PROBLEM AREAS in LEGAL ETHICS
LLB3
March 23, 1929
In re LUIS B. TAGORDA, Duran & Lim for respondent.
Attorney-General Jaranilla and Provincial Fiscal Jose for the
Government.
MALCOLM, J.:
The respondent, Luis B. Tagorda, a practising attorney and a member
of the provincial board of Isabela, admits that previous to the last
general elections he made use of a card written in Spanish and
Ilocano, which, in translation, reads as follows:
LUIS B. TAGORDA
Attorney
Notary Public
CANDIDATE FOR THIRD MEMBER
Province of Isabela
(NOTE. — As notary public, he can execute for you a deed of sale
for the purchase of land as required by the cadastral office; can
renew lost documents of your animals; can make your application
and final requisites for your homestead; and can execute any kind
of affidavit. As a lawyer, he can help you collect your loans
although long overdue, as well as any complaint for or against
you. Come or write to him in his town, Echague, Isabela. He offers
free consultation, and is willing to help and serve the poor.)
The respondent further admits that he is the author of a letter
addressed to a lieutenant of barrio in his home municipality written in
Ilocano, which letter, in translation, reads as follows:
ECHAGUE, ISABELA, September 18, 1928
MY DEAR LIEUTENANT: I would like to inform you of the
approaching date for our induction into office as member of the
Provincial Board, that is on the 16th of next month. Before my
induction into office I should be very glad to hear your
suggestions or recommendations for the good of the province in
general and for your barrio in particular. You can come to my
house at any time here in Echague, to submit to me any kind of
suggestion or recommendation as you may desire.
I also inform you that despite my membership in the Board I will
have my residence here in Echague. I will attend the session of
the Board of Ilagan, but will come back home on the following
day here in Echague to live and serve with you as a lawyer and
notary public. Despite my election as member of the Provincial
Board, I will exercise my legal profession as a lawyer and notary
public. In case you cannot see me at home on any week day, I
assure you that you can always find me there on every Sunday. I
also inform you that I will receive any work regarding
preparations of documents of contract of sales and affidavits to
be sworn to before me as notary public even on Sundays.
I would like you all to be informed of this matter for the reason
that some people are in the belief that my residence as member
of the Board will be in Ilagan and that I would then be disqualified
to exercise my profession as lawyer and as notary public. Such is
not the case and I would make it clear that I am free to exercise
my profession as formerly and that I will have my residence here
in Echague.
I would request you kind favor to transmit this information to
your barrio people in any of your meetings or social gatherings so
that they may be informed of my desire to live and to serve with
you in my capacity as lawyer and notary public. If the people in
your locality have not as yet contracted the services of other
lawyers in connection with the registration of their land titles, I
would be willing to handle the work in court and would charge
only three pesos for every registration.
Yours respectfully,
(Sgd.) LUIS TAGORDA
Attorney
Notary Public.
The facts being conceded, it is next in order to write down the
applicable legal provisions. Section 21 of the Code of Civil Procedure
as originally conceived related to disbarments of members of the bar.
In 1919 at the instigation of the Philippine Bar Association, said codal
section was amended by Act No. 2828 by adding at the end thereof
the following: "The practice of soliciting cases at law for the purpose
of gain, either personally or through paid agents or brokers,
constitutes malpractice."
The statute as amended conforms in principle to the Canons of
Professionals Ethics adopted by the American Bar Association in 1908
and by the Philippine Bar Association in 1917. Canons 27 and 28 of the
Code of Ethics provide:
27. ADVERTISING, DIRECT OR INDIRECT. — The most worthy and
effective advertisement possible, even for a young lawyer, and
especially with his brother lawyers, is the establishment of a well-
merited reputation for professional capacity and fidelity to trust.
This cannot be forced, but must be the outcome of character and
conduct. The publication or circulation of ordinary simple
business cards, being a matter of personal taste or local custom,
and sometimes of convenience, is not per se improper. But
solicitation of business by circulars or advertisements, or by
personal communications or interview not warranted by personal
relations, is unprofessional. It is equally unprofessional to procure
business by indirection through touters of any kind, whether
allied real estate firms or trust companies advertising to secure
the drawing of deeds or wills or offering retainers in exchange for
executorships or trusteeships to be influenced by the lawyer.
Indirect advertisement for business by furnishing or inspiring
newspaper comments concerning the manner of their conduct,
the magnitude of the interest involved, the importance of the
lawyer's position, and all other like self-laudation, defy the
traditions and lower the tone of our high calling, and are
intolerable.
28. STIRRING UP LITIGATION, DIRECTLY OR THROUGH AGENTS. —
It is unprofessional for a lawyer to volunteer advice to bring a
lawsuit, except in rare cases where ties of blood, relationship or
trust make it his duty to do so. Stirring up strife and litigation is
not only unprofessional, but it is indictable at common law. It is
disreputable to hunt up defects in titles or other causes of action
and inform thereof in order to the employed to bring suit, or to
MAYORDO, M.A.
breed litigation by seeking out those with claims for personal
injuries or those having any other grounds of action in order to
secure them as clients, or to employ agents or runners for like
purposes, or to pay or reward directly or indirectly, those who
bring or influence the bringing of such cases to his office, or to
remunerate policemen, court or prison officials, physicians,
hospital attaches or others who may succeed, under the guise of
giving disinterested friendly advice, in influencing the criminal,
the sick and the injured, the ignorant or others, to seek his
professional services. A duty to the public and to the profession
devolves upon every member of the bar having knowledge of
such practices upon the part of any practitioner immediately to
inform thereof to the end that the offender may be disbarred.
Common barratry consisting of frequently stirring up suits and
quarrels between individuals was a crime at the common law, and one
of the penalties for this offense when committed by an attorney was
disbarment. Statutes intended to reach the same evil have been
provided in a number of jurisdictions usually at the instance of the bar
itself, and have been upheld as constitutional. The reason behind
statutes of this type is not difficult to discover. The law is a profession
and not a business. The lawyer may not seek or obtain employment by
himself or through others for to do so would be unprofessional.
(State vs. Rossman [1909], 53 Wash., 1; 17 Ann. Cas., 625;
People vs. Mac Cabe [1893], 19 L. R. A., 231; 2 R. C. L., 1097.)
It becomes our duty to condemn in no uncertain terms the ugly
practice of solicitation of cases by lawyers. It is destructive of the
honor of a great profession. It lowers the standards of that profession.
It works against the confidence of the community in the integrity of
the members of the bar. It results in needless litigation and in
incenting to strife otherwise peacefully inclined citizens.
The solicitation of employment by an attorney is a ground for
disbarment or suspension. That should be distinctly understood.
Giving application of the law and the Canons of Ethics to the admitted
facts, the respondent stands convicted of having solicited cases in
defiance of the law and those canons. Accordingly, the only remaining
duty of the court is to fix upon the action which should here be taken.
The provincial fiscal of Isabela, with whom joined the representative of
the Attorney-General in the oral presentation of the case, suggests
that the respondent be only reprimanded. We think that our action
should go further than this if only to reflect our attitude toward cases
of this character of which unfortunately the respondent's is only one.
The commission of offenses of this nature would amply justify
permanent elimination from the bar. But as mitigating, circumstances
working in favor of the respondent there are, first, his intimation that
he was unaware of the impropriety of his acts, second, his youth and
inexperience at the bar, and, third, his promise not to commit a similar
mistake in the future. A modest period of suspension would seem to
fit the case of the erring attorney. But it should be distinctly
understood that this result is reached in view of the considerations
which have influenced the court to the relatively lenient in this
particular instance and should, therefore, not be taken as indicating
that future convictions of practice of this kind will not be dealt with by
disbarment.
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PROBLEM AREAS in LEGAL ETHICS
In view of all the circumstances of this case, the judgment of the court
is that the respondent Luis B. Tagorda be and is hereby suspended
from the practice as an attorney-at-law for the period of one month
from April 1, 1929,
Street, Johns, Romualdez, and Villa-Real, JJ., concur.
Johnson, J., reserves his vote.
A.M. No. 1928 August 3, 1978
In the Matter of the IBP Membership Dues Delinquency of Atty.
MARCIAL A. EDILION (IBP Administrative Case No. MDD-1)
RESOLUTION
CASTRO, C.J.:
The respondent Marcial A. Edillon is a duly licensed practicing attorney
in the Philippines.
On November 29, 1975, the Integrated Bar of the Philippines (IBP for
short) Board of Governors unanimously adopted Resolution No. 75-65
in Administrative Case No. MDD-1 (In the Matter of the Membership
Dues Delinquency of Atty. Marcial A. Edillon) recommending to the
Court the removal of the name of the respondent from its Roll of
Attorneys for "stubborn refusal to pay his membership dues" to the
IBP since the latter's constitution notwithstanding due notice.
On January 21, 1976, the IBP, through its then President Liliano B.
Neri, submitted the said resolution to the Court for consideration and
approval, pursuant to paragraph 2, Section 24, Article III of the By-
Laws of the IBP, which reads:
.... Should the delinquency further continue until the following
June 29, the Board shall promptly inquire into the cause or causes
of the continued delinquency and take whatever action it shall
deem appropriate, including a recommendation to the Supreme
Court for the removal of the delinquent member's name from the
Roll of Attorneys. Notice of the action taken shall be sent by
registered mail to the member and to the Secretary of the
Chapter concerned.
On January 27, 1976, the Court required the respondent to comment
on the resolution and letter adverted to above; he submitted his
comment on February 23, 1976, reiterating his refusal to pay the
membership fees due from him.
On March 2, 1976, the Court required the IBP President and the IBP
Board of Governors to reply to Edillon's comment: on March 24, 1976,
they submitted a joint reply.
Thereafter, the case was set for hearing on June 3, 1976. After the
hearing, the parties were required to submit memoranda in
amplification of their oral arguments. The matter was thenceforth
submitted for resolution.
At the threshold, a painstaking scrutiny of the respondent's pleadings
would show that the propriety and necessity of the integration of the
Bar of the Philippines are in essence conceded. The respondent,
however, objects to particular features of Rule of Court 139-A
(hereinafter referred to as the Court Rule) 1 — in accordance with
which the Bar of the Philippines was integrated — and to the
provisions of par. 2, Section 24, Article III, of the IBP By-Laws
(hereinabove cited).
The authority of the IBP Board of Governors to recommend to the
Supreme Court the removal of a delinquent member's name from the
Roll of Attorneys is found in par. 2 Section 24, Article Ill of the IBP By-
Laws (supra), whereas the authority of the Court to issue the order
applied for is found in Section 10 of the Court Rule, which reads:
SEC. 10. Effect of non-payment of dues. — Subject to the
provisions of Section 12 of this Rule, default in the payment of
annual dues for six months shall warrant suspension of
membership in the Integrated Bar, and default in such payment
for one year shall be a ground for the removal of the name of the
delinquent member from the Roll of Attorneys.
The all-encompassing, all-inclusive scope of membership in the IBP is
stated in these words of the Court Rule:
SECTION 1. Organization. — There is hereby organized an official
national body to be known as the 'Integrated Bar of the
Philippines,' composed of all persons whose names now appear
or may hereafter be included in the Roll of Attorneys of the
Supreme Court.
The obligation to pay membership dues is couched in the following
words of the Court Rule:
SEC. 9. Membership dues. Every member of the Integrated Bar
shall pay such annual dues as the Board of Governors shall
determine with the approval of the Supreme Court. ...
The core of the respondent's arguments is that the above provisions
constitute an invasion of his constitutional rights in the sense that he
is being compelled, as a pre-condition to maintaining his status as a
lawyer in good standing, to be a member of the IBP and to pay the
corresponding dues, and that as a consequence of this compelled
financial support of the said organization to which he is admittedly
personally antagonistic, he is being deprived of the rights to liberty
and property guaranteed to him by the Constitution. Hence, the
respondent concludes, the above provisions of the Court Rule and of
the IBP By-Laws are void and of no legal force and effect.
The respondent similarly questions the jurisdiction of the Court to
strike his name from the Roll of Attorneys, contending that the said
matter is not among the justiciable cases triable by the Court but is
rather of an "administrative nature pertaining to an administrative
body."
The case at bar is not the first one that has reached the Court relating
to constitutional issues that inevitably and inextricably come up to the
surface whenever attempts are made to regulate the practice of law,
define the conditions of such practice, or revoke the license granted
for the exercise of the legal profession.
MAYORDO, M.A. LLB3
The matters here complained of are the very same issues raised in a
previous case before the Court, entitled "Administrative Case No. 526,
In the Matter of the Petition for the Integration of the Bar of the
Philippines, Roman Ozaeta, et al., Petitioners." The Court exhaustively
considered all these matters in that case in its Resolution ordaining
the integration of the Bar of the Philippines, promulgated on January
9, 1973. The Court there made the unanimous pronouncement that it
was
... fully convinced, after a thoroughgoing conscientious study of
all the arguments adduced in Adm. Case No. 526 and the
authoritative materials and the mass of factual data contained in
the exhaustive Report of the Commission on Bar Integration, that
the integration of the Philippine Bar is 'perfectly constitutional
and legally unobjectionable'. ...
Be that as it may, we now restate briefly the posture of the Court.
An "Integrated Bar" is a State-organized Bar, to which every lawyer
must belong, as distinguished from bar associations organized by
individual lawyers themselves, membership in which is voluntary.
Integration of the Bar is essentially a process by which every member
of the Bar is afforded an opportunity to do his share in carrying out
the objectives of the Bar as well as obliged to bear his portion of its
responsibilities. Organized by or under the direction of the State, an
integrated Bar is an official national body of which all lawyers are
required to be members. They are, therefore, subject to all the rules
prescribed for the governance of the Bar, including the requirement of
payment of a reasonable annual fee for the effective discharge of the
purposes of the Bar, and adherence to a code of professional ethics or
professional responsibility breach of which constitutes sufficient
reason for investigation by the Bar and, upon proper cause appearing,
a recommendation for discipline or disbarment of the offending
member. 2
The integration of the Philippine Bar was obviously dictated by
overriding considerations of public interest and public welfare to such
an extent as more than constitutionally and legally justifies the
restrictions that integration imposes upon the personal interests and
personal convenience of individual lawyers. 3
Apropos to the above, it must be stressed that all legislation directing
the integration of the Bar have been uniformly and universally
sustained as a valid exercise of the police power over an important
profession. The practice of law is not a vested right but a privilege, a
privilege moreover clothed with public interest because a lawyer owes
substantial duties not only to his client, but also to his brethren in the
profession, to the courts, and to the nation, and takes part in one of
the most important functions of the State — the administration of
justice — as an officer of the court. 4 The practice of law being clothed
with public interest, the holder of this privilege must submit to a
degree of control for the common good, to the extent of the interest
he has created. As the U. S. Supreme Court through Mr. Justice
Roberts explained, the expression "affected with a public interest" is
the equivalent of "subject to the exercise of the police power" (Nebbia
vs. New York, 291 U.S. 502).
When, therefore, Congress enacted Republic Act No.
6397 5 authorizing the Supreme Court to "adopt rules of court to
Page 2 of 29
PROBLEM AREAS in LEGAL ETHICS
effect the integration of the Philippine Bar under such conditions as it
shall see fit," it did so in the exercise of the paramount police power of
the State. The Act's avowal is to "raise the standards of the legal
profession, improve the administration of justice, and enable the Bar
to discharge its public responsibility more effectively." Hence, the
Congress in enacting such Act, the Court in ordaining the integration of
the Bar through its Resolution promulgated on January 9, 1973, and
the President of the Philippines in decreeing the constitution of the
IBP into a body corporate through Presidential Decree No. 181 dated
May 4, 1973, were prompted by fundamental considerations of public
welfare and motivated by a desire to meet the demands of pressing
public necessity.
The State, in order to promote the general welfare, may interfere with
and regulate personal liberty, property and occupations. Persons and
property may be subjected to restraints and burdens in order to
secure the general prosperity and welfare of the State (U.S. vs. Gomez
Jesus, 31 Phil 218), for, as the Latin maxim goes, "Salus populi est
supreme lex." The public welfare is the supreme law. To this
fundamental principle of government the rights of individuals are
subordinated. Liberty is a blessing without which life is a misery, but
liberty should not be made to prevail over authority because then
society win fall into anarchy (Calalang vs. Williams, 70 Phil. 726). It is
an undoubted power of the State to restrain some individuals from all
freedom, and all individuals from some freedom.
But the most compelling argument sustaining the constitutionality and
validity of Bar integration in the Philippines is the explicit unequivocal
grant of precise power to the Supreme Court by Section 5 (5) of Article
X of the 1973 Constitution of the Philippines, which reads:
Sec. 5. The Supreme Court shall have the following powers:
xxx xxx xxx
(5) Promulgate rules concerning pleading, practice, and pro.
procedure in all courts, and the admission to the practice of law
and the integration of the Bar ...,
and Section 1 of Republic Act No. 6397, which reads:
SECTION 1. Within two years from the approval of this Act, the
Supreme Court may adopt rules of Court to effect the integration
of the Philippine Bar under such conditions as it shall see fit in
order to raise the standards of the legal profession, improve the
administration of justice, and enable the Bar to discharge its
public responsibility more effectively.
Quite apart from the above, let it be stated that even without the
enabling Act (Republic Act No. 6397), and looking solely to the
language of the provision of the Constitution granting the Supreme
Court the power "to promulgate rules concerning pleading, practice
and procedure in all courts, and the admission to the practice of law,"
it at once becomes indubitable that this constitutional declaration
vests the Supreme Court with plenary power in all cases regarding the
admission to and supervision of the practice of law.
Thus, when the respondent Edillon entered upon the legal profession,
his practice of law and his exercise of the said profession, which affect
the society at large, were (and are) subject to the power of the body
politic to require him to conform to such regulations as might be
established by the proper authorities for the common good, even to
the extent of interfering with some of his liberties. If he did not wish to
submit himself to such reasonable interference and regulation, he
should not have clothed the public with an interest in his concerns.
On this score alone, the case for the respondent must already fall.
The issues being of constitutional dimension, however, we now
concisely deal with them seriatim.
1. The first objection posed by the respondent is that the Court is
without power to compel him to become a member of the Integrated
Bar of the Philippines, hence, Section 1 of the Court Rule is
unconstitutional for it impinges on his constitutional right of freedom
to associate (and not to associate). Our answer is: To compel a lawyer
to be a member of the Integrated Bar is not violative of his
constitutional freedom to associate. 6
Integration does not make a lawyer a member of any group of which
he is not already a member. He became a member of the Bar when he
passed the Bar examinations. 7 All that integration actually does is to
provide an official national organization for the well-defined but
unorganized and incohesive group of which every lawyer is a ready a
member. 8
Bar integration does not compel the lawyer to associate with anyone.
He is free to attend or not attend the meetings of his Integrated Bar
Chapter or vote or refuse to vote in its elections as he chooses. The
only compulsion to which he is subjected is the payment of annual
dues. The Supreme Court, in order to further the State's legitimate
interest in elevating the quality of professional legal services, may
require that the cost of improving the profession in this fashion be
shared by the subjects and beneficiaries of the regulatory program —
the lawyers.9
Assuming that the questioned provision does in a sense compel a
lawyer to be a member of the Integrated Bar, such compulsion is
justified as an exercise of the police power of the State. 10
2. The second issue posed by the respondent is that the provision of
the Court Rule requiring payment of a membership fee is void. We see
nothing in the Constitution that prohibits the Court, under its
constitutional power and duty to promulgate rules concerning the
admission to the practice of law and the integration of the Philippine
Bar (Article X, Section 5 of the 1973 Constitution) — which power the
respondent acknowledges — from requiring members of a privileged
class, such as lawyers are, to pay a reasonable fee toward defraying
the expenses of regulation of the profession to which they belong. It is
quite apparent that the fee is indeed imposed as a regulatory
measure, designed to raise funds for carrying out the objectives and
purposes of integration. 11
3. The respondent further argues that the enforcement of the penalty
provisions would amount to a deprivation of property without due
process and hence infringes on one of his constitutional rights.
Whether the practice of law is a property right, in the sense of its
being one that entitles the holder of a license to practice a profession,
we do not here pause to consider at length, as it clear that under the
police power of the State, and under the necessary powers granted to
MAYORDO, M.A. LLB3
the Court to perpetuate its existence, the respondent's right to
practise law before the courts of this country should be and is a
matter subject to regulation and inquiry. And, if the power to impose
the fee as a regulatory measure is recognize, then a penalty designed
to enforce its payment, which penalty may be avoided altogether by
payment, is not void as unreasonable or arbitrary. 12
But we must here emphasize that the practice of law is not a property
right but a mere privilege, 13 and as such must bow to the inherent
regulatory power of the Court to exact compliance with the lawyer's
public responsibilities.
4. Relative to the issue of the power and/or jurisdiction of the
Supreme Court to strike the name of a lawyer from its Roll of
Attorneys, it is sufficient to state that the matters of admission,
suspension, disbarment and reinstatement of lawyers and their
regulation and supervision have been and are indisputably recognized
as inherent judicial functions and responsibilities, and the authorities
holding such are legion. 14
In In Re Sparks (267 Ky. 93, 101 S.W. (2d) 194), in which the report of
the Board of Bar Commissioners in a disbarment proceeding was
confirmed and disbarment ordered, the court, sustaining the Bar
Integration Act of Kentucky, said: "The power to regulate the conduct
and qualifications of its officers does not depend upon constitutional
or statutory grounds. It is a power which is inherent in this court as a
court — appropriate, indeed necessary, to the proper administration
of justice ... the argument that this is an arbitrary power which the
court is arrogating to itself or accepting from the legislative likewise
misconceives the nature of the duty. It has limitations no less real
because they are inherent. It is an unpleasant task to sit in judgment
upon a brother member of the Bar, particularly where, as here, the
facts are disputed. It is a grave responsibility, to be assumed only with
a determination to uphold the Ideals and traditions of an honorable
profession and to protect the public from overreaching and fraud. The
very burden of the duty is itself a guaranty that the power will not be
misused or prostituted. ..."
The Court's jurisdiction was greatly reinforced by our 1973
Constitution when it explicitly granted to the Court the power to
"Promulgate rules concerning pleading, practice ... and the admission
to the practice of law and the integration of the Bar ... (Article X, Sec.
5(5) the power to pass upon the fitness of the respondent to remain a
member of the legal profession is indeed undoubtedly vested in the
Court.
We thus reach the conclusion that the provisions of Rule of Court 139-
A and of the By-Laws of the Integrated Bar of the Philippines
complained of are neither unconstitutional nor illegal.
WHEREFORE, premises considered, it is the unanimous sense of the
Court that the respondent Marcial A. Edillon should be as he is hereby
disbarred, and his name is hereby ordered stricken from the Roll of
Attorneys of the Court.
Fernando, Teehankee, Barredo, Makasiar, Antonio, Muñoz Palma,
Aquino, Concepcion, Jr., Santos, Fernandez and Guerrero, JJ., concur.
Page 3 of 29
PROBLEM AREAS in LEGAL ETHICS
Resolution March 18, 1954
In the Matter of the Petitions for Admission to the Bar of
Unsuccessful Candidates of 1946 to 1953;
ALBINO CUNANAN, ET AL., petitioners.
DIOKNO, J.:
In recent years few controversial issues have aroused so much public
interest and concern as Republic Act No. 972, popularly known as the
"Bar Flunkers' Act of 1953." Under the Rules of Court governing
admission to the bar, "in order that a candidate (for admission to the
Bar) may be deemed to have passed his examinations successfully, he
must have obtained a general average of 75 per cent in all subjects,
without falling below 50 per cent in any subject." (Rule 127, sec. 14,
Rules of Court). Nevertheless, considering the varying difficulties of
the different bar examinations held since 1946 and the varying degree
of strictness with which the examination papers were graded, this
court passed and admitted to the bar those candidates who had
obtained an average of only 72 per cent in 1946, 69 per cent in 1947,
70 per cent in 1948, and 74 per cent in 1949. In 1950 to 1953, the 74
per cent was raised to 75 per cent.
Believing themselves as fully qualified to practice law as those
reconsidered and passed by this court, and feeling conscious of having
been discriminated against (See Explanatory Note to R.A. No. 972),
unsuccessful candidates who obtained averages of a few percentage
lower than those admitted to the Bar agitated in Congress for, and
secured in 1951 the passage of Senate Bill No. 12 which, among
others, reduced the passing general average in bar examinations to 70
per cent effective since 1946. The President requested the views of
this court on the bill. Complying with that request, seven members of
the court subscribed to and submitted written comments adverse
thereto, and shortly thereafter the President vetoed it. Congress did
not override the veto. Instead, it approved Senate Bill No. 371,
embodying substantially the provisions of the vetoed bill. Although the
members of this court reiterated their unfavorable views on the
matter, the President allowed the bill to become a law on June 21,
1953 without his signature. The law, which incidentally was enacted in
an election year, reads in full as follows:
REPUBLIC ACT NO. 972
AN ACT TO FIX THE PASSING MARKS FOR BAR EXAMINATIONS
FROM NINETEEN HUNDRED AND FORTY-SIX UP TO AND
INCLUDING NINETEEN HUNDRED AND FIFTY-FIVE.
Be it enacted by the Senate and House of Representatives of the
Philippines in Congress assembled:
SECTION 1. Notwithstanding the provisions of section fourteen,
Rule numbered one hundred twenty-seven of the Rules of Court,
any bar candidate who obtained a general average of seventy per
cent in any bar examinations after July fourth, nineteen hundred
and forty-six up to the August nineteen hundred and fifty-one bar
examinations; seventy-one per cent in the nineteen hundred and
fifty-two bar examinations; seventy-two per cent in the in the
nineteen hundred and fifty-three bar examinations; seventy-three
per cent in the nineteen hundred and fifty-four bar examinations;
seventy-four per cent in the nineteen hundred and fifty-five bar
examinations without a candidate obtaining a grade below fifty per
cent in any subject, shall be allowed to take and subscribe the
corresponding oath of office as member of the Philippine
Bar: Provided, however, That for the purpose of this Act, any exact
one-half or more of a fraction, shall be considered as one and
included as part of the next whole number.
SEC. 2. Any bar candidate who obtained a grade of seventy-five per
cent in any subject in any bar examination after July fourth,
nineteen hundred and forty-six shall be deemed to have passed in
such subject or subjects and such grade or grades shall be included
in computing the passing general average that said candidate may
obtain in any subsequent examinations that he may take.
SEC. 3. This Act shall take effect upon its approval.
Enacted on June 21, 1953, without the Executive approval.
After its approval, many of the unsuccessful postwar candidates filed
petitions for admission to the bar invoking its provisions, while others
whose motions for the revision of their examination papers were still
pending also invoked the aforesaid law as an additional ground for
admission. There are also others who have sought simply the
reconsideration of their grades without, however, invoking the law in
question. To avoid injustice to individual petitioners, the court first
reviewed the motions for reconsideration, irrespective of whether or
not they had invoked Republic Act No. 972. Unfortunately, the court
has found no reason to revise their grades. If they are to be admitted
to the bar, it must be pursuant to Republic Act No. 972 which, if
declared valid, should be applied equally to all concerned whether
they have filed petitions or not. A complete list of the petitioners,
properly classified, affected by this decision, as well as a more detailed
account of the history of Republic Act No. 972, are appended to this
decision as Annexes I and II. And to realize more readily the effects of
the law, the following statistical data are set forth:
(1) The unsuccessful bar candidates who are to be benefited by
section 1 of Republic Act No. 972 total 1,168, classified as follows:
1946 (August) 206 121 18
1946 (November) 477 228 43
1947 749 340 0 long time by the Tribunal, and finally, after the voting, the preparation
1948 899 409 11
1949 1,218 532 164
1950 1,316 893 26
1951 2,068 879 196
1952 2,738 1,033 426
1953 2,555 968 284
TOTAL 12,230 5,421 1,168
Of the total 1,168 candidates, 92 have passed in subsequent
examination, and only 586 have filed either motions for admission to
the bar pursuant to said Republic Act, or mere motions for
reconsideration.
(2) In addition, some other 10 unsuccessful candidates are to be
benefited by section 2 of said Republic Act. These candidates had each
taken from two to five different examinations, but failed to obtain a
passing average in any of them. Consolidating, however, their highest
MAYORDO, M.A. LLB3
grades in different subjects in previous examinations, with their latest
marks, they would be sufficient to reach the passing average as
provided for by Republic Act No. 972.
(3) The total number of candidates to be benefited by this Republic
Acts is therefore 1,094, of which only 604 have filed petitions. Of these
604 petitioners, 33 who failed in 1946 to 1951 had individually
presented motions for reconsideration which were denied, while 125
unsuccessful candidates of 1952, and 56 of 1953, had presented
similar motions, which are still pending because they could be
favorably affected by Republic Act No. 972, — although as has been
already stated, this tribunal finds no sufficient reasons to reconsider
their grades
UNCONSTITUTIONALITY OF REPUBLIC ACT NO. 972
Having been called upon to enforce a law of far-reaching effects on
the practice of the legal profession and the administration of justice,
and because some doubts have been expressed as to its validity, the
court set the hearing of the afore-mentioned petitions for admission
on the sole question of whether or not Republic Act No. 972 is
constitutional.
We have been enlightened in the study of this question by the brilliant
assistance of the members of the bar who have amply argued, orally
an in writing, on the various aspects in which the question may be
gleaned. The valuable studies of Messrs. E. Voltaire Garcia, Vicente J.
Francisco, Vicente Pelaez and Buenaventura Evangelista, in favor of
the validity of the law, and of the U.P. Women's Lawyers' Circle, the
Solicitor General, Messrs. Arturo A. Alafriz, Enrique M. Fernando,
Vicente Abad Santos, Carlos A. Barrios, Vicente del Rosario, Juan de
Blancaflor, Mamerto V. Gonzales, and Roman Ozaeta against it, aside
from the memoranda of counsel for petitioners, Messrs. Jose M.
Aruego, M.H. de Joya, Miguel R. Cornejo and Antonio Enrile Inton, and
of petitioners Cabrera, Macasaet and Galema themselves, has greatly
helped us in this task. The legal researchers of the court have
exhausted almost all Philippine and American jurisprudence on the
matter. The question has been the object of intense deliberation for a
of the majority opinion was assigned to a new member in order to
place it as humanly as possible above all suspicion of prejudice or
partiality.
Republic Act No. 972 has for its object, according to its author, to
admit to the Bar, those candidates who suffered from insufficiency of
reading materials and inadequate preparation. Quoting a portion of
the Explanatory Note of the proposed bill, its author Honorable
Senator Pablo Angeles David stated:
The reason for relaxing the standard 75 per cent passing grade is
the tremendous handicap which students during the years
immediately after the Japanese occupation has to overcome such
as the insufficiency of reading materials and the inadequacy of
the preparation of students who took up law soon after the
liberation.
Of the 9,675 candidates who took the examinations from 1946 to
1952, 5,236 passed. And now it is claimed that in addition 604
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PROBLEM AREAS in LEGAL ETHICS
candidates be admitted (which in reality total 1,094), because they
suffered from "insufficiency of reading materials" and of "inadequacy
of preparation."
By its declared objective, the law is contrary to public interest because
it qualifies 1,094 law graduates who confessedly had inadequate
preparation for the practice of the profession, as was exactly found by
this Tribunal in the aforesaid examinations. The public interest
demands of legal profession adequate preparation and efficiency,
precisely more so as legal problem evolved by the times become more
difficult. An adequate legal preparation is one of the vital requisites for
the practice of law that should be developed constantly and
maintained firmly. To the legal profession is entrusted the protection
of property, life, honor and civil liberties. To approve officially of those
inadequately prepared individuals to dedicate themselves to such a
delicate mission is to create a serious social danger. Moreover, the
statement that there was an insufficiency of legal reading materials is
grossly exaggerated. There were abundant materials. Decisions of this
court alone in mimeographed copies were made available to the
public during those years and private enterprises had also published
them in monthly magazines and annual digests. The Official
Gazette had been published continuously. Books and magazines
published abroad have entered without restriction since 1945. Many
law books, some even with revised and enlarged editions have been
printed locally during those periods. A new set of Philippine Reports
began to be published since 1946, which continued to be
supplemented by the addition of new volumes. Those are facts of
public knowledge.
Notwithstanding all these, if the law in question is valid, it has to be
enforced.
The question is not new in its fundamental aspect or from the point of
view of applicable principles, but the resolution of the question would
have been easier had an identical case of similar background been
picked out from the jurisprudence we daily consult. Is there any
precedent in the long Anglo-Saxon legal history, from which has been
directly derived the judicial system established here with its lofty
ideals by the Congress of the United States, and which we have
preserved and attempted to improve, or in our contemporaneous
judicial history of more than half a century? From the citations of
those defending the law, we can not find a case in which the validity of
a similar law had been sustained, while those against its validity cite,
among others, the cases of Day (In re Day, 54 NE 646), of Cannon
(State vs. Cannon, 240 NW, 441), the opinion of the Supreme Court of
Massachusetts in 1932 (81 ALR 1061), of Guariña (24 Phil., 37), aside
from the opinion of the President which is expressed in his vote of the
original bill and which the postponement of the contested law
respects.
This law has no precedent in its favor. When similar laws in other
countries had been promulgated, the judiciary immediately declared
them without force or effect. It is not within our power to offer a
precedent to uphold the disputed law.
To be exact, we ought to state here that we have examined carefully
the case that has been cited to us as a favorable precedent of the law
— that of Cooper (22 NY, 81), where the Court of Appeals of New York
revoked the decision of the Supreme court of that State, denying the
petition of Cooper to be admitted to the practice of law under the
provisions of a statute concerning the school of law of Columbia
College promulgated on April 7, 1860, which was declared by the
Court of Appeals to be consistent with the Constitution of the state of
New York.
It appears that the Constitution of New York at that time provided:
They (i.e., the judges) shall not hold any other office of public
trust. All votes for either of them for any elective office except
that of the Court of Appeals, given by the Legislature or the
people, shall be void. They shall not exercise any power of
appointment to public office. Any male citizen of the age of
twenty-one years, of good moral character, and who possesses
the requisite qualifications of learning and ability, shall be entitled
to admission to practice in all the courts of this State. (p. 93).
According to the Court of Appeals, the object of the constitutional
precept is as follows:
Attorneys, solicitors, etc., were public officers; the power of
appointing them had previously rested with the judges, and this
was the principal appointing power which they possessed. The
convention was evidently dissatisfied with the manner in which
this power had been exercised, and with the restrictions which
the judges had imposed upon admission to practice before them.
The prohibitory clause in the section quoted was aimed directly at
this power, and the insertion of the provision" expecting the
admission of attorneys, in this particular section of the
Constitution, evidently arose from its connection with the object
of this prohibitory clause. There is nothing indicative of
confidence in the courts or of a disposition to preserve any
portion of their power over this subject, unless the Supreme
Court is right in the inference it draws from the use of the word
`admission' in the action referred to. It is urged that the
admission spoken of must be by the court; that to admit means to
grant leave, and that the power of granting necessarily implies
the power of refusing, and of course the right of determining
whether the applicant possesses the requisite qualifications to
entitle him to admission.
These positions may all be conceded, without affecting the
validity of the act. (p. 93.)
Now, with respect to the law of April 7, 1860, the decision seems to
indicate that it provided that the possession of a diploma of the school
of law of Columbia College conferring the degree of Bachelor of Laws
was evidence of the legal qualifications that the constitution required
of applicants for admission to the Bar. The decision does not however
quote the text of the law, which we cannot find in any public or
accessible private library in the country.
In the case of Cooper, supra, to make the law consistent with the
Constitution of New York, the Court of Appeals said of the object of
the law:
MAYORDO, M.A. LLB3
The motive for passing the act in question is apparent. Columbia
College being an institution of established reputation, and having
a law department under the charge of able professors, the
students in which department were not only subjected to a
formal examination by the law committee of the institution, but
to a certain definite period of study before being entitled to a
diploma of being graduates, the Legislature evidently, and no
doubt justly, considered this examination, together with the
preliminary study required by the act, as fully equivalent as a test
of legal requirements, to the ordinary examination by the court;
and as rendering the latter examination, to which no definite
period of preliminary study was essential, unnecessary and
burdensome.
The act was obviously passed with reference to the learning and
ability of the applicant, and for the mere purpose of substituting
the examination by the law committee of the college for that of
the court. It could have had no other object, and hence no
greater scope should be given to its provisions. We cannot
suppose that the Legislature designed entirely to dispense with
the plain and explicit requirements of the Constitution; and the
act contains nothing whatever to indicate an intention that the
authorities of the college should inquire as to the age, citizenship,
etc., of the students before granting a diploma. The only rational
interpretation of which the act admits is, that it was intended to
make the college diploma competent evidence as to the legal
attainments of the applicant, and nothing else. To this extent
alone it operates as a modification of pre-existing statutes, and it
is to be read in connection with these statutes and with the
Constitution itself in order to determine the present condition of
the law on the subject. (p.89)
xxx xxx xxx
The Legislature has not taken from the court its jurisdiction over
the question of admission, that has simply prescribed what shall
be competent evidence in certain cases upon that question.
(p.93)
From the foregoing, the complete inapplicability of the case of Cooper
with that at bar may be clearly seen. Please note only the following
distinctions:
(1) The law of New York does not require that any candidate of
Columbia College who failed in the bar examinations be admitted to
the practice of law.
(2) The law of New York according to the very decision of Cooper, has
not taken from the court its jurisdiction over the question of
admission of attorney at law; in effect, it does not decree the
admission of any lawyer.
(3) The Constitution of New York at that time and that of the
Philippines are entirely different on the matter of admission of the
practice of law.
In the judicial system from which ours has been evolved, the
admission, suspension, disbarment and reinstatement of attorneys at
law in the practice of the profession and their supervision have been
Page 5 of 29
PROBLEM AREAS in LEGAL ETHICS
disputably a judicial function and responsibility. Because of this
attribute, its continuous and zealous possession and exercise by the
judicial power have been demonstrated during more than six
centuries, which certainly "constitutes the most solid of titles." Even
considering the power granted to Congress by our Constitution to
repeal, alter supplement the rules promulgated by this Court
regarding the admission to the practice of law, to our judgment and
proposition that the admission, suspension, disbarment and
reinstatement of the attorneys at law is a legislative function, properly
belonging to Congress, is unacceptable. The function requires (1)
previously established rules and principles, (2) concrete facts, whether
past or present, affecting determinate individuals. and (3) decision as
to whether these facts are governed by the rules and principles; in
effect, a judicial function of the highest degree. And it becomes more
undisputably judicial, and not legislative, if previous judicial
resolutions on the petitions of these same individuals are attempted
to be revoked or modified.
We have said that in the judicial system from which ours has been
derived, the act of admitting, suspending, disbarring and reinstating
attorneys at law in the practice of the profession is concededly
judicial. A comprehensive and conscientious study of this matter had
been undertaken in the case of State vs. Cannon (1932) 240 NW 441,
in which the validity of a legislative enactment providing that Cannon
be permitted to practice before the courts was discussed. From the
text of this decision we quote the following paragraphs:
This statute presents an assertion of legislative power without
parallel in the history of the English speaking people so far as we
have been able to ascertain. There has been much uncertainty as
to the extent of the power of the Legislature to prescribe the
ultimate qualifications of attorney at law has been expressly
committed to the courts, and the act of admission has always
been regarded as a judicial function. This act purports to
constitute Mr. Cannon an attorney at law, and in this respect it
stands alone as an assertion of legislative power. (p. 444)
Under the Constitution all legislative power is vested in a Senate
and Assembly. (Section 1, art. 4.) In so far as the prescribing of
qualifications for admission to the bar are legislative in character,
the Legislature is acting within its constitutional authority when it
sets up and prescribes such qualifications. (p. 444)
But when the Legislature has prescribed those qualifications
which in its judgment will serve the purpose of legitimate
legislative solicitude, is the power of the court to impose other
and further exactions and qualifications foreclosed or exhausted?
(p. 444)
Under our Constitution the judicial and legislative departments
are distinct, independent, and coordinate branches of the
government. Neither branch enjoys all the powers of sovereignty
which properly belongs to its department. Neither department
should so act as to embarrass the other in the discharge of its
respective functions. That was the scheme and thought of the
people setting upon the form of government under which we
exist. State vs. Hastings, 10 Wis., 525; Attorney General ex rel.
Bashford vs. Barstow, 4 Wis., 567. (p. 445)
The judicial department of government is responsible for the
plane upon which the administration of justice is maintained. Its
responsibility in this respect is exclusive. By committing a portion
of the powers of sovereignty to the judicial department of our
state government, under 42a scheme which it was supposed
rendered it immune from embarrassment or interference by any
other department of government, the courts cannot escape
responsibility fir the manner in which the powers of sovereignty
thus committed to the judicial department are exercised. (p. 445)
The relation at the bar to the courts is a peculiar and intimate
relationship. The bar is an attache of the courts. The quality of
justice dispense by the courts depends in no small degree upon
the integrity of its bar. An unfaithful bar may easily bring scandal
and reproach to the administration of justice and bring the courts
themselves into disrepute. (p.445)
Through all time courts have exercised a direct and severe
supervision over their bars, at least in the English speaking
countries. (p. 445)
After explaining the history of the case, the Court ends thus:
Our conclusion may be epitomized as follows: For more than six
centuries prior to the adoption of our Constitution, the courts of
England, concededly subordinate to Parliament since the
Revolution of 1688, had exercise the right of determining who
should be admitted to the practice of law, which, as was said in
Matter of the Sergeant's at Law, 6 Bingham's New Cases 235,
"constitutes the most solid of all titles." If the courts and judicial
power be regarded as an entity, the power to determine who
should be admitted to practice law is a constituent element of
that entity. It may be difficult to isolate that element and say with
assurance that it is either a part of the inherent power of the
court, or an essential element of the judicial power exercised by
the court, but that it is a power belonging to the judicial entity
and made of not only a sovereign institution, but made of it a
separate independent, and coordinate branch of the government.
They took this institution along with the power traditionally
exercise to determine who should constitute its attorney at law.
There is no express provision in the Constitution which indicates
an intent that this traditional power of the judicial department
should in any manner be subject to legislative control. Perhaps
the dominant thought of the framers of our constitution was to
make the three great departments of government separate and
independent of one another. The idea that the Legislature might
embarrass the judicial department by prescribing inadequate
qualifications for attorneys at law is inconsistent with the
dominant purpose of making the judicial independent of the
legislative department, and such a purpose should not be inferred
in the absence of express constitutional provisions. While the
legislature may legislate with respect to the qualifications of
attorneys, but is incidental merely to its general and
unquestioned power to protect the public interest. When it does
legislate a fixing a standard of qualifications required of attorneys
at law in order that public interests may be protected, such
qualifications do not constitute only a minimum standard and
MAYORDO, M.A. LLB3
limit the class from which the court must make its selection. Such
legislative qualifications do not constitute the ultimate
qualifications beyond which the court cannot go in fixing
additional qualifications deemed necessary by the course of the
proper administration of judicial functions. There is no legislative
power to compel courts to admit to their bars persons deemed by
them unfit to exercise the prerogatives of an attorney at law. (p.
450)
Furthermore, it is an unlawful attempt to exercise the power of
appointment. It is quite likely true that the legislature may
exercise the power of appointment when it is in pursuance of a
legislative functions. However, the authorities are well-nigh
unanimous that the power to admit attorneys to the practice of
law is a judicial function. In all of the states, except New Jersey (In
re Reisch, 83 N.J. Eq. 82, 90 A. 12), so far as our investigation
reveals, attorneys receive their formal license to practice law by
their admission as members of the bar of the court so admitting.
Cor. Jur. 572; Ex parte Secombre, 19 How. 9,15 L. Ed. 565; Ex
parteGarland, 4 Wall. 333, 18 L. Ed. 366; Randall vs. Brigham, 7
Wall. 53, 19 L. Ed. 285; Hanson vs. Grattan, 48 Kan, 843, 115 P.
646, 34 L.R.A. 519; Danforth vs. Egan, 23 S. D. 43, 119 N.W. 1021,
130 Am. St. Rep. 1030, 20 Ann. Cas. 413.
The power of admitting an attorney to practice having been
perpetually exercised by the courts, it having been so generally
held that the act of the court in admitting an attorney to practice
is the judgment of the court, and an attempt as this on the part of
the Legislature to confer such right upon any one being most
exceedingly uncommon, it seems clear that the licensing of an
attorney is and always has been a purely judicial function, no
matter where the power to determine the qualifications may
reside. (p. 451)
In that same year of 1932, the Supreme Court of Massachusetts, in
answering a consultation of the Senate of that State, 180 NE 725, said:
It is indispensible to the administration of justice and to
interpretation of the laws that there be members of the bar of
sufficient ability, adequate learning and sound moral character.
This arises from the need of enlightened assistance to the honest,
and restraining authority over the knavish, litigant. It is highly
important, also that the public be protected from incompetent
and vicious practitioners, whose opportunity for doing mischief is
wide. It was said by Cardoz, C.L., in People ex rel. Karlin vs. Culkin,
242 N.Y. 456, 470, 471, 162 N.E. 487, 489, 60 A.L.R. 851:
"Membership in the bar is a privilege burden with conditions."
One is admitted to the bar "for something more than private
gain." He becomes an "officer of the court", and ,like the court
itself, an instrument or agency to advance the end of justice. His
cooperation with the court is due "whenever justice would be
imperiled if cooperation was withheld." Without such attorneys
at law the judicial department of government would be
hampered in the performance of its duties. That has been the
history of attorneys under the common law, both in this country
and England. Admission to practice as an attorney at law is almost
without exception conceded to be a judicial function. Petition to
that end is filed in courts, as are other proceedings invoking
Page 6 of 29
PROBLEM AREAS in LEGAL ETHICS
judicial action. Admission to the bar is accomplish and made open
and notorious by a decision of the court entered upon its records.
The establishment by the Constitution of the judicial department
conferred authority necessary to the exercise of its powers as a
coordinate department of government. It is an inherent power of
such a department of government ultimately to determine the
qualifications of those to be admitted to practice in its courts, for
assisting in its work, and to protect itself in this respect from the
unfit, those lacking in sufficient learning, and those not
possessing good moral character. Chief Justice Taney stated
succinctly and with finality in Ex parte Secombe, 19 How. 9, 13, 15
L. Ed. 565, "It has been well settled, by the rules and practice of
common-law courts, that it rests exclusively with the court to
determine who is qualified to become one of its officers, as an
attorney and counselor, and for what cause he ought to be
removed." (p.727)
In the case of Day and others who collectively filed a petition to secure
license to practice the legal profession by virtue of a law of state (In
re Day, 54 NE 646), the court said in part:
In the case of Ex parte Garland, 4 Wall, 333, 18 L. Ed. 366, the
court, holding the test oath for attorneys to be unconstitutional,
explained the nature of the attorney's office as follows: "They are
officers of the court, admitted as such by its order, upon evidence
of their possessing sufficient legal learning and fair private
character. It has always been the general practice in this country
to obtain this evidence by an examination of the parties. In this
court the fact of the admission of such officers in the highest
court of the states to which they, respectively, belong for, three
years preceding their application, is regarded as sufficient
evidence of the possession of the requisite legal learning, and the
statement of counsel moving their admission sufficient evidence
that their private and professional character is fair. The order of
admission is the judgment of the court that the parties possess
the requisite qualifications as attorneys and counselors, and are
entitled to appear as such and conduct causes therein. From its
entry the parties become officers of the court, and are
responsible to it for professional misconduct. They hold their
office during good behavior, and can only be deprived of it for
misconduct ascertained and declared by the judgment of the
court after opportunity to be heard has been afforded. Ex
parte Hoyfron, admission or their exclusion is not the exercise of
a mere ministerial power. It is the exercise of judicial power, and
has been so held in numerous cases. It was so held by the court of
appeals of New York in the matter of the application of Cooper
for admission. Re Cooper 22 N. Y. 81. "Attorneys and Counselors",
said that court, "are not only officers of the court, but officers
whose duties relate almost exclusively to proceedings of a judicial
nature; and hence their appointment may, with propriety, be
entrusted to the court, and the latter, in performing his duty, may
very justly considered as engaged in the exercise of their
appropriate judicial functions." (pp. 650-651).
We quote from other cases, the following pertinent portions:
Admission to practice of law is almost without exception
conceded everywhere to be the exercise of a judicial function,
and this opinion need not be burdened with citations in this
point. Admission to practice have also been held to be the
exercise of one of the inherent powers of the court. — Re Bruen,
102 Wash. 472, 172 Pac. 906.
Admission to the practice of law is the exercise of a judicial
function, and is an inherent power of the court. — A.C.
Brydonjack, vs. State Bar of California, 281 Pac. 1018; See
Annotation on Power of Legislature respecting admission to bar,
65, A.L. R. 1512.
On this matter there is certainly a clear distinction between the
functions of the judicial and legislative departments of the
government.
The distinction between the functions of the legislative and the
judicial departments is that it is the province of the legislature to
establish rules that shall regulate and govern in matters of
transactions occurring subsequent to the legislative action, while
the judiciary determines rights and obligations with reference to
transactions that are past or conditions that exist at the time of
the exercise of judicial power, and the distinction is a vital one
and not subject to alteration or change either by legislative action
or by judicial decree.
The judiciary cannot consent that its province shall be invaded by
either of the other departments of the government. — 16 C.J.S.,
Constitutional Law, p. 229.
If the legislature cannot thus indirectly control the action of the
courts by requiring of them construction of the law according to
its own views, it is very plain it cannot do so directly, by settling
aside their judgments, compelling them to grant new trials,
ordering the discharge of offenders, or directing what particular
steps shall be taken in the progress of a judicial inquiry. —
Cooley's Constitutional Limitations, 192.
In decreeing the bar candidates who obtained in the bar examinations
of 1946 to 1952, a general average of 70 per cent without falling
below 50 per cent in any subject, be admitted in mass to the practice
of law, the disputed law is not a legislation; it is a judgment — a
judgment revoking those promulgated by this Court during the
aforecited year affecting the bar candidates concerned; and although
this Court certainly can revoke these judgments even now, for
justifiable reasons, it is no less certain that only this Court, and not the
legislative nor executive department, that may be so. Any attempt on
the part of any of these departments would be a clear usurpation of
its functions, as is the case with the law in question.
That the Constitution has conferred on Congress the power to repeal,
alter or supplement the rule promulgated by this Tribunal, concerning
the admission to the practice of law, is no valid argument. Section 13,
article VIII of the Constitution provides:
Section 13. The Supreme Court shall have the power to
promulgate rules concerning pleading, practice, and procedure in
all courts, and the admission to the practice of law. Said rules
shall be uniform for all courts of the same grade and shall not
MAYORDO, M.A. LLB3
diminish, increase or modify substantive rights. The existing laws
on pleading, practice and procedure are hereby repealed as
statutes, and are declared Rules of Court, subject to the power of
the Supreme Court to alter and modify the same. The Congress
shall have the power to repeal, alter, or supplement the rules
concerning pleading, practice, and procedure, and the admission
to the practice of law in the Philippines. — Constitution of the
Philippines, Art. VIII, sec. 13.
It will be noted that the Constitution has not conferred on Congress
and this Tribunal equal responsibilities concerning the admission to
the practice of law. the primary power and responsibility which the
Constitution recognizes continue to reside in this Court. Had Congress
found that this Court has not promulgated any rule on the matter, it
would have nothing over which to exercise the power granted to it.
Congress may repeal, alter and supplement the rules promulgated by
this Court, but the authority and responsibility over the admission,
suspension, disbarment and reinstatement of attorneys at law and
their supervision remain vested in the Supreme Court. The power to
repeal, alter and supplement the rules does not signify nor permit that
Congress substitute or take the place of this Tribunal in the exercise of
its primary power on the matter. The Constitution does not say nor
mean that Congress may admit, suspend, disbar or reinstate directly
attorneys at law, or a determinate group of individuals to the practice
of law. Its power is limited to repeal, modify or supplement the
existing rules on the matter, if according to its judgment the need for a
better service of the legal profession requires it. But this power does
not relieve this Court of its responsibility to admit, suspend, disbar and
reinstate attorneys at law and supervise the practice of the legal
profession.
Being coordinate and independent branches, the power to promulgate
and enforce rules for the admission to the practice of law and the
concurrent power to repeal, alter and supplement them may and
should be exercised with the respect that each owes to the other,
giving careful consideration to the responsibility which the nature of
each department requires. These powers have existed together for
centuries without diminution on each part; the harmonious
delimitation being found in that the legislature may and should
examine if the existing rules on the admission to the Bar respond to
the demands which public interest requires of a Bar endowed with
high virtues, culture, training and responsibility. The legislature may,
by means of appeal, amendment or supplemental rules, fill up any
deficiency that it may find, and the judicial power, which has the
inherent responsibility for a good and efficient administration of
justice and the supervision of the practice of the legal profession,
should consider these reforms as the minimum standards for the
elevation of the profession, and see to it that with these reforms the
lofty objective that is desired in the exercise of its traditional duty of
admitting, suspending, disbarring and reinstating attorneys at law is
realized. They are powers which, exercise within their proper
constitutional limits, are not repugnant, but rather complementary to
each other in attaining the establishment of a Bar that would respond
to the increasing and exacting necessities of the administration of
justice.
The case of Guariña (1913) 24 Phil., 37, illustrates our criterion.
Guariña took examination and failed by a few points to obtain the
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PROBLEM AREAS in LEGAL ETHICS
general average. A recently enacted law provided that one who had
been appointed to the position of Fiscal may be admitted to the
practice of law without a previous examination. The Government
appointed Guariña and he discharged the duties of Fiscal in a remote
province. This tribunal refused to give his license without previous
examinations. The court said:
Relying upon the provisions of section 2 of Act No. 1597, the
applicant in this case seeks admission to the bar, without taking
the prescribed examination, on the ground that he holds the
office of provincial fiscal for the Province of Batanes.
Section 2 of Act No. 1597, enacted February 28, 1907, is as
follows:
Sec. 2. Paragraph one of section thirteen of Act Numbered One
Hundred and ninety, entitled "An Act providing a Code of
Procedure in Civil Actions and Special Proceedings in the
Philippine Islands," is hereby amended to read as follows:
1. Those who have been duly licensed under the laws and orders
of the Islands under the sovereignty of Spain or of the United
States and are in good and regular standing as members of the
bar of the Philippine Islands at the time of the adoption of this
code; Provided, That any person who, prior to the passage of this
act, or at any time thereafter, shall have held, under the authority
of the United States, the position of justice of the Supreme Court,
judge of the Court of First Instance, or judge or associate judge of
the Court of Land Registration, of the Philippine Islands, or the
position of Attorney General, Solicitor General, Assistant Attorney
General, assistant attorney in the office of the Attorney General,
prosecuting attorney for the City of Manila, city attorney of
Manila, assistant city attorney of Manila, provincial fiscal,
attorney for the Moro Province, or assistant attorney for the
Moro Province, may be licensed to practice law in the courts of
the Philippine Islands without an examination, upon motion
before the Supreme Court and establishing such fact to the
satisfaction of said court.
The records of this court disclose that on a former occasion this
appellant took, and failed to pass the prescribed examination.
The report of the examining board, dated March 23, 1907, shows
that he received an average of only 71 per cent in the various
branches of legal learning upon which he was examined, thus
falling four points short of the required percentage of 75. We
would be delinquent in the performance of our duty to the public
and to the bar, if, in the face of this affirmative indication of the
deficiency of the applicant in the required qualifications of
learning in the law at the time when he presented his former
application for admission to the bar, we should grant him license
to practice law in the courts of these Islands, without first
satisfying ourselves that despite his failure to pass the
examination on that occasion, he now "possesses the necessary
qualifications of learning and ability."
But it is contented that under the provisions of the above-cited
statute the applicant is entitled as of right to be admitted to the
bar without taking the prescribed examination "upon motion
before the Supreme Court" accompanied by satisfactory proof
that he has held and now holds the office of provincial fiscal of
the Province of Batanes. It is urged that having in mind the object
which the legislator apparently sought to attain in enacting the
above-cited amendment to the earlier statute, and in view of the
context generally and especially of the fact that the amendment
was inserted as a proviso in that section of the original Act which
specifically provides for the admission of certain candidates
without examination. It is contented that this mandatory
construction is imperatively required in order to give effect to the
apparent intention of the legislator, and to the candidate's
claim de jure to have the power exercised.
And after copying article 9 of Act of July 1, 1902 of the Congress of the
United States, articles 2, 16 and 17 of Act No. 136, and articles 13 to
16 of Act 190, the Court continued:
Manifestly, the jurisdiction thus conferred upon this court by the
commission and confirmed to it by the Act of Congress would be
limited and restricted, and in a case such as that under
consideration wholly destroyed, by giving the word "may," as
used in the above citation from Act of Congress of July 1, 1902, or
of any Act of Congress prescribing, defining or limiting the power
conferred upon the commission is to that extent invalid and void,
as transcending its rightful limits and authority.
Speaking on the application of the law to those who were appointed
to the positions enumerated, and with particular emphasis in the case
of Guariña, the Court held:
In the various cases wherein applications for the admission to the
bar under the provisions of this statute have been considered
heretofore, we have accepted the fact that such appointments
had been made as satisfactory evidence of the qualifications of
the applicant. But in all of those cases we had reason to believe
that the applicants had been practicing attorneys prior to the
date of their appointment.
In the case under consideration, however, it affirmatively appears
that the applicant was not and never had been practicing
attorney in this or any other jurisdiction prior to the date of his
appointment as provincial fiscal, and it further affirmatively
appears that he was deficient in the required qualifications at the
time when he last applied for admission to the bar.
In the light of this affirmative proof of his defieciency on that
occasion, we do not think that his appointment to the office of
provincial fiscal is in itself satisfactory proof if his possession of
the necessary qualifications of learning and ability. We conclude
therefore that this application for license to practice in the courts
of the Philippines, should be denied.
In view, however, of the fact that when he took the examination
he fell only four points short of the necessary grade to entitle him
to a license to practice; and in view also of the fact that since that
time he has held the responsible office of the governor of the
Province of Sorsogon and presumably gave evidence of such
marked ability in the performance of the duties of that office that
MAYORDO, M.A. LLB3
the Chief Executive, with the consent and approval of the
Philippine Commission, sought to retain him in the Government
service by appointing him to the office of provincial fiscal, we
think we would be justified under the above-cited provisions of
Act No. 1597 in waiving in his case the ordinary examination
prescribed by general rule, provided he offers satisfactory
evidence of his proficiency in a special examination which will be
given him by a committee of the court upon his application
therefor, without prejudice to his right, if he desires so to do, to
present himself at any of the ordinary examinations prescribed by
general rule. — (In re Guariña, pp. 48-49.)
It is obvious, therefore, that the ultimate power to grant license for
the practice of law belongs exclusively to this Court, and the law
passed by Congress on the matter is of permissive character, or as
other authorities say, merely to fix the minimum conditions for the
license.
The law in question, like those in the case of Day and Cannon, has
been found also to suffer from the fatal defect of being a class
legislation, and that if it has intended to make a classification, it is
arbitrary and unreasonable.
In the case of Day, a law enacted on February 21, 1899 required of the
Supreme Court, until December 31 of that year, to grant license for
the practice of law to those students who began studying before
November 4, 1897, and had studied for two years and presented a
diploma issued by a school of law, or to those who had studied in a
law office and would pass an examination, or to those who had
studied for three years if they commenced their studies after the
aforementioned date. The Supreme Court declared that this law was
unconstitutional being, among others, a class legislation. The Court
said:
This is an application to this court for admission to the bar of this
state by virtue of diplomas from law schools issued to the
applicants. The act of the general assembly passed in 1899, under
which the application is made, is entitled "An act to amend
section 1 of an act entitled "An act to revise the law in relation to
attorneys and counselors," approved March 28, 1884, in force
July 1, 1874." The amendment, so far as it appears in the enacting
clause, consists in the addition to the section of the following:
"And every application for a license who shall comply with the
rules of the supreme court in regard to admission to the bar in
force at the time such applicant commend the study of law, either
in a law or office or a law school or college, shall be granted a
license under this act notwithstanding any subsequent changes in
said rules". — In re Day et al, 54 N.Y., p. 646.
. . . After said provision there is a double proviso, one branch of
which is that up to December 31, 1899, this court shall grant a
license of admittance to the bar to the holder of every diploma
regularly issued by any law school regularly organized under the
laws of this state, whose regular course of law studies is two
years, and requiring an attendance by the student of at least 36
weeks in each of such years, and showing that the student began
the study of law prior to November 4, 1897, and accompanied
with the usual proofs of good moral character. The other branch
Page 8 of 29
PROBLEM AREAS in LEGAL ETHICS
of the proviso is that any student who has studied law for two
years in a law office, or part of such time in a law office, "and part
in the aforesaid law school," and whose course of study began
prior to November 4, 1897, shall be admitted upon a satisfactory
examination by the examining board in the branches now
required by the rules of this court. If the right to admission exists
at all, it is by virtue of the proviso, which, it is claimed, confers
substantial rights and privileges upon the persons named therein,
and establishes rules of legislative creation for their admission to
the bar. (p. 647.)
Considering the proviso, however, as an enactment, it is clearly a
special legislation, prohibited by the constitution, and invalid as
such. If the legislature had any right to admit attorneys to
practice in the courts and take part in the administration of
justice, and could prescribe the character of evidence which
should be received by the court as conclusive of the requisite
learning and ability of persons to practice law, it could only be
done by a general law, persons or classes of persons. Const. art 4,
section 2. The right to practice law is a privilege, and a license for
that purpose makes the holder an officer of the court, and
confers upon him the right to appear for litigants, to argue
causes, and to collect fees therefor, and creates certain
exemptions, such as from jury services and arrest on civil process
while attending court. The law conferring such privileges must be
general in its operation. No doubt the legislature, in framing an
enactment for that purpose, may classify persons so long as the
law establishing classes in general, and has some reasonable
relation to the end sought. There must be some difference which
furnishes a reasonable basis for different one, having no just
relation to the subject of the legislation. Braceville Coal Co. vs.
People, 147 Ill. 66, 35 N.E. 62; Ritchie vs. People, 155 Ill. 98, 40
N.E. 454; Railroad Co. vs. Ellis, 165 U.S. 150, 17 Sup. Ct. 255.
The length of time a physician has practiced, and the skill
acquired by experience, may furnish a basis for classification
(Williams vs. People 121 Ill. 48, II N.E. 881); but the place where
such physician has resided and practiced his profession cannot
furnish such basis, and is an arbitrary discrimination, making an
enactment based upon it void (State vs. Pennyeor, 65 N.E. 113, 18
Atl. 878). Here the legislature undertakes to say what shall serve
as a test of fitness for the profession of the law, and plainly, any
classification must have some reference to learning, character, or
ability to engage in such practice. The proviso is limited, first, to a
class of persons who began the study of law prior to November 4,
1897. This class is subdivided into two classes — First, those
presenting diplomas issued by any law school of this state before
December 31, 1899; and, second, those who studied law for the
period of two years in a law office, or part of the time in a law
school and part in a law office, who are to be admitted upon
examination in the subjects specified in the present rules of this
court, and as to this latter subdivision there seems to be no limit
of time for making application for admission. As to both classes,
the conditions of the rules are dispensed with, and as between
the two different conditions and limits of time are fixed. No
course of study is prescribed for the law school, but a diploma
granted upon the completion of any sort of course its managers
may prescribe is made all-sufficient. Can there be anything with
relation to the qualifications or fitness of persons to practice law
resting upon the mere date of November 4, 1897, which will
furnish a basis of classification. Plainly not. Those who began the
study of law November 4th could qualify themselves to practice in
two years as well as those who began on the 3rd. The classes
named in the proviso need spend only two years in study, while
those who commenced the next day must spend three years,
although they would complete two years before the time limit.
The one who commenced on the 3rd. If possessed of a diploma, is
to be admitted without examination before December 31, 1899,
and without any prescribed course of study, while as to the other
the prescribed course must be pursued, and the diploma is utterly
useless. Such classification cannot rest upon any natural reason,
or bear any just relation to the subject sought, and none is
suggested. The proviso is for the sole purpose of bestowing
privileges upon certain defined persons. (pp. 647-648.)
In the case of Cannon above cited, State vs. Cannon, 240 N.W. 441,
where the legislature attempted by law to reinstate Cannon to the
practice of law, the court also held with regards to its aspect of being a
class legislation:
But the statute is invalid for another reason. If it be granted that
the legislature has power to prescribe ultimately and definitely
the qualifications upon which courts must admit and license
those applying as attorneys at law, that power can not be
exercised in the manner here attempted. That power must be
exercised through general laws which will apply to all alike and
accord equal opportunity to all. Speaking of the right of the
Legislature to exact qualifications of those desiring to pursue
chosen callings, Mr. Justice Field in the case of Dent. vs. West
Virginia, 129 U.S. 114, 121, 9 S. Ct. 232, 233, 32 L. Ed. 626, said:
"It is undoubtedly the right of every citizen of the United States to
follow any lawful calling, business or profession he may choose,
subject only to such restrictions as are imposed upon all persons
of like age, sex, and condition." This right may in many respects
be considered as a distinguishing feature of our republican
institutions. Here all vocations are all open to every one on like
conditions. All may be pursued as sources of livelihood, some
requiring years of study and great learning for their successful
prosecution. The interest, or, as it is sometimes termed, the
"estate" acquired in them — that is, the right to continue their
prosecution — is often of great value to the possessors and
cannot be arbitrarily taken from them, any more than their real or
personal property can be thus taken. It is fundamental under our
system of government that all similarly situated and possessing
equal qualifications shall enjoy equal opportunities. Even statutes
regulating the practice of medicine, requiring medications to
establish the possession on the part of the application of his
proper qualifications before he may be licensed to practice, have
been challenged, and courts have seriously considered whether
the exemption from such examinations of those practicing in the
state at the time of the enactment of the law rendered such law
unconstitutional because of infringement upon this general
principle. State vs. Thomas Call, 121 N.C. 643, 28 S.E. 517; see,
also, The State ex rel. Winkler vs. Rosenberg, 101 Wis. 172, 76
N.W. 345; State vs. Whitcom, 122 Wis. 110, 99 N.W. 468.
MAYORDO, M.A. LLB3
This law singles out Mr. Cannon and assumes to confer upon him
the right to practice law and to constitute him an officer of this
Court as a mere matter of legislative grace or favor. It is not
material that he had once established his right to practice law and
that one time he possessed the requisite learning and other
qualifications to entitle him to that right. That fact in no matter
affect the power of the Legislature to select from the great body
of the public an individual upon whom it would confer its favors.
A statute of the state of Minnesota (Laws 1929, c. 424)
commanded the Supreme Court to admit to the practice of law
without examination, all who had served in the military or naval
forces of the United States during the World War and received a
honorable discharge therefrom and who (were disabled therein
or thereby within the purview of the Act of Congress approved
June 7th, 1924, known as "World War Veteran's Act, 1924 and
whose disability is rated at least ten per cent thereunder at the
time of the passage of this Act." This Act was held
|unconstitutional on the ground that it clearly violated the quality
clauses of the constitution of that state. In re Application of
George W. Humphrey, 178 Minn. 331, 227 N.W. 179.
A good summary of a classification constitutionally acceptable is
explained in 12 Am. Jur. 151-153 as follows:
The general rule is well settled by unanimity of the authorities
that a classification to be valid must rest upon material
differences between the person included in it and those excluded
and, furthermore, must be based upon substantial distinctions. As
the rule has sometimes avoided the constitutional prohibition,
must be founded upon pertinent and real differences, as
distinguished from irrelevant and artificial ones. Therefore, any
law that is made applicable to one class of citizens only must be
based on some substantial difference between the situation of
that class and other individuals to which it does not apply and
must rest on some reason on which it can be defended. In other
words, there must be such a difference between the situation and
circumstances of all the members of the class and the situation
and circumstances of all other members of the state in relation to
the subjects of the discriminatory legislation as presents a just
and natural cause for the difference made in their liabilities and
burdens and in their rights and privileges. A law is not general
because it operates on all within a clause unless there is a
substantial reason why it is made to operate on that class only,
and not generally on all. (12 Am. Jur. pp. 151-153.)
Pursuant to the law in question, those who, without a grade below 50
per cent in any subject, have obtained a general average of 69.5 per
cent in the bar examinations in 1946 to 1951, 70.5 per cent in 1952,
71.5 per cent in 1953, and those will obtain 72.5 per cent in 1954, and
73.5 per cent in 1955, will be permitted to take and subscribe the
corresponding oath of office as members of the Bar, notwithstanding
that the rules require a minimum general average of 75 per cent,
which has been invariably followed since 1950. Is there any motive of
the nature indicated by the abovementioned authorities, for this
classification ? If there is none, and none has been given, then the
classification is fatally defective.
Page 9 of 29
PROBLEM AREAS in LEGAL ETHICS
It was indicated that those who failed in 1944, 1941 or the years
before, with the general average indicated, were not included because
the Tribunal has no record of the unsuccessful candidates of those
years. This fact does not justify the unexplained classification of
unsuccessful candidates by years, from 1946-1951, 1952, 1953, 1954,
1955. Neither is the exclusion of those who failed before said years
under the same conditions justified. The fact that this Court has no
record of examinations prior to 1946 does not signify that no one
concerned may prove by some other means his right to an equal
consideration.
To defend the disputed law from being declared unconstitutional on
account of its retroactivity, it is argued that it is curative, and that in
such form it is constitutional. What does Rep. Act 972 intend to cure ?
Only from 1946 to 1949 were there cases in which the Tribunal
permitted admission to the bar of candidates who did not obtain the
general average of 75 per cent: in 1946 those who obtained only 72
per cent; in the 1947 and those who had 69 per cent or more; in 1948,
70 per cent and in 1949, 74 per cent; and in 1950 to 1953, those who
obtained 74 per cent, which was considered by the Court as
equivalent to 75 per cent as prescribed by the Rules, by reason of
circumstances deemed to be sufficiently justifiable. These changes in
the passing averages during those years were all that could be
objected to or criticized. Now, it is desired to undo what had been
done — cancel the license that was issued to those who did not obtain
the prescribed 75 per cent ? Certainly not. The disputed law clearly
does not propose to do so. Concededly, it approves what has been
done by this Tribunal. What Congress lamented is that the Court did
not consider 69.5 per cent obtained by those candidates who failed in
1946 to 1952 as sufficient to qualify them to practice law. Hence, it is
the lack of will or defect of judgment of the Court that is being cured,
and to complete the cure of this infirmity, the effectivity of the
disputed law is being extended up to the years 1953, 1954 and 1955,
increasing each year the general average by one per cent, with the
order that said candidates be admitted to the Bar. This purpose,
manifest in the said law, is the best proof that what the law attempts
to amend and correct are not the rules promulgated, but the will or
judgment of the Court, by means of simply taking its place. This is
doing directly what the Tribunal should have done during those years
according to the judgment of Congress. In other words, the power
exercised was not to repeal, alter or supplement the rules, which
continue in force. What was done was to stop or suspend them. And
this power is not included in what the Constitution has granted to
Congress, because it falls within the power to apply the rules. This
power corresponds to the judiciary, to which such duty been confided.
Article 2 of the law in question permits partial passing of
examinations, at indefinite intervals. The grave defect of this system is
that it does not take into account that the laws and jurisprudence are
not stationary, and when a candidate finally receives his certificate, it
may happen that the existing laws and jurisprudence are already
different, seriously affecting in this manner his usefulness. The system
that the said law prescribes was used in the first bar examinations of
this country, but was abandoned for this and other disadvantages. In
this case, however, the fatal defect is that the article is not expressed
in the title will have temporary effect only from 1946 to 1955, the text
of article 2 establishes a permanent system for an indefinite time. This
is contrary to Section 21 (1), article VI of the Constitution, which
vitiates and annuls article 2 completely; and because it is inseparable
from article 1, it is obvious that its nullity affect the entire law.
Laws are unconstitutional on the following grounds: first, because they
are not within the legislative powers of Congress to enact, or Congress
has exceeded its powers; second, because they create or establish
arbitrary methods or forms that infringe constitutional principles; and
third, because their purposes or effects violate the Constitution or its
basic principles. As has already been seen, the contested law suffers
from these fatal defects.
Summarizing, we are of the opinion and hereby declare that Republic
Act No. 972 is unconstitutional and therefore, void, and without any
force nor effect for the following reasons, to wit:
1. Because its declared purpose is to admit 810 candidates who failed
in the bar examinations of 1946-1952, and who, it admits, are
certainly inadequately prepared to practice law, as was exactly found
by this Court in the aforesaid years. It decrees the admission to the Bar
of these candidates, depriving this Tribunal of the opportunity to
determine if they are at present already prepared to become
members of the Bar. It obliges the Tribunal to perform something
contrary to reason and in an arbitrary manner. This is a manifest
encroachment on the constitutional responsibility of the Supreme
Court.
2. Because it is, in effect, a judgment revoking the resolution of this
Court on the petitions of these 810 candidates, without having
examined their respective examination papers, and although it is
admitted that this Tribunal may reconsider said resolution at any time
for justifiable reasons, only this Court and no other may revise and
alter them. In attempting to do it directly Republic Act No. 972
violated the Constitution.
3. By the disputed law, Congress has exceeded its legislative power to
repeal, alter and supplement the rules on admission to the Bar. Such
additional or amendatory rules are, as they ought to be, intended to
regulate acts subsequent to its promulgation and should tend to
improve and elevate the practice of law, and this Tribunal shall
consider these rules as minimum norms towards that end in the
admission, suspension, disbarment and reinstatement of lawyers to
the Bar, inasmuch as a good bar assists immensely in the daily
performance of judicial functions and is essential to a worthy
administration of justice. It is therefore the primary and inherent
prerogative of the Supreme Court to render the ultimate decision on
who may be admitted and may continue in the practice of law
according to existing rules.
4. The reason advanced for the pretended classification of candidates,
which the law makes, is contrary to facts which are of general
knowledge and does not justify the admission to the Bar of law
students inadequately prepared. The pretended classification is
arbitrary. It is undoubtedly a class legislation.
5. Article 2 of Republic Act No. 972 is not embraced in the title of the
law, contrary to what the Constitution enjoins, and being inseparable
from the provisions of article 1, the entire law is void.
MAYORDO, M.A. LLB3
6. Lacking in eight votes to declare the nullity of that part of article 1
referring to the examinations of 1953 to 1955, said part of article 1,
insofar as it concerns the examinations in those years, shall continue
in force.
RESOLUTION
Upon mature deliberation by this Court, after hearing and availing of
the magnificent and impassioned discussion of the contested law by
our Chief Justice at the opening and close of the debate among the
members of the Court, and after hearing the judicious observations of
two of our beloved colleagues who since the beginning have
announced their decision not to take part in voting, we, the eight
members of the Court who subscribed to this decision have voted and
resolved, and have decided for the Court, and under the authority of
the same:
1. That (a) the portion of article 1 of Republic Act No. 972 referring to
the examinations of 1946 to 1952, and (b) all of article 2 of said law
are unconstitutional and, therefore, void and without force and effect.
2. That, for lack of unanimity in the eight Justices, that part of article 1
which refers to the examinations subsequent to the approval of the
law, that is from 1953 to 1955 inclusive, is valid and shall continue to
be in force, in conformity with section 10, article VII of the
Constitution.
Consequently, (1) all the above-mentioned petitions of the candidates
who failed in the examinations of 1946 to 1952 inclusive are denied,
and (2) all candidates who in the examinations of 1953 obtained a
general average of 71.5 per cent or more, without having a grade
below 50 per cent in any subject, are considered as having passed,
whether they have filed petitions for admission or not. After this
decision has become final, they shall be permitted to take and
subscribe the corresponding oath of office as members of the Bar on
the date or dates that the chief Justice may set. So ordered.
Bengzon, Montemayor, Jugo, Labrador, Pablo, Padilla, and Reyes,
JJ., concur.
G.R. No. L-27654 February 18, 1970
IN THE MATTER OF PROCEEDINGS FOR DISCIPLINARY ACTION
AGAINST ATTY. VICENTE RAUL ALMACEN In L-27654, ANTONIO H.
CALERO, vs. VIRGINIA Y. YAPTINCHAY.
RESOLUTION
CASTRO, J.:
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
Page 10 of 29
PROBLEM AREAS in LEGAL ETHICS
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-
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
MAYORDO, M.A. LLB3
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.
Page 11 of 29
PROBLEM AREAS in LEGAL ETHICS
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.
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
MAYORDO, M.A. LLB3
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 criticisms2 expressed 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
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.
Page 12 of 29
PROBLEM AREAS in LEGAL ETHICS
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 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."
MAYORDO, M.A. LLB3
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).
Page 13 of 29
PROBLEM AREAS in LEGAL ETHICS
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 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
MAYORDO, M.A. LLB3
"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 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,
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PROBLEM AREAS in LEGAL ETHICS
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.
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.
MAYORDO, M.A. LLB3
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
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PROBLEM AREAS in LEGAL ETHICS
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 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
MAYORDO, M.A. LLB3
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 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
Page 16 of 29
PROBLEM AREAS in LEGAL ETHICS
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 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:
MAYORDO, M.A. LLB3
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 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
Page 17 of 29
PROBLEM AREAS in LEGAL ETHICS
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
therefore 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 lost in the majesty
of their office. 30So that, in a very real sense, if there be any
complainant in the case at bar, it can only be the Court itself, not the
individual members thereof — as well as the people themselves
MAYORDO, M.A. LLB3
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.
Page 18 of 29
PROBLEM AREAS in LEGAL ETHICS
Let copies of this resolution. be furnished the Secretary of Justice, the
Solicitor General and the Court of Appeals for their information and
guidance.
Concepcion,. C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez,
Teehankee, Barredo and Villamor JJ., concur.
Fernando, J., took no part.
A.C. No. 3319. June 8, 2000
LESLIE UI, complainant, vs. ATTY. IRIS BONIFACIO, respondent.
DECISION
DE LEON, JR., J.:
Before us is an administrative complaint for disbarment against Atty.
Iris Bonifacio for allegedly carrying on an immoral relationship with
Carlos L. Ui, husband of complainant, Leslie Ui.
The relevant facts are:
On January 24, 1971 complainant Leslie Ui married Carlos L. Ui at the
Our Lady of Lourdes Church in Quezon City[1] and as a result of their
marital union, they had four (4) children, namely, Leilani, Lianni,
Lindsay and Carl Cavin, all surnamed Ui. Sometime in December 1987,
however, complainant found out that her husband, Carlos Ui, was
carrying on an illicit relationship with respondent Atty. Iris Bonifacio
with whom he begot a daughter sometime in 1986, and that they had
been living together at No. 527 San Carlos Street, Ayala Alabang
Village in Muntinlupa City. Respondent who is a graduate of the
College of Law of the University of the Philippines was admitted to the
Philippine Bar in 1982.
Carlos Ui admitted to complainant his relationship with the
respondent. Complainant then visited respondent at her office in the
later part of June 1988 and introduced herself as the legal wife of
Carlos Ui. Whereupon, respondent admitted to her that she has a child
with Carlos Ui and alleged, however, that everything was over
between her and Carlos Ui. Complainant believed the representations
of respondent and thought things would turn out well from then on
and that the illicit relationship between her husband and respondent
would come to an end.
However, complainant again discovered that the illicit relationship
between her husband and respondent continued, and that sometime
in December 1988, respondent and her husband, Carlos Ui, had a
second child. Complainant then met again with respondent sometime
in March 1989 and pleaded with respondent to discontinue her illicit
relationship with Carlos Ui but to no avail. The illicit relationship
persisted and complainant even came to know later on that
respondent had been employed by her husband in his company.
A complaint for disbarment, docketed as Adm. Case No. 3319, was
then filed on August 11, 1989 by the complainant against respondent
Atty. Iris Bonifacio before the Commission on Bar Discipline of the
Integrated Bar of the Philippines (hereinafter, Commission) on the
ground of immorality, more particularly, for carrying on an illicit
relationship with the complainants husband, Carlos Ui. In her
Answer,[2] respondent averred that she met Carlos Ui sometime in
1983 and had known him all along to be a bachelor, with the
knowledge, however, that Carlos Ui had children by a Chinese woman
in Amoy, China, from whom he had long been estranged. She stated
that during one of their trips abroad, Carlos Ui formalized his intention
to marry her and they in fact got married in Hawaii, USA in 1985[3].
Upon their return to Manila, respondent did not live with Carlos Ui.
The latter continued to live with his children in their Greenhills
residence because respondent and Carlos Ui wanted to let the
children gradually to know and accept the fact of his second marriage
before they would live together.[4]
In 1986, respondent left the country and stayed in Honolulu, Hawaii
and she would only return occasionally to the Philippines to update
her law practice and renew legal ties. During one of her trips to Manila
sometime in June 1988, respondent was surprised when she was
confronted by a woman who insisted that she was the lawful wife of
Carlos Ui. Hurt and desolate upon her discovery of the true civil status
of Carlos Ui, respondent then left for Honolulu, Hawaii sometime in
July 1988 and returned only in March 1989 with her two (2) children.
On March 20, 1989, a few days after she reported to work with the
law firm[5] she was connected with, the woman who represented
herself to be the wife of Carlos Ui again came to her office, demanding
to know if Carlos Ui has been communicating with her.
It is respondents contention that her relationship with Carlos Ui is not
illicit because they were married abroad and that after June 1988
when respondent discovered Carlos Uis true civil status, she cut off all
her ties with him. Respondent averred that Carlos Ui never lived with
her in Alabang, and that he resided at 26 Potsdam Street, Greenhills,
San Juan, Metro Manila. It was respondent who lived in Alabang in a
house which belonged to her mother, Rosalinda L. Bonifacio; and that
the said house was built exclusively from her parents funds.[6] By way
of counterclaim, respondent sought moral damages in the amount of
Ten Million Pesos (Php10,000,000.00) against complainant for having
filed the present allegedly malicious and groundless disbarment case
against respondent.
In her Reply[7] dated April 6, 1990, complainant states, among others,
that respondent knew perfectly well that Carlos Ui was married to
complainant and had children with her even at the start of her
relationship with Carlos Ui, and that the reason respondent went
abroad was to give birth to her two (2) children with Carlos Ui.
During the pendency of the proceedings before the Integrated Bar,
complainant also charged her husband, Carlos Ui, and respondent with
the crime of Concubinage before the Office of the Provincial Fiscal of
Rizal, docketed as I.S. No. 89-5247, but the same was dismissed for
insufficiency of evidence to establish probable cause for the offense
charged. The resolution dismissing the criminal complaint against
respondent reads:
Complainants evidence had prima facie established the existence
of the "illicit relationship" between the respondents allegedly
discovered by the complainant in December 1987. The same
evidence however show that respondent Carlos Ui was still living
with complainant up to the latter part of 1988 and/or the early
part of 1989.
MAYORDO, M.A. LLB3
It would therefore be logical and safe to state that the
"relationship" of respondents started and was discovered by
complainant sometime in 1987 when she and respondent Carlos
were still living at No. 26 Potsdam Street, Northeast Greenhills, San
Juan, MetroManila and they, admittedly, continued to live
together at their conjugal home up to early (sic) part of 1989 or
later 1988, when respondent Carlos left the same.
From the above, it would not be amiss to conclude that altho (sic)
the relationship, illicit as complainant puts it, had been prima facie
established by complainants evidence, this same evidence had
failed to even prima facie establish the "fact of respondents
cohabitation in the concept of husband and wife at the 527 San
Carlos St., Ayala Alabang house, proof of which is necessary and
indispensable to at least create probable cause for the offense
charged. The statement alone of complainant, worse, a statement
only of a conclusion respecting the fact of cohabitation does not
make the complainants evidence thereto any better/stronger (U.S.
vs. Casipong and Mongoy, 20 Phil. 178).
It is worth stating that the evidence submitted by respondents in
support of their respective positions on the matter support and
bolster the foregoing conclusion/recommendation.
WHEREFORE, it is most respectfully recommended that the instant
complaint be dismissed for want of evidence to establish probable
cause for the offense charged.
RESPECTFULLY SUBMITTED.[8]
Complainant appealed the said Resolution of the Provincial Fiscal of
Rizal to the Secretary of Justice, but the same was dismissed [9] on the
ground of insufficiency of evidence to prove her allegation that
respondent and Carlos Ui lived together as husband and wife at 527
San Carlos Street, Ayala Alabang, Muntinlupa, Metro Manila.
In the proceedings before the IBP Commission on Bar Discipline,
complainant filed a Motion to Cite Respondent in Contempt of the
Commission [10] wherein she charged respondent with making false
allegations in her Answer and for submitting a supporting document
which was altered and intercalated. She alleged that in the Answer of
respondent filed before the Integrated Bar, respondent averred,
among others, that she was married to Carlos Ui on October 22, 1985
and attached a Certificate of Marriage to substantiate her averment.
However, the Certificate of Marriage [11] duly certified by the State
Registrar as a true copy of the record on file in the Hawaii State
Department of Health, and duly authenticated by the Philippine
Consulate General in Honolulu, Hawaii, USA revealed that the date of
marriage between Carlos Ui and respondent Atty. Iris Bonifacio was
October 22, 1987, and not October 22, 1985 as claimed by respondent
in her Answer. According to complainant, the reason for that false
allegation was because respondent wanted to impress upon the said
IBP that the birth of her first child by Carlos Ui was within the
wedlock.[12] It is the contention of complainant that such act
constitutes a violation of Articles 183[13] and 184[14] of the Revised
Penal Code, and also contempt of the Commission; and that the act of
respondent in making false allegations in her Answer and submitting
an altered/intercalated document are indicative of her moral
Page 19 of 29
PROBLEM AREAS in LEGAL ETHICS
perversity and lack of integrity which make her unworthy to be a
member of the Philippine Bar.
In her Opposition (To Motion To Cite Respondent in
Contempt),[15] respondent averred that she did not have the original
copy of the marriage certificate because the same was in the
possession of Carlos Ui, and that she annexed such copy because she
relied in good faith on what appeared on the copy of the marriage
certificate in her possession.
Respondent filed her Memorandum [16] on February 22, 1995 and
raised the lone issue of whether or not she has conducted herself in an
immoral manner for which she deserves to be barred from the
practice of law. Respondent averred that the complaint should be
dismissed on two (2) grounds, namely:
(i) Respondent conducted herself in a manner consistent with the
requirement of good moral character for the practice of the legal
profession; and
(ii) Complainant failed to prove her allegation that respondent
conducted herself in an immoral manner.[17]
In her defense, respondent contends, among others, that it was she
who was the victim in this case and not Leslie Ui because she did not
know that Carlos Ui was already married, and that upon learning of
this fact, respondent immediately cut-off all her ties with Carlos Ui.
She stated that there was no reason for her to doubt at that time that
the civil status of Carlos Ui was that of a bachelor because he spent so
much time with her, and he was so open in his courtship.[18]
On the issue of the falsified marriage certificate, respondent alleged
that it was highly incredible for her to have knowingly attached such
marriage certificate to her Answer had she known that the same was
altered. Respondent reiterated that there was no compelling reason
for her to make it appear that her marriage to Carlos Ui took place
either in 1985 or 1987, because the fact remains that respondent and
Carlos Ui got married before complainant confronted respondent and
informed the latter of her earlier marriage to Carlos Ui in June 1988.
Further, respondent stated that it was Carlos Ui who testified and
admitted that he was the person responsible for changing the date of
the marriage certificate from 1987 to 1985, and complainant did not
present evidence to rebut the testimony of Carlos Ui on this matter.
Respondent posits that complainants evidence, consisting of the
pictures of respondent with a child, pictures of respondent with Carlos
Ui, a picture of a garage with cars, a picture of a light colored car with
Plate No. PNS 313, a picture of the same car, and portion of the house
and ground, and another picture of the same car bearing Plate No.
PNS 313 and a picture of the house and the garage,[19] does not prove
that she acted in an immoral manner. They have no evidentiary value
according to her. The pictures were taken by a photographer from a
private security agency and who was not presented during the
hearings. Further, the respondent presented the Resolution of the
Provincial Fiscal of Pasig in I.S. Case No. 89-5427 dismissing the
complaint filed by Leslie Ui against respondent for lack of evidence to
establish probable cause for the offense charged [20] and the dismissal
of the appeal by the Department of Justice [21] to bolster her argument
that she was not guilty of any immoral or illegal act because of her
relationship with Carlos Ui. In fine, respondent claims that she entered
the relationship with Carlos Ui in good faith and that her conduct
cannot be considered as willful, flagrant, or shameless, nor can it
suggest moral indifference. She fell in love with Carlos Ui whom she
believed to be single, and, that upon her discovery of his true civil
status, she parted ways with him.
In the Memorandum [22] filed on March 20, 1995 by complainant Leslie
Ui, she prayed for the disbarment of Atty. Iris Bonifacio and reiterated
that respondent committed immorality by having intimate relations
with a married man which resulted in the birth of two (2) children.
Complainant testified that respondents mother, Mrs. Linda Bonifacio,
personally knew complainant and her husband since the late 1970s
because they were clients of the bank where Mrs. Bonifacio was the
Branch Manager.[23] It was thus highly improbable that respondent,
who was living with her parents as of 1986, would not have been
informed by her own mother that Carlos Ui was a married man.
Complainant likewise averred that respondent committed disrespect
towards the Commission for submitting a photocopy of a document
containing an intercalated date.
In her Reply to Complainants Memorandum [24], respondent stated
that complainant miserably failed to show sufficient proof to warrant
her disbarment. Respondent insists that contrary to the allegations of
complainant, there is no showing that respondent had knowledge of
the fact of marriage of Carlos Ui to complainant. The allegation that
her mother knew Carlos Ui to be a married man does not prove that
such information was made known to respondent.
Hearing on the case ensued, after which the Commission on Bar
Discipline submitted its Report and Recommendation, finding that:
In the case at bar, it is alleged that at the time respondent was
courted by Carlos Ui, the latter represented himself to be single.
The Commission does not find said claim too difficult to believe in
the light of contemporary human experience.
Almost always, when a married man courts a single woman, he
represents himself to be single, separated, or without any firm
commitment to another woman. The reason therefor is not hard to
fathom. By their very nature, single women prefer single men.
The records will show that when respondent became aware the
(sic) true civil status of Carlos Ui, she left for the United States (in
July of 1988). She broke off all contacts with him. When she
returned to the Philippines in March of 1989, she lived with her
brother, Atty. Teodoro Bonifacio, Jr. Carlos Ui and respondent only
talked to each other because of the children whom he was allowed
to visit. At no time did they live together.
Under the foregoing circumstances, the Commission fails to find
any act on the part of respondent that can be considered as
unprincipled or disgraceful as to be reprehensible to a high degree.
To be sure, she was more of a victim that (sic) anything else and
should deserve compassion rather than condemnation. Without
cavil, this sad episode destroyed her chance of having a normal
and happy family life, a dream cherished by every single girl.
MAYORDO, M.A. LLB3
x..........................x..........................x"
Thereafter, the Board of Governors of the Integrated Bar of the
Philippines issued a Notice of Resolution dated December 13, 1997,
the dispositive portion of which reads as follows:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, the Report and Recommendation of the Investigating
Commissioner in the above-entitled case, herein made part of this
Resolution/Decision as Annex "A", and, finding the
recommendation fully supported by the evidence on record and
the applicable laws and rules, the complaint for Gross Immorality
against Respondent is DISMISSED for lack of merit. Atty. Iris
Bonifacio is REPRIMANDED for knowingly and willfully attaching to
her Answer a falsified Certificate of Marriage with a stern warning
that a repetition of the same will merit a more severe penalty."
We agree with the findings aforequoted.
The practice of law is a privilege. A bar candidate does not have the
right to enjoy the practice of the legal profession simply by passing the
bar examinations. It is a privilege that can be revoked, subject to the
mandate of due process, once a lawyer violates his oath and the
dictates of legal ethics. The requisites for admission to the practice of
law are:
a. he must be a citizen of the Philippines;
b. a resident thereof;
c. at least twenty-one (21) years of age;
d. a person of good moral character;
e. he must show that no charges against him involving moral
turpitude, are filed or pending in court;
f. possess the required educational qualifications; and
g. pass the bar examinations.[25] (Italics supplied)
Clear from the foregoing is that one of the conditions prior to
admission to the bar is that an applicant must possess good moral
character. More importantly, possession of good moral character must
be continuous as a requirement to the enjoyment of the privilege of
law practice, otherwise, the loss thereof is a ground for the revocation
of such privilege. It has been held –
If good moral character is a sine qua non for admission to the bar,
then the continued possession of good moral character is also a
requisite for retaining membership in the legal profession.
Membership in the bar may be terminated when a lawyer ceases
to have good moral character. (Royong vs. Oblena, 117 Phil. 865).
A lawyer may be disbarred for "grossly immoral conduct, or by
reason of his conviction of a crime involving moral turpitude". A
member of the bar should have moral integrity in addition to
professional probity.
It is difficult to state with precision and to fix an inflexible standard
as to what is "grossly immoral conduct" or to specify the moral
delinquency and obliquity which render a lawyer unworthy of
continuing as a member of the bar. The rule implies that what
appears to be unconventional behavior to the straight-laced may
not be the immoral conduct that warrants disbarment.
Page 20 of 29
PROBLEM AREAS in LEGAL ETHICS
Immoral conduct has been defined as "that conduct which is
willful, flagrant, or shameless, and which shows a moral
indifference to the opinion of the good and respectable members
of the community." (7 C.J.S. 959).[26]
In the case at bar, it is the claim of respondent Atty. Bonifacio that
when she met Carlos Ui, she knew and believed him to be single.
Respondent fell in love with him and they got married and as a result
of such marriage, she gave birth to two (2) children. Upon her
knowledge of the true civil status of Carlos Ui, she left him.
Simple as the facts of the case may sound, the effects of the
actuations of respondent are not only far from simple, they will have a
rippling effect on how the standard norms of our legal practitioners
should be defined. Perhaps morality in our liberal society today is a far
cry from what it used to be before. This permissiveness
notwithstanding, lawyers, as keepers of public faith, are burdened
with a higher degree of social responsibility and thus must handle
their personal affairs with greater caution. The facts of this case lead
us to believe that perhaps respondent would not have found herself in
such a compromising situation had she exercised prudence and been
more vigilant in finding out more about Carlos Uis personal
background prior to her intimate involvement with him.
Surely, circumstances existed which should have at least aroused
respondents suspicion that something was amiss in her relationship
with Carlos Ui, and moved her to ask probing questions. For instance,
respondent admitted that she knew that Carlos Ui had children with a
woman from Amoy, China, yet it appeared that she never exerted the
slightest effort to find out if Carlos Ui and this woman were indeed
unmarried. Also, despite their marriage in 1987, Carlos Ui never lived
with respondent and their first child, a circumstance that is simply
incomprehensible considering respondents allegation that Carlos Ui
was very open in courting her.
All these taken together leads to the inescapable conclusion that
respondent was imprudent in managing her personal affairs. However,
the fact remains that her relationship with Carlos Ui, clothed as it was
with what respondent believed was a valid marriage, cannot be
considered immoral. For immorality connotes conduct that shows
indifference to the moral norms of society and the opinion of good
and respectable members of the community.[27] Moreover, for such
conduct to warrant disciplinary action, the same must be "grossly
immoral," that is, it must be so corrupt and false as to constitute a
criminal act or so unprincipled as to be reprehensible to a high
degree.[28]
We have held that "a member of the Bar and officer of the court is not
only required to refrain from adulterous relationships x x x but must
also so behave himself as to avoid scandalizing the public by creating
the belief that he is flouting those moral standards."[29] Respondents
act of immediately distancing herself from Carlos Ui upon discovering
his true civil status belies just that alleged moral indifference and
proves that she had no intention of flaunting the law and the high
moral standard of the legal profession. Complainants bare assertions
to the contrary deserve no credit. After all, the burden of proof rests
upon the complainant, and the Court will exercise its disciplinary
powers only if she establishes her case by clear, convincing and
satisfactory evidence.[30] This, herein complainant miserably failed to
do.
On the matter of the falsified Certificate of Marriage attached by
respondent to her Answer, we find improbable to believe the
averment of respondent that she merely relied on the photocopy of
the Marriage Certificate which was provided her by Carlos Ui. For an
event as significant as a marriage ceremony, any normal bride would
verily recall the date and year of her marriage. It is difficult to fathom
how a bride, especially a lawyer as in the case at bar, can forget the
year when she got married. Simply stated, it is contrary to human
experience and highly improbable.
Furthermore, any prudent lawyer would verify the information
contained in an attachment to her pleading, especially so when she
has personal knowledge of the facts and circumstances contained
therein. In attaching such Marriage Certificate with an intercalated
date, the defense of good faith of respondent on that point cannot
stand.
It is the bounden duty of lawyers to adhere unwaveringly to the
highest standards of morality. The legal profession exacts from its
members nothing less. Lawyers are called upon to safeguard the
integrity of the Bar, free from misdeeds and acts constitutive of
malpractice. Their exalted positions as officers of the court demand no
less than the highest degree of morality.
WHEREFORE, the complaint for disbarment against respondent Atty.
Iris L. Bonifacio, for alleged immorality, is hereby DISMISSED.
However, respondent is hereby REPRIMANDED for attaching to her
Answer a photocopy of her Marriage Certificate, with an altered or
intercalated date thereof, with a STERNWARNING that a more severe
sanction will be imposed on her for any repetition of the same or
similar offense in the future.
SO ORDERED.
G.R. No. 1179. January 8, 1913.
In re application of MARIO GUARIÑA for admission to the bar.
Mario Guariña in his behalf.
SYLLABUS
1. STATUTORY CONSTRUCTION; ACT NO. 1597; ADMISSION
TO PRACTICE LAW. — Whether the word "may" in a statute is to be
construed as mandatory and imposing a duty, or merely as permissive
and conferring discretion, is to be determined in each case from the
apparent intention of the statute as gathered from the context as well
as from the language of the particular provision. The question in each
case in whether, taken as a whole and viewed in the light of
surrounding circumstances, it can be said that a purpose existed on
the part of a legislator to enact a law mandatory in its character.
2. ID.; ID.; ID.; AUTHORITY OF THE SUPREME COURT. — This
court is vested with authority and charged with the duty to pass upon
MAYORDO, M.A. LLB3
the "moral character" and the "qualifications and ability" of all
candidates for admission to the bar.
3. ID.; ID.; ID.; LIMIT UPON LEGISLATIVE POWER. — Any act
of the Philippine Legislature repugnant to the Act of Congress which
created it, or which is repugnant to any other lawful Act of Congress
defining, prescribing or limiting its authority is invalid and void as
transcending its rightful limits and authority.
4. ID.; ID.; ID.; BASIS OF LEGISLATIVE AUTHORITY. — The
various Acts of Congress conferring power upon the Philippine
Legislature, and defining, prescribing and limiting this power,
especially the Act of Congress of July 1, 1902, are to that Legislature in
the nature of an organic act with its amendments, binding on it in like
manner as is the Constitution of the United States upon Congress
itself.
5. ID.; ID.; ID.; SOURCE OF GOVERNMENTAL AUTHORITY. —
The Acts of Congress of the United States are to the Commission, or
rather to all the Departments of the Philippine Government, what a
law is to individuals; they constitute not only a rule of action to the
various branches of the Government, but it is from them that the very
existence of the power of the Government flows, and it is by virtue of
the Acts of Congress that the powers (or portions of the right to
govern) which may have been committed to this Government are
prescribed.
6. ID.; ID.; ID.; SUPREME COURT CANNOT BE DEPRIVED OF
ITS POWERS. — Section 9 of the Act of Congress of July 1, 1902, placed
it beyond the power of the Philippine Legislature to deprive the
Supreme Court of the Philippine Islands of the jurisdiction or power
theretofore granted to it; leaving, however, to local legislative
authority the right to confer additional jurisdiction or to change the
practice and the method of procedure.
7. ID.; ID.; ID.; DUTY OF COURTS IN CONSTRUING LAWS. — It
is the duty of the courts in construing a statute enacted by the
Philippine Commission, not to give it a construction which would be
repugnant to an Act of Congress, if the language of the statute is fairly
susceptible of another construction not in conflict with the higher law;
and in doing so, contentions touching the apparent intention of the
legislator will be disregarded which would lead to the conclusion that
the Commission intended to enact a law in violation of an Act
Congress.
8. ID.; ID.; ID.; DOUBTFUL LANGUAGE OF A STATUTE. — If
there is doubt or uncertainty as to the meaning of the legislator, if the
words of provisions of the statute are obscure, or if the enactment is
fairly susceptible of two or more constructions, that interpretation will
be adopted which will avoid the effect of unconstitutionality, even
though it may be necessary, for this purpose, to disregard the more
usual or apparent import of the language employed. (Black on
Interpretation of Laws, p. 93.)
9. ID.; ID.; ID.; CONSTRUCTION OF THE WORD "MAY," ACT
NO 1597. — The word "may" as used in the concluding paragraph of
section 2 of Act No. 1597, construed so as to give it its permissive and
not its mandatory effect; and as conferring a discretion and not as
Page 21 of 29
PROBLEM AREAS in LEGAL ETHICS
imposing a duty upon the Supreme Court to grant licenses to the
officials mentioned in the Act to practice law in the courts of the
Philippine Islands without taking the examination prescribed by
general rule.
DECISION
CARSON, J p:
Relying upon the provisions of section 2 of Act No. 1597, the applicant
in this case seeks admission to the bar, without taking the prescribed
examination, on the ground that he holds the office of provincial fiscal
for the Province of Batanes.
Section 2 of Act No. 1597, enacted February 28, 1907, is as follows:
"SEC. 2. Paragraph one of section thirteen of Act Numbered One
hundred and ninety, entitled 'An Act providing a Code of Procedure in
Civil Actions and Special Proceedings in the Philippine Islands,' is
hereby amended to read as follows:
"'1. Those who have been duly licensed under the laws and
orders of the Islands under the sovereignty of Spain or of the United
States and are in good and regular standing as members of the bar of
the Philippine Islands at the time of the adoption of this code:
Provided, That any person who, prior to the passage of this Act, or at
any time thereafter, shall have held, under the authority of the United
States, the position of justice of the Supreme Court, judge of the Court
of First Instance, or judge or associate judge of the Court of Land
Registration, of the Philippine Islands, or the position of Attorney-
General, Solicitor-General, Assistant Attorney-General, assistant
attorney in the office of the Attorney-General, prosecuting attorney
for the city of Manila, assistant prosecuting attorney for the city of
Manila, city attorney of Manila, assistant city attorney of Manila,
provincial fiscal, attorney for the Moro Province, or assistant attorney
for the Moro Province, may be licensed to practice law in the courts of
the Philippine Islands without an examination, upon motion before
the Supreme Court and establishing such fact to the satisfaction of
said court.'"
The records of this court disclose that on a former occasion this
applicant took, and failed to pass the prescribed examination. The
report of the examining board, dated March 23, 1907, shows that he
received an average of only 71 per cent in the various branches of
legal learning upon which he was examined, thus falling four points
short of the required percentage of 75. We would be delinquent in the
performance of our duty to the public and to the bar, if, in the face of
this affirmative indication of the deficiency of the applicant in the
required qualifications of learning in the law at the time when he
presented his former application for admission to the bar, we should
grant him a license to practice law in the courts of these Islands,
without first satisfying ourselves that despite his failure to pass the
examination on that occasion, he now "possesses the necessary
qualifications of learning and ability."
But it is contended that under the provisions of the above-cited
statute the applicant is entitled as of right to be admitted to the bar
without taking the prescribed examination "upon motion before the
Supreme Court" accompanied by satisfactory proof that he has held
and now holds the office of provincial fiscal of the Province of Batanes.
It is urged that having in mind the object which the legislator
apparently sought to attain in enacting the above-cited amendment to
the earlier statute, and in view of the context generally and especially
of the fact that the amendment was inserted as a proviso in that
section of the original Act which specifically provides for the admission
of certain candidates without examination, the clause "may be
licensed to practice law in the courts of the Philippine Islands without
and examination" should be construed so as to mean "shall be
licensed to practice law in the Philippine Islands without an
examination." It is contended that this mandatory construction is
imperatively required in order to give effect to the apparent intention
of the legislator, and to the candidate's claim de jure to have the
power exercised.
It must be confessed that were the inquiry limited strictly to the
provisions of local law touching this matter, the contentions of the
applicant would have great weight. For it is well settled that in
statutory interpretation the word "may" should be read "shall" where
such construction is necessary to give effect to the apparent intention
of the legislator. In Rock Island County Supervisors vs. United States
(71 U. S., 435, 446), Mr. Justice Swayne says:
"The conclusion to be deduced from the authorities is that where
power is given to public officers, in the language of the Act before us,
or in equivalent language, whenever the public interest or individual
rights call for its exercise, the language used, though permissive in
form, is in fact peremptory. What they are empowered to do for a
third person the law requires shall be done. The power is given, not
for their benefit, but for his. It is placed with the depositary to meet
the demands of right, and to prevent a failure of justice. It is given as a
remedy to those entitled to invoke its aid, and who would otherwise
be remediless. In all such cases it is held that the intent of the
Legislature, which is the test, was not to devolve a mere discretion,
but to impose a positive and absolute duty."
Whether the word "may" in a statute is to be construed as mandatory
and imposing a duty, or merely as permissive and conferring
discretion, is to be determined in each case from the apparent
intention of the statute as gathered from the context, as well as from
the language of the particular provision. The question in each case is
whether, taken as a whole and viewed in the light of surrounding
circumstances, it can be said that a purpose existed on the part of the
legislator to enact a law mandatory in its character. If it can, then it
should be given a mandatory effect; if not, then it should be given its
ordinary permissive effect. (Colby University vs. Village of Canandaigua
(U.S.), 69 Fed., 671, 673; Kansas Pacific Ry. Co. vs. Reynolds, 8 Kan.,
623, 628; Kemble vs. McPhaill, 60 Pac., 1092, 1093, 128 Cal., 444;
Inhabitants of Worcester County vs. Schlesinger, 82 Mass. (16 Gray),
166, 168; People vs. Sanitary Dist. of Chicago, 56 N. E., 953, 956, 184
Ill., 597; State vs. Withrow (Mo.), 24 S. W., 638, 641; Leavenworth & D.
M. R. Co. vs. Platte County Court, 42 Mo., 171, 174.)
Applying these canons of construction to the statute under
consideration, and limiting ourselves strictly to the provisions of local
law touching the admission of candidates to the bar, we might, as we
have said, be inclined to give the statute the mandatory effect which
applicant claims should be placed upon it. But we are of opinion that
MAYORDO, M.A. LLB3
such a construction is precluded by the provisions of the Act of
Congress enacted July 1, 1902, which confirm and secure to this court
the jurisdiction therefore conferred upon it. Section 9 of that Act is as
follows:
"That the Supreme Court and the Courts of First Instance of the
Philippine Islands shall possess and exercise jurisdiction as heretofore
provided and such additional jurisdiction as shall hereafter be
prescribed by the Government of said Islands, subject to the power of
said Government to change the practice and method of procedure.
The municipal courts of said Islands shall possess and exercise
jurisdiction as heretofore provided by the Philippine Commission,
subject in all matters to such alteration and amendments as may be
hereafter enacted by law; and the Chief Justice and Associate Justices
of the Supreme Court shall hereafter be appointed by the President,
by and with the advice and consent of the Senate, and shall receive
the compensation heretofore prescribed by the Commission until
otherwise provided by Congress. The judges of the Court of First
Instance shall be appointed by the Civil Governor, by and with the
advice and consent of the Philippine Commission: Provided, That the
admiralty jurisdiction of the Supreme Court and Courts of First
Instance shall not be changed except by Act of Congress."
Prior to the passage of this Act the power and jurisdiction of this court
in relation to the admission of candidates to the bar of the Philippine
Islands had been fixed by the provisions of the Organic Act (No. 136)
and the Code of Civil Procedure (Act No. 190); and as we understand
these provisions this court was vested thereby with authority, and
charged with a duty to pass upon the "moral character" and the
"qualifications and ability" of all candidates for admission to the bar.
The pertinent provisions of these statutes are as follows:
(Act No. 136.) "SEC. 2. Constitution of judiciary. — The
judicial power of the Government of the Philippine Islands shall be
vested in a Supreme Court, Courts of First Instance, and courts of
justices of the peace, together with such special jurisdictions of
municipal courts, and other special tribunals as now are or hereafter
may be authorized by law. The two courts first named shall be courts
of record.
(Act No. 136.) "SEC. 16. Jurisdiction of the Supreme Court. —
The jurisdiction of the Supreme Court shall be of two kinds:
"1. Original; and
"2. Appellate.
"SEC. 17. Its original jurisdiction. — The Supreme Court shall have
original jurisdiction to issue writs of mandamus, certiorari, prohibition,
habeas corpus, and quo warranto in the cases and in the manner
prescribed in the Code of Civil Procedure, and to hear and determine
the controversies thus brought before it, and in other cases provided
by law.
(Act No. 190.) "SEC. 13. Who may practice as lawyers. — The
following persons, if not specially declared ineligible, are entitled to
practice law in the courts of the Philippine Islands:
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PROBLEM AREAS in LEGAL ETHICS
"1. Those who have been duly licensed under the laws and
orders of the Islands under the sovereignty of Spain or of the United
States and are in good and regular standing as members of the bar of
the Philippine Islands at the time of the adoption of this Code;
"2. Those who are hereafter licensed in the manner herein
prescribed.
"SEC. 14. Qualifications of applicants. — Any resident of the
Philippine Islands, not a subject or citizen of any foreign government,
of the age of twenty-three years, of good moral character, and who
possesses the necessary qualifications of learning and ability, is
entitled to admission as a member of the bar of the Islands and to
practice as such in all their courts.
"SEC. 15. Certificate of good character required. — Every applicant
for admission as a member of the bar must produce before the
Supreme Court satisfactory testimonials of good moral character, and
must satisfactorily pass a proper examination upon all the codes of
law and procedure in force in the Philippine Islands, and upon such
other branches of legal learning as the Supreme Court by general rule
shall provide. . . .
"SEC. 16. Place and manner of examinations. — Such examinations
shall be conducted at Manila, by the judges of the Supreme Court or
by a committee of competent lawyers by them to be appointed, and
shall be held at such times as the judges of that court shall provide by
general or special rules."
Manifestly, the jurisdiction thus conferred upon this court by the
Commission and confirmed to it by the Act of Congress would be
limited and restricted, and in a case such as that under consideration
wholly destroyed, by giving the word "may," as used in the above
citation from Act No. 1597, a mandatory rather than a permissive
effect. But any Act of the Commission which has the effect of setting
at naught in whole or in part the Act of Congress of July 1, 1902, or of
any Act of Congress prescribing, defining or limiting the power
conferred upon the Commission is to that extent invalid and void, as
transcending its rightful limits and authority.
The Act of Congress was the creator of the Commission and indeed of
the Government of these Islands, which is the creature of its creator.
Its powers are defined, prescribed and limited by the Act which
created it, and by such other lawful acts of its creator as may further
define, prescribe, limit or expand these powers. It cannot lawfully
transcend or infringe upon the limits thus prescribed, and any Act of
the Commission repugnant to the Act of Congress which created it, or
which is repugnant to any other lawful Act of its creator defining,
prescribing or limiting its authority is void and invalid. The various Acts
of Congress conferring power upon the Philippine Legislature, and
defining, prescribing and limiting this power, especially the Act of
Congress of July 1, 1902, are to that Legislature in the nature of an
organic act with its amendments, binding on it in like manner as is the
Constitution of the United States upon Congress itself.
In the great case of Marbury vs. Madison (1 Cranch, 175), the Supreme
Court of the United States, in a decision written by Chief Justice
Marshall, laid down the doctrine in this regard which has been
followed by that court unhesitatingly ever since. In that case the court
held that an Act of Congress repugnant to the Constitution cannot
become law, and that the courts of the United States are bound to
take notice of the Constitution.
Applying the reasoning of that case to the question of the validity of
an Act of the Philippine Commission enacted since the date of the
passage of the Philippine Bill which is found to be in conflict with the
provisions of the Act of Congress dealing with the same subject
matter, and especially with the provisions of the Philippine Bill itself,
we think there can be no doubt as to the result. The Act of the
Commission in so far as it is in conflict with or in any wise repugnant to
the various Acts of Congress dealing with the same subject matter
must be held to be void and of no effect. Paraphrasing slightly the
language used in the early case of Kemper vs. Hawkins (1 Va. Cases,
20-24), it may be said that the Acts of the Congress of the United
States are to the Commission, or rather to all the departments of the
Philippine Government, what a law is to individuals; may, they
constitute not only a rule of action to the various branches of the
Government, but it is from them that the very existence of the power
of the Government flows, and it is by virtue of the Acts of Congress
that the powers (or portions of the right to govern) which may have
been committed to this Government are prescribed. The Act of
Congress was the Commission's commission; nay, it was its creator.
Section 9 of the Act of Congress, set out above, placed it beyond the
power of the local Legislature to deprive this court of the jurisdiction
or power theretofore granted to it; leaving however, to local
legislative authority the right to confer additional jurisdiction, or to
change the practice and method of procedure. The above-cited
provisions of Act No. 190, in force at the time when the Act of
Congress was enacted, conferred upon this court the power and
jurisdiction to deny admission to candidates for the bar unless, in
addition to certain other prescribed conditions, they satisfy the court
that they possess the necessary learning in the law, by passing an
examination prescribed by general rule. It seems clear, therefore, that
the Commission, while it was undoubtedly authorized to modify the
provision requiring the holding of examinations under general rules
(that being merely the prescribed mode of procedure whereby the
court was required to ascertain the qualifications of the candidate),
had no authority to deprive this court of its power to deny admission
to any candidate who fails to satisfy it that he possesses the necessary
qualifications for admission to the bar of the Philippine Islands.
In construing a statute enacted by the Philippine Commission we
deem it our duty not to give it a construction which would be
repugnant to an Act of Congress, if the language of the statute is fairly
susceptible of another construction not in conflict with the higher law.
In doing so, we think we should not hesitate to disregard contentions
touching the apparent intention of the legislator which would lead to
the conclusion that the Commission intended to enact a law in
violation of the Act of Congress. However specious the argument may
be in favor of one of two possible constructions, it must be
disregarded if on examination it is found to rest on the contention that
the legislator designed an attempt to transcend the rightful limits of
his authority, and that his apparent intention was to enact an invalid
an invalid law.
MAYORDO, M.A. LLB3
Black on Interpretation of Laws at page 87 says; "In construing a
doubtful or ambiguous statute, the courts will presume that it was the
intention of the legislature to enact a valid, sensible, and just law, and
one which should change the prior law no further than may be
necessary to effectuate the specific purpose of the act in question. The
construction should be in harmony with this assumption whenever
possible."
The same author, at pages 93 and 94, says: "Hence it follows that the
courts will not so construe the law as to make it conflict with the
constitution, but will rather put such an interpretation upon it as will
avoid conflict with the constitution and give it full force and effect, if
this can be done without extravagance. If there is doubt or uncertainty
as to the meaning of the legislature, if the words or provisions of the
statute are obscure, or if the enactment is fairly susceptible of two or
more constructions, that interpretation will be adopted which will
avoid the effect of unconstitutionality, even though it may be
necessary, for this purpose, to disregard the more usual or apparent
import of the language employed."
Without undue straining of the language used in the statute under
consideration, the word "may" may be construed as either mandatory
or permissive in its effect. But to construe it as mandatory would bring
it in direct conflict with the Act of Congress, and we conclude
therefore, despite the contentions of the applicant as to the apparent
intention of the legislator, that it should be given its permissive and
not its mandatory effect, and that the true intention of the legislator
was to leave it within the discretion of the court to admit to the bar
without examination the officials mentioned in the Act in any case
wherein the court is otherwise satisfied that they possess the
necessary qualifications.
Ordinarily, and in the absence of any showing to the contrary, it may
fairly be assumed that an applicant who has held one of the offices
mentioned in the statute, and who, prior to his appointment, had
been admitted to the practice of law in the courts of these Islands
under the former sovereign or in some other jurisdiction is duly
qualified for admission to the bar of these Islands. In the case In re Du
Fresne (20 Phil. Rep., 488, 492), speaking of the provisions of this Act,
we said:
"Appointments to the positions mentioned in Act No. 1597 are made
either by the President of the United States by and with the advice
and consent of the Senate, or by the Governor-General of the
Philippine Islands by and with the advice and consent of the Philippine
Commission, and the legislator evidently conceived that the fact that
such an appointment is made is a sufficient guaranty that after due
inquiry the appointee has been found to be possessed of at least the
necessary qualifications for admission to the bar."
In the various cases wherein applications for admission to the bar
under the provisions of this statute have been considered heretofore,
we have accepted the fact that such appointments had been made as
satisfactory evidence of the qualifications of the applicant. But in all of
those cases we had reason to believe that the applicants had been
practicing attorneys prior to the date of their appointment.
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PROBLEM AREAS in LEGAL ETHICS
In the case under consideration, however, it affirmatively appears that
the applicant was not and never had been a practicing attorney in this
or any other jurisdiction prior to the date of his appointment as
provincial fiscal, and it further affirmatively appears that he was
deficient in the required qualifications at the time when he last
applied for admission to the bar.
In the light of this affirmative proof of his deficiency on that occasion,
we do not think that his appointment to the office of provincial fiscal is
in itself satisfactory proof of his possession of the necessary
qualifications of learning and ability. We conclude therefore that this
application for license to practice in the courts of the Philippines
should be denied.
In view, however, of the fact that when he took the examination he
fell only four points short of the necessary grade to entitle him to a
license to practice; and in view also of the fact that since that time he
has held the responsible office of governor of the Province of
Sorsogon and presumably gave evidence of such marked ability in the
performance of the duties of that office that the Chief Executive, with
the consent and approval of the Philippine Commission, sought to
retain him in the Government service by appointing him to the office
of provincial fiscal, we think we would be justified under the above-
cited provisions of Act No. 1597 in waiving in his case the ordinary
examination prescribed by general rule, provided he offers satisfactory
evidence of his proficiency in a special examination which will be given
him by a committee of the court upon his application therefore,
without prejudice to his right, if he desires so to do, to present himself
at any of the ordinary examinations prescribed by general rule. So
ordered.
Arellano, C.J., Torres, Mapa, and Trent , JJ., concur.
[B.M. No. 1154. June 8, 2004]
IN THE MATTER OF THE DISQUALIFICATION OF BAR EXAMINEE
HARON S. MELING IN THE 2002 BAR EXAMINATIONS AND
FOR DISCIPLINARY ACTION AS MEMBER OF THE
PHILIPPINE SHARIA BAR,
ATTY. FROILAN R. MELENDREZ, petitioner,
RESOLUTION
TINGA, J.:
The Court is here confronted with a Petition that seeks twin reliefs,
one of which is ripe while the other has been rendered moot by a
supervening event.
The antecedents follow.
On October 14, 2002, Atty. Froilan R. Melendrez (Melendrez) filed with
the Office of the Bar Confidant (OBC) a Petition[1] to disqualify Haron S.
Meling (Meling) from taking the 2002 Bar Examinations and to impose
on him the appropriate disciplinary penalty as a member of the
Philippine Sharia Bar.
In the Petition, Melendrez alleges that Meling did not disclose in his
Petition to take the 2002 Bar Examinations that he has three (3)
pending criminal cases before the Municipal Trial Court in Cities
(MTCC), Cotabato City, namely: Criminal Cases Noa. 15685 and 15686,
both for Grave Oral Defamation, and Criminal Case No. 15687 for Less
Serious Physical Injuries.
The above-mentioned cases arose from an incident which occurred
on May 21, 2001, when Meling allegedly uttered defamatory words
against Melendrez and his wife in front of media practitioners and
other people. Meling also purportedly attacked and hit the face of
Melendrez wife causing the injuries to the latter.
Furthermore, Melendrez alleges that Meling has been using the title
Attorney in his communications, as Secretary to the Mayor of
Cotabato City, despite the fact that he is not a member of the Bar.
Attached to the Petition is an indorsement letter which shows that
Meling used the appellation and appears on its face to have been
received by the Sangguniang Panglungsod of Cotabato City on
November 27, 2001.
Pursuant to this Courts Resolution[2] dated December 3, 2002, Meling
filed his Answer with the OBC.
In his Answer,[3] Meling explains that he did not disclose the criminal
cases filed against him by Melendrez because retired Judge Corocoy
Moson, their former professor, advised him to settle his
misunderstanding with Melendrez. Believing in good faith that the
case would be settled because the said Judge has moral ascendancy
over them, he being their former professor in the College of Law,
Meling considered the three cases that actually arose from a single
incident and involving the same parties as closed and
terminated. Moreover, Meling denies the charges and adds that the
acts complained of do not involve moral turpitude.
As regards the use of the title Attorney, Meling admits that some of
his communications really contained the word Attorney as they were,
according to him, typed by the office clerk.
In its Report and Recommendation[4] dated December 8, 2003, the
OBC disposed of the charge of non-disclosure against Meling in this
wise:
The reasons of Meling in not disclosing the criminal cases filed against
him in his petition to take the Bar Examinations are ludicrous. He
should have known that only the court of competent jurisdiction can
dismiss cases, not a retired judge nor a law professor. In fact, the cases
filed against Meling are still pending. Furthermore, granting arguendo
that these cases were already dismissed, he is still required to disclose
the same for the Court to ascertain his good moral character. Petitions
to take the Bar Examinations are made under oath, and should not be
taken lightly by an applicant.
The merit of the cases against Meling is not material in this case. What
matters is his act of concealing them which constitutes dishonesty.
In Bar Matter 1209, the Court stated, thus:
MAYORDO, M.A. LLB3
It has been held that good moral character is what a person really is,
as distinguished from good reputation or from the opinion generally
entertained of him, the estimate in which he is held by the public in
the place where he is known. Moral character is not a subjective term
but one which corresponds to objective reality. The standard of
personal and professional integrity is not satisfied by such conduct as
it merely enables a person to escape the penalty of criminal law. Good
moral character includes at least common honesty.
The non-disclosure of Meling of the criminal cases filed against him
makes him also answerable under Rule 7.01 of the Code of
Professional Responsibility which states that a lawyer shall be
answerable for knowingly making a false statement or suppressing a
material fact in connection with his application for admission to the
bar.[5]
As regards Melings use of the title Attorney, the OBC had this to say:
Anent the issue of the use of the appellation Attorney in his letters,
the explanation of Meling is not acceptable. Aware that he is not a
member of the Bar, there was no valid reason why he signed as
attorney whoever may have typed the letters.
Although there is no showing that Meling is engaged in the practice of
law, the fact is, he is signing his communications as Atty. Haron S.
Meling knowing fully well that he is not entitled thereto. As held by
the Court in Bar Matter 1209, the unauthorized use of the appellation
attorney may render a person liable for indirect contempt of court.[6]
Consequently, the OBC recommended that Meling not be allowed to
take the Lawyers Oath and sign the Roll of Attorneys in the event that
he passes the Bar Examinations. Further, it recommended that
Melings membership in the Sharia Bar be suspended until further
orders from the Court.[7]
We fully concur with the findings and recommendation of the
OBC. Meling, however, did not pass the 2003 Bar Examinations. This
renders the Petition, insofar as it seeks to prevent Meling from taking
the Lawyers Oath and signing the Roll of Attorneys, moot and
academic.
On the other hand, the prayer in the same Petition for the Court to
impose the appropriate sanctions upon him as a member of the Sharia
Bar is ripe for resolution and has to be acted upon.
Practice of law, whether under the regular or the Sharia Court, is not a
matter of right but merely a privilege bestowed upon individuals who
are not only learned in the law but who are also known to possess
good moral character.[8] The requirement of good moral character is
not only a condition precedent to admission to the practice of law, its
continued possession is also essential for remaining in the practice of
law.[9]
The standard form issued in connection with the application to take
the 2002 Bar Examinations requires the applicant to aver that he or
she has not been charged with any act or omission punishable by law,
rule or regulation before a fiscal, judge, officer or administrative body,
or indicted for, or accused or convicted by any court or tribunal of, any
Page 24 of 29
PROBLEM AREAS in LEGAL ETHICS
offense or crime involving moral turpitude; nor is there any pending
case or charge against him/her. Despite the declaration required by
the form, Meling did not reveal that he has three pending criminal
cases. His deliberate silence constitutes concealment, done under
oath at that.
The disclosure requirement is imposed by the Court to determine
whether there is satisfactory evidence of good moral character of the
applicant.[10] The nature of whatever cases are pending against the
applicant would aid the Court in determining whether he is endowed
with the moral fitness demanded of a lawyer. By concealing the
existence of such cases, the applicant then flunks the test of fitness
even if the cases are ultimately proven to be unwarranted or
insufficient to impugn or affect the good moral character of the
applicant.
Melings concealment of the fact that there are three (3) pending
criminal cases against him speaks of his lack of the requisite good
moral character and results in the forfeiture of the privilege bestowed
upon him as a member of the Sharia Bar.
Moreover, his use of the appellation Attorney, knowing fully well that
he is not entitled to its use, cannot go unchecked. In Alawi v.
Alauya,[11] the Court had the occasion to discuss the impropriety of the
use of the title Attorney by members of the Sharia Bar who are not
likewise members of the Philippine Bar. The respondent therein, an
executive clerk of court of the 4th Judicial Sharia District
in Marawi City, used the title Attorney in several correspondence in
connection with the rescission of a contract entered into by him in his
private capacity. The Court declared that:
persons who pass the Sharia Bar are not full-fledged members of the
Philippine Bar, hence, may only practice law before Sharia
courts. While one who has been admitted to the Sharia Bar, and one
who has been admitted to the Philippine Bar, may both be considered
counselors, in the sense that they give counsel or advice in a
professional capacity, only the latter is an attorney. The title attorney
is reserved to those who, having obtained the necessary degree in the
study of law and successfully taken the Bar Examinations, have been
admitted to the Integrated Bar of the Philippines and remain members
thereof in good standing; and it is they only who are authorized to
practice law in this jurisdiction.[12]
The judiciary has no place for dishonest officers of the court, such as
Meling in this case. The solemn task of administering justice demands
that those who are privileged to be part of service therein, from the
highest official to the lowliest employee, must not only be competent
and dedicated, but likewise live and practice the virtues of honesty
and integrity. Anything short of this standard would diminish the
public's faith in the Judiciary and constitutes infidelity to the
constitutional tenet that a public office is a public trust.
In Leda v. Tabang, supra, the respondent concealed the fact of his
marriage in his application to take the Bar examinations and made
conflicting submissions before the Court. As a result, we found the
respondent grossly unfit and unworthy to continue in the practice of
law and suspended him therefrom until further orders from the Court.
WHEREFORE, the Petition is GRANTED insofar as it seeks the
imposition of appropriate sanctions upon Haron S. Meling as a
member of the Philippine Sharia Bar.Accordingly, the membership of
Haron S. Meling in the Philippine Sharia Bar is hereby SUSPENDED until
further orders from the Court, the suspension to take effect
immediately. Insofar as the Petition seeks to prevent Haron S. Meling
from taking the Lawyers Oath and signing the Roll of Attorneys as a
member of the Philippine Bar, the same is DISMISSED for having
become moot and academic.
Copies of this Decision shall be circulated to all the Sharia Courts in the
country for their information and guidance.
SO ORDERED.
[A.C. No. 6492. November 18, 2004]
MELANIO L. ZORETA, complainant, vs. ATTY. HEHERSON ALNOR G.
SIMPLICIANO, respondent.
DECISION
CHICO-NAZARIO, J.:
This is a complaint for disbarment filed against Atty. Heherson Alnor
G. Simpliciano for allegedly notarizing several documents during the
year 2002 after his commission as notary public had expired.
Complainant Melanio L. Zoreta alleged that on 02 August 2001, he
filed before Branch 4 of the Regional Trial Court of Antipolo City, a
complaint for Breach of Contract and Damages against Security Pacific
Assurance Corporation (SPAC) dated 22 June 2001 due to the latters
failure to honor SPACs Commercial Vehicle Policy No. 94286, where
respondent Atty. Heherson Alnor G. Simpliciano was the latters
counsel. In said cases, respondent who was not a duly commissioned
Notary Public in 2002 per Certifications[1]issued by the Clerk of Court
of Quezon City Mercedes S. Gatmaytan, performed acts of
notarization, as evidenced by the following documents, viz:
1. Verification[2] executed by Aurora C. Galvez, President of
defendant SPAC, subscribed and sworn to before Atty.
Heherson Alnor G. Simpliciano on February 18, 2002 as
alleged notary public, in Quezon City and attached to
defendants Very Urgent Motion (1) To Lift the Order of
Default; and (2) To defer Plaintiffs Presentation of
Evidence Ex-Parte dated February 18, 2002;
2. Affidavits of Merit[3] signed by Aurora Galvez attached to the
pleading mentioned in par. 1 hereof, likewise notarized
by Atty. Heherson Alnor G. Simpliciano as alleged Notary
Public in Quezon City, on February 18, 2002;
3. The Affidavit of Service[4] signed by a certain Renee L. Ramos, a
Legal Assistant in Simpliciano and Capela Law Office,
and subscribed and sworn to before Atty. Heherson
Alnor G. Simpliciano on February 19, 2002 as alleged
Notary Public in Quezon City. Said Affidavit of Service
was attached to the pleading mentioned in Par. 1
hereof;
MAYORDO, M.A. LLB3
4. The Affidavit of Service[5] of one Nestor Abayon, another Legal
Assistant of Simpliciano and Capela Law Office,
subscribed and sworn to before Atty. Heherson Alnor G.
Simpliciano on 01 April 2002 at Quezon City, as Notary
Public. This Affidavit of Service was attached to
defendants Motion (1) For Reconsideration of the Order
dated 05 March 2002; and (2) To allow defendants to
Present Defensive Evidence dated 27 March 2002.
5. The Verification and Certification Against Forum
Shopping[6] signed this time by a certain Celso N. Sarto,
as affiant, notarized on 16 August 2002 by Atty.
Heherson Alnor G. Simpliciano. This Verification and
Certification Against Forum Shopping was attached to
defendants Motion For Extension of Time To File
Petition Under Rule 65 before the Court of Appeals;
6. The Affidavit of Service[7] signed by a certain Joseph B. Aganan,
another Legal Assistant in Simpliciano and Capela Law
Office subscribed and sworn to before Atty. Heherson
Alnor G. Simpliciano as Notary Public on 16 August
2002. This Affidavit of Service signed by Aganan was also
attached to that Motion For Extension of Time To File
Petition under Rule 65 before the Court of Appeals;
7. Verification and Certification Against Forum
Shopping[8] executed by one Celso N. Sarto, alleged
Executive Vice President and Claims Manager of
defendant SPAC and notarized by Atty. Heherson Alnor
G. Simpliciano on 19 August 2002, attached to the
Petition for Certiorari and Prohibition, etc., filed before
the Court of Appeals; and
8. Affidavit of Service[9] signed by a certain Joseph B. Aganan,
Legal Assistant of Simpliciano and Capela Law Office,
subscribed and sworn to before Atty. Heherson Alnor G.
Simpliciano on 19 August 2002, as alleged Notary Public
for Quezon City with notarized commission to expire by
December 31, 2002.
On 23 April 2003, the Integrated Bar of the Philippines (IBP) of Pasig
required respondent Atty. Simpliciano to submit his answer within
fifteen (15) days from receipt of the Order.[10]
On 26 May 2003, counsel of respondent filed an ex-
parte motion[11] for extension of time to file answer.
On 30 June 2003, petitioner filed a motion[12] to resolve the complaint
after the extension requested by respondent ended on 30 May 2003,
and almost a month had lapsed from 30 May 2003, with no comment
or pleading filed by respondent.
On 17 July 2003, Commissioner Lydia A. Navarro issued an
order,[13] giving respondent a last chance to file his answer, otherwise
the case shall be deemed submitted for resolution. Respondent failed
to do so.
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PROBLEM AREAS in LEGAL ETHICS
Commissioner Lydia A. Navarro submitted her report and
recommendation[14] dated 12 February 2004, pertinent portions of
which read:
A careful examination and evaluation of the evidence submitted by
the petitioner showed that respondent notarized up to Document No.
590, Page 118, Book No. II, Series of 2002 and his commission expires
December 31, 2002 which referred to the Affidavit of Service signed
and executed by Joseph B. Aganan Legal Assistant of Simpliciano and
Capela Law Office subscribed and sworn to before Notary Public
Heherson Alnor G. Simpliciano whose commission expires December
31, 2002.
All the other documents aforementioned were entered in Book II of
respondents alleged notarial book which reflected that his commission
expires on December 31, 2002 as notary public.
However, the Clerk of Court of Quezon City in her certification dated
October 4, 2002 stated that as per records on file with their office
respondent was not duly commissioned notary public for and in
Quezon City for the year 2002.
Another certification issued by the Clerk of Court of RTC Quezon City
dated April 15, 2003 showed that as per records on file with their
office respondent was commissioned notary public for and in Quezon
City from January 14, 2000 to December 31, 2001 and for the year
2002 and 2003 he did not apply for notarial commission for Quezon
City.
It is evident from the foregoing that when respondent notarized the
aforementioned documents, he was not commissioned as notary
public, which was in violation of the Notarial Law; for having notarized
the 590 documents after the expiration of his commission as notary
public without having renewed said commission amounting to gross
misconduct as a member of the legal profession.
Wherefore, in view of the foregoing the Undersigned respectfully
recommends the revocation of respondents commission as notary
public permanently if he is commissioned as such at present and his
suspension from the practice of law for a period of three (3) months
from receipt hereof furnishing the IBP Chapter where he is a
registered member a copy hereof for implementation should this
recommendation be approved by the Honorable members of the
Board of Governors.[15]
Per Resolution No. XVI-2004-236 dated 16 April 2004, the Board of
Governors modified the report and recommendation of Commissioner
Navarro of suspension of three (3) months to a suspension of six (6)
months.[16]
We concur in the finding of the Investigating Commissioner that
respondent Atty. Simpliciano did not have a commission as notary
public in 2002 when he notarized the assailed documents as
evidenced by the two (2) certifications issued by the Clerk of Court of
the Regional Trial Court of Quezon City dated 04 October
2002.[17] Records also show, and as confirmed by IBP Commissioner
Navarro, that as of 02 August 2002, respondent had already notarized
a total of 590 documents.[18] The evidence presented by complainant
conclusively establishes the misconduct imputed to respondent.
The eight (8) notarized documents for the year 2002 submitted by
complainant, consisting of affidavits of merit, certifications and
verifications against non-forum shopping, and affidavits of service,
were used and presented in the Regional Trial Court of Antipolo City,
Branch 74, in Civil Case No. 01-6240, and in respondents petition
for certiorarifiled in the Court of Appeals.
Against the evidence presented by complainant, respondent did not
even attempt to present any evidence. His counsel filed an ex-
parte motion for extension to file answer, which was granted, but no
answer was forthcoming. Still, Hearing Commissioner Lydia A. Navarro
gave respondent a last chance to file his answer; which was again
unheeded. Thus, respondent was unable to rebut complainants
evidence that he was not so commissioned for the year in question.
His lack of interest and indifference in presenting his defense to the
charge and the evidence against him can only mean he has no strong
and valid defense to offer. Conclusively, respondent Atty. Simpliciano
is not a duly commissioned Notary Public for and in Quezon City for
the year 2002.
At the threshold, it is worth stressing that the practice of law is not a
right but a privilege bestowed by the State on those who show that
they possess, and continue to possess, the qualifications required by
law for the conferment of such privilege.[19] Membership in the bar is a
privilege burdened with conditions. A lawyer has the privilege and
right to practice law only during good behavior and can only be
deprived of it for misconduct ascertained and declared by judgment of
the court after opportunity to be heard has been afforded him.
Without invading any constitutional privilege or right, an attorneys
right to practice law may be resolved by a proceeding to suspend him,
based on conduct rendering him unfit to hold a license or to exercise
the duties and responsibilities of an attorney. It must be understood
that the purpose of suspending or disbarring him as an attorney is to
remove from the profession a person whose misconduct has proved
him unfit to be entrusted with the duties and responsibilities
belonging to an office of attorney, and thus to protect the public and
those charged with the administration of justice, rather than to punish
an attorney.[20] Elaborating on this, we said in Maligsa v.
Cabanting[21]that [t]he bar should maintain a high standard of legal
proficiency as well as of honesty and fair dealing. A lawyer brings
honor to the legal profession by faithfully performing his duties to
society, to the bar, to the courts and to his clients. To this end a
member of the legal fraternity should refrain from doing any act which
might lessen in any degree the confidence and trust reposed by the
public in the fidelity, honesty and integrity of the legal
profession.[22] Towards this end, an attorney may be disbarred, or
suspended for any violation of his oath or of his duties as an attorney
and counselor, which include statutory grounds enumerated in Section
27, Rule 138 of the Rules of Court, all of these being broad enough to
cover practically any misconduct of a lawyer in his professional or
private capacity.[23]
Apropos to the case at bar, it has been emphatically stressed that
notarization is not an empty, meaningless, routinary act. It is invested
with substantive public interest, such that only those who are
MAYORDO, M.A. LLB3
qualified or authorized may act as notaries public. The protection of
that interest necessarily requires that those not qualified or
authorized to act must be prevented from imposing upon the public,
the courts, and the administrative offices in general. It must be
underscored that the notarization by a notary public converts a private
document into a public document making that document admissible in
evidence without further proof of authenticity. A notarial document is
by law entitled to full faith and credit upon its face. For this reason,
notaries public must observe with utmost care the basic requirements
in the performance of their duties.[24]
The requirements for the issuance of a commission as notary public
must not be treated as a mere casual formality. The Court has
characterized a lawyers act of notarizing documents without the
requisite commission therefore as reprehensible, constituting as it
does not only malpractice but also x x x the crime of falsification of
public documents.[25] For such reprehensible conduct, the Court has
sanctioned erring lawyers by suspension from the practice of law,
revocation of the notarial commission and disqualification from acting
as such, and even disbarment.[26]
In the case of Nunga v. Viray,[27] the Court had occasion to state that
where the notarization of a document is done by a member of the
Philippine Bar at a time when he has no authorization or commission
to do so, the offender may be subjected to disciplinary action. For one,
performing a notarial without such commission is a violation of the
lawyers oath to obey the laws, more specifically, the Notarial Law.
Then, too, by making it appear that he is duly commissioned when he
is not, he is, for all legal intents and purposes, indulging in deliberate
falsehood, which the lawyers oath similarly proscribes. These
violations fall squarely within the prohibition of Rule 1.01 of Canon 1
of the Code of Professional Responsibility, which provides: A lawyer
shall not engage in unlawful, dishonest, immoral or deceitful conduct.
By such misconduct as a notary public, the lawyer likewise violates
Canon 7 of the same Code, which directs every lawyer to uphold at all
times the integrity and dignity of the legal profession.
On different occasions, this Court had disbarred or suspended lawyers
for notarizing documents with an expired commission:
1. In Flores v. Lozada,[28] the court disbarred a lawyer who
notarized six documents such as the extrajudicial partition
of an estate, deed of sale with right of repurchase, and
four (4) deeds of absolute sale - all involving unregistered
lands, after his commission as Notary Public expired;
2. In Joson v. Baltazar,[29] the court suspended the lawyer for three
(3) months since only one (1) instance of unauthorized
notarization of a deed of sale was involved.
3. In Nunga v. Viray,[30] the court suspended the lawyer for three
(3) years when he notarized an absolute deed of sale of
the buyer minor, who was his son and, at the same time,
he was a stockholder and legal counsel of the vendor
bank, and when he entered in his notarial registry an
annotation of the cancellation of the loan in favor of a
certain bank, at a time when he was not commissioned as
Page 26 of 29
PROBLEM AREAS in LEGAL ETHICS
a Notary Public. What aggravated respondents unlawful
notarization was the fact that the transaction involved
was in favor of his son, who was then only eighteen years
old and, therefore, a minor.
4. In Buensuceso v. Barrera,[31] the lawyer was suspended for one
(1) year when he notarized five (5) documents such as a
complaint for ejectment, affidavit, supplemental affidavit,
a deed of sale and a contract to sell, after his commission
as Notary Public expired.
Needless to state, respondent cannot escape from disciplinary action
in his capacity as a notary public and as a member of the Philippine
Bar. However, the penalty recommended by the Board of Governors
of the IBP must be increased. Respondent must be barred from being
commissioned as a notary public permanently and suspended from
the practice of law for two (2) years.
WHEREFORE, this Court hereby adopts the findings of Investigating
Commissioner Lydia A. Navarro, which the Board of Governors of the
Integrated Bar of the Philippines adopted and approved, but hereby
MODIFIES the penalty recommended by the Board of Governors. As
modified, respondent ATTY. HEHERSON ALNOR G. SIMPLICIANO is
hereby BARRED PERMANENTLY from being commissioned as Notary
Public. He is furthermore SUSPENDED from the practice of law for two
(2) years, effective upon receipt of a copy of this Decision.
Let copies of this Decision be furnished all the courts of the land
through the Court Administrator as well as the Integrated Bar of the
Philippines, the Office of the Bar Confidant, and recorded in the
personal files of respondent himself.
SO ORDERED.
[A.C. No. 3910. August 14, 2000]
JOSE S. DUCAT, JR., complainant, vs. ATTYS. ARSENIO
C. VILLALON, JR. and CRISPULO
DUCUSIN, respondents.
DECISION
DE LEON, JR., J.:
Before us is a verified letter-complaint[1] for disbarment against Attys.
Arsenio C. Villalon, Jr.; Andres Canares, Jr. and Crispulo Ducusin for
deceit and gross misconduct in violation of the lawyers
oath. Investigation proceeded only against respondent Villalon
because it was discovered that Andres Canares was not a lawyer while
Atty. Crispulo Ducusin passed away on February 3, 1996.[2]
In the letter-complaint,[3] complainant alleged that on October 29,
1991, respondent Villalon, as counsel for the family of complainant,
spoke to the father of complainant and asked that he be given the title
over a property owned by complainant located in Pinugay, Antipolo,
Rizal and covered by TCT No. M-3023, Emancipation Patent No.
410414, because he allegedly had to verify the proper measurements
of the subject property. Sometime in November, 1991, however,
complainant and his family were surprised when several people
entered the subject property and, when confronted by the
companions of complainant, the latter were told that they were
workers of Canares and were there to construct a
piggery. Complainant complained to the barangay authorities in
Pinugay and narrated the incident but respondent Canares did not
appear before it and continued with the construction of the piggery in
the presence of armed men who were watching over the
construction. Complainant then went to respondent Villalon to
complain about the people of respondent Canares but nothing was
done.
Complainant then filed a case for ejectment against respondent
Canares. In his Reply however, the latter answered that the subject
property was already sold by complainant to respondent Canares in
the amount of P450,000.00 as evidenced by the Deed of Absolute Sale
of Real Property dated December 5, 1991 and notarized by
respondent Atty. Crispulo Ducusin. Complainant, however, averred
that he never sold the property, signed any document nor received
any money therefor, and he also denied having appeared before
respondent Ducusin who was the notary public for the Deed of
Absolute Sale. Complainant discovered that respondent Villalon
claimed that complainants father allegedly gave the subject property
to him (respondent Villalon) as evidenced by a document of sale
purportedly signed by complainant.
In his Comment,[4] respondent Villalon denied that allegations of the
complainant and in turn, he alleged that the property was given
voluntarily by Jose Ducat, Sr. to him out of close intimacy and for past
legal services rendered. Thereafter, respondent Villalon, with the
knowledge and consent of Jose Ducat, Sr., allowed the subject
property to be used by Andres Canares to start a piggery business
without any monetary consideration. A Deed of Sale of Parcel of Land
was then signed by Jose Ducat, Sr. to evidence that he has conveyed
the subject property to respondent Villalon with the name of
respondent Canares included therein as protection because of the
improvements to be introduced in the subject property. Upon
presenting the title covering the subject property, it was discovered
that the property was registered in the name of Jose Ducat, Jr. and not
Jose Ducat, Sr., but the latter told respondents Villalon and Canares
not to worry because the land was actually owned by him and that he
merely placed the name of his son, Jose Ducat, Jr. Jose Ducat, Sr. then
suggested that the subject property be transferred directly from Jose
Ducat, Jr. to respondent Canares; hence, he (Ducat, Sr.) got the title
and guaranteed that he would return the document already signed
and notarized, which he did the following day. According to
respondent Canares, the trouble began when Jose Ducat, Sr. came to
his office demanding to know why he was not allowed to cut the trees
inside the subject property by the caretaker of respondent Canares.
On January 21, 1993, Jose Ducat, Jr. wrote[5] to this Court and averred
that he neither signed the Deed of Sale covering the subject property
nor did he appear before the notary public Crispulo Ducusin, who
notarized the same. He averred that respondents Villalon and Ducusin
should be disbarred from the practice of law and respondent Villalon
be imprisoned for forging his signature and selling the subject
property without his consent.
In his Rejoinder[6], respondent Villalon denied the allegations of
complainant and maintained that he is a member of good standing of
the Integrated Bar and that he has always preserved the high
MAYORDO, M.A. LLB3
standards of the legal profession. Respondent Villalon expressed his
willingness to have the Deed of Sale examined by the National Bureau
of Investigation and reiterated that the subject property was orally
given to him by Jose Ducat, Sr. and it was only in October, 1991 that
the conveyance was reduced in writing. He added that the
complainant knew that his father, Jose Ducat, Sr., was the person who
signed the said document for and in his behalf and that this was done
with his consent and knowledge.
This Court referred[7] the case to the Integrated Bar of the Philippines
for investigation, report and recommendation.
On May 17, 1997, the IBP Board of Governors passed a resolution
adopting and approving the report and recommendation of its
Investigating Commissioner who found respondent Atty. Villalon
guilty, and recommended his suspension from the practice of law for
two (2) years and likewise directed respondent Atty. Villalon to deliver
to the complainant his TCT No. M-3023 within ten (10) days from
receipt of notice, otherwise, this will result in his disbarment.
The findings of IBP Investigating Commissioner Victor C. Fernandez are
as follows:
Complainant and his witness, Jose Ducat, Sr., testified in a
straightforward, spontaneous and candid manner. The sincerity and
demeanor they displayed while testifying before the Commission
inspire belief as to the truth of what they are saying. More
importantly, respondent failed to impute any ill-motive on the part of
the complainant and his witness which can impel them to institute the
instant complaint and testify falsely against him. To be sure, the
testimony of the complainant and his witness deserves the
Commissions full faith and credence.
Respondents evidence, on the other hand, leaves much to be
desired. His defense (that he considered himself the owner of the
subject property which was allegedly given to him by Jose Ducat, Sr.)
rings hollow in the face of a welter of contravening and
incontrovertible facts.
FIRST, the registered owner of the subject property is complainant
Jose Ducat, Jr. Accordingly, respondent (being a lawyer) knew or ought
to know that Jose Ducat, Sr. could not possibly give to him the said
property unless the former is duly authorized by the complainant
through a Special Power of Attorney. No such authorization has been
given.Moreover, Jose Ducat, Sr. has vigorously denied having given the
subject property to the respondent. This denial is not too difficult to
believe considering the fact that he (Jose Ducat, Sr.) is not the owner
of said property.
SECOND, being a lawyer, respondent knew or ought to know that
conveyance of a real property, whether gratuitously or for a
consideration, must be in writing. Accordingly, it is unbelievable that
he would consider himself the owner of the subject property on the
basis of the verbal or oral giving of the property by Jose Ducat, Sr. no
matter how many times the latter may have said that.
THIRD, the Deed of Sale of Parcel of Land (Exh. 1 for the respondent
and Exh. A-2 for the complainant) allegedly executed by Jose Ducat, Sr.
Page 27 of 29
PROBLEM AREAS in LEGAL ETHICS
in favor of respondent Atty. Arsenio Villalon and/or Andres Canares,
Jr. covering the subject parcel of land which respondent prepared
allegedly upon instruction of Jose Ducat, Sr. is of dubious character.As
earlier adverted to, Jose Ducat, Sr. is not the owner of said
property. Moreover, said Deed of Sale of Parcel of Land is a falsified
document as admitted by the respondent himself when he said that
the signature over the typewritten name Maria Cabrido (wife of Jose
Ducat, Sr.) was affixed by Jose Ducat, Sr. Being a lawyer, respondent
knew or ought to know that the act of Jose Ducat, Sr. in affixing his
wifes signature is tantamount to a forgery. Accordingly, he should
have treated the said Deed of Sale of Parcel of Land has (sic) a mere
scrap of worthless paper instead of relying on the same to
substantiate his claim that the subject property was given to him by
Jose Ducat, Sr. Again, of note is the fact that Jose Ducat, Sr. has
vigorously denied having executed said document which denial is not
too difficult to believe in the light of the circumstances already
mentioned.
FOURTH, the Deed of Absolute Sale of Real Property (Exh. 2 for the
respondent and Exh. A-3 for the complainant) allegedly executed by
Jose Ducat, Jr. in favor of Andres Canares, Jr. over the subject property
(which respondent claims he prepared upon instruction of Jose Ducat,
Sr.) is likewise of questionable character. Complainant Jose Ducat, Jr.
has vigorously denied having executed said document. He claims that
he has never sold said property to Andres Canares, Jr. whom he does
not know; that he has never appeared before Atty. Crispulo Ducusin to
subscribe to the document; and that he has never received the
amount of P450,000.00 representing the consideration of said
transaction. More importantly, the infirmity of the said Deed of
Absolute Sale of Real Property was supplied by the respondent no less
when he admitted that there was no payment of P450,000.00 and that
the same was placed in the document only to make it appear that the
conveyance was for a consideration. Accordingly, and being a lawyer,
respondent knew or ought to know the irregularity of his act and that
he should have treated the document as another scrap of worthless
paper instead of utilizing the same to substantiate his defense.[8]
After a careful consideration of the record of the instant case, it
appears that the findings of facts and observations of the Investigating
Commissioner, Integrated Bar of the Philippines, which were all
adopted by its Board of Governors, are well-taken, the same being
supported by the evidence adduced.
The ethics of the legal profession rightly enjoin lawyers to act with the
highest standards of truthfulness, fair play and nobility in the course of
his practice of law. A lawyer may be disciplined or suspended for any
misconduct, whether in his professional or private capacity, which
shows him to be wanting in moral character, in honesty, in probity and
good demeanor, thus rendering unworthy to continue as an officer of
the court.[9] Canon 7 of the Code of Professional Responsibility
mandates that a lawyer shall at all times uphold the integrity and
dignity of the legal profession. The trust and confidence necessarily
reposed by clients require in the lawyer a high standard and
appreciation of his duty to them. To this end, nothing should be done
by any member of the legal fraternity which might tend to lessen in
any degree the confidence of the public in the fidelity, honesty, and
integrity of the profession.[10]
It has been established that the subject parcel of land, with an area of
five (5) hectares located in Barrio Pinugay, Antipolo, Rizal, is owned by
and registered in the name of complainant herein, Jose Ducat,
Jr. Respondent Villalon insists nonetheless that the property was orally
given to him by complainants father, Jose Ducat, Sr., allegedly with the
complete knowledge of the fact that the subject property belonged to
his son, Jose Ducat, Jr. It is basic law, however, that conveyance or
transfer of any titled real property must be in writing, signed by the
registered owner or at least by his attorney-in-fact by virtue of a
proper special power of attorney and duly notarized. Respondent
Villalon, as a lawyer, is presumed to know, or ought to know, this
process. Worse, when the transfer was first reduced in writing in
October, 1991 per Deed of Sale of Parcel of Land,[11] purportedly in
favor of Atty. Arsenio C. Villalon and/or Andres Canares, Jr.,
respondent Villalon knew that it was Jose Ducat, Sr. who signed the
said document of sale without any Special Power of Attorney from the
registered owner thereof, Jose Ducat, Jr.; and that Jose Ducat, Sr. also
signed it for his wife, Maria Cabrido, under the word Conforme. As
regards the subsequent Deed of Absolute Sale of Real Property dated
December 5, 1991, covering the same property, this time purportedly
in favor of Andres Canares, Jr. only, respondent Villalon admitted that
there was in fact no payment of P450,000.00 and that the said amount
was placed in that document only to make it appear that the
conveyance was for a consideration.
All these taken together, coupled with complainant Jose Ducat, Jr.s
strong and credible denial that he allegedly sold the subject property
to respondent Villalon and/or Andres Canares, Jr. and that he allegedly
appeared before respondent notary public Ducusin, convince us that
respondent Villalons acts herein complained of which constitute gross
misconduct were duly proven.
Public confidence in law and lawyers may be eroded by the
irresponsible and improper conduct of a member of the Bar. Thus,
every lawyer should act and comport himself in such a manner that
would promote public confidence in the integrity of the legal
profession. Members of the Bar are expected to always live up to the
standards of the legal profession as embodied in the Code of
Professional Responsibility inasmuch as the relationship between an
attorney and his client is highly fiduciary in nature and demands
utmost fidelity and good faith.[12]
We find, however, the IBPs recommended penalty of two (2) years
suspension to be imposed upon respondent Atty. Villalon too severe in
the light of the facts obtaining in the case at bar. In Cesar V. Roces vs.
Atty. Jose G. Aportadera,[13] this Court suspended therein respondent
Atty. Aportadera for a period of two (2) years from the practice of law
for two main reasons:
(i)....His dubious involvement in the preparation and notarization of the
falsified sale of his clients property merits the penalty of suspension
imposed on him by the IBP Board of Governors; and
(ii)....The NBI investigation reveals that: (1) respondent misrepresented
himself to Gregorio Licuanan as being duly authorized by Isabel Roces
to sell her property; (2) it was respondent who prepared the various
deeds of sale over Isabels subdivision lots; (3) Isabel was already
confined at a hospital in Metro Manila on January 4, 1980, the deeds
MAYORDO, M.A. LLB3
date of execution; (4) respondent knew that Isabel was hospitalized in
Metro Manila when he subscribed the deed; (5) he knew that Isabel
died in Metro Manila soon after her confinement; and (6) he did not
give the seller a copy of the questioned deed of sale.[14]
Unlike the circumstances prevailing in the said case of Aportadera, the
record does not show that respondent Villalon had any direct
participation in the notarization by respondent notary public Crispulo
Ducusin of the Deed of Absolute Sale of Real Property dated
December 5, 1991,[15] which was supposedly signed by complainant
Jose Ducat, Jr. who, however, strongly denied having signed the
same. The earlier Deed of Sale of Parcel of Land dated this ___day of
October 1991, allegedly signed by Jose S. Ducat, Sr., as vendor,
covering the same property, in favor of respondent Arsenio S. Villalon
and/or Andres Canares, Jr. was not notarized. The record also shows
that Jose Ducat, Sr. and complainant Jose Ducat, Jr. are father and son
and that they live in the same house at 912 Leo Street, Sampaloc,
Manila. It is not also disputed that respondent Villalon has been the
lawyer for a number of years of the family of Jose Ducat, Sr.
WHEREFORE, respondent ATTY. ARSENIO C. VILLALON, JR. is hereby
found guilty of gross misconduct, and he is SUSPENDED from the
practice of law for a period of ONE (1) YEAR with a warning that a
repetition of the same or similar act will be dealt with more
severely. Respondent Villalon is further directed to deliver to the
registered owner, complainant Jose Ducat Jr., the latters TCT No. M-
3023 covering the subject property within a period of sixty (60) days
from receipt of this Decision, at his sole expense; and that failure on
his part to do so will result in his disbarment.
Let a copy of this Decision be attached to Atty. Villalons personal
record in the Office of the Bar Confidant and copies thereof be
furnished the Integrated Bar of the Philippines.
SO ORDERED.
A.C. No. 6288 June 16, 2006
MARILI C. RONQUILLO, ALEXANDER RONQUILLO and JON
ALEXANDER RONQUILLO, represented by their Attorney-in-Fact
SERVILLANO A. CABUNGCAL, Complainants, vs. ATTY. HOMOBONO
T. CEZAR, Respondent.
DECISION
PUNO, J.:
Complainants seek the disbarment or suspension of respondent from
the practice of law for unlawful, dishonest, immoral and deceitful
conduct. They allege that respondent sold them a piece of property
over which he has no right nor interest, and that he refuses to return
to them the amount they have paid him for it.
Complainant Marili C. Ronquillo is a Filipino citizen currently residing
in Cannes, France, together with her minor children, Alexander and
Jon Alexander.
In May 1999, complainants and respondent entered into a Deed of
Assignment.1 For the price of P1.5M, respondent transferred, in favor
of the complainants, his rights and interests over a townhouse unit
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PROBLEM AREAS in LEGAL ETHICS
and lot, located at 75 Granwood Villas Subd., BF Homes, Quezon City.
Respondent also obligated himself to deliver to complainants a copy of
the Contract to Sell he executed with Crown Asia, the townhouse
developer, dated April 19, 1996. Upon full payment of the purchase
price, respondent further undertook to have Crown Asia execute a
Deed of Absolute Sale over the property in favor of the complainants.
Respondent received from complainants P750,000.00 upon execution
of the Deed of Assignment. The balance was to be paid by
complainants in four equal quarterly installments of P187,500.00 each.
Thus, complainants issued in favor of respondent four postdated
checks in the amount of P187,500.00 each. Respondent was able to
encash the first check dated August 17, 1999.2
Complainants subsequently received information from Crown Asia
that respondent has not paid in full the price of the townhouse at the
time he executed the Deed of Assignment. Respondent also failed to
deliver to complainants a copy of the Contract to Sell he allegedly
executed with Crown Asia. For these reasons, complainant Marili
Ronquillo ordered the bank to stop payment on the second check she
issued to respondent in the amount of P187,500.00.
On March 6, 2000, complainants, through their counsel, wrote
respondent, informing him that they were still willing to pay the
balance of the purchase price of the townhouse on the condition that
respondent work on Crown Asia’s execution of the Deed of Absolute
Sale in their favor. In the alternative, complainants demanded the
return of the amount of P937,500.00, plus legal interest, within ten
days.3 The amount of P937,500.00 represents the P750,000.00 down
payment and the first quarterly installment of P187,500.00 which
complainants paid respondent.
In a letter dated May 2, 2000, addressed to complainants,4 respondent
claimed that he was "working now on a private project which
hopefully will be realized not long from now," and requested for "a
period of twenty days from May 15, 2000 within which to either
completely pay Crown Asia or return the money at your
(complainants’) option." The period lapsed but respondent did not
make good his promise to pay Crown Asia in full, or return the amount
paid by complainants.
On February 21, 2002, complainants’ counsel sent respondent a
second letter5 demanding the return of the amount of P937,500.00,
including legal interest, for failing to comply with his promise. The
demand was unheeded.
Hence, this administrative complaint6 that respondent engaged in
unlawful, dishonest, immoral or deceitful conduct. Allegedly,
respondent violated his oath under Rule 1.01, Canon 1 of the Code of
Professional Responsibility and he ought to be disbarred or suspended
from the practice of law.
Integrated Bar of the Philippines (IBP) Investigating Commissioner
Milagros V. San Juan, to whom the instant disciplinary case was
assigned for investigation, report and recommendation, found
respondent guilty of dishonest and deceitful conduct proscribed under
Rule 1.01, Canon 1 of the Code of Professional Responsibility. In her
Report dated October 9, 2003, she recommended that respondent be
suspended from the practice of law for a period of three (3) years. The
IBP Board of Governors, through Resolution No. XVI-2003-226, dated
October 25, 2003, approved the recommendation of Commissioner
San Juan.
We agree.
Under Section 27, Rule 138 of the Revised Rules of Court, a member of
the Bar may be disbarred or suspended on any of the following
grounds: (1) deceit; (2) malpractice or other gross misconduct in
office; (3) grossly immoral conduct; (4) conviction of a crime involving
moral turpitude; (5) violation of the lawyer’s oath; (6) willful
disobedience of any lawful order of a superior court; and (7) willfully
appearing as an attorney for a party without authority. Rule 1.01,
Canon 1 of the Code of Professional Responsibility provides that "A
lawyer shall not engage in unlawful, dishonest, immoral or deceitful
conduct." "Conduct," as used in this rule, does not refer exclusively to
the performance of a lawyer’s professional duties. This Court has
made clear in a long line of cases7 that a lawyer may be disbarred or
suspended for misconduct, whether in his professional or private
capacity, which shows him to be wanting in moral character, honesty,
probity and good demeanor, or unworthy to continue as an officer of
the court.
In the instant case, respondent may have acted in his private capacity
when he entered into a contract with complainant Marili representing
to have the rights to transfer title over the townhouse unit and lot in
question. When he failed in his undertaking, respondent fell short of
his duty under Rule 1.01, Canon 1 of the Code of Professional
Responsibility. It cannot be gainsaid that it was unlawful for
respondent to transfer property over which one has no legal right of
ownership. Respondent was likewise guilty of dishonest and deceitful
conduct when he concealed this lack of right from complainants. He
did not inform the complainants that he has not yet paid in full the
price of the subject townhouse unit and lot, and, therefore, he had no
right to sell, transfer or assign said property at the time of the
execution of the Deed of Assignment. His acceptance of the bulk of
the purchase price amounting to Nine Hundred Thirty-Seven Thousand
Five Hundred Pesos (P937,500.00), despite knowing he was not
entitled to it, made matters worse for him.
Respondent’s adamant refusal to return to complainant Marili
Ronquillo the money she paid him, which was the fruit of her labor as
an Overseas Filipino Worker for ten (10) years, is morally
reprehensible. By his actuations, respondent failed to live up to the
strict standard of morality required by the Code of Professional
Responsibility and violated the trust and respect reposed in him as a
member of the Bar, and an officer of the court.
Respondent’s culpability is therefore clear. He received a letter from
complainants’ counsel demanding the execution of the Deed of
Absolute Sale in favor of the complainants, or, in the alternative, the
return of the money paid by complainants. In reply to said letter,
respondent acknowledged his obligation, and promised to settle the
same if given sufficient time, thus:
xxx
I am working now on a private project which hopefully will be realized
not long from now but I need a little time to fix some things over. May
I please request for a period of 20 days from May 15, 2000 within
MAYORDO, M.A. LLB3
which to either completely pay Crown Asia or return the money at
your option. (Emphasis supplied)
In no uncertain terms, respondent admitted not having full ownership
over the subject townhouse unit and lot, as he has yet to completely
pay Crown Asia. Respondent even failed to produce the Contract to
Sell he allegedly executed with Crown Asia over the subject unit,
which would show the extent of his right of ownership, if any, over the
townhouse unit and lot in question.
To be sure, complainants gave respondent sufficient time to fulfill his
obligation. It was only after almost two years had passed, after
respondent promised to pay Crown Asia or return to complainants the
amount they paid him, that complainants sent respondent a second
letter8 demanding solely the return of the amount of P937,500.00,
including legal interest. By this time, it was indubitable that
respondent would not be able to perform his end of their agreement.
The practice of law is not a right but a privilege. It is granted only to
those of good moral character.9 The Bar must maintain a high
standard of honesty and fair dealing.10 Lawyers must conduct
themselves beyond reproach at all times, whether they are dealing
with their clients or the public at large,11 and a violation of the high
moral standards of the legal profession justifies the imposition of the
appropriate penalty, including suspension and disbarment.12
Be that as it may, we cannot grant complainants’ prayer that
respondent be directed to return the money he received from them in
the amount of P937,500.00. Disciplinary proceedings against lawyers
do not involve a trial of an action, but rather investigations by the
court into the conduct of one of its officers. The only question for
determination in these proceedings is whether or not the attorney is
still fit to be allowed to continue as a member of the Bar.13 Thus, this
Court cannot rule on the issue of the amount of money that should be
returned to the complainants.
IN VIEW WHEREOF, respondent Atty. Homobono T. Cezar
is SUSPENDED from the practice of law for a period of THREE (3)
YEARS, effective immediately. Let a copy of this Decision be furnished
the Office of the Bar Confidant, the Integrated Bar of the Philippines,
and all courts for their information and guidance.
SO ORDERED.
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