Legal Ethics
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), petitioner,
vs. SANDIGANBAYAN (Fifth Division)
This case is prima impressiones and it is weighted with significance for it concerns
on one hand, the efforts of the Bar to upgrade the ethics of lawyers in government service
and on the other, its effect on the right of government to recruit competent counsel to
defend its interests.
In 1976, General Bank and Trust Company (GENBANK) encountered financial
difficulties. GENBANK had extended considerable financial support to Filcapital
Development Corporation causing it to incur daily overdrawings on its current account with
the Central Bank.[1] It was later found by the Central Bank that GENBANK had approved
various loans to directors, officers, stockholders and related interests totaling P172.3
million, of which 59% was classified as doubtful and P0.505 million as uncollectible.[2] As a
bailout, the Central Bank extended emergency loans to GENBANK which reached a total
of P310 million.[3] Despite the mega loans, GENBANK failed to recover from its financial
woes. On March 25, 1977, the Central Bank issued a resolution declaring
GENBANK insolvent and unable to resume business with safety to its depositors, creditors
and the general public, and ordering its liquidation.[4] A public bidding of GENBANKs
assets was held from March 26 to 28, 1977, wherein the Lucio Tan group submitted the
winning bid.[5] Subsequently, former Solicitor General Estelito P. Mendoza filed a
petition with the then Court of First Instance praying for the assistance and supervision of
the court in GENBANKs liquidation as mandated by Section 29 of Republic Act No. 265.
In February 1986, the EDSA I revolution toppled the Marcos government. One of the
first acts of President Corazon C. Aquino was to establish the Presidential Commission on
Good Government (PCGG) to recover the alleged ill-gotten wealth of former President
Ferdinand Marcos, his family and his cronies. Pursuant to this mandate, the PCGG, on July
17, 1987, filed with the Sandiganbayan a complaint for reversion, reconveyance,
restitution, accounting and damages against respondents Lucio Tan, Carmen Khao Tan,
Florencio T. Santos, Natividad P. Santos, Domingo Chua, Tan Hui Nee, Mariano Tan Eng
Lian, Estate of Benito Tan Kee Hiong, Florencio N. Santos, Jr., Harry C. Tan, Tan Eng Chan,
Chung Poe Kee, Mariano Khoo, Manuel Khoo, Miguel Khoo, Jaime Khoo, Elizabeth Khoo,
Celso Ranola, William T. Wong, Ernesto B. Lim, Benjamin T. Albacita, Willy Co, Allied
Banking Corporation (Allied Bank), Allied Leasing and Finance Corporation, Asia Brewery,
Inc., Basic Holdings Corp., Foremost Farms, Inc., Fortune Tobacco Corporation, Grandspan
Development Corp., Himmel Industries, Iris Holdings and Development Corp., Jewel
Holdings, Inc., Manufacturing Services and Trade Corp., Maranaw Hotels and Resort Corp.,
Northern Tobacco Redrying Plant, Progressive Farms, Inc., Shareholdings, Inc., Sipalay
Trading Corp., Virgo Holdings & Development Corp., (collectively referred to herein as
respondents Tan, et al.), then President Ferdinand E. Marcos, Imelda R. Marcos, Panfilo O.
Domingo, Cesar Zalamea, Don Ferry and Gregorio Licaros. The case was docketed as Civil
Case No. 0005 of the Second Division of the Sandiganbayan.[6] In connection therewith, the
PCGG issued several writs of sequestration on properties allegedly acquired by the above-
named persons by taking advantage of their close relationship and influence with former
President Marcos.
Respondents Tan, et al. repaired to this Court and filed petitions for certiorari,
prohibition and injunction to nullify, among others, the writs of sequestration issued by
the PCGG.[7] After the filing of the parties comments, this Court referred the cases to
the Sandiganbayan for proper disposition. These cases were docketed as Civil Case Nos.
0096-0099. In all these cases, respondents Tan, et al. were represented by their counsel,
former Solicitor General Estelito P. Mendoza, who has then resumed his private practice
of law.
On February 5, 1991, the PCGG filed motions to disqualify respondent Mendoza as
counsel for respondents Tan, et al. with the Second Division of the Sandiganbayan in Civil
Case Nos. 0005[8] and 0096-0099.[9] The motions alleged that respondent Mendoza, as
then Solicitor General[10] and counsel to Central Bank, actively intervened in the liquidation
of GENBANK, which was subsequently acquired by respondents Tan, et al. and became
Allied Banking Corporation. Respondent Mendoza allegedly intervened in the acquisition
of GENBANK by respondents Tan, et al. when, in his capacity as then Solicitor General,
he advised the Central Banks officials on the procedure to bring about GENBANKs
liquidation and appeared as counsel for the Central Bank in connection with its petition for
assistance in the liquidation of GENBANK which he filed with the Court of First Instance
(now Regional Trial Court) of Manila and was docketed as Special Proceeding No. 107812.
The motions to disqualify invoked Rule 6.03 of the Code of Professional Responsibility. Rule
6.03 prohibits former government lawyers from accepting engagement or employment in
connection with any matter in which he had intervened while in said service.
On April 22, 1991 the Second Division of the Sandiganbayan issued a
resolution denying PCGGs motion to disqualify respondent Mendoza in Civil Case No.
0005.[11] It found that the PCGG failed to prove the existence of an inconsistency between
respondent Mendozas former function as Solicitor General and his present employment
as counsel of the Lucio Tan group. It noted that respondent Mendoza did not take a
position adverse to that taken on behalf of the Central Bank during his term as Solicitor
General.[12] It further ruled that respondent Mendozas appearance as counsel for
respondents Tan, et al. was beyond the one-year prohibited period under Section 7(b) of
Republic Act No. 6713 since he ceased to be Solicitor General in the year 1986. The said
section prohibits a former public official or employee from practicing his profession in
connection with any matter before the office he used to be with within one year from his
resignation, retirement or separation from public office.[13] The PCGG did not seek any
reconsideration of the ruling.[14]
It appears that Civil Case Nos. 0096-0099 were transferred from
the Sandiganbayans Second Division to the Fifth Division.[15] In its resolution dated July 11,
2001, the Fifth Division of the Sandiganbayan denied the other PCGGs motion to disqualify
respondent Mendoza.[16] It adopted the resolution of its Second Division dated April 22,
1991, and observed that the arguments were the same in substance as the motion to
disqualify filed in Civil Case No. 0005. The PCGG sought reconsideration of the ruling but
its motion was denied in its resolution dated December 5, 2001.[17]
Hence, the recourse to this Court by the PCGG assailing the resolutions dated July
11, 2001 and December 5, 2001 of the Fifth Division of the Sandiganbayan via a petition
for certiorari and prohibition under Rule 65 of the 1997 Rules of Civil Procedure.[18] The
PCGG alleged that the Fifth Division acted with grave abuse of discretion amounting to lack
1
Legal Ethics
or excess of jurisdiction in issuing the assailed resolutions contending that: 1) Rule 6.03 of
the Code of Professional Responsibility prohibits a former government lawyer from
accepting employment in connection with any matter in which he intervened; 2) the
prohibition in the Rule is not time-bound; 3) that Central Bank could not waive the
objection to respondent Mendozas appearance on behalf of the PCGG; and 4) the
resolution in Civil Case No. 0005 was interlocutory, thus res judicata does not apply.[19]
The petition at bar raises procedural and substantive issues of law. In view, however,
of the import and impact of Rule 6.03 of the Code of Professional Responsibility to the legal
profession and the government, we shall cut our way and forthwith resolve the substantive
issue.
I the attorney-client privilege and its underlying theory of confidentiality. Thus, all of the
Substantive Issue
The key issue is whether Rule 6.03 of the Code of Professional Responsibility applies
to respondent Mendoza. Again, the prohibition states: A lawyer shall not, after leaving
government service, accept engagement or employment in connection with any matter in
which he had intervenedwhile in the said service.
I.A. The history of Rule 6.03
A proper resolution of this case necessitates that we trace the historical lineage of
Rule 6.03 of the Code of Professional Responsibility.
In the seventeenth and eighteenth centuries, ethical standards for lawyers were
pervasive in England and other parts of Europe. The early statements of standards did not
resemble modern codes of conduct. They were not detailed or collected in one source but
surprisingly were comprehensive for their time. The principal thrust of the standards was
directed towards the litigation conduct of lawyers. It underscored the central duty of truth
and fairness in litigation as superior to any obligation to the client. The formulations of the
litigation duties were at times intricate, including specific pleading standards, an obligation
to inform the court of falsehoods and a duty to explore settlement alternatives. Most of
the lawyer's other basic duties -- competency, diligence, loyalty, confidentiality, reasonable
fees and service to the poor -- originated in the litigation context, but ultimately had
broader application to all aspects of a lawyer's practice.
The forms of lawyer regulation in colonial and early post-revolutionary America did
not differ markedly from those in England. The colonies and early states used oaths,
statutes, judicial oversight, and procedural rules to govern attorney behavior. The
difference from England was in the pervasiveness and continuity of such regulation. The
standards set in England varied over time, but the variation in early America was far
greater. The American regulation fluctuated within a single colony and differed from
colony to colony. Many regulations had the effect of setting some standards of conduct,
but the regulation was sporadic, leaving gaps in the substantive standards. Only three of
the traditional core duties can be fairly characterized as pervasive in the formal, positive
law of the colonial and post-revolutionary period: the duties of litigation fairness,
competency and reasonable fees.[20]
The nineteenth century has been termed the dark ages of legal ethics in the United
States. By mid-century, American legal reformers were filling the void in two ways. First,
David Dudley Field, the drafter of the highly influential New York Field Code, introduced a
new set of uniform standards of conduct for lawyers. This concise statement of eight
statutory duties became law in several states in the second half of the nineteenth century.
At the same time, legal educators, such as David Hoffman and George Sharswood, and
many other lawyers were working to flesh out the broad outline of a lawyer's duties. These
reformers wrote about legal ethics in unprecedented detail and thus brought a new level
of understanding to a lawyer's duties. A number of mid-nineteenth century laws and
statutes, other than the Field Code, governed lawyer behavior. A few forms of colonial
regulations e.g., the do no falsehood oath and the deceit prohibitions -- persisted in some
states. Procedural law continued to directly, or indirectly, limit an attorney's litigation
behavior. The developing law of agency recognized basic duties of competence, loyalty and
safeguarding of client property. Evidence law started to recognize with less equivocation
core duties, with the likely exception of service to the poor, had some basis in formal law.
Yet, as in the colonial and early post-revolutionary periods, these standards were isolated
and did not provide a comprehensive statement of a lawyer's duties. The reformers, by
contrast, were more comprehensive in their discussion of a lawyer's duties, and they
actually ushered a new era in American legal ethics.[21]
Toward the end of the nineteenth century, a new form of ethical standards began to
guide lawyers in their practice the bar association code of legal ethics. The bar codes were
detailed ethical standards formulated by lawyers for lawyers. They combined the two
primary sources of ethical guidance from the nineteenth century. Like the academic
discourses, the bar association codes gave detail to the statutory statements of duty and
the oaths of office. Unlike the academic lectures, however, the bar association codes
retained some of the official imprimatur of the statutes and oaths. Over time, the bar
association codes became extremely popular that states adopted them as binding rules of
law. Critical to the development of the new codes was the re-emergence of bar
associations themselves. Local bar associations formed sporadically during the colonial
period, but they disbanded by the early nineteenth century. In the late nineteenth century,
bar associations began to form again, picking up where their colonial predecessors had left
off. Many of the new bar associations, most notably the Alabama State Bar Association and
the American Bar Association, assumed on the task of drafting substantive standards of
conduct for their members.[22]
In 1887, Alabama became the first state with a comprehensive bar association code
of ethics. The 1887 Alabama Code of Ethics was the model for several states codes, and it
was the foundation for the American Bar Association's (ABA) 1908 Canons of Ethics.[23]
In 1917, the Philippine Bar found that the oath and duties of a lawyer were
insufficient to attain the full measure of public respect to which the legal profession was
entitled. In that year, the Philippine Bar Association adopted as its own, Canons 1 to 32 of
the ABA Canons of Professional Ethics.[24]
As early as 1924, some ABA members have questioned the form and function of the
canons. Among their concerns was the revolving door or the process by which lawyers and
others temporarily enter government service from private life and then leave it for large
fees in private practice, where they can exploit information, contacts, and influence
garnered in government service.[25] These concerns were classified as adverse-interest
conflicts and congruent-interest conflicts. Adverse-interest conflicts exist where the matter
in which the former government lawyer represents a client in private practice is
2
Legal Ethics
substantially related to a matter that the lawyer dealt with while employed by the
government and the interests of the current and former are adverse.[26] On the other
hand, congruent-interest representation conflicts are unique to government lawyers and
apply primarily to former government lawyers.[27] For several years, the ABA attempted to
correct and update the canons through new canons, individual amendments and
interpretative opinions. In 1928, the ABA amended one canon and added thirteen new
canons.[28] To deal with problems peculiar to former government lawyers, Canon 36 was
minted which disqualified them both for adverse-interest conflicts and congruent-interest
representation conflicts.[29] The rationale for disqualification is rooted in a concern that the
government lawyers largely discretionary actions would be influenced by the temptation
to take action on behalf of the government client that later could be to the advantage of
parties who might later become private practice clients.[30] Canon 36 provides, viz.:
36. Retirement from judicial position or public employment
A lawyer should not accept employment as an advocate in any matter upon the merits of
which he has previously acted in a judicial capacity.
A lawyer, having once held public office or having been in the public employ should not, after
his retirement, accept employment in connection with any matter he has investigated or
passed upon while in such office or employ.
Over the next thirty years, the ABA continued to amend many of the canons and
added Canons 46 and 47 in 1933 and 1937, respectively.[31]
In 1946, the Philippine Bar Association again adopted as its own Canons 33 to 47 of
the ABA Canons of Professional Ethics.[32]
By the middle of the twentieth century, there was growing consensus that the ABA
Canons needed more meaningful revision. In 1964, the ABA President-elect Lewis Powell
asked for the creation of a committee to study the adequacy and effectiveness of the ABA
Canons. The committee recommended that the canons needed substantial revision, in part
because the ABA Canons failed to distinguish between the inspirational and the
proscriptive and were thus unsuccessful in enforcement. The legal profession in the United
States likewise observed that Canon 36 of the ABA Canons of Professional Ethics resulted
in unnecessary disqualification of lawyers for negligible participation in matters during
their employment with the government.
The unfairness of Canon 36 compelled ABA to replace it in the 1969 ABA Model Code
of Professional Responsibility.[33] The basic ethical principles in the Code of Professional
Responsibility were supplemented by Disciplinary Rules that defined minimum rules of
conduct to which the lawyer must adhere.[34] In the case of Canon 9, DR 9-
101(b)[35] became the applicable supplementary norm. The drafting committee
reformulated the canons into the Model Code of Professional Responsibility, and, in August
of 1969, the ABA House of Delegates approved the Model Code.[36]
Despite these amendments, legal practitioners remained unsatisfied with the results
and indefinite standards set forth by DR 9-101(b) and the Model Code of Professional
Responsibility as a whole. Thus, in August 1983, the ABA adopted new Model Rules of
Professional Responsibility. The Model Rules used the restatement format, where the
conduct standards were set-out in rules, with comments following each rule. The new
format was intended to give better guidance and clarity for enforcement because the only
enforceable standards were the black letter Rules. The Model Rules eliminated the broad
canons altogether and reduced the emphasis on narrative discussion, by placing comments
after the rules and limiting comment discussion to the content of the black letter rules.
The Model Rules made a number of substantive improvements particularly with regard to
conflicts of interests.[37] In particular, the ABA did away with Canon 9, citing the hopeless
dependence of the concept of impropriety on the subjective views of anxious clients as well
as the norms indefinite nature.[38]
In cadence with these changes, the Integrated Bar of the Philippines (IBP) adopted a
proposed Code of Professional Responsibility in 1980 which it submitted to this Court for
approval. The Code was drafted to reflect the local customs, traditions, and practices of
the bar and to conform with new realities. On June 21, 1988, this Court promulgated the
Code of Professional Responsibility.[39] Rule 6.03 of the Code of Professional Responsibility
deals particularly with former government lawyers, and provides, viz.:
Rule 6.03 A lawyer shall not, after leaving government service, accept engagement or
employment in connection with any matter in which he had intervened while in said
service.
Rule 6.03 of the Code of Professional Responsibility retained the general structure
of paragraph 2, Canon 36 of the Canons of Professional Ethics but replaced the expansive
phrase investigated and passed upon with the word intervened. It is, therefore, properly
applicable to both adverse-interest conflicts and congruent-interest conflicts.
The case at bar does not involve the adverse interest aspect of Rule 6.03. Respondent
Mendoza, it is conceded, has no adverse interest problem when he acted as Solicitor
General in Sp. Proc. No. 107812 and later as counsel of respondents Tan, et al. in Civil Case
No. 0005 and Civil Case Nos. 0096-0099 before the Sandiganbayan. Nonetheless, there
remains the issue of whether there exists a congruent-interest conflict sufficient to
disqualify respondent Mendoza from representing respondents Tan, et al.
I.B. The congruent interest aspect of Rule 6.03
The key to unlock Rule 6.03 lies in comprehending first, the meaning
of matter referred to in the rule and, second, the metes and bounds of
the intervention made by the former government lawyer on the matter. The American Bar
Association in its Formal Opinion 342, defined matter as any discrete, isolatable act as well
as identifiable transaction or conduct involving a particular situation and specific party, and
not merely an act of drafting, enforcing or interpreting government or agency procedures,
regulations or laws, or briefing abstract principles of law.
Firstly, it is critical that we pinpoint the matter which was the subject of intervention
by respondent Mendoza while he was the Solicitor General. The PCGG relates the following
acts of respondent Mendoza as constituting the matter where he intervened as a Solicitor
General, viz:[40]
The PCGGs Case for Atty. Mendozas Disqualification
The PCGG imputes grave abuse of discretion on the part of the Sandiganbayan (Fifth
Division) in issuing the assailed Resolutions dated July 11, 2001 and December 5, 2001
denying the motion to disqualify Atty. Mendoza as counsel for respondents Tan, et al. The
PCGG insists that Atty. Mendoza, as then Solicitor General, actively intervened in the
closure of GENBANK by advising the Central Bank on how to proceed with the said banks
liquidation and even filing the petition for its liquidation with the CFI of Manila.
3
Legal Ethics
As proof thereof, the PCGG cites the Memorandum dated March 29, 1977 prepared by
certain key officials of the Central Bank, namely, then Senior Deputy Governor Amado R.
Brinas, then Deputy Governor Jaime C. Laya, then Deputy Governor and General Counsel
Gabriel C. Singson, then Special Assistant to the Governor Carlota P. Valenzuela, then
Asistant to the Governor Arnulfo B. Aurellano and then Director of Department of
Commercial and Savings Bank Antonio T. Castro, Jr., where they averred that on March 28,
1977, they had a conference with the Solicitor General (Atty. Mendoza), who advised them
on how to proceed with the liquidation of GENBANK. The pertinent portion of the said
memorandum states:
Immediately after said meeting, we had a conference with the Solicitor General and he
advised that the following procedure should be taken:
1. Management should submit a memorandum to the Monetary Board
reporting that studies and evaluation had been made since the last
examination of the bank as of August 31, 1976 and it is believed that the
bank can not be reorganized or placed in a condition so that it may be
permitted to resume business with safety to its depositors and creditors
and the general public.
2. If the said report is confirmed by the Monetary Board, it shall order the
liquidation of the bank and indicate the manner of its liquidation and
approve a liquidation plan.
3. The Central Bank shall inform the principal stockholders of Genbank of the
foregoing decision to liquidate the bank and the liquidation plan
approved by the Monetary Board.
4. The Solicitor General shall then file a petition in the Court of First Instance
reciting the proceedings which had been taken and praying the
assistance of the Court in the liquidation of Genbank.
The PCGG further cites the Minutes No. 13 dated March 29, 1977 of the Monetary Board
where it was shown that Atty. Mendoza was furnished copies of pertinent documents
relating to GENBANK in order to aid him in filing with the court the petition for assistance
in the banks liquidation. The pertinent portion of the said minutes reads:
The Board decided as follows:
...
E. To authorize Management to furnish the Solicitor General with a
copy of the subject memorandum of the Director, Department
of Commercial and Savings Bank dated March 29, 1977,
together with copies of:
1. Memorandum of the Deputy Governor, Supervision and
Examination Sector, to the Monetary Board, dated March
25, 1977, containing a report on the current situation of
Genbank;
2. Aide Memoire on the Antecedent Facts Re: General Bank and
Trust Co., dated March 23, 1977;
3. Memorandum of the Director, Department of Commercial and
Savings Bank, to the Monetary Board, dated March 24,
1977, submitting, pursuant to Section 29 of R.A. No. 265,
as amended by P.D. No. 1007, a repot on the state of
insolvency of Genbank, together with its attachments; and
4. Such other documents as may be necessary or needed by the
Solicitor General for his use in then CFI-praying the
assistance of the Court in the liquidation of Genbank.
Beyond doubt, therefore, the matter or the act of respondent Mendoza as Solicitor
General involved in the case at bar is advising the Central Bank, on how to proceed with
the said banks liquidation and even filing the petition for its liquidation with the CFI of
Manila. In fine, the Court should resolve whether his act of advising the Central Bank on
the legal procedure to liquidate GENBANK is included within the concept of matter under
Rule 6.03. The procedure of liquidation is given in black and white in Republic Act No. 265,
section 29, viz:
The provision reads in part:
SEC. 29. Proceedings upon insolvency. Whenever, upon examination
by the head of the appropriate supervising or examining department or his
examiners or agents into the condition of any bank or non-bank financial
intermediary performing quasi-banking functions, it shall be disclosed that the
condition of the same is one of insolvency, or that its continuance in business
would involve probable loss to its depositors or creditors, it shall be the duty
of the department head concerned forthwith, in writing, to inform the
Monetary Board of the facts, and the Board may, upon finding the statements
of the department head to be true, forbid the institution to do business in the
Philippines and shall designate an official of the Central Bank or a person of
recognized competence in banking or finance, as receiver to immediately take
charge of its assets and liabilities, as expeditiously as possible collect and
gather all the assets and administer the same for the benefit of its creditors,
exercising all the powers necessary for these purposes including, but not
limited to, bringing suits and foreclosing mortgages in the name of the bank
or non-bank financial intermediary performing quasi-banking functions.
...
If the Monetary Board shall determine and confirm within the said
period that the bank or non-bank financial intermediary performing quasi-
banking functions is insolvent or cannot resume business with safety to its
depositors, creditors and the general public, it shall, if the public interest
requires, order its liquidation, indicate the manner of its liquidation and
approve a liquidation plan. The Central Bank shall, by the Solicitor General, file
a petition in the Court of First Instance reciting the proceedings which have
been taken and praying the assistance of the court in the liquidation of such
institution. The court shall have jurisdiction in the same proceedings to
adjudicate disputed claims against the bank or non-bank financial
intermediary performing quasi-banking functions and enforce individual
liabilities of the stockholders and do all that is necessary to preserve the assets
of such institution and to implement the liquidation plan approved by the
Monetary Board. The Monetary Board shall designate an official of the Central
Bank, or a person of recognized competence in banking or finance, as
4
Legal Ethics
liquidator who shall take over the functions of the receiver previously
appointed by the Monetary Board under this Section. The liquidator shall, with
all convenient speed, convert the assets of the banking institution or non-bank
financial intermediary performing quasi-banking functions to money or sell,
assign or otherwise dispose of the same to creditors and other parties for the
purpose of paying the debts of such institution and he may, in the name of
the bank or non-bank financial intermediary performing quasi-banking
functions, institute such actions as may be necessary in the appropriate court
to collect and recover accounts and assets of such institution.
The provisions of any law to the contrary notwithstanding, the
actions of the Monetary Board under this Section and the second paragraph
of Section 34 of this Act shall be final and executory, and can be set aside by
the court only if there is convincing proof that the action is plainly arbitrary
and made in bad faith. No restraining order or injunction shall be issued by
the court enjoining the Central Bank from implementing its actions under this
Section and the second paragraph of Section 34 of this Act, unless there is
convincing proof that the action of the Monetary Board is plainly arbitrary and
made in bad faith and the petitioner or plaintiff files with the clerk or judge of
the court in which the action is pending a bond executed in favor of the
Central Bank, in an amount to be fixed by the court. The restraining order or
injunction shall be refused or, if granted, shall be dissolved upon filing by the
Central Bank of a bond, which shall be in the form of cash or Central Bank
cashier(s) check, in an amount twice the amount of the bond of the petitioner
or plaintiff conditioned that it will pay the damages which the petitioner or
plaintiff may suffer by the refusal or the dissolution of the injunction. The
provisions of Rule 58 of the New Rules of Court insofar as they are applicable
and not inconsistent with the provisions of this Section shall govern the
issuance and dissolution of the restraining order or injunction contemplated
in this Section.
Insolvency, under this Act, shall be understood to mean the inability
of a bank or non-bank financial intermediary performing quasi-banking
functions to pay its liabilities as they fall due in the usual and ordinary course
of business. Provided, however, That this shall not include the inability to pay
of an otherwise non-insolvent bank or non-bank financial intermediary
performing quasi-banking functions caused by extraordinary demands
induced by financial panic commonly evidenced by a run on the bank or non-
bank financial intermediary performing quasi-banking functions in the
banking or financial community.
The appointment of a conservator under Section 28-A of this Act or
the appointment of a receiver under this Section shall be vested exclusively
with the Monetary Board, the provision of any law, general or special, to the
contrary notwithstanding. (As amended by PD Nos. 72, 1007, 1771 & 1827,
Jan. 16, 1981)
We hold that this advice given by respondent Mendoza on the procedure to
liquidate GENBANK is not the matter contemplated by Rule 6.03 of the Code of
Professional Responsibility. ABA Formal Opinion No. 342 is clear as daylight in stressing that
the drafting, enforcing or interpreting government or agency procedures, regulations or
laws, or briefing abstract principles of law are acts which do not fall within the scope of the
term matter and cannot disqualify.
Secondly, it can even be conceded for the sake of argument that the above act of
respondent Mendoza falls within the definition of matter per ABA Formal Opinion No. 342.
Be that as it may, the said act of respondent Mendoza which is the matter involved in Sp.
Proc. No. 107812 is entirely different from the matter involved in Civil Case No. 0096.
Again, the plain facts speak for themselves. It is given that respondent Mendoza had
nothing to do with the decision of the Central Bank to liquidate GENBANK. It is also given
that he did not participate in the sale of GENBANK to Allied Bank. The matter where he got
himself involved was in informing Central Bank on the procedure provided by law to
liquidate GENBANK thru the courts and in filing the necessary petition in Sp. Proc. No.
107812 in the then Court of First Instance. The subject matter of Sp. Proc. No. 107812,
therefore, is not the same nor is related to but is different from the subject matter in Civil
Case No. 0096. Civil Case No. 0096 involves the sequestration of the stocks owned by
respondents Tan, et al., in Allied Bank on the alleged ground that they are ill-gotten. The
case does not involve the liquidation of GENBANK. Nor does it involve the sale of GENBANK
to Allied Bank. Whether the shares of stock of the reorganized Allied Bank are ill-gotten
is far removed from the issue of the dissolution and liquidation of GENBANK. GENBANK
was liquidated by the Central Bank due, among others, to the alleged banking malpractices
of its owners and officers. In other words, the legality of the liquidation of GENBANK is not
an issue in the sequestration cases. Indeed, the jurisdiction of the PCGG does not include
the dissolution and liquidation of banks. It goes without saying that Code 6.03 of the Code
of Professional Responsibility cannot apply to respondent Mendoza because his alleged
intervention while a Solicitor General in Sp. Proc. No. 107812 is an intervention on a matter
different from the matter involved in Civil Case No. 0096.
Thirdly, we now slide to the metes and bounds of the intervention contemplated by
Rule 6.03. Intervene means, viz.:
1: to enter or appear as an irrelevant or extraneous feature or circumstance . . . 2: to occur,
fall, or come in between points of time or events . . . 3: to come in or between by way of
hindrance or modification: INTERPOSE . . . 4: to occur or lie between two things (Paris,
where the same city lay on both sides of an intervening river . . .)[41]
On the other hand, intervention is defined as:
1: the act or fact of intervening: INTERPOSITION; 2: interference
that may affect the interests of others.[42]
There are, therefore, two possible interpretations of the word intervene. Under
the first interpretation, intervene includes participation in a proceeding even if the
intervention is irrelevant or has no effect or little influence.[43] Under the second
interpretation, intervene only includes an act of a person who has the power to influence
the subject proceedings.[44] We hold that this second meaning is more appropriate to give
to the word intervention under Rule 6.03 of the Code of Professional Responsibility in light
of its history. The evils sought to be remedied by the Rule do not exist where the
government lawyer does an act which can be considered as innocuous such as x x x
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Legal Ethics
drafting, enforcing or interpreting government or agency procedures, regulations or laws,
or briefing abstract principles of law.
In fine, the intervention cannot be insubstantial and insignificant. Originally, Canon
36 provided that a former government lawyer should not, after his retirement, accept
employment in connection with any matter which he has investigated or passed upon while
in such office or employ. As aforediscussed, the broad sweep of the phrase which he has
investigated or passed upon resulted in unjust disqualification of former government
lawyers. The 1969 Code restricted its latitude, hence, in DR 9-101(b), the prohibition
extended only to a matter in which the lawyer, while in the government service,
had substantial responsibility. The 1983 Model Rules further constricted the reach of the
rule. MR 1.11(a) provides that a lawyer shall not represent a private client in connection
with a matter in which the lawyer participated personally and substantially as a public
officer or employee.
It is, however, alleged that the intervention of respondent Mendoza in Sp. Proc. No.
107812 is significant and substantial. We disagree. For one, the petition in the special
proceedings is an initiatory pleading, hence, it has to be signed by respondent Mendoza as
the then sitting Solicitor General. For another, the record is arid as to
the actual participation of respondent Mendoza in the subsequent proceedings. Indeed,
the case was in slumberville for a long number of years. None of the parties pushed for its
early termination. Moreover, we note that the petition filed merely seeks the assistance of
the court in the liquidation of GENBANK. The principal role of the court in this type of
proceedings is to assist the Central Bank in determining claims of creditors against the
GENBANK. The role of the court is not strictly as a court of justice but as an agent to assist
the Central Bank in determining the claims of creditors. In such a proceeding, the
participation of the Office of the Solicitor General is not that of the usual court litigator
protecting the interest of government.
II
Balancing Policy Considerations
To be sure, Rule 6.03 of our Code of Professional Responsibility represents a
commendable effort on the part of the IBP to upgrade the ethics of lawyers in the
government service. As aforestressed, it is a take-off from similar efforts especially by the
ABA which have not been without difficulties. To date, the legal profession in the United
States is still fine tuning its DR 9-101(b) rule.
In fathoming the depth and breadth of Rule 6.03 of our Code of Professional
Responsibility, the Court took account of various policy considerations to assure that its
interpretation and application to the case at bar will achieve its end without necessarily
prejudicing other values of equal importance. Thus, the rule was not interpreted to cause
a chilling effect on government recruitment of able legal talent. At present, it is already
difficult for government to match compensation offered by the private sector and it is
unlikely that government will be able to reverse that situation. The observation is not
inaccurate that the only card that the government may play to recruit lawyers is have them
defer present income in return for the experience and contacts that can later be exchanged
for higher income in private practice.[45] Rightly, Judge Kaufman warned that the sacrifice
of entering government service would be too great for most men to endure should ethical
rules prevent them from engaging in the practice of a technical specialty which they
devoted years in acquiring and cause the firm with which they become associated to be
disqualified.[46] Indeed, to make government service more difficult to exit can only make it
less appealing to enter.[47]
In interpreting Rule 6.03, the Court also cast a harsh eye on its use as a litigation
tactic to harass opposing counsel as well as deprive his client of competent legal
representation. The danger that the rule will be misused to bludgeon an opposing counsel
is not a mere guesswork. The Court of Appeals for the District of Columbia has noted the
tactical use of motions to disqualify counsel in order to delay proceedings, deprive the
opposing party of counsel of its choice, and harass and embarrass the opponent, and
observed that the tactic was so prevalent in large civil cases in recent years as to prompt
frequent judicial and academic commentary.[48] Even the United States Supreme Court
found no quarrel with the Court of Appeals description of disqualification motions as a
dangerous game.[49] In the case at bar, the new attempt to disqualify respondent Mendoza
is difficult to divine. The disqualification of respondent Mendoza has long been a dead
issue. It was resuscitated after the lapse of many years and only after PCGG has lost many
legal incidents in the hands of respondent Mendoza. For a fact, the recycled motion for
disqualification in the case at bar was filed more than four years after the filing of the
petitions for certiorari, prohibition and injunction with the Supreme Court which were
subsequently remanded to the Sandiganbayan and docketed as Civil Case Nos. 0096-
0099.[50] At the very least, the circumstances under which the motion to disqualify in the
case at bar were refiled put petitioners motive as highly suspect.
Similarly, the Court in interpreting Rule 6.03 was not unconcerned with the prejudice
to the client which will be caused by its misapplication. It cannot be doubted that granting
a disqualification motion causes the client to lose not only the law firm of choice, but
probably an individual lawyer in whom the client has confidence.[51] The client with a
disqualified lawyer must start again often without the benefit of the work done by the
latter.[52] The effects of this prejudice to the right to choose an effective counsel cannot be
overstated for it can result in denial of due process.
The Court has to consider also the possible adverse effect of a truncated reading of
the rule on the official independence of lawyers in the government service. According to
Prof. Morgan: An individual who has the security of knowing he or she can find private
employment upon leaving the government is free to work vigorously, challenge official
positions when he or she believes them to be in error, and resist illegal demands by
superiors. An employee who lacks this assurance of private employment does not enjoy
such freedom.[53] He adds: Any system that affects the right to take a new job affects the
ability to quit the old job and any limit on the ability to quit inhibits official
independence.[54] The case at bar involves the position of Solicitor General, the office once
occupied by respondent Mendoza. It cannot be overly stressed that the position of Solicitor
General should be endowed with a great degree of independence. It is this independence
that allows the Solicitor General to recommend acquittal of the innocent; it is this
independence that gives him the right to refuse to defend officials who violate the trust of
their office. Any undue dimunition of the independence of the Solicitor General will have
a corrosive effect on the rule of law.
No less significant a consideration is the deprivation of the former government lawyer
of the freedom to exercise his profession. Given the current state of our law, the
6
Legal Ethics
disqualification of a former government lawyer may extend to all members of his law
firm.[55] Former government lawyers stand in danger of becoming the lepers of the legal
profession.
It is, however, proffered that the mischief sought to be remedied by Rule 6.03 of the
Code of Professional Responsibility is the possible appearance of impropriety and loss of
public confidence in government. But as well observed, the accuracy of gauging public
perceptions is a highly speculative exercise at best[56] which can lead to untoward
results.[57] No less than Judge Kaufman doubts that the lessening of restrictions as to
former government attorneys will have any detrimental effect on that free flow of
information between the government-client and its attorneys which the canons seek to
protect.[58] Notably, the appearance of impropriety theory has been rejected in the 1983
ABA Model Rules of Professional Conduct[59] and some courts have
abandoned per se disqualification based on Canons 4 and 9 when an actual conflict of
interest exists, and demand an evaluation of the interests of the defendant, government,
the witnesses in the case, and the public.[60]
It is also submitted that the Court should apply Rule 6.03 in all its strictness for it
correctly disfavors lawyers who switch sides. It is claimed that switching sides carries the
danger that former government employee may compromise confidential official
information in the process. But this concern does not cast a shadow in the case at bar. As
afore-discussed, the act of respondent Mendoza in informing the Central Bank on the
procedure how to liquidate GENBANK is a different matter from the subject matter of Civil
Case No. 0005 which is about the sequestration of the shares of respondents Tan, et al., in
Allied Bank. Consequently, the danger that confidential official information might be
divulged is nil, if not inexistent. To be sure, there are no inconsistent sides to be bothered
about in the case at bar. For there is no question that in lawyering for respondents Tan, et
al., respondent Mendoza is not working against the interest of Central Bank. On the
contrary, he is indirectly defending the validity of the action of Central Bank in liquidating
GENBANK and selling it later to Allied Bank. Their interests coincide instead of colliding. It is
for this reason that Central Bank offered no objection to the lawyering of respondent
Mendoza in Civil Case No. 0005 in defense of respondents Tan, et al. There is no switching
of sides for no two sides are involved.
It is also urged that the Court should consider that Rule 6.03 is intended to
avoid conflict of loyalties, i.e., that a government employee might be subject to a conflict
of loyalties while still in government service.[61] The example given by the proponents of
this argument is that a lawyer who plans to work for the company that he or she is currently
charged with prosecuting might be tempted to prosecute less vigorously.[62] In the
cautionary words of the Association of the Bar Committee in 1960: The greatest public risks
arising from post employment conduct may well occur during the period of employment
through the dampening of aggressive administration of government policies.[63] Prof.
Morgan, however, considers this concern as probably excessive.[64] He opines x x x it is hard
to imagine that a private firm would feel secure hiding someone who had just been disloyal
to his or her last client the government. Interviews with lawyers consistently confirm that
law firms want the best government lawyers the ones who were hardest to beat not the
least qualified or least vigorous advocates.[65] But again, this particular concern is a non
factor in the case at bar. There is no charge against respondent Mendoza that he advised
Central Bank on how to liquidate GENBANK with an eye in later defending respondents
Tan, et al. of Allied Bank. Indeed, he continues defending both the interests of Central Bank
and respondents Tan, et al. in the above cases.
Likewise, the Court is nudged to consider the need to curtail what is perceived as
the excessive influence of former officials or their clout.[66] Prof. Morgan again warns
against extending this concern too far. He explains the rationale for his warning, viz: Much
of what appears to be an employees influence may actually be the power or authority of
his or her position, power that evaporates quickly upon departure from government x x
x.[67] More, he contends that the concern can be demeaning to those sitting in government.
To quote him further: x x x The idea that, present officials make significant decisions based
on friendship rather than on the merit says more about the present officials than about
their former co-worker friends. It implies a lack of will or talent, or both, in federal officials
that does not seem justified or intended, and it ignores the possibility that the officials will
tend to disfavor their friends in order to avoid even the appearance of favoritism.[68]
III
The question of fairness
Mr. Justices Panganiban and Carpio are of the view, among others, that the
congruent interest prong of Rule 6.03 of the Code of Professional Responsibility should be
subject to a prescriptive period. Mr. Justice Tinga opines that the rule cannot apply
retroactively to respondent Mendoza. Obviously, and rightly so, they are disquieted by the
fact that (1) when respondent Mendoza was the Solicitor General, Rule 6.03 has not yet
adopted by the IBP and approved by this Court, and (2) the bid to disqualify respondent
Mendoza was made after the lapse of time whose length cannot, by any standard, qualify
as reasonable. At bottom, the point they make relates to the unfairness of the rule if
applied without any prescriptive period and retroactively, at that. Their concern is
legitimate and deserves to be initially addressed by the IBP and our Committee on Revision
of the Rules of Court.
IN VIEW WHEREOF, the petition assailing the resolutions dated July 11, 2001 and
December 5, 2001 of the Fifth Division of the Sandiganbayan in Civil Case Nos. 0096-0099
is denied.
No cost.
SO ORDERED.
7
Legal Ethics
RAUL M. FRANCIA, Complainant,
vs.
ATTY. REYNALDO V. ABDON, Respondent.
In a verified complaint1 dated December 4, 2007 filed before the Integrated Bar of
the Philippines, Committee on Bar Discipline (IBP-CBD), Raul M. Francia (complainant)
prayed for the disbarment and imposition of other disciplinary sanctions on Labor
Arbiter (LA) Reynaldo V. Abdon (respondent) for violation of the lawyer's oath and the
Code of Professional Responsibility.
On February 4, 2008, the respondent filed his Answer2 vehemently denying the
allegations in the complaint.
On August 13, 2008, both parties appeared at the mandatory conference. Upon its
termination, the parties were required to submit their respective position papers
afterwhich the case was submitted for resolution.
In his position paper,3 the complainant alleged that in November 2006, he had a
meeting with the respondent at the Makati Cinema Square to seek his assistance with
respect to a pending case in the Court of Appeals (CA) involving the labor union of
Nueva Ecija III Electric Cooperative (NEECO III). The said case was docketed as CA-G.R.
SP No. 96096 and raffled to the 6th Division then chaired by Justice Rodrigo V. Cosico,
with Justices Edgardo Sundiam (Justice Sundiam) and Celia Librea-Leagogo as
members. The respondent, who is a LA at the National Labor Relations Commission,
San Fernando, Pampanga, told the complainant that he can facilitate, expedite and
ensure the release of a favorable decision, particularly the award of assets and
management of NEECO III to the union. To bolster his representation, he told him that
the same regional office where he was assigned had earlier rendered a decision in
favor of the labor union and against the National Electrification Administration.4 With
the respondent’s assurance, the complainant yielded.
In December 2006, the complainant met the respondent to discuss their plan and
timetable in securing a favorable ruling from the CA. The respondent told him that in
order to facilitate the release of such favorable decision, the union must produce the
amount of P1,000,000.00, a considerable portion of which is intended for Justice
Sundiam, the ponente of the case and the two member justices of the division, while
a fraction thereof is allotted to his costs.5
Shortly thereafter, the complainant met the respondent again and handed him the
amount of P350,000.00,which was raised out of the individual contributions of the
members of the union, as partial payment for the agreed amount and undertook to
pay the balance as soon as the union is finally allowed to manage and operate the
electric cooperative. In turn, the respondent assured him that a favorableruling will
be rendered by the CA in no time.6
A week before Christmas of the same year, the complainant made several follow-ups
with the respondent about the status of the decision. In response to his inquiries, the
respondentwould tell him that: (1) the decision is being routed for signature of the
members of the three-man CA division; (2) the lady justice was the only one left to
sign; and (3) the lady justice went to a Christmas party and was not able to sign the
decision. Ultimately, the promised favorable decision before the end of that year was
not issued by the CA, with no explanation from the respondent.7
On January 4, 2007, the union was advised by their counsel that the CA has already
rendered a decision on their case and the same was adverse to them. This infuriated
the union members who then turned to the complainant and demanded for the
return of the 350,000.00 that they raised as respondent’s facilitation fee. The
respondent promised to return the money but asked for a few weeks to do so. After
two weeks, the respondent turned over the amount of P100,000.00, representing the
unspent portion of the money given to him and promised to pay the balance
of P250,000.00 as soon as possible. The respondent, however, reneged on his
promise and would not even advise the complainant of the reason for his failure to
return the money. Thus, the complainant was constrained to give his car to the union
to settle the remaining balance which the respondent failed to return.8
To support his claims, the complainant submitted the following pieces of evidence:
(1) a transcript of the exchange of text messages between him and the
respondent;9 (2) affidavit of Butch Pena (Pena),10 officer of the Association of Genuine
Labor Organization (AGLO); (3) a transcript of the text message of a certain Paulino
Manongsong, confirming the respondent’s mobile number;11 (4) copy of the CA
decision in CA-G.R. SP No. 96096;12 and (5) affidavit of Shirley Demillo (Demillo).13
For his part, the respondent denied that he made any representation to the
complainant; that he had the capacity to facilitate the release of a favorable decision
in the CA; and that he received money in exchange therefor. He admitted that he had
a chance meeting with the complainant at the Makati Cinema Square in December
2006. Since they have not seen each other for a long time, they had a short
conversation over snacks upon the complainant’s invitation. In the course of their
conversation, the complainant asked if he knew of the case involving the union of the
NEECO III. He told him that he was not familiar with the details but knew that the
same is already pending execution before the office of LA Mariano Bactin. The
complainant told him that the properties of NEECO III were sold at public auction but
the union members were yet to obtain the proceeds because of a temporary
restraining order issued by the CA. He inquired if he knew anyone from the CA who
can help the union members in their case as he was assisting them in following up
their case. The respondent answered in the negative but told him that he can refer
him to his former client, a certain Jaime "Jimmy" Vistan (Vistan), who may be able to
help him. At that very moment, he called Vistan using his mobile phone and relayed
to him the complainant’s predicament. After giving Vistan a brief background of the
case, he handed the mobile phone to the complainant, who expounded on the details.
After their conversation,the complainant told him that he will be meeting Vistan on
the following day and asked him if he could accompany him. He politely declined and
8
Legal Ethics
just gave him Vistan’s mobile number so that they can directlycommunicate with each
other.14
Sometime thereafter, he received a call from Vistan who told him that he was
given P350,000.00 as facilitation fee. After their conversation, he never heard from
Vistan again.15
In January 2007, he received a text from the complainant, asking him to call him
through his landline. Over the phone, the complainant told him about his
arrangement with Vistan insecuring a favorable decision for the union but the latter
failed to do his undertaking. The complainant blamed him for the misfortune and even
suspected that he was in connivance with Vistan, which he denied. The complainant
then asked for his help to recover the money he gave to Vistan.16
When their efforts to locate Vistan failed, the complainant turned to him again and
asked him to return the money because the union threatened him with physical harm.
The respondent, however, maintained his lack of involvement in their transaction.
Still, the complainant insisted and even threatened he would cause him miseryand
pain should he not return the money. Offended by the innuendoof collusion in the
complainant’s language, the respondent yelled at him and told him, "Ano bang
malaking kasalanan ko para takutin mo ako ng ganyan?" before he hang up the phone.
He never heard from the complainant thereafter. Then, on December 18, 2007, he
was surprised toreceive a copy of the complaint for disbarment filed by the
complainant against him.17
In the Report and Recommendation18 of the IBP-CBD dated September 30, 2008, the
Investigating Commissioner recommended for the dismissal of the complaint, holding
that there is no proof that the respondent received money from the
complainant.19 The report reads, as follows:
The case is dismissible.
There is no proof that respondent Reynaldo Abdon received any amount of money
from complainant Raul Francia.
While it is true that respondentReynaldo Abdon admitted that he introduced the
complainant to Jaime Vistan, there is no proof that the respondent received any
money from the complainant Raul Francia or from Jaime Vistan.
The attached Annex "A" of the complaint is of no moment. As pointed out by the
respondent it is easy to manipulate and fabricate text messages. That complainant
could have bought the said SIM card bearing the said telephone number and texted
his other cellphone numbers to make it appear that such text messages came from
the cellphone of the respondent. Those text messages are not reliable as evidence.
xxxx
WHEREFORE, premises considered, it is most respectfully recommended that the
instant complaint be dismissed for lack of merit.20
Upon review of the case, the IBP Board of Governors issued Resolution No. XVIII-2008-
545,21 reversing the recommendation of the Investigating Commissioner, disposing
thus:
RESOLVED TO REVERSE as it is hereby REVERSED, the Report and Recommendation of
the Investigating Commissioner, and APPROVE the SUSPENSIONfrom the practice of
law for one (1) year of Atty. Reynaldo V. Abdon and to Return the Amount of Two
Hundred Fifty Thousand Pesos ([P]250,000.00) within thirty (30) days from receipt of
notice.22
On February 23, 2009, the respondent filed a Motion for Reconsideration23 but the
IBP Board of Governors denied the same in its Resolution No. XX-2013-55,24 which
reads:
RESOLVED to unanimously DENY Respondent’s Motion for Reconsideration there
being no cogent reason to reverse the findings of the Commission and it being a mere
reiteration of the matters which had already been threshed out and taken into
consideration. Thus, Resolution No. XVIII-2008-545 dated November 20, 2008 is
hereby AFFIRMED.25
The case is now before thisCourt for confirmation.
"It is well to remember that in disbarment proceedings, the burden of proof rests
upon the complainant. For the Court to exercise its disciplinary powers, the case
against the respondent must be established by convincing and satisfactory proof."26
In Aba v. De Guzman, Jr.,27 the Court reiterated that a preponderance of evidence is
necessary before a lawyer maybe held administratively liable, to wit:
Considering the serious consequences of the disbarment or suspension of a member
of the Bar, the Court has consistently held that clearly preponderant evidence is
necessary to justify the imposition of administrative penalty on a member of the Bar.
Preponderance of evidence means that the evidence adduced by one side is, as a
whole, superior to or has greater weight than that of the other. It means evidence
which is more convincing to the court as worthy of belief than that which is offered
in opposition thereto. Under Section 1 of Rule 133, in determining whether or not
there is preponderance of evidence, the court may consider the following: (a) all the
facts and circumstances of the case; (b) the witnesses’ manner of testifying, their
intelligence, their means and opportunity of knowing the facts to which they are
testifying, the nature of the facts to which they testify, the probability or improbability
of their testimony; (c) the witnesses’ interest or want of interest, and also their
personal credibility so far as the same may ultimately appear in the trial; and (d) the
number of witnesses, although it does not mean that preponderance is necessarily
with the greater number.28 (Citations omitted)
In the absence of preponderant evidence, the presumption of innocence of the
lawyer subsists and the complaint against him must be dismissed.29
After a careful review of the facts and circumstances of the case, the Court finds that
the evidence submitted by the complainant fell short of the required quantum of
proof. Aside from bare allegations, no evidence was presented to convincingly
establish that the respondent engaged in unlawful and dishonest conduct, particularly
in extortion and influence-peddling.
9
Legal Ethics
Firstly, the transcript of the alleged exchange of text messages between the
complainant and the respondent cannot be admitted in evidence since the same was
not authenticatedin accordance with A.M. No. 01-7-01-SC, pertaining to the Rules on
Electronic Evidence. Without proper authentication, the text messages presented by
the complainant have no evidentiary value.
The Court cannot also give credence to the affidavits of Pena and Demillo which, on
close examination, do not prove anything about the alleged transaction between the
complainant and the respondent. In his affidavit, Pena, an officer of AGLO, the
organization assisting the union members of NEECO III, alleged:
THAT, sometime in the first weekof November 2006, the former workers and
employees of NEECO III informed me of their desire to engage the services of a third
party to help facilitate the expeditious release of a favorable decision from the Court
of Appeals in CA-GR SP No. 96096, and that they already contacted a friend of mine,
Mr. Raul Francia, who knows somebody who can help us work on the CA case;
THAT, in succeeding separate meetings with Mr. Francia, he intimated to me on
various occasions that he had contracted a certain Atty. Reynaldo V. Abdon, a labor
arbiter based in San Fernando, Pampanga to facilitate the expeditious release of a
favorable decision from the Court of Appeals;
THAT, I gathered from Mr. Francia and based on the information given to me by the
former workers and employees of NEECO III, Labor Arbiter Abdon asked for [P]1
[M]illion to cover the amount to be given to the justices of the Court of Appeals
handling the case and facilitation and mobilization fees;
THAT, sometime towards the end of the first week of December, the former workers
and employees of NEECO III met with Mr. Francia at our office. They handed to him
[P]350,000[.00] as downpayment for the []1 [M]illion being demanded by Mr. Abdon,
the balance of which would have been payable on a later agreed period;
THAT, the [P]350,000[.00] was sourced by the former workers and employees of
NEECO III from their personal contributions; and
THAT, soon after the meeting with the former workers and employees of NEECO III,
Mr. Francia left to meet with Labor Arbiter Abdon to deliver the money[.]30
It is clear from the foregoing thatPena never had the opportunity to meet the
respondent. He never knew the respondent and did not actually see him receiving the
money that the union members raised as facilitation fee. His statement does not
prove at all thatthe alleged illegal deal transpired between the complainant and the
respondent.If at all, it only proved that the union members made contributions to
raise the amount of money required as facilitation fee and that they gave it to the
complainant for supposed delivery to the respondent. However, whether the money
was actually delivered to the respondent was not known to Pena.
The same observation holds true with respect to the affidavit of Demillo, an
acquaintance of the complainant, who claims to have witnessed the transaction
between the parties at the Makati Cinema Square. She alleged that she saw the
complainant handing a bulging brown supotto an unidentified man while the two
were at the open dining space of a café. Upon seeing the complainant again, she
learned that the person he was talking to at the café was the respondent LA.31
Demillo’s affidavit, however, does not prove any relevant fact that will establish the
respondent’s culpability.1âwphi1 To begin with, it was not established with certainty
that the person whom she saw talking with the complainant was the respondent. Even
assuming that respondent’s identity was established, Demillo could not have known
about the complainant and respondent’s business by simply glancing at them while
she was on her way to the supermarket to run some errands. That she allegedly saw
the complainant handing the respondent a bulging brown supothardly proves any
illegal transaction especially that she does not have knowledge about what may have
been contained in the said bag.
The complainant miserably failed tosubstantiate his claims with preponderant
evidence. Surely, he cannot prove the respondent’s culpability by merely presenting
equivocal statementsof some individuals or relying on plain gestures that are capable
of stirring the imagination. Considering the lasting effect of the imposition of the
penalty of suspension or disbarment on a lawyer’s professional standing, this Court
cannot allow that the respondent be held liable for misconduct on the basis of
surmises and imagined possibilities. A mere suspicion cannot substitute for the
convincing and satisfactory proof required to justify the suspension or disbarment of
a lawyer.
In Alitagtag v. Atty. Garcia,32 the Court emphasized, thus:
Indeed, the power to disbar must be exercised with great caution, and may be
imposed only in a clear case of misconduct that seriously affects the standing and the
character ofthe lawyer as an officer of the Court and as a member of the bar.
Disbarment should never be decreed where any lesser penalty could accomplish the
end desired. Without doubt, a violation of the high moral standards of the legal
profession justifies the imposition of the appropriate penalty, including suspension
and disbarment. However, the said penalties are imposed with great caution, because
they are the most severe forms of disciplinary action and their consequences are
beyond repair.33 (Citations omitted)
The respondent, however, is not entirely faultless. He has, nonetheless, engendered
the suspicion that he is engaged in an illegal deal when he introduced the complainant
to Vistan, who was the one who allegedly demanded P1,000,000.00 infacilitation fee
from the union members. The records bearout that the complainant, at the outset,
made clear his intention to seek the respondent’s assistance in following up the
union’s case in the CA. The respondent, however, instead of promptly declining the
favor sought in order to avoid any appearance of impropriety, even volunteered to
introduce the complainant to Vistan, a former client who allegedly won a case in the
CA in August 2006. It later turned out that Vistan represented to the complainant that
he has the capacity to facilitate the favorable resolution of cases and does this for a
fee. This fact was made known to him by Vistan himself duringa telephone
conversation when the latter told him he was given P350,000.00 as facilitation
10
Legal Ethics

fee.34His connection with Vistan was the reason why the complainant had suspected they are at all times subject to the scrutinizing eye of publicopinion and community
that he was in connivance with him and that he got a portion of the loot. His gesture approbation. Needless to state, those whose conduct – both public and private – fails
of introducing the complainant to Vistan precipitated the idea that what the latter this scrutiny would have to bedisciplined and, after appropriate proceedings,
asked of him was with his approval. It registered a mistaken impression on the penalized accordingly.38
complainant that his case can be expeditiously resolved by resorting to extraneous WHEREFORE, for having committed an act which compromised the public’s trust in
means or channels. Thus, while the respondent may not have received money from the justice system, Atty. Reynaldo V. Abdon is hereby SUSPENDEDfrom the practice
the complainant, the fact is that he has made himself instrumental to Vistan’s illegal of law for a period of ONE (1) MONTH effective upon receipt of this Decision, with a
activity. In doing so, he has exposed the legal profession to undeserved condemnation STERN WARNING that a repetition of the same or similar act in the future shall be
and invited suspicion on the integrity of the judiciary for which he must be imposed dealt with severely.
with a disciplinary sanction. Let copies of this Decision be furnished the Integrated Bar of the Philippines and the
Canon 7 of the Code of Professional Responsibility mandates that a "lawyer shall at all Office of the Court Administrator which shall circulate the same in all courts in the
times uphold the integrity and dignity of the legal profession." For, the strength of the country, and attached to the personal records of Atty. Reynaldo V. Abdon in the Office
legal profession lies in the dignity and integrity of its members.35 It is every lawyer’s of the Bar Confidant.
duty to maintain the high regard to the profession by staying trueto his oath and SO ORDERED.
keeping his actions beyond reproach.
Also, the respondent, as a member of the legal profession, has a further responsibility
to safeguard the dignity of the courts which the public perceives as the bastion of
justice. Hemust at all times keep its good name untarnished and not be instrumental
to its disrepute. In Berbano v. Atty. Barcelona,36 the Court reiterated the bounden
duty of lawyers to keep the reputation of the courts unscathed, thus:
A lawyer is an officer of the courts; he is, "like the court itself, an instrument or agency
to advance the endsof justice.["] [x x x] His duty is to uphold the dignity and authority
of the courts to which he owes fidelity, ["]not to promote distrust inthe administration
of justice." [x x x] Faith in the courts a lawyer should seek to preserve. For, to
undermine the judicial edifice "is disastrous to the continuity of the government and
to the attainment of the liberties of the people." [x x x] Thus has it been said of a
lawyer that "[a]s an officer of the court, it is his sworn and moral duty to help build
and not destroy unnecessarily that high esteem and regard towards the courts so
essential to the proper administration of justice."37
A strong and independent judiciary is one of the key elements in the orderly
administration of justice. It holds a revered status in the society as the public
perceives it as the authority of what is proper and just, and abides by its
pronouncements. Thus, it must keep its integrity inviolable and this entails that the
members of the judiciary be extremely circumspect in their actions, whether in their
public or personal dealings. Nonetheless, the duty to safeguard the good name of the
judiciary is similarly required from all the members of the legal profession. The
respondent, however, compromised the integrity of the judiciary by his association
with a scoundrel who earns a living by dishonoring the court and maliciously imputing
corrupt motives on its members.
The Court reiterates its directive tothe members of the Bar to be mindful of the sheer
responsibilities thatattach to their profession. They must maintain high standards of
legal proficiency, aswell as morality including honesty, integrity and fair dealing. For,

11
Legal Ethics
IN RE: VICTORIO D. LANUEVO, former Bar Confidant and Deputy Clerk of
Court, respondent.
Administrative proceedings against Victorio D. Lanuevo — for disbarment; Ramon E.
Galang, alias Roman E. Galang — for disbarment; Hon. Bernardo Pardo, Hon. Ramon
Pamatian, Atty. Manuel C. Tomacruz; Atty. Manuel G. Montecillo, Atty. Fidel Manalo
and Atty. Guillermo Pablo, Jr. — for disciplinary action — for their acts and omissions
during the 1971 Bar Examinations.
In his request dated March 29, 1972 contained in a confidential letter to the Court for
re-correction and re-evaluation of his answer to the 1971 Bar Examinations question,
Oscar Landicho — who flunked in the 1971, 1968 and 1967 Bar Examinations with a
grade of 70.5%, 65.35% and 67.55%, respectively — invited the attention of the Court
to "The starling fact that the grade in one examination (Civil Law) of at least one bar
candidate was raised for one reason or another, before the bar results were released
this year" (Confidential Letter, p. 2. Vol. I, rec.). This was confirmed, according to him,
by the Civil Law Examiner himself (Hon. Ramon C. Pamatian) as well as by Bar
Confidant Victorio D. Lanuevo. He further therein stated "that there are strong
reasons to believe that the grades in other examination notebooks in other subjects
also underwent alternations — to raise the grades — prior to the release of the
results. Note that this was without any formal motion or request from the proper
parties, i.e., the bar candidates concerned. If the examiners concerned reconsidered
their grades without formal motion, there is no reason why they may not do so now
when proper request answer motion therefor is made. It would be contrary to due
process postulates. Might not one say that some candidates got unfair and unjust
treatment, for their grades were not asked to be reconsidered 'unofficially'? Why the
discrimination? Does this not afford sufficient reason for the Court en banc to go into
these matters by its conceded power to ultimately decide the matter of admission to
the bar?" (p. 2, Confidential Letter, Vol. I, rec.).
Acting on the aforesaid confidential letter, the Court checked the records of the 1971
Bar Examinations and found that the grades in five subjects — Political Law and Public
International Law, Civil Law, Mercantile Law, Criminal Law and Remedial Law — of a
successful bar candidate with office code No. 954 underwent some changes which,
however, were duly initialed and authenticated by the respective examiner
concerned. Further check of the records revealed that the bar candidate with office
code No. 954 is one Ramon E. Galang, a perennial bar candidate, who flunked in
the 1969, 1966, 1964, 1963, and 1962 bar examinations with a grade of 67.55%,
68.65%, 72.75%, 68.2%, 56.45% and 57.3%, respectively. He passed in the 1971 bar
examinations with a grade of 74.15%, which was considered as 75% by virtue of a
Court of 74.15%, which was considered as 75% as the passing mark for the 1971 bar
examinations.
Upon the direction of the Court, the 1971 Bar Examination Chairman requested Bar
Confidant Victorio D. Lanuevo and the five (5) bar examiners concerned to submit
their sworn statements on the matter, with which request they complied.
In his sworn statement dated April 12, 1972, said Bar Confidant admitted having
brought the five examination notebooks of Ramon E. Galang, alias Ramon E. Galang,
back to the respective examiners for re-evaluation and/or re-checking, stating the
circumstances under which the same was done and his reasons for doing the same.
Each of the five (5) examiners in his individual sworn statement admitted having re-
evaluated and/or re-checked the notebook involved pertaining to his subject upon
the representation to him by Bar Confidant Lanuevo that he has the authority to do
the same and that the examinee concerned failed only in his particular subject and/or
was on the borderline of passing.
Finding a prima facie case against the respondents warranting a formal investigation,
the Court required, in a resolution dated March 5, 1973, Bar Confidant Victorio
Lanuevo "to show cause within ten (10) days from notice why his name should not be
stricken from the Roll of Attorneys" (Adm. Case No. 1162, p. 34, rec.). Considering that
the re-evaluation of the examination papers of Ramon E. Galang, alias Roman E.
Galang, was unauthorized, and therefore he did not obtain a passing average in the
1971 bar examinations, the Court likewise resolved on March 5, 1971 to requires him
"to show cause within ten (10) days from notice why his name should not be stricken
from the Roll of Attorneys" (Adm. Case No. 1163, p. 99, rec.). The five examiners
concerned were also required by the Court "to show cause within ten (10) days from
notice why no disciplinary action should be taken against them" (Adm. Case No. 1164,
p. 31, rec.).
Respondent Tomacruz filed his answer on March 12, 1973 (Adm. Case No. 1164, p.
70, rec.). while respondents Pardo, Pamatian, Montecillo, Manalo and Lanuevo filed
theirs on March 19, 1973 (Adm. Case No. 1162, pp. 60-63, 32-35, 40-41, 36-39 and
35-38, rec.). At the hearing on August 27, 1973, respondent Lanuevo filed another
sworn statement in addition to, and in amplication of, his answer filed on March 19,
1973 (Adm. Case No. 1162, pp. 45-47, rec.). Respondent Galang filed his unverified
answer on March 16, 1973 (Adm. Case No. 1163, pp. 100-104, rec.). He was required
by the Court to verify the same and complaince came on May 18, 1973 (Adm. Case
No. 1163, pp. 106-110,) rec.).
In the course of the investigation, it was found that it was not respondent Bernardo
Pardo who re-evaluated and/or re-checked examination booklet with Office Code No.
954 in Political Law and Public International Law of examinee Ramon Galang, alias
Roman E. Galang, but Guillermo Pablo, Jr., examiner in Legal Ethics and Practical
Exercise, who was asked to help in the correction of a number of examination
notebooks in Political Law and Public International Law to meet the deadline for
submission (pp. 17-24, Vol. V, rec.). Because of this development, Atty. Guillermo
Pablo, Jr. was likewise included as respondent in Administrative Case No. 1164. Hon.
Bernardo Pardo remainded as a respondent for it was also discovered that another
12
Legal Ethics
paper in Political Law and Public International Law also underwent re-evaluation
and/or re-checking. This notebook with Office Code No. 1662 turned out to be owned
by another successful candidate by the name of Ernesto Quitaleg. Further
investigation resulted in the discovery of another re-evaluation and/or re-checking of
a notebook in the subject of Mercantile Law resulting in the change of the grade from
4% to 50% This notebook bearing Office Code No. 110 is owned by another successful
candidate by the name of Alfredo Ty dela Cruz. Quitaleg and Ty dela Cruz and the
latter's father were summoned to testify in the investigation.
An investigation conducted by the National Bureau of Investigation upon request of
the Chairman of the 1971 Bar Examination Committee as Investigation Officer,
showed that one Romy Galang y Esguerra, alias Ramon E. Galang, a student in the
School of Law of Manuel L. Quezon University, was, on September 8, 1959, charged
with the crime of slight physical injuries in the Municipal Court of Manila committed
on Eufrosino F. de Vera, another student of the same university. Confronted with this
information at the hearing of August 13, 1973 (Vol. V, pp. 20-21, 32, rec.), respondent
Galang declared that he does not remember having been charged with the crime of
slight physical injuries in that case. (Vol. VI, pp. 45-60, rec.).
Respondent Galang, in all his application to take the bar examinations, did not make
mention of this fact which he is required under the rules to do.
The joint investigation of all the cases commenced on July 17, 1973 and was
terminated on October 2, 1973. Thereafter, parties-respondents were required to
submit their memoranda. Respondents Lanuevo, Galang and Pardo submitted their
respective memorandum on November 14, 1973.
Before the joint hearing commenced, Oscar Landicho took up permanent residence
in Australia, where he is believed to be gainfully employed. Hence, he was not
summoned to testify.
At the joint investigation, all respondents, except respondent Pablo, who offered as
evidence only his oral testimony, submitted as their direct evidence only his oral
testimony, submitted as their direct evidence the affidavits and answers earlier
submitted by them to the Court. The same became the basis for their cross-
examination.
In their individual sworn statements and answer, which they offered as their direct
testimony in the investigation conducted by the Court, the respondent-examiners
recounted the circumstances under which they re-evaluated and/or re-checked the
examination notebooks in question.
In His affidavit dated April 11, 1972, respondent Judge (later Associate Justice of the
Court of Appeals) Ramon C. Pamatian, examiner in Civil Law, affirmed:
2. That one evening sometime in December last year, while I was
correcting the examination notebooks, Atty. Lanuevo, Bar
Confidant, explained to me that it is the practice and the policy in
bar examinations that he (Atty. Lanuevo) make a review of the
grades obtained in all subjects and if he finds that candidate
obtained an extraordinary high grade in one subject and a rather
low one in another, he will bring back the latter to the examiner
concerned for re-evaluation and change of grade;
3. That sometime in the latter part of January of this year, he
brought back to me an examination booklet in Civil Law for re-
evaluation, because according to him the owner of the paper is on
the borderline and if I could reconsider his grade to 75% the
candidate concerned will get passing mark;
4. That taking his word for it and under the belief that it was really
the practice and policy of the Supreme Court to do so in the
further belief that I was just manifesting cooperation in doing so,
I re-evaluated the paper and reconsidered the grade to 75%;
5. That only one notebook in Civil Law was brought back to me
for such re-evaluation and upon verifying my files I found that the
notebook is numbered '95;
6. That the original grade was 64% and my re-evaluation of the
answers were based on the same standard used in the correction
and evaluation of all others; thus, Nos. 3 and 4 with original
grades of 7% each was reconsidered to 10%; No. 5 with 4% to 5%;
No. 7 with 3% to 5%; and No. 8 with 8% to 10% (emphasis
supplied).
His answer dated March 19, 1973 substantially reiterated his allegations in his April
11, 1972 affidavit with following additional statements:
xxx xxx xxx
3. ... However the grades in Nos. 1, 2, 6, 9 and 10, were not
reconsidered as it is no longer to make the reconsideration of
these answers because of the same evaluation and standard;
hence, Nos. 1, 2 and 10 remainded at 5% and Nos. 6 and 9 at 10%;
4. That at the time I made the reconsideration of examination
booklet No. 951 I did not know the identity of its owner until I
received this resolution of the Honorable Supreme Court nor the
identities of the examiners in other subjects;
5. That the above re-evaluation was made in good faith and under
the belief that I am authorized to do so in view of the
misrepresentation of said Atty. Lanuevo, based on the following
circumstances:
a) Since I started correcting the papers on or
about October 16, 1971, relationship
between Atty. Lanuevo and myself had
developed to the point that with respect to
the correction of the examination booklets of
bar candidates I have always followed him
13
Legal Ethics
and considered his instructions as reflecting
the rules and policy of the Honorable
Supreme Court with respect to the same;
that I have no alternative but to take his
words;
b) That considering this relationship
and considering his misrepresentation to me
as reflecting the real and policy of the
Honorable Supreme Court, I did not bother
any more to get the consent and permission
of the Chairman of the Bar Committee.
Besides, at that time, I was isolating myself
from all members of the Supreme Court and
specially the chairman of the Bar Committee
for fear that I might be identified as a bar
examiner;
xxx xxx xxx
e) That no consideration whatsoever has been received by me in
return for such recorrection, and as proof of it, I declined to
consider and evaluate one booklet in Remedial Law aforesaid
because I was not the one who made the original correction of
the same (Adm. Case No. 1164, pp. 32-35, rec.; emphasis
supplied).
Then Assistant Solicitor General, now CFI Judge, Bernardo Pardo, examiner in Political
Law and Public International Law, confirmed in his affidavit of April 8, 1972 that:
On a day or two after the Bar Confidant went to my residence to
obtain from me the last bag of two hundred notebooks (bearing
examiner's code numbers 1200 to 1400) which according to my
record was on February 5, 1972, he came to my residence at
about 7:30 p.m. riding in a Vokswagen panel of the Supreme
Court, with at least two companions. The bar confidant had with
him an examinee's notebook bearing code number 661, and,
after the usual amenties, he requested me if it was possible for
me to review and re-examine the said notebook because it
appears that the examinee obtained a grade of 57, whereas,
according to the Bar Confidant, the said examinee had obtained
higher grades in other subjects, the highest of which was 84, if I
recall correctly, in remedial law.
I asked the Bar Confidant if I was allowed to receive or re-
examinee the notebook as I had submitted the same beforehand,
and he told me that I was authorized to do so because the same
was still within my control and authority as long as the particular
examinee's name had not been identified or that the code number
decode and the examinee's name was revealed. The Bar Confidant
told me that the name of the examinee in the case present
bearing code number 661 had not been identified or revealed;
and that it might have been possible that I had given a particularly
low grade to said examinee.
Accepting at face value the truth of the Bar Confidant's
representations to me, and as it was humanly possible that I might
have erred in the grading of the said notebook, I re-examined the
same, carefully read the answer, and graded it in accordance with
the same standards I had used throughout the grading of the
entire notebooks, with the result that the examinee deserved an
increased grade of 66. After again clearing with the Bar Confidant
my authority to correct the grades, and as he had assured me that
the code number of the examinee in question had not been
decoded and his name known, ... I therefore corrected the total
grade in the notebook and the grade card attached thereto, and
properly initia(l)ed the same. I also corrected the itemized grades
(from item No. 1 to item No. 10) on the two sets of grading sheets,
my personal copy thereof, and the Bar Confidant brought with
him the other copy thereof, and the Bar Confidant brought with
him the other copy the grading sheet" (Adm. Case No. 1164, pp.
58-59; rec.; emphasis supplied)
In his answer dated March 17, 1973 which he denominated as "Explanation",
respondent Bernardo P. Pardo adopted and replaced therein by reference the facts
stated in his earlier sworn statement and in additional alleged that:
xxx xxx xxx
3. At the time I reviewed the examinee's notebook in political and
international law, code numbered 661, I did know the name of the
examinee. In fact, I came to know his name only upon receipt of
the resolution of March 5, 1973; now knowing his name, I wish to
state that I do not know him personally, and that I have never met
him even up to the present;
4. At that time, I acted under the impression that I was authorized
to make such review, and had repeatedly asked the Bar Confidant
whether I was authorized to make such revision and was so
assured of my authority as the name of the examinee had not yet
been decoded or his identity revealed. The Bar Confidant's
assurance was apparently regular and so appeared to be in the
regular course of express prohibition in the rules and guidelines
given to me as an examiner, and the Bar Confidant was my official
liaison with the Chairman, as, unless called, I refrained as much
14
Legal Ethics
as possible from frequent personal contact with the Chairman
lest I be identified as an examiner. ...;
5. At the time the Bar Confidant came to see me at about 7:30
o'clock in the evening at my residence, I felt it inappropriate to
verify his authority with the Chairman. It did not appear to me
that his representations were unauthorized or suspicious. Indeed,
the Bar Confidant was riding in the official vehicle of the Supreme
Court, a Volkswagen panel, accompanied by two companions,
which was usual, and thus looked like a regular visit to me of the
Bar Confidant, as it was about the same hour that he used to see
me:
xxx xxx xxx
7. Indeed, the notebook code numbered 661 was still in the same
condition as when I submitted the same. In agreeing to review the
said notebook code numbered 661, my aim was to see if I
committed an error in the correction, not to make the examinee
pass the subject. I considered it entirely humanly possible to have
erred, because I corrected that particular notebook on December
31, 1971, considering especially the representation of the Bar
Confidant that the said examinee had obtained higher grades in
other subjects, the highest of which was 84% in remedial law, if I
recall correctly. Of course, it did not strike me as unusual that the
Bar Confidant knew the grades of the examinee in the position to
know and that there was nothing irregular in that:
8. In political and international law, the original grade obtained
by the examinee with notebook code numbered 661 was 57%.
After review, it was increased by 9 points, resulting in a final grade
of 66%. Still, the examinee did not pass the subject, and, as
heretofore stated, my aim was not to make the examinee pass,
notwithstanding the representation that he had passed the other
subjects. ...
9. I quite recall that during the first meeting of the Bar Examiners'
Committee consensus was that where an examinee failed in only
one subject and passed the rest, the examiner in said subject
would review the notebook. Nobody objected to it as irregular.
At the time of the Committee's first meeting, we still did not know
the names of the candidates.
10. In fine, I was a victim of deception, not a party to it. It had
absolutely no knowledge of the motives of the Bar Confidant or
his malfeasance in office, and did not know the examinee
concerned nor had I any kind of contract with him before or
rather the review and even up to the present (Adm. Case No.
1164, pp. 60-63; rec.; emphasis supplied).
Atty. Manuel Tomacruz, examiner in Criminal Law, affirmed in his affidavit dated April
12, 1972:
1. xxx xxx xxx
2. That about weekly, the Bar Confidant would deliver and collect
examination books to my residence at 951 Luna Mencias,
Mandaluyong, Rizal.
3. That towards the end when I had already completed correction
of the books in Criminal Law and was helping in the correction of
some of the papers in another subject, the Bar Confidant brought
back to me one (1) paper in Criminal Law saying that that
particular examinee had missed the passing grade by only a
fraction of a percent and that if his paper in Criminal Law would
be raised a few points to 75% then he would make the general
passing average.
4. That seeing the jurisdiction, I raised the grade to 75%, that is,
giving a raise of, if I remember correctly, 2 or 3 points, initialled
the revised mark and revised also the mark and revised also the
mark in the general list.
5. That I do not recall the number of the book of the examinee
concerned" (Adm. Case No. 1164, p. 69, rec.; emphasis supplied).
In his answer dated March 12, 1973, respondent Tomacruz stated that "I accepted the
word of the Bar Confidant in good faith and without the slightest inkling as to the
identity of the examinee in question who up to now remains a total stranger and
without expectation of nor did I derive any personal benefit" (Adm. Case No. 1164, p.
70, rec.; emphasis supplied).
Atty. Fidel Manalo, examiner in Remedial Law, stated in his affidavit dated April 14,
1972, that:
xxx xxx xxx
2. Sometime about the late part of January or early part of
February 1972, Attorney Lanuevo, Bar Confidant of the Supreme
Court, saw me in my house at No. 1854 Asuncion Street, Makati,
Rizal. He produced to me an examinee's notebook in Remedial
Law which I had previously graded and submitted to him.
He informed me that he and others (he used the words "we") had
reviewed the said notebook. He requested me to review the said
notebook and possibly reconsider the grade that I had previously
given. He explained that the examine concerned had done well in
other subjects, but that because of the comparatively low grade
that I had given him in Remedial Law his general average was
short of passing. Mr. Lanuevo remarked that he thought that if
15
Legal Ethics
the paper were reviewed I might find the examinee deserving of
being admitted to the Bar. As far as I can recall, Mr. Lanuevo
particularly called my attention to the fact in his answers the
examinee expressed himself clearly and in good enough
English. Mr. Lanuevo however informed me that whether I would
reconsider the grades I had previously given and submitted was
entirely within my discretion.
3. Believing fully that it was within Mr. Lanuevo's authority as Bar
Confidant to address such a request to me and that the said
request was in order, I, in the presence of Mr. Lanuevo, proceeded
tore-read and re-evaluate each and every item of the paper in
question. I recall that in my re-evaluation of the answers, I
increased the grades in some items, made deductions in other
items, and maintained the same grades in other items. However,
I recall that after Mr. Lanuevo and I had totalled the new grades
that I had given after re-evaluation, the total grade increased by
a few points, but still short of the passing mark of 75% in my
subject.
xxx xxx xxx (Adm. Case No. 1164, pp. 74-75, rec.; emphasis
supplied).
In his answer (response) dated March 18, 1973, respondent Manalo reiterated the
contents of his sworn statement, adding the following:
xxx xxx xxx
5. In agreeing to re-evaluate the notebook, with resulted in
increasing the total grade of the examinee-concerned in
Remedial Law from 63.75% to 74.5%, herein respondent acted in
good faith. It may well be that he could be faulted for not having
verified from the Chairman of the Committee of Bar Examiners
the legitimacy of the request made by Mr. Lanuevo. Herein
respondent, however, pleads in attenuation of such omission,
that —
a) Having been appointed an Examiner for
the first time, he was not aware, not having
been apprised otherwise, that it was not
within the authority of the Bar Confidant of
the Supreme Court to request or suggest that
the grade of a particular examination
notebook be revised or reconsidered. He had
every right to presume, owing to the highly
fiduciary nature of the position of the Bar
Confidant, that the request was legitimate.
xxx xxx xxx
c) In revising the grade of the particular
examinee concerned, herein respondent
carefully evaluated each and every answer
written in the notebook. Testing the answers
by the criteria laid down by the Court,
and giving the said examinee the benefit of
doubt in view of Mr. Lanuevo's representation
that it was only in that particular subject that
the said examine failed, herein respondent
became convinced that the said examinee
deserved a higher grade than that previously
given to him, but that he did not deserve, in
herein respondent's honest appraisal, to be
given the passing grade of 75%. It should also
be mentioned that, in reappraising the
answers, herein respondent downgraded a
previous rating of an answer written by the
examinee, from 9.25% to 9% (Adm. Case No.
1164, pp. 36-39, rec.; emphasis supplied).
Atty. Manuel Montecillo, examiner in Mercantile Law, affirmed in his affidavit dated
April 17, 1972:
xxx xxx xxx
That during one of the deliberations of the Bar Examiners'
Committee after the Bar Examinations were held, I was informed
that one Bar examinee passed all other subjects except
Mercantile Law;
That I informed the Bar Examiners' Committee that I would be
willing to re-evaluate the paper of this particular Bar candidate;.
That the next day, the Bar Confidant handed to me a Bar
candidate's notebook (No. 1613) showing a grade of 61%;
That I reviewed the whole paper and after re-evaluating the
answers of this particular Bar candidate I decided to increase his
final grade to 71%;
That consequently, I amended my report and duly initialed the
changes in the grade sheet (Adm. Case No. 1164, p. 72, rec.;
emphasis supplied).
In his answer dated March 19, 1973, respondent Montecillo restated the contents of
his sworn statement of April 17, 1972, and
xxx xxx xxx
2. Supplementary to the foregoing sworn statement, I hereby
state that I re-evaluated the examination notebook of Bar
Candidate No. 1613 in Mercantile Law in absolute good faith and
16
Legal Ethics
in direct compliance with the agreement made during one of the
deliberations of the Bar Examiners Committee that where a
candidate fails in only one subject, the Examiner concerned should
make a re-evaluation of the answers of the candidate concerned,
which I did.
3. Finally, I hereby state that I did not know at the time I made the
aforementioned re-evaluation that notebook No. 1613 in
Mercantile Law pertained to bar examine Ramon E. Galang, alias
Roman E. Galang, and that I have never met up to this time this
particular bar examinee (Adm. Case No. 1164, pp. 40-41, rec.;
emphasis supplied).
In his sworn statement dated April 12, 1972, Bar Confidant Lanuevo stated:
xxx xxx xxx
As I was going over those notebooks, checking the entries in the
grading sheets and the posting on the record of ratings, I was
impressed of the writing and the answers on the first notebook.
This led me to scrutinize all the set of notebooks. Believing that
those five merited re-evalation on the basis of the memorandum
circularized to the examiners shortly earlier to the effect that
... in the correction of the papers, substantial
weight should then be given to clarify of
language and soundness of reasoning' (par.
4),
I took it upon myself to bring them back to the respective
examiners for re-evaluation and/or re-checking.
It is our experience in the Bar Division that immediately after the
release of the results of the examinations, we are usually
swarmed with requests of the examinees that they be shown
their notebooks. Many of them would copy their answers and
have them checked by their professors. Eventually some of them
would file motions or requests for re-correction and/or re-
evaluation. Right now, we have some 19 of such motions or
requests which we are reading for submission to the Honorable
Court.
Often we feel that a few of them are meritorious, but just the
same they have to be denied because the result of the
examinations when released is final and irrevocable.
It was to at least minimize the occurrence of such instances that
motivated me to bring those notebooks back to the respective
examiners for re-evaluation" (Adm. Case No. 1162, p. 24, rec.;
emphasis supplied).
In his answer dated March 19, 1973, respondent Lanuevo avers:
That he submitted the notebooks in question to the examiners
concerned in his hotest belief that the same merited re-
evaluation; that in so doing, it was not his intention to forsake or
betray the trust reposed in him as bar confidant but on the
contrary to do justice to the examinee concerned; that neither
did he act in a presumptuous manner, because the matter of
whether or not re-evaluation was inorder was left alone to the
examiners' decision; and that, to his knowledge, he does not
remember having made the alleged misrepresentation but that
he remembers having brought to the attention of the Committee
during the meeting a matter concerning another examinee who
obtained a passing general average but with a grade below 50%
in Mercantile Law. As the Committee agreed to remove the
disqualification by way of raising the grade in said subject,
respondent brought the notebook in question to the Examiner
concerned who thereby raised the grade thus enabling the said
examinee to pass. If he remembers right, the examinee
concerned is one surnamed "de la Cruz" or "Ty-de la Cruz".
Your Honors, respondent never entertained a notion that his act
would stir such serious charges as would tend to undermine his
integrity because he did it in all good faith.
xxx xxx xxx (Adm. Case No. 1162, p. 35, rec.; emphasis supplied).
On August 27, 1973, during the course of the investigation, respondent Lanuevo filed
another sworn statement in addition to, and in amplification of, his answer, stating:
xxx xxx xxx
1. That I vehemently deny having deceived the examiners
concerned into believing that the examinee involved failed only
in their respective subjects, the fact of the matter being that the
notebooks in question were submitted to the respective
examiners for re-evaluation believing in all good faith that they so
merited on the basis of the Confidential Memorandum (identified
and marked as Exh. 1-Lanuevo, particularly that portion marked
as Exh. 1-a-Lanuevo)which was circulated to all the examiners
earlier, leaving to them entirely the matter of whether or not re-
evaluation was in order,
2. That the following coincidence prompted me to pry into the
notebooks in question:
Sometime during the latter part of January
and the early part of February, 1972, on my
way back to the office (Bar Division) after
lunch, I though of buying a sweepstake ticket.
I have always made it a point that the
17
Legal Ethics
moment I think of so buying, I pick a number
from any object and the first number that
comes into my sight becomes the basis of the
ticket that I buy. At that moment, the first
number that I saw was "954" boldly printed
on an electrical contribance (evidently
belonging to the MERALCO) attached to a
post standing along the right sidewalk of P.
Faura street towards the Supreme Court
building from San Marcelino street and
almost adjacent to the south-eastern corner
of the fence of the Araullo High
School(photograph of the number '954', the
contrivance on which it is printed and a
portion of the post to which it is attached is
identified and marked as Exhibit 4-Lanuevo
and the number "954" as Exh. 4-a-Lanuevo).
With this number (954) in mind, I proceeded
to Plaza Sta. Cruz to look for a ticket that
would contain such number. Eventually, I
found a ticket, which I then bought, whose
last three digits corresponded to "954". This
number became doubly impressive to me
because the sum of all the six digits of the
ticket number was "27", a number that is so
significant to me that everything I do I try
somewhat instinctively to link or connect it
with said number whenever possible. Thus
even in assigning code numbers on the
Master List of examinees from 1968 when I
first took charge of the examinations as Bar
Confidant up to 1971, I either started with
the number "27" (or "227") or end with said
number. (1968 Master List is identified and
marked as Exh. 5-Lanuevo and the figure "27"
at the beginning of the list, as Exh. 5-a
Lanuevo; 1969 Master List as Exh. 6-Lanuevo
and the figure "227" at the beginning of the
list, as Exh. 6-a-Lanuevo; 1970 Master List as
Exh. 7-Lanuevo and the figure "227" at the
beginning of the list as Exh. 7-a-Lanuevo; and
the 1971 Master List as Exh. 8-Lanuevo and
the figure "227" at the end of the list as Exh.
8-a-Lanuevo).
The significance to me of this number (27)
was born out of these incidents in my life, to
wit: (a) On November 27, 1941 while with the
Philippine Army stationed at Camp
Manacnac, Cabanatuan, Nueva Ecija, I was
stricken with pneumonia and was
hospitalized at the Nueva Ecija Provincial
Hospital as a result. As will be recalled, the
last Pacific War broke out on December 8,
1941. While I was still confined at the
hospital, our camp was bombed and strafed
by Japanese planes on December 13, 1941
resulting in many casualties. From then on, I
regarded November 27, 1941 as the
beginning of a new life for me having been
saved from the possibility of being among the
casualties;(b) On February 27, 1946, I was
able to get out of the army byway of
honorable discharge; and (c) on February 27,
1947, I got married and since then we begot
children the youngest of whom was born on
February 27, 1957.
Returning to the office that same afternoon
after buying the ticket, I resumed my work
which at the time was on the checking of the
notebooks. While thus checking, I came upon
the notebooks bearing the office code
number "954". As the number was still fresh
in my mind, it aroused my curiosity
prompting me to pry into the contents of the
notebooks. Impressed by the clarity of the
writing and language and the apparent
soundness of the answers and, thereby,
believing in all good faith on the basis of the
aforementioned Confidential Memorandum
(Exh. 1-Lanuevo and Exh. 1-a-Lanuevo) that
they merited re-evaluation, I set them aside
and later on took them back to the respective
examiners for possible review recalling to
them the said Confidential Memorandum but
18
Legal Ethics
leaving absolutely the matter to their
discretion and judgment.
3. That the alleged misrepresentation or deception could have
reference to either of the two cases which I brought to the
attention of the committee during the meeting and which the
Committee agreed to refer back to the respective examines,
namely:
(a) That of an examinee who obtained a
passing general average but with a grade
below 50% (47%) in Mercantile Law(the
notebooks of this examinee bear the Office
Code No. 110, identified and marked as Exh.
9-Lanuevo and the notebook in Mercantile
Law bearing the Examiner's Code No. 951
with the original grade of 4% increased to
50% after re-evaluation as Exh. 9-a-Lanuevo);
and
(b) That of an examinee who obtained a
borderline general average of 73.15% with a
grade below 60% (57%) in one subject which,
at the time, I could not pinpoint having
inadvertently left in the office the data
thereon. It turned out that the subject was
Political and International Law under Asst.
Solicitor General Bernardo Pardo (The
notebooks of this examinee bear the Office
Code No. 1622 identified and marked as Exh.
10-Lanuevo and the notebook in Political and
International Law bearing the Examiner's
Code No. 661 with the original grade of 57%
increased to 66% after re-evaluation, as Exh.
10-a-Lanuevo). This notebook in Political and
International Law is precisely the same
notebook mentioned in the sworn statement
of Asst. Solicitor General Bernardo
Pardo(Exh. ------- Pardo).
4. That in each of the two cases mentioned in the next preceding
paragraph, only one (1) subject or notebook was reviewed or re-
evaluated, that is, only Mercantile Law in the former; and only
Political and International Law in the latter, under the facts and
circumstances I made known to the Committee and pursuant to
which the Committee authorized the referral of the notebooks
involved to the examiners concerned;
5. That at that juncture, the examiner in Taxation even
volunteered to review or re-check some 19, or so, notebooks in
his subject but that I told the Committee that there was very little
time left and that the increase in grade after re-evaluation, unless
very highly substantial, may not alter the outcome since the
subject carries the weight of only 10% (Adm. Case No. 1162, pp.
45-47, rec.).
The foregoing last-minute embellishment only serves to accentuate the fact that
Lanuevo's story is devoid of truth. In his sworn statement of April 12, 1972, he was
"led to scrutinize all the set of notebooks" of respondent Galang, because he "was
impressed of the writing and the answers on the first notebook "as he "was going over
those notebooks, checking the entries in the grading sheets and the posting on the
record of ratings." In his affidavit of August 27, 1973, he stated that the number 954
on a Meralco post provoked him "to pry into the contents of the notebooks" of
respondent Galang "bearing office code number '954."
Respondent Ramon E. Galang, alias Roman E. Galang, asserted, among others;
1. That herein respondent is not acquainted with former
BarConfidant Victorio Lanuevo and never met him before except
once when, as required by the latter respondent submitted
certain papers necessary for taking the bar examinations.
xxx xxx xxx
4. That it has been the consistent policy of the Supreme Court not
to reconsider "failure" cases; after the official release thereof;
why should it now reconsider a "passing" case, especially in a
situation where the respondent and the bar confidant do not
know each other and, indeed, met only once in the ordinary
course of official business?
It is not inevitable, then, to conclude that the entire situation
clearly manifests a reasonable doubt to which respondent is
richly entitled?
5. That respondent, before reading a copy of this Honorable
Court's resolution dated March 5, 1973, had no knowledge
whatsoever of former Bar Confidant Victorio Lanuevo's
actuations which are stated in particular in the resolution. In fact,
the respondent never knew this man intimately nor, had the
herein respondent utilized anyone to contact the Bar Confidant
Lanuevo in his behalf.
But, assuming as true, the said actuations of Bar Confidant
Lanuevo as stated in the Resolution, which are evidently
purported to show as having redounded to the benefit of herein
19
Legal Ethics
respondent, these questions arise: First, was the re-evaluation of
Respondent's examination papers by the Bar Examination
Committee done only or especially for him and not done
generally as regards the paper of the other bar candidates who
are supposed to have failed? If the re-evaluation of Respondent's
grades was done among those of others, then it must have been
done as a matter of policy of the Committee to increase the
percentage of passing in that year's examination and, therefore,
the insinuation that only respondent's papers were re-evaluated
upon the influence of Bar Confidant Lanuevo would be
unjustifiable, if not far fetched. Secondly, is the fact that
BarConfidant Lanuevo's actuations resulted in herein
Respondent's benefit an evidence per se of Respondent's having
caused actuations of Bar confidant Lanuevo to be done in
former's behalf? To assume this could be disastrous in effect
because that would be presuming all the members of the Bar
Examination Committee as devoid of integrity, unfit for the bar
themselves and the result of their work that year, as also
unworthy of anything. All of these inferences are deductible from
the narration of facts in the resolution, and which only goes to
show said narration of facts an unworthy of credence, or
consideration.
xxx xxx xxx
7. This Honorable Tribunal's Resolution of March 5, 1973 would
make this Respondent Account or answer for the actuations of
Bar Confidant Lanuevo as well as for the actuations of the Bar
Examiners implying the existence of some conspiracy between
them and the Respondent. The evident imputation is denied and
it is contended that the Bar Examiners were in the performance
of their duties and that they should be regarded as such in the
consideration of this case.
xxx xxx xxx (Adm. Case No. 1163, pp. 100-104, rec.).
I Respondent Lanuevo likewise made the remark and observation that he thought that
The evidence thus disclosed clearly demonstrates how respondent Lanuevo
systematically and cleverly initiated and prepared the stage leading to the re-
evalation and/or recorrection of the answers of respondent Galang by deceiving
separately and individually the respondents-examiners to make the desired revision
without prior authority from the Supreme Court after the corrected notebooks had
been submitted to the Court through the respondent Bar Confidant, who is simply the
custodian thereof for and in behalf of the Court.
It appears that one evening, sometime around the middle part of December, 1971,
just before Christmas day, respondent Lanuevo approached Civil Law examiner
Pamatian while the latter was in the process of correcting examination booklets, and
then and there made the representations that as BarConfidant, he makes a review of
the grades obtained in all subjects of the examinees and if he finds that a candidate
obtains an extraordinarily high grade in one subject and a rather low one on another,
he will bring back to the examiner concerned the notebook for re-evaluation and
change of grade(Exh. 2-Pamatian, Adm. Case No. 1164, pp. 55-56; Vol. V, pp. 3-4, rec.).
Sometime in the latter part of January, 1972, respondent Lanuevo brought back to
respondent-examiner Pamatian an examination booklet in Civil Law for re-evaluation,
representing that the examinee who owned the particular notebook is on the
borderline of passing and if his grade in said subject could be reconsidered to 75%, the
said examine will get a passing average. Respondent-examiner Pamatian took
respondent Lanuevo's word and under the belief that was really the practice and
policy of the Supreme Court and in his further belief that he was just manifesting
cooperation in doing so, he re-evaluated the paper and reconsidered the examinee's
grade in said subject to 75% from 64%. The particular notebook belonged to an
examinee with Examiner's Code Number 95 and with Office Code Number 954. This
examinee is Ramon E. Galang, alias Roman E. Galang. Respondent Pamatian did not
know the identity of the examinee at the time he re-evaluated the said booklet (Exhs.
1-Pamatian, 2-Pamatian, and 3-Pamatian, Adm. Case No. 1164, pp. 32-33, 55-56, 57;
Vol. V, pp. 3-4, rec.).
Before Justice Pamatian made the revision, Examinee Galang failed in seven subjects
including Civil Law. After such revision, examinee Galang still failed in six subjects and
could not obtain the passing average of 75% for admission to the Bar.
Thereafter, about the latter part of January, 1972 or early part of February, 1972,
respondent Lanuevo went to the residence of respondent-examiner Fidel Manalo at
1854 Asuncion Street, Makati, Rizal, with an examinee's notebook in Remedial Law,
which respondent Manalo and previously corrected and graded. Respondent Lanuevo
then requested respondent Manalo to review the said notebook and possibly to
reconsider the grade given, explaining and representing that "they" has reviewed the
said notebook and that the examinee concerned had done well in other subjects, but
that because of the comparatively low grade given said examinee by respondent
Manalo in Remedial Law, the general average of said examinee was short of passing.
if the notebook were reviewed, respondent Manalo might yet find the examinee
deserving of being admitted to the Bar. Respondent Lanuevo also particularly called
the attention of respondent Manalo to the fact that in his answers, the examinee
expressed himself clearly and in good English. Furthermore, respondent Lanuevo
called the attention of respondent Manalo to Paragraph 4 of the Confidential
Memorandum that read as follows:
4. Examination questions should be more a test of logic,
knowledge of legal fundamentals, and ability to analyze and solve
legal problems rather than a test of memory; in the correction of
20
Legal Ethics
papers, substantial weight should be given to clarify of language
and soundness of reasoning.
Respondent Manalo was, however, informed by respondent Lanuevo that the matter
of reconsideration was entirely within his (Manalo's) discretion. Respondent Manalo,
believing that respondent Lanuevo, as Bar Confidant, had the authority to make such
request and further believing that such request was in order, proceeded to re-
evaluate the examinee's answers in the presence of Lanuevo, resulting in an increase
of the examinee's grade in that particular subject, Remedial Law, from 63.25% to
74.5%. Respondent Manalo authenticated with his signature the changes made by
him in the notebook and in the grading sheet. The said notebook examiner's code
number is 136, instead of 310 as earlier mentioned by him in his affidavit, and
belonged to Ramon E. Galang, alias Roman E. Galang (Exhs. 1 & 2- Manalo, Adm. Case
No. 1164, pp. 36-39, 74-75; Vol. V, pp. 50-53, rec.).
But even after the re-evaluation by Atty. Manalo, Examinee Galang could not make
the passing grade due to his failing marks in five subjects.
Likewise, in the latter part of January, 1972, on one occasion when respondent
Lanuevo went to deliver to respondent Guillermo Pablo, Jr. in the latter's house a new
batch of examination papers in Political Law and Public International Law to be
corrected, respondent Lanuevo brought out a notebook in Political Law
bearing Examiner's Code Number 1752 (Exh. 5-Pardo, Adm. Case No. 1164, p. 66,
rec.), informing respondent Pablo that particular examinee who owns the said
notebook seems to have passed in all other subjects except in Political Law and Public
International Law; and that if the said notebook would be re-evaluated and the mark
be increased to at least 75%, said examinee will pass the bar examinations. After
satisfying himself from respondent that this is possible — the respondent Bar
Confidant informing him that this is the practice of the Court to help out examinees
who are failing in just one subject — respondent Pablo acceded to the request and
thereby told the Bar Confidant to just leave the said notebook. Respondent Pablo
thereafter re-evaluated the answers, this time with leniency. After the re-evaluation,
the grade was increased to 78% from 68%, or an increase of 10%. Respondent Pablo
then made the corresponding corrections in the grading sheet and accordingly
initialed the charges made. This notebook with Office Code Number 954 also
belonged to Ramon E. Galang, alias Roman E. Galang (Vol. V, pp. 43-46, rec.).
After the re-evaluation by Atty. Pablo, Jr., examinee Galang's general average was still
below the passing grade, because of his failing marks in four subjects.
Towards the end of the correction of examination notebooks, respondent Lanuevo
brought back to respondent Tomacruz one examination booklet in Criminal Law, with
the former informing the latter, who was then helping in the correction of papers in
Political Law and Public International Law, as he had already finished correcting the
examination notebooks in his assigned subject — Criminal Law — that the examinee
who owns that particular notebook had missed the passing grade by only a fraction
of a percent and that if his grade in Criminal Law would be raised a few points to 75%,
then the examinee would make the passing grade. Accepting the words of respondent
Lanuevo, and seeing the justification and because he did not want to be the one
causing the failure of the examinee, respondent Tomacruz raised the grade from 64%
to 75% and thereafter, he initialed the revised mark and also revised the mark in the
general list and likewise initialed the same. The examinee's Examiner Code Number is
746 while his Office Code Number is 954. This examinee is Ramon E. Galang, alias
Roman E. Galang (Exhs. 1, 2 & 3-Tomacruz, Adm. Case No. 1164, pp. 65, 66 and 71;
Vol. V, pp. 24-25, 60-61, rec.).
Respondent Tomacruz does not recall having been shown any memo by respondent
Lanuevo when the latter approached him for this particular re-evaluation; but he
remembers Lanuevo declaring to him that where a candidate had almost made the
passing average but had failed in one subject, as a matter of policy of the Court,
leniency is applied in reviewing the examinee's notebook in the failing subject. He
recalls, however, that he was provided a copy of the Confidential Memorandum but
this was long before the re-evaluation requested by respondent Lanuevo as the same
was received by him before the examination period (Vol. V, p. 61, rec.).
However, such revision by Atty. Tomacruz could not raise Galang's general average to
a passing grade because of his failing mark in three more subjects, including
Mercantile Law. For the revision of examinee Galang's notebook in Mercantile Law,
respondent Lanuevo neatly set the last phase of his quite ingenious scheme — by
securing authorization from the Bar Examination Committee for the examiner in
Mercantile Law tore-evaluate said notebook.
At the first meeting of the Bar Examination Committee on February 8, 1972,
respondent Lanuevo suggested that where an examinee failed in only one subject and
passed the rest, the examiner concerned would review the notebook. Nobody objected
to it as irregular and the Committee adopted the suggestion (Exhs. A & B-Montecillo,
Exh. 2-Pardo, Adm. Case No. 1164, pp. 41, 72, 63; Vol. Vi, p. 16, rec.).
At a subsequent meeting of the Bar Examination Committee, respondent Montecillo
was informed by respondent Lanuevo that a candidate passed all other subjects
except Mercantile Law. This information was made during the meeting within hearing
of the order members, who were all closely seated together. Respondent Montecillo
made known his willingness tore-evaluate the particular paper. The next day,
respondent Lanuevo handed to respondent Montecillo a bar candidate's notebook
with Examiner's Code Number 1613 with a grade of 61%. Respondent Montecillo then
reviewed the whole paper and after re-evaluating the answers, decided to increase
the final grade to 71%. The matter was not however thereafter officially brought to
the Committee for consideration or decision (Exhs. A& B-Montecillo, Adm. Case No.
1164, pp. 40-41, 70-71; Vol. V, pp. 33-34, rec.).
Respondent Montecillo declared that without being given the information that the
particular examinee failed only in his subject and passed all the others, he would not
have consented to make the re-evaluation of the said paper(Vol. V, p. 33,
rec.).Respondent Montecillo likewise added that there was only one instance he
21
Legal Ethics
remembers, which is substantiated by his personal records, that he had to change the
grade of an examinee after he had submitted his report, referring to the notebook of
examinee Ramon E. Galang, alias Roman E. Galang, with Examiner's Code Number
1613 and with Office Code Number 954 (Vol. V, pp. 34-35, rec.).
A day or two after February 5, 1972, when respondent Lanuevo went to the residence
of respondent-examiner Pardo to obtain the last bag of 200 notebooks, respondent
Lanuevo returned to the residence of respondent Pardo riding in a Volkswagen panel
of the Supreme Court of the Philippines with two companions. According to
respondent Lanuevo, this was around the second week of February, 1972, after the
first meeting of the Bar Examination Committee. respondent Lanuevo had with him
on that occasion an examinee's notebook bearing Examiner's Code No.
661. Respondent Lanuevo, after the usual amenities, requested respondent Pardo to
review and re-examine, if possible, the said notebook because, according to
respondent Lanuevo, the examine who owns that particular notebook obtained higher
grades in other subjects, the highest of which is 84% in Remedial Law. After clearing
with respondent Lanuevo his authority to reconsider the grades, respondent Pardo
re-evaluated the answers of the examine concerned, resulting in an increase of grade
from 57% of 66%. Said notebook has number 1622 as office code number. It belonged
to examinee Ernesto Quitaleg (Exhs. 1 & 2-Pardo, Adm. Case No. 1164, pp. 58-63; Vol.
V, pp. 12-24, 29-30, rec.).
II
Re: Administrative Case No. 1162, Victorio D. Lanuevo, respondent.
A and confidence that prevailed in and characterized his relationship with the five
UNAUTHORIZED RE-EVALUATION OF THE ANSWERS OF EXAMINE RAMON E. GALANG,
alias ROMAN E. GALANG, IN ALL FIVE (5) MAJOR SUBJECTS.
Respondent Victorio D. Lanuevo admitted having requested on his own initiative the
five examiners concerned to re-evaluate the five notebooks of Ramon E. Galang, alias
Roman E. Galang, that eventually resulted in the increase of Galang's average from
66.25% to the passing grade 74.15%, or a total increase of eight (8) weighted points,
more or less, that enabled Galang to hurdle the 1971 Bar examinations via a
resolution of the Court making 74% the passing average for that year's examination
without any grade below fifty percent (50%) in any subject. Galang thereafter took his
lawyer's oath. It is likewise beyond dispute that he had no authority from the Court
or the Committee to initiate such steps towards the said re-evaluation of the answers
of Galang or of other examinees.
Denying that he made representations to the examiners concerned that respondent
Galang failed only in their respective subjects and/or was on the borderline of passing,
Respondent Lanuevo sought to justify his actuations on the authority of the
aforequoted paragraph 4 of the Confidential Memorandum(Exhs. 1 and 1-A-Lanuevo,
Adm. Cases Nos. 1162 & 1164, p. 51, Adm. Case No. 1162; Vol. VII, p. 4, rec.)
distributed to the members of the Bar Examination Committee. He maintains that he
acted in good faith and "in his honest belief that the same merited re-evaluation; that
in doing so, it was not his intention to forsake or betray the trust reposed in him as
BarConfidant but on the contrary to do justice to the examinee concerned; and that
neither did he act in a presumptuous manner because the matter of whether or not
re-evaluation was in order was left alone to the examiners' decision ..." (Exh. 2-
Lanuevo, Adm. Case No. 1162, pp. 35-37, rec.).
But as openly admitted by him in the course of the investigation, the said confidential
memorandum was intended solely for the examiners to guide them in the initial
correction of the examination papers and never as a basis for him to even suggest to
the examiners the re-evaluation of the examination papers of the examinees (Vol. VII,
p. 23, rec.). Any such suggestion or request is not only presumptuous but also
offensive to the norms of delicacy.
We believe the Examiners — Pablo, Manalo, Montecillo, Tomacruz, Pardo and
Pamatian — whose declarations on the matter of the misrepresentations and
deceptions committed by respondent Lanuevo, are clear and consistent as well as
corroborate each other.
For indeed the facts unfolded by the declarations of the respondents-examiners
(Adm. Case No. 1164) and clarified by extensive cross-examination conducted during
the investigation and hearing of the cases show how respondent Lanuevo adroitly
maneuvered the passing of examinee Ramon E. Galang, alias Roman E. Galang in the
1971 Bar Examinations. It is patent likewise from the records that respondent
Lanuevo too undue advantage of the trust and confidence reposed in him by the
Court and the Examiners implicit in his position as BarConfidant as well as the trust
members of the 1971 Bar Examination Committee, who were thus deceived and
induced into re-evaluating the answers of only respondent Galang in five subjects
that resulted in the increase of his grades therein, ultimately enabling him to be
admitted a member of the Philippine Bar.
It was plain, simple and unmitigated deception that characterized respondent
Lanuevo's well-studied and well-calculated moves in successively representing
separately to each of the five examiners concerned to the effect that the examinee
failed only in his particular subject and/or was on the borderline of passing. To repeat,
the before the unauthorized re-evaluations were made, Galang failed in the five (5)
major subjects and in two (2) minor subjects while his general average was only
66.25% — which under no circumstances or standard could it be honestly claimed
that the examinee failed only in one, or he was on the borderline of passing. In fact,
before the first notebook of Galang was referred back to the examiner concerned for
re-evaluation, Galang had only one passing mark and this was in Legal Ethics and
Practical Exercises, a minor subject, with grade of 81%. The averages and individual
grades of Galang before and after the unauthorized re-evaluation are as follows:
BAI
22
Legal Ethics
1. Political Law Public
International Law 68% 78% = 10 pts.
or 30 weighted points
BAI
Labor Laws and Social
Legislations 67% 67% = no re-
evaluation made.
2. Civil Law 64% 75% = 1 points
or 33 weighted points.
Taxation 74% 74% = no re-
evaluation made.
3. Mercantile Law 61% 71% = 10 pts.
or 30 weighted points.
4. Criminal Law 64% 75% = 11 pts. or
22 weighted points.
5. Remedial Law 63.75% (64) 75.5% (75%) =
11 pts. or 44 weighted points.
Legal Ethics and Practical
Exercises 81% 81% = no re-
evaluation made.
————————————
General Weighted Averages 66.25% 74.15%
Hence, by the simple expedient of initiating the re-evaluation of the answers of
Galang in the five (5) subjects under the circumstances already narrated, Galang's
original average of 66.25% was increased to 74.15% or an increase of 7.9 weighted
points, to the great damage and prejudice of the integrity of the Bar examinations
and to the disadvantage of the other examinees. He did this in favor only of examinee
Galang, with the possible addition of examinees Ernesto Quitaleg and Alfredo Ty dela
Cruz. But only one notebook was re-evaluated for each of the latter who — Political
Law and Public International Law for Quitaleg and Mercantile Law for Ty dela Cruz.
The Office of the Bar Confidant, it must be stressed, has absolutely nothing to do in
the re-evaluation or reconsideration of the grades of examinees who fail to make the
passing mark before or after their notebooks are submitted to it by the Examiners.
After the corrected notebooks are submitted to him by the Examiners, his only
function is to tally the individual grades of every examinee in all subjects taken and
thereafter compute the general average. That done, he will then prepare a
comparative data showing the percentage of passing and failing in relation to a certain
average to be submitted to the Committee and to the Court and on the basis of which
the Court will determine the passing average, whether 75 or 74 or 73, etc. The Bar
Confidant has no business evaluating the answers of the examinees and cannot
assume the functions of passing upon the appraisal made by the Examiners
concerned. He is not the over-all Examiner. He cannot presume to know better than
the examiner. Any request for re-evaluation should be done by the examinee and the
same should be addressed to the Court, which alone can validly act thereon. A Bar
Confidant who takes such initiative, exposes himself to suspicion and thereby
compromises his position as well as the image of the Court.
Respondent Lanuevo's claim that he was merely doing justice to Galang without any
intention of betraying the trust and confidence reposed in him by the Court as Bar
Confidant, can hardly invite belief in the fact of the incontrovertible fact that he
singled out Galang's papers for re-evaluation, leaving out the papers of more than
ninety (90) examinees with far better averages ranging from 70% to 73.9% of which
he was fully aware (Vol. VI, pp. 46-47, 101, rec.), which could be more properly
claimed as borderline cases. This fact further betrays respondent Lanuevo's claim of
absolute good faith in referring back the papers of Galang to the Examiners for re-
evaluation. For certainly, as against the original weighted average of 66.25% of
Galang, there can hardly be any dispute that the cases of the aforesaid more than
ninety (90) examinees were more deserving of reconsideration. Hence, in trying to do
justice to Galang, as claimed by respondent Lanuevo, grave injustice was inflicted on
the other examinees of the 1971 Bar examinations, especially the said more than
ninety candidates. And the unexplained failure of respondent Lanuevo to apprise the
Court or the Committee or even the Bar Chairman of the fact of re-evaluation before
or after the said re-evaluation and increase of grades, precludes, as the same is
inconsistent with, any pretension of good faith.
His request for the re-evaluation of the notebook in Political Law and International
Law of Ernesto Quitaleg and the notebook in Mercantile Law of Alfredo Ty dela Cruz
to give his actuations in the case of Galang a semblance of impartiality, hoping that
the over ninety examinees who were far better situated than Galang would not give
him away. Even the re-evaluation of one notebook of Quitaleg and one notebook of
Ty dela Cruz violated the agreement of the members of the 1971 Bar Examination
Committee to re-evaluate when the examinee concerned fails only in one subject.
Quitaleg and Ty dela Cruz failed in four (4) and three (3) subjects respectively — as
hereinafter shown.
The strange story concerning the figures 954, the office code number given to
Galang's notebook, unveiled for the first time by respondent Lanuevo in his
suplemental sworn statement(Exh. 3- Lanuevo, Adm. Case No. 1162, pp. 45-47. rec.)
filed during the investigation with this Court as to why he pried into the papers of
Galang deserves scant consideration. It only serves to picture a man desperately
clutching at straws in the wind for support. Furthermore, it was revealed by
respondent Lanuevo for the first time only on August 27, 1973 or a period of more
than five 95) months after he filed his answer on March 19, 1973(Exh. 2-Lanuevo,
Adm. Case No. 1162, pp. 35-36, rec.), showing that it was just an after-thought.
B
REFERRAL OF EXAMINEE ALFREDO TY DELA CRUZ NOTEBOOK IN MERCHANTILE LAW
TO RAISE HIS GRADE OF 47% TO 50% TO EXAMINER MANUEL MONTECILLO AND OF
23
Legal Ethics
EXAMINEE ERNESTO QUITALEG'S NOTEBOOK IN POLITICAL LAW TO EXAMINER
BERNARDO PARDO FOR RE-EVALUATION, RESULTING IN THE INCREASE OF HIS GRADE
IN THAT SUBJECT FROM 57% TO 66%.
Likewise, respondent Victorio D. Lanuevo admitted having referred back the aforesaid
notebooks on Mercantile Law and Political Law respectively of Alfredo Ty dela Cruz
and Ernesto Quitaleg to the Examiners concerned.
The records are not clear, however, under what circumstances the notebooks of Ty
dela Cruz and Quitaleg were referred back to the Examiners concerned. Respondent
Lanuevo claimed that these two cases were officially brought to the Bar Examination
Committee during its first meeting (Vol. VI, pp. 50-51, rec.) and the latter decided to
refer them back to the Examiners concerned for re-evaluation with respect to the
case of Quitaleg and to remove the disqualification in the case of Ty dela Cruz(Vol. VI,
pp. 33-39, 84-86, rec.). Respondent Lanuevo further claimed that the date of these
two cases were contained in a sheet of paper which was presented at the said first
meeting of the Committee (Vol. VI, pp. 39-43, 49-51, rec.). Likewise a record of the
dates of every meeting of the Committee was made by respondent Lanuevo (Vol. VI,
p. 28, rec.). The alleged sheet containing the date of the two examinees and record
of the dates of the meeting of the Committee were not presented by respondent
Lanuevo as, according to him, he left them inadvertently in his desk in the Confidential
Room when he went on leave after the release of the Bar results (Vol. VI, pp. 28, 41-
45, rec.). It appears, however, that the inventory conducted by officials of the Court
in the Confidential Room of respondent Lanuevo did not yield any such sheet of
record (Exh. X, Adm. Case No. 1162, p. 74, rec.; Vol. VIII, pp. 11-13, 20-22, 29-31, rec.).
Respondent Examiner Montecillo, Mercantile Law, maintained that there was only
one notebook in Mercantile Law which was officially brought to him and this is
substantiated by his personal file and record (Vol. VI, pp. 34-35, rec.). According to
him, this notebook's examiner code number is 1613 (Vol. V, p.35, rec.) and is owned
by Ramon E. Galang, alias Roman E. Galang. It appears, however, that the original
grade of 47% in Mercantile Law of Ty dela Cruz was changed to 50% as appearing in
the cover of the notebook of said examinee and the change is authenticated with the
initial of Examiner Montecillo. He was present when respondent Lanuevo presented
in evidence the notebook of Ty dela Cruz bearing Examiner code number 951 and
Office Code Number 110 as Exhibit 9-Lanuevo in Administrative Case No. 1162, and
the figures 47 crossed out, replaced by the figures 50 bearing the initial of Examiner
Montecillo as Exhibit 9-a-Lanuevo (Adm. Case No. 1162, p. 48, rec.; Vol. VI, pp. 23-24,
Vol. VIII, p. 4, rec.); but Atty. Montecillo did not interpose any objection to their
admission in evidence.
In this connection, respondent Examiner Pardo testified that he remembers a case of
an examinee presented to the Committee, who obtained passing marks in all subjects
except in one and the Committee agreed to refer back to the Examiner concerned the
notebook in the subject in which the examinee failed (Vol. V, pp. 15-16, rec.). He
cannot recall the subject, but he is certain that it was not Political Law (Vol. V, p. 16,
rec.).Further, Pardo declared that he is not aware of any case of an examinee who
was on the borderline of passing but who got a grade below 50% in one subject that
was taken up by the Committee (Vol. V, pp. 16-17, rec.).
Examiner Montecillo testified that it was the notebook with Examiner Code Number
1613 (belonging to Galang) which was referred to the Committee and the Committee
agreed to return it to the Examiner concerned. The day following the meeting in which
the case of an examinee with Code Number 1613 was taken up, respondent Lanuevo
handed him said notebook and he accordingly re-evaluated it. This particular
notebook with Office Code Number 954 belongs to Galang.
Examiner Tomacruz recalled a case of an examinee whose problem was Mercantile
Law that was taken up by the Committee. He is not certain of any other case brought
to the Committee (Vol. V, pp. 59-61, rec.). Pardo declared that there was no case of
an examinee that was referred to the Committee that involved Political Law. He re-
evaluated the answers of Ernesto Quitaleg in Political Law upon the representation
made by respondent Lanuevo to him.
As heretofore stated, it was this consensus at the meeting on February 8, 1972 of the
members of the Committee that where an examinee failed in only one subject and
passed all the others, the Examiner in whose subject the examinee failed should re-
evaluate or recheck the notebook (Vol. V, p. 16, rec.: Exh. 2-Pardo, allegation No. 9,
Adm. Case No. 1164, pp. 60-63, Exh. A-Montecillo, Allegation No. 2, Adm. Case No.
1164, pp. 40-41, and Exh. B-Montecillo, Adm. Case No. 1164, p. 72, rec.).
At the time the notebook of Ernesto Quitaleg in Political Law with a grade of 57% was
referred back to Examiner Pardo, said examinee had other failing grades in three (3)
subjects, as follows:
Labor Laws 3%
Taxation 69%
Mercantile Law 68%
Ernesto Quitaleg's grades and averages before and after the re-evaluation of his
grade in Political Law are as follows:
BA
Political Law 57% 66% = 9 pts. or 27
weighted points
Labor Laws 73% 73% = No reevaluation
Civil Law 75% 75% = "
Taxation 69% 69% = "
Mercantile Law 68% 68% = "
Criminal Law 78% 78% = "
Remedial Law 85% 85% = "
Legal Ethics 83% 83% = "
————————————————
Average (weighted) 73.15% 74.5%
(Vol. VI, pp. 26-27; Exhs. 10 and 10-A-Lanuevo, Adm. Case No. 1162, rec.)
24
Legal Ethics

Alfredo Ty dela Cruz, at the time his notebook in Mercantile Law was referred to A
Examiner Montecillo to remove the disqualification grade of 47% in said subject, had The name of respondent Ramon E. Galang, alias Roman E. Galang, should likewise be
two (2) other failing grades. These are: stricken off the Roll of Attorneys. This is a necessary consequence of the un-
Political Law 70% authorized re-evaluation of his answers in five(5) major subjects — Civil Law, Political
Taxation 72% and International Law, Criminal Law, Remedial Law, and Mercantile Law.
His grades and averages before and after the disqualifying grade was removed are as The judicial function of the Supreme Court in admitting candidates to the legal
follows: profession, which necessarily involves the exercise of discretion, requires: (1) previous
BA established rules and principles; (2) concrete facts, whether past or present, affecting
Political Law 70% 70% = No reevaluation determinate individuals; and (3) a decision as to whether these facts are governed by
Labor Laws 75% 75% = " the rules and principles (In re: Cunanan — Flunkers' Petition for Admission to the Bar
Civil Law 89% 89% = " -- 94 Phil. 534, 544-545). The determination of whether a bar candidate has obtained
Taxation 72% 72% = " the required passing grade certainly involves discretion (Legal and Judicial Ethics,
Mercantile Law 47% 50% = 3 pts. or 9 Justice Martin, 1969 ed., p. 13).
weighted points In the exercise of this function, the Court acts through a Bar Examination Committee,
Criminal Law 78% 78% = no reevaluation composed of a member of the Court who acts as Chairman and eight (8) members of
Remedial Law 88% 88% = " the Bar who act as examiners in the eight (8) bar subjects with one subject assigned
Legal Ethics 79% 79% = " to each. Acting as a sort of liaison officer between the Court and the Bar Chairman,
————————————————— on one hand, and the individual members of the Committee, on the other, is the Bar
Weighted Averages 74.95% 75.4% Confidant who is at the same time a deputy clerk of the Court. Necessarily, every act
(Vol. VI, pp. 26-27, rec.). of the Committee in connection with the exercise of discretion in the admission of
The re-evaluation of the answers of Quitaleg in Political Law and the answers of Ty examinees to membership of the Bar must be in accordance with the established rules
dela Cruz in Mercantile Law, violated the consensus of the Bar Examination of the Court and must always be subject to the final approval of the Court. With
Committee in February, 1971, which violation was due to the misrepresentation of respect to the Bar Confidant, whose position is primarily confidential as the
respondent Lanuevo. designation indicates, his functions in connection with the conduct of the Bar
It must be stated that the referral of the notebook of Galang in Mercantile Law to examinations are defined and circumscribed by the Court and must be strictly
Examiner Montecillo can hardly be said to be covered by the consensus of the Bar adhered to.
Examination Committee because even at the time of said referral, which was after the The re-evaluation by the Examiners concerned of the examination answers of
unauthorized re-evaluation of his answers of four (4) subjects, Galang had still failing respondent Galang in five (5) subjects, as already clearly established, was initiated by
grades in Taxation and Labor Laws. His re-evaluated grade of 74.5% in Remedial Law Respondent Lanuevo without any authority from the Court, a serious breach of the
was considered 75% under the Confidential Memorandum and was so entered in the trust and confidence reposed by the Court in him as Bar Confidant. Consequently, the
record. His grade in Mercantile Law as subsequently re-evaluated by Examiner re-evaluation that enabled respondent Galang to pass the 1971 Bar examinations and
Montecillo was 71%. to be admitted to the Bar is a complete nullity. The Bar Confidant does not possess
Respondent Lanuevo is therefore guilty of serious misconduct — of having betrayed any discretion with respect to the matter of admission of examinees to the Bar. He is
the trust and confidence reposed in him as Bar Confidant, thereby impairing the not clothed with authority to determine whether or not an examinee's answers merit
integrity of the Bar examinations and undermining public faith in the Supreme Court. re-evaluation or re-evaluation or whether the Examiner's appraisal of such answers is
He should be disbarred. correct. And whether or not the examinee benefited was in connivance or a privy
As to whether Ernesto Quitaleg and Alfredo Ty dela Cruz should be disbarred or their thereto is immaterial. What is decisive is whether the proceedings or incidents that
names stricken from the Roll of Attorneys, it is believed that they should be required led to the candidate's admission to the Bar were in accordance with the rules.
to show cause and the corresponding investigation conducted. B
III Section 2 of Rule 138 of the Revised Rules of Court of 1964, in connection, among
Re: Administrative Case No. 1163, Ramon E. Galang, alias Roman E. Galang, others, with the character requirement of candidates for admission to the Bar,
respondent. provides that "every applicant for admission as a member of the Bar must be ... of

25
Legal Ethics
good moral character ... 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." Prior to
1964, or under the old Rules of Court, a bar applicant was required to produce before
the Supreme Court satisfactory testimonials of good moral character (Sec. 2, Rule
127). Under both rules, every applicant is duty bound to lay before the Court all his
involvement in any criminal case, pending or otherwise terminated, to enable the
Court to fully ascertain or determine applicant's moral character. Furthermore, as to
what crime involves moral turpitude, is for the supreme Court to determine. Hence,
the necessity of laying before or informing the Court of one's personal record —
whether he was criminally indicted, acquitted, convicted or the case dismissed or is
still pending — becomes more compelling. The forms for application to take the Bar
examinations provided by the Supreme Court beginning the year 1965 require the
disclosure not only of criminal cases involving moral turpitude filed or pending against
the applicant but also of all other criminal cases of which he has been accused. It is of
course true that the application form used by respondent Galang when he took the
Bar for the first time in 1962 did not expressly require the disclosure of the applicant's
criminal records, if any. But as already intimated, implicit in his task to show
satisfactory evidence or proof of good moral character is his obligation to reveal to
the Court all his involvement in any criminal case so that the Court can consider them
in the ascertainment and determination of his moral character. And undeniably, with
the applicant's criminal records before it, the Court will be in a better position to
consider the applicant's moral character; for it could not be gainsaid that an
applicant's involvement in any criminal case, whether pending or terminated by its
dismissal or applicant's acquittal or conviction, has a bearing upon his character or
fitness for admission to the Bar. In 1963 and 1964, when respondent Galang took the
Bar for the second and third time, respectively, the application form provided by the
Court for use of applicants already required the applicant to declare under oath that
"he has not been accused of, indicted for or convicted by any court or tribunal of any
offense involving moral turpitude; and that there is no pending case of that nature
against him." By 1966, when Galang took the Bar examinations for the fourth time,
the application form prepared by the Court for use of applicants required the
applicant to reveal all his criminal cases whether involving moral turpitude or not. In
paragraph 4 of that form, the applicant is required under oath to declare that "he has
not been charged with any offense before a Fiscal, Municipal Judge, or other officer;
or accused of, indicted for or convicted by any court or tribunal of any crime involving
moral turpitude; nor is there a pending case against him" (Adm. Case No. 1163, p. 56,
rec.). Yet, respondent Galang continued to intentionally withhold or conceal from the
Court his criminal case of slight physical injuries which was then and until now is
pending in the City Court of Manila; and thereafter repeatedly omitted to make
mention of the same in his applications to take the Bar examinations in 1967, 1969
and 1971.
All told, respondent Ramon E. Galang, alias Roman E. Galang, is guilty of fraudulently
concealing and withholding from the Court his pending criminal case for physical
injuries in 1962, 1963, 1964, 1966, 1967, 1969 and 1971; and in 1966, 1967,1969 and
1971, he committed perjury when he declared under oath that he had no pending
criminal case in court. By falsely representing to the Court that he had no criminal
case pending in court, respondent Galang was allowed unconditionally to take the Bar
examinations seven (7) times and in 1972 was allowed to take his oath.
That the concealment of an attorney in his application to take the Bar examinations
of the fact that he had been charged with, or indicted for, an alleged crime, is a ground
for revocation of his license to practice law is well — settled (see 165 ALR 1151, 7 CJS
741). Thus:
[1] It requires no argument to reach the conclusion that the
respondent, in withholding from the board of law examiners and
from the justice of this court, to whom he applied for admission,
information respecting so serious a matter as an indictment for a
felony, was guilty of fraud upon the court (cases cited).
[2] It is equally clear that, had the board of law examiners, or the
judge to whom he applied for admission, been apprised of the
true situation, neither the certificate of the board nor of the judge
would have been forthcoming (State ex rel. Board of Law
Examiners v. Podell, 207 N — W — 709 — 710).
The license of respondent Podell was revoke and annulled, and he was required to
surrender to the clerk of court the license issued to him, and his name was stricken
from the roll of attorneys (p. 710).
Likewise in Re Carpel, it was declared that:
[1] The power to admit to the bar on motion is conferred in the
discretion of the Appellate Division.' In the exercise of the
discretion, the court should be informed truthfully and frankly of
matters tending to show the character of the applicant and his
standing at the bar of the state from which he comes. The finding
of indictments against him, one of which was still outstanding at
the time of his motion, were facts which should have been
submitted to the court, with such explanations as were available.
Silence respecting them was reprehensible, as tending to deceive
the court (165 NYS, 102, 104; emphasis supplied).
Carpel's admission to the bar was revoked (p. 105).
Furthermore, respondent's persistent denial of his involvement in any criminal case
despite his having been apprised by the Investigation of some of the circumstances
of the criminal case including the very name of the victim in that case(he finally
admitted it when he was confronted by the victim himself, who was called to testify
thereon), and his continued failure for about thirteen years to clear his name in that
criminal case up to the present time, indicate his lack of the requisite attributes of
26
Legal Ethics
honesty, probity and good demeanor. He is therefore unworthy of becoming a
member of the noble profession of law.
While this aspect of the investigation was not part of the formal resolution of the
Court requiring him to explain why his name should not be stricken from the Roll of
Attorneys, respondent Galang was, as early as August, 1973, apprised of his omission
to reveal to the Court his pending criminal case. Yet he did not offer any explanation
for such omission.
Under the circumstances in which respondent Ramon E. Galang, alias Roman E.
Galang, was allowed to take the Bar examinations and the highly irregular manner in
which he passed the Bar, WE have no other alternative but to order the surrender of
his attorney's certificate and the striking out of his name from the Roll of Attorneys.
For as WE said in Re Felipe del Rosario:
The practice of the law is not an absolute right to be granted
every one who demands it, but is a privilege to be extended or
withheld in the exercise of sound discretion. The standards of the
legal profession are not satisfied by conduct which merely
enables one to escape the penalties of the criminal law. It would
be a disgrace to the Judiciary to receive one whose integrity is
questionable as an officer of the court, to clothe him with all the
prestige of its confidence, and then to permit him to hold himself
as a duly authorized member of the bar (citing American cases)
[52 Phil. 399-401].
What WE now do with respondent Ramon E. Galang, alias Roman E. Galang, in this
present case is not without any precedent in this jurisdiction. WE had on several
occasions in the past nullified the admission of successful bar candidates to the
membership of the Bar on the grounds, among others, of (a)misrepresentations of,
or false pretenses relative to, the requirement on applicant's educational attainment
[Tapel vs. Publico, resolution of the Supreme Court striking off the name of Juan T.
Publico from the Roll of Attorneys on the basis of the findings of the Court
Investigators contained in their report and recommendation, Feb. 23, 1962; In re:
Telesforo A. Diao, 7 SCRA 475-478; (b) lack of good moral character [In re: Peralta,
101 Phil. 313-314]; and (c) fraudulent passing of the Bar examinations [People vs.
Romualdez -- re: Luis Mabunay, 57 Phil. 151; In re: Del Rosario, 52 Phil. 399 and People
vs. Castro and Doe, 54 Phil. 42]. In the cases of Romualdez (Mabunay) and Castro, the
Court found that the grades of Mabunay and Castro were falsified and they were
convicted of the crime of falsification of public documents.
IV
RE: Administrative Case No. 1164, Assistant Solicitor General Bernardo Pardo (now
CFI Judge), Judge Ramon Pamatian(Later Associate Justice of the Court of Appeals,
now deceased)Atty. Manuel G. Montecillo, Atty. Fidel Manalo, Atty. Manuel Tomacruz
and Atty. Guillermo Pablo, Jr., respondents.
All respondents Bar examiners candidly admitted having made the re-evaluation
and/or re-correction of the papers in question upon the misrepresentation of
respondent BarConfidant Lanuevo. All, however, professed good faith; and that they
re-evaluated or increased the grades of the notebooks without knowing the identity
of the examinee who owned the said notebooks; and that they did the same without
any consideration or expectation of any. These the records clearly demonstrate and
WE are of the opinion and WE so declare that indeed the respondents-examiners
made the re-evaluation or re-correcion in good faith and without any consideration
whatsoever.
Considering however the vital public interest involved in the matter of admission of
members to the Bar, the respondents bar examiners, under the circumstances, should
have exercised greater care and caution and should have been more inquisitive
before acceding to the request of respondent Bar Confidant Lanuevo. They could have
asked the Chairman of the Bar Examination Committee, who would have referred the
matter to the Supreme Court. At least the respondents-examiners should have
required respondent Lanuevo to produce or show them the complete grades and/or
the average of the examinee represented by respondent Lanuevo to have failed only
in their respective and particular subject and/or was on the borderline of passing to
fully satisfy themselves that the examinee concerned was really so circumstances.
This they could have easily done and the stain on the Bar examinations could have
been avoided.
Respondent Bar examiners Montecillo, Pamatian, and Manalo claimed and so
declared under oath that the answers of respondent Galang really deserved or
merited the increased grades; and so with respondent Pardo in connection with the
re-evaluation of Ernesto Quitaleg's answers in Political Law. With respect to
respondents Tomacruz and Pablo, it would appear that they increased the grades of
Galang in their respective subject solely because of the misrepresentations of
Respondent Lanuevo. Hence, in the words of respondent Tomacruz: "You brought to
me one paper and you said that this particular examinee had almost passed, however,
in my subject he received 60 something, I cannot remember the exact average and if
he would get a few points higher, he would get a passing average. I agreed to do that
because I did not wish to be the one causing his failure. ..." (Vol. V, pp. 60-61, rec.; see
also allegations 3 and 4, Exh. 1-Tomacruz, Adm. Case No. 1164, p. 69, rec.; emphasis
ours). And respondent Pablo: "... he told me that this particular examinee seems to
have passed in allot her subject except this subject and that if I can re-evaluate this
examination notebook and increase the mark to at least 75, this particular examinee
will pass the bar examinations so I believe I asked him 'Is this being done?' and he said
'Yes, that is the practice used to be done before to help out examinees who are failing
in just one subject' so I readily acceded to his request and said 'Just leave it with me
and I will try to re-evaluate' and he left it with me and what i did was to go over the
book and tried to be as lenient as I could. While I did not mark correct the answers
which were wrong, what I did was to be more lenient and if the answers was correct
27
Legal Ethics
although it was not complete I raise the grade so I had a total of 78 instead of 68 and
what I did was to correct the grading sheet accordingly and initial the changes" (Vol.
V, pp. 44-45, rec.; emphasis supplied).
It could not be seriously denied, however, that the favorable re-evaluations made by
respondents Pamatian, Montecillo, Manalo and Pardo notwithstanding their
declarations that the increases in grades they gave were deserved by the examinee
concerned, were to a certain extent influenced by the misrepresentation and
deception committed by respondent Lanuevo. Thus in their own words:
Montecillo —
Q And by reason of that information you
made the re-evaluation of the paper?
A Yeas, your Honor.
Q Would you have re-evaluated the paper of
your own accord in the absence of such
information?
A No, your Honor, because I have submitted
my report at that time" (Vol. V, p. 33, rec.; see
also allegations in paragraphs 2, 3, 4 & 5,
Affidavit of April 17, 1972, Exh. B-Montecillo;
allegation No. 2, Answer dated march 19,
1973, Exh. A-Montecillo, Adm. Case No.
1164, pp. 40-41, and 72, rec.).
Pamatian —
3. That sometime in the later part of January of this year, he
brought back to me an examination booklet in Civil Law for re-
evaluation because according to him the owner of the paper is on
the borderline and if I could reconsider his grade to 75% the
candidate concerned will get passing mark;
4. That taking his word for it and under the belief that it was really
the practice and policy of the Supreme Court to do so and in the
further belief that I was just manifesting cooperation in doing so,
I re-evaluated the paper and reconsidered the grade to 75%; ..."
(Exh. 2-Pamatian, Adm. Case No. 1164, p. 55, rec.); and
5. That the above re-evaluation was made in good faith and under
the belief that I am authorized to do so in view of them is
representation of said Atty. Victorio Lanuevo, ..." (Exh. 1-
Pamatian, Adm. Case No. 1164, pp. 33-34, rec.).
Manalo —
(c) In revising the grade of the particular examinee concerned,
herein respondent carefully evaluated each and every answer
written in the notebook. Testing the answer by the criteria laid
down by the Court, and giving the said examinee the benefit of
the doubt in view of Mr. Lanuevo's representation that it was only
in that particular subject that said examinee failed, herein
respondent became convinced that the said examinee deserved
a higher grade than that previously given him, but he did not
deserve, in herein respondent's honest appraisal, to be given the
passing grade of
75%. ..."(allegation 5-c, p. 38, Exh. 1-Manalo, rec.; emphasis
supplied).
Pardo —
... I considered it entirely humanly possible to have erred,
because I corrected that particular notebook on December
31,1971, considering especially the representation of the Bar
Confidant that the said examinee had obtained higher grades in
other subjects, the highest of which was 84% in Remedial Law, if
I recall
correctly. ... (allegation 7, Exh. 2-Pardo, Adm. Case No. 1164, p.
62, rec.; emphasis supplied).
With the misrepresentations and the circumstances utilized by respondent Lanuevo
to induce the herein examiners to make the re-evaluation adverted to, no one among
them can truly claim that the re-evaluation effected by them was impartial or free
from any improper influence, their conceded integrity, honesty and competence
notwithstanding.
Consequently, Galang cannot justifiably claim that he deserved the increased grades
given after the said re-evaluations(Galang's memo attached to the records, Adm. Case
No. 1163).
At any rate, WE are convinced, in the light of the explanations of the respondents-
examiners, which were earlier quoted in full, that their actuations in connection with
the re-evaluation of the answers of Galang in five (5) subjects do not warrant or
deserve the imposition of any disciplinary action. WE find their explanations
satisfactory. Nevertheless, WE are constrained to remind herein respondents-
examiners that their participation in the admission of members to the Bar is one
impressed with the highest consideration of public interest — absolute purity of the
proceedings — and so are required to exercise the greatest or utmost case and
vigilance in the performance of their duties relative thereto.
V
Respondent Atty. Victorio D. Lanuevo, in his memorandum filed on November 14,
1973, claimed that respondent-examiner Pamatian "in bringing up this unfounded
cause, or lending undue assistance or support thereto ... was motivated with
vindictiveness due to respondent's refusal to be pressured into helping his
(examiner's) alleged friend — a participant in the 1971 Bar Examinations whom said
examiner named as Oscar Landicho and who, the records will show, did not pass said
examinations (p. 9, Lanuevo's memo, Adm. Case No. 1162).
28
Legal Ethics
It must be stated that this is a very serious charge against the honor and integrity of
the late Justice Ramon Pamatian, who passed away on October 18, 1973 and
therefore cannot refute Lanuevo's insinuations. Respondent Victorio D. Lanuevo did
not bring this out during the investigation which in his words is "essential to his
defense. "His pretension that he did not make this charge during the investigation
when Justice Pamatian was still alive, and deferred the filing of such charge against
Justice Pamatian and possibly also against Oscar Landicho before the latter departed
for Australia "until this case shall have been terminated lest it be misread or
misinterpreted as being intended as a leverage for a favorable outcome of this case
on the part of respondent or an act of reprisal", does not invite belief; because he
does not impugn the motives of the five other members of the 1971 Bar Examination
Committee, who also affirmed that he deceived them into re-evaluating or revising
the grades of respondent Galang in their respective subjects.
It appears, however, that after the release of the results of the 1971 Bar examinations,
Oscar Landicho, who failed in that examinations, went to see and did see Civil Law
examiner Pamatian for the purpose of seeking his help in connection with the 1971
Bar Examinations. Examiner Pamatian advised Landicho to see the Chairman of the
1971 Bar Examination Committee. Examiner Pamatian mentioned in passing to
Landicho that an examination booklet was re-evaluated by him (Pamatian) before the
release of the said bar results (Vol. V, pp. 6-7, rec). Even though such information was
divulged by respondent Pamatian after the official release of the bar results, it
remains an indecorous act, hardly expected of a member of the Judiciary who should
exhibit restraint in his actuations demanded by resolute adherence to the rules of
delicacy. His unseemly act tended to undermine the integrity of the bar examinations
and to impair public faith in the Supreme Court.
VI
The investigation failed to unearth direct evidence that the illegal machination of
respondent Lanuevo to enable Galang to pass the 1971 Bar examinations was
committed for valuable consideration.
A his 1971 Statement of Assets and Liabilities filed on January 17,
There are, however, acquisitions made by Respondent Lanuevo immediately after the
official release of the 1971 Bar examinations in February, 1972, which may be out of
proportion to his salary as Bar Confidant and Deputy Clerk of Court of the Supreme
Court.
1. On April 5, 1972, respondent Lanuevo and his wife acquired
from the BF Homes, Inc. a house and lot with an area of 374
square meters, more or less, for the amount of P84,114.00. The
deed of sale was dated March 5, 1972 but was notarized only on
April 5, 1972. On the same date, however, respondent Lanuevo
and his wife executed two (2)mortgages covering the said house
and lot in favor of BF Homes, Inc. in the total amount of
P67,291.20 (First mortgage — P58,879.80, Entry No. 90913: date
of instrument — April 5, 1972, date of inscription — April 20,
1972: Second mortgage — P8,411.40, Entry No. 90914: date of
instrument — April 5, 1972, date of inscription — April 20, 1972).
[D-2 to D-4, Vol. III, rec.]. Respondent Lanuevo paid as down
payment the amount of only P17,000.00, which according to him
is equivalent to 20%, more or less, of the purchase price of
P84,114.00. Respondent Lanuevo claimed that P5,000.00 of the
P17,000.00 was his savings while the remaining the P12,000.00
came from his sister in Okinawa in the form of a loan and received
by him through a niece before Christmas of 1971 in dollars
($2000) [Vol. VII, pp. 41-48; Vol. VIII, pp. 2-3, rec.]
It appears, however, that his alleged P5,000.00
savings and P12,000.00 loan from his sister; are not fully reflected
and accounted for in respondent's 1971 Statement of Assets and
Liabilities which hefiled on January 17, 1972.
In said 1971 statement, respondent Lanuevo listed under Assets
a bank deposit in the amount of only P2,000.00. In his 1972
statement, his bank deposit listed under Assets was in the
amount of P1,011.00, which shows therefore that of the
P2,000.00 bank deposit listed in his 1971 statement under Assets,
only the amount of P989.00 was used or withdrawn. The amount
of P18,000.00 receivable listed under Assets in his
1971 statement was not realized because the transaction therein
involved did not push through (Statement of Assets and Liabilities
of respondent Lanuevo from 1965 to 1972; Vol. VIII, pp. 47-48,
rec.).
Likewise, the alleged December, 1971 $2000 loan of respondent
from his married sister in Okinawa is extremely doubtful. In the
first place, said amount of $2000 (P12,000.00) is not reflected in
1972. Secondly, the alleged note which he allegedly received
from his sister at the time he received the $200 was not even
presented by respondent during the investigation. And according
to Respondent Lanuevo himself, while he considered this a loan,
his sister did not seriously consider it as one. In fact, no mode or
time of payment was agreed upon by them. And furthermore,
during the investigation, respondent Lanuevo promised to furnish
the Investigator the address of his sister in Okinawa. Said promise
was not fulfilled as borne out by the records. Considering that
there is no showing that his sister, who has a family of her own,
is among the top earners in Okinawa or has saved a lot of money
to give to him, the conclusion, therefore, that the P17,000.00 of
29
Legal Ethics
respondent Lanuevo was either an ill-gotten or undeclared
income is inevitable under the foregoing circumstances.
On August 14, 1972, respondent Lanuevo and his wife mortgaged
their BF Homes house and lot to the GSIS for the amount of
P65,000.00 (Entry No. 4992: August 14, 1972 — date of
instrument; August 23, 1972 — date of inscription). On February
28, 1973, the second mortgage in favor of BF Homes, Entry No.
90914, was redeemed by respondent and was subsequently
cancelled on March 20,1973, Entry No. 30143. Subsequently, or
on March 2, 1973 the first mortgage in favor of BF Homes, Entry
No. 90913 was also redeemed by respondent Lanuevo and
thereafter cancelled on March 20, 1973, (See D-2 to D-4, Vol. III,
rec.). Hence, only the mortgage in favor of GSIS remains as the
encumbrance of respondent's house and lot. According to
respondent Lanuevo, the monthly amortization of the GSIS
mortgage is P778.00 a month, but that since May of 1973, he was
unable to pay the same. In his 1972 Statement of Assets and
Liabilities, which he filed in connection with his resignation and
retirement (filed October 13, 1972), the house and lot declared
as part of his assets, were valued at P75,756.90. Listed, however,
as an item in his liabilities in the same statement was the GSIS real
estate loan in the amount of P64,200.00 (1972 Statement of
Assets and Liabilities).
2. Listed as an asset in his 1972 Statement of Assets and
Liabilities is a 1956 VW car valued at P5,200.00. That he acquired
this car sometime between January, 1972 and November, 1972
could be inferred from the fact that no such car or any car was
listed in his statement of assets and liabilities of 1971 or in the
years previous to 1965. It appears, however, that his listed total
assets, excluding receivables in his 1971 Statement was
P19,000.00, while in his 1972 (as of November, 1972) Statement,
his listed total assets, excluding the house and lot was
P18,211.00, including the said 1956 VW car worth P5,200.00.
The proximity in point of time between the official release of the
1971 Bar examinations and the acquisition of the above-
mentioned properties, tends to link or tie up the said acquisitions
with the illegal machination committed by respondent Lanuevo
with respect to respondent Galang's examination papers or to
show that the money used by respondent Lanuevo in the
acquisition of the above properties came from respondent
Galang in consideration of his passing the Bar.
During the early stage of this investigation but after the Court had informed
respondent Lanuevo of the serious irregularities in the 1971 Bar examinations alleged
in Oscar Landicho's Confidential Letter and in fact, after Respondent Lanuevo had filed
on April 12, 1972 his sworn statement on the matter, as ordered by the Court,
respondent Lanuevo surprisingly filed his letter or resignation on October 13, 1972
with the end in view of retiring from the Court. His resignation before he was required
to show cause on March 5, 1973 but after he was informed of the said irregularities,
is indicative of a consciousness of guilt.
It must be noted that immediately after the official release of the results of the 1971
Bar examinations, respondent Lanuevo went on vacation and sick leave from March
16, 1972 to January 15, 1973, obtaining the case value thereof in lump sum in the
amount of P11,000.00. He initially claimed at the investigation that h e used a part
thereof as a down payment for his BF Homes house and lot (Vol. VII, pp. 40-48, rec.),
which he bought on April 5, 1972.
Criminal proceedings may be instituted against respondent Lanuevo under Section 3
(a & e) in relation to Section 9 of Republic Act No. 1379 (Anti-Graft Law) for:
(a) Persuading inducing or influencing another public officer to
perform an act constituting a violation of rules and regulations
duly promulgated by competent authority or an offense in
connection with the official duties of the latter, or allowing
himself to be presented, induced, or influenced to commit such
violation or offense.
xxx xxx xxx
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his official
administrative or judicial functions through manifest partiality,
evidence bad faith or gross inexcusable negligence. This provision
shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or
other concessions.
Section 8 of said Republic Act No. 3019 authorizes the dismissal or removal of a public
officer once it is determined that his property or money "is manifestly out of
proportion to his salary as such public officer or employee and to his other lawful
income and the income from legitimately acquired property ... " (Sec. 2, Rep. Act
1379; Sec. 8, Rep. Act 3019).
It should be stressed, however, that respondent Lanuevo's aforementioned
Statements of Assets and Liabilities were not presented or taken up during the
investigation; but they were examined as they are part of the records of this Court.
B
30
Legal Ethics
There are likewise circumstances indicating possible contacts between respondent
Ramon E. Galang and/or his father and respondent Victorio D. Lanuevo before the
latter become the bar Confidant.
1. Respondent Ramon E. Galang was a beneficiary of the G.I Bill of Rights educational
program of the Philippine Veterans Board from his high school days — 1951 to
1955 — up to his pre-law studies at the MLQ Educational Institution (now MLQ
University) — 1955 to 1958. From 1948 to 1958, respondent Victorio D. Lanuevo was
connected with the Philippine Veterans Board which is the governmental agency
entrusted with the affairs of our veterans including the implementation of the
Veterans Bill of Rights. From 1955 to 1958, Respondent Lanuevo successively held the
position of Junior Investigator, Veterans Claims Investigator, Supervising Veterans
Investigator and Veterans Claims Investigator (Service Record, p. 9, Adm. Case No.
1162). During that period of time, therefore, respondent Lanuevo had direct contacts
with applicants and beneficiaries of the Veterans Bill of Rights. Galang's educational
benefits was approved on March 16, 1954, retroactive as of the date of waiver — July
31, 1951, which is also the date of filing (A, Vol. IV, rec.).
It is alleged by respondent Ramon E. Galang that it was his father who all the time
attended to the availment of the said educational benefits and even when he was
already in Manila taking up his pre-law at MLQ Educational Institution from 1955 to
1958. In 1955, respondent Galang was already 19 years old, and from 1957 to 1958,
he was employed as a technical assistant in the office of Senator Roy (Vol. V, pp. 79-
80, 86-87, rec.).[Subsequently, during the investigation, he claimed that he was the
private secretary of Senator Puyat in 1957 (Vol. VI, pp. 12-13, rec.)]. It appears,
however, that a copy of the notice-letter dated June 28, 1955 of the Philippine
Veterans Board to the MLQ Educational Institution on the approval of the transfer of
respondent Galang from Sta. Rita Institute to the MLQ Educational Institution
effective the first semester of the school year 1955-56 was directly addressed and
furnished to respondent Ramon E. Galang at 2292 Int. 8 Banal St., Tondo, Manila (A-
12, Vol. IV, rec.).
Respondent Ramon E. Galang further declared that he never went to the Office of the
Philippine Veterans to follow up his educational benefits and claimed that he does
not even know the location of the said office. He does not also know whether
beneficiaries of the G.I. Bill of Rights educational benefits are required to go to the
Philippine Veterans Board every semester to submit their ratings (Vol. V, p. 86, rec.).
But respondent Galang admits that he had gone to the GSIS and City Court of Manila,
although he insists that he never bothered to take a look at the neighboring buildings
(Vol. V, pp. 93-94, rec.). The huge and imposing Philippine Veterans Building is beside
the GSIS building and is obliquely across the City Court building.
2. Respondent Lanuevo stated that as an investigator in the Philippine Veterans
Board, he investigated claims for the several benefits given to veterans like
educational benefits and disability benefits; that he does not remember, however,
whether in the course of his duties as veterans investigator, he came across the
application of Ramon E. Galang for educational benefits; and that he does not know
the father of Mr. Ramon E. Galang and has never met him (Vol. VII, pp. 28, 49, rec.).
3. Respondent Lanuevo, as a member of the USAFEE, belonged to the 91st Infantry
operating at Zambales and then Cabanatuan, Nueva Ecija, shortly before the war (Vol.
VII, pp. 48-49, rec.). Later he joined the guerrilla movement in Samar.
He used to be a member of the Philippine Veterans Legion especially while working
with the Philippine Veterans Board(Vol. VII, p. 49, rec.).
He does not know the Banal Regiment of the guerrillas, to which Galang's father
belonged. During the Japanese occupation, his guerrilla outfit was operating in Samar
only and he had no communications with other guerrilla organization in other parts
of the country.
He attended meetings of the Philippine Veterans Legion in his chapter in Samar only
and does not remember having attended its meeting here in Manila, even while he
was employed with the Philippine Veterans Board. He is not a member of the
Defenders of Bataan and Corregidor (Vol. VII, p.51, rec.).
On November 27, 1941, while respondent Lanuevo was with the Philippine Army
stationed at Camp Manacnac, Cabanatuan, Nueva Ecija, he was stricken with
pneumonia and was hospitalized at the Nueva Ecija Provincial Hospital as a result and
was still confined there when their camp was bombed and strafed by Japanese planes
on December 13, 1941 (Sworn statement of respondent Lanuevo dated August 27,
1973, Adm. Case No. 1162, p. 46, rec.).
German Galang, father of respondent Galang, was a member of the Banal Guerilla
Forces, otherwise known as the Banal Regiment. He was commissioned and inducted
as a member thereof on January 16, 1942 and was given the rank of first lieutenant.
His unit "was attached and served into the XI-Corps, US Army; XIII-C US Army, 43rd
Div., US Army, stationed headquarters at Sta. Rosa, Nueva Ecija and with the 38th
Division, US army stationed at Corregidor in the mopping-up operations against the
enemies, from 9 May 1945 date of recognition to 31 December 1945, date of
demobilization"(Affidavit of Jose Banal dated December 22, 1947, Vol. IV, A-3, rec.).
It should be stressed that once the bar examiner has submitted the corrected
notebooks to the Bar Confidant, the same cannot be withdrawn for any purpose
whatsoever without prior authority from the Court. Consequently, this Court
expresses herein its strong disapproval of the actuations of the bar examiners in
Administrative Case No. 1164 as above delineated.
WHEREFORE, IN ADMINISTRATIVE CASE NO. 1162, RESPONDENT VICTORIO D.
LANUEVO IS HEREBY DISBARRED AND HIS NAME ORDERED STRICKEN FROM THE ROLL
OF ATTORNEYS; AND IN ADMINISTRATIVE CASE NO. 1163, RESPONDENT RAMON E.
GALANG, alias Roman E. GALANG, IS HEREBY LIKEWISE DISBARRED AND HIS NAME
ALSO ORDERED STRICKEN FROM THE ROLL OF ATTORNEYS.
31
Legal Ethics
Re: 2003 BAR EXAMINATIONS
On 22 September 2003, the day following the bar examination in Mercantile
Law, Justice Jose C. Vitug, Chairman of the 2003 Bar Examinations Committee, was
apprised of a rumored leakage in the examination on the subject. After making his
own inquiries, Justice Vitug reported the matter to Chief Justice Hilario G. Davide, Jr.,
and to the other members of the Court, recommending that the bar examination on
the subject be nullified and that an investigation be conducted forthwith. On 23
September 2003, the Court adopted the recommendation of Justice Vitug, and
resolved to nullify the examination in Mercantile Law and to hold another
examination on 04 October 2003 at eight oclock in the evening (being the earliest
available time and date) at the De La Salle University, Taft Avenue, Manila. The
resolution was issued without prejudice to any action that the Court would further
take on the matter.
Following the issuance of the resolution, the Court received numerous petitions
and motions from the Philippine Association of Law Schools and various other groups
and persons, expressing agreement to the nullification of the bar examinations in
Mercantile Law but voicing strong reservations against the holding of another
examination on the subject. Several reasons were advanced by petitioners or
movants, among these reasons being the physical, emotional and financial difficulties
that would be encountered by the examinees, if another examination on the subject
were to be held anew. Alternative proposals submitted to the Court included the
spreading out of the weight of Mercantile Law among the remaining seven bar
subjects, i.e., to determine and gauge the results of the examinations on the basis
only of the performance of the examinees in the seven bar subjects. In a resolution,
dated 29 September 2003, the Court, finding merit in the submissions, resolved to
cancel the scheduled examination in Mercantile Law on 04 October 2003 and to
allocate the fifteen percentage points among the seven bar examination subjects. In
the same resolution, the Court further resolved to create a Committee composed of
three retired members of the Court that would conduct a thorough investigation of
the incident subject of the 23 September 2003 resolution.
In a resolution, dated 07 October 2003, the Court adopted the computation in
the allocation of the fifteen percentage points for Mercantile Law among the
remaining seven bar examination subjects, to wit:
Subject Original Adjusted Relative Adjusted
Percentage Percentage Weight Relative
Weight Weight Weight
Political and
International
Law 15% 17.647% 3 3.53%
Labor and
Social
Legislation 10% 11.765% 2 2.35%
Civil law 15% 17.647% 3 3.53%
Taxation 10% 11.765% 2 2.35%
Criminal law 10% 11.765% 2 2.35%
Remedial
Law 20% 23.529% 4 4.71%
Legal Ethics
and Practical
Exercises 5% 5.882% 1 1.18%
100% 20%
In another resolution, dated 14 October 2003, the Court designated the
following retired Associate Justices of the Supreme Court to compose the
Investigating Committee:
Chairman: Justice Carolina C. Grio-Aquino
Members: Justice Jose A.R. Melo
Justice Vicente V. Mendoza
The Investigating Committee was tasked to determine and identify the source of
leakage, the parties responsible therefor or who might have benefited therefrom,
recommend sanctions against all those found to have been responsible for, or who
would have benefited from, the incident in question and to recommend measures to
the Court to safeguard the integrity of the bar examinations.
On 15 January 2004, the Investigating Committee submitted its report and
recommendation to the Court, herein reproduced in full; thus -
In the morning of September 21, 2003, the third Sunday of the 2003 bar examinations,
the examination in commercial law was held in De la Salle University on Taft Avenue,
Manila, the venue of the bar examinations since 1995. The next day, the newspapers
carried news of an alleged leakage in the said examination.[1]
Upon hearing the news and making preliminary inquiries of his own, Justice Jose C.
Vitug, chairman of the 2003 Bar Examinations Committee, reported the matter to the
Chief Justice and recommended that the examination in mercantile law be cancelled
and that a formal investigation of the leakage be undertaken.
Acting on the report and recommendation of Justice Vitug, the Court, in a resolution
dated September 23, 2003, nullified the examination in mercantile law and resolved
to hold another examination in that subject on Saturday, October 4, 2003 at eight
oclock in the evening (being the earliest available time and date) at the same venue.
However, because numerous petitions, protests, and motions for reconsideration
were filed against the retaking of the examination in mercantile law, the Court
cancelled the holding of such examination. On the recommendation of the Office of
the Bar Confidant, the Court instead decided to allocate the fifteen (15) percentage
points for mercantile law among the seven (7) other bar examination subjects
(Resolution dated October 7, 2003).
32
Legal Ethics
In a Resolution dated September 29, 2003, the Supreme Court created an
Investigating Committee composed of three (3) retired Members of the Court to
conduct an investigation of the leakage and to submit its findings and
recommendations on or before December 15, 2003.
The Court designated the following retired Associate Justices of the Supreme Court
to compose the Committee:
Chairman: Justice CAROLINA GRIO-AQUINO
Members: Justice JOSE A. R. MELO
Justice VICENTE V. MENDOZA
The Investigating Committee was directed to determine and identify the source of the
leakage, the parties responsible therefor and those who benefited therefrom, and to
recommend measures to safeguard the integrity of the bar examinations.
The investigation commenced on October 21, 2003 and continued up to November
7, 2003. The following witnesses appeared and testified at the investigation:
1. Associate Justice Jose C. Vitug, chairman of the 2003 Bar Examinations
Committee;
2. Atty. Marlo Magdoza-Malagar, law clerk in the office of Justice Vitug
3. Atty. Marcial O. T. Balgos, examiner in mercantile law;
4. Cheryl Palma, private secretary of Atty. Balgos;
5. Atty. Danilo De Guzman, assistant lawyer in the firm of Balgos & Perez;
6. Atty. Enrico G. Velasco, managing partner of Balgos & Perez;
7. Eduardo J. F. Abella, reviewer in commercial law at
the Lex Review Center;
8. Silvestre T. Atienza, office manager of Balgos & Perez;
9. Reynita Villasis, private secretary of Atty. De Guzman;
10. Ronan Garvida, fraternity brother of Atty. De Guzman;
11. Ronald F. Collado, most illustrious brother of the Beta Sigma Lambda
Fraternity;
12. Jovito M. Salonga, Asst. Division Chief of Systems Development for
Judicial Application, MlSO;
The Committee held nine (9) meetings - six times to conduct the
investigation and three times to deliberate on its report.
ASSOCIATE JUSTICE JOSE C. VITUG, chairman of the Bar Examinations Committee,
testified that on Monday morning, September 22, 2003, the day after the Bar
examination in mercantile or commercial law, upon arriving in his office in the
Supreme Court, his secretary,[2] Rose Kawada, informed him that one of the law
clerks, Atty. Marlo Magdoza-Malagar, told her that a friend of hers named Ma. Cecilia
Delgado-Carbajosa, a bar examinee from Xavier University in Cagayan de Oro City,
who was staying at the Garden Plaza Hotel in Paco, confided to her that something
was wrong with the examination in mercantile law, because previous to the
examination, i.e., on Saturday afternoon, the eve of the examination, she received a
copy of the test questions in that subject. She did not pay attention to the test
questions because no answers were provided, and she was hard-pressed to finish her
review of that subject, using other available bar review materials, of which there were
plenty coming from various bar review centers.
However, upon perusing the questions after the examinations, Cecilia noticed that
many of them were the same questions that were asked in the just-concluded-
examination.
Justice Vitug requested Marlo to invite her friend to his office in the Supreme Court,
but Carbajosa declined the invitation. So, Justice Vitug suggested that Marlo and Rose
invite Carbajosa to meet them at Robinsons Place, Ermita. She agreed to do that.
Cecilia Carbajosa arrived at Robinsons Place at the appointed time and showed the
test questions to Rose and Marlo. Rose obtained a xerox copy of the leaked questions
and compared them with the bar questions in mercantile law. On the back of the
pages, she wrote, in her own hand, the differences she noted between the leaked
questions and the bar examination questions.
Rose and Marlo delivered the copy of the leaked questions to Justice Vitug who
compared them with the bar examination questions in mercantile law. He found the
leaked questions to be the exact same questions which the examiner in mercantile
law, Attorney Marcial O. T. Balgos, had prepared and submitted to him as chairman
of the Bar Examinations Committee. However, not all of those questions were asked
in the bar examination. According to Justice Vitug, only 75% of the final bar questions
were questions prepared by Atty. Balgos; 25% prepared by Justice Vitug himself, were
included in the final bar examination. The questions prepared by Justice Vitug were
not among the leaked test questions.
Apart from the published news stories about the leakage, Chief Justice Hilario G.
Davide, Jr. and Justice Vitug received, by telephone and mail, reports of the leakage
from Dean Mariano F. Magsalin, Jr. of the Arellano Law Foundation (Exh. H) and a
certain Dale Philip R. De los Reyes (Exh. B -B-3), attaching copies of the leaked
questions and the fax transmittal sheet showing that the source of the questions was
Danny De Guzman who faxed them to Ronan Garvida on September 17, 2003, four
days before the examination in mercantile law on September 21, 2003 (Exh. B-1).
ATTORNEY MARLO MAGDOZA-MALAGAR was subpoenaed by the Committee. She
identified the copy of the leaked questions that came from Cecilia Carbajosa (Exh. A).
She testified that, according to Carbajosa, the latter received the test questions from
one of her co-bar reviewees staying, like her, at the Garden Plaza Hotel in Paco, and
also enrolled in the review classes at the Lex Review Center at the corner of P. Faura
Street and Roxas Boulevard, Ermita. She did not pay for the hand-out because
the LexReview Center gives them away for free to its bar reviewees.
ATTORNEY MARCIAL O. T. BALGOS, 71 years of age, senior partner in the law firm of
BALGOS AND PEREZ with offices in Rm. 1009 West Tektite Tower, Exchange Road,
Ortigas Center, Pasig City, testified that in November 2002, Justice Jose C. Vitug, as
chair of the Committee on the 2003 Bar Examinations, invited him to be the examiner
in commercial law. He accepted the assignment and almost immediately began the
33
Legal Ethics
preparation of test questions on the subject. Using his personal computer in the law
office, he prepared for three consecutive days, three (3) sets of test questions which
covered the entire subject of Mercantile Law (pp. 3-5, tsn, Oct. 24, 2003). As he did
not know how to prepare the questionnaire in final form, he asked his private
secretary, Cheryl Palma, to format the questions (p. 13, tsn, Oct. 24, 2003). And, as
he did not know how to print the questionnaire, he likewise asked Cheryl Palma to
make a print-out (Id., pp. 14-15). All of this was done inside his office with only him
and his secretary there. His secretary printed only one copy (Id., p. 15). He then placed
the printed copy of the test questions, consisting of three sets, in an envelope which
he sealed, and called up Justice Vitug to inform him that he was bringing the questions
to the latters office that afternoon. However, as Justice Vitug was leaving his office
shortly, he advised Atty. Balgos to give the sealed envelope to his confidential
assistant who had been instructed to keep it. When Atty. Balgos arrived in the office
of Justice Vitug, he was met by Justice Vitugs confidential assistant to whom he
entrusted the sealed envelope containing the test questions (pp. 19-26, tsn, Oct. 24,
2003).
Atty. Balgos admitted that he does not know how to operate a computer except to
type on it. He does not know how to open and close his own computer which has a
password for that purpose. In fact, he did not know, as he still does, the password. It
is his secretary, Cheryl Palma, who opened and closed his computer for him (p. 45,
tsn, Oct. 24, 2003).
Atty. Balgos testified that he did not devise the password himself. It was Cheryl Palma
who devised it (Id., p. 71).
His computer is exclusively for his own use. It is located inside his room which is locked
when he is not in the office. He comes to the office every other day only.
He thought that his computer was safely insulated from third parties, and that he
alone had access to it. He was surprised to discover, when reports of the bar leakage
broke out, that his computer was in fact interconnected with the computers of his
nine (9) assistant attorneys (tsn, pp. 30,45). As a matter of fact, the employees - Jovito
M. Salonga and Benjamin R. Katly - of the Courts Management Information Systems
Office (MISO) who, upon the request of Atty. Balgos, were directed by the
Investigating Committee to inspect the computer system in his office, reported that
there were 16, not 9, computers connected to each other via Local Area Network
(LAN) and one (1) stand-alone computer connected to the internet (Exh. M). Atty.
Balgos law partner, former Justice Secretary Hernando Perez, also had a computer,
but Perez took it away when he became the Secretary of Justice.
The nine (9) assistant attorneys with computers, connected to Attorney Balgos
computer, are:
1. Zorayda Zosobrado (she resigned in July 2003)
2. Claravel Javier
3. Rolynne Torio
4. Mark Warner Rosal
5. Charlynne Subia
6. Danilo De Guzman (resigned on October 22, 2003 [Exh. D])
7. Enrico G. Velasco, managing partner
8. Concepcion De los Santos
9. Pamela June Jalandoni
Upon learning from Justice Vitug of the leakage of the bar questions prepared by him
in mercantile law, Atty. Balgos immediately called together and questioned his office
staff. He interrogated all of them except Atty. Danilo De Guzman who was absent
then. All of them professed to know nothing about the bar leakage.
He questioned Silvestre Atienza, the office manager, Atienza is only a second year law
student at MLQU. But he is an expert in installing and operating computers. It was he
and/or his brother Gregorio who interconnected the computers in the law office,
including Attorney Balgos computer, without the latters knowledge and permission.
Atienza admitted to Attorney Balgos that he participated in the bar operations or bar
ops of the Beta Sigma Lambda law fraternity of which he is a member, but he clarified
that his participation consisted only of bringing food to the MLQU bar examinees (Tsn,
pp. 46-47, Oct. 24, 2003).
The next day, Attorney Balgos questioned Attorney Danilo De Guzman, also a member
of the Beta Sigma Lambda fraternity, FEU chapter. De Guzman admitted to him that
he downloaded the test questions from Attorney Balgos computer and faxed a copy
to a fraternity brother. Attorney Balgos was convinced that De Guzman was the
source of the leakage of his test questions in mercantile law (Tsn, p. 52, Oct. 24, 2003).
Attorney Balgos prepared a COMPARISON (Exh. E) of the juxtaposed final bar
questions and his proposed test questions, with marginal markings made by Justice
Vicente V. Mendoza (Ret.), indicating whether the questions are similar: (S); or
different: (D), together with the percentage points corresponding to each question.
On the basis of this comparative table and Atty. Balgos indications as to which
questions were the same or different from those given in the final questionnaire,
Justice Mendoza computed the credit points contained in the proposed leaked
questions. The proposed questions constituted 82% of the final bar questions.
Attached to this Report as Annex A is the comparative table and the computation of
credit points marked as Exh. E-1.
CHERYL PALMA, 34 years old, private secretary of Attorney Balgos for the past six
years, testified that she did not type the test questions. She admitted, however, that
it was she who formatted the questions and printed one copy as directed by her
employer. She confirmed Atty. Balgos testimony regarding her participation in the
operation of his personal computer. She disclosed that what appears in Atty. Balgos
computer can be seen in the neighborhood network if the other computers are open
and not in use; that Silvestre Atienza of the accounting section, can access Atty. Balgos
computer when the latter is open and not in use.
ATTORNEY ENRICO VELASCO, managing partner of the firm, testified that on October
16, 2003, he sent De Guzman a memo (Exh. C) giving him 72 hours to explain in writing
34
Legal Ethics
why you should not be terminated for causing the Firm an undeserved condemnation
and dishonor because of the leakage aforesaid.
On October 22, 2003, De Guzman handed in his resignation effective immediately. He
explained that:
Causing the firm, its partners and members to suffer from undeserved condemnation
and humiliation is not only farthest from, but totally out of, my mind. It is just
unfortunate that the incident subject matter of your memorandum occurred. Rest
assured, though, that I have never been part of any deliberate scheme to malign the
good reputation and integrity of the firm, its partners and members. (Exh. D)
DANILO DE GUZMAN testified that he joined Balgos & Perez in April 2000. He obtained
his LLB degree from FEU in 1998. As a student, he was an awardee for academic
excellence. He passed the 1998 bar examinations with a grade of 86.4%. In FEU, he
joined the Beta Sigma Lambda law fraternity which has chapters in MLQU, UE and
MSU (Mindanao State University). As a member of the fraternity, he was active during
bar examinations and participated in the fraternitys bar ops.
He testified that sometime in May 2003, when he was exploring Atty. Balgos
computer, (which he often did without the owners knowledge or permission), to
download materials which he thought might be useful to save for future use, he found
and downloaded the test questions in mercantile law consisting of 12 pages. He
allegedly thought they were quizzers for a book that Atty. Balgos might be preparing.
He saved them in his hard disk.
He thought of faxing the test questions to one of his fraternity brods, a certain Ronan
Garvida who, De Guzman thought, was taking the 2003 bar examinations. Garvida is
also a law graduate from FEU. He had taken the 2002 bar examinations, but did not
pass.
On September 17, 2003, four days before the mercantile law bar examination,
De Guzman faxed a copy of the 12-page-test questions (Exhs. I, I-1, I-2, I-3) to Garvida
because earlier he was informed by Garvida that he was retaking the bar
examinations. He advised Garvida to share the questions with other Betan examinees.
He allegedly did not charge anything for the test questions. Later, after the
examination was over, Garvida texted (sent a text message on his cell phone) him (De
Guzman), that he did not take the bar examination.
Besides Garvida, De Guzman faxed the mercantile law bar questions to another
fraternity brother named Arlan (surname unknown), through Reynita (Nanette)
Villasis, his secretary (Tsn, pp. 20-28, Oct. 29, 2003). But he himself faxed the
questions to still another brod named Erwin Tan who had helped him during the bar
ops in 1998 when he (De Guzman) took the bar examinations (Id., p. 28). He obtained
the cell phone numbers of Arlan and Erwin Tan from Gabby Tanpiengco whom he
informed by text message, that they were guide questions, not tips, in the mercantile
law examination.
When he was confronted by Attorney Velasco on Wednesday after the examination,
(news of the leakage was already in all the newspapers), De Guzman admitted to
Attorney Velasco that he faxed the questions to his fraternity brothers, but he did not
reveal where he got the test questions.
De Guzman received a text message from Erwin Tan acknowledging that he received
the test questions. However, Erwin informed him that the questions were kalat na
kalat (all over the place) even if he did not share them with others (Tsn, pp. 54-55,
Oct. 29, 2003).
De Guzman also contacted Garvida who informed him that he gave copies of the test
questions to Betans Randy Iigo and James Bugain.
Arlan also texted De Guzman that almost all the questions were asked in the
examination. Erwin Tan commented that many of the leaked questions were asked in
the examination, pero hindi exacto; mi binago (they were not exactly the same; there
were some changes).
De Guzman tried to text Garvida, but he received no response.
De Guzman disclosed that he learned how to operate a computer from Silvestre
Atienza, the office manager, and through self-study, by asking those who are
knowledgeable on computers. He has been using computers since 1997, and he
bought his own computer in 2001, a Pentium 3, which he uses at home.
REYNITA VILLASIS, the 36-year-old legal secretary of Attorney De Guzman, submitted
her affidavit (Exh. F) and orally affirmed her participation in the reproduction and
transmittal by fax of the leaked test questions in mercantile law to Ronan Garvida and
Arlan, as testified by De Guzman.
RONAN GARVIDA, appeared before the Investigating Committee in compliance with
the subpoena that was issued to him. Garvida graduated from FEU College of Law in
2000. He is about 32 years of age. While still a student in 1998, he was afflicted with
multiple sclerosis or MS, a disease of the nervous system that attacks the nerve
sheaths of the brain and spinal cord. It is a chronic disabling disease although it may
have periods of remission. It causes its victim to walk with erratic, stiff and staggering
gait; the hands and fingers may tremble in performing simple actions; the eyesight
can be impaired, and speech may be slow and slurred (p. 737, Vol. 2, Readers Digest
Medical Encyclopedia, 1971 Ed., compiled by Benjamin F. Miller, M.D.). All these
symptoms were present when Garvida testified before the Committee on November
6, 2003 to answer its questions regarding his involvement in the leakage of the
examiners test questions in mercantile law.
Garvida testified that when he was a freshman at FEU, he became a member of the
Beta Sigma Lambda fraternity where he met and was befriended by Attorney De
Guzman who was his senior by one and a half years. Although they had been out of
touch since he went home to the province on account of the recurrence of his illness,
De Guzman was able [to] get this cell phone number from his compadre, Atty. Joseph
Pajara. De Guzman told Garvida that he was faxing him possible questions in the bar
examination in mercantile law. Because the test questions had no answers, De
Guzman stressed that they were not tips but only possible test questions.
35
Legal Ethics
Garvida had intended to take the 2003 bar examinations. He enrolled in
the Consortium Review Center in FEU, paying P10,000.00 as enrollment fee.
However, on his way to the Supreme Court to file his application to take the bar
examination, he suffered pains in his wrist - symptoms that his MS had recurred. His
physician advised him to go to the National Orthopedic Hospital in Quezon City for
treatment. This he did.
He gave up his plan to take the 2003 bar examinations. Nevertheless, he continued to
attend the review classes at the Consortium Review Center because he did not want
to waste completely the P10,000-enrollment fee that he paid for the review course
(Nahihinayang ako). That was presumably why De Guzman thought that Garvida was
taking the bar exams and sent him a copy of the test questions in mercantile law.
Upon receipt of the test questions, Garvida faxed a copy to his brod Randy Iigo who
was reviewing at the Consortium Review Center. Randy photocopied them for
distribution to other fraternity brods. Some of the brods doubted the usefulness of
the test questions, but Randy who has a high regard for De Guzman, believed that the
questions were tips. Garvida did not fax the questions to any other person than Randy
Iigo. He allegedly did not sell the questions to Randy. I could not do that to a brod, he
explained.
In view of the fact that one of the copies of the leaked test questions (Exh. H) bore on
the left margin a rubber stamp composed of the Greek initials BEA-MLQU, indicating
that the source of that copy was the Beta Sigma Lambda chapter at MLQU, the
Committee subpoenaed Ronald Collado, the Most Illustrious Brother of the Beta
Sigma Lambda fraternity of MLQU.
RONALD COLLADO is a senior law student at the MLQU. He admitted that his fraternity
conducted Bar Ops for the 2003 bar exams. Bar Ops are the biggest activity of the
fraternity every year. They start as soon as new officers of the fraternity are elected
in June, and they continue until the bar examinations are over. The bar operations
consist of soliciting funds from alumni brods and friends to be spent in reproducing
bar review materials for the use of their barristers (bar candidates) in the various
review centers, providing meals for their brod-barristers on examination days; and to
rent a bar site or place near De la Salle University where the examinees and the frat
members can convene and take their meals during the break time. The Betans bar
site for the 2003 bar examinations was located on Leon Guinto Street, Malate. On
September 19 and 21, before [the] start of the examination, Collados fraternity
distributed bar review materials for the mercantile law examination to the examinees
who came to the bar site. The test questions (Exh. H) were received by Collado from
a brod, Alan Guiapal, who had received them from Randy Iigo.
Collado caused 30 copies of the test questions to be printed with the logo and initials
of the fraternity (BEA-MLQU) for distribution to the 30 MLQU examinees taking the
bar exams. Because of time constraints, frat members were unable to answer the test
questions despite the clamor for answers, so, they were given out as is - without
answers.
DEAN EDUARDO J. F. ABELLA of the Jose Rizal University law school
in Mandaluyong City, was the reviewer in Mercantile Law and Practical Exercises at
the Lex Review Center which is operated by the Lex Review & Seminars Inc., of which
Dean Abella is one of the incorporators. He learned about the leakage of test
questions in mercantile law when he was delivering the pre-week lecture on Legal
Forms at the Arellano University. The leaked questions were shown to him by his
secretary, Jenylyn Domingo, after the mercantile law exam. He missed the Saturday
lecture in mercantile law because he was suffering from a touch of flu. He gave his
last lecture on the subject on Wednesday or Thursday before the exam. He denied
having bought or obtained and distributed the leaked test questions in Mercantile
Law to the bar reviewees in the Lex Review Center.
FINDINGS
The Committee finds that the leaked test questions in Mercantile Law were the
questions which the examiner, Attorney Marcial O. T. Balgos, had prepared and
submitted to Justice Jose C. Vitug, as chairman of the 2003 Bar Examinations
Committee. The questions constituted 82% of the questions asked in the examination
in Mercantile Law in the morning of September 21, 2003, Sunday, in some cases with
slight changes which were not substantial and in other cases exactly as proposed by
Atty. Balgos. Hence, any bar examinee who was able to get hold of the leaked
questions before the mercantile law examination and answered them correctly,
would have been assured of passing the examination with at least a grade of 82%!
The circumstance that the leaked test questions consisted entirely of test questions
prepared by Atty. Balgos, proves conclusively that the leakage originated from his
office, not from the Office of Justice Vitug, the Bar Examinations Chairman.
Atty. Balgos claimed that the leaked test questions were prepared by him on his
computer. Without any doubt, the source of the leaked test questions was Atty.
Balgos computer. The culprit who stole or downloaded them from Atty. Balgos
computer without the latters knowledge and consent, and who faxed them to other
persons, was Atty. Balgos legal assistant, Attorney Danilo De Guzman, who voluntarily
confessed the deed to the Investigating Committee. De Guzman revealed that he
faxed the test questions, with the help of his secretary Reynita Villasis, to his fraternity
brods, namely, Ronan Garvida, Arlan (whose surname he could not recall), and Erwin
Tan.
In turn, Ronan Garvida faxed the test questions to Betans Randy Iigo and James
Bugain.
Randy Iigo passed a copy or copies of the same questions to another Betan, Alan
Guiapal, who gave a copy to the MLQU-Beta Sigma [Lambdas] Most Illustrious
Brother, Ronald F. Collado, who ordered the printing and distribution of 30 copies to
the MLQUs 30 bar candidates.
Attorney Danilo De Guzmans act of downloading Attorney Balgos test questions in
mercantile law from the latters computer, without his knowledge and permission, was
a criminal act of larceny. It was theft of intellectual property; the test questions were
36
Legal Ethics
intellectual property of Attorney Balgos, being the product of his intellect and legal
knowledge.
Besides theft, De Guzman also committed an unlawful infraction of Attorney Balgos
right to privacy of communication, and to security of his papers and effects against
unauthorized search and seizure - rights zealously protected by the Bill of Rights of
our Constitution (Sections 2 and 3, Article III, 1987 Constitution).
He transgressed the very first canon of the lawyers Code of Professional Responsibility
which provides that [a] lawyer shall uphold the Constitution, obey the laws of the
land, and promote respect for law and legal processes.
By transmitting and distributing the stolen test questions to some members of the
Beta Sigma Lambda Fraternity, possibly for pecuniary profit and to given them undue
advantage over the other examiners in the mercantile law examination, De Guzman
abetted cheating or dishonesty by his fraternity brothers in the examination, which is
violative of Rule 1.01 of Canon 1, as well as Canon 7 of the Code of Professional
Responsibility for members of the Bar, which provide:
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.
De Guzman was guilty of grave misconduct unbecoming a member of the Bar. He
violated the law instead of promoting respect for it and degraded the noble
profession of law instead of upholding its dignity and integrity. His actuations
impaired public respect for the Court, and damaged the integrity of the bar
examinations as the final measure of a law graduates academic preparedness to
embark upon the practice of law.
However, the Investigating Committee does not believe that De Guzman was solely
responsible for the leakage of Atty. Balgos proposed test questions in the mercantile
law examination. The Committee does not believe that he acted alone, or did not have
the assistance and cooperation of other persons, such as:
Cheryl Palma, Atty. Balgos private secretary, who, according to Atty. Balgos himself,
was the only person who knew the password, who could open and close his computer;
and who had the key to his office where his computer was kept. Since a computer
may not be accessed or downloaded unless it is opened, someone must have opened
Atty. Balgos computer in order for De Guzman to retrieve the test questions stored
therein.
Silvestre Atienza, also a fraternity brod of De Guzman, who was responsible for
interconnecting Atty. Balgos computer with the other computers outside Atty. Balgos
room or office, and who was the only other person, besides Cheryl Palma, who knew
the password of Atty. Balgos computer.
The following persons who received from De Guzman, and distributed copies of the
leaked test questions, appear to have conspired with him to steal and profit from the
sale of the test questions. They could not have been motivated solely by a desire to
help the fraternity, for the leakage was widespread (kalat na kalat) according to Erwin
Tan. The possible co-conspirators were:
Ronan Garvida,
Arlan,
Erwin Tan,
Randy Iigo,
Ronald Collado, and
Allan Guiapal
The Committee does not believe that De Guzman recklessly broke the law and risked
his job and future as a lawyer, out of love for the Beta Sigma Lambda fraternity. There
must have been an ulterior material consideration for his breaking the law and tearing
the shroud of secrecy that, he very well knows, covers the bar examinations.
On the other hand, the Committee finds that the theft of the test questions from Atty.
Balgos computer could have been avoided if Atty. Balgos had exercised due diligence
in safeguarding the secrecy of the test questions which he prepared. As the computer
is a powerful modern machine which he admittedly is not fairly familiar with, he
should not have trusted it to deep secret the test questions that he stored in its hard
disk. He admittedly did not know the password of his computer. He relied on his
secretary to use the password to open and close his computer. He kept his computer
in a room to which other persons had access. Unfamiliar with the use of the machine
whose potential for mischief he could not have been totally unaware of, he should
have avoided its use for so sensitive an undertaking as typing the questions in the bar
examination. After all he knew how to use the typewriter in the use of which he is
quite proficient. Atty. Balgos should therefore have prepared the test questions in his
trusty typewriter, in the privacy of his home, (instead of his law office), where they
would have been safe from the prying eyes of secretaries and assistant attorneys.
Atty. Balgos negligence in the preparation and safekeeping of his proposed test
questions for the bar examination in mercantile law, was not the proximate cause of
the bar leakage; it was, in fact, the root cause. For, if he had taken those simple
precautions to protect the secrecy of his papers, nobody could have stolen them and
copied and circulated them. The integrity of the bar examinations would not have
been sullied by the scandal. He admitted that Mali siguro ako, but that was what
happened (43 tsn, Oct. 24, 2003).
RECOMMENDATION
This Honorable court in the case of Burbe v. Magulta, A.C. No. 5713, June 10, 2002,
383 SCRA 276, pronounced the following reminder for lawyers: Members of the bar
must do nothing that may tend to lessen in any degree the confidence of the public
in the fidelity, the honesty and integrity of the profession. In another case, it likewise
intoned: We cannot overstress the duty of a lawyer to at all times uphold the integrity
and dignity of the legal profession. He can do this by faithfully performing his duties
to society, to the bar, to the courts, and to his clients. (Reyes v. Javier, A.C. No.
5574, February 2, 2002, 375 SCRA 538). It goes without saying that a lawyer who
37
Legal Ethics

violates this precept of the profession by committing a gross misconduct which Atty. De Guzman on the computer being used by Atty. Balgos. The matter would also
dishonors and diminishes the publics respect for the legal profession, should be need further investigation to determine how Atty. De Guzman was able to obtain a
disciplined. copy of the Courts CALR database.
After careful deliberation, the Investigating Committee recommends that: WHEREFORE, the Court, acting on the recommendations of the Investigating
1. Attorney Danilo De Guzman be DISBARRED for he had shown that he is morally Committee, hereby resolves to -
unfit to continue as a member of the legal profession, for grave dishonesty, lack of (1) DISBAR Atty. DANILO DE GUZMAN from the practice of law effective
integrity, and criminal behavior. In addition, he should make a written PUBLIC upon his receipt of this RESOLUTION;
APOLOGY and pay DAMAGES to the Supreme Court for involving it in another bar (2) REPRIMAND Atty. MARCIAL O.T. BALGOS and DISENTITLE him from
scandal, causing the cancellation of the mercantile law examination, and wreaking receiving any honorarium as an Examiner in Mercantile Law;
havoc upon the image of this institution. (3) Direct the National Bureau of Investigation (a) to undertake further
2. Attorney Marcial O. T. Balgos should be REPRIMANDED by the Court and likewise investigation of Danilo De Guzman, Cheryl Palma, Silvestre Atienza,
be required to make a written APOLOGY to the Court for the public scandal he brought Ronan Garvida, Erwin Tan, Randy Iigo, James Bugain, Ronald Collado
upon it as a result of his negligence and lack of due care in preparing and safeguarding and Allan Guiapal with a view to determining their participation and
his proposed test questions in mercantile law. As the Court had to cancel the respective accountabilities in the bar examination leakage and to
Mercantile Law examination on account of the leakage of Attorney Balgos test conduct an investigation on how Danilo De Guzman was able to
questions, which comprised 82% of the bar questions in that examination, Atty. secure a copy of the Supreme Courts CALR database.
Balgos is not entitled to receive any honorarium as examiner for that subject. Let a copy of this Resolution be made part of the records of Danilo De Guzman
3. FURTHER INVESTIGATION of Danilo De Guzman, Cheryl Palma, Silvestre Atienza, in the Office of the Bar Confidant, Supreme Court of the Philippines, and copies to be
Ronan Garvida, Arlan, Erwin Tan, Randy Iigo, James Bugain, Ronald Collado and Allan furnished the Integrated Bar of the Philippines and circulated by the Office of the
Guiapal by the National Bureau of Investigation and the Philippine National Police, Court Administrator to all courts.
with a view to their criminal prosecution as probable co-conspirators in the theft and SO ORDERED.
leakage of the test questions in mercantile law.
With regard to recommending measures to safeguard the integrity of the bar
examinations and prevent a repetition of future leakage in the said examinations,
inasmuch as this matter is at present under study by the Courts Committee on Legal
Education and Bar Matters, as an aspect of proposals for bar reforms, the
Investigating Committee believes it would be well-advised to refrain from including in
this report what may turn out to be duplicative, if not contrary, recommendations on
the matter.[3]
The Court adopts the report, including with some modifications the
recommendation, of the Investigating Committee. The Court, certainly will not
countenance any act or conduct that can impair not only the integrity of the Bar
Examinations but the trust reposed on the Court.
The Court also takes note that Mr. Jovito M. Salonga and Mr. Benjamin R. Katly,
two of its employees assigned to the Management Information Systems Office
(MISO), who were tasked by the Investigating Committee to inspect the computer
system in the office of Atty. Balgos, found that the Courts Computer-Assisted Legal
Research (CALR) database[4] was installed in the computer used by Atty. Balgos. Mr.
Salonga and Mr. Katly reported that the system, which was developed by the MISO,
was intended for the exclusive use of the Court. The installation thereof to any
external computer would be unauthorized without the permission of the Court. Atty.
Velasco informed the two Court employees that the CALR database was installed by

38
Legal Ethics
Atty. RAMON P. REYES, complainant, vs. Atty. VICTORIANO T. CHIONG JR., respondent.
Lawyers should treat each other with courtesy, dignity and civility. The bickering
and the hostility of their clients should not affect their conduct and rapport with each
other as professionals and members of the bar.
The Case
Before us is a Sworn Complaint[1] filed by Atty. Ramon P. Reyes with the Office
of the Bar Confidant of this Court, seeking the disbarment of Atty. Victoriano T. Chiong
Jr. for violation of his lawyers oath and of Canon 8 of the Code of Professional
Responsibility. After the Third Division of this Court referred the case to the
Integrated Bar of the Philippines (IBP), the IBP Commission on Bar Discipline resolved
to suspend him as follows:
x x x [C]onsidering that respondent is bound by his oath which binds him to the
obligation that he will not wittingly or willingly promote or sue any groundless, false
or unlawful suit, nor give aid nor consent to the same. In addition, Canon 8 of the
Code of Professional Responsibility provides that a lawyer shall conduct himself with
courtesy, fairness and candor towards his professional colleagues, and shall avoid
harassing tactics against opposing counsel. In impleading complainant and Prosecutor
Salanga in Civil Case No. 4884, when it was apparent that there was no legal ground
to do so, respondent violated his oath of office as well as the above-quoted Canon of
the Code of Professional Responsibility, [r]espondent is hereby SUSPENDED from the
practice of law for two (2) years.[2]
The Facts
In his Complaint, Atty. Reyes alleges that sometime in January 1998, his services
were engaged by one Zonggi Xu,[3] a Chinese-Taiwanese, in a business venture that
went awry. Xu invested P300,000 on a Cebu-based fishball, tempura and seafood
products factory being set up by a certain Chia Hsien Pan, another Chinese-Taiwanese
residing in Zamboanga City. Eventually, the former discovered that the latter had not
established a fishball factory. When Xu asked for his money back, Pan became hostile,
making it necessary for the former to seek legal assistance.
Xu, through herein complainant, filed a Complaint for estafa against Pan, who
was represented by respondent. The Complaint, docketed as IS 98J-51990, was
assigned to Assistant Manila City Prosecutor Pedro B. Salanga, who then issued a
subpoena for Pan to appear for preliminary investigation on October 27 and 29,
1998. The latter neither appeared on the two scheduled hearings nor submitted his
counter-affidavit. Hence, Prosecutor Salanga filed a Criminal Complaint[4] for estafa
against him before the Regional Trial Court (RTC) of Manila.[5] On April 8, 1999, the
Manila RTC issued a Warrant of Arrest[6] against Pan.
Thereafter, respondent filed an Urgent Motion to Quash the Warrant of
Arrest.[7] He also filed with the RTC of Zamboanga City a Civil Complaint for the
collection of a sum of money and damages as well as for the dissolution of a business
venture against complainant, Xu and Prosecutor Salanga.
When confronted by complainant, respondent explained that it was Pan who
had decided to institute the civil action against Atty. Reyes. Respondent claimed he
would suggest to his client to drop the civil case, if complainant would move for the
dismissal of the estafa case. However, the two lawyers failed to reach a settlement.
In his Comment[8] dated January 27, 2000, respondent argued that he had
shown no disrespect in impleading Atty. Reyes as co-defendant in Civil Case No.
4884. He claimed that there was no basis to conclude that the suit was groundless,
and that it had been instituted only to exact vengeance. He alleged that Prosecutor
Salanga was impleaded as an additional defendant because of the irregularities the
latter had committed in conducting the criminal investigation. Specifically, Prosecutor
Salanga had resolved to file the estafa case despite the pendency of Pans Motion for
an Opportunity to Submit Counter-Affidavits and Evidence,[9] of the appeal[10] to the
justice secretary, and of the Motion to Defer/Suspend Proceedings.[11]
On the other hand, complainant was impleaded, because he allegedly connived
with his client (Xu) in filing the estafa case, which the former knew fully well was
baseless. According to respondent, the irregularities committed by Prosecutor
Salanga in the criminal investigation and complainants connivance therein were
discovered only after the institution of the collection suit.
The Third Division of this Court referred the case to the IBP for investigation,
report and recommendation.[12] Thereafter, the Board of Governors of the IBP passed
its June 29, 2002 Resolution.[13]
Report and Recommendation of the IBP
In her Report and Recommendation,[14] Commissioner Milagros V. San Juan, to
whom the case was assigned by the IBP for investigation and report, averred that
complainant and Prosecutor Salanga had been impleaded in Civil Case No. 4884 on
the sole basis of the Criminal Complaint for estafa they had filed against respondents
client. In his Comment, respondent himself claimed that the reason x x x was x x x the
irregularities of the criminal investigation/connivance and consequent damages.
Commissioner San Juan maintained that the collection suit with damages had
been filed purposely to obtain leverage against the estafa case, in which respondents
client was the defendant. There was no need to implead complainant and Prosecutor
Salanga, since they had never participated in the business transactions between Pan
and Xu. Improper and highly questionable was the inclusion of the prosecutor and
complainant in the civil case instituted by respondent on the alleged prodding of his
client. Verily, the suit was filed to harass complainant and Prosecutor Salanga.
Commissioner San Juan held that respondent had no ground to implead
Prosecutor Salanga and complainant in Civil Case No. 4884. In so doing, respondent
violated his oath of office and Canon 8 of the Code of Professional Responsibility. The
IBP adopted the investigating commissioners recommendation for his suspension
from the practice of law for two (2) years.
This Courts Ruling
We agree with the IBPs recommendation.
39
Legal Ethics
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.[15] 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. Moreover, Canon 8 of the Code of
Professional Responsibility provides that [a] lawyer shall conduct himself with
courtesy, fairness and candor towards his professional colleagues, and shall avoid
harassing tactics against opposing counsel.
Respondents actions do not measure up to this Canon. Civil Case No. 4884 was
for the collection of a sum of money, damages and dissolution of an unregistered
business venture. It had originally been filed against Spouses Xu, but was later
modified to include complainant and Prosecutor Salanga.
The Amended and Supplemental Complaints[16] alleged the following:
27. The investigating prosecutor defendant Pedro Salanga knowingly and deliberately
refused and failed to perform his duty enjoined by the law and the Constitution to
afford plaintiff Chia Hsien Pan due process by violating his rights under the Rules on
preliminary investigations; he also falsely made a Certification under oath that
preliminary investigation was duly conducted and plaintiff [was] duly informed of the
charges against him but did not answer; he maliciously and x x x partially ruled that
there was probable cause and filed a Criminal Information for estafa against plaintiff
Chia Hsien Pan, knowing fully [well] that the proceedings were fatally defective and
null and void; x x x;
28. Said assistant prosecutor, knowing also that plaintiff Chia Hsien Pan filed said
appeal and motion to defer for the valid grounds stated therein deliberately refused
to correct his errors and consented to the arrest of said plaintiff under an invalid
information and warrant of arrest.
29. Defendant Atty. Ramon Reyes, knowing that the suit of defendant Zongoi Xu is
baseless connived with the latter to harass and extort money from plaintiff Chia Hsien
Pan by said criminal prosecution in the manner contrary to law, morals and public
policy, resulting to the arrest of said plaintiff and causing plaintiffs grave irreparable
damages[.][17]
We concur with the IBP that the amendment of the Complaint and the failure
to resort to the proper remedies strengthen complainants allegation that the civil
action was intended to gain leverage against the estafa case. If respondent or his
client did not agree with Prosecutor Salangas resolution, they should have used the
proper procedural and administrative remedies. Respondent could have gone to the
justice secretary and filed a Motion for Reconsideration or a Motion for
Reinvestigation of Prosecutor Salangas decision to file an information for estafa.
In the trial court, a Motion to Dismiss was available to him if he could show that
the estafa case was filed without basis. Moreover, he could have instituted
disbarment proceedings against complainant and Prosecutor Salanga, if he believed
that the two had conspired to act illegally. As a lawyer, respondent should have
advised his client of the availability of these remedies. Thus, the filing of the civil case
had no justification.
The lack of involvement of complainant and Prosecutor Salanga in the business
transaction subject of the collection suit shows that there was no reason for their
inclusion in that case. It appears that respondent took the estafa case as a personal
affront and used the civil case as a tool to return the inconvenience suffered by his
client. His actions demonstrate a misuse of the legal process. The aim of every lawsuit
should be to render justice to the parties according to law, not to harass them.[18]
Lawyers should treat their opposing counsels and other lawyers with courtesy,
dignity and civility. A great part of their comfort, as well as of their success at the bar,
depends upon their relations with their professional brethren. Since they deal
constantly with each other, they must treat one another with trust and respect. Any
undue ill feeling between clients should not influence counsels in their conduct and
demeanor toward each other. Mutual bickering, unjustified recriminations and
offensive behavior among lawyers not only detract from the dignity of the legal
profession,[19] but also constitute highly unprofessional conduct subject to
disciplinary action.
Furthermore, the Lawyers Oath exhorts law practitioners not to wittingly or
willingly promote or sue any groundless, false or unlawful suit, nor give aid nor
consent to the same.
Respondent claims that it was his client who insisted in impleading complainant
and Prosecutor Salanga. Such excuse is flimsy and unacceptable. While lawyers owe
entire devotion to the interests of their clients, their office does not permit violation
of the law or any manner of fraud or chicanery.[20] Their rendition of improper service
invites stern and just condemnation. Correspondingly, they advance the honor of
their profession and the best interests of their clients when they render service or
give advice that meets the strictest principles of moral law.[21]
The highest reward that can be bestowed on lawyers is the esteem of their
professional brethren. This esteem cannot be purchased, perfunctorily created, or
gained by artifice or contrivance. It is born of sharp contests and thrives despite
conflicting interests. It emanates solely from integrity, character, brains and skill in
the honorable performance of professional duty.[22]
WHEREFORE, respondent is found guilty as charged and is
hereby SUSPENDED for two (2) years from the practice of law, effective immediately.
SO ORDERED.
40
Legal Ethics
IN RE: PETITION TO SIGN IN THE ROLL OF ATTORNEYS
MICHAEL A. MEDADO, Petitioner.
We resolve the instant Petition to Sign in the Roll of Attorneys filed by petitioner
Michael A. Medado (Medado).
Medado graduated from the University of the Philippines with the degree of Bachelor
of Laws in 19791 and passed the same year's bar examinations with a general
weighted average of 82.7.2
On 7 May 1980, he took the Attorney’s Oath at the Philippine International
Convention Center (PICC) together with the successful bar examinees.3 He was
scheduled to sign in the Roll of Attorneys on 13 May 1980,4 but he failed to do so on
his scheduled date, allegedly because he had misplaced the Notice to Sign the Roll of
Attorneys5 given by the Bar Office when he went home to his province for a vacation.6
Several years later, while rummaging through his old college files, Medado found the
Notice to Sign the Roll of Attorneys. It was then that he realized that he had not signed
in the roll, and that what he had signed at the entrance of the PICC was probably just
an attendance record.7
By the time Medado found the notice, he was already working. He stated that he was
mainly doing corporate and taxation work, and that he was not actively involved in
litigation practice. Thus, he operated "under the mistaken belief that since he had
already taken the oath, the signing of the Roll of Attorneys was not as urgent, nor as
crucial to his status as a lawyer";8 and "the matter of signing in the Roll of Attorneys
lost its urgency and compulsion, and was subsequently forgotten."9
In 2005, when Medado attended Mandatory Continuing Legal Education (MCLE)
seminars, he was required to provide his roll number in order for his MCLE
compliances to be credited.10
Not having signed in the Roll of Attorneys, he was unable to provide his roll number.
About seven years later, or on 6 February 2012, Medado filed the instant Petition,
praying that he be allowed to sign in the Roll of Attorneys.11
The Office of the Bar Confidant (OBC) conducted a clarificatory conference on the
matter on 21 September 201212 and submitted a Report and Recommendation to this
Court on 4 February 2013.13 The OBC recommended that the instant petition be
denied for petitioner’s gross negligence, gross misconduct and utter lack of merit.14 It
explained that, based on his answers during the clarificatory conference, petitioner
could offer no valid justification for his negligence in signing in the Roll of Attorneys.15
After a judicious review of the records, we grant Medado’s prayer in the instant
petition, subject to the payment of a fine and the imposition of a penalty equivalent
to suspension from the practice of law.
At the outset, we note that not allowing Medado to sign in the Roll of Attorneys would
be akin to imposing upon him the ultimate penalty of disbarment, a penalty that we
have reserved for the most serious ethical transgressions of members of the Bar.
In this case, the records do not show that this action is warranted.
For one, petitioner demonstrated good faith and good moral character when he
finally filed the instant Petition to Sign in the Roll of Attorneys. We note that it was
not a third party who called this Court’s attention to petitioner’s omission; rather, it
was Medado himself who acknowledged his own lapse, albeit after the passage of
more than 30 years. When asked by the Bar Confidant why it took him this long to file
the instant petition, Medado very candidly replied:
Mahirap hong i-explain yan pero, yun bang at the time, what can you say? Takot ka
kung anong mangyayari sa ‘yo, you don’t know what’s gonna happen. At the same
time, it’s a combination of apprehension and anxiety of what’s gonna happen. And,
finally it’s the right thing to do. I have to come here … sign the roll and take the oath
as necessary.16
For another, petitioner has not been subject to any action for disqualification from
the practice of law,17 which is more than what we can say of other individuals who
were successfully admitted as members of the Philippine Bar. For this Court, this fact
demonstrates that petitioner strove to adhere to the strict requirements of the ethics
of the profession, and that he has prima facie shown that he possesses the character
required to be a member of the Philippine Bar.
Finally, Medado appears to have been a competent and able legal practitioner, having
held various positions at the Laurel Law Office,18 Petron, Petrophil Corporation, the
Philippine National Oil Company, and the Energy Development Corporation.19
All these demonstrate Medado’s worth to become a full-fledged member of the
Philippine Bar.1âwphi1 While the practice of law is not a right but a privilege,20 this
Court will not unwarrantedly withhold this privilege from individuals who have shown
mental fitness and moral fiber to withstand the rigors of the profession.
That said, however, we cannot fully exculpate petitioner Medado from all liability for
his years of inaction.
Petitioner has been engaged in the practice of law since 1980, a period spanning more
than 30 years, without having signed in the Roll of Attorneys.21 He justifies this
behavior by characterizing his acts as "neither willful nor intentional but based on a
mistaken belief and an honest error of judgment."22
We disagree.
While an honest mistake of fact could be used to excuse a person from the legal
consequences of his acts23 as it negates malice or evil motive,24 a mistake of law
cannot be utilized as a lawful justification, because everyone is presumed to know the
law and its consequences.25 Ignorantia factiexcusat; ignorantia legis neminem
excusat.
Applying these principles to the case at bar, Medado may have at first operated under
an honest mistake of fact when he thought that what he had signed at the PICC
entrance before the oath-taking was already the Roll of Attorneys. However, the
moment he realized that what he had signed was merely an attendance record, he
could no longer claim an honest mistake of fact as a valid justification. At that point,
Medado should have known that he was not a full-fledged member of the Philippine
41
Legal Ethics

Bar because of his failure to sign in the Roll of Attorneys, as it was the act of signing Let a copy of this Resolution be furnished the Office of the Bar Confidant, the
therein that would have made him so.26 When, in spite of this knowledge, he chose Integrated Bar
to continue practicing law without taking the necessary steps to complete all the of the Philippines, and the Office of the Court Administrator for circulation to all
requirements for admission to the Bar, he willfully engaged in the unauthorized courts in the country.
practice of law. SO ORDERED.
Under the Rules of Court, the unauthorized practice of law by one’s assuming to be
an attorney or officer of the court, and acting as such without authority, may
constitute indirect contempt of court,27 which is punishable by fine or imprisonment
or both.28 Such a finding, however, is in the nature of criminal contempt29 and must
be reached after the filing of charges and the conduct of hearings.30 In this case, while
it appears quite clearly that petitioner committed indirect contempt of court by
knowingly engaging in unauthorized practice of law, we refrain from making any
finding of liability for indirect contempt, as no formal charge pertaining thereto has
been filed against him.
Knowingly engaging in unauthorized practice of law likewise transgresses Canon 9 of
'the Code of Professional Responsibility, which provides:
CANON 9 -A lawyer shall not, directly or indirectly, assist in the unauthorized practice
of law.
While a reading of Canon 9 appears to merely prohibit lawyers from assisting in the
unauthorized practice of law, the unauthorized practice of law by the lawyer himself
is subsumed under this provision, because at the heart of Canon 9 is the lawyer's duty
to prevent the unauthorized practice of law. This duty likewise applies to law students
and Bar candidates. As aspiring members of the Bar, they are bound to comport
themselves in accordance with the ethical standards of the legal profession.
Turning now to the applicable penalty, previous violations of Canon 9have warranted
the penalty of suspension from the practice of law.31 As Medado is not yet a full-
fledged lawyer, we cannot suspend him from the practice of law. However, we see it
fit to impose upon him a penalty akin to suspension by allowing him to sign in the Roll
of Attorneys one (1) year after receipt of this Resolution. For his transgression of the
prohibition against the unauthorized practice of law, we likewise see it fit to fine him
in the amount of P32,000. During the one year period, petitioner is warned that he is
not allowed to engage in the practice of law, and is sternly warned that doing any act
that constitutes practice of law before he has signed in the Roll of Attorneys will be
dealt with severely by this Court.
WHEREFORE, the instant Petition to Sign in the Roll of Attorneys is hereby GRANTED.
Petitioner Michael A. Medado is ALLOWED to sign in the Roll of Attorneys ONE (1)
YEAR after receipt of this Resolution. Petitioner is likewise ORDERED to pay a FINE
of P32,000 for his unauthorized practice of law. During the one year period, petitioner
is NOT ALLOWED to practice law, and is STERNLY WARNED that doing any act that
constitutes practice of law before he has signed in the Roll of Attorneys will be dealt
will be severely by this Court.

42
Legal Ethics
REXIE EFREN A. BUGARING AND ROYAL BECHTEL BUILDERS, INC., petitioners, vs. HON.
DOLORES S. ESPAOL, in her capacity as Presiding Judge of the Regional Trial
Court Branch 90, Imus, Cavite, respondent.
Before us is a petition for review on certiorari of the Decision dated March 6, 1998
of the Court of Appeals[1] affirming the decision of the Regional Trial Court of Cavite, Branch
90, Imus, Cavite, declaring petitioner Rexie Efren A. Bugaring guilty in direct contempt of
court.
The incident subject of the petition occurred during a hearing held on December 5,
1996 of Civil Case No. 1266-96 entitled Royal Becthel[2] Builders, Inc. vs. Spouses Luis
Alvaran and Beatriz Alvaran, et al., for Annulment of Sale and Certificates of Title, Specific
Performance and Damages with Prayer for Preliminary Injunction and/or Temporary
Restraining Order in the sala of respondent judge Dolores S. Espaol of the Regional Trial
Court of Cavite, Branch 90, Imus, Cavite.
Pursuant to a motion filed by the previous counsel of Royal Bechtel Builders, Inc.,
the trial court issued an order on February 27, 1996 directing the Register of Deeds of the
Province of Cavite to annotate at the back of certain certificates of title a notice of lis
pendens. Before the Register of Deeds of the Province of Cavite could comply with said
order, the defendant Spouses Alvaran on April 15, 1996, filed a motion to cancel lis
pendens. On July 19, 1996, petitioner, the newly appointed counsel of Royal Bechtel
Builders, Inc., filed an opposition to the motion to cancel lis pendens. On August 16, 1996,
the motion to cancel lis pendens was granted by the court. Petitioner filed a motion for
reconsideration, which was opposed by the defendants. On November 5, 1996, petitioner
filed an Urgent Motion to Resolve, and on November 6, 1996, filed a Rejoinder to
Opposition and a Motion for Contempt of Court.[3]
During the hearing of the motion for contempt of court held on December 5, 1996,
the following incident transpired:
ATTY. BUGARING: For the plaintiff, your Honor, we are ready.
ATTY CORDERO: Same appearance for the defendant, your Honor.
ATTY. BUGARING: Your Honor please, we are ready with respect to the prosecution of
our motion for contempt, your Honor. May we know from the record if the
Register of Deeds is properly notified for todays hearing.
COURT: Will you call on the Register of Deeds.
INTERPRETER: Atty. Diosdado Concepcion, He is here, your Honor.
ATTY. BUGARING: We are ready, your Honor.
COURT: There is a motion for contempt in connection with the order of this Court
which directed your office to register lis pendens of the complaint in connection
with this case of Royal Becthel Builder, Inc. versus spouses Luis Alvaran and
Beatriz Alvaran, et al.
ATTY. CONCEPCION: Your Honor, I just received this morning at ten o clock [in the
morning] the subpoena.
ATTY. BUGARING: May we put it on record that as early as November 6, 1996, the
Office of the Register of Deeds was furnished with a copy of our motion, your
Honor please, and the record will bear it out. Until now they did not file any
answer, opposition or pleadings with respect to this motion.
ATTY. CONCEPCION: Well I was not informed because I am not the Register of Deeds. I
am only the Deputy Register of Deeds and I was not informed by the receiving
clerk of our office regarding this case. As a matter of fact I was surprised when I
received this morning the subpoena, your Honor.
ATTY. BUGARING: Your Honor please, may we put that on record that the
manifestation of the respondent that he was not informed.
COURT: That is recorded. This is a Court of record and everything that you say here is
recorded.
ATTY. BUGARING: Yes your Honor please, we know that but we want to be specific
because we will be [filing] a case against this receiving clerk who did not [inform]
him your Honor please, with this manifestation of the Deputy of the Register of
Deeds that is irregularity in the performance of the official duty of the clerk not
to inform the parties concerned.
COURT: Counsel, the Court would like to find out who this fellow who is taking the
video recording at this proceedings. There is no permission from this Court that
such proceedings should be taken.
ATTY. BUGARING: Your Honor, my Assistant. I did not advise him to take a video he just
accompanied me this morning.
COURT: Right, but the video recording is prepared process and you should secure the
permission of this Court.
ATTY. BUGARING: Actually, I did not instruct him to take some video tape.
COURT: Why would he be bringing camera if you did not give him the go signal that
shots should be done.
ATTY. BUGARING: This Court should not presume that, your Honor please, we just
came from an occasion last night and I am not yet come home, your Honor
please. I could prove your Honor please, that the contents of that tape is other
matters your Honor please. I was just surprised why he took video tape your
Honor please, that we ask the apology of this Court if that offend this Court
your Honor please.
COURT: It is not offending because this is a public proceedings but the necessary
authority or permission should be secured.
ATTY. BUGARING: In fact I instructed him to go out, your Honor.
COURT: After the court have noticed that he is taking a video tape.
ATTY. BUGARING: Yes, your Honor, in fact that is not my personal problem your Honor
please, that is personal to that guy your Honor please if this representation is
being .
COURT: That is very shallow, dont give that alibi.
ATTY. BUGARING: At any rate, your Honor please, we are going to mark our
documentary evidence as part of our motion for contempt, your Honor please.
COURT: What has the Register of Deeds got to say with this matter?
ATTY. CONCEPCION: Well as I have said before, I have not received any motion
regarding this contempt you are talking. I am willing now to testify.
ATTY. BUGARING: Your Honor I am still of the prosecution stage, it is not yet the
defense. This is a criminal proceedings, contempt proceedings is a criminal.
ATTY. CONCEPCION: Your Honor please, may I ask for the assistance from the Fiscal.
43
Legal Ethics
COURT: If this is going to proceed, we need the presence of a Fiscal or a counsel for
the Register of Deeds.
ATTY. CONCEPCION: Can I appoint an outside lawyer not a Fiscal but a private
counsel, your Honor.
COURT: That is at your pleasure. The Court will consider that you should be amply
represented.
ATTY. CONCEPCION: As a matter of fact I have a lawyer here, Atty. Barzaga if he is
willing
ATTY. BARZAGA[4]: Yes, your Honor, I will just review the records.
ATTY. BUGARING: Anyway your Honor please, I will not yet present my witness but I
will just mark our documentary exhibits which are part of the record of the case
and thereafter your Honor please.
COURT: You wait for a minute counsel because there is a preparation being done by
newly appointed counsel of the respondent, Atty. Barzaga is considered as the
privately hired counsel of the register of deeds and the respondent of this
contempt proceedings. How much time do you need to go over the record of
this case so that we can call the other case in the meanwhile.
ATTY. BARZAGA: Second call, your Honor.
-----------------------------------------------------------------
--------------
COURT: Are you ready Atty. Barzaga?
ATTY. BARZAGA: Yes, your Honor. Well actually your Honor, after reviewing the record
of the case your Honor, I noticed that the motion for contempt of Court was
filed on November 6, 1966 and in paragraph 6 thereof, your Honor it is stated
that, the record of the case shows up to the filing of this motion, the Register as
well as the Deputy Register Diosdado Concepcion of the Office of the Register
of Deeds of the Province of Cavite, did not comply with the Court Orders dated
February 27, 1996, March 29, 1996, respectively. However, your Honor, Atty.
Diosdado Concepcion has shown to me a letter coming from Atty. Efren A.
Bugaring dated September 18, 1996 addressed to the Register regarding this
notice of Lis Pendens pertaining to TCT Nos. T-519248, 519249 and 519250 and
this letter request, your Honor for the annotation of the lis pendens clearly
shows that it has been already entered in the book of primary entry. We would
like also to invite the attention of the Hon. Court that the Motion for Contempt
of Court was filed on November 6, 1996. The letter for the annotation of the lis
pendens was made by the counsel for the plaintiff only on September 18, 1996,
your Honor. However, your Honor, as early as August 16, 1996 an Order has
already been issued by the Hon. Court reading as follows, Wherefore in view
of the above, the motion of the defendant is GRANTED and the Register of
Deeds of the Province of Cavite, is hereby directed to CANCEL the notice of lis
pendens annotated at the back of Certificate of Title Nos. 519248, 51949 (sic)
and 51950 (sic).
ATTY. BUGARING: Your Honor please, may we proceed your Honor, will first mark our
documentary evidence.
COURT: You wait until the Court allows you to do what you want to do, okay. The
counsel has just made manifestation, he has not prayed for anything. So let us
wait until he is finished and then wait for the direction of this Court what to do
to have an orderly proceedings in this case.
ATTY. BARZAGA: Considering your Honor, that the issues appear to be a little bit
complicated your Honor, considering that the order regarding the annotation of
the lis pendens has already been revoked by the Hon. Court your Honor, we just
request that we be given a period of ten days from today your Honor, within
which to submit our formal written opposition your Honor.
COURT: Counsel, will you direct your attention to the manifestation filed earlier by
Atty. Tutaan in connection with the refusal of the Register of Deeds to annotate
the lis pendens because of certain reasons. According to the manifestation of
Atty. Tutaan and it is appearing in the earlier part of the record of this case, the
reason for that is because there was a pending subdivision plan, it is so stated. I
think it was dated March, 1996. May I have the record please.
ATTY. BARZAGA: Yes, your Honor.
COURT: This Court would like to be enlightened with respect to that matter.
ATTY. BARZAGA: Well, according to Atty. Diosdado Concepcion he could already
explain this, your Honor.
COURT: Have it properly addressed as part of the manifestation so that this court can
be guided accordingly. Because this Court believes that the root of the matter
started from that. After the submission of the . what are you suppose to submit?
ATTY. BARZAGA: Comment your Honor, on the motion to cite Atty. Diosdado
Concepcion in contempt of Court.
COURT: After the submission of the Comment and furnishing a copy of the comment
to the counsel for the plaintiff, this Court is going to give the counsel for the
plaintiff an equal time within which to submit his reply.
ATTY. BUGARING: Your Honor please, it is the position of this representation your
Honor please, that we will be marking first our documentary evidence because
this is set for hearing for today, your Honor please.
COURT: If you are going to mark your evidence and they do not have their comment
yet what are we going to receive as evidence.
ATTY. BUGARING: If your Honor please
COURT: Will you listen to the Court and just do whatever you have to do after the
submission of the comment.
ATTY. BUGARING: I am listening, your Honor please, but the record will show that the
motion for contempt was copy furnished with the Register of Deeds and
Diosdado Concepcion.
COURT: Precisely, if you are listening then you will get what the Court would want to
do. This should be an orderly proceedings and considering that this is a Court of
record the comment has to be in first then in your reply you can submit your
evidence to rebut the argument that is going to be put up by the respondent
and so we will be able to hear the case smoothly.
ATTY. BUGARING: My point here your Honor please, is that the respondent had been
long time furnished of this contempt proceedings. With a copy of the motion
44
Legal Ethics
they should have filed it in due time in accordance with the rules and because it
is scheduled for trial, we are ready to mark our evidence and present to this
Court, your Honor.
COURT: (Banging the gavel) Will you listen.
ATTY. BUGARING: I am listening, your Honor.
COURT: And this Court declares that you are out of order.
ATTY. BUGARING: Well, if that is the contention of the Court your Honor please, we
are all officers of the Court, your Honor, please, we have also ---- and we know
also our procedure, your Honor.
COURT: If you know your procedure then you follow the procedure of the Court first
and then do whatever you want.
ATTY. BUGARING: Yes, your Honor please, because we could feel the antagonistic
approach of the Court to this representation ever since I appeared your Honor
please and I put on record that I will be filing an inhibition to this Hon. Court.
COURT: Do that right away. (Banging the gavel)
ATTY. BUGARING: Because we could not find any sort of justice in town.
COURT: Do that right away.
ATTY. BUGARING: We are ready to present our witness and we are deprive to present
our witness.
COURT: You have presented a witness and it was an adverse witness that was
presented.
ATTY. BUGARING: I did not.
COURT: With respect to this, the procedure of the Court is for the respondent to file
his comment.
ATTY. BUGARING: Well your Honor please, at this point in time I dont want to
comment on anything but I reserve my right to inhibit this Honorable Court
before trying this case.
COURT: You can do whatever you want.
ATTY. BUGARING: Yes, your Honor, that is our prerogative your Honor.
COURT: As far as this Court is concerned it is going to follow the rules.
ATTY. BUGARING: Yes, your Honor, we know all the rules.
COURT: Yes, you know your rules thats why you are putting the cart ahead of the
horse.
ATTY. BUGARING: No your Honor, Ive been challenged by this Court that I know better
than this Court. Modestly (sic) aside your Honor please, Ive been winning in
many certiorari cases, your Honor.
COURT: Okay, okay, do that, do that. I am going to cite you for contempt of
Court. (Banging the gavel) You call the police and I am going to send this lawyer
in jail. (Turning to the Sheriff)
ATTY. BUGARING: I am just manifesting and arguing in favor of my client your Honor
please.
COURT: You have been given enough time and you have been abusing the discretion
of this Court.
ATTY. BUGARING: I am very sorry your Honor, if that is the appreciation of the Court
but this is one way I am protecting my client, your Honor.
COURT: That is not the way to protect your client that is an abuse of the discretion of
this Court. (Turning to the Sheriff) Will you see to it that this guy is put in jail. (pp.
29-42. Rollo)
Hence, in an Order dated December 5, 1996, Judge Espaol cited petitioner in direct
contempt of court, thus:
During the hearing of this case, plaintiffs and counsel were present together with one (1)
operating a video camera who was taking pictures of the proceedings of the case while
counsel, Atty. Rexie Efren Bugaring was making manifestation to the effect that he was
ready to mark his documentary evidence pursuant to his Motion to cite (in contempt of
court) the Deputy Register of Deeds of Cavite, Diosdado Concepcion.
The Court called the attention of said counsel who explained that he did not cause the
appearance of the cameraman to take pictures, however, he admitted that they came from
a function, and that was the reason why the said cameraman was in tow with him and the
plaintiffs. Notwithstanding the flimsy explanation given, the counsel sent out the
cameraman after the Court took exception to the fact that although the proceedings are
open to the public and that it being a court of record, and since its permission was not
sought, such situation was an abuse of discretion of the Court.
When the respondent, Deputy Register of Deeds Concepcion manifested that he needed
the services of counsel and right then and there appointed Atty. Elpidio Barzaga to
represent him, the case was allowed to be called again. On the second call, Atty. Bugaring
started to insist that he be allowed to mark and present his documentary evidence in spite
of the fact that Atty. Barzaga was still manifesting that he be allowed to submit a written
pleading for his client, considering that the Motion has so many ramifications and the
issues are complicated.
At this point, Atty. Bugaring was insisting that he be allowed to mark his documentary
evidence and was raring to argue as in fact he was already perorating despite the fact that
Atty. Barzaga has not yet finished with his manifestation. As Atty. Bugaring appears to
disregard orderly procedure, the Court directed him to listen and wait for the ruling of the
Court for an orderly proceeding.
While claiming that he was listening, he would speak up anytime he felt like doing so. Thus,
the Court declared him out of order, at which point, Atty. Bugaring flared up and uttered
words insulting the Court; such as: that he knows better than the latter as he has won
all his cases of certiorari in the appellate Courts, that he knows better the Rules of
Court; that he was going to move for the inhibition of the Presiding Judge for allegedly
being antagonistic to his client, and other invectives were hurled to the discredit of the
Court.
Thus, in open court, Atty. Bugaring was declared in direct contempt and order the Courts
sheriff to arrest and place him under detention.
WHEREFORE, in view of the foregoing and the fact that Atty.
Rexie Efren Bugaring committed an open defiance, even challenging the Court in a
disrespectful, arrogant, and contumacious manner, he is declared in direct contempt of
Court and is sentenced to three (3) days imprisonment and payment of a fine of P3,000.00.
His detention shall commence immediately at the Municipal Jail of Imus, Cavite.[5]
Pursuant to said Order, the petitioner served his three (3) day sentence at the Imus
Municipal Jail, and paid the fine of P3,000.00.[6]
45
Legal Ethics
While serving the first day of his sentence on December 5, 1996, petitioner filed a
motion for reconsideration of the Order citing him in direct contempt of court. The next
day, December 6, 1996, petitioner filed another motion praying for the resolution of his
motion for reconsideration. Both motions were never resolved and petitioner was released
on December 8, 1996.[7]
To clear his name in the legal circle and the general public, petitioner filed a petition
before the Court of Appeals praying for the annulment of the Order dated December 5,
1996 citing him in direct contempt of court and the reimbursement of the fine of P3,000.00
on grounds that respondent Judge Dolores S. Espaol had no factual and legal basis in citing
him in direct contempt of court, and that said Order was null and void for being in violation
of the Constitution and other pertinent laws and jurisprudence.[8]
The Court of Appeals found that from a thorough reading of the transcript of
stenographic notes of the hearing held on December 5, 1996, it was obvious that the
petitioner was indeed arrogant, at times impertinent, too argumentative, to the extent of
being disrespectful, annoying and sarcastic towards the court.[9] It affirmed the order of
the respondent judge, but found that the fine of P3,000.00 exceeded the limit of P2,000.00
prescribed by the Rules of Court,[10] and ordered the excess of P1,000.00 returned to
petitioner. On March 6, 1998, it rendered judgment, the dispositive portion of which reads:
WHEREFORE, the petition is hereby DISMISSED for lack of merit and the assailed order
dated December 5, 1996 issued by the trial court is hereby AFFIRMED with the modification
that the excess fine of P1,000.00 is ORDERED RETURNED to the petitioner.
Before us, petitioner ascribes to the Court of Appeals this lone error:
THE APPELLATE COURT COMMITTED A REVERSIBLE ERROR IN AFFIRMING THE ASSAILED
ORDER OF THE TRIAL COURT WHICH TO PETITIONERS SUBMISSIONS SMACKS OF
OPPRESSION AND ABUSE OF AUTHORITY, HENCE IT COMMITTED A GRAVE ERROR OF LAW
IN ITS QUESTIONED DECISION.[11]
Petitioner insists that a careful examination of the transcript of stenographic notes
of the subject proceedings would reveal that the contempt order issued by respondent
judge had no factual and legal basis. It would also show that he was polite and respectful
towards the court as he always addressed the court with the phrase your honor please.
We disagree.
Section 1, Rule 71 of the Rules of Court as amended by Administrative Circular No.
22-95 provides:
Direct contempt punished summarily. - A person guilty of misbehavior in the presence of
or so near a court or judge as to obstruct or interrupt the proceedings before the same,
including disrespect toward the court or judge, offensive personalities toward others, or
refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition
when lawfully required to do so, may be summarily adjudged in contempt by such court or
judge and punished by a fine not exceeding two thousand pesos or imprisonment not
exceeding ten (10) days, or both, if it be a superior court, or a judge thereof, or by a fine
not exceeding two hundred pesos or imprisonment not exceeding one (1) day, or both, if
it be an inferior court.
We agree with the statement of the Court of Appeals that petitioners alleged
deference to the trial court in consistently addressing the respondent judge as your Honor
please throughout the proceedings is belied by his behavior therein:
1. the veiled threat to file a petition for certiorari against the trial court (pp.
14-15, tsn, December 5, 1996; pp. 41-42, Rollo) is contrary to Rule 11.03,
Canon 11 of the Code of Professional Responsibility which mandates that
a lawyer shall abstain from scandalous, offensive or menacing language
or behavior before the Courts.
2. the hurled uncalled for accusation that the respondent judge was partial in
favor of the other party (pp. 13-14, tsn, December 5, 1996; pp. 40-41,
Rollo) is against Rule 11.04, Canon 11 of the Code of Professional
Responsibility which enjoins lawyers from attributing to a judge motives
not supported by the record or have no materiality to the case.
3. behaving without due regard to the trial courts order to maintain order in
the proceedings (pp. 9-13, tsn, December 5, 1996; pp. 36-40, Rollo) is in
utter disregard to Canon 1 of the Canons of Professional Ethics which
makes it a lawyers duty to maintain towards the courts (1) respectful
attitude in order to maintain its importance in the administration of
justice, and Canon 11 of the Code of Professional Responsibility which
mandates lawyers to observe and maintain the respect due to the Courts
and to judicial officers and should insist on similar conduct by others.
4. behaving without due regard or deference to his fellow counsel who at the
time he was making representations in behalf of the other party, was
rudely interrupted by the petitioner and was not allowed to further put a
word in edgewise (pp. 7-13, tsn, December 5, 1996; pp. 34-39, Rollo) is
violative of Canon 8 of the Code of Professional Responsibility and Canon
22 of the Canons of Professional Ethics which obliges a lawyer to conduct
himself with courtesy, fairness and candor toward his professional
colleagues, and
5. the refusal of the petitioner to allow the Registrar of Deeds of the Province
of Cavite, through counsel, to exercise his right to be heard (Ibid) is
against Section 1 of Article III, 1997 Constitution on the right to due
process of law, Canon 18 of the Canons of Professional Ethics which
mandates a lawyer to always treat an adverse witness with fairness and
due consideration, and Canon 12 of Code of Professional Responsibility
which insists on a lawyer to exert every effort and consider it his duty to
assist in the speedy and efficient administration of justice.
The Court cannot therefore help but notice the sarcasm in the petitioners use of the phrase
your honor please. For, after using said phrase he manifested utter disrespect to the court
in his subsequent utterances. Surely this behavior from an officer of the Court cannot and
should not be countenanced, if proper decorum is to be observed and maintained during
court proceedings.[12]
Indeed, the conduct of petitioner in persisting to have his documentary evidence
marked to the extent of interrupting the opposing counsel and the court showed
disrespect to said counsel and the court, was defiant of the courts system for an orderly
proceeding, and obstructed the administration of justice. The power to punish for
contempt is inherent in all courts and is essential to the preservation of order in judicial
proceedings and to the enforcement of judgments, orders, and mandates of the court, and
46
Legal Ethics

consequently, to the due administration of justice.[13] Direct contempt is committed in the

presence of or so near a court or judge, as in the case at bar, and can be punished
summarily without hearing.[14] Hence, petitioner cannot claim that there was irregularity
in the actuation of respondent judge in issuing the contempt order inside her chamber
without giving the petitioner the opportunity to defend himself or make an immediate
reconsideration. The records show that petitioner was cited in contempt of court during
the hearing in the sala of respondent judge, and he even filed a motion for reconsideration
of the contempt order on the same day.[15]
Petitioner argued that while it might appear that he was carried by his emotions in
espousing the case of his client - by persisting to have his documentary evidence marked
despite the respondent judges contrary order - he did so in the honest belief that he
was bound to protect the interest of his client to the best of his ability and with utmost
diligence.
The Court of Appeals aptly stated:
But a lawyer should not be carried away in espousing his clients cause (Buenaseda v.
Flavier, 226 SCRA 645, 656). He should not forget that he is an officer of the court, bound
to exert every effort and placed under duty, to assist in the speedy and efficient
administration of justice pursuant to Canon 12, Canons of Professional Responsibility
(Gomez v. Presiding Judge, RTC, Br. 15, Ozamis City, 249 SCRA 432, 439). He should not ,
therefore, misuse the rules of procedure to defeat the ends of justice per Rule
10.03. Canon 10 of the Canons of Professional Responsibility, or unduly delay a case,
impede the execution of a judgment or misuse court processes, in accordance with Rule
12.04, Canon 12 of the same Canons (Ibid).
Lawyers should be reminded that their primary duty is to assist the courts in the
administration of justice. Any conduct which tends to delay, impede or obstruct the
administration of justice contravenes such lawyers duty.[16]
Although respondent judge was justified in citing petitioner in direct contempt of
court, she erred in imposing a fine in the amount of P3,000.00 which exceeded the ceiling
of P2,000.00 under Supreme Court Administrative Circular No. 22-95 which took effect on
November 16, 1995. It was not established that the fine was imposed in bad
faith. The Court of Appeals thus properly ordered the return of the excess of
P1,000.00. Aside from the fine, the three days imprisonment meted out to petitioner was
justified and within the 10-day limit prescribed in Section 1, Rule 71 of the Rules of Court,
as amended.
It is our view and we hold, therefore, that the Court of Appeals did not commit any
reversible error in its assailed decision.
WHEREFORE, the assailed Decision dated March 6, 1998 of the Court of Appeals is
hereby AFFIRMED. The Regional Trial Court of Cavite, Branch 90, Imus, Cavite is ordered to
return to the petitioner, Rexie Efren A. Bugaring, the sum of P1,000.00 out of the original
fine of P3,000.00.
SO ORDERED.

47
Legal Ethics
ANA MARIE CAMBALIZA
- versus-
ATTY. ANA LUZ B. CRISTAL-TENORIO
In a verified complaint for disbarment filed with the Committee on Bar
Discipline of the Integrated Bar of the Philippines (IBP) on 30 May 2000, complainant
Ana Marie Cambaliza, a former employee of respondent Atty. Ana Luz B. Cristal-
Tenorio in her law office, charged the latter with deceit, grossly immoral conduct, and
malpractice or other gross misconduct in office.
On deceit, the complainant alleged that the respondent has been falsely
representing herself to be married to Felicisimo R. Tenorio, Jr., who has a prior and
subsisting marriage with another woman. However, through spurious means, the
respondent and Felicisimo R. Tenorio, Jr., were able to obtain a false marriage
contract,[1] which states that they were married on 10 February 1980 in
Manila. Certifications from the Civil Registry of Manila[2] and the National Statistics
Office (NSO)[3] prove that no record of marriage exists between them. The false date
and place of marriage between the two are stated in the birth certificates of their two
children, Donnabel Tenorio[4] and Felicisimo Tenorio III.[5] But in the birth certificates
of their two other children, Oliver Tenorio[6] and John Cedric Tenorio,[7] another date
and place of marriage are indicated, namely, 12 February 1980 in Malaybalay,
Bukidnon.
As to grossly immoral conduct, the complainant alleged that the
respondent caused the dissemination to the public of a libelous affidavit derogatory
to Makati City Councilor Divina Alora Jacome. The respondent would often openly and
sarcastically declare to the complainant and her co-employees the alleged immorality
of Councilor Jacome.
On malpractice or other gross misconduct in office, the complainant alleged
that the respondent (1) cooperated in the illegal practice of law by her husband, who
is not a member of the Philippine Bar; (2) converted her clients money to her own use
and benefit, which led to the filing of an estafa case against her; and (3) threatened
the complainant and her family on 24 January 2000 with the statement Isang bala ka
lang to deter them from divulging respondents illegal activities and transactions.
In her answer, the respondent denied all the allegations against her. As to
the charge of deceit, she declared that she is legally married to Felicisimo R. Tenorio,
Jr. They were married on 12 February 1980 as shown by their Certificate of Marriage,
Registry No. 2000-9108 of the Civil Registry of Quezon City.[8] Her husband has no
prior and subsisting marriage with another woman.
As to the charge of grossly immoral conduct, the respondent denied that
she caused the dissemination of a libelous and defamatory affidavit against Councilor
Jacome. On the contrary, it was Councilor Jacome who caused the execution of said
document. Additionally, the complainant and her cohorts are the rumormongers who
went around the city of Makati on the pretext of conducting a survey but did so to
besmirch respondents good name and reputation.
The charge of malpractice or other gross misconduct in office was likewise
denied by the respondent. She claimed that her Cristal-Tenorio Law Office is
registered with the Department of Trade and Industry as a single proprietorship, as
shown by its Certificate of Registration of Business Name.[9] Hence, she has no
partners in her law office. As to the estafa case, the same had already been dropped
pursuant to the Order of 14 June 1996 issued by Branch 103 of the Regional Trial
Court of Quezon City.[10] The respondent likewise denied that she threatened the
complainant with the words Isang bala ka lang on 24 January 2000.
Further, the respondent averred that this disbarment complaint was filed
by the complainant to get even with her. She terminated complainants employment
after receiving numerous complaints that the complainant extorted money from
different people with the promise of processing their passports and marriages to
foreigners, but she reneged on her promise. Likewise, this disbarment complaint is
politically motivated: some politicians offered to re-hire the complainant and her
cohorts should they initiate this complaint, which they did and for which they were
re-hired. The respondent also flaunted the fact that she had received numerous
awards and citations for civic works and exemplary service to the community. She
then prayed for the dismissal of the disbarment case for being baseless.
The IBP referred this case to Investigating Commissioner Atty. Kenny H.
Tantuico.
During the hearing on 30 August 2000, the parties agreed that the
complainant would submit a Reply to respondents Answer, while the respondent
would submit a Rejoinder to the Reply. The parties also agreed that the Complaint,
Answer, and the attached affidavits would constitute as the respective direct
testimonies of the parties and the affiants.[11]
In her Reply, the complainant bolstered her claim that the respondent
cooperated in the illegal practice of law by her husband by submitting (1) the
letterhead of Cristal-Tenorio Law Office[12] where the name of Felicisimo R. Tenorio,
Jr., is listed as a senior partner; and (2) a Sagip Communication Radio Group
identification card[13] signed by the respondent as Chairperson where her husband is
48
Legal Ethics
identified as Atty. Felicisimo R. Tenorio, Jr. She added that respondents husband even
appeared in court hearings.
In her Rejoinder, respondent averred that she neither formed a law
partnership with her husband nor allowed her husband to appear in court on her
behalf. If there was an instance that her husband appeared in court, he did so as a
representative of her law firm. The letterhead submitted by the complainant was a
false reproduction to show that her husband is one of her law partners. But upon
cross-examination, when confronted with the letterhead of Cristal-Tenorio Law
Office bearing her signature, she admitted that Felicisimo R. Tenorio, Jr., is not a
lawyer, but he and a certain Gerardo A. Panghulan, who is also not a lawyer, are
named as senior partners because they have investments in her law office.[14]
The respondent further declared that she married Felicisimo R. Tenorio, Jr.,
on 12 February 1980 in Quezon City, but when she later discovered that their
marriage contract was not registered she applied for late registration on 5 April
2000. She then presented as evidence a certified copy of the marriage contract issued
by the Office of the Civil Registrar General and authenticated by the NSO. The
erroneous entries in the birth certificates of her children as to the place and date
of her marriage were merely an oversight.[15]
Sometime after the parties submitted their respective Offer of Evidence
and Memoranda, the complainant filed a Motion to Withdraw Complaint on 13
November 2002 after allegedly realizing that this disbarment complaint arose out of
a misunderstanding and misappreciation of facts. Thus, she is no longer interested in
pursuing the case. This motion was not acted upon by the IBP.
In her Report and Recommendation dated 30 September 2003, IBP
Commissioner on Bar Discipline Milagros V. San Juan found that the complainant
failed to substantiate the charges of deceit and grossly immoral conduct. However,
she found the respondent guilty of the charge of cooperating in the illegal practice of
law by Felicisimo R. Tenorio, Jr., in violation of Canon 9 and Rule 9.01 of the Code of
Professional Responsibility based on the following evidence: (1) the letterhead
of Cristal-Tenorio Law Office, which lists Felicisimo R. Tenorio, Jr., as a senior partner;
(2) the Sagip Communication Radio Group identification card of Atty. Felicisimo R.
Tenorio, Jr., signed by respondent as Chairperson; (3) and the Order dated 18 June
1997 issued by the Metropolitan Trial Court in Criminal Cases Nos. 20729 20734,
wherein Felicisimo R. Tenorio, Jr., entered his appearance as counsel and even moved
for the provisional dismissal of the cases for failure of the private complainants to
appear and for lack of interest to prosecute the said cases. Thus, Commissioner San
Juan recommended that the respondent be reprimanded.
In its Resolution No. XVI-2003-228 dated 25 October 2003, the IBP Board of
Governors adopted and approved with modification the Report and
Recommendation of Commissioner San Juan. The modification consisted in increasing
the penalty from reprimand to suspension from the practice of law for six months
with a warning that a similar offense in the future would be dealt with more severely.
We agree with the findings and conclusion of Commissioner San Juan as
approved and adopted with modification by the Board of Governors of the IBP.
At the outset, we find that the IBP was correct in not acting on the Motion
to Withdraw Complaint filed by complainant Cambaliza. In Rayos-Ombac vs.
Rayos,[16] we declared:
The affidavit of withdrawal of the disbarment case
allegedly executed by complainant does not, in any way,
exonerate the respondent. A case of suspension or disbarment
may proceed regardless of interest or lack of interest of the
complainant. What matters is whether, on the basis of the facts
borne out by the record, the charge of deceit and grossly
immoral conduct has been duly proven. This rule is premised
on the nature of disciplinary proceedings. A proceeding for
suspension or disbarment is not in any sense a civil action
where the complainant is a plaintiff and the respondent lawyer
is a defendant. Disciplinary proceedings involve no private
interest and afford no redress for private grievance. They are
undertaken and prosecuted solely for the public welfare. They
are undertaken for the purpose of preserving courts of justice
from the official ministration of persons unfit to practice in
them.The attorney is called to answer to the court for his
conduct as an officer of the court. The complainant or the
person who called the attention of the court to the attorney's
alleged misconduct is in no sense a party, and has generally no
interest in the outcome except as all good citizens may have in
the proper administration of justice. Hence, if the evidence on
record warrants, the respondent may be suspended or
disbarred despite the desistance of complainant or his
withdrawal of the charges.
Hence, notwithstanding the Motion to Withdraw Complaint, this disbarment case
should proceed accordingly.
49
Legal Ethics
The IBP correctly found that the charges of deceit and grossly immoral
conduct were not substantiated. In disbarment proceedings, the complainant has the
burden of proving his case by convincing evidence.[17] With respect to the estafa case
which is the basis for the charge of malpractice or other gross misconduct in office,
the respondent is not yet convicted thereof. In Gerona vs. Datingaling,[18] we held
that when the criminal prosecution based on the same act charged is still pending in
court, any administrative disciplinary proceedings for the same act must await the
outcome of the criminal case to avoid contradictory findings.
We, however, affirm the IBPs finding that the respondent is guilty of assisting in the
unauthorized practice of law. A lawyer who allows a non-member of the Bar to
misrepresent himself as a lawyer and to practice law is guilty of violating Canon 9 and
Rule 9.01 of the Code of Professional Responsibility, which read as follows:
Canon 9 A lawyer shall not directly or indirectly assist in the
unauthorized practice of law.
Rule 9.01 A lawyer shall not delegate to any unqualified person
the performance of any task which by law may only be
performed by a member of the Bar in good standing.
The term practice of law implies customarily or habitually holding oneself
out to the public as a lawyer for compensation as a source of livelihood or in
consideration of his services. Holding ones self out as a lawyer may be shown by acts
indicative of that purpose like identifying oneself as attorney, appearing in court in
representation of a client, or associating oneself as a partner of a law office for the
general practice of law.[19] Such acts constitute unauthorized practice of law.
In this case, Felicisimo R. Tenorio, Jr., is not a lawyer, but he holds himself
out as one. His wife, the respondent herein, abetted and aided him in
the unauthorized practice of the legal profession.
At the hearing, the respondent admitted that the letterhead of Cristal-
Tenorio Law Office listed Felicisimo R. Tenorio, Jr., Gerardo A. Panghulan, and Maricris
D. Battung as senior partners. She admitted that the first two are not lawyers but
paralegals. They are listed in the letterhead of her law office as senior partners
because they have investments in her law office.[20] That is a blatant
misrepresentation.
The Sagip Communication Radio Group identification card is another proof
that the respondent assisted Felicisimo R. Tenorio, Jr., in misrepresenting to the public
that he is a lawyer. Notably, the identification card stating that he is Atty. Felicisimo
Tenorio, Jr., bears the signature of the respondent as Chairperson of the Group.
The lawyers duty to prevent, or at the very least not to assist in, the
unauthorized practice of law is founded on public interest and policy. Public policy
requires that the practice of law be limited to those individuals found duly qualified
in education and character. The permissive right conferred on the lawyer is an
individual and limited privilege subject to withdrawal if he fails to maintain proper
standards of moral and professional conduct. The purpose is to protect the public, the
court, the client, and the bar from the incompetence or dishonesty of those
unlicensed to practice law and not subject to the disciplinary control of the Court. It
devolves upon a lawyer to see that this purpose is attained. Thus, the canons and
ethics of the profession enjoin him not to permit his professional services or his name
to be used in aid of, or to make possible the unauthorized practice of law by, any
agency, personal or corporate. And, the law makes it a misbehavior on his part,
subject to disciplinary action, to aid a layman in the unauthorized practice of law.[21]
WHEREFORE, for culpable violation of Canon 9 and Rule 9.01 of the Code of
Professional Responsibility, respondent Atty. Ana Luz B. Cristal-Tenorio is
hereby SUSPENDED from the practice of law for a period of six (6) months effective
immediately, with a warning that a repetition of the same or similar act in the future
will be dealt with more severely.
Let copies of this Resolution be attached to respondent Cristal-Tenorios
record as attorney in this Court and furnished to the IBP and the Office of the Court
Administrator for circulation to all courts.
SO ORDERED.
50
Legal Ethics
ENRIQUE A. ZALDIVAR, petitioner,
vs.
THE HONORABLE SANDIGANBAYAN and HONORABLE RAUL M. GONZALEZ, claiming to
be and acting as Tanodbayan-Ombudsman under the 1987 Constitution, respondents.
We have examined carefully the lengthy and vigorously written Motion for
Reconsideration dated October 18, 1988 filed by counsel for respondent Raul M.
Gonzalez, relating to the per curiam Resolution of the Court dated October 7, 1988.
We have reviewed once more the Court's extended per curiam Resolution, in the light
of the argument adduced in the Motion for Reconsideration, but must conclude that
we find no sufficient basis for modifying the conclusions and rulings embodied in that
Resolution. The Motion for Reconsideration sets forth copious quotations and
references to foreign texts which, however, whatever else they may depict, do not
reflect the law in this jurisdiction.
Nonetheless, it might be useful to develop further, in some measure, some of the
conclusions reached in the per curiam Resolution, addressing in the process some of
the "Ten (10) Legal Points for Reconsideration," made in the Motion for
Reconsideration.
1. In respondent's point A, it is claimed that it was error for this
Court "to charge respondent [with] indirect contempt and convict
him of direct contempt."
In the per curiam Resolution (page 50), the Court concluded that "respondent
Gonzalez is guilty both of contempt of court in facie curiae and of gross misconduct
as an officer of the court and member of the bar." The Court did not use the phrase "in
facie curiae" as a technical equivalent of "direct contempt," though we are aware that
courts in the United States have sometimes used that phrase in speaking of "direct
contempts' as "contempts in the face of the courts." Rather, the court sought to
convey that it regarded the contumacious acts or statements (which were made both
in a pleading filed before the Court and in statements given to the media) and the
misconduct of respondent Gonzalez as serious acts flaunted in the face of the Court
and constituting a frontal assault upon the integrity of the Court and, through the
Court, the entire judicial system. What the Court would stress is that it required
respondent, in its Resolution dated 2 May 1988, to explain "why he should not be
punished for contempt of court and/or subjected to administrative sanctions" and in
respect of which, respondent was heard and given the most ample opportunity to
present all defenses, arguments and evidence that he wanted to present for the
consideration of this Court. The Court did not summarily impose punishment upon
the respondent which it could have done under Section 1 of Rule 71 of the Revised
Rules of Court had it chosen to consider respondent's acts as constituting "direct
contempt."
2. In his point C, respondent's counsel argues that it was "error
for this Court to charge respondent under Rule 139 (b) and not
139 of the Revised Rules of Court."
In its per curiam Resolution, the Court referred to Rule 139 (b) of the Revised Rules of
Court pointing out that:
[R]eference of complaints against attorneys either to the
Integrated Bar of the Philippines or to the Solicitor General is not
mandatory upon the Supreme Court such reference to the
Integrated Bar of the Philippines or to the Solicitor General is
certainly not an exclusive procedure under the terms of Rule 139
(b) of the Revised Rules of Court, especially where the charge
consists of acts done before the Supreme Court.
The above statement was made by the Court in response to respondent's motion for
referral of this case either to the Solicitor General or to the Integrated Bar of the
Philippines under Rule 139 (b). Otherwise, there would have been no need to refer to
Rule 139 (b). It is thus only necessary to point out that under the old rule, Rule 139,
referral to the Solicitor General was similarly not an exclusive procedure and was not
the only course of action open to the Supreme Court. It is well to recall that under
Section 1 (entitled "Motion or complaint") of Rule 139, "Proceedings for the removal
or suspension of attorneys may be taken by the Supreme Court, (1) on its own motion,
or (2) upon the complaint under oath of another in writing" (Parentheses supplied).
The procedure described in Sections 2 et seq. of Rule 139 is the procedure provided
for suspension or disbarment proceedings initiated upon sworn complaint of another
person, rather than a procedure required for proceedings initiated by the Supreme
Court on its own motion. It is inconceivable that the Supreme Court would
initiate motu proprioproceedings for which it did not find probable cause to proceed
against an attorney. Thus, there is no need to refer a case to the Solicitor General,
which referral is made "for investigation to determine if there is sufficient ground to
proceed with the prosecution of the respondent" (Section 3, Rule 139), where the
Court itself has initiated against the respondent. The Court may, of course, refer a
case to the Solicitor General if it feels that, in a particular case, further factual
investigation is needed. In the present case, as pointed out in the per
curiamResolution of the Court (page 18), there was "no need for further investigation
of facts in the present case for it [was] not substantially disputed by respondent
Gonzalez that he uttered or wrote certain statements attributed to him" and that "in
any case, respondent has had the amplest opportunity to present his defense: his
defense is not that he did not make the statements ascribed to him but that those
statements give rise to no liability on his part, having been made in the exercise of his
freedom of speech. The issues which thus need to be resolved here are issues of law
and of basic policy and the Court, not any other agency, is compelled to resolve such
issues."
51
Legal Ethics
In this connection, we note that the quotation in page 7 of the Motion for
Reconsideration is from a dissentingopinion of Mr. Justice Black in Green v. United
State. 1 It may be pointed out that the majority in Green v. United States, through Mr.
Justice Harlan, held, among other things, that: Federal courts do not lack power to
impose sentences in excess of one year for criminal contempt; that criminal
contempts are not subject to jury trial as a matter of constitutional right; nor does the
(US) Constitution require that contempt subject to prison terms of more than one
year be based on grand jury indictments.
In his concurring opinion in the same case, Mr. Justice Frankfurter
said:
Whatever the conflicting views of scholars in construing more or
less dubious manuscripts of the Fourteenth Century, what is
indisputable is that from the foundation of the United States the
constitutionality of the power to punish for contempt without the
intervention of a jury has not been doubted. The First Judiciary Act
conferred such a power on the federal courts in the very act of
their establishment, 1 State 73, 83, and of the Judiciary
Committee of eight that reported the bill to the Senate, five
member including the chairman, Senator, later to be Chief
Justice, Ellsworth, had been delegates to the Constitutional
Convention (Oliver Ellsworth, Chairman, William Paterson, Caleb
Strong, Ricard Basett, William Few. 1 Annals of Cong 17). In the
First Congress itself no less than nineteen member including
Madison who contemporaneously introduced the Bill of Rights,
had been delegates to the Convention. And when an abuse under
this power manifested itself, and led Congress to define more
explicitly the summary power vested in the courts, it did not
remotely deny the existence of the power but merely defined the
conditions for its exercise more clearly, in an Act "declaratory of
the law concerning contempts of court." Act of Mar. 2, 1831, 4
Stat 487.
xxxxxxxxx
Nor has the constitutionality of the power been doubted by this
Court throughout its existence . In at least two score cases in this
Court, not to mention the vast mass of decisions in the lower
federal courts, the power to punish summarily has been accepted
without question. ... 2
To say that a judge who punishes a contemnor judges his own cause, is simplistic at
best. The judge who finds himself compelled to exercise the power to punish for
contempt does so not really to avenge a wrong inflicted upon his own person; rather
he upholds and vindicates the authority, dignity and integrity of the judicial institution
and its claim to respectful behaviour on the part of all persons who appears before it,
and most especially from those who are officers of the court.
3. In his point D, respondent counsel urges that it is error "for this
Court to apply the "visible tendency" rule rather than the "clear
and present danger" rule in disciplinary and contempt charges."
The Court did not purport to announce a new doctrine of "visible tendency," it was,
more modestly, simply paraphrasing Section 3 (d) of Rule 71 of the Revised Rules of
Court which penalizes a variety of contumacious conduct including: "any improper
conduct tending, directly or indirectly, to impede, obstruct or degrade the
administration of justice."
The "clear and present danger" doctrine invoked by respondent's counsel is not a
magic incantation which dissolves all problems and dispenses with analysis and
judgment in the testing of the legitimacy of claims to free speech, and which compels
a court to exonerate a defendant the moment the doctrine is invoked, absent proof
of impending apocalypse. The clear and present danger" doctrine has been an
accepted method for marking out the appropriate limits of freedom of speech and of
assembly in certain contexts. It is not, however, the only test which has been
recognized and applied by courts. In Logunzad v. Vda. de Gonzales, 3 this Court,
speaking through Mme. Justice Melencio-Herrera said:
...The right of freedom of expression indeed, occupies a preferred
position in the "hierarchy of civil liberties" (Philippine Blooming
Mills Employees Organization v. Philippine Blooming Mills Co.,
Inc., 51 SCRA 191 [1963]. It is not, however, without
limitations. As held in Gonzales v. Commission on Elections, 27
SCRA 835, 858 [1960]:
"From the language of the specific constitutional provision, it
would appear that the right is not susceptible of any limitation.
No law may be passed abridging the freedom of speech and of
the press. The realities of life in a complex society preclude
however, a literal interpretation. Freedom of expression is not an
absolute. It would be too much to insist that all times and under
all circumstances it should remain unfettered and unrestrained.
There are other societal values that press for recognition."
The prevailing doctrine is that the clear and present danger rule is
such a limitation. Another criterion for permissible limitation on
freedom of speech and of the press, which includes such vehicles
of the mass media as radio, television and the movies, is
the "balancing-of-interests test" (Chief Justice Enrique M.
Fernando on the Bill of Rights, 1970 ed., p. 79). The principle
"requires a court to take conscious and detailed consideration of
the interplay of interests observable in a given situation or type of
situation (Separate Opinion of the late Chief Justice Castro in
52
Legal Ethics
Gonzales v. Commission on Elections, supra, p. 899). (Emphasis
Supplied) 4
Under either the "clear and present danger" test or the "balancing-of-interest test,"
we believe that the statements here made by respondent Gonzalez are of such a
nature and were made in such a manner and under such circumstances, as to
transcend the permissible limits of free speech. This conclusion was implicit in the per
curiam Resolution of October 7, 1988. It is important to point out that the
"substantive evil" which the Supreme Court has a right and a duty to prevent does
not, in the instant case, relate to threats of physical disorder or overt violence or
similar disruptions of public order. 5 What is here at stake is the authority of the
Supreme Court to confront and prevent a "substantive evil" consisting not only of the
obstruction of a free and fair hearing of a particular case but also the avoidance of
the broader evil of the degradation of the judicial system of a country and the
destruction of the standards of professional conduct required from members of the
bar and officers of the courts. The "substantive evil" here involved, in other words, is
not as palpable as a threat of public disorder or rioting but is certainly no less
deleterious and more far reaching in its implications for society.
4. In his point H, respondent's counsel argues that it is error "for
this Court to hold that intent is irrelevant in charges of
misconduct." What the Court actually said on this point was:
Respondent Gonzalez disclaims an intent to attack and denigrate
the Court. The subjectivities of the respondent are irrelevant so
far as characterization of his conduct or misconduct is concerned.
He will not, however, be allowed to disclaim the natural and plain
import of his words and acts. It is, upon the other hand, not
irrelevant to point out that the respondent offered no apology in
his two (2) explanations and exhibited no repentance (Resolution,
p. 7; footnotes omitted).
The actual subjectivities of the respondent are irrelevant because such subjectivities
(understood as pyschological phenomena) cannot be ascertained and reached by the
processes of this Court. Human intent can only be shown derivatively and implied
from an examination of acts and statements. Thus, what the Court was saying was
that respondent's disclaimer of an intent to attack and denigrate the Court, cannot
prevail over the plain import of what he did say and do. Respondent cannot negate
the clear import of his acts and statements by simply pleading a secret intent or state
of mind incompatible with those acts or statements. It is scarcely open to dispute that,
e.g., one accused of homicide cannot successfully deny his criminal intent by simply
asserting that while he may have inserted a knife between the victim's ribs, he actually
acted from high motives and kind feelings for the latter.
5 In his point 1, respondent's counsel argues that it is error "for
this Court to punish respondent for contempt of court for out of
court publications."
Respondent's counsel asks this Court to follow what he presents as alleged modern
trends in the United Kingdom and in the United States concerning the law of
contempt. We are, however, unable to regard the texts that he cites as binding or
persuasive in our jurisdiction. The Court went to some length to document the state
of our case law on this matter in its per curiam Resolution. There is nothing in the
circumstances of this case that would suggest to this Court that that case law, which
has been followed for at least half a century or so, ought to be reversed.
6. In his point J, respondent's counsel pleads that the imposition
of indefinite suspension from the practice of law constitutes
"cruel, degrading or inhuman punishment". The Court finds it
difficult to consider this a substantial constitutional argument.
The indefiniteness of the respondent's suspension, far from being
"cruel" or "degrading" or "inhuman," has the effect of placing, as
it were, the key to the restoration of his rights and privileges as a
lawyer in his own hands. That sanction has the effect of giving
respondent the chance to purge himself in his own good time of
his contempt and misconduct by acknowledging such
misconduct, exhibiting appropriate repentance and
demonstrating his willingness and capacity to live up to the
exacting standards of conduct rightly demanded from every
member of the bar and officer of the courts.
ACCORDINGLY, the Court Resolved to DENY the Motion for Reconsideration for lack
of merit. The denial is FINAL.
The Court also NOTED the Ex-Parte Manifestation and Motion, dated October 25,
1988 and the Supplemental Manifestation, dated October 27, 1988, filed by
respondent
53
Legal Ethics
IIGO F. CARLET, as Special Administrator of the Estate of Pablo Sevillo and Antonia
Palisoc, petitioner, vs. HON. COURT OF APPEALS, VIRGINIA C. ZARATE,
JACOBO C. ZARATE, VICTORIA C. ZARATE, HON. CONRADO DIZON, Acting
Judge of the Municipal Trial Court of Bian, Laguna, and DEPUTY SHERIFF
ROGELIO S. MOLINA of Bian, Laguna, respondents.
The Rules of Court provide litigants with options on what course of action to
take in obtaining judicial relief. Once such option is taken and a case is filed in court,
the parties are compelled to ventilate all matters and relevant issues therein. The
losing party who files another action regarding the same controversy will be
needlessly squandering time, effort and financial resources because he is barred by
law from litigating the same controversy all over again. Such is the situation in the
case at bar: whether or not there is res judicata or bar by prior judgment. The present
controversy is surrounded by the following facts:
Lot 981 of the Bian Estate in Laguna, with an area of 864 square meters, was
purchased by Jose Sevillo in 1910 on installment. In 1917, Transfer Certificate No.
1599 was issued in his name after payment of the full purchase price. Jose Sevillos
marriage to Severa Bayran produced four sons, Teodoro, Mariano, Vicente and
Pablo. Pablo married Antonia Palisoc in 1920 and they begot four children,
Consolacion, Alejandra (Andrea), Samero (Casimiro) and Marin (Martin or Maltin)
Sevillo. In 1949, Pablo Sevillo declared Lot No. 981 for taxation purposes under Tax
Declaration Nos. 6125 and 2586 even if the property was still in Jose Sevillos name.
In 1955, Pablo, by then a widower, married Candida Baylo. The union produced
no offspring. Candidas daughter, Cirila Baylo Carolasan, was sired by another man.
In 1965, Pablo Sevillo, with Candida Baylo, filed a petition before the Court of
First Instance for reconstitution of title. Reconstitution was allowed and TCT No. RT-
926 was issued in the name of Pablo Sevillo, married to Candida Baylo. Pablo Sevillo
and his wife died in 1967 and in 1974, respectively.
In 1980, the heirs of Cirila Baylo Carolasan,[1] all surnamed Zarate and herein
private respondents, filed a case for annulment of deed of sale over Lot 981 and
for partition of property among the surviving heirs of Pablo Sevillo. The case was
docketed as Civil Case No. B-1656 before the Court of First Instance of Bian,
Laguna. The Deed of Sale sought to be annulled was allegedly executed by Candida
Baylo, grandmother to the Zarates, in favor of Gregorio, Samero, Martin and Andrea,
surnamed Sevillo and Isidro Zamora. After trial on the merits, the court rendered its
Decision on June 15, 1982 with the following dispositive portion:
WHEREFORE, in view of the foregoing considerations, judgment is hereby
rendered declaring the deed of sale entitled Bilihang Patuluyan ng Bahagi ng Isang
Lupang Panahanan purportedly executed by Candida Baylo on August 25, 1971,
acknowledged before Notary Public Apolinario S. Escueta and entered in his notarial
register as Doc. No. 124, Page No. 16, Book No. IV, Series of 1971, as null and void and
of no force and effect, and the representative of the estate of the plaintiff Cirila Baylo
Carolasan and the defendants Gregorio Sevillo, Samero Sevillo, Maltin Sevillo, Andrea
Sevillo and Isidro Zamora, as the surviving spouse of Consolacion Sevillo, are hereby
ordered to partition Lot No. 981 of the Bian Estate, situated in Tubigan, Bian, Laguna
if they are able to agree among themselves by proper instruments of conveyance,
within 30 days from the finality of this decision, which shall be confirmed by this Court,
otherwise, commissioners will be appointed to make the partition.
The defendants Gregorio Sevillo and Samero Sevillo are hereby jointly and severally
ordered to pay plaintiffs substituted heirs of the late Cirila Baylo Carolasan, namely,
Virginia C. Zarate, of Brgy. Real, Calamba, Laguna, Jacobo C. Zarate, Victoria C. Zarate,
Nemesio C. Zarate, Dominador C. Zarate and Elvira C. Zarate, all of Brgy. Tubigan, Bian,
Laguna, the sum of P3,000.00 for attorneys fees and the sum of P2,000.00 for
litigation expenses aside from costs of suit.
The decision having become final and executory, a writ of execution was issued
on November 10, 1982. Lot 981 was surveyed and subdivided into six lots, one lot
having an area of 452.04 square meters, four lots with 86.49 square meters each
and one lot with 66 square meters as footpath or concession to a right of way.[2] By
virtue of this adjudication, private respondents Zarate procured TCT Nos. T-163388
and T-163393 over their share in the property.
The losing parties in that case, the Sevillos, filed a case to annul the aforesaid
decision of the trial court in Civil Case No. B-1656 before the then Intermediate
Appellate Court (CA-G.R. SP No. 07657) alleging lack of jurisdiction based on service
of summons on unauthorized counsel. On March 31, 1986, the appellate court
granted the Zarates motion to dismiss the case on the ground of res judicata. The
Supreme Court denied the petition for review filed by the Sevillos for lack of merit on
September 8, 1986 in G.R. No. 74505.[3]
On May 6, 1983, private respondents, the Zarates, filed Civil Case No. 2375, an
ejectment suit against the Sevillos before the Municipal Trial Court of Bian.[4] The
municipal court ruled in favor of plaintiffs and ordered defendants below, to
immediately vacate the subject property and remove their houses thereon and to pay
rental in arrears, damages, attorneys fees and litigation expenses.[5] Writs of
execution and demolition were issued by the court. Defendants filed a motion for
reconsideration but before said motion could be heard, they filed a petition
for certiorari with the Regional Trial Court of Laguna (Civil Case No. B-3106). The
Sevillos alleged that the inferior court did not have jurisdiction over the case which
was filed more than a year after the alleged unlawful entry. The Regional Trial Court
held that the municipal court had no jurisdiction over the complaint for ejectment. On
appeal, the Court of Appeals reversed the Regional Trial Courts decision on July 11,
1990 in CA-G.R. SP No. 18806. Affirming the appellate courts decision, the Supreme
Court denied the Sevillos petition for review in G.R. No. 94382 on April 10, 1991.[6]
On July 10, 1991, petitioner Iigo F. Carlet, as special administrator of the estate
of Pablo and Antonia Sevillo, filed the case at bar, an action for reconveyance of
property, docketed as Civil Case No. B-3582, against the heirs of Cirila namely, Virginia,
54
Legal Ethics
Jacobo, Victoria and Elvira, all surnamed Zarate. Plaintiff therein prayed for a
declaration of ownership over the entire 864-square-meter lot in the name of the
estate of Jose Sevillo and/ or the estate of Teodoro, Mariano, Vicente and Pablo
Sevillo; that TCT Nos. T-163393 and T-163388 be annulled and a new one be issued
in favor of said estate; and that defendants be ordered to pay P20,000.00, attorneys
fees in the amount of P50,000.00 and expenses of litigation.[7]
Defendants Zarate moved to dismiss the case on the ground of res judicata,
claiming that the facts alleged in the complaint had already been pleaded and passed
upon by the lower court in Civil Case No. B-1656, the Court of Appeals in CA-G.R. SP
No. 07657 and by the Supreme Court in G.R. No. 74505. They also opposed the
motion for preliminary injunction saying it was meant to delay and that the grounds
relied upon had previously been passed upon by the lower court in Civil Case Nos. B-
1656 and 2375, the Court of Appeals in CA-G.R. SP No. 18806 and the Supreme Court
in G.R. No. 94382.
On October 8, 1991, the trial court issued an Order granting the motion to
dismiss Civil Case No. B-3582, stating that the issue of ownership had been threshed
out in the cases cited and that, as held by the Court of Appeals in CA-G.R. SP No.
07657, plaintiff below merely tried to obtain the same relief by way of a different
action. The dispositive portion of said Order reads:
WHEREFORE, finding merit in the motion to dismiss, the same is hereby granted and
the above case is hereby ordered dismissed. As a consequence, the motion for
preliminary injunction is hereby denied.
Pursuant to well-settled pronouncements of the Supreme Court, the plaintiff and her
counsel are hereby ordered to explain within five (5) days from receipt hereof why
they should not be cited in contempt of court for forum-shopping. Let a copy of this
order be furnished the local IBP Chapter where Atty. Modesto Jimenez belongs so
that he may be administratively dealt with in accordance with law.
SO ORDERED.
Carlets appeal to respondent court (CA-G.R. CV No. 36129) was dismissed on
January 11, 1994, with the Court of Appeals affirming the questioned Order of the
trial court in toto and ordering appellants and counsel to pay treble costs.[8]
Hence, the instant petition for review where the issue to be resolved is whether
or not the adjudication in Civil Case No. B-1656 (including CA-G.R. SP No. 07657 and
SC-G.R. No. 74505) constitutes res judicata to the case at bar (Civil Case No. B-3582).
Petitioner in the main contends that respondent court erred, because there is
no identity of cause of action between the case at bar (Civil Case No. B-3582) and the
cases cited, particularly Civil Case No. B-1656. The former is an entirely different case
which seeks the annulment of TCT No. 1599 and the derivative titles issued in the
name of private respondents Zarate. There is likewise no identity of parties. According
to petitioner, the plaintiff in Civil Case No. 3582 is the Special Administrator
representing the estate of Jose Sevillo and Severa Bayran, who does not represent
any of the private respondents herein.[9]
We affirm the contested decision of the Court of Appeals.
When material facts or questions which were in issue in a former action and
were admitted or judicially determined there are conclusively settled by a judgment
rendered therein, such facts or questions become res judicata and may not again be
litigated in a subsequent action between the same parties or their privies regardless
of the form of the latter. This is the essence of res judicata or bar by prior
judgment.[10]
There are four requisites to successfully invoke res judicata: (a) finality of the
former judgment; (b) the court which rendered it had jurisdiction over the subject
matter and the parties; (c) it must be a judgment on the merits; and (d) there must
be between the first and second actions identity of parties, subject matter and cause
of action.[11] A judgment on the merits rendered in the first case constitutes an
absolute bar to the subsequent action when the three identities are present.[12]
The attendance of the first three elements for the application of res judicata is
not disputed by petitioner. What needs to be determined is the existence of identity
in parties, subject matter and cause of action between Civil Case Nos. B-1656 and B-
3582.
Respondent court correctly concluded that there is identity of parties between
the case at bar (Civil Case No. B-3582), an action for reconveyance of Lot No. 981, and
Civil Case No. B-1656 for annulment of deed of sale and partition involving the same
Lot 981. Although Civil Case No. B-3582was initiated by petitioner as administrator of
the estate of Pablo and Antonia Sevillo, the fact remains that he represents the same
heirs of Pablo Sevillo, namely Martin, Alejandra, Casimiro (or Samero) and
Consolacion Sevillo who were defendants in Civil Case No. B-1656, as the latter or
their heirs would eventually benefit should petitioner succeed in this case. Petitioners
allegation that he represents the heirs of Jose Sevillo and Severa Bayran Sevillo and,
therefore, including Pablo Sevillos three brothers, is belied by the very title of the
instant petition that he is the special administrator of the estate of Pablo Sevillo and
Antonia Palisoc, having been appointed as such on July 10, 1991.[13]
It should further be stressed that absolute identity of parties is not required for
the principle of res judicata to be applicable.[14] A shared identity of interest is
sufficient to invoke the coverage of this principle.[15] While it is true that the heirs of
Pablo and Antonia Sevillo will still be judicially determined at the intestate
proceedings in which petitioner was named estate special administrator, it is equally
true that the defendants in Civil Case No. B-1656, namely Consolacion, Alejandra,
Samero and Martin Sevillo, are the children and heirs of Pablo and Antonia Sevillo.
There is no dispute as regards the identity of subject matter since the center
of controversy in the instant case and in Civil Case No. B-1656 is Lot No. 981 of the
Bian Estate.
As regards identity of causes of action, the test often used in determining
whether causes of action are identical is to ascertain whether the same evidence
which is necessary to sustain the second action would have been sufficient to
55
Legal Ethics
authorize a recovery in the first, even if the forms or nature of the two actions be
different. If the same facts or evidence would sustain both actions, the two actions
are considered the same within the rule that the judgment in the former is a bar to
the subsequent action; otherwise, it is not.[16]
The instant case (Civil Case No. B-3582), which is an action for the reconveyance
of Lot No. 981, is premised on the claim that TCT Nos. T-163388 and T-163393,
belonging to private respondents as heirs of Candida Baylo and Cirila Baylo Carolasan,
are null and void.[17] To succeed entails presenting evidence that the title acquired by
the Zarates, upon which they founded their complaint for partition in Civil Case No.
B-1656, is in fact null and void.
In Civil Case No. B-1656, the Zarates prayer for partition of Lot No. 981 was
anchored on the authenticity of their title thereto. Consequently, the case provided
the defendants, heirs of Pablo and Antonia Sevillo, the opportunity to prove
otherwise, i.e. that the Zarates title was null and void.However, they failed to contest
the matter before the trial court, the Court of Appeals and the Supreme
Court.[18] Inasmuch as the same evidence was needed in prosecuting Civil Case No. B-
1656 and the case at bar, there is identity of causes of action. The additional fact
alleged by petitioner - that Candida Baylo was not in fact married to Pablo Sevillo and
the reconstituted title in their name reflects a misrepresentation is, under the
circumstances, immaterial. Said allegation could have been presented and heard in
Civil Case No. B-1656.[19] The parties are bound not only as regards every matter
offered and received to sustain or defeat their claims or demand but as to any other
admissible matter which might have been offered for that purpose and of all other
matters that could have been adjudged in that case.[20]
Neither does the fact that Civil Case No. B-1656 was an action for annulment of
deed of sale and partition while Civil Case No. B-3582 is for reconveyance of property
alter the fact that both cases have an identical cause of action. A change in the form
of the action or in the relief sought does not remove a proper case from the
application of res judicata.[21]
Moreover, as early as March 31, 1986 in the original action for annulment of
judgment case, the then Intermediate Appellate Court immediately recognized that:
Clearly, the relief sought in this action for annulment of judgment beyond nullity of
the decision in Civil Case No. B-1656, is an adjudication that herein defendants are
not entitled to Lot 981 of the Bian Estate or any part thereof, on the stated grounds
that said property in the name of Pablo Sevillo and Candida Baylo under T.C.T. No. RT-
926 was in fact owned by Pablo Sevillo and Antonia Palisoc, and that in any event,
Candida Baylo had ceded her interest therein to plaintiffs and/or their predecessors
in interest on March 31, 1969.
The self-same issue of ownership of Lot 981 was squarely raised in Civil Case No. B-
1656, herein defendants interest in said property having therein been traversed by
invoking instead an alleged sale of Lot 981 to Gregorio Sevillo on August 25, 1971.
This amounts to employment of different forms of action to obtain identical relief, in
violation of the principle that one and the same cause of action shall not twice be
litigated (Yusingco v. Ong Hian, 42 SCRA 589).[22]
It is to the interest of the public that there should be an end to litigation by the
parties over a subject fully and fairly adjudicated - republicae ut sit finis litium. And an
individual should not be vexed twice for the same cause - nemo debet bis vexari pro
eadem causa. As this Court has had occasion to rule:
The foundation principle upon which the doctrine of res judicata rests is that parties
ought not to be permitted to litigate the same issue more than once; that, when a
right or fact has been judicially tried and determined by a court of competent
jurisdiction, or an opportunity for such trial has been given, the judgment of the court,
so long as it remains unreversed, should be conclusive upon the parties and those in
privity with them in law or estate.[23]
With respect to the issue of forum-shopping for which the trial court ordered
counsel for petitioners, Atty. Modesto Jimenez, to explain why he should not be cited
in contempt,[24] this applies only when the two (or more) cases are still pending.[25]
Clearly, despite knowledge of final judgments in Civil Case No. B-1656, CA-G.R.
CV No. 07657 and SC-G.R. No. 74505, as well as in G.R. No. 94382 (the ejectment
case), counsel persisted in filing the case at bar for reconveyance. Since this case is
barred by the judgment in Civil Case No. B-1656, there was no other pending case to
speak of when it was filed in July 1991. Thus, the non-forum-shopping rule is not
violated.
What counsel for petitioners did, however, in filing this present action to
relitigate the title to and partition over Lot No. 981, violates Canon 10 of the Code of
Professional Responsibility for lawyers which states that a lawyer owes candor,
fairness and good faith to the court. Rule 10.01 of the same Canon states that (a)
lawyer shall not do any falsehood x x x nor shall he mislead or allow the court to be
misled by any artifice. Counsels act of filing a new case involving essentially the same
cause of action is likewise abusive of the courts processes and may be viewed as
improper conduct tending to directly impede, obstruct and degrade the
administration of justice.[26]
WHEREFORE, the petition is hereby DENIED. The Decision of the Court of
Appeals dated January 11, 1994 is hereby AFFIRMED. Treble costs against petitioner.
SO ORDERED.
56
Legal Ethics
ATTY. LUIS V. ARTIAGA JR., complainant,
vs.
ATTY. ENRIQUE C. VILLANUEVA, respondent.
In a sworn complaint filed with this Court on April 2, 1978, Atty. Luis V. Artiaga Jr. sought
the disbarment of Atty. Enrique C. Villanueva for alleged unethical practices.
By a resolution dated May 24, 1978, this Court required respondent Atty. Enrique C.
Villanueva to answer the complaint. To the answer of respondent dated July 5, 1978,
complainant Atty. Luis V. Artiaga Jr. filed his reply of July 31, 1978.
After considering the answer of respondent, this Court resolved to refer the case to the
Solicitor General for investigation, report and recommendation. The solicitor General
forwarded to the Court his Report and Recommendation dated May 4, 1988 with the
finding that respondent was guilty of misconduct and with the recommendation that he
be suspended from the practice of law for a period of at least six (6) months.
The complaint for disbarment arose from four (4) separate cases and several incidental
cases with Juliano Estolano, client of complainant Atty. Artiaga, Jr. and Glicerio Aquino
and/or Florentina Guanzon, clients of respondent Atty. Villanueva, as adversaries in all of
these cases involving the same property.
The factual background of these cases is summed up in the decision of the Court of Appeals
in CA-G.R. No. SP06600 dated November 16, 1977, a petition for certiorari and prohibition,
an offshoot of Civil Case No. 183-C for Recovery of Possession filed by Estolano against
Aquino and Guanzon before the Court of First Instance of Laguna, Branch VI on June 11,
1974. Quoted hereunder are pertinent portions of the Court's decision:
There were three parcels of land involved herein. All continuos and
adjoining to each other and located in Bambang, Los Banos, Laguna.
The first covered an area of 2.6793 hectares; the second, an area of
one hectare; and the third, an area of one-half hectare. On July
20,1950, petitioner Juliano Estolano was issued original Certificate of
Title No. P-286 in his name over the first parcel. There is no
controversy, therefore, in respect of this first parcel, the dispute
being confined to the second and third parcels.
The second and third parcels were the object of Revocable Permit
Applications by Paciano Malabayabas and Canuto Suyo, both filed on
March 31, 1951. On June 12, 1956, Canuto transferred his right over
the third parcel to petitioner. On March 4, 1958, Malabayabas also
sold his rights over the second parcel to petitioner. On May 15, 1958,
petitioner filed Insular Government Property Sales Application No.
1772 (New) covering the second and third parcels.
On November 7, 1958, Glicerio Aquino, private respondent, filed his
Revocable Permit Application over an area of 8,000 square meters,
which was later found to cover a part of the first parcel already titled
in favor of petitioner and of the third parcel transferred to him by
Suyo. On December 29, 1958, private respondent Florentina
Guanzon, Aquino's sister-in-law, also filed Revocable Permit
Application over the second parcel.
Eventually, the conflicts were taken cognizance of by the Bureau of
Lands (B.L. Conflict No. 3-953, and B.L.O. Conflict No. 236). On May
21, 1962, the Director of Lands rendered a Decision against private
respondents, as follows:
WHEREFORE, it is ordered that the Revocable
Permit Application No. V-14105 of Glicerio
Aquino be, as hereby it is, rejected, forfeiting in
favor of the Government whatever amount has
been paid on account thereof. The Revocable
Permit Application No. V-14142 of Florentina
Guanzon shall remain, as it is, rejected. Glicerio
Aquino and Florentina Guanzon shall vacate the
land within sixty (60) days from their receipt of
a copy hereof The new Insular Government
Property Sales Application of Julian Estolano
shall be given due course after the survey of the
land covered thereby.'
Private respondents moved for the reconsideration of the
aforequoted Decision, and the Director of Lands, in an Order of
August 13, 1962, amended his previous Decision as follows:
WHEREFORE, our decision of May 21, 1962, is
hereby modified by awarding to protesting
Glicerio Aquino preferential right to that area
actually occupied and cultivated by him,
indicated as portion "K" in the sketch drawn on
the back hereof, and amending the Insular
Government Property Sales Application (New)
of Juliano Estolano so as to exclude therefrom
the said portion. With this modification, the
decision stands confirmed.
Petitioner and private respondents appealed the amended Decision
of the Director of Lands to the Secretary of Agriculture and Natural
Resources who, in a Decision dated September 9, 1963, dismissed the
appeals of private respondents, set aside the Order of the Director of
Lands dated August 13, 1962, and affirmed the latter's Decision of
May 21, 1962. Respondent Guanzon moved for the reconsideration
of the Secretary's Decision but said Motion was denied.
Respondent Aquino appealed the Decision of the Secretary of
Agriculture and Natural Resources to the Office of the President of
the Philippines, which likewise affirmed the Decision appealed from.
The Decision of the Director of Lands having become final, an order
of Execution thereof was issued on January 4, 1967, but this
notwithstanding, private respondents remained in possession of the
subject property. For failure to obtain possession thereof, petitioner
filed, on June 15, 1974, the principal case, (Civil Case No. 183-C) in
57
Legal Ethics
the lower court which eventually gave rise to the proceedings now
challenged in this Petition." (pp. 3-7, Decision in CA-G.R. No. Sp-
06600)
The restraining order issued in Civil Case No. 183-C on October 27, 1976 enjoining the
Director of Lands from enforcing the Order of Execution was set aside by the Court of
Appeals and the writ of prohibition prayed for by petitioner Estolano was granted.
Meanwhile, on April 13, 1974, respondent's clients, Aquino and Guanzon, filed a complaint
for forcible entry against complainant's client, Estolano, in the Municipal Court of Los
Banos Laguna docketed as Civil Case No. 192. This case was dismissed by the Municipal
Court on January 5, 1977. On appeal to the Court of First Instance (CFI), the order of
dismissal was affirmed on November 4, 1979 in Civil Case No. 386-C. No appeal was
interposed from this decision, thus it became final.
The third case for annulment of Estolano's title over the same land was filed by
respondent's client, Aquino, with the CFI on May 15, 1974 docketed as Civil Case No. 179-
C which was dismissed on April 23, 1976. On appeal to the Court of Appeals which was
docketed as CA-G.R. No. 62576-R, the dismissal by the trial court was affirmed on June 25,
1981. On October 21, 1981, the case was remanded to the trial court for execution.
Finally, while their petition for certiorari and prohibition over Civil Case No. 183-C was
pending before the Court of Appeals, respondent's clients, Aquino, filed a complaint with
the Court of Agrarian Relations (CAR) at San Pablo City docketed as CAR Case No. 7043
against Estolano and the Director of Lands on July 1, 1977. On July 2, 1977, the CAR issued
an order requiring Estolano to respect Aquino's possession. On May 18, 1979, the CAR
dismissed the case and on appeal, its dismissal was affirmed in a decision of the Court of
Appeals dated February 5, 1981 in CA-G.R. No. 11635-CAR.
Respondent Atty. Enrique C. Villanueva is charged with the following unethical practices:
(1) That respondent had caused his client to perjure himself; (2) That he lacks candor and
respect toward his adversary and the courts; and (3) That he had been abusive of the right
of recourse to the courts.
We find respondent Atty. Villanueva guilty as above charged.
Anent the first charge, the complaint and amended complaint for forcible entry in Civil
Case No. 192 filed by respondent's client are clear proofs that respondent had indeed
caused his client Glicerio Aquino to perjure himself as to the date he lost possession of the
subject property so as to place the case within the jurisdiction of the court.
Paragraph 5 of the original complaint filed on April 18, 1974 reads:
5. That sometime in the early part of 1960, defendant Julian Estolano
was able to dispossess plaintiffs spouses Glicerio Aquino and Lorenzo
Magpantay of a portion of the above-described parcel of land ...
(Emphasis supplied.) 1
Paragraph 5 of the Amended Complaint dated June 19, 1974 reads:
5. That sometime in the early part of June, 1973, defendant Julian
Estolano and Segundo de los Santos unlawfully dispossessed and/or
deprived or turned out plaintiffs Sps. Aquino and Magpantay thru
stealth, strategy, force and intimidation of and/or possession over a
certain portion (now caused by defendant Segundo de los Santos to
be planted to bananas now of less than a year old as of the filing of
the original complaint) located on the southern portion of their
above-described landholding . .... (Emphasis supplied. ) 2
In the original complaint, respondent's client alleged that he was dispossessed of the
subject land in 1960, while in the amended complaint, he alleged it was in June, 1973.
Clearly, this was a ploy concocted by respondent to enable the court to acquire jurisdiction
over the case since a forcible entry case must be filed within one year from the accrual of
the cause of action under Rule 70, Section 1.
Such action of respondent counsel is a clear violation of his oath that "he will do no
falsehood nor consent to the doing of any in court." 3 A legal counsel is of course expected
to defend his client's cause with zeal, but not at the disregard of the truth. 4 The duty of an
attorney to the courts to employ, for the purpose of maintaining the causes confided to
him, such means as are consistent with truth and honor cannot be overemphasized. 5 His
high vocation is to correctly inform the court upon the law and the facts of the case, and
to aid it in doing justice and arriving at correct conclusions. He violated his oath of office
when he resorted to deception. 6 Worse, he had caused his client to perjure himself thus
subjecting the latter to criminal prosecution for perjury brought before the Municipal
Court of Los Banos, Laguna. 7 Instead of safeguarding the interests of his client as his
responsibility dictates, he did exactly the opposite by causing his client to commit a felony.
From the foregoing, the lack of candor of respondent counsel towards the court is evident.
This lack of candor and honesty to the courts and his adversary is further demonstrated by
other acts of respondent.
In Civil Case No. 192, respondent's clients were restored to the possession of the 2-1/2
hectares of the untitled portion of subject property by virtue of a writ of preliminary
mandatory injunction issued by the court on May 21, 1974 upon filing of a property bond
by respondent. Upon the dismissal of the case on January 5, 1977, the writ of preliminary
mandatory injunction was dissolved and respondent's clients were ordered to restore
possession of subject property to complainant's client Estolano. However, respondent
blocked the order by filing an urgent ex-parte motion seeking clarification as to whether
the dispositive portion of the order of January 5, 1977 was immediately executory and
asking the court to allow his clients to remain in the meantime in the premises. Before the
court could even resolve the motion, respondent perfected his appeal from the order of
January 5, 1977 on January 25, 1977. Thus, when the court's order affirming its previous
order came out on January 26,1977, the Provincial Sheriff of Laguna refused to implement
the orders of January 5 and 26, 1977 until the appeal has been finally disposed of. On
appeal, the CFI of Laguna, affirmed the questioned orders of the Municipal Court. When
the decision of the CFI became final because respondent failed to appeal, his clients
refused to abide by the Order of Execution issued by the Municipal Court.
Consequently, Estolano filed an ex-parte motion asking that the Provincial Sheriff be
authorized to forcibly evict respondent's clients. On the date set for the hearing of the
motion, respondent did not appear and instead filed his "Opposition/ Manifestation"
informing the court of a petition for certiorari filed against the presiding judge before the
Court of First Instance of Laguna. In deference to this petition, the Municipal Court
resolved to hold in abeyance the ex-parte motion of Estolano until resolution of said
petition.
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Legal Ethics

Indeed, the manner in which respondent counsel handled the forcible entry case filed to elevate two (2) separate appeals--CA-G.R. No. 62576-R re: annulment of title (Civil Case
against the client of complainant shows his total lack of candor and respect for the courts No. 179-C) and CA-G.R. No. 11635-CAR arising from the CAR Case No. 7043, before the
and the rights of his adversary. He had employed every step necessary to forestall Court of Appeals over the same issues involving the same subject property titled to
complainant's client from taking rightful possession of subject property. He has shown Estolano.
utter disregard of the proper rules of procedure to suit his purpose. While he filed his The cause of respondent's clients is obviously bereft of merit. Respondent was aware of
urgent ex-parte motion for clarification, he chose not to wait for its resolution and instead this fact so he resorted to forum shopping, continuously seeking the court where he may
perfected his appeal to the Court of First Instance. When finally the decision became possibly obtain favorable judgment, thereby adding to the already clogged dockets of the
executory because of his failure to appeal to the Court of Appeals, he filed a petition for courts with the unmeritorious cases he filed. He grossly abused his right of recourse to the
certiorari against the decision of the CFI which petition is obviously frivolous and a mere courts by filing multiple petitions or complaints for a cause that had been previously
tactic to delay enforcement of the court's decision. In the meantime, the clients of rejected in the false hope of getting some favorable action, somehow, thus, obstructing
respondents refused to obey the order of execution. the administration of justice. 11 He was derelict in his duty as counsel to maintain such
A lawyer should obey all lawful orders and rulings of the court. 8 He should have counseled actions or proceedings only as appears to him to be just, and such defenses only as he
his clients to submit to the order of the court instead of encouraging them to resist such believes to be honestly debatable under the law. 12 He had thus prostituted his office at
order. The actuations of respondent of employing dilatory tactics by filing a clearly frivolous the expense of justice.
case amounts to obstruction of the administration of justice which constitutes misconduct The practice of law is a privilege accorded only to those who measure up to certain
and justifies disciplinary action against him. 9 standards of mental and moral fitness. 13 For a counsel who has been sworn to assist in the
Respondents counsel further demonstrated his questionable motive by filing another case, administration of justice and to uphold the rule of law, respondent has miserably failed to
this time for annulment of the title of complainant's client to the other 2-1/2 hectares of live up to the standards expected of a member of the Bar. Instead of assisting in the speedy
subject land with the Court of First Instance of Laguna, Branch VI. This case was dismissed disposition of cases, he made a mockery of our system of justice, thus deserving to be
on the ground of res judicata and prescription. Respondent appealed this ruling to the censured and penalized by this Court. No doubt, respondent is guilty of gross misconduct
Court of Appeals where it was pending resolution at the time the instant complaint for in office.
disbarment was filed. The decision of the trial court was affirmed and remanded to the WHEREFORE, the respondent is hereby SUSPENDED INDEFINITELY from the practice of law
lower court for execution. from date of notice until such time that he can demonstrate to the court that he has
Not satisfied with the above-mentioned appeal, respondent counsel brought another case rehabilitated himself and deserves to resume the practice of law. Let this decision be noted
against complainant's client this time before the Court of Agrarian Relations (CAR Case No. in the bar records of respondent.
7043) for determination allegedly of who had a better right over the subject property when SO ORDERED.
he was well aware e of the absence of any tenancy relationship between the parties.
An examination of the records shows that respondent did not disclose before the Court of
Agrarian Relations (CAR) prior law suits and decisions rendered relative to the subject land.
As a result, respondent was able to secure ex-parte from the CAR a restraining order
against the Director of Lands and Estolano on July 2, 1977. So when the decision of the
Court of First Instance of Laguna in Civil Case No. 386-C affirming the decision of the trial
court in the forcible entry case No. 192 was rendered on November 4, 1977 ordering the
immediate restoration of subject land to Estolano, because of the restraining order issued
by the agrarian court, the execution of the said decision cannot be fully satisfied, To make
matters worse, respondent even filed a criminal complaint against complainant and his
client, among others, for alleged violation of P.D. 316 and the restraining order issued by
the Court of Agrarian Relations in CAR Case No. 7043. 10 The CAR dismissed this case and
on appeal, the dismissal was affirmed.
We also note that after respondent filed the case with the CAR on July 1, 1 977, he filed on
July 5, 1977 in Civil Case No. 179-C before the CFI of Laguna, a motion to dismiss the
present action without prejudice to his clients' right to prosecute their present action with
the Court of Agrarian Relations. The lower court denied the motion since it had already
dismissed the case on some other ground and their appeal was already perfected without
plaintiffs' manifesting that they are abandoning their appeal. Thus, respondent was able

59
Legal Ethics
SURIGAO MINERAL RESERVATION BOARD and the EXECUTIVE SECRETARY, petitioners,
vs.
HON. GAUDENCIO CLORIBEL, as Judge of the Court of First Instance of Manila
and MAC-ARTHUR INTERNATIONAL MINERALS CO., respondents.
Original action for certiorari and prohibition, with preliminary injunction, to restrain the
Honorable Gaudencio Cloribel, as Judge of the Court of First Instance of Manila, from
continuing with the hearing of Civil Case No. 67400 of said Court, and from enforcing a
restraining order issued therein on November 16, 1966, as well as to annul an order of
respondent Judge, in the same case, dated December 9, 1966.
It appears that, on or about December 2, 1964, the Surigao Mineral Reservations Board —
hereinafter referred to as the Board — issued an Invitation to Bid, on May 12, 1965, for
the exploration and development of mineral deposits in a portion of the Surigao Mineral
Reservation, in the province of Surigao, more particularly described in said Invitation to
Bid; that, in response thereto, two (2) bids were filed, namely one (1) by the Mac-Arthur
International Minerals Co. — hereinafter referred to as the Company — and the other by
Benguet Consolidated, Inc.; that, these two (2) bids were referred by the Board to an
Evaluation Committee created therefor; that both bids were later rejected by the Board,
upon consideration of the report thereon of said Committee; and that, a reconsideration,
sought by the Company, of the action thus taken by the Board was, thereafter, denied by
the latter.
Thereupon, or on September 1, 1966, the Company filed, with the Court of First Instance
of Manila, the petition in said Case No. 67400, against the Board and the Executive
Secretary — as the officer "responsible for the approval and authorization of public
biddings and the acceptance, handling and processing of all bids" — seemingly to annul
the proceedings before said Board leading to the rejection of the bid of the Company and
to prevent the Board, the Evaluation Committee and the Executive Secretary from taking
such steps as may impair the rights that the Company claims to have acquired in
consequence of its bid.
After requiring petitioners herein, as respondents in said Case No. 67400, to answer the
petition therein, or on November 16, 1966, respondent Judge issued a restraining order
directing petitioners herein, their agents and/or representatives, to refrain from executing
the acts adverted to above. On December 1, 1966, petitioners herein filed their answer to
said Case No. 67400, with a motion to dismiss and an opposition to the writ of preliminary
injunction prayed for by the Company. Acting on said motion, on December 9, 1966,
respondent Judge denied the same and set the case for hearing.
Presently, or on January 14, 1967, petitioners herein commenced the present action
against respondent Judge and the Company, for the purpose indicated at the beginning of
this decision. On January 19, 1967, this Court required respondents herein to file their
answer, not a motion to dismiss, as well as issued the writ of preliminary, injunction prayed
for by the petitioners. Subsequently, respondents filed their answer and later moved to
dissolve or amend said writ of preliminary injunction; but we denied the motion.
The main issue in this case is whether or not respondent Judge had committed a grave
abuse of discretion, amounting to excess of jurisdiction, in issuing the restraining order
dated November 16, 1966. This question, in turn, hinges on whether or not the records of
said Case No. 67400 disclose that the Company has no cause of action against petitioners
herein.
In this connection, it should be noted that the petition in said case is predicated — like the
answer in the case at bar — upon the theory that the Invitation to Bid issued by the Board
constitutes an "offer", which was unqualifiedly accepted by the bid submitted by the
Company, thereby resulting — according to the latter's contention in both cases — into a
perfected contract, which is binding upon the Board, thereby imposing upon the same the
obligation to implement said alleged contract and to refrain from entering into
negotiations or doing anything tending to defeat or impair the supposed rights of the
Company under said contract.
This theory is, however, absolutely untenable. An Invitation to Bid, is not an "offer", which,
if accepted, matures into a contract. In the language of Article 1326 of our Civil Code,
"advertisements for bidders are simply invitations to make proposals and the advertiser is
not bound to accept the highest or lowest bidder, unless the contrary appears."1 The
Company does not even allege that "the contrary appears."
Worse, still, the Invitation to Bid, issued by the Board, provided, inter alia, that "the
Government reserves the right to reject any and all bids, waive any defect of form or accept
such bid as may be deemed most advantageous to it." In other words, acceptance by the
Board of a given bid is necessary for a contract to exist between the Board or the
Government and any bidder, regardless of the terms and conditions of his bid. This
reservation of the "right" of the Board "to reject any and all bids," is one of the terms and
conditions of the Invitation to Bid which the Company has accepted and, hence, binds the
same.2 As a consequence, it is now in estoppel to object to or assail the exercise of said
"right" by the Board.3
Then, contrary to the conclusions made in the pleadings of the Company, the same has
not, in fact, adhered faithfully to the terms and conditions of said Invitation to Bid. Indeed,
the latter explicitly declares that "bids not accompanied by bid bonds will be rejected."
Admittedly, the bid of the Company had been submitted without the requisite bond.
It is thus manifest, from the records of said Case No. 67400, that the Company had no
cause of action against petitioners herein and that, accordingly, respondent Judge
committed a grave abuse of discretion, amounting to excess of jurisdiction, in issuing its
restraining order of November 16, 1966, and its order of December 9, 1966, refusing, in
effect, to set aside said order of November 16, 1966.4
WHEREFORE, said orders of respondent Judge dated November 16, and December 9, 1966,
are hereby annulled and the writ of preliminary injunction issued in the present case made
permanent, with costs against respondent, Mac-Arthur International Minerals Company.
Writ granted. It is so ordered.
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Legal Ethics
IN THE MATTER OF PROCEEDINGS FOR DISCIPLINARY ACTION AGAINST ATTY. VICENTE
RAUL ALMACEN In L-27654, ANTONIO H. CALERO,
vs.
VIRGINIA Y. YAPTINCHAY.
Before us is Atty. Vicente Raul Almacen's "Petition to Surrender Lawyer's Certificate of
Title," filed on September 25, 1967, in protest against what he therein asserts is "a great
injustice committed against his client by this Supreme Court." He indicts this Court, in his
own phrase, as a tribunal "peopled by men who are calloused to our pleas for justice, who
ignore without reasons their own applicable decisions and commit culpable violations of
the Constitution with impunity." His client's he continues, who was deeply aggrieved by
this Court's "unjust judgment," has become "one of the sacrificial victims before the altar
of hypocrisy." In the same breath that he alludes to the classic symbol of justice, he
ridicules the members of this Court, saying "that justice as administered by the present
members of the Supreme Court is not only blind, but also deaf and dumb." He then vows
to argue the cause of his client "in the people's forum," so that "the people may know of
the silent injustice's committed by this Court," and that "whatever mistakes, wrongs and
injustices that were committed must never be repeated." He ends his petition with a prayer
that
... a resolution issue ordering the Clerk of Court to receive the
certificate of the undersigned attorney and counsellor-at-law IN
TRUST with reservation that at any time in the future and in the event
we regain our faith and confidence, we may retrieve our title to
assume the practice of the noblest profession.
He reiterated and disclosed to the press the contents of the aforementioned petition.
Thus, on September 26, 1967, the Manila Times published statements attributed to him,
as follows:
Vicente Raul Almacen, in an unprecedented petition, said he did it to
expose the tribunal's "unconstitutional and obnoxious" practice of
arbitrarily denying petitions or appeals without any reason.
Because of the tribunal's "short-cut justice," Almacen deplored, his
client was condemned to pay P120,000, without knowing why he lost
the case.
xxx xxx xxx
There is no use continuing his law practice, Almacen said in this
petition, "where our Supreme Court is composed of men who are
calloused to our pleas for justice, who ignore without reason their own
applicable decisions and commit culpable violations of the
Constitution with impunity.
xxx xxx xxx
He expressed the hope that by divesting himself of his title by which
he earns his living, the present members of the Supreme Court "will
become responsive to all cases brought to its attention without
discrimination, and will purge itself of those unconstitutional and
obnoxious "lack of merit" or "denied resolutions. (Emphasis supplied)
Atty. Almacen's statement that
... our own Supreme Court is composed of men who are calloused to
our pleas of [sic] justice, who ignore their own applicable decisions
and commit culpable violations of the Constitution with impunity
was quoted by columnist Vicente Albano Pacis in the issue of the Manila Chronicle of
September 28, 1967. In connection therewith, Pacis commented that Atty. Almacen had
"accused the high tribunal of offenses so serious that the Court must clear itself," and that
"his charge is one of the constitutional bases for impeachment."
The genesis of this unfortunate incident was a civil case entitled Virginia Y. Yaptinchay vs.
Antonio H. Calero,1 in which Atty. Almacen was counsel for the defendant. The trial court,
after due hearing, rendered judgment against his client. On June 15, 1966 Atty. Almacen
received a copy of the decision. Twenty days later, or on July 5, 1966, he moved for its
reconsideration. He served on the adverse counsel a copy of the motion, but did not notify
the latter of the time and place of hearing on said motion. Meanwhile, on July 18, 1966,
the plaintiff moved for execution of the judgment. For "lack of proof of service," the trial
court denied both motions. To prove that he did serve on the adverse party a copy of his
first motion for reconsideration, Atty. Almacen filed on August 17, 1966 a second motion
for reconsideration to which he attached the required registry return card. This second
motion for reconsideration, however, was ordered withdrawn by the trial court on August
30, 1966, upon verbal motion of Atty. Almacen himself, who, earlier, that is, on August 22,
1966, had already perfected the appeal. Because the plaintiff interposed no objection to
the record on appeal and appeal bond, the trial court elevated the case to the Court of
Appeals.
But the Court of Appeals, on the authority of this Court's decision in Manila Surety &
Fidelity Co., Inc. vs. Batu Construction & Co., L-16636, June 24, 1965, dismissed the appeal,
in the following words:
Upon consideration of the motion dated March 27, 1967, filed by
plaintiff-appellee praying that the appeal be dismissed, and of the
opposition thereto filed by defendant-appellant; the Court RESOLVED
TO DISMISS, as it hereby dismisses, the appeal, for the reason that
the motion for reconsideration dated July 5, 1966 (pp. 90-113,
printed record on appeal) does not contain a notice of time and place
of hearing thereof and is, therefore, a useless piece of paper (Manila
Surety & Fidelity Co., Inc. vs. Batu Construction & Co., G.R. No. L-
16636, June 24, 1965), which did not interrupt the running of the
period to appeal, and, consequently, the appeal was perfected out of
time.
Atty. Almacen moved to reconsider this resolution, urging that Manila Surety & Fidelity Co.
is not decisive. At the same time he filed a pleading entitled "Latest decision of the
Supreme Court in Support of Motion for Reconsideration," citing Republic of the Philippines
vs. Gregorio A. Venturanza, L-20417, decided by this Court on May 30, 1966, as the
applicable case. Again, the Court of Appeals denied the motion for reconsideration, thus:
Before this Court for resolution are the motion dated May 9, 1967
and the supplement thereto of the same date filed by defendant-
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Legal Ethics
appellant, praying for reconsideration of the resolution of May 8,
1967, dismissing the appeal.
Appellant contends that there are some important distinctions
between this case and that of Manila Surety and Fidelity Co., Inc. vs.
Batu Construction & Co., G.R. No. L- 16636, June 24, 1965, relied
upon by this Court in its resolution of May 8, 1967. Appellant further
states that in the latest case, Republic vs. Venturanza, L-20417, May
30, 1966, decided by the Supreme Court concerning the question
raised by appellant's motion, the ruling is contrary to the doctrine laid
down in the Manila Surety & Fidelity Co., Inc. case.
There is no substantial distinction between this case and that of
Manila Surety & Fidelity Co.
In the case of Republic vs. Venturanza, the resolution denying the
motion to dismiss the appeal, based on grounds similar to those
raised herein was issued on November 26, 1962, which was much
earlier than the date of promulgation of the decision in the Manila
Surety Case, which was June 24, 1965. Further, the resolution in the
Venturanza case was interlocutory and the Supreme Court issued it
"without prejudice to appellee's restoring the point in the brief." In
the main decision in said case (Rep. vs. Venturanza the Supreme
Court passed upon the issue sub silencio presumably because of its
prior decisions contrary to the resolution of November 26, 1962, one
of which is that in the Manila Surety and Fidelity case.
Therefore Republic vs. Venturanza is no authority on the matter in
issue.
Atty. Almacen then appealed to this Court by certiorari. We refused to take the case, and
by minute resolution denied the appeal. Denied shortly thereafter was his motion for
reconsideration as well as his petition for leave to file a second motion for reconsideration
and for extension of time. Entry of judgment was made on September 8, 1967. Hence, the
second motion for reconsideration filed by him after the Said date was ordered expunged
from the records.
It was at this juncture that Atty. Almacen gave vent to his disappointment by filing his
"Petition to Surrender Lawyer's Certificate of Title," already adverted to — a pleading that
is interspersed from beginning to end with the insolent contemptuous, grossly
disrespectful and derogatory remarks hereinbefore reproduced, against this Court as well
as its individual members, a behavior that is as unprecedented as it is unprofessional.
Nonetheless we decided by resolution dated September 28, 1967 to withhold action on
his petition until he shall have actually surrendered his certificate. Patiently, we waited for
him to make good his proffer. No word came from him. So he was reminded to turn over
his certificate, which he had earlier vociferously offered to surrender, so that this Court
could act on his petition. To said reminder he manifested "that he has no pending petition
in connection with Case G.R. No. L-27654, Calero vs. Yaptinchay, said case is now final and
executory;" that this Court's September 28, 1967 resolution did not require him to do
either a positive or negative act; and that since his offer was not accepted, he "chose to
pursue the negative act."
In the exercise of its inherent power to discipline a member of the bar for contumely and
gross misconduct, this Court on November 17, 1967 resolved to require Atty. Almacen to
show cause "why no disciplinary action should be taken against him." Denying the charges
contained in the November 17 resolution, he asked for permission "to give reasons and
cause why no disciplinary action should be taken against him ... in an open and public
hearing." This Court resolved (on December 7) "to require Atty. Almacen to state, within
five days from notice hereof, his reasons for such request, otherwise, oral argument shall
be deemed waived and incident submitted for decision." To this resolution he manifested
that since this Court is "the complainant, prosecutor and Judge," he preferred to be heard
and to answer questions "in person and in an open and public hearing" so that this Court
could observe his sincerity and candor. He also asked for leave to file a written explanation
"in the event this Court has no time to hear him in person." To give him the ampliest
latitude for his defense, he was allowed to file a written explanation and thereafter was
heard in oral argument.
His written answer, as undignified and cynical as it is unchastened, offers -no apology. Far
from being contrite Atty. Almacen unremittingly repeats his jeremiad of lamentations, this
time embellishing it with abundant sarcasm and innuendo. Thus:
At the start, let me quote passages from the Holy Bible, Chapter 7, St.
Matthew: —
"Do not judge, that you may not be judged. For
with what judgment you judge, you shall be
judged, and with what measure you measure, it
shall be measured to you. But why dost thou see
the speck in thy brother's eye, and yet dost not
consider the beam in thy own eye? Or how can
thou say to thy brother, "Let me cast out the
speck from thy eye"; and behold, there is a
beam in thy own eye? Thou hypocrite, first cast
out the beam from thy own eye, and then thou
wilt see clearly to cast out the speck from thy
brother's eyes."
"Therefore all that you wish men to do to you,
even to do you also to them: for this is the Law
and the Prophets."
xxx xxx xxx
Your respondent has no intention of disavowing the statements
mentioned in his petition. On the contrary, he refirms the truth of
what he stated, compatible with his lawyer's oath that he will do no
falsehood, nor consent to the doing of any in court. But he vigorously
DENY under oath that the underscored statements contained in the
CHARGE are insolent, contemptuous, grossly disrespectful and
derogatory to the individual members of the Court; that they tend to
bring the entire Court, without justification, into disrepute; and
constitute conduct unbecoming of a member of the noble profession
of law.
62
Legal Ethics
xxx xxx xxx
Respondent stands four-square that his statement is borne by TRUTH
and has been asserted with NO MALICE BEFORE AND AFTER
THOUGHT but mainly motivated with the highest interest of justice
that in the particular case of our client, the members have shown
callousness to our various pleas for JUSTICE, our pleadings will bear
us on this matter, ...
xxx xxx xxx
To all these beggings, supplications, words of humility, appeals for
charity, generosity, fairness, understanding, sympathy and above all
in the highest interest of JUSTICE, — what did we get from this
COURT? One word, DENIED, with all its hardiness and insensibility.
That was the unfeeling of the Court towards our pleas and prayers, in
simple word, it is plain callousness towards our particular case.
xxx xxx xxx
Now that your respondent has the guts to tell the members of the
Court that notwithstanding the violation of the Constitution, you
remained unpunished, this Court in the reverse order of natural
things, is now in the attempt to inflict punishment on your
respondent for acts he said in good faith.
Did His Honors care to listen to our pleadings and supplications for
JUSTICE, CHARITY, GENEROSITY and FAIRNESS? Did His Honors
attempt to justify their stubborn denial with any semblance of
reason, NEVER. Now that your respondent is given the opportunity to
face you, he reiterates the same statement with emphasis, DID YOU?
Sir. Is this. the way of life in the Philippines today, that even our own
President, said: — "the story is current, though nebulous ,is to its
truth, it is still being circulated that justice in the Philippines today is
not what it is used to be before the war. There are those who have
told me frankly and brutally that justice is a commodity, a marketable
commodity in the Philippines."
xxx xxx xxx
We condemn the SIN, not the SINNER. We detest the ACTS, not the
ACTOR. We attack the decision of this Court, not the members. ... We
were provoked. We were compelled by force of necessity. We were
angry but we waited for the finality of the decision. We waited until
this Court has performed its duties. We never interfered nor obstruct
in the performance of their duties. But in the end, after seeing that
the Constitution has placed finality on your judgment against our
client and sensing that you have not performed your duties with
"circumspection, carefulness, confidence and wisdom", your
Respondent rise to claim his God given right to speak the truth and
his Constitutional right of free speech.
xxx xxx xxx
The INJUSTICES which we have attributed to this Court and the
further violations we sought to be prevented is impliedly shared by
our President. ... .
xxx xxx xxx
What has been abhored and condemned, are the very things that were applied to us.
Recalling Madam Roland's famous apostrophe during the French revolution, "O Liberty,
what crimes are committed in thy name", we may dare say, "O JUSTICE, what technicalities
are committed in thy name' or more appropriately, 'O JUSTICE, what injustices are
committed in thy name."
xxx xxx xxx
We must admit that this Court is not free from commission of any
abuses, but who would correct such abuses considering that yours is
a court of last resort. A strong public opinion must be generated so
as to curtail these abuses.
xxx xxx xxx
The phrase, Justice is blind is symbolize in paintings that can be found
in all courts and government offices. We have added only two more
symbols, that it is also deaf and dumb. Deaf in the sense that no
members of this Court has ever heard our cries for charity,
generosity, fairness, understanding sympathy and for justice; dumb
in the sense, that inspite of our beggings, supplications, and pleadings
to give us reasons why our appeal has been DENIED, not one word
was spoken or given ... We refer to no human defect or ailment in the
above statement. We only describe the. impersonal state of things
and nothing more.
xxx xxx xxx
As we have stated, we have lost our faith and confidence in the
members of this Court and for which reason we offered to surrender
our lawyer's certificate, IN TRUST ONLY. Because what has been lost
today may be regained tomorrow. As the offer was intended as our
self-imposed sacrifice, then we alone may decide as to when we must
end our self-sacrifice. If we have to choose between forcing ourselves
to have faith and confidence in the members of the Court but
disregard our Constitution and to uphold the Constitution and be
condemned by the members of this Court, there is no choice, we
must uphold the latter.
But overlooking, for the nonce, the vituperative chaff which he claims is not intended as a
studied disrespect to this Court, let us examine the grain of his grievances.
He chafes at the minute resolution denial of his petition for review. We are quite aware of
the criticisms2expressed against this Court's practice of rejecting petitions by minute
resolutions. We have been asked to do away with it, to state the facts and the law, and to
spell out the reasons for denial. We have given this suggestion very careful thought. For
we know the abject frustration of a lawyer who tediously collates the facts and for many
weary hours meticulously marshalls his arguments, only to have his efforts rebuffed with
a terse unadorned denial. Truth to tell, however, most petitions rejected by this Court are
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utterly frivolous and ought never to have been lodged at all.3 The rest do exhibit a first-
impression cogency, but fail to, withstand critical scrutiny. By and large, this Court has been
generous in giving due course to petitions for certiorari.
Be this as it may, were we to accept every case or write a full opinion for every petition we
reject, we would be unable to carry out effectively the burden placed upon us by the
Constitution. The proper role of the Supreme Court, as Mr. Chief Justice Vinson of the U.S.
Supreme Court has defined it, is to decide "only those cases which present questions
whose resolutions will have immediate importance beyond the particular facts and parties
involved." Pertinent here is the observation of Mr. Justice Frankfurter in Maryland vs.
Baltimore Radio Show, 94 L. ed 562, 566:
A variety of considerations underlie denials of the writ, and as to the
same petition different reasons may read different justices to the
same result ... .
Since there are these conflicting, and, to the uninformed, even
confusing reasons for denying petitions for certiorari, it has been
suggested from time to time that the Court indicate its reasons for
denial. Practical considerations preclude. In order that the Court may
be enabled to discharge its indispensable duties, Congress has placed
the control of the Court's business, in effect, within the Court's
discretion. During the last three terms the Court disposed of 260,
217, 224 cases, respectively, on their merits. For the same three
terms the Court denied, respectively, 1,260, 1,105,1,189 petitions
calling for discretionary review. If the Court is to do its work it would
not be feasible to give reasons, however brief, for refusing to take
these cases. The tune that would be required is prohibitive. Apart
from the fact that as already indicated different reasons not
infrequently move different members of the Court in concluding that
a particular case at a particular time makes review undesirable.
Six years ago, in Novino, et al., vs. Court of Appeals, et al., 1,21098, May 31, 1963 (60 O.G.
8099), this Court, through the then Chief Justice Cesar Bengzon, articulated its considered
view on this matter. There, the petitioners counsel urged that a "lack of merit" resolution
violates Section 12 of Article VIII of the Constitution. Said Chief Justice Bengzon:
In connection with identical short resolutions, the same question has
been raised before; and we held that these "resolutions" are not
"decisions" within the above constitutional requirement. They merely
hold that the petition for review should not be entertained in view of
the provisions of Rule 46 of the Rules of Court; and even ordinary
lawyers have all this time so understood it. It should be remembered
that a petition to review the decision of the Court of Appeals is not a
matter of right, but of sound judicial discretion; and so there is no
need to fully explain the court's denial. For one thing, the facts and
the law are already mentioned in the Court of Appeals' opinion.
By the way, this mode of disposal has — as intended — helped the
Court in alleviating its heavy docket; it was patterned after the
practice of the U.S. Supreme Court, wherein petitions for review are
often merely ordered "dismissed".
We underscore the fact that cases taken to this Court on petitions for certiorari from the
Court of Appeals have had the benefit of appellate review. Hence, the need for compelling
reasons to buttress such petitions if this Court is to be moved into accepting them. For it
is axiomatic that the supervisory jurisdiction vested upon this Court over the Court of
Appeals is not intended to give every losing party another hearing. This axiom is implied in
sec. 4 of Rule 45 of the Rules of Court which recites:
Review of Court of Appeals' decision discretionary.—A review is not a
matter of right but of sound judicial discretion, and will be granted
only when there are special and important reasons therefor. The
following, while neither controlling nor fully measuring the court's
discretion, indicate the character of reasons which will be considered:
(a) When the Court of Appeals has decided a question of substance,
not theretofore determined by the Supreme Court, nor has decided
it in a way probably not in accord with law or with the applicable
decisions of the Supreme Court;
(b) When the Court of Appeals has so far departed from the accepted
and usual course of judicial proceedings, or so far sanctioned such
departure by the lower court, as to call for the exercise of the power
of supervision.
Recalling Atty. Almacen's petition for review, we found, upon a thoroughgoing examination
of the pleadings. and records, that the Court of Appeals had fully and correctly considered
the dismissal of his appeal in the light of the law and applicable decisions of this Court. Far
from straying away from the "accepted and usual course of judicial proceedings," it traced
the procedural lines etched by this Court in a number of decisions. There was, therefore,
no need for this Court to exercise its supervisory power.
As a law practitioner who was admitted to the Bar as far back as 1941, Atty. Almacen knew
— or ought to have known — that for a motion for reconsideration to stay the running of
the period of appeal, the movant must not only serve a copy of the motion upon the
adverse party (which he did), but also notify the adverse party of the time and place of
hearing (which admittedly he did not). This rule was unequivocally articulated in Manila
Surety & Fidelity vs. Batu Construction & Co., supra:
The written notice referred to evidently is prescribed for motions in
general by Rule 15, Sections 4 and 5 (formerly Rule 26), which
provides that such notice shall state the time, and place of hearing
and shall be served upon all the Parties concerned at least three days
in advance. And according to Section 6 of the same Rule no motion
shall be acted upon by the court without proof of such notice. Indeed
it has been held that in such a case the motion is nothing but a useless
piece of paper (Philippine National Bank v. Damasco, I,18638, Feb. 28,
1963; citing Manakil v. Revilla, 42 Phil. 81; Roman Catholic Bishop of
Lipa v. Municipality of Unisan, 41 Phil. 866; and Director of Lands vs.
Sanz, 45 Phil. 117). The reason is obvious: Unless the movant sets the
time and place of hearing the Court would have no way to determine
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whether that party agrees to or objects to the motion, and if he
objects, to hear him on his objection, since the Rules themselves do
not fix any period within which he may file his reply or opposition.
If Atty. Almacen failed to move the appellate court to review the lower court's judgment,
he has only himself to blame. His own negligence caused the forfeiture of the remedy of
appeal, which, incidentally, is not a matter of right. To shift away from himself the
consequences of his carelessness, he looked for a "whipping boy." But he made sure that
he assumed the posture of a martyr, and, in offering to surrender his professional
certificate, he took the liberty of vilifying this Court and inflicting his exacerbating rancor
on the members thereof. It would thus appear that there is no justification for his scurrilous
and scandalous outbursts.
Nonetheless we gave this unprecedented act of Atty. Almacen the most circumspect
consideration. We know that it is natural for a lawyer to express his dissatisfaction each
time he loses what he sanguinely believes to be a meritorious case. That is why lawyers are
given 'wide latitude to differ with, and voice their disapproval of, not only the courts'
rulings but, also the manner in which they are handed down.
Moreover, every citizen has the right to comment upon and criticize the actuations of
public officers. This right is not diminished by the fact that the criticism is aimed at a judicial
authority,4 or that it is articulated by a lawyer.5 Such right is especially recognized where
the criticism concerns a concluded litigation,6 because then the court's actuations are
thrown open to public consumption.7"Our decisions and all our official actions," said the
Supreme Court of Nebraska,8 "are public property, and the press and the people have the
undoubted right to comment on them, criticize and censure them as they see fit. Judicial
officers, like other public servants, must answer for their official actions before the
chancery of public opinion."
The likely danger of confusing the fury of human reaction to an attack on one's integrity,
competence and honesty, with "imminent danger to the administration of justice," is the
reason why courts have been loath to inflict punishment on those who assail their
actuations.9 This danger lurks especially in such a case as this where those who Sit as
members of an entire Court are themselves collectively the aggrieved parties.
Courts thus treat with forbearance and restraint a lawyer who vigorously assails their
actuations. 10 For courageous and fearless advocates are the strands that weave durability
into the tapestry of justice. Hence, as citizen and officer of the court, every lawyer is
expected not only to exercise the right, but also to consider it his duty to expose the
shortcomings and indiscretions of courts and judges. 11
Courts and judges are not sacrosanct. 12 They should and expect critical evaluation of their
performance. 13 For like the executive and the legislative branches, the judiciary is rooted
in the soil of democratic society, nourished by the periodic appraisal of the citizens whom
it is expected to serve.
Well-recognized therefore is the right of a lawyer, both as an officer of the court and as a
citizen, to criticize in properly respectful terms and through legitimate channels the acts of
courts and judges. The reason is that
An attorney does not surrender, in assuming the important place
accorded to him in the administration of justice, his right as a citizen
to criticize the decisions of the courts in a fair and respectful manner,
and the independence of the bar, as well as of the judiciary, has
always been encouraged by the courts. (In re Ades, 6 F Supp. 487) .
Criticism of the courts has, indeed, been an important part of the traditional work of the
bar. In the prosecution of appeals, he points out the errors of lower courts. In written for
law journals he dissects with detachment the doctrinal pronouncements of courts and
fearlessly lays bare for -all to see that flaws and inconsistence" of the doctrines (Hill v.
Lyman, 126 NYS 2d 286). As aptly stated by Chief Justice Sharswood in Ex Parte Steinman,
40 Am. Rep. 641:
No class of the community ought to be allowed freer scope in the
expansion or publication of opinions as to the capacity, impartiality
or integrity of judges than members of the bar. They have the best
opportunities for observing and forming a correct judgment. They are
in constant attendance on the courts. ... To say that an attorney can
only act or speak on this subject under liability to be called to account
and to be deprived of his profession and livelihood, by the judge or
judges whom he may consider it his duty to attack and expose, is a
position too monstrous to be
entertained. ... .
Hence, as a citizen and as Officer of the court a lawyer is expected not only to exercise the
right, but also to consider it his duty to avail of such right. No law may abridge this right.
Nor is he "professionally answerable for a scrutiny into the official conduct of the judges,
which would not expose him to legal animadversion as a citizen." (Case of Austin, 28 Am.
Dee. 657, 665).
Above all others, the members of the bar have the beat Opportunity
to become conversant with the character and efficiency of our
judges. No class is less likely to abuse the privilege, as no other class
has as great an interest in the preservation of an able and upright
bench. (State Board of Examiners in Law v. Hart, 116 N.W. 212, 216)
To curtail the right of a lawyer to be critical of the foibles of courts and judges is to seal the
lips of those in the best position to give advice and who might consider it their duty to
speak disparagingly. "Under such a rule," so far as the bar is concerned, "the merits of a
sitting judge may be rehearsed, but as to his demerits there must be profound silence."
(State v. Circuit Court, 72 N.W. 196)
But it is the cardinal condition of all such criticism that it shall be bona fide, and shall not
spill over the walls of decency and propriety. A wide chasm exists between fair criticism,
on the One hand, and abuse and slander of courts and the judges thereof, on the other.
Intemperate and unfair criticism is a gross violation of the duty of respect to courts. It is
Such a misconduct that subjects a lawyer to disciplinary action.
For, membership in the Bar imposes upon a person obligations and duties which are not
mere flux and ferment. His investiture into the legal profession places upon his shoulders
no burden more basic, more exacting and more imperative than that of respectful behavior
toward the courts. He vows solemnly to conduct himself "with all good fidelity ... to the
courts; 14 and the Rules of Court constantly remind him "to observe and maintain the
respect due to courts of justice and judicial officers." 15 The first canon of legal ethics
enjoins him "to maintain towards the courts a respectful attitude, not for the sake of the
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temporary incumbent of the judicial office, but for the maintenance of its supreme
importance."
As Mr. Justice Field puts it:
... the obligation which attorneys impliedly assume, if they do not by
express declaration take upon themselves, when they are admitted
to the Bar, is not merely to be obedient to the Constitution and laws,
but to maintain at all times the respect due to courts of justice and
judicial officers. This obligation is not discharged by merely observing
the rules of courteous demeanor in open court, but includes
abstaining out of court from all insulting language and offensive
conduct toward judges personally for their judicial acts. (Bradley, v.
Fisher, 20 Law. 4d. 647, 652)
The lawyer's duty to render respectful subordination to the courts is essential to the
orderly administration of justice. Hence, in the — assertion of their clients' rights, lawyers
— even those gifted with superior intellect are enjoined to rein up their tempers.
The counsel in any case may or may not be an abler or more learned
lawyer than the judge, and it may tax his patience and temper to
submit to rulings which he regards as incorrect, but discipline and
self-respect are as necessary to the orderly administration of justice
as they are to the effectiveness of an army. The decisions of the judge
must be obeyed, because he is the tribunal appointed to decide, and
the bar should at all times be the foremost in rendering respectful
submission. (In Re Scouten, 40 Atl. 481)
We concede that a lawyer may think highly of his intellectual
endowment That is his privilege. And he may suffer frustration at
what he feels is others' lack of it. That is his misfortune. Some such
frame of mind, however, should not be allowed to harden into a
belief that he may attack a court's decision in words calculated to
jettison the time-honored aphorism that courts are the temples of
right. (Per Justice Sanchez in Rheem of the Philippines vs. Ferrer, L-
22979. June 26, 1967)
In his relations with the courts, a lawyer may not divide his personality so as to be an
attorney at one time and a mere citizen at another. Thus, statements made by an attorney
in private conversations or communications 16 or in the course of a political, campaign, 17 if
couched in insulting language as to bring into scorn and disrepute the administration of
justice, may subject the attorney to disciplinary action.
Of fundamental pertinence at this juncture is an examination of relevant parallel
precedents.
1. Admitting that a "judge as a public official is neither sacrosanct nor immune to public
criticism of his conduct in office," the Supreme Court of Florida in State v. Calhoon, 102 So.
2d 604, 608, nevertheless declared that "any conduct of a lawyer which brings into scorn
and disrepute the administration of justice demands condemnation and the application of
appropriate penalties," adding that:
It would be contrary to, every democratic theory to hold that a judge
or a court is beyond bona fide comments and criticisms which do not
exceed the bounds of decency and truth or which are not aimed at.
the destruction of public confidence in the judicial system as such.
However, when the likely impairment of the administration of justice
the direct product of false and scandalous accusations then the rule
is otherwise.
2. In In Re Glenn, 130 N.W. 2d 672, an attorney was suspended for putting out and
circulating a leaflet entitled "JUSTICE??? IN OTUMWA," which accused a municipal judge
of having committed judicial error, of being so prejudiced as to deny his clients a fair trial
on appeal and of being subject to the control of a group of city officials. As a prefatory
statement he wrote: "They say that Justice is BLIND, but it took Municipal Judge Willard to
prove that it is also DEAF and DUMB!" The court did not hesitate to find that the leaflet
went much further than the accused, as a lawyer, had a right to do.
The entire publication evidences a desire on the part Of the accused
to belittle and besmirch the court and to bring it into disrepute with
the general public.
3. In In Re Humphrey, 163 Pac. 60, the Supreme Court of California affirmed the two-year
suspension of an attorney who published a circular assailing a judge who at that time was
a candidate for re-election to a judicial office. The circular which referred to two decisions
of the judge concluded with a statement that the judge "used his judicial office to enable -
said bank to keep that money." Said the court:
We are aware that there is a line of authorities which place no limit
to the criticism members of the bar may make regarding the capacity,
impartiality, or integrity of the courts, even though it extends to the
deliberate publication by the attorney capable of correct reasoning
of baseless insinuations against the intelligence and integrity of the
highest courts. See State Board, etc. v. Hart. 116 N.W. 212, 17 LRA
(N.S.) 585, 15 Ann Cas 197 and note: Ex parte Steinman 95 Pac. 220,
40 Am. Rep. 637. In the first case mentioned it was observed, for
instance:
"It may be (although we do not so decide) that
a libelous publication by an attorney, directed
against a judicial officer, could be so vile and of
such a nature as to justify the disbarment of its
author."
Yet the false charges made by an attorney in that case were of graver
character than those made by the respondent here. But, in our view,
the better rule is that which requires of those who are permitted to
enjoy the privilege of practicing law the strictest observance at all
times of the principles of truth, honesty and fairness, especially in
their criticism of the courts, to the end that the public confidence in
the due administration of justice be upheld, and the dignity and
usefulness of the courts be maintained. In re Collins, 81 Pac. 220.
4. In People ex rel Chicago Bar Asso. v. Metzen, 123 N.E. 734, an attorney, representing a
woman who had been granted a divorce, attacked the judge who set aside the decree on
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bill of review. He wrote the judge a threatening letter and gave the press the story of a
proposed libel suit against the judge and others. The letter began:
Unless the record in In re Petersen v. Petersen is cleared up so that
my name is protected from the libel, lies, and perjury committed in
the cases involved, I shall be compelled to resort to such drastic
action as the law allows and the case warrants.
Further, he said: "However let me assure you I do not intend to allow such dastardly work
to go unchallenged," and said that he was engaged in dealing with men and not
irresponsible political manikins or appearances of men. Ordering the attorney's
disbarment, the Supreme Court of Illinois declared:
... Judges are not exempt from just criticism, and whenever there is
proper ground for serious complaint against a judge, it is the right and
duty of a lawyer to submit his grievances to the proper authorities,
but the public interest and the administration of the law demand that
the courts should have the confidence and respect of the people.
Unjust criticism, insulting language, and offensive conduct toward
the judges personally by attorneys, who are officers of the court,
which tend to bring the courts and the law into disrepute and to
destroy public confidence in their integrity, cannot be permitted. The
letter written to the judge was plainly an attempt to intimidate and
influence him in the discharge of judicial functions, and the bringing
of the unauthorized suit, together with the write-up in the Sunday
papers, was intended and calculated to bring the court into disrepute
with the public.
5. In a public speech, a Rhode Island lawyer accused the courts of the state of being
influenced by corruption and greed, saying that the seats of the Supreme Court were
bartered. It does not appear that the attorney had criticized any of the opinions or
decisions of the Court. The lawyer was charged with unprofessional conduct, and was
ordered suspended for a period of two years. The Court said:
A calumny of that character, if believed, would tend to weaken the
authority of the court against whose members it was made, bring its
judgments into contempt, undermine its influence as an unbiased
arbiter of the people's right, and interfere with the administration of
justice. ...
Because a man is a member of the bar the court will not, under the
guise of disciplinary proceedings, deprive him of any part of that
freedom of speech which he possesses as a citizen. The acts and
decisions of the courts of this state, in cases that have reached final
determination, are not exempt from fair and honest comment and
criticism. It is only when an attorney transcends the limits of
legitimate criticism that he will be held responsible for an abuse of
his liberty of speech. We well understand that an independent bar,
as well as independent court, is always a vigilant defender of civil
rights. In Re Troy, 111 Atl. 723. 725.
6. In In Re Rockmore, 111 NYS 879, an attorney was suspended for six months for
submitting to an appellate court an affidavit reflecting upon the judicial integrity of the
court from which the appeal was taken. Such action, the Court said, constitutes
unprofessional conduct justifying suspension from practice, notwithstanding that he fully
retracted and withdrew the statements, and asserted that the affidavit was the result of
an impulse caused by what he considered grave injustice. The Court said:
We cannot shut our eyes to the fact that there is a growing habit in
the profession of criticising the motives and integrity of judicial
officers in the discharge of their duties, and thereby reflecting on the
administration of justice and creating the impression that judicial
action is influenced by corrupt or improper motives. Every attorney
of this court, as well as every other citizen, has the right and it is his
duty, to submit charges to the authorities in whom is vested the
power to remove judicial officers for any conduct or act of a judicial
officer that tends to show a violation of his duties, or would justify an
inference that he is false to his trust, or has improperly administered
the duties devolved upon him; and such charges to the tribunal, if
based upon reasonable inferences, will be encouraged, and the
person making them
protected. ... While we recognize the inherent right of an attorney in
a case decided against him, or the right of the Public generally, to
criticise the decisions of the courts, or the reasons announced for
them, the habit of criticising the motives of judicial officers in the
performance of their official duties, when the proceeding is not
against the officers whose acts or motives are criticised, tends to
subvert the confidence of the community in the courts of justice and
in the administration of justice; and when such charges are made by
officers of the courts, who are bound by their duty to protect the
administration of justice, the attorney making such charges is guilty
of professional misconduct.
7. In In Re Mitchell, 71 So. 467, a lawyer published this statement:
I accepted the decision in this case, however, with patience, barring
possible temporary observations more or less vituperative and finally
concluded, that, as my clients were foreigners, it might have been
expecting too much to look for a decision in their favor against a
widow residing here.
The Supreme Court of Alabama declared that:
... the expressions above set out, not only transcend the bounds of
propriety and privileged criticism, but are an unwarranted attack,
direct, or by insinuation and innuendo, upon the motives and
integrity of this court, and make out a prima facie case of improper
conduct upon the part of a lawyer who holds a license from this court
and who is under oath to demean himself with all good fidelity to the
court as well as to his client.
The charges, however, were dismissed after the attorney apologized to the Court.
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8. In State ex rel. Dabney v. Breckenridge, 258 Pac. 747, an attorney published in a
newspaper an article in which he impugned the motives of the court and its members to
try a case, charging the court of having arbitrarily and for a sinister purpose undertaken to
suspend the writ of habeas corpus. The Court suspended the respondent for 30 days,
saying that:
The privileges which the law gives to members of the bar is one most
subversive of the public good, if the conduct of such members does
not measure up to the requirements of the law itself, as well as to the
ethics of the profession. ...
The right of free speech and free discussion as to judicial
determination is of prime importance under our system and ideals of
government. No right thinking man would concede for a moment
that the best interest to private citizens, as well as to public officials,
whether he labors in a judicial capacity or otherwise, would be served
by denying this right of free speech to any individual. But such right
does not have as its corollary that members of the bar who are sworn
to act honestly and honorably both with their client and with the
courts where justice is administered, if administered at all, could ever
properly serve their client or the public good by designedly misstating
facts or carelessly asserting the law. Truth and honesty of purpose by
members of the bar in such discussion is necessary. The health of a
municipality is none the less impaired by a polluted water supply than
is the health of the thought of a community toward the judiciary by
the filthy wanton, and malignant misuse of members of the bar of the
confidence the public, through its duly established courts, has
reposed in them to deal with the affairs of the private individual, the
protection of whose rights he lends his strength and money to
maintain the judiciary. For such conduct on the part of the members
of the bar the law itself demands retribution — not the court.
9. In Bar Ass'n of San Francisco v. Philbrook, 170 Pac. 440, the filing of an affidavit by an
attorney in a pending action using in respect to the several judges the terms criminal
corrupt, and wicked conspiracies,," "criminal confederates," "colossal and confident
insolence," "criminal prosecution," "calculated brutality," "a corrupt deadfall," and similar
phrases, was considered conduct unbecoming of a member of the bar, and the name of
the erring lawyer was ordered stricken from the roll of attorneys.
10. In State Board of Examiners v. Hart, 116 N.W. 215, the erring attorney claimed that
greater latitude should be allowed in case of criticism of cases finally adjudicated than in
those pending. This lawyer wrote a personal letter to the Chief Justice of the Supreme
Court of Minnesota impugning both the intelligence and the integrity of the said Chief
Justice and his associates in the decisions of certain appeals in which he had been attorney
for the defeated litigants. The letters were published in a newspaper. One of the letters
contained this paragraph:
You assigned it (the property involved) to one who has no better right
to it than the burglar to his plunder. It seems like robbing a widow to
reward a fraud, with the court acting as a fence, or umpire, watchful
and vigilant that the widow got no undue
advantage. ... The point is this: Is a proper motive for the decisions
discoverable, short of assigning to the court emasculated
intelligence, or a constipation of morals and faithlessness to duty? If
the state bar association, or a committee chosen from its rank, or the
faculty of the University Law School, aided by the researches of its
hundreds of bright, active students, or if any member of the court, or
any other person, can formulate a statement of a correct motive for
the decision, which shall not require fumigation before it is stated,
and quarantine after it is made, it will gratify every right-minded
citizen of the state to read it.
The Supreme Court of Minnesota, in ordering the suspension of the attorney for six
months, delivered its opinion as follows:
The question remains whether the accused was guilty of professional
misconduct in sending to the Chief Justice the letter addressed to
him. This was done, as we have found, for the very purpose of
insulting him and the other justices of this court; and the insult was
so directed to the Chief Justice personally because of acts done by
him and his associates in their official capacity. Such a
communication, so made, could never subserve any good purpose.
Its only effect in any case would be to gratify the spite of an angry
attorney and humiliate the officers so assailed. It would not and could
not ever enlighten the public in regard to their judicial capacity or
integrity. Nor was it an exercise by the accused of any constitutional
right, or of any privilege which any reputable attorney, uninfluenced
by passion, could ever have any occasion or desire to assert. No
judicial officer, with due regard to his position, can resent such an
insult otherwise than by methods sanctioned by law; and for any
words, oral or written, however abusive, vile, or indecent, addressed
secretly to the judge alone, he can have no redress in any action
triable by a jury. "The sending of a libelous communication or libelous
matter to the person defamed does not constitute an actionable
publication." 18 Am. & Eng. Enc. Law (2d Ed.) p. 1017. In these
respects the sending by the accused of this letter to the Chief Justice
was wholly different from his other acts charged in the accusation,
and, as we have said, wholly different principles are applicable
thereto.
The conduct of the accused was in every way discreditable; but so far
as he exercised the rights of a citizen, guaranteed by the Constitution
and sanctioned by considerations of public policy, to which reference
has been made, he was immune, as we hold, from the penalty here
sought to be enforced. To that extent his rights as a citizen were
paramount to the obligation which he had assumed as an officer of
this court. When, however he proceeded and thus assailed the Chief
Justice personally, he exercised no right which the court can
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recognize, but, on the contrary, willfully violated his obligation to
maintain the respect due to courts and judicial officers. "This
obligation is not discharged by merely observing the rules of
courteous demeanor in open court, but it includes abstaining out of
court from all insulting language and offensive conduct toward the
judges personally for their official acts." Bradley v. Fisher, 13 Wall.
(U.S.) 355, 20 L. Ed. 646. And there appears to be no distinction, as
regards the principle involved, between the indignity of an assault by
an attorney upon a judge, induced by his official act, and a personal
insult for like cause by written or spoken words addressed to the
judge in his chambers or at his home or elsewhere. Either act
constitutes misconduct wholly different from criticism of judicial acts
addressed or spoken to others. The distinction made is, we think
entirely logical and well sustained by authority. It was recognized
in Ex parte McLeod supra. While the court in that case, as has been
shown, fully sustained the right of a citizen to criticise rulings of the
court in actions which are ended, it held that one might be summarily
punished for assaulting a judicial officer, in that case a commissioner
of the court, for his rulings in a cause wholly concluded. "Is it in the
power of any person," said the court, "by insulting or assaulting the
judge because of official acts, if only the assailant restrains his passion
until the judge leaves the building, to compel the judge to forfeit
either his own self-respect to the regard of the people by tame
submission to the indignity, or else set in his own person the evil
example of punishing the insult by taking the law in his own hands?
... No high-minded, manly man would hold judicial office under such
conditions."
That a communication such as this, addressed to the Judge
personally, constitutes professional delinquency for which a
professional punishment may be imposed, has been directly decided.
"An attorney who, after being defeated in a case, wrote a personal
letter to the trial justice, complaining of his conduct and reflecting
upon his integrity as a justice, is guilty of misconduct and will be
disciplined by the court." Matter of Manheim 133 App. Div. 136, 99
N.Y. Supp. 87 The same is held in Re Griffin (City Ct.) 1 N.Y. 7 and in
Re Wilkes (City Ct.) 3 N.Y. In the latter case it appeared that the
accused attorney had addressed a sealed letter to a justice of the City
Court of New York, in which it was stated, in reference to his decision:
"It is not law; neither is it common sense. The result is I have been
robbed of 80." And it was decided that, while such conduct was not a
contempt under the state, the matter should be "called to the
attention of the Supreme Court, which has power to discipline the
attorney." "If," says the court, "counsel learned in the law are
permitted by writings leveled at the heads of judges, to charge them
with ignorance, with unjust rulings, and with robbery, either as
principals or accessories, it will not be long before the general public
may feel that they may redress their fancied grievances in like
manner, and thus the lot of a judge will be anything but a happy one,
and the administration of justice will fall into bad repute."
The recent case of Johnson v. State (Ala.) 44 South. 671, was in this
respect much the same as the case at bar. The accused, an attorney
at law, wrote and mailed a letter to the circuit judge, which the latter
received by due course of mail, at his home, while not holding court,
and which referred in insulting terms to the conduct of the judge in a
cause wherein the accused had been one of the attorneys. For this it
was held that the attorney was rightly disbarred in having "willfully
failed to maintain respect due to him [the judge] as a judicial officer,
and thereby breached his oath as an attorney." As recognizing the
same principle, and in support of its application to the facts of this
case, we cite the following: Ex parte Bradley, 7 Wall (U.S.) 364, 19 L.
Ed. 214; Beene v. State, 22 Ark. 149; Commonwealth v. Dandridge, 2
Va. Cas. 408; People v. Green, 7 Colo 237, 244, 3 Pac. 65, 374, 49 Am.
Rep. 351; Smith's Appeal, 179 Pa. 14, 36 Atl. 134; Scouten's Appeal,
186 Pa. 270, Atl. 481.
Our conclusion is that the charges against the accused have been so
far sustained as to make it our duty to impose such a penalty as may
be sufficient lesson to him and a suitable warning to others. ...
11. In Cobb v. United States, 172 F. 641, the court affirmed a lawyer's suspension for 18
months for publishing a letter in a newspaper in which he accused a judge of being under
the sinister influence of a gang that had paralyzed him for two years.
12. In In Re Graves, 221 Pac. 411, the court held that an attorney's unjustifiable attack
against the official acts and decisions of a judge constitutes "moral turpitude." There, the
attorney was disbarred for criticising not only the judge, but his decisions in general
claiming that the judge was dishonest in reaching his decisions and unfair in his general
conduct of a case.
13. In In Re Doss, 12 N.E. 2d 659, an attorney published newspaper articles after the trial
of cases, criticising the court in intemperate language. The invariable effect of this sort of
propaganda, said the court, is to breed disrespect for courts and bring the legal profession
into disrepute with the public, for which reason the lawyer was disbarred.
14. In State v. Grimes, 354 Pac. 2d 108, an attorney, dissatisfied with the loss of a case,
prepared over a period of years vicious attacks on jurists. The Oklahoma Supreme Court
declared that his acts involved such gross moral turpitude as to make him unfit as a
member of the bar. His disbarment was ordered, even though he expressed an intention
to resign from the bar.
The teaching derived from the above disquisition and impressive affluence of judicial
pronouncements is indubitable: Post-litigation utterances or publications, made by
lawyers, critical of the courts and their judicial actuations, whether amounting to a crime
or not, which transcend the permissible bounds of fair comment and legitimate criticism
and thereby tend to bring them into disrepute or to subvert public confidence in their
integrity and in the orderly administration of justice, constitute grave professional
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Legal Ethics
misconduct which may be visited with disbarment or other lesser appropriate disciplinary
sanctions by the Supreme Court in the exercise of the prerogatives inherent in it as the
duly constituted guardian of the morals and ethics of the legal fraternity.
Of course, rarely have we wielded our disciplinary powers in the face of unwarranted
outbursts of counsel such as those catalogued in the above-cited jurisprudence. Cases of
comparable nature have generally been disposed of under the power of courts to punish
for contempt which, although resting on different bases and calculated to attain a different
end, nevertheless illustrates that universal abhorrence of such condemnable practices.
A perusal of the more representative of these instances may afford enlightenment.
1. In Salcedo vs. Hernandez, 61 Phil. 724, where counsel branded the denial of his motion
for reconsideration as "absolutely erroneous and constituting an outrage to the rigths of
the petitioner Felipe Salcedo and a mockery of the popular will expressed at the polls," this
Court, although conceding that
It is right and plausible that an attorney, in defending the cause and
rights of his client, should do so with all the fervor and energy of
which he is capable, but it is not, and never will be so for him to
exercise said right by resorting to intimidation or proceeding without
the propriety and respect which the dignity of the courts requires.
The reason for this is that respect for the courts guarantees the
stability of their institution. Without such guaranty, said institution
would be resting on a very shaky foundation,
found counsel guilty of contempt inasmuch as, in its opinion, the statements made
disclosed
... an inexcusable disrespect of the authority of the court and an
intentional contempt of its dignity, because the court is thereby
charged with no less than having proceeded in utter disregard of the
laws, the rights to the parties, and 'of the untoward consequences,
or with having abused its power and mocked and flouted the rights
of Attorney Vicente J. Francisco's client ... .
2. In In re Sotto, 82 Phil. 595, counsel, a senator and the author of the Press Freedom Law,
reaching to, the imprisonment for contempt of one Angel Parazo, who, invoking said law,
refused to divulge the source of a news item carried in his paper, caused to be published
in i local newspaper a statement expressing his regret "that our High Tribunal has not only
erroneously interpreted said law, but it is once more putting in evidence the incompetency
or narrow mindedness of the majority of its members," and his belief that "In the wake of
so many blunders and injustices deliberately committed during these last years, ... the only
remedy to put an end to go much evil, is to change the members of the Supreme Court,"
which tribunal he denounced as "a constant peril to liberty and democracy" and "a far cry
from the impregnable bulwark of justice of those memorable times of Cayetano Arellano,
Victorino Mapa, Manuel Araullo and other learned jurists who were the honor and glory
of the Philippine Judiciary." He there also announced that one of the first measures he
would introduce in then forthcoming session of Congress would have for its object the
complete reorganization of the Supreme Court. Finding him in contempt, despite his
avowals of good faith and his invocation of the guarantee of free speech, this Court
declared:
But in the above-quoted written statement which he caused to be
published in the press, the respondent does not merely criticize or
comment on the decision of the Parazo case, which was then and still
is pending consideration by this Court upon petition of Angel Parazo.
He not only intends to intimidate the members of this Court with the
presentation of a bill in the next Congress, of which he is one of the
members, reorganizing the Supreme Court and reducing the number
of Justices from eleven, so as to change the members of this Court
which decided the Parazo case, who according to his statement, are
incompetent and narrow minded, in order to influence the final
decision of said case by this Court, and thus embarrass or obstruct
the administration of justice. But the respondent also attacks the
honesty and integrity of this Court for the apparent purpose of
bringing the Justices of this Court into disrepute and degrading the
administration. of justice ... .
To hurl the false charge that this Court has been for the last years
committing deliberately so many blunders and injustices, that is to
say, that it has been deciding in favor of Que party knowing that the
law and justice is on the part of the adverse party and not on the one
in whose favor the decision was rendered, in many cases decided
during the last years, would tend necessarily to undermine the
confidence of the people in the honesty and integrity of the members
of this Court, and consequently to lower ,or degrade the
administration of justice by this Court. The Supreme Court of the
Philippines is, under the Constitution, the last bulwark to which the
Filipino people may repair to obtain relief for their grievances or
protection of their rights when these are trampled upon, and if the
people lose their confidence in the honesty and integrity of the
members of this Court and believe that they cannot expect justice
therefrom, they might be driven to take the law into their own hands,
and disorder and perhaps chaos might be the result. As a member of
the bar and an officer of the courts, Atty. Vicente Sotto, like any other,
is in duty bound to uphold the dignity and authority of this Court, to
which he owes fidelity according to the oath he has taken as such
attorney, and not to promote distrust in the administration of justice.
Respect to the courts guarantees the stability of other institutions,
which without such guaranty would be resting on a very shaky
foundation.
Significantly, too, the Court therein hastened to emphasize that
... an attorney as an officer of the court is under special obligation to
be respectful in his conduct and communication to the courts; he may
be removed from office or stricken from the roll of attorneys as being
guilty of flagrant misconduct (17 L.R.A. [N.S.], 586, 594.)
3. In Rheem of the Philippines vs. Ferrer: In re Proceedings against Alfonso Ponce Enrile, et
al., supra, where counsel charged this Court with having "repeatedly fallen" into ,the pitfall
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of blindly adhering to its previous "erroneous" pronouncements, "in disregard of the law
on jurisdiction" of the Court of Industrial Relations, our condemnation of counsel's
misconduct was unequivocal. Articulating the sentiments of the Court, Mr. Justice Sanchez
stressed:
As we look back at the language (heretofore quoted) employed in the
motion for reconsideration, implications there are which inescapably
arrest attention. It speaks of one pitfall into which this Court
has repeatedly fallen whenever the jurisdiction of the Court of
Industrial Relations comes into question. That pitfall is the tendency
of this Court to rely on its own pronouncements in disregard of the
law on jurisdiction. It makes a sweeping charge that the decisions of
this Court, blindly adhere to earlier rulings without as much as making
any reference to and analysis of the pertinent statute governing the
jurisdiction of the industrial court. The plain import of all these is that
this Court is so patently inept that in determining the jurisdiction of
the industrial court, it has committed error and continuously
repeated that error to the point of perpetuation. It pictures this Court
as one which refuses to hew to the line drawn by the law on
jurisdictional boundaries. Implicit in the quoted statements is that the
pronouncements of this Court on the jurisdiction of the industrial
court are not entitled to respect. Those statements detract much
from the dignity of and respect due this Court. They bring into
question the capability of the members — and some former
members of this Court to render justice. The second paragraph
quoted yields a tone of sarcasm which counsel labelled as "so called"
the "rule against splitting of jurisdiction."
Similar thoughts and sentiments have been expressed in other cases 18 which, in the
interest of brevity, need not now be reviewed in detail.
Of course, a common denominator underlies the aforecited cases — all of them involved
contumacious statements made in pleadings filed pending litigation. So that, in line with
the doctrinal rule that the protective mantle of contempt may ordinarily be invoked only
against scurrilous remarks or malicious innuendoes while a court mulls over a pending case
and not after the conclusion thereof, 19 Atty. Almacen would now seek to sidestep the
thrust of a contempt charge by his studied emphasis that the remarks for which he is now
called upon to account were made only after this Court had written finis to his appeal. This
is of no moment.
The rule that bars contempt after a judicial proceeding has terminated, has lost much of
its vitality. For sometime, this was the prevailing view in this jurisdiction. The first stir for a
modification thereof, however, came when, in People vs. Alarcon, 20 the then Chief Justice
Manuel V. Moran dissented with the holding of the majority, speaking thru Justice Jose P.
Laurel, which upheld the rule above-adverted to. A complete disengagement from the
settled rule was later to be made in In re Brillantes, 21 a contempt proceeding, where the
editor of the Manila Guardian was adjudged in contempt for publishing an editorial which
asserted that the 1944 Bar Examinations were conducted in a farcical manner after the
question of the validity of the said examinations had been resolved and the case closed.
Virtually, this was an adoption of the view expressed by Chief Justice Moran in his dissent
in Alarcon to the effect that them may still be contempt by publication even after a case
has been terminated. Said Chief Justice Moran in Alarcon:
A publication which tends to impede, obstruct, embarrass or
influence the courts in administering justice in a pending suit or
proceeding, constitutes criminal contempt which is 'summarily
punishable by courts. A publication which tends to degrade the
courts and to destroy public confidence in them or that which tends
to bring them in any way into disrepute, constitutes likewise criminal
contempt, and is equally punishable by courts. What is sought, in the
first kind of contempt, to be shielded against the influence of
newspaper comments, is the all-important duty of the courts to
administer justice in the decision of a pending case. In the second
kind of contempt, the punitive hand of justice is extended to vindicate
the courts from any act or conduct calculated to bring them into
disfavor or to destroy public confidence in them. In the first there is
no contempt where there is no action pending, as there is no decision
which might in any way be influenced by the newspaper publication.
In the second, the contempt exists, with or without a pending case,
as what is sought to be protected is the court itself and its dignity.
Courts would lose their utility if public confidence in them is
destroyed.
Accordingly, no comfort is afforded Atty. Almacen by the circumstance that his statements
and actuations now under consideration were made only after the judgment in his client's
appeal had attained finality. He could as much be liable for contempt therefor as if it had
been perpetrated during the pendency of the said appeal.
More than this, however, consideration of whether or not he could be held liable for
contempt for such post litigation utterances and actuations, is here immaterial. By the
tenor of our Resolution of November 17, 1967, we have confronted the situation here
presented solely in so far as it concerns Atty. Almacen's professional identity, his sworn
duty as a lawyer and his fitness as an officer of this Court, in the exercise of the disciplinary
power the morals inherent in our authority and duty to safeguard and ethics of the legal
profession and to preserve its ranks from the intrusions of unprincipled and unworthy
disciples of the noblest of callings. In this inquiry, the pendency or non-pendency of a case
in court is altogether of no consequence. The sole objective of this proceeding is to
preserve the purity of the legal profession, by removing or suspending a member whose
misconduct has proved himself unfit to continue to be entrusted with the duties and
responsibilities belonging to the office of an attorney.
Undoubtedly, this is well within our authority to do. By constitutional mandate, 22 our is
the solemn duty, amongst others, to determine the rules for admission to the practice of
law. Inherent in this prerogative is the corresponding authority to discipline and exclude
from the practice of law those who have proved themselves unworthy of continued
membership in the Bar. Thus —
The power to discipline attorneys, who are officers of the court, is an
inherent and incidental power in courts of record, and one which is
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essential to an orderly discharge of judicial functions. To deny its
existence is equivalent to a declaration that the conduct of attorneys
towards courts and clients is not subject to restraint. Such a view is
without support in any respectable authority, and cannot be
tolerated. Any court having the right to admit attorneys to practice
and in this state that power is vested in this court-has the inherent
right, in the exercise of a sound judicial discretion to exclude them
from practice. 23
This, because the admission of a lawyer to the practice of law is a representation to all that
he is worthy of their confidence and respect. So much so that —
... whenever it is made to appear to the court that an attorney is no
longer worthy of the trust and confidence of the public and of the
courts, it becomes, not only the right, but the duty, of the court which
made him one of its officers, and gave him the privilege of ministering
within its bar, to withdraw the privilege. Therefore it is almost
universally held that both the admission and disbarment of attorneys
are judicial acts, and that one is admitted to the bar and exercises his
functions as an attorney, not as a matter of right, but as a privilege
conditioned on his own behavior and the exercise of a just and sound
judicial discretion. 24
Indeed, in this jurisdiction, that power to remove or suspend has risen above being a mere
inherent or incidental power. It has been elevated to an express mandate by the Rules of
Court. 25
Our authority and duty in the premises being unmistakable, we now proceed to make an
assessment of whether or not the utterances and actuations of Atty. Almacen here in
question are properly the object of disciplinary sanctions.
The proffered surrender of his lawyer's certificate is, of course, purely potestative on Atty.
Almacen's part. Unorthodox though it may seem, no statute, no law stands in its way.
Beyond making the mere offer, however, he went farther. In haughty and coarse language,
he actually availed of the said move as a vehicle for his vicious tirade against this Court.
The integrated entirety of his petition bristles with vile insults all calculated to drive home
his contempt for and disrespect to the Court and its members. Picturing his client as "a
sacrificial victim at the altar of hypocrisy," he categorically denounces the justice
administered by this Court to be not only blind "but also deaf and dumb." With unmitigated
acerbity, he virtually makes this Court and its members with verbal talons, imputing to the
Court the perpetration of "silent injustices" and "short-cut justice" while at the same time
branding its members as "calloused to pleas of justice." And, true to his announced threat
to argue the cause of his client "in the people's forum," he caused the publication in the
papers of an account of his actuations, in a calculated effort ;to startle the public, stir up
public indignation and disrespect toward the Court. Called upon to make an explanation,
he expressed no regret, offered no apology. Instead, with characteristic arrogance, he
rehashed and reiterated his vituperative attacks and, alluding to the Scriptures, virtually
tarred and feathered the Court and its members as inveterate hypocrites incapable of
administering justice and unworthy to impose disciplinary sanctions upon him.
The virulence so blatantly evident in Atty. Almacen's petition, answer and oral
argumentation speaks for itself. The vicious language used and the scurrilous innuendoes
they carried far transcend the permissible bounds of legitimate criticism. They could never
serve any purpose but to gratify the spite of an irate attorney, attract public attention to
himself and, more important of all, bring ;this Court and its members into disrepute and
destroy public confidence in them to the detriment of the orderly administration of justice.
Odium of this character and texture presents no redeeming feature, and completely
negates any pretense of passionate commitment to the truth. It is not a whit less than a
classic example of gross misconduct, gross violation of the lawyer's oath and gross
transgression of the Canons of Legal Ethics. As such, it cannot be allowed to go unrebuked.
The way for the exertion of our disciplinary powers is thus laid clear, and the need therefor
is unavoidable.
We must once more stress our explicit disclaimer of immunity from criticism. Like any other
Government entity in a viable democracy, the Court is not, and should not be, above
criticism. But a critique of the Court must be intelligent and discriminating, fitting to its
high function as the court of last resort. And more than this, valid and healthy criticism is
by no means synonymous to obloquy, and requires detachment and disinterestedness, real
qualities approached only through constant striving to attain them. Any criticism of the
Court must, possess the quality of judiciousness and must be informed -by perspective and
infused by philosophy. 26
It is not accurate to say, nor is it an obstacle to the exercise of our authority in ;the
premises, that, as Atty. Almacen would have appear, the members of the Court are the
"complainants, prosecutors and judges" all rolled up into one in this instance. This is an
utter misapprehension, if not a total distortion, not only of the nature of the proceeding
at hand but also of our role therein.
Accent should be laid on the fact that disciplinary proceedings like the present are sui
generis. Neither purely civil nor purely criminal, this proceeding is not — and does not
involve — a trial of an action or a suit, but is rather an investigation by the Court into the
conduct of its officers. 27 Not being intended to. inflict punishment, it is in no sense a
criminal prosecution. Accordingly, there is neither a plaintiff nor a prosecutor therein It
may be initiated by the Court motu proprio. 28 Public interest is its primary objective, and
the real question for determination is whether or not the attorney is still a fit person to be
allowed the privileges as such. Hence, in the exercise of its disciplinary powers, the Court
merely calls upon a member of the Bar to account for his actuations as an officer of the
Court with the end in view of preserving the purity of the legal profession and the proper
and honest administration of justice by purging the profession of members who by their
misconduct have proved themselves no longer worthy to be entrusted with the duties and
responsibilities pertaining to the office of an attorney. 29 In such posture, there can thus
be no occasion to speak of a complainant or a prosecutor.
Undeniably, the members of the Court are, to a certain degree, aggrieved parties. Any
tirade against the Court as a body is necessarily and inextricably as much so against the
individual members thereof. But in the exercise of its disciplinary powers, the Court acts
as an entity separate and distinct from the individual personalities of its members.
Consistently with the intrinsic nature of a collegiate court, the individual members act not
as such individuals but. only as a duly constituted court. Their distinct individualities are
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lost in the majesty of their office. 30 So that, in a very real sense, if there be any complainant Let copies of this resolution. be furnished the Secretary of Justice, the Solicitor General and
in the case at bar, it can only be the Court itself, not the individual members thereof — as the Court of Appeals for their information and guidance.
well as the people themselves whose rights, fortunes and properties, nay, even lives, would
be placed at grave hazard should the administration of justice be threatened by the
retention in the Bar of men unfit to discharge the solemn responsibilities of membership
in the legal fraternity.
Finally, the power to exclude persons from the practice of law is but a necessary incident
of the power to admit persons to said practice. By constitutional precept, this power is
vested exclusively in this Court. This duty it cannot abdicate just as much as it cannot
unilaterally renounce jurisdiction legally invested upon it. 31 So that even if it be conceded
that the members collectively are in a sense the aggrieved parties, that fact alone does not
and cannot disqualify them from the exercise of that power because public policy demands
that they., acting as a Court, exercise the power in all cases which call for disciplinary
action. The present is such a case. In the end, the imagined anomaly of the merger in one
entity of the personalities of complainant, prosecutor and judge is absolutely inexistent.
Last to engage our attention is the nature and extent of the sanctions that may be visited
upon Atty. Almacen for his transgressions. As marked out by the Rules of Court, these may
range from mere suspension to total removal or disbarment. 32 The discretion to assess
under the circumstances the imposable sanction is, of course, primarily addressed to the
sound discretion of the Court which, being neither arbitrary and despotic nor motivated
by personal animosity or prejudice, should ever be controlled by the imperative need that
the purity and independence of the Bar be scrupulously guarded and the dignity of and
respect due to the Court be zealously maintained.
That the misconduct committed by Atty. Almacen is of considerable gravity cannot be
overemphasized. However, heeding the stern injunction that disbarment should never be
decreed where a lesser sanction would accomplish the end desired, and believing that it
may not perhaps be futile to hope that in the sober light of some future day, Atty. Almacen
will realize that abrasive language never fails to do disservice to an advocate and that in
every effervescence of candor there is ample room for the added glow of respect, it is our
view that suspension will suffice under the circumstances. His demonstrated persistence
in his misconduct by neither manifesting repentance nor offering apology therefor leave
us no way of determining how long that suspension should last and, accordingly, we are
impelled to decree that the same should be indefinite. This, we are empowered to do not
alone because jurisprudence grants us discretion on the matter 33 but also because, even
without the comforting support of precedent, it is obvious that if we have authority to
completely exclude a person from the practice of law, there is no reason why indefinite
suspension, which is lesser in degree and effect, can be regarded as falling outside of the
compass of that authority. The merit of this choice is best shown by the fact that it will
then be left to Atty. Almacen to determine for himself how long or how short that
suspension shall last. For, at any time after the suspension becomes effective he may prove
to this Court that he is once again fit to resume the practice of law.
ACCORDINGLY, IT IS THE SENSE of the Court that Atty. Vicente Raul Almacen be, as he is
hereby, suspended from the practice of law until further orders, the suspension to take
effect immediately.

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Legal Ethics
RE : SUSPENSION OF ATTY. ADM. CASE No. 7006
ROGELIO Z. BAGABUYO, FORMER
SENIOR STATE PROSECUTOR
This administrative case stemmed from the events of the proceedings in Crim.
Case No. 5144, entitled People v. Luis Bucalon Plaza, heard before the sala of Presiding
Judge Jose Manuel P. Tan, Regional Trial Court (RTC) of Surigao City, Branch 29.
Crim. Case No. 5144 was originally raffled to the sala of Judge Floripinas C.
Buyser, RTC of Surigao City, Branch 30. In an Order dated March 14, 2002, Judge Buyser
denied the Demurrer to the Evidence of the accused, declaring that the evidence thus
presented by the prosecution was sufficient to prove the crime of homicide and not the
charge of murder. Consequently, the counsel for the defense filed a Motion to Fix the
Amount of Bail Bond. Respondent Atty. Rogelio Z. Bagabuyo, then Senior State Prosecutor
and the deputized prosecutor of the case, objected thereto mainly on the ground that the
original charge of murder, punishable with reclusion perpetua, was not subject to bail
under Sec. 4, Rule 114 of the Rules of Court.[1]
In an Order dated August 30, 2002,[2] Judge Buyser inhibited himself from
further trying the case because of the harsh insinuation of Senior Prosecutor Rogelio Z.
Bagabuyo that he lacks the cold neutrality of an impartial magistrate, by allegedly
suggesting the filing of the motion to fix the amount of bail bond by counsel for the
accused.
The case was transferred to Branch 29 of the RTC of Surigao City, presided by
Judge Jose Manuel P. Tan. In an Order dated November 12, 2002, Judge Tan favorably
resolved the Motion to Fix the Amount of Bail Bond, and fixed the amount of the bond
at P40,000.
Respondent filed a motion for reconsideration of the Order dated November
12, 2002, which motion was denied for lack of merit in an Order dated February 10,
2003. In October, 2003, respondent appealed from the Orders dated November 12,
2002 and February 10, 2003, to the Court of Appeals (CA).
Instead of availing himself only of judicial remedies, respondent caused the
publication of an article regarding the Order granting bail to the accused in the August 18,
2003 issue of the Mindanao Gold Star Daily. The article, entitled Senior prosecutor
lambasts Surigao judge for allowing murder suspect to bail out, reads:
SENIOR state prosecutor has lashed at a judge
in Surigao City for allowing a murder suspect to go out on bail.
Senior state prosecutor Rogelio Bagabuyo lambasted
Judge Manuel Tan of the Regional Trial Court (RTC) Branch 29 based
in Surigao City for ruling on a motion that sought a bailbond
for Luis Plaza who stands charged with murdering a policeman . . . .
Plaza reportedly posted a P40-thousand bail bond.
Bagabuyo argued that the crime of murder is a non-
bailable offense. But Bagabuyo admitted that a judge could still opt
to allow a murder suspect to bail out in cases when the evidence of
the prosecution is weak.
But in this murder case, Bagabuyo said the judge who
previously handled it, Judge F[lori]pinas B[uy]ser, described the
evidence to be strong. B[uy]ser inhibited from the case for an unclear
reason.
xxx
Bagabuyo said he would contest Tans decision before the
Court of Appeals and would file criminal and administrative charges
of certiorari against the judge.
Bagabuyuo said he was not afraid of being cited in
contempt by Judge Tan.
This is the only way that the public would know that there
are judges there who are displaying judicial arrogance. he said.[3]
In an Order dated August 21, 2003, the RTC of Surigao City, Branch 29, directed
respondent and the writer of the article, Mark Francisco of the Mindanao Gold Star Daily,
to appear in court on September 20, 2003 to explain why they should not be cited for
indirect contempt of court for the publication of the article which degraded the court and
its presiding judge with its lies and misrepresentation.
The said Order stated that contrary to the statements in the article, Judge
Buyser described the evidence for the prosecution as not strong, but sufficient to prove
the guilt of the accused only for homicide. Moreover, it was not true that Judge Buyser
inhibited himself from the case for an unclear reason. Judge Buyser, in an Order
dated August 30, 2002, declared in open court in the presence of respondent that he was
inhibiting himself from the case due to the harsh insinuation of respondent that he lacked
the cold neutrality of an impartial judge.
On the scheduled hearing of the contempt charge, Mark Francisco admitted
that the Mindanao Gold Star Daily caused the publication of the article. He disclosed that
respondent, in a press conference, stated that the crime of murder is non-bailable. When
asked by the trial court why he printed such lies, Mr. Francisco answered that his only
74
Legal Ethics
source was respondent.[4] Mr. Francisco clarified that in the statement alleging that Judge
Buyser inhibited himself from the case for an unclear reason, the phrase for an unclear
reason, was added by the newspapers Executive Editor Herby S. Gomez.[5]
Respondent admitted that he caused the holding of the press conference, but
refused to answer whether he made the statements in the article until after he shall have
filed a motion to dismiss. For his refusal to answer, the trial court declared him in contempt
of court pursuant to Sec. 3, Rule 71 of the Rules of Court.[6] The Courts Order
dated September 30, 2003 reads:
ORDER
Mr. Mark Francisco for publishing this article which is a lie
clothed in half truth to give it a semblance of truth is hereby ordered
to pay a fine of P10,000. Prosecutor Bagabuyo, for obstinately
refusing to explain why he should not be cited for contempt and
admitting that the article published in the Mindanao Gold Star Daily
on August 18, 2003 and quoted in the Order of this Court dated
August 21, 2003 which is contemptuous was caused by him to be
published, is hereby adjudged to have committed indirect contempt
of Court pursuant to Section 3 of Rule 71 of the Rules of Court and he
is hereby ordered to suffer the penalty of 30 days in jail. The BJMP is
hereby ordered to arrest Prosecutor Rogelio Z. Bagabuyo if he does
not put up a bond of P100,000.00.
SO ORDERD.[7]
Respondent posted the required bond and was released from the custody of the
law. He appealed the indirect contempt order to the CA.
Despite the citation of indirect contempt, respondent presented himself to the
media for interviews in Radio Station DXKS, and again attacked the integrity of Judge Tan
and the trial courts disposition in the proceedings of Crim. Case No. 5144.
In an Order dated October 20, 2003, the RTC of Surigao City, Branch 29, required
respondent to explain and to show cause within five days from receipt thereof why he
should not be held in contempt for his media interviews that degraded the court and the
presiding judge, and why he should not be suspended from the practice of law for violating
the Code of Professional Responsibility, specifically Rule 11.05 of Canon 11 [8] and Rule
13.02 of Canon 13.[9]
In the Order, the trial court stated that respondent was interviewed by Jun
Clergio, and that the interview was repeatedly aired on September 30, 2003 and in his
news program between 6:00 and 8:00 a.m. on October 1, 2003. He was also interviewed
by Tony Consing on October 1 and 2, 2003, between 8:00 and 9:00 a.m. in his radio
program. In those radio interviews, respondent allegedly called Judge Tan a judge who
does not know the law, a liar, and a dictator who does not accord due process to the
people.
The hearing for the second contempt charge was set on December 4, 2003.
On November, 20, 2003, respondent filed an Urgent Motion for Extension of
Time to File Answer to Contempt alleging that he was saddled with work of equal
importance and needed ample time to answer the same. He also prayed for a bill of
particulars in order to properly prepare for his defense.
In an Order dated November 20, 2003, the trial court denied the motion. It
stated that a bill of particulars is not applicable in contempt proceedings, and that
respondents actions and statements are detailed in the Order of October 20, 2003.
On the scheduled hearing of December 4, 2003 respondent neither appeared in
court nor informed the court of his absence. The trial court issued an Order dated
December 4, 2003 cancelling the hearing to give Prosecutor Bagabuyo all the chances he
asks for, and ordered him to appear on January 12, 2004 to explain in writing or orally why
he should not be cited in contempt of court pursuant to the facts stated in the Order dated
October 20, 2003. However, respondent did not appear in the scheduled hearing of
January 12, 2004.
On January 15, 2004, the trial court received respondents Answer dated January
8, 2004. Respondent denied the charge that he sought to be interviewed by radio station
DXKS. He, however, stated that right after the hearing of September 30, 2003, he was
approached by someone who asked him to comment on the Order issued in open court,
and that his comment does not fall within the concept of indirect contempt of court. He
also admitted that he was interviewed by his friend, Tony Consing, at the latters
instance. He justified his response during the interview as a simple exercise of his
constitutional right of freedom of speech and that it was not meant to offend or malign,
and was without malice.
On February 8, 2004, the trial court issued an Order, the dispositive portion of
which reads:
WHEREFORE, finding preponderant evidence that
Prosecutor Bagabuyo has grossly violated the Canons of the legal
profession and [is] guilty of grave professional misconduct, rendering
him unfit to continue to be entrusted with the duties and
responsibilities belonging to the office of an attorney, he is hereby
SUSPENDED from the practice of law.
Likewise, he is also found guilty of indirect contempt of
court, for which he is hereby ordered to suffer the penalty of
IMPRISONMENT for ninety (90) days to be served at the Surigao City
75
Legal Ethics

Jail and to pay the maximum fine of THIRTY THOUSAND PESOS kaso nga disbarment niining di
(P30,000.00). Future acts of contempt will be dealt with more mahibalo nga Huwes, sigurado
severely. gayod ako nga katangtangan
siya sa lisensiya . . . . Ang kini
Let copies of the relevant records be immediately nga Huwes nga dili mahibalo sa
forwarded to the Supreme Court for automatic review and for further balaod, pagatangtangon na, dili
determination of grounds for [the] disbarment of Prosecutor Rogelio lamang sa pagka-Huwes kon dili
Z. Bagabuyo.[10] sa pagka-abogado. Tan-awa ra
gyod kining iyang gibuhat
The trial court found respondents denials to be lame as the tape of his interview nga Order, Ton, ang iyang
on October 2, 2003, duly transcribed, showed disrespect of the court and its officers, thus: pagkabakakon . . . .

TONY CONSING: Fiscal, nanglabay ang mga oras, nanglabay (Thats true, Ton, and this conviction I have now about judges who are
ang gamayng panahon ang ignorant of the law is made
samad sa imong kasingkasing firmer by time. I study
nagpabilin pa ba ni. O ingnon everyday. I read new
nato duna na bay pagbag-o sa jurisprudence and the law to
imong huna-huna karon? insure that when I file the
disbarment case against this
(Fiscal, after the lapse of time, are you still hurt? Or have you not Judge who does not know his
changed your mind yet?) law, I am certain that he loses
his license. . . . This judge who is
BAGABUYO : Ang akong huna-huna kon aduna man ugaling pagbag- ignorant of the law should not
o ang pagsiguro, ang mga only be removed as a judge but
Huwes nga dili mahibalo sa should also be disbarred. Just
balaod tangtangon pagka take a look at his Order, Ton,
abogado, mao kana. and see what a liar he is . . . .)

(If my mind has changed at all, it is that I ensure that all judges who xxx
are ignorant of the law should
be disbarred. Thats it.) BAGABUYO : Yes, nag-ingon ang iyang Order. . . . Ngano nga
nakaingon ako nga bakakon
xxx kini, nag-ingon nga kini
konong order given in open
BAGABUYO : Mao kana ang tinuod, Ton, ug kining akong guibatonan court, ang kalooy sa dios, ang
karon nga hunahuna iyang order sa Korte wala siya
mahitungod nianang mga mag-ingon ug kantidad
Huwes nga dili kahibalo sa nga P100,000.00 nga bail bond.
balaod, magkadugay ...
magkalami. Kada adlao
nagatoon ako. Nagabasa ako (Yes, his Order said that . . . . Why did I say that he is a liar? It states
sa mga bag- that this Order was given in
ong jurisprudence ug sa atong open court, and in
balaod aron sa pagsiguro gayod Gods mercy, he did not
nga inigsang-at unya nako sa state the amount

76
Legal Ethics
of P100,000.00 as bail bond. . .
.)
BAGABUYO : Kay dili man lagi mahibalo sa balaod, ako
siyang gui-ingnan, Your Honor, I have the right to appeal. Mibalik
dayon, ug miingon siya, BJMP
arrest Bagabuyo.
(Because he does not know the
law, I said, Your Honor, I have
the right to appeal. Then he
came back and said, BJMP,
arrest Bagabuyo.)
xxx
BAGABUYO : . . . P100,000.00 ang iyang guipapiyansa.
Naunsa na? Dinhi makita nimo
ang iyang pagka gross
ignorance of the law. . . .
(He imposed a bail of P100,000.00. How come? This is where you will
see his gross ignorance of the
law. . . . )
xxx
TONY CONSING : So karon, unsay plano nimo karon?
(So what is your plan now?)
BAGABUYO : Sumala sa akong gui-ingon moundang lang ako kon
matangtang na siya sa pagka
abogado. . . .
(As I have said, I will only stop if he is already disbarred. . . .)
xxx
BAGABUYO : Nasuko siya niini kay hambugero kuno, pero angayan
niyang hibaw-an nga ang
trabajo sa Huwes dili ang
pagtan-aw kon ang tawo
hambugero . . . . Ug ang akong
gisulti mao lamang ang balaod
nga siya in fact at that time I
said he is not conversant of the
law, with regards to the case of
murder. . . .
(He got angry because I was allegedly bragging but he should know
that it is not for a judge to
determine if a person is a
braggart. . . .And what I said was
based on the law. In fact, at that
time, I said he is not conversant
of the law, with regards to the
case of murder . . . .)
xxx
BAGABUYO : Ah, mi sit down sab ako, contempt ra ba kadto . . . . Mao
kana, pero unsa may iyang
katuyoan ang iyang katuyoan
nga ipa-adto ako didto kay
didto, iya akong pakauwawan
kay iya kong sikopon, iya kong
ipa-priso, pero kay di man lagi
mahibalo sa balaod, ang iyang
gui orderan BJMP, intawon por
dios por Santo, Mr. Tan,
pagbasa intawon ug balaod,
naunsa ka ba Mr. Tan? Unsa
may imong hunahuna nga kon
ikaw Huwes, ikaw na ang
diktador, no way, no sir, ours is
a democratic country where all
and everyone is entitled to due
process of law you did not
accord me due process of law .
...
(I sat down. . . . Thats it. But what was his purpose? He made me come
in order to humiliate me
because he wanted me
arrested, he wanted me
imprisoned, but because he is
ignorant of the law, he ordered
the BMJP. For Gods sake, Mr.
Tan, whats wrong with you, Mr.
77
Legal Ethics
Tan? Please read the law. What
is your thinking? That when you
are a judge, you are also a
dictator? No way, no sir, ours is
a democratic country where all
and everyone is entitled to due
process of law you did not
accord me due process of law. .
. .)
TONY CONSING: So mopasaka kang disbarment, malaumon kita nga
maaksiyonan kini, with all this
problem sa Korte Suprema.
(So you are filing a disbarment case? We hope that this be given
action with all the problems in
the Supreme Court.)
BAGABUYO : Dili ako mabalaka niana kay usa ka truck ang
akong jurisprudence, nga ang
mga Huwes nga di mahibalo sa
balaod pagatangtangon gayod
sa ilang pagka Huwes. . . . Apan
unsa man intawon ang balaod
ang iyang gibasa niini
nadunggan ko nga kini kuno
siya madjongero, mao bitaw
na, madjong ang iyang
guitunan?
(I am not worried because I have a truckload of jurisprudence that
judges who are ignorant of the
law must be removed from the
Bench. But what law has he
been reading? I heard that he is
a 27, Rule 138 of the Rules of Court are deceit; malpractice; gross
mahjong aficionado (mahjonge
ro) and that is why he is
studying mahjong.[11]
The trial court concluded that respondent, as a member of the bar and an officer
of the court, is duty bound to uphold the dignity and authority of the court, and should
not promote distrust in the administration of justice.
The trial court stated that it is empowered to suspend respondent from the
practice of law under Sec. 28, Rule 138 of the Rules of Court[12] for any of the causes
mentioned in Sec. 27[13] of the same Rule. Respondent was given the opportunity to be
heard, but he opted to be silent. Thus, it held that the requirement of due process has
been duly satisfied.
In accordance with the provisions of Sec. 29,[14] Rule 138 and Sec. 9,[15] Rule 139
of the Rules of Court, the RTC of Surigao City, Branch 29, transmitted to the Office of the
Bar Confidant the Statement of Facts of respondents suspension from the practice of law,
dated July 14, 2005, together with the order of suspension and other relevant documents.
In its Report dated January 4, 2006, the Office of the Bar Confidant found
that the article in the August 18, 2003 issue of the Mindanao Gold Star Daily, which
maligned the integrity and independence of the court and its officers, and respondents
criticism of the trial courts Order dated November 12, 2002, which was aired in radio
station DXKS, both in connection with Crim. Case No. 5144, constitute grave violation
of oath of office by respondent. It stated that the requirement of due process was
complied with when respondent was given an opportunity to be heard, but respondent
chose to remain silent.
The Office of the Bar Confidant recommended the implementation of the trial
courts order of suspension dated February 8, 2004, and that respondent be suspended
from the practice of law for one year, with a stern warning that the repetition of a similar
offense will be dealt with more severely.
The Court approves the recommendation of the Office of the Bar Confidant. It
has been reiterated in Gonzaga v. Villanueva, Jr.[16] that:
A lawyer may be disbarred or suspended for any violation
of his oath, a patent disregard of his duties, or an odious deportment
unbecoming an attorney. Among the grounds enumerated in Section
misconduct in office; grossly immoral conduct; conviction of a crime
involving moral turpitude; any violation of the oath which he is
required to take before admission to the practice of law; willful
disobedience of any lawful order of a superior court; corrupt or willful
appearance as an attorney for a party to a case without authority to
do so. The grounds are not preclusive in nature even as they are
broad enough as to cover practically any kind of impropriety that a
lawyer does or commits in his professional career or in his private life.
A lawyer must at no time be wanting in probity and moral fiber which
78
Legal Ethics

are not only conditions precedent to his entrance to the Bar, but are the stability of our democratic institutions which, without such
likewise essential demands for his continued membership therein. respect, would be resting on a very shaky foundation.

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.[17] Membership in the bar imposes upon them certain
obligations.[18]Canon 11 of the Code of Professional Responsibility mandates a lawyer to
observe and maintain the respect due to the courts and to judicial officers and [he] should
insist on similar conduct by others. Rule 11.05 of Canon 11 states that a lawyer shall submit
grievances against a judge to the proper authorities only.
Respondent violated Rule 11.05 of Canon 11 when he admittedly caused the
holding of a press conference where he made statements against the Order
dated November 12, 2002 allowing the accused in Crim. Case No. 5144 to be released on
bail.
Respondent also violated Canon 11 when he indirectly stated that Judge Tan
was displaying judicial arrogance in the article entitled, Senior prosecutor lambasts
Surigao judge for allowing murder suspect to bail out, which appeared in the August 18,
2003 issue of the Mindanao Gold Star Daily. Respondents statements in the article, which
were made while Crim. Case No. 5144 was still pending in court, also violated Rule 13.02
of Canon 13, which states that a lawyer shall not make public statements in the media
regarding a pending case tending to arouse public opinion for or against a party.
The Court is not against lawyers raising grievances against erring judges but the
rules clearly provide for the proper venue and procedure for doing so, precisely because
respect for the institution must always be maintained.
WHEREFORE, in view of the foregoing, Atty. Rogelio Z. Bagabuyo is found guilty
of violating Rule 11.05, Canon 11 and Rule 13.02, Canon 13 of the Code of Professional
Responsibility, and of violating the Lawyers Oath, for which he is SUSPENDED from the
practice of law for one (1) year effective upon finality of this Decision, with
a STERN WARNING that the repetition of a similar offense shall be dealt with more
severely.
Let copies of this Decision be furnished the Office of the Bar Confidant to be
appended to respondents personal record as an attorney, the Integrated Bar of
the Philippines, the Department of Justice, and all courts in the country for their
information and guidance.
No costs.
SO ORDERED.

In regard to the radio interview given to Tony Consing, respondent violated Rule
11.05 of Canon 11 of the Code of Professional Responsibility for not resorting to the proper
authorities only for redress of his grievances against Judge Tan. Respondent also violated
Canon 11 for his disrespect of the court and its officer when he stated that Judge Tan was
ignorant of the law, that as a mahjong aficionado, he was studying mahjong instead of
studying the law, and that he was a liar.

Respondent also violated the Lawyers Oath, as he has sworn to conduct

[himself] as a lawyer according to the best of [his] knowledge and discretion with all good
fidelity as well to the courts as to [his] clients.

As a senior state prosecutor and officer of the court, respondent should have
set the example of observing and maintaining the respect due to the courts and to judicial
officers. Montecillo v. Gica[19] held:

It is the duty of the lawyer to maintain towards the courts

a respectful attitude. As an officer of the court, it is his duty to uphold
the dignity and authority of the court to which he owes fidelity,
according to the oath he has taken. Respect for the courts guarantees

79
Legal Ethics
THE INSULAR LIFE ASSURANCE CO., LTD., EMPLOYEES ASSOCIATION-NATU, FGU
INSURANCE GROUP WORKERS and EMPLOYEES ASSOCIATION-NATU, and INSULAR
LIFE BUILDING EMPLOYEES ASSOCIATION-NATU, petitioners,
vs.
THE INSULAR LIFE ASSURANCE CO., LTD., FGU INSURANCE GROUP, JOSE M. OLBES
and COURT OF INDUSTRIAL RELATIONS, respondents.
Appeal, by certiorari to review a decision and a resolution en banc of the Court of
Industrial Relations dated August 17, 1965 and October 20, 1965, respectively, in Case
1698-ULP.
The Insular Life Assurance Co., Ltd., Employees Association-NATU, FGU Insurance
Group Workers & Employees Association-NATU, and Insular Life Building Employees
Association-NATU (hereinafter referred to as the Unions), while still members of the
Federation of Free Workers (FFW), entered into separate collective bargaining
agreements with the Insular Life Assurance Co., Ltd. and the FGU Insurance Group
(hereinafter referred to as the Companies).
Two of the lawyers of the Unions then were Felipe Enaje and Ramon Garcia; the latter
was formerly the secretary-treasurer of the FFW and acting president of the Insular
Life/FGU unions and the Insular Life Building Employees Association. Garcia, as such
acting president, in a circular issued in his name and signed by him, tried to dissuade
the members of the Unions from disaffiliating with the FFW and joining the National
Association of Trade Unions (NATU), to no avail.
Enaje and Garcia soon left the FFW and secured employment with the Anti-Dummy
Board of the Department of Justice. Thereafter, the Companies hired Garcia in the
latter part of 1956 as assistant corporate secretary and legal assistant in their Legal
Department, and he was soon receiving P900 a month, or P600 more than he was
receiving from the FFW. Enaje was hired on or about February 19, 1957 as personnel
manager of the Companies, and was likewise made chairman of the negotiating panel
for the Companies in the collective bargaining with the Unions.
In a letter dated September 16, 1957, the Unions jointly submitted proposals to the
Companies for a modified renewal of their respective collective bargaining contracts
which were then due to expire on September 30, 1957. The parties mutually agreed
and to make whatever benefits could be agreed upon retroactively effective October
1, 1957.
Thereafter, in the months of September and October 1957 negotiations were
conducted on the Union's proposals, but these were snagged by a deadlock on the
issue of union shop, as a result of which the Unions filed on January 27, 1958 a notice
of strike for "deadlock on collective bargaining." Several conciliation conferences
were held under the auspices of the Department of Labor wherein the conciliators
urged the Companies to make reply to the Unions' proposals en toto so that the said
Unions might consider the feasibility of dropping their demand for union security in
exchange for other benefits. However, the Companies did not make any counter-
proposals but, instead, insisted that the Unions first drop their demand for union
security, promising money benefits if this was done. Thereupon, and prior to April 15,
1958, the petitioner Insular Life Building Employees Association-NATU dropped this
particular demand, and requested the Companies to answer its demands, point by
point, en toto. But the respondent Insular Life Assurance Co. still refused to make any
counter-proposals. In a letter addressed to the two other Unions by the joint
management of the Companies, the former were also asked to drop their union
security demand, otherwise the Companies "would no longer consider themselves
bound by the commitment to make money benefits retroactive to October 1, 1957."
By a letter dated April 17, 1958, the remaining two petitioner unions likewise dropped
their demand for union shop. April 25, 1958 then was set by the parties to meet and
discuss the remaining demands.
From April 25 to May 6, 1958, the parties negotiated on the labor demands but with
no satisfactory result due to a stalemate on the matter of salary increases. On May
13, 1958 the Unions demanded from the Companies final counter-proposals on their
economic demands, particularly on salary increases. Instead of giving counter-
proposals, the Companies on May 15, 1958 presented facts and figures and requested
the Unions to submit a workable formula which would justify their own proposals,
taking into account the financial position of the former. Forthwith the Unions voted
to declare a strike in protest against what they considered the Companies' unfair labor
practices.
Meanwhile, eighty-seven (87) unionists were reclassified as supervisors without
increase in salary nor in responsibility while negotiations were going on in the
Department of Labor after the notice to strike was served on the Companies. These
employees resigned from the Unions.
On May 20, 1958 the Unions went on strike and picketed the offices of the Insular Life
Building at Plaza Moraga.
On May 21, 1958 the Companies through their acting manager and president, the
respondent Jose M. Olbes (hereinafter referred to as the respondent Olbes), sent to
each of the strikers a letter (exhibit A) quoted verbatim as follows:
We recognize it is your privilege both to strike and to conduct
picketing.
However, if any of you would like to come back to work
voluntarily, you may:
1. Advise the nearest police officer or security guard of your
intention to do so.
2. Take your meals within the office.
3. Make a choice whether to go home at the end of the day or to
sleep nights at the office where comfortable cots have been
prepared.
4. Enjoy free coffee and occasional movies.
5. Be paid overtime for work performed in excess of eight hours.
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Legal Ethics
6. Be sure arrangements will be made for your families.
The decision to make is yours — whether you still believe in the
motives of the strike or in the fairness of the Management.
The Unions, however, continued on strike, with the exception of a few unionists who
were convinced to desist by the aforesaid letter of May 21, 1958.
From the date the strike was called on May 21, 1958, until it was called off on May
31, 1958, some management men tried to break thru the Unions' picket lines. Thus,
on May 21, 1958 Garcia, assistant corporate secretary, and Vicente Abella, chief of
the personnel records section, respectively of the Companies, tried to penetrate the
picket lines in front of the Insular Life Building. Garcia, upon approaching the picket
line, tossed aside the placard of a picketer, one Paulino Bugay; a fight ensued between
them, in which both suffered injuries. The Companies organized three bus-loads of
employees, including a photographer, who with the said respondent Olbes,
succeeded in penetrating the picket lines in front of the Insular Life Building, thus
causing injuries to the picketers and also to the strike-breakers due to the resistance
offered by some picketers.
Alleging that some non-strikers were injured and with the use of photographs as
evidence, the Companies then filed criminal charges against the strikers with the City
Fiscal's Office of Manila. During the pendency of the said cases in the fiscal's office,
the Companies likewise filed a petition for injunction with damages with the Court of
First Instance of Manila which, on the basis of the pendency of the various criminal
cases against striking members of the Unions, issued on May 31, 1958 an order
restraining the strikers, until further orders of the said court, from stopping, impeding,
obstructing, etc. the free and peaceful use of the Companies' gates, entrance and
driveway and the free movement of persons and vehicles to and from, out and in, of
the Companies' building.
On the same date, the Companies, again through the respondent Olbes, sent
individually to the strikers a letter (exhibit B), quoted hereunder in its entirety:
The first day of the strike was last 21 May 1958.
Our position remains unchanged and the strike has made us even
more convinced of our decision.
We do not know how long you intend to stay out, but we cannot
hold your positions open for long. We have continued to operate
and will continue to do so with or without you.
If you are still interested in continuing in the employ of the Group
Companies, and if there are no criminal charges pending against
you, we are giving you until 2 June 1958 to report for work at the
home office. If by this date you have not yet reported, we may be
forced to obtain your replacement.
Before, the decisions was yours to make.
So it is now.
Incidentally, all of the more than 120 criminal charges filed against the members of
the Unions, except three (3), were dismissed by the fiscal's office and by the courts.
These three cases involved "slight physical injuries" against one striker and "light
coercion" against two others.
At any rate, because of the issuance of the writ of preliminary injunction against them
as well as the ultimatum of the Companies giving them until June 2, 1958 to return to
their jobs or else be replaced, the striking employees decided to call off their strike
and to report back to work on June 2, 1958.
However, before readmitting the strikers, the Companies required them not only to
secure clearances from the City Fiscal's Office of Manila but also to be screened by a
management committee among the members of which were Enage and Garcia. The
screening committee initially rejected 83 strikers with pending criminal charges.
However, all non-strikers with pending criminal charges which arose from the
breakthrough incident were readmitted immediately by the Companies without being
required to secure clearances from the fiscal's office. Subsequently, when practically
all the strikers had secured clearances from the fiscal's office, the Companies
readmitted only some but adamantly refused readmission to 34 officials and
members of the Unions who were most active in the strike, on the ground that they
committed "acts inimical to the interest of the respondents," without however stating
the specific acts allegedly committed. Among those who were refused readmission
are Emiliano Tabasondra, vice president of the Insular Life Building Employees'
Association-NATU; Florencio Ibarra, president of the FGU Insurance Group Workers
& Employees Association-NATU; and Isagani Du Timbol, acting president of the Insular
Life Assurance Co., Ltd. Employees Association-NATU. Some 24 of the above number
were ultimately notified months later that they were being dismissed retroactively as
of June 2, 1958 and given separation pay checks computed under Rep. Act 1787, while
others (ten in number) up to now have not been readmitted although there have
been no formal dismissal notices given to them.
On July 29, 1958 the CIR prosecutor filed a complaint for unfair labor practice against
the Companies under Republic Act 875. The complaint specifically charged the
Companies with (1) interfering with the members of the Unions in the exercise of their
right to concerted action, by sending out individual letters to them urging them to
abandon their strike and return to work, with a promise of comfortable cots, free
coffee and movies, and paid overtime, and, subsequently, by warning them that if
they did not return to work on or before June 2, 1958, they might be replaced; and
(2) discriminating against the members of the Unions as regards readmission to work
after the strike on the basis of their union membership and degree of participation in
the strike.
On August 4, 1958 the Companies filed their answer denying all the material
allegations of the complaint, stating special defenses therein, and asking for the
dismissal of the complaint.
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Legal Ethics
After trial on the merits, the Court of Industrial Relations, through Presiding Judge
Arsenio Martinez, rendered on August 17, 1965 a decision dismissing the Unions'
complaint for lack of merit. On August 31, 1965 the Unions seasonably filed their
motion for reconsideration of the said decision, and their supporting memorandum
on September 10, 1965. This was denied by the Court of Industrial Relations en
banc in a resolution promulgated on October 20, 1965.
Hence, this petition for review, the Unions contending that the lower court erred:
1. In not finding the Companies guilty of unfair labor practice in
sending out individually to the strikers the letters marked Exhibits
A and B;
2. In not finding the Companies guilty of unfair labor practice for
discriminating against the striking members of the Unions in the
matter of readmission of employees after the strike;
3. In not finding the Companies guilty of unfair labor practice for
dismissing officials and members of the Unions without giving
them the benefit of investigation and the opportunity to present
their side in regard to activities undertaken by them in the
legitimate exercise of their right to strike; and
4. In not ordering the reinstatement of officials and members of
the Unions, with full back wages, from June 2, 1958 to the date
of their actual reinstatement to their usual employment.
I. The respondents contend that the sending of the letters, exhibits A and B,
constituted a legitimate exercise of their freedom of speech. We do not agree. The
said letters were directed to the striking employees individually — by registered
special delivery mail at that — without being coursed through the Unions which were
representing the employees in the collective bargaining.
The act of an employer in notifying absent employees individually
during a strike following unproductive efforts at collective
bargaining that the plant would be operated the next day and
that their jobs were open for them should they want to come in
has been held to be an unfair labor practice, as an active
interference with the right of collective bargaining through
dealing with the employees individually instead of through their
collective bargaining representatives. (31 Am. Jur.
563, citing NLRB v. Montgomery Ward & Co. [CA 9th] 133 F2d
676, 146 ALR 1045)
Indeed, it is an unfair labor practice for an employer operating under a collective
bargaining agreement to negotiate or to attempt to negotiate with his employees
individually in connection with changes in the agreement. And the basis of the
prohibition regarding individual bargaining with the strikers is that although the union
is on strike, the employer is still under obligation to bargain with the union as the
employees' bargaining representative (Melo Photo Supply Corporation vs. National
Labor Relations Board, 321 U.S. 332).
Indeed, some such similar actions are illegal as constituting unwarranted acts of
interference. Thus, the act of a company president in writing letters to the strikers,
urging their return to work on terms inconsistent with their union membership, was
adjudged as constituting interference with the exercise of his employees' right to
collective bargaining (Lighter Publishing, CCA 7th, 133 F2d 621). It is likewise an act of
interference for the employer to send a letter to all employees notifying them to
return to work at a time specified therein, otherwise new employees would be
engaged to perform their jobs. Individual solicitation of the employees or visiting their
homes, with the employer or his representative urging the employees to cease union
activity or cease striking, constitutes unfair labor practice. All the above-detailed
activities are unfair labor practices because they tend to undermine the concerted
activity of the employees, an activity to which they are entitled free from the
employer's molestation.1
Moreover, since exhibit A is a letter containing promises of benefits to the employees
in order to entice them to return to work, it is not protected by the free speech
provisions of the Constitution (NLRB v. Clearfield Cheese Co., Inc., 213 F2d 70). The
same is true with exhibit B since it contained threats to obtain replacements for the
striking employees in the event they did not report for work on June 2, 1958. The free
speech protection under the Constitution is inapplicable where the expression of
opinion by the employer or his agent contains a promise of benefit, or threats, or
reprisal (31 Am. Jur. 544; NLRB vs. Clearfield Cheese Co., Inc., 213 F2d 70; NLRB vs.
Goigy Co., 211 F2d 533, 35 ALR 2d 422).
Indeed, when the respondents offered reinstatement and attempted to "bribe" the
strikers with "comfortable cots," "free coffee and occasional movies," "overtime" pay
for "work performed in excess of eight hours," and "arrangements" for their families,
so they would abandon the strike and return to work, they were guilty of strike-
breaking and/or union-busting and, consequently, of unfair labor practice. It is
equivalent to an attempt to break a strike for an employer to offer reinstatement to
striking employees individually, when they are represented by a union, since the
employees thus offered reinstatement are unable to determine what the
consequences of returning to work would be.
Likewise violative of the right to organize, form and join labor organizations are the
following acts: the offer of a Christmas bonus to all "loyal" employees of a company
shortly after the making of a request by the union to bargain; wage increases given
for the purpose of mollifying employees after the employer has refused to bargain
with the union, or for the purpose of inducing striking employees to return to work;
the employer's promises of benefits in return for the strikers' abandonment of their
strike in support of their union; and the employer's statement, made about 6 weeks
after the strike started, to a group of strikers in a restaurant to the effect that if the
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strikers returned to work, they would receive new benefits in the form of
hospitalization, accident insurance, profit-sharing, and a new building to work in.2
Citing paragraph 5 of the complaint filed by the acting prosecutor of the lower court
which states that "the officers and members of the complainant unions decided to
call off the strike and return to work on June 2, 1958 by reason of the injunction issued
by the Manila Court of First Instance," the respondents contend that this was the main
cause why the strikers returned to work and not the letters, exhibits A and B. This
assertion is without merit. The circumstance that the strikers later decided to return
to work ostensibly on account of the injunctive writ issued by the Court of First
Instance of Manila cannot alter the intrinsic quality of the letters, which were
calculated, or which tended, to interfere with the employees' right to engage in lawful
concerted activity in the form of a strike. Interference constituting unfair labor
practice will not cease to be such simply because it was susceptible of being thwarted
or resisted, or that it did not proximately cause the result intended. For success of
purpose is not, and should not, be the criterion in determining whether or not a
prohibited act constitutes unfair labor practice.
The test of whether an employer has interfered with and coerced
employees within the meaning of subsection (a) (1) is whether
the employer has engaged in conduct which it may reasonably be
said tends to interfere with the free exercise of employees' rights
under section 3 of the Act, and it is not necessary that there be
direct evidence that any employee was in fact intimidated or
coerced by statements of threats of the employer if there is a
reasonable inference that anti-union conduct of the employer
does have an adverse effect on self-organization and collective
bargaining. (Francisco, Labor Laws 1956, Vol. II, p.
323, citing NLRB v. Ford, C.A., 1948, 170 F2d 735).
Besides, the letters, exhibits A and B, should not be considered by themselves alone
but should be read in the light of the preceding and subsequent circumstances
surrounding them. The letters should be interpreted according to the "totality of
conduct doctrine,"
... whereby the culpability of an employer's remarks were to be
evaluated not only on the basis of their implicit implications, but
were to be appraised against the background of and in
conjunction with collateral circumstances. Under this "doctrine"
expressions of opinion by an employer which, though innocent in
themselves, frequently were held to be culpable because of the
circumstances under which they were uttered, the history of the
particular employer's labor relations or anti-union bias or
because of their connection with an established collateral plan of
coercion or interference. (Rothenberg on Relations, p. 374, and
cases cited therein.)
It must be recalled that previous to the petitioners' submission of proposals for an
amended renewal of their respective collective bargaining agreements to the
respondents, the latter hired Felipe Enage and Ramon Garcia, former legal counsels
of the petitioners, as personnel manager and assistant corporate secretary,
respectively, with attractive compensations. After the notice to strike was served on
the Companies and negotiations were in progress in the Department of Labor, the
respondents reclassified 87 employees as supervisors without increase in salary or in
responsibility, in effect compelling these employees to resign from their unions. And
during the negotiations in the Department of Labor, despite the fact that the
petitioners granted the respondents' demand that the former drop their demand for
union shop and in spite of urgings by the conciliators of the Department of Labor, the
respondents adamantly refused to answer the Unions' demands en toto. Incidentally,
Enage was the chairman of the negotiating panel for the Companies in the collective
bargaining between the former and the Unions. After the petitioners went to strike,
the strikers were individually sent copies of exhibit A, enticing them to abandon their
strike by inducing them to return to work upon promise of special privileges. Two days
later, the respondents, thru their president and manager, respondent Jose M. Olbes,
brought three truckloads of non-strikers and others, escorted by armed men, who,
despite the presence of eight entrances to the three buildings occupied by the
Companies, entered thru only one gate less than two meters wide and in the process,
crashed thru the picket line posted in front of the premises of the Insular Life Building.
This resulted in injuries on the part of the picketers and the strike-
breakers.lâwphî1.ñèt Then the respondents brought against the picketers criminal
charges, only three of which were not dismissed, and these three only for slight
misdemeanors. As a result of these criminal actions, the respondents were able to
obtain an injunction from the court of first instance restraining the strikers from
stopping, impeding, obstructing, etc. the free and peaceful use of the Companies'
gates, entrance and driveway and the free movement of persons and vehicles to and
from, out and in, of the Companies' buildings. On the same day that the injunction
was issued, the letter, Exhibit B, was sent — again individually and by registered
special delivery mail — to the strikers, threatening them with dismissal if they did not
report for work on or before June 2, 1958. But when most of the petitioners reported
for work, the respondents thru a screening committee — of which Ramon Garcia was
a member — refused to admit 63 members of the Unions on the ground of "pending
criminal charges." However, when almost all were cleared of criminal charges by the
fiscal's office, the respondents adamantly refused admission to 34 officials and union
members. It is not, however, disputed that all-non-strikers with pending criminal
charges which arose from the breakthrough incident of May 23, 1958 were
readmitted immediately by the respondents. Among the non-strikers with pending
criminal charges who were readmitted were Generoso Abella, Enrique Guidote,
Emilio Carreon, Antonio Castillo, Federico Barretto, Manuel Chuidian and Nestor
Cipriano. And despite the fact that the fiscal's office found no probable cause against
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Legal Ethics
the petitioning strikers, the Companies adamantly refused admission to them on the
pretext that they committed "acts inimical to the interest of the respondents,"
without stating specifically the inimical acts allegedly committed. They were soon to
admit, however, that these alleged inimical acts were the same criminal charges
which were dismissed by the fiscal and by the courts..
Verily, the above actuations of the respondents before and after the issuance of the
letters, exhibit A and B, yield the clear inference that the said letters formed of the
respondents scheme to preclude if not destroy unionism within them.
To justify the respondents' threat to dismiss the strikers and secure replacements for
them in order to protect and continue their business, the CIR held the petitioners'
strike to be an economic strike on the basis of exhibit 4 (Notice of Strike) which states
that there was a "deadlock in collective bargaining" and on the strength of the
supposed testimonies of some union men who did not actually know the very reason
for the strike. It should be noted that exhibit 4, which was filed on January 27, 1958,
states, inter alia:
TO: BUREAU OF LABOR RELATIONS
DEPARTMENT OF LABOR
MANILA
Thirty (30) days from receipt of this notice by the Office, this [sic]
unions intends to go on strike against
THE INSULAR LIFE ASSURANCE CO., LTD.
Plaza Moraga, Manila
THE FGU INSURANCE GROUP
Plaza Moraga, Manila
INSULAR LIFE BUILDING ADMINISTRATION
Plaza Moraga, Manila .
for the following reason: DEADLOCK IN COLLECTIVE
BARGAINING...
However, the employees did not stage the strike after the thirty-day period, reckoned
from January 27, 1958. This simply proves that the reason for the strike was not the
deadlock on collective bargaining nor any lack of economic concessions. By letter
dated April 15, 1958, the respondents categorically stated what they thought was the
cause of the "Notice of Strike," which so far as material, reads:
3. Because you did not see fit to agree with our position on the
union shop, you filed a notice of strike with the Bureau of Labor
Relations on 27 January 1958, citing `deadlock in collective
bargaining' which could have been for no other issue than the
union shop." (exhibit 8, letter dated April 15, 1958.)
The strike took place nearly four months from the date the said notice of strike was
filed. And the actual and main reason for the strike was, "When it became crystal clear
the management double crossed or will not negotiate in good faith, it is tantamount
to refusal collectively and considering the unfair labor practice in the meantime being
committed by the management such as the sudden resignation of some unionists and
[who] became supervisors without increase in salary or change in responsibility, such
as the coercion of employees, decided to declare the strike." (tsn., Oct. 14, 1958, p.
14.) The truth of this assertion is amply proved by the following circumstances: (1) it
took the respondents six (6) months to consider the petitioners' proposals, their only
excuse being that they could not go on with the negotiations if the petitioners did not
drop the demand for union shop (exh. 7, respondents' letter dated April 7, 1958); (2)
when the petitioners dropped the demand for union shop, the respondents did not
have a counter-offer to the petitioners' demands. Sec. 14 of Rep. Act 875 required
the respondents to make a reply to the petitioners' demands within ten days from
receipt thereof, but instead they asked the petitioners to give a "well reasoned,
workable formula which takes into account the financial position of the group
companies." (tsn., Sept. 8, 1958, p. 62; tsn., Feb. 26, 1969, p. 49.)
II. Exhibit H imposed three conditions for readmission of the strikers, namely: (1) the
employee must be interested in continuing his work with the group companies; (2)
there must be no criminal charges against him; and (3) he must report for work on
June 2, 1958, otherwise he would be replaced. Since the evidence shows that all the
employees reported back to work at the respondents' head office on June 2, 1953,
they must be considered as having complied with the first and third conditions.
Our point of inquiry should therefore be directed at whether they also complied with
the second condition. It is not denied that when the strikers reported for work on
June 2, 1958, 63 members of the Unions were refused readmission because they had
pending criminal charges. However, despite the fact that they were able to secure
their respective clearances 34 officials and union members were still refused
readmission on the alleged ground that they committed acts inimical to the
Companies. It is beyond dispute, however, that non-strikers who also had criminal
charges pending against them in the fiscal's office, arising from the same incidents
whence the criminal charges against the strikers evolved, were readily readmitted and
were not required to secure clearances. This is a clear act of discrimination practiced
by the Companies in the process of rehiring and is therefore a violation of sec. 4(a) (4)
of the Industrial Peace Act.
The respondents did not merely discriminate against all the strikers in general. They
separated the active from the less active unionists on the basis of their militancy, or
lack of it, on the picket lines. Unionists belonging to the first category were refused
readmission even after they were able to secure clearances from the competent
authorities with respect to the criminal charges filed against them. It is significant to
note in this connection that except for one union official who deserted his union on
the second day of the strike and who later participated in crashing through the picket
lines, not a single union officer was taken back to work. Discrimination undoubtedly
exists where the record shows that the union activity of the rehired strikers has been
less prominent than that of the strikers who were denied reinstatement.
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Legal Ethics
So is there an unfair labor practice where the employer, although
authorized by the Court of Industrial Relations to dismiss the
employees who participated in an illegal strike, dismissed only the
leaders of the strikers, such dismissal being evidence of
discrimination against those dismissed and constituting a waiver
of the employer's right to dismiss the striking employees and a
condonation of the fault committed by them." (Carlos and
Fernando, Labor and Social Legislation, p. 62, citing Phil. Air Lines,
Inc. v. Phil. Air Lines Emloyees Association, L-8197, Oct. 31, 1958.)
It is noteworthy that — perhaps in an anticipatory effort to exculpate themselves from
charges of discrimination in the readmission of strikers returning to work — the
respondents delegated the power to readmit to a committee. But the respondent
Olbes had chosen Vicente Abella, chief of the personnel records section, and Ramon
Garcia, assistant corporate secretary, to screen the unionists reporting back to work.
It is not difficult to imagine that these two employees — having been involved in
unpleasant incidents with the picketers during the strike — were hostile to the
strikers. Needless to say, the mere act of placing in the hands of employees hostile to
the strikers the power of reinstatement, is a form of discrimination in rehiring.
Delayed reinstatement is a form of discrimination in rehiring, as
is having the machinery of reinstatement in the hands of
employees hostile to the strikers, and reinstating a union official
who formerly worked in a unionized plant, to a job in another mill,
which was imperfectly organized. (Morabe, The Law on Strikes, p.
473, citing Sunshine Mining Co., 7 NLRB 1252; Cleveland Worsted
Mills, 43 NLRB 545; emphasis supplied.)
Equally significant is the fact that while the management and the members of the
screening committee admitted the discrimination committed against the strikers,
they tossed back and around to each other the responsibility for the discrimination.
Thus, Garcia admitted that in exercising for the management the authority to screen
the returning employees, the committee admitted the non-strikers but refused
readmission to the strikers (tsn., Feb. 6, 1962, pp. 15-19, 23-29). Vicente Abella,
chairman of the management's screening committee, while admitting the
discrimination, placed the blame therefor squarely on the management (tsn., Sept.
20, 1960, pp. 7-8, 14-18). But the management, speaking through the respondent
Olbes, head of the Companies, disclaimed responsibility for the discrimination. He
testified that "The decision whether to accept or not an employee was left in the
hands of that committee that had been empowered to look into all cases of the
strikers." (tsn., Sept. 6, 1962, p. 19.)
Of course, the respondents — through Ramon Garcia — tried to explain the basis for
such discrimination by testifying that strikers whose participation in any alleged
misconduct during the picketing was not serious in nature were readmissible, while
those whose participation was serious were not. (tsn., Aug. 4, 1961, pp. 48-49, 56).
But even this distinction between acts of slight misconduct and acts of serious
misconduct which the respondents contend was the basis for either reinstatement or
discharge, is completely shattered upon a cursory examination of the evidence on
record. For with the exception of Pascual Esquillo whose dismissal sent to the other
strikers cited the alleged commission by them of simple "acts of misconduct."
III. Anent the third assignment of error, the record shows that not a single dismissed
striker was given the opportunity to defend himself against the supposed charges
against him. As earlier mentioned, when the striking employees reported back for
work on June 2, 1958, the respondents refused to readmit them unless they first
secured the necessary clearances; but when all, except three, were able to secure and
subsequently present the required clearances, the respondents still refused to take
them back. Instead, several of them later received letters from the respondents in the
following stereotyped tenor:
This will confirm the termination of your employment with the
Insular Life-FGU Insurance Group as of 2 June 1958.
The termination of your employment was due to the fact that you
committed acts of misconduct while picketing during the last
strike. Because this may not constitute sufficient cause under the
law to terminate your employment without pay, we are giving
you the amount of P1,930.32 corresponding to one-half month
pay for every year of your service in the Group Company.
Kindly acknowledge receipt of the check we are sending
herewith.
Very truly yours,
(Sgd.) JOSE M. OLBES
President, Insurance Life
Acting President, FGU.
The respondents, however, admitted that the alleged "acts of misconduct" attributed
to the dismissed strikers were the same acts with which the said strikers were charged
before the fiscal's office and the courts. But all these charges except three were
dropped or dismissed.
Indeed, the individual cases of dismissed officers and members of the striking unions
do not indicate sufficient basis for dismissal.
Emiliano Tabasondra, vice-president of the petitioner FGU Insurance Group Workers
& Employees Association-NATU, was refused reinstatement allegedly because he did
not report for duty on June 2, 1958 and, hence, had abandoned his office. But the
overwhelming evidence adduced at the trial and which the respondents failed to
rebut, negates the respondents' charge that he had abandoned his job. In his
testimony, corroborated by many others, Tabasondra particularly identified the
management men to whom he and his group presented themselves on June 2, 1958.
He mentioned the respondent Olbes' secretary, De Asis, as the one who received
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Legal Ethics
them and later directed them — when Olbes refused them an audience — to Felipe
Enage, the Companies' personnel manager. He likewise categorically stated that he
and his group went to see Enage as directed by Olbes' secretary. If Tabasondra were
not telling the truth, it would have been an easy matter for the respondents to
produce De Asis and Enage — who testified anyway as witnesses for the respondents
on several occasions — to rebut his testimony. The respondents did nothing of the
kind. Moreover, Tabasondra called on June 21, 1958 the respondents' attention to his
non-admission and asked them to inform him of the reasons therefor, but instead of
doing so, the respondents dismissed him by their letter dated July 10, 1958.
Elementary fairness required that before being dismissed for cause, Tabasondra be
given "his day in court."
At any rate, it has been held that mere failure to report for work after notice to return,
does not constitute abandonment nor bar reinstatement. In one case, the U.S.
Supreme Court held that the taking back of six of eleven men constituted
discrimination although the five strikers who were not reinstated, all of whom were
prominent in the union and in the strike, reported for work at various times during
the next three days, but were told that there were no openings. Said the Court:
... The Board found, and we cannot say that its finding is
unsupported, that, in taking back six union men, the respondent's
officials discriminated against the latter on account of their union
activities and that the excuse given that they did not apply until
after the quota was full was an afterthought and not the true
reason for the discrimination against them. (NLRB v. Mackay
Radio & Telegraph Co., 304 U.S. 333, 58 Sup. Ct. 904, 82 L. Ed.
1381) (Mathews, Labor Relations and the Law, p. 725, 728)
The respondents' allegation that Tabasondra should have returned after being
refused readmission on June 2, 1958, is not persuasive. When the employer puts off
reinstatement when an employee reports for work at the time agreed, we consider
the employee relieved from the duty of returning further.
Sixto Tongos was dismissed allegedly because he revealed that despite the fact that
the Companies spent more than P80,000 for the vacation trips of officials, they
refused to grant union demands; hence, he betrayed his trust as an auditor of the
Companies. We do not find this allegation convincing. First, this accusation was
emphatically denied by Tongos on the witness stand. Gonzales, president of one of
the respondent Companies and one of the officials referred to, took a trip abroad in
1958. Exchange controls were then in force, and an outgoing traveller on a combined
business and vacation trip was allowed by the Central Bank, per its Circular 52
(Notification to Authorized Agent Banks) dated May 9, 1952, an allocation of $1,000
or only P2,000, at the official rate of two pesos to the dollar, as pocket money; hence,
this was the only amount that would appear on the books of the Companies. It was
only on January 21, 1962, per its Circular 133 (Notification to Authorized Agent
Banks), that the Central Bank lifted the exchange controls. Tongos could not therefore
have revealed an amount bigger than the above sum. And his competence in figures
could not be doubted considering that he had passed the board examinations for
certified public accountants. But assuming arguendo that Tongos indeed revealed the
true expenses of Gonzales' trip — which the respondents never denied or tried to
disprove — his statements clearly fall within the sphere of a unionist's right to discuss
and advertise the facts involved in a labor dispute, in accordance with section 9(a)(5)
of Republic Act 875 which guarantees the untramelled exercise by striking employees
of the right to give "publicity to the existence of, or the fact involved in any labor
dispute, whether by advertising, speaking, patrolling or by any method not involving
fraud or violence." Indeed, it is not only the right, it is as well the duty, of every
unionist to advertise the facts of a dispute for the purpose of informing all those
affected thereby. In labor disputes, the combatants are expected to expose the truth
before the public to justify their respective demands. Being a union man and one of
the strikers, Tongos was expected to reveal the whole truth on whether or not the
respondent Companies were justified in refusing to accede to union demands. After
all, not being one of the supervisors, he was not a part of management. And his
statement, if indeed made, is but an expression of free speech protected by the
Constitution.
Free speech on both sides and for every faction on any side of the
labor relation is to me a constitutional and useful right. Labor is
free ... to turn its publicity on any labor oppression, substandard
wages, employer unfairness, or objectionable working
conditions. The employer, too, should be free to answer and to
turn publicity on the records of the leaders of the unions which
seek the confidence of his men ... (Concurring opinion of Justice
Jackson in Thomas v. Collins, 323 U.S. 516, 547, 65 Sup. Ct. 315,
89 L. Ed. 430.) (Mathews, Labor Relations and the Law, p. 591.)
The respondents also allege that in revealing certain confidential information, Tongos
committed not only a betrayal of trust but also a violation of the moral principles and
ethics of accountancy. But nowhere in the Code of Ethics for Certified Public
Accountants under the Revised Rules and Regulations of the Board of Accountancy
formulated in 1954, is this stated. Moreover, the relationship of the Companies with
Tongos was that of an employer and not a client. And with regard to the testimonies
of Juan Raymundo and Antolin Carillo, both vice-presidents of the Trust Insurance
Agencies, Inc. about the alleged utterances made by Tongos, the lower court should
not have given them much weight. The firm of these witnesses was newly established
at that time and was still a "general agency" of the Companies. It is not therefore
amiss to conclude that they were more inclined to favor the respondents rather than
Tongos.
Pacifico Ner, Paulino Bugay, Jose Garcia, Narciso Daño, Vicente Alsol and
Hermenigildo Ramirez, opined the lower court, were constructively dismissed by non-
readmission allegedly because they not only prevented Ramon Garcia, assistant
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Legal Ethics
corporate secretary, and Vicente Abella, chief of the personnel records section of the
Companies, from entering the Companies' premises on May 21, 1958, but they also
caused bruises and abrasions on Garcia's chest and forehead — acts considered
inimical to the interest of the respondents. The Unions, upon the other hand, insist
that there is complete lack of evidence that Ner took part in pushing Garcia; that it
was Garcia who elbowed his way through the picket lines and therefore Ner shouted
"Close up," which the picketers did; and that Garcia tossed Paulino Bugay's placard
and a fight ensued between them in which both suffered injuries. But despite these
conflicting versions of what actually happened on May 21, 1958, there are grounds to
believe that the picketers are not responsible for what happened.lâwphî1.ñèt The
picketing on May 21, 1958, as reported in the police blotter, was peaceful (see Police
blotter report, exh. 3 in CA-G.R. No. 25991-R of the Court of Appeals, where Ner was
acquitted). Moreover, although the Companies during the strike were holding offices
at the Botica Boie building at Escolta, Manila; Tuason Building at San Vicente Street,
Manila; and Ayala, Inc. offices at Makati, Rizal, Garcia, the assistant corporate
secretary, and Abella, the chief of the personnel records section, reported for work at
the Insular Life Building. There is therefore a reasonable suggestion that they were
sent to work at the latter building to create such an incident and have a basis for filing
criminal charges against the petitioners in the fiscal's office and applying for injunction
from the court of first instance. Besides, under the circumstances the picketers were
not legally bound to yield their grounds and withdraw from the picket lines. Being
where the law expects them to be in the legitimate exercise of their rights, they had
every reason to defend themselves and their rights from any assault or unlawful
transgression. Yet the police blotter, about adverted to, attests that they did not
resort to violence.
The heated altercations and occasional blows exchanged on the picket line do not
affect or diminish the right to strike. Persuasive on this point is the following
commentary: .
We think it must be conceded that some disorder is unfortunately
quite usual in any extensive or long drawn out strike. A strike is
essentially a battle waged with economic weapons. Engaged in it
are human beings whose feelings are stirred to the depths. Rising
passions call forth hot words. Hot words lead to blows on the
picket line. The transformation from economic to physical
combat by those engaged in the contest is difficult to prevent
even when cool heads direct the fight. Violence of this nature,
however much it is to be regretted, must have been in the
contemplation of the Congress when it provided in Sec. 13 of Act
29 USCA Sec. 163, that nothing therein should be construed so as
to interfere with or impede or diminish in any way the right to
strike. If this were not so, the rights afforded to employees by the
Act would indeed be illusory. We accordingly recently held that it
was not intended by the Act that minor disorders of this nature
would deprive a striker of the possibility of reinstatement.
(Republic Steel Corp. v. N. L. R. B., 107 F2d 472, cited in Mathews,
Labor Relations and the Law, p. 378)
Hence the incident that occurred between Ner, et al. and Ramon Garcia was but a
necessary incident of the strike and should not be considered as a bar to
reinstatement. Thus it has been held that:
Fist-fighting between union and non-union employees in the midst of a strike is no
bar to reinstatement. (Teller, Labor Disputes and Collective Bargaining, Vol. II, p.
855 citing Stackpole Carbon, Co. 6 NLRB 171, enforced 105 F2d 167.)
Furthermore, assuming that the acts committed by the strikers were transgressions
of law, they amount only to mere ordinary misdemeanors and are not a bar to
reinstatement.
In cases involving misdemeanors the board has generally held that unlawful acts are
not bar to reinstatement. (Teller, Labor Disputes and Collective Bargaining, Id., p.
854, citing Ford Motor Company, 23 NLRB No. 28.)
Finally, it is not disputed that despite the pendency of criminal charges against non-
striking employees before the fiscal's office, they were readily admitted, but those
strikers who had pending charges in the same office were refused readmission. The
reinstatement of the strikers is thus in order.
[W]here the misconduct, whether in reinstating persons equally
guilty with those whose reinstatement is opposed, or in other
ways, gives rise to the inference that union activities rather than
misconduct is the basis of his [employer] objection, the Board has
usually required reinstatement." (Teller, supra, p. 853, citing the
Third Annual Report of NLRB [1938], p. 211.)
Lastly, the lower Court justified the constructive dismissal of Florencio Ibarra allegedly
because he committed acts inimical to the interest of the respondents when, as
president of the FGU Workers and Employees Association-NATU, he advised the
strikers that they could use force and violence to have a successful picket and that
picketing was precisely intended to prevent the non-strikers and company clients and
customers from entering the Companies' buildings. Even if this were true, the record
discloses that the picket line had been generally peaceful, and that incidents
happened only when management men made incursions into and tried to break the
picket line. At any rate, with or without the advice of Ibarra, picketing is inherently
explosive. For, as pointed out by one author, "The picket line is an explosive front,
charged with the emotions and fierce loyalties of the union-management dispute. It
may be marked by colorful name-calling, intimidating threats or sporadic fights
between the pickets and those who pass the line." (Mathews, Labor Relations and the
Law, p. 752). The picket line being the natural result of the respondents' unfair labor
practice, Ibarra's misconduct is at most a misdemeanor which is not a bar to
reinstatement. Besides, the only evidence presented by the Companies regarding
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Legal Ethics
Ibarra's participation in the strike was the testimony of one Rodolfo Encarnacion, a
former member of the board of directors of the petitioner FGU Insurance Group
Workers and Employees Union-NATU, who became a "turncoat" and who likewise
testified as to the union activities of Atty. Lacsina, Ricardo Villaruel and others (annex
C, Decision, p. 27) — another matter which emphasizes the respondents' unfair labor
practice. For under the circumstances, there is good ground to believe that
Encarnacion was made to spy on the actvities of the union members. This act of the
respondents is considered unjustifiable interference in the union activities of the
petitioners and is unfair labor practice.
It has been held in a great number of decisions at espionage by
an employer of union activities, or surveillance thereof, are such
instances of interference, restraint or coercion of employees in
connection with their right to organize, form and join unions as
to constitute unfair labor practice.
... "Nothing is more calculated to interfere with, restrain and
coerce employees in the exercise of their right to self-
organization than such activity even where no discharges result.
The information obtained by means of espionage is in valuable to
the employer and can be used in a variety of cases to break a
union." The unfair labor practice is committed whether the
espionage is carried on by a professional labor spy or detective,
by officials or supervisory employees of the employer, or by
fellow employees acting at the request or direction of the
employer, or an ex-employee..." (Teller, Labor Disputes and
Collective Bargaining, Vol. II, pp. 765-766, and cases cited.) .
IV. The lower court should have ordered the reinstatement of the officials and
members of the Unions, with full back wages from June 2, 1958 to the date of their
actual reinstatement to their usual employment. Because all too clear from the
factual and environmental milieu of this case, coupled with settled decisional law, is
that the Unions went on strike because of the unfair labor practices committed by the
respondents, and that when the strikers reported back for work — upon the invitation
of the respondents — they were discriminatorily dismissed. The members and
officials of the Unions therefore are entitled to reinstatement with back pay.
[W]here the strike was induced and provoked by improper
conduct on the part of an employer amounting to an 'unfair labor
practice,' the strikers are entitled to reinstatement with back pay.
(Rothenberg on Labor Relations, p. 418.)
[A]n employee who has been dismissed in violation of the
provisions of the Act is entitled to reinstatement with back pay
upon an adjudication that the discharge was illegal."
(Id., citingWaterman S. S. Corp. v. N. L. R. B., 119 F2d 760; N. L. R.
B. v. Richter's Bakery, 140 F2d 870; N. L. R. B. v. Southern Wood
Preserving Co., 135 F. 2d 606; C. G. Conn, Ltd. v. N. L. R. B., 108
F2d 390; N. L. R. B. v. American Mfg. Co., 106 F2d 61; N. L. R. B. v.
Kentucky Fire Brick Co., 99 F2d 99.)
And it is not a defense to reinstatement for the respondents to allege that the
positions of these union members have already been filled by replacements.
[W]here the employers' "unfair labor practice" caused or
contributed to the strike or where the 'lock-out' by the employer
constitutes an "unfair labor practice," the employer cannot
successfully urge as a defense that the striking or lock-out
employees position has been filled by replacement. Under such
circumstances, if no job sufficiently and satisfactorily comparable
to that previously held by the aggrieved employee can be found,
the employer must discharge the replacement employee, if
necessary, to restore the striking or locked-out worker to his old
or comparable position ... If the employer's improper conduct
was an initial cause of the strike, all the strikers are entitled to
reinstatement and the dismissal of replacement employees
wherever necessary; ... . (Id., p. 422 and cases cited.)
A corollary issue to which we now address ourselves is, from what date should the
backpay payable to the unionists be computed? It is now a settled doctrine that
strikers who are entitled to reinstatement are not entitled to back pay during the
period of the strike, even though it is caused by an unfair labor practice. However, if
they offer to return to work under the same conditions just before the strike, the
refusal to re-employ or the imposition of conditions amounting to unfair labor
practice is a violation of section 4(a) (4) of the Industrial Peace Act and the employer
is liable for backpay from the date of the offer (Cromwell Commercial Employees and
Laborers Union vs. Court of Industrial Relations, L-19778, Decision, Sept. 30, 1964, 12
SCRA 124; Id., Resolution on motion for reconsideration, 13 SCRA 258; see
also Mathews, Labor Relations and the Law, p. 730 and the cited cases). We have
likewise ruled that discriminatorily dismissed employees must receive backpay from
the date of the act of discrimination, that is, from the date of their discharge
(Cromwell Commercial Employees and Laborers Union vs. Court of Industrial
Relations, supra).
The respondents notified the petitioner strikers to report back for work on June 2,
1958, which the latter did. A great number of them, however, were refused
readmission because they had criminal charges against them pending before the
fiscal's office, although non-strikers who were also facing criminal indictments were
readily readmitted. These strikers who were refused readmission on June 2, 1958 can
thus be categorized as discriminatorily dismissed employees and are entitled to
backpay from said date. This is true even with respect to the petitioners Jose Pilapil,
Paulino Bugay, Jr. and Jose Garcia, Jr. who were found guilty only of misdemeanors
which are not considered sufficient to bar reinstatement (Teller, Labor Disputes and
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Legal Ethics
Collective Bargaining, p. 854), especially so because their unlawful acts arose during
incidents which were provoked by the respondents' men. However, since the
employees who were denied readmission have been out of the service of the
Companies (for more than ten years) during which they may have found other
employment or other means of livelihood, it is only just and equitable that whatever
they may have earned during that period should be deducted from their back wages
to mitigate somewhat the liability of the company, pursuant to the equitable principle
that no one is allowed to enrich himself at the expense of another (Macleod & Co. of
the Philippines v. Progressive Federation of Labor, 97 Phil. 205 [1955]).
The lower court gave inordinate significance to the payment to and acceptance by
the dismissed employees of separation pay. This Court has ruled that while employers
may be authorized under Republic Act 1052 to terminate employment of employees
by serving the required notice, or, in the absence thereof, by paying the required
compensation, the said Act may not be invoked to justify a dismissal prohibited by
law, e.g., dismissal for union activities.
... While Republic Act No. 1052 authorizes a commercial
establishment to terminate the employment of its employee by
serving notice on him one month in advance, or, in the absence
thereof, by paying him one month compensation from the date
of the termination of his employment, such Act does not give to
the employer a blanket authority to terminate the employment
regardless of the cause or purpose behind such termination.
Certainly, it cannot be made use of as a cloak to circumvent a final
order of the court or a scheme to trample upon the right of an
employee who has been the victim of an unfair labor practice. (Yu
Ki Lam, et al. v. Nena Micaller, et al., 99 Phil. 904 [1956].)
Finally, we do not share the respondents' view that the findings of fact of the Court
of Industrial Relations are supported by substantial and credible proof. This Court is
not therefore precluded from digging deeper into the factual milieu of the case (Union
of Philippine Education Employees v. Philippine Education Company, 91 Phil. 93; Lu
Do & Lu Ym Corporation v. Philippine-Land-Air-Sea Labor Union, 11 SCRA 134 [1964]).
V. The petitioners (15 of them) ask this Court to cite for contempt the respondent
Presiding Judge Arsenio Martinez of the Court of Industrial Relations and the counsels
for the private respondents, on the ground that the former wrote the following in his
decision subject of the instant petition for certiorari, while the latter quoted the same
on pages 90-91 of the respondents' brief: .
... Says the Supreme Court in the following decisions:
In a proceeding for unfair labor practice,
involving a determination as to whether or
not the acts of the employees concerned
justified the adoption of the employer of
disciplinary measures against them, the mere
fact that the employees may be able to put
up a valid defense in a criminal prosecution
for the same acts, does not erase or
neutralize the employer's right to impose
discipline on said employees. For it is settled
that not even the acquittal of an employee of
the criminal charge against him is a bar to the
employer's right to impose discipline on its
employees, should the act upon which the
criminal charged was based constitute
nevertheless an activity inimical to the
employer's interest... The act of the
employees now under consideration may be
considered as a misconduct which is a just
cause for dismissal. (Lopez, Sr., et al. vs.
Chronicle Publication Employees Ass'n. et al.,
G.R. No. L-20179-81, December 28, 1964.)
(emphasis supplied)
The two pertinent paragraphs in the above-cited decision * which contained the
underscored portions of the above citation read however as follows:
Differently as regard the dismissal of Orlando Aquino and
Carmelito Vicente, we are inclined to uphold the action taken by
the employer as proper disciplinary measure. A reading of the
article which allegedly caused their dismissal reveals that it really
contains an insinuation albeit subtly of the supposed exertion of
political pressure by the Manila Chronicle management upon the
City Fiscal's Office, resulting in the non-filing of the case against
the employer. In rejecting the employer's theory that the
dismissal of Vicente and Aquino was justified, the lower court
considered the article as "a report of some acts and omissions of
an Assistant Fiscal in the exercise of his official functions" and,
therefore, does away with the presumption of malice. This being
a proceeding for unfair labor practice, the matter should not have
been viewed or gauged in the light of the doctrine on a publisher's
culpability under the Penal Code. We are not here to determine
whether the employees' act could stand criminal prosecution, but
only to find out whether the aforesaid act justifies the adoption
by the employer of disciplinary measure against them. This is not
sustaining the ruling that the publication in question is qualified
privileged, but even on the assumption that this is so, the
exempting character thereof under the Penal Code does not
necessarily erase or neutralize its effect on the employer's
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Legal Ethics
interest which may warrant employment of disciplinary
measure. For it must be remembered that not even the acquittal
of an employee, of the criminal charges against him, is a bar to
the employer's right to impose discipline on its employees, should
the act upon which the criminal charges was based constitute
nevertheless an activity inimical to the employer's interest.
In the herein case, it appears to us that for an employee to publish
his "suspicion," which actually amounts to a public accusation,
that his employer is exerting political pressure on a public official
to thwart some legitimate activities on the employees, which
charge, in the least, would sully the employer's reputation, can be
nothing but an act inimical to the said employer's interest. And
the fact that the same was made in the union newspaper does
not alter its deleterious character nor shield or protect a
reprehensible act on the ground that it is a union activity, because
such end can be achieved without resort to improper conduct or
behavior. The act of the employees now under consideration may
be considered as a misconduct which is a just cause for
dismissal.** (Emphasis ours)
It is plain to the naked eye that the 60 un-underscored words of the paragraph quoted
by the respondent Judge do not appear in the pertinent paragraph of this Court's
decision in L-20179-81. Moreover, the first underscored sentence in the quoted
paragraph starts with "For it is settled ..." whereas it reads, "For it must be
remembered ...," in this Court's decision. Finally, the second and last underlined
sentence in the quoted paragraph of the respondent Judge's decision, appears not in
the same paragraph of this Court's decision where the other sentence is, but in the
immediately succeeding paragraph.
This apparent error, however, does not seem to warrant an indictment for contempt
against the respondent Judge and the respondents' counsels. We are inclined to
believe that the misquotation is more a result of clerical ineptitude than a deliberate
attempt on the part of the respondent Judge to mislead. We fully realize how saddled
with many pending cases are the courts of the land, and it is not difficult to imagine
that because of the pressure of their varied and multifarious work, clerical errors may
escape their notice. Upon the other hand, the respondents' counsels have the prima
facie right to rely on the quotation as it appears in the respondent Judge's decision,
to copy it verbatim, and to incorporate it in their brief. Anyway, the import of the
underscored sentences of the quotation in the respondent Judge's decision is
substantially the same as, and faithfully reflects, the particular ruling in this Court's
decision, i.e., that "[N]ot even the acquittal of an employee, of the criminal charges
against him, is a bar to the employer's right to impose discipline on its employees,
should the act upon which the criminal charges were based constitute nevertheless
an activity inimical to the employer's interest."
Be that as it may, we must articulate our firm view that in citing this Court's decisions
and rulings, it is the bounden duty of courts, judges and lawyers to reproduce or copy
the same word-for-word and punctuation mark-for-punctuation mark. Indeed, there
is a salient and salutary reason why they should do this. Only from this Tribunal's
decisions and rulings do all other courts, as well as lawyers and litigants, take their
bearings. This is because the decisions referred to in article 8 of the Civil Code which
reads, "Judicial decisions applying or interpreting the laws or the Constitution shall
form a part of the legal system of the Philippines," are only those enunciated by this
Court of last resort. We said in no uncertain terms in Miranda, et al. vs. Imperial, et
al. (77 Phil. 1066) that "[O]nly the decisions of this Honorable Court establish
jurisprudence or doctrines in this jurisdiction." Thus, ever present is the danger that
if not faithfully and exactly quoted, the decisions and rulings of this Court may lose
their proper and correct meaning, to the detriment of other courts, lawyers and the
public who may thereby be misled. But if inferior courts and members of the bar
meticulously discharge their duty to check and recheck their citations of authorities
culled not only from this Court's decisions but from other sources and make certain
that they are verbatim reproductions down to the last word and punctuation mark,
appellate courts will be precluded from acting on misinformation, as well as be saved
precious time in finding out whether the citations are correct.
Happily for the respondent Judge and the respondents' counsels, there was no
substantial change in the thrust of this Court's particular ruling which they cited. It is
our view, nonetheless, that for their mistake, they should be, as they are hereby,
admonished to be more careful when citing jurisprudence in the future.
ACCORDINGLY, the decision of the Court of Industrial Relations dated August 17, 1965
is reversed and set aside, and another is entered, ordering the respondents to
reinstate the dismissed members of the petitioning Unions to their former or
comparatively similar positions, with backwages from June 2, 1958 up to the dates of
their actual reinstatements. Costs against the respondents.
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Legal Ethics

ALLIED BANKING CORPORATION, petitioner, vs. COURT OF APPEALS and POTENCIANO L. Effecting a rotation/movement of officers assigned in the Cebu homebase, petitioner
GALANIDA, respondents. listed respondent as second in the order of priority of assistant managers to be assigned
outside of Cebu City having been stationed in Cebu for seven years already. Private
The Case respondent manifested his refusal to be transferred to Bacolod City in a letter dated 19
Before the Court is a petition for review[1] assailing the Decision[2] of 27 April April 1994 citing as reason parental obligations, expenses, and the anguish that would
2000 and the Resolution of 8 August 2000 of the Court of Appeals in CA-G.R. SP No. result if he is away from his family. He then filed a complaint before the Labor Arbiter for
51451. The Court of Appeals upheld the Decision[3] of 18 September 1998 and the constructive dismissal.
Resolution of 24 December 1998 of the National Labor Relations Commission (NLRC) in Subsequently, petitioner bank informed private respondent (Rollo, p. 86) that he was to
NLRC Case No. V-000180-98. The NLRC modified the Decision dated 23 December 1997 of report to the Tagbilaran City Branch effective 23 May 1994. Private respondent refused. In
Labor Arbiter Dominador A. Almirante (Labor Arbiter) in NLRC Case No. RAB VII-05-0545- a letter dated 13 June 1994, petitioner warned and required of private respondent as
94 holding that Allied Banking Corporation (Allied Bank) illegally dismissed Potenciano L. follows:
Galanida (Galanida). The NLRC awarded Galanida separation pay, backwages, moral and There is no discrimination in your transfer. In fact, among the officers mentioned, only you
exemplary damages, and other amounts totaling P1,264,933.33. have refused the new assignment citing difficulty of working away from your family as if
Antecedent Facts the other officers concerned do not suffer the same predicament. To exempt you from the
For a background of this case, we quote in part from the Decision of the Court of officer transfer would result in favoritism in your favor and discrimination as against the
Appeals: other officers concerned.
Private respondent Potenciano Galanida was hired by petitioner Allied Banking In furtherance of maintaining a smooth and uninterrupted service to the public, and in
Corporation on 11 January 1978 and rose from accountant-book(k)eeper to assistant accordance with the Banks order of priority of rotating its accountants places of
manager in 1991. His appointment was covered by a Notice of Personnel Action which assignments, you are well aware that Roberto Isla, AM/Accountant, assigned in Cebu for
provides as one of the conditions of employment the provision on petitioners right to more than ten (10) years, was, on February 14, 1994, reassigned to Iligan City Branch and
transfer employees: then to Cagayan de Oro City Branch on June 8, 1994. Hence, your objection on the ground
REGULAR APPOINTMENT: xxx It is understood that the bank reserves the right to transfer of your length of service is without merit.
or assign you to other departments or branches of the bank as the need arises and in the xxx
interest of maintaining smooth and uninterrupted service to the public. As discussed, your refusal to follow instruction concerning your transfer and reassignment
Private respondent was promoted several times and was transferred to several branches to Bacolod City and to Tagbilaran City is penalized under Article XII of the Banks Employee
as follows: Discipline Policy and Procedure [which] provides:
a) January, 1978 to March, 1982 XII Transfer and Reassignment
Tagbilaran City Branch Refusal to follow instruction concerning transfers and reassignments.
b) April, 1982 to May, 1984 First and subsequent offenses
Lapulapu City Branch The penalty may range from suspension to dismissal as determined by management. The
c) June, 1984 employee shall be required to comply with the order of transfer and reassignment, if the
Mandaue City Branch penalty is not termination of employment.
d) July, 1984 to April, 1986 In view of the foregoing, please explain in writing within three (3) days from receipt hereof
Tagbilaran City Branch why no disciplinary action should be meted against you for your having refused to follow
e) May, 1986 to May, 1987 instructions concerning the foregoing transfer and reassignment. xxx[4]
Dumaguete City Branch On 16 June 1994, Galanida replied that (w)hether the banks penalty for my refusal
f) June, 1987 to August, 1987 be Suspension or Dismissal xxx it will all the more establish and fortify my complaint now
Carbon Branch, Cebu City pending at NLRC, RAB 7.[5] In the same letter, he charged Allied Bank with discrimination
g) September, 1987 to Sept. 1989 and favoritism in ordering his transfer, thus:
Lapulapu City Branch, Cebu xxx What I cannot decipher now under the headship of Mr. Olveda is managements
h) October, 1989 to Sept. 1992 discriminatory act of transferring only the long staying accountants of Cebu in the guise of
Carbon Branch, Cebu City its exercise of management prerogative when in truth and in fact, the ulterior motive is to
i) October 1992 to Sept. 1994 accommodate some new officers who happen to enjoy favorable connection with
Jakosalem Regional Branch, management. How can the bank ever justify the transfer of Melinda T. Co, a new officer
Cebu City (Rollo, p. 47) who had experienced being assigned outside of Cebu for more than a year only to Tabunok

91
Legal Ethics
Branch? If the purpose is for check and balance, is management implying that Melinda Co
can better carry out such function over Mr. Larry Sabelino, who is a seasoned and
experienced accountant or any of the Metro Cebu accountants for that matter?Isnt this
act of management an obvious display of favoritism? xxx[6]
On 5 October 1994, Galanida received an inter-office communication[7] (Memo)
dated 8 September 1994 from Allied Banks Vice-President for Personnel, Mr. Leonso C.
Pe. The Memo informed Galanida that Allied Bank had terminated his services effective 1
September 1994. The reasons given for the dismissal were: (1) Galanidas continued refusal
to be transferred from the Jakosalem, Cebu City branch; and (2) his refusal to report for
work despite the denial of his application for additional vacation leave. The salient portion
of the Memo reads:
Therefore, your refusal to follow instruction concerning your transfer and reassignment
to Bacolod City and to Tagbilaran City is without any justifiable reason and constituted
violations of Article XII of the Banks EDPP xxx
In view of the foregoing, please be informed that the Bank has terminated your services
effective September 1, 1994 and considered whatever benefit, if any, that you are entitled
as forfeited in accordance with 04, V Administrative Penalties, page 6 of the Banks EDPP
which provides as follows:
04. Dismissal.
Dismissal is a permanent separation for cause xxx
Notice of termination shall be issued by the Investigation Committee subject to the
confirmation of the President or his authorized representative as officer/employee who is
terminated for cause shall not be eligible to receive any benefit arising from her/his
employment with the Bank or to termination pay.
It is understood that the termination of your service shall be without prejudice to whatever
legal remedies which the Bank may have already undertaken and/or will undertake against
you.
Please be guided accordingly. (Emphasis supplied)[8]
The Ruling of the Labor Arbiter
After several hearings, the Labor Arbiter held that Allied Bank had abused its
management prerogative in ordering the transfer of Galanida to its Bacolod and Tagbilaran
branches. In ruling that Galanidas refusal to transfer did not amount to insubordination,
the Labor Arbiter misquoted this Courts decision in Dosch v. NLRC,[9] thus:
As a general rule, the right to transfer or reassign an employee is recognized as an
employers exclusive right and the prerogative of management (Abbott Laboratories vs.
NLRC, 154 SCRA 713 [1987]).
The exercise of this right, is not however, absolute. It has certain limitations. Thus, in
Helmut Dosch vs. NLRC, et al. 123 SCRA 296 (1983), the Supreme Court, ruled:
While it may be true that the right to transfer or reassign an employee is an employers
exclusive right and the prerogative of management, such right is not absolute. The right of
an employer to freely select or discharge his employee is limited by the paramount police
power xxx for the relations between capital and labor are not merely contractual but
impressed with public interest. xxx And neither capital nor labor shall act oppressively
against each other.
Refusal to obey a transfer order cannot be considered insubordination where employee
cited reason for said refusal, such (sic) as that of being away from the
family.[10] (Underscoring supplied by the Labor Arbiter)
The Labor Arbiter reasoned that Galanidas transfer was inconvenient and prejudicial
because Galanida would have to incur additional expenses for board, lodging and
travel. On the other hand, the Labor Arbiter held that Allied Bank failed to show any
business urgency that would justify the transfer.
The Labor Arbiter also gave credence to Galanidas claim that Allied Bank gave Ms.
Co special treatment. The Labor Arbiter stated that Allied Bank deliberately left out Ms.
Cos name from the list of accountants transferred to Cebu as contained in Allied Banks
letter dated 13 June 1994.However, Mr. Regidor Olveda, Allied Banks Vice President for
Operations Accounting, testified that the bank transferred Ms. Co to the
Tabunok, Cebu branch within the first half of 1994.
Still, the Labor Arbiter declined to award Galanida back wages because he was not
entirely free from blame. Since another bank had already employed Galanida, the Labor
Arbiter granted Galanida separation pay in lieu of reinstatement. The dispositive portion
of the Labor Arbiters Decision of 23 December 1997 provides:
WHEREFORE, premises considered, judgment is hereby rendered ordering respondent
Allied Banking Corporation to pay complainant the aggregate total amount of Three
Hundred Twenty Four Thousand Pesos (P324,000.00) representing the following awards:
a) Separation pay for P272,000.00;
b) Quarter bonus for 1994 P16,000.00;
c) 13th month pay for 1994 P16,000.00;
d) Refund of contribution to Provident Fund - P20,000.00.
SO ORDERED.[11]
The Ruling of the NLRC
On appeal, the NLRC likewise ruled that Allied Bank terminated Galanida without just
cause. The NLRC agreed that the transfer order was unreasonable and unjustified,
considering the family considerations mentioned by Galanida. The NLRC characterized the
transfer as a demotion since the Bacolod and Tagbilaran branches were smaller than the
Jakosalem branch, a regional office, and because the bank wanted Galanida, an assistant
manager, to replace an assistant accountant in the Tagbilaran branch. The NLRC found
unlawful discrimination since Allied Bank did not transfer several junior accountants
in Cebu. The NLRC also held that Allied Bank gave Ms. Co special treatment by assigning
her to Cebu even though she had worked for the bank for less than two years.
The NLRC ruled that Galanidas termination was illegal for lack of due process. The
NLRC stated that Allied Bank did not conduct any hearing. The NLRC declared that Allied
Bank failed to send a termination notice, as required by law for a valid termination. The
Memo merely stated that Allied Bank would issue a notice of termination, but the bank did
not issue any notice.
The NLRC concluded that Allied Bank dismissed Galanida in bad faith, tantamount to
an unfair labor practice as the dismissal undermined Galanidas right to security of tenure
and equal protection of the laws. On these grounds, the NLRC promulgated its Decision
of 18 September 1998, the relevant portion of which states:
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Legal Ethics
In this particular case, We view as impractical, unrealistic and no longer advantageous to
both parties to order reinstatement of the complainant. xxx For lack of sufficient basis, We
deny the claim for 1994 quarter bonus. Likewise, no attorneys fees is awarded as counsels
for complainant-appellee are from the City Prosecutors Office of Cebu.
WHEREFORE, premises considered, the decision of the Labor Arbiter dated December 23,
1997 is hereby MODIFIED by increasing the award of separation pay and granting in
addition thereto backwages, moral and exemplary damages. The respondent-appellant,
ALLIED BANKING CORPORATION, is thus ordered to pay to herein complainant-appellee,
POTENCIANO L. GALANIDA, the following amounts:
a) P336,000.00, representing separation pay
b) P833,600.00, representing backwages
c) P 5,333.23 representing proportional 1994 13th month pay
d) P 20,000.00 representing refund of Provident Fund Contribution
e) P 50,000.00 representing moral damages
f) P 20,000.00 representing exemplary damages
===========
P1,264,933.33 TOTAL AWARD
All other claims are dismissed for lack of basis. The other respondents are dropped for lack
of sufficient basis that they acted in excess of their corporate powers.
SO ORDERED.[12]
Allied Bank filed a motion for reconsideration which the NLRC denied in its
Resolution of 24 December 1998.[13]
Dissatisfied, Allied Bank filed a petition for review questioning the Decision and
Resolution of the NLRC before the Court of Appeals.
The Ruling of the Court of Appeals
Citing Dosch v. NLRC,[14] the Court of Appeals held that Galanidas refusal to comply
with the transfer orders did not warrant his dismissal. The appellate court ruled that the
transfer from a regional office to the smaller Bacolod or Tagbilaran branches was
effectively a demotion. The appellate court agreed that Allied Bank did not afford Galanida
procedural due process because there was no hearing and no notice of termination. The
Memo merely stated that the bank would issue a notice of termination but there was no
such notice.
The Court of Appeals affirmed the ruling of the NLRC in its Decision of 27 April 2000,
thus:
WHEREFORE, for lack of merit, the petition is DISMISSED and the assailed Decision of public
respondent NLRC is AFFIRMED.
SO ORDERED. [15]
Allied Bank filed a motion for reconsideration which the appellate court denied in its
Resolution of 8 August 2000.[16]
On 26 April 2001, Allied Bank appealed the appellate courts decision and resolution
to the Supreme Court. Allied Bank prayed that the Supreme Court: (1) issue a temporary
restraining order or writ of preliminary injunction ex parte to restrain the implementation
or execution of the questioned Decision and Resolution; (2) declare Galanidas termination
as valid and legal; (3) set aside the Court of Appeals Decision and Resolution; (4) make
permanent the restraining order or preliminary injunction; (5) order Galanida to pay the
costs; and (6) order other equitable reliefs.
The Issues
Allied Bank raises the following issues:
1. WHETHER UNDER THE FACTS PRESENTED THERE IS LEGAL BASIS IN
PETITIONERS EXERCISE OF ITS MANAGEMENT PREROGATIVE.
2. WHETHER PRIVATE RESPONDENTS VIOLATIONS OF COMPANY RULES
CONSTITUTE A GROUND TO WARRANT THE PENALTY OF DISMISSAL.
3. WHETHER UNDER THE FACTS PRESENTED, THERE IS LEGAL BASIS TO HOLD
THAT ALLIED BANK AFFORDED PRIVATE RESPONDENT THE REQUIRED
DUE PROCESS.
4. WHETHER UNDER THE FACTS, THERE IS LEGAL BASIS TO HOLD THAT
PRIVATE RESPONDENT CANNOT RECOVER ANY MONETARY AWARD.[17]
In sum, Allied Bank argues that the transfer of Galanida was a valid exercise of its
management prerogative. Allied Bank contends that Galanidas continued refusal to obey
the transfer orders constituted willful disobedience or insubordination, which is a just
cause for termination under the Labor Code.
On the other hand, Galanida defended his right to refuse the transfer order. The
memorandum for Galanida filed with this Court, prepared by Atty. Loreto M. Durano,
again misquoted the Courts ruling in Dosch v. NLRC, thus:
xxx His [Galanidas] refusal to transfer falls well within the ruling of the Supreme Court in
Helmut Dosch vs. NLRC, et. al., 123 SCRA 296 (1983) quoted as follows:
xxx
Refusal to obey a transfer order cannot be considered insubordination where employee
cited reason for said refusal, such as that of being away from the family.[18]
The Ruling of the Court
The petition is partly meritorious.
Preliminary Matter: Misquoting Decisions of the Supreme Court
The memorandum prepared by Atty. Durano and, worse, the assailed Decision of
the Labor Arbiter, both misquoted the Supreme Courts ruling in Dosch v. NLRC. The Court
held in Dosch:
We cannot agree to Northwests submission that petitioner was guilty of disobedience and
insubordination which respondent Commission sustained. The only piece of evidence on
which Northwest bases the charge of contumacious refusal is petitioners letter dated
August 28, 1975 to R.C. Jenkins wherein petitioner acknowledged receipt of the formers
memorandum dated August 18, 1975, appreciated his promotion to Director of
International Sales but at the same time regretted that at this time for personal reasons
and reasons of my family, I am unable to accept the transfer from the Philippines and
thereafter expressed his preference to remain in his position, saying: I would, therefore,
prefer to remain in my position of Manager-Philippines until such time that my services in
that capacity are no longer required by Northwest Airlines. From this evidence, We cannot
discern even the slightest hint of defiance, much less imply insubordination on the part of
petitioner.[19]
The phrase [r]efusal to obey a transfer order cannot be considered insubordination
where employee cited reason for said refusal, such as that of being away from the family
93
Legal Ethics
does not appear anywhere in the Dosch decision. Galanidas counsel lifted the erroneous
phrase from one of the italicized lines in the syllabus of Dosch found in the Supreme Court
Reports Annotated (SCRA).
The syllabus of cases in official or unofficial reports of Supreme Court decisions or
resolutions is not the work of the Court, nor does it state this Courts decision. The syllabus
is simply the work of the reporter who gives his understanding of the decision. The
reporter writes the syllabus for the convenience of lawyers in reading the reports. A
syllabus is not a part of the courts decision.[20] A counsel should not cite a syllabus in place
of the carefully considered text in the decision of the Court.
In the present case, Labor Arbiter Almirante and Atty. Durano began by quoting
from Dosch, but substituted a portion of the decision with a headnote from the SCRA
syllabus, which they even underscored. In short, they deliberately made the quote from
the SCRA syllabus appear as the words of the Supreme Court. We admonish them for what
is at the least patent carelessness, if not an outright attempt to mislead the parties and the
courts taking cognizance of this case. Rule 10.02, Canon 10 of the Code of Professional
Responsibility mandates that a lawyer shall not knowingly misquote or misrepresent the
text of a decision or authority. It is the duty of all officers of the court to cite the rulings
and decisions of the Supreme Court accurately.[21]
Whether Galanida was dismissed for just cause
We accord great weight and even finality to the factual findings of the Court of
Appeals, particularly when they affirm the findings of the NLRC or the lower
courts. However, there are recognized exceptions to this rule. These exceptions are: (1)
when the findings are grounded on speculation, surmise and conjecture; (2) when the
inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse
of discretion in the appreciation of facts; (4) when the factual findings of the trial and
appellate courts are conflicting; (5) when the Court of Appeals, in making its findings, has
gone beyond the issues of the case and such findings are contrary to the admissions of
both appellant and appellee; (6) when the judgment of the appellate court is premised on
a misapprehension of facts or when it has failed to consider certain relevant facts which, if
properly considered, will justify a different conclusion; (7) when the findings of fact are
conclusions without citation of specific evidence on which they are based; and (8) when
the findings of fact of the Court of Appeals are premised on the absence of evidence but
are contradicted by the evidence on record.[22] After a scrutiny of the records, we find that
some of these exceptions obtain in the present case.
The rule is that the transfer of an employee ordinarily lies within the ambit of the
employers prerogatives.[23] The employer exercises the prerogative to transfer an
employee for valid reasons and according to the requirement of its business, provided the
transfer does not result in demotion in rank or diminution of the employees salary, benefits
and other privileges.[24] In illegal dismissal cases, the employer has the burden of showing
that the transfer is not unnecessary, inconvenient and prejudicial to the displaced
employee.[25]
The constant transfer of bank officers and personnel with accounting responsibilities
from one branch to another is a standard practice of Allied Bank, which has more than a
hundred branches throughout the country.[26] Allied Bank does this primarily for internal
control. It also enables bank employees to gain the necessary experience for eventual
promotion. The Bangko Sentral ng Pilipinas, in its Manual of Regulations for Banks and
Other Financial Intermediaries,[27] requires the rotation of these personnel. The Manual
directs that the duties of personnel handling cash, securities and bookkeeping records
should be rotated and that such rotation should be irregular, unannounced and long
enough to permit disclosure of any irregularities or manipulations.[28]
Galanida was well aware of Allied Banks policy of periodically transferring personnel
to different branches. As the Court of Appeals found, assignment to the different branches
of Allied Bank was a condition of Galanidas employment. Galanida consented to this
condition when he signed the Notice of Personnel Action.[29]
The evidence on record contradicts the charge that Allied Bank discriminated against
Galanida and was in bad faith when it ordered his transfer. Allied Banks letter of 13 June
1994[30] showed that at least 14 accounting officers and personnel from various branches,
including Galanida, were transferred to other branches. Allied Bank did not single out
Galanida. The same letter explained that Galanida was second in line for assignment
outside Cebu because he had been in Cebu for seven years already. The person first in line,
Assistant Manager Roberto Isla, who had been in Cebu for more than ten years, had
already transferred to a branch in Cagayan de Oro City. We note that none of the other
transferees joined Galanida in his complaint or corroborated his allegations of widespread
discrimination and favoritism.
As regards Ms. Co, Galanidas letter of 16 June 1994 itself showed that her
assignment to Cebu was not in any way related to Galanidas transfer. Ms. Co was supposed
to replace a certain Larry Sabelino in the Tabunok branch. The employer has the
prerogative, based on its assessment of the employees qualifications and competence, to
rotate them in the various areas of its business operations to ascertain where they will
function with maximum benefit to the company.[31]
Neither was Galanidas transfer in the nature of a demotion. Galanida did not
present evidence showing that the transfer would diminish his salary, benefits or other
privileges. Instead, Allied Banks letter of 13 June 1994 assured Galanida that he would not
suffer any reduction in rank or grade, and that the transfer would involve the same rank,
duties and obligations. Mr. Olveda explained this further in the affidavit he submitted to
the Labor Arbiter, thus:
19. There is no demotion in position/rank or diminution of complainants salary, benefits
and other privileges as the transfer/assignment of branch officers is premised on the
role/functions that they will assume in the management and operations of the branch, as
shown below:
(a) The Branch Accountant, as controller of the branch is responsible for the proper
discharge of the functions of the accounting section of the branch, review of
documentation/proper accounting and control of transaction. As such, the accounting
functions in the branch can be assumed by any of the following officers with the rank
of: Senior Manager/Acctg.; Manager/ Acctg.; Senior Asst. Manager/Acctg.; Asst.
Manager/Acctg.; Accountant or Asst. Accountant.
xxx
20. The transfer/assignment of branch officer from one branch, to another branch/office
is lateral in nature and carries with it the same position/rank, salary, benefits and other
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Legal Ethics
privileges. The assignment/transfer is for the officer to assume the functions relative to his
job and NOT the position/rank of the officer to be replaced.
There is also no basis for the finding that Allied Bank was guilty of unfair labor
practice in dismissing Galanida. Unfair labor practices relate only to violations of the
constitutional right of workers and employees to self-organization[32] and are limited to the
acts enumerated in Article 248 of the Labor Code, none of which applies to the present
case. There is no evidence that Galanida took part in forming a union, or even that a union
existed in Allied Bank.
This leaves the issue of whether Galanida could validly refuse the transfer orders on
the ground of parental obligations, additional expenses, and the anguish he would suffer
if assigned away from his family.
The Court has ruled on this issue before. In the case of Homeowners Savings and
Loan Association, Inc. v. NLRC,[33] we held:
The acceptability of the proposition that transfer made by an employer for an illicit or
underhanded purpose i.e., to defeat an employees right to self-organization, to rid himself
of an undesirable worker, or to penalize an employee for union activities cannot be upheld
is self-evident and cannot be gainsaid. The difficulty lies in the situation where no such
illicit, improper or underhanded purpose can be ascribed to the employer, the objection
to the transfer being grounded solely upon the personal inconvenience or hardship that
will be caused to the employee by reason of the transfer. What then?
This was the very same situation we faced in Phil. Telegraph and Telephone Corp. v.
Laplana. In that case, the employee, Alicia Laplana, was a cashier at the Baguio City Branch
of PT&T who was directed to transfer to the companys branch office at LaoagCity. In
refusing the transfer, the employee averred that she had established Baguio City as her
permanent residence and that such transfer will involve additional expenses on her part,
plus the fact that an assignment to a far place will be a big sacrifice for her as she will be
kept away from her family which might adversely affect her efficiency. In ruling for the
employer, the Court upheld the transfer from one city to another within the country as
valid as long as there is no bad faith on the part of the employer. We held then:
Certainly the Court cannot accept the proposition that when an employee opposes his
employers decision to transfer him to another work place, there being no bad faith or
underhanded motives on the part of either party, it is the employees wishes that should
be made to prevail.
Galanida, through counsel, invokes the Courts ruling in Dosch v.
NLRC.[34] Dosch, however, is not applicable to the present case. Helmut Dosch refused a
transfer consequential to a promotion. We upheld the refusal because no law compels an
employee to accept a promotion, and because the position Dosch was supposed to be
promoted to did not even exist at that time.[35] This left as the only basis for the charge of
insubordination a letter from Dosch in which the Court found not even the slightest hint of
defiance, much less xxx insubordination.[36]
Moreover, the transfer of an employee to an overseas post, as in the Dosch case,
cannot be likened to a transfer from one city to another within the country,[37] which is the
situation in the present case. The distance from Cebu City to Bacolod City or
from Cebu City to Tagbilaran City does not exceed the distance
from Baguio City to Laoag City or from Baguio City to Manila, which the Court considered
a reasonable distance in PT&T v. Laplana.[38]
The refusal to obey a valid transfer order constitutes willful disobedience of a lawful
order of an employer.[39] Employees may object to, negotiate and seek redress against
employers for rules or orders that they regard as unjust or illegal. However, until and unless
these rules or orders are declared illegal or improper by competent authority, the
employees ignore or disobey them at their peril.[40] For Galanidas continued refusal to
obey Allied Banks transfer orders, we hold that the bank dismissed Galanida for just cause
in accordance with Article 282 (a) of the Labor Code.[41] Galanidais thus not entitled to
reinstatement or to separation pay.
Whether Galanidas dismissal violated the
requirement of notice and hearing
To be effective, a dismissal must comply with Section 2 (d), Rule 1, Book VI of the
Omnibus Rules Implementing the Labor Code (Omnibus Rules), which provides:
For termination of employment based on just causes as defined in Article 282 of the Labor
Code:
(i) A written notice served on the employee specifying the ground or grounds
of termination, and giving said employee reasonable opportunity
within which to explain his side.
(ii) A hearing or conference during which the employee concerned, with the
assistance of counsel if he so desires is given opportunity to respond to
the charge, present his evidence, or rebut the evidence presented
against him.
(iii) A written notice of termination served on the employee indicating that
upon due consideration of all the circumstances, grounds have been
established to justify his termination.
The first written notice was embodied in Allied Banks letter of 13 June 1994. The
first notice required Galanida to explain why no disciplinary action should be taken against
him for his refusal to comply with the transfer orders.
On the requirement of a hearing, this Court has held that the essence of due process
is simply an opportunity to be heard.[42] An actual hearing is not necessary. The exchange
of several letters, in which Galanidas wife, a lawyer with the City Prosecutors Office,
assisted him, gave Galanida an opportunity to respond to the charges against him.
The remaining issue is whether the Memo dated 8 September 1994 sent to Galanida
constitutes the written notice of termination required by the Omnibus Rules. In finding
that it did not, the Court of Appeals and the NLRC cited Allied Banks rule on dismissals,
quoted in the Memo, that, Notice of termination shall be issued by the Investigation
Committee subject to the confirmation of the President or his authorized
representative.[43] The appellate court and NLRC held that Allied Bank did not send any
notice of termination to Galanida. The Memo, with the heading Transfer and
Reassignment, was not the termination notice required by law.
We do not agree.
Even a cursory reading of the Memo will show that it unequivocally informed
Galanida of Allied Banks decision to dismiss him. The statement, please be informed
that the Bank has terminated your services effective September 1, 1994 and considered
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Legal Ethics

whatever benefit, if any, that you are entitled [to] as forfeited xxx[44] is plainly worded and decision to dismiss him. Allied Bank should have exercised more care in issuing the notice
needs no interpretation. The Memo also discussed the findings of the Investigation of termination.
Committee that served as grounds for Galanidas dismissal. The Memo referred to WHEREFORE, the Decision of 27 April 2000 of the Court of Appeals in CA-G.R. SP No.
Galanidas open defiance and refusal to transfer first to the Bacolod City branch and then 51451 upholding the Decision of 18 September 1998 of the NLRC in NLRC Case No. V-
to the Tagbilaran City branch. The Memo also mentioned his continued refusal to report 000180-98 is AFFIRMED, with the following MODIFICATIONS:
for work despite the denial of his application for additional vacation leave.[45] The Memo 1) The awards of separation pay, moral damages and exemplary damages are hereby
also refuted Galanidas charges of discrimination and demotion, and concluded that he had deleted for lack of basis;
violated Article XII of the banks Employee Discipline Policy and Procedure. 2) Reducing the award of backwages to cover only the period from 1 September
The Memo, although captioned Transfer and Reassignment, did not preclude it from 1994 to 4 October 1994; and
being a notice of termination. The Court has held that the nature of an instrument is 3) Awarding nominal damages to private respondent for P10,000.
characterized not by the title given to it but by its body and contents.[46] Moreover, it This case is REMANDED to the Labor Arbiter for the computation, within thirty (30)
appears that Galanida himself regarded the Memo as a notice of termination. We quote days from receipt of this Decision, of the backwages, inclusive of allowances and other
from the Memorandum for Private Respondent-Appellee, as follows: benefits, due to Potenciano L. Galanida for the time his dismissal was ineffectual from 1
The proceedings may be capsulized as follows: September 1994 until 4 October 1994.
1. On March 13, 1994[47] Private Respondent-Appellee filed before the Region VII Labor Arbiter Dominador A. Almirante and Atty. Loreto M. Durano
Arbitration Branch a Complaint for Constructive Dismissal. A copy of the Complaint is are ADMONISHED to be more careful in citing the decisions of the Supreme Court in the
attached to the Petition as Annex H; future.
xxx SO ORDERED.
5. On September 8, 1994, Petitioner-Appellant issued him a Letter of Termination. A copy of
said letter is attached to the Petition as Annex N;
6. Private Respondent-Appellee filed an Amended/ Supplemental Complaint wherein he
alleged illegal dismissal. A copy of the Amended/Supplemental Complaint is attached to
the Petition as Annex O; xxx [48] (Emphasis supplied)
The Memorandum for Private Respondent-Appellee refers to the Memo as a Letter
of Termination. Further, Galanida amended his complaint for constructive dismissal[49] to
one for illegal dismissal[50] after he received the Memo. Clearly, Galanida had understood
the Memo to mean that Allied Bank had terminated his services.
The Memo complied with Allied Banks internal rules which required the banks
President or his authorized representative to confirm the notice of termination. The banks
Vice-President for Personnel, as the head of the department that handles the movement
of personnel within Allied Bank, can certainly represent the bank president in cases
involving the dismissal of employees.
Nevertheless, we agree that the Memo suffered from certain errors. Although the
Memo stated that Allied Bank terminated Galanidas services as of 1 September 1994, the
Memo bore the date 8 September 1994. More importantly, Galanida only received a copy
of the Memo on 5 October 1994, or more than a month after the supposed date of his
dismissal. To be effective, a written notice of termination must be served on the
employee.[51] Allied Bank could not terminate Galanida on 1 September 1994 because he
had not received as of that date the notice of Allied Banks decision to dismiss
him. Galanidas dismissal could only take effect on 5 October 1994, upon his receipt of the
Memo. For this reason, Galanida is entitled to backwages for the period from 1 September
1994 to 4 October 1994.
Under the circumstances, we also find an award of P10,000 in nominal damages
proper. Courts award nominal damages to recognize or vindicate the right of a person that
another has violated.[52] The law entitles Galanida to receive timely notice of Allied Banks

96
Legal Ethics
PATERNO R. CANLAS, petitioner,
vs.
HON. COURT OF APPEALS, and FRANCISCO HERRERA, respondents.
The case dramatizes the unpleasant spectacle of a lawyer tangling with his own client,
more often than not, in the matter of fees. The lawyer, the petitioner himself, would have
his petition decided on pure questions of procedure, yet, the Court cannot let pass
unnoticed the murkier face of the controversy, wherein the law is corrupted to promote a
lawyer's selfseeking ends, and the law profession, debased into a simple business dealing.
Accordingly, we resolve it on the basis not only of the questions raised by the petitioner
pertaining to procedure, but considering its serious ethical implications, on its merits as
well.
We turn to the facts.
The private respondent was the registered owner of eight (six, according to the petitioner)
parcels of land located in Quezon City. 1 Between 1977 and 1978, 2 he obtained various
loans from the L & R Corporation, a financing institution, in various sums totalling
P420,000.00 As security therefor, he executed deeds of mortgage in favor of the
corporation over the parcels aforesaid. On August 28,1979, and upon the maturing of said
loans, the firm caused an extrajudicial foreclosure of mortgage following his failure to pay,
as a consequence of which, the said eight (six, according to the petitioner) parcels of land
were disposed of at public auction, and in which L & R Corporation was itself the highest
bidder.
Pending redemption, the private respondent filed a complaint for injunction against L & R
Corporation, to enjoin consolidation of title in its name, in which he succeeded in obtaining
preliminary injunctive relief. He was represented by the petitioner. Two years later, and
with no imminent end to the litigation in sight, the parties entered into a compromise
agreement whereby L & R Corporation accorded the private respondent another year to
redeem the foreclosed properties subject to payment of P600,000.00, with interest
thereon at one per cent per month. They likewise stipulated that the petitioner shall be
entitled to attorney's fees of P100,000.00. On November 19, 1982, the court 3 approved
the compromise.
The private respondent, however, remained in dire financial straits — a fact the petitioner
himself concede 4 — for which reason he failed to acquire the finding to repay the loans in
question, let alone the sum of P100,000.00 in attorney's fees demanded by the petitioner.
That notwithstanding, the petitioner moved for execution insofar as his fees were
concemed. The court granted execution, although it does not appear that the sum was
actually collected. 5
Sometime thereafter, the petitioner and the private respondent met to discuss relief for
the latter with respect to his liability to L & R Corporation on the one hand, and his
obligation to the petitioner on the other. The petitioner contends that the private
respondent "earnestly implored" 6 him to redeem the said properties; the private
respondent maintains that it was the petitioner himself who 'offered to advance the
money," 7 provided that he, the private respondent, executed a "transfer of
mortgage" 8over the properties in his favor. Who implored whom is a bone of contention,
but as we shall see shortly, we are inclined to agree with the private respondent's version,
considering primarily the petitioner's moral ascendancy over his client and the private
respondent's increasing desperation.
The records further show that the parties, pursuant to their agreement, executed a "Deed
of Sale and Transfer of Rights of Redemption and/or to Redeem," a document that enabled
the petitioner, first, to redeem the parcels in question, and secondly, to register the same
in his name. The private respondent alleges that he subsequently filed loan applications
with the Family Savings Bank to finance a wet market project upon the subject premises to
find, according to him, and to his dismay, the properties already registered in the name of
the petitioner. He likewise contends that the "Deed of Sale and Transfer of Rights of
Redemption and/or to Redeem" on file with the Register of Deeds (for Quezon City) had
been falsified as follows:
WHEREFORE, for and in full settlement of the attorney's fees of
TRANSFEREE in the amount of ONE HUNDRED THOUSAND PESOS
(Pl00,000.00) I, FRANCISCO HERRERA, hereby transfer, assign and
convey unto TRANSFEREE, Atty. Paterno R. Canlas, any and all my
rights of the real properties and/or to redeem from the Mortgagee, L
& R Corporation my mortgaged properties foreclosed and sold at
public auction by the Sheriff of Quezon City and subject matter of the
above Compromise Agreement in Civil Case No. Q30679 ... 9
whereas it originally reads:
WHEREFORE, for and in full settlement of the attorney's fees of
TRANSFEREE in the amount of ONE HUNDRED THOUSAND PESOS
(P100,000.00), I, FRANCISCO HERRERA, hereby transfer, assign and
convey unto TRANSFEREE, Atty. Paterno R. Canlas, any and all my
rights of equity of redemption and/or to redeem from the
Mortgagee, L & R Corporation my mortgaged properties foreclosed
and sold at public auction by the Sheriff of Quezon City and subject
matter of the above Compromise Agreement in Civil Case No.
Q30679. . . 10
As a consequence, the private respondent caused the annotation of an adverse claim upon
the respective certificates of title embracing the properties. Upon learning of the same,
the petitioner moved for the cancellation of the adverse claim and for the issuance of a
writ of possession. The court granted both motions. The private respondent countered
with a motion for a temporary restraining order and later, a motion to recall the writ of
possession. He likewise alleges that he commenced disbarment proceedings before this
Court against the petitioner 11 as well as various criminal complaints for estafa, falsification,
and "betrayal of trust" 12 with the Department of Justice. On December 1, 1983, finally, he
instituted an action for reconveyance and reformation of document, 13 praying that the
certificates of title issued in the name of the petitioner be cancelled and that "the Deed of
Sale and Transfer of Rights of Equity of Redemption and/or to Redeem dated May 3, 1983
... be reformed to reflect the true agreement of Francisco Herrera and Paterno R. Canlas,
of a mortgage." 14He vehemently maintains that the petitioner's "agreement with [him]
was that the latter would lend the money to the former for a year, so that [petitioner]
would have time to look for a loan for the wet market which [the petitioner] intended to
put up on said property." 15Predictably, the petitioner moved for dismissal.
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Legal Ethics
The trial court, however, denied the private respondent's petition. It held that the
alteration complained of did not change the meaning of the contract since it was "well
within [the petitioner's] rights" 16 "to protect and insure his interest of P654,000.00 which
is the redemption price he has paid;" 17 secondly, that the petitioner himself had acquired
an interest in the properties subject of reconveyance based on the
compromise agreement approved by Judge Castro in the injunction case, pursuant to
Section 29(b), of Rule 39, of the Rules of Court, that had, consequently, made him a
judgment creditor in his own right; thirdly, that the private respondent had lost all rights
over the same arising from his failure to redeem them from L & R Corporation within the
extended period; and finally, that the petitioner cannot be said to have violated the ban
against sales of properties in custodia legis to lawyers by their clients pendente lite, since
the sale in question took place after judgment in the injunction case abovesaid had
attained finality. The complaint was consequently dismissed, a dismissal that eventually
attained a character of finality.
Undaunted, the private respondent, on December 6, 1985, filed a suit for "Annulment Of
Judgment 18 in the respondent Court of Appeals, 19 praying that the orders of Judge Castro:
(1). granting execution over the portion of the compromise agreement obliging the private
respondent to pay the petitioner P100,000.00 as attorney's fees; (2) denying the private
respondent's prayer for a restraining order directed against the execution: and (3) denying
the motion to recall writ of possession, all be set aside.
The petitioner filed a comment on the petition, but followed it up with a motion to dismiss.
On December 8, 1986, the respondent Court of Appeals promulgated the first of its
challenged resolutions, denying the motion to dismiss. On March 3, 1987, the Appellate
Court denied reconsideration. 20
Hence the instant petition.
As we stated, the petitioner assails these twin resolutions on grounds of improper
procedure. Specifically, he assigns the following errors:
I.
THE RESPONDENT COURT GRAVELY ABUSE [sic] ITS DISCRETION IN NOT DISMISSING AC
G.R. NO. 07860 ON THE GROUND THAT IT IS IN REALITY A PETITION FOR CERTIORARI FILED
OUT OF TIME AND SHOULD NOT BE GIVEN DUE COURSE.
II.
THE RESPONDENT COURT GRAVELY ABUSE [sic] ITS DISCRETION IN NOT DISMISSING AC
G.R. NO. 07860 ON THE GROUND OF RES JUDICATA
III.
THE RESPONDENT COURT GRAVELY ABUSE [sic] ITS DISCRETION IN NOT CONSIDERING AC
G. R. 07860 AS MOOT AND ACADEMIC SINCE PETITIONER HAD DISPOSED OF THE SUBJECT
PROPERTIES LONG BEFORE THE FILING OF THIS SUIT.
IV
THE RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION IN NOT DENYING
PETITIONER'S MOTION TO DISMISS SOLELY ON THE GROUND THAT THE ARGUMENT
RAISED THEREIN ARE BUT REHASH OF THE ARGUMENTS IN HIS COMMENT TO THE
PETITION. 21
The petitioner argues that the petition pending with the respondent court "is actually a
petition for certiorari," 22disguised as a pleading for annulment of judgment and that in
such a case, it faces alleged legal impediments (1) It had been filed out of time, allegedly
two years from the issuance of the assailed orders, and (2) It was not preceded by a motion
for reconsideration. He adds that assuming annulment of judgment were proper, no
judgment allegedly exists for annulment, the aforesaid two orders being in the nature of
interlocutory issuances.
On purely technical grounds, the petitioner's arguments are impressive. Annulment of
judgment, we have had occasion to rule, rests on a single ground: extrinsic fraud. What
"extrinsic fraud" means is explained in Macabingkil v. People's Homesite and Housing
Corporation : 23
xxx xxx xxx
It is only extrinsic or collateral fraud, as distinguished from intrinsic
fraud, however, that can serve as a basis for the annulment of
judgment. Fraud has been regarded as extrinsic or collateral, within
the meaning of the rule, "where it is one the effect of which prevents
a party from having a trial, or real contest, or from presenting all of
his case to the court, or where it operates upon matters pertaining,
not to the judgment itself, but of the manner in which it was procured
so that there is not a fair submission of the controversy." In other
words, extrinsic fraud refers to any fraudulent act of the prevailing
party in the litigation which is committed outside of the trial of the
case, whereby the defeated party has been prevented from
exhibiting fully his side of the case, by fraud or deception practiced
on him by his opponent. 24
A perusal of the petition of therein private respondent Herrera pending before the
respondent Court reveals no cause of action for annulment of judgment. In the first place,
and as herein petitioner Canlas correctly points out, the judgment itself is not assailed, but
rather, the orders merely implementing it. Secondly, there is no showing that extrinsic
fraud, as Makabingkil defines it, indeed vitiated the proceedings presided over by Judge
Castro. On the contrary, Herrera's petition in the respondent court will show that he was
privy to the incidents he complains of, and in fact, had entered timely oppositions and
motions to defeat Atty. Canlas' claims under the compromise agreement.
What he objects to is his suspected collusion between Atty. Canlas and His Honor to
expedite the former's collection of his fees. He alleges that his counsel had deliberately,
and with malevolent designs, postponed execution to force him (Herrera) to agree to sell
the properties in controversy to him (Atty. Canlas) subject to redemption. ("...[I]t was
understandable that respondent Atty. Paterno R. Canlas did not implement the writ of
execution, instead he contacted petitioner in order that petitioner would sign the
questioned documents. This was the clincher of the plan of respondent Atty, Paterno R.
Canlas to divest petitioner of his properties. For this purpose, it is obvious that respondent
Atty. Paterno R. Canlas had to conspire with the respondent court judge to achieve his
plan." 25) Aside from being plain speculation, it is no argument to justify annulment. Clearly,
it does not amount to extrinsic fraud as the term is defined in law.
Neither is it proper for the extraordinary remedy of certiorari. Certiorari presupposes the
absence of an appeal 26and while there is no appeal from execution of judgment, appeal
lies in case of irregular implementation of the writ. 27 In the case at bar, there is no irregular
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execution to speak of As a rule, "irregular execution" means the failure of the writ to
conform to the decree of the decision executed. 28 In the instant case, respondent
Herrera's charges, to wit, that Judge Castro had erred in denying his motions for temporary
restraining order and to recall writ of possession, or that His Honor had acted hastily (". . .
that respondent court/judge took only one [1) day to resolve petitioner's motion for
issuance of [a] [restraining] order. . ." 29) in denying his twofold motions, do not make out
a case for irregular execution. The orders impugned are conformable to the letter of the
judgment approving the parties'compromise agreement.
The lengths the private respondent, Francisco Herrera, would go to in a last-ditch bid to
hold on to his lands and constraints of economic privation have not been lost on us. It is
obvious that he is uneasy about the judgment on compromise itself, as well as the
subsequent contract between him and his lawyer. In such a case, Article 2038 of the Civil
Code applies:
Art. 2038. A compromise in which there is mistake, fraud, violence
intimidation, undue influence, or falsity of documents, is subject to
the provisions of article 1330 of this Code ...
in relation to Article 1330 thereof:
Art. 1330. A contract where consent is given through mistake,
violence, intimidation, undue influence, or fraud is voidable.
in relation to its provisions on avoidance of'contracts. 30 The court notes that he had, for
this purpose, gone to the Regional Trial Court, a vain effort as we stated, and in which the
decision had become final.
We, however, sustain Atty. Canlas' position-on matters of procedure — for the
enlightenment solely of the bench and the bar. It does not mean that we find merit in his
petition. As we have intimated, we cannot overlook the unseemlier side of the proceeding,
in which a member of the bar would exploit his mastery of procedural law to score a
"technical knockout" over his own client, of all people. Procedural rules, after all, have for
their object assistance unto parties "in obtaining just, speedy, and inexpensive
determination of every action and proceeding." 31 If procedure were to be an impediment
to such an objective, "it deserts its proper office as an aid to justice and becomes its great
hindrance and chief enemy." 32 It was almost eight decades ago that the Court held:
... A litigation is not a game of technicalities in which one, more
deeply schooled and skilled in the subtle art of movement and
position, entraps and destroys the other. It is, rather, a contest in
which each contending party fully and fairly lays before the court the
facts in issue and then, brushing aside as wholly trivial and indecisive
all imperfections of form and technicalities of procedure, asks that
justice be done upon the merits. Lawsuits, unlike duels, are not to be
won by the a rapier's thrust ... 33
It is a ruling that almost eight decades after it was rendered, holds true as ever.
By Atty. Canlas' own account, "due to lack of paying capacity of respondent Herrera, no
financing entity was willing to extend him any loan with which to pay the redemption price
of his mortgaged properties and petitioner's P100,000.00 attorney's fees awarded in the
Compromise Judgment," 34 a development that should have tempered his demand for his
fees. For obvious reasons, he placed his interests over and above those of his client, in
opposition to his oath to "conduct himself as a lawyer ... with all good fidelity ... to [his]
clients." 35 The Court finds the occasion fit to stress that lawyering is not a moneymaking
venture and lawyers are not merchants, a fundamental standard that has, as a matter of
judicial notice, eluded not a few law advocates. The petitioner's efforts partaking of a
shakedown" of his own client are not becoming of a lawyer and certainly, do not speak well
of his fealty to his oath to "delay no man for money." 36
It is true that lawyers are entitled to make a living, in spite of the fact that the practice of
law is not a commercial enterprise; but that does not furnish an excuse for plain lust for
material wealth, more so at the expense of another. Law advocacy, we reiterate, is not
capital that yields profits. The returns it births are simple rewards for a job done or service
rendered. It is a calling that, unlike mercantile pursuits which enjoy a greater deal of
freedom from government interference, is impressed with a public interest, for which it is
subject to State regulation. 37Anent attomey's fees, section 24, of Rule 138, of the Rules,
provides in part as follows:
SEC. 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... A written contract for services shall control the amount to
be paid therefor unless found by the court to be unconscionable or
unreasonable.
So also it is decreed by Article 2208 of the Civil Code, reproduced in part, as follows:
Art. 2208 ...
In all cases, the attorney's fees and expenses of litigation must be
reasonable.
We do not find the petitioner's claim of attorney's fees in the sum of P100,000.00
reasonable. We do not believe that it satisfies the standards set forth by the Rules. The
extent of the services he had rendered in Civil Case No. 30679, and as far as the records
will yield, is not impressive to justify payment of such a gargantuan amount. The case itself
moreover did not involve complex questions of fact or law that would have required
substantial effort as to research or leg work for the petitioner to warrant his demands. The
fact that the properties subject thereof commanded quite handsome prices in the market
should not be a measure of the importance or non-importance of the case. We are not
likewise persuaded that the petitioner's stature warrants the sum claimed.
All things considered, we reduce the petitioner's fees, on a quantum meruit basis, to
P20,000.00.
It is futile to invoke the rule granting attorneys a lien upon the things won in litigation
similar to that vested upon redemptioners. 38 To begin with, the rule refers to realty sold
as a result of execution in satisfaction of judgment. In this case, however, redemption was
decreed by agreement (on compromise) between the mortgagor and mortgagee. It did not
give the petitioner any right to the properties themselves, much less the right of
redemption, although provisions for his compensation were purportedly provided. It did
not make him a redemptioner for the plain reason that he was not named one in the
amicable settlement. To this extent, we reverse Judge Pedro Santiago's ruling in Civil Case
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No. 40066, recognizing Atty. Canlas' "legal right, independent of the questioned deed of
sale and transfer which was executed subsequently on May 3, 1983, to redeem the subject
realty from the L & R Corporation pursuant to Sec. 29 (b), Rule 39 of the Rules of
Court." 39 Whatever right he had, it was, arguably with respect alone to his renumeration.
It did not extend to the lands.
Secondly, and assuming that such a right exists, it must be in proportion to the
"just fees and disbursements" 40due him. It is still subject to the tempering hand of this
Court.
The Court notes a hidden agenda in the petitioner's haste to execute the compromise
agreement and subsequently, to force the transfer of the properties to himself. As we have
observed, in spite of the issuance of the writ of execution, it does not appear that the
petitioner took pains to implement it. We find this perplexing given his passionate and
persistent pleas that he was entitled to the proceeds. There can indeed be no plausible
explanation other than to enable him to keep an "ace" against the private respondent that
led finally, to the conveyance of the properties in his favor. To be sure, he would have us
beheve that by redeeming the same from the mortgagee and by in fact parting with his
own money he had actually done the private respondent a favor, but this is to assume that
he did not get anything out of the transaction. Indeed, he himself admits that "[t]itles to
the properties have been issued to the new owners long before the filing of private
respondents [sic] petition for annulment." 41 To say that he did not profit therefrom is to
take either this Court or the petitioner for naive, a proposition this Court is not prepared
to accept under the circumstances.
We are likewise convinced that it was the petitioner who succeeded in having the private
respondent sign the "Deed of Sale and Transfer of Rights of Equity of Redemption and/or
to Redeem," a pre-prepared document apparently, that allowed him (the petitioner) to
exercise the right of redemption over the properties and to all intents and purposes,
acquire ownership thereof. As we have earlier averred, the private respondent, by reason
of bankruptcy, had become an easy quarry to his counsel's moral influence and
ascendancy. We are hard put to believe that it was the private respondent who "earnestly
implored" 42 him to undertake the redemption amid the former's obstinate attempts to
keep his lands that have indeed led to the multiple suits the petitioner now complains of,
apart from the fact that the latter himself had something to gain from the transaction, as
alluded to above. We are of the opinion that in ceding his right of redemption, the private
respondent had intended merely to forestall the total loss of the parcels to the mortgagee
upon the understanding that his counsel shall acquire the same and keep them therefore
within reach, subject to redemption by his client under easier terms and conditions. Surely,
the petitioner himself would maintain that he agreed to make the redemption"in order
that [he] may already be paid the P100,000.00 attorney's fees awarded him in the
Compromise Agreement," 43 and if his sole concern was his fees, there was no point in
keeping the properties in their entirety.
The Court simply cannot fag for the petitioner's pretensions that he acquired the
properties as a gesture of magnanimity and altruism He denies, of course, having made
money from it, but what he cannot dispute is the fact that he did resell the properties. 44
But if he did not entertain intents of making any profit, why was it necessary to reword the
conveyance document executed by the private respondent? It shall be recalled that the
deed, as originally drafted, provided for conveyance of the private respondent's "rights of
equity of redemption and/or redeem" 45 the properties in his favor, whereas the
instrument registered with the Register of Deeds purported to transfer "any and all my
rights of the real properties and/or to redeem," 46 in his favor. He admits having entered
the intercalations in question but argues that he did so "to facilitate the registration of the
questioned deed with the Register of Deeds" 47 and that it did not change the meaning of
the paper, for which Judge Santiago acquitted him of any falsification charges. 48 To start
with, the Court is at a loss how such an alteration could "facilitate" registration. Moreover,
if it did not change the tenor of the deed, why was it necessary then? And why did he not
inform his client? At any rate, the agreement is clearly a contract of adhesion. Its provisions
should be read against the party who prepared it.
But while we cannot hold the petitioner liable for falsification — this is not the proper
occasion for it — we condemn him nonetheless for infidelity to his oath "to do no
falsehood" 49
This brings us to the final question: Whether or not the conveyance in favor of the
petitioner is subject to the ban on acquisition by attorneys of things in litigation. The
pertinent provisions of the Civil Code state as follows:
Art. 1491. The following persons cannot acquire by purchase, even at
a public or judicial action, either in person or through the mediation
of another:
(1) The guardian, the property of the person or persons who may be
under his guardianship;
(2) Agents, the property whose administration or sale may have been
intrusted to them, unless the consent of the principal have been
given;
(3) Executors and administrators, the property of the estate under
administration;
(4) Public officers and employees, the property of the State or of any
subdivision thereof, or of any government owned or controlled
corporation, or institution, the administration of which has been
instrusted to them; this provision shall apply to judges and
government experts who, in any manner whatsoever, take part in the
sale;
(5) Justice judges prosecuting attorneys clerks of superior and inferior
courts, and other officers and employees connected with the
administration of justice, the property and rights in litigation or levied
upon an execution before the court within whose jurisdiction or
territory they exercise their respective functions; this prohibition
includes the act of acquiring by assignment and shall apply to lawyers,
with respect to the property and rights which may be the object of any
litigation in which they may take part by virtue of their profession.
(6) Any others specially disqualified by law.**
In Rubias v. Batiller, 50 we declared such contracts to be void by force of Article 1409,
paragraph (7), of the Civil Code, defining inexistent contracts. In Director of Lands v.
Ababa51 however, we said that the prohibition does not apply to contingent contracts, in
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which the conveyance takes place after judgment, so that the property can no longer be Let the Court further say that while its business is to settle actual controversies and as a
said to be "subject of litigation." matter of general policy, to leave alone moot ones, its mission is, first and foremost, to
In the instant case, the Court observes that the "Deed of Sale and Transfer of Rights of dispense justice. At the outset, we have made clear that from a technical vantage point,
Equity of Redemption and/or to Redeem" was executed following the finality of the certiorari, arguably lies, but as we have likewise stated, the resolution of the case rests not
decision approving the compromise agreement. It is actually a new contract — not one in only on the mandate of technical rules, but if the decision is to have any real meaning, on
pursuance of what had been agreed upon on compromise — in which, as we said, the the merits too. This is not the first time we would have done so; in many cases we have
petitioner purportedly assumed redemption rights over the disputed properties (but in eschewed the rigidity of the Rules of Court if it would establish a barrier upon the
reality, acquired absolute ownership thereof). By virtue of such a subsequent agreement, administration ofjustice. It is especially so in the case at bar, in which no end to suit and
the lands had ceased to be properties which are "the object of any litigation." counter-suit appears imminent and for which it is high time that we have the final say. We
Parenthetically, the Court states that a writ of possession is improper to eject another from likewise cannot, as the overseer of good conduct in both the bench and the bar, let go
possession unless sought in connection with: (1) a land registration proceeding; (2) an unpunished what convinces us as serious indiscretions on the part of a lawyer.
extrajudicial foreclosure of mortgage of real property; (3) in a judicial foreclosure of WHEREFORE, judgment is hereby rendered.
property provided that the mortgagor has possession and no third party has intervened; 1. ORDERING the petitioner, Atty. Patemo Canlas, to pay to the private respondent,
and (4) in execution sales. 52 It is noteworthy that in this case, the petitioner moved for the Francisco Herrera, the sum of P326,000.00, as and for damages;
issuance of the writ pursuant to the deed of sale between him and the private respondent 2. ORDERING the petitioner to SHOW CAUSE why no disciplinary action may be imposed
and not the judgment on compromise. (He was, as we said, issued a writ of execution on on him for violation of his oath, as a lawyer, within ten (10) days from notice, after which
the compromise agreement but as we likewise observed, he did not have the same the same will be consolidated with AC No. 2625;
enforced. The sale agreement between the parties, it should be noted, superseded the 3. DISMISSING this petition and REMANDING the case to the respondent Court of Appeals
compromise.) The writ does not lie in such a case. His remedy is specific performance. for execution; and
At any rate, the transfer, so we hold, is not subject to the injunction of Article 1491 of the 4. ORDERING the petitioner to pay costs.
Civil Code. But like all voidable contracts, it is open to annulment on the ground of mistake, SO ORDERED.
fraud, or undue influence, 53 which is in turn subject to the right of innocent purchasers for
value. 54
For this reason, we invalidate the transfer in question specifically for undue influence as
earlier detailed. While the respondent Herrera has not specifically prayed for invalidation,
this is the clear tenor of his petition for annulment in the Appellate Court. It appearing,
however, that the properties have been conveyed to third persons whom we presume to
be innocent purchasers for value, the petitioner, Atty. Paterno Canlas, must be held liable,
by way of actual damages, for such a loss of properties.
We are not, however, condoning the private respondent's own shortcomings. In
condemning Atty. Canlas monetarily, we cannot overlook the fact that the private
respondent has not settled his hability for payment of the properties. To hold Atty. Canlas
alone liable for damages is to enrich said respondent at the expense of his lawyer. The
parties must then set off their obligations against the other. To obviate debate as the actual
amounts owing by one to the other, we hold Francisco Herrera, the private respondent,
liable to Atty. Paterno Canlas, the petitioner, in the sum of P654,000.00 representing the
redemption price of the properties, 55 in addition to the sum of P20,000. 00 as and for
attomey's fees. We order Atty. Canlas, in turn, to pay the respondent Herrera the amount
of P1,000,000.00, the sum he earned from the resale thereof, 56 such that he shall, after
proper adjustments, be indebted to his client in the sum of P326,000.00 as and for
damages.
Needless to say, we sustain the action of the respondent Court of Appeals in taking
cognizance of the petition below. But as we have stated, we are compelled, as the final
arbiter of justiciable cases and in the highest interests ofjustice, to write finis to the
controversy that has taxed considerably the dockets of the inferior courts.

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In re VICENTE SOTTO, for contempt of court.
Vicente Sotto in his own behalf.
This is a proceeding for contempt of our court against the respondent Atty. Vicente
Sotto, who was required by their Court on December 7, 1948, to show cause why he
should not be punished for contempt to court for having issued a written statement
in connection with the decision of this Court in In re Angel Parazo for contempt of
court, which statement, as published in the Manila Times and other daily newspapers
of the locality, reads as follows:
As author of the Press Freedom Law (Republic Act No. 53.) interpreted by
the Supreme Court in the case of Angel Parazo, reporter of a local daily, who
now has to suffer 30 days imprisonment, for his refusal to divulge the
source of a news published in his paper, I regret to say that our High
Tribunal has not only erroneously interpreted said law, but that it is once
more putting in evidence the incompetency of narrow mindedness o the
majority of its members, In the wake of so many mindedness of the majority
deliberately committed during these last years, I believe that the only
remedy to put an end to so much evil, is to change the members of the
Supreme Court. To his effect, I announce that one of the first measures,
which as its objects the complete reorganization of the Supreme Court. As
it is now constituted, a constant peril to liberty and democracy. It need be
said loudly, very loudly, so that even the deaf may hear: the Supreme Court
very of today is a far cry from the impregnable bulwark of Justice of those
memorable times of Cayetano Arellano, Victorino Mapa, Manuel Araullo
and other learned jurists who were the honor and glory of the Philippine
Judiciary.
Upon his request, the respondent was granted ten days more besides the five
originally given him to file his answer, and although his answer was filed after the
expiration of the period of time given him the said answer was admitted. This Court
could have rendered a judgment for contempt after considering his answer, because
he does not deny the authenticity of the statement as it has been published. But, in
order to give the respondent ample opportunity to defend himself or justify the
publication of such libelous statement, the case was set for hearing or oral argument
on January 4, the hearing being later postponed to January 10, 1949. As the
respondent did not appear at the date set for hearing, the case was submitted for
decision.
In his answer, the respondent does not deny having published the above quoted
threat, and intimidation as well as false and calumnious charges against this Supreme
Court. But he therein contends that under section 13, Article VIII of the Constitution,
which confers upon this Supreme Court the power to promulgate rules concerning
pleading, practice, and procedure, "this Court has no power to impose correctional
penalties upon the citizens, and that the Supreme Court can only impose fines and
imprisonment by virtue of a law, and has to be promulgated by Congress with the
approval of the Chief Executive." And he also alleges in his answer that "in the exercise
of the freedom of speech guaranteed by the Constitution, the respondent made his
statement in the press with the utmost good faith and with no intention of offending
any of the majority of the honorable members of this high Tribunal, who, in his
opinion, erroneously decided the Parazo case; but he has not attacked, or intended
to attack the honesty or integrity of any one.' The other arguments set forth by the
respondent in his defenses observe no consideration.
Rules 64 of the rules promulgated by this court does not punish as for contempt of
court an act which was not punishable as such under the law and the inherent powers
of the court to punish for contempt. The provisions of section 1 and 3 of said Rule 64
are a mere reproduction of section 231 and 232 of the old Code of Civil Procedure,
Act No. 190, amended, in connection with the doctrine laid down by this Court on the
inherent power if the superior courts to punish for contempt is several cases, among
them In re Kelly, 35 Phil., 944. That the power to punish for contempt is inherent in
all courts of superior statue, is a doctrine or principle uniformly accepted and applied
by the courts of last resort in the United States, which is applicable in this jurisdiction
since our Constitution and courts of justice are patterned as expounded in American
Jurisprudence is as follows:
The power of inflicting punishment upon persons guilty of contempt of
court may be regarded as an essential element of judicial authority, IT is
possessed as a part of the judicial authority granted to courts created by
the Constitution of the United States or by the Constitutions of the several
states. It is a power said to be inherent in all courts general jurisdiction,
whether they are State or Federal; such power exists in courts of general
jurisdiction independently of any special express grant of statute. In many
instances the right of certain courts of tribunals to punish for contempt is
expressly bestowed by statue, but such statutory authorization is
unnecessary, so far as the courts of general jurisdiction are concerned, and
in general adds nothing statutory authority may be necessary as concerns
the inferior courts statutory authority may be necessary to empower them
to act. (Contempt, 12 Jur., pp. 418, 419.)
In conformity with the principle enunciated in the above quotation from American
Jurisprudence, this Court, in In re Kelly, held the following:
The publication of a criticism of a party or of the court to a pending cause,
respecting the same, has always been considered as misbehavior, tending
to obstruct the administration of justice, and subjects such persons to
contempt proceedings. Parties have a constitutional right to have their
fairly in court, by an impartial tribunal, uninfluenced by publications or
public clamor. Every citizen has a profound personal interest in the
enforcement of the fundamental right to have justice administered by the
courts, under the protection and forms of law, free from outside coercion
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Legal Ethics
or interference. Any publication, pending a suit, reflecting upon the upon
court, the parties, the officers of the court, the counsel, etc., with reference
to the suit, or tending to influence the decision of the controversy, is
contempt of court and is punishable. The power to punish for contempt is
inherent in all court. The summary power to commit and punish for
contempt tending to obstructed or degrade the administration of justice,
as inherent in courts as essential to the execution of their powers and to
the maintenance of their authority is a part of the law of the land. (In reKelly,
35 Phil., 944, 945.)
Mere criticism or comment on the correctness or wrongness, soundness or
unsoundness of the decision of the court in a pending case made in good faith may
be tolerated; because if well founded it may enlighten the court and contribute to the
correction of an error if committed; but if it is not well taken and obviously erroneous,
it should, in no way, influence the court in reversing or modifying its decision. Had the
respondent in the present case limited himself to as statement that our decision is
wrong or that our construction of the intention of the law is not correct, because it is
different from what he, as proponent of the original bill which became a law had
intended, his criticism might in that case be tolerated, for it could not in any way
influence the final disposition of the Parazo case by the court; inasmuch as it is of
judicial notice that the bill presented by the respondent was amended by both Houses
of Congress, and the clause "unless the court finds that such revelation is demanded
by the interest of the State" was added or inserted; and that, as the Act was passed
by Congress and not by any particular member thereof, the intention of Congress and
not that of the respondent must be the one to be determined by this Court in applying
said act.
But in the above-quoted written statement which he caused to be published in the
press, the respondent does not merely criticize or comment on the decision of the
Parazo case, which was then and still is pending reconsideration by this Court upon
petition of Angel Parazo. He not only intends to intimidate the members of this Court
with the presentation of a bill in the next Congress, of which he is one of the members,
reorganizing the Supreme Court and reducing the members, reorganizing the
Supreme Court and reducing the members of Justices from eleven to seven, so as to
change the members of this Court which decided the Parazo case, who according to
his statement, are incompetent and narrow minded, in order to influence the final
decision of said case by this Court, and thus embarrass or obstruct the administration
of justice. But the respondent also attacks the honesty and integrity of this Court for
the apparent purpose of bringing the Justices of this Court into disrepute and
degrading the administration of justice, for in his above-quoted statement he says:
In the wake of so many blunders and injustices deliberately committed
during these last years, I believe that the only remedy to put an end to so
much evil, is to change the members of the Supreme Court. To this effect, I
announce that one of the first measures, which I will introduce in the
coming congressional sessions, will have as its object the complete
reorganization of the Supreme Court. As it is now the Supreme Court of
today constitutes a constant peril to liberty and democracy.
To hurl the false charge that this Court has been for the last years committing
deliberately "so many blunders and injustices," that is to say, that it has been deciding
in favor of one party knowing that the law and justice is on the part of the adverse
party and not on the one in whose favor the decision was rendered, in many cases
decided during the last years, would tend necessarily to undermine the confidence of
the people in the honesty and integrity of the members of this Court, and
consequently to lower or degrade the administration of justice by this Court. The
Supreme Court of the Philippines is, under the Constitution, the last bulwark to which
the Filipino people may repair to obtain relief for their grievances or protection of
their rights when these are trampled upon, and if the people lose their confidence in
the honesty and integrity of the members of this Court and believe that they cannot
expect justice therefrom, they might be driven to take the law into their own hands,
and disorder and perhaps chaos might be the result. As a member of the bar and an
officer of the courts Atty. Vicente Sotto, like any other, is in duty bound to uphold the
dignity and authority of this Court, to which he owes fidelity according to the oath he
has taken as such attorney, and not to promote distrust in the administration of
justice. Respect to the courts guarantees the stability of other institutions, which
without such guaranty would be resting on a very shaky foundation.
Respondent's assertion in his answer that "he made his statement in the press with
the utmost good faith and without intention of offending any of the majority of the
honorable members of this high Tribunal," if true may mitigate but not exempt him
from liability for contempt of court; but it is belied by his acts and statements during
the pendency of this proceeding. The respondent in his petition of December 11,
alleges that Justice Gregorio Perfecto is the principal promoter of this proceeding for
contempt, conveying thereby the idea that this Court acted in the case through the
instigation of Mr. Justice Perfecto.
It is true that the constitutional guaranty of freedom of speech and the press must be
protected to its fullest extent, but license or abuse of liberty of the press and of the
citizen should not be confused with liberty in its true sense. As important as the
maintenance of an unmuzzled press and the free exercise of the right of the citizen,
is the maintenance of the independence of the judiciary. As Judge Holmes very
appropriately said U. S vs Sullens (1929), 36 Fed. (2nd), 230, 238, 239: "The
administration of justice and the freedom of the press, though separate and distinct,
are equally sacred, and neither should be violated by the other. The press and the
courts have correlative rights and duties and should cooperate to uphold the
principles of the Constitution and laws, from which the former receives its
prerogatives and the latter its jurisdiction. The right of legitimate publicity must be
scrupulously recognized and care taken at all times to avoid impinging upon it. In a
clear case where it is necessary, in order to dispose of judicial business unhampered
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by publications which reasonably tend to impair the impartiality of verdicts, or

otherwise obstruct the administration of justice, this court will not hesitate to exercise
its undoubted power to punish for contempt. This Court must be permitted to
proceed with the disposition if its business in an orderly manner free from outside
interference obstructive of its constitutional functions. This right will be insisted upon
as vital to an impartial court, and, as a last resort, as a individual exercises the right of
self-defense, it will act to preserve its existence as an unprejudiced tribunal. . . ."
It is also well settled that an attorney as an officer of the court is under special
obligation to be respectful in his conduct and communication to the courts, he may
be removed from office or stricken from the roll of attorneys as being guilty of flagrant
misconduct (17 L. R. A. [N.S.], 586, 594).
In view of all the foregoing, we find the respondent Atty. Vicente Sotto guilty of
contempt of this Court by virtue of the above-quoted publication, and he is hereby
sentenced to pay, within the period of fifteen days from the promulgation of this
judgment, a fine of P1,000, with subsidiary imprisonment in case of insolvency.
The respondent is also hereby required to appear, within the same period, and show
cause to this Court why he should not be disbarred form practicing as an attorney-at-
law in any of the courts of this Republic, for said publication and the following
statements made by him during the pendency of the case against Angel Parazo for
contempt of Court.
In his statement to the press as published in the Manila Times in its issue of December
9, 1948, the respondent said "The Supreme Court can send me to jail, but it cannot
close my mouth; " and in his other statement published on December 10, 1948, in the
same paper, he stated among others: "It is not the imprisonment that is degrading,
but the cause of the imprisonment." In his Rizal day speech at the Abellana High
School in Cebu, published on January 3, 1949, in the Manila Daily Bulletin, the
respondent said that "there was more freedom of speech when American Justices sat
in the Tribunal than now when it is composed of our countrymen;" reiterated that
"even if it succeeds in placing him behind bars, the court can not close his mouth,"
and added: "I would consider imprisonment a precious heritage to leave for those
who would follow me because the cause is noble and lofty." And the Manila
Chronicle of January 5 published the statement of the respondent in Cebu to the
effect that this Court "acted with malice" in citing him to appear before this Court on
January 4 when "the members of this Court know that I came here on vacation." In all
said statements the respondent misrepresents to the public the cause of the charge
against him for contempt of court. He says that the cause is for criticizing the decision
of this Court in said Parazo case in defense of the freedom of the press, when in truth
and in fact he is charged with intending to interfere and influence the final disposition
of said case through intimidation and false accusations against this Supreme Court.
So ordered.

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THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LIBERATO GAGUI, ET AL., defendants.
EUSEBIO V. NAVARRO, respondent.
On November 8, 1957, when Criminal Case No. 2193 of the Court of First Instance of
Pampanga was called for trial, Atty. Eusebio V. Navarro, counsel of record for one of
the accused, failed to appear and forthwith the court issued an order, which is
quoted verbatim as follows:
By virtue of the order dated October 8, 1957, the assignment of this case
was set for today, November 8, 1957. Present were Fiscal Pedro S. David
and counsel, Mr. Ahmed Garcia, for the accused Arsenio Mangila.
Attached to the record is an urgent motion for postponement filed by Mr.
Eusebio Navarro, counsel for the other accused Liberato Gagui, alleging that
he cannot attend to this case, as he is engaged in a civil case in the Court of
First Instance of Camarines Sur.
The record clearly shows that when the trial was set for November 8, 1957,
it was done in open court and after consultation with Mr. Navarro. As a
matter of fact, the court ordered the detail of a Tagalog interpreter. The
said interpreter is also present.
The reasons given by Mr. Navarro are not satisfactory. Mr. Navarro is fully
aware of the fact that this case has been pending for a considerable length
of time. He should have, therefore, given priority to this case.
IN VIEW OF THE FOREGOING, the Court hereby imposes a fine of P100.00
upon Mr. Navarro for delaying this criminal case. The court announces in
advance that it will not reconsider this order.
Reset the trial on January 7, 1958, at 9:00 o'clock in the morning.
Let a copy of this order be served upon the Department of Justice for the
detail again of the Tagalog interpreter on the said date.
In another order issued on November 16, 1957, the above quoted order was
amended by providing in the dispositive part thereof that "in the event that Mr.
Navarro fails to pay the fine of P100.00 he shall suffer a subsidiary imprisonment not
to exceed five (5) days." Subsequently, on December 2, 1957, the lower court issued
still another order warning Atty. Navarro "that if he fails to pay the said fine on or
before December 14, 1957, the court will order his arrest and confinement."
From the three orders above referred to, Atty. Eusebio V. Navarro has interposed the
present appeal.
It would appear that for the absence from court of the appellant Atty. Navarro when
Criminal Case No. 2193, in which he was counsel of record for one of the accused,
was called for trial, the lower court summarily adjudged him guilty of direct contempt
and sentenced him to pay a fine under penalty of imprisonment if he fails to do so
within a given period.
In our opinion, the contempt supposed to have been committed by appellant is not a
direct contempt so as to be summarily punishable under section 1 of Rule 64, for it is
not a misbehavior in the presence of or so near a court or judge as to interrupt the
administration of justice. If any contempt occurred he failure of said appellant to
appear for trial under the circumstances mentioned in the order of November 8, 1957
complained of, it would be an indirect contempt, punishable only after written charge
and hearing, under section 3 of the same Rule 64, paragraph (b) of which mentions
"disobedience of or resistance to a lawful writ, process, order, judgment, or command
of a court, or injunction granted by a court or judge." As held in the case of Rivera vs.
Arellano (83 Phil. 744) —
. . . failure or refusal of an accused or of his attorney to appear from trial
comes closer to the definition of indirect contempt in paragraph (b) of
section 3 (Rule 64) than to a misbehavior in the presence of or near the
court contemplated in Section 1.
In State vs. Winthrop, 148 Wash., 526 P. 793; 59 A.L.R. 1265, it was held
that the unexcused absence of an attorney from the court when a case in
which he was attorney of record for one of the parties was called for trial is
not a contempt occurring in the presence or view of the court, so as to be
summarily punishable, but contempt therein, if any occurred, away from,
and out of, the presence of the court, and he is not subject to discipline and
punishment, other than by a charge being first made against him
substantially as required by statute.' (Footnote, 12 Am. Jur. Sec. 11, p. 396).
In Finnick vs. Peterson, 6 Phil. 172, this Court said: 'A witness who fails or
refuses to comply with a subpoena duces tecum is guilty of contempt. Such
contempt is not committed in the presence of the court, even though, upon
appearance of the witness, the court should make a verbal order
commanding him to comply with the terms of the subpoena. Such a witness
can not be punished summarily. He is entitled to the hearing provided for
under sections 232-240 of the Code of Procedure in Civil Actions. (See also
Francisco vs. Enriquez, G. R. No. L-7058, March 20, 1954.) .
It clearly appearing that no charge in writing for contempt has been filed against
herein appellant, nor An opportunity given to him to be heard by himself or counsel,
Are find and so hold that the lower court acted in excess if not in grave abuse, of its
jurisdiction in proceeding against and declaring said appellant guilty of contempt.
(See. 3, Rule 64; Nava vs. Teodoro, et al., G.R. No. L-10074, April 30, 1959).
Having arrived at the above conclusion, we deem it unnecessary to pass upon the
other questions raised by appellant.
WHEREFORE, the orders complained of are hereby set aside. So ordered without
costs.
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Legal Ethics
SPS. APOLINARIO MELO and LILIA T. MELO, and JULIA BARRETO, petitioners,
vs.
THE HON. COURT OF APPEALS and ARSENIA CORONEL, respondents.
This is a petition for review on certiorari of the resolution 1 of the Court of Appeals, dated
January 2, 1996, affirming the denial by the Regional Trial Court, Branch 57, Angeles City,
of the motion to dismiss filed by petitioners spouses Apolinario and Lilia Melo and Julia
Barreto.
The facts are not disputed:
Private respondent Arsenia Coronel mortgaged to the Rural Bank of Mabalacat, Inc. a
parcel of land in Angeles City, covered by T.C.T. No. 43872, to secure a loan of P60,000.00.
Because of her failure to pay the loan, the bank caused the extra-judicial foreclosure of the
mortgage pursuant to Act. No. 3135, as amended by Act No. 4118, as a result of which the
land was sold to petitioners as the highest bidders. Petitioners then filed a Petition for
the Ex-Parte Issuance of a Writ of Possession with the Regional Trial Court, Branch 60,
Angeles City. 2
To counter the petition, private respondent filed, on June 8, 1995, a complaint for
injunction against petitioners in the Regional Trial Court, Branch 57, Angeles City. In turn,
petitioners moved to dismiss private respondent's action on the following grounds: (1) litis
pendentia; (2) forum shopping; and (3) failure of private respondent to attach a
certification of non-forum shopping to her complaint. 3
On July 3, 1995, private respondent amended her complaint by including the certification
of non-forum shopping which stated: 4
AMENDED VERIFICATION/CERTIFICATION
I, ARSENIA CORONEL, being duly sworn in accordance with law do
hereby declare and depose:
1. That I am the plaintiff in Civil Case No. 8022 filed before Branch 57
of the Regional Trial Court of Angeles City;
2. That I caused the foregoing complaint to be prepared and have
read and understood the allegations thereof;
3. That said allegations are true and correct of my own personal
knowledge;
4. That I have not commenced any other complaint/petition involving
the same issues similar to the instant complaint;
5. That to the best of my knowledge or belief, there is no other
complaint/petition filed involving the same issues at bar;
6. That there is, however, a Petition for Issuance of Writ of Possession
filed against me by the defendants herein docketed as Cad. Case No.
A-124-694 before Branch 60 of the Regional Trial Court, Angeles City;
7. That I execute this affidavit to attest to the truth of the foregoing.
FURTHER AFFIANT SAYETH NONE.
(SGD. ARSENIA CORONEL)
On August 7, 1995, the trial court denied petitioners' motion to dismiss explaining —
A reading of the complaint shows that the plaintiff, in order to
exercise her right of redemption, seeks to prevent the defendants
and the Register of Deeds of Angeles City from doing something.
Paragraph 14 of the complaint reads as follows:
14. That defendants are about to consolidate
the ownership of the plaintiff's property (T.C.T.
No. 43872 of the Register of Deeds of Angeles
City) in their names and register the said
consolidation of ownership with the Register of
Deeds of Angeles City, upon the expiry date of
the redemption period (June 9, 1995); the
desire and willingness of the plaintiff to exercise
her right of redemption notwithstanding.
It only avers that she has a right to redeem the property and that she
is entitled to the reliefs prayed for, such as the issuance of a
permanent injunction. Furthermore, the complaint states a sufficient
cause of action which is set out in its paragraph 4 to 6, inclusive, that
is, the right to redeem the property and to prevent the defendant-
spouses Apolinario Melo and Lilia T. Melo and defendant Julio Barreto
to consolidate their ownership over the property.
xxx xxx xxx
On Forum Shopping:
In the case at bar, there is no forum shopping. There is forum
shopping whenever, as a result of an adverse opinion in one forum, a
party seeks a favorable opinion (other than by appeal or certiorari) in
another, and the principle applies not only with respect to suits filed
in the courts while an administrative proceeding is pending, in order
to defeat administrative processes and in anticipation of an
unfavorable administrative ruling and a favorable court ruling.
The petition for the issuance of a writ of possession and the present
case, as heretofore stated, are oceans apart, so to speak. Thus, even
if a writ of possession is issued, this will not prevent the plaintiff from
exercising her right to redeem the property, if warranted. And it may
be added that an indemnity bond is required to be posted in order
that possession may then be obtained under a writ which may be
applied for ex-parte, pursuant to Section 7 of Act 3135 as amended
by Act 116.
Plaintiff, in compliance with Circular No. 28-91 and Section 17 of the
Interim Rules and Guidelines, submitted an Amended
Verification/Certification.
On certiorari brought by petitioners, the Court of Appeals upheld the trial court's order. It
ruled:
What happened in this case was totally different since the ex-
parte petition for the issuance of a writ of possession was filed by the
petitioners against private respondent. On the other hand, the
complaint with preliminary injunction was filed by the private
respondent against herein petitioners. It is not a case, therefore, of
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Legal Ethics
the private respondent instituting two (2) remedies in two (2)
different fora. Her case entailed only one (1) forum, to be precise,
with the RTC, Branch 57.
Hence, this petition for review on certiorari, raising the following issues: (1) whether
private respondent is guilty of forum shopping by filing her complaint with preliminary
injunction before the Regional Trial Court, Branch 57, Angeles City when there was a
Petition for Ex-Parte Issuance of Writ of Possession pending before Branch 60 of the same
court; and (2) whether there was substantial compliance by private respondent with the
rule requiring the submission of a certification of non-forum shopping together with
initiatory pleadings.
We shall deal with these issues seriatim.
To begin with, the essence of forum-shopping is the filing of multiple suits involving the
same parties for the same cause of action, either simultaneously or successively, for the
purpose of obtaining a favorable judgment. 5 It exists where the elements of litis
pendentia are present or where a final judgment in one case will amount to res judicata in
another. 6 On the other hand, for litis pendentia to be a ground for the dismissal of an
action, the following requisites must concur: (a) identity of parties, or at least such parties
who represent the same interests in both actions; (b) identity of rights asserted and relief
prayed for, the relief being founded on the same facts; and (c) the identity with respect to
the two preceding particulars in the two cases is such that any judgment that may be
rendered in the pending case, regardless of which party is successful, would amount to res
judicata in the other case. 7
But, in the instant case, the petition for the Ex-Parte Issuance of a Writ of Possession which
petitioners filed involved a different cause of action from the complaint for injunction filed
by private respondent. Petitioners sought possession of the subject property, whereas
private respondent sought to enjoin them from consolidating title over the same.
Petitioners' action is founded on Act No. 3135, §7, which gives the purchaser at a public
auction the right to have possession of the property sold to him during the redemption
period even if eventually they do not succeed in consolidating their title to it. On the other
hand, private respondents' action is based on R.A. No. 337, §78, which gives a mortgagor
the right to redeem the property sold at foreclosure sale within one year thereof. Thus,
private respondent could very well oppose petitioners' action to obtain possession of the
property while trying to prevent them from consolidating title in a separate case. The
decision in one is not conclusive of the other.
Nonetheless, petitioners contend that private respondent failed to comply with the
requirements of Administrative Circular No. 09-94 on non-forum shopping and, therefore,
her complaint should have been dismissed by the trial court. We find this contention to be
well taken.
Administrative Circular No. 09-94 states in pertinent parts:
The plaintiff, petitioner, applicant or principal party seeking relief in
the complaint, petition, application or other initiatory pleadings shall
certify under oath in such original pleadings, or in a sworn
certification annexed thereto and simultaneously filed therewith, to
the truth of the following facts and undertakings: (a) he has not
heretofore commenced any other action or proceeding involving the
same issues in the Supreme Court, the Court of Appeals, or any other
tribunal or agency; (b) to the best of his knowledge, no such action or
proceeding is pending in the Supreme Court, the Court of Appeals, or
any other tribunal or agency; (c) if there is any such action or
proceeding which is either pending or may have been terminated, he
must state the status thereof; and, (d) if he should thereafter learn
that a similar action or proceeding has been filed or is pending before
the Supreme Court, the Court of Appeals or any other tribunal or
agency, he undertakes to report that fact within five (5) days
therefrom to the court or agency wherein the original pleading and
sworn certification contemplated herein have been filed.
xxx xxx xxx
Any violation of this Circular shall be cause for the dismissal of the
complaint, petition, application or other initiatory pleading, upon
motion and after hearing. However, any clearly willful and deliberate
forum shopping by any party and his counsel through the filing of
multiple complaints or other initiatory pleadings to obtain favorable
action shall be a ground for summary dismissal thereof and shall
constitute direct contempt of court. Furthermore, the submission of
a false certification or non-compliance with the undertakings therein,
as provided in Paragraph 1 hereof, shall constitute indirect contempt
of court, without prejudice to disciplinary proceedings against the
counsel and the filing of a criminal action against the guilty party.
The requirement to file a certificate of non-forum shopping is
mandatory. 8 Failure to comply with this requirement cannot be excused by the fact that
plaintiff is not guilty of forum shopping. The Court of Appeals, therefore, erred in
concluding that Administrative Circular No. 04-94 did not apply to private respondent's
case merely because her complaint was not based on petitioner's cause of action. The
Circular applies to any complaint, petition, application, or other initiatory pleading,
regardless of whether the party filing it has actually committed forum shopping. Every
party filing a complaint or any other initiatory pleading is required to swear under oath
that he has not committed nor will he commit forum shopping. Otherwise, we would have
an absurd situation where the parties themselves would be the judge of whether their
actions constitute a violation of said Circular, and compliance therewith would depend on
their belief that they might or might not have violated the requirement. Such
interpretation of the requirement would defeat the very purpose of Circular 04-94.
Indeed, compliance with the certification against forum shopping is separate from, and
independent of, the avoidance of forum shopping itself. Thus, there is a difference in the
treatment — in terms of imposable sanctions — between failure to comply with the
certification requirement and violation of the prohibition against forum shopping. The
former is merely a cause for the dismissal, without prejudice, of the complaint or initiatory
pleading, while the latter is a ground for summary dismissal thereof and constitutes direct
contempt.
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Legal Ethics
Nor can subsequent compliance with the requirement excuse a party's failure to comply in
the first instance. As Justice Regalado explains in his works on the Revised Rules of Civil
Procedure:
1. This section, with modifications, is taken from Administrative
Circular No. 04-94 issued by the Supreme Court on February 8, 1994
for this purpose explained therein:
Revised Circular No. 28-91, dated February 8, 1994 applies to and
governs the filing of petitions in the Supreme Court and the Court of
Appeals and is intended to prevent the multiple filing of petitions or
complaints involving the same issues in other tribunals or agencies as
a form of forum shopping.
Complementary thereto and for the same purpose, the following
requirements, in addition to those in pertinent provisions of the Rules
of Court and existing circulars, shall be strictly complied with in the
filing of complaints, petitions, applications or other initiatory
pleadings in all courts and agencies other than the Supreme Court
and the Court of Appeals and shall be subject to the sanctions
provided hereunder.
The provisions of Revised Circular No. 28-91 have been adopted and
incorporated in Rules 42, 43, 45, 46, 47, 64 and 65.
2. Aside from some amendments to the original sanctions imposed in
Administrative Circular 04-94, this section reiterates as a regular
requirement under the Rules that the certification against forum
shopping may be incorporated in the complaint or contained in a
sworn certification annexed thereto and simultaneously filed
therewith. This enunciates the policy of the Supreme Court expressed
as early as Circular No. 1-88 that subsequent compliance with the
requirements for the filing of petitions or motions is not a ground for
reconsideration of the dismissal of said pleadings, except for
compelling reasons. In light hereof, the view that belated filing of the
certification may be deemed a substantial compliance should no
longer be sustained.
With respect to the contents of the certification which the pleader
may prepare, the rule of substantial compliance may be availed of.
While this section requires that it be strictly complied with, it merely
underscores its mandatory nature in that it cannot be altogether
dispensed with or its requirement completely disregarded but it does
not thereby prevent substantial compliance on this aspect of its
provisions under justifiable circumstances (see Gabionza vs. Court of
Appeals, et al., G.R. No. 112547, July 18, 1994). This certification on
non-forum shopping was designed to promote and facilitate the
orderly administration of justice and, therefore, should not be
interpreted with absolute literalness (Loyola vs. Court of Appeals, et
al., G.R. No. 117186, June 29, 1995).
More importantly, this section specifically states that the "(f)ailure to
comply with the foregoing requirements shall not be curable by mere
amendment of the complaint or other initiatory pleading but shall be
cause for the dismissal of the case without prejudice, unless
otherwise provided, upon motion and after hearing." This will obviate
the former practice of some trial courts in allowing amendment of
the incomplete pleading for the incorporation therein of the
certificate against forum shopping. That was erroneous since this
undertaking against multiple filing of cases is not part of the operative
facts required to be alleged in an initiatory pleading, such as
allegations on the cause of action, but is a special requirement for
admission of the initiatory pleading for filing in court, hence the
absence thereof is not curable by mere amendment.
Instead, the case shall be dismissed on motion but, just like the
practice under Revised Circular No. 28-91 in the appellate courts,
such dismissal shall be without prejudice. This more liberal rule is
distinguishable from the effects of dismissal of the case for non-
compliance with the Rules under the provisions of Sec. 3, Rule 17
which presupposes the pendency of the case, whereas what is
contemplated in this section is the initiation of the case. The case may
consequently be refiled within the balance of the reglementary
period but subject to the provisions on prescription of actions.
In those cases in which we excused non-compliance with the requirements of
Administrative Circular No. 04-94, there were special circumstances or compelling reasons
which made the strict application of said Circular clearly unjustified. 9 In contrast private
respondent gave no reason at all for her failure to submit the certificate in question.
Indeed, she cannot even feign ignorance of the Circular as her complaint was filed more
than one year after the effectivity thereof.
We are not unmindful of the adverse consequence to private respondent of a dismissal of
her complaint, nor of the time, effort, and money spent litigating up to this Court solely on
a so-called technical ground. Nonetheless, we hold that compliance with the certification
requirement on non-forum shopping should not be made subject to a party's afterthought,
lest the policy of the law be undermined.
WHEREFORE, the resolution of the Court of Appeals is REVERSED, the orders of the
Regional Trial Court of Angeles City, Branch 57, in Civil Case No. 8022 are SET ASIDE, and
the complaint filed against petitioners is DISMISSED without prejudice.
SO ORDERED.
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Legal Ethics
RE: LETTER OF THE UP LAW FACULTY ENTITLED "RESTORING INTEGRITY: A
STATEMENT BY THE FACULTY OF THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF
LAW ON THE ALLEGATIONS OF PLAGIARISM AND MISREPRESENTATION IN THE
SUPREME COURT"
For disposition of the Court are the various submissions of the 37 respondent law
professors1 in response to the Resolution dated October 19, 2010 (the Show Cause
Resolution), directing them to show cause why they should not be disciplined as
members of the Bar for violation of specific provisions of the Code of Professional
Responsibility enumerated therein.
At the outset, it must be stressed that the Show Cause Resolution clearly dockets this
as an administrative matter, not a special civil action for indirect contempt under Rule
71 of the Rules of Court, contrary to the dissenting opinion of Associate Justice Maria
Lourdes P. A. Sereno (Justice Sereno) to the said October 19, 2010 Show Cause
Resolution. Neither is this a disciplinary proceeding grounded on an allegedly
irregularly concluded finding of indirect contempt as intimated by Associate Justice
Conchita Carpio Morales (Justice Morales) in her dissenting opinions to both the
October 19, 2010 Show Cause Resolution and the present decision.
With the nature of this case as purely a bar disciplinary proceeding firmly in mind, the
Court finds that with the exception of one respondent whose compliance was
adequate and another who manifested he was not a member of the Philippine Bar,
the submitted explanations, being mere denials and/or tangential to the issues at
hand, are decidedly unsatisfactory. The proffered defenses even more urgently
behoove this Court to call the attention of respondent law professors, who are
members of the Bar, to the relationship of their duties as such under the Code of
Professional Responsibility to their civil rights as citizens and academics in our free
and democratic republic.
The provisions of the Code of Professional Responsibility involved in this case are as
follows:
CANON 1 — A lawyer shall uphold the constitution, obey the laws of the land and
promote respect for law and legal processes.
RULE 1.02 - A lawyer shall not counsel or abet activities aimed at defiance
of the law or at lessening confidence in the legal system.
CANON 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 in court; nor shall he mislead, or allow the Court to be misled by any
artifice.
Rule 10.02 - A lawyer shall not knowingly misquote or misrepresent the
contents of paper, the language or the argument of opposing counsel, or
the text of a decision or authority, or knowingly cite as law a provision
already rendered inoperative by repeal or amendment, or assert as a fact
that which has not been proved.
Rule 10.03 - A lawyer shall observe the rules of procedure and shall not
misuse them to defeat the ends of justice.
CANON 11 — A lawyer shall observe and maintain the respect due to the courts and
to judicial officers and should insist on similar conduct by others.
RULE 11.05 A lawyer shall submit grievances against a Judge to the proper
authorities only.
CANON 13 — A lawyer shall rely upon the merits of his cause and refrain from any
impropriety which tends to influence, or gives the appearance of influencing the
court.
Established jurisprudence will undeniably support our view that when lawyers speak
their minds, they must ever be mindful of their sworn oath to observe ethical
standards of their profession, and in particular, avoid foul and abusive language to
condemn the Supreme Court, or any court for that matter, for a decision it has
rendered, especially during the pendency of a motion for such decision’s
reconsideration. The accusation of plagiarism against a member of this Court is not
the real issue here but rather this plagiarism issue has been used to deflect everyone’s
attention from the actual concern of this Court to determine by respondents’
explanations whether or not respondent members of the Bar have crossed the line of
decency and acceptable professional conduct and speech and violated the Rules of
Court through improper intervention or interference as third parties to a pending
case. Preliminarily, it should be stressed that it was respondents themselves who
called upon the Supreme Court to act on their Statement,2 which they formally
submitted, through Dean Marvic M.V.F. Leonen (Dean Leonen), for the Court’s proper
disposition. Considering the defenses of freedom of speech and academic freedom
invoked by the respondents, it is worth discussing here that the legal reasoning used
in the past by this Court to rule that freedom of expression is not a defense in
administrative cases against lawyers for using intemperate speech in open court or in
court submissions can similarly be applied to respondents’ invocation of academic
freedom. Indeed, it is precisely because respondents are not merely lawyers but
lawyers who teach law and mould the minds of young aspiring attorneys that
respondents’ own non-observance of the Code of Professional Responsibility, even if
purportedly motivated by the purest of intentions, cannot be ignored nor glossed
over by this Court.
To fully appreciate the grave repercussions of respondents’ actuations, it is apropos
to revisit the factual antecedents of this case.
BACKGROUND OF THE CASE
Antecedent Facts and Proceedings
On April 28, 2010, the ponencia of Associate Justice Mariano del Castillo (Justice Del
Castillo) in Vinuya, et al. v. Executive Secretary (G.R. No. 162230) was promulgated.
On May 31, 2010, the counsel3 for Vinuya, et al. (the "Malaya Lolas"), filed a Motion
for Reconsideration of the Vinuya decision, raising solely the following grounds:
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Legal Ethics
I. Our own constitutional and jurisprudential histories reject this Honorable
Courts’ (sic) assertion that the Executive’s foreign policy prerogatives are
virtually unlimited; precisely, under the relevant jurisprudence and
constitutional provisions, such prerogatives are proscribed by international
human rights and humanitarian standards, including those provided for in
the relevant international conventions of which the Philippines is a party.4
II. This Honorable Court has confused diplomatic protection with the
broader, if fundamental, responsibility of states to protect the human rights
of its citizens – especially where the rights asserted are subject of erga
omnes obligations and pertain to jus cogens norms.5
On July 19, 2010,6 counsel for the Malaya Lolas, Attys. H. Harry L. Roque, Jr. (Atty.
Roque) and Romel Regalado Bagares (Atty. Bagares), filed a Supplemental Motion for
Reconsideration in G.R. No. 162230, where they posited for the first time their charge
of plagiarism as one of the grounds for reconsideration of the Vinuya decision. Among
other arguments, Attys. Roque and Bagares asserted that:
I.
IN THE FIRST PLACE, IT IS HIGHLY IMPROPER FOR THIS HONORABLE COURT’S
JUDGMENT OF APRIL 28, 2010 TO PLAGIARIZE AT LEAST THREE SOURCES – AN
ARTICLE PUBLISHED IN 2009 IN THE YALE LAW JOURNAL OF INTERNATIONAL LAW, A
BOOK PUBLISHED BY THE CAMBRIDGE UNIVERSITY PRESS IN 2005 AND AN ARTICLE
PUBLISHED IN 2006 IN THE CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL
LAW – AND MAKE IT APPEAR THAT THESE SOURCES SUPPORT THE JUDGMENT’S
ARGUMENTS FOR DISMISSING THE INSTANT PETITION WHEN IN TRUTH, THE
PLAGIARIZED SOURCES EVEN MAKE A STRONG CASE FOR THE PETITION’S CLAIMS.7
They also claimed that "[i]n this controversy, the evidence bears out the fact not only
of extensive plagiarism but of (sic) also of twisting the true intents of the plagiarized
sources by the ponencia to suit the arguments of the assailed Judgment for denying
the Petition."8
According to Attys. Roque and Bagares, the works allegedly plagiarized in the Vinuya
decision were namely: (1) Evan J. Criddle and Evan Fox-Decent’s article "A Fiduciary
Theory of Jus Cogens;"9 (2) Christian J. Tams’ book Enforcing Erga Omnes Obligations
in International Law;10 and (3) Mark Ellis’ article "Breaking the Silence: On Rape as an
International Crime."11
On the same day as the filing of the Supplemental Motion for Reconsideration on July
19, 2010, journalists Aries C. Rufo and Purple S. Romero posted an article, entitled "SC
justice plagiarized parts of ruling on comfort women," on the Newsbreak
website.12 The same article appeared on the GMA News TV website also on July 19,
2010.13
On July 22, 2010, Atty. Roque’s column, entitled "Plagiarized and Twisted," appeared
in the Manila Standard Today.14 In the said column, Atty. Roque claimed that Prof.
Evan Criddle, one of the authors purportedly not properly acknowledged in the Vinuya
decision, confirmed that his work, co-authored with Prof. Evan Fox-Decent, had been
plagiarized. Atty. Roque quoted Prof. Criddle’s response to the post by Julian Ku
regarding the news report15 on the alleged plagiarism in the international law blog,
Opinio Juris. Prof. Criddle responded to Ku’s blog entry in this wise:
The newspaper’s16 [plagiarism] claims are based on a motion for reconsideration filed
yesterday with the Philippine Supreme Court yesterday. The motion is available here:
http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in-
the-supreme-court/
The motion suggests that the Court’s decision contains thirty-four sentences and
citations that are identical to sentences and citations in my 2009 YJIL article (co-
authored with Evan Fox-Decent). Professor Fox-Decent and I were unaware of the
petitioners’ [plagiarism] allegations until after the motion was filed today.
Speaking for myself, the most troubling aspect of the court’s jus cogens discussion is
that it implies that the prohibitions against crimes against humanity, sexual slavery,
and torture are not jus cogens norms. Our article emphatically asserts the opposite.
The Supreme Court’s decision is available
here: http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/162230.htm17
On even date, July 22, 2010, Justice Del Castillo wrote to his colleagues on the Court
in reply to the charge of plagiarism contained in the Supplemental Motion for
Reconsideration.18
In a letter dated July 23, 2010, another purportedly plagiarized author in the Vinuya
decision, Dr. Mark Ellis, wrote the Court, to wit:
Your Honours:
I write concerning a most delicate issue that has come to my attention in the last few
days.
Much as I regret to raise this matter before your esteemed Court, I am compelled, as
a question of the integrity of my work as an academic and as an advocate of human
rights and humanitarian law, to take exception to the possible unauthorized use of
my law review article on rape as an international crime in your esteemed Court’s
Judgment in the case of Vinuya et al. v. Executive Secretary et al. (G.R. No. 162230,
Judgment of 28 April 2010).
My attention was called to the Judgment and the issue of possible plagiarism by the
Philippine chapter of the Southeast Asia Media Legal Defence Initiative
(SEAMLDI),19 an affiliate of the London-based Media Legal Defence Initiative (MLDI),
where I sit as trustee.
In particular, I am concerned about a large part of the extensive discussion in footnote
65, pp. 27-28, of the said Judgment of your esteemed Court. I am also concerned that
your esteemed Court may have misread the arguments I made in the article and
employed them for cross purposes. This would be ironic since the article was written
precisely to argue for the appropriate legal remedy for victims of war crimes,
genocide, and crimes against humanity.
I believe a full copy of my article as published in the Case Western Reserve Journal of
International Law in 2006 has been made available to your esteemed Court. I trust
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that your esteemed Court will take the time to carefully study the arguments I made
in the article.
I would appreciate receiving a response from your esteemed Court as to the issues
raised by this letter.
With respect,
(Sgd.)
Dr. Mark Ellis20
In Memorandum Order No. 35-2010 issued on July 27, 2010, the Court formed the
Committee on Ethics and Ethical Standards (the Ethics Committee) pursuant to
Section 13, Rule 2 of the Internal Rules of the Supreme Court. In an En Banc Resolution
also dated July 27, 2010, the Court referred the July 22, 2010 letter of Justice Del
Castillo to the Ethics Committee. The matter was subsequently docketed as A.M. No.
10-7-17-SC.
On August 2, 2010, the Ethics Committee required Attys. Roque and Bagares to
comment on the letter of Justice Del Castillo.21
On August 9, 2010, a statement dated July 27, 2010, entitled "Restoring Integrity: A
Statement by the Faculty of the University of the Philippines College of Law on the
Allegations of Plagiarism and Misrepresentation in the Supreme Court" (the
Statement), was posted in Newsbreak’s website22 and on Atty. Roque’s blog.23 A
report regarding the statement also appeared on various on-line news sites, such as
the GMA News TV24 and the Sun Star25 sites, on the same date. The statement was
likewise posted at the University of the Philippines College of Law’s bulletin board
allegedly on August 10, 201026 and at said college’s website.27
On August 11, 2010, Dean Leonen submitted a copy of the Statement of the University
of the Philippines College of Law Faculty (UP Law faculty) to the Court, through Chief
Justice Renato C. Corona (Chief Justice Corona). The cover letter dated August 10,
2010 of Dean Leonen read:
The Honorable
Supreme Court of the Republic of the Philippines
Through: Hon. Renato C. Corona
Chief Justice
Subject: Statement of faculty
from the UP College of Law
on the Plagiarism in the case of
Vinuya v Executive Secretary
Your Honors:
We attach for your information and proper disposition a statement signed by thirty[-
]eight (38)28members of the faculty of the UP College of Law. We hope that its points
could be considered by the Supreme Court en banc.
Respectfully,
(Sgd.)
Marvic M.V.F. Leonen
Dean and Professor of Law
(Emphases supplied.)
The copy of the Statement attached to the above-quoted letter did not contain the
actual signatures of the alleged signatories but only stated the names of 37 UP Law
professors with the notation (SGD.) appearing beside each name. For convenient
reference, the text of the UP Law faculty Statement is reproduced here:
RESTORING INTEGRITY
A STATEMENT BY THE FACULTY OF
THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW
ON THE ALLEGATIONS OF PLAGIARISM AND MISREPRESENTATION
IN THE SUPREME COURT
An extraordinary act of injustice has again been committed against the brave Filipinas
who had suffered abuse during a time of war. After they courageously came out with
their very personal stories of abuse and suffering as "comfort women", waited for
almost two decades for any meaningful relief from their own government as well as
from the government of Japan, got their hopes up for a semblance of judicial recourse
in the case of Vinuya v. Executive Secretary, G.R. No. 162230 (28 April 2010), they
only had these hopes crushed by a singularly reprehensible act of dishonesty and
misrepresentation by the Highest Court of the land.
It is within this frame that the Faculty of the University of the Philippines College of
Law views the charge that an Associate Justice of the Supreme Court committed
plagiarism and misrepresentation in Vinuya v. Executive Secretary. The plagiarism and
misrepresentation are not only affronts to the individual scholars whose work have
been appropriated without correct attribution, but also a serious threat to the
integrity and credibility of the Philippine Judicial System.
In common parlance, ‘plagiarism’ is the appropriation and misrepresentation of
another person’s work as one’s own. In the field of writing, it is cheating at best, and
stealing at worst. It constitutes a taking of someone else’s ideas and expressions,
including all the effort and creativity that went into committing such ideas and
expressions into writing, and then making it appear that such ideas and expressions
were originally created by the taker. It is dishonesty, pure and simple. A judicial
system that allows plagiarism in any form is one that allows dishonesty. Since all
judicial decisions form part of the law of the land, to allow plagiarism in the Supreme
Court is to allow the production of laws by dishonest means. Evidently, this is a
complete perversion and falsification of the ends of justice.
A comparison of the Vinuya decision and the original source material shows that the
ponente merely copied select portions of other legal writers’ works and interspersed
them into the decision as if they were his own, original work. Under the
circumstances, however, because the Decision has been promulgated by the Court,
the Decision now becomes the Court’s and no longer just the ponente’s. Thus the

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Legal Ethics
Court also bears the responsibility for the Decision. In the absence of any mention of
the original writers’ names and the publications from which they came, the thing
speaks for itself.
So far there have been unsatisfactory responses from the ponente of this case and
the spokesman of the Court.
It is argued, for example, that the inclusion of the footnotes from the original articles
is a reference to the ‘primary’ sources relied upon. This cursory explanation is not
acceptable, because the original authors’ writings and the effort they put into finding
and summarizing those primary sources are precisely the subject of plagiarism. The
inclusion of the footnotes together with portions of their writings in fact aggravates,
instead of mitigates, the plagiarism since it provides additional evidence of a
deliberate intention to appropriate the original authors’ work of organizing and
analyzing those primary sources.
It is also argued that the Members of the Court cannot be expected to be familiar with
all legal and scholarly journals. This is also not acceptable, because personal
unfamiliarity with sources all the more demands correct and careful attribution and
citation of the material relied upon. It is a matter of diligence and competence
expected of all Magistrates of the Highest Court of the Land.
But a far more serious matter is the objection of the original writers, Professors Evan
Criddle and Evan Fox-Descent, that the High Court actually misrepresents the
conclusions of their work entitled "A Fiduciary Theory of Jus Cogens," the main source
of the plagiarized text. In this article they argue that the classification of the crimes of
rape, torture, and sexual slavery as crimes against humanity have attained the status
of jus cogens, making it obligatory upon the State to seek remedies on behalf of its
aggrieved citizens. Yet, the Vinuya decision uses parts of the same article to arrive at
the contrary conclusion. This exacerbates the intellectual dishonesty of copying works
without attribution by transforming it into an act of intellectual fraud by copying
works in order to mislead and deceive.
The case is a potential landmark decision in International Law, because it deals with
State liability and responsibility for personal injury and damage suffered in a time of
war, and the role of the injured parties’ home States in the pursuit of remedies against
such injury or damage. National courts rarely have such opportunities to make an
international impact. That the petitioners were Filipino "comfort women" who
suffered from horrific abuse during the Second World War made it incumbent on the
Court of last resort to afford them every solicitude. But instead of acting with urgency
on this case, the Court delayed its resolution for almost seven years, oblivious to the
deaths of many of the petitioners seeking justice from the Court. When it dismissed
the Vinuya petition based on misrepresented and plagiarized materials, the Court
decided this case based on polluted sources. By so doing, the Supreme Court added
insult to injury by failing to actually exercise its "power to urge and exhort the
Executive Department to take up the claims of the Vinuya petitioners. Its callous
disposition, coupled with false sympathy and nonchalance, belies a more alarming
lack of concern for even the most basic values of decency and respect. The reputation
of the Philippine Supreme Court and the standing of the Philippine legal profession
before other Judiciaries and legal systems are truly at stake.
The High Court cannot accommodate less than absolute honesty in its decisions and
cannot accept excuses for failure to attain the highest standards of conduct imposed
upon all members of the Bench and Bar because these undermine the very foundation
of its authority and power in a democratic society. Given the Court’s recent history
and the controversy that surrounded it, it cannot allow the charges of such clear and
obvious plagiarism to pass without sanction as this would only further erode faith and
confidence in the judicial system. And in light of the significance of this decision to the
quest for justice not only of Filipino women, but of women elsewhere in the world
who have suffered the horrors of sexual abuse and exploitation in times of war, the
Court cannot coldly deny relief and justice to the petitioners on the basis of pilfered
and misinterpreted texts.
The Court cannot regain its credibility and maintain its moral authority without
ensuring that its own conduct, whether collectively or through its Members, is beyond
reproach. This necessarily includes ensuring that not only the content, but also the
processes of preparing and writing its own decisions, are credible and beyond
question. The Vinuya Decision must be conscientiously reviewed and not casually cast
aside, if not for the purpose of sanction, then at least for the purpose of reflection
and guidance. It is an absolutely essential step toward the establishment of a higher
standard of professional care and practical scholarship in the Bench and Bar, which
are critical to improving the system of administration of justice in the Philippines. It is
also a very crucial step in ensuring the position of the Supreme Court as the Final
Arbiter of all controversies: a position that requires competence and integrity
completely above any and all reproach, in accordance with the exacting demands of
judicial and professional ethics.
With these considerations, and bearing in mind the solemn duties and trust reposed
upon them as teachers in the profession of Law, it is the opinion of the Faculty of the
University of the Philippine College of Law that:
(1) The plagiarism committed in the case of Vinuya v. Executive Secretary is
unacceptable, unethical and in breach of the high standards of moral
conduct and judicial and professional competence expected of the
Supreme Court;
(2) Such a fundamental breach endangers the integrity and credibility of the
entire Supreme Court and undermines the foundations of the Philippine
judicial system by allowing implicitly the decision of cases and the
establishment of legal precedents through dubious means;
(3) The same breach and consequent disposition of the Vinuya case does
violence to the primordial function of the Supreme Court as the ultimate
dispenser of justice to all those who have been left without legal or
equitable recourse, such as the petitioners therein;
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Legal Ethics

(4) In light of the extremely serious and far-reaching nature of the LECTURERS
dishonesty and to save the honor and dignity of the Supreme Court as an (SGD.) JOSE GERARDO A. ALAMPAY (SGD.) JOSE C. LAURETA
institution, it is necessary for the ponente of Vinuya v. Executive Secretary
(SGD.) ARTHUR P. AUTEA (SGD.) DINA D. LUCENARIO
to resign his position, without prejudice to any other sanctions that the
Court may consider appropriate; (SGD.) ROSA MARIA J. BAUTISTA (SGD.) OWEN J. LYNCH
(5) The Supreme Court must take this opportunity to review the manner by (SGD.) MARK R. BOCOBO (SGD.) ANTONIO M. SANTOS
which it conducts research, prepares drafts, reaches and finalizes decisions (SGD.) DAN P. CALICA (SGD.) VICENTE V. MENDOZA
in order to prevent a recurrence of similar acts, and to provide clear and
(SGD.) TRISTAN A. CATINDIG (SGD.) RODOLFO NOEL S. QUIMBO
concise guidance to the Bench and Bar to ensure only the highest quality of
legal research and writing in pleadings, practice, and adjudication. (SGD.) SANDRA MARIE O. CORONEL (SGD.) GMELEEN FAYE B. TOMBOC
Malcolm Hall, University of the Philippines College of Law, Quezon City, 27 July 2010. (SGD.) ROSARIO O. GALLO (SGD.) NICHOLAS FELIX L. TY
(SGD.) MARVIC M.V.F. LEONEN (SGD.) CONCEPCION L. JARDELEZA (SGD.) EVALYN G. URSUA
Dean and Professor of Law
(SGD.) ANTONIO G.M. LA VIÑA (SGD.) RAUL T. VASQUEZ
(SGD.) FROILAN M. BACUNGAN (SGD.) PACIFICO A. AGABIN (SGD.) SUSAN D. VILLANUEVA29
Dean (1978-1983) Dean (1989-1995) (SGD.) CARINA C. LAFORTEZA
(Underscoring supplied.)
Meanwhile, in a letter dated August 18, 2010, Prof. Christian J. Tams made known his
(SGD.) SALVADOR T. CARLOTA sentiments on the alleged plagiarism issue to the Court.30 We quote Prof. Tams’ letter
(SGD.) MERLIN M. MAGALLONA here:
Dean (2005-2008) and Professor
Dean (1995-1999) Glasgow, 18 August 2010
of Law
Vinuya, et al. v. Executive Secretary et al. (G.R. No. 162230)
REGULAR FACULTY Hon. Renato C. Corona, Chief Justice
Your Excellency,
(SGD.) CARMELO V. SISON (SGD.) JAY L. BATONGBACAL My name is Christian J. Tams, and I am a professor of international law at the
Professor Assistant Professor University of Glasgow. I am writing to you in relation to the use of one of my
publications in the above-mentioned judgment of your Honourable Court.
(SGD.) PATRICIA R.P. SALVADOR The relevant passage of the judgment is to be found on p. 30 of your Court’s
DAWAY (SGD.) EVELYN (LEO) D. BATTAD Judgment, in the section addressing the concept of obligations erga omnes. As the
Associate Dean and Associate Assistant Professor table annexed to this letter shows, the relevant sentences were taken almost word
Professor by word from the introductory chapter of my book Enforcing Obligations Erga Omnes
in International Law (Cambridge University Press 2005). I note that there is a generic
reference to my work in footnote 69 of the Judgment, but as this is in relation to a
(SGD.) DANTE B. GATMAYTAN (SGD.) GWEN G. DE VERA citation from another author (Bruno Simma) rather than with respect to the
Associate Professor Assistant Professor substantive passages reproduced in the Judgment, I do not think it can be considered
an appropriate form of referencing.
(SGD.) THEODORE O. TE (SGD.) SOLOMON F. LUMBA I am particularly concerned that my work should have been used to support the
Assistant Professor Assistant Professor Judgment’s cautious approach to the erga omnes concept. In fact, a most cursory
reading shows that my book’s central thesis is precisely the opposite: namely that the
erga omnes concept has been widely accepted and has a firm place in contemporary
(SGD.) FLORIN T. HILBAY (SGD.) ROMMEL J. CASIS international law. Hence the introductory chapter notes that "[t]he present study
Assistant Professor Assistant Professor attempts to demystify aspects of the ‘very mysterious’ concept and thereby to
facilitate its implementation" (p. 5). In the same vein, the concluding section notes

113
Legal Ethics
that "the preceding chapters show that the concept is now a part of the reality of
international law, established in the jurisprudence of courts and the practice of
States" (p. 309).
With due respect to your Honourable Court, I am at a loss to see how my work should
have been cited to support – as it seemingly has – the opposite approach. More
generally, I am concerned at the way in which your Honourable Court’s Judgment has
drawn on scholarly work without properly acknowledging it.
On both aspects, I would appreciate a prompt response from your Honourable Court.
I remain
Sincerely yours
(Sgd.)
Christian J. Tams31
In the course of the submission of Atty. Roque and Atty. Bagares’ exhibits during the
August 26, 2010 hearing in the ethics case against Justice Del Castillo, the Ethics
Committee noted that Exhibit "J" (a copy of the Restoring Integrity Statement) was
not signed but merely reflected the names of certain faculty members with the letters
(SGD.) beside the names. Thus, the Ethics Committee directed Atty. Roque to present
the signed copy of the said Statement within three days from the August 26 hearing.32
It was upon compliance with this directive that the Ethics Committee was given a copy
of the signed UP Law Faculty Statement that showed on the signature pages the
names of the full roster of the UP Law Faculty, 81 faculty members in all. Indubitable
from the actual signed copy of the Statement was that only 37 of the 81 faculty
members appeared to have signed the same. However, the 37 actual signatories to
the Statement did not include former Supreme Court Associate Justice Vicente V.
Mendoza (Justice Mendoza) as represented in the previous copies of the Statement
submitted by Dean Leonen and Atty. Roque. It also appeared that Atty. Miguel R.
Armovit (Atty. Armovit) signed the Statement although his name was not included
among the signatories in the previous copies submitted to the Court. Thus, the total
number of ostensible signatories to the Statement remained at 37.
The Ethics Committee referred this matter to the Court en banc since the same
Statement, having been formally submitted by Dean Leonen on August 11, 2010, was
already under consideration by the Court.33
In a Resolution dated October 19, 2010, the Court en banc made the following
observations regarding the UP Law Faculty Statement:
Notably, while the statement was meant to reflect the educators’ opinion on the
allegations of plagiarism against Justice Del Castillo, they treated such allegation not
only as an established fact, but a truth. In particular, they expressed dissatisfaction
over Justice Del Castillo’s explanation on how he cited the primary sources of the
quoted portions and yet arrived at a contrary conclusion to those of the authors of
the articles supposedly plagiarized.
Beyond this, however, the statement bore certain remarks which raise concern for
the Court. The opening sentence alone is a grim preamble to the institutional
attack that lay ahead. It reads:
An extraordinary act of injustice has again been committed against the brave Filipinas
who had suffered abuse during a time of war.
The first paragraph concludes with a reference to the decision in Vinuya v. Executive
Secretary as a reprehensible act of dishonesty and misrepresentation by the Highest
Court of the land. x x x.
The insult to the members of the Court was aggravated by imputations of deliberately
delaying the resolution of the said case, its dismissal on the basis of "polluted
sources," the Court’s alleged indifference to the cause of petitioners [in the Vinuya
case], as well as the supposed alarming lack of concern of the members of the Court
for even the most basic values of decency and respect.34 x x x. (Underscoring ours.)
In the same Resolution, the Court went on to state that:
While most agree that the right to criticize the judiciary is critical to maintaining a free
and democratic society, there is also a general consensus that healthy criticism only
goes so far. Many types of criticism leveled at the judiciary cross the line to
become harmful and irresponsible attacks. These potentially devastating attacks and
unjust criticism can threaten the independence of the judiciary. The court must "insist
on being permitted to proceed to the disposition of its business in an orderly manner,
free from outside interference obstructive of its functions and tending to embarrass
the administration of justice."
The Court could hardly perceive any reasonable purpose for the faculty’s less than
objective comments except to discredit the April 28, 2010 Decision in the Vinuya case
and undermine the Court’s honesty, integrity and competence in addressing the
motion for its reconsideration. As if the case on the comfort women’s claims is not
controversial enough, the UP Law faculty would fan the flames and invite resentment
against a resolution that would not reverse the said decision. This runs contrary to
their obligation as law professors and officers of the Court to be the first to uphold
the dignity and authority of this Court, to which they owe fidelity according to the
oath they have taken as attorneys, and not to promote distrust in the administration
of justice.35 x x x. (Citations omitted; emphases and underscoring supplied.)
Thus, the Court directed Attys. Marvic M.V.F. Leonen, Froilan M. Bacungan, Pacifico
A. Agabin, Merlin M. Magallona, Salvador T. Carlota, Carmelo V. Sison, Patricia R.P.
Salvador Daway, Dante B. Gatmaytan, Theodore O. Te, Florin T. Hilbay, Jay L.
Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera, Solomon F. Lumba, Rommel J.
Casis, Jose Gerardo A. Alampay, Miguel R. Armovit, Arthur P. Autea, Rosa Maria J.
Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A. Catindig, Sandra Marie O. Coronel,
Rosario O. Gallo, Concepcion L. Jardeleza, Antonio G.M. La Viña, Carina C. Laforteza,
Jose C. Laureta, Owen J. Lynch, Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen
Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Raul T. Vasquez, Susan D.
Villanueva and Dina D. Lucenario to show cause, within ten (10) days from receipt of
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Legal Ethics
the copy of the Resolution, why they should not be disciplined as members of the Bar
for violation of Canons 1,36 11 and 13 and Rules 1.02 and 11.05 of the Code of
Professional Responsibility.37
Dean Leonen was likewise directed to show cause within the same period why he
should not be disciplinarily dealt with for violation of Canon 10, Rules 10.01, 10.02
and 10.03 for submitting through his letter dated August 10, 2010, during the
pendency of G.R. No. 162230 and of the investigation before the Ethics Committee,
for the consideration of the Court en banc, a dummy which is not a true and faithful
reproduction of the UP Law Faculty Statement.38
In the same Resolution, the present controversy was docketed as a regular
administrative matter.
Summaries of the Pleadings Filed by Respondents in Response to the October 19,
2010 Show Cause Resolution
On November 19, 2010, within the extension for filing granted by the Court,
respondents filed the following pleadings:
(1) Compliance dated November 18, 2010 by counsels for 35 of the 37
respondents, excluding Prof. Owen Lynch and Prof. Raul T. Vasquez, in
relation to the charge of violation of Canons 1, 11 and 13 and Rules 1.02
and 11.05 of the Code of Professional Responsibility;
(2) Compliance and Reservation dated November 18, 2010 by Prof. Rosa
Maria T. Juan-Bautista in relation to the same charge in par. (1);
(3) Compliance dated November 19, 2010 by counsel for Prof. Raul T.
Vasquez in relation to the same charge in par. (1);
(4) Compliance dated November 19, 2010 by counsels for Dean Leonen, in
relation to the charge of violation of Canon 10, Rules 10.01, 10.02 and
10.03; and
(5) Manifestation dated November 19, 2010 by counsel for Prof. Owen
Lynch.
Common Compliance of 35 Respondents (Excluding Prof. Owen Lynch and Prof. Raul
Vasquez)
Thirty-five (35) of the respondent UP Law professors filed on November 19, 2010 a
common compliance which was signed by their respective counsels (the Common
Compliance). In the "Preface" of said Common Compliance, respondents stressed that
"[they] issued the Restoring Integrity Statement in the discharge of the ‘solemn duties
and trust reposed upon them as teachers in the profession of law,’ and as members
of the Bar to speak out on a matter of public concern and one that is of vital interest
to them."39 They likewise alleged that "they acted with the purest of intentions" and
pointed out that "none of them was involved either as party or counsel" 40 in the
Vinuya case. Further, respondents "note with concern" that the Show Cause
Resolution’s findings and conclusions were "a prejudgment – that respondents indeed
are in contempt, have breached their obligations as law professors and officers of the
Court, and have violated ‘Canons [1], 11 and 13 and Rules 1.02 and 11.05 of the Code
of Professional Responsibility."41
By way of explanation, the respondents emphasized the following points:
(a) Respondents’ alleged noble intentions
In response to the charges of failure to observe due respect to legal
processes42 and the courts43 and of tending to influence, or giving the
appearance of influencing the Court44 in the issuance of their Statement,
respondents assert that their intention was not to malign the Court but
rather to defend its integrity and credibility and to ensure continued
confidence in the legal system. Their noble motive was purportedly
evidenced by the portion of their Statement "focusing on constructive
action."45 Respondents’ call in the Statement for the Court "to provide clear
and concise guidance to the Bench and Bar to ensure only the highest
quality of legal research and writing in adjudication," was reputedly "in
keeping with strictures enjoining lawyers to ‘participate in the development
of the legal system by initiating or supporting efforts in law reform and in
the improvement of the administration of justice’" (under Canon 4 of the
Code of Professional Responsibility) and to "promote respect for the law
and legal processes" (under Canon 1, id.).46 Furthermore, as academics,
they allegedly have a "special interest and duty to vigilantly guard against
plagiarism and misrepresentation because these unwelcome occurrences
have a profound impact in the academe, especially in our law schools."47
Respondents further "[called] on this Court not to misconstrue the
Restoring Integrity Statement as an ‘institutional attack’ x x x on the basis
of its first and ninth paragraphs."48 They further clarified that at the time
the Statement was allegedly drafted and agreed upon, it appeared to them
the Court "was not going to take any action on the grave and startling
allegations of plagiarism and misrepresentation."49 According to
respondents, the bases for their belief were (i) the news article published
on July 21, 2010 in the Philippine Daily Inquirer wherein Court Administrator
Jose Midas P. Marquez was reported to have said that Chief Justice Corona
would not order an inquiry into the matter;50 and (ii) the July 22, 2010 letter
of Justice Del Castillo which they claimed "did nothing but to downplay the
gravity of the plagiarism and misrepresentation charges."51 Respondents
claimed that it was their perception of the Court’s indifference to the
dangers posed by the plagiarism allegations against Justice Del Castillo that
impelled them to urgently take a public stand on the issue.
(b) The "correctness" of respondents’ position that Justice Del Castillo
committed plagiarism and should be held accountable in accordance with
the standards of academic writing
A significant portion of the Common Compliance is devoted to a discussion
of the merits of respondents’ charge of plagiarism against Justice Del
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Legal Ethics
Castillo. Relying on University of the Philippines Board of Regents v. Court
of Appeals52 and foreign materials and jurisprudence, respondents
essentially argue that their position regarding the plagiarism charge against
Justice Del Castillo is the correct view and that they are therefore justified
in issuing their Restoring Integrity Statement. Attachments to the Common
Compliance included, among others: (i) the letter dated October 28, 2010
of Peter B. Payoyo, LL.M, Ph.D.,53 sent to Chief Justice Corona through
Justice Sereno, alleging that the Vinuya decision likewise lifted without
proper attribution the text from a legal article by Mariana Salazar Albornoz
that appeared in the Anuario Mexicano De Derecho Internacional and from
an International Court of Justice decision; and (ii) a 2008 Human Rights Law
Review Article entitled "Sexual Orientation, Gender Identity and
International Human Rights Law" by Michael O’Flaherty and John Fisher, in
support of their charge that Justice Del Castillo also lifted passages from
said article without proper attribution, but this time, in his ponencia in Ang
Ladlad LGBT Party v. Commission on Elections.54
(c) Respondents’ belief that they are being "singled out" by the Court when
others have likewise spoken on the "plagiarism issue"
In the Common Compliance, respondents likewise asserted that "the
plagiarism and misrepresentation allegations are legitimate public
issues."55 They identified various published reports and opinions, in
agreement with and in opposition to the stance of respondents, on the
issue of plagiarism, specifically:
(i) Newsbreak report on July 19, 2010 by Aries Rufo and Purple
Romero;56
(ii) Column of Ramon Tulfo which appeared in the Philippine Daily
Inquirer on July 24, 2010;57
(iii) Editorial of the Philippine Daily Inquirer published on July 25,
2010;58
(iv) Letter dated July 22, 2010 of Justice Del Castillo published in
the Philippine Star on July 30, 2010;59
(v) Column of Former Intellectual Property Office Director
General Adrian Cristobal, Jr. published in the Business Mirror on
August 5, 2010;60
(vi) Column of Former Chief Justice Artemio Panganiban
published in the Philippine Daily Inquirer on August 8, 2010;61
(vii) News report regarding Senator Francis Pangilinan’s call for
the resignation of Justice Del Castillo published in the Daily
Tribune and the Manila Standard Today on July 31, 2010;62
(viii) News reports regarding the statement of Dean Cesar
Villanueva of the Ateneo de Manila University School of Law on
the calls for the resignation of Justice Del Castillo published in The
Manila Bulletin, the Philippine Star and the Business Mirror on
August 11, 2010;63
(ix) News report on expressions of support for Justice Del Castillo
from a former dean of the Pamantasan ng Lungsod ng Maynila,
the Philippine Constitutional Association, the Judges Association
of Bulacan and the Integrated Bar of the Philippines – Bulacan
Chapter published in the Philippine Star on August 16,
2010;64 and
(x) Letter of the Dean of the Liceo de Cagayan University College
of Law published in the Philippine Daily Inquirer on August 10,
2010.65
In view of the foregoing, respondents alleged that this Court has singled
them out for sanctions and the charge in the Show Cause Resolution dated
October 19, 2010 that they may have violated specific canons of the Code
of Professional Responsibility is unfair and without basis.
(d) Freedom of expression
In paragraphs 28 to 30 of the Common Compliance, respondents briefly
discussed their position that in issuing their Statement, "they should be
seen as not only to be performing their duties as members of the Bar,
officers of the court, and teachers of law, but also as citizens of a democracy
who are constitutionally protected in the exercise of free speech."66 In
support of this contention, they cited United States v. Bustos,67 In re: Atty.
Vicente Raul Almacen, 68 and In the Matter of Petition for Declaratory Relief
Re: Constitutionality of Republic Act 4880, Gonzales v. Commission on
Elections.69
(e) Academic freedom
In paragraphs 31 to 34 of the Common Compliance, respondents asserted that their
Statement was also issued in the exercise of their academic freedom as teachers in
an institution of higher learning. They relied on Section 5 of the University of the
Philippines Charter of 2008 which provided that "[t]he national university has the right
and responsibility to exercise academic freedom." They likewise adverted to Garcia v.
The Faculty Admission Committee, Loyola School of Theology70 which they claimed
recognized the extent and breadth of such freedom as to encourage a free and
healthy discussion and communication of a faculty member’s field of study without
fear of reprisal. It is respondents’ view that had they remained silent on the plagiarism
issue in the Vinuya decision they would have "compromised [their] integrity and
credibility as teachers; [their silence] would have created a culture and generation of
students, professionals, even lawyers, who would lack the competence and discipline
for research and pleading; or, worse, [that] their silence would have communicated
to the public that plagiarism and misrepresentation are inconsequential matters and
that intellectual integrity has no bearing or relevance to one’s conduct."71
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In closing, respondents’ Common Compliance exhorted this Court to consider the
following portion of the dissenting opinion of Justice George A. Malcolm in Salcedo v.
Hernandez,72 to wit:
Respect for the courts can better be obtained by following a calm and impartial course
from the bench than by an attempt to compel respect for the judiciary by chastising
a lawyer for a too vigorous or injudicious exposition of his side of a case. The
Philippines needs lawyers of independent thought and courageous bearing, jealous
of the interests of their clients and unafraid of any court, high or low, and the courts
will do well tolerantly to overlook occasional intemperate language soon to be
regretted by the lawyer which affects in no way the outcome of a case.73
On the matter of the reliefs to which respondents believe they are entitled, the
Common Compliance stated, thus:
WHEREFORE:
A. Respondents, as citizens of a democracy, professors of law, members of
the Bar and officers of the Court, respectfully pray that:
1. the foregoing be noted; and
2. the Court reconsider and reverse its adverse findings in the
Show Cause Resolution, including its conclusions that
respondents have: [a] breached their "obligation as law
professors and officers of the Court to be the first to uphold the
dignity and authority of this Court, … and not to promote distrust
in the administration of justice;" and [b] committed "violations of
Canons 10, 11, and 13 and Rules 1.02 and 11.05 of the Code of
Professional Responsibility."
B. In the event the Honorable Court declines to grant the foregoing prayer,
respondents respectfully pray, in the alternative, and in assertion of their
due process rights, that before final judgment be rendered:
1. the Show Cause Resolution be set for hearing;
2. respondents be given a fair and full opportunity to refute
and/or address the findings and conclusions of fact in the Show
Cause Resolution (including especially the finding and conclusion
of a lack of malicious intent), and in that connection, that
appropriate procedures and schedules for hearing be adopted
and defined that will allow them the full and fair opportunity to
require the production of and to present testimonial,
documentary, and object evidence bearing on the plagiarism and
misrepresentation issues in Vinuya v. Executive Secretary (G.R.
No. 162230, April 28, 2010) and In the Matter of the Charges of
Plagiarism, etc. Against Associate Justice Mariano C. Del Castillo
(A.M. No. 10-7-17-SC); and
3. respondents be given fair and full access to the transcripts,
records, drafts, reports and submissions in or relating to, and
accorded the opportunity to cross-examine the witnesses who
were or could have been called in In The Matter of the Charges of
Plagiarism, etc. Against Associate Justice Mariano C. Del Castillo
(A.M. No. 10-7-17-SC).74
Compliance and Reservation of Prof. Rosa Maria T. Juan-Bautista
Although already included in the Common Compliance, Prof. Rosa Maria T. Juan-
Bautista (Prof. Juan-Bautista) filed a separate Compliance and Reservation (the
Bautista Compliance), wherein she adopted the allegations in the Common
Compliance with some additional averments.
Prof. Juan-Bautista reiterated that her due process rights allegedly entitled her to
challenge the findings and conclusions in the Show Cause Resolution. Furthermore,
"[i]f the Restoring Integrity Statement can be considered indirect contempt, under
Section 3 of Rule 71 of the Rules of Court, such may be punished only after charge
and hearing."75
Prof. Juan-Bautista stressed that respondents signed the Statement "in good faith and
with the best intentions to protect the Supreme Court by asking one member to
resign."76 For her part, Prof. Juan-Bautista intimated that her deep disappointment
and sadness for the plight of the Malaya Lolas were what motivated her to sign the
Statement.
On the point of academic freedom, Prof. Juan-Bautista cited jurisprudence77 which in
her view highlighted that academic freedom is constitutionally guaranteed to
institutions of higher learning such that schools have the freedom to determine for
themselves who may teach, what may be taught, how lessons shall be taught and who
may be admitted to study and that courts have no authority to interfere in the
schools’ exercise of discretion in these matters in the absence of grave abuse of
discretion. She claims the Court has encroached on the academic freedom of the
University of the Philippines and other universities on their right to determine how
lessons shall be taught.
Lastly, Prof. Juan-Bautista asserted that the Statement was an exercise of
respondents’ constitutional right to freedom of expression that can only be curtailed
when there is grave and imminent danger to public safety, public morale, public
health or other legitimate public interest.78
Compliance of Prof. Raul T. Vasquez
On November 19, 2010, Prof. Raul T. Vasquez (Prof. Vasquez) filed a separate
Compliance by registered mail (the Vasquez Compliance). In said Compliance, Prof.
Vasquez narrated the circumstances surrounding his signing of the Statement. He
alleged that the Vinuya decision was a topic of conversation among the UP Law faculty
early in the first semester (of academic year 2010-11) because it reportedly contained
citations not properly attributed to the sources; that he was shown a copy of the
Statement by a clerk of the Office of the Dean on his way to his class; and that,
agreeing in principle with the main theme advanced by the Statement, he signed the
same in utmost good faith.79
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Legal Ethics
In response to the directive from this Court to explain why he should not be
disciplined as a member of the Bar under the Show Cause Resolution, Prof. Vasquez
also took the position that a lawyer has the right, like all citizens in a democratic
society, to comment on acts of public officers. He invited the attention of the Court
to the following authorities: (a) In re: Vicente Sotto; 80 (b) In re: Atty. Vicente Raul
Almacen;81 and (c) a discussion appearing in American Jurisprudence (AmJur) 2d.82 He
claims that he "never had any intention to unduly influence, nor entertained any
illusion that he could or should influence, [the Court] in its disposition of the Vinuya
case"83 and that "attacking the integrity of [the Court] was the farthest thing on
respondent’s mind when he signed the Statement."84 Unlike his colleagues, who wish
to impress upon this Court the purported homogeneity of the views on what
constitutes plagiarism, Prof. Vasquez stated in his Compliance that:
13. Before this Honorable Court rendered its Decision dated 12 October 2010, some
espoused the view that willful and deliberate intent to commit plagiarism is an
essential element of the same. Others, like respondent, were of the opinion that
plagiarism is committed regardless of the intent of the perpetrator, the way it has
always been viewed in the academe. This uncertainty made the issue a fair topic for
academic discussion in the College. Now, this Honorable Court has ruled that
plagiarism presupposes deliberate intent to steal another’s work and to pass it off as
one’s own.85 (Emphases supplied.)
Also in contrast to his colleagues, Prof. Vasquez was willing to concede that he "might
have been remiss in correctly assessing the effects of such language [in the
Statement] and could have been more careful."86 He ends his discussion with a
respectful submission that with his explanation, he has faithfully complied with the
Show Cause Resolution and that the Court will rule that he had not in any manner
violated his oath as a lawyer and officer of the Court.
Separate Compliance of Dean Leonen regarding the charge of violation of Canon 10
in relation to his submission of a "dummy" of the UP Law Faculty Statement to this
Court
In his Compliance, Dean Leonen claimed that there were three drafts/versions of the
UP Law Faculty Statement, which he described as follows:
"Restoring Integrity I" which bears the entire roster of the faculty of the
UP College of Law in its signing pages, and the actual signatures of the
thirty-seven (37) faculty members subject of the Show Cause Resolution. A
copy was filed with the Honorable Court by Roque and Butuyan on 31
August 2010 in A.M. No. 10-7-17-SC.
"Restoring Integrity II" which does not bear any actual physical signature,
but which reflects as signatories the names of thirty-seven (37) members of
the faculty with the notation "(SGD.)". A copy of Restoring Integrity II was
publicly and physically posted in the UP College of Law on 10 August 2010.
Another copy of Restoring Integrity II was also officially received by the
Honorable Court from the Dean of the UP College of Law on 11 August
2010, almost three weeks before the filing of Restoring Integrity I.
"Restoring Integrity III" which is a reprinting of Restoring Integrity II, and
which presently serves as the official file copy of the Dean’s Office in the UP
College of Law that may be signed by other faculty members who still wish
to. It bears the actual signatures of the thirty- seven original signatories to
Restoring Integrity I above their printed names and the notation "(SGD.")
and, in addition, the actual signatures of eight (8) other members of the
faculty above their handwritten or typewritten names.87
For purposes of this discussion, only Restoring Integrity I and Restoring Integrity II are
relevant since what Dean Leonen has been directed to explain are the discrepancies
in the signature pages of these two documents. Restoring Integrity III was never
submitted to this Court.
On how Restoring Integrity I and Restoring Integrity II were prepared and came about,
Dean Leonen alleged, thus:
2.2 On 27 July 2010, sensing the emergence of a relatively broad agreement
in the faculty on a draft statement, Dean Leonen instructed his staff to print
the draft and circulate it among the faculty members so that those who
wished to may sign. For this purpose, the staff encoded the law faculty
roster to serve as the printed draft’s signing pages. Thus did the first printed
draft of the Restoring Integrity Statement, Restoring Integrity I, come into
being.
2.3. As of 27 July 2010, the date of the Restoring Integrity Statement, Dean
Leonen was unaware that a Motion for Reconsideration of the Honorable
Court’s Decision in Vinuya vs. Executive Secretary (G.R. No. 162230, 28 April
2010) had already been filed, or that the Honorable Court was in the
process of convening its Committee on Ethics and Ethical Standards in A.M.
No. 10-7-17-SC.
2.4. Dean Leonen’s staff then circulated Restoring Integrity I among the
members of the faculty. Some faculty members visited the Dean’s Office to
sign the document or had it brought to their classrooms in the College of
Law, or to their offices or residences. Still other faculty members who, for
one reason or another, were unable to sign Restoring Integrity I at that time,
nevertheless conveyed to Dean Leonen their assurances that they would
sign as soon as they could manage.
2.5. Sometime in the second week of August, judging that Restoring
Integrity I had been circulated long enough, Dean Leonen instructed his
staff to reproduce the statement in a style and manner appropriate for
posting in the College of Law. Following his own established practice in
relation to significant public issuances, he directed them to reformat the
signing pages so that only the names of those who signed the first printed
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draft would appear, together with the corresponding "(SGD.)" note
following each name. Restoring Integrity II thus came into being.88
According to Dean Leonen, the "practice of eliminating blanks opposite or above the
names of non-signatories in the final draft of significant public issuances, is meant not
so much for aesthetic considerations as to secure the integrity of such
documents."89 He likewise claimed that "[p]osting statements with blanks would be
an open invitation to vandals and pranksters."90
With respect to the inclusion of Justice Mendoza’s name as among the signatories in
Restoring Integrity II when in fact he did not sign Restoring Integrity I, Dean Leonen
attributed the mistake to a miscommunication involving his administrative officer. In
his Compliance, he narrated that:
2.7. Upon being presented with a draft of Restoring Integrity II with the
reformatted signing pages, Dean Leonen noticed the inclusion of the name
of Justice Mendoza among the "(SGD.)" signatories. As Justice Mendoza was
not among those who had physically signed Restoring Integrity I when it was
previously circulated, Dean Leonen called the attention of his staff to the
inclusion of the Justice’s name among the "(SGD.)" signatories in Restoring
Integrity II.
2.8. Dean Leonen was told by his administrative officer that she had spoken
to Justice Mendoza over the phone on Friday, 06 August 2010. According
to her, Justice Mendoza had authorized the dean to sign the Restoring
Integrity Statement for him as he agreed fundamentally with its contents.
Also according to her, Justice Mendoza was unable at that time to sign the
Restoring Integrity Statement himself as he was leaving for the United
States the following week. It would later turn out that this account was not
entirely accurate.91 (Underscoring and italics supplied.)
Dean Leonen claimed that he "had no reason to doubt his administrative officer,
however, and so placed full reliance on her account"92 as "[t]here were indeed other
faculty members who had also authorized the Dean to indicate that they were
signatories, even though they were at that time unable to affix their signatures
physically to the document."93
However, after receiving the Show Cause Resolution, Dean Leonen and his staff
reviewed the circumstances surrounding their effort to secure Justice Mendoza’s
signature. It would turn out that this was what actually transpired:
2.22.1. On Friday, 06 August 2010, when the dean’s staff talked to Justice
Mendoza on the phone, he [Justice Mendoza] indeed initially agreed to sign
the Restoring Integrity Statement as he fundamentally agreed with its
contents. However, Justice Mendoza did not exactly say that he authorized
the dean to sign the Restoring Integrity Statement. Rather, he inquired if he
could authorize the dean to sign it for him as he was about to leave for the
United States. The dean’s staff informed him that they would, at any rate,
still try to bring the Restoring Integrity Statement to him.
2.22.2. Due to some administrative difficulties, Justice Mendoza was unable
to sign the Restoring Integrity Statement before he left for the U.S. the
following week.
2.22.3. The staff was able to bring Restoring Integrity III to Justice Mendoza
when he went to the College to teach on 24 September 2010, a day after
his arrival from the U.S. This time, Justice Mendoza declined to sign.94
According to the Dean:
2.23. It was only at this time that Dean Leonen realized the true import of the call he
received from Justice Mendoza in late September. Indeed, Justice Mendoza
confirmed that by the time the hard copy of the Restoring Integrity Statement was
brought to him shortly after his arrival from the U.S., he declined to sign it because it
had already become controversial. At that time, he predicted that the Court would
take some form of action against the faculty. By then, and under those circumstances,
he wanted to show due deference to the Honorable Court, being a former Associate
Justice and not wishing to unduly aggravate the situation by signing the
Statement.95(Emphases supplied.)
With respect to the omission of Atty. Armovit’s name in the signature page of
Restoring Integrity II when he was one of the signatories of Restoring Integrity I and
the erroneous description in Dean Leonen’s August 10, 2010 letter that the version
of the Statement submitted to the Court was signed by 38 members of the UP Law
Faculty, it was explained in the Compliance that:
Respondent Atty. Miguel Armovit physically signed Restoring Integrity I when it was
circulated to him. However, his name was inadvertently left out by Dean Leonen’s
staff in the reformatting of the signing pages in Restoring Integrity II. The dean
assumed that his name was still included in the reformatted signing pages, and so
mentioned in his cover note to Chief Justice Corona that 38 members of the law
faculty signed (the original 37 plus Justice Mendoza.)96
Dean Leonen argues that he should not be deemed to have submitted a dummy of
the Statement that was not a true and faithful reproduction of the same. He
emphasized that the main body of the Statement was unchanged in all its three
versions and only the signature pages were not the same. This purportedly is merely
"reflective of [the Statement’s] essential nature as a ‘live’ public manifesto meant to
continuously draw adherents to its message, its signatory portion is necessarily
evolving and dynamic x x x many other printings of [the Statement] may be made in
the future, each one reflecting the same text but with more and more
signatories."97 Adverting to criminal law by analogy, Dean Leonen claims that "this is
not an instance where it has been made to appear in a document that a person has
participated in an act when the latter did not in fact so participate"98 for he "did not
misrepresent which members of the faculty of the UP College of Law had agreed with
the Restoring Integrity Statement proper and/or had expressed their desire to be
signatories thereto."99
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In this regard, Dean Leonen believes that he had not committed any violation of
Canon 10 or Rules 10.01 and 10.02 for he did not mislead nor misrepresent to the
Court the contents of the Statement or the identities of the UP Law faculty members
who agreed with, or expressed their desire to be signatories to, the Statement. He
also asserts that he did not commit any violation of Rule 10.03 as he "coursed [the
Statement] through the appropriate channels by transmitting the same to Honorable
Chief Justice Corona for the latter’s information and proper disposition with the hope
that its points would be duly considered by the Honorable Court en banc." 100 Citing
Rudecon Management Corporation v. Camacho,101 Dean Leonen posits that the
required quantum of proof has not been met in this case and that no dubious
character or motivation for the act complained of existed to warrant an administrative
sanction for violation of the standard of honesty provided for by the Code of
Professional Responsibility.102
Dean Leonen ends his Compliance with an enumeration of nearly identical reliefs as
the Common Compliance, including the prayers for a hearing and for access to the
records, evidence and witnesses allegedly relevant not only in this case but also in
A.M. No. 10-7-17-SC, the ethical investigation involving Justice Del Castillo.
Manifestation of Prof. Owen Lynch (Lynch Manifestation)
For his part, Prof. Owen Lynch (Prof. Lynch) manifests to this Court that he is not a
member of the Philippine bar; but he is a member of the bar of the State of
Minnesota. He alleges that he first taught as a visiting professor at the UP College of
Law in 1981 to 1988 and returned in the same capacity in 2010. He further alleges
that "[h]e subscribes to the principle, espoused by this Court and the Supreme Court
of the United States, that ‘…[d]ebate on public issues should be uninhibited, robust
and wide open and that it may well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public officials."103 In signing the
Statement, he believes that "the right to speak means the right to speak
effectively."104 Citing the dissenting opinions in Manila Public School Teachers
Association v. Laguio, Jr.,105 Prof. Lynch argued that "[f]or speech to be effective, it
must be forceful enough to make the intended recipients listen"106 and "[t]he quality
of education would deteriorate in an atmosphere of repression, when the very
teachers who are supposed to provide an example of courage and self-assertiveness
to their pupils can speak only in timorous whispers."107 Relying on the doctrine in In
the Matter of Petition for Declaratory Relief Re: Constitutionality of Republic Act
4880, Gonzales v. Commission on Elections,108 Prof. Lynch believed that the
Statement did not pose any danger, clear or present, of any substantive evil so as to
remove it from the protective mantle of the Bill of Rights (i.e., referring to the
constitutional guarantee on free speech).109 He also stated that he "has read the
Compliance of the other respondents to the Show Cause Resolution" and that "he
signed the Restoring Integrity Statement for the same reasons they did."110
ISSUES
Based on the Show Cause Resolution and a perusal of the submissions of respondents,
the material issues to be resolved in this case are as follows:
1.) Does the Show Cause Resolution deny respondents their freedom of
expression?
2.) Does the Show Cause Resolution violate respondents’ academic
freedom as law professors?
3.) Do the submissions of respondents satisfactorily explain why they should
not be disciplined as Members of the Bar under Canons 1, 11, and 13 and
Rules 1.02 and 11.05 of the Code of Professional Responsibility?
4.) Does the separate Compliance of Dean Leonen satisfactorily explain why
he should not be disciplined as a Member of the Bar under Canon 10, Rules
10.01, 10.02 and 10.03?
5.) Are respondents entitled to have the Show Cause Resolution set for
hearing and in relation to such hearing, are respondents entitled to require
the production or presentation of evidence bearing on the plagiarism and
misrepresentation issues in the Vinuya case (G.R. No. 162230) and the
ethics case against Justice Del Castillo (A.M. No. 10-7-17-SC) and to have
access to the records and transcripts of, and the witnesses and evidence
presented, or could have been presented, in the ethics case against Justice
Del Castillo (A.M. No. 10-7-17-SC)?
DISCUSSION
The Show Cause Resolution does not deny respondents their freedom of expression.
It is respondents’ collective claim that the Court, with the issuance of the Show Cause
Resolution, has interfered with respondents’ constitutionally mandated right to free
speech and expression. It appears that the underlying assumption behind
respondents’ assertion is the misconception that this Court is denying them the right
to criticize the Court’s decisions and actions, and that this Court seeks to "silence"
respondent law professors’ dissenting view on what they characterize as a "legitimate
public issue."
This is far from the truth. A reading of the Show Cause Resolution will plainly show
that it was neither the fact that respondents had criticized a decision of the Court nor
that they had charged one of its members of plagiarism that motivated the said
Resolution. It was the manner of the criticism and the contumacious language by
which respondents, who are not parties nor counsels in the Vinuya case, have
expressed their opinion in favor of the petitioners in the said pending case for the
"proper disposition" and consideration of the Court that gave rise to said Resolution.
The Show Cause Resolution painstakingly enumerated the statements that the Court
considered excessive and uncalled for under the circumstances surrounding the
issuance, publication, and later submission to this Court of the UP Law faculty’s
Restoring Integrity Statement.
To reiterate, it was not the circumstance that respondents expressed a belief that
Justice Del Castillo was guilty of plagiarism but rather their expression of that belief
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as "not only as an established fact, but a truth"111 when it was "[o]f public knowledge
[that there was] an ongoing investigation precisely to determine the truth of such
allegations."112 It was also pointed out in the Show Cause Resolution that there was a
pending motion for reconsideration of the Vinuya decision.113 The Show Cause
Resolution made no objections to the portions of the Restoring Integrity Statement
that respondents claimed to be "constructive" but only asked respondents to explain
those portions of the said Statement that by no stretch of the imagination could be
considered as fair or constructive, to wit:
Beyond this, however, the statement bore certain remarks which raise concern for
the Court. The opening sentence alone is a grim preamble to the institutional
attack that lay ahead. It reads:
An extraordinary act of injustice has again been committed against the brave Filipinas
who had suffered abuse during a time of war.
The first paragraph concludes with a reference to the decision in Vinuya v. Executive
Secretary as a reprehensible act of dishonesty and misrepresentation by the Highest
Court of the land. x x x.
The insult to the members of the Court was aggravated by imputations of deliberately
delaying the resolution of the said case, its dismissal on the basis of "polluted
sources," the Court’s alleged indifference to the cause of petitioners [in the Vinuya
case], as well as the supposed alarming lack of concern of the members of the Court
for even the most basic values of decency and respect.114 x x x. (Underscoring ours.)
To be sure, the Show Cause Resolution itself recognized respondents’ freedom of
expression when it stated that:
While most agree that the right to criticize the judiciary is critical to maintaining a free
and democratic society, there is also a general consensus that healthy criticism only
goes so far. Many types of criticism leveled at the judiciary cross the line to
become harmful and irresponsible attacks. These potentially devastating attacks and
unjust criticism can threaten the independence of the judiciary. The court must "insist
on being permitted to proceed to the disposition of its business in an orderly manner,
free from outside interference obstructive of its functions and tending to embarrass
the administration of justice."
The Court could hardly perceive any reasonable purpose for the faculty’s less than
objective comments except to discredit the April 28, 2010 Decision in the Vinuya case
and undermine the Court’s honesty, integrity and competence in addressing the
motion for its reconsideration. As if the case on the comfort women’s claims is not
controversial enough, the UP Law faculty would fan the flames and invite resentment
against a resolution that would not reverse the said decision. This runs contrary to
their obligation as law professors and officers of the Court to be the first to uphold
the dignity and authority of this Court, to which they owe fidelity according to the
oath they have taken as attorneys, and not to promote distrust in the administration
of justice.115 x x x. (Citations omitted; emphases and underscoring supplied.)
Indeed, in a long line of cases, including those cited in respondents’ submissions, this
Court has held that the right to criticize the courts and judicial officers must be
balanced against the equally primordial concern that the independence of the
Judiciary be protected from due influence or interference. In cases where the critics
are not only citizens but members of the Bar, jurisprudence has repeatedly affirmed
the authority of this Court to discipline lawyers whose statements regarding the
courts and fellow lawyers, whether judicial or extrajudicial, have exceeded the limits
of fair comment and common decency.
As early as the 1935 case of Salcedo v. Hernandez,116 the Court found Atty. Vicente J.
Francisco both guilty of contempt and liable administratively for the following
paragraph in his second motion for reconsideration:
We should like frankly and respectfully to make it of record that the resolution of this
court, denying our motion for reconsideration, is absolutely erroneous and
constitutes an outrage to the rights of the petitioner Felipe Salcedo and a mockery of
the popular will expressed at the polls in the municipality of Tiaong, Tayabas. We wish
to exhaust all the means within our power in order that this error may be corrected
by the very court which has committed it, because we should not want that some
citizen, particularly some voter of the municipality of Tiaong, Tayabas, resort to the
press publicly to denounce, as he has a right to do, the judicial outrage of which the
herein petitioner has been the victim, and because it is our utmost desire to safeguard
the prestige of this honorable court and of each and every member thereof in the
eyes of the public. But, at the same time we wish to state sincerely that erroneous
decisions like these, which the affected party and his thousands of voters will
necessarily consider unjust, increase the proselytes of 'sakdalism' and make the public
lose confidence in the administration of justice.117 (Emphases supplied.)
The highlighted phrases were considered by the Court as neither justified nor
necessary and further held that:
[I]n order to call the attention of the court in a special way to the essential points
relied upon in his argument and to emphasize the force thereof, the many reasons
stated in his said motion were sufficient and the phrases in question were
superfluous. In order to appeal to reason and justice, it is highly improper and amiss
to make trouble and resort to threats, as Attorney Vicente J. Francisco has done,
because both means are annoying and good practice can never sanction them by
reason of their natural tendency to disturb and hinder the free exercise of a serene
and impartial judgment, particularly in judicial matters, in the consideration of
questions submitted for resolution.
There is no question that said paragraph of Attorney Vicente J. Francisco's motion
contains a more or less veiled threat to the court because it is insinuated therein, after
the author shows the course which the voters of Tiaong should follow in case he fails
in his attempt, that they will resort to the press for the purpose of denouncing, what
he claims to be a judicial outrage of which his client has been the victim; and because
he states in a threatening manner with the intention of predisposing the mind of the
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reader against the court, thus creating an atmosphere of prejudices against it in order
to make it odious in the public eye, that decisions of the nature of that referred to in
his motion promote distrust in the administration of justice and increase the
proselytes of sakdalism, a movement with seditious and revolutionary tendencies the
activities of which, as is of public knowledge, occurred in this country a few days ago.
This cannot mean otherwise than contempt of the dignity of the court and disrespect
of the authority thereof on the part of Attorney Vicente J. Francisco, because he
presumes that the court is so devoid of the sense of justice that, if he did not resort
to intimidation, it would maintain its error notwithstanding the fact that it may be
proven, with good reasons, that it has acted erroneously.118 (Emphases supplied.)
Significantly, Salcedo is the decision from which respondents culled their quote from
the minority view of Justice Malcolm. Moreover, Salcedo concerned statements made
in a pleading filed by a counsel in a case, unlike the respondents here, who are neither
parties nor counsels in the Vinuya case and therefore, do not have any standing at all
to interfere in the Vinuya case. Instead of supporting respondents’ theory, Salcedo is
authority for the following principle:
As a member of the bar and an officer of this court, Attorney Vicente J. Francisco, as
any attorney, is in duty bound to uphold its dignity and authority and to defend its
integrity, not only because it has conferred upon him the high privilege, not a right
(Malcolm, Legal Ethics, 158 and 160), of being what he now is: a priest of justice(In re
Thatcher, 80 Ohio St. Rep., 492, 669), but also because in so doing, he neither creates
nor promotes distrust in the administration of justice, and prevents anybody from
harboring and encouraging discontent which, in many cases, is the source of disorder,
thus undermining the foundation upon which rests that bulwark called judicial power
to which those who are aggrieved turn for protection and relief.119 (Emphases
supplied.)
Thus, the lawyer in Salcedo was fined and reprimanded for his injudicious statements
in his pleading, by accusing the Court of "erroneous ruling." Here, the respondents’
Statement goes way beyond merely ascribing error to the Court.
Other cases cited by respondents likewise espouse rulings contrary to their position.
In re: Atty. Vicente Raul Almacen,120 cited in the Common Compliance and the
Vasquez Compliance, was an instance where the Court indefinitely suspended a
member of the Bar for filing and releasing to the press a "Petition to Surrender
Lawyer’s Certificate of Title" in protest of what he claimed was a great injustice to his
client committed by the Supreme Court. In the decision, the petition was described,
thus:
He indicts this Court, in his own phrase, as a tribunal "peopled by men who are
calloused to our pleas for justice, who ignore without reasons their own applicable
decisions and commit culpable violations of the Constitution with impunity." His
client's he continues, who was deeply aggrieved by this Court's "unjust judgment,"
has become "one of the sacrificial victims before the altar of hypocrisy." In the same
breath that he alludes to the classic symbol of justice, he ridicules the members of
this Court, saying "that justice as administered by the present members of the
Supreme Court is not only blind, but also deaf and dumb." He then vows to argue the
cause of his client "in the people's forum," so that "the people may know of the silent
injustices committed by this Court," and that "whatever mistakes, wrongs and
injustices that were committed must never be repeated." He ends his petition with a
prayer that
"x x x a resolution issue ordering the Clerk of Court to receive the certificate of the
undersigned attorney and counsellor-at-law IN TRUST with reservation that at any
time in the future and in the event we regain our faith and confidence, we may
retrieve our title to assume the practice of the noblest profession."121
It is true that in Almacen the Court extensively discussed foreign jurisprudence on the
principle that a lawyer, just like any citizen, has the right to criticize and comment
upon actuations of public officers, including judicial authority. However, the real
doctrine in Almacen is that such criticism of the courts, whether done in court or
outside of it, must conform to standards of fairness and propriety. This case engaged
in an even more extensive discussion of the legal authorities sustaining this
view.1awphi1 To quote from that decision:
But it is the cardinal condition of all such criticism that it shall be bona fide, and shall
not spill over the walls of decency and propriety. A wide chasm exists between fair
criticism, on the one hand, and abuse and slander of courts and the judges thereof,
on the other. Intemperate and unfair criticism is a gross violation of the duty of
respect to courts. It is such a misconduct that subjects a lawyer to disciplinary action.
For, membership in the Bar imposes upon a person obligations and duties which are
not mere flux and ferment. His investiture into the legal profession places upon his
shoulders no burden more basic, more exacting and more imperative than that of
respectful behavior toward the courts. He vows solemnly to conduct himself "with all
good fidelity x x x to the courts;" and the Rules of Court constantly remind him "to
observe and maintain the respect due to courts of justice and judicial officers." The
first canon of legal ethics enjoins him "to maintain towards the courts a respectful
attitude, not for the sake of the temporary incumbent of the judicial office, but for
the maintenance of its supreme importance."
As Mr. Justice Field puts it:
"x x x the obligation which attorneys impliedly assume, if they do not by express
declaration take upon themselves, when they are admitted to the Bar, is not merely
to be obedient to the Constitution and laws, but to maintain at all times the respect
due to courts of justice and judicial officers. This obligation is not discharged by merely
observing the rules of courteous demeanor in open court, but includes abstaining out
of court from all insulting language and offensive conduct toward judges personally
for their judicial acts." (Bradley, v. Fisher, 20 Law. 4d. 647, 652)
The lawyer's duty to render respectful subordination to the courts is essential to the
orderly administration of justice. Hence, in the assertion of their clients' rights,
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lawyers — even those gifted with superior intellect — are enjoined to rein up their
tempers.
"The counsel in any case may or may not be an abler or more learned lawyer than the
judge, and it may tax his patience and temper to submit to rulings which he regards
as incorrect, but discipline and self-respect are as necessary to the orderly
administration of justice as they are to the effectiveness of an army. The decisions of
the judge must be obeyed, because he is the tribunal appointed to decide, and the
bar should at all times be the foremost in rendering respectful submission." (In Re
Scouten, 40 Atl. 481)
xxxx
In his relations with the courts, a lawyer may not divide his personality so as to be an
attorney at one time and a mere citizen at another. Thus, statements made by an
attorney in private conversations or communications or in the course of a political
campaign, if couched in insulting language as to bring into scorn and disrepute the
administration of justice, may subject the attorney to disciplinary
action.122 (Emphases and underscoring supplied.)
In a similar vein, In re: Vicente Sotto,123 cited in the Vasquez Compliance, observed
that:
[T]his Court, in In re Kelly, held the following:
The publication of a criticism of a party or of the court to a pending cause, respecting
the same, has always been considered as misbehavior, tending to obstruct the
administration of justice, and subjects such persons to contempt proceedings. Parties
have a constitutional right to have their causes tried fairly in court, by an impartial
tribunal, uninfluenced by publications or public clamor. Every citizen has a profound
personal interest in the enforcement of the fundamental right to have justice
administered by the courts, under the protection and forms of law, free from outside
coercion or interference. x x x.
Mere criticism or comment on the correctness or wrongness, soundness or
unsoundness of the decision of the court in a pending case made in good faith may
be tolerated; because if well founded it may enlighten the court and contribute to the
correction of an error if committed; but if it is not well taken and obviously erroneous,
it should, in no way, influence the court in reversing or modifying its decision. x x x.
xxxx
To hurl the false charge that this Court has been for the last years committing
deliberately "so many blunders and injustices," that is to say, that it has been deciding
in favor of one party knowing that the law and justice is on the part of the adverse
party and not on the one in whose favor the decision was rendered, in many cases
decided during the last years, would tend necessarily to undermine the confidence of
the people in the honesty and integrity of the members of this Court, and
consequently to lower or degrade the administration of justice by this Court. The
Supreme Court of the Philippines is, under the Constitution, the last bulwark to which
the Filipino people may repair to obtain relief for their grievances or protection of
their rights when these are trampled upon, and if the people lose their confidence in
the honesty and integrity of the members of this Court and believe that they cannot
expect justice therefrom, they might be driven to take the law into their own hands,
and disorder and perhaps chaos might be the result. As a member of the bar and an
officer of the courts Atty. Vicente Sotto, like any other, is in duty bound to uphold the
dignity and authority of this Court, to which he owes fidelity according to the oath he
has taken as such attorney, and not to promote distrust in the administration of
justice. Respect to the courts guarantees the stability of other institutions, which
without such guaranty would be resting on a very shaky foundation.124 (Emphases and
underscoring supplied.)
That the doctrinal pronouncements in these early cases are still good law can be easily
gleaned even from more recent jurisprudence.
In Choa v. Chiongson,125 the Court administratively disciplined a lawyer, through the
imposition of a fine, for making malicious and unfounded criticisms of a judge in the
guise of an administrative complaint and held, thus:
As an officer of the court and its indispensable partner in the sacred task of
administering justice, graver responsibility is imposed upon a lawyer than any other
to uphold the integrity of the courts and to show respect to its officers. This does not
mean, however, that a lawyer cannot criticize a judge. As we stated in Tiongco vs.
Hon. Aguilar:
It does not, however, follow that just because a lawyer is an officer of the court, he
cannot criticize the courts. That is his right as a citizen, and it is even his duty as an
officer of the court to avail of such right. Thus, in In Re: Almacen (31 SCRA 562, 579-
580 [1970]), this Court explicitly declared:
Hence, as a citizen and as officer of the court, a lawyer is expected not only to exercise
the right, but also to consider it his duty to avail of such right. No law may abridge this
right. Nor is he "professionally answerable to a scrutiny into the official conduct of the
judges, which would not expose him to legal animadversion as a citizen." (Case of
Austin, 28 Am Dec. 657, 665).
xxxx
Nevertheless, such a right is not without limit. For, as this Court warned in Almacen:
But it is a cardinal condition of all such criticism that it shall be bona fide, and shall not
spill over the walls of decency and propriety. A wide chasm exists between fair
criticism, on the one hand, and abuse and slander of courts and the judges thereof,
on the other. Intemperate and unfair criticism is a gross violation of the duty of
respect to courts. It is such a misconduct, that subjects a lawyer to disciplinary action.
xxxx
Elsewise stated, the right to criticize, which is guaranteed by the freedom of speech
and of expression in the Bill of Rights of the Constitution, must be exercised
responsibly, for every right carries with it a corresponding obligation. Freedom is not
freedom from responsibility, but freedom with responsibility. x x x.
xxxx
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Proscribed then are, inter alia, the use of unnecessary language which jeopardizes
high esteem in courts, creates or promotes distrust in judicial administration (Rheem,
supra), or tends necessarily to undermine the confidence of people in the integrity of
the members of this Court and to degrade the administration of justice by this Court
(In re: Sotto, 82 Phil. 595 [1949]); or of offensive and abusive language (In re: Rafael
Climaco, 55 SCRA 107 [1974]); or abrasive and offensive language (Yangson vs.
Salandanan, 68 SCRA 42 [1975]; or of disrespectful, offensive, manifestly baseless,
and malicious statements in pleadings or in a letter addressed to the judge (Baja vs.
Macandog, 158 SCRA [1988], citing the resolution of 19 January 1988 in Phil. Public
Schools Teachers Association vs. Quisumbing, G.R. No. 76180, and Ceniza vs.
Sebastian, 130 SCRA 295 [1984]); or of disparaging, intemperate, and uncalled-for
remarks (Sangalang vs. Intermediate Appellate Court, 177 SCRA 87 [1989]).
Any criticism against a judge made in the guise of an administrative complaint which
is clearly unfounded and impelled by ulterior motive will not excuse the lawyer
responsible therefor under his duty of fidelity to his client. x x x.126 (Emphases and
underscoring supplied.)
In Saberon v. Larong,127 where this Court found respondent lawyer guilty of simple
misconduct for using intemperate language in his pleadings and imposed a fine upon
him, we had the occasion to state:
The Code of Professional Responsibility mandates:
CANON 8 - A lawyer shall conduct himself with courtesy, fairness and candor toward
his professional colleagues, and shall avoid harassing tactics against opposing counsel.
Rule 8.01 - A lawyer shall not, in his professional dealings, use language which is
abusive, offensive or otherwise improper.
CANON 11 - A lawyer shall observe and maintain the respect due to the courts and to
judicial officers and should insist on similar conduct by others.
Rule 11.03 - A lawyer shall abstain from scandalous, offensive or menacing language or
behavior before the Courts.
To be sure, the adversarial nature of our legal system has tempted members of the
bar to use strong language in pursuit of their duty to advance the interests of their
clients.
However, while a lawyer is entitled to present his case with vigor and courage, such
enthusiasm does not justify the use of offensive and abusive language. Language
abounds with countless possibilities for one to be emphatic but respectful, convincing
but not derogatory, illuminating but not offensive.
On many occasions, the Court has reminded members of the Bar to abstain from all
offensive personalityand 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. In keeping with the dignity of the legal profession, a lawyer’s language even
in his pleadings must be dignified.128
Verily, the accusatory and vilifying nature of certain portions of the Statement
exceeded the limits of fair comment and cannot be deemed as protected free speech.
Even In the Matter of Petition for Declaratory Relief Re: Constitutionality of Republic
Act 4880, Gonzales v. Commission on Elections,129 relied upon by respondents in the
Common Compliance, held that:
From the language of the specific constitutional provision, it would appear that the
right is not susceptible of any limitation. No law may be passed abridging the freedom
of speech and of the press. The realities of life in a complex society preclude however
a literal interpretation. Freedom of expression is not an absolute. It would be too
much to insist that at all times and under all circumstances it should remain
unfettered and unrestrained. There are other societal values that press for
recognition. x x x.130 (Emphasis supplied.)
One such societal value that presses for recognition in the case at bar is the threat to
judicial independence and the orderly administration of justice that immoderate,
reckless and unfair attacks on judicial decisions and institutions pose. This Court held
as much in Zaldivar v. Sandiganbayan and Gonzales,131 where we indefinitely
suspended a lawyer from the practice of law for issuing to the media statements
grossly disrespectful towards the Court in relation to a pending case, to wit:
Respondent Gonzales is entitled to the constitutional guarantee of free speech. No
one seeks to deny him that right, least of all this Court. What respondent seems
unaware of is that freedom of speech and of expression, like all constitutional
freedoms, is not absolute and that freedom of expression needs on occasion to be
adjusted to and accommodated with the requirements of equally important public
interest. One of these fundamental public interests is the maintenance of the integrity
and orderly functioning of the administration of justice. There is no antinomy
between free expression and the integrity of the system of administering justice. For
the protection and maintenance of freedom of expression itself can be secured only
within the context of a functioning and orderly system of dispensing justice, within
the context, in other words, of viable independent institutions for delivery of justice
which are accepted by the general community. x x x.132 (Emphases supplied.)
For this reason, the Court cannot uphold the view of some respondents133 that the
Statement presents no grave or imminent danger to a legitimate public interest.
The Show Cause Resolution does not interfere with respondents’ academic freedom.
It is not contested that respondents herein are, by law and jurisprudence, guaranteed
academic freedom and undisputably, they are free to determine what they will teach
their students and how they will teach. We must point out that there is nothing in the
Show Cause Resolution that dictates upon respondents the subject matter they can
teach and the manner of their instruction. Moreover, it is not inconsistent with the
principle of academic freedom for this Court to subject lawyers who teach law to
disciplinary action for contumacious conduct and speech, coupled with undue
intervention in favor of a party in a pending case, without observing proper
procedure, even if purportedly done in their capacity as teachers.
A novel issue involved in the present controversy, for it has not been passed upon in
any previous case before this Court, is the question of whether lawyers who are also
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law professors can invoke academic freedom as a defense in an administrative
proceeding for intemperate statements tending to pressure the Court or influence
the outcome of a case or degrade the courts.
Applying by analogy the Court’s past treatment of the "free speech" defense in other
bar discipline cases, academic freedom cannot be successfully invoked by
respondents in this case. The implicit ruling in the jurisprudence discussed above is
that the constitutional right to freedom of expression of members of the Bar may be
circumscribed by their ethical duties as lawyers to give due respect to the courts and
to uphold the public’s faith in the legal profession and the justice system. To our mind,
the reason that freedom of expression may be so delimited in the case of lawyers
applies with greater force to the academic freedom of law professors.
It would do well for the Court to remind respondents that, in view of the broad
definition in Cayetano v. Monsod,134 lawyers when they teach law are considered
engaged in the practice of law. Unlike professors in other disciplines and more than
lawyers who do not teach law, respondents are bound by their oath to uphold the
ethical standards of the legal profession. Thus, their actions as law professors must
be measured against the same canons of professional responsibility applicable to acts
of members of the Bar as the fact of their being law professors is inextricably entwined
with the fact that they are lawyers.
Even if the Court was willing to accept respondents’ proposition in the Common
Compliance that their issuance of the Statement was in keeping with their duty to
"participate in the development of the legal system by initiating or supporting efforts
in law reform and in the improvement of the administration of justice" under Canon
4 of the Code of Professional Responsibility, we cannot agree that they have fulfilled
that same duty in keeping with the demands of Canons 1, 11 and 13 to give due
respect to legal processes and the courts, and to avoid conduct that tends to influence
the courts. Members of the Bar cannot be selective regarding which canons to abide
by given particular situations. With more reason that law professors are not allowed
this indulgence, since they are expected to provide their students exemplars of the
Code of Professional Responsibility as a whole and not just their preferred portions
thereof.
The Court’s rulings on the submissions regarding the charge of violation of Canons 1,
11 and 13.
Having disposed of respondents’ main arguments of freedom of expression and
academic freedom, the Court considers here the other averments in their
submissions.
With respect to good faith, respondents’ allegations presented two main ideas: (a)
the validity of their position regarding the plagiarism charge against Justice Del
Castillo, and (b) their pure motive to spur this Court to take the correct action on said
issue.
The Court has already clarified that it is not the expression of respondents’ staunch
belief that Justice Del Castillo has committed a misconduct that the majority of this
Court has found so unbecoming in the Show Cause Resolution. No matter how firm a
lawyer’s conviction in the righteousness of his cause there is simply no excuse for
denigrating the courts and engaging in public behavior that tends to put the courts
and the legal profession into disrepute. This doctrine, which we have repeatedly
upheld in such cases as Salcedo, In re Almacen and Saberong, should be applied in
this case with more reason, as the respondents, not parties to the Vinuya case,
denounced the Court and urged it to change its decision therein, in a public statement
using contumacious language, which with temerity they subsequently submitted to
the Court for "proper disposition."
That humiliating the Court into reconsidering the Vinuya Decision in favor of the
Malaya Lolas was one of the objectives of the Statement could be seen in the
following paragraphs from the same:
And in light of the significance of this decision to the quest for justice not only of
Filipino women, but of women elsewhere in the world who have suffered the horrors
of sexual abuse and exploitation in times of war, the Court cannot coldly deny relief
and justice to the petitioners on the basis of pilfered and misinterpreted texts.
xxxx
(3) The same breach and consequent disposition of the Vinuya case does violence to
the primordial function of the Supreme Court as the ultimate dispenser of justice to
all those who have been left without legal or equitable recourse, such as the
petitioners therein.135 (Emphases and underscoring supplied.)
Whether or not respondents’ views regarding the plagiarism issue in the Vinuya case
had valid basis was wholly immaterial to their liability for contumacious speech and
conduct. These are two separate matters to be properly threshed out in separate
proceedings. The Court considers it highly inappropriate, if not tantamount to
dissembling, the discussion devoted in one of the compliances arguing the guilt of
Justice Del Castillo. In the Common Compliance, respondents even go so far as to
attach documentary evidence to support the plagiarism charges against Justice Del
Castillo in the present controversy. The ethics case of Justice Del Castillo (A.M. No.
10-7-17-SC), with the filing of a motion for reconsideration, was still pending at the
time of the filing of respondents’ submissions in this administrative case. As
respondents themselves admit, they are neither parties nor counsels in the ethics
case against Justice Del Castillo. Notwithstanding their professed overriding interest
in said ethics case, it is not proper procedure for respondents to bring up their
plagiarism arguments here especially when it has no bearing on their own
administrative case.
Still on motive, it is also proposed that the choice of language in the Statement was
intended for effective speech; that speech must be "forceful enough to make the
intended recipients listen."136 One wonders what sort of effect respondents were
hoping for in branding this Court as, among others, callous, dishonest and lacking in
concern for the basic values of decency and respect. The Court fails to see how it can
ennoble the profession if we allow respondents to send a signal to their students that
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the only way to effectively plead their cases and persuade others to their point of
view is to be offensive.
This brings to our mind the letters of Dr. Ellis and Prof. Tams which were deliberately
quoted in full in the narration of background facts to illustrate the sharp contrast
between the civil tenor of these letters and the antagonistic irreverence of the
Statement. In truth, these foreign authors are the ones who would expectedly be
affected by any perception of misuse of their works. Notwithstanding that they are
beyond the disciplinary reach of this Court, they still obviously took pains to convey
their objections in a deferential and scholarly manner. It is unfathomable to the Court
why respondents could not do the same. These foreign authors’ letters underscore
the universality of the tenet that legal professionals must deal with each other in good
faith and due respect. The mark of the true intellectual is one who can express his
opinions logically and soberly without resort to exaggerated rhetoric and
unproductive recriminations.
As for the claim that the respondents’ noble intention is to spur the Court to take
"constructive action" on the plagiarism issue, the Court has some doubts as to its
veracity. For if the Statement was primarily meant for this Court’s consideration, why
was the same published and reported in the media first before it was submitted to
this Court? It is more plausible that the Statement was prepared for consumption by
the general public and designed to capture media attention as part of the effort to
generate interest in the most controversial ground in the Supplemental Motion for
Reconsideration filed in the Vinuya case by Atty. Roque, who is respondents’
colleague on the UP Law faculty.
In this regard, the Court finds that there was indeed a lack of observance of fidelity
and due respect to the Court, particularly when respondents knew fully well that the
matter of plagiarism in the Vinuya decision and the merits of the Vinuya decision itself,
at the time of the Statement’s issuance, were still both sub judice or pending final
disposition of the Court. These facts have been widely publicized. On this point,
respondents allege that at the time the Statement was first drafted on July 27, 2010,
they did not know of the constitution of the Ethics Committee and they had issued
the Statement under the belief that this Court intended to take no action on the ethics
charge against Justice Del Castillo. Still, there was a significant lapse of time from the
drafting and printing of the Statement on July 27, 2010 and its publication and
submission to this Court in early August when the Ethics Committee had already been
convened. If it is true that the respondents’ outrage was fueled by their perception of
indifference on the part of the Court then, when it became known that the Court did
intend to take action, there was nothing to prevent respondents from recalibrating
the Statement to take this supervening event into account in the interest of fairness.
Speaking of the publicity this case has generated, we likewise find no merit in the
respondents’ reliance on various news reports and commentaries in the print media
and the internet as proof that they are being unfairly "singled out." On the contrary,
these same annexes to the Common Compliance show that it is not enough for one
to criticize the Court to warrant the institution of disciplinary 137 or
contempt138 action. This Court takes into account the nature of the criticism and
weighs the possible repercussions of the same on the Judiciary. When the criticism
comes from persons outside the profession who may not have a full grasp of legal
issues or from individuals whose personal or other interests in making the criticism
are obvious, the Court may perhaps tolerate or ignore them. However, when law
professors are the ones who appear to have lost sight of the boundaries of fair
commentary and worse, would justify the same as an exercise of civil liberties, this
Court cannot remain silent for such silence would have a grave implication on legal
education in our country.
With respect to the 35 respondents named in the Common Compliance, considering
that this appears to be the first time these respondents have been involved in
disciplinary proceedings of this sort, the Court is willing to give them the benefit of
the doubt that they were for the most part well-intentioned in the issuance of the
Statement. However, it is established in jurisprudence that where the excessive and
contumacious language used is plain and undeniable, then good intent can only be
mitigating. As this Court expounded in Salcedo:
In his defense, Attorney Vicente J. Francisco states that it was not his intention to
offend the court or to be recreant to the respect thereto but, unfortunately, there
are his phrases which need no further comment. Furthermore, it is a well settled rule
in all places where the same conditions and practice as those in this jurisdiction
obtain, that want of intention is no excuse from liability (13 C. J., 45). Neither is the
fact that the phrases employed are justified by the facts a valid defense:
"Where the matter is abusive or insulting, evidence that the language used was
justified by the facts is not admissible as a defense. Respect for the judicial office
should always be observed and enforced." (In re Stewart, 118 La., 827; 43 S., 455.)
Said lack or want of intention constitutes at most an extenuation of liability in this
case, taking into consideration Attorney Vicente J. Francisco's state of mind, according
to him when he prepared said motion. This court is disposed to make such concession.
However, in order to avoid a recurrence thereof and to prevent others, by following
the bad example, from taking the same course, this court considers it imperative to
treat the case of said attorney with the justice it deserves.139 (Emphases supplied.)
Thus, the 35 respondents named in the Common Compliance should,
notwithstanding their claim of good faith, be reminded of their lawyerly duty, under
Canons 1, 11 and 13, to give due respect to the courts and to refrain from intemperate
and offensive language tending to influence the Court on pending matters or to
denigrate the courts and the administration of justice.
With respect to Prof. Vasquez, the Court favorably notes the differences in his
Compliance compared to his colleagues. In our view, he was the only one among the
respondents who showed true candor and sincere deference to the Court. He was
able to give a straightforward account of how he came to sign the Statement. He was
candid enough to state that his agreement to the Statement was in principle and that
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the reason plagiarism was a "fair topic of discussion" among the UP Law faculty prior
to the promulgation of the October 12, 2010 Decision in A.M. No. 10-7-17-SC was the
uncertainty brought about by a division of opinion on whether or not willful or
deliberate intent was an element of plagiarism. He was likewise willing to
acknowledge that he may have been remiss in failing to assess the effect of the
language of the Statement and could have used more care. He did all this without
having to retract his position on the plagiarism issue, without demands for
undeserved reliefs (as will be discussed below) and without baseless insinuations of
deprivation of due process or of prejudgment. This is all that this Court expected from
respondents, not for them to sacrifice their principles but only that they recognize
that they themselves may have committed some ethical lapse in this affair. We
commend Prof. Vaquez for showing that at least one of the respondents can grasp
the true import of the Show Cause Resolution involving them. For these reasons, the
Court finds Prof. Vasquez’s Compliance satisfactory.
As for Prof. Lynch, in view of his Manifestation that he is a member of the Bar of the
State of Minnesota and, therefore, not under the disciplinary authority of this Court,
he should be excused from these proceedings. However, he should be reminded that
while he is engaged as a professor in a Philippine law school he should strive to be a
model of responsible and professional conduct to his students even without the
threat of sanction from this Court. For even if one is not bound by the Code of
Professional Responsibility for members of the Philippine Bar, civility and respect
among legal professionals of any nationality should be aspired for under universal
standards of decency and fairness.
The Court’s ruling on Dean Leonen’s Compliance regarding the charge of violation of
Canon 10.
To recall, the Show Cause Resolution directed Dean Leonen to show cause why he
should not be disciplinary dealt with for violation of Canon 10, Rules 10.01, 10.02 and
10.03 and for submitting a "dummy" that was not a true and faithful reproduction of
the signed Statement.
In his Compliance, Dean Leonen essentially denies that Restoring Integrity II was not
a true and faithful reproduction of the actual signed copy, Restoring Integrity I,
because looking at the text or the body, there were no differences between the two.
He attempts to downplay the discrepancies in the signature pages of the two versions
of the Statement (i.e., Restoring Integrity I and Restoring Integrity II) by claiming that
it is but expected in "live" public manifestos with dynamic and evolving pages as more
and more signatories add their imprimatur thereto. He likewise stresses that he is not
administratively liable because he did not misrepresent the members of the UP Law
faculty who "had agreed with the Restoring Integrity Statement proper and/or who
had expressed their desire to be signatories thereto."140
To begin with, the Court cannot subscribe to Dean Leonen’s implied view that the
signatures in the Statement are not as significant as its contents. Live public manifesto
or not, the Statement was formally submitted to this Court at a specific point in time
and it should reflect accurately its signatories at that point. The value of the Statement
as a UP Law Faculty Statement lies precisely in the identities of the persons who have
signed it, since the Statement’s persuasive authority mainly depends on the
reputation and stature of the persons who have endorsed the same. Indeed, it is
apparent from respondents’ explanations that their own belief in the "importance" of
their positions as UP law professors prompted them to publicly speak out on the
matter of the plagiarism issue in the Vinuya case.
Further, in our assessment, the true cause of Dean Leonen’s predicament is the fact
that he did not from the beginning submit the signed copy, Restoring Integrity I, to
this Court on August 11, 2010 and, instead, submitted Restoring Integrity II with its
retyped or "reformatted" signature pages. It would turn out, according to Dean
Leonen’s account, that there were errors in the retyping of the signature pages due
to lapses of his unnamed staff. First, an unnamed administrative officer in the dean’s
office gave the dean inaccurate information that led him to allow the inclusion of
Justice Mendoza as among the signatories of Restoring Integrity II. Second, an
unnamed staff also failed to type the name of Atty. Armovit when encoding the
signature pages of Restoring Integrity II when in fact he had signed Restoring Integrity
I.
The Court can understand why for purposes of posting on a bulletin board or a
website a signed document may have to be reformatted and signatures may be
indicated by the notation (SGD). This is not unusual. We are willing to accept that the
reformatting of documents meant for posting to eliminate blanks is necessitated by
vandalism concerns.
However, what is unusual is the submission to a court, especially this Court, of a
signed document for the Court’s consideration that did not contain the actual
signatures of its authors. In most cases, it is the original signed document that is
transmitted to the Court or at the very least a photocopy of the actual signed
document. Dean Leonen has not offered any explanation why he deviated from this
practice with his submission to the Court of Restoring Integrity II on August 11, 2010.
There was nothing to prevent the dean from submitting Restoring Integrity I to this
Court even with its blanks and unsigned portions. Dean Leonen cannot claim fears of
vandalism with respect to court submissions for court employees are accountable for
the care of documents and records that may come into their custody. Yet, Dean
Leonen deliberately chose to submit to this Court the facsimile that did not contain
the actual signatures and his silence on the reason therefor is in itself a display of lack
of candor.
Still, a careful reading of Dean Leonen’s explanations yield the answer. In the course
of his explanation of his willingness to accept his administrative officer’s claim that
Justice Mendoza agreed to be indicated as a signatory, Dean Leonen admits in a
footnote that other professors had likewise only authorized him to indicate them as
signatories and had not in fact signed the Statement. Thus, at around the time
Restoring Integrity II was printed, posted and submitted to this Court, at least one
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purported signatory thereto had not actually signed the same. Contrary to Dean
Leonen’s proposition, that is precisely tantamount to making it appear to this Court
that a person or persons participated in an act when such person or persons did not.
We are surprised that someone like Dean Leonen, with his reputation for perfection
and stringent standards of intellectual honesty, could proffer the explanation that
there was no misrepresentation when he allowed at least one person to be indicated
as having actually signed the Statement when all he had was a verbal communication
of an intent to sign. In the case of Justice Mendoza, what he had was only hearsay
information that the former intended to sign the Statement. If Dean Leonen was truly
determined to observe candor and truthfulness in his dealings with the Court, we see
no reason why he could not have waited until all the professors who indicated their
desire to sign the Statement had in fact signed before transmitting the Statement to
the Court as a duly signed document. If it was truly impossible to secure some
signatures, such as that of Justice Mendoza who had to leave for abroad, then Dean
Leonen should have just resigned himself to the signatures that he was able to secure.
We cannot imagine what urgent concern there was that he could not wait for actual
signatures before submission of the Statement to this Court. As respondents all
asserted, they were neither parties to nor counsels in the Vinuya case and the ethics
case against Justice Del Castillo. The Statement was neither a pleading with a deadline
nor a required submission to the Court; rather, it was a voluntary submission that
Dean Leonen could do at any time.
In sum, the Court likewise finds Dean Leonen’s Compliance unsatisfactory. However,
the Court is willing to ascribe these isolated lapses in judgment of Dean Leonen to his
misplaced zeal in pursuit of his objectives. In due consideration of Dean Leonen’s
professed good intentions, the Court deems it sufficient to admonish Dean Leonen
for failing to observe full candor and honesty in his dealings with the Court as required
under Canon 10.
Respondents’ requests for a hearing, for production/presentation of evidence bearing
on the plagiarism and misrepresentation issues in G.R. No. 162230 and A.M. No. 10-
7-17-SC, and for access to the records of A.M. No. 10-7-17-SC are unmeritorious.
In the Common Compliance, respondents named therein asked for alternative reliefs
should the Court find their Compliance unsatisfactory, that is, that the Show Cause
Resolution be set for hearing and for that purpose, they be allowed to require the
production or presentation of witnesses and evidence bearing on the plagiarism and
misrepresentation issues in the Vinuya case (G.R. No. 162230) and the plagiarism case
against Justice Del Castillo (A.M. No. 10-7-17-SC) and to have access to the records of,
and evidence that were presented or may be presented in the ethics case against
Justice Del Castillo. The prayer for a hearing and for access to the records of A.M. No.
10-7-17-SC was substantially echoed in Dean Leonen’s separate Compliance. In Prof.
Juan-Bautista’s Compliance, she similarly expressed the sentiment that "[i]f the
Restoring Integrity Statement can be considered indirect contempt, under Section 3
of Rule 71 of the Rules of Court, such may be punished only after charge and
hearing."141 It is this group of respondents’ premise that these reliefs are necessary
for them to be accorded full due process.
The Court finds this contention unmeritorious.
Firstly, it would appear that the confusion as to the necessity of a hearing in this case
springs largely from its characterization as a special civil action for indirect contempt
in the Dissenting Opinion of Justice Sereno (to the October 19, 2010 Show Cause
Resolution) and her reliance therein on the majority’s purported failure to follow the
procedure in Rule 71 of the Rules of Court as her main ground for opposition to the
Show Cause Resolution.
However, once and for all, it should be clarified that this is not an indirect contempt
proceeding and Rule 71 (which requires a hearing) has no application to this case. As
explicitly ordered in the Show Cause Resolution this case was docketed as an
administrative matter.
The rule that is relevant to this controversy is Rule 139-B, Section 13, on disciplinary
proceedings initiated motu proprio by the Supreme Court, to wit:
SEC. 13. Supreme Court Investigators.—In proceedings initiated motu proprio by the
Supreme Court or in other proceedings when the interest of justice so requires, the
Supreme Court may refer the case for investigation to the Solicitor General or to any
officer of the Supreme Court or judge of a lower court, in which case the investigation
shall proceed in the same manner provided in sections 6 to 11 hereof, save that the
review of the report of investigation shall be conducted directly by the Supreme
Court. (Emphasis supplied.)
From the foregoing provision, it cannot be denied that a formal investigation, through
a referral to the specified officers, is merely discretionary, not mandatory on the
Court. Furthermore, it is only if the Court deems such an investigation necessary that
the procedure in Sections 6 to 11 of Rule 139-A will be followed.
As respondents are fully aware, in general, administrative proceedings do not require
a trial type hearing. We have held that:
The essence of due process is simply an opportunity to be heard or, as applied to
administrative proceedings, an opportunity to explain one's side or an opportunity to
seek a reconsideration of the action or ruling complained of. What the law prohibits
is absolute absence of the opportunity to be heard, hence, a party cannot feign denial
of due process where he had been afforded the opportunity to present his side. A
formal or trial type hearing is not at all times and in all instances essential to due
process, the requirements of which are satisfied where the parties are afforded fair
and reasonable opportunity to explain their side of the controversy.142 (Emphases
supplied.)
In relation to bar discipline cases, we have had the occasion to rule in Pena v.
Aparicio143 that:
Disciplinary proceedings against lawyers are sui generis. Neither purely civil nor purely
criminal, they do not involve a trial of an action or a suit, but is rather an investigation
by the Court into the conduct of one of its officers. Not being intended to inflict
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punishment, it is in no sense a criminal prosecution. Accordingly, there is neither a
plaintiff nor a prosecutor therein. It may be initiated by the Court motu proprio. Public
interest is its primary objective, and the real question for determination is whether or
not the attorney is still a fit person to be allowed the privileges as such. Hence, in the
exercise of its disciplinary powers, the Court merely calls upon a member of the Bar
to account for his actuations as an officer of the Court with the end in view of
preserving the purity of the legal profession and the proper and honest administration
of justice by purging the profession of members who by their misconduct have proved
themselves no longer worthy to be entrusted with the duties and responsibilities
pertaining to the office of an attorney. In such posture, there can thus be no occasion
to speak of a complainant or a prosecutor.144 (Emphases supplied.)
In Query of Atty. Karen M. Silverio-Buffe, Former Clerk of Court – Br. 81, Romblon –
On the Prohibition from Engaging in the Private Practice of Law,145 we further
observed that:
[I]n several cases, the Court has disciplined lawyers without further inquiry or resort
to any formal investigation where the facts on record sufficiently provided the basis
for the determination of their administrative liability.
In Prudential Bank v. Castro, the Court disbarred a lawyer without need of any further
investigation after considering his actions based on records showing his unethical
misconduct; the misconduct not only cast dishonor on the image of both the Bench
and the Bar, but was also inimical to public interest and welfare. In this regard, the
Court took judicial notice of several cases handled by the errant lawyer and his
cohorts that revealed their modus operandi in circumventing the payment of the
proper judicial fees for the astronomical sums they claimed in their cases. The Court
held that those cases sufficiently provided the basis for the determination of
respondents' administrative liability, without need for further inquiry into the matter
under the principle of res ipsa loquitur.
Also on the basis of this principle, we ruled in Richards v. Asoy, that no evidentiary
hearing is required before the respondent may be disciplined for professional
misconduct already established by the facts on record.
xxxx
These cases clearly show that the absence of any formal charge against and/or formal
investigation of an errant lawyer do not preclude the Court from immediately
exercising its disciplining authority, as long as the errant lawyer or judge has been
given the opportunity to be heard. As we stated earlier, Atty. Buffe has been afforded
the opportunity to be heard on the present matter through her letter-query and
Manifestation filed before this Court.146 (Emphases supplied.)
Under the rules and jurisprudence, respondents clearly had no right to a hearing and
their reservation of a right they do not have has no effect on these proceedings.
Neither have they shown in their pleadings any justification for this Court to call for a
hearing in this instance. They have not specifically stated what relevant evidence,
documentary or testimonial, they intend to present in their defense that will
necessitate a formal hearing.
Instead, it would appear that they intend to present records, evidence, and witnesses
bearing on the plagiarism and misrepresentation issues in the Vinuya case and in A.M.
No. 10-7-17-SC on the assumption that the findings of this Court which were the bases
of the Show Cause Resolution were made in A.M. No. 10-7-17-SC, or were related to
the conclusions of the Court in the Decision in that case. This is the primary reason
for their request for access to the records and evidence presented in A.M. No. 10-7-
17-SC.
This assumption on the part of respondents is erroneous. To illustrate, the only
incident in A.M. No. 10-7-17-SC that is relevant to the case at bar is the fact that the
submission of the actual signed copy of the Statement (or Restoring Integrity I, as
Dean Leonen referred to it) happened there. Apart from that fact, it bears repeating
that the proceedings in A.M. No. 10-7-17-SC, the ethics case against Justice Del
Castillo, is a separate and independent matter from this case.
To find the bases of the statements of the Court in the Show Cause Resolution that
the respondents issued a Statement with language that the Court deems
objectionable during the pendency of the Vinuya case and the ethics case against
Justice Del Castillo, respondents need to go no further than the four corners of the
Statement itself, its various versions, news reports/columns (many of which
respondents themselves supplied to this Court in their Common Compliance) and
internet sources that are already of public knowledge.
Considering that what respondents are chiefly required to explain are the language of
the Statement and the circumstances surrounding the drafting, printing, signing,
dissemination, etc., of its various versions, the Court does not see how any witness or
evidence in the ethics case of Justice Del Castillo could possibly shed light on these
facts. To be sure, these facts are within the knowledge of respondents and if there is
any evidence on these matters the same would be in their possession.
We find it significant that in Dean Leonen’s Compliance he narrated how as early as
September 2010, i.e., before the Decision of this Court in the ethics case of Justice
Del Castillo on October 12, 2010 and before the October 19, 2010 Show Cause
Resolution, retired Supreme Court Justice Vicente V. Mendoza, after being shown a
copy of the Statement upon his return from abroad, predicted that the Court would
take some form of action on the Statement. By simply reading a hard copy of the
Statement, a reasonable person, even one who "fundamentally agreed" with the
Statement’s principles, could foresee the possibility of court action on the same on
an implicit recognition that the Statement, as worded, is not a matter this Court
should simply let pass. This belies respondents’ claim that it is necessary for them to
refer to any record or evidence in A.M. No. 10-7-17-SC in order to divine the bases for
the Show Cause Resolution.
If respondents have chosen not to include certain pieces of evidence in their
respective compliances or chosen not to make a full defense at this time, because
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they were counting on being granted a hearing, that is respondents’ own look-out. ADMONISHED to be more mindful of his duty, as a member of the Bar, an
Indeed, law professors of their stature are supposed to be aware of the above officer of the Court, and a Dean and professor of law, to observe full candor
jurisprudential doctrines regarding the non-necessity of a hearing in disciplinary and honesty in his dealings with the Court and warned that the same or
cases. They should bear the consequence of the risk they have taken. similar act in the future shall be dealt with more severely.
Thus, respondents’ requests for a hearing and for access to the records of, and (4) Prof. Lynch, who is not a member of the Philippine bar, is excused from
evidence presented in, A.M. No. 10-7-17-SC should be denied for lack of merit. these proceedings. However, he is reminded that while he is engaged as a
A final word professor in a Philippine law school he should strive to be a model of
In a democracy, members of the legal community are hardly expected to have responsible and professional conduct to his students even without the
monolithic views on any subject, be it a legal, political or social issue. Even as lawyers threat of sanction from this Court.
passionately and vigorously propound their points of view they are bound by certain (5) Finally, respondents’ requests for a hearing and for access to the records
rules of conduct for the legal profession. This Court is certainly not claiming that it of A.M. No. 10-7-17-SC are denied for lack of merit.
should be shielded from criticism. All the Court demands is the same respect and SO ORDERED.
courtesy that one lawyer owes to another under established ethical standards. All
lawyers, whether they are judges, court employees, professors or private
practitioners, are officers of the Court and have voluntarily taken an oath, as an
indispensable qualification for admission to the Bar, to conduct themselves with good
fidelity towards the courts. There is no exemption from this sworn duty for law
professors, regardless of their status in the academic community or the law school to
which they belong.
WHEREFORE, this administrative matter is decided as follows:
(1) With respect to Prof. Vasquez, after favorably noting his submission, the
Court finds his Compliance to be satisfactory.
(2) The Common Compliance of 35 respondents, namely, Attys. Marvic
M.V.F. Leonen, Froilan M. Bacungan, Pacifico A. Agabin, Merlin M.
Magallona, Salvador T. Carlota, Carmelo V. Sison, Patricia R.P. Salvador
Daway, Dante B. Gatmaytan, Theodore O. Te, Florin T. Hilbay, Jay L.
Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera, Solomon F. Lumba,
Rommel J. Casis, Jose Gerardo A. Alampay, Miguel R. Armovit, Arthur P.
Autea, Rosa Maria J. Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A.
Catindig, Sandra Marie O. Coronel, Rosario O. Gallo, Concepcion L.
Jardeleza, Antonio G.M. La Viña, Carina C. Laforteza, Jose C. Laureta,
Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen Faye B. Tomboc,
Nicholas Felix L. Ty, Evalyn G. Ursua, Susan D. Villanueva and Dina D.
Lucenario, is found UNSATISFACTORY. These 35 respondent law professors
are reminded of their lawyerly duty, under Canons 1, 11 and 13 of the Code
of Professional Responsibility, to give due respect to the Court and to
refrain from intemperate and offensive language tending to influence the
Court on pending matters or to denigrate the Court and the administration
of justice and warned that the same or similar act in the future shall be dealt
with more severely.
(3) The separate Compliance of Dean Marvic M.V.F. Leonen regarding the
charge of violation of Canon 10 is found UNSATISFACTORY. He is further

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VICTORIA LEGARDA, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, NEW CATHAY HOUSE, INC., THE HONORABLE
REGIONAL TRIAL COURT OF QUEZON CITY, BRANCH 94, respondents.
Nothing is more settled than the rule that the mistake of a counsel binds the client. It is
only in case of gross or palpable negligence of counsel when the courts must step in and
accord relief to a client who suffered thereby.
The present case is a typical example of such rare exception.
Petitioner Victoria Legarda was the owner of a parcel of land and the improvements
thereon located at 123 West Avenue, Quezon City. On January 11, 1985 respondent New
Cathay House, Inc. filed a complaint against the petitioner for specific performance with
preliminary injunction and damages in the Regional Trial Court (RTC) for Quezon City
alleging, among others, that petitioner entered into a lease agreement with the private
respondent through its representative, Roberto V. Cabrera, Jr., of the aforestated property
of petitioner effective January 1, 1985 until December 31, 1989 or for a period of five (5)
years; that the rental is P25,000.00 per month with 5% escalation per year; that on
November 23, 1984, private respondent deposited the amount of P72,000.00 with
petitioner as down payment of rentals; that respondent drew up the written contract and
sent it to petitioner, that petitioner failed and refused to execute and sign the same despite
demands of respondent; and that the respondent suffered damages due to the delay in
the renovation and opening of its restaurant business. The private respondent prayed that
pending the resolution of the case a restraining order be issued against petitioner or her
agents enjoining them from stopping the renovation and use of the premises by private
respondent. It was also prayed that after due hearing the petitioner be ordered to execute
the lease contract; to pay actual compensatory, exemplary and other damages in such
amount as may be proved during the trial including P30,000.00 attorney's fees plus
P300.00 per appearance of counsel, and to pay the expenses of litigation. 1
Petitioner engaged the services of counsel to handle her case. Said counsel filed his
appearance with an urgent motion for extension of time to file the answer within ten (10)
days from February 26, 1985. 2 However, said counsel failed to file the answer within the
extended period prayed for. Counsel for private respondent filed an ex-parte motion to
declare petitioner in default. This was granted by the trial court on March 25, 1985 and
private respondent was allowed to present evidence ex-parte. Thereafter, on March 25,
1985, the trial court rendered its decision, the dispositive part of which reads as follows:
WHEREFORE, judgment is hereby rendered ordering defendant Victoria G.
Legarda to execute and sign Exhibit "D":, the lease contract for the premises at
123 West Avenue, Quezon City. Accordingly, the preliminary injunction earlier
issued on January 31, 1985 is hereby made permanent.
Judgment is likewise rendered ordering defendant to pay exemplary damages
in the sum of P100,000.00 to serve as example and deterrent for others, and
actual and compensatory damages as follows:
1. For loss and destroyed goodwill and reputation in the amount of P100,000.00;
2. The sum of P61,704.40 as adjustments in the costs of labor and materials for
the renovation of the premises;
3. The sum of P50,000.00 as unearned income for the delay of plaintiff 's
operations from January 1, 1985 up to February 25, 1985 or a period of almost
two (2) months;
4. The sum of P16,635.57 and P50,424.40 as additional compensatory damages
incurred by plaintiff for the extension of the lease of its premises at Makati and
salaries of idle employees, respectively;
5. The sum of P10,000.00 as and by way of attorney's fees; and
6. The costs of suit. 3
Copy of said decision was duly served on counsel for the petitioner but he did not take any
action. Thus, the judgment became final and executory. On May 8, 1985, upon motion of
private respondent, a writ of execution of the judgment was issued by the trial court. 4
At public auction, the sheriff sold the aforestated property of petitioner to Roberto V.
Cabrera, Jr. for the sum of P376,500.00 to satisfy the judgment. The sheriff issued a
certificate of sale dated June 8, 1985 covering the said property.5 After the one year
redemption period expired without the petitioner redeeming the property, ownership was
consolidated in the name of Roberto V. Cabrera, Jr. The sheriff issued a final deed of sale
on July 8, 1986 in his favor. Cabrera registered the same in the office of the Register of
Deeds on July 11, 1986.
Upon learning of this unfortunate turn of events, petitioner prevailed upon her counsel, to
seek the appropriate relief. On November 6, 1986 said counsel filed in the Court of Appeals
a petition for annulment of judgment calling attention to the unjust enrichment of private
respondent in securing the transfer in its name of the property valued at P 2.5 million
without justification; that when the complaint was filed in court by private respondent
against the petitioner, the parties came to an agreement to settle their differences, the
private respondent assuring petitioner that the complaint it filed shall be withdrawn so
petitioner advised her lawyer that there was no longer any need to file an answer to the
complaint; that on February 22, 1985, private respondent nevertheless filed an ex-
partemotion to declare the petitioner in default; that petitioner was deprived of the right
to present her defense through false pretenses, misrepresentation and fraud practiced
upon her by private respondent warranting the annulment of the judgment; that the
documentary evidence presented by private respondent, which served as the basis of the
decision, is falsified and tampered with; that as an example, the voucher filed by petitioner,
contains typewritten entries to the effect that the term of the lease is for five (5) years to
which petitioner never agreed, and that the option to buy the property was given to the
private respondent; that the fact that the property worth P2 million was sold at public
auction at a shockingly and questionably low price of P376,500.00 is by itself a sufficient
basis for annulling the sale for being grossly inadequate to shock the conscience and
understanding of men, giving rise to a presumption of fraud.6 Thus, it was prayed that a
preliminary mandatory injunction issue ordering the private respondent to surrender the
property to petitioner and to enjoin the former from further harassing and threatening the
peaceful possession of petitioner; and that after hearing, the decision of the trial court in
Civil Case No. Q-43811 and the sheriffs certificate of sale7 be likewise annulled; that private
respondent be adjudged to pay petitioner no less than P500,000.00 actual and moral
damages, as well as exemplary damages and attorney's fees in the amount of P50,000.00,
plus the costs of the suit. 8
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Legal Ethics
On February 2, 1987 an amended petition was filed by counsel for petitioner in the Court
of Appeals raising the additional issue that the decision is not supported by the allegations
in the pleadings or by the evidence submitted. 9
In due course, a decision was rendered by the Court of Appeals on November 29,
1989. 10 The appellate court made the following observations:
On the other hand, petitioner's above allegation of fraud supposedly practiced
upon her by Roberto V. Cabrera, Jr. is so improbable as to inspire belief. For the
Coronel Law Office had already entered its appearance as petitioner's counsel
by then, so that if it were true that Cabrera had already agreed to the conditions
imposed by petitioner, said law office would have asked plaintiff to file the
proper motion to dismiss or withdraw complaint with the Court, and if plaintiff
had refused to do so, it would have filed defendant's answer anyway so that she
would not be declared in default. Or said law office would have prepared a
compromise agreement embodying the conditions imposed by their client in the
lease contract in question which plaintiff had allegedly already accepted, so that
the same could have been submitted to the Court and judgment on a
compromise could be entered. All these, any conscientious lawyer of lesser
stature than the Coronel Law Office, headed by no less than a former law dean,
Dean Antonio Coronel, or even a new member of the bar, would normally have
done under the circumstances to protect the interests of their client, instead of
leaving it to the initiative of plaintiff to withdraw its complaint against
defendant, as it had allegedly promised the latter. Thus, it is our belief that this
case is one of-pure and simple negligence on the part of defendant's counsel who
simply failed to file the answer in behalf of defendant, But counsel's negligence
does not stop here. For after it had been furnished with copy of the decision by
default against defendant, it should then have appealed therefrom or file a
petition from relief from the order declaring their client in default or from the
judgment by default. [sic] Again, counsel negligently failed to do either. Hence,
defendant is bound by the acts of her counsel in this case and cannot be heard
to complain that the result might have been different if it had proceeded
differently (Pulido vs. C.A., 122 SCRA 63; Ayllon vs. Sevilla, 156 SCRA 257, among
other cases). And the rationale of this rule is obvious and clear. For "if such
grounds were to be admitted as reasons for opening cases, there would never
be an end to a suit so long as new counsel could be employed who could allege
and show that the prior counsel had not been sufficiently diligent, or
experienced, or learned" (Fernandez vs. Tan Tiong Tick, 1 SCRA 1138). 11
Despite these findings, the appellate court nevertheless dismissed the petition for
annulment of judgment with costs against the petitioner. A copy of the said judgment
appears to have been served on counsel for the petitioner. However, said counsel did not
file a motion for reconsideration or appeal therefrom, so it became final.
It was only in March 1990 when the secretary of counsel for petitioner informed the latter
of the adverse decision against her only after persistent telephone inquiries of the
petitioner.
Hence, petitioner secured the services of another lawyer who filed this petition
for certiorari under Rule 65 of the Rules of Court wherein it is prayed that the judgment of
the Regional Trial Court of Quezon City in Civil Case No. Q-43811, the decision of the Court
of Appeals in CA-G.R. No. 10487 and the sheriff's sale at public auction of the property in
question be annulled, as the same are attributable to the gross negligence and inefficiency
of petitioner's counsel, whose blunder cannot bind the petitioner who was deprived of due
process thereby. It is further prayed that private respondent Cathay House, Inc. be ordered
to reconvey to petitioner the property covered by TCT No. 270814, which was sold at public
auction to Roberto V. Cabrera, Jr. and in whose favor its ownership was consolidated, and
thereafter ownership appears to have been transferred to private respondent.
The petition is impressed with merit.
Petitioner's counsel is a well-known practicing lawyer and dean of a law school. It is to be
expected that he would extend the highest quality of service as a lawyer to the petitioner.
Unfortunately, counsel appears to have abandoned the cause of petitioner. After agreeing
to defend the petitioner in the civil case filed against her by private respondent, said
counsel did nothing more than enter his appearance and seek for an extension of time to
file the answer. Nevertheless, he failed to file the answer. Hence, petitioner was declared
in default on motion of private respondent's counsel. After the evidence of private
respondent was received ex-parte, a judgment was rendered by the trial court.
Said counsel for petitioner received a copy of the judgment but took no steps to have the
same set aside or to appeal therefrom. Thus, the judgment became final and executory.
The property of petitioner was sold at public auction to satisfy the judgment in favor of
private respondent. The property was sold to Roberto V. Cabrera, Jr., representative of
private respondent, and a certificate of sale was issued in his favor. The redemption period
expired after one year so a final deed of sale was issued by the sheriff in favor of Cabrera,
who in turn appears to have transferred the same to private respondent.
During all the time, the petitioner was abroad. When, upon her return, she learned, to her
great shock, what happened to her case and property, she nevertheless did not lose faith
in her counsel. She still asked Atty. Coronel to take such appropriate action possible under
the circumstances.
As above related, said counsel filed a petition for annulment of judgment and its
amendment in the Court of Appeals.1âwphi1 But that was all he did. After an adverse
judgment was rendered against petitioner, of which counsel was duly notified, said counsel
did not inform the petitioner about it. He did not even ask for a reconsideration thereof,
or file a petition for review before this Court. Thus, the judgment became final. It was only
upon repeated telephone inquiries of petitioner that she learned from the secretary of her
counsel of the judgment that had unfortunately become final.
A lawyer owes entire devotion to the interest of his client, warmth and zeal in the
maintenance and defense of his rights and the exertion of his utmost learning and ability,
to the end that nothing can be taken or withheld from his client except in accordance with
the law. He should present every remedy or defense authorized by the law in support of
his client's cause, regardless of his own personal views. In the full discharge of his duties to
his client, the lawyer should not be afraid of the possibility that he may displease the judge
or the general public.12
Judged by the actuations of said counsel in this case, he has miserably failed in his duty to
exercise his utmost learning and ability in maintaining his client's cause.13 It is not only a
case of simple negligence as found by the appellate court, but of reckless and gross
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Legal Ethics
negligence, so much so that his client was deprived of her property without due process
of law.
In People's Homesite & Housing Corp. vs. Tiongco and Escasa, 14 this Court ruled as follows:
Procedural technicality should not be made a bar to the vindication of a
legitimate grievance. When such technicality deserts from being an aid to
justice, the courts are justified in excepting from its operation a particular case.
Where there was something fishy and suspicious about the actuations of the
former counsel of petitioner in the case at bar, in that he did not given any
significance at all to the processes of the court, which has proven prejudicial to
the rights of said clients, under a lame and flimsy explanation that the court's
processes just escaped his attention, it is held that said lawyer deprived his
clients of their day in court, thus entitling said clients to petition for relief from
judgment despite the lapse of the reglementary period for filing said period for
filing said petition.
In Escudero vs. Judge Dulay, 15 this Court, in holding that the counsel's blunder in
procedure is an exception to the rule that the client is bound by the mistakes of counsel,
made the following disquisition:
Petitioners contend, through their new counsel, that the judgments rendered
against them by the respondent court are null and void, because they were
therein deprived of their day in court and divested of their property without due
process of law, through the gross ignorance, mistake and negligence of their
previous counsel. They acknowledge that, while as a rule, clients are bound by
the mistake of their counsel, the rule should not be applied automatically to
their case, as their trial counsel's blunder in procedure and gross ignorance of
existing jurisprudence changed their cause of action and violated their
substantial rights.
We are impressed with petitioner's contentions.
Ordinarily, a special civil action under Rule 65 of the Rules of Court will not be a
substitute or cure for failure to file a timely petition for review
on certiorari (appeal) under Rule 45 of the Rules. Where, however, the
application of the rule will result in a manifest failure or miscarriage of justice,
the rule may be relaxed.
xxx xxx xxx
While this Court is cognizant of the rule that, generally, a client will suffer the
consequences of the negligence, mistake or lack of competence of his counsel,
in the interest of justice and equity, exceptions may be made to such rule, in
accordance with the facts and circumstances of each case. Adherence to the
general rule would, in the instant case, result in the outright deprivation of their
property through a technicality.
In its questioned decision dated November 19, 1989 the Court of Appeals found, in no
uncertain terms, the negligence of the then counsel for petitioner when he failed to file
the proper motion to dismiss or to draw a compromise agreement if it was true that they
agreed on a settlement of the case; or in simply filing an answer; and that after having
been furnished a copy of the decision by the court he failed to appeal therefrom or to file
a petition for relief from the order declaring petitioner in default. In all these instances the
appellate court found said counsel negligent but his acts were held to bind his client,
petitioner herein, nevertheless.
The Court disagrees and finds that the negligence of counsel in this case appears to be so
gross and inexcusable. This was compounded by the fact, that after petitioner gave said
counsel another chance to make up for his omissions by asking him to file a petition for
annulment of the judgment in the appellate court, again counsel abandoned the case of
petitioner in that after he received a copy of the adverse judgment of the appellate court,
he did not do anything to save the situation or inform his client of the judgment. He allowed
the judgment to lapse and become final. Such reckless and gross negligence should not be
allowed to bind the petitioner. Petitioner was thereby effectively deprived of her day in
court.
Thus, We have before Us a case where to enforce an alleged lease agreement of the
property of petitioner, private respondent went to court, and that because of the gross
negligence of the counsel for the petitioner, she lost the case as well as the title and
ownership of the property, which is worth millions. The mere lessee then now became the
owner of the property. Its true owner then, the petitioner, now is consigned to penury all
because her lawyer appear to have abandoned her case not once but repeatedly.
The Court cannot allow such a grave injustice to prevail. It cannot tolerate such unjust
enrichment of the private respondent at the expense of the petitioner. The situation is
aggravated by the fact that said counsel is a well-known practicing lawyer and the dean of
a law school as the Court at the beginning of this discourse observed. His competence
should be beyond cavil. Thus, there appears to be no cogent excuse for his repeated
negligence and inaction. His lack of devotion to duty is so gross and palpable that this Court
must come to the aid of his distraught client, the petitioner herein.
As member of the Philippine Bar he owes complete fidelity to the cause of his client. He
should give adequate attention, care and time to his cases. This is the reason why a
practicing lawyer should accept only so many cases he can afford to handle. And once he
agrees to handle a case, he should undertake the task with dedication and care. If he
should do any less, then he is not true to his oath as a lawyer.
WHEREFORE, the petition is GRANTED and the questioned decision of the Regional Trial
Court of Quezon City dated March 25, 1985 in Civil Case No. Q-43811; the decision of the
Court of Appeals dated November 29, 1989 in CA-G.R. No. SP-10487; the Sheriff 's
Certificate of Sale dated June 27, 1985 of the property in question; and the subsequent
final deed of sale covering the same property, are all hereby declared null and void. Private
respondent New Cathay House, Inc. is directed to reconvey said property to the petitioner,
and the Register of Deeds is ordered to cancel the registration of said property in the name
of private respondent and to issue a new one in the name of petitioner. Costs against
private respondent. Said counsel for petitioner is hereby required to show cause within
ten (10) days from notice why he should not be held administratively liable for his acts and
omissions hereinabove described in this decision.
SO ORDERED.
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Legal Ethics
ROSITA TAN, petitioner, vs., ATTY. JOSE L. LAPAK, respondent.
This is a complaint filed by Rosita Tan against Atty. Jose L. Lapak for misconduct,
based on respondents failure to file with this Court a petition for review on certiorari
of a resolution of the Court of Appeals dismissing complainants appeal. Complainant
alleged that despite the fact that this Court had granted respondent an extension of
the time to file the petition for review on certiorari and she had paid respondent his
fee, the latter nonetheless failed to file the petition in this Court. Complainants letter,
dated January 10, 1991, addressed to then Chief Justice Marcelo B. Fernan, stated:
Ako po ay sumusulat sa iyo upang ihingi ng tulong ang aking suliranin na may
kaugnayan sa aking kaso, G.R. No. 93707 ROSITA TAN v. CA, et al. na dahilan sa
kapabayaan ng aking abogado na si Atty. Jose Lapak ay hindi nakapagfile ng Certiorari
nasa ngayon kanyang inihihinging palugit ay naibigay naman, at ako po ay nagbigay
naman ng halagang P4,000.00 upang gawain lamang ang petition sa pagrerepaso ng
Certiorari subalit inuulit pang hindi gawain.
Kgg. Na Chief Justice ako poy pinaasa lamang ng aking abogado na wala man lamang
nagawa kung ano ang nararapat. Ako naman ay isang walang karanasan sa bagay na
ito ay naniwala at naghintay. Nang makausap ko po siya ay aking tinapat kung ano na
at walang nadating na resulta sa ginawa niya ang sagot sa aking maghintay na lamang
daw ako. Ngunit ng ako po ay pumunta sa Maynila at napadaan ako sa Korte Suprema
saka ko pa lamang napag-alaman na ang aking abogado ay hindi nakapaggawa ng brief
ng Certiorari at kaya napawalaan ng bisa ang aking apelasyon.
Akin pong naisip na idulog ang aking kaapihan sa Pangulo ng IBP ng Camarines Norte
ang mga bagay na ito ang sagot po sa aking ay maari akong maghain ng demanda
laban sa aking abogado na si Atty. Jose L. Lapak ngunit ako po ay mahirap lamang at
isa pa wala akong matutustos sa aking abogado. Isa pa po wala akong pera at sapat
na pinag-aralan kaya po hindi ko alam kung sino ang aking dudulungan para tumulong
sa mahihirap. Kaya naisip ko pong sumulat sa opisina ninyo, para ihain ang aking
karaingan.Kung inyo pong mamarapatin ako ay humihingi ng tulong sa iyo bilang
pinakamataas na hustisya ang aking kaapihan.
Respondent denied the allegations against him. In his manifestation and
comment, dated March 4, 1991, he contended:
a) Ms. Rosita Tan was formerly represented by Atty. Juanito Subia in Civil
Case No. 5295, Rosita Tan vs. Wilfredo Enriquez before the Regional
Trial Court of Camarines Norte; said case was dismissed due to failure
of Rosita Tan and his (sic) counsel to appear during the scheduled Pre-
Trial of the case; . . .said Order of dismissal was however
reconsidered;
b) On November 11, 1986, Atty. Marciano C. Dating, Jr. entered his
appearance for the said Rosita Tan as her original counsel, Atty.
Juanito Subia, had withdrawn for reasons only known to her; . . .Atty.
Marciano C. Dating, Jr. filed an Amended Complaint;
c) That on September 20, 1988, the Court, through Hon. Luis Dictado,
who heard the case, rendered a decision dismissing Rosita Tans
complaint;
d) That on October 13, 1988, Atty. Dating, Rosita Tans counsel, appealed
from the adverse decision against her to the Court of Appeals;
e) That Atty. Marciano Dating also withdrew later as Rosita Tans counsel
and certain Leopoldo P. San Buenaventura entered his appearance as
new counsel for the said Rosita Tan in the appealed case before the
Court of Appeals which was docketed as C.A. G.R. CV No. 20669;
f) On October 26, 1989, Atty. Leopoldo E. San Buenaventura filed a
Motion for Extension of Time to File Brief for Rosita Tan; however, for
reasons only known to said lawyer, he failed to file his Appellants
Brief; hence, on February 20, 1990, the Court of Appeals issued a
Resolution dismissing the appeal for failure of Rosita Tans counsel to
file Appellants Brief despite extension of time granted to him;
g) That upon receipt by Ms. Rosita Tan of said Resolution dismissing her
appeal due to the failure of her Manila lawyer to file Appellants Brief,
she came to the law office of undersigned counsel in the company of
her friend, Mrs. Gloria Gatan, to employ the latters services to seek
reconsideration of the Order of dismissal and file Appellants Brief to
enable her to pursue her appeal; Rosita employed the legal services
of undersigned counsel not to file a Petition for Review but to seek
reconsideration of the order of dismissal of her appeal; considering
then that she does not have the papers to the case on appeal, Rosita
Tan agreed to pay counsel P5,000.00 to go to Manila, study the
records of the case in the Court of Appeals, file a Motion for
Reconsideration and prepare Appellants Brief for her; she was able to
pay P3,000.00 only instead of P5,000.00 promising to pay the balance
later; consequently, the undersigned counsel filed an URGENT
MOTION FOR RECONSIDERATION with the Court of Appeals.;
h) Unfortunately, the Court of Appeals denied said Motion for
Reconsideration in a Resolution promulgated on May 2, 1990 .;
I) That upon receipt by the undersigned counsel of said Resolution of the
Court of Appeals denying the Motion for Reconsideration, the
undersigned counsel summoned the appellant Rosita Tan and
requested her to bring the balance of P2,000.00 so that a Petition for
Review on Certiorari could be filed with the Supreme Court; however,
the said appellant Rosita Tan upon knowing of the adverse Resolution
of the Court of Appeals became apathetic and when she came to the
law office of the undersigned she expressed her misgivings of bringing
the case to the Supreme Court and told counsel that she has no more
money; despite her indifference and lukewarm attitude, the
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Legal Ethics
undersigned counsel filed a Motion for Extension of Time to file a
Petition for Review with the Supreme Court paying the docket fees
therefore in behalf of said appellant; in the meantime the
undersigned counsel went to Manila to make researches preparatory
to the filing of the Petition for Review with the Supreme Court; The
undersigned counsel then requested the appellant Rosita Tan to pay
him the balance of P2,000.00 as per agreement for him to be able to
prepare the Petition for review in Manila and file it with the Supreme
Court; but said appellant hesitantly paid only P1,000.00 which was
her only money available promising to pay the balance of P1,000.00
later; therafter, the undersigned counsel went to the Court of
Appeals to get certified true copies of the Resolution denying the
Motion for Reconsideration; he then learned that there was already
an Entry of Judgment in the case as the Resolution dismissing the
appeal had already become final; the undersigned then informed
Rosita Tan of her misfortune and informed her that he would study
the propriety of filing an action for annulment of the decision because
of his discovery of an anomaly which resulted in a mistrial; because
of continuous setbacks she suffered from beginning to end; Rosita
Tan said she had lost all hope and was unwilling to go any further; she
then demanded the refund of P4,000.00 from the undersigned; when
the undersigned gave back the P1,000.00 he received from her, she
refused to receive the amount insisting that the whole amount of
P4,000.00 be returned to her claiming that the undersigned counsel
had not done anything for her anyway; hence the misunderstanding
which culminated in her sending a letter complaint to the Honorable
Chief Justice of the Supreme Court.
The case was referred to the Integrated Bar of the Philippines for investigation,
report, and recommendation. On July 29, 2000, the IBP passed a resolution aadopting
the report and recommendation of its Investigating Commissioner Jaime M. Vibar that
respondent be reprimanded and ordered to restitute to complainant the amount of
P1,000.00.
In finding respondent guilty of betrayal of his clients trust and confidence, the
investigating commissioner said in his report:
Regardless of the agreement on the total amount of fees, it is clear that respondent
committed to prepare and file a petition with the Supreme Court and for which he
received P1,000.00 from the complainant (annex B, Sagot, dated May 31,
1991). Despite such commitment, he failed to file the petition.
It is not explained why the payment of PHP1,000.00 was made by complainant for the
petition on August 8, 1990. At that time, the period to file the petition for review as
contemplated by respondent and which was the subject of an extension motion,
dated May 18, 1990, filed with and granted by the Hon. Supreme Court, had already
expired. It is to be noted that respondents motion sought an extension of thirty (30)
days from May 26, 1990 or up to June 25, 1990. It would appear that respondent
received P1,000.00 on August 8, 1990 from complainant at a time when the remedy
of a review of the dismissal order of the Court of Appeals was no longer available. Yet,
complainant was never informed or favored with an explanation that a petition for
review was no longer possible, or perhaps that another remedy was still open to the
complainant. To aggravate his situation, respondent alleges in his comment to the
complaint (at page 3) that after he received P1,000.00 from the complainant he
immediately went to the Court of Appeals to get certified copies of the resolution
denying his motion for reconsideration and that thereat he discovered that an Entry
of Judgment had already been issued. Respondent should have known that when he
went to the Court of Appeals after reciept of P1,000.00, or after August 8, 1990. The
period he requested from the Hon. Supreme Court to institute the petition for review
had long expired.
But the silence of respondent at the time of receipt of the amount of P1,000.00 on
august 8, 1990 and the petition with the Supreme Court was no longer an available
remedy smacks of a betrayal of a clients cause and the trust and confidence reposed
in him. If indeed his clients cause was no longer worth fighting for, the lawyer should
not have demanded a feeand made representations that there is merit in her case. He
should have dealt with his client with all candor and honesty by informing her that on
August 8, 1990 the period to file the petition had already expired.
Complainant has been a victim of negligence on the part of the law firm of San
Buenaventura, et al., or particularly Atty. Leopoldo San Buenaventura, for their failure
to file the Appellants Brief in behalf of complainant within the period allowed. The
dismissal of the appeal gave complainant a slim chance, if not a futile remedy, with
the Hon. Supreme Court. Atty. Lapak would have been shackled in any disquisition for
complainants cause considering that she alredy lost in the trial court and her appeal
had been dismissed without any argument being advanced in her behalf. Atty. Lapak
should have been candid with complainant. He should not have asked more at a time
when nothing fruitful could be done anymore.
With respect to respondents offer to return the amount of P1,000.00 paid to
him to file the petition for review on certiorari, the investigating commissioner stated:
[T]his willingness to return P1,000.00 does not erase his breach of the Code of
Professional Responsibility for lacking in honesty, diligence and fairness in dealing
with his client as shown by the very fact that he received the amount at a time when
he could no longer file the petition with the Supreme Court. His client deserved the
information that on such date the decision of the Court of Appeals was already
final. Respondents actuation of filing an extension motion with the Hon. Supreme
Court and yet not filing an extension motion with the Hon. Supreme Court and yet not
filing the pleading within the period requested and granted speaks well of
respondents lack of candor, honesty and judicious conduct in dealing with his client
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Legal Ethics
or in the handling of his case. This conduct violates Canon 17, & Rule 18.03, Rule 18.04
of Canon 18 of the Code of Professional Responsibility.
The investigating commissioner recommends that respondent only be
reprimanded considering his old age and the negligent conduct of complainants
previous counsel. The commissioner reasoned that it was the negligent conduct of
complainants previous counsel which caused the dismissal of the appeal and
rendered inutile any further legal action before the Supreme Court.
The investigating commissioners findings are supported by the
evidence. However, we hold that the appropriate sanction should be reprimand and
order respondent to return the amount of P4,000.00 which he received from
complainant.
Respondent advances two reasons why he did not file a petition for review on
certiorari in this Court, to wit: (1) because he found that the resolution of the Court
of Appeals to be appealed to the Supreme Court had become final on May 27, 1990
and (2) because complainant failed to pay the balance of P1,000.00 of his fee.
First. With respect to the first reason, Rule 18.03 thereof which provides that A
lawyer shall not neglect a legal matter entrusted to him and his negligence in
connection therewith shall render him liable. Respondent alleges that upon receipt of
the Court of Appeals resolution denying the motion for reconsideration which he had
filed, he summoned complainant and told her that it was imperative that a petition
for review on certiorari be filed with this Court.
At this point, it is important to note the material dates on record to determine
if respondents justification for his failure to file a petition for review is tenable. The
resolution of the Court of Appeals dismissing complainants appeal for failure to file
an appellants brief was promulgated on February 20, 1990. Within the reglementary
period for filing an appeal, respondent filed a motion for reconsideration which the
Court of Appeals denied on May 2, 1990. Respondent received a copy of this
resolution (denying the motion for reconsideration) on May 11, 1990 so that
respondent had 15 days from May 11, 1990, or until May 26, within which to file a
petition for review on certiorari with the Supreme Court. Respondent therafter asked
for, and was granted by this Court, an extension of 30 days counted from the
reglementary period, or until June 25, 1990, within which to file the petition. As
respondent failed to file the petition within the extended period, the Supreme Court
issued a resolution on August 20, 1990 declaring the judgment sought to be reviewed
to have become final and executory.
It is not true, therefore, that respondent failed to file a petition for review on
certiorari because the judgment sought to be reviewed had become final on May 27,
1990.
When respondent summoned complainant and told her that in view of the
denial of his motion for reconsideration it was imperative that a petition for review
be filed with this Court, the resolution of the Court of Appeals was not yet final. In
fact, this Court granted respondents motion for extension of time to file the petition
for review, because the resolution of the Court of Appeals denying the motion for
reconsideration had not yet attained finality. Despite having been granted an
extension, however, respondent failed to file the petition within the reglementary
period. This constitutes a serious breach. Rule 12.03 of the Code of Professional
Responsibility provides that A lawyer shall not, after obtaining extensions of time to
file pleadings, memoranda or briefs, let the period lapse without submitting the same
or offering an explanation for his failure to do so.
The filing of a petition for review is similar to the filing of an appellants or
appellees brief. In Mariveles v. Mallari,[1] it was held that the lawyers failure to file an
appellants brief despite numerous extensions of time to file the same constitutes a
blatant violation of Rule 12.03 of the Code of Professional Responsibility. As already
noted, this Rule provides that after obtaining extensions of time to file pleadings,
memoranda, or briefs, a lawyer should not let the period lapse without submitting
the same or offering an explanation for his failure to do so.
In Re: Santiago F. Marcos,[2] the Court considered a lawyers failure to file a brief
for his client as amounting to inexcusable negligence. Said the Court:
An attorney is bound to protect his clients interest to the best of his ability and with
utmost diligence. (Del Rosario v. CA, 114 SCRA 159). A failure to file a brief for his
client certainly constitutes inexcusable negligence on his part. (People v. Villar, 46
SCRA 107) The respondent has indeed committed a serious lapse in the duty owed by
him to his client as well as to the Court not to delay litigation and to aid in the speedy
administration of justice. (People v. Daban, 43 SCRA 185; People v. Estocada, 43 SCRA
515).
At any rate, even assuming that the resolution of the Court of Appeals expired
on May 27, 1990, he should not have asked on August, 8, 1990 for the balance of
P5,000.00 which complainant had agreed to pay since the resolution had already
become final at that time. As the investigating commissioner pointed out in his report:
To aggravate his situation, respondent alleges in his comment to the complaint (at
page 3) that after he received P1,000.00 from the complainant he immediately went
to the Court of Appeals to get certified copies of the resolution denying his motion
for reconsideration and that thereat he discovered that an Entry of Judgment had
already been issued. Respondent should have known that when he went to the Court
of Appeals after receipt of P1,000.00, or after August 8, 1990, (t)he period he
requested from the Hon. Supreme Court to institute the petition for review had long
expired.[3]
It would, therefore, appear that if an entry of judgment had been made in the
Court of Appeals, it was precisely because respondent failed to file a petition for
review with the Supreme Court within the extended period granted him. He cannot,
therefore, excuse his breach of the duty to his client by his own negligent act.
Second. Respondent asserts that complainant only engaged his services to
pursue her appeal in the Court of Appeals which was dismissed due to the failure of
complainants former counsel, Atty. Leopoldo E. San Buenaventura, to file the
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Legal Ethics

appellants brief. Whether or not he was engaged to represent complainant only in

the Court of Appeals and not also in the Supreme Court is immaterial. For the fact is
that respondent already commenced the representation of complainant in the
Supreme Court by filing a motion for extension of the time to file a petition for
review. In fact, according to respondent, upon receipt of the Court of Appeals
resolution denying reconsideration of the dismissal of complainants appeal,
respondent summoned complainant to his office precisely to tell her that it was
imperative that a petition for review be filed with the Supreme Court. Once he took
the cudgels of his clients case and assured her that he would represent her in the
Supreme Court, respondent owed it to his client to do his utmost to ensure that every
remedy allowed by law was availed of. As this Court has held:
It is axiomatic that no lawyer is obliged to act either as adviser or advocate for every
person who may wish to become his client. He has the right to decline employment,
subject, however, to Canon 14 of the Code of Professional Responsibility. Once he
agrees to take up the cause of a client, the lawyer owes fidelity to such cause and
must always be mindful of the trust and confidence reposed in him. He must serve
the client with competence and diligence, and champion the latters cause with
wholehearted fidelity, care and devotion. Elsewise stated, he owes entire devotion to
the interest of his client, warm zeal in the maintenance and defense of his clients
rights, and the exertion of his utmost learning and ability to the end that nothing be
taken or withheld from his client, saved by the rules of law legally applied. This simply
means that his cleint is entitled to the benefit of any and every remedy and defense
that is authorized by the law of the land and he may expect his lawyer to assert every
such remedy or defense.[4]
Third. Nor can respondent excuse himself for his failure to file the petition for
review on certiorari on the ground that complainant failed to pay what she promised
to pay. Complainant agreed to pay P5,000.00. Of this amount, she paid respondent
P3,000.00 and later P1,000.00, leaving only a balance of P1,000.00. Even if this
balance had not been paid, this fact was not sufficient to justify the failure of
respondent to comply with his professional obligation which does not depend for
compliance on the payment of a lawyers fees.
As respondent utterly failed to comply with his professional commitment to
complainant, it is, therefore, not just for him to keep the legal fee of P4,000.00 which
complainant paid him. He has not rightfully earned that fee and should return it to
complainant.
WHEREFORE, Atty. Jose L. Lapak is REPRIMANDED and ORDERED to refund to
complainant Rosita Tan the amount of P4,000.00. He is admonished henceforth to
exercise greater care and diligence in the performance of his duties towards his clients
and the courts and warned that repetition of the same or similar offense will be more
severely dealt with.
SO ORDERED.

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Legal Ethics
MA. GINA L. FRANCISCO, JOSEPHINE S. TAN and CARLOS M. JOAQUIN, Complainants,
vs.
ATTY. JAIME JUANITO P. PORTUGAL, Respondent.
Complainants filed before this Court an affidavit-complaint1 on 15 August 2003
against Atty. Jaime Juanito P. Portugal (respondent) for violation of the Lawyer’s Oath,
gross misconduct, and gross negligence. Complainants are related to petitioners in
G.R. No. 152621-23 entitled SPO1 Ernest C. Francisco, SPO1 Donato F. Tan and PO3
Rolando M. Joaquin v. People of the Philippines, in whose behalf respondent filed the
Petition for Review on Certiorari (Ad Cautelam) in the case.
The complaint against respondent originated from his alleged mishandling of the
above-mentioned petition which eventually led to its denial with finality by this Court
to the prejudice of petitioners therein.
The facts are as follows:
On 21 March 1994, SPO1 Ernesto C. Francisco, SPO1 Donato F. Tan and PO3 Rolando
M. Joaquin (eventually petitioners in G.R. No. 152621-23, collectively referred to
herein as the accused) were involved in a shooting incident which resulted in the
death of two individuals and the serious injury of another. As a result, Informations
were filed against them before the Sandiganbayan for murder and frustrated murder.
The accused pleaded not guilty and trial ensued. After due trial, the
Sandiganbayan2 found the accused guilty of two counts of homicide and one count of
attempted homicide.
At that juncture, complainants engaged the services of herein respondent for the
accused. Respondent then filed a Motion for Reconsideration with the Sandiganbayan
but it was denied in a Resolution dated 21 August 2001. Unfazed by the denial,
respondent filed an Urgent Motion for Leave to File Second Motion for
Reconsideration, with the attached Second Motion for Reconsideration.3 Pending
resolution by the Sandiganbayan, respondent also filed with this Court a Petition for
Review on Certiorari (Ad Cautelam) on 3 May 2002.
Thereafter, complainants never heard from respondent again despite the frequent
telephone calls they made to his office. When respondent did not return their phone
inquiries, complainants went to respondent’s last known address only to find out that
he had moved out without any forwarding address.
More than a year after the petition was filed, complainants were constrained to
personally verify the status of the ad cautelam petition as they had neither news from
respondent about the case nor knowledge of his whereabouts. They were shocked to
discover that the Court had already issued a Resolution4 dated 3 July 2002, denying
the petition for late filing and non-payment of docket fees.
Complainants also learned that the said Resolution had attained finality and warrants
of arrest5 had already been issued against the accused because respondent, whose
whereabouts remained unknown, did nothing to prevent the reglementary period for
seeking reconsideration from lapsing.
In his Comment,6 respondent states that it is of vital significance that the Court notes
that he was not the original counsel of the accused. He only met the accused during
the promulgation of the Sandiganbayan decision convicting the accused of two counts
of homicide and one count of attempted homicide. He was merely requested by the
original counsel to be on hand, assist the accused, and be present at the promulgation
of the Sandiganbayan decision.
Respondent claims that there was no formal engagement undertaken by the parties.
But only because of his sincere effort and in true spirit of the Lawyer’s Oath did he file
the Motion for Reconsideration. Though admitting its highly irregular character,
respondent also made informal but urgent and personal representation with the
members of the Division of the Sandiganbayan who promulgated the decision of
conviction. He asserts that because of all the efforts he put into the case of the
accused, his other professional obligations were neglected and that all these were
done without proper and adequate remuneration.
As to the ad cautelam petition, respondent maintains that it was filed on time. He
stresses that the last day of filing of the petition was on 3 April 2002 and on that very
day, he filed with this Court a Motion for Extension of Time to File Petition for
Review,7 seeking an additional thirty (30) days to file the petition. Subsequently, on 3
May 2002, he filed the petition by registered mail and paid the corresponding docket
fees. Hence, so he concludes, it was filed within the reglementary period.
Soon thereafter, respondent recounted all the "herculean" efforts he made in
assisting the accused for almost a year after the promulgation of the Sandiganbayan
decision. He considered the fact that it was a case he had just inherited from the
original counsel; the effect of his handling the case on his other equally important
professional obligations; the lack of adequate financial consideration for handling the
case; and his plans to travel to the United States to explore further professional
opportunities. He then decided to formally withdraw as counsel for the accused. He
wrote a letter to PO3 Rolando Joaquin (PO3 Joaquin), who served as the contact
person between respondent and complainants, explaining his decision to withdraw
as their counsel, and attaching the Notice to Withdraw which respondent instructed
the accused to sign and file with the Court. He sent the letter through registered mail
but unfortunately, he could not locate the registry receipt issued for the letter.
Respondent states that he has asked the accused that he be discharged from the case
and endorsed the Notice of Withdrawal to PO3 Joaquin for the latter to file with the
Court. Unfortunately, PO3 Joaquin did not do so, as he was keenly aware that it would
be difficult to find a new counsel who would be as equally accommodating as
respondent. Respondent suggests this might have been the reason for the several
calls complainants made to his office.
On 9 February 2004, the Court resolved to refer the matter to the Integrated Bar of
the Philippines (IBP) for investigation, report and recommendation.1awph!l.net
The case was assigned to Investigating Commissioner Leland R. Villadolid, Jr.
(Commissioner Villadolid) who sent notices of hearing to the parties but of the three
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Legal Ethics
complainants, only complainant Carlos Joaquin appeared. Thus, in the mandatory
conference held, the other two complainants were declared as having waived their
rights to further participate in the IBP proceedings.8
The parties were directed to file their respective position papers and on 27 May 2005,
Commissioner Villadolid submitted his Report and Recommendation finding
respondent guilty of violation of the Code of Professional Responsibility9 and
recommended the imposition of penalty ranging from reprimand to suspension of six
(6) months.1awph!l.net10 On 12 November 2005, the Board of Directors of the IBP
resolved to adopt and approve Commissioner Villadolid’s recommendation to find
respondent guilty and specifically to recommend his suspension for six (6) months as
penalty.
The only issue to be resolved in the case at bar is, considering all the facts presented,
whether respondent committed gross negligence or misconduct in handling G.R. No.
152621-23, which eventually led to the ad cautelam petition’s dismissal with finality.
After careful consideration of the records of the case, the Court finds the suspension
recommended by the IBP proper.
In a criminal case like that handled by respondent in behalf of the accused,
respondent has a higher duty to be circumspect in defending the accused for it is not
only the property of the accused which stands to be lost but more importantly, their
right to their life and liberty. As held in Regala v. Sandiganbayan:11
Thus, in the creation of lawyer-client relationship, there are rules, ethical conduct and
duties that breathe life into it, among those, the fiduciary duty to his client which is
of very delicate, exacting and confidential character, requiring a very high degree of
fidelity and good faith, that is required by reason of necessity and public interest x x x
. the accused and gave them instructions on how to go about respondent’s withdrawal
It is also the strict sense of fidelity of a lawyer to his client that distinguishes him from
any other profession in society. x x x12
At the onset, the Court takes notice that the ad cautelam petition was actually filed
out of time. Though respondent filed with the Sandiganbayan an Urgent Motion for
Leave to File Second Motion for Reconsideration with the attached Second Motion
for Reconsideration, he should have known that a second motion for reconsideration
is a prohibited pleading13 and it rests on the sound discretion of the Sandiganbayan
to admit it or not. Thus, in effect, the motion did not toll the reglementary period to
appeal. Having failed to do so, the accused had already lost their right to appeal long
before respondent filed his motion for extension. Therefore, respondent cannot now
say he filed the ad cautelam petition on time. Also important to note is the allegation
of complainants that the Sandiganbayan denied the second motion for
reconsideration in its Resolution dated 7 February 2002. This respondent does not
dispute.
As to respondent’s conduct in dealing with the accused and complainants, he
definitely fell short of the high standard of assiduousness that a counsel must perform
to safeguard the rights of his clients. As aptly observed by Commissioner Villadolid,
respondent had not been quite candid in his dealings with the accused or
complainants. The Court notes that though respondent represented to the accused
that he had changed his office address, still, from the examination of the
pleadings14 he filed, it can be gleaned that all of the pleadings have the same mailing
address as that known to complainants. Presumably, at some point, respondent’s
office would have received the Court’s Resolution dismissing the petition. Of course,
the prudent step to take in that situation was to at least inform the client of the
adverse resolution since they had constantly called respondent’s office to check the
status of the case. Even when he knew that complainants had been calling his office,
he opted not to return their calls.
Respondent professed an inkling that the several phone calls of complainants may
have been about the letter he sent PO3 Joaquin regarding his desire to be discharged
as counsel of the case. However, though aware of such likelihood, respondent still did
not return their calls. Had he done so, he and complainants could have threshed out
all unresolved matters between them.
Had respondent truly intended to withdraw his appearance for the accused, he as a
lawyer who is presumably steeped in court procedures and practices, should have
filed the notice of withdrawal himself instead of the accused. At the very least, he
should have informed this Court through the appropriate manifestation that he had
already given instructions to his clients on the proper way to go about the filing of the
Notice of Withdrawal, as suggested by Commissioner Villadolid. In not so doing, he
was negligent in handling the case of the accused.
Certainly, respondent ought to know that he was the one who should have filed the
Notice to Withdraw and not the accused. His tale that he sent a registered letter to
from the case defies credulity. It should have been respondent who undertook the
appropriate measures for the proper withdrawal of his representation. He should not
have relied on his client to do it for him if such was truly the case. Without the
presentation of the alleged registry receipt (or the return card, which confirms the
receipt of the mail by the recipient) of the letter he allegedly sent to PO3 Joaquin, the
Court cannot lend credence to respondent’s naked claim, especially so that
complainants have been resolute in their stand that they did not hear from
respondent after the latter had filed the ad cautelam petition. He could relieve
himself of his responsibility as counsel only first by securing the written conformity of
the accused and filing it with the court pursuant to Rule 138, Section 26 of the Rules
of Court.15
The rule in this jurisdiction is that a client has the absolute right to terminate the
attorney-client relation at anytime with or without cause. The right of an attorney to
withdraw or terminate the relation other than for sufficient cause is, however,
considerably restricted. Among the fundamental rules of ethics is the principle that
an attorney who undertakes to conduct an action impliedly stipulates to carry it to its
conclusion. He is not at liberty to abandon it without reasonable cause. A lawyer’s
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Legal Ethics

right to withdraw from a case before its final adjudication arises only from the client’s Responsibility still remains unwavering. The zeal and the degree of fervor in handling
written consent or from a good cause.16 the case should neither diminish nor cease just because of his perceived insufficiency
We agree with Commissioner Villadolid that the dismissal of the ad cautelam petition of remuneration.
was primarily due to the gross negligence of respondent. The Court has stressed in Lastly, the Court does not appreciate the offensive appellation respondent called the
Aromin v. Boncavil17 that: shooting incident that the accused was engaged in. He described the incident, thus:
Once he agrees to take up the cause of the client, the lawyer owes fidelity to such "the accused police officers who had been convicted of [h]omicide for the ‘salvage’ of
cause and must always be mindful of the trust and confidence reposed in him. He Froilan G. Cabiling and Jose M. Chua and [a]ttempted [h]omicide of Mario C.
must serve the client with competence and diligence, and champion the latter’s cause Macato."23 Rule 14.0124 of the Code of Professional Responsibility clearly directs
with wholehearted fidelity, care, and devotion. Elsewise stated, he owes entire lawyers not to discriminate clients as to their belief of the guilt of the latter. It is ironic
devotion to the interest of the client, warm zeal in the maintenance and defense of that it is the defense counsel that actually branded his own clients as being the culprits
his client’s rights, and the exertion of the his utmost learning and ability to the end that "salvaged" the victims. Though he might think of his clients as that, still it is
that nothing be taken or withheld from his client, save by the rules of law, legally unprofessional to be labeling an event as such when even the Sandiganbayan had not
applied. This simply means that his client is entitled to the benefit of any and every done so.
remedy and defense that is authorized by the law of the land and he may expect his The IBP Board of Governors recommended the suspension of respondent for six (6)
lawyer to assert every such remedy or defense. If much is demanded from an months, the most severe penalty recommended by Commissioner Villadolid, but did
attorney, it is because the entrusted privilege to practice law carries with it the not explain why such penalty was justified. In a fairly recent case where the lawyer
correlative duties not only to the client but also to the court, to the bar, and to the failed to file an appeal brief which resulted to the dismissal of the appeal of his client
public. A lawyer who performs his duty with diligence and candor not only protects in the Court of Appeals, the Court imposed upon the erring lawyer the penalty of three
the interest of his client; he also serves the ends of justice, does honor to the bar, and (3) months’ suspension.25The Court finds it fit to impose the same in the case at bar.
helps maintain the respect of the community to the legal profession.18 WHEREFORE, premises considered, respondent is hereby SUSPENDED from the
Respondent has time and again stated that he did all the endeavors he enumerated practice of law for three (3) months. Let a copy of the Resolution be furnished the Bar
without adequate or proper remuneration. However, complainants have sufficiently Confidant for appropriate annotation in the record of respondent.
disputed such claim when they attached in their position paper filed before the IBP a SO ORDERED.
machine validated deposit slip in the amount of P15,500.00 for the Metro Bank
savings account of one Jaime Portugal with account number
7186509273.19 Respondent has neither admitted nor denied having claimed the
deposited amount.
The Court also rejects respondent’s claim that there was no formal engagement
between the parties and that he made all his efforts for the case without adequate
and proper consideration. In the words of then Justice Panganiban (presently Chief
Justice) in Burbe v. Atty. Magulta:20
After agreeing to take up the cause of a client, a lawyer owes fidelity to both cause
and client, even if the client never paid any fee for the attorney-client relationship.
Lawyering is not a business; it is a profession in which duty of public service, not
money, is the primary consideration.21
Also to the point is another case where this Court ruled, thus:
A written contract is not an essential element in the employment of an attorney; the
contract may be express or implied. To establish the relation, it is sufficient that the
advice and assistance of an attorney is sought and received in any matter pertinent
to his profession. x x x 22
Hence, even if respondent felt under-compensated in the case he undertook to
defend, his obligation embodied in the Lawyer’s Oath and the Code of Professional

140
Legal Ethics
VERONICA S. SANTIAGO, BENJAMIN Q. HONTIVEROS, MR. SOCORRO F. MANAS, and
TRINIDAD NORDISTA, complainants,
vs.
ATTY. AMADO R. FOJAS, respondent.
In their letter of 8 September 1993, the complainants, former clients of the
respondent, pray that the latter be disbarred for "malpractice, neglect and other
offenses which may be discovered during the actual investigation of this complaint."
They attached thereto an Affidavit of Merit wherein they specifically allege:
1. That we are Defendants-Appellates [sic] in the Court of Appeals
Case No. CA-G.N. CV No. 38153 of which to our surprise lost
unnecessarily the aforesaid Petition [sic]. A close perusal of the
case reveals the serious misconduct of our attorney on record,
Atty. Amado Fojas tantamount to malpractice and negligence in
the performance of his duty obligation to us, to defend us in the
aforesaid case. That the said attorney without informing us the
reason why and riding high on the trust and confidence we repose
on him either abandoned, failed to act accordingly, or seriously
neglected to answer the civil complaint against us in the sala of
Judge Teresita Capulong Case No. 3526-V-91 Val. Metro Manila
so that we were deduced [sic] in default.
2. That under false pretenses Atty. Fojas assured us that
everything was in order. That he had already answered the
complaint so that in spite of the incessant demand for him to give
us a copy he continued to deny same to us. Only to disclose later
that he never answered it after all because according to him he
was a very busy man. Please refer to Court of Appeals decision
dated August 17, 1993.
3. That because of Atty. Amado Foja's neglect and malpractice of
law we lost the Judge Capulong case and our appeal to the Court
of Appeals. So that it is only proper that Atty. Fojas be disciplined
and disbarred in the practice of his profession.
In his Comment, the respondent admits his "mistake" in failing to file the
complainants' answer in Civil Case No. 3526-V-91, but he alleges that it was cured by
his filing of a motion for reconsideration, which was unfortunately denied by the
court. He asserts that Civil Case No. 3526-V-91 was a "losing cause" for the
complainants because it was based on the expulsion of the plaintiff therein from the
Far Eastern University Faculty Association (FEUFA) which was declared unlawful in the
final decision in NCR-OD-M-90-10-050. Thus, "[t]he unfavorable judgment in the
Regional Trial Court is not imputable to [his] mistake but rather imputable to the
merits of the case, i.e., the decision in the Expulsion case wherein defendants
(complainants herein) illegally removed from the union (FEUFA) membership Mr.
Paulino Salvador. . . ." He further claims that the complainants filed this case to harass
him because he refused to share his attorney's fees in the main labor case he had
handled for them. The respondent then prays for the dismissal of this complaint for
utter lack of merit, since his failure to file the answer was cured and, even granting
for the sake of argument that such failure amounted to negligence, it cannot warrant
his disbarment or suspension from the practice of the law profession.
The complainants filed a Reply to the respondent's Comment.
Issues having been joined, we required the parties to inform us whether they were
willing to submit this case for decision on the basis of the pleadings they have filed. In
their separate compliance, both manifested in the affirmative.
The facts in this case are not disputed.
Complainants Veronica Santiago, Benjamin Hontiveros, Ma. Socorro Manas, and
Trinidad Nordista were the President, Vice-President, Treasurer, and Auditor,
respectively, of the FEUFA. They allegedly expelled from the union Paulino Salvador.
The latter then commenced with the Department of Labor and Employment (DOLE) a
complaint (NCR-OD-M-90-10-050) to declare illegal his expulsion from the union.
In his resolution of 22 November 1990, Med-Arbiter Tomas Falconitin declared illegal
Salvador's expulsion and directed the union and all its officers to reinstate Salvador's
name in the roll of union members with all the rights and privileges appurtenant
thereto. This resolution was affirmed in toto by the Secretary of Labor and
Employment.
Subsequently, Paulino Salvador filed with the Regional Trial Court (RTC) of Valenzuela,
Metro Manila, Branch 172, a complaint against the complainants herein for actual,
moral, and exemplary damages and attorney's fees, under Articles 19, 20, and 21 of
the Civil Code. The case was docketed as Civil Case No. 3526-V-91.
As the complainants' counsel, the respondent filed a motion to dismiss the said case
on grounds of (1) res judicata by virtue of the final decision of the Med-Arbiter in NCR-
OD-M-90-10-050 and (2) lack of jurisdiction, since what was involved was an intra-
union issue cognizable by the DOLE. Later, he filed a supplemental motion to dismiss.
The trial court, per Judge Teresita Dizon-Capulong, granted the motion and ordered
the dismissal of the case. Upon Salvador's motion for reconsideration, however, it
reconsidered the order of dismissal, reinstated the case, and required the
complainants herein to file their answer within a nonextendible period of fifteen days
from notice.
Instead of filing an answer, the respondent filed a motion for reconsideration and
dismissal of the case. This motion having been denied, the respondent filed with this
Court a petition for certiorari, which was later referred to the Court of Appeals and
docketed therein as CA-G.R. SP No. 25834.
Although that petition and his subsequent motion for reconsideration were both
denied, the respondent still did not file the complainants' answer in Civil Case No.
3526-V-91. Hence, upon plaintiff Salvador's motion, the complainants were declared
in default, and Salvador was authorized to present his evidence ex-parte.
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Legal Ethics
The respondent then filed a motion to set aside the order of default and to stop
the ex-parte reception of evidence before the Clerk of Court, but to no avail.
Thereafter, the trial court rendered a decision ordering the complainants herein to
pay, jointly and severally, plaintiff Salvador the amounts of P200,000.00 as moral
damages; P50,000.00 as exemplary damages or corrective damages; and P65,000.00
as attorney's fees; plus cost of suit.
The complainants, still assisted by the respondent, elevated the case to the Court of
Appeals, which, however, affirmed in toto the decision of the trial court.
The respondent asserts that he was about to appeal the said decision to this Court,
but his services as counsel for the complainants and for the union were illegally and
unilaterally terminated by complainant Veronica Santiago.
The core issue that presents itself is whether the respondent committed culpable
negligence, as would warrant disciplinary action, in failing to file for the complainants
an answer in Civil Case No. 3526-V-91 for which reason the latter were declared in
default and judgment was rendered against them on the basis of the plaintiff's
evidence, which was received ex-parte.
It is axiomatic that no lawyer is obliged to act either as adviser or advocate for every
person who may wish to become his client. He has the right to decline
employment, 1 subject, however, to Canon 14 of the Code of Professional
Responsibility. Once he agrees to take up the cause of a client, the lawyer owes fidelity
to such cause and must always be mindful of the trust and confidence reposed in
him. 2 He must serve the client with competence and diligence, 3 and champion the
latter's cause with wholehearted fidelity, care, and devotion. 4 Elsewise stated, he
owes entire devotion to the interest of the client, warm zeal in the maintenance and
defense of his client's rights, and the exertion of his utmost learning and ability to the
end that nothing be taken or withheld from his client, save by the rules of law, legally
applied. 5 This simply means that his client is entitled to the benefit of any and every
remedy and defense that is authorized by the law of the land and he may expect his
lawyer to assert every such remedy or defense. 6 If much is demanded from an
attorney, it is because the entrusted privilege to practice law carries with it the
correlative duties not only to the client but also to the court, to the bar, and to the
public. A lawyer who performs his duty with diligence and candor not only protects
the interest of his client; he also serves the ends of justice, does honor to the bar, and
helps maintain the respect of the community to the legal profession. 7
The respondent admits that it was his duty to file an answer in Civil Case No. 3526-V-
91. He justifies his failure to do so in this wise:
[I]n his overzealousness to question the Denial Order of the trial
court, 8 [he] instead, thru honest mistake and excusable neglect,
filed a PETITION FOR CERTIORARI with the Honorable Court,
docketed as G.R. No. 100983. . . .
And, when the Court of Appeals, to which G.R. No. 100983 was referred,
dismissed the petition, he again "inadvertently" failed to file an answer
"[d]ue to honest mistake and because of his overzealousness as stated
earlier. . . . "
In their Reply, the complainants allege that his failure to file an answer was not an
honest mistake but was "deliberate, malicious and calculated to place them on the
legal disadvantage, to their damage and prejudice" for, as admitted by him in his
motion to set aside the order of default, his failure to do so was "due to volume and
pressure of legal work." 9 In short, the complainants want to impress upon this Court
that the respondent has given inconsistent reasons to justify his failure to file an
answer.
We agree with the complainants. In his motion for reconsideration of the default
order, the respondent explained his non-filing of the required answer by impliedly
invoking forgetfulness occasioned by a large volume and pressure of legal work, while
in his Comment in this case he attributes it to honest mistake and excusable neglect
due to his overzealousness to question the denial order of the trial court.
Certainly, "overzealousness" on the one hand and "volume and pressure of legal
work" on the other are two distinct and separate causes or grounds. The first
presupposes the respondent's full and continuing awareness of his duty to file an
answer which, nevertheless, he subordinated to his conviction that the trial court had
committed a reversible error or grave abuse of discretion in issuing an order
reconsidering its previous order of dismissal of Salvador's complaint and in denying
the motion to reconsider the said order. The second ground is purely based on
forgetfulness because of his other commitments.
Whether it be the first or the second ground, the fact remains that the respondent
did not comply with his duty to file an answer in Civil Case No. 3526-V-91. His lack of
diligence was compounded by his erroneous belief that the trial court committed such
error or grave abuse of discretion and by his continued refusal to file an answer even
after he received the Court of Appeals' decision in the certiorari case. There is no
showing whatsoever that he further assailed the said decision before this Court in a
petition for review under Rule 45 of the Rules of Court to prove his claim of
overzealousness to challenge the trial court's order. Neither was it shown that he
alleged in his motion to lift the order of default that the complainants had a
meritorious defense. 10 And, in his appeal from the judgment by default, he did not
even raise as one of the errors of the trial court either the impropriety of the order of
default or the court's grave abuse of discretion in denying his motion to lift that order.
Pressure and large volume of legal work provide no excuse for the respondent's
inability to exercise due diligence in the performance of his duty to file an answer.
Every case a lawyer accepts deserves his full attention, diligence, skill, and
competence, regardless of its importance and whether he accepts it for a fee or for
free.
All told, the respondent committed a breach of Canon 18 of the Code of Professional
Responsibility which requires him to serve his clients, the complainants herein, with
diligence and, more specifically, Rule 18.03 thereof which provides: "A lawyer shall
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Legal Ethics

not neglect a legal matter entrusted to him, and his negligence in connection
therewith shall render him liable."
The respondent's negligence is not excused by his claim that Civil Case No. 3526-V-91
was in fact a "losing cause" for the complainants since the claims therein for damages
were based on the final decision of the Med-Arbiter declaring the complainants' act
of expelling Salvador from the union to be illegal. This claim is a mere afterthought
which hardly persuades us. If indeed the respondent was so convinced of the futility
of any defense therein, he should have seasonably informed the complainants
thereof. Rule 15.05, Canon 15 of the Code of Professional Responsibility expressly
provides:
A lawyer, when advising his client, shall give a candid and honest
opinion on the merits and probable results of the client's case,
neither overstating nor understanding the prospects of the case.
Then too, if he were unconvinced of any defense, we are unable to
understand why he took all the trouble of filing a motion to dismiss on the
grounds of res judicata and lack of jurisdiction and of questioning the
adverse ruling thereon initially with this Court and then with the Court of
Appeals, unless, of course, he meant all of these to simply delay the
disposition of the civil case. Finally, the complainants were not entirely
without any valid or justifiable defense. They could prove that the plaintiff
was not entitled to all the damages sought by him or that if he were so, they
could ask for a reduction of the amounts thereof.
We do not therefore hesitate to rule that the respondent is not free from any blame
for the sad fate of the complainants. He is liable for inexcusable negligence.
WHEREFORE, ATTY. AMADO R. FOJAS is hereby REPRIMANDED and ADMONISHED to
be, henceforth, more careful in the performance of his duty to his clients.
SO ORDERED.

143
Legal Ethics
ADELINO H. LEDESMA, petitioner,
vs.
HON. RAFAEL C. CLIMACO, Presiding Judge of the Court of First Instance of Negros
Occidental, Branch I, Silay City, respondent.
What is assailed in this certiorari proceeding is an order of respondent Judge denying
a motion filed by petitioner to be allowed to withdraw as counsel de oficio. 1 One of
the grounds for such a motion was his allegation that with his appointment as Election
Registrar by the Commission on Elections, he was not in a position to devote full time
to the defense of the two accused. The denial by respondent Judge of such a plea,
notwithstanding the conformity of the defendants, was due "its principal effect
[being] to delay this case." 2 It was likewise noted that the prosecution had already
rested and that petitioner was previously counsel de parte, his designation in the
former category being precisely to protect him in his new position without prejudicing
the accused. It cannot be plausibly asserted that such failure to allow withdrawal of de
oficio counsel could ordinarily be characterized as a grave abuse of discretion
correctible by certiorari. There is, however, the overriding concern for the right to
counsel of the accused that must be taken seriously into consideration. In appropriate
cases, it should tilt the balance. This is not one of them. What is easily discernible was
the obvious reluctance of petitioner to comply with the responsibilities incumbent on
the counsel de oficio. Then, too, even on the assumption that he continues in his
position, his volume of work is likely to be very much less at present. There is not now
the slightest pretext for him to shirk an obligation a member of the bar, who expects
to remain in good standing, should fulfill. The petition is clearly without merit.
According to the undisputed facts, petitioner, on October 13, 1964, was appointed
Election Registrar for the Municipality of Cadiz, Province of Negros Occidental. Then
and there, he commenced to discharge its duties. As he was counsel de parte for one
of the accused in a case pending in the sala of respondent Judge, he filed a motion to
withdraw as such. Not only did respondent Judge deny such motion, but he also
appointed him counsel de oficio for the two defendants. Subsequently, on November
3, 1964, petitioner filed an urgent motion to be allowed to withdraw as counsel de
oficio, premised on the policy of the Commission on Elections to require full time
service as well as on the volume or pressure of work of petitioner, which could
prevent him from handling adequately the defense. Respondent Judge, in the
challenged order of November 6, 1964, denied said motion. A motion for
reconsideration having proved futile, he instituted this certiorari proceeding. 3
As noted at the outset, the petition must fail.
1. The assailed order of November 6, 1964 denying the urgent motion of petitioner
to withdraw as counsel de oficio speaks for itself. It began with a reminder that a
crime was allegedly committed on February 17, 1962, with the proceedings having
started in the municipal court of Cadiz on July 11, 1962. Then respondent Judge spoke
of his order of October 16, 1964 which reads thus: "In view of the objection of the
prosecution to the motion for postponement of October 15, 1964 (alleging that
counsel for the accused cannot continue appearing in this case without the express
authority of the Commission on Elections); and since according to the prosecution
there are two witnesses who are ready to take the stand, after which the government
would rest, the motion for postponement is denied. When counsel for the accused
assumed office as Election Registrar on October 13, 1964, he knew since October 2,
1964 that the trial would be resumed today. Nevertheless, in order not to prejudice
the civil service status of counsel for the accused, he is hereby designated counsel de
oficio for the accused. The defense obtained postponements on May 17, 1963, June
13, 1963, June 14, 1963, October 28, 1963, November 27, 1963, February 11, 1964,
March 9, 1964, June 8, 1964 July 26, 1964, and September 7, 1964." 4 Reference was
then made to another order of February 11, 1964: "Upon petition of Atty. Adelino H.
Ledesma, alleging indisposition, the continuation of the trial of this case is hereby
transferred to March 9, 1964 at 8:30 in the morning. The defense is reminded that at
its instance, this case has been postponed at least eight (8) times, and that the
government witnesses have to come all the way from Manapala." 5 After which, it was
noted in such order that there was no incompatibility between the duty of petitioner
to the accused and to the court and the performance of his task as an election
registrar of the Commission on Elections and that the ends of justice "would be served
by allowing and requiring Mr. Ledesma to continue as counsel de oficio, since the
prosecution has already rested its case." 6
2. What is readily apparent therefore, is that petitioner was less than duly mindful of
his obligation as counsel de oficio. He ought to have known that membership in the
bar is a privilege burdened with conditions. It could be that for some lawyers,
especially the neophytes in the profession, being appointed counsel de oficio is an
irksome chore. For those holding such belief, it may come as a surprise that counsel
of repute and of eminence welcome such an opportunity. It makes even more
manifest that law is indeed a profession dedicated to the ideal of service and not a
mere trade. It is understandable then why a high degree of fidelity to duty is required
of one so designated. A recent statement of the doctrine is found in People v.
Daban: 7 "There is need anew in this disciplinary proceeding to lay stress on the
fundamental postulate that membership in the bar carries with it a responsibility to
live up to its exacting standard. The law is a profession, not a trade or a craft. Those
enrolled in its ranks are called upon to aid in the performance of one of the basic
purposes of the State, the administration of justice. To avoid any frustration thereof,
especially in the case of an indigent defendant, a lawyer may be required to act as
counsel de oficio. The fact that his services are rendered without remuneration
should not occasion a diminution in his zeal. Rather the contrary. This is not, of course,
to ignore that other pressing matters do compete for his attention. After all, he has
his practice to attend to. That circumstance possesses a high degree of relevance
since a lawyer has to live; certainly he cannot afford either to neglect his paying cases.
Nonetheless, what is incumbent upon him as counsel de oficio must be fulfilled." 8
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So it has been from the 1905 decision of In re Robles Lahesa, 9 where respondent enthusiasm for the task entrusted to him, to put matters mildly. He did point though
was de oficiocounsel, the opinion penned by Justice Carson making clear: "This Court to his responsibility as an election registrar. Assuming his good faith, no such excuse
should exact from its officers and subordinates the most scrupulous performance of could be availed now. There is not likely at present, and in the immediate future, an
their official duties, especially when negligence in the performance of those duties exorbitant demand on his time. It may likewise be assumed, considering what has
necessarily results in delays in the prosecution of criminal cases ...." 10 Justice Sanchez been set forth above, that petitioner would exert himself sufficiently to perform his
in People v. Estebia 11 reiterated such a view in these words: "It is true that he is a task as defense counsel with competence, if not with zeal, if only to erase doubts as
court-appointed counsel. But we do say that as such counsel de oficio, he has as high to his fitness to remain a member of the profession in good standing. The admonition
a duty to the accused as one employed and paid by defendant himself. Because, as in is ever timely for those enrolled in the ranks of legal practitioners that there are times,
the case of the latter, he must exercise his best efforts and professional ability in and this is one of them, when duty to court and to client takes precedence over the
behalf of the person assigned to his care. He is to render effective assistance. The promptings of self-interest.
accused-defendant expects of him due diligence, not mere perfunctory WHEREFORE, the petition for certiorari is dismissed. Costs against petitioner.
representation. For, indeed a lawyer who is a vanguard in the bastion of justice is
expected to have a bigger dose of social conscience and a little less of self-interest." 12
The weakness of the petition is thus quite evident.
3. If respondent Judge were required to answer the petition, it was only due to the
apprehension that considering the frame of mind of a counsel loath and reluctant to
fulfill his obligation, the welfare of the accused could be prejudiced. His right to
counsel could in effect be rendered nugatory. Its importance was rightfully stressed
by Chief Justice Moran in People v. Holgado in these words: "In criminal cases there
can be no fair hearing unless the accused be given an opportunity to be heard by
counsel. The right to be heard would be of little avail if it does not include the right to
be heard by counsel. 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. And this can happen more easily to persons who are ignorant
or uneducated. It is for this reason that the right to be assisted by counsel is deemed
so important that it has become a constitutional right and it is so implemented that
under rules of procedure it is not enough for the Court to apprise an accused of his
right to have an attorney, it is not enough to ask him whether he desires the aid of an
attorney, but it is essential that the court should assign one de oficio for him if he so
desires and he is poor or grant him a reasonable time to procure an attorney of his
own." 13 So it was under the previous Organic Acts. 14 The present Constitution is even
more emphatic. For, in addition to reiterating that the accused "shall enjoy the right
to be heard by himself and counsel," 15 there is this new provision: "Any person under
investigation for the commission of an offense shall have the right to remain silent
and to counsel, and to be informed of such right. No force, violence, threat,
intimidation, or any other means which vitiates the free will shall be used against him.
Any confession obtained in violation of this section shall be inadmissible in
evidence." 16
Thus is made manifest the indispensable role of a member of the Bar in the defense
of an accused. Such a consideration could have sufficed for petitioner not being
allowed to withdraw as counsel de oficio. For he did betray by his moves his lack of

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PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RlCARDO RIO, accused-appellant.
Convicted of rape and sentenced to reclusion perpetua by the Regional Trial Court,
Branch CXLVI * of Makati, Metro Manila, in Criminal Case No. 12042, accused-
appellant Ricardo Rio interposed his appeal and as a consequence, the clerk of court
of said regional trial court branch forwarded the records of the case to the Court of
Appeals. The appellate court, however, forwarded the records of the case to the
Supreme Court in view of the penalty imposed upon the accused.
On 29 December 1989, the accused-appellant Ricardo Rio, in two (2) letters dated 14
December 1989, addressed to Division Clerk of Court Fermin J. Garma and to Assistant
Clerk of Court Tomasita M. Dris, manifested his intention to withdraw the appeal due
to his poverty. 1
The Court resolved in a resolution dated 22 June 1990 to require the Solicitor General
to comment on the appellant's manifestation to withdraw the appeal.
In the Comment filed by the Solicitor General, the action recommended was for the
Court to ascertain from the accused-appellant, through the clerk of court of the trial
court, whether he desired the appointment of a counsel de oficio on appeal, in view
of the reasons stated by him for the withdrawal of his appeal, and inasmuch as
poverty should not preclude anyone from pursuing a cause. It was also recommended
that the clerk of court of the trial court be required by the Court to submit the
response of the accused-appellant along with a certificate of compliance with the
duty imposed on him 2 by Section 13, of Rule 122 of the Rules of Court, which
provides:
Sec. 13. Appointment of counsel de oficio for accused on
appeal. — It shall be the duty of the clerk of the trial court upon
the presentation of a notice of appeal in a criminal case, to
ascertain from the appellant, if he is confined in prison, whether
he desires the Intermediate Appellate Court or the Supreme
Court to appoint a counsel to defend him de oficio and to
transmit with the record, upon a form to be prepared by the clerk
of the appellate court, a certificate of compliance with this duty
and of the response of the appellant to his inquiry.
The branch clerk of the trial court, in a letter addressed to the Assistant Clerk of Court
of the Second Division, this Court, in compliance with the resolution of this Court,
dated 16 April 1990, adopting the suggestions of the Solicitor General, which required
him to comply with his duty mandated in Section 13, Rule 122 of the Rules of Court,
submitted the reply of the accused-appellant informing the Court that he was no
longer interested in pursuing his appeal and had, in fact, withdrawn his appeal. 3
Upon recommendation of the Solicitor General, however, the Court in a resolution
dated 1 October 1990, denied the appellant's motion withdrawing the appeal and
appointed a counsel de oficio for the accused-appellant for, as correctly observed by
the Solicitor General, all the letters of the accused-appellant reveal that the only
reason offered by him for the withdrawal of his appeal is his inability to retain the
services of a counsel de parte on account of his poverty, a reason which should not
preclude anyone from seeking justice in any forum. 4
It seems that the accused-appellant was unaware that this Court can appoint a
counsel de oficio to prosecute his appeal pursuant to Section 13 of Rule 122 of the
Rules of Court and the constitutional mandate provided in Section 11 of Article III of
the 1987 Constitution which reads as follows:
Sec. 11. Free access to the courts and quasi-judicial bodies and
adequate legal assistance shall not be denied to any person by
reason of poverty.
This constitutional provision imposes a duty on the judicial branch of the government
which can cannot be taken lightly. "The Constitution", as aptly stated in one case, "is
a law for rulers and for people equally in war and in peace and covers with the shield
of its protection all classes of men at all times and under all circumstances." 5
Paraphrasing Mr. Justice Malcolm, "Two (2) of the basic privileges of the accused in a
criminal prosecution are the right to the assistance of counsel and the right to a
preliminary examination. President Mckinley made the first a part of the Organic Law
in his Instructions to the Commission by imposing the inviolable rule that in all criminal
prosecutions the accused 'shall enjoy the right ... to have assistance of counsel for the
defense' ". 6 Today said right is enshrined in the 1987 Constitution for, as Judge Cooley
says, this is "perhaps the privilege most important to the person accused of crime." 7
"In criminal cases there can be no fair hearing unless the accused be given an
opportunity to be heard by counsel. The right to be heard would be of little meaning
if it does not include the right to be heard by counsel. Even the most intelligent or
educated man may have no skill in the science of the 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. And this can happen more
easily to persons who are ignorant or uneducated. It is for this reason that the right
to be assisted by counsel is deemed so important that it has become a constitutional
right and it is so implemented that under our rules of procedure it is not enough for
the Court to apprise an accused of his right to have an attorney, it is not enough to
ask him whether he desires the aid of an attorney, but it is essential that the court
should assign one de oficio for him if he so desires and he is poor, or grant him a
reasonable time to procure an attorney of his own." 8
This right to a counsel de oficio does not cease upon the conviction of an accused by
a trial court. It continues, even during appeal, such that the duty of the court to assign
a counsel de oficio persists where an accused interposes an intent to appeal. Even in
a case, such as the one at bar, where the accused had signified his intent to withdraw
his appeal, the court is required to inquire into the reason for the withdrawal. Where
it finds the sole reason for the withdrawal to be poverty, as in this case, the court
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Legal Ethics
must assign a counsel de oficio, for despite such withdrawal, the duty to protect the
rights of the accused subsists and perhaps, with greater reason. After all, "those who
have less in life must have more in law." 9 Justice should never be limited to those
who have the means. It is for everyone, whether rich or poor. Its scales should always
be balanced and should never equivocate or cogitate in order to favor one party over
another.
It is with this thought in mind that we charge clerks of court of trial courts to be more
circumspect with the duty imposed on them by law (Section 13, Rule 122 of the Rules
of Court) so that courts will be above reproach and that never (if possible) will an
innocent person be sentenced for a crime he has not committed nor the guilty
allowed to go scot-free.
In this spirit, the Court ordered the appointment of a counsel de oficio for the
accused-appellant and for said counsel and the Solicitor General to file their
respective briefs, upon submission of which the case would be deemed submitted for
decision.
From the records of the case, it is established that the accused-appellant was charged
with the crime of rape in a verified complaint filed by complainant Wilma Phua Rio,
duly subscribed before 3rd Assistant Fiscal Rodolfo M. Alejandro of the province of
Rizal, which reads as follows:
That on or about the 24th day of March, 1984, in the Municipality
of Muntinlupa, Metro Manila, Philippines, a place within the
jurisdiction of this Honorable Court, the above-named accused,
by means of force and intimidation did then and there wilfully,
unlawfully and feloniously have carnal knowledge of the
undersigned Wilma Phua against her will. 10
On 26 June 1985, at the arraignment, the accused-appellant, assisted by Atty. Leonido
Manalo of the Makati CLAO office, as counsel de oficio, entered a plea of not guilty to
the offense charged. 11 The evidence for the prosecution adduced at the trial
established the following facts:
During the months of February and March 1984, complainant Wilma Phua, then only
13 years of age, was living with her mother and three (3) sisters in a house in Barangay
Bayanan, Municipality of Muntinlupa, Metro Manila. At a distance of about three (3)
meters from this house is another house with a toilet and bath also owned by
complainant's mother but which was uninhabited at that time. The accused,
complainant's uncle, being the younger brother of complainant's mother, was staying
in their house, free of board and lodging, although he helped in the household chores.
The children used the bathroom in the uninhabited house because the amenities in
the inhabited house were used only by the adults. 12
At about 2:00 o'clock in the afternoon of 24 March 1984, classes having closed for
vacation and while Maria Zena Phua Rio was in the house occupied by her family, her
daughter Wilma (complainant) asked her for the key to the comfort room of the
uninhabited house because she had to answer a call of nature. After having delivered
the key to Wilma, the latter proceeded to the other house, entered the comfort room,
and seeing that nobody was around and that her uncle was washing dishes in their
house, proceeded to answer nature's call without taking the precaution of locking the
comfort room from inside. 13
After relieving herself but before she could raise her panty, the accused entered the
bathroom with his body already exposed, held Wilma's hands, and ordered her in a
loud voice to lie down and when she resisted, the accused got mad and ordered her
to lie down. After she lay down on her back, the accused put himself on top of her
and tried to insert his private organ into her private part. Wilma kept pushing the
accused away and calling for her mother; however, since the accused was heavier
than she, the accused succeeded in overpowering her, inserting his penis into her
vagina and having sexual intercourse with her. After satisfying his lust, the accused
released Wilma and allowed her to leave the bathroom. 14
Outside the bathroom door, complainant met her mother Maria Zena who,
meanwhile, had proceeded to the said other house after sensing that an inordinate
length of time had passed and her daughter, complainant herein, had not returned
from the bathroom. Maria Zena, upon noticing that Wilma was speechless, trembling
and looking fearful, suspected something remiss so she tried to open the door of the
bathroom. Unable to open it the first time because it was locked from inside, Maria
Zena waited a few minutes before pushing the door again. This time she was
successful in finding her brother, the herein accused-appellant in the process of
raising his pants. Maria Zena was ignored by her brother when she asked him the
reason for his presence inside the bathroom. 15
Still suspecting that the accused has done something to her daughter, Maria Zena
continued her inquisition of her brother for several days but to no avail. Finally, on 9
April 1984, the accused was asked to leave the house and move out by his sister Maria
Zena. 16
Only after the departure of the accused did Wilma report to her mother the fact that
she had been raped by the accused four (4) times between the months of February
and March of that year (1984). After receiving such information, Maria Zena wanted
her daughter to immediately undergo physical examination; however, Wilma,
apparently traumatized by her experience, was too weak to go with her for such
examination and frequently suffered from fainting spells. It was only on 30 April 1984
that Maria Zena was able to bring Wilma to the police to report the matter and to file
the complaint. After the report to the police, they were referred to the P.C. Crime
Laboratory at Camp Crame where Wilma underwent physical examination. 17
Dr. Dario Gajardo, the physician who conducted the internal examination of Wilma,
submitted a report of his examination dated 6 May 1984. The medical report showed,
among others, the following findings:
There is a scanty growth of pubic hair. Labia majora are full,
convex and gaping which pale brown, slightly hypertrophied labia
minora presenting in between. On separating the same is
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Legal Ethics
disclosed an elastic, fleshly-type hymen with deep lacerations at
3, 8 and 9 o'clock. ... 18
The medical report also showed that "there was (sic) no external signs of recent
application of any form of trauma." 19 All these findings led him to conclude that
Wilma is "in a non-virgin state physicially." 20 Later, on the witness stand, Dr. Gajardo
would further testify that Wilma, on inquiry, revealed that the first rape happened in
the month of February 1984, but that he could not tell the approximate period or age
of the lacerations. 21
Armed with this medical report, Maria Zena and Wilma went back to the police where
a sworn statement of Wilma was taken and the complaint for rape against the accused
was filed before Third Assistant Fiscal Rodolfo M. Alejandro on 12 May 1984. 22
The evidence for the defense consisted of the testimony of the accused himself and
his brother, Amado Rio. The accused's defense was anchored on alibi and he
substantially testified as follows: that contrary to the statements made by the
witnesses for the prosecution, he was not asked to leave their house in April 1984,
the truth being that he left in the month of January 1984 or about a month before the
alleged first rape on Wilma was committed because, contrary to an alleged
employment agreement between brother and sister, his sister, Maria Zena, had not
paid him any salary as helper in their house; that from the month of January 1984, up
to 24 March 1984 when the rape charged in the complaint was allegedly committed,
he was in their hometown in Kambalo, Cahidiocan, province of Romblon; that at the
time of his arrest, he was informed of the criminal charge of rape on his niece filed
against him in court; that from January 1984 up to the time of his arrest on 6 May
1984, he had stayed in the house of his uncle, Francisco Rio, and had never left the
place during the whole period.
The accused vehemently denied the rape and conjectured that his sister could have
fabricated the charge because he left her house due to her non-payment of his salary
as helper. The brother of the accused in the person of Amado Rio corroborated the
defense of alibi of the accused. 23
On rebuttal, the prosecution presented Nemesia B. Merca, the Election Registrar of
the Municipality of Muntinlupa, who brought with her a Voter's Affidavit which was
executed on 31 March 1984 by one Ricardo Rio and was subscribed and sworn to on
31 March 1984 before Tessie Balbas, Chairman of Voting Center No. 37-A of Bayanan,
Muntinlupa, Metro Manila. On cross-examination, Registrar Merca admitted that she
does not know the accused personally but that the xerox copy of the Voter's Affidavit
that she brought to court was copied from a book containing about 60 voter's
affidavits of said precinct. 24
After comparing the signature appealing in the Voter's Affidavit with the penmanship
appearing on a letter 25dated 12 December 1985 written by the accused to his
brother, Amado Rio and on the envelope of said letter, 26 the trial court ruled that the
writing characteristics on the presented documents are the same, especially the
rounded dot over the letter "i" appearing in the afore-mentioned mentioned
documents. It was, therefore, satisfied that the Voter's Affidavit was indeed prepared
by the accused in Bayanan, Muntinlupa, Metro Manila, on 31 March 1984, before
Tessie Balbas and that this piece of evidence completely belies the defense of the
accused as corroborated by his brother, Amado, that he was in Romblon continuously
from the month of January 1984 up to the time that he was arrested on 6 May 1984. 27
Thus, the trial court found the accused-appellant guilty of the crime of rape. The
dispositive portion of the decision reads as follows:
WHEREFORE, finding the above-named accused guilty of the
crime charged in the information beyond reasonable doubt the
Court hereby sentences him to suffer the penalty of reclusion
perpetua, with the accessory penalties of the law, to indemnify
Wilma Phua in the sum of P15,000.00, Philippine currency, and to
pay the costs.
SO ORDERED.
The theory of the defense at the trial level was grounded on alibi. The accused
claimed that at the time of the alleged commission of the crime of rape he was in
Romblon. This claim was corroborated by the accused's brother, Amado Rio.
However, this claim was, as aforestated, rebutted by the prosecution's submission of
the voter's affidavit executed by the accused in Muntinlupa, Metro Manila on 31
March 1984 when appellant claimed he was in Romblon.
Upon careful examination of the voter's affidavit, the Court is convinced, as the trial
court, that the affidavit was indeed executed by the accused himself and the date
appearing therein must be presumed correct and genuine.
Alibi is inherently a weak defense, easy of fabrication especially between parents and
children, husband and wife, and other relatives and even among those not related to
each other. For such defense to prosper, the accused must prove that it was not
possible for him to have been at the scene of the crime at the time of its
commission. 28
In the present case, where nothing supports the alibi except the testimony of a
relative, in this case the accused's brother Amado, it deserves but scant
consideration. 29 Moreover, the Court notes the fact that while the accused-appellant
had another brother and sister living in Manila besides the complainant's mother,
those two never came to his aid. Were the accused the innocent man he claims to be,
these siblings would have readily helped in his defense. The testimony of his other
brother Amado alone cannot raise the necessary doubt to acquit him as against the
evidence presented by the prosecution.
Furthermore, it would be hard to believe that a female, especially a twelve-year old
child, would undergo the expense, trouble and inconvenience of a public trial, not to
mention suffer the scandal, embarrassment and humiliation such action inevitably
invites, as wen as allow an examination of her private parts if her motive were not to
bring to justice the person who had abused her. A victim of rape will not come out in
the open if her motive were not to obtain justice. 30
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It is harder still to believe that the mother of a child of twelve will abuse her child and privilege to practice law carries with it correlative duties not only to the client but also
make her undergo the trauma of a public trial only to punish someone, let alone a to the court, to the bar and to the public. 35
brother, for leaving her without the services of an unpaid helper were it not with the While a lawyer is not supposed to know all the laws, 36 he is expected to take such
aim to seek justice for her child. Nobody in his right mind could possibly wish to stamp reasonable precaution in the discharge of his duty to his client and for his professional
his child falsely with the stigma that follows a rape. guidance as will not make him, who is sworn to uphold the law, a transgressor of its
On appeal, appellant's counsel de oficio changed the theory of the defense. The new precepts. 37
theory presented by counsel de oficio is that Wilma Phua consented when accused- The fact that he merely volunteered his services or the circumstance that he was a
appellant had sexual intercourse with her on 24 March 1984. It was stressed by counsel de oficio neither diminishes nor alters the degree of professional
counsel de oficio that the rape occurred on 24 March 1984 and that, allegedly, it was responsibility owed to his client. 38 The ethics of the profession require that counsel
the fourth time accused had abused complainant. This allegation as well as the fact display warm zeal and great dedication to duty irrespective of the client's capacity to
that complainant failed to lock the door to the bathroom could only have been due pay him his fees. 39 Any attempted presentation of a case without adequate
to the fact that there was consent. The charge was filed, according to defense preparation distracts the administration of justice and discredits the Bar. 40
counsel de oficio, only because the complainant's mother caught them. 31 Returning to the case at bar, even if we consider the sudden shift of defense theory
This theory of the defense on appeal that there had been consent from the as warranted (which we do not), the Court is just as convinced, beyond reasonable
complainant, fails to generate doubt as to the accused's guilt, for it would be an doubt, that the accused-appellant is guilty of the crime as charged. His conviction
incredulous situation indeed to believe that one, so young and as yet uninitiated to must be sustained.
the ways of the world, would permit the occurrence of an incestuous relationship with WHEREFORE, the decision of the trial court finding the accused-appellant Ricardo Rio
an uncle, a brother of her very own mother. guilty beyond reasonable doubt of the crime of rape and sentencing him to the
The Court notes the sudden swift in the theory of the defense from one of total denial penalty of reclusion perpetua with all the accessory penalties of the law, is hereby
of the incident in question, by way of alibi, to one of participation, that is, with the AFFIRMED. The Court, however, increases the amount of indemnity to be paid by the
alleged consent of the complainant. This new version could only be attributed by the accused-appellant to Wilma Phua to thirty thousand pesos (P30,000.00) in line with
Court to the fact that counsel on appeal is different from the counsel in the trial court. prevailing jurisprudence on this matter. Costs against accused-appellant.
Although the Solicitor General has suggested that this sudden shift be interpreted as SO ORDERED.
an afterthought by the accused or a desperate effort to get himself acquitted, 32 the
Court deems it more likely that this shift was caused by counsel de oficio's preparation
of the appellant's brief without examining the entire records of the case. If the
appointed counsel for the accused, on appeal, had read the records and transcripts
of the case thoroughly, he would not have changed the theory of the defense for such
a shift can never speak well of the credibility of the defense. Moreover, the rule in
civil procedure, which applies equally in criminal cases, is that a party may not shift
his theory on appeal. If the counsel de oficio had been more conscientious, he would
have known that the sudden shift would be violative of aforementioned procedural
rule and detrimental to the cause of the accused-appellant (his client).
The Court hereby admonishes members of the Bar to be more conscious of their
duties as advocates of their clients' causes, whether acting de parte or de oficio, for
"public interest requires that an attorney exert his best efforts and ability in the
prosecution or defense of his client's cause." 33 Lawyers are an indispensable part of
the whole system of administering justice in this jurisdiction. 34 And a lawyer who
performs that duty with diligence and candor not only protects the interests of his
client; he also serves the ends of justice, does honor to the Bar and helps maintain
the respect of the community to the legal profession. This is so because the entrusted

149