than his lawful wife was conduct way below the standards
of morality required of every lawyer;8 that contracting a subsequent marriage while the first marriage had
not been dissolved was also an unlawful conduct;9 that making a false declaration before a notary public was
an unlawful conduct punishable under the Revised Penal Code;10 and that the failure of Atty. Advincula to
provide proper support to his children showed his moral character to be below the standards set by law for
every lawyer.11 Dr. Advincula prayed that Atty. Advincula be disbarred.12 cha nrob leslaw

In his answer,13 Atty. Advincula denied the accusations. He asserted that during the subsistence of his
marriage with Dr. Advincula but prior to the birth of their youngest Jose Leandro, their marital relationship
had deteriorated; that they could not agree on various matters concerning their family, religion, friends, and
respective careers; that Dr. Advincula abandoned the rented family home with the two children to live with
her parents; that despite their separation, he regularly gave financial support to Dr. Advincula and their
children; that during their separation, he got into a brief relationship with Ms. Gonzaga; and that he did not
contract a second marriage with Ms. Gonzaga.14 chanrob leslaw

Atty. Advincula further acknowledged that as a result of the relationship with Ms. Gonzaga, a child was bom
and named Alexandra;15 that in consideration of his moral obligation as a father, he gave support to
Alexandra;16 that he only learned that the birth of Alexandra had been subsequently registered after the
child was already enrolled in school;17 that it was Ms. Gonzaga who informed him that she had the birth
certificate of Alexandria altered by a fixer in order to enroll the child;18 that he strived to reunite his
legitimate family, resulting in a reconciliation that begot their third child, Jose Leandro; that Dr. Advincula
once again decided to live with her parents, bringing all of their children along; that nevertheless, he
continued to provide financial support to his family and visited the children regularly; that Dr. Advincula
intimated to him that she had planned to take up nursing in order to work as a nurse abroad because her
medical practice here was not lucrative; that he supported his wife's nursing school expenses;19 that Dr.
Advincula left for the United States of America (USA) to work as a nurse;20 that the custody of their children
was not entrusted to him but he agreed to such arrangement to avoid further division of the family;21 that
during the same period he was also busy with his law studies;22 that Dr. Advincula proposed that he and
their children migrate to the USA but he opposed the proposal because he would not be able to practice his
profession there;23 that Dr. Advincula stated that if he did not want to join her, then she would just get the
children to live with her;24 that when Dr. Advincula came home for a vacation he was not able to accompany
her due to his extremely busy schedule as Chief Legal Staff of the General Prosecution Division of the
National Bureau of Investigation;25 and that when they finally met arguments flared out, during which she
c ralawred

threatened to file a disbarment suit against him in order to force him to allow her to bring their children to
the USA.26 Atty. Advincula prayed that the disbarment case be dismissed for utter lack of merit.27 chan roble slaw

Findings and Recommendations of the IBP-CBD

After exhaustive hearings, Commissioner Angelito C. Inocencio of the IBP Commission on Bar Discipline
(CBD) rendered the following findings and observations, and recommended the following sanctions, to
wit:
ChanRoble sVi rt ualawlib ra ry

FINDINGS AND CONCLUSIONS

Based on Rule 1.01, Canon 1, Code of Professional Responsibility for Lawyers comes this provisions (sic): "A
lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct."

This means that members of the bar ought to possess good moral character. Remember we must (sic) that
the practice of law is a mere privilege. The moment that a lawyer no longer has the required qualifications
foremost of which is the presence of that character earlier mentioned, the Honorable Supreme Court may
revoke the said practice.

No doubt, Respondent Leanardo (sic) C. Advincula, probably due to the weakness of the flesh, had a
romance outside of marriage (sic) with Ma. Judith Ortiz Gonzaga. This he admitted.

From such affair came a child named Ma. Alexandria. He supported her as a moral obligation.

How, then, must we categorize his acts? It cannot be denied that he had committed an adulterous and
immoral act.

Was his conduct grossly immoral?

Before answering that, let us recall what the highest Court of the Land defined as immoral conduct: "that
conduct which is willful, flagrant or shameless and which shows a moral indifference to the opinion of the
good and respectable members of the community."28 chanrobles law

xxxx

It is the Commissioner's view that what he did pales when compared to Respondent Leo Palma's case earlier
cited.

In that case, the Honorable Supreme Court stressed that Atty. Palma had made a mockery of marriage, a
sacred institution demanding respect and dignity.

The highest Court of the Land intoned in the same case: "But what respondent forgot is that he has also
duties to his wife. As a husband, he is obliged to live with her; observe mutual love, respect and fidelity:
and render help and support."

Deemed favorable to Respondent's cause were the various exhibits he presented evidencing the fact that he
supported their children financially. Such conduct could not illustrate him as having championed a grossly
immoral conduct.

Another factor to consider is this: Complainant should share part of the blame why their marriage soured.
Their constant quarrels while together would indicate that harmony between them was out of the question.

The possibility appears great that she might have displayed a temper that ignited the flame of discord
between them.

Just the same, however, while this Commissioner would not recommend the supreme penalty of disbarment
for to deprive him of such honored station in life would result in irreparable injury and must require proof of
the highest degree pursuant to the Honorable Supreme Court's ruling in Angeles vs. Figueroa, 470 SCRA
186 (2005), he must be sanctioned.

And the proof adduced is not of the highest degree.

VI. RECOMMENDATION

In the light of the foregoing disquisition, having, in effect, Respondent's own admission of having committed
an extra-marital affair and fathering a child, it is respectfully recommended that he be suspended from the
practice of law for at least one month with the additional admonition that should he repeat the same, a more
severe penalty would be imposed.
It would be unjust to impose upon him the extreme penalty of disbarment. What he did was not grossly
immoral.29 chan roble svi rtual lawlib rary

The IBP Board of Governors unanimously adopted the findings and recommendations of the Investigating
Commissioner with slight modification of the penalty, thus: ChanRobles Virtualawl ibra ry

RESOLVED to ADOPT and APPROVE, as it is hereby unanimously ADOPTED and APPROVED, with
modification, the Report and Recommendation of the Investigating Commissioner in 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 respondent's admission of
engaging in a simple immorality and also taking into account the condonation of his extra-marital affair by
his wife, Atty. Leonardo C. Advincula is hereby SUSPENDED from the practice of law for two (2)
months.30 chanroble svirtual lawlib rary

Atty. Advincula accepted the Resolution of the IBP Board of Governors as final and executory, and
manifested in his compliance dated February 26, 2013, as follows: ChanRobles Vi rtua lawlib rary

1. That on 28 November 2011 this Honorable Court issued a resolution suspending the
undersigned Attorney from the practice of law for two (2) months under "A.C. No. 9226
(formerly CBD Case No. 06-1749) (Ma. Cecilia Clarissa C. Advincula vs. Atty. Leonardo C.
Advincula) x x x

2. That on 30 October 2012 in faithful compliance with the above order, the undersigned
attorney applied for Leave for two (2) months starting November up to December thereby
refraining himself from the practice of law as Legal Officer on the National Bureau of
Investigation (NBI) x x x

3. That the undersigned Attorney would like to notify this Honorable Court of his compliance
with the above resolution/order so that he may be able to practice his law profession
again.31

Ruling of the Court

The good moral conduct or character must be possessed by lawyers at the time of their application for
admission to the Bar, and must be maintained until retirement from the practice of law. In this regard,
the Code of Professional Responsibility states: ChanRobles Vi rtualawl ib rary

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

xxxx

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
should he, whether in public or private life, behave in a scandalous manner to the discredit of the legal
profession.
Accordingly, it is expected that every lawyer, being an officer of the Court, must not only be in fact of good
moral character, but must also be seen to be of good moral character and leading lives in accordance with
the highest moral standards of the community. More specifically, a member of the Bar and officer of the
Court is required not only to refrain from adulterous relationships or keeping mistresses but also to conduct
himself as to avoid scandalizing the public by creating the belief that he is flouting those moral standards. If
the practice of law is to remain an honorable profession and attain its basic ideals, whoever is enrolled in its
ranks should not only master its tenets and principles but should also, in their lives, accord continuing
fidelity to them. The requirement of good moral character is of much greater import, as far as the general
public is concerned, than the possession of legal learning.32 chan robles law

Immoral conduct has been described as conduct that is so willful, flagrant, or shameless as to show
indifference to the opinion of good and respectable members of the community. To be the basis of
disciplinary action, such conduct must not only be immoral, but grossly immoral, that is, it must be so
corrupt as to virtually constitute a criminal act or so unprincipled as to be reprehensible to a high degree or
committed under such scandalous or revolting circumstances as to shock the common sense of decency.33 chanrob leslaw
On different occasions, we have disbarred or suspended lawyers for immorality based on the surrounding
circumstances of each case. In Bustamante-Alejandro v. Alejandro,34 the extreme penalty of disbarment was
imposed on the respondent who had abandoned his wife and maintained an illicit affair with another woman.
Likewise, disbarment was the penalty for a lawyer who carried on an extra-marital affair with a married
woman prior to the judicial declaration that her marriage was null and void, while he himself was also
married.35 In another case we have suspended for two years, a married attorney who had sired a child with
a former client.36 In Samaniego v. Ferrer,37 suspension of six months from the practice of law was meted on
the philandering lawyer.

Yet, we cannot sanction Atty. Advincula with the same gravity. Although his siring the child with a woman
other than his legitimate wife constituted immorality, he committed the immoral conduct when he was not
yet a lawyer. The degree of his immoral conduct was not as grave than if he had committed the immorality
when already a member of the Philippine Bar. Even so, he cannot escape administrative liability. Taking all
the circumstances of this case into proper context, the Court considers suspension from the practice of law
for three months to be condign and appropriate.

As a last note, Atty. Advincula manifested in his compliance dated February 26, 2013 that he had
immediately accepted the resolution of the IBP Board of Governors suspending him from the practice of law
for two months as final and executory; that he had then gone on leave from work in the NBI for two months
starting in November and lasting until the end of December, 2012; and that such leave from work involved
refraining from performing his duties as a Legal Officer of the NBI.

The manifestation of compliance is unacceptable. A lawyer like him ought to know that it is only the Court
that wields the power to discipline lawyers. The IBP Board of Governors did not possess such power,
rendering its recommendation against him incapable of finality. It is the Court's final determination of his
liability as a lawyer that is the reckoning point for the service of sanctions and penalties. As such, his
supposed compliance with the recommended two-month suspension could not be satisfied by his going on
leave from his work at the NBI. Moreover, his being a government employee necessitates that his
suspension from the practice of law should include his suspension from office. A leave of absence will not
suffice. This is so considering that his position mandated him to be a member of the Philippine Bar in good
standing. The suspension from the practice of law will not be a penalty if it does not negate his continuance
in office for the period of the suspension. If the rule is different, this exercise of reprobation of an erring
lawyer by the Court is rendered inutile and becomes a mockery because he can continue to receive his
salaries and other benefits by simply going on leave for the duration of his suspension from the practice of
law.

WHEREFORE, the Court FINDS AND DECLARES ATTY. LEONARDO C. ADVINCULA GUILTY of
immorality; and SUSPENDS him from the practice of law for a period of THREE MONTHS EFFECTIVE
UPON NOTICE HEREOF, with a STERN WARNING that a more severe penalty shall be imposed should he
commit the same offense or a similar offense; DIRECTS ATTY. ADVINCULA to report the date of his
receipt of the Decision to this Court; and ORDERS the Chief of the Personnel Division of the National Bureau
of Investigation to implement the suspension from office of ATTY. ADVINCULA and to report on his
compliance in order to determine the date of commencement of his suspension from the practice of law.

Let a copy of this Decision be made part of the records of the respondent in the Office of the Bar Confidant;
and furnished to the Integrated Bar of the Philippines and the Civil Service Commission for their information
and guidance.

SO ORDERED. chanRoblesvirt ual Lawlib rary

Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Perez, Mendoza, Reyes, Perlas-Bernabe,
and Caguioa, JJ., concur.
Brion, Peralta, and Jardeleza, JJ., on official leave.
Del Castillo, J., on wellness leave.
Leonen, J., see separate concurring opinion.

Endnotes:

Rollo, pp. 1-5.

1
2
Id. at 1.

3
Id. at 2.

4
Id.

5
Id. at 3.

6
Id.

7
Id.

8
Id.

9
Id. at 4.

10
Id.

11
Id.

12
Id. at 5.

13
Id. at 14-22.

14
Id.

15
Id.

16
Id.

17
Id.

18
Id.

19
Id.

20
Id.

21
Id.

22
Id.

23
Id.

24
Id.

25
cralaw red Id. at 19.

26
Id.

27
Id. at 22.

28
Id. at 252.

29
Id. at 253-254.

30
Id. at 244.

31
Rollo, unpaginated.

32
Dantes v. Dantes, A.C. No. 6486, September 22, 2004, 438 SCRA 582, 588-589.
33
Narag v. Narag, A.C. No. 3405, June 29, 1998, 291 SCRA 451, 464.

34
A.C. No. 4256, February 13, 2004, 422 SCRA 527, 533.

Guevarra v. Eala, A.C. No. 7136, August 1, 2007, 529 SCRA 1, 4.

35

Ferancullo v. Ferancullo, A.C. No. 7214, November 30, 2006, 509 SCRA 1, 17.
36

37
A.C. No. 7022, June 18, 2008, 555 SCRA 1, 7.

CONCURRING OPINION

LEONEN, J.:

Before his admission to the bar, respondent Atty. Leonardo C. Advincula—who was married to complainant
Dr. Ma. Cecilia Clarissa C. Advincula—entered into a brief extra-marital relationship with Ma. Judith
Gonzaga, with whom he had a child.1 chanrobles law

The standard of morality and the rules of conduct under the Code of Professional Responsibility are
applicable only to lawyers. These are not enforced against persons who have not taken the lawyer's oath.

A lawyer's commitment to the lawyer's oath or any standard of morality and conduct under the Code of
Professional Responsibility starts only upon taking that oath.

Oaths are not senseless utterances. Lawyers who take their oath consent to this Court's administrative
jurisdiction over their actions. The oath is essentially a promise to act consistently with the value-
expectations of this Court.

The significance of the oath rests on many assumptions. Taking the oath implies notice to the person of the
standards he or she is expected to abide by. It not only implies consent to, but also assumes consciousness
of those standards. The person allowed to take the oath is assumed to have the capacity to consider and
control his or her actions accordingly.

For these reasons, violation of the oath or of the Code of Professional Responsibility is deemed to merit this
Court's imposition of a penalty.

When a lawyer takes the oath, any action inconsistent with the oath or with the Code of Professional
Responsibility may be interpreted as a willful disregard of the standards embodied in the oath or the Code of
Professional Responsibility. As expressed in our Rules of Evidence, a person is presumed to know and intend
"the ordinary consequences of his [or her] voluntary act."2 The oath places "penalty" under the great scope
of "ordinary consequence" of a lawyer's actions.

On the other hand, without the taking the oath, we cannot presume a person's conscious and careful
consideration of his or her acts in conforming with this Court's moral and behavioral standards. Without the
taking the oath, administrative penalties do not rise to the level of ordinary consequence of a person's
actions.

This Court, as guardian of constitutional rights, should lead other institutions by exemplifying through its
processes the import of the principle of due process.3 A person cannot adjust his or her past actions now to
conform to the standards imposed by an oath he or she takes after. It is unreasonable to expect a person to
abide by standards that he or she cannot be presumed to know and apply to actions he or she can no longer
control.

Respondent cannot be expected to abide by the standards imposed by the lawyer's oath or by the Code of
Professional Responsibility. At that time, this Court had no administrative jurisdiction over his actions. He
was not yet a lawyer when he entered into a relationship with Ma. Judith Gonzaga during his marriage with
complainant.

Imposing a penalty for respondent's actions before he took the lawyer's oath reduces the oath to nothing
but a frivolous ceremony. We undermine the significance of the oath if, on that basis, we penalize a person
for his or her actions, whether or not he or she subscribed to that oath.

While possession of good morals is required before and during one's membership to the bar,4 the bases and
effects of the finding that one meets or does not meet the standard of morality are different in these
instances.

For admission to the bar, good morals are solely based on a person's actions before his or her admission. A
person found to be lacking of the required good morals is disqualified from membership in the bar. A
person's actions, on which the finding that a person has met the required good morals is based, are looked
into for purposes of admission—not penalty.

On the other hand, for retaining membership in the bar, the lawyer's actions while he or she is a member
are looked into. These acts may be the bases of administrative penalty.

However, this is not to say that a lawyer's actions before his or her admission cannot be the bases of his or
her removal from the bar. After all, a person who has not met the moral standards before admission should
not even be admitted to the bar. Thus, if for some reason, grossly immoral acts not considered by this Court
during application are later made known and proved to this Court, this Court may choose to remove him or
her without disregarding evidence of any possible moral transformation that could have taken place later.5 chanrob leslaw

However, this Court should not be too quick to judge a person's actions as grossly immoral so as to
constitute unfitness to become a member of the bar.

In Reyes v. Wong,6 this Court has ruled that for an act to be administratively punishable for gross
immorality, "it must be so corrupt and false as to constitute a criminal act or so unprincipled as to be
reprehensible to a high degree."7 Further: ChanRobles Virtualawl ibra ry

[T]he same must be established by clear and convincing proof, disclosing a case that is free from doubt as
to compel the exercise by the Court of its disciplinary power. . . . Likewise, the dubious character of the act
done as well as the motivation thereof must be clearly demonstrated.8 chanrob lesvi rtua llawlib ra ry

There are different aspects of morality. Morality may be religious or secular. In Perfecto v. Esidera:9
Morality refers to what is good or right conduct at a given circumstance. In Estrada v. Escritor, this court
described morality as "'how we ought to live' and why."

Morality may be religious, in which case what is good depends on the moral prescriptions of a high moral
authority or the beliefs of a particular religion. Religion, as this court defined in Aglipay v. Ruiz, is "a
profession of faith to an active power that binds and elevates man to his Creator." A conduct is religiously
moral if it is consistent with and is carried out in light of the divine set of beliefs and obligations imposed by
the active power.

Morality may also be secular, in which case it is independent of any divine moral prescriptions. What is good
or right at a given circumstance does not derive its basis from any religious doctrine but from the
independent moral sense shared as humans.10(Citations omitted)
In the same case, this Court stated that the rule against immorality should have a secular basis. Our
jurisdiction to determine what is moral or immoral should only be limited to conduct that affects public
interest. Immoral conduct, if made the basis for imposing administrative penalty, should refer to conduct as
officers of the court. It must be of such depravity as to reduce the public's confidence in our laws and in our
judicial system,11 thus:ChanRobles Vi rtua lawlib rary

The non-establishment clause bars the State from establishing, through laws and rules, moral standards
according to a specific religion. Prohibitions against immorality should be based on a purpose that is
independent of religious beliefs. When it forms part of our laws, rules, and policies, morality must be
secular. Laws and rules of conduct must be based on a secular purpose.

In the same way, this court, in resolving cases that touch on issues of morality, is bound to remain neutral
and to limit the bases of its judgment on secular moral standards. When laws or rules refer to morals or
immorality, courts should be careful not to overlook the distinction between secular and religious morality if
it is to keep its part in upholding constitutionally guaranteed rights.

There is the danger of "compelled religion" and, therefore, of negating the very idea of freedom of belief and
non-establishment of religion when religious morality is incorporated in government regulations and policies.
As explained in Estrada v. Escritor.
Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the resulting
policies and morals would require conformity to what some might regard as religious programs or agenda.
The non-believers would therefore be compelled to conform to a standard of conduct buttressed by a
religious belief, i.e., to a "compelled religion" anathema to religious freedom. Likewise, if government based
its actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly
disapprove contrary religious or non-religious views that would not support the policy. As a result,
government will not provide full religious freedom for all its citizens, or even make it appear that those
whose beliefs are disapproved are second-class citizens. Expansive religious freedom therefore requires that
government be neutral in matters of religion; governmental reliance upon religious justification is
inconsistent with this policy of neutrality.
....

. . . . We have jurisdiction over matters of morality only insofar as it involves conduct that affects the public
or its interest.

Thus, for purposes of determining administrative liability of lawyers and judges, "immoral conduct" should
relate to their conduct as officers of the court. To be guilty of "immorality" under the Code of Professional
Responsibility, a lawyer's conduct must be so depraved as to reduce the public's confidence in the Rule of
Law. Religious morality is not binding whenever this court decides the administrative liability of lawyers and
persons under this court's supervision. At best, religious morality weighs only persuasively on
us.12 (Citations omitted)
Respondent had a relationship with another woman during his marriage with complainant. Out of that extra-
marital relationship, a child was born. All these had happened before he became a lawyer.

Indeed, some may find respondent's actions before becoming a lawyer immoral. However, these do not
constitute grossly immoral conduct that is so corrupt and reprehensible for this Court to consider him unfit
to be a member of the bar.

The dubious character of respondent's actions and his ill-motive were not clearly demonstrated.
Respondent's extra-marital relationship happened during his and complainant's temporary separation. At the
time of respondent's application for bar admission, his relationship with his alleged mistress, whom he
claimed he did not marry, had already ended. He was already reunited with" complainant, his wife. As a
result of their reconciliation, they even had their third child, Jose Leandro.

In light of respondent's reconciliation with complainant prior to becoming a lawyer, his actions cannot be
described as so depraved as to possibly reduce the public's confidence in our laws and judicial system.

ACCORDINGLY, I concur in the result.

REHABILITATION FROM CIMINAL CONDUCT …

A.C. No. 6052 December 11, 2003

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 ELECTIONS
OLIVER OWEN L. GARCIA, EMMANUEL RAVANERA and TONY VELEZ, petitioners,
vs.
ATTY. LEONARD DE VERA And IBP BOARD OF GOVERNORS, respondents.

DECISION

TlNGA, J.:

This is a Petition1 filed by Attys. Oliver Owen L. Garcia, Emmanuel Ravanera and Tony Velez, mainly
seeking the disqualification of respondent Atty. Leonard De Vera "from being elected Governor of
Eastern Mindanao" in the 16th Intergrated Bar of the Philippines ("IBP") Regional Governors’
elections. Petitioner Garcia is the Vice-President of the Bukidnon IBP Chapter, while petitioners
Ravanera and Velez are the past President and the incumbent President, respectively, of the
Misamis Oriental IBP Chapter.

The facts as culled from the pleadings of the parties follow.

The election for the 16th IBP Board of Governors ("IBP Board") was set on April 26, 2003, a month
prior to the IBP National Convention scheduled on May 22-24, 2003. The election was so set in
compliance with Section 39, Article VI of the IBP By Laws, which reads:

SECTION 39. Nomination and election of the Governors. – At least one month before the national
convention, the delegates from each region shall elect the governor of their region, the choice of
which shall as much as possible be rotated among the chapters in the region.

Later on, the outgoing IBP Board, in its Resolution2 No. XV-2003-99 dated April 16, 2003, reset the
elections to May 31, 2003, or after the IBP National Convention.

Respondent De Vera, a member of the Board of Directors of the Agusan del Sur IBP Chapter in
Eastern Mindanao, along with Atty. P. Angelica Y. Santiago, President of the IBP Rizal Chapter, sent
a letter3 dated 28 March 2003, requesting the IBP Board to reconsider its Resolution of April 6, 2003.
Their Motion was anchored on two grounds viz. (1) adhering to the mandate of Section 39 of the IBP
By Laws to hold the election of Regional Governors at least one month prior to the national
convention of the IBP will prevent it from being politicized since post-convention elections may
otherwise lure the candidates into engaging in unacceptable political practices, and; (2) holding the
election on May 31, 2003 will render it impossible for the outgoing IBP Board from resolving protests
in the election for governors not later than May 31, 2003, as expressed in Section 40 of the IBP By
Laws, to wit:

SECTION 40. Election contests. - Any nominee desiring to contest an election shall, within two days
after the announcement of the results of the elections, file with the President of the Integrated Bar a
written protest setting forth the grounds therefor. Upon receipt of such petition, the President shall
forthwith call a special meeting of the outgoing Board of Governors to consider and hear the protest,
with due notice to the contending parties. The decision of the Board shall be announced not later
than the following May 31, and shall be final and conclusive.

On April 26, 2003, the IBP Board denied the request for reconsideration in its Resolution No. XV-
2003-162.4

On May 26, 2003, after the IBP national convention had been adjourned in the afternoon of May 24,
2003, the petitioners filed a Petition5 dated 23 May 2003 before the IBP Board seeking (1) the
postponement of the election for Regional Governors to the second or third week of June 2003; and
(2) the disqualification of respondent De Vera "from being elected Regional Governor for Eastern
Mindanao Region."

The IBP Board denied the Petition in a Resolution issued on May 29, 2003. The pertinent portions of
the Resolution read:

WHEREAS, two specific reliefs are being sought, to wit, first, the postponement of the elections for
regional governors and, second, the disqualification of Atty. Leonard de Vera.

WHEREAS, anent the first relief sought, the Board finds no compelling justification for the
postponement of the elections especially considering that preparations and notices had already
been completed.

WHEREAS, with respect to the disqualifications of Atty. Leonard de Vera, this Board finds the
petition to be premature considering that no nomination has yet been made for the election of IBP
regional governor.

PREMISES CONSIDERED, the Board hereby resolves, as it hereby resolves, to deny the petition.6

Probably thinking that the IBP Board had not yet acted on their Petition, on the same date, May 29,
2003, the petitioners filed the present Petition before this Court, seeking the same reliefs as those
sought in their Petition before the IBP.

On the following day, May 30, 2003, acting upon the petitioners’ application, this Court issued a
Temporary Restraining Order (TRO), directing the IBP Board, its agents, representatives or persons
acting in their place and stead to cease and desist from proceeding with the election for the IBP
Regional Governor in Eastern Mindanao.7

Citing the IBP By-Laws, the petitioners expound on the mechanics for the selection of the IBP
officers from the Chapter Officers up to the Regional Governors constituting the IBP Board which is
its highest policy-making body, as well as the underlying dynamics, to wit:

IBP Chapter Officers headed by the President are elected for a term of two years. The IBP Chapter
Presidents in turn, elect their respective Regional Governors following the rotation rule. The IBP has
nine (9) regions, viz: Northern Luzon, Central Luzon, Greater Manila, Southern Luzon, Bicolandia,
Eastern Visayas, Western Visayas, Eastern Mindanao and Western Mindanao. The governors serve
for a term of two (2) years beginning on the 1st of July of the first year and ending on the 30th of
June of the second year.

From the members of the newly constituted IBP Board, an Executive Vice President (EVP) shall be
chosen, also on rotation basis. The rationale for the rotation rule in the election of both the Regional
Governors and the Vice President is to give everybody a chance to serve the IBP, to avoid
politicking and to democratize the selection process.

Finally, the National President is not elected. Under the By-Laws, whoever is the incumbent EVP will
automatically be the National President for the following term.

Petitioners elucidate that at present, all the IBP regions, except Eastern Mindanao, have had two (2)
National Presidents each. Following the rotation rule, whoever will be elected Regional Governor for
Eastern Mindanao Region in the 16th Regional Governors elections will automatically become the
EVP for the term July 1, 2003 to June 30, 2005. For the next term in turn, i.e., from July 1, 2005 to
June 20, 2007, the EVP immediately before then will automatically assume the post of IBP National
President.

Petitioners asseverate that it is in this light that respondent De Vera had transferred his IBP
membership from the Pasay, Paranaque, Las Pinas and Muntinlupa (PPLM) Chapter to Agusan del
Sur Chapter, stressing that he indeed covets the IBP presidency.8 The transfer of IBP membership to
Agusan del Sur, the petitioners went on, is a brazen abuse and misuse of the rotation rule, a
mockery of the domicile rule and a great insult to lawyers from Eastern Mindanao for it implies that
there is no lawyer from the region qualified and willing to serve the IBP.9

Adverting to the moral fitness required of a candidate for the offices of regional governor, executive
vice-president and national president, the petitioners submit that respondent De Vera lacks the
requisite moral aptitude. According to them, respondent De Vera was sanctioned by the Supreme
Court for irresponsibly attacking the integrity of the SC Justices during the deliberations on the
constitutionality of the plunder law. They add that he could have been disbarred in the United States
for misappropriating his client’s funds had he not surrendered his California license to practice law.
Finally, they accuse him of having actively campaigned for the position of Eastern Mindanao
Governor during the IBP National Convention held on May 22-24, 2003, a prohibited act under the
IBP By-Laws.10

After seeking leave of court, respondent De Vera filed on June 9, 2003 a Respectful Comment 11 on
the Petition.

In his defense, respondent De Vera raises new issues. He argues that this Court has no jurisdiction
over the present controversy, contending that the election of the Officers of the IBP, including the
determination of the qualification of those who want to serve the organization, is purely an internal
matter, governed as it is by the IBP By-Laws and exclusively regulated and administered by the IBP.
Respondent De Vera also assails the petitioners’ legal standing, pointing out that the IBP By-Laws
does not have a provision for the disqualification of IBP members aspiring for the position of
Regional governors, for instead all that it provides for is only an election protest under Article IV,
Section 40, pursuant to which only a qualified nominee can validly lodge an election protest which is
to be made after, not before, the election. He posits further that following the rotation rule, only
members from the Surigao del Norte and Agusan del Sur IBP chapters are qualified to run for
Governor for Eastern Mindanao Region for the term 2003-2005, and the petitioners who are from
Bukidnon and Misamis Oriental are not thus qualified to be nominees.12

Meeting the petitioners’ contention head on, respondent De Vera avers that an IBP member is
entitled to select, change or transfer his chapter membership.13 He cites the last paragraph of Section
19, Article II and Section 29-2, Article IV of the IBP By-Laws, thus:

Article II, Section 19. Registration. - xxx Unless he otherwise registers his preference for a particular
Chapter, a lawyer shall be considered a member of the Chapter of the province, city, political
subdivision or area where his office or, in the absence thereof, his residence is located. In no case
shall any lawyer be a member of more than one Chapter.

Article IV, Section 29-2. Membership- The Chapter comprises all members registered in its
membership roll. Each member shall maintain his membership until the same is terminated on any of
the grounds set forth in the By-Laws of the Integrated Bar, or he transfers his membership to another
Chapter as certified by the Secretary of the latter, provided that the transfer is made not less than
three months immediately preceding any Chapter election.

The right to transfer membership, respondent De Vera stresses, is also recognized in Section 4,
Rule 139-A of the Rules of Court which is exactly the same as the first of the above-quoted
provisions of the IBP By-Laws, thus:

Rule 139-A, Section 4. xxx Unless he otherwise registers his preference for a particular Chapter, a
lawyer shall be considered a member of the Chapter of the province, city, political subdivision or
area where his office, or, in the absence thereof, his residence is located. In no case shall any
lawyer be a member of more than one Chapter.

Clarifying that it was upon the invitation of the officers and members of the Agusan del Sur IBP
Chapter that he transferred his IBP membership, respondent De Vera submits that it is unfair and
unkind for the petitioners to state that his membership transfer was done for convenience and as a
mere subterfuge to qualify him for the Eastern Mindanao governorship.14

On the moral integrity question, respondent De Vera denies that he exhibited disrespect to the Court
or to any of its members during its deliberations on the constitutionality of the plunder law. 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 in character similar to the 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 complainant’s money, but unfortunately the
retraction was not considered by the investigating officer. Finally, on the alleged politicking he
committed during the IBP National Convention held on May 22-24, 2003, he states that it is baseless
to assume that he was campaigning simply because he declared that he had 10 votes to support his
candidacy for governorship in the Eastern Mindanao Region and that the petitioners did not present
any evidence to substantiate their claim that he or his handlers had billeted the delegates from his
region at the Century Park Hotel.15

On July 7, 2003, the petitioners filed their Reply16 to the Respectful Comment of respondent De Vera
who, on July 15, 2003, filed an Answer and Rejoinder.17

In a Resolution18 dated 5 August 2003, the Court directed the other respondent in this case, the IBP
Board, to file its comment on the Petition. The IBP Board, through its General Counsel, filed
a Manifestation19 dated 29 August 2003, reiterating the position stated in its Resolution dated 29 May
2003 that "it finds the petition to be premature considering that no nomination has as yet been made
for the election of IBP Regional Governors."20

Based on the arguments of the parties, the following are the main issues, to wit:
(1) whether this Court has jurisdiction over the present controversy;

(2) whether petitioners have a cause of action against respondent De Vera, the determination of
which in turn requires the resolution of two sub-issues, namely:

(a) whether the petition to disqualify respondent De Vera is the proper remedy under the IBP By-
Laws; and

(b) whether the petitioners are the proper parties to bring this suit;

(3) whether the present Petition is premature;

(4) assuming that petitioners have a cause of action and that the present petition is not premature,
whether respondent De Vera is qualified to run for Governor of the IBP Eastern Mindanao Region;

Anent the first issue, in his Respectful Comment respondent De Vera contends that the Supreme
Court has no jurisdiction on the present controversy. As noted earlier, respondent De Vera submits
that the election of the Officers of the IBP, including the determination of the qualification of those
who want to serve the IBP, is purely an internal matter and exclusively within the jurisdiction of the
IBP.

The contention is untenable. Section 5, Article VIII of the 1987 Constitution confers on the Supreme
Court the power to promulgate rules affecting the IBP, thus:

Section 5. The Supreme Court shall have the following powers:

....

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and
the legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and
shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and
quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. (Emphasis
supplied)

Implicit in this constitutional grant is the power to supervise all the activities of the IBP, including the
election of its officers.

The authority of the Supreme Court over the IBP has its origins in the 1935 Constitution. Section 13,
Art. VIII thereof granted the Supreme Court the power to promulgate rules concerning the admission
to the practice of law. It reads:

SECTION 13. The Supreme Court shall have the power to promulgate rules concerning pleading,
practice, and procedure in all courts, and the admission to the practice of law. Said rules shall be
uniform for all courts of the same grade and shall not diminish, increase, or modify substantive
rights. The existing laws on pleading, practice, and procedure are hereby repealed as statutes, and
are declared Rules of Courts, subject to the power of the Supreme Court to alter and modify the
same. The Congress shall have the power to repeal, alter or supplement the rules concerning
pleading, practice, and procedure, and the admission to the practice of law in the Philippines.
The above-quoted sections in both the 1987 and 1935 Constitution and the similarly worded
provision in the intervening 1973 Constitution21 through all the years have been the sources of this
Court’s authority to supervise individual members of the Bar. The term "Bar" refers to the "collectivity
of all persons whose names appear in the Roll of Attorneys."22 Pursuant to this power of supervision,
the Court initiated the integration of the Philippine Bar by creating on October 5, 1970 the
Commission on Bar Integration, which was tasked to ascertain the advisability of unifying the
Philippine Bar.23 Not long after, Republic Act No. 639724 was enacted and it confirmed the power of
the Supreme Court to effect the integration of the Philippine Bar. Finally, on January 1, 1973, in
the per curiam Resolution of this Court captioned "In the Matter of the Integration of the Bar to the
Philippines," we ordained the Integration of the Philippine Bar in accordance with Rule 139-A, of the
Rules of Court, which we promulgated pursuant to our rule-making power under the 1935
Constitution.

The IBP By-Laws, the document invoked by respondent De Vera in asserting IBP independence
from the Supreme Court, ironically recognizes the full range of the power of supervision of the
Supreme Court over the IBP. For one, Section 7725 of the IBP By-Laws vests on the Court the power
to amend, modify or repeal the IBP By-Laws, either motu propio or upon recommendation of the
Board of Governors of the IBP. Also in Section 15,26 the Court is authorized to send observers in IBP
elections, whether local or national. Section 4427 empowers the Court to have the final decision on the
removal of the members of the Board of Governors.

On the basis of its power of supervision over the IBP, the Supreme Court looked into the
irregularities which attended the 1989 elections of the IBP National Officers. In Bar Matter No. 491
entitled "In the Matter of the Inquiry into the 1989 Elections of the Integrated Bar of the
Philippines" the Court formed a committee to make an inquiry into the 1989 elections. The results of
the investigation showed that the elections were marred by irregularities, with the principal
candidates for election committing acts in violation of Section 14 of the IBP By-Laws.28 The Court
invalidated the elections and directed the conduct of special elections, as well as explicitly
disqualified from running thereat the IBP members who were found involved in the irregularities in
the elections, in order to "impress upon the participants, in that electoral exercise the seriousness of
the misconduct which attended it and the stern disapproval with which it is viewed by this Court, and
to restore the non-political character of the IBP and reduce, if not entirely eliminate, expensive
electioneering."

The Court likewise amended several provisions of the IBP By-Laws. First, it removed direct election
by the House of Delegates of the (a) officers of the House of Delegates; (b) IBP President; and (c)
Executive Vice-President (EVP). Second, it restored the former system of the IBP Board choosing
the IBP President and the Executive Vice President (EVP) from among themselves on a rotation
basis (Section 47 of the By-Laws, as amended) and the automatic succession by the EVP to the
position of the President upon the expiration of their common two-year term. Third, it amended
Sections 37 and 39 by providing that the Regional Governors shall be elected by the members of
their respective House of Delegates and that the position of Regional Governor shall be rotated
among the different chapters in the region.

The foregoing considerations demonstrate the power of the Supreme Court over the IBP and
establish without doubt its jurisdiction to hear and decide the present controversy.

In support of its stance on the second issue that the petitioners have no cause of action against him,
respondent De Vera argues that the IBP By-Laws does not allow petitions to disqualify candidates
for Regional Governors since what it authorizes are election protests or post-election cases under
Section 40 thereof which reads:
SECTION 40. Election contests. - Any nominee desiring to contest an election shall, within two days
after the announcement of the results of the elections, file with the President of the Integrated Bar a
written protest setting forth the grounds therefor. Upon receipt of such petition, the President shall
forthwith call a special meeting of the outgoing Board of Governors to consider and hear the protest,
with due notice to the contending parties. The decision of the Board shall be announced not later
than the following May 31, and shall be final and conclusive.

Indeed, there is nothing in the present IBP By-Laws which sanctions the disqualification of
candidates for IBP governors. The remedy it provides for questioning the elections is the election
protest. But this remedy, as will be shown later, is not available to just anybody.

Before its amendment in 1989, the IBP By-Laws allowed the disqualification of nominees for the
position of regional governor. This was carefully detailed in the former Section 39(4) of the IBP By-
Laws, to wit:

SECTION 39 (4) Disqualification proceedings. - Any question relating to the eligibility of a candidate
must be raised prior to the casting of ballots, and shall be immediately decided by the Chairman. An
appeal from such decision may be taken to the Delegates in attendance who shall forthwith resolve
the appeal by plurality vote. Voting shall be by raising of hands. The decision of the Delegates shall
be final, and the elections shall thereafter proceed. Recourse to the Board of Governors may be had
in accordance with Section 40.

The above-quoted sub-section was part of the provisions on nomination and election of the Board of
Governors. Before, members of the Board were directly elected by the members of the House of
Delegates at its annual convention held every other year.29 The election was a two-tiered process.
First, the Delegates from each region chose by secret plurality vote, not less than two nor more than
five nominees for the position of Governor for their Region. The names of all the nominees, arranged
by region and in alphabetical order, were written on the board within the full view of the House,
unless complete mimeographed copies of the lists were distributed to all the Delegates.30 Thereafter,
each Delegate, or, in his absence, his alternate voted for only one nominee for Governor for each
Region.31 The nominee from every Region receiving the highest number of votes was declared and
certified elected by the Chairman.32

In the aftermath of the controversy which arose during the 1989 IBP elections, this Court deemed it
best to amend the nomination and election processes for Regional Governors. The Court localized
the elections, i.e, each Regional Governor is nominated and elected by the delegates of the
concerned region, and adopted the rotation process through the following provisions, to wit:

SECTION 37: Composition of the Board. - The Integrated Bar of the Philippines shall be governed
by a Board of Governors consisting of nine (9) Governors from the nine (9) regions as delineated in
Section 3 of the Integration Rule, on the representation basis of one Governor for each region to be
elected by the members of the House of Delegates from that region only. The position of Governor
should be rotated among the different chapters in the region.

SECTION 39: Nomination and election of the Governors. - At least one (1) month before the national
convention the delegates from each region shall elect the governor for their region, the choice of
which shall as much as possible be rotated among the chapters in the region.

The changes adopted by the Court simplified the election process and thus made it less
controversial. The grounds for disqualification were reduced, if not totally eradicated, for the pool
from which the Delegates may choose their nominees is diminished as the rotation process
operates.
The simplification of the process was in line with this Court’s vision of an Integrated Bar which is
non-political33 and effective in the discharge of its role in elevating the standards of the legal
profession, improving the administration of justice and contributing to the growth and progress of the
Philippine society.34

The effect of the new election process convinced this Court to remove the provision on
disqualification proceedings. Consequently, under the present IBP By-Laws, the instant petition has
no firm ground to stand on.

Respondent De Vera likewise asseverates that under the aforequoted Section 40 of the IBP By-
Laws, petitioners are not the proper persons to bring the suit for they are not qualified to be
nominated in the elections of regional governor for Eastern Mindanao. He argues that following the
rotation rule under Section 39 of the IBP By-Laws as amended, only IBP members from Agusan del
Sur and Surigao del Norte are qualified to be nominated.

Truly, with the applicability of Section 40 of the IBP By-Laws to the present petition, petitioners are
not the proper parties to bring the suit. As provided in the aforesaid section, only nominees can file
with the President of the IBP a written protest setting forth the grounds therefor. As claimed by
respondent De Vera, and not disputed by petitioners, only IBP members from Agusan del Sur and
Surigao del Norte are qualified to be nominated and elected at the election for the 16th Regional
Governor of Eastern Mindanao. This is pursuant to the rotation rule enunciated in the aforequoted
Sections 37 and 38 of the IBP By-Laws. Petitioner Garcia is from Bukidnon IBP Chapter while the
other petitioners, Ravanera and Velez, are from the Misamis Oriental IBP Chapter. Consequently,
the petitioners are not even qualified to be nominated at the forthcoming election.

On the third issue relating to the ripeness or prematurity of the present petition.

This Court is one with the IBP Board in its position that it is premature for the petitioners to seek the
disqualification of respondent De Vera from being elected IBP Governor for the Eastern Mindanao
Region. Before a member is elected governor, he has to be nominated first for the post. In this case,
respondent De Vera has not been nominated for the post. In fact, no nomination of candidates has
been made yet by the members of the House of Delegates from Eastern Mindanao. Conceivably too,
assuming that respondent De Vera gets nominated, he can always opt to decline the nomination.

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 Parañaque 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:

Section 19. Registration. -

....

Unless he otherwise registers his preference for a particular Chapter, a lawyer shall be considered a
member of the Chapter of the province, city, political subdivision or area where his office or, in the
absence thereof, his residence is located. In no case shall any lawyer be a member of more than
one Chapter. (Underscoring supplied)
It is clearly stated in the afore-quoted 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 his 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:

SECTION 29-2. Membership - The Chapter comprises all members registered in its membership roll.
Each member shall maintain his membership until the same is terminated on any of the grounds set
forth in the By-Laws of the Integrated Bar, or he transfers his membership to another Chapter as
certified by the Secretary of the latter, provided that the transfer is made not less than three months
immediately preceding any Chapter election.

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
letter35 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 August 1, 2001 and September 3, 2001. On
February 27, 2003, the elections of the IBP Chapter Officers were simultaneously held all over the
Philippines, as mandated by Section 29-12.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.36 Between September 3, 2001 and February 27, 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 February 27, 2003.

Petitioners likewise claim that respondent De Vera is disqualified because he is not morally fit to
occupy the position of governor of Eastern Mindanao.

We are not convinced. As long as an aspiring member meets the basic requirements provided in the
IBP By-Laws, he cannot be barred. The basic qualifications for one who wishes to be elected
governor for a particular region are: (1) he is a member in good standing of the IBP;37 2) he is
included in the voter’s list of his chapter or he is not disqualified by the Integration Rule, by the By-
Laws of the Integrated Bar, or by the By-Laws of the Chapter to which he belongs;38 (3) he does not
belong to a chapter from which a regional governor has already been elected, unless the election is
the start of a new season or cycle;39 and (4) he is not in the government service.40

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
candidates 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.
Petitioners, in assailing the morality of respondent De Vera on the basis of the alleged sanction
imposed by the Supreme Court during the deliberation on the constitutionality of the plunder law, is
apparently referring to this Court’s Decision dated 29 July 2002 in In Re: Published Alleged Threats
Against Members of the Court in the Plunder Law Case Hurled by Atty. Leonard De Vera.41 In this
case, respondent De Vera was found guilty of indirect contempt of court and was imposed a fine in
the amount of Twenty Thousand Pesos (P20,000.00) for his remarks contained in two newspaper
articles published in the Inquirer. Quoted hereunder are the pertinent portions of the report, with De
Vera’s statements written in italics.

PHILIPPINE DAILY INQUIRER

Tuesday, November 6, 2001

Erap camp blamed for oust-Badoy maneuvers

Plunder Law

De Vera asked the Supreme Court to dispel rumors that it would vote in favor of a petition filed by
Estrada’s lawyers to declare the plunder law unconstitutional for its supposed vagueness.

De Vera said he and his group were "greatly disturbed" by the rumors from Supreme Court insiders.

Reports said that Supreme Court justices were tied 6-6 over the constitutionality of the Plunder Law,
with two other justices still undecided and uttered most likely to inhibit, said Plunder Watch, a
coalition formed by civil society and militant groups to monitor the prosecution of Estrada.

"We are afraid that the Estrada camp’s effort to coerce, bribe, or influence the justices- considering
that it has a P500 million slush fund from the aborted power grab that May-will most likely result in a
pro-Estrada decision declaring the Plunder Law either unconstitutional or vague," the group said.42

PHILIPPINE DAILY INQUIRER

Monday, November 19, 2001

SC under pressure from Erap pals, foes

Xxx

"People are getting dangerously, passionate.. .emotionally charged." said lawyer Leonard De Vera of
the Equal Justice for All Movement and a leading member of the Estrada Resign movement.

He voiced his concern that a decision by the high tribunal rendering the plunder law unconstitutional
would trigger mass actions, probably more massive than those that led to People Power II.

Xxx

De Vera warned of a crisis far worse than the "jueteng" scandal that led to People Power II if the
rumor turned out to be true.
"People wouldn’t just swallow any Supreme Court decision that is basically wrong. Sovereignty must
prevail. "43

In his Explanation submitted to the Court, respondent De Vera admitted to have made said
statements but denied to have uttered the same "to degrade the Court, to destroy public confidence
in it and to bring it into disrepute."44 He explained that he was merely exercising his constitutionally
guaranteed right to freedom of speech.

The Court found the explanation unsatisfactory and held that the statements were aimed at
influencing and threatening the Court to decide in favor of the constitutionality of the Plunder Law.45

The ruling cannot serve as a basis to consider respondent De Vera immoral. The act for which he
was found guilty of indirect contempt does not involve moral turpitude.

In Tak Ng v. Republic of the Philippines46 cited in Villaber v. Commission on Elections,47 the Court
defines moral turpitude as "an act of baseness, vileness or depravity in the private and social duties
which a man owes his fellow men, or to society in general, contrary to the accepted and customary
rule of right and duty between man and man, or conduct contrary to justice, honesty, modesty or
good morals."48 The determination of whether an act involves moral turpitude is a factual issue and
frequently depends on the circumstances attending the violation of the statute.49

In this case, it cannot be said that the act of expressing one’s opinion on a public interest issue can
be considered as an act of baseness, vileness or depravity. Respondent De Vera did not bring
1âw phi1

suffering nor cause undue injury or harm to the public when he voiced his views on the Plunder
Law.50 Consequently, there is no basis for petitioner to invoke the administrative case as evidence of
respondent De Vera’s alleged immorality.

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.51 In this case,
the petitioners have not shown how the administrative complaint affects respondent De Vera’s moral
fitness to run for governor.

Finally, on the allegation that respondent de Vera or his handlers had housed the delegates from
Eastern Mindanao in the Century Park Hotel to get their support for his candidacy, again petitioners
did not present any proof to substantiate the same. It must be emphasized that bare allegations,
unsubstantiated by evidence, are not equivalent to proof under our Rules of Court.52

WHEREFORE, the Petition to disqualify respondent Atty. Leonard De Vera to run for the position of
IBP Governor for Eastern Mindanao in the 16th election of the IBP Board of Governors is hereby
DISMISSED. The Temporary Restraining Order issued by this Court on 30 May 2003 which enjoined
the conduct of the election for the IBP Regional Governor in Eastern Mindanao is hereby LIFTED.
Accordingly, the IBP Board of Governors is hereby ordered to hold said election with proper notice
and with deliberate speed.

SO ORDERED.
G.R. No. 97239 May 12, 1993

INTERNATIONAL RICE RESEARCH INSTITUTE, petitioner,

vs.
NATIONAL LABOR RELATIONS COMMISSION (THIRD DIVISION) AND NESTOR B.
MICOSA, respondents.

Jimenez & Associates for petitioner.

Santos & Associates for private respondent.

NOCON, J.:

Posed for determination in this petition for certiorari is the question of whether a conviction of a crime
involving moral turpitude is a ground for dismissal from employment and corollarily, whether a
conviction of a crime of homicide involves moral turpitude.

International Rice Research Institute (IRRI) is an international organization recognized by the

Philippine government and accorded privileges, rights and immunities normally granted to
organizations of universal character. In 1977, it hired private respondent Nestor B. Micosa as
laborer, who thereby became bound by IRRI Employment Policy and Regulations, the Miscellaneous
Provisions of which states viz:

C. Conviction and Previous Separation

l. . . .

2. An employer who has been convicted of a (sic) criminal offense involving moral
turpitude may be dismissed from the service.1

On February 6, 1967, Micosa stabbed to death one Reynaldo Ortega inside a beer house in Los
Baños, Laguna.

On September 15, 1987, Micosa was accused of the crime of homicide. During the pendency of the
criminal case, Micosa voluntarily applied for inclusion in IRRI's Special Separation Program.
However, on January 9, 1990, IRRI's Director General, Klaus L. Lampe expressed deep regret that
he had to disapprove Micosa's application for separation because of IRRI's desire to retain the skills
and talents that persons like him possess.2

On January 23, 1990, the trial court rendered a decision fending Micosa guilty of homicide, but
appreciating, however, in his favor the presence of the mitigating circumstances of (a) incomplete
self-defense and (b) voluntary surrender, plus the total absence of any aggravating circumstance.

Subsequently, Micosa applied for suspension of his sentence under the Probation Law.

On February 8, 1990, IRRI's Director General personally wrote Micosa that his appointment as
laborer was confirmed, making him a regular core employee whose appointment was for an
indefinite period and who "may not be terminated except for justifiable causes as defined by the
pertinent provisions of the Philippine Labor Code.3

On March 30, 1990, IRRI's Human Resource Development Head, J.K. Pascual wrote Micosa urging
him to resign from employment in view of his conviction in the case for homicide.

On April 4, 1990, the Laguna Parole and Probation Office No. II wrote IRRI informing the latter that
said office found Micosa's application for probation meritorious as he was evaluated "to possess
desirable social antecedents in his life."4

On April 6, 1990, Micosa informed J.K. Pascual that he had no intention of resigning from his job at
IRRI.

On April 22, 1990, J. K. Pascual replied to Micosa's letter insisting that the crime for which he was
convicted involves moral turpitude and informing him that he is thereby charged of violating Section
I-AA, Par VII, C-2 of the Institute's Personnel Manual.

On April 27, 1990, Micosa explained to J.K. Pascual that the slaying of Reynaldo Ortega on
February 6, 1987 arose out of his act of defending himself from unlawful aggression; that his
conviction did not involve moral turpitude and that he opted not to appeal his conviction so that he
could avail of the benefits of probation, which the trial court granted to him.

On May 7, 1990, Micosa sought the assistance of IRRI's Grievance Committee who recommended
to the Director General, his continued employment. However, on May 21, 1990, J.K. Pascual issued
a notice to Micosa that the latter's employment was to terminate effective May 25, 1990.

On May 29, 1990, Micosa filed a case for illegal dismissal.

On August 21, 1990, Labor Arbiter Numeriano D. Villena rendered judgment finding the termination
of Micosa illegal and ordering his reinstatement with full backwages from the date of his dismissal up
to actual reinstatement. The dispositive portion of the same is hereunder quoted:

WHEREFORE, premises considered, the following orders are hereby entered:

1. Finding the termination of complainant's services illegal;

2. Ordering respondent International Rice Research Institute to reinstate complainant

Nestor B. Micosa to his former position without loss of seniority rights and other
privileges appurtenant, thereto immediately upon receipt hereof;

3. Ordering respondent International Rice Research Institute to pay complainant

Nestor B. Micosa his full backwages computed from the date of his dismissal on May
25, 1990 up to actual reinstatement based on his latest salary rate of P41,068.00 per
month.

4. Ordering respondent International Rice Research Institute, to pay complainant's

counsel the amount of Five Thousand Pesos P5,000.00, representing his attorney's
fees; and.

5. Dismissing the claim for damages for lack of merit.

 SO ORDERED.5

On appeal, the National Labor Relations Commission was basically in agreement with the findings
and conclusions of the Labor Arbiter. Hence, in a resolution dated January 31, 1991, it affirmed the
appealed decision, the dispositive portion of which states:

WHEREFORE, the appealed decision is AFFIRMED with modification deleting the

award of attorney's fees.

SO ORDERED.6

Accordingly, petitioner filed this instant petition raising the following issues:

1. THE NATIONAL LABOR RELATIONS COMMISSION HAS ACTED WITH GRAVE

ABUSE OF DISCRETION IN FINDING THAT IRRI HAD NO RIGHT NOR
AUTHORITY TO PRESCRIBE ANY OTHER CAUSE/S FOR DISMISSAL IF THE
SAME IS NOT AMONG THOSE ENUMERATED IN ARTICLE OF THE LABOR
CODE.

2. THE NATIONAL LABOR RELATIONS COMMISSION COMMITTED GRAVE

ABUSE OF DISCRETION IN HOLDING THAT "THERE IS NO BASIS TO APPLY
PETITIONER'S INSTITUTE PERSONNEL MANUAL IN DISMISSING THE
COMPLAINANT ON THE SOLE GROUND THAT HIS CONVICTION OF HOMICIDE
CONSTITUTE MORAL TURPITUDE.7

The basic premise of petitioner is that Micosa's conviction of the crime of homicide, which is a crime
involving moral turpitude, is a valid ground for his dismissal under the Miscellaneous Provisions of
IRRI's Employment Policy Regulations.

In addition to its claim that it has the prerogative to issue rules and regulations including those
concerning employee discipline and that its employees are bound by the aforesaid personnel
manual, petitioner justifies its action as a legitimate act of self-defense. It admits that Micosa's
interests — in his employment and means of livelihood — are adversely affected; that a convict
should not be discriminated against in society and that he should be given the same opportunities as
those granted to other fellow citizens but claims that at times, one's right is deemed superior than
that of another. In this case, petitioner believes that it has a superior right to maintain a very high
degree or standard not only to forestall any internal problem hampering operations but also to
prevent even the smallest possibility that said problems could occur considering that it is an
international organization with concomitant obligation to the host country to avoid creating
disturbance or give occasion for such disturbance.

It should be recalled, however, that Micosa was issued an appointment with an assurance from the
IRRI's Director General that as regular core employee he "may not be terminated except for
justifiable causes as defined by the pertinent provisions of the Philippine Labor Code."8 Thus, IRRI
could not remove him from his job if there existed no justifiable cause as defined by the Labor Code.

Article 282 of the Labor Code enumerates the just causes wherein an employer may terminate an
employment. Verily, conviction of a crime involving moral turpitude is not one of these justifiable
causes. Neither may said ground be justified under Article 282 (c) nor under 282 (d) by analogy.
Fraud or willful breach by the employees of the trust reposed in him by his employer or duly
authorized representative under Article 282 (c) refers to any fault or culpability on the part of the
employee in the discharge of his duty rendering him absolutely unworthy of the trust and confidence
demanded by his position. It cannot be gainsaid that the breach of trust must be related to the
performance of the employee's function.9 On the other hand, the commission of a crime by the
employee under Article 282 (d) refer to an offense against the person of his employer or any
immediate member of his family or his duly authorized representative. Analogous causes must have
an element similar to those found in the specific just cause enumerated under Article 282. Clearly
lacking in the ground invoked by petitioner is its relation to his work or to his employer.

In the case at bar, the commission of the crime of homicide was outside the perimeter of the IRRI
complex, having been committed in a restaurant after office hours and against a non-IRRI employee.
Thus, the conviction of Micosa for homicide was not work-related, his misdeed having no relation to
his position as laborer and was not directed or committed against IRRI or its authorized agent.

Besides, IRRI failed to show how the dismissal of Micosa would be in consideration of the safety and
welfare of its employees, its reputation and standing in the community and its special obligations to
its host country. It did not present evidence to show that Micosa possessed a tendency to kill without
provocation or that he posed a clear and present danger to the company and its personnel. On the
contrary, the records reveal that Micosa's service record is unblemished. There is no record
whatsoever that he was involved in any incident similar to that which transpired on that fateful night
of February 6, 1987. In fact, even after his conviction, the IRRI's Director General expressed his
confidence in him when he disapproved his application for special separation in a letter dated
January 8, 1990 and when he conveyed to him IRRI's decision to promote him to the status of a
regular core employee, with the commensurate increases in benefits in a letter dated February 1990.
Respondent IRRI derogates the letters' significance saying that they were mere pro-
forma communications which it had given to numerous other workers. But whether or not such
letters were "form letters, they expressed the message that were meant to be conveyed,i.e., that
Micosa is fit for continued employment. In addition, the employees at IRRI's Grievance Committee
interceded favorably in behalf of Micosa when they recommended his retention despite his
conviction showing that the very employees which IRRI sought to protect did not believe that they
were placing their very own lives in danger with Micosa's retention.

Likewise, noteworthy is the fact that Micosa, although found guilty as charged, was also found
worthy of probation. This means that all the information regarding his character, antecedents,
environment, as well as his mental and physical condition were evaluated as required under Section
8 of the Probation Law and it was found that there existed no undue risk that Micosa will commit
another crime during his period of probation and that his being placed on probation would be to the
benefit of society as a whole.

In the face of all these, IRRI remained adamant and insisted on Micosa's termination. Certainly, said
termination cannot be upheld for it lacked not only a legal basis but factual basis as well.

Even under IRRI's Employment Policy and Regulations, the dismissal of Micosa's on the ground of
his conviction for homicide cannot be sustained. The miscellaneous provisions of said personnel
manual mentions of conviction of a crime involving moral turpitude as a ground for dismissal. IRRI
simply assumed that conviction of the crime of homicide is conviction of a crime involving moral
turpitude. We do not subscribe to this view.

Moral turpitude has been defined in Can v. Galing 10 citing In Re Basa11 and Tak Ng v. Republic12 as
everything which is done contrary to justice, modesty, or good morals; an act of baseness, vileness
or depravity in the private and social duties which a man owes his fellowmen, or to society in
general, contrary to justice, honesty, modesty or good morals.
As to what crime involves moral turpitude, is for the Supreme Court to
determine.13 Thus, the precipitate conclusion of IRRI that conviction of the crime of homicide involves
moral turpitude is unwarranted considering that the said crime which resulted from an act of
incomplete self-defense from an unlawful aggression by the victim has not been so classified as
involving moral turpitude.

IRRI argues that the crime of homicide committed by Micosa involves moral turpitude as the killing of
a man is conclusively an act against justice and is immoral in itself not merely prohibited by law. It
added that Micosa stabbed the victim more than what was necessary to repel the attack.

IRRI failed to comprehend the significance of the facts in their totality. The facts on record show that
Micosa was then urinating and had his back turned when the victim drove his fist unto Micosa's face;
that the victim then forcibly rubbed Micosa's face into the filthy urinal; that Micosa pleaded to the
victim to stop the attack but was ignored and that it was while Micosa was in that position that he
drew a fan knife from the left pocket of his shirt and desperately swung it at the victim who released
his hold on Micosa only after the latter had stabbed him several times. These facts show that
Micosa's intention was not to slay the victim but only to defend his person. The appreciation in his
favor of the mitigating circumstances of self- defense and voluntary surrender, plus the total absence
of any aggravating circumstance demonstrate that Micosa's character and intentions were not
inherently vile, immoral or unjust.

This is not to say that all convictions of the crime of homicide do not involve moral turpitude.
Homicide may or may not involve moral turpitude depending on the degree of the crime.14 Moral
turpitude is not involved in every criminal act and is not shown by every known and intentional
violation of statute, but whether any particular conviction involves moral turpitude may be a question
of fact and frequently depends on all the surrounding circumstances.15While . . . generally but not
always, crimes mala in se involve moral turpitude, while crimes mala prohibita do not, it, cannot
always be ascertained whether moral turpitude does or does not exist by classifying a crime
as malum in seor as malum prohibitum, since there are crimes which are mala in se and yet but
rarely involve moral turpitude and there are crimes which involve moral turpitude and are mala
prohibita only.16 It follows therefore, that moral turpitude is somewhat a vague and indefinite term, the
meaning of which must be left to the process of judicial inclusion or exclusion as the cases are
reached.

In fine, there is nothing in this case to show any abuse of discretion by the National Labor Relations
Commission in affirming the decision of the Labor Arbiter finding that Micosa was illegally dismissed.
For certiorari to lie, there must be capricious, arbitrary and whimsical exercise of power, the very
antithesis of the judicial prerogative in accordance with centuries of both civil and common
traditions.17 The abuse of discretion must be grave and patent, and it must be shown that the
discretion was exercised arbitrarily or despotically.18

WHEREFORE, the petition, is hereby DISMISSED for lack of merit.

SO ORDERED.
A.C. No. 6792 January 25, 2006

ROBERTO SORIANO, Complainant,

vs.
Atty. MANUEL DIZON, Respondent.

DECISION

PER CURIAM:

Before us is a Complaint-Affidavit1 for the disbarment of Atty. Manuel Dizon, filed by Roberto Soriano
with the Commission on Bar Discipine (CBD) of the Integrated Bar of the Philippines (IBP).
Complainant alleges that the conviction of respondent for a crime involving moral turpitude, together
with the circumstances surrounding the conviction, violates Canon 1 of Rule 1.01 of the Code of
Professional Responsibility;2 and constitutes sufficient ground for his disbarment under Section 27 of
Rule 138 of the Rules of Court.3

Because of the failure of Atty. Dizon to submit his Answer to the Complaint, the CBD issued a Notice
dated May 20, 2004, informing him that he was in default, and that an ex-parte hearing had been
scheduled for June 11, 2004.4After that hearing, complainant manifested that he was submitting the
case on the basis of the Complaint and its attachments.5 Accordingly, the CBD directed him to file
his Position Paper, which he did on July 27, 2004.6Afterwards, the case was deemed submitted for
resolution.

On December 6, 2004, Commissioner Teresita J. Herbosa rendered her Report and

Recommendation, which was later adopted and approved by the IBP Board of Governors in its
Resolution No. XVI-2005-84 dated March 12, 2005.

In his Complaint-Affidavit, Soriano alleged that respondent had violated Canon 1, Rule 1.01 of the
Code of Professional Responsibility; and that the conviction of the latter for frustrated
homicide,7 which involved moral turpitude, should result in his disbarment.

The facts leading to respondent’s conviction were summarized by Branch 60 of the Regional Trial
Court of Baguio City in this wise:

"x x x. The accused was driving his brown Toyota Corolla and was on his way home after gassing up
in preparation for his trip to Concepcion, Tarlac with his wife. Along Abanao Street, a taxi driver
overtook the car driven by the accused not knowing that the driver of the car he had overtaken is not
just someone, but a lawyer and a prominent member of the Baguio community who was under the
influence of liquor. Incensed, the accused tailed the taxi driver until the latter stopped to make a turn
at [the] Chugum and Carino Streets. The accused also stopped his car, berated the taxi driver and
held him by his shirt. To stop the aggression, the taxi driver forced open his door causing the
accused to fall to the ground. The taxi driver knew that the accused had been drinking because he
smelled of liquor. Taking pity on the accused who looked elderly, the taxi driver got out of his car to
help him get up. But the accused, by now enraged, stood up immediately and was about to deal the
taxi driver a fist blow when the latter boxed him on the chest instead. The accused fell down a
second time, got up again and was about to box the taxi driver but the latter caught his fist and
turned his arm around. The taxi driver held on to the accused until he could be pacified and then
released him. The accused went back to his car and got his revolver making sure that the handle
was wrapped in a handkerchief. The taxi driver was on his way back to his vehicle when he noticed
the eyeglasses of the accused on the ground. He picked them up intending to return them to the
accused. But as he was handing the same to the accused, he was met by the barrel of the gun held
by the accused who fired and shot him hitting him on the neck. He fell on the thigh of the accused so
the latter pushed him out and sped off. The incident was witnessed by Antonio Billanes whose
testimony corroborated that of the taxi driver, the complainant in this case, Roberto Soriano."8

It was the prosecution witness, Antonio Billanes, who came to the aid of Soriano and brought the
latter to the hospital. Because the bullet had lacerated the carotid artery on the left side of his
neck,9 complainant would have surely died of hemorrhage if he had not received timely medical
assistance, according to the attending surgeon, Dr. Francisco Hernandez, Jr. Soriano sustained a
spinal cord injury, which caused paralysis on the left part of his body and disabled him for his job as
a taxi driver.

The trial court promulgated its Decision dated November 29, 2001. On January 18, 2002,
respondent filed an application for probation, which was granted by the court on several conditions.
These included satisfaction of "the civil liabilities imposed by [the] court in favor of the offended
party, Roberto Soriano."10

According to the unrefuted statements of complainant, Atty. Dizon, who has yet to comply with this
particular undertaking, even appealed the civil liability to the Court of Appeals.11

In her Report and Recommendation, Commissioner Herbosa recommended that respondent be

disbarred from the practice of law for having been convicted of a crime involving moral turpitude.

The commissioner found that respondent had not only been convicted of such crime, but that the
latter also exhibited an obvious lack of good moral character, based on the following facts:

"1. He was under the influence of liquor while driving his car;

"2. He reacted violently and attempted to assault Complainant only because the latter,
driving a taxi, had overtaken him;

"3. Complainant having been able to ward off his attempted assault, Respondent went back
to his car, got a gun, wrapped the same with a handkerchief and shot Complainant[,] who
was unarmed;

"4. When Complainant fell on him, Respondent simply pushed him out and fled;

"5. Despite positive identification and overwhelming evidence, Respondent denied that he
had shot Complainant;

"6. Apart from [his] denial, Respondent also lied when he claimed that he was the one
mauled by Complainant and two unidentified persons; and,

"7. Although he has been placed on probation, Respondent has[,] to date[,] not yet satisfied
his civil liabilities to Complainant."12

On July 8, 2005, the Supreme Court received for its final action the IBP Resolution adopting the
Report and Recommendation of the Investigating Commissioner.

We agree with the findings and recommendations of Commissioner Herbosa, as approved and
adopted by the IBP Board of Governors.
Under Section 27 of Rule 138 of the Rules of Court, conviction for a crime involving moral turpitude
is a ground for disbarment or suspension. By such conviction, a lawyer is deemed to have become
unfit to uphold the administration of justice and to be no longer possessed of good moral
character.13 In the instant case, respondent has been found guilty; and he stands convicted, by final
judgment, of frustrated homicide. Since his conviction has already been established and is no longer
open to question, the only issues that remain to be determined are as follows: 1) whether his crime
of frustrated homicide involves moral turpitude, and 2) whether his guilt warrants disbarment.

Moral turpitude has been defined as "everything which is done contrary to justice, modesty, or good
morals; an act of baseness, vileness or depravity in the private and social duties which a man owes
his fellowmen, or to society in general, contrary to justice, honesty, modesty, or good morals."14

The question of whether the crime of homicide involves moral turpitude has been discussed
in International Rice Research Institute (IRRI) v. NLRC,15 a labor case concerning an employee who
was dismissed on the basis of his conviction for homicide. Considering the particular circumstances
surrounding the commission of the crime, this Court rejected the employer’s contention and held that
homicide in that case did not involve moral turpitude. (If it did, the crime would have been violative of
the IRRI’s Employment Policy Regulations and indeed a ground for dismissal.) The Court explained
that, having disregarded the attendant circumstances, the employer made a pronouncement that
was precipitate. Furthermore, it was not for the latter to determine conclusively whether a crime
involved moral turpitude. That discretion belonged to the courts, as explained thus:

"x x x. Homicide may or may not involve moral turpitude depending on the degree of the
crime. Moral turpitude is not involved in every criminal act and is not shown by every known and
intentional violation of statute, but whether any particular conviction involves moral turpitude may be
a question of fact and frequently depends on all the surrounding circumstances. x x x."16 (Emphasis
supplied)

In the IRRI case, in which the crime of homicide did not involve moral turpitude, the Court
appreciated the presence of incomplete self-defense and total absence of aggravating
circumstances. For a better understanding of that Decision, the circumstances of the crime are
quoted as follows:

"x x x. The facts on record show that Micosa [the IRRI employee] was then urinating and had his
back turned when the victim drove his fist unto Micosa's face; that the victim then forcibly rubbed
Micosa's face into the filthy urinal; that Micosa pleaded to the victim to stop the attack but was
ignored and that it was while Micosa was in that position that he drew a fan knife from the left pocket
of his shirt and desperately swung it at the victim who released his hold on Micosa only after the
latter had stabbed him several times. These facts show that Micosa's intention was not to slay the
victim but only to defend his person. The appreciation in his favor of the mitigating circumstances of
self-defense and voluntary surrender, plus the total absence of any aggravating circumstance
demonstrate that Micosa's character and intentions were not inherently vile, immoral or unjust."17

The present case is totally different. As the IBP correctly found, the circumstances clearly evince the
moral turpitude of respondent and his unworthiness to practice law.

Atty. Dizon was definitely the aggressor, as he pursued and shot complainant when the latter least
expected it. The act of aggression shown by respondent will not be mitigated by the fact that he was
hit once and his arm twisted by complainant. Under the circumstances, those were reasonable
actions clearly intended to fend off the lawyer’s assault.
We also consider the trial court’s finding of treachery as a further indication of the skewed morals of
respondent. He shot the victim when the latter was not in a position to defend himself. In fact, under
the impression that the assault was already over, the unarmed complainant was merely returning the
eyeglasses of Atty. Dizon when the latter unexpectedly shot him. To make matters worse,
respondent wrapped the handle of his gun with a handkerchief so as not to leave fingerprints. In so
doing, he betrayed his sly intention to escape punishment for his crime.

The totality of the facts unmistakably bears the earmarks of moral turpitude. By his conduct,
respondent revealed his extreme arrogance and feeling of self-importance. As it were, he acted like
a god on the road, who deserved to be venerated and never to be slighted. Clearly, his inordinate
reaction to a simple traffic incident reflected poorly on his fitness to be a member of the legal
profession. His overreaction also evinced vindictiveness, which was definitely an undesirable trait in
any individual, more so in a lawyer. In the tenacity with which he pursued complainant, we see not
the persistence of a person who has been grievously wronged, but the obstinacy of one trying to
assert a false sense of superiority and to exact revenge.

It is also glaringly clear that respondent seriously transgressed Canon 1 of the Code of Professional
Responsibility through his illegal possession of an unlicensed firearm18 and his unjust refusal to
satisfy his civil liabilities.19 He has thus brazenly violated the law and disobeyed the lawful orders of
the courts. We remind him that, both in his attorney’s oath20 and in the Code of Professional
Responsibility, he bound himself to "obey the laws of the land."

All told, Atty. Dizon has shown through this incident that he is wanting in even a basic sense of
justice. He obtained the benevolence of the trial court when it suspended his sentence and granted
him probation. And yet, it has been four years21 since he was ordered to settle his civil liabilities to
complainant. To date, respondent remains adamant in refusing to fulfill that obligation. By his
extreme impetuosity and intolerance, as shown by his violent reaction to a simple traffic altercation,
he has taken away the earning capacity, good health, and youthful vigor of his victim. Still, Atty.
Dizon begrudges complainant the measly amount that could never even fully restore what the latter
has lost.

Conviction for a crime involving moral turpitude may relate, not to the exercise of the profession of
lawyers, but certainly to their good moral character.22 Where their misconduct outside of their
professional dealings is so gross as to show them morally unfit for their office and unworthy of the
privileges conferred upon them by their license and the law, the court may be justified in suspending
or removing them from that office.23

We also adopt the IBP’s finding that respondent displayed an utter lack of good moral character,
which is an essential qualification for the privilege to enter into the practice of law. Good moral
character includes at least common honesty.24

In the case at bar, respondent consistently displayed dishonest and duplicitous behavior. As found
by the trial court, he had sought, with the aid of Vice-Mayor Daniel Fariñas, an out-of-court
settlement with complainant’s family.25 But when this effort failed, respondent concocted a complete
lie by making it appear that it was complainant’s family that had sought a conference with him to
obtain his referral to a neurosurgeon.26

The lies of Atty Dizon did not end there. He went on to fabricate an entirely implausible story of
having been mauled by complainant and two other persons.27 The trial court had this to say:

"The physical evidence as testified to by no less than three (3) doctors who examined [Atty. Dizon]
does not support his allegation that three people including the complainant helped each other in
kicking and boxing him. The injuries he sustained were so minor that it is improbable[,] if not
downright unbelievable[,] that three people who he said were bent on beating him to death could do
so little damage. On the contrary, his injuries sustain the complainant’s version of the incident
particularly when he said that he boxed the accused on the chest. x x x."28

Lawyers must be ministers of truth. No moral qualification for bar membership is more important
than truthfulness.29The rigorous ethics of the profession places a premium on honesty and
condemns duplicitous behavior.30 Hence, lawyers must not mislead the court or allow it to be misled
by any artifice. In all their dealings, they are expected to act in good faith.

The actions of respondent erode rather than enhance public perception of the legal profession. They
constitute moral turpitude for which he should be disbarred. "Law is a noble profession, and the
privilege to practice it is bestowed only upon individuals who are competent intellectually,
academically and, equally important, morally. Because they are vanguards of the law and the legal
system, lawyers must at all times conduct themselves, especially in their dealings with their clients
and the public at large, with honesty and integrity in a manner beyond reproach."31

The foregoing abhorrent acts of respondent are not merely dishonorable; they reveal a basic moral
flaw. Considering the depravity of the offense he committed, we find the penalty recommended by
the IBP proper and commensurate.

The purpose of a proceeding for disbarment is to protect the administration of justice by requiring
that those who exercise this important function be competent, honorable and reliable -- lawyers in
whom courts and clients may repose confidence.32 Thus, whenever a clear case of degenerate and
vile behavior disturbs that vital yet fragile confidence, we shall not hesitate to rid our profession of
odious members.

We remain aware that the power to disbar must be exercised with great caution, and that disbarment
should never be decreed when any lesser penalty would accomplish the end desired. In the instant
case, however, the Court cannot extend that munificence to respondent. His actions so despicably
and wantonly disregarded his duties to society and his profession. We are convinced that meting out
a lesser penalty would be irreconcilable with our lofty aspiration for the legal profession -- that every
lawyer be a shining exemplar of truth and justice.

We stress that membership in the legal profession is a privilege demanding a high degree of good
moral character, not only as a condition precedent to admission, but also as a continuing
requirement for the practice of law. Sadly, herein respondent has fallen short of the exacting
standards expected of him as a vanguard of the legal profession.

In sum, when lawyers are convicted of frustrated homicide, the attending circumstances – not the
mere fact of their conviction – would demonstrate their fitness to remain in the legal profession. In
the present case, the appalling vindictiveness, treachery, and brazen dishonesty of respondent
clearly show his unworthiness to continue as a member of the bar.

WHEREFORE, RESPONDENT MANUEL DIZON is hereby DISBARRED, and his name is

ORDERED STRICKEN from the Roll of Attorneys. Let a copy of this Decision be entered in his
record as a member of the Bar; and let notice of the same be served on the Integrated Bar of the
Philippines, and on the Office of the Court Administrator for circulation to all courts in the country.

SO ORDERED.
PASSING THE BAR AND THE PRACTICE OF LAW

B. M. No. 1036 June 10, 2003

DONNA MARIE S. AGUIRRE, Complainant,

vs.
EDWIN L. RANA, Respondent.

DECISION

CARPIO, J.:

The Case

Before one is admitted to the Philippine Bar, he must possess the requisite moral integrity for
membership in the legal profession. Possession of moral integrity is of greater importance than
possession of legal learning. The practice of law is a privilege bestowed only on the morally fit. A bar
candidate who is morally unfit cannot practice law even if he passes the bar examinations.

The Facts

Respondent Edwin L. Rana ("respondent") was among those who passed the 2000 Bar
Examinations.

On 21 May 2001, one day before the scheduled mass oath-taking of successful bar examinees as
members of the Philippine Bar, complainant Donna Marie Aguirre ("complainant") filed against
respondent a Petition for Denial of Admission to the Bar. Complainant charged respondent with
unauthorized practice of law, grave misconduct, violation of law, and grave misrepresentation.

The Court allowed respondent to take his oath as a member of the Bar during the scheduled oath-
taking on 22 May 2001 at the Philippine International Convention Center. However, the Court ruled
that respondent could not sign the Roll of Attorneys pending the resolution of the charge against
him. Thus, respondent took the lawyer’s oath on the scheduled date but has not signed the Roll of
Attorneys up to now.

Complainant charges respondent for unauthorized practice of law and grave misconduct.
Complainant alleges that respondent, while not yet a lawyer, appeared as counsel for a candidate in
the May 2001 elections before the Municipal Board of Election Canvassers ("MBEC") of Mandaon,
Masbate. Complainant further alleges that respondent filed with the MBEC a pleading dated 19 May
2001 entitled Formal Objection to the Inclusion in the Canvassing of Votes in Some Precincts for the
Office of Vice-Mayor. In this pleading, respondent represented himself as "counsel for and in behalf
of Vice Mayoralty Candidate, George Bunan," and signed the pleading as counsel for George Bunan
("Bunan").

On the charge of violation of law, complainant claims that respondent is a municipal government
employee, being a secretary of the Sangguniang Bayan of Mandaon, Masbate. As such, respondent
is not allowed by law to act as counsel for a client in any court or administrative body.

On the charge of grave misconduct and misrepresentation, complainant accuses respondent of

acting as counsel for vice mayoralty candidate George Bunan ("Bunan") without the latter engaging
respondent’s services. Complainant claims that respondent filed the pleading as a ploy to prevent
the proclamation of the winning vice mayoralty candidate.

On 22 May 2001, the Court issued a resolution allowing respondent to take the lawyer’s oath but
disallowed him from signing the Roll of Attorneys until he is cleared of the charges against him. In
the same resolution, the Court required respondent to comment on the complaint against him.

In his Comment, respondent admits that Bunan sought his "specific assistance" to represent him
before the MBEC. Respondent claims that "he decided to assist and advice Bunan, not as a lawyer
but as a person who knows the law." Respondent admits signing the 19 May 2001 pleading that
objected to the inclusion of certain votes in the canvassing. He explains, however, that he did not
sign the pleading as a lawyer or represented himself as an "attorney" in the pleading.

On his employment as secretary of the Sangguniang Bayan, respondent claims that he submitted
his resignation on 11 May 2001 which was allegedly accepted on the same date. He submitted a
copy of the Certification of Receipt of Revocable Resignation dated 28 May 2001 signed by Vice-
Mayor Napoleon Relox. Respondent further claims that the complaint is politically motivated
considering that complainant is the daughter of Silvestre Aguirre, the losing candidate for mayor of
Mandaon, Masbate. Respondent prays that the complaint be dismissed for lack of merit and that he
be allowed to sign the Roll of Attorneys.

On 22 June 2001, complainant filed her Reply to respondent’s Comment and refuted the claim of
respondent that his appearance before the MBEC was only to extend specific assistance to Bunan.
Complainant alleges that on 19 May 2001 Emily Estipona-Hao ("Estipona-Hao") filed a petition for
proclamation as the winning candidate for mayor. Respondent signed as counsel for Estipona-Hao
in this petition. When respondent appeared as counsel before the MBEC, complainant questioned
his appearance on two grounds: (1) respondent had not taken his oath as a lawyer; and (2) he was
an employee of the government.

Respondent filed a Reply (Re: Reply to Respondent’s Comment) reiterating his claim that the instant
administrative case is "motivated mainly by political vendetta."

On 17 July 2001, the Court referred the case to the Office of the Bar Confidant ("OBC") for
evaluation, report and recommendation.

OBC’s Report and Recommendation

The OBC found that respondent indeed appeared before the MBEC as counsel for Bunan in the May
2001 elections. The minutes of the MBEC proceedings show that respondent actively participated in
the proceedings. The OBC likewise found that respondent appeared in the MBEC proceedings even
before he took the lawyer’s oath on 22 May 2001. The OBC believes that respondent’s misconduct
casts a serious doubt on his moral fitness to be a member of the Bar. The OBC also believes that
respondent’s unauthorized practice of law is a ground to deny his admission to the practice of law.
The OBC therefore recommends that respondent be denied admission to the Philippine Bar.

On the other charges, OBC stated that complainant failed to cite a law which respondent allegedly
violated when he appeared as counsel for Bunan while he was a government employee.
Respondent resigned as secretary and his resignation was accepted. Likewise, respondent was
authorized by Bunan to represent him before the MBEC.

The Court’s Ruling

We agree with the findings and conclusions of the OBC that respondent engaged in the
unauthorized practice of law and thus does not deserve admission to the Philippine Bar.

Respondent took his oath as lawyer on 22 May 2001. However, the records show that respondent
appeared as counsel for Bunan prior to 22 May 2001, before respondent took the lawyer’s oath. In
the pleading entitled Formal Objection to the Inclusion in the Canvassing of Votes in Some Precincts
for the Office of Vice-Mayor dated 19 May 2001, respondent signed as "counsel for George Bunan."
In the first paragraph of the same pleading respondent stated that he was the "(U)ndersigned
Counsel for, and in behalf of Vice Mayoralty Candidate, GEORGE T. BUNAN." Bunan himself wrote
the MBEC on 14 May 2001 that he had "authorized Atty. Edwin L. Rana as his counsel to represent
him" before the MBEC and similar bodies.

On 14 May 2001, mayoralty candidate Emily Estipona-Hao also "retained" respondent as her
counsel. On the same date, 14 May 2001, Erly D. Hao informed the MBEC that "Atty. Edwin L. Rana
has been authorized by REFORMA LM-PPC as the legal counsel of the party and the candidate of
the said party." Respondent himself wrote the MBEC on 14 May 2001 that he was entering his
"appearance as counsel for Mayoralty Candidate Emily Estipona-Hao and for the REFORMA LM-
PPC." On 19 May 2001, respondent signed as counsel for Estipona-Hao in the petition filed before
the MBEC praying for the proclamation of Estipona-Hao as the winning candidate for mayor of
Mandaon, Masbate.

All these happened even before respondent took the lawyer’s oath. Clearly, respondent engaged in
the practice of law without being a member of the Philippine Bar.

In Philippine Lawyers Association v. Agrava,1 the Court elucidated that:

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

In Cayetano v. Monsod,2 the Court held that "practice of law" means any activity, in or out of court,
which requires the application of law, legal procedure, knowledge, training and experience. To
engage in the practice of law is to perform acts which are usually performed by members of the legal
profession. Generally, to practice law is to render any kind of service which requires the use of legal
knowledge or skill.

Verily, respondent was engaged in the practice of law when he appeared in the proceedings before
the MBEC and filed various pleadings, without license to do so. Evidence clearly supports the
charge of unauthorized practice of law. Respondent called himself "counsel" knowing fully well that
he was not a member of the Bar. Having held himself out as "counsel" knowing that he had no
authority to practice law, respondent has shown moral unfitness to be a member of the Philippine
Bar.3
The right to practice law is not a natural or constitutional right but is a privilege. It is limited to
persons of good moral character with special qualifications duly ascertained and certified. The
exercise of this privilege presupposes possession of integrity, legal knowledge, educational
attainment, and even public trust4 since a lawyer is an officer of the court. A bar candidate does not
acquire the right to practice law simply by passing the bar examinations. The practice of law is a
privilege that can be withheld even from one who has passed the bar examinations, if the person
seeking admission had practiced law without a license.5

The regulation of the practice of law is unquestionably strict. In Beltran, Jr. v. Abad,6 a candidate
passed the bar examinations but had not taken his oath and signed the Roll of Attorneys. He was
held in contempt of court for practicing law even before his admission to the Bar. Under Section 3 (e)
of Rule 71 of the Rules of Court, a person who engages in the unauthorized practice of law is liable
for indirect contempt of court.7

True, respondent here passed the 2000 Bar Examinations and took the lawyer’s oath. However, it is
1âwphi 1

the signing in the Roll of Attorneys that finally makes one a full-fledged lawyer. The fact that
respondent passed the bar examinations is immaterial. Passing the bar is not the only qualification
to become an attorney-at-law.8 Respondent should know that two essential requisites for becoming a
lawyer still had to be performed, namely: his lawyer’s oath to be administered by this Court and his
signature in the Roll of Attorneys.9

On the charge of violation of law, complainant contends that the law does not allow respondent to
act as counsel for a private client in any court or administrative body since respondent is the
secretary of the Sangguniang Bayan.

Respondent tendered his resignation as secretary of the Sangguniang Bayan prior to the acts
complained of as constituting unauthorized practice of law. In his letter dated 11 May 2001
addressed to Napoleon Relox, vice- mayor and presiding officer of the Sangguniang Bayan,
respondent stated that he was resigning "effective upon your acceptance."10 Vice-Mayor Relox
accepted respondent’s resignation effective 11 May 2001.11 Thus, the evidence does not support the
charge that respondent acted as counsel for a client while serving as secretary of the Sangguniang
Bayan.

On the charge of grave misconduct and misrepresentation, evidence shows that Bunan indeed
authorized respondent to represent him as his counsel before the MBEC and similar bodies. While
there was no misrepresentation, respondent nonetheless had no authority to practice law.

WHEREFORE, respondent Edwin L. Rana is DENIED admission to the Philippine Bar.

SO ORDERED.
LAW STUDENT AND PRACTICE OF LAW

G.R. No. 154207 April 27, 2007

FERDINAND A. CRUZ, Petitioner,

vs.
ALBERTO MINA, HON. ELEUTERIO F. GUERRERO and HON. ZENAIDA
LAGUILLES, Respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Certiorari under Rule 65 of the Rules of Court, grounded on pure
questions of law, with Prayer for Preliminary Injunction assailing the Resolution dated May 3, 2002
promulgated by the Regional Trial Court (RTC), Branch 116, Pasay City, in Civil Case No. 02-0137,
which denied the issuance of a writ of preliminary injunction against the Metropolitan Trial Court
(MeTC), Branch 45, Pasay City, in Criminal Case No. 00-1705;1 and the RTC’s Order dated June 5,
2002 denying the Motion for Reconsideration. No writ of preliminary injunction was issued by this
Court.

The antecedents:

On September 25, 2000, Ferdinand A. Cruz (petitioner) filed before the MeTC a formal Entry of
Appearance, as private prosecutor, in Criminal Case No. 00-1705 for Grave Threats, 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.2 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.3

On February 13, 2002, petitioner filed before the MeTC a Motion for Reconsideration seeking to
reverse the February 1, 2002 Order alleging that Rule 138-A, or the Law Student Practice Rule,
does not have the effect of superseding Section 34 of Rule 138, for the authority to interpret the rule
is the source itself of the rule, which is the Supreme Court alone.

In an Order dated March 4, 2002, the MeTC denied the Motion for Reconsideration.

On April 2, 2002, the petitioner filed before the RTC a Petition for Certiorari and Mandamus with
Prayer for Preliminary Injunction and Temporary Restraining Order against the private respondent
and the public respondent MeTC.
After hearing the prayer for preliminary injunction to restrain public respondent MeTC Judge from
proceeding with Criminal Case No. 00-1705 pending the Certiorari proceedings, the RTC, in a
Resolution dated May 3, 2002, resolved to deny the issuance of an injunctive writ on the ground that
the crime of Grave Threats, the subject of Criminal Case No. 00-1705, is one that can be prosecuted
de oficio, there being no claim for civil indemnity, and that therefore, the intervention of a private
prosecutor is not legally tenable.

On May 9, 2002, the petitioner filed before the RTC a Motion for Reconsideration. The petitioner
argues that nowhere does the law provide that the crime of Grave Threats has no civil aspect. And
last, petitioner cites Bar Matter No. 730 dated June 10, 1997 which expressly provides for the
appearance of a non-lawyer before the inferior courts, as an agent or friend of a party litigant, even
without the supervision of a member of the bar.

Pending the resolution of the foregoing Motion for Reconsideration before the RTC, the petitioner
filed a Second Motion for Reconsideration dated June 7, 2002 with the MeTC seeking the reversal of
the March 4, 2002 Denial Order of the said court, on the strength of Bar Matter No. 730, and a
Motion to Hold In Abeyance the Trial dated June 10, 2002 of Criminal Case No. 00-1705 pending the
outcome of the certiorari proceedings before the RTC.

On June 5, 2002, the RTC issued its Order denying the petitioner’s Motion for Reconsideration.

Likewise, in an Order dated June 13, 2002, the MeTC denied the petitioner’s Second Motion for
Reconsideration and his Motion to Hold in Abeyance the Trial on the ground that the RTC had
already denied the Entry of Appearance of petitioner before the MeTC.

On July 30, 2002, the petitioner directly filed with this Court, the instant Petition and assigns the
following errors:

I.

the respondent regional trial court abused its discretion when it resolved to deny the prayer for the
writ of injunction of the herein petitioner despite petitioner having established the necessity of
granting the writ;

II.

THE RESPONDENT TRIAL COURT ABUSED ITS DISCRETION, TANTAMOUNT TO IGNORANCE

OF THE LAW, WHEN IT RESOLVED TO DENY THE PRAYER FOR THE WRIT OF PRELIMINARY
INJUNCTION AND THE SUBSEQUENT MOTION FOR RECONSIDERATION OF THE HEREIN
PETITIONER ON THE BASIS THAT [GRAVE] THREATS HAS NO CIVIL ASPECT, FOR THE SAID
BASIS OF DENIAL IS NOT IN ACCORD WITH THE LAW;

III.

THE RESPONDENT METROPOLITAN TRIAL COURT ABUSED ITS DISCRETION WHEN IT

DENIED THE MOTION TO HOLD IN ABEYANCE TRIAL, WHEN WHAT WAS DENIED BY THE
RESPONDENT REGIONAL TRIAL COURT IS THE ISSUANCE OF THE WRIT OF PRELIMINARY
INJUNCTION and WHEN THE RESPONDENT REGIONAL TRIAL COURT IS YET TO DECIDE ON
THE MERITS OF THE PETITION FOR CERTIORARI;

IV.
THE RESPONDENT COURT[s] ARE CLEARLY IGNORING THE LAW WHEN THEY PATENTLY
REFUSED TO HEED TO [sic] THE CLEAR MANDATE OF THE LAPUT, CANTIMBUHAN AND
BULACAN CASES, AS WELL AS BAR MATTER NO. 730, PROVIDING FOR THE APPEARANCE
OF NON-LAWYERS BEFORE THE LOWER COURTS (MTC’S).4

This Court, in exceptional cases, and for compelling reasons, or if warranted by the nature of the
issues reviewed, may take cognizance of petitions filed directly before it.5

Considering that this case involves the interpretation, clarification, and implementation of Section 34,
Rule 138 of the Rules of Court, Bar Matter No. 730, Circular No. 19 governing law student practice
and Rule 138-A of the Rules of Court, and the ruling of the Court in Cantimbuhan, the Court takes
cognizance of herein petition.

The basic question is whether the petitioner, a law student, may appear before an inferior court as
an agent or friend of a party litigant.

The courts a quo held that the Law Student Practice Rule as encapsulated in Rule 138-A of the
Rules of Court, prohibits the petitioner, as a law student, from entering his appearance in behalf of
his father, the private complainant in the criminal case without the supervision of an attorney duly
accredited by the law school.

Rule 138-A or the Law Student Practice Rule, provides:

RULE 138-A
LAW STUDENT PRACTICE RULE

Section 1. Conditions for Student Practice. – A law student who has successfully completed his 3rd
year of the regular four-year prescribed law curriculum and is enrolled in a recognized law school's
clinical legal education program approved by the Supreme Court, may appear without compensation
in any civil, criminal or administrative case before any trial court, tribunal, board or officer, to
represent indigent clients accepted by the legal clinic of the law school.

Sec. 2. Appearance. – The appearance of the law student authorized by this rule, shall be under the
direct supervision and control of a member of the Integrated Bar of the Philippines duly accredited by
the law school. Any and all pleadings, motions, briefs, memoranda or other papers to be filed, must
be signed by the supervising attorney for and in behalf of the legal clinic.

However, in Resolution6 dated June 10, 1997 in Bar Matter No. 730, the Court En Banc clarified:

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.7 (Emphasis supplied)
The phrase "In the court of a justice of the peace" in Bar Matter No. 730 is subsequently changed to
"In the court of a municipality" as it now appears in Section 34 of Rule 138, thus:8

SEC. 34. By whom litigation is conducted. — In the Court of a municipality 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.
(Emphasis supplied)

which is the prevailing rule at the time the petitioner filed his Entry of Appearance with the MeTC on
September 25, 2000. No real distinction exists for under Section 6, Rule 5 of the Rules of Court, the
term "Municipal Trial Courts" as used in these Rules shall include Metropolitan Trial Courts,
Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts.

There is really no problem as to the application of Section 34 of Rule 138 and Rule 138-A. In the
former, the appearance of a non-lawyer, as an agent or friend of a party litigant, is expressly
allowed, while the latter rule provides for conditions when a law student, not as an agent or a friend
of a party litigant, may appear before the courts.

Petitioner expressly anchored his appearance on Section 34 of Rule 138. The court a quo must have
been confused by the fact that petitioner referred to himself as a law student in his entry of
appearance. Rule 138-A should not have been used by the courts a quo in denying permission to
act as private prosecutor against petitioner for the simple reason that Rule 138-A is not the basis for
the petitioner’s appearance.

Section 34, Rule 138 is clear that appearance before the inferior courts by a non-lawyer is allowed,
irrespective of whether or not he is a law student. As succinctly clarified in Bar Matter No. 730, by
virtue of Section 34, Rule 138, a law student may appear, as an agent or a friend of a party litigant,
without the supervision of a lawyer before inferior courts.

Petitioner further argues that the RTC erroneously held that, by its very nature, no civil liability may
flow from the crime of Grave Threats, and, for this reason, the intervention of a private prosecutor is
not possible.

It is clear from the RTC Decision that no such conclusion had been intended by the RTC. In denying
the issuance of the injunctive court, the RTC stated in its Decision that there was no claim for civil
liability by the private complainant for damages, and that the records of the case do not provide for a
claim for indemnity; and that therefore, petitioner’s appearance as private prosecutor appears to be
legally untenable.

Under Article 100 of the Revised Penal Code, every person criminally liable for a felony is also civilly
liable except in instances when no actual damage results from an offense, such as espionage,
violation of neutrality, flight to an enemy country, and crime against popular representation.9 The
basic rule applies in the instant case, such that when a criminal action is instituted, the civil action for
the recovery of civil liability arising from the offense charged shall be deemed instituted with criminal
action, unless the offended party waives the civil action, reserves the right to institute it separately or
institutes the civil action prior to the criminal action.10

The petitioner is correct in stating that there being no reservation, waiver, nor prior institution of the
civil aspect in Criminal Case No. 00-1705, it follows that the civil aspect arising from Grave Threats
is deemed instituted with the criminal action, and, hence, the private prosecutor may rightfully
intervene to prosecute the civil aspect.
WHEREFORE, the Petition is GRANTED. The assailed Resolution and Order of the Regional Trial
Court, Branch 116, Pasay City are REVERSED and SET ASIDE. The Metropolitan Trial Court,
Branch 45, Pasay City is DIRECTED to ADMIT the Entry of Appearance of petitioner in Criminal
Case No. 00-1705 as a private prosecutor under the direct control and supervision of the public
prosecutor.

No pronouncement as to costs.

SO ORDERED.
DECISION

NACHURA, J.:

This is a Petition for Certiorari, Prohibition and Mandamus, with prayer for the issuance of a writ
of preliminary injunction under Rule 65 of the Rules of Court. It was directly filed with this
Court assailing the Resolutions dated May 10, 20021 and July 31, 20022 of the Regional Trial
Court (RTC), Branch 108, Pasay City, which denied the appearance of the plaintiff Ferdinand A.
Cruz, herein petitioner, as party litigant, and the refusal of the public respondent, Judge Priscilla
Mijares, to voluntarily inhibit herself from trying the case. No writ of preliminary injunction was
issued by this Court.

The antecedents:

On March 5, 2002, Ferdinand A. Cruz (petitioner) sought permission to enter his appearance for
and on his behalf, before the RTC, Branch 108, Pasay City, as the plaintiff in Civil Case No. 01-
0410, for Abatement of Nuisance. Petitioner, a fourth year law student, anchors his claim on
Section 34 of Rule 138 of the Rules of Court3 that a non-lawyer may appear before any court and
conduct his litigation personally.

During the pre-trial, Judge Priscilla Mijares required the petitioner to secure a written permission
from the Court Administrator before he could be allowed to appear as counsel for himself, a
party-litigant. Atty. Stanley Cabrera, counsel for Benjamin Mina, Jr., filed a Motion to Dismiss
instead of a pre-trial brief to which petitioner Cruz vehemently objected alleging that a Motion to
Dismiss is not allowed after the Answer had been filed. Judge Mijares then remarked, "Hay
naku, masama ‘yung marunong pa sa Huwes. Ok?" and proceeded to hear the pending Motion to
Dismiss and calendared the next hearing on May 2, 2002.

On March 6, 2002, petitioner Cruz filed a Manifestation and Motion to Inhibit,4 praying for the
voluntary inhibition of Judge Mijares. The Motion alleged that expected partiality on the part of
the respondent judge in the conduct of the trial could be inferred from the contumacious remarks
of Judge Mijares during the pre-trial. It asserts that the judge, in uttering an uncalled for remark,
reflects a negative frame of mind, which engenders the belief that justice will not be served.5

In an Order6 dated April 19, 2002, Judge Mijares denied the motion for inhibition stating that
throwing tenuous allegations of partiality based on the said remark is not enough to warrant her
voluntary inhibition, considering that it was said even prior to the start of pre-trial. Petitioner
filed a motion for reconsideration7 of the said order.

On May 10, 2002, Judge Mijares denied the motion with finality.8 In the same Order, the trial
court held that for the failure of petitioner Cruz to submit the promised document and
jurisprudence, and for his failure to satisfy the requirements or conditions under Rule 138-A of
the Rules of Court, his appearance was denied.

In a motion for reconsideration,9 petitioner reiterated that the basis of his appearance was not
Rule 138-A, but Section 34 of Rule 138. He contended that the two Rules were distinct and are
applicable to different circumstances, but the respondent judge denied the same, still invoking
Rule 138-A, in an Order10 dated July 31, 2002.

On August 16, 2002, the petitioner directly filed with this Court, the instant petition and assigns
the following errors:

I.

THE RESPONDENT REGIONAL TRIAL COURT GRAVELY ERRED AND ABUSED ITS
DISCRETION WHEN IT DENIED THE APPEARANCE OF THE PETITIONER, FOR AND
IN THE LATTER’S BEHALF, IN CIVIL CASE NO. 01-0401 [sic] CONTRARY TO RULE
138, SECTION 34 OF THE RULES OF COURT, PROVIDING FOR THE APPEARANCE OF
NON-LAWYERS AS A PARTY LITIGANT;

II.

THE RESPONDENT COURT GRAVELY ERRED AND ABUSED ITS DISCRETION WHEN
IT DID NOT VOLUNTARILY INHIBIT DESPITE THE ADVENT OF JURISPRUDENCE
[sic] THAT SUCH AN INHIBITION IS PROPER TO PRESERVE THE PEOPLE’S FAITH
AND CONFIDENCE TO THE COURTS.

The core issues raised before the Court are: (1) whether the extraordinary writs of certiorari,
prohibition and mandamus under Rule 65 of the 1997 Rules of Court may issue; and (2) whether
the respondent court acted with grave abuse of discretion amounting to lack or excess of
jurisdiction when it denied the appearance of the petitioner as party litigant and when the judge
refused to inhibit herself from trying the case.

This Court’s jurisdiction to issue writs of certiorari, prohibition, mandamus and injunction is not
exclusive; it has concurrent jurisdiction with the RTCs and the Court of Appeals. This
concurrence of jurisdiction is not, however, to be taken as an absolute, unrestrained freedom to
choose the court where the application therefor will be directed.11 A becoming regard of the
judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs
against the RTCs should be filed with the Court of Appeals.12 The hierarchy of courts is
determinative of the appropriate forum for petitions for the extraordinary writs; and only in
exceptional cases and for compelling reasons, or if warranted by the nature of the issues
reviewed, may this Court take cognizance of petitions filed directly before it.13

Considering, however, that this case involves the interpretation of Section 34, Rule 138 and Rule
138-A of the Rules of Court, the Court takes cognizance of herein petition. Nonetheless, the
petitioner is cautioned not to continue his practice of filing directly before this Court petitions
under Rule 65 when the issue raised can be resolved with dispatch by the Court of Appeals. We
will not tolerate litigants who make a mockery of the judicial hierarchy as it necessarily delays
more important concerns before us.

In resolving the second issue, a comparative reading of Rule 138, Section 34 and Rule 138-A is
necessary.
Rule 138-A, or the Law Student Practice Rule, provides:

RULE 138-A

LAW STUDENT PRACTICE RULE

Section 1. Conditions for Student Practice. – A law student who has successfully completed his
3rd year of the regular four-year prescribed law curriculum and is enrolled in a recognized law
school's clinical legal education program approved by the Supreme Court, may appear without
compensation in any civil, criminal or administrative case before any trial court, tribunal, board
or officer, to represent indigent clients accepted by the legal clinic of the law school.

Sec. 2. Appearance. – The appearance of the law student authorized by this rule, shall be under
the direct supervision and control of a member of the Integrated Bar of the Philippines duly
accredited by the law school. Any and all pleadings, motions, briefs, memoranda or other papers
to be filed, must be signed by the supervising attorney for and in behalf of the legal clinic.

The respondent court held that the petitioner could not appear for himself and on his behalf
because of his failure to comply with Rule 138-A. In denying petitioner’s appearance, the court a
quo tersely finds refuge in the fact that, on December 18, 1986, this Court issued Circular No.
19, which eventually became Rule 138-A, and the failure of Cruz to prove on record that he is
enrolled in a recognized school’s clinical legal education program and is under supervision of an
attorney duly accredited by the law school.

However, the petitioner insisted that the basis of his appearance was Section 34 of Rule 138,
which 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.

and is a rule distinct from Rule 138-A.

From the clear language of this provision of the Rules, it will have to be conceded that the
contention of the petitioner has merit. It recognizes the right of an individual to represent himself
in any case to which he is a party. The Rules state that a party may conduct his litigation
personally or with the aid of an attorney, and that his appearance must either be personal or by a
duly authorized member of the Bar. The individual litigant may personally do everything in the
course of proceedings from commencement to the termination of the litigation.14 Considering
that a party personally conducting his litigation is restricted to the same rules of evidence and
procedure as those qualified to practice law,15 petitioner, not being a lawyer himself, runs the risk
of falling into the snares and hazards of his own ignorance. Therefore, Cruz as plaintiff, at his
own instance, can personally conduct the litigation of Civil Case No. 01-0410. He would then be
acting not as a counsel or lawyer, but as a party exercising his right to represent himself.
The trial court must have been misled by the fact that the petitioner is a law student and must,
therefore, be subject to the conditions of the Law Student Practice Rule. It erred in applying Rule
138-A, when the basis of the petitioner’s claim is Section 34 of Rule 138. The former rule
provides for conditions when a law student may appear in courts, while the latter rule allows the
appearance of a non-lawyer as a party representing himself.

The conclusion of the trial court that Rule 138-A superseded Rule 138 by virtue of Circular No.
19 is misplaced. The Court never intended to repeal Rule 138 when it released the guidelines for
limited law student practice. In fact, it was intended as an addendum to the instances when a
non-lawyer may appear in courts and was incorporated to the Rules of Court through Rule 138-
A.

It may be relevant to recall that, in respect to the constitutional right of an accused to be heard by
himself and counsel,16 this Court has held that during the trial, the right to counsel cannot be
waived.17 The rationale for this ruling was articulated in People v. Holgado,18 where we declared
that "even the most intelligent or educated man may have no skill in the science of law,
particularly in the rules of procedure, and without counsel, he may be convicted not because he is
guilty but because he does not know how to establish his innocence."

The case at bar involves a civil case, with the petitioner as plaintiff therein. The solicitous
concern that the Constitution accords the accused in a criminal prosecution obviously does not
obtain in a civil case. Thus, a party litigant in a civil case, who insists that he can, without a
lawyer’s assistance, effectively undertake the successful pursuit of his claim, may be given the
chance to do so. In this case, petitioner alleges that he is a law student and impliedly asserts that
he has the competence to litigate the case himself. Evidently, he is aware of the perils incident to
this decision.

In addition, it was subsequently clarified in Bar Matter 730, that by virtue of Section 34, Rule
138, a law student may appear as an agent or a friend of a party litigant, without need of the
supervision of a lawyer, before inferior courts. Here, we have a law student who, as party
litigant, wishes to represent himself in court. We should grant his wish.

Additionally, however, petitioner contends that the respondent judge committed manifest bias
and partiality by ruling that there is no valid ground for her voluntary inhibition despite her
alleged negative demeanor during the pre-trial when she said: "Hay naku, masama ‘yung
marunong pa sa Huwes. Ok?" Petitioner avers that by denying his motion, the respondent judge
already manifested conduct indicative of arbitrariness and prejudice, causing petitioner’s and his
co-plaintiff’s loss of faith and confidence in the respondent’s impartiality.

We do not agree.

It must be noted that because of this incident, the petitioner filed an administrative case19 against
the respondent for violation of the Canons of Judicial Ethics, which we dismissed for lack of
merit on September 15, 2002. We now adopt the Court’s findings of fact in the administrative
case and rule that there was no grave abuse of discretion on the part of Judge Mijares when she
did not inhibit herself from the trial of the case.
In a Motion for Inhibition, the movant must prove the ground for bias and prejudice by clear and
convincing evidence to disqualify a judge from participating in a particular trial,20 as voluntary
inhibition is primarily a matter of conscience and addressed to the sound discretion of the judge.
The decision on whether she should inhibit herself must be based on her rational and logical
assessment of the circumstances prevailing in the case before her.21 Absent clear and convincing
proof of grave abuse of discretion on the part of the judge, this Court will rule in favor of the
presumption that official duty has been regularly performed.

WHEREFORE, the Petition is PARTIALLY GRANTED. The assailed Resolution and Order of
the Regional Trial Court, Branch 108, Pasay City are MODIFIED. Regional Trial Court, Branch
108, Pasay City is DIRECTED to ADMIT the Entry of Appearance of petitioner in Civil Case
No. 01-0410 as a party litigant.

No pronouncement as to costs.

SO ORDERED.
MEMBERSHIP IN THE IBP

A.M. No. 1928 August 3, 1978

In the Matter of the IBP Membership Dues Delinquency of Atty. MARCIAL A. EDILION (IBP
Administrative Case No. MDD-1)

RESOLUTION

CASTRO, C.J.:

The respondent Marcial A. Edillon is a duly licensed practicing attorney in the Philippines.

On November 29, 1975, the Integrated Bar of the Philippines (IBP for short) Board of Governors
unanimously adopted Resolution No. 75-65 in Administrative Case No. MDD-1 (In the Matter of the
Membership Dues Delinquency of Atty. Marcial A. Edillon) recommending to the Court the removal
of the name of the respondent from its Roll of Attorneys for "stubborn refusal to pay his membership
dues" to the IBP since the latter's constitution notwithstanding due notice.

On January 21, 1976, the IBP, through its then President Liliano B. Neri, submitted the said
resolution to the Court for consideration and approval, pursuant to paragraph 2, Section 24, Article III
of the By-Laws of the IBP, which reads:

.... Should the delinquency further continue until the following June 29, the Board
shall promptly inquire into the cause or causes of the continued delinquency and take
whatever action it shall deem appropriate, including a recommendation to the
Supreme Court for the removal of the delinquent member's name from the Roll of
Attorneys. Notice of the action taken shall be sent by registered mail to the member
and to the Secretary of the Chapter concerned.

On January 27, 1976, the Court required the respondent to comment on the resolution and letter
adverted to above; he submitted his comment on February 23, 1976, reiterating his refusal to pay
the membership fees due from him.

On March 2, 1976, the Court required the IBP President and the IBP Board of Governors to reply to
Edillon's comment: on March 24, 1976, they submitted a joint reply.

Thereafter, the case was set for hearing on June 3, 1976. After the hearing, the parties were
required to submit memoranda in amplification of their oral arguments. The matter was thenceforth
submitted for resolution.

At the threshold, a painstaking scrutiny of the respondent's pleadings would show that the propriety
and necessity of the integration of the Bar of the Philippines are in essence conceded. The
respondent, however, objects to particular features of Rule of Court 139-A (hereinafter referred to as
the Court Rule) 1 — in accordance with which the Bar of the Philippines was integrated — and to the
provisions of par. 2, Section 24, Article III, of the IBP By-Laws (hereinabove cited).

The authority of the IBP Board of Governors to recommend to the Supreme Court the removal of a
delinquent member's name from the Roll of Attorneys is found in par. 2 Section 24, Article Ill of the
IBP By-Laws (supra), whereas the authority of the Court to issue the order applied for is found in
Section 10 of the Court Rule, which reads:

SEC. 10. Effect of non-payment of dues. — Subject to the provisions of Section 12 of

this Rule, default in the payment of annual dues for six months shall warrant
suspension of membership in the Integrated Bar, and default in such payment for
one year shall be a ground for the removal of the name of the delinquent member
from the Roll of Attorneys.

The all-encompassing, all-inclusive scope of membership in the IBP is stated in these words of the
Court Rule:

SECTION 1. Organization. — There is hereby organized an official national body to

be known as the 'Integrated Bar of the Philippines,' composed of all persons whose
names now appear or may hereafter be included in the Roll of Attorneys of the
Supreme Court.

The obligation to pay membership dues is couched in the following words of the Court Rule:

SEC. 9. Membership dues. Every member of the Integrated Bar shall pay such
annual dues as the Board of Governors shall determine with the approval of the
Supreme Court. ...

The core of the respondent's arguments is that the above provisions constitute an invasion of his
constitutional rights in the sense that he is being compelled, as a pre-condition to maintaining his
status as a lawyer in good standing, to be a member of the IBP and to pay the corresponding dues,
and that as a consequence of this compelled financial support of the said organization to which he is
admittedly personally antagonistic, he is being deprived of the rights to liberty and property
guaranteed to him by the Constitution. Hence, the respondent concludes, the above provisions of
the Court Rule and of the IBP By-Laws are void and of no legal force and effect.

The respondent similarly questions the jurisdiction of the Court to strike his name from the Roll of
Attorneys, contending that the said matter is not among the justiciable cases triable by the Court but
is rather of an "administrative nature pertaining to an administrative body."

The case at bar is not the first one that has reached the Court relating to constitutional issues that
inevitably and inextricably come up to the surface whenever attempts are made to regulate the
practice of law, define the conditions of such practice, or revoke the license granted for the exercise
of the legal profession.

The matters here complained of are the very same issues raised in a previous case before the
Court, entitled "Administrative Case No. 526, In the Matter of the Petition for the Integration of the
Bar of the Philippines, Roman Ozaeta, et al., Petitioners." The Court exhaustively considered all
these matters in that case in its Resolution ordaining the integration of the Bar of the Philippines,
promulgated on January 9, 1973. The Court there made the unanimous pronouncement that it was

... fully convinced, after a thoroughgoing conscientious study of all the arguments
adduced in Adm. Case No. 526 and the authoritative materials and the mass of
factual data contained in the exhaustive Report of the Commission on Bar
Integration, that the integration of the Philippine Bar is 'perfectly constitutional and
legally unobjectionable'. ...
Be that as it may, we now restate briefly the posture of the Court.

An "Integrated Bar" is a State-organized Bar, to which every lawyer must belong, as distinguished
from bar associations organized by individual lawyers themselves, membership in which is voluntary.
Integration of the Bar is essentially a process by which every member of the Bar is afforded an
opportunity to do his share in carrying out the objectives of the Bar as well as obliged to bear his
portion of its responsibilities. Organized by or under the direction of the State, an integrated Bar is an
official national body of which all lawyers are required to be members. They are, therefore, subject to
all the rules prescribed for the governance of the Bar, including the requirement of payment of a
reasonable annual fee for the effective discharge of the purposes of the Bar, and adherence to a
code of professional ethics or professional responsibility breach of which constitutes sufficient
reason for investigation by the Bar and, upon proper cause appearing, a recommendation for
discipline or disbarment of the offending member. 2

The integration of the Philippine Bar was obviously dictated by overriding considerations of public
interest and public welfare to such an extent as more than constitutionally and legally justifies the
restrictions that integration imposes upon the personal interests and personal convenience of
individual lawyers. 3

Apropos to the above, it must be stressed that all legislation directing the integration of the Bar have
been uniformly and universally sustained as a valid exercise of the police power over an important
profession. The practice of law is not a vested right but a privilege, a privilege moreover clothed with
public interest because a lawyer owes substantial duties not only to his client, but also to his
brethren in the profession, to the courts, and to the nation, and takes part in one of the most
important functions of the State — the administration of justice — as an officer of the court. 4 The
practice of law being clothed with public interest, the holder of this privilege must submit to a degree
of control for the common good, to the extent of the interest he has created. As the U. S. Supreme
Court through Mr. Justice Roberts explained, the expression "affected with a public interest" is the
equivalent of "subject to the exercise of the police power" (Nebbia vs. New York, 291 U.S. 502).

When, therefore, Congress enacted Republic Act No. 6397 5 authorizing the Supreme Court to
"adopt rules of court to effect the integration of the Philippine Bar under such conditions as it shall
see fit," it did so in the exercise of the paramount police power of the State. The Act's avowal is to
"raise the standards of the legal profession, improve the administration of justice, and enable the Bar
to discharge its public responsibility more effectively." Hence, the Congress in enacting such Act, the
Court in ordaining the integration of the Bar through its Resolution promulgated on January 9, 1973,
and the President of the Philippines in decreeing the constitution of the IBP into a body corporate
through Presidential Decree No. 181 dated May 4, 1973, were prompted by fundamental
considerations of public welfare and motivated by a desire to meet the demands of pressing public
necessity.

The State, in order to promote the general welfare, may interfere with and regulate personal liberty,
property and occupations. Persons and property may be subjected to restraints and burdens in order
to secure the general prosperity and welfare of the State (U.S. vs. Gomez Jesus, 31 Phil 218), for,
as the Latin maxim goes, "Salus populi est supreme lex." The public welfare is the supreme law. To
this fundamental principle of government the rights of individuals are subordinated. Liberty is a
blessing without which life is a misery, but liberty should not be made to prevail over authority
because then society win fall into anarchy (Calalang vs. Williams, 70 Phil. 726). It is an undoubted
power of the State to restrain some individuals from all freedom, and all individuals from some
freedom.
But the most compelling argument sustaining the constitutionality and validity of Bar integration in
the Philippines is the explicit unequivocal grant of precise power to the Supreme Court by Section 5
(5) of Article X of the 1973 Constitution of the Philippines, which reads:

Sec. 5. The Supreme Court shall have the following powers:

xxx xxx xxx

(5) Promulgate rules concerning pleading, practice, and pro. procedure in all courts,
and the admission to the practice of law and the integration of the Bar ...,

and Section 1 of Republic Act No. 6397, which reads:

SECTION 1. Within two years from the approval of this Act, the Supreme Court may
adopt rules of Court to effect the integration of the Philippine Bar under such
conditions as it shall see fit in order to raise the standards of the legal profession,
improve the administration of justice, and enable the Bar to discharge its public
responsibility more effectively.

Quite apart from the above, let it be stated that even without the enabling Act (Republic Act No.
6397), and looking solely to the language of the provision of the Constitution granting the Supreme
Court the power "to promulgate rules concerning pleading, practice and procedure in all courts, and
the admission to the practice of law," it at once becomes indubitable that this constitutional
declaration vests the Supreme Court with plenary power in all cases regarding the admission to and
supervision of the practice of law.

Thus, when the respondent Edillon entered upon the legal profession, his practice of law and his
exercise of the said profession, which affect the society at large, were (and are) subject to the power
of the body politic to require him to conform to such regulations as might be established by the
proper authorities for the common good, even to the extent of interfering with some of his liberties. If
he did not wish to submit himself to such reasonable interference and regulation, he should not have
clothed the public with an interest in his concerns.

On this score alone, the case for the respondent must already fall.

The issues being of constitutional dimension, however, we now concisely deal with them seriatim.

1. The first objection posed by the respondent is that the Court is without power to compel him to
become a member of the Integrated Bar of the Philippines, hence, Section 1 of the Court Rule is
unconstitutional for it impinges on his constitutional right of freedom to associate (and not to
associate). Our answer is: To compel a lawyer to be a member of the Integrated Bar is not violative
of his constitutional freedom to associate. 6

Integration does not make a lawyer a member of any group of which he is not already a member. He
became a member of the Bar when he passed the Bar examinations. 7 All that integration actually
does is to provide an official national organization for the well-defined but unorganized and
incohesive group of which every lawyer is a ready a member. 8

Bar integration does not compel the lawyer to associate with anyone. He is free to attend or not
attend the meetings of his Integrated Bar Chapter or vote or refuse to vote in its elections as he
chooses. The only compulsion to which he is subjected is the payment of annual dues. The
Supreme Court, in order to further the State's legitimate interest in elevating the quality of
professional legal services, may require that the cost of improving the profession in this fashion be
shared by the subjects and beneficiaries of the regulatory program — the lawyers.9

Assuming that the questioned provision does in a sense compel a lawyer to be a member of the
Integrated Bar, such compulsion is justified as an exercise of the police power of the State. 10

2. The second issue posed by the respondent is that the provision of the Court Rule requiring
payment of a membership fee is void. We see nothing in the Constitution that prohibits the Court,
under its constitutional power and duty to promulgate rules concerning the admission to the practice
of law and the integration of the Philippine Bar (Article X, Section 5 of the 1973 Constitution) —
which power the respondent acknowledges — from requiring members of a privileged class, such as
lawyers are, to pay a reasonable fee toward defraying the expenses of regulation of the profession
to which they belong. It is quite apparent that the fee is indeed imposed as a regulatory measure,
designed to raise funds for carrying out the objectives and purposes of integration. 11

3. The respondent further argues that the enforcement of the penalty provisions would amount to a
deprivation of property without due process and hence infringes on one of his constitutional rights.
Whether the practice of law is a property right, in the sense of its being one that entitles the holder of
a license to practice a profession, we do not here pause to consider at length, as it clear that under
the police power of the State, and under the necessary powers granted to the Court to perpetuate its
existence, the respondent's right to practise law before the courts of this country should be and is a
matter subject to regulation and inquiry. And, if the power to impose the fee as a regulatory measure
is recognize, then a penalty designed to enforce its payment, which penalty may be avoided
altogether by payment, is not void as unreasonable or arbitrary. 12

But we must here emphasize that the practice of law is not a property right but a mere
privilege, 13 and as such must bow to the inherent regulatory power of the Court to exact compliance
with the lawyer's public responsibilities.

4. Relative to the issue of the power and/or jurisdiction of the Supreme Court to strike the name of a
lawyer from its Roll of Attorneys, it is sufficient to state that the matters of admission, suspension,
disbarment and reinstatement of lawyers and their regulation and supervision have been and are
indisputably recognized as inherent judicial functions and responsibilities, and the authorities holding
such are legion. 14

In In Re Sparks (267 Ky. 93, 101 S.W. (2d) 194), in which the report of the Board of Bar
Commissioners in a disbarment proceeding was confirmed and disbarment ordered, the court,
sustaining the Bar Integration Act of Kentucky, said: "The power to regulate the conduct and
qualifications of its officers does not depend upon constitutional or statutory grounds. It is a power
which is inherent in this court as a court — appropriate, indeed necessary, to the proper
administration of justice ... the argument that this is an arbitrary power which the court is arrogating
to itself or accepting from the legislative likewise misconceives the nature of the duty. It has
limitations no less real because they are inherent. It is an unpleasant task to sit in judgment upon a
brother member of the Bar, particularly where, as here, the facts are disputed. It is a grave
responsibility, to be assumed only with a determination to uphold the Ideals and traditions of an
honorable profession and to protect the public from overreaching and fraud. The very burden of the
duty is itself a guaranty that the power will not be misused or prostituted. ..."

The Court's jurisdiction was greatly reinforced by our 1973 Constitution when it explicitly granted to
the Court the power to "Promulgate rules concerning pleading, practice ... and the admission to the
practice of law and the integration of the Bar ... (Article X, Sec. 5(5) the power to pass upon the
fitness of the respondent to remain a member of the legal profession is indeed undoubtedly vested in
the Court.

We thus reach the conclusion that the provisions of Rule of Court 139-A and of the By-Laws of the
Integrated Bar of the Philippines complained of are neither unconstitutional nor illegal.

WHEREFORE, premises considered, it is the unanimous sense of the Court that the respondent
Marcial A. Edillon should be as he is hereby disbarred, and his name is hereby ordered stricken from
the Roll of Attorneys of the Court.
EXMEPTION FROM PAYMENT OF IBP DUES

B.M. No. 1370 May 9, 2005

LETTER OF ATTY. CECILIO Y. AREVALO, JR., REQUESTING EXEMPTION FROM PAYMENT

OF IBP DUES.

DECISION

CHICO-NAZARIO, J.:

This is a request for exemption from payment of the Integrated Bar of the Philippines (IBP) dues filed
by petitioner Atty. Cecilio Y. Arevalo, Jr.

In his letter,1 dated 22 September 2004, petitioner sought exemption from payment of IBP dues in
the amount of P12,035.00 as alleged unpaid accountability for the years 1977-2005. He alleged that
after being admitted to the Philippine Bar in 1961, he became part of the Philippine Civil Service
from July 1962 until 1986, then migrated to, and worked in, the USA in December 1986 until his
retirement in the year 2003. He maintained that he cannot be assessed IBP dues for the years that
he was working in the Philippine Civil Service since the Civil Service law prohibits the practice of
one's profession while in government service, and neither can he be assessed for the years when he
was working in the USA.

On 05 October 2004, the letter was referred to the IBP for comment.2

On 16 November 2004, the IBP submitted its comment3 stating inter alia: that membership in the IBP
is not based on the actual practice of law; that a lawyer continues to be included in the Roll of
Attorneys as long as he continues to be a member of the IBP; that one of the obligations of a
member is the payment of annual dues as determined by the IBP Board of Governors and duly
approved by the Supreme Court as provided for in Sections 9 and 10, Rule 139-A of the Rules of
Court; that the validity of imposing dues on the IBP members has been upheld as necessary to
defray the cost of an Integrated Bar Program; and that the policy of the IBP Board of Governors of
no exemption from payment of dues is but an implementation of the Court's directives for all
members of the IBP to help in defraying the cost of integration of the bar. It maintained that there is
no rule allowing the exemption of payment of annual dues as requested by respondent, that what is
allowed is voluntary termination and reinstatement of membership. It asserted that what petitioner
could have done was to inform the secretary of the IBP of his intention to stay abroad, so that his
membership in the IBP could have been terminated, thus, his obligation to pay dues could have
been stopped. It also alleged that the IBP Board of Governors is in the process of discussing
proposals for the creation of an inactive status for its members, which if approved by the Board of
Governors and by this Court, will exempt inactive IBP members from payment of the annual dues.

In his reply4 dated 22 February 2005, petitioner contends that what he is questioning is the IBP
Board of Governor's Policy of Non-Exemption in the payment of annual membership dues of lawyers
regardless of whether or not they are engaged in active or inactive practice. He asseverates that the
Policy of Non-Exemption in the payment of annual membership dues suffers from constitutional
infirmities, such as equal protection clause and the due process clause. He also posits that
compulsory payment of the IBP annual membership dues would indubitably be oppressive to him
considering that he has been in an inactive status and is without income derived from his law
practice. He adds that his removal from nonpayment of annual membership dues would constitute
deprivation of property right without due process of law. Lastly, he claims that non-practice of law by
a lawyer-member in inactive status is neither injurious to active law practitioners, to fellow lawyers in
inactive status, nor to the community where the inactive lawyers-members reside.

Plainly, the issue here is: whether or nor petitioner is entitled to exemption from payment of his dues
during the time that he was inactive in the practice of law that is, when he was in the Civil Service
from 1962-1986 and he was working abroad from 1986-2003?

We rule in the negative.

An "Integrated Bar" is a State-organized Bar, to which every lawyer must belong, as distinguished
from bar association organized by individual lawyers themselves, membership in which is voluntary.
Integration of the Bar is essentially a process by which every member of the Bar is afforded an
opportunity to do his shares in carrying out the objectives of the Bar as well as obliged to bear his
portion of its responsibilities. Organized by or under the direction of the State, an Integrated Bar is
an official national body of which all lawyers are required to be members. They are, therefore,
subject to all the rules prescribed for the governance of the Bar, including the requirement of
payment of a reasonable annual fee for the effective discharge of the purposes of the Bar, and
adherence to a code of professional ethics or professional responsibility, breach of which constitutes
sufficient reason for investigation by the Bar and, upon proper cause appearing, a recommendation
for discipline or disbarment of the offending member.5

The integration of the Philippine Bar means the official unification of the entire lawyer population.
This requires membership and financial support of every attorney as condition sine qua non to the
practice of law and the retention of his name in the Roll of Attorneys of the Supreme Court.6

Bar integration does not compel the lawyer to associate with anyone. He is free to attend or not to
attend the meetings of his Integrated Bar Chapter or vote or refuse to vote in its elections as he
chooses. The only compulsion to which he is subjected is the payment of his annual dues. The
Supreme Court, in order to foster the State's legitimate interest in elevating the quality of
professional legal services, may require that the cost of improving the profession in this fashion be
shared by the subjects and beneficiaries of the regulatory program – the lawyers.7

Moreover, there is nothing in the Constitution that prohibits the Court, under its constitutional power
and duty to promulgate rules concerning the admission to the practice of law and in the integration of
the Philippine Bar8 - which power required members of a privileged class, such as lawyers are, to
pay a reasonable fee toward defraying the expenses of regulation of the profession to which they
belong. It is quite apparent that the fee is, indeed, imposed as a regulatory measure, designed to
raise funds for carrying out the noble objectives and purposes of integration.

The rationale for prescribing dues has been explained in the Integration of the Philippine Bar,9 thus:

For the court to prescribe dues to be paid by the members does not mean that the Court is
attempting to levy a tax.

A membership fee in the Bar association is an exaction for regulation, while tax purpose of a
tax is a revenue. If the judiciary has inherent power to regulate the Bar, it follows that as an
incident to regulation, it may impose a membership fee for that purpose. It would not be
possible to put on an integrated Bar program without means to defray the expenses. The
doctrine of implied powers necessarily carries with it the power to impose such exaction.

The only limitation upon the State's power to regulate the privilege of law is that the
regulation does not impose an unconstitutional burden. The public interest promoted by the
 integration of the Bar far outweighs the slight inconvenience to a member resulting from his
required payment of the annual dues.

Thus, payment of dues is a necessary consequence of membership in the IBP, of which no one is
exempt. This means that the compulsory nature of payment of dues subsists for as long as one's
membership in the IBP remains regardless of the lack of practice of, or the type of practice, the
member is engaged in.

There is nothing in the law or rules which allows exemption from payment of membership dues. At
most, as correctly observed by the IBP, he could have informed the Secretary of the Integrated Bar
of his intention to stay abroad before he left. In such case, his membership in the IBP could have
been terminated and his obligation to pay dues could have been discontinued.

As abovementioned, the IBP in its comment stated that the IBP Board of Governors is in the process
of discussing the situation of members under inactive status and the nonpayment of their dues
during such inactivity. In the meantime, petitioner is duty bound to comply with his obligation to pay
membership dues to the IBP.

Petitioner also contends that the enforcement of the penalty of removal would amount to a
deprivation of property without due process and hence infringes on one of his constitutional rights.

This question has been settled in the case of In re Atty. Marcial Edillon,10 in this wise:

. . . Whether the practice of law is a property right, in the sense of its being one that entitles
the holder of a license to practice a profession, we do not here pause to consider at length,
as it [is] clear that under the police power of the State, and under the necessary powers
granted to the Court to perpetuate its existence, the respondent's right to practice law before
the courts of this country should be and is a matter subject to regulation and inquiry. And, if
the power to impose the fee as a regulatory measure is recognize[d], then a penalty
designed to enforce its payment, which penalty may be avoided altogether by payment, is
not void as unreasonable or arbitrary.

But we must here emphasize that the practice of law is not a property right but a mere
privilege, and as such must bow to the inherent regulatory power of the Court to exact
compliance with the lawyer's public responsibilities.

As a final note, it must be borne in mind that membership in the bar is a privilege burdened with
conditions,11 one of which is the payment of membership dues. Failure to abide by any of them
entails the loss of such privilege if the gravity thereof warrants such drastic move.

WHEREFORE, petitioner's request for exemption from payment of IBP dues is DENIED. He is
ordered to pay P12,035.00, the amount assessed by the IBP as membership fees for the years
1977-2005, within a non-extendible period of ten (10) days from receipt of this decision, with a
warning that failure to do so will merit his suspension from the practice of law.

SO ORDERED.
Adm. Case No. 4749 January 20, 2000

SOLIMAN M. SANTOS, JR., complainant,

vs.
ATTY. FRANCISCO R. LLAMAS, respondent.

MENDOZA, J.:

This is a complaint for misrepresentation and non-payment of bar membership dues filed against
respondent Atty. Francisco R. Llamas.

In a letter-complaint to this Court dated February 8, 1997, complainant Soliman M. Santos, Jr.,
himself a member of the bar, alleged that:

On my oath as an attorney, I wish to bring to your attention and appropriate sanction the matter of
Atty. Francisco R. Llamas who, for a number of years now, has not indicated the proper PTR and
IBP O.R. Nos. and data (date & place of issuance) in his pleadings. If at all, he only indicates "IBP
Rizal 259060" but he has been using this for at least three years already, as shown by the following
attached sample pleadings in various courts in 1995, 1996 and 1997: (originals available).

Annex A — "Ex-Parte Manifestation and Submission" dated December 1, 1995 in Civil Case
No. Q-95-25253, RTC, Br. 224, QC.

Annex B — "Urgent Ex-Parte Manifestation Motion" dated November 13, 1996 in Sp. Proc.
No. 95-030, RTC Br. 259 (not 257), Parañaque, MM.

Annex C — "An Urgent and Respectful Plea for extension of Time to File Required Comment
and Opposition" dated January 17, 1997 in CA-G.R. SP (not Civil Case) No. 42286, CA 6th
Div.

This matter is being brought in the context of Rule 138, Section 1 which qualifies that only a duly
admitted member of the bar "who is in good and regular standing, is entitled to practice law". There
is also Rule 139-A, Section 10 which provides that "default in the payment of annual dues for six
months shall warrant suspension of membership in the Integrated Bar, and default in such payment
for one year shall be a ground for the removal of the name of the delinquent member from the Roll of
Attorneys."

Among others, I seek clarification (e.g. a certification) and appropriate action on the bar standing of
Atty. Francisco R. Llamas both with the Bar Confidant and with the IBP, especially its Rizal Chapter
of which Atty. Llamas purports to be a member.

Please note that while Atty. Llamas indicates "IBP Rizal 259060" sometimes, he does not indicate
any PTR for payment of professional tax.

Under the Rules, particularly Rule 138, Sections 27 and 28, suspension of an attorney may be done
not only by the Supreme Court but also by the Court of Appeals or a Regional Trial Court (thus, we
are also copy furnishing some of these courts).

Finally, it is relevant to note the track record of Atty. Francisco R. Llamas, as shown by:
 1. his dismissal as Pasay City Judge per Supreme Court Admin. Matter No. 1037-CJ En
Banc Decision on October 28, 1981 (in SCRA).

2. his conviction for estafa per Decision dated June 30, 1994 in Crim. Case No. 11787, RTC
Br. 66, Makati, MM (see attached copy of the Order dated February 14, 1995 denying the
motion for reconsideration of the conviction which is purportedly on appeal in the Court of
Appeals).

Attached to the letter-complaint were the pleadings dated December 1, 1995, November 13, 1996,
and January 17, 1997 referred to by complainant, bearing, at the end thereof, what appears to be
respondent's signature above his name, address and the receipt number "IBP Rizal 259060."1 Also
attached was a copy of the order,2 dated February 14, 1995, issued by Judge Eriberto U. Rosario, Jr.
of the Regional Trial Court, Branch 66, Makati, denying respondent's motion for reconsideration of
his conviction, in Criminal Case No. 11787, for violation of Art. 316, par. 2 of the Revised Penal
Code.

On April 18, 1997, complainant filed a certification3 dated March 18, 1997, by the then president of
the Integrated Bar of the Philippines, Atty. Ida R. Macalinao-Javier, that respondent's "last payment
of his IBP dues was in 1991. Since then he has not paid or remitted any amount to cover his
membership fees up to the present."

On July 7, 1997, respondent was required to comment on the complaint within ten days from receipt
of notice, after which the case was referred to the IBP for investigation, report and recommendation.
In his comment-memorandum4 dated June 3, 1998, respondent alleged:5

3. That with respect to the complainant's absurd claim that for using in 1995, 1996 and 1997
the same O.R. No. 259060 of the Rizal IBP, respondent is automatically no longer a member
in good standing.

Precisely, as cited under the context of Rule 138, only an admitted member of the bar who is
in good standing is entitled to practice law.

The complainant's basis in claiming that the undersigned was no longer in good standing,
were as above cited, the October 28, 1981 Supreme Court decision of dismissal and the
February 14, 1995 conviction for Violation of Article 316 RPC, concealment of
encumbrances.

As above pointed out also, the Supreme Court dismissal decision was set aside and
reversed and respondent was even promoted from City Judge of Pasay City to Regional Trial
Court Judge of Makati, Br. 150.

Also as pointed out, the February 14, 1995 decision in Crim. Case No. 11787 was appealed
to the Court of Appeals and is still pending.

Complainant need not even file this complaint if indeed the decision of dismissal as a Judge
was never set aside and reversed, and also had the decision of conviction for a light felony,
been affirmed by the Court of Appeals. Undersigned himself would surrender his right or
privilege to practice law.

4. That complainant capitalizes on the fact that respondent had been delinquent in his dues.
 Undersigned since 1992 have publicly made it clear per his Income Tax Return, up to the
present, that he had only a limited practice of law. In fact, in his Income Tax Return, his
principal occupation is a farmer of which he is. His 30 hectares orchard and pineapple farm
is located at Calauan, Laguna.

Moreover, and more than anything else, respondent being a Senior Citizen since 1992, is
legally exempt under Section 4 of Rep. Act 7432 which took effect in 1992, in the payment of
taxes, income taxes as an example. Being thus exempt, he honestly believe in view of his
detachment from a total practice of law, but only in a limited practice, the subsequent
payment by him of dues with the Integrated Bar is covered by such exemption. In fact, he
never exercised his rights as an IBP member to vote and be voted upon.

Nonetheless, if despite such honest belief of being covered by the exemption and if only to
show that he never in any manner wilfully and deliberately failed and refused compliance
with such dues, he is willing at any time to fulfill and pay all past dues even with interests,
charges and surcharges and penalties. He is ready to tender such fulfillment or payment, not
for allegedly saving his skin as again irrelevantly and frustratingly insinuated for vindictive
purposes by the complainant, but as an honest act of accepting reality if indeed it is reality
for him to pay such dues despite his candor and honest belief in all food faith, to the contrary.

On December 4, 1998, the IBP Board of Governors passed a resolution6 adopting and approving the
report and recommendation of the Investigating Commissioner which found respondent guilty, and
recommended his suspension from the practice of law for three months and until he pays his IBP
dues. Respondent moved for a reconsideration of the decision, but this was denied by the IBP in a
resolution,7 dated April 22, 1999. Hence, pursuant to Rule 139-B, §12(b) of the Rules of Court, this
case is here for final action on the decision of the IBP ordering respondent's suspension for three
months.

The findings of IBP Commissioner Alfredo Sanz are as follows:

On the first issue, Complainant has shown "respondent's non-indication of the proper IBP
O.R. and PTR numbers in his pleadings (Annexes "A", "B" and "C" of the letter complaint,
more particularly his use of "IBP Rizal 259060 for at least three years."

The records also show a "Certification dated March 24, 1997 from IBP Rizal Chapter
President Ida R. Makahinud Javier that respondent's last payment of his IBP dues was in
1991."

While these allegations are neither denied nor categorically admitted by respondent, he has
invoked and cited that "being a Senior Citizen since 1992, he is legally exempt under Section
4 of Republic Act No. 7432 which took effect in 1992 in the payment of taxes, income taxes
as an example.

xxx xxx xxx

The above cited provision of law is not applicable in the present case. In fact, respondent
admitted that he is still in the practice of law when he alleged that the "undersigned since
1992 have publicly made it clear per his Income tax Return up to the present time that he
had only a limited practice of law." (par. 4 of Respondent's Memorandum).

Therefore respondent is not exempt from paying his yearly dues to the Integrated Bar of the
Philippines.
 On the second issue, complainant claims that respondent has misled the court about his
standing in the IBP by using the same IBP O.R. number in his pleadings of at least six years
and therefore liable for his actions. Respondent in his memorandum did not discuss this
issue.

First. Indeed, respondent admits that since 1992, he has engaged in law practice without having
paid his IBP dues. He likewise admits that, as appearing in the pleadings submitted by complainant
to this Court, he indicated "IBP-Rizal 259060" in the pleadings he filed in court, at least for the years
1995, 1996, and 1997, thus misrepresenting that such was his IBP chapter membership and receipt
number for the years in which those pleadings were filed. He claims, however, that he is only
engaged in a "limited" practice and that he believes in good faith that he is exempt from the payment
of taxes, such as income tax, under R.A. No. 7432, §4 as a senior citizen since 1992.

Rule 139-A provides:

Sec. 9. Membership dues. — Every member of the Integrated Bar shall pay such annual
dues as the Board of Governors shall determine with the approval of the Supreme Court. A
fixed sum equivalent to ten percent (10%) of the collections from each Chapter shall be set
aside as a Welfare Fund for disabled members of the Chapter and the compulsory heirs of
deceased members thereof.

Sec. 10. Effect of non-payment of dues. — Subject to the provisions of Section 12 of this
Rule, default in the payment of annual dues for six months shall warrant suspension of
membership in the Integrated Bar, and default in such payment for one year shall be a
ground for the removal of the name of the delinquent member from the Roll of Attorneys.

In accordance with these provisions, respondent can engage in the practice of law only by paying his
dues, and it does not matter that his practice is "limited." While it is true that R.A. No. 7432, §4
grants senior citizens "exemption from the payment of individual income taxes: provided, that their
annual taxable income does not exceed the poverty level as determined by the National Economic
and Development Authority (NEDA) for that year," the exemption does not include payment of
membership or association dues.

Second. By indicating "IBP-Rizal 259060" in his pleadings and thereby misrepresenting to the public
and the courts that he had paid his IBP dues to the Rizal Chapter, respondent is guilty of violating
the Code of Professional Responsibility which provides:

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.

CANON 10 — A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE

COURT.

Rule 10.01 — A lawyer shall not do any falsehood, nor consent to the doing of any court; nor
shall he mislead or allow the court to be misled by any artifice.

Respondent's failure to pay his IBP dues and his misrepresentation in the pleadings he filed in court
indeed merit the most severe penalty. However, in view of respondent's advanced age, his express
willingness to pay his dues and plea for a more temperate application of the law,8 we believe the
penalty of one year suspension from the practice of law or until he has paid his IBP dues, whichever
is later, is appropriate.

WHEREFORE, respondent Atty. Francisco R. Llamas is SUSPENDED from the practice of law for
ONE (1) YEAR, or until he has paid his IBP dues, whichever is later. Let a copy of this decision be
attached to Atty. Llamas' personal record in the Office of the Bar Confidant and copies be furnished
to all chapters of the Integrated Bar of the Philippines and to all courts in the land.
1âw phi 1.nêt

SO ORDERED.
CITIZENSHIP REQUIREMENT

B.M. No. 1678 December 17, 2007

PETITION FOR LEAVE TO RESUME PRACTICE OF LAW,

BENJAMIN M. DACANAY, petitioner.

RESOLUTION

CORONA, J.:

This bar matter concerns the petition of petitioner Benjamin M. Dacanay for leave to resume the
practice of law.

Petitioner was admitted to the Philippine bar in March 1960. He practiced law until he migrated to
Canada in December 1998 to seek medical attention for his ailments. He subsequently applied for
Canadian citizenship to avail of Canada’s free medical aid program. His application was approved
and he became a Canadian citizen in May 2004.

On July 14, 2006, pursuant to Republic Act (RA) 9225 (Citizenship Retention and Re-Acquisition Act
of 2003), petitioner reacquired his Philippine citizenship.1 On that day, he took his oath of allegiance
as a Filipino citizen before the Philippine Consulate General in Toronto, Canada. Thereafter, he
returned to the Philippines and now intends to resume his law practice. There is a question,
however, whether petitioner Benjamin M. Dacanay lost his membership in the Philippine bar when
he gave up his Philippine citizenship in May 2004. Thus, this petition.

In a report dated October 16, 2007, the Office of the Bar Confidant cites Section 2, Rule 138
(Attorneys and Admission to Bar) of the Rules of Court:

SECTION 2. Requirements for all applicants for admission to the bar. – Every applicant for
admission as a member of the bar must be a citizen of the Philippines, at least twenty-one
years of age, of good moral character, and a resident of the Philippines; and must produce
before the Supreme Court satisfactory evidence of good moral character, and that no
charges against him, involving moral turpitude, have been filed or are pending in any court in
the Philippines.

Applying the provision, the Office of the Bar Confidant opines that, by virtue of his reacquisition of
Philippine citizenship, in 2006, petitioner has again met all the qualifications and has none of the
disqualifications for membership in the bar. It recommends that he be allowed to resume the practice
of law in the Philippines, conditioned on his retaking the lawyer’s oath to remind him of his duties
and responsibilities as a member of the Philippine bar.

We approve the recommendation of the Office of the Bar Confidant with certain modifications.

The practice of law is a privilege burdened with conditions.2 It is so delicately affected with public
interest that it is both a power and a duty of the State (through this Court) to control and regulate it in
order to protect and promote the public welfare.3

Adherence to rigid standards of mental fitness, maintenance of the highest degree of morality,
faithful observance of the rules of the legal profession, compliance with the mandatory continuing
legal education requirement and payment of membership fees to the Integrated Bar of the
Philippines (IBP) are the conditions required for membership in good standing in the bar and for
enjoying the privilege to practice law. Any breach by a lawyer of any of these conditions makes him
unworthy of the trust and confidence which the courts and clients repose in him for the continued
exercise of his professional privilege.4

Section 1, Rule 138 of the Rules of Court provides:

SECTION 1. Who may practice law. – Any person heretofore duly admitted as a member of
the bar, or thereafter admitted as such in accordance with the provisions of this Rule, and
who is in good and regular standing, is entitled to practice law.

Pursuant thereto, any person admitted as a member of the Philippine bar in accordance with the
statutory requirements and who is in good and regular standing is entitled to practice law.

Admission to the bar requires certain qualifications. The Rules of Court mandates that an applicant
for admission to the bar be a citizen of the Philippines, at least twenty-one years of age, of good
moral character and a resident of the Philippines.5 He must also produce before this Court
satisfactory evidence of good moral character and that no charges against him, involving moral
turpitude, have been filed or are pending in any court in the Philippines.6

Moreover, admission to the bar involves various phases such as furnishing satisfactory proof of
educational, moral and other qualifications;7 passing the bar examinations;8 taking the lawyer’s
oath9 and signing the roll of attorneys and receiving from the clerk of court of this Court a certificate
of the license to practice.10

The second requisite for the practice of law ― membership in good standing ― is a continuing
requirement. This means continued membership and, concomitantly, payment of annual
membership dues in the IBP;11 payment of the annual professional tax;12 compliance with the
mandatory continuing legal education requirement;13 faithful observance of the rules and ethics of
the legal profession and being continually subject to judicial disciplinary control.14

Given the foregoing, may a lawyer who has lost his Filipino citizenship still practice law in the
Philippines? No.

The Constitution provides that the practice of all professions in the Philippines shall be limited to
Filipino citizens save in cases prescribed by law.15 Since Filipino citizenship is a requirement for
admission to the bar, loss thereof terminates membership in the Philippine bar and, consequently,
the privilege to engage in the practice of law. In other words, the loss of Filipino citizenship ipso
jure terminates the privilege to practice law in the Philippines. The practice of law is a privilege
denied to foreigners.16

The exception is when Filipino citizenship is lost by reason of naturalization as a citizen of another
country but subsequently reacquired pursuant to RA 9225. This is because "all Philippine citizens
who become citizens of another country shall be deemed not to have lost their Philippine
citizenship under the conditions of [RA 9225]."17Therefore, a Filipino lawyer who becomes a citizen
of another country is deemed never to have lost his Philippine citizenship if he reacquires it in
accordance with RA 9225. Although he is also deemed never to have terminated his membership
in the Philippine bar, no automatic right to resume law practice accrues.

Under RA 9225, if a person intends to practice the legal profession in the Philippines and he
reacquires his Filipino citizenship pursuant to its provisions "(he) shall apply with the proper authority
for a license or permit to engage in such practice."18 Stated otherwise, before a lawyer who
reacquires Filipino citizenship pursuant to RA 9225 can resume his law practice, he must first secure
from this Court the authority to do so, conditioned on:

(a) the updating and payment in full of the annual membership dues in the IBP;

(b) the payment of professional tax;

(c) the completion of at least 36 credit hours of mandatory continuing legal education; this is
specially significant to refresh the applicant/petitioner’s knowledge of Philippine laws and
update him of legal developments and

(d) the retaking of the lawyer’s oath which will not only remind him of his duties and
responsibilities as a lawyer and as an officer of the Court, but also renew his pledge to
maintain allegiance to the Republic of the Philippines.

Compliance with these conditions will restore his good standing as a member of the Philippine bar.

WHEREFORE, the petition of Attorney Benjamin M. Dacanay is hereby GRANTED, subject to

compliance with the conditions stated above and submission of proof of such compliance to the Bar
Confidant, after which he may retake his oath as a member of the Philippine bar.

SO ORDERED.
RULES OF COURT, RULE 138

A.C. No. 9401 October 22, 2013

JOCELYN DE LEON, Complainant,

vs.
ATTY. TYRONE PEDREÑA, Respondent.

DECISION

BERSAMIN, J.:

A lawyer who commits overt acts of sexual harassment against a female client is guilty of
reprehensible conduct that is unbecoming of a member of the Bar and may be condignly punished
with suspension from the practice of law.

Antecedents

Jocelyn de Leon filed with the Integrated Bar of the Philippines (IBP) a complaint for disbarment or
suspension from the practice of law against Atty. Tyrone Pedreña, a Public Attorney. She averred in
her complaint-affidavit that Atty. Pedreña had sexually harassed her as follows:

1. On January 30, 2006, at about 10:00 in the morning, I went to the Public Attorney’s Office
in Parañaque City, in order to inquire from ATTY. TYRONE PEDREÑA about the status of
my case for support for my two minor children against my husband, which case is being
handled by Atty. Pedreña;

2. At that time, said Atty. Pedreña was at a court hearing, so I waited at his office until he
arrived at about 11:45 a.m. Atty. Pedreña told me to go ahead to Tita Babes Restaurant so
we could take our lunch together and to talk about my said case;

3. While we were eating at the said restaurant, he asked me many personal matters rather
than to discuss my said case. But still, I answered him with respect, for he was my lawyer;

4. After we took our lunch, he told me to just go back on February 1, 2006 at 10:00 a.m.
because according to him, my said case was quite difficult, that he needed more time to
study;

5. Since Atty. Pedreña was also already going home then, he told me then to ride with him
and he would just drop me by the jeepney station;

6. Although I refused to ride with him, he persistently convinced me to get in the car, and so I
acceded to his request so as not to offend him;

7. Right after we left the parking lot and not yet too far from the City Hall, Atty. Pedreña
immediately held my left hand with his right hand, insisted me to get closer with him and laid
me on his shoulder;

8. I immediately responded by saying "AYOKO HO!" But he persisted in trying to get hold of
my hand and he also tried very hard to inserting (sic) his finger into my firmly closed hand.
 Thus, I became very afraid and at the same time offended for his lack of respect for me at
that moment; 9. Despite my resistance, he continued rubbing my left leg. I was then
attempting to remove his hand on my leg, but he grabbed my hand and forced it to put (sic)
on his penis;

10. Because I was already really afraid at that moment, I continued to wrestle and struggle,
and as I saw that we were already approaching the 7-Eleven Store, the place where I was
supposed to get off, Atty. Pedreña made another move of pressing his finger against my
private part;

11. I thereafter tried at all cost to unlock the car’s door and told him categorically that I was
getting off the car. But because the traffic light was on green, he accelerated a bit more
instead, but sensing my insistence to get off, he stopped the car, and allowed me to get off.
He then reminded me to see him on February 1, 2006 at 10:00 a.m. for the continuation of
hearing of my case;

12. That on February 1, 2006, I had to come for my case, but this time, I brought with me my
five-year-old child to avoid another incident. I was not able to see Atty. Pedreña then, so I
just signed some documents;1

In his answer, Atty. Pedreña averred that De Leon’s allegations were unsubstantiated; that
entertaining such a complaint would open the gates to those who had evil desires to destroy the
names of good lawyers; that the complaint was premature and should be dismissed on the ground of
forum shopping because De Leon had already charged him with acts of lasciviousness in the
Parañaque City Prosecutor’s Office; and that he had also filed a complaint for theft against De Leon.2

Attached to Atty. Pedreña’s answer were his counter-affidavit in the criminal case for acts of
lasciviousness and his complaint-affidavit for theft. In his counter affidavit, Atty. Pedreña admitted
giving a ride to De Leon, but he vehemently denied making sexual advances on her, insisting that
she had sat very close to him during the ride that even made it hard for him to shift gears, and that
the ride had lasted for only two to three minutes.3 He claimed that De Leon was allowing herself to
be used by his detractors in the Public Attorney’s Office (PAO) after he had opposed the practice of
certain PAO staff members of charging indigent clients for every document that they prepared. In his
complaint affidavit for theft, he stated that he had another passenger in his car at the time he gave a
ride to De Leon, who did not notice the presence of the other passenger because the ride lasted for
only two to three minutes; and that the other passenger was Emma Crespo, who executed her own
affidavit attesting that she had witnessed De Leon’s act of taking his (Pedreña) cellphone from the
handbrake box of the car.4

Only De Leon appeared during the hearing.5 Hence, Atty. Pedreña was deemed to have waived his
right to participate in the proceedings.6

Thereafter, the IBP Investigating Commissioner recommended the disbarment of Atty. Pedreña and
the striking off of his name from the Roll of Attorneys.7 Holding that a disbarment case was sui
generis and could proceed independently of the criminal case that was based on the same facts;
and that the proceedings herein need not wait until the criminal case for acts of lasciviousness
brought against Atty. Pedreña was finally resolved, the IBP Investigating Commissioner found that
Atty. Pedreña had made sexual advances on De Leon in violation of Rule 1.018 and Rule 7.039 of the
Code of Professional Responsibility.

In its Resolution No. XVIII-2007-83 dated September 19, 2007, the IBP Board of Governors adopted
and approved with modification the report and recommendation of the IBP Investigating
Commissioner, and imposed upon Atty. Pedreña suspension from the practice of law for three
months.10

Atty. Pedreña filed a motion for reconsideration with the IBP,11 which adopted and approved
Resolution No. XX-2012-43 dated January 15, 2012, denying the motion and affirming with
modification its Resolution No. XVIII-2007-83 by increasing the period of suspension to six months.12

On February 28, 2012, the IBP Board of Governors transmitted to the Court Resolution No. XX-
2012-43 and the records of the case for final approval.13

In the Resolution dated April 24, 2012, the Court noted the IBP Board of Governors’ notice of
Resolution No. XX-2012-43.14

Ruling

The report and recommendation of the Investigating Commissioner stated thusly:

There is no doubt that Complainant was able to prove her case against the Respondent. During the
clarificatory hearing, she was straightforward and spontaneous in answering the questions
propounded on her. Her account of the incident that happened on 30 January 2006 was consistent
with the matters she stated in her Complaint and Verified Position Paper.

On the other hand, Respondent’s defenses are not credible enough to rebut the claims of
Complainant. His defenses are replete with

Decision 5 A.C. No. 9401 inconsistencies and his actuations in the entire proceedings show lack of
integrity in his dealings with both the Complainant and this Commission.

xxxx

We find no merit at all in the defenses put forth by Respondent. The Theft case filed by Respondent
is a mere afterthought on his part. We note that such criminal complaint hinged on a claim that there
was another person during that incident who allegedly saw Complainant stealing Respondent’s
mobile phone. Yet, in Respondent’s Position Paper and in his Counter-Affidavit to the Acts of
Lasciviousness case, which was executed after the institution of the criminal complaint for Theft,
Respondent never mentioned anything about a third person being present during the incident. If the
presence of this third person was crucial to prove his case against herein Complainant, there is no
reason why this allegation would be omitted in his Position Paper and Counter-Affidavit to at least
support his defense.

Furthermore, Respondent’s contention that Complainant is being used by his detractors is self-
serving. His memo regarding the amount of RATA he receives is a relatively harmless query to a
higher authority, which could not possibly motivate his colleagues to prod other people to file cases
against Respondent.15

We adopt the findings and conclusions of the Investigating Commissioner, as sustained by the IBP
Board of Governors, for being substantiated by the evidence on record.

The records show that Atty. Pedreña rubbed the complainant’s right leg with his hand; tried to insert
his finger into her firmly closed hand; grabbed her hand and forcibly placed it on his crotch area; and
pressed his finger against her private part. Given the circumstances in which he committed them, his
acts were not merely offensive and undesirable but repulsive, disgraceful and grossly immoral. They
constituted misconduct on the part of any lawyer. In this regard, it bears stressing that immoral
conduct is gross when it is so corrupt as to constitute a criminal act, or so unprincipled as to be
reprehensible to a high degree, or when committed under such scandalous or revolting
circumstances as to shock the community’s sense of decency.16

The possession of good moral character is both a condition precedent and a continuing requirement
to warrant admission to the Bar and to retain membership in the Legal Profession. Members of the
Bar are clearly duty- bound to observe the highest degree of morality and integrity in order to
safeguard the reputation of the Bar. Any errant behavior on the part of a lawyer that tends to expose
a deficiency in moral character, honesty, probity or good demeanor, be it in the lawyer’s public or
private activities, is sufficient to warrant the lawyer’s suspension or disbarment.17 Section 27, Rule
138 of the Rules of Court, provides that a member of the Bar may be disbarred or suspended for
grossly immoral conduct, or violation of his oath as a lawyer. Towards that end, we have not been
remiss in reminding members of the Bar to live up to the standards and norms of the Legal
Profession by upholding the ideals and principles embodied in the Code of Professional
Responsibility.

Atty. Pedreña’s misconduct was aggravated by the fact that he was then a Public Attorney mandated
to provide free legal service to indigent litigants, and by the fact that De Leon was then such a client.
He also disregarded his oath as a public officer to serve others and to be accountable at all times,
because he thereby took advantage of her vulnerability as a client then in desperate need of his
legal assistance.

Yet, even as we agree with the findings of the IBP, we consider the recommended penalty of
suspension for six months not commensurate with the gravity of the offensive acts committed.

Verily, the determination of the penalty to impose on an erring lawyer is within the Court’s
discretion. The exercise of the discretion should neither be arbitrary nor despotic, nor motivated by
1âwphi 1

any animosity or prejudice towards the lawyer, but should instead be ever controlled by the
imperative need to scrupulously guard the purity and independence of the Bar and to exact from the
lawyer strict compliance with his duties to the Court, to his client, to his brethren in the profession,
and to the general public.18

In determining the appropriate penalty to be imposed on Atty. Pedreña, therefore, we take into
consideration judicial precedents on gross immoral conduct bearing on sexual matters. Although
most of the judicial precedents dealt with lawyers who engaged in extramarital affairs, or cohabited
with women other than their wives,19 they are nonetheless helpful in gauging the degree of
immorality committed by the respondent.

In Advincula v. Macabata,20 the Court held that the errant lawyer’s acts of turning his client’s head
towards him and then kissing her on the lips were distasteful, but still ruled that such acts, albeit
offensive and undesirable, were not grossly immoral. Hence, the respondent lawyer was merely
reprimanded but reminded to be more prudent and cautious in his dealings with clients.

In Barrientos v. Daarol,21 the respondent lawyer was disbarred, but the severest penalty was
imposed not only because of his engaging in illicit sexual relations, but also because of his deceit.
He had been already married and was about 41 years old when he proposed marriage to a 20-year-
old girl. He succeeded in his seduction of her, and made her pregnant. He not only suggested that
she abort the pregnancy, but he also breached his promise to marry her, and, in the end, even
deserted her and their child.
In Delos Reyes v. Aznar,22 the Court adjudged the respondent lawyer, a married man with children,
highly immoral for having taken advantage of his position as the chairman of the College of Medicine
of his school in enticing the complainant, then a student in the college, to have carnal knowledge
with him under the threat that she would flunk in all her subjects should she refuse. The respondent
was disbarred for grossly immoral conduct.

Without diminishing the gravity of the complainant’s sad experience, however, we consider the acts
committed by Atty. Pedreña to be not of the same degree as the acts punished under the cited
judicial precedents. Neither did his acts approximate the act committed by the respondent lawyer in
Calub v. Suller,23 whereby we disbarred the respondent lawyer for raping his neighbor’s wife
notwithstanding that his guilt was not proved beyond reasonable doubt in his criminal prosecution for
the crime. We further note that, unlike in Barrientos where there was deceit and in Delos Reyes
where there were threats and taking advantage of the respondent lawyer’s position, Atty. Pedreña
did not employ any scheme to satiate his lust, but, instead, he desisted upon the first signs of the
complainant’s firm refusal to give in to his advances.

In view of these considerations, the penalty of suspension from the practice of law for two years is
fitting and just.

WHEREFORE, the Court SUSPENDS ATTY. TYRONE PEDREÑA from the practice of law for two
years effective upon receipt of this decision, with a STERN WARNING that a repetition of the same
or similar acts will be dealt with more severely.

Let copies of this decision be furnished to the Office of the Bar Confidant to the Integrated Bar of the
Philippines and to the Office of the Court Administrator for dissemination to all courts throughout the
country.

SO ORDERED.
A.C. No. 10783

ATTY. BENIGNO T. BARTOLOME,, Complainant

vs.
ATTY. CHRISTOPHER A. BASILIO, Respondent

RESOLUTION

PERLAS-BERNABE, J.:

For resolution are the Motion to Lift Suspension1 dated July 19, 2017 filed by respondent Atty.
Christopher A. Basilio (Basilio), as well as the Report and Recommendation2 dated September 13,
2017 of the Office of the Bar Confidant (OBC), recommending that: (a) Basilio be meted with an
additional penalty of fine in the amount of ₱10,000.00 for his failure to immediately comply with the
Court's order of suspension from the practice of law, as mandated in the Decision3 dated October 14,
2015 of the Court; and (b) the lifting of the order of suspension be held in abeyance pending the
payment of the fine.

The Facts

In the October 14, 2015 Decision4 (the Decision), the Court suspended Basilio from the practice of
law for one (1) year, revoked his incumbent commission as a notary public, and prohibited him from
being commissioned as a notary public for two (2) years, effective immediately, after finding him
guilty of violating the 2004 Rules of Notarial Practice and Rule 1.01, Canon 1 of the Code of
Professional Responsibility. He is further warned that a repetition of the same offense or similar acts
in the future shall be dealt with more severely.5

The Decision was circulated to all courts for the information and implementation of the order of
suspension.6 Basilio, thru his counsel, Atty. Edward L. Robea (Robea), claimed to have received a
copy of the Decision on December 2, 2015,7 hence, his suspension from the practice of law, as well
as the revocation of his notarial commission and prohibition from being commissioned as a notary
public should have all effectively commenced on the same date. In a Resolution8 dated April 20,
2016, the Court denied with finality Basilio's motion for reconsideration9 of the Decision.

However, in a letter10 dated June 9, 2016, Atty. Sotero T. Rambayon (Rambayon) inquired from the
Court about the status of Basilio's suspension, alleging that the latter still appeared before Judge
Venancio M. Ovejera of the Municipal Trial Court of Paniqui, Tarlac on April 26, 2016. The letter was
subsequently referred to the OBC for appropriate action.11 In a letter-reply12 dated July 25, 2016, the
OBC informed Rambayon that the Decision had already been circulated to all courts for
implementation, and that Basilio's motion for reconsideration had been denied with finality by the
Court.

Consequently, in a Report and Recommendation13 dated July 27, 2016, the OBC recommended that
Basilio be required to show cause why he should not be held in contempt of court for not
immediately complying with the Court's order of suspension upon receipt of the Decision. He was
further required to file a sworn statement, with certifications from the Office of the Executive Judge of
the court where he practices his legal profession and from the Integrated Bar of the Philippines' (IBP)
Local Chapter where he is affiliated with, affirming that he has ceased and desisted from the practice
of law, has not appeared in court as counsel, and has not practiced his notarial commission during
the mandated period.
In another letter14 dated August 22, 2016, Rambayon informed the Court that in the schedule of
cases before Judge Bemar D. Fajardo of the Regional Trial Court (RTC) of Paniqui, Tarlac, Branch
67, there were five (5) cases15 where the litigants were supposedly represented by Basilio.

In a Resolution16 dated October 5, 2016, the Court, among others, noted Rambayon's letter dated
August 22, 2016 and further required Basilio to: (a) show cause within ten (10) days from notice why
he should not be held in contempt of court for not immediately complying with the order of
suspension upon receipt of the Decision; and (b)file a sworn statement with certifications affirming
that he has fully served his penalty of suspension.

Complying17 with the show cause order, Basilio explained that he did not immediately comply with the
suspension order because he believed that his suspension was held in abeyance pending resolution
of his motion for reconsideration of the Decision, following the guidelines in Maniago v. De
Dios18(Maniago), wherein it was stated that "[u]nless the Court explicitly states that the decision is
immediately executory upon receipt thereof, respondent has [fifteen (15)] days within which to file a
motion for reconsideration thereof. The denial of said motion shall render the decision final and
executory."19 On this score, he maintained that what was immediately executory was only the
revocation of his notarial commission and the two (2)-year prohibition of being commissioned as a
notary public.20

In a Resolution21 dated March 15, 2017, the Court noted Basilio's compliance, and referred the case
to the OBC for evaluation, report, and recommendation. In a Report and Recommendation22 dated
June 22, 2017, the OBC recommended that the directives in the Court's October 5, 2016 Resolution
be reiterated, i.e., the filing of a sworn statement with certifications attesting to his compliance with
the full service of suspension, and require Basilio to comply with the same within ten (10) days from
notice.

Before the Court could act on the OBC's June 22, 2017 Report and Recommendation, Basilio filed a
Motion to Lift Suspension (Motion)23 on July 25, 2017, attaching an Affidavit of Cessation/Desistance
from Practice of Law or Appearance in Court.24 In his motion, Basilio stated that he "has commenced
to serve his penalty on July 9, 2016 and continue to serve his penalty until the present upon his
receipt of the Order of the [Court] denying his Motion for Reconsideration."25 He further mentioned
that he "immediately ceased and desisted from the practice of his notarial commission on December
2, 2015 until the present."26 Basilio likewise attached to his Motion the following: (a)
Certification27 dated July 12, 2017 from the IBP-Tarlac Chapter, affirming that Basilio "has not
appeared in court beginning July 9, 2016 to July 9, 2017" and "has not practiced his notarial
commission as notary public from December 2, 2016 [up to] the present"; (b) Certification28 dated
July 14, 2017 from the RTC of Paniqui, Tarlac, Branch 67, attesting that Basilio has ceased and
desisted from the practice of law and has not practiced his notarial commission from December 2,
2016 up to the present; and (c) Certifications29 dated July 17, 2017, from the RTC of Camiling,
Tarlac, Branch 68 and July 20, 2017, from the RTC of Tarlac City, Branch 64, both affirming that
Basilio did not appear as counsel in said courts from July 9, 2016 up to the present.

The Action and Recommendation of the OBC

In a Report and Recommendation30 dated September 13, 2017, the OBC recommended that Basilio
be meted with an additional penalty of a fine in the amount of ₱10,000.00 for his failure to
immediately comply with the Court's order of suspension from the practice of law, as mandated in
the Decision. Likewise, it recommended that the lifting of the order of suspension from the practice of
law be held in abeyance pending his payment of the fine.
The OBC maintained that Basilio, through his counsel, Robea, received the Decision on November
3, 2015. Hence, the one (1)-year suspension order from the practice of law imposed upon him
commenced from the said date should end on November 3, 2016. On the other hand, the two (2)-
year order of revocation of notarial commission and prohibition from being commissioned as a notary
public should end on November 3, 2017. However, the OBC observed that Basilio served his
suspension order from the practice of law beginning only on July 9, 2016 and desisted from his
notarial practice on December 2, 2015, as shown by the attached Certifications; hence, the
recommended fine.

The Issue Before the Court

The essential issues for the Court's resolution are: (a) whether or not Basilio's suspension should
now be lifted, and (b) whether or not he should be fined for his failure to immediately comply with the
order of the Court.

The Court's Ruling

The dispositive portion of the Decision explicitly states that the penalties imposed on Basilio for
violation of the 2004 Rules of Notarial Practice and Rule 1.01, Canon 1 of the Code of Professional
Responsibility - namely: (a)suspension from the practice of law for a period of one (1) year;
(b) revocation of his incumbent commission as a notary public; and (c) prohibition from being
commissioned as a notary public for two (2) years, were all "effective immediately", viz.:

WHEREFORE, the Court finds Atty. Christopher A. Basilio GUILTY of violating the 2004 Rules of
Notarial Practice and Rule 1.01, Canon 1 of the Code of Professional Responsibility. Accordingly,
the Court hereby SUSPENDS him from the practice of law for one (1) year; REVOKES his
incumbent commission as a notary public, if any; and PROHIBITS him from being commissioned as
a notary public for two (2) years, effective immediately. He is WARNED that a repetition of the same
offense or similar acts in the future shall be dealt with more severely.31 [Emphasis, italics, and
underscoring supplied]

Accordingly, Basilio's compliance with the order of suspension, as well as all the other penalties,
should have commenced on the day he received the Decision. 1âwphi 1

According to the OBC, Basilio received the Decision on November 3, 2015. However, records show
that Basilio, through Robea, actually received the Decision on December 2, 2015, as per the
Registry Return Receipt, and that the same was merely mailed on November 13 (not 3), 2015.32 The
OBC - albeit still inaccurately - must have thought that this latter date was to be considered as the
date of receipt. In fact, Basilio, in his motion for reconsideration and compliance to the Court's
October 5, 2016 Resolution,33 has repeatedly maintained that he received the Decision on December
2, 2015. This averment appears to be consistent with the documents on record and hence, ought to
prevail.

This notwithstanding, Basilio himself admitted that he served his suspension only on July 9, 2016,
proffering that he believed that what was immediately executory was only the revocation of his
notarial commission and the two (2)-year prohibition against being commissioned as a notary public.
Unfortunately, the Court cannot accept such flimsy excuse in light of the Decision's unequivocal
wording.

Irrefragably, the clause "effective immediately" was placed at the end of the enumerated series of
penalties to indicate that the same pertained to and therefore, qualified all three (3) penalties, which
clearly include his suspension from the practice of law. The immediate effectivity of the order of
suspension - not just of the revocation and prohibition against his notarial practice - logically
proceeds from the fact that all three (3) penalties were imposed on Basilio as a result of the Court's
finding that he failed to comply with his duties as a notary public, in violation of the provisions of the
2004 Rules of Notarial Practice, and his sworn duties as a lawyer, in violation of Rule 1.01, Canon 1
of the Code of Professional Responsibility. Thus, with the Decision's explicit wording that the same
was "effective immediately", there is no gainsaying that Basilio's compliance therewith should have
commenced immediately from his receipt of the Decision on December 2, 2015. On this score,
Basilio cannot rely on the Maniago ruling as above-claimed since it was, in fact, held therein that a
decision is immediately executory upon receipt thereof if the decision so indicates, as in this case.

All told, for his failure to immediately serve the penalties in the Decision against him upon receipt,
Basilio acted contumaciously,34 and thus should be meted with a fine in the amount of
₱10,000.00,35 as recommended by the OBC. Pending his payment of the fine and presentation of
proof thereof, the lifting of the order of suspension from the practice of law is perforce held in
abeyance.

WHEREFORE, the Court hereby FINDS respondent Atty. Christopher A. Basilio GUILTY of indirect
contempt. He is hereby FINED in the amount of Ten Thousand Pesos (₱10,000.00) and STERNLY
1âwphi1

WARNED that a repetition of the same or similar infractions will be dealt with more severely. The
lifting of the order of suspension from the practice of law is HELD IN ABEYANCE pending his
payment of the fine and presentation of proof thereof.

SO ORDERED.
 RULE 138

Attorneys and Admission to Bar

Section 1. Who may practice law. — Any person heretofore duly admitted as a member of the bar,
or hereafter admitted as such in accordance with the provisions of this rule, and who is in good and
regular standing, is entitled to practice law.

Section 2. Requirements for all applicants for admission to the bar. — Every applicant for admission
as a member of the bar must be a citizen of the Philippines, at least twenty-one years of age, of
good moral character, and resident of the Philippines; and must produce before the Supreme Court
satisfactory evidence of good moral character, and that no charges against him, involving moral
turpitude, have been filed or are pending in any court in the Philippines.

Section 3. Requirements for lawyers who are citizens of the United States of America. — Citizens of
the United States of America who, before July 4, 1946, were duly licensed members of the Philippine
Bar, in active practice in the courts of the Philippines and in good and regular standing as such may,
upon satisfactory proof of those facts before the Supreme Court, be allowed to continue such
practice after taking the following oath of office:

I . . . . . . . . . . . . . . . . . . . . . . . . . . ., having been permitted to continue in the practice of law

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

Section 4. Requirements for applicants from other jurisdictions. — Applicants for admission who,
being Filipino citizens, are enrolled attorneys in good standing in the Supreme Court of the United
States or in any circuit court of appeals or district court therein, or in the highest court of any State or
Territory of the United States, and who can show by satisfactory certificates that they have practiced
at least five years in any of said courts, that such practice began before July 4, 1946, and that they
have never been suspended or disbarred, may, in the discretion of the Court, be admitted without
examination.

Section 5. Additional requirements for other applicants. — All applicants for admission other than
those referred to in the two preceding section shall, before being admitted to the examination,
satisfactorily show that they have regularly studied law for four years, and successfully completed all
prescribed courses, in a law school or university, officially approved and recognized by the Secretary
of Education. The affidavit of the candidate, accompanied by a certificate from the university or
school of law, shall be filed as evidence of such facts, and further evidence may be required by the
court.

No applicant shall be admitted to the bar examinations unless he has satisfactorily completed the
following courses in a law school or university duly recognized by the government: civil law,
commercial law, remedial law, criminal law, public and private international law, political law, labor
and social legislation, medical jurisprudence, taxation and legal ethics.

Section 6. Pre-Law. — No applicant for admission to the bar examination shall be admitted unless
he presents a certificate that he has satisfied the Secretary of Education that, before he began the
study of law, he had pursued and satisfactorily completed in an authorized and recognized university
or college, requiring for admission thereto the completion of a four-year high school course, the
course of study prescribed therein for a bachelor's degree in arts or sciences with any of the
following subjects as major or field of concentration: political science, logic, english, spanish, history
and economics.

Section 7. Time for filing proof of qualifications. — All applicants for admission shall file with the
clerk of the Supreme Court the evidence required by section 2 of this rule at least fifteen (15) days
before the beginning of the examination. If not embraced within section 3 and 4 of this rule they shall
also file within the same period the affidavit and certificate required by section 5, and if embraced
within sections 3 and 4 they shall exhibit a license evidencing the fact of their admission to practice,
satisfactory evidence that the same has not been revoked, and certificates as to their professional
standing. Applicants shall also file at the same time their own affidavits as to their age, residence,
and citizenship.

Section 8. Notice of Applications. — Notice of applications for admission shall be published by the
clerk of the Supreme Court in newspapers published in Pilipino, English and Spanish, for at least ten
(10) days before the beginning of the examination.

Section 9. Examination; subjects. — Applicants, not otherwise provided for in sections 3 and 4 of
this rule, shall be subjected to examinations in the following subjects: Civil Law; Labor and Social
Legislation; Mercantile Law; Criminal Law; Political Law (Constitutional Law, Public Corporations,
and Public Officers); International Law (Private and Public); Taxation; Remedial Law (Civil
Procedure, Criminal Procedure, and Evidence); Legal Ethics and Practical Exercises (in Pleadings
and Conveyancing).

Section 10. Bar examination, by questions and answers, and in writing. — Persons taking the
examination shall not bring papers, books or notes into the examination rooms. The questions shall
be the same for all examinees and a copy thereof, in English or Spanish, shall be given to each
examinee. Examinees shall answer the questions personally without help from anyone.

Upon verified application made by an examinee stating that his penmanship is so poor that it will be
difficult to read his answers without much loss of time., the Supreme Court may allow such
examinee to use a typewriter in answering the questions. Only noiseless typewriters shall be allowed
to be used.

The committee of bar examiner shall take such precautions as are necessary to prevent the
substitution of papers or commission of other frauds. Examinees shall not place their names on the
examination papers. No oral examination shall be given.

Section 11. Annual examination. — Examinations for admission to the bar of the Philippines shall
take place annually in the City of Manila. They shall be held in four days to be disignated by the
chairman of the committee on bar examiners. The subjects shall be distributed as follows: First day:
Political and International Law (morning) and Labor and Social Legislation (afternoon); Second day:
Civil Law (morning) and Taxation (afternoon); Third day: Mercantile Law (morning) and Criminal Law
(afternoon); Fourth day: Remedial Law (morning) and legal Ethics and Practical Exercises
(afternoon).
Section 12. Committee of examiners. — Examinations shall be conducted by a committee of bar
examiners to be appointed by the Supreme Court. This committee shall be composed of a Justice of
the Supreme Court, who shall act as chairman, and who shall be designated by the court to serve for
one year, and eight members of the bar of the Philippines, who shall hold office for a period of one
year. The names of the members of this committee shall be published in each volume of the official
reports.

Section 13. Disciplinary measures. — No candidate shall endeavor to influence any member of the
committee, and during examination the candidates shall not communicate with each other nor shall
they give or receive any assistance. The candidate who violates this provisions, or any other
provision of this rule, shall be barred from the examination, and the same to count as a failure
against him, and further disciplinary action, including permanent disqualification, may be taken in the
discretion of the court.

Section 14. Passing average. — In order that a candidate may be deemed to have passed his
examinations successfully, he must have obtained a general average of 75 per cent in all subjects,
without falling below 50 per cent in any subjects. In determining the average, the subjects in the
examination shall be given the following relative weights: Civil Law, 15 per cent; Labor and Social
Legislation, 10 per cent; Mercantile Law, 15 per cent; Criminal Law; 10 per cent: Political and
International Law, 15 per cent; Taxation, 10 per cent; Remedial Law, 20 per cent; Legal Ethics and
Practical Exercises, 5 per cent.

Section 15. Report of the committee; filing of examination papers. — Not later than February 15th
after the examination, or as soon thereafter as may be practicable, the committee shall file its report
on the result of such examination. The examination papers and notes of the committee shall be filed
with the clerk and may there be examined by the parties in interest, after the court has approved the
report.

Section 16. Failing candidates to take review course. — Candidates who have failed the bar
examinations for three times shall be disqualified from taking another examination unless they show
the satisfaction of the court that they have enrolled in and passed regular fourth year review classes
as well as attended a pre-bar review course in a recognized law school.

The professors of the individual review subjects attended by the candidates under this rule shall
certify under oath that the candidates have regularly attended classes and passed the subjects
under the same conditions as ordinary students and the ratings obtained by them in the particular
subject.

Section 17. Admission and oath of successful applicants. — An applicant who has passed the
required examination, or has been otherwise found to be entitled to admission to the bar, shall take
and subscribe before the Supreme Court the corresponding oath of office.

Section 18. Certificate. — The supreme Court shall thereupon admit the applicant as a member of
the bar for all the courts of the Philippines, and shall direct an order to be entered to that effect upon
its records, and that a certificate of such record be given to him by the clerk of court, which certificate
shall be his authority to practice.

Section 19. Attorney's roll. — The clerk of the Supreme Court shall kept a roll of all attorneys
admitted to practice, which roll shall be signed by the person admitted when he receives his
certificate.

Section 20. Duties of attorneys. — It is the duty of an attorney:

 (a) To maintain allegiance to the Republic of the Philippines and to support the Constitution
and obey the laws of the Philippines.

(b) To observe and maintain the respect due to the courts of justice and judicial officers;

(c) To counsel or maintain such actions or proceedings only as appear to him to be just, and
such defenses only as he believes to be honestly debatable under the law.

(d) To employ, for the purpose of maintaining the causes confided to him, such means only
as are consistent with truth and honor, and never seek to mislead the judge or any judicial
officer by an artifice or false statement of fact or law;

(e) To maintain inviolate the confidence, and at every peril to himself, to preserve the secrets
of his client, and to accept no compensation in connection with his client's business except
from him or with his knowledge and approval;

(f) To abstain from all offensive personality and to advance no fact prejudicial to the honor or
reputation of a party or witness, unless required by the justice of the cause with which he is
charged;

(g) Not to encourage either the commencement or the continuance of an action or

proceeding, or delay any man's cause, from any corrupt motive or interest;

(h) Never to reject, for any consideration personal to himself, the cause of the defenseless or
oppressed;

(i) In the defense of a person accused of crime, by all fair and honorable means, regardless
of his personal opinion as to the guilt of the accused, to present every defense that the law
permits, to the end that no person may be deprived of life or liberty, but by due process of
law.

Section 21. Authority of attorney to appear. — an attorney is presumed to be properly authorized to

represent any cause in which he appears, and no written power of attorney is required to authorize
him to appear in court for his client, but the presiding judge may, on motion of either party and on
reasonable grounds therefor being shown, require any attorney who assumes the right to appear in
a case to produce or prove the authority under which he appears, and to disclose, whenever
pertinent to any issue, the name of the person who employed him, and may thereupon make such
order as justice requires. An attorneys wilfully appear in court for a person without being employed,
unless by leave of the court, may be punished for contempt as an officer of the court who has
misbehaved in his official transactions.

Section 22. Attorney who appears in lower court presumed to represent client on appeal. — An
attorney who appears de parte in a case before a lower court shall be presumed to continue
representing his client on appeal, unless he files a formal petition withdrawing his appearance in the
appellate court.

Section 23. Authority of attorneys to bind clients. — Attorneys have authority to bind their clients in
any case by any agreement in relation thereto made in writing, and in taking appeals, and in all
matters of ordinary judicial procedure. But they cannot, without special authority, compromise their
client's litigation, or receive anything in discharge of a client's claim but the full amount in cash.
Section 24. Compensation of attorneys; agreement as to fees. — An attorney shall be entitled to
have and recover from his client no more than a reasonable compensation for his services, with a
view to the importance of the subject matter of the controversy, the extent of the services rendered,
and the professional standing of the attorney. No court shall be bound by the opinion of attorneys as
expert witnesses as to the proper compensation, but may disregard such testimony and base its
conclusion on its own professional knowledge. A written contract for services shall control the
amount to be paid therefor unless found by the court to be unconscionable or unreasonable.

Section 25. Unlawful retention of client's funds; contempt. — When an attorney unjustly retains in
his hands money of his client after it has been demanded, he may be punished for contempt as an
officer of the Court who has misbehaved in his official transactions; but proceedings under this
section shall not be a bar to a criminal prosecution.

Section 26. Change of attorneys. — An attorney may retire at any time from any action or special
proceeding, by the written consent of his client filed in court. He may also retire at any time from an
action or special proceeding, without the consent of his client, should the court, on notice to the
client and attorney, and on hearing, determine that he ought to be allowed to retire. In case of
substitution, the name of the attorney newly employed shall be entered on the docket of the court in
place of the former one, and written notice of the change shall be given to the advance party.

A client may at any time dismiss his attorney or substitute another in his place, but if the contract
between client and attorney has been reduced to writing and the dismissal of the attorney was
without justifiable cause, he shall be entitled to recover from the client the full compensation
stipulated in the contract. However, the attorney may, in the discretion of the court, intervene in the
case to protect his rights. For the payment of his compensation the attorney shall have a lien upon
all judgments for the payment of money, and executions issued in pursuance of such judgment,
rendered in the case wherein his services had been retained by the client.

Section 27. Attorneys removed or suspended by Supreme Court on what grounds. — A member of
the bar may be removed or suspended from his office as attorney by the Supreme Court for any
deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason
of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is
required to take before the admission to practice, or for a wilfull disobedience of any lawful order of a
superior court, or for corruptly or willful 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.

Section 28. Suspension of attorney by the Court of Appeals or a Court of First Instance. — The
Court of Appeals or a Court of First Instance may suspend an attorney from practice for any of the
causes named in the last preceding section, and after such suspension such attorney shall not
practice his profession until further action of the Supreme Court in the premises.

Section 29. Upon suspension by the Court of Appeals or Court of First Instance, further proceedings
in Supreme Court. — Upon such suspension, the Court of Appeals or the Court of First Instance
shall forthwith transmit to the Supreme Court a certified copy of the order of suspension and a full
statement of the facts upon which the same was based. Upon the receipt of such certified copy and
statement, the Supreme Court shall make a full investigation of the facts involved and make such
order revoking or extending the suspension, or removing the attorney from his office as such, as the
facts warrant.

Section 30. Attorney to be heard before removal or suspension. — No attorney shall be removed or
suspended from the practice of his profession, until he has had full opportunity upon reasonable
notice to answer the charges against him, to produce witnesses in his own behalf, and to be heard
by himself or counsel. But if upon reasonable notice he fails to appear and answer the accusation,
the court may proceed to determine the matter ex parte.

Section 31. Attorneys for destitute litigants. — A court may assign an attorney to render professional
aid free of charge to any party in a case, if upon investigation it appears that the party is destitute
and unable to employ an attorney, and that the services of counsel are necessary to secure the ends
of justice and to protect the rights of the party. It shall be the duty of the attorney so assigned to
render the required service, unless he is excused therefrom by the court for sufficient cause shown.

Section 32. Compensation for attorneys de oficio. — Subject to availability of funds as may be
provided by the law the court may, in its discretion, order an attorney employed as counsel de
oficio to be compensates in such sum as the court may fix in accordance with section 24 of this rule.
Whenever such compensation is allowed, it shall be not less than thirty pesos (P30) in any case, nor
more than the following amounts: (1) Fifty pesos (P50) in light felonies; (2) One hundred pesos
(P100) in less grave felonies; (3) Two hundred pesos (P200) in grave felonies other than capital
offenses; (4) Five Hundred pesos (P500) in capital offenses.

Section 33. Standing in court of person authorized to appear for Government. — Any official or
other person appointed or designated in accordance with law to appear for the Government of the
Philippines shall have all the rights of a duly authorized member of the bar to appear in any case in
which said government has an interest direct or indirect.

Section 34. By whom litigation conducted. — In the court of a justice of the peace a party may
conduct his litigation in person, with the aid of an agent or friend appointed by him for the purpose,
or with the aid 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.

Section 35. Certain attorneys not to practice. — No judge or other official or employee of the
superior courts or of the Office of the Solicitor General, shall engage in private practice as a member
of the bar or give professional advice to clients.

Section 36. Amicus Curiae. — Experienced and impartial attorneys may be invited by the Court to
appear as amici curiae to help in the disposition of issues submitted to it.

Section 37. Attorneys' liens. — An attorney shall have a lien upon the funds, documents and papers
of his client which have lawfully come into his possession and may retain the same until his lawful
fees and disbursements have been paid, and may apply such funds to the satisfaction thereof. He
shall also have a lien to the same extent upon all judgments for the payment of money, and
executions issued in pursuance of such judgments, which he has secured in a litigation of his client,
from and after the time when he shall have the caused a statement of his claim of such lien to be
entered upon the records of the court rendering such judgment, or issuing such execution, and shall
have the caused written notice thereof to be delivered to his client and to the adverse paty; and he
shall have the same right and power over such judgments and executions as his client would have to
enforce his lien and secure the payment of his just fees and disbursements.