Basic Legal Ethics Digest

IN RE CUEVAS 285 SCRA 59 – 59 – Legal  Legal Ethics – Ethics – Lawyer’s Oath In 1991, a neophyte died during the initiation rites of Lex Talionis Fraternitas in the San Beda College of Law. Arthur Cuevas Jr was one of the persons charged (with murder) for the death of the neophyte. He pleaded guilty and was later convicted to the lesser crime of Reckless Imprudence Resulting in Homicide. Thereafter, Cuevas was granted probation and he continued taking up law. In 1995, he was discharged from probation. In 1996, the Supreme Court allowed Cuevas to take the bar on the condition that in case he will pass, his oath t aking will have to be approved by the Supreme Court first. Cuevas did pass the 1996 bar exams and in 1997, he filed a petition before the Supreme Court asking the latter latter to allow him to t ake the Lawyer’s Oath. ISSUE: Whether or not Cuevas may be allowed to take the Lawyer’s Oath. HELD: Yes. The Supreme Court is duty bound to prevent the entry of undeserving aspirants, as well as to exclude those who have been admitted but have become a disgrace to the profession. Cuevas’ participation in the senseless killing of the neophyte is highly reprehensible however, the Supreme Court is willing to give him a chance considering that Cuevas has r eceived various certifications regarding his good behavior while on probation. The Supreme Court also stressed that the lawyer’s oath is not a mere formality recited for a few minutes in the glare of flashing cameras and before the presence of select witnesses. As a lawyer, Cuevas shall be expected to abide by the oath strictly and to conduct himself beyond reproach at all times. As a lawyer he will now be in a better position to render legal and other services to t he more unfortunate members of society.

SEBASTIAN vs CALIS MARILOU SEBASTIAN, comp lainant, vs  . ATTY. DOROTHEO CALIS, r e s p o n d e n t . DECISION : PER CURIAM  For unlawful, dishonest, immoral or deceitful conduct as well as violation of his oath as lawyer, respondent Atty. Dorotheo Calis faces disbarment. The facts of this administrative case, as found by the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP), (IBP), [1] in its Report, are as follows: Complainant (Marilou Sebastian) alleged that sometime in November, 1992, she was referred to the respondent who promised to process all necessary documents required for complainants trip to the USA for a fee of One Hundred Fifty Thousand Pesos (P150,000.00).

On December 1, 1992 the complainant made a partial payment of the required fee in the amount of Twenty Thousand Pesos (P20,000.00), which was received by Ester Calis, wife of the respondent for which a receipt was issued. From the period of January 1993 to May 1994 complainant had several conferences with the respondent regarding the processing of her travel documents. To facilitate the processing, respondent demanded an additional amount of Sixty Five Thousand Pesos (P65,000.00) and prevailed upon complainant to resign from her job as stenographer with the Commission on Human Rights. On June 20, 1994, to expedite the processing of her travel documents complainant issued Planters Development Bank Check No. 12026524 in the amount of Sixty Five Thousand Pesos (P65,000.00) in favor of Atty. D. Calis who issued a receipt. After receipt of said amount, respondent furnished the complainant copies of Supplemental to U.S. Nonimmigrant Visa Application (Of. 156) and a list of questions which would be asked during int erviews. When complainant inquired about her passport, Atty. Calis informed the former that she will be assuming the name Lizette P. Ferrer married to Roberto Ferrer, employed as sales manager of Matiao Marketing, Inc. the complainant was furnished documents to support her assumed identity. Realizing that she will be travelling with spurious documents, the complainant demanded the return of her money, however she was assured by respondent that there was nothing to worry about for he has been engaged in the business for quite sometime; with the promise that her money will be refunded if something goes wrong. Weeks before her departure respondent demanded for the payment of the required fee which was paid by complainant, but the corresponding receipt was not given to her. When complainant demanded for her passport, respondent assured the complainant that it will be given to her on her departure which was scheduled on September 6, 1994. On said date complainant was given her passport and visa issued in the name of Lizette P. Ferrer. Complainant left together with Jennyfer Belo and a certain Maribel who were also recruits of the respondent. Upon arrival at the Singapore International International Airport, complainant together with Jennyfer Belo and Maribel were apprehended by the Singapore Airport Officials for carrying spurious travel documents; Complainant contacted the respondent through overseas telephone call and informed him of by her predicament. From September 6 to 9, 1994, complainant was detained at Changi Prisons in Singapore. On September 9, 1994 the complainant was deported back to the Philippines and respondent fetched her from the airport and brought her to his residence at 872-A Tres Marias Street, Sampaloc, Manila. Respondent to ok complainants passp ort with a promise that he will secure new travel documents for complainant. Since complainant complainant 1

opted not to pursue with her travel, she demanded for the return of her money in the amount of One Hundred Fifty Thousand Pesos (P150,000.00).

provides that a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

On June 4, 1996, June 18 and July 5, 1996 respondent made partial refunds of P15,000.00; P6,000.00; and P5,000.00.

WHEREFORE, it is respectfully recommended that ATTY. DOROTHEO CALIS be CALIS be SUSPENDED as a member of the bar until he fully refunds the fees paid to him by complainant and comply with the order of the Commission on Bar Discipline pursuant to Rule 139-B, Sec. 6 of the Rules of Court . [4]

On December 19, 1996 the complainant through counsel, sent a demand letter to respondent for the refund of a remaining balance of One Hundred Fourteen Thousand Pesos (P114,000.00) which was ignored by the respondent. Sometime in March 1997 the complainant went to see the respondent, however his wife informed her that the respondent was in Cebu attending to business matters. In May 1997 the complainant again tried to see the respondent however she found out that the respondent had transferred to an unknown residence apparently with intentions to evade responsibility.  Attached to the complaint are the photocopies of receipts for the amount paid by complainant, applications for U.S.A. Visa, questions and answers asked during interviews; receipts acknowledging partial refunds of fees paid by the complainant together with demand letter for the remaining balance of One Hundred Fourteen Thousand Pesos (P114,000.00); which was received by the respondent. respondent.[2] Despite several notices sent to the respondent requiring an answer to or comment on the complaint, there was no response. Respondent likewise failed to attend the scheduled hearings of the case. No appearance whatsoever was made by the respondent. respondent. [3] As a result of the inexplicable failure, if not obdurate refusal of the respondent to comply with the orders of the Commission, the investigation against him proceeded ex parte. parte. On September 24, 1998, the Commission on Bar Discipline issued its Report on the case, finding that: It appears that t he services of the respondent was engaged for t he purpose of securing a visa for a U.S.A. travel of complainant. There was no mention of job placement or employment abroad, hence it is not correct to say that the respondent engaged in illegal recruitment. The alleged proposal of the respondent to secure the U.S.A. visa for the complainant under an assumed name was accepted by the complainant which negates deceit on the part of t he respondent. Noted likewise is the partial refunds made by the respondent of the fees paid by the complainant. However, the transfer of residence without a forwarding address indicates his attempt to escape responsibility. responsibility. In the light of the foregoing, we find that the respondent is guilty of gross misconduct for violating Canon 1 Rule 1.01 of the Code of Professional Responsibility which

Pursuant to Section 12, Rule 139-B of the Rules of Court, this administrative case was elevated to the IBP Board of Governors f or review. The Board in a Resolution Resolution[5] dated December 4, 1998 resolved to adopt and approve with amendment the recommendation of the Commission. Commission. The Resolution of the Board states: RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner in the aboveentitled case, herein made part of this Resolution/Decisions as Annex A; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, with an amendment that Respondent Atty. Dorotheo Calis be DISBARRED  DISBARRED   for having been found guilty of Gross Misconduct for engaging in unlawful, dishonest, immoral or deceitful conduct. We are now called upon to evaluate, for final action, the IBP recommendation contained in its Resolution dated December December 4, 1998, with its supporting report.  After examination and careful consideration of t he records in this case, we find the resolution passed by the Board of Governors of the IBP in order. We agree with the finding of the Commission that the charge of illegal recruitment was not established because complainant failed to substantiate her allegation on the matter. In fact she did not mention any particular job or employment promised to her by the respondent. The only service of the respondent mentioned by the complainant was that of securing a visa for the United States. We likewise concur with the IBP Board of Governors in its Resolution, that herein respondent is guilty of gross misconduct by engaging in unlawful, dishonest, immoral or deceitful conduct contrary to Canon 1, Rule 101 of the Code of Professional Responsibility. Respondent deceived the complainant by assuring her that he could give her visa and travel documents; that despite spurious documents nothing untoward would happen; that he guarantees her arrival in the USA and even promised to refund her the fees and expenses already paid, in case something went wrong. All for material gain. Deception and other fraudulent acts by a lawyer are disgraceful and dishonorable. They reveal moral flaws in a lawyer. They are unacceptable practices. A lawyers relationship with others should be characterized by the highest degree of good faith, fairness and candor. This is t he essence of the lawyers oath. The lawyers oath is not mere facile words, drift and hollow, but a sacred trust that must be upheld and keep inviolable .[6] The nature of the office of an attorney requires that he should be a person of good moral character . [7] This requisite is not only a condition precedent to admission to the practice of law, its continued possession is also essential for remaining in the 2

practice of law. law. [8] We have sternly warned that any gross misconduct of a lawyer, whether in his professional or private capacity, puts his moral character in serious doubt as a member of t he Bar, and renders him unfit to continue in the practice of law. [9]

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It is dismaying to note how respondent so cavalierly jeopardized jeopardized the life and liberty of complainant when he made her travel with spurious documents. How often have victims of unscrupulous unscrupulous travel agents and illegal recruiters been imprisoned in foreign lands because they were provided fake travel documents? Respondent Respondent totally disregarded the personal safety of the complainant complainant when he sent her abroad on false assurances. Not only are respondents acts illegal, they are also detestable from the moral point of view. His utter lack of moral qualms and scruples is a real threat to the Bar and the administration of justice.

4.

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. privilege. [10] We must stress that m embership in the bar is a privilege burdened with conditions. A lawyer has the privilege to practice law only during good behavior. He can be deprived of his license for misconduct ascertained and declared by judgment of the court after giving him the opportunity to be heard. [11] Here, it is worth noting that the adamant refusal of respondent to comply with the orders of the IBP and his total disregard of the summons issued by the IBP are contemptuous acts reflective of unprofessional conduct. Thus, we find no hesitation in removing respondent Dorotheo Calis from the Roll of Attorneys for his unethical, unscrupulous and unconscionable conduct toward complainant. complainant. Lastly, the grant in favor of the complainant for the recovery of the P114,000.00 she paid the respondent is in order . [12] Respondent not only unjustifiably refused to return the complainants money upon demand, but he stubbornly persisted in holding on to it, unmindful of the hardship and humiliation suffered by the complainant. WHEREFORE, WHEREFORE , respondent Dorotheo Calis is hereby DISBARRED and his name is ordered stricken fr om the Roll of Attorneys. Let a copy of this Decision be FURNISHED FURNISHED to the I BP and the Bar Confidant to be spr ead on the personal records of respondent. Respondent is likewise ordered to pay to the complainant immediately the amount of One Hundred Fourteen Thousand (P114,000.00) Pesos representing the amount he collected from her. SO ORDERED. CAYETANO VS MONSOD Legal Ethics – Ethics – Practice  Practice of Law In 1991, Christian Monsod was appointed as the Chairman of the Commission on Elections. His appointment was affirmed by the Commission on Appointments. Monsod’s appointment appointment was opposed by Renato Cayetano on t he ground that he does not qualify for he failed to meet the Constitutional requirement which provides that the chairman of the COMELEC should have been engaged in the practice law for at least ten years.

5.

Passed the bar in 1960 with with a rating of 86.55%. Immediately after passing, worked in his father’s law firm for one year. Thereaft er, until 1970, he went went abroad where he had a degree in economics and held various positions in various foreign corporations. In 1970, he returned to the Philippines Philippines and held held executive jobs for for various local corporations until 1986. In 1986, he became a member of the Constitutional Constitutional Commission. Commission. ISSUE: Whether or not Monsod qualifies as chairman of the COMELEC. COMELEC. What constitutes practice of law? HELD: Yes. Atty. Monsod’s past work experiences as a lawyer -economist, -economist, a lawyermanager, a lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both the rich and the poor —  verily more than satisfy the constitutional r equirement equirement —  that he has been engaged in the practice of law for at least ten years.  As noted by various various authorities, the practice practice of law is is not limited to court appearances. appearances. The members of the bench and bar and the informed laymen such as businessmen, know that in most developed societies today, substantially more legal work is transacted in law offices than in the courtrooms. General practitioners of law who do both litigation and non-litigation work also know that in most cases they find themselves spending more time doing what is loosely described as business counseling than in trying cases. In the course of a working day the average general practitioner wig engage in a number of legal t asks, each involving different legal doctrines, legal skills, legal processes, legal institutions, clients, and other interested parties. Even the increasing numbers of lawyers in specialized practice wig usually perform at least some legal services outside their specialty. By no means will most of this work involve litigation, unless the lawyer is one of the relatively rare types —  a litigator who specializes specializes in this work to the exclusion of much else. Instead, the work will require the lawyer to have mastered the full range of traditional lawyer skills of client counseling, advice-giving, advice-giving, document drafting, and negotiation.

IN RE DAVID Respondent was suspended for bad practices in the exercise of his profession as a lawyer for a period of five years from the November 9, 1949. The defendant admits this suspension in `his written report filed on March 17, 1951, yet he cont inued to exercise the profession within the period of suspension, November 9, 1949 to November 8, 1954. On Feb 28 1950 the respondent file a claim in the case of Tan Tek vs Sy not as a lawyer but as an agent. (For and in behalf of Tan Tek Sy) CFI decided in favor of Tan Tek, subsequently Atty Felix David filed a motion for execution. In another civil case of the CFI called Malayan Saw Mill, Inc vs Tolentino, defendant filed a brief for an order to demolish homes. “In order - says the appeal - to show That I did not Have the intention to disregard the suspension of the Supreme Court, I did not With The Knowledge of Tan Tek Identified

Monsod’s track record track record as a l awyer: 3

Sy Even myself as the attorney for the Appelles But In Good Faith, I signed for and in Behalf of the appellee Without Designating That I am Practicing as attorney-at-law.” attorney-at-law.” ISSUE: Whether the acts of Atty Felix David is tantamount to practice of law. HELD: Yes. Neither can he allow his name to appear in such pleading by itself or as part of firm name under the signature of another qualified lawyer because the signature of an agent amounts to signing of a non-qualified senator or congressman, the office of an attorney being originally an agency, and because he will, by such act, be appearing in court or quasi-judicial or administrative body in violation of the constitutional restriction. “He cannot do indirectly what the Constitution prohibits directly.”

existence of facts to be established in accordance with the law of evidence and procedure. The practice of law is not limited to the conduct of cases or litigation in court but also embraces all other matters connected with the law and any work involving the determination by the legal mind of the legal effects of facts and conditions. Furthermore, the law provides that any party may appeal to the Supreme Court from any final order or decision of the director. Thus, if the transactions of business in the Patent Office involved exclusively or mostly technical and scientific knowledge and training, then logically, the appeal should be taken not to a court or judicial body, but rather to a board of scientists, engineers or technical men, which is not the case. PEOPLE VS VILLANUEVA 14 SCRA 109 – 109 – Legal  Legal Ethics – Ethics – Practice  Practice of Law – Law –   Isolated Appearance

PLA vs AGRAVA PHILIPPINE LAWYER'S ASSOCIATION v s.  CELEDONIO AGRAVA G.R. No. L-12426. February 16, 1959. FACTS: On may 27, 1957, respondent Director issued a circular announcing that he had scheduled an examination for the purpose of determining who are qualified to practice as patent attorneys before the Philippines Patent Office. According to the circular, members of the Philippine Bar, engineers and other persons with sufficient scientific and technical training are qualified to take the said examination. The petitioner contends that one who has passed the bar examination sand is licensed by the Supreme Court to practice law in the Philippines and who is in good standing is duly qualified to practice before the Philippines Patent Office and that the respondent Director’s holding an examination for the purpose is in excess of his jurisdiction and is in violation of the law.The respondent, in reply, maintains the prosecution of patent cases “ does not involve entirely or purely the practice of law but includes the application of scientific and technical knowledge and training as a matter of actual practice so as to include engineers and other individuals who passed the examination can practice before the Patent office. Furthermore, he stressed that for the long time he is holding tests, this is the first time that his right has been questioned formally.

In 1959, Villanueva was charged with Malicious Mischief in the m unicipality of Alaminos in Laguna. In said case, the private offended party asked his lawyer friend, Ariston Fule to prosecute said case. Apparently, Fule was the fiscal in San Pablo, Laguna. Villanueva the opposed the appearance of Fule as counsel for the offended party as he said that according to the Rules of Court when an attorney had been appointed to the position of Assistant Provincial Fiscal or City Fiscal and therein qualified, by operation of law, he ceased to engage in private law practice. ISSUE: Whether or not Ariston Fule is engaged in private law practice. HELD: No. Private practice of law implies that one must have presented himself to be in the active and continued practice of the legal profession and that his professional services are available to the public for a compensation, as a source of his livelihood or in consideration of his said services. In the case at bar, Fule is not being compensated but rather he’s doing it for free for his friend who happened to be the offended party. Practice is more than an isolated appearance, for it consists in frequent or customary actions, a succession of acts of the same kind. In other words, it is frequent habitual exercise. Further, the fact that the Secretary of Justice approved Fule’s appearance for his friend should be given credence.

ULEP VS LEGAL CLINIC INC 223 SCRA 378 – 378 – 42  42 SCAD 287 – 287 – Legal  Legal Ethics – Ethics – Advertisement  Advertisement in the Legal Profession  – Practice  – Practice of Law 

ISSUE: Whether or not the appearance before the patent Office and the preparation and the prosecution of patent application, etc., constitutes or is included in the practice of law.

HELD: The Supreme Court held that the practice of law includes such appearance before the Patent Office, the representation of applicants, oppositors, and other persons, and the prosecution of their applications for patent, t heir opposition thereto, or the enforcement of their rights in patent cases. Moreover, the practice before the patent Off ice involves the interpretation and application of other laws and legal principles, as well as the

In 1984, The Legal Clinic was formed by Atty. Rogelio Nogales. Its aim, according to Nogales was to move toward specialization and to cater to clients who cannot afford the services of big law firms. Now, Atty. Mauricio Ulep filed a complaint against The Legal Clinic because of the latter’s advertisements which contain the following:

SECRET MARRIAGE? P560.00 for a valid marriage. 4

Info on DIVORCE. ABSENCE. ANNULMENT. VISA.

 Anent the issue on the validity of the questioned advertisements, the Code of Professional Responsibility provides that a lawyer in making known his legal services shall use only true, honest, fair, dignified and objective information or statement of facts. The standards of the legal profession condemn the lawyer’s advertisement of his talents. A lawyer cannot, without violating the ethics of his profession, advertise his talents or skills as in a manner similar to a merchant advertising his goods. Further, the advertisements of Legal Clinic seem to promote divorce, secret marriage, bigamous marriage, and other circumventions of law which their experts can facilitate. Such is highly reprehensible.

THE LEGAL CLINIC, INC. Please call: 521-0767; 521-7232; 522-2041 8:30am – 6:00pm 7 th Flr. Victoria Bldg., UN Ave., Manila GUAM DIVORCE DON PARKINSON

The Supreme Court also noted which forms of advertisement are allowed. The best advertising possible for a lawyer is a well-merited reputation for professional capacity and fidelity to trust, which must be earned as the outcome of character and conduct. Good and efficient service to a client as well as to the community has a way of publicizing itself and catching public attention. That publicity is a normal by-product of effective service which is right and proper. A good and reputable lawyer needs no artificial stimulus to generate it and to magnify his success. He easily sees the difference between a normal by-product of able service and the unwholesome result of propagand a. The Supreme Court also enumerat ed the following as allowed forms of advertisement:

 An attorney in Guam is giving FREE BOOKS on Guam Divorce through The Legal Clinic beginning Monday to Friday during office hours. Guam divorce. Annulment of Marriage. Immigration Problems, Visa Ext. Quota/Nonquota Res. & Special Retiree’s Visa. Declaration of Absence. Remarr iage to Filipina Fiancees. Adoption. Investment in the Phil. US/Foreign Visa for Filipina Spouse/Children. Call Marivic. THE LEGAL CLINIC, INC. 7 th Flr. Victoria Bldg., UN Ave., Manila nr. US Embassy Tel. 521-7232, 521-7251, 522-2041, 521-0767 It is also alleged that The Legal Clinic published an article entitled “Rx for Legal Problems” in Star Week of Philippine Star wherein Nogales stated that they The Legal Clinic is composed of specialists that can take care of a client’s problem no matter how complicated it is even if it is as complicated as the Sharon Cuneta-Gabby Concepcion situation. He said that he and his staff of lawyers, who, like doctors, are “specialists” in various fields, can take care of it. The Legal Clinic, Inc. has specialists in taxation and criminal law, medico-legal problems, labor, litigation and family law. These specialists are backed up by a battery of paralegals, counselors and attorneys.  As for its advertisement, Nogales said it should be allowed in view of the jurisprudence in the US which now allows it (John Bates vs The State Bar of Arizona). And that besides, the advertisement is merely making known to the public the services that The Legal Clinic offers. ISSUE: Whether or not The Legal Clinic is engaged in the practice of law; whether such is allowed; whether or not its advertisement may be allowed. HELD: Yes, The Legal Clinic is engaged in the practice of law however, such practice is not allowed. The Legal Clinic is composed mainly of paralegals. The services it offered include various legal problems wherein a client may avail of legal services from simple documentation to complex litigation and corporate undertakings. Most of these services are undoubtedly beyond the domain of paralegals, but rather, are exclusive functions of lawyers engaged in the practice of law. Under Philippine jurisdiction however, the services being offered by Legal Clinic which constitute practice of law cannot be performed by paralegals. Only a person duly admitted as a member of the bar and who is in good and regular standing, is entitled to practice law.

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Advertisement in a reputable law list Use of ordinary simple professional card Listing in a phone directory but without designation as to his specialization CUI vs CUI CUIVSCUIFACTS: Jesus and Antonio are the legitimate children of Don Mariano Cui and Doña Antonia Perales who died intestate in1939. Jesus alleged that during the marriage of Don Mariano and Dona Antonia, their parents acquired certain properties inthe City of Cebu, namely, Lots Nos. 2312, 2313 and 2319. Upon the death of their mother, theproperties were placed under the administrationof their dad.that while the latter was 84 years of age, Antonio by means of deceit, secured the transfer to themselves the said lotswithout any pecuniary consideration; that in the deed of sale executed on March 8, 1946, Rosario Cui appeared as one of the vendees, but on learning of this fact she subsequently renounced her rights under the sale and returned her portion toDon Mariano Cui by executing a deed of resale in his favor on October 11, 1946; that defendants, fraudulently and with thedesire of enriching themselves unjustly at the expense of their father, Don Mariano Cui, and of their brothers and co-heirs,secured a loan of P130,000 from the Rehabilitation properties, and with the loan thus obtained, defendants constructedthereon an apartment building of strong materials consisting of 14 doors, valued at approximately P130,000 and another building on the same parcels of land, which buildings were leased to some Chinese commercial firms a monthly rental of P7,600, which defendants have collected and will continue to collect to the prejudice of the plaintiffs;Jesus alleged that the sale should be invalidated so far as the portion of the propert y sold to Antonio Cui is concer ned, for the reason that when that sale was effected,  Antonio was then acting as the agent or administratorof the properties of DonMariano Cui.Jesus lays stress on the power of attorney Exhibit L which was executed by Don Mariano in favor of Antonio Cui on March 5

2,1946, wherein the former has constituted the latter as his "true and lawful attorney" to perform in his name and that of theintestate heirs of Doña Antonia Perales. ISSUE : WON the sale of the property to Antonio was valid. HELD : YES.While under article 1459 of the old Civil Code an agent or administrator is disqualified from purchasing property in his handsfor sale or management, and, in this case, the property in question was sold to Antonio Cui while he was already the agentor administrator of the properties of Don Mariano Cui, we however believe that this question cannot now be raised or invoked. The prohibition of the law is contained in article 1459 of the old Civil Code, but this prohibition has already beenremoved. Under the provisions of article 1491, section 2, of the new Civil Code, an agent may now buy property placed inhis hands for sale or administration, provided that the principal gives his consent thereto. While the new Code came intoeffect only on August 30, 1950, however, since this is a righ t t hat i s decla red f or t he fi rst t ime, the same m ay be givenretroactive effect if no vested or acquired right is impaired (Article 2253, new Civil Code). During the lifetime Don Mariano,and particularly on March 8, 1946, the herein appellants could not claim any vested or acquired right in these properties, for,as heirs, the most they had was a mere expentancy. We may, therefore, invoke now this practical and liberal provision of our new Civil Code even if the sale had taken place before its effectivity.

IN RE ALMACEN 31 SCRA 562 – Legal Ethics – A Lawyer’s Right to Criticize the Courts  Atty. Almacen was the counsel of one Virginia Yaptinchay in a civil case. They lost in said civil case but Almacen filed a Motion for Reconsideration. He notified the opposing party of said motion but he failed to indicate the time and place of hearing of said motion. Hence, his motion was denied. He then appealed but the Court of Appeals denied his appeal as it agreed with the trial court with regard to the motion for reconsideration. Eventually, Almacen filed an appeal on certiorari before t he Supreme Court which outrightly denied his appeal in a minute resolution. This earned the ire of Almacen who called such minute resolutions as unconstitutional. He then filed before the Supreme Court a petition to surrender his lawyer’s certificate of title as he claimed that it is useless to continue practicing his profession when

members of the high court are men who are calloused to pleas for justice, who ignore without reasons their own applicable decisions and commit culpable violations of the Constitution with impunity. He further alleged that due to the minute resolution, his client was made to pay P120k without knowing the reasons why and that he became “one of the sacrificial victims before the altar of hypocrisy.” He also stated “that justice as administered by the present members of the Supreme Court is not only blind, but also deaf and dumb.” The Supreme Court did not immediately act on Almacen’s petition as the Court wanted to wait for Almacen to ctually surrender his certificate. Almacen did not surrender his lawyer’s certificate though as he now argues that he chose not to. Almacen then asked that he may be permitted “to give reasons and cause why no disciplinary action should be taken against him . . . in an open and public hearing.” He said he preferred this considering that the Supreme Court is “the complainant, prosecutor and Judge.”  Almacen was however unapologetic. ISSUE: Whether or not Almacen should be disciplined. HELD: Yes. The Supreme Court first clarified that minute resolutions are needed because the Supreme Court cannot accept every case or write full opinion for every petition they reject otherwise the High Court would be unable to eff ectively carry out its constitutional duties. The proper role of the Supreme Court is to decide “only those cases which present questions whose resolutions will have immediate importance beyond the particular facts and parties involved.” 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. On Almacen’s attack against the Supreme Court, the High Court regarded said criticisms as uncalled for; t hat such is insolent, contemptuous, grossly disrespectful and derogatory. It is true that a lawyer, both as an officer of the court and as a citizen, has the right to criticize in properly respectful terms and through legitimate channels the acts of courts and judges. 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. 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. Intemperate and unfair criticism is a gross violation of the duty of respect to courts. In the case at bar, Almacen’s criticism is misplaced. As a veteran lawyer, he should have known that a motion for r econsideration which failed to notify the o pposing party of the time and place of trial is a mere scrap of paper and will not be entertained by the court. He has only himself to blame and he is the reason why his client lost. Almacen was suspended indefinitely.

IN RE CUNANAN Facts: Congress passed Republic Act Number 972, commonly known as the “Bar Flunkers’ 6

 Act of 1953.” In accordance with t he said law, the Supreme Court t hen passed and admitted to the bar those candidates who had obtained an average of 72 per cent by raising it to 75 percent.  After its approval, many of the unsuccessful postwar candidates filed petitions for admission to the bar invoking its provisions, while other motions for t he revision of their examination papers were still pending also invoked t he 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. Issue:

Whether

or

Not

RA

No.

972

is

constitutional

and

valid.

Held: RA 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. 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 indisputably a judicial function and responsibility. We have said that in the judicial system from which ours has been derived, the admission, suspension, disbarment or reinstatement of attorneys at law in the practice of the profession is concededly judicial. On this matter, there is certainly a clear distinction between the functions of the judicial and legislative departments of the government. 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 m atter is of permissive character, or as other authorities may say, merely to fix the minimum conditions for the license. Republic Act Number 972 is held to be unconstitutional. IN RE EDILLON FACTS: The respondent Marcial A. Edillon is a duly licensed practicing Attorney in the Philippines. The IBP Board of Governors recommended to the Court the removal of the name of the respondent from its Roll of Attorneys for stubborn refusal to pay his membership dues assailing the provisions of the Rule of Court 139-A and the provisions of par. 2, Section 24, Article III, of the IBP By-Laws pertaining to the organization of IBP, payment of membership fee and suspension for failure to pay the same. Edillon contends that the stated provisions constitute an invasion of his constitutional rights in the sense that he is being compelled as a pre-condition to maintain 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 admitted personally antagonistic, he is being deprived of the rights to liberty and properly 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.

ISSUE: Whether or not the court may compel Atty. Edillion to pay his membership fee to the IBP. HELD: The Integrated Bar is a State-organized Bar which every lawyer must be a member of as distinguished from bar associations in which membership is merely optional and voluntary. All lawyers are subject to comply with the rules prescribed for the governance of the Bar including payment a reasonable annual fees as one of the requirements. The Rules of Court only compels him to pay his annual dues and it is not in violation of his constitutional freedom t o associate. Bar integration does not compel the lawyer to associate with anyone. He is free to attend or not the meeting of his Integrated Bar Chapter or vote or refuse to vote in its election 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 thet the cost of the regulatory program  –  the lawyers. Such compulsion is justified as an exercise of t he police power of the State. The right to practice law before the courts of this country should be and is a matter subject to regulation and inquiry. And if the power to impose the fee as a regulatory measure is recognize then a penalty designed to enforce its payment is not void as unreasonable as arbitrary. Furthermore, the Court has jurisdiction over matters of admission, suspension, disbarment, and reinstatement of lawyers and their regulation as part of its inherent judicial functions and responsibilities thus the court may compel all members of the Integrated Bar to pay their annual dues.

IN RE VICENTE CHING Legal Profession – Admission to the Bar –  Citizenship Requirement  In 1998, Vicente Ching finished his law degree at the Saint Louis University in Baguio City. He eventually passed the bar but he was advised that he needs to show proof that he is a Filipino citizen before he be allowed to take his oath. Apparently, Ching’s father was a Chinese citizen but his mother was a Filipino citizen. His parents were married before he was born in 1963. Under the 1935 Constitution, a legitimate child, whose one parent is a foreigner, acquires the foreign citizenship of the foreign parent. Ching maintained that he has always considered himself as a Filipino; that he is a certified public accountant  –  a profession reserved for Filipinos; that he even served as a councilor in a municipality in La Union. The Solicitor-General commented on the case by saying that as a legitimate child of a Chinese and a Filipino, Ching should have elected Filipino citizenship upon reaching the age of majority; that under prevailing jurisprudence, “upon reaching the age of majority” is construed as within 7 years after reaching the age of majority (in his case 21 years old because he was born in 1964 while the 1935 Constitution was in place). Ching did elect Filipino citizenship but he only did so when he was preparing for the bar in 1998 or 14 years after reaching the age of majority. Nevertheless, the SolicitorGeneral recommended that the rule be relaxed due to the special circumstance of Ching. 7

ISSUE: Whether or not Ching should be allowed to take the lawyer’s oath. HELD: No. Unfortunately, he belatedly elected Filipino citizenship. The Supreme Court cannot agree with the recommendation of the Solicitor-General. Fourteen years had lapsed and it’s way beyond the allowable 7 year period. The Supreme Court even noted that the period is originally 3 years but it was extended to 7 years. (It seems it can’t be extended any further). Ching’s special circumstances can’t be considered. It is not enough that he considered all his life that he is a Filipino; that he is a professional and a public officer (was) serving this country. The rules for citizenship are in place. Further, Ching didn’t give any explanation why he belatedly chose to elect Filipino citizenshi p (but I guess it’s simply because he never thought he’s Chinese not until he applied to take the bar). The prescribed procedure in electing Philippine citizenship is certainly not a tedious and painstaking process. All that is required of the elector is to execute an affidavit of election of Philippine citizenship and, thereafter, file the same with the nearest civil registry. Ching’s unreasonable and unexplained delay in making his election cannot be simply glossed over.

2 years and 4 months of imprisonment where he applied a probation thereafter which was approved and granted by the court. He t ook the bar exam and passed but was not allowed to take the oath. He filed for a petition to allow him to take the lawyer’s oath of office and to admit him to the practice of law averring that his probation was already terminated. The court note that he spent only 10 months of the probation period before it was terminated.

ISSUE: Whether or not Al Argosino may take the lawyer’s oath office and admit him to the practice of law.

FACTS: Atty. Narag’s spouse filed a petition for disbarment in the IBP alleging that her husband courted one of his students, later maintaining her as a mistress and having children by her. Atty. Narag claims that his wife was a possessive, jealous woman who abused him and filed the complaint out of spite.

HELD: The practice of l aw is a privilege gr anted only to t hose who possess t he STRICT, INTELLECTUAL and MORAL QUALIFICATIONS required of lawyers who are instruments in the effective and efficient administration of justice. The court upheld the principle of maintaining the good moral character of all Bar members, keeping in mind that such is of greater importance so far as the general public and the proper administration of justice are concerned. Hence he was asked by the court to produce evidence that would certify that he has reformed and has become a responsible member of the community through sworn statements of individuals who have a good reputation for truth and who have actually known Mr. Argosino for a significant period of time to certify that he is morally fit to the admission of the law profession. The petitioner is then allowed to take the lawyer’s oath, sign the Roll of Attorney’s and thereafter to practice the legal profession.

ISSUE: Whether or not Atty. Narag should be disbarred.

ROYONG VS OBLENA

HELD: Atty. Dominador Narag failed to prove his innocence because he failed to refute the testimony given against him and it was proved that his actions were of public knowledge and brought disrepute and suffering to his wife and children. Good moral character is a continuing qualification required of every member of the bar. Thus, when a lawyer fails to meet the exacting standard of moral integrity, the Supreme Court may withdraw his or her privilege to practice law. (Canons 1&7, Rule 7.03, Code of Ethics for Lawyers) It is not only a condition precedent to the practice of law, but a continuing qualification for all members. Hence when a lawyer is found guilty of gross immoral conduct, he may be suspended or disbarred. Grossly immoral means it must be so corrupt as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree or committed under such scandalous or revolting circumstances as to shock the common sense of decency. As a lawyer, one must not only refrain from adulterous relationships but must not behave in a way that scandalizes the public by creating a belief that he is flouting those moral standards

FACTS: • Complainant Josefina Royong charge the respondent Ariston Oblena, a member of the bar and bench, with rape. The Solicitor General immediately conducted an investigation and found out that there was no rape, the carnal knowledge between complainant and respondent seems to be consensual sex. • In view of his own findings as a result of his investigation, that even if respondent did not commit the alleged rape, nevertheless, he was guilty of other misconduct. The Solicitor General made another complaint charging the respondent of falsely and deliberately alleging in his application for admission to the bar that he is a person of good moral character, of living adulterously with Briccia Angeles at the same time maintaining illicit relations with the 18 year old Josefina Royong. Thus rendering him unfit to practice law, praying that this Court render judgment ordering the permanent removal of the respondent as lawyer and judge.

NARAG VS NARAG

IN RE ARGOSINO FACTS: This is a matter for admission to the bar and oath taking of a successful bar applicant. Petitioner Al Caparros Argosino was previously involved with hazing which caused the death of Raul Camaligan a neophyte during fraternity initiation rites but he was convicted for Reckless Imprudence Resulting in Homicide. He was sentenced with

ISSUE: Whether or not the illicit relation of the respondent with Josefina Royong and the adulterous cohabitation of respondent with Briccia Angeles warrants disbarment. HELD:  Ariston

Oblena

was

disbarred.

RATIO: 8

The continued possession of a fair private and professional character or a good m oral character is a requisite condition for the rightful continuance in the practice of law for one who has been admitted, and its loss requires suspension or disbarment even though the statutes do not specify that as ground for disbarment. Respondent's conduct though unrelated to his office and in no way directly bearing on his profession, has nevertheless rendered him unfit and unworthy of t he privileges of a lawyer. Fornication, if committed under such scandalous or revolting circumstances as have proven in this case, as to shock common sense of decency, certainly may justify positive action by the Court in protecting the prestige of the noble profession of the law.  As f ormer Chief Justice Moran observed: An applicant for license to practice law is required to show good moral character, or what he 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. Respondent, t herefore, did not possess a good moral character at the time he applied for admission to the bar. He lived an adulterous life with Briccia Angeles, and the fact that people who knew him sqemed to have acuuiesced to his utatus, did noq render him a person of good moral character. It is of no moment that his immoral state was discovered then or now as he is clearly not fit to remain a member of the bar.

CANTIMBUHAN vs CRUZ In the case ofCantimbuhan v. Cruz, Jr.(126 SCRA 190) we decided a similar issue andallowed the appearance of two senior law students as friends of the complainantpetitionerCantimbuhan to prosecute the case before the sala of Judge Nicanor J. Cruz, Jr., of theMunicipal Court of Parañaque.Similarly, in the case ofLaput v. Bernabe(55 Phil. 621) a law student was allowed torepresent the accused in a case pending before the City Court of Manila.Court procedures are often technical and may prove like shares to the ignorant or the unwary.In the past, our law has allowed non-lawyers to appear for party litigants in places where dulyauthorized members of the bar are not available. (U.S. v. Bacansas, 6 Phil. 539). Forrelatively simple litigation before municipal courts, the Rules still allow a more educated orcapable person to appear in behalf of a litigant who cannot get a lawyer. But for the protectionof the parties and in the interest of  justice, t he requirement f or appearances in regional trialcourts and higher courts is more stringent.In the case before us, the complaint was verified by the party litigant himself. In theverification, the plaintiff specifically stated that he had caused Mr. Nuñes to conduct thelitigation and to sign the complaint in Ms behalf, indicating his awareness that Nuñes in not aregistered lawyer. There is, therefore, added justification for the pleading to be admittedrather than dismissed. As the lower court has cited:So it has been held that, where a pleading isnotsigned by the attorney asrequired,but is verifiedby the party, substantial rights have not been affectedand the defect may be disregarded as against a motion to strike. (71 C.J.S.954- 955)Rules of pleading, practise, and procedure must be liberally construed so asto protect the rights and interests of the ties. As we stated inPaulino v. Courtof Appeals(80 SCRA 257):xxx xxx xxx... pleadings, as well as remedial laws, should be construed liberally, in orderthat litigants may have ample opportunity to prove their respective claims,Cases in Legal EthicsBachelor of Laws 3A48 and that a possible denial of substantial justice, due to legal technicalities,may be avoided. ...The Torcinos try to impugn the results of the

relocation survey. We agree with t he appelleethat the appellants are now estopped on this issue because they themselves prayed in thestipulation of facts that the findings of the geodetic engineer would be bases for the decisionof the court of first instance. We see no error, much less any gr ave abuse of discretion, in thelower courts' findings that the house of the Torcinos encroached on the lot of VictorianoBulacan.WHEREFORE, the decision of the court a quo is hereby AFFIRMED.SO ORDERED. the ruling of the Court En Banc in Cantimbuhan v. Judge Cruz, Jr. that a non-lawyer may appear before the inferior courts as an agent or friend of a party litigant.

IN RE JOAQUIN Facts: The respondent in this case, Joaquin T. Borromeo, is not a lawyer but has apparently read some law books, and ostensibly come to possess some superficial awareness of a few substantive legal principles and procedural rules. Incredibly, with nothing more than this smattering of learning, the respondent has, for some sixteen (16) years now, from 1978 to the present, been instituting and prosecuting legal proceedings in various courts, dogmatically pontificating on errors supposedly committed by the courts, including the Supreme Court. Case

1:

Cases

involving

Traders

Royal

Bank

(TRB).

The first bank that Joaquin T. Borromeo appears to have dealt with was the Traders Royal Bank (TRB). On June 2, 1978, he got a loan from it in the sum of P45,000.00. This he secured by a real estate mortgage created over two parcels of land covered by TCT No. 59596 and TCT No. 59755 owned, respectively, by Socorro BorromeoThakuria (his sister) and Teresita Winniefred Lavarino. On June 16, 1978, Borromeo obtained a second loan from TRB in the amount of P10,000.00, this time giving as security a mortgage over a parcel of land owned by the Heirs of Vicente V. Borromeo, covered by TCT No. RT-7634. Authority to mortgage these three lots was vested in him by a Special Power of Attorney executed by their respective owners. Case

2:

Cases

involving

United

Coconut

Planters

Bank

(UCPB).

Borromeo (together with a certain Mercader) also borrowed money from the United Coconut Planters Bank (UCPB) and executed a real estate mortgage to secure repayment thereof. The mortgage was constituted over a 122-square-meter commercial lot covered by TCT No. 75680 in Borromeo's name. This same lot was afterwards sold on August 7, 1980 by Borromeo to one Samson K. Lao for P170,000.00, with a stipulation for its repurchase (pacto de retro) by him (Borromeo, as the vendor). The sale was made without the knowledge and consent of UCPB. Case

3:

Cases

involving

Security

Bank

and

Trust

Co.

(SBTC).

The third banking institution which Joaquin T. Borromeo engaged in running court battles, was the Security Bank & Trust Company (SBTC). From it Borromeo had 9

obtained five (5) loans in the aggregate sum of P189,126.19, consolidated in a single Promissory Note on May 31, 1979. To secure payment thereof, Summa Insurance Corp. (Summa) issued a performance bond which set a limit of P200,000.00 on its liability thereunder. Again, as in the case of his obligations to Traders Royal Bank and UCPB, Borromeo failed to discharge his contractual obligations. Hence, SBTC brought an action in the Cebu City RTC against Borromeo and Summa for collection.

attorney to do so. His isolated appearance for Sacquing does not constitute private practice of law, more so since Sison did not derive any pecuniary gain for his appearance because Sison and Sacquing were close family friends. Such act of Sison in going out of his way to aid as counsel to a close family friend should not be allowed to be used as an instrument of harassment against him.

Issue:

RAMOS vs MANALAC

Whether

the

respondent-accused

is

liable

for

constructive

contempt?

Held: Joaquin T. Borromeo is found and declared GUILTY of constructive contempt repeatedly committed over time, despite warnings and instructions given to him, and to the end that he may ponder his serious errors and grave misconduct and learn due respect for the Courts and their authority, he is hereby sentenced to serve a term of imprisonment of TEN (10) DAYS in the City Jail of Cebu City and to pay a fine of ONE THOUSAND PESOS (P1,000.00). He is warned that a r epetition of any of the offenses of which he is herein found guilty, or any similar or other offense against courts, judges or court employees, will merit further and more serious sanctions.

NORIEGA VS SISON 125 SCRA 293 – Legal Ethics – Isolated Practice of Law In 1981, Noriega filed a disbarment case against Sison. Noriega alleged that Sison as a hearing officer of the Securities and Exchange Commission is not allowed to engage in the private practice of law; yet Noriega alleged that Sison has created another identity under the name “Manuel Sison” in order for him to engage in private practice and represent one Juan Sacquing before a trial court in Manila. Sison, in his defense, argued that he is in fact representing Juan Sacquing but the same is with the permission of the SEC Commissioner; that he never held himself out to the public as a practicing lawyer; that h e provided legal services to Sacquing in view of close family friendship and for free; that he never represented himself deliberately and intentionally as “Atty. Manuel Sison” in the Manila JDRC where, in the early stages of his appearance, he always signed the minutes as “Atty. Emmanuel R. Sison”, and in one instance, he even made the necessary correction when the court staff wrote his name as Atty. Manuel Sison”; that due to the “inept and careless work of the clerical staff of the JDRC”, notices were sent t o “Atty. Manuel Sison”, ISSUE: Whether or not the disbarment case should prosper. HELD: No. The arguments of presented by Sison is well merited and backed by evidence. The allegations in the complaint do not warrant disbarment of the Sison. There is no evidence that Sison has committed an act constituting deceit, immoral conduct, violation of his oath as a lawyer, willful disobedience of any lawful order of the court, or corruptly and willfully appearing as an attorney to a part to a case without

FACTS: 

Petition for certiorari  was filed seeking annulment of the decision of the Court of First Instance of Pangasinan regarding a f oreclosed parcel of land. Petitioners question the validity of the CFI ruling that they will be held in contempt for refusing to vacate the land. The said property, being collateral for a loan to a Mr. Rivera, was foreclosed due to non-payment of loan amount and its interest within the prescribed periods. Mr. Rivera later sold the property to Ms. Lopez, who later filed petition that she be placed in possession of the land. The petitioners question the ruling of the court. ISSUES: 

Whether or not: (1) The decision of the lower court (CFI) is valid; (2) Directing the issuance of a writ of possession in favor of Felipa Lopez is valid; and, (3) (Possible Legal Ethics Issue) the term “appearance” would include only presence in courts. HELD: 

YES on first two issues. NO on the third issue. Petition was dismissed. Cost against the petitioners. RATIO: 

Claim of the petitioners as to the validity of the decision cannot be sustained for the reason that it is in a nature of collateral attack to judgment which on its face is valid and regular for a long time. It is a well known rule that a judgment, which on its face is valid and regular, can only be attacked in separate action brought principally for the purpose (Gomez vs. Concepcion, 47 Phil. 717). The second issue was also not taken for the simple reason that the issuance of writ of  possession in foreclosure proceedings is not an execution of judgment within t he purview of Section 6 Rule 39 of the Rules of Court, but is merely ministerial and complementary duty of the court. In the third issue, the word or term “appearance” includes not only arguing a case before any such body but also filing a pleading in behalf of a client as “by simply filing a formal motion, plea or answer”.

10

IN RE INTEGRATION

Pedro

FACTS: 

SYLLABUS

[T]he Commission on Bar Integration submitted its Report with the “earnest recommendation” —  on the basis of the said Report   and the proceedings had in  Administrative Case No. 526 of the Court, and “consistently with the views and counsel received from its [the Commission’s] Board of Consultants, as well as the overwhelming nationwide sentiment of the Philippine Bench and Bar” —   that “(the)  Honorable (Supreme) Court ordain the integration of the Philippine Bar as soon as possible through the adoption and promulgation of an appropriate Court Rule.”   The petition in  Adm. Case No. 526 formally prays the Court to order the integration of the Philippine Bar, after due hearing, giving recognition as far as possible and practicable to existing provincial and other local Bar associations. ISSUES: 

(1) Does the Court have the power to integrate the Philippine Bar? (2) Would the integration of the Bar be constitutional? (3) Should the Court ordain the integration of the Bar at this time?

Guevara

for Appellee  .

1. EVIDENCE; PUBLIC AND PRIVATE DOCUMENT; POWERS AND DUTIES OF NOTARIES PUBLIC, DISCUSSED. — The rule is well established that before private documents may be admitted in evidence their due execution and delivery must be proved (section 321, Act No 190). Their due execution and delivery may be proved (a) by any one who saw the document executed, (b) by evidence of the handwriting of the maker, or (c) by a subscribing witness (section 324, act No. 190). There are certain statutory exceptions to the foregoing rule (section 326, Act No. 190). A public document duly acknowledged before a notary public, under his hand and seal with his certificate thereto attached, is admissible in evidence without further proof of its due execution and delivery until some question is raised as to the verity of said acknowledgment and certificate. One of the very purposes of requiring documents to be acknowledged before a notary public is to aut horize such documents to be given in evidence without further proof of t heir execution and delivery.

DECISION

HELD: 

YES. On all issues.

JOHNSON, J. :

RATIO: 

[T]he Court is of the view that it may integrate the Philippine Bar in the exercise of its power, under Article VIII, Sec. 13 of the Constitution, “to promulgate rules concerning x x x the admission to the practice of law.” The Court is 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 t he Commi ssion on Bar Integration, that the integr ation of the Philippine Bar is “perfectly constitutional and legally unobjectionable,” within the context of contemporary conditions in the Philippines, has become an imperative means to raise the standards of the legal profession, improve the administration of justice, and enable the Bar to discharge its public responsibility fully and effectively. [T]he Court, by virtue of the power vested in it by Section 13 of Article VIII of the Constitution, ordained the integration of the Bar of the Philippines effective January 16, 1973.  ANTILLON VS BARCELON

Courtney

The action was commenced in the Court of First Instance of t he Province of Laguna on the 28th day of August, 1913. The plaintiff alleged that he was the owner of said parcel of land; that the defendant was illegally interfering with his possession of the same; that prior to the commencement of the present action the defendant had presented a petition in the Court of Land Registration (Cause No. 8350) for the registration of said parcel of land in his name as administrator of the estate of Antonio Bueno, deceased; that the present plaintiff opposed the registration of said parcel of land, alleging that he was the owner of the sam e; that said cause was brought on for hearing in the Court of land Registration and was finally decided; that the Court of Land Registration, after hearing the evidence, reached the conclusion that t he petitioner (the defendant herein) was not entitled to have said parcel of land registered; that said parcel of land belonged to the oppositor (the petitioner herein); that notwithstanding said decision of the Court of Land Registration the defendant herein continued molesting the plaintiff and interfering with his possession of said parcel of land. The

JOSE ANTILLON, Plaintiff-Appellee  , v. LEONCIO BARCELON, administrator of the estate of Antonio Bueno, deceased, Defendant-Appellant  . J.

The present action relates to the possession and ownership of a certain piece or parcel of land which is particularly described in paragraph 2 of the complaint.

Hixson

for Appellant  .

defendant

answered

said

petition

by

a

general

denial.

Upon the issue thus presented, and after hearing the evidence, the Honorable Pedro Concepcion, judge, reached the conclusion that the plaintiff was the owner of said parcel of land; that he had purchased the same from Albino Villegas (Exhibit F); that  Albino Villegas had acquired t he title to said land by purchase fr om Petra Dionido 11

(Exhibit E), and rendered a judgment in favor aisle the plaintiff and against the defendant in accordance with that conclusion, together with a judgment for damages in favor of the plaintiff and against the defendant for the sum of P54, and costs. From that decision the defendant appealed to t his court and made several assignments of error. In his first assignment of error he alleges that the lower court erred in admitting Exhibits E and F of the plaintiff. In support of said assignment of error the appellant alleges that said documents had not been properly identified and that their due execution and delivery had not been proved.  An examination of the evidence with reference to said Exhibits E and F shows that, at the time said exhibits were affray as proof, the defendant objected to their admissibility upon the ground that they were impertinent immaterial and irrelevant; that the two exhibits were no more than ordinary papers. In reply to that objection the attorney for the plaintiff pointed out that said exhibits were public documents duly acknowledged before a notary public. The attorney for the defendant then made a further objection that they had not been properly identified. The court admitted said documents, and the attorney for the defendant duly excepted. Said objection and exception present the questions: How may a document duly acknowledged under the hand and seal of a notary public be proved? Must the parties to said document be called as witnesses to prove its genuiness and authenticity? Must the witnesses to said document be called to show its execution and delivery? Must the notary public be summoned as a witness to prove the due acknowledgment of such document? Does not the certificate duly made under the hand and seal of the notary public make such document admissible in evidence without further proof of its execution and delivery? Is not a document acknowledged before a notary public under his hand and seal admissible in evidence as proof of its execution and delivery without additional proof of its identity and authenticity? Must the execution and delivery of documents acknowledged before a notary public under his hand and seal be proved the same as ordinary documents not so executed and delivered? If so, then, what is the advantage of having the execution and delivery of documents acknowledged before a notary public under his hand and seal? No question was presented during the trial of the cause as to the verity of the acknowledgment under the hand and seal of the notary public to said Exhibits E and F. The rule is well established that before private documents may be admitted in evidence as proof, their due execution and delivery must be proved. (Sec. 321, Act No. 190.) Their due execution and delivery may be proved (a) by any one who saw the document executed, or (b) by evidence of the genuineness of the handwriting of the maker, or ( c) by a subscribing witness. (Sec. 324, Act No. 190.) There are certain statutory exceptions to the foregoing rule in this jurisdiction. (Sec. 326, Act No. 190.) To the foregoing rules with reference to the method of proving private documents an exception is made with reference to the method of proving public documents executed

before and certified to, under the hand and seal of certain public officials. The courts and legislatures have recognized the valid reason f or such an exception. The litigation is unlimited in which testimony by officials is daily needed; the occasions in which the officials would be summoned from his ordinary duties to declare as a witness are numberless. The public officers are few in whose daily work something is not done in which testimony is not needed from official sources. Were there no exception f or official statements, hosts of officials would be found devoting the greater part of their time to attending as witnesses in court or delivering their depositions before an officer. The work of administration of government and the interest of the public having business with official would alike suffer in consequence. For t hese reasons, and for many others, a certain verity is accorded such documents, which is not extended to private documents. (3 Wigmore on Evidence, sec. 1631.) The law reposes a particular confidence in public officers that it presumes they will discharge their several trusts with accuracy and fidelity; and, therefore, whatever acts they do in discharge of their public duty may be given in evidence and shall be taken to be true under such a degree of caution as the nature and circumstances of each case may appear to require.  A notary public is sometimes spoken of as a public officer. (Ley del Notariado de 15 de febrero de 1889; Ley del Notariado para las Islas Filipinas). He is an officer known to the Law of Nations; hence his official acts receive credence, not only in his own country, but in all others in which they are used as instruments of evidence. (Kirksey v. Bates, 7 Porter (Ala.) , 529; 31 Am. Dec., 722; Governor v. Gordon, 15 Ala., 72; Pierce v. Indseth, 106 U. S., 546, 549; Greenleaf on Evidence, sec. 5; Townsley v. Sumrall, 2 Peters (U. S.) , 170.) The functions of a notary public as a public or as a quasi-public officer has been recognized by the common law, the civil law as well as by the law of nations. He is recognized as a necessary official in nearly all the civilized countries. (Governor v. Gordon, supra; Pierce v. Indseth, supra; John’s American Notaries, sec. 1.) The notary public is recognized by the l aw merchant, and his official acts are r eceived as evidence, not only in his own, but in all countries. His duties are, often, of great variety and importance, consisting for the most part, in protesting inland and foreign bills of exchange, promissory notes, etc. Also the authentication of transfer to property, administering the oath as to the correctness of accounts or statements of important documents, which are often necessary for transmission to points where the parties directly in interest are unable to appear in person. The taking of depositions for actions pending in foreign or distant courts. The taking of the affidavits of mariners and masters of ships, their protests, etc., requiring care and judgment. In all such cases the notary’s certificate or jurat, when accompanied with his official seal of office and proper certificates of his official character if the act is to be used beyond his own county or State, is received as prima facie evidence. (John’s American Notaries, sec. 1.)  All documents acknowledged by a notary public and certified to by him are considered public documents in this jurisdiction. (Art. 1216, Civil Code; Gochuico v. Ocampo, 7 Phil. Rep., 15.) 12

The principal function of a notary public is to authenticate documents. When a notary public certifies the due execution and delivery of a document under his hand and seal he thereby gives such a document the force of evidence. (29 Cyc., 1076; Bradley v. Northern Bank, 60 Ala., 252.) Section 331 of Act No. 190 provides that, "every instrument conveying or affecting real property situated in the Philippine Islands, acknowledged or proved and certified as provided by law prevailing in the Philippine Islands, may, together with the certificate of the acknowledgment or proof, be read in evidence in an action or proceeding without further proof."cralaw virtua1aw library Indeed, one of the very purposes of requiring documents to be acknowledged before a notary public, in addition to the solemnity which should surround the execution and delivery of documents, is to authorize such documents to be given in evidence without further proof of their execution and delivery. (John’s American Notaries, section 168; Bowman v. Wettig, 39 Ill., 416; Harrington v. Fish, 10 Mich., 415.) Our conclusions is, therefore, with reference to the first assignment of error, that a document duly acknowledged before a notary public under his hand and seal, with his certificate thereto attached, is admissible in evidence without further proof of its due execution and delivery, unless and until some question is raised as to the verity of said acknowledgment and certificate. What has been said with reference to the first assignment of error, we believe, also answers the contention of the appellant in his second assignment of error. The appellant contends that the lower court committed an error in admitting Exhibit G (G-1). Said exhibit is the r ecord of the Court of Land Registration in an action in which the present defendant was the petitioner and the present plaintiff was the upsetter. While the appellant does not say so, the inference is that his objection is based upon the ground that said exhibit had not been identified by the custodian of said document. By section 18 of Act No. 2347, the clerks of the courts of the respective provinces or districts are ex officio deputies of the Chief of the General Land Registration Office, and, as such, may identify records made up in the Courts of First Instance relating to the registration of land under the Torrens system. By virtue of said Act, the clerk of the Court of First Instance, being ex officio deputy of the Chief of the General Land Registration Office, was fully authorized to identify said record, being the custodian thereof. With reference to the other assignments of error, we find nothing in the record which would justify a modification of the decision of the lower court based thereon.  A careful examination of the record shows that the plaintiff is the owner and entitled to the peaceable and quiet possession of the l and in question. Therefore, the judgment of the lower court is hereby affirmed, with costs. So ordered.  ARRIETA VS LLOSA

FACTS: A disbarment case was filed against Atty. Llosa by Pike P. Arrieta for allegedly notarizing a Deed of Absolute sale, wherein, vendors noted were already dead prior to its execution. In answer, respondent admitted having notarized the Deed of Absolute Sale. But before affixing his notarial seal, he first ascertained the authenticity of the signatures, verified the identities of the signatories, and determined the voluntariness of its execution. However, in a later date, the respondent sought to dismiss the disbarment case admitting to the fact the instant case is only a product of misunderstanding and misinterpretation of some facts and is now convinced that everything is in order. The designated Investigating Commissioner of the IBP recommended the dismissal of the instant case. The Board of Governors of the I BP adopted the above recommendation and resolved to dismiss the instant case after finding no compelling reason to continue with the disbarment proceedings.

ISSUE: Whether or not Atty. Joel A. Llosa be disbarred or suspended from practice of law.

HELD:  YES. Respondent ordered SUSPENDED for six months from practice of law with a warning that another infraction will be dealt with more severely. Citing Section 1 of Public Act No. 2103 also known as the Notarial law, the Supreme Court explained the importance of adherence to said law as part of the responsibility of a duly deputized authority to conduct such notarial process. Due diligence is to be obs erved, this being part of a lawyers professional responsibility and procedural lapse is not an excuse to cater to the convenience of clients. Any violation is tantamount to misconduct. Such misconduct is a ground for disbarment as stated by the Section 27 of Rule 138 of the Rules of Court. Furthermore, the Supreme Court stressed the primary r esponsibility of lawyers as stated in Canon I of the Code of Professional Responsibility that a lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law and legal processes. A lawyer m ust also refrain from engaging in unlawful, dishonest, immoral or deceitful conduct. Any violation of his oath or of his duties as an attorney and counsellor, 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 may be disbarred or suspended. NUNGA VS VIRAY FACTS: Victor D. Nunga, president of the Masantol Rural Bank filed a complaint for disbarment against Atty. Venancio M. Viray on the ground of gross and serious misconduct for notarizing documents when he was not commissioned to do so at the time the said documents were executed. . After issues were joined, the Integrated Bar of the Philippines conducted an investigation. The report showed that respondent Viray notarized a deed of absolute sale when he was not duly commissioned as notary public as of that dat e. Respondent all eged that fr om 1965 to date he was alwa ys commissioned as notary public. . According to respondent, there was no year in his practice of law that he was not commissioned as notary public. He further explained 13

that in the alleged documents, he had PTR for that purpose and therefore, he would not have obtained a commission without the PTR. The Undersigned noted after going over the records of the case that although both parties were required to submit their respective memorand[a], only complainant complied with the order.

to the legal profession by faithfully performing his duties to society, to the bar, to the courts, and to his clients.

ISSUE: Whether or not respondent’s act is a valid ground for disbarment.

YUMOL vs FERRER

HELD: YES. Notarization is invested with public interest because it converts a private document into a public one, making such documents admissible in evidence without further proof of the authenticity thereof. Notarizing without commission is a violation of the lawyer’s oath to obey the laws (the Notarial Law) and by making it appear that he is so authorized is a deliberate falsehood which violates the lawyer’s oath and 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.”

Facts: The petitioner, OIC of the Commission on Human Rights, files a disbarment case against respondent, Attorney IV said commission on ground for grave misconduct. The respondent was found to have issued 2 orders awarding custody of a child to a complainant in the Commission, ordered a bank to reinstate the bank account of the said complainant, engaging in private practice, notarizing public documents, and attending court hearings while filling up his DTR at the Commission as present at the same time. The case was referred to the IBP and the investigating commissioner recommended suspension for 2 years which was modified by the IBP Board to 6 months.

WHEREFORE, the Court hereby adopts the findings and conclusions of Investigating Commissioner Lydia A. Navarro, which the Board of Governors of the Integrated Bar of the Philippines adopted and approved, but MODIFIES the penalty recommended by the said Board of Governors. As modified, respondent ATTY. VENANCIO VIRAY is hereby BARRED from being commissioned as notary public for THREE (3) years and his present commission, if any, is revoked, and SUSPENDED from the practice of law also for THREE (3) years. FLORES VS CHUA FLORES 306

VS. SCRA

CHUA 465

FACTS: The complainant seeks the disbarment of respondent Atty. Chua, a practicing lawyer and a notary public, for various offenses amounting to m alpractice, gross misconduct, violation of his lawyer’s oath, the CPR as well as the provisions of the laws of the Philippines, to wit: (a) Fraud through falsification and forgery of public document; (b) foisting falsehood and fabricated public document to molest and harass parties; and ( c) libel, misrepresentation and unlawful advertisement. ISSUE: Whether or not the charges against Atty. Chua sufficient to warrant disciplinary action against him. HELD: Yes. When a notary public is a lawyer, a graver responsibility is placed upon his shoulder by reason of his solemn oath to obey the laws and to do no falsehood or consent to the doing of any. The Code of Professional Responsibility also commands him not to engage in unlawful, dishonest, immoral or deceitful conduct and to uphold at all times the integrity and dignity of legal profession. The bar should maintain a high standard of legal proficiency as well as honesty and fair dealing. A lawyer brings honor

ISSUE: WON respondent has committed gross misconduct arising from the following alleged acts: 1. Engaging in the private practice of his profession while being a government employee; 2. Falsifying his Daily Time Records; 3. Issuing unauthorized orders; and 4. Continuously engaging in private practice even after the filing of case against him for engaging in private practice. RULING: The court held on the following: 1. CHR Resolution No. (III) A2002-133 authorizes CHR lawyers to engage in private practice (adopting the Civil Service Commission Resolution) subject to some conditions with indispensable requirement to secure approval from the CHR. In the absence of such approval, the respondent is not allowed in private practice and proved to have falsified his attendance in the DTR while appearing in court at the same time without approved leave of absence. 2. The respondent has been notarizing even before the CHR authorized his practice as a notary public. 3. The authority granted with the CHR in their function is merely to investigate all forms of human rights violation. They cannot try and decide cases. With the above constituting grounds for suspension of lawyers stated in Section 27, Rule 138 of the Rules of Court, the court ruled to modify the suspension of 1 year as sufficient sanction.

HECK vs JUDGE SANTOS Facts: This is a disbarment case against Judge Anthony E. Santos, who retired on May 22, 2002, for allegedly violating the Notarial Law before his appointment as judge, 14

on

April

11,

1989,

or

some

twenty

years

ago.

The complaint alleged that Santos subscribed and forwarded, on a nonregular basis, notarized documents since January 1980, when in fact, it was only until January 9, 1984, that he became a duly commissioned notary public. The complaint further alleged that Judge Santos failed to forward his Notarial Register after the expiration of his commission in December 1989.

The City Fiscal of Toledo City filed this case for disbarment against Dominador E. Flores, a member of the Philippine Bar, for unprofessional and unethical conduct, more specifically, for notarizing certain documents during the years 1961 and 1962, after his commission as notary public had expired.lawphil.net  The complaint further alleges that the respondent deliberately omitted to submit to the Clerk of the Court of First Instance of Cebu certified copies of the entries in his notarial register as well as of the documents acknowledged before him, as required by the Notarial Law, in order to conceal the fact that he did not at the time have an appointment as notary public.

Issue: Can a retired judge perform notarial duties without commission? Held:

In his answer, the respondent admitted having notarized some documents in 1961 and 1962 but claimed that his commission, which expired on December 31, 1960, was renewed in 1961, to expire on December 31, 1962.

The retirement or resignation of a judge will not pr eclude the filing thereafter of an administrative charge against him for which he shall still be held answerable if found guilty. It is settled that a judge may be disciplined for acts committed prior to his appointment to the judiciary and that an administrative complaint against a member of the BAR does not prescribe.

The case was referred to the Solicitor General who, on November 11, 1965, submitted the following findings and recommendation:

The respondent did not object to the complaint’s evidence neither did he claim that he was commissioned as notary public for the years 1980-1983, nor deny the accuracy of such. He merely answered that there was no proper recording of the commissioned lawyers in the City of Cagayan de Oro nor of the submitted Notarized Documents/Notarial Register.

(2) That respondent had not been commissioned as notary public for the city and province of Cebu for the year 1961 and 1962;

Judge Santos is thus, found guilty of notarizing documents without the requisite notarial commission and is ordered to pay the fine of P5, 000.00. However, considering that the complaint against respondent was filed twentyfour (24) years after the commission of the act complained of and that there was no private offended party who came forward and claimed to have been adversely affected by the documents so notarized, the action for disbarment will not prosper. Respondent, as a retired judge, deserved to enjoy the full measure of his wellearned retirement benefits.

(1) That respondent's commission as notary public for the city and province of Cebu expired on December 31, 1960;

(3) That notwithstanding his lack of commission as notary public for the years 1961 and 1962, respondent notarized several documents (Exhs. B, C, D, E, F, G), which documents became the basis of the cancellation by the city tax assessor of the tax declarations of the properties involved in said documents in the names of the former owners and their transfer to the new owners; (4) That respondent had not filed his monthly notarial reports and copies of the documents he had notarized or the years 1961 and 1962 with the notarial section of the Court of First Instance of Cebu, nor had he surrendered his notarial register to said office for the year 1960, when his commission as notary public expired. xxx

IN THE MATTER OF DISBARMENT OF DOMINADOR FLORES A.C. No. 546

December 18, 1967

IN THE MATTER OF THE DISBARMENT OF DOMINADOR E. FLORES,  respondent, vs. CITY FISCAL LUIS R. LOZADA, complainant. CASTRO, J. : 

xxx

xxx

Respondent, in spite of the many postponements given to him and the repeated warnings issued by the investigating fiscal that if he still failed to appear at the hearing, the case would be considered submitted without his evidence, failed to appear at the last date set for t he reception of his evidence. Even respondent's own counsel, who pleaded that a last chance be given his client by postponing the hearing again for the last time to another date, and that if his client would still fail to appear at t he latter date, he would withdraw as his counsel (p. 150, t.s.n.), did not appear anymore at the last hearing set, obviously knowing that his own client would not appear, as he in fact failed to appear thereat (pp. 153-155, id .).lawphil.net Respondent's complete lack of 15

interest and indifference in presenting him defense to the charges and evidence against him in this case can only mean that he has no strong and valid defense to present herein. For the foregoing reasons, we find that sufficient grounds exist to proceed against the respondent Dominador E. Flores in this administrative case on the grounds of malpractice, gross misconduct in office as attorney, and violation of the lawyer's oath, and for this reason, it is respectfully recommended that after appropriate proceeding, said respondent be removed from the practice of law. On November 22, 1965 we required the respondent to answer the above-quoted report of the Solicitor General. After several extensions of time granted to him, he finally filed his answer on March 15, 1966, in which he stated, among other things, that "he admits his negligence in not renewing his commission as notary public, and of notarizing documents without previous authority", and prays this Court "to temper justice with mercy, and to render such orders that will give herein poor respondent, who has no derogatory record so far, another chance to make a living and prove his worth as a good member of the bar". The ease was set for hearing on May 4, 1966. On this date neither the Solicitor General nor the respondent appeared. Although the respondent was thereafter given time within which to file a memorandum in lieu of oral argument, the respondent never submitted any. It is to state the obvious that the evidence conclusively establishes the misconduct imputed to the respondent. The six documents referred to in the Solicitor General's report are an extrajudicial partition of an estate, a deed of sale with a right of repurchase, and four deeds of absolute sale —  all involving unregistered lands.itcalf  The respondent presented these documents to the city assessor of Toledo, and it was on the strength of the former's representation that he had authority to ratify the instruments that the latter accepted the documents for registration and cancelled the tax declarations in the name of the former owners of the properties involved. As the Solicitor General aptly observes, without the criminal falsification of these documents by the respondent, the city assessor would not have made the corresponding transfers of the tax declarations of the properties, which transfers thus impaired the integrity of the documents and caused disturbance of and prejudice to the property rights of the parties thereto.1  Against the evidence presented by the complainant, the respondent did not even attempt to present any. He did not even attend the investigation conducted by the provincial fiscal of Cebu to whom the Solicitor General endorsed this case. Several times the investigation was postponed to afford the respondent an opportunity to appear and be heard in his defense, but not once did he show up. Nor did he manifested desire to present evidence before this Court when required, pursuant to section 5 of Rule 139, to file an answer to the formal complaint lodged by the Solicitor General. Instead he now offers the unacceptable excuse that in the past the preparation of "his petition for renewal of his commission" was attended to by a friend who, "for one reason or another .....failed to comply with [the respondent's] last request."

The respondent's reprehensible conduct, constituting as it does not only malpractice but also the commission, in six separate and distinct occasions, of the crime of falsification of public document, justifies his disbarment.2 His excuse, contained in his answer to the complaint of t he Solicitor General, can hardly be reconciled with his first answer in which he stoutly denied having no commission to act as a notary public for the years 1961 and 1962, and even expressed mock surprise "why it had been reported that he had none." This facile resort to contradictory denials cannot be regarded as anything better than trifling with this Court, and makes the respondent undeserving of the mercy which, he so fervently prays, justice should be tempered with.  ACCORDINGLY, the respondent Dominador E. Flores is disbarred from the practice of law and his name is ordered stricken from the Roll of Attorneys. He is further, ordered to surrender his lawyer's certificate of title to the Clerk of Court within ten days from the date this judgment becomes final. ZORETA VS SIMPLICIANO MELANIO L. ZORETA v s.   ATTY. HEHERSON ALNOR G. SIMPLICIANO [A.C. No. 6492. November 18, 2004] FACTS: 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. 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.  Against the evidence presented by complainant, respondent did not even attempt to present any evidence. His counsel filed an ex-parte motion f or 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 complainant’s 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 t he 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. ISSUE:

What

is

the

significance

of

the

commission?

RULING: 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 lawyer’s act of notarizing documents without the requisite commission therefore as “reprehensible, 16

constituting as it does not only malpractice but also x x x the crime of falsification of public documents.” 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. In the case of Nunga v. Viray , 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 lawyer’s 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 lawyer’s oath similarly proscribes.  Thes e violation s 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.

The Solicitor General submitted his report and recommendation dated 28 March 1990. The Solicitor General found that the first charge of malpractice against respondent Baltazar had not been substantiated. The only evidence submitted by complainant was his own testimony given at a hearing called by the Solicitor General —  ATTY. MONTOYA: How many square meters did you sell to Herminia Feliciano? WITNESS [Marciano Joson]: 50 square meters.

JOSON VS BALTAZAR MARCIANO vs. ATTY. GLORIA M. BALTAZAR, respondent. Tereso Ma. Montoya and Rolando  Alfredo V. Granados for respondent.

The Court required respondent Baltazar to file an answer and this she did. The complaint and answer were then referred to the Office of the Solicitor General on 29  August 1963 for investigation, report and recommendation.

JOSON, complainant,

INVESTIGATOR: Is that sale in writing?

F.

Montoya

for

complainant.

WITNESS: Yes, sir. xxx

xxx

xxx

FELICIANO, J. : 

 ATTY. MONTOYA:

In this administrative case for disbarment instituted by Marciano Joson, Atty. Gloria M. Baltazar, now Gloria Baltazar-Aguirre, is charged with violation of the Revised Penal Code and grave malpractice as a lawyer. In his complaint, Marciano Joson alleged that on 10 July 1957, respondent Atty. Gloria Baltazar-Aguirre notarized a deed of sale executed by complainant in favor of one Herminia Feliciano, but:

What did you find in the Office of the Provincial Assessor of Malolos, Bulacan?

1. respondent had made it appear in the deed of sale that complainant-vendor sold 150 square meters of his unregistered land in Pulilan, Bulacan, instead of only 50 square meters which was the real agreement of the parties; and 2. at the time respondent Baltazar notarized the deed of sale, she was no longer authorized to do so since her notarial commission had expired on 31 December 1956 and was renewed by her only on 17 September 1957.

WITNESS: I saw that instead of the 50 square meters which was agreed upon by us, it was 150 square meters. 1 Such testimony, of course, is not competent, in view of the parole evidence rule, to vary the terms of the written agreement of the parties with respect to the area of land sold therein. By itself, complainant's testimony is insufficient to show the existence of a mistake or imperfection in the writing or that the deed of sale failed to express the true intent and agreement of the parties. 2

17

Moreover, complainant admitted in his testimony that he had read the deed of sale and had seen that the area of the land sold was set out as 150 square meters but had not protested about it:  ATTY. GRANADOS: Now, after the deed of sale Exhibit A was prepared, did you read it? WITNESS [Marciano Joson]: Yes, sir.  ATTY. GRANADOS:  And you found that it conformed to all that was agreed upon between you and your vendee? WITNESS: Yes, sir.  ATTY. GRANADOS: Who else, if you know, read Exhibit A before it was executed by you? WITNESS: My wife.  ATTY. GRANADOS:  And she also expressed her conformity to all that was stated in Exhibit A?  ATTY. WITNESS: Yes, sir.

It was also brought out that complainant had discussed with his vendee the possibility of return of the land to complainant upon refund by the latter of the purchase price thereof, thus indicating, as the Solicitor General pointed out, that complainant's claim about the deed of sale not r eflecting the true intent of t he parties in respect of the area sold, was merely "a scheme designed to nullify the sale to enable the complainant to eventually recover the property sold." 5 In respect of t he second charge, respondent Baltazar did not deny that her commission as notary public had expired by the time she notarized the deed of sale. Respondent in her defense, however, maintained that she had applied for renewal of her commission prior to its expiration in 1956; that the court employee in charge of renewing her commission had prepared the necessary documentation with respondent signing the oath of office and commission in advance and that she had left an amount of money to cover the fees and services of that employee who was supposed to deliver to her the renewed commission; that respondent forgot about the matter and in good faith continued to act as notary public in the honest belief that her commission had been renewed with the filing of the petition which she considered a routine formality; and that when she learned in August 1956 that her petition for renewal had not been filed, she applied anew for renewal of her commission and was in fact re-commissioned as notary public on 7 September 1957. It appears to the Court that the respondent considered the requirements for appointment or renewed appointment of a notary public as a casual formality, since she did not bother to ascertain whether her commission had in fact been renewed before acting as such. By respondent's own testimony, she had become aware before notarizing the deed of sale that her petition for renewal of her notarial commission had not been filed. 6 The Court is, therefore, unable to accept her plea of good faith simply on the basis of her claimed belief that her commission would, as a matter of course, be approved upon the filing of her petition for renewal of her commission.1âwphi1 In In the Matter of the Disbarment of Dominador E. Flores: City Fiscal R. Lozada v. Dominador E. Flores, 7r espondent attorney notarized six (6) documents consisting of an extrajudicial partition of an estate, a deed of sale with right of repurchase and four (4) deeds of absolute sale, all involving unregistered land, at a time when his commission as notary public had expired. The Court characterized his conduct as "reprehensible", "constituting as it does not only malpractice but also the commission, in six separate and distinct occasions, of the crime of falsification of public documents, [which] justifies his disbarment 8 and disbarred him.

3

Complainant had, moreover, made admissions during the hearing before the Office of the Solicitor General that he had signed the deed of sale voluntarily having seen "that the document was prepared correctly ("Mahusay ang pagkakita ko sa paggawa ng dokumento" ). 4

Under the foregoing case, respondent Baltazar's conduct must be similarly characterized as malpractice and falsification of a public document. Notarization of a private document converts such document into a public one, 9and renders it admissible in court without further proof of i ts authenticity. 10 Courts, administrative agencies and the public at large must be able to rely upon the acknowledgment executed by a notary public and appended to a private instrument. 18

Notarization is not an empty routine; to the contrary, it engages public interest in a substantial degree and the protection of that interest requires preventing those who are not qualified or authorized to act as notaries public from imposing upon the public and the courts and administrative offices generally.11 Since only one instance of unauthorized notarization is here involved, rather than repeated acts as in City Fiscal R. Lozada v. Dominador E. Flores, and considering the circumstances of this case, the Court considers that suspension from the practice of law for a period of t hree (3) months would be an adequate administrative penalty.  ACCORDINGLY, the Court Resolved to SUSPEND respondent Atty. Gloria M. Baltazar-Aguirre from the practice of law for a period of t hree (3) months commencing from receipt of this Resolution. Copies of t his Resolution shall be furnished to the courts and the Bar Confidant and spread on the personal record of respondent. TAN TIONG BIO a.k.a. HENRY TAN, Complainant,

 A.C. No. 6634 Present:

PUNO, C.J., Chairperson, SANDOVAL-GUTIERREZ, - versus -

CORONA,  AZCUNA, and GARCIA, JJ.

ATTY. RENATO L. GONZALES, Respondent.

Promulgated:

 August 23, 2007 x------------------------------------------------------------------------------------x

DECISION

GARCIA, J .:

Under consideration is this complaint [1] for disbarment filed by Tan Tiong Bio, a.k.a. Henry Tan, against Atty. Renato L. Gonzales for allegedly notarizing a conveying deed outside the territory covered by his notarial commission and without requiring the personal presence before him of the signatories to the deed before notarizing the same, in violation of the Notarial Law and the lawyers oath.  As records reveal, complainant purchased several parcels of land at the Manila Southwoods Residential Estates (Southwoods, for short), a mix residentialcommercial complex situated in Carmona, Cavite owned/operated by Fil-Estate Golf and Development, Inc. (FEGDI) and Fil-Estate Properties, Inc. (FEPI). FEPI has its office at Renaissance Towers, Meralco Avenue, Pasig City. In one of the transactions adverted to, complainant, as vendee, was made to sign and execute Deed of Sale No. 1108[2] (Deed 1108, hereinafter) covering a lot described in and covered by t he vendors Transfer Certificate of Title (TCT) No. T-427206. Following payment of the contract price in full, including miscellaneous expenses, TCT No. 968702 in complainants name was delivered to him with the corresponding completed deed of sale. Respondent Renato L. Gonzales, employed as corporate counsel for FEPI and appointed/reappointed from 1996 to 2001 as notary public for Quezon City [3], was the notarizing officer of Deed 1108 on which the name and signature of Alice OdchigueBondoc (Bondoc) appear as the vendors authorized representative.  As complainant would allege in his Complaint Affidavit  dated November 17, 2003, and its annexes, sometime in 1995, he made another Southwoods purchase covering Lot 10, Block 27, Phase 3 (or Lot10). Several years following his payment of the amount of P2,068,523, representing the full purchase price for Lot 10 and after he had signed a deed with the space for the title number and technical description left in blank, complainant repeatedly asked for but was not able to secure a certificate of title for the same or a refund of his payment. The rebuff, according to complainant, impelled him to file a case for estafawith the Office of the City Prosecutor of Pasig City. In connection with the estafa charge, so complainant claims, Ms. Bondoc, signatory (for FEGDI as vendor) to Deed 1108, executed a counter-affidavit therein stating that she had not personally met nor transacted with the complainant either with respect to the negotiations for the sale of the land covered by TCT No. T427206 nor during the execution of Deed 1108. Complainant would add, however, that Ms. Bondoc admitted that she and the complainant did sign the said deed of sale, but at different times and in different places, and not in each others presence, [4] like other signed hundreds of deeds (of sale) over other documents for our behalf of the President [of Fil-Estate] with buyers [she] had never (even) met. [5] It is on the basis of Ms. Bondocs foregoing statements that complainant initiated the present disbarment case before the Integrated Bar of the Philippines (IBP), it being his posture that respondent Gonzales notarized Deed 1108 without requiring him, or Ms. Bondoc, to appear and acknowledge before him the due and voluntary execution thereof, a practice not only violative of the Notarial Law, but detrimental to his interests and those similarly situated as well. 19

Respondent, in his Verified Answer ,[6] was less than categorical on the m atter of whether or not complainant and Ms. Bondoc, vis--vis Deed 1108, indeed appeared before him and attested to the contents and the truth of what are stated in the deed. Instead, he alleged as follows: 10. Because of the hundreds of documents I have notarized, I do not recall with absolute certainty the details of the notarization ceremony of the Deed of Absolute Sale in question. Nevertheless, what I do know is that I have personally met both complainant and Atty. Bondoc and notarized documents which they had acknowledged. Based on the admissions of both the complainant and Atty. Bondoc that they have not personally met, it appears that in notarizing the Deed of Absolute Sale in question, both complainant and Atty. Bondoc appeared before me and signed, but at different times. 11. As a matter of practice, I require the personal appearance of all parties who seek to have deeds of sale notarized. However, the parties need not necessarily sign and acknowledge their acts in one anothers presence. xxx xxx xxx xxx 13. Thus, complainant cannot dispute that both signatories to the Deed of Absolute Sale personally appeared before me ., albeit at different times. That is all that is required by law. The fact that the signatories to the Deed signed and acknowledged the same on different occasions is of no moment, and certainly does not constitute misconduct on my part. xxxxxxxxx 15. The only basis for the charge of professional misconduct against me is that I allowed the signatories to acknowledge their signatures on the Deed of Absolute Sale at different times. However, complainant fails to cite any law or rule which obliges a notary public to require the parties to the instrument to simultaneously appear before him, as in fact, there is none. Thus, even if I did not require complainant and Atty. Bondoc to personally appear before me at the same time, I cannot be faulted for such, as I am not required to do so. [7] The respondent parlays in his answer the idea of laches, arguing that the transaction in question took place in 2001, while complainant initiated the disbarment charge only in November 2003.  At the preliminary conference before the I BP Commission on Bar Discipline (Commission), complainant and respondent entered into the following stipulation of facts, to wit:

[T]he Deed of Absolute Sale No. 1108 was duly executed by Mr. Henry Tan and Atty. Alice Odchigue-Bondoc as authorized signatory of the seller; that the subject document was notarized by respondent as document no. 367, page no. 74, book no. 8, series of 2001 of his notarial register; that respondent admits that his notarial appointment covers Quezon City and that the subject document was notarized in Pasig City, specifically, at the Renaissance Tower; and that the parties admit that Atty. Alice Odchigue-Bondoc and Henry Tan Tan were not present at the same time when the subject document was notarized xxx (Underscoring added.)  After due hearings, Investigating Commissioner Doroteo B. Aguila submitted his REPORT AND RECOMMENDATION   dated August 27, 2004, which, as approved by the IBP Director for Bar Discipline, was forwarded to the Court. In the report, the Commission recommended that respondent be adjudged liable and penalized for violating the rule proscribing one from acting as a notary outside the area covered by his commission, but recommended the dismissal of the complaint insofar as it charges the respondent for notarizing a document without the personal appearance before him of t he party-signatories thereto. We agree.  As aptly found by the Investigating Commissioner, delving on the second part of the recommendation, complainant failed to substantiate with competent proof his allegations that respondent performed the notarial procedure on Deed 1108 without his (complainant) being present to acknowledge the due execution thereof. Being a notari zed docum ent, Deed 1108 and th e solemniti es att ending its execution are disputably presumed to be regular .[8] Absent convincing evidence to the contrary, t he certification in Deed 1108 that the vendor and the vendee personally appeared before the respondent to acknowledge the same must be upheld. As we said in Vda. De Rosales v. Ramos,[9] when a notary certifies to the due execution and delivery of the document under his hand and seal, the document thus notarized is converted into a public document. To us and to the Investigating Commissioner , [10] the declaration of Ms. Bondoc in her counter-affidavit before the prosecutors office is not the clear and convincing evidence required to overturn the presumption of regularity. Ms. Bondocs declaration that she had not met or dealt directly with Southwoods buyers does not necessarily prove that such buyers and FEPIs r epresentatives in the purchase did not in fact appear before the notary public to acknowledge the fact of contract execution before him. If at all, Ms. Bondocs declaration simply means that she has not personally met the buyers, or, with like effect, that she, as representative of the seller, has not appeared together with the buyers before the notarizing officer. As it were, the Notarial Law is silent as to whether or not the parties to a conveying instrument must be present before the notary public at the same time when they acknowledge its due execution. There can be quibbling, however, that the respondent breached the injunction against notarizing a document in a place outside ones commission. As reported by the Investigating Commissioner, respondent acknowledged that from February 1, 1996 to September 30, 2001, within which period Deed 1108 was notarized, his notarial 20

commission t hen issued was for Quezon City. [11] Deed 1108 was, however, notarized in Pasig City. To compound matters, he admitted having notarized hundreds of documents in Pasig City, where he used to hold office,  [12] during the period that his notarial commission was only for and within Quezon City. While seemingly appearing to be a harmless incident, respondents act of notarizing documents in a place outside of or beyond the authority granted by his notarial commission, partakes of malpractice of law and falsification. While perhaps not on all fours because of the slight dissimilarity in the violation involved, what the Court said in Nunga v. Viray  [13] is very much apropos:

seriously affects the standing and character of a respondent as an officer of the court and as a member of the bar. Disbarment should never be decreed where any lesser penalty, such as t emporary suspension, could accomplish the end desired. [18]

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 [act] without such commission is a violation of t he lawyers oath to obey the l aws, 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. It cannot be over-emphasized that notarization is not an empty, m eaningless, routinary act. Far f rom it. Notarization is invested with substantive public interest, such that only those who are qualified or authorized may act as notaries public. [14] Hence, the requirements for the issuance of a commission as notary public are treated with a formality definitely more than casual.[15]

In Zoreta v. Simpliciano,[21] the Court meted the penalty of two (2) years suspensio n from law pra ctice on Atty. Simpliciano as well as his permanent disqualification from being commissioned as notary public for notarizing several documents after his commission as notary public had already expired.

For all legal intents and purposes, respondent, by performing through the years notarial acts in Pasig City where he is not so author ized, has indulged in deliberate falsehood. By such malpractice as a notary public, respondent likewise violated Canon 7 of the Code of Professional Responsibility, which directs every lawyer to uphold at all times the integrity and dignity of the legal profession. To be sure, respondent cannot plausibly seek refuge in the complainants alleged delay in filing the instant complaint for disbarment. He cannot, as a means to defeat the present charge, invoke the complainants ill-motive in filing said complaint. We have, time and again, held that t he Courts disciplinary authority cannot be defeated or frustrated by a mere delay in filing the complaint, or by the complainants motivation to do so. The practice of law is so delicately affected by public interest that it is both a right and a duty of the State to control and regulate it in order to protect and promote public welfare. [16] Indeed, we have held that an administrative complaint against a member of the bar does not prescribe.[17] Needless to stress, respondent cannot escape from disciplinary action in his capacity as member of the bar and as a notary public. His proven transgression does not, however, merit disbarment, as urged by the complainant. This most severe form of disciplinary sanction ought to be imposed only in a clear case of misconduct that

The IBP Report recommended the revocation of respondents commission as a notary public (in any jurisdiction), if still existing, and that he henceforth be disqualified from being commissioned as such for a period of one (1) year. A one-month suspension from the practice of law for violation of Canon 1[19] and Rule 1.01[20] of the Code of Professional Responsibility is also recommended for t he respondent.

Considering the circumstances and the extent of respondents willful malfeasance, and guided by Zoreta, a penalty higher than that recommended by the IBP Commission on Bar Discipline ought to be imposed. WHEREFORE, respondent Atty. Renato L. Gonzales is PERMANENTLY BARRED from being commissioned as Notary Public. He is f urthermore SUSPENDED from the practice of law for a period of two (2) years, effective upon receipt of a copy of this Decision.

Let copies of this Decision be furnished all the courts of the l and, through the Office of the Court Administrator, as well as the Integrated Bar of the Philippines, and let the Office of the Bar Confidant be notified of this Decision which is hereby ordered duly recorded in the personal files of the r espondent. SO ORDERED. BENILDA M. MADDELA v. ATTY. ROSALIE DALLONG-GALICINAO  A.C. No. 6491, 31 January 2005, FIRST DIVISION (Davide, CJ, J .) A disbarment case was filed before t he Office of the Court Administrator (OCA) by h ereincomplainant Benilda M. Maddela (Maddela) against Atty. Rosalie DallongGalicinao (Atty. Galicinao) for “acts unbecoming a public servant and a lawyer, grave misconduct and slander”.Maddela averred that she loaned an amount of Forty Thousand Pesos (P40,000.00) from Atty.Galicinao. In November 2001, since part of the loan remained unpaid, Atty. Galicinao went to Maddela'soffice and took the latter’s  cash gift check amounting to Five Thousand Pesos (P 5,000) in her absence and without her knowledge. There, Atty. Galicinao 'uttered unsavory and humiliating words' against her. Onother occasions, Atty. Galicinao collected from Maddela an amount equivalent to one-half of the face valueof the checks she received as benefit from the Judiciary Development Fund (JDF). 21

P a g e | 27 Legal Ethics Case DigestJudge Philip Aguinaldo3AA, A.Y. 2011-2012 On 10 December 2002, the respondent went again to the office of the complainant and demandedone-half of the value of the check representing a cash gift of Five Thousand Pesos (P 5,000). Maddelarefused, reasoning that it was a cash gift, not a JDF check and, therefore, not covered by their agreement.Maddela's refusal to part with the amount angered Atty. Galicinao, prompting the latter to r aise her voice,utter 'unsavory remarks' against Maddela, and banged her fist on top of the Maddela's table, causing theglass top of the table to break.To further support her bid for the disbarment of Atty. Galiciano, Maddela, through the affidavit of acertain Mr. Rilloraza, alleged th at Att y. Gali cinao is also guilt y of notarizin g documents outside the area of her commission. Maddela claimed that although  Atty. Galicinao was not yet a lawyer, she was issued anotarial commissionand even notarized certain documents outside of her commission.Ma dd el a li ke wi se a ll eg ed t ha t de sp i t e the death of Atty. Galicinao’s h us ba nd , At ty . Ga li ci na ocontinued to receive and encash for at least (3) three months checks corresponding to her husband's salariesas Ex-Officio Sheriff of the Office of the Clerk of Court of Nueva Vizcaya. Maddela even pointed out that  Atty.Galicinao continued to claim the higher allowable deductions as a married individual despite the death of her husband. Atty. Galiciano denied the allegations but with respect to the documents that she notarized outsideof her notarial commission, she reasoned that she did such for her relatives and she did not derive any income from the transactions . In 2004, Commissioner Rebecca Villanueva-Maala submitted her report andrecomm endation. She stated that Atty. Galicinao was able to prove that she was not the creditor of theMaddela and that Atty. Galicinao did not claim her husband's salary and avail herself of the higher allowableta x deductions even after his death. However, she will be suspended for six (6) months for the acts of notarizing outside the area of her notarial commission and obtaining the JDF checks of the complainantfrom the cash clerk in violation of Supreme Court Circular No. 27-2001.On 16 April 2004, the Board of Governors of the IBP issued Resolution No. XVI-2004-227 in CBDNo . 031060, annulling and setting aside Commissioner Maala's recommendatio n; dismissing theadministrative complaint against Atty. Galicinao with respect to the charge of violating a Supreme CourtCircular for collecting a loan for which she acted as a guarantor; and imposing upon the respondent thepenalty of reprimand for her act of notarizing documents outside the area where she was commissioned as anotary public. The said ruling was affirmed by the Supreme Court with a modification as to the penalty. ISSUE: Whether or not Atty. Galicinao should be disciplined f or having notarized docum ents outside of hernotarial commission HELD:Notarization is invested with s u b s t a n t i v e p u b l i c i n t e r e s t s u c h t h a t o n l y t h o s e who are qualified may act as notaries public. We have declared on several occasions, that notarization is not an empty, meaningless, routinary act. It is invested with substantive public interest, such that onlythose who are

qualified or authorized may ac t as no ta rie s pu bli c. The pr ot ect io n of th at interest necessari ly requir es that those not qualified orauthorized to act must be prevented from imposing upon the public, the courts, and the administrativeoffices in general. It must be underscored that the notarization by a notary public converts a privatedocument into a public document, making that document admissible in evidence without further proof of the authenticity thereof ( Nunga v. Viray  , A.C. No. 4758, 366 Phil. 155, 160 [1999]).Thus, we are not satisfi ed with respondent's explanat ion that she notarized docum ents outsi de of thearea of her notarial commission as a favor to her relatives and for free. Whether the respondent derivedprofit from her act of notarizing outside the area of her authority is of no moment. The fact remains that shenotarized outside the area of her commission. Considering, however, that her misconduct as a notary public was committed whi le she was not yet a lawyer, she could not be disciplinarily dealt with as a lawyer. Thepenalty that should be meted to her should, therefore, be as a notary public before she was admitt ed to th eBar. The penalty of fine would be a sufficient sanction.

PEOPLE VS TUANDA FACTS: Respondent Fe T. Tuanda, a member of the Philippine Bar, asks this Court to lift the suspension from the pr actice of law imposed upon her by a decision of the Court of Appeals. In 1983, Atty. Fe Tuanda received from one Herminia A. Marquez several 22

pieces of jewelry with a total value of P36,000 for sale on commission basis. In 1984, instead of returning the unsold pieces of jewelry worth P26,250, she issued 3 checks. These checks were dishonored by the drawee bank, Traders Royal Bank, for insufficiency of funds. Notwithstanding receipt of the notice of dishonor, Tuanda made no effort to settle her obligation. Criminal cases were filed, wherein she was acquitted of estafa but was found guilty of violation of BP 22 (The Anti-Bouncing Check Law). The appellate court affirmed the decision of the trial court and imposed further suspension against Tuanda in the practice of law, on the ground that the offense involves moral turpitude. Tuanda is now appealing to the Supreme Court for her suspension to be lifted arguing that her suspension was a penalty so harsh on top of the fines imposed to her in violation of the aforementioned law. Arguing further that she intends no damage to t he plaintiff-appellee (Herminia A. Marquez)and she is not guilty of the offense charged.

ISSUE: Whether or not the suspension of Atty. Tuanda be lifted.

HELD: NO. The Court of Appeals correctly ruled that "the offense [of] which she is found guilty involved moral turpitude. Sections 27 and 28 of Rule 138 of the Revised Rules of Court provide as follows: Sec . 27. Attorneys renewed or suspended by Supreme Court on what grounds. A  member of the bar may be removed or suspended from his office as attorney by the Supreme Court of any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a wilful disobedience of any lawful order of a superior court, or for corruptly or wilfully appearing as an attorney for a party to a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice. (Italics supplied) Sec. 28. Suspension of attorney by the Court of Appeals or a Court of First  Instance. —  The Court of Appeals or a Court of First Instance may suspend an attorney from practice for any of the causes named in the last preceding section, and after such suspension such attorney shall not practice his profession until further action of the Supreme Court in t he premises. Conviction of a crime involving moral turpitude relates to and affects the good moral character of a person convicted of such offense. Herein, BP 22 violation is a serious criminal offense which deleteriously affects public interest and public order. The effects of the issuance of a worthless check transcends the private interest of parties directly involved in the transaction and touches the interest of t he community at large. Putting valueless commercial papers in circulation, multiplied a thousand fold, can very well pollute the channels of trade and commerce, injure the banking system and eventually hurt the welfare of society and t he public interest. The crimes of which respondent was convicted also import deceit and violation of her attorney's oath and the Code of Professional Responsibility under both of which she was bound to "obey the laws of the land."

 ACCORDINGLY, the Court Resolved to DENY the Motion to Lift Order of Suspension. Respondent shall remain suspended from the practice of law until further orders from this Court.  ARCIGA vs MANIWANG In 1970, when Maniwang was still a law student, he had a relationship with Arciga, then a medical technology student. They started having a sexual relationship in 1971. In 1973, Arciga got pregnant. The two then went to Arciga’s hometown to tell the latter’s parent about the pregnancy. They also made Arciga’s parents believe that they were already married but they would have to have the church wedding in abeyance until Maniwang passes the bar exams. Maniwang secured a copy of his birth certificate in preparation of securing a marriage license. In 1975, Maniwang passed the bar. But after his oath taking, he stopped communicating with Arciga. Arciga located his whereabouts and there she found out that Maniwang married another woman. Arciga confronted Maniwang’s wife and this irked Maniwang so he inflicted physical injuries upon Arciga.  Arciga then f iled a disbarment case against Maniwang grounded on gross immoral conduct. Maniwang admitted that he is the f ather of Arciga’s child; that he did promise to marry Arciga many times; that he broke those promises because of Arciga’s shady past because apparently Arciga had an illegitimate child even before her son with Maniwang was born. ISSUE: Whether or not Maniwang should be disbarred. HELD: No. The Supreme Court ruled that Maniwang’s case is different from the cases of Mortel vs Aspiras and Almirez vs Lopez, and other cases therein cited. Maniwang’s refusal to marry Arciga was not so corrupt nor unprincipled as to warrant disbarment (though not much discussion was provided by the ponente as to why). But t he Supreme Court did say that it is difficult to state with precision and to fix an inflexible standard as to what is “grossly immoral conduct” or to specify t he moral delinquency and obliquity which render a lawyer unworthy of continuing as a m ember of the bar. The r ule implies that what appears to be unconventional behavior to the straight-laced may not be the immoral conduct that warrants disbarment. 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”.

TOLOSA vs CARGO JOSE TOLOSA, complainant, vs.ALFREDO CARGO, respondent. Facts; Complainant filed a disbarment case towards r espondent claiming immorality. Alleging further that Atty. Alfredo Cargo and his wife is having an affair and that his wife even left their conjugal home to live and rent in a place paid by the respondent. 23

Several issues were also raised alleging immorality and altercations between the complainant and the respondent.

for conduct unbecoming of a lawyer for the non-payment of a loan from complainant's son Luis Constantino, Jr. Facts: Respondent borrowed P1,000.00 from complainant's son Luis, Jr. but failed to pay as promised and he unjustifiably refused and still refuses to pay despite repeated demands from the complainant and his wife after the son has left the country.

Issue; WON Atty. Alfredo Cargo be disbarred.

 As a result a complaint was filed against Saludares for unbecoming an officer of the court and for violation of respondent's oath of office. Saludares in r eply, reasoned out that he was unable to pay because Luis, Jr. failed to appear at the appointed place of the payment because he was out of the country.

Ruling; The Supreme Court agreed with the conclusion of the Solicitor General in not finding the respondent guilty of immorality due to lack of sufficient evidence. However, the court ruled further to WARN Atty. Alfredo Cargo and REPRIMAND him of conduct unbecoming a member of the Bar and an officer of the court. LIZASO vs AMANTE

Ruling:

SHIRLEY CUYUGAN LIZASO, complainant, vs.ATTY. SERGIO AMANTE, respondent Facts; Complainant entrusted Att. Sergio Amante of P 5,000 as investment of which a return of 10% daily interest plus repayment of principal after two months were promised. Respondent failed to do so after several attempts of the complainant to recover the same. The investigation of the office of the Solicitor General showed the respondent submitting falsified documents claiming the complainant's loan of P 20,000 to him and that the amount of P 5,000 now in contest was just a r epayment thereof. Issue; WON Atty Sergio Amante be suspended or disbarred from the practice of law. Ruling; The Supreme Court ruled to SUSPEND INDEFINITELY the respondent having been found engaging in unlawful, dishonest and immoral conduct citing Rule 191 of t he Code of Professional Responsibility. CONSTANTINO vs SALUDARES LUIS vs. ATTY.

The complaint was forwarded to Sol. Gen for investigation who rendered a report that Saludares be charged with violation of Section 27, Rule 138 of the Rules of Court of the Philippines and his Lawyer's Oath and that he be suspended for 1 year from the practice of law.

G. PRUDENCIO

CONSTANTINO, complainant, G.

SALUDARES, respondent.

The Court ordered the Suspension of Attorney Prudencio S. Saludares from the practice of law for a period of three (3) months from notice, with the warning that a repetition of the same or any other misconduct will be dealt with more severely. Grounds

for

ruling:

It has been held that when a lawyer's integrity is challenged by evidence, it is not enough that he denies the charges against him, he must meet the issues and overcome the evidence for the relator and show proof that he still maintains the highest degree of morality and integrity which is at all times expected of him (Quingwa vs. Puno, 19 SCRA 439 [1967] ). The facts and evidence obtaining in this case indubitably establish respondent's failure to live up to his duties as a lawyer in consonance with the strictures of the lawyer's oath, the Code of Professional Responsibility and the Canons of Professional Ethics and that from the very beginning, respondent had no intention to honor and/or pay his just debt which is a conduct of unbecoming, thereby degrading not only his person but his profession as well. While it is true that there was no attorneyclient relationship between respondent and complainant, it is well-settled that an attorney may be removed or otherwise disciplined not only for malpractice and dishonesty in the profession, but also for gross misconduct not connected with his professional duties, showing him to be unfit for t he office and unworthy of t he privileges which his license and the law confer upon him (Lizaso vs. Amante, 198 SCRA 1 [ 1991] ). It is clear to the Court that the conduct of respondent Saludares in failing to honor his  just debt to complainant's son constituted dishonest and immoral conduct. This dishonest conduct was compounded by respondent's act of interjecting paltry excuses for his unwarranted refusal to pay a valid and just debt.

Case filed by complainant Luis G. Constantino against Atty. Prudencio S. Saludares 24

CF SHARP vs TORRES CF Sharp Crew Management, a corporation engaged in overseas maritime employment filed a complaint against its Legal and Claims Manager, lawyer and medical doctor Nicolas, who was tasked by the company to oversee the management and administration of legal cases and medical-related claims filed by seafarers against its various principals. According to the company, on various occasions, it issued checks for P524,000.00, P652,013.20, P145,650.00, P97,100.00 and P296, 808.40 to settle the claims of Bernardo, Rodelio, Joseph and Edmundo. Instead of giving the checks to the seafarers, Nicolas deposited the same in an account at International Exchange Bank. With respect to Rodelio, Nicolas only gave the amount of P216,936.00 and P8,303.00 instead of P652,013.20, these through checks not issued by the company. Due to failure of Nicolas to answer, the IBP Investigating Commissioner recommended that he be suspended for one year. In his belated Verified Answer, Nicolas alleged that his failure to answer on time was due to the fact he was arrested for non-bailable charges filed by complainant against him, and the fact that complainant gave a wrong address. He averred that the seafarers claims had long been settled; he could not have encashed them as they were m ade payable to particular payees; when he resigned in 2008, CF sharp required him to sign promissory notes in order for him to reimburse certain amount not yet accounted by him, in exchange for clearance documents. The IBP Board recommended that he suspended from the practice of law f or two years. The Court’s ruling:  After a judicious perusal of the records, the Court concurs with the findings of the IBP in its report and recommendation, except as to: (a) the recommended penalty to be imposed upon respondent; and (b) the monetary award in favor of the complainant. It is f undamental that the relationship between a lawyer and his client is highly fiduciary and ascribes to a lawyer a great degree of fidelity and good faith[1] . The highly fi duciary nature of this r elationship imposes upon the l awyer the duty to account for the money or property collected or received for or from his client[2] . This is the standard laid down by Rules 16.01 and 16.03, Canon 16 of t he CPR, which read: CANON 16 – A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS POSSESSION. Rule 16.01 – A lawyer shall account for all money or property collected or received for or from the client. Rule 16.03  –  A lawyer shall deliver the funds and property of his client when due or upon demand. x x x. In the foregoing light, it has been held that a lawyer’s failure to return upon demand the funds held by him on behalf of his client gives rise to the presumption that he has appropriated the same for his own use in violation of the trust reposed in him by his client. Such act is a gross violation of general morality as well as of professional ethics[3] . In this case, t he IBP Investigating Commissioner correctly found that complainant had duly proven its charges against respondent. In particular, complainant had exposed respondent’s  modus operandi of repeatedly requesting the issuance of checks purportedly for the purpose of settling seafarers’  claims against the complainant’s various principals, only to have such checks (except for the check in the amount of P145,650.00 issued to Delgado) deposited to an unauthorized bank account, particularly International Exchange Bank, Banawe, Quezon City Branch, under Account

No. 003-10-06902-1. It is well-settled that “when  a lawyer receives money from the client for a particular purpose, the lawyer is bound to render an accounting to the client showing that the money was spent for a particular purpose. And if he does not use the money for the intended purpose, the lawyer must immediately return the money to his client[4] .” This, respondent failed to do. Clearly, respondent’s acts of misappropriation constitute dishonesty, abuse of trust and confidence reposed in him by the complainant, and betrayal of his client’s  interests which he is duty-bound to protect[5] . They are contrary to the mandate of Rule 1.01, Canon 1 of the CPR which provides that “[a]  lawyer shall not engage in unlawful, dishonest, immoral, or deceitful conduct.” Such malfeasance is not only unacceptable, disgraceful, and dishonorable to the legal profession; it also reveals a basic moral flaw that makes him unfit to practice law[6] .  Anent the proper penalty for respondent’s acts, the Court deems it proper to modify the penalty recommended by the IBP. Jurisprudence provides that in similar cases where lawyers misappropriated their clients’  money, the Court imposed upon them the ultimate penalty of disbarment from the practice of law. In Arellano University, Inc. v. Mijares III[7] , the Court disbarred the lawyer for misappropriating his client’s money intended for securing a certificate of title on the latter’s behalf. Similarly, in Freeman v. Reyes,[8]   the same penalty was imposed upon the lawyer who misappropriated the insurance proceeds of her client’s deceased husband.  As already discussed, respondent’s conduct of misappropriating complainant’s  money has made him unfit to remain in the legal profession. He has definitely fallen below the moral bar when he engaged in deceitful, dishonest, unlawful, and grossly immoral acts[9] . As a member of t he Bar, he is expected at all times to uphold the integrity and dignity of the legal profession and refrain fr om any act or omission which might lessen the trust and confidence reposed in him by the public in the fidelity, honesty, and integrity of the legal profession[10 ]. Membership in the legal profession is a privilege, and whenever it is made to appear that an attorney is no longer worthy of the trust and confidence of his clients and the public, it becomes not only the right but also the duty of the Court to withdraw the same[11], as in this case. In view of the foregoing, respondent deserves the ultimate penalty of disbarment from the practice of law. Likewise, the Court cannot concur with the IBP’s recommendation regarding the return of the settlement money respondent received from complainant, considering, among others, that it was not specifically prayed for in t he latter’s administrative complaint and that the civil liability of respondent therefor may already be the subject of existing cases involving the same parties. WHEREFORE, respondent Nicolas C. Torres is found guilty of violating Rule 1.01, Canon 1 and Rules 16.01 and 16.03, Canon 16 of the Code of Professional Responsibility. Accordingly, he is hereby DISBARRED from the practice of law and his name ordered STRICKEN OFF from the roll of attorneys. Let a copy of this Decision be attached to respondent’s record in this Court as attorney. Further, let copies of this Decision be furnished the Integrated Bar of the Philippines and the Office of the Court Administrator, which is directed to circulate them to all the courts in the country for their information and guidance. SO ORDERED. COSMOS vs LOBU

25

Facts: After Cosmos Foundry Shop was burned , Ong Ting established Century Foundry Shop where he and his family resided in the premises. After several attempts to settle a pending unfair labor practice case proved unsuccessful, Ong Ting sold all his business, including equipment and rights in the New Century Foundry Shop to his compadre Lo Bu, for Php20,000.

Rule that certiorari will not be granted where petitioners have plain and adequate remedy in the ordinary course of law will not be enforced where it would result in further delay in satisfaction of judgment that ought to have been enforced years ago. It is about time that a halt be called to the schemes utilized by respondent Lo Bu in his far-fromcommendable efforts to defeat labor’s just claim.

On Jan 16, 1973, petitioner CFSWU obtained from the Court of Industrial Relations the third alias writ of execution for the satisfaction and enforcement of the judgment in its favor. Thereafter, writ was served January 17 and 18, 1973, levying on the personal properties of the Cosmos Foundry Shop or the New Century Foundry Shop for the purpose of conducting the public auction sale.

 A legal counsel is expected to defend a client’s cause but not at the expense of truth and in defiance of the clear purpose of labor laws. For even such case, Atty Busmente had not exculpated himself. He ought to remember that his obligation as an officer of the court, no less than the dignity of the profession, requires that should not act like an errand-boy at the beck and call of his client, ready and eager to do his every bidding. If he fails to keep that admonition in mind, then he puts into serious question his good standing in the bar.

Respondent Lo Bu filed an urgent motion to recall writ of execution, asserting lack of  jurisdiction of the Court of Industrial Relations (CIR). The CIR, in its order dated Feb 23, 1973, denied his motion. So likewise was the motion for reconsideration. Lo Bu appealed by certiorari but the Court denied this petition in its resolution dated July 17, 1993. In the meanwhile, there was a replevin suit by Lo Bu in the Court of First Instance (CFI) Manila covering the same properties. Upon receipt of order from the Court denying certiorari, petitioner Labor Union filed a second motion to dismiss complaint. After the complaint was dismissed by the lower court, decision was elevated to the Court of Appeals. Issues: (1) Whether or not petitioner Labor union has made out a case for certiorari and prohibition. (2) Whether or not counsel Atty Busmente performed his obligation as an officer of the court while sustaining the dignity of the profession while acting as counsel for Lo Bu. Held: Writ of certiorari is granted and the order of Respondent CA reinstating appeal is nullified and set aside. The writ of prohibition is likewise granted, r espondent CA being perpetually restrained from taking any further action in such appeal, except that of dismissing it. Courts should dismiss a suit which has all the earmarks of a subterfuge that was resorted to for t he purpose of frustrating the execution of a judgment in an unfair labor controversy. There was a replevin suit by the same vendee in bad faith, Lo Bu, which was dismissed by the CFI Manila. What is worse, private respondent Lo Bu certainly cannot plead ignorance , as he himself was the petitioner in the certiorari proceedings before this Court. He was a prinicipal in the nefarious scheme to frustrate t he award in favor of the petitioner labor union.

IN THE MATTER OF THE INQUIRY INTO THE 1989 ELECTIONS OF THE INTEGRATED BAR OF THE PHILIPPINES.

PER CURIAM: In the election of the national officers of the Integrated Bar of the Philippines (hereafter "IBP") held on June 3, 1989 at the Philippine International Convention Center (or PICC), the following were elected by the House of Delegates (composed of 120 chapter presidents or their alternates) and proclaimed as officers: NAME

POSITION

 Atty. Violeta Drilon

President

 Atty. Bella Tiro

Executive Vice-President

 Atty. Salvador Lao

Chairman, House of Delegates

 Atty. Renato F. Ronquillo

Secretary, House of Delegates

 Atty. Teodoro Quicoy

Treasurer, House of Delegates

 Atty. Oscar Badelles

Sergeant at Arms, House of Delegates

 Atty. Justiniano Cortes

Governor & Vice-President for Northern Luzon

 Atty. Ciriaco Atienza

Governor & Vice-President for Central Luzon

 Atty. Mario Jalandoni

Governor & Vice-President for Metro Manila 26

 Atty. Jose Aguilar Grapilon

Governor & Vice-President for Southern Luzon

 Atty. Teodoro Almine

Governor & Vice-President for Bicolandia

 Atty. Porfirio Siyangco

Governor & Vice-President for Eastern Visayas

 Atty. Ricardo Teruel

Governor & Vice-President for Western Visayas

 Atty. Gladys Tiongco

Governor & Vice-President for Eastern Mindanao

 Atty. Simeon Datumanong

Governor & Vice-President for Western Mindanao

The newly-elected officers were set to take the t heir oath of office on July 4,1989, before the Supreme Court en banc. However,disturbed by the widespread reports received by some members of the Court from lawyers who had witnessed or participated in the proceedings and the adverse comments published in the columns of some newspapers about the intensive electioneering and overspending by the candidates, led by the main protagonists for the office of president of the association, namely, Attorneys Nereo Paculdo, Ramon Nisce, and Violeta C. Drilon, the alleged use of government planes, and the officious intervention of certain public officials to influence the voting, all of which were done in violation of the IBP By-Laws which prohibit such activities. The Supreme Court en banc , exercising its power of supervision over the Integrated Bar, resolved to suspend the oath-taking of the IBP officers-elect and to inquire into the veracity of the reports.

Mr. Jurado mentioned the resentment of Atty. Drilon's rivals who felt at a disadvantage because Atty. Drilon allegedly used PNB helicopters to visit far-flung IBP chapters on the pretext of distributing Bigay Puso donations, and she had the added advantage of having regional directors and labor arbiters of the Department of Labor and Employment (who had been granted leaves of absence by her husband, the Labor Secretary) campaigning for her. Jurado's informants alleged that there was rampant vote-buying by some members of the U.P. Sigma Rho Fraternity (Secretary Drilon's fraternity), as well as by some lawyers of ACCRA (Angara, Concepcion, Cruz, Regala and Abello Law Office) where Mrs. Drilon is employed, and that government positions were promised to others by the office of the Labor Secretary. Mr. Mauricio in his column wrote about the same matters and, in addition, mentioned "talk of personnel of the Department of Labor, especially conciliators and employers, notably Chinese Filipinos, giving aid and comfort to her (Atty. Drilon's) candidacy," the billeting of out-of-town delegates in plush hotels where they were reportedly "wined and dined continuously, womened and subjected to endless haggling over the price of their votes x x x" which allegedly "ranged from Pl5,000 to P20,000, and, on the day of the election, some twelve to twenty votes which were believed crucial, appreciated to P50,000." In his second column, Mr. Mauricio mentioned "how a top official of the judiciary allegedly involved himself in IBP politics on election day by closeting himself with campaigners as they plotted their election strategy in a room of the PICC (the Philippine International Convention Center where the convention/election were held) during a recess x x x."

It should be stated at the outset that the election process itself (i.e. the voting and the canvassing of votes on June 3, 1989) which was conducted by the "IBP Comelec," headed by Justice Reynato Puno of the Court of Appeals, was unanimously adjudged by the participants and observers to be above board. For Justice Puno took it upon himself to device safeguards to prevent tampering with, and marking of, the ballots.

Mr. Locsin in his column and editorial substantially re-echoed Mauricio's reports with some embellishments.

What the Court viewed with considerable concern was the reported electioneering and extravagance that characterized the campaign conducted by the three candidates for president of the IBP.

Responding to the critical reports, the Court, in its en banc  resolution dated June 15, 1989, directed the outgoing and incoming members of the IBP Board of Governors, the principal officers and Chairman of the House of Delegates to appear before it on Tuesday, June 20, 1989, at 2:00 o'clock p.m., and there to inform the Court on the veracity of the aforementioned reports and t o recommend, for the consideration of the Court, appropriate approaches to the problem of confirming and strengthening adherence to the fundamental principles of the IBP.

I. MEDIA ACCOUNT OF THE ELECTION CAMPAIGN. Emil Jurado, in his column "IBP Group Questions Drilon Election" (Manila Standard, Sunday, June 17, 1989), Luis Mauricio, in two successive columns: "The Invertebrated Bar" (Malaya, June 10, 1989) and "The Disintegrating Bar" (Malaya, June 20, 1989), and Teodoro Locsin Jr. in an article, entitled "Pam-Pam" (The Philippines Free Press, July 8,1989), and the editorial, entitled 'Wrong Forum" of the Daily Globe (June 8, 1989), were unanimously critical of the "vote-buying and pressure tactics" allegedly employed in the campaign by the three principal candidates: Attys. Violeta C. Drilon, Nereo Paculdo and Ramon Nisce who reportedly "poured heart, soul, money and influence to win over the 120 IBP delegates."

II. THE COURT'S DECISION TO INVESTIGATE.

In that resolution the Court "call[ed] to m ind that a basic postulate of t he Integrated Bar of the Philippines (IBP), heavily stressed at the time of its organization and commencement of existence, is that the IBP shall be non-political in character and that there shall be no lobbying nor campaigning in the choice of members of the Board of Governors and of the House of Delegates, and of the IBP officers, national, or regional, or chapter. The fundamental assumption was that officers, delegates and governors would be chosen on the basis of professional merit and willingness and ability to serve." 27

The resolution went on to say that the "Court is deeply disturbed to note that in connection with the election of members of the Board of Governors and of the House of Delegates, there is a widespread belief, based on reports carried by media and transmitted as well by word of mouth, that there was extensive and intensive campaigning by candidates for IBP positions as well as expenditure of considerable sums of money by candidates, including vote-buying, direct or indirect." The venerable retired Supreme Court Justice and IBP President Emeritus, Jose B.L. Reyes, attended the dialogue, upon invitation of the Court, to give counsel and advice. The meeting between the Court en banc on the one hand, and the outgoing and in coming IBP officers on the other, was an informal one. Thereafter, the Court resolved to conduct a formal inquiry to determine whether the prohibited acts and activities enumerated in the IBP By-Laws were committed before and during t he 1989 elections of IBP's national officers. The Court en banc formed a committ ee and designated Senior Ass ociate Justic e  Andres R. Narvasa, as Chairman, and Associate Justices Teodoro R. Padilla, Emilio  A. Gancayco, Abraham F. Sarmiento, and Carolina C. Griño-Aquino, as members, to conduct the inquiry. The Clerk of Court, Atty. Daniel Martinez, acted as the committee's Recording Secretary.  A total of forty-nine ( 49) witnesses appeared and testified in response to subpoenas issued by the Court to shed light on the conduct of the elections. The managers of three five-star hotels the Philippine Plaza, the Hyatt, and the Holiday Inn where the three protagonists (Drilon, Nisce and Paculdo) allegedly set up their respective headquarters and where they billeted their supporters were summoned. The officer of the Philippine National Bank and the Air Transport Office were called to enlighten the Court on the charge that an IBP presidential candidate and the members of her slate used PNB planes to ferry them to distant places in their campaign to win the votes of delegates. The Philippine Airlines officials were called to testify on the charge that some candidates gave free air fares to delegates to the convention. Officials of the Labor Department were also called to enable the Court to ascertain the truth of the reports that labor officials openly campaigned or worked for the election of Atty. Drilon. The newspaper columnists, Messrs. Luis Mauricio, Jesus Bigornia and Emil Jurado were subpoenaed to determine the nature of their sources of information relative to the IBP elections. Their stories were based, they said, on letters, phone calls and personal interviews with persons who claimed to have knowledge of the facts, but whom they, invoking the Press Freedom Law, refused to identify.

 Article I, Section 4 of the IBP By-Laws emphasizes the "strictly non-political" character of the Integrated Bar of the Philippines, thus: "SEC. 4. Non-political Bar. —  The Integrated Bar is strictly nonpolitical, and every activity tending to impair this basic feature is strictly prohibited and shall be penalized accordingly. No lawyer holding an elective, judicial, quasi-judicial, or prosecutory office in the Government or any political subdivision or instrumentality thereof shall be eligible for election or appointment to any position in the Integrated Bar or any Chapter thereof. A Delegate, Governor, officer or employee of the Integrated Bar, or an officer or employee of any Chapter thereof shall be considered ipso facto resigned from his position as of the moment he files his certificate of candidacy for any elective public office or accepts appointment to any judicial, quasi judicial, or prosecutory office in the Government or any political subdivision or instrumentality thereof. "' Section 14 of the same By-Laws enumerates the prohibited acts relative to IBP elections: SEC. 14. Prohibited acts and practices relative to elections. — The following acts and practices relative to election are prohibited, whether committed by a candidate for any elective office in the Integrated Bar or by any other member, directly or indirectly, in any form or manner, by himself or through another person: (a) Distribution, except on election day, of election campaign material; (b) Distribution, on election day, of election campaign material other than a statement of the biodata of a candidate on not more than one page of a legal-size sheet of paper; or causing distribution of such statement to be done by persons other t han those authorized by the officer presiding at the elections; (c) Campaigning for or against any candidate, while holding an elective, judicial, quasi-judicial or prosecutory office in the Government or any political subdivision, agency or instrumentality thereof;

The Committee has since submitted its Report after receiving, and analyzing and assessing evidence given by such persons as were perceived to have direct and personal knowledge of the relevant facts; and the Court, after deliberating thereon, has Resolved to accept and adopt the same.

(d) Formation of tickets, single slates, or combinations of candidates, as well as the advertisement thereof;

III. PROHIBITED ACTS AND PRACTICES UNDER IBP BY-LAWS.

(e) For the purpose of inducing or influencing a member to withhold his vote, or to vote for or against a candidate, (1) payment of the dues or other indebtedness of any member; (2) giving of food, drink, 28

entertainment, transportation or any article of value, or any similar consideration to any person; or (3) making a promise or causing an expenditure to be made, offered or promised to any person." Section 12(d) of the By-Laws prescribes sanctions for violations of the above rules: (d) Any violation of the rules governing elections or commission of any of the prohibited acts and practices defined in Section 14 prohibited Acts and Practices relative to elections) of the by-laws of the Integrated Bar shall be a ground for the disqualification of a candidate or his removal from office if elected, without prejudice to the imposition of sanctions upon any erring m ember pursuant to the By-laws of the Integrated Bar.  At t he formal investigation which was conducted by the investigating committee, the following violations were established: (1) Prohibited campaigning and solicitation of votes by the candidates for president, executive vice-president, the officers of candidate the House of Delegates and Board of Governors. The three candidates for IBP President Drilon, Nisce and Paculdo began travelling around the country to solicit the votes of delegates as early as April 1989. Upon the invitation of IBP President, Leon Garcia, Jr. (t.s.n., July 13,1989, p. 4), they attended the Bench and Bar dialogues held in Cotabato in April 1989 (t.s.n., June 29, 1989, p. 123), in Tagaytay City, Pampanga, and in Baguio City (during the conference of chapter presidents of Northern Luzon (t.s.n., July 3,1989, p. 113; t.s.n., July 10, p. 41; t.s.n., July 13, p. 47) where they announced their candidacies and met the chapter presidents.  Atty. Nisce admitted that he went around the country seeking the help of IBP chapter officers, soliciting their votes, and securing their written endorsements. He personally hand-carried nomination forms and requested the chapter presidents and delegates to fill up and sign the forms to formalize their commitment to his nomination for IBP President. He started campaigning and distributing the nomination forms in March 1989 after the chapter elections which determined the membership of the House of Delegates composed of the 120 chapter presidents (t.s.n., June 29, 1989, pp. 82-86). He obtained forty ( 40) commitments. He submitted photocopies of his nomination forms which read: "Nomination Form

I Join in Nominating

as National President of the Integrated Bar of the Philippines

 ______________ _______________ Chapter Signature"  Among those who signed the nomination forms were: Onofre P. Tejada, Candido P. Balbin, Jr., Conizado V. Posadas, Quirico L. Quirico Ernesto S. Salun-at, Gloria C.  Agunos, Oscar B. Bernardo, Feliciano F. W ycoco, Amor L. Ib arra, Jose M. Atienza, Jose N. Contreras, Romeo T. Mendoza, Leo C. Medialdea, Jr., Paulino G. Clarin, Julius Z. Neil, Roem J. Arbolado Democrito M. Perez, Abelardo Fermin, Diosdado B. Villarin, Jr., Daniel C. Macaraeg, Confesor R. Sansano Dionisio E. Bala, Jr., Emesto A. Amores, Romeo V. Pefianco, Augurio C. Pamintuan, Atlee T. Viray, Ceferino C. Cabanas, Jose S. Buban, Diosdado Z. Reloj, Jr., Cesar C. Viola, Oscar C. Fernandez, Ricardo B. Teruel Rodrigo R. Flores, Sixto Marella, Jr., Arsenio C. Villalon, Renato F. Ronquillo,  Antonio G. Nalapo Romualdo A. Din Jr., Jose P. Icaonapo Jr., and Manuel S. Person.  Atty. Nisce admitted that he reserved rooms at the Hyatt Hotel based on the commitments he had obtained (t.s.n., June 29, 1989, pp. 82-85). Unfortunately, despite those formal commitments, he obtained only 14 votes in the election (t.s.n., June 29, 1 989, p. 86). The reason, he said, is that. some of those who had committed their votes to him were "manipulated, intimidated, pressured, or remunerated" (t.s.n., June 29,1989, pp. 8695; Exhibit "M-4-Nisce," t.s.n., July 4, 1989, pp. 100-1 04). (2) Use of PNB plane in the campaign. The records of the Philippine National Bank (Exhibit C-1-Crudo and Exhibit C-2-Crudo) show that Secretary Fulgencio S. Factoran, Jr. of the Department of Environment & Natural Resources (DENR) borrowed a plane from the Philippine National Bank for his Bicol CORD (Cabinet Officers for Regional Development) Assistant, Undersecretary  Antonio Tria. The plane manifest (Exh. C-2-Crudo) listed Atty. Violeta Drilon, Arturo Tusi (Tiu), Assistant Secretary for Environment and Natural Resources (DENR) Tony Tria, Atty. Gladys Tiongco, and Amy Wong. Except for Tony Tria, the rest of the passengers were IBP candidates.  Atty. Drilon admitted that she "hitched" a ride on a PNB plane. She said that she was informed by Atty. Tiu about the availability of a PNB plane (t.s.n., July 3,1989, pp. 116118).

RAMON M. NISCE 29

 Atty. Tiu, who ran for t he position of I BP executive vice-president in the Drilon ticket, testified that sometime in May 1989 he failed to obtain booking from the Philippine  Airlines for the projected trip of his group to Bicol. He went to the DENR allegedly to follow up some papers for a client. While at the DENR, he learned that Assistant Secretary Tria was going on an official business in Bicol for Secretary Fulgencio Factoran and that he would be taking a PNB plane. As Assistant Secretary Tria is his fraternity brother, he asked if he, together with the Drilon group, could hitch a ride on the plane to Bicol. His request was granted. Their purpose in going to Bicol was to assess their chances in the IBP elections. The Drilon company talked with the IBP chapter presidents in Daet, Naga, and Legaspi, and asked for their support (t.s.n., July 10, 1989, pp. 549).  Assistant Secretary Antonio S. Tria confirmed the use of a PNB plane by Atty. Drilon and her group. He recalled that on May 23,1989, DENR Secretary Factoran instructed him to go to Bicol to monitor certain r egional development projects there and t o survey the effect of the typhoon that hit the region in the middle of May. On the same day, Atty. Tiu, a fraternity brother (m eaning that Tiu belongs to the Sigma Rho fraternity) went to the DENR office and requested the Secretary (Factoran) if he (Tiu) could be allowed to hitch a ride on the plane. Assistant Secretary Tria, t ogether with the Drilon group which included Attorneys Drilon, Grapilon, Amy Wong, Gladys Tiongco, and Tiu, took off at the Domestic Airport bound for Naga, Daet and Legaspi. In Legaspi the Drilon group had lunch with Atty. Vicente Real, Jr., an IBP chapter president (t.s.n., July 10, 1989, pp. 54-69). (3) Formation of tickets and single slates. The three candidates, Paculdo, Nisce and Drilon, admitted having formed their own slates for the election of IBP national officers on June 3, 1989.  Atty. Paculdo's slate consisted of —  himself for President; Bella D. Tiro, for Executive Vice-President; and for Governors: Justiniano P. Cortez (Northern Luzon), Oscar C. Fernandez (Central Luzon), Mario C.V. Jalandoni (Greater Manila), Petronilo A. de la Cruz (Southern Luzon), Teodorico C. Almine, Jr. (Bicolandia), Ricardo B. Teruel (Western Visayas), Porfirio P. Siyangco (Eastern Visayas), Jesus S. Anonat (Western Mindanao), Guerrero A. Adaza, Jr. (Eastern Mindanao) (Exhibit M-Nisce). The Drilon ticket consisted of. Violeta C. Drilon for President, Arturo Tiu for Executive Vice President, Salvador Lao for Chairman of the House of Delegates, and, for Governors: Basil Rupisan (Northern 'Luzon), Acong Atienza (Central Luzon), Amy Wong (Metro Manila), Jose Grapilon (Southern Tagalog), Teodoro Almine (Bicolandia), Baldomero Estenzo (Eastern Visayas), Joelito Barrera (Western Visayas), Gladys Tiongco (Eastern Mindanao), Simeon Datumanong (Western Mindanao) (Exhibit M-1Nisce).  Atty. Ramon N. Nisce's line-up listed himself and Confessor B. Sansano Benjamin B. Bernardino, Antonio L. Nalapo Renato F. Ronquillo, Gloria C. Agunos, Mario Valderrama, Candido P. Balbin Jr., Oscar C. Fernandez, Cesar G. Viola, Leo C.

Medialdea, Jr., Vicente P. Tordilla, Jr., Jose S. Buban, Joel A. Llosa, Jesus T. Albacite and Oscar V. Badelles. (4) Giving free tr ansportation to out-of-town delegates and alternates.  Atty. Nisce admitted having bought plane tickets for some delegates to the convention. He mentioned Oscar Badelles to whom he gave four round-trip tickets (worth about P10,000) from Iligan City to Manila and back. Badelles was a voting delegate. Nisce, however, failed to get a written commitment from him because Atty. Medialdea assured him (Nisce) "sigurado na 'yan, h'wag mo nang papirmahin." Badelles won as sergeantat-arms, not in Nisce's ticket, but in that of Drilon. Badelles admitted that Nisce sent him three airplane tickets, but he Badelles said that he did not use them, because if he did, he would be committed to Nisce, and he Badelles did not want to be committed (t.s.n., July 4,1989, pp. 77-79, 95-96). Nisce also sent a plane ticket to Atty. Atilano, who was his candidate, and another ticket to Mrs. Linda Lim of Zamboanga. Records of the Philippine Airlines showed that Atty. Nisce paid for the plane tickets of Vicente Real, Jr. (Exh. D-1-Calica), Romeo Fortes (Exh. D-1-Calica), Cesar Batica (Exh. D-2-Calica), Jose Buban of Leyte (Exh. D-2Calica), Delsanto Resuello (Exh. D-3- Calica), and Ceferino Cabanas (Exh. D-3Calica). In spite of his efforts and expense, only one of Nisce's candidates won: Renato Ronquillo of Manila 4, as Secretary of the House of Delegates (t.s.n. July 3, p. 161). (5) Giving free hotel accommodations, food, drinks, entertainment to delegates. (a) ATTY. NEREO PACULDO  Atty. Paculdo alleged that he booked 24 regular rooms and three suites at the Holiday Inn, which served as his headquarters. The 24 rooms were to be occupied by his staff (mostly ladies) and the IBP delegates. The three suites were to be occupied by himself, the officers of t he Capitol Bar Association, and Atty. Mario Jalandoni. He paid P150,000 for the hotel bills of his delegates at the Holiday Inn, where a room cost P990 per day with breakfast. Those listed as guests of Atty. Paculdo at the Holiday Inn were: Emesto C. Perez, Tolomeo Ligutan Judge Alfonso Combong, Ricardo Caliwag, Antonio Bisnar, Benedicto Balajadia, Jesus Castro, Restituto Villanueva, Serapio Cribe Juanita Subia, Teodorico J. Almine, Rudy Gumban, Roem Arbolado, Ricardo Teruel, Shirley Moises, Ramon Roco, Alberto Trinidad, Teodoro Quicoy Manito Lucero, Fred Cledera Vicente Tordilla, Julian Ocampo, Francisco Felizmenio Marvel Clavecilla, Amador Capiral, Eufronio Maristela, Porfirio Siyangco, William Llanes, Jr., Marciano Neri, Guerrero Adaza, Diosdado Peralta, Luis C. Formilleza, Jr., Democrito Perez, Bruno Flores, Dennis Rendon, Judge Ceferino Chan, Mario Jalandoni, Kenneth Siruelo Bella Tiro, Antonio 30

Santos, Tiburcio Edano James Tan, Cesilo A. Adaza, Francisco Roxas, Angelita Gacutan, Jesse Pimentel, Judge Jaime Hamoy, Jesus Anonat, Carlos Egay, Judge Carlito Eisma, Judge Jesus Carbon, Joven Zach, and Benjamin Padon.

(h) Cosme Rossel

15,300

(t.s.n. July 4, 1 989, pp. 3-4) Noel de Guzman, Holiday Inn's credit m anager, testified that Atty. Paculdo booked 52 (not 24) rooms, including the presidential suite, which was used as the Secretariat. The group bookings were made by Atty. Gloria Paculdo, the wife of Nereo Paculdo (t.s.n. June 28, 1989, pp. 63-68). The total sum of P227,114.89 was paid to Holiday Inn for the use of the rooms. (b) ATTY. VIOLETA C. DRILON The delegates and supporters of Atty. Drilon were billeted at the Philippine Plaza Hotel where her campaign manager, Atty. Renato Callanta, booked 40 rooms, 5 of which were suites. According to Ms. Villanueva, Philippine Plaza banquet and conventions manager, the contract that Atty. Callanta signed with the Philippine Plaza was made in the name of the "IBP c/o Atty. Callanta." Mrs. Lourdes Juco, a sales manager of the Philippine Plaza, recalled that it was Mr. Mariano Benedicto who first came to book rooms for the I BP delegates. She suggested that he obtain a group (or discounted) rate. He gave her the name of Atty. Callanta who would make the arrangements with her. Mr. Benedicto turned out to be the Assistant Secretary of the Department of Labor and Employment (DOLE). The total sum of P316,411.53 was paid by Atty. Callanta for the rooms, food, and beverages consumed by the Drilon group, with an unpaid balance of P302,197.30. Per  Attorney Daniel Martinez's last telephone conversation with Ms. Villanueva, Atty. Callanta still has an outstanding account of P232,782.65 at Philippine Plaza.  Atty. Callanta admitted that he signed the contract for 40 rooms at the Philippine Plaza. He made a downpayment of P123,000. His "working sheet' showed that the following persons contributed for that down payment: (a) Nilo Pena (Quasha Law Office)

P 25,000

(b) Antonio Carpio

20,000

(c) Toto Ferrer (Carpio Law Office)

10,000

(d) Jay Castro

10,000

(e) Danny Deen

20,000

(f) Angangco Tan (Angara Law Office)

10,000

(g) Alfonso Reyno

20,000

 Atty. Callanta explained that t he above listed persons have been contributing money every time the IBP embarks on a project. This time, they contributed so that their partners or associates could attend the legal aid seminar and the IBP convention too.  Atty. Drilon alleged that she did not know that Atty. Callanta had billeted her delegates at the Philippine Plaza. She allegedly did not also know in whose name the room she occupied was registered. But she did ask for a room where she could rest during the convention. She admitted, however, that she paid f or her hotel room and meals to Atty. Callanta, through Atty. Loanzon (t.s.n. July 3,1989). The following were listed as having occupied the rooms reserved by Atty. Callanta at the Philippine Plaza: Violeta Drilon, Victoria A. Verciles, Victoria C. Loanzon, Leopoldo  A. Consulto Ador Lao, Victoria Borra, Aimee Wong, Callanta, Pena, Tiu, Gallardo,  Acong Atienza, D. Bernardo, Amores, Silao Caingat, Manuel Yuson, Simeon Datumanong, Manuel Pecson, Sixto Marella, Joselito Barrera, Radon Macalalag, Oscar Badelles, Antonio Acyatan, Ildefonso C. Puerto, Nestor Atienza, Gil Batula Array Corot, Dimakuta Corot Romeo Fortes Ir ving Petilla, Teodoro Palma, Gil Palma, Danilo Deen, Delsanto, Resuello, Araneta, Vicente Real, Sylvio Casuncad Espina, Guerrero, Julius Neri, Linda Lim, Ben Lim, C. Batica, Luis Formilleza, Felix Macalag Mariano Benedicto, Atilano, Araneta, Renato Callanta.  Atty. Nilo Pena admitted that the Quasha Law Office of which he is a senior partner, gave P25,000 to Callanta for rooms at the Philippine Plaza so that some members of his law firm could campaign for the Drilon group (t.s.n. July 5,1989, pp. 7678) during the legal aid seminar and the I BP convention. Most of the members of his law firm are fraternity brothers of Secretary Drilon (meaning, members of the Sigma Rho Fraternity). He admitted being sympathetic to the candidacy of Atty. Drilon and the members of her slate, two of whom Jose Grapilon and Simeon Datumanong —  are Sigma Rhoans. They consider Atty. Drilon as a "sigma rho sister," her husband being a sigma rhoan.  Atty. Antonio Carpio, also a Sigma Rhoan, reserved a room for the members of his own firm who attended the legal aid seminar and the convention. He made the reservation through Atty. Callanta to whom he paid P20,000 (t.s.n. July 6,1989, pp. 30-34).  Atty. Carpio assisted Atty. Drilon in her campaign during the convention, by soliciting the votes of delegates he knew, like Atty. Albacite his former teacher (but the latter was already committed to Nisce), and Atty. Romy Fortes, a classmate of his in the U.P. College of Law (t. t.s.n. July 6, 1989, pp. 22, 29, 39). (c) ATTY. RAMON NISCE. 31

 Atty. Nisce, through his brother-in-law, Ricardo Paras, entered into a contract with the Hyatt Hotel for a total of 29 rooms plus one (1) seventh-floor room. He made a downpayment of P20,000 (t.s.n. June 28, 1989, p. 58) on April 20, 1989, and P37,632.45 on May 10, or a total of P57,632.45. Ms. Cecile Flores, Ms. Milagros Ocampo, and Mr. Ramon Jacinto, the sales department manager, credit manager, and reservation manager, respectively of the Hyatt, testified that Atty. Nisce's bill amounted to P216,127.74 (t.s.n. June 28, 1989, pp. 57-58; Exhibits E-Flores, F-Jacinto G-Ocampo).  As earlier mentioned, Atty. Nisce admitted that he reserved rooms for those who committed themselves to his candidacy. The hotel guests of Atty. Nisce were: Gloria Agunos Dennis Habanel B. Batula, John E. Asuncion, Reynaldo Cortes, Lourdes Santos, Elmer Datuin, Romualdo Din, Antonio Nalapo, Israel Damasco, Candido Balbin, Serrano Balot, Ibarra, Joel Llosa, Eltanal, Ruperto, Asuncion, Q. Pilotin Reymundo P. Guzman, Zoilo Aguinaldo, Clarin, R. Ronquillo, Dominador Carillo, Filomeno Balinas, Ernesto Sabulan, Yusop Pangadapun,  A. Viray, Icampo, Abelardo Fermin, C. Quiaoit, Augurio Pamintuan, Daniel Macaraeg, Onofre Tejada.

(candidate for Governor, Metro Manila). These two r ooms served as the "action center' or "war room" where campaign strategies were discussed before and during the convention. It was in these rooms where the supporters of the Drilon group, like Attys. Carpio, Callanta, Benedicto, the Quasha and the ACCRA lawyers met to plot their moves. (7) Paying the dues or other indebtedness of any number (Sec. 14[e], IBP BY-Laws).  Atty. Teresita C. Sison, IBP Treasurer, testified that she has heard of candidates paying the IBP dues of lawyers who promised to vote for or support them, but she has no way of ascertaining whether it was a candidate who paid the delinquent dues of another, because the receipts are issued in the name of the m ember for whom payment is made (t.s.n. June 28, 1989, pp. 24-28). She has noticed, though, that there is an upsurge of payments in March, April, May during any election year. This year, the collections increased by P100,000 over that of last year (a non-election year from Pl,413,425 to Pl,524,875 (t.s.n. June 28, 1989, p. 25). (8) Distribution of materials other than bio-data of not more than one page of legal size sheet of paper (Sec. 14[a], I BP By-Laws).

(6) Campaigning by labor officials for Atty. Violeta Drilon In violation of the prohibition against "campaigning for or against a candidate while holding an elective, judicial, quasi-judicial, or prosecutory office in the Government' (Sec. 14[c], Art. I, IBP By-Laws), Mariano E. Benedicto II, Assistant Secretary, Department of Labor and Employment, testified that he took a leave of absence from his office to attend the I BP convention. He stayed at the Philippine Plaza with the Drilon group admittedly to give "some moral assistance" to Atty. Violeta Drilon. He did so because he is a member of the Sigma Rho Fraternity. When asked about the significance of Sigma Rho, Secretary Benedicto explained: "More than the husband of Mrs. Drilon being my boss, the significance there is that the husband is my brother in the Sigma Rho." He cheered up Mrs., Drilon when her spirits were low. He talked to her immediate circle which included Art Tiu, Tony Carpio, Nilo Pena, Amy Wong, Atty. Grapilon, Victor Lazatin, and Boy Reyno. They assessed the progress of the campaign, and measured the strengths and weaknesses of the other groups The group had sessions as early as the later part of May.

On the convention floor on the day of the election, Atty. Paculdo caused to be distributed his bio-data and copies of a leaflet entitled "My Quest," as wen as, t he lists of his slate. Attys. Drilon and Nisce similarly distributed their tickets and bio-data. The campaign materials of Atty. Paculdo cost from P15,000 to P20,000. They were printed by his own printing shop. (9) Causing distribution of such statement to be done by persons other than those authorized by the officer presiding at the election (Sec. 14[b], IBP By- Laws).  Atty. Paculdo employed uniformed girls to distribute his campaign materials on t he convention floor. Atty. Carpio noted that there were more campaign materials distributed at the convention site this year than in previous years. The election was more heated and expensive (t.s.n. July 6,1989, p. 39).

Room 114, the suite listed in the name of Assistant Secretary Benedicto toted up a bill of P23,110 during the 2-day IBP convention/election. A total of 113 phone calls (amounting to Pl,356) were recorded as emanating from his room.

 Atty. Benjamin Bernardino, the incumbent President of t he IBP Rizal Chapter, and a candidate for chairman of the House of Delegates on Nisce's ticket, testified that campaign materials were distributed during the convention by girls and by lawyers. He saw members of the ACCRA law firm campaigning for Atty. Drilon (t.s.n. July 3,1989, pp. 142-145).

Opposite Room 114, was Room 112, also a suite, listed in the names of Mrs. Drilon, Gladys Tiongco (candidate for Governor, Eastern Mindanao) and Amy Wong

(10) Inducing or influencing a member to withhold his vote, or to vote for or against a candidate (Sec. 14[e], IBP BY-Laws). 32

 Atty. Bernardino disclosed that his cousin, Atty. Romeo Capulong, urged him to withdraw his candidacy for chairman of the House of Delegates and to run as vicechairman in Violy Drilon's slate, but he declined (t.s.n. July 3,1989, pp. 137, 149).  Atty. Gloria Agunos personnel director of the Hyatt Terraces Hotel in Baguio and president of the Baguio-Benguet IBP Chapter, recalled that in the third week of May 1989, after the Tripartite meet of t he Department of Labor & Employment at the Green Valley Country Club in Baguio City, she met Atty. Drilon, together with two labor officers of Region 1, Attys. Filomeno Balbin and Atty. Mansala Atty. Drilon solicited her (Atty.  Agunos') vote and invited her to st ay at t he Philippine Plaza where a r oom would be available for her. Atty. Paculdo also tried to enlist her support during the chapter presidents' meeting to choose their nominee for governor for the Northern Luzon region (t.s.n. July 13,1989, pp. 43-54).  Atty. Nisce testified that a Manila Chapter 4 delegate, Marcial Magsino, who had earlier committed his vote to Nisce changed his mind when he was offered a judgeship (This statement, however, is admittedly hearsay). When Nisce confronted Magsino about the alleged offer, the latter denied that there was such an offer. Nisce's informant was  Antonio G. Nalapo an IBP candidate who also withdrew.  Another Nisce candidate, Cesar Viola, withdrew from the race and refused to be nominated (t.s.n. June 29, 1989, p. 104). Vicente P. Tordilla who was Nisce's candidate for Governor became Paculdo's candidate instead (t.s.n. June 29, 1989, p. 104). Nisce recalled that during the Bench and Bar Dialogue in Cotabato City, Court  Administrator Tiro went around saying, "I am not campaigning, but my wife is a candidate." Nisce said that the presidents of several IBP chapters informed him that labor officials were campaigning for Mrs. Drilon (t.s.n. June 29,1989, pp. 109-110). He mentioned Ciony de la Cerna, who allegedly campaigned in La Union (t.s.n. June 29,1989,p.111)  Atty. Joel A. Llosa, Nisce's supporter and candidate for governor of the Western Visayas, expressed his disappointment over the I BP elections because some delegates flip-flopped from one camp to another. He testified that when he arrived at the Manila Domestic Airport he was met by an assistant regional director of the DOLE who offered to bring him to the Philippine Plaza, but he declined the offer. During the legal aid seminar, Atty. Drilon invited him to transfer to the Philippine Plaza where a room had been reserved for him. He declined the invitation (t.s.n. July 4,1989, pp. 102-106).  Atty. Llosa said that while he was still in Dumaguete City, he already knew that t he three candidates had their headquarters in separate hotels: Paculdo, at the Holiday Inn; Drilon, at the Philippine Plaza; and Nisce, at the Hyatt. He knew about this because a week before the elections, representatives of Atty. Drilon went to Dumaguete City to campaign. He mentioned Atty. Rodil Montebon of the ACCRA Law Office, accompanied by Atty. Julve the Assistant Regional Director of the Department of Labor in Dumaguete City. These two, he said, offered to give him two PAL tickets and accommodations at

the Philippine Plaza (t.s.n. July 4,1989, pp. 101-104). But he declined the offer because he was already committed to Atty. Nisce.  Atty. Llosa also revealed that before he left for Manila on May 31, 1989, a businessman, Henry Dy, approached him to convince him to vote for Atty. Paculdo. But Llosa told Dy that he was already committed to Nisce. He did not receive any plane tickets from Atty. Nisce because he and his two companions (Atty. Eltanal and Atty. Ruperto) had earlier bought their own tickets for Manila (t.s.n. July 4, 1989, p. 101). SUMMARY OF CAMPAIGN EXPENSES INCURRED BY THE CANDIDATES  Atty. Paculdo admitted having spent some P250,000 during his three weeks of campaigning. Of this amount, the Capitol Bar Association (of which he was the chapter president) contributed about P150,000. The Capitol Bar Association is a voluntary bar association composed of Quezon City lawyers. He spent about P100,000 to defray the expenses of his trips to the provinces (Bicol provinces, Pampanga, Abra, Mountain Province and Bulacan) (t.s.n. June 29,1989, pp. 9-14).  Atty. Nisce's hotel bills at the Hyatt amounted to P216,127.74. This does not include the expenses for his campaign which began several months before the June 3rd election, and his purchases of airplane tickets for some delegates. The records of t he Philippine Plaza Hotel, headquarters of Atty. Drilon's camp, showed that her campaign rang up over P600,000 in hotel bills. Atty. Callanta paid P316,411.53 for the rooms, food, and beverage consumed by Atty. Drilon's supporters, but still left an unpaid bill of P302,197.30 at convention's end. FINDINGS. From all the foregoing, it is evident that the manner in which the principal candidates for the national positions in the Integrated Bar conducted their campaign preparatory to the elections on June 3, 1989, violated Section 14 of the IBP By-Laws and made a travesty of the idea of a "strictly non-political" Integrated Bar enshrined in Section 4 of the By-Laws. The setting up of campaign headquarters by the three principal candidates (Drilon, Nisce and Paculdo) in five-star hotels: The Philippine Plaza, the Holiday Inn and The Hyatt the better for them to corral and entertain the delegates billeted therein; the island hopping to solicit the votes of the chapter presidents who comprise the 120-member 33

House of Delegates that elects the national officers and regional governors; the formation of tickets, slates, or line-ups of candidates for the other elective positions aligned with, or supporting, either Drilon, Paculdo or Nisce; the procurement of written commitments and the distribution of nomination forms to be filled up by the delegates; the reservation of rooms for delegates in three big hotels, at the expense of the presidential candidates; the use of a PNB plane by Drilon and some members of her ticket to enable them to "assess their chances" among the chapter presidents in the Bicol provinces; the printing and distribution of tickets and bio-data of the candidates which in the case of Paculdo admittedly cost him some P15,000 to P20,000; the employment of uniformed girls (by Paculdo) and lawyers (by Drilon) to distribute their campaign materials on the convention floor on the day of the election; the giving of assistance by the Undersecretary of Labor to Mrs. Drilon and her group; the use of labor arbiters to meet delegates at the airport and escort t hem to the Philippine Plaza Hotel; the giving of pre-paid plane tickets and hotel accommodations to delegates (and some families who accompanied them) in exchange for their support; the pirating of some candidates by inducing them to "hop" or "flipflop" from one ticket to another for some rumored consideration; all these practices made a political circus of the proceedings and tainted the whole election process.

in the selection of nominees for appointment to vacant positions in the judiciary, may be the reason why the position of IBP president has attracted so much interest among the lawyers. The much coveted "power" erroneously perceived to be inherent in that office might have caused the corruption of the IBP elections. To impress upon the participants in that electoral exercise the seriousness of the misconduct which attended it and the stern disapproval with which it is viewed by this Court, and to restore the nonpolitical character of the IBP and reduce, if not entirely eliminate, expensive electioneering for the top positions in the organization which, as t he recently concluded elections revealed, spawned unethical practices which seriously diminished the stature of the IBP as an association of the practitioners of a noble and honored profession, the Court hereby ORDERS:

The candidates and many of the participants in that election not only violated the ByLaws of the IBP but also the ethics of the legal profession which imposes on all lawyers, as a corollary of their obligation to obey and uphold the constitution and the laws, the duty to "promote respect for law and legal processes" and to abstain from 'activities aimed at defiance of the law or at lessening confidence in the legal system" (Rule 1.02, Canon 1, Code of Professional Responsibility). Respect for law is gravely eroded when lawyers themselves, who are supposed to be millions of the law, engage in unlawful practices and cavalierly brush aside the very rules that the IBP formulated for their observance.

(a) the officers of t he House of Delegates;

The unseemly ardor with which the candidates pursued the presidency of the association detracted from the dignity of the legal profession. The spectacle of lawyers bribing or being bribed to vote one way or another, certainly did not uphold the honor of the profession nor elevate it in the public's esteem.

3. The former system of having the IBP President and Executive Vice-President elected by the Board of Governors (composed of the governors of the nine [91 IBP regions) from among themselves (as provided in Sec. 47, Art. VII, Original IBP By-Laws) should be restored. The right of automatic succession by the Executive Vice-President to the presidency upon the expiration of their two-year term (which was abolished by this Court's resolution dated July 9,1985 in Bar Matter No. 287) should be as it is hereby restored.

The Court notes with grave concern what appear to be the evasions, denials and outright prevarications that tainted the statements of the witnesses, including tome of the candidates, during the initial hearing conducted by it before its fact-finding committee was created. The subsequent investigation conducted by this Committee has revealed that those parties had been less than candid with the Court and seem to have conspired among themselves to deceive it or at least withhold vital information from it to conceal the irregularities committed during the campaign. CONCLUSIONS. It has been mentioned with no little insistence that the provision in the 1987 Constitution (See. 8, Art. VIII) providing for a Judicial and Bar Council composed of seven (7) members among whom is "a representative of the Integrated Bar," tasked to participate

1. The IBP elections held on June3,1989 should be as they are hereby annulled. 2. The provisions of the IBP By-Laws for the direct election by the House of Delegates (approved by this Court in its resolution of July 9, 1985 in Bar Matter No. 287) of the following national officers:

(b) the IBP president; and (c) the executive vice-president, be repealed, this Court being empowered to amend, modify or repeal the By-Laws of the IBP under Section 77, Art. XI of said By-Laws.

4. At the end of the President's two-year term, the Executive Vice-President shall automatically succeed to the office of president. The incoming board of governors shall then elect an Executive Vice-President from among themselves. The position of Executive Vice-President shall be rotated among the nine (9) IBP regions. One who has served as president may not run for election as Executive Vice-President in a succeeding election until after the rotation of the presidency among the nine (9) regions shall have been completed; whereupon, the rotation shall begin anew. 5. Section 47 of Article VII is hereby amended to read as follows:

34

Section 47. National Officers. —  The Integrated Bar of the Philippines shall have a President and Executive Vice-President to be chosen by the Board of Governors from among nine (9) regional governors, as much as practicable, on a rotation basis. The governors shall be ex oficio Vice-President for their respective regions. There shall also be a Secretary and Treasurer of the Board of Governors to be appointed by the President with the consent of the Board. 6. Section 33(b), Art. V, IBP By-Laws, is hereby amended as follows: (b) The President and Executive Vice President of the IBP shall be the Chairman and Vice-Chairman, respectively, of the House of Delegates. The Secretary, Treasurer, and Sergeant-at-Arms shall be appointed by the President with the consent of the House of Delegates.' 7. Section 33(g) of Article V providing for the positions of Chairman, Vice-Chairman, Secretary-Treasurer and Sergeant-at- Arms of the House of Delegates is hereby repealed

11. Section 39, (a), (b), (1), (2), (3), (4), (5), (6), and ( 7) of Article VI should be as they are hereby deleted.  All other provisions of the By-Laws including its amendment by the Resolutionen banc  of this Court of July 9, 1985 (Bar Matter No. 287) that are inconsistent herewith are hereby repealed or m odified. 12. Special elections for the Board of Governors shall be held in the nine (9) IBP regions within three (3) months, after the promulgation of the Court's resolution in this case. Within thirty (30) days thereafter, the Board of Governors shall meet at the IBP Central Office in Manila to elect from among themselves the IBP national president and executive vice-president. In these special elections, the candidates in the election of the national officers held on June 3,1989, particularly identified in Sub-Head 3 of this Resolution entitled "Formation of Tickets and Single Slates," as well as t hose identified in this Resolution as connected with any of the irregularities attendant upon that election, are ineligible and may not present themselves as candidate for any position. 13. Pending such special elections, a caretaker board shall be appointed by t he Court to administer the affairs of the IBP. The Court makes clear that the dispositions here made are without prejudice to its adoption in due time of such further and other measures as are warranted in the premises.

8. Section 37, Article VI is hereby amended t o read as follows: SO ORDERED. Section 37. Composition of the Board. — The Integrated Bar of the Philippines shall be governed by a Board of Governors consisting of nine (9) Governors from the nine (9) regions as delineated in Section 3 of the Integration Rule, on the representation basis of one (1) Governor for each region to be elected by the members of the House of Delegates from that region only. The position of Governor should be rotated among the different Chapters in the region. 9. Section 39, Article V is hereby am ended as follows: Section 39. Nomination and election of the Governors at least one (1) month before the national convention the delegates from each region shall elect the governor for their region, the choice of which shall as much as possible be rotated among the chapters in the region. 10. Section33(a), Article V hereby is amended by addingthe following provision as part of the first paragraph: No convention of the House of Delegates nor of the general membership shall be held prior to any election in an election year.

COBB PEREZ vs LANTIN  A civil case was filed by Ricardo Hermoso against Damaso Perez for the latter’s failure to pay a debt of P17k. Hermoso won and a writ of execution was issued in his favor. The sheriff was to conduct a public sale of a property owned by Damaso worth P300k. This was opposed by Damaso as he claimed the amount of said property was more than the amount of the debt. Judge Lantin, issuing judge, found merit on this hence he amended his earlier decision and so he issued a second writ this time directing the sheriff to conduct a public sale on Damaso’s 210 shares of stock approximately worth P17k. Subsequently, Damaso and his wife filed five more petitions for injunction trying to enjoin the public sale. The case eventually reached the Supreme Court where the SC ruled that the petition of the Perez spouses are without merit; that their numerous petitions for injunction are contemplated for delay. In said decision, the Supreme Court ordered petitioners to pay the cost of the suit but said cost should be paid by their counsels. The counsels now appeal said decision by the Supreme Court as they claimed that such decision reflected adversely against their professionalism; that “If there was delay, it was because petitioners’ counsel happened to be more assertive . . . a quality of t he lawyers (which) is not to be condemned.” ISSUE: Whether or not the counsels for the Spouses Perez are excused. HELD: No. A counsel’s assertiveness in espousing with candor and honesty his client’s cause must be encouraged and is to be commended; what is not tolerated is a lawyer’s 35

insistence despite the patent futility of his client’s position, as in the case at bar. It is the duty of a counsel to advise his client, ordinarily a layman to the intricacies and vagaries of the law, on the merit or lack of merit of his case. If he finds that his client’s cause is defenseless, then it is his bounden duty to advise the latter to acquiesce and submit, rather than traverse the incontrovertible. A lawyer must r esist the whims and caprices of his client, and temper his client’s propensity to litigate. A lawyer’s oath to uphold the cause of justice is superior to his duty to his client; its primacy is indisputable.

CASTANEDA V AGO CASTRO; July 30, 1975(glaisa po) NATURE - P e t i t i o n f o r r e v i e w o f t h e d e c i s i o n o f t h e C o u r t o f Appe als FACTS - 1955 – Castaneda and Henson filed a replevin suit againstAgo in the CFI of Manila to recover certain machineries.-1957 – judgment in favor of Castaneda and Henson- 1961  – SC affirmed the judgment; trial court issued writof execution; Ago’s motion denied, levy was made on Ago’shouse and lots; sheriff advertised the sale, Ago moved tostop the auction; CA dismissed the petition; SC ffirmeddismissal- Ago thrice attempted to obtain writ of preliminar  y inj unct ion to res tra in sher iff fro m enfo rci ng the wri t ofexecution; his motions were denied- 1963 – sheriff sold the house and lots to Castaneda andHenson; Ago failed to redeem- 1964  –  sher iff executed final deed of sale; CFI issuedwrit of possession to the properties- 1964  –  Ago filed a complaint upon the judgment renderedagains t him i n t he repl evin suit saying it wa s his personal obligation and that his wife ½ share in their conjugal housecould not legally be reached by the levy made; CFI of QCissued writ of preliminary injunction restraining Castanedathe Registed of Deeds and the sheriff from registering thefinal deed of sale; the battle on the matter of lifting andrestoring the restraining order continued- 1966  –  Agos filed a petition for certiorari and prohibitiont o en jo in sh er if f fr om en fo rc in g writ of possession; SCdismissed it; Agos filed a similar petition with the CA whic halso dismissed thepetition; Agos appealed to SC which dismissed the petition- Agos filed another petition for certiorari and prohibitionwi t h t h e CA wh i c h g a v e du e co ur s e t o t he p et it i on an dgranted preliminary injunction. ISSUE W O N t h e  A g o s ’   l a w y e r , e n c o u r a g e h i s c l i e n t s t o a v o i d c o n t r o v e r s y HELD - N o . D e s p i t e t h e p e n d e n c y i n t h e t r i a l c o u r t o f t h e compl aint for the annulment of the sheriff’s  sale, justicedemands that the petitioners, long denied the fruits oftheir victory in the replevin suit, must now enjoy them, for,the respondents Agos abetted by their lawyer Atty. Luison,hav e mi su sed leg al remedies and prostituted the judicialprocess to thwart the satisfaction of the  judgment, to theextended prejudice of the petitioners.- Fo rg et ti ng hi s sa cr ed m is si on as a sworn public servantand his exalted position as an officer of the court,  At ty .L u i s o n h a s a l l o w e d h i m s e l f t o b e c o m e a n i n s t i g a t o r o f c o n t r o v e r s y a n d a p r e d a t o r o f c o n f l i c t i n s t e a d o f a m ediat or for concord and a conciliator for compromise, avirtuoso of technicality in the conduct of litigation insteadof a t ru e e xp on en t of t he pr im ac y o f tr ut h

an d m or al justice.- A counsel’s  assertiveness in espousing with candor and honesty his client’s cause must be encouraged and is to becommended; what the SC does not and cannot countenanceis a lawyer’s insistence despite the patent futility of hisclient’s position.It is the duty of the counsel to advice his client on themerit or lack of his case. If he finds his client’s  cause asdefenseless, then he is his duty to advice the latter t oa c q u i e s c e a n d s u b m i t r a t h e r t h a n t r a v e r s e t h e i n c o n t r o v e r t i b l e . A l a w y e r m u s t r e s i s t t h e w h i m s a n d caprice s of his client, and temper his client’s propensity tolitigate. DE YSASI VS NLRC Jon De Ysasi and Jon De Ysasi III are father and sons respectively. The elder Ysasi owns a hacienda in Negros Occidental. De Ysasi III is employed in the hacienda as the farm administrator. In November 1982, De Ysasi III underwent surgery and so he missed work. He was confined and while he’s nursing from his infections he was terminated, without due process, by his father. De Ysasi III filed against his father for illegal dismissal before the National Labor Relations Commission. His father invoked that his son actually abandoned his work. ISSUE: Whether or not De Ysasi III abandoned his work. HELD: No. His absence from work does not constitute abandonment. To constitute abandonment, there must be a.) failure to report for work or absence without valid or  justifiable reason, and b.) a clear intention to sever the employer-employee relationship, with the second element as the more determinative factor and being manifested by some overt acts. No such intent was proven in this case. The Supreme Court, in making its decision, noted that t he lawyers for both camps failed to exert all reasonable efforts to smooth over legal conflicts, preferably out of court and especially in consideration of the direct and immediate consanguineous ties between their clients especially considering that the parties involved are father and son. This case may have never reached the courts had there been an earnest effort by the lawyers to have both parties find an off court settlement but records show that no such effort was made. The useful function of a lawyer is not only to conduct litigation but to avoid it whenever possible by advising settlement or withholding suit. He is often called upon less for dramatic forensic exploits than for wise counsel in every phase of life. He should be a mediator for concord and a conciliator for compromise, rather than a virtuoso of technicality in the conduct of litigation. Rule 1.04 of the Code of Professional Responsibility explicitly provides that “(a) lawyer shall encourage his client to avoid, end or settle the controversy if it will admit of a fair settlement.” Both counsel fell short of what was expected of them, despite their avowed duties as officers of the court. In the same manner, the labor arbiter who handled this regrettable case has been less than faithful to the letter and spirit of the Labor Code mandating that a labor arbiter “shall exert all efforts towards the amicable settlement of a labor dispute within his jurisdiction.” If he ever did so, or at least entertained the thought, the copious records of the proceedings in this controversy are barren of any reflection of the same. 36

1. 2. 3. 4.

People of the Philippines v. Toledo and Holgado (digest) Facts: Sisenando Holgado and Filomeno Morales had disputes about the occupation of certain land situated in the m unicipality of Pinamalayan, Province of Mindoro. On the morning of June 15, 1927, the two men happened to meet. The argument was renewed, and they agreed to fight. They did engage in a bolo duel with a fatal result f or Filomeno Morales, who was killed almost instantly. Sisenando Holgado was also seriously wounded but was able to proceed to a neighboring house. From there Sisenando Holgado was taken to the municipal building where he made a sworn authenticated statement before the municipal president, in which he declared that only he and Filomeno Morales fought and that there was nobody else around. About one month later, Sisenando Holgado died from the wounds received in the fight. The disputable point is whether the accused Eugenio Toledo intervened in the quarrel and dealt a mortal blow to Filomeno Morales. For the prosecution was presented the witness Justina Villanueva, the querida of Filomeno Morales, who testified to the presence and participation of Eugenio Toledo. Her testimony was partially corroborated by that of the witness Justina Llave. On the other hand, the theory for the defense was that Toledo was in another place when the fight between Morales and Holgado occurred and that his only participation was on meeting Holgado, who was his landlord or master, in helping him to a nearby house. To this effect is the testimony of the accused and of Conrado Holgado, the son of Sisenando Holgado. The defense also relied upon the affidavit of Sisenando Holgado, Exhibit 1, which was identified by the municipal president of Pinamalayan. Issue: 1. Is the exhibit (exhibit 1) considered hearsay? Is it admissible as evidence? 2. Should the accused be acquitted? Ruling: 1. Yes. The affidavit is considered hearsay because the one who made it was not presented in court under oath to testify on his written statement. This is the general rule. But regarding the supporting question, the answer is also yes. The exhibit is admissible as evidence the reason being that it is one of the accepted exceptions of the hearsay rule. This is called the Declaration Against interest or in the book of Agpalo, the dead man’s statute. Sec. 38 of the Rules of Court exemplifies this rule. Sec.38 Declaration against interest.- The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so f ar contrary to declarant’s own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons. In order for a statement to be admissible (in this case made as an exhibit) it must comply the following requisites: That the declarant is dead or unable to testify; That it relates to a fact against the interest of the declarant; That at the time he maid said declaration the declarant was aware that the same was contrary to his aforesaid interest; and That the declarant had no motive to falsify and believed such declaration to be true. In the case it bar, it is clear as day that the declarant made the statement before the municipal president before he died and that it was clearly against his interest because it had t he effect of exonerating Eugenio Toledo from liability. Declarant was also aware of this fact and knows this to be true because otherwise, he wouldn’t have made such a statement. Here the declarant is deceased and his statements were made under oath.

They also read in such a way as to ring with the truth. When Sisenando Holgado declared "When we fought, there was nobody present," it was at the end of just such a rambling statement as a wounded man would be expected to make. When Sisenando Holgado declared "I met one of my workers named Eugenio Toledo, who accompanied me to the house of Dalmacio Manlisic," he did so in response to a question by the municipal president. Exhibit 1 should have been received not as conclusive evidence of innocence, but as evidence to be taken into consideration in connection with the other proven facts. 2. Yes. The accused should be acquitted. Any man outside of a court and unhampered by the pressure of technical procedure, unreasoned rules of evidence, and cumulative authority, would say that if a man deliberately acknowledged himself to be the perpetrator of a crime and exonerated the person charged with the crime, and there was other evidence indicative of the truthfulness of the statement, the accused man should not be permitted to go to prison. He should be acquitted because of reasonable doubt. IN RE TAGORDA In 1928, Luis Tagorda was a provincial board member of Isabela. Before his election, he campaigned that he is a lawyer and a notary public; that as a notary public he can do notarial acts such as execution of deeds of sale, etc.; that as a lawyer, he can help clients collect debts; that he offers free consultation; that he is willing to serve the poor. When he won, he wrote a letter to the barrio lieutenant of Echague, Isable advising the latter that even though he was elected as a provincial board member, he can still practice law; that he wants the lieutenant to t ell the same to his people; that he is willing to receive works regarding preparations of sales contracts and affidavits etc.; that he is willing to receive land registration cases for a charge of three pesos. ISSUE: Whether or not Tagorda is guilty of m alpractice. HELD: Yes. Tagorda admitted doing the foregoing acts. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice. 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. Solicitation of business by circulars or advertisements, or by personal communications or interviews 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 f urnishing or inspiring newspaper comments concerning the manner of t heir conduct, the magnitude of the interests 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. 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. 37

Tagorda’s liability is however mitigated by the fact that he is a young inexperienced lawyer and that he was unaware of the impropriety of his acts. So instead of being disbarred, he was suspended from the practice of law for a month.

BR SEBASTIAN vs CA

Moreover, petitioner itself was guilty of negligence when it f ailed to make inquiries from counsel regarding its case. As pointed out by respondents, the president of petitioner corporation claims to be the intimate friend of Atty. Crispin Baizas; hence, the death of the latter must have been known to the former. This fact should have made petitioner more vigilant with respect to the case at bar. Petitioner failed to act with prudence and diligence, thus, its plea that they were not accorded the right to procedural due process cannot elicit either approval or sympathy.

FACTS: 

[P]etitioner, thru its then counsel of record, Baizas, Alberto and Associates, received notice to file Appellant’s Brief within 45 days from receipt thereof. Counsel for petitioner failed to file the Brief thus respondent Court issued a Resolution requiring said counsel to show cause why the appeal should not be dismissed for failure to file the Appellant’s Brief within the reglementary period. As the latter failed to comply with the above Resolution, respondent Court issued another Resolution this time dismissing petitioner’s appeal. [P]etitioner, this time thru the BAIZAS LAW OFFICE, filed a motion for reconsideration of the resolution dismissing its appeal alleging that as a result of the death of Atty. Crispin Baizas, senior partner in the law firm of BAIZAS, ALBERTO &  ASSOCIATES, the affairs of the said firm are still being settled between Atty. Jose Baizas (son of Crispin Baizas) and Atty. Ruby Alberto, the latter having established her own law office; furthermore, Atty. Rodolfo Espiritu, the lawyer who handled this case in the trial court and who is believed to have also attended to the preparation of the  Appellant’s Brief but failed to submit it through oversight and inadvertence, had also left the firm. ISSUE: 

Whether or not t he death of a partner extinguish the lawyer-client relationship with the law firm. HELD: 

NO. Petition was dismissed. RATIO: 

Petitioner’s counsel was the law firm of BAIZAS, ALBERTO & ASSOCIATES and not merely Atty. Crispin Baizas. Hence, the death of the latter did not extinguish the lawyerclient relationship between said firm and petitioner. With Baizas’ death, the responsibility of Atty. Alberto and his Associates to the petitioner as counsel remained until withdrawal by the former of their appearance in t he manner provided by the Rules of Court. This is so because it was the law firm which handled the case for petitioner before both the trial and appellate courts. That Atty. Espiritu, an associate who was designated to handle the case, later left the office after the death of Atty. Baizas is of no moment since others in the firm could have replaced him. Upon receipt of the notice to file Brief, the law firm should have re-assigned the case to another associate or, it could have withdrawn as counsel in the manner provided by the Rules of Court so that the petitioner could contract the services of a new lawyer.

DAKANAY vs BAKER Legal Ethics – Use of Foreign Law Firm Name In November 1979, Atty. Vicente Torres sent a letter to one Rosie Clurman, represented by Atty. Adriano Dacanay, asking Clurman to release some shares to Torres’ client. The letterhead contained the name “Baker & McKenzie”. Dacanay denied Clurman’s liability and at the same time he asked why is Torres using the letterhead “Baker & McKenzie”, a foreign partnership established in Chicago, Illinois. No reply was received so Dacanay filed an administrative complaint enjoining Torres from using “Baker & McKenzie”. Later, Torres said that he is an associate of the law firm Guerrero & Torres; that their law firm is a member of Baker & McKenzie; that the said foreign firm has members in 30 cities all over the world; that they associated with them in order to make a representation that they can render legal services of the highest quality to m ultinational business enterprises and others engaged in foreign tr ade and investment. ISSUE: Whether or not the use of a foreign law office name is allowed. HELD: No. Baker & McKenzie, being an alien law firm, cannot pract ice law in the Philippines. Such use of foreign law firm name is unethical therefore Torres and his law firm are enjoined from using “Baker & McKenzie” in their practice of law.

DE ROY vs CA Facts: The firewall of a burned-out building owned by petitioners collapsed and destroyed the tailoring shop occupied by the family of private respondents, resulting in injuries to private respondents and the death of Marissa Bernal, a daughter. Private respondents had been warned by petitioners to vacate their shop in view of its proximity to the weakened wall but the former failed to do so. On the basis of the f oregoing facts, the Regional Trial Court. First Judicial Region, Branch XXXVIII, presided by the Hon.  Antonio M. Belen, rendered judgment finding petitioners guilty of gross negligence and awarding damages to private respondents. On appeal, the decision of the trial court was affirmed in toto by the Court of Appeals in a decision promulgated on August 17, 1987, a copy of which was received by petitioners on August 25, 1987. On September 9, 1987, the last day of the fifteen-day period to file an appeal, petitioners filed a motion for extension of time to file a motion for reconsideration, which was eventually denied by the appellate court in the Resolution of September 30, 1987. Petitioners filed their motion for reconsideration on September 24, 1987 but this was denied in the Resolution

38

because the same was not filed within the grace period as enscribed in the present  jurisprudence . Issue: Whether or not the Court of Appeals committed grave abuse of discretion in denying the denied the motion and let the petitioner be bound by the negligence of their counsel Held: The Court finds that the Court of Appeals did not commit a grave abuse of discretion when it denied petitioners' motion for extension of time to file a motion for reconsideration. In the instant case, petitioners' motion for extension of time was m ore than a year after the expiration of the grace period. Hence, it is no longer within the coverage of the grace period. Considering the length of tim e from the expiration of the grace period to the promulgation of the decision of the Court of Appeals on August 25, 1987, petitioners cannot seek refuge in the ignorance of their counsel regarding said rule for their f ailure to file a motion f or reconsideration within the reglamentary period. It is the bounden duty of counsel as lawyer in active law practice to keep abreast of decisions of the Supreme Court particularly where issues have been clarified, consistently reiterated, and published in the advance reports of Supreme Court decisions (G. R. s) and in such publications as the Supreme Court Reports Annotated (SCRA) and law journals. ZUALO vs CFI of CEBU Zualo v s. CFI of Cebu, CA-G.R. No. 27718-R, July 7, 1961 

 Attorneys should familiarize themselves with the rules and comply with their requirements. They also are chargeable with notice of changes in the rules which have been held as including not only express reglementary provisions but also a regular practice under the Rules of Court. COLLANTES vs RENOMERON Facts: This complaint for disbarment is relative to the administrative case filed by  Atty. Collantes, house counsel for V& G Better Homes Subdivision, Inc. (V&G), against  Atty. Renomeron, Register of Deeds of Tacloban City, for the latter’s irregular actuations with regard to the application of V&G for registration of 163 pro forma Deed of Absolute Sale with Assignment (in favor of GSIS) of lots in its subdivision.

 Although V&G complied with the desired requirements, respondent suspended the registration of the documents with certain “special conditions” between them, which was that V&G should provide him with weekly round trip ticket from Tacloban to Manila plus P2,000.00 as pocket money per trip, or, in lieu thereof, the sale of respondent’s Quezon City house and lot by V&G or GSIS representatives.

Eventually, respondent formally denied the registration of the documents. He himself elevated the question on the registrability of the said documents to Administrator

Bonifacio (of the National Land Titles and Deeds Registration AdministrationNLTDRA). The Administrator then resolved in favor of the registrability of the documents. Despite the resolution of the Administrator, the r espondent still refused the registration thereof but demanded from the parties interested the submission of additional requirements not adverted in his previous denial.

Issues: (1) WON the respondent, as a lawyer, may also be disciplined by the Court for his malfeasance as a public official, and (2) WON the Code of Professional Responsibility applies to government service in the discharge of official tasks.

Held: (1) Yes, a lawyer’s misconduct as a public official also constitutes a violation of his oath as a lawyer. The lawyer’s oath imposes upon every lawyer the duty to delay no man for money or malice. The lawyer’s oath is a source of obligations and its violation is a ground for his suspension, disbarment or other disciplinary action.

(2) Yes, the Code of Professional Responsibility applies to government service in the discharge of their official tasks (Canon 6). The Code forbids a lawyer to engage in unlawful, dishonest, immoral or deceitful conduct (Rule 1.01, Code of Professional Responsibility), or delay any man’s cause “for any corrupt motive or interest” (Rule 1.03). THE UNITED STATES, plaintiff-appellee, vs. PEDRO BARREDO, PEDRO UREA and ALBINO SARMIENTO,  defendantsappellants. Silvestre Apacible and Pedro  Attorney-General Avanceña for appellee.

Guevara

for

appellants.

CARSON, J .:  The appellants in this case were convicted in the court below of the crime of attempted rape, and each of them was sentenced to two years, four months and one day of prision correccional , together with the accessory penalties prescribed by law.  A large number of witnesses for both the prosecution and the defense were called at the trial, and the record contains some two hundred and fifty pages of typewritten testimony and documentary evidence. In it s last analysis, final judgment as to the guilt or innocence of the accused necessarily turns upon the degree of credit which should be accorded the respective witnesses called for the prosecution and the defense; and a careful examination of the record discloses nothing which would justify us in 39

disturbing the findings in this regard of the trial judge, who saw and heard the witnesses testify and was satisfied beyond a reasonable doubt as to the substantial truth of the account of the commission of the crime of attempted rape which was given on the witness-stand by the principal witnesses called for the prosecution. In his opinion the trial judge sets forth at some length the material evidence adduced at the trial, and a restatement and review of the evidence at this time would serve no useful purpose. Suffice it to say that so strongly were we impressed by the forceful oral argument of counsel for the appellants with the possibility of a grave miscarriage of justice in the court below, as a result of the machinations of the personal and political enemies of one or all of the defendants, that we carefully and exhaustively abstracted and analyzed for ourselves the great mass of evidence brought here on this appeal, without discovering anything which, in our opinion, would justify us in holding that the trial judge erred in arriving at his conclusions as to their guilt. It remains only to consider the contentions of counsel for the appellants touching the alleged lack of jurisdiction of the court below to entertain and adjudicate this action. It is urged that the court was without jurisdiction in the premises because the information charging the commission of the crime was filed, and the trial conducted by a special fiscal, improvidently appointed by the trial judge without authority of law. Section 1 of Act No. 1699 reads in part as follows: "Whenever the provincial fiscal is absent from the province, or fails or refuses to discharge thus duty by reason of illness or other cause, or by reason of personal interest in a prosecution or other matter is disqualified to act therein as provincial fiscal, the judge of the Court of First Instance for the province is authorized and required to appoint a temporary fiscal, who shall be paid out of the provincial treasury the same compensation per day as that provided by law for the regular provincial fiscal for the days actually employed. The fiscal thus temporarily appointed shall discharge all the duties of the provincial fiscal as provided by law which the regular provincial fiscal fails or is unable to perform."1awphil.net  Construing and applying this statute we said in the case of Nuñez vs.  Low (19 Phil. Rep., 244): "If the provincial fiscal fails or refuses to discharge his duty in the prosecution of criminal cases, the judge of the Court of First Instance is not only authorized but is required to appoint a temporary fiscal to r epresent the Government in such cases. The attorney for the Moro Province and his assistant stand in the same position as a provincial fiscal with reference to this matter. If the Court of First Instance for the Moro Province did not have authority to appoint a temporary fiscal when the exigencies of the service demanded it, it might occur that the whole court machinery, with reference to criminal cases, would be impeded on account of the refusal on the part of the att orney, or his assistant, to perform their duties. The presiding judge of the Court of First Instance for the Moro Province has the power to cause the prosecution of criminal cases to go f orward, and if the officer designated by law t o prosecute such criminal cases fails or refuses to perform his duty, then the judge or court must relieve such officer temporarily and appoint a qualified person to take his place."

From what was said in the case just cited, and indeed from the plain and explicit provisions of the statute, we think there can be no doubt of the power of the judges of Courts of First Instance to appoint special fiscals  or prosecuting officers, when, in the exercise of the sound judicial discretion conferred upon them, they find that "the provincial fiscal is absent from the province, or fails or refuses to discharge his duty by reason of illness or other cause, or by reason of personal interest in a prosecution or other matter is disqualified to act therein as provincial fiscal." The power to appoint special fiscals being thus expressly conferred upon judges of Courts of First Instance, the mere fact t hat the judge acts unwisely or improvidently or under a misapprehension of facts when he makes an appointment in no wise affects the legality or the validity of the appointment, except, perhaps, in cases wherein it appears that there has been a manifest abuse of judicial discretion in making the appointment, the effect of which need not be and is not now considered. There can be no question of abuse of judicial discretion in the appointment of the special fiscal in the case at bar; and even if it were admitted that the trial judge acted improvidently or unwisely or erroneously in making the appointment, the appointment when made was a valid, legal appointment, and affords no ground for appellant's contention as to a lack of jurisdiction in the court below to entertain and decide a criminal action based on an information filed by a special fiscal legally appointed for that purpose. Moreover, we do not think that in the case at bar the special fiscal was erroneously or improvidently appointed. The appointment of the special fiscal was made in response to a petition filed by counsel for the private prosecutrix on November 8, 1912, wherein he set forth that on the 12th of June, 1912 the private prosecutrix filed a complaint against the defendants in this action in the court of the justice of the peace of Nagcarlang, charging the commission of the crime on the 9th of that month; that on the 29th of the same month the accused waived a preliminary trial before the justice of the peace and prayed that the cause be remanded to the Court of First Instance; that the cause was remanded in the early days of July, 1912; that about the 2nd of October, 1912 the provincial fiscal conducted an investigation of the alleged crime at the urgent request of counsel for the private prosecutrix; that thereafter the provincial fiscal promised to file a formal information against the accused, but later declined to do so, promising, never-the-less to ask the court to appoint a special fiscal, as he himself, was not disposed to press the case; that the provincial fiscal had not done anything further at the date of the petition (November 9 [8], 1912); and that a special fiscal should be appointed to prosecute the case in view of the m anifest indisposition on the part of the provincial fiscal to bring t he accused to trial. This petition was endorsed over to the provincial fiscal by the presiding judge, and returned with an extended statement, in which this official set out at length his reasons for declining to file an information, and proceed with the trial. In substance he stated that as a r esult of his investigations based upon the complaint of the private prosecutrix, 40

he was satisfied that the accused had not committed the crime with which they were charged; that the evidence against them was unsatisfactory and unworthy of cr edence; and that they were victims of a conspiracy of their personal and political enemies to ruin them by compelling them to stand trial for a heinous offense which they had not committed. Thereafter the trial judge, upon full consideration of the statements of counsel for the private prosecutrix, and of the provincial fiscal held that in the interests of justice it would not be proper "to deny the petition of the injured woman" and appointed a special fiscal under the provisions of Act No. 1699. Holding as we do that the evidence relied upon by the private prosecutrix is sufficient to sustain a finding as to the guilt of the accused beyond a reasonable doubt, we need hardly say that we think the trial judge properly appointed a special fiscal to prosecute the case, in view of the f ailure of the provincial fiscal to file an information and bring the accused to trial. We agree with the contentions of counsel that a conscientious prosecuting official, whose investigations have satisfied him as to the innocence of persons charged with the commission of crime, should not institute criminal proceedings against such persons. But we are of the opinion that in the event that criminal proceedings have been instituted, and the investigations of t he provincial fiscal have satisfied him that the accused person is innocent, or that evidence sufficient to secure conviction will not be forthcoming at the trial despite the exercise of due diligence to that end, it then becomes his duty to advise the court wherein the proceedings are pending as to the result of his investigations, and to move the court to dismiss the proceedings, leaving it to the court to take such action as m ay be proper in the premises. In this jurisdiction provincial fiscals are not clothed with power, without the content of court, t o dismiss or dicit nolle prosequi criminal actions actually instituted, and pending further proceedings. The power to dismiss is vested solely in the courts, that is to say i n the presiding judge thereof. Discretion in the matter of subjecting to trial persons remanded for trial in a Court of First Instance by a justice of the peace lies with the judge of the court. I t is for the justice of the peace to determine whether the accused shall be remanded for trial. Act No. 194, secs. 1 and 2, and Act No. 1627, sec. 13, and section 2 of Act No. 194, expressly provide that in case the justice of the peace binds the accused person over to a regular trial, such person shall be committed or admitted to bail "to await the action of the judge or Court of First Instance" —  not that he shall await the action of the provincial fiscal. When the justice of the peace remands an accused person for trial in the Court of First Instance, the case becomes forthwith a criminal action pending in that court, and can only be terminated therein by the court itself. The duty imposed upon the provincial fiscal in such cases is either to go forward with the prosecution or to move the court to dismiss the complaint, and in either event to move with the promptitude necessary to secure the right of the accused to a speedy trial. It is, in part, to aid him i n determining the course to be adopted at this stage of the proceedings that provision is made in section 2 of Act No. 302 f or official investigations by provincial fiscals. But it is to be observed that it is expressly provided that: "This section shall not be construed to authorize a provincial fiscal to act as justice of the

peace in any preliminary investigation, but only as authorizing him to secure the attendance of witnesses before him in making necessary investigation for the purpose of instituting or carrying on criminal prosecutions." Upon a motion of the provincial fiscal to dismiss a complaint upon which an accused person has been remanded for trial by a justice of the peace, it rests in the sound discretion of the judge whether to accede to such motion or not. Ordinarily, of course, he will dismiss the action in accordance with the suggestion of an experienced fiscal who has personally investigated the facts. But if he is not satisfied with the reason assigned by the fiscal, or if it appears to him from the record of the proceedings in the court of the justice of the peace, or as a result of information furnished by the private prosecutor, or otherwise, that the case should not be dismissed, he may deny the motion. It is true, as counsel supported by authority contends, that the practice whereby the prosecuting officer in some jurisdiction enters upon the records of a criminal case that "He does not desire to prosecute further" — dicit nolle prosequi — is a very ancient one. Under the English rule the uncontrolled right to enter a "nolle prosequi " was the prerogative of the Attorney-General. The right of the Attorney- General to dismiss without consent of court was there maintained under the theory that that officer was the immediate representative of the King, and that the judges should not therefore challenge the formal expression of his will in this regard. Some American states have followed the English rule. Others have declined to adopt it.itc-a1f   The modern tendency would seem to be to modify and control the power of prosecuting officers in this regard either by express legislative enactment or by the  judicial recognition of a custom, "amounting nearly to law" requiring the consent of the court in all cases wherein it is exercised; and some of the courts which do not consider themselves bound by common law precedents have declared the English practice unsound and have held the better rule to be "to ask leave of the court giving some good reason therefor." The order is usually taken upon motion by the prosecuting officer and with leave of the court. (10, Enc. of Plead. and Practice, 556.) There are States in which a statute, directly or by construction, requires the consent of the court; or in which a custom amounting nearly to law does; and others wherein while the prosecuting officer acts practically on his own responsibility, the court claims the right to control him if it chooses; and in some it is not plain what the course is. (Bishop, Criminal Procedure, Vol. 2, sec. 1389, 2nd ed.) In Virginiaa 1803, the General Court consisting of five judges unanimously decided: "That the District Attorney has not in any case the right to enter a nolle prosequi  without leave of the court." (Anonymous, 1 Va., Cas. 139.)

41

 At common law the attorney general alone possessed this power; and might, under section precautions as he felt it his duty t o adopt, discontinue a criminal prosecution in that form at any time before verdict ... . It probably exists unimpaired in the attorney general to this day, and it has been by several statutes delegated to district attorneys, who now represent the attorney general in nearly everything pertaining to indictments and other criminal proceedings local to their respective countries. The legislature finding the power in so many hands, and fearing its abuse ... provided that it should not thereafter be lawful for any district attorney to enter a nolle prosequi   upon any indictment, or in any other way discontinue or abandon the same without leave of the court having jurisdiction to try the offense charged. (People vs. McLeod, 1 Hill., 377, and 25 Wendell, 483.) Nor was the paper handed by the Solicitor-General to the clerk an entry of nolle prosequi . Such a proceeding is to be coram judice. It must go on the minutes of the court and must transpire, at least, with the cognizance of the court. The minutes are the records of the acts of the court and no entry can be made thereon except with his consent. This the Solicitor General did not ask. The nolle prosequi  was not, therefore, a complete act ... . Nor is it in our  judgment, within the power of the Solicitor General to nolle prosequi  an indictment at his option without the approbation of the court. By the act of 1870 it is expressly provided to the contrary. But even before that Act, although we are aware it has often been done, we know of no authority for it: —  The State is the party and the Solicitor General only the agent to carry on the proceeding. He has not and ought not to have unlimited power of prosecution, and great evils may result and have resulted from placing such a power in the hands of one man ... . (Stathamvs. State, 41 Ga., 507.) The District-Attorney acts for the people in criminal cases except he must have the consent of the court to enter a nolle prosequi . (Moulton vs.  Beecher, 1  Abb., 193.) In the case of King vs. Robertson (6 Hawaii, 718) the court said: "The proposition of the counsel for the Attorney-General that at the common law the Attorney-General of England and of States which have adopted this part of the common law has the right upon his sole responsibility to enter a nolle prosequi , is not doubtful, and has not been questioned by this court. But the common law is not in force in this Kingdom . . . . The uniform practice of the Supreme Court and the circuit courts has been that the Attorney-General by himself, or by his deputy, when desiring to nolle  prosequi  a case after indictment found, asks leave of the court that it may be so entered, giving the court or the presiding justice some satisfactory reason therefor.

In the case of United States vs.  Valencia (1 Phil. Rep., 642) this court said: "After the complaint has been presented and certainly after trial has been commenced the Court and not the fiscal has full control of it. The complaint cannot be withdrawn by the fiscal without the consent of the Court." Section 62, of Act No. 136 prescribing the duties of the provincial fiscal provides that: "He shall be an officer of the Court and subject to its directions in relation to official matter pending in the Court of First Instance." Section 2 of Act No. 194 provides that when a justice of the peace binds the accused person over to a regular trial, such person shall be committed or admitted to bail "to await the action of the judge of Court of First Instance." We conclude that in this jurisdiction, under the uniform practice since the announcement of the rule in the case of United States vs. Valencia, (supra), in the first volume of our reports, and as a logical and necessary consequence of the above cited provisions of the statutes in t his regard, provincial fiscals have not the power to dismiss criminal actions pending in Courts of First Instance without leave of court; and that this limitation upon their power extends to the dismissal of complaints upon which accused persons have been committed or admitted to bail t o await the action of the judge of the Courts of First Instance. The trial judge was manifestly of opinion that the long delay of the provincial fiscal before taking action in the case at bar, and his attitude when called upon the explain his failure to prosecute at the urgent instance of counsel for the private prosecutrix, amounted to a substantial failure on his part to discharge his duty in the premises. In this we are inclined to agree with the trial judge. Without reflecting upon the integrity of the good faith of the provincial fiscal, we think that he undoubtedly misconceived his duty, and that he f ailed to discharge it when he neglected and declined to proceed with the prosecution. He evidently was of opinion that it rested wholly in his discretion whether the case should or should not proceed to trial, and that he had the uncontrolled power to decline to prosecute, with or without the consent of the trial judge. He manifestly erred in his belief that the evidence relied upon by the private prosecutrix was insufficient to justify him in proceeding with the prosecution. Men's minds may well differ as to the probative value of evidence submitted in support of an alleged fact, and we do not pretend to say t hat he must have been convinced of the guilt of the accused, beyond a reasonable doubt, as was the trial judge after hearing the evidence. But we think that the evidence was undoubtedly sufficient to justify and require his proceeding promptly with the trial, and submitting the evidence to the court for its final determination of the guilt or innocence of the accused. In failing so to do, he failed in the discharge of his duty, and we think that under all the circumstances the trial judge properly appointed a special fiscal to conduct the proceedings in his stead. In conclusion we here insert a number of citations of authority touching the degree of proof upon which an accused person may properly be required to stand trial for the crime with which he is charged, partly in explanation and support of our ruling upon the action of the court below in holding that the provincial fiscal had failed to discharge his 42

duty in the premises, and partly for the information of committing magistrates and prosecuting officers generally. Chief Justice Marshall, acting as committing magistrate, in holding that evidence presented by the government, consisting principally of affidavits, was sufficient to justify the commitments of Aaron Burr, prefaced his opinion as follows: "On an application of this kind, I certainly should not require that proof which would be necessary to convict the person to be committed, on a trial in chief; nor should I even require that which should absolutely convince my own mind of the guilt of the accused: but I ought to require, and I should require, that probable cause be shown; and I understand probable cause to be case made out by proof furnishing good reason to believe that the crime alleged has been committed by the person charged with having committed it." (U.S. vs.Burr., 25 Fed. Cas., 14692a.)  Again, in Ex parte  Bollman (4 Cranch 75; 2 L. ed. 554), the Chief Justice said: "This being a mere inquiry, which, without deciding upon guilt, precedes the institution of a prosecution, the question to be determined is, whether the accused shall be discharged or held to trial; and if the latter, in what place they are to be tried, and whether they shall be confined or admitted to bail. "If," says a very learned and accurate commentator, `upon this inquiry it manifestly appears that no such crime has been committed, or that the suspicion entertained of the prisoner was wholly groundless, in such cases only is it lawful totally to discharge him. Otherwise he must either be committed to prison or give bail.'" (loc. cit., 125.) . . . Although in making a commitment the magistrate does not decide on the guilt of the prisoner, yet he does decide on the probable cause and a long and painful imprisonment may be the consequence of his decision. This probable cause, therefore, ought to be proved by testimony in itself legal, and which, though from the nature of the case it must be Ex parte, though in most other respects, to be such as a court and jury might hear. (loc. cit, 130.) In Rhea vs. State (61 Neb., 15,) it was said: "Evidence that would justify a committing magistrate in finding that probable cause existed for the detention of a defendant need not necessarily be sufficient to sustain a verdict of guilty when he is placed on trial." In re Kelly (28 Nev., 491), it was said: "We are not called upon on this hearing to pass upon the sufficiency of this evidence to warrant the conviction of the defendant, and upon that question express no opinion. In this connection it is proper to observe that a magistrate, in holding a defendant to answer for a crime, is not required to have submitted evidence sufficient to establish the guilt of the person charged beyond a reasonable doubt. As was said in a recent decision (In re Mitchell [Cal. App.], 82 Pac., 347): "In order to hold defendant and put him on his trial, the committing magistrate is not required to find evidence sufficient to warrant a conviction. All that is required is that there be a sufficient legal evidence to make it appear that "a public offense has been committed and there is sufficient cause to believe the defendant guilty thereof."

The rule in New York is thus stated in People vs. Shenk (142 N.Y.S., 1081), by the Court of Special Session: "A committing magistrate is not required to exact the full measure of proof necessary to secure a conviction, but is obliged to hold one accused of crime for trial if there is reasonable ground to believe him guilty. But there must be proof "that a crime has been committed and that there was sufficient cause to believe the defendant guilty thereof." (Citing, Willet vs. Quinn," 135 N.Y.S., 477; Perkins vs. Moss, 187 N. Y., 410; 11 L. R.A., N.S., 528; 10 Ann. Cas., 309; Bungart vs. Wells, 68 N.Y.S., 59.)" In State vs. McGinley (153 Wis., 5), it was said: "Upon just what ground the trial court condemned the action of the examining magistrate does not clearly appear. If, in deciding that the evidence was insufficient to make out a prima facie case, the judge viewed such evidence from the standpoint of a trial court, grievous error was committed. An examination to see whether an accused person shall be placed on trial for an offense charged against him, is a mere inquest. The examining magistrate has very broad latitude in the matter — if the evidence, in any reasonable view of it, satisfies him that a crime within the charge made has been committed and there is reasonable cause to believe the accused is the guilty party he is warranted in holding him to bail. If there is evidence sufficient to give the magistrate any room whatever for the exercise of judgment, — in other words, any jurisdiction to decide the questions of fact within the broad field of probability, then his decision can not be reversed in the matter attempted in this instance." In United States vs. Steffens (27 Fed. Cas., 16384), it was said: "A committing magistrate acts in a two fold capacity, — as a court in deciding questions of law and of evidence; as a jury in finding questions of fact. But the scope of investigation before the magistrate falls far short of a trial of a prisoner before the court and a jury. It is not required before the magistrate as it is before the jury, that all reasonable doubt of the prisoner's guilt must be removed; it is only required that the evidence be sufficient to establish probable cause that the prisoner committed the offense charged." The following cases are also in accord on the point in question: United States vs. Lumsden (26 Fed. Cas., 15641);In re Van Campen (28 Fed. Cas., 16835); In re  Squires (13 Idaho, 624); State vs.  Layman (22 Idaho, 387); Lundstrum vs. State (140 Wis., 141); Ex parte Patterson (50 Tex. Crim., 271); People vs. Van de Carr (84 N.Y.S., 461). We find no error in the proceedings in the case at bar prejudicial to the substantial rights of the defendants and appellants, and the judgment convicting and sentencing them in the court below should therefore be affirmed, with the costs of this instance against the appellants. So ordered. SUAREZ VS PLATON 69 Phil 556 – Legal Ethics – Duty of the Prosecutor In May 1935, Atty. Fortunato Suarez was riding a train on his way to Calauag, Tayabas.  Apparently he was very vocal and he was despising the abuses made by government 43

officers. Incidentally, Lieutenant Vivencio Orais was aboard the train. Orais arrested Suarez and charged him with sedition. Orais however later moved for the dismissal of the case upon the instruction of his superior. Thereafter, Suarez filed a case against Orais for arbitrary detention. Provincial Fiscal Ramon Valdez moved f or the dismissal of the case due to insufficiency of evidence. Suarez asked Valdez to inhibit and later asked for a special prosecutor to take his place as he alleged that Valdez does not have the courage to prosecute the case. Valdez was then replaced by special prosecutor Jacinto Yamzon who also found that there is insufficient evidence to prosecute the case. Eventually, the case was dismissed by Judge Servillano Platon on the ground that t here is insufficiency of evidence. Suarez appealed the dismissal of the case but his appeal was denied on the ground that mandamus is the proper remedy. Hence, Suarez filed this Mandamus case to compel Platon to reinstate the case. ISSUE: Whether or not the case should be reinstated. HELD: No. The fiscals are well within their rights not to push through with the case if they find the evidence to be insufficient. The prosecuting officer is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence shall suffer.

TRIESTE VS SANDIGANBAYAN 145 SCRA 508  –  Legal Ethics  –  Prosecutor Must Recommend Dismissal of Case If There is No Ground To Sustain It Trieste was the mayor of Numancia, Aklan. In 1980, during his term, the Municipality of Numancia purchased construction materials from Trigen Agro-Industrial Development Corporation. Trieste was allegedly the president of said corporation. Trieste was then sued for allegedly violating the Anti-Graft and Corrupt Practices Act particularly for willfully and unlawfully having financial or pecuniary interest in a business, contract or transaction in connection with which said accused intervened or took part in his official capacity and in which he is prohibited by law from having any interest. Trieste, in defense, said that he already divested his interest from the cor poration when he took his office as mayor; that he sold his shares to his sister; he presented evidence to that effect. The Solicitor General doubted said sale because it was not registered in the Securities and Exchange Commission. Further, the advertisement of Trigen in t he local rotary club shows that Trieste is the president of the corporation. In time, the old Sol-Gen was replaced by a new one. The new Sol-Gen gave credit to the arguments presented by Trieste as it recommended the dismissal of the case on the ground that Trieste did divest his interest from the corporation by virtue of his selling his shares to his sister; that said sale cannot be doubted simply because it was not reported to the SEC; that sales of stocks are not required to be reported in the SEC. ISSUE: Whether or not the recommendation of the Solicitor General is correct.

HELD: Yes. The Solicitor General is well within his rights to make such recommendation. A public prosecutor should not hesitate to recommend to the court the accused’s acquittal if the evidence in his possession shows that the accused is innocent. If on appeal by the accused from a conviction by the trial court he finds no legal basis to sustain the conviction, he should not also hesitate to recommend that t he accused be acquitted.

LIGAYA GONZALES-AUSTRIA, LEONILA FUERTES and EDGARDO SERVANDO, complainants, vs. JUDGE EMMANUEL M. ABAYA, RTC, Br. 51, Puerto Princess City and ANNA BELLE CARDENAS,respondents. A.M. No. R-698-P August 23, 1989 JUDGE EMMANUEL M. ABAYA, complainant, vs. LIGAYA GONZALES-AUSTRIA, Branch Clerk of Court, RTC, Br. 52, Puerto Princess City, respondent. A.M. No. 2909 August 23, 1989 JUDGE EMMANUEL M. ABAYA, complainant, vs. LIGAYA GONZALES-AUSTRIA, Branch Clerk of Court, RTC, Br. 52, Puerto Princess City, respondent.

FERNAN, C.J.:  In a complaint under oath dated July 21, 1986, docketed as Adm. Matter No. R-705RTJ, Atty. Ligaya Gonzales-Austria, then Branch Clerk of Court of the Regional Trial Court (RTC), Branch 52, Puerto Princess City 1 Mrs. Leonila Fuertes and Mr. Edgardo Servando charged Judge Emmanuel M. Abaya, then Presiding Judge of RTC, Branch 51, Puerto Princess City 2 with: 1. Estafa through falsification of public or official documents, by verifying official hours rendered by one employee in the person of Miss Anabelle Cardenas who never reported for duty from August 1983 to May 1984 by encashing and receiving salaries of said Miss Cardenas through forgery of payee's signature in the treasury warrants, thus deceiving the government and defrauding the Government treasury of a big amount of money; 2. Gross dishonesty and corruption by soliciting, demanding, receiving bribed (sic) money in exchange for favorable resolutions and decisions from different litigants in Branch 52, where said Judge was temporarily assigned from November 1984 to April 1986 and of which one of the undersigned complainant (sic), LIGAYA GONZALES AUSTRIA is the Branch Clerk of Court; 44

3. Illegal exaction of portion of the salaries of his subordinate Edgardo Servando as part and condition of his continued employment in Branch 51, where Judge Abaya is the presiding judge., Judge Abaya denied all these charges in his comment dated August 29, 1986, filed in compliance with the Court Resolution of August 12, 1986. He asserted that these charges were concocted in retaliation against the administrative complaint docketed as  Adm. Matter No. 698-P he earlier filed on July 18,1986 against one of his accusers,  Atty. Ligaya Gonzales-Austria for dishonesty and grave misconduct in having f orged his signature in a probation order in Criminal Case No. 4995 of the RTC, Branch 52, Puerto Princess, entitled "People of the Philippines vs. Leonardo Cruz," for attempted murder. Adm. Matter No. 698-P was followed by a petition dated August 5,1986 docketed as Adm. Case No. 2909 for the disbarment of Atty. Ligaya Gonzales-Austria based on the same alleged offense.  After Atty. Ligaya Gonzales-Austria had filed her comment on the charges against her, the Court resolved to consolidate these related cases. On October 28, 1986, the Court granted the motion of the complainants in Adm. Matter No. R-705-RTJ to amend their complaint by including Annabelle Cardenas as defendant in the charge of Estafa thru Falsification of Public Documents. It was averred therein that the initial exclusion was due to oversight and that it was never intended to exclude her as a co-principal. By resolution of December 11, 1986, the cases were referred to Court of Appeals Justice Oscar M. Herrera for i nvestigation, report and recommendation. Based on the evidence presented by the parties, Justice Herrera finds the respondents guilty of the charges against them and thereby recommends: 1. The FORFEITURE of retirement benefits of Judge Abaya except earned leave credits; 2. The REMOVAL of Annabelle Cardenas from office as Court Stenographer; 3. A one-year SUSPENSION from office as Attorney of Atty. Ligaya G. Austria in AC2909. 4 We now consider these well-thought out recommendations. I. ADMINISTRATIVE MATTER NO. R-705-RTJ: a. Estafa thru Falsification of Public or Official Documents by Judge Abaya and  Annabelle Cardenas.— The gravamen of this charge is that Annabelle Cardenas who was appointed as Stenographic Reporter of Branch 51, RTC, Palawan in August 1983 upon the recommendation of Judge Abaya as Presiding Judge therein, was a ghost employee from August 1983 to May 1984 as she never reported for work during said period, being then employed at Princess Tours Rafols Hotel as a tourist guide. Notwithstanding, with her knowledge and consent, Judge Abaya verified as true and correct her daily time records as stenographic reporter purportedly showing that she rendered service and incurred no absences or tardiness from August 9 to September 30, 1983 and rendered service for the period from October 1, 1983 to May 31, 1984

and was granted leave of absence from March 14 to 30, 1984 and from April 23 to 27, 1984. Thus, she was paid her salaries corresponding to the periods allegedly worked. Some of the Treasury Warrants covering her salaries were, according to complainants, encashed by Judge Abaya by forging Annabelle Cardenas' signature. Both Judge Abaya and Annabelle Cardenas vehemently denied the charges, countering that the latter worked as stenographic reporter from August 1983 to May 31, 1984. We find the charges against Judge Abaya and Annabelle Cardenas to be supported by substantial evidence. Especially damaging to the pretensions of the respondents that  Annabelle Cardenas rendered service as stenographic reporter during the period under consideration are the school records of the Holy Trinity College, showing that Annabelle Cardenas was attending school in the first semester of school year 1983-1984 from 2:00 P.M. to 8:15 P.M. 5 While she claimed to have been permitted by her teacher to attend her typing and stenography classes after office hours, the school records reveal that she has other subjects such as Business Organization and Management (3 units), Ten Commandments (3 units), Sining ng Pakikipagtalastas (3 units) and Accounting for Single Proprietorship (3 units), her attendance in which can be safely concluded from the passing grades she received in said subjects. Equally damaging to respondents' assertion are the Daily Time Records of Princess Tours 6  showing that  Annabelle Cardenas acted as tourist guide on 43 working days when she was supposedly rendering service as stenographic reporter. Her explanation that her name was placed on the daily time record as team leader, although she did not actually conduct the tours reflected therein is too shallow to m erit belief. It is indeed quite intriguing that during the ten-month period under consideration, the court calendar for Branch 51 never once carried Annabelle Cardenas' name to signify her attendance at a court session. Moreover, she could not produce any single order, transcript or official stenographic notes that had been taken by her i n any case, civil or criminal. All she presented were so-called practice notes. Judge Abaya stated in his comment that it was Annabelle Cardenas who was collecting her salary "without intervention from your respondent. 7 It was however proved that Judge Abaya collected Annabelle Cardenas' salaries on several occasions, as in fact, said Annabelle Cardenas even executed a special power of attorney in his favor authorizing him not only to collect the treasury warrants but to endorse and negotiate them as well. 8 Be that as it may, we find the evidence insufficient on the one hand to overthrow the explanation of respondents that Judge Abaya collected Annabelle Cardenas' salaries in Manila so that he could bring the same to Candon, Ilocos Sur for delivery to her mother, who is a good friend of the Judge; and on the other hand to support complainants' theory that Judge Abaya appropriated the money for himself. b. Charges of Gross Dishonesty and Corruption by Soliciting, Demanding and Receiving Bribe Money against Judge Abaya. — The act complained of was allegedly committed by Judge Abaya while temporarily assigned to Branch 52, RTC Palawan vice Judge Jose G. Genilo Jr., who was temporarily assigned to Batangas City. It must be recalled that complainant Atty. Ligaya Gonzales-Austria was then Branch Clerk of Court of Branch 52. 45

It was alleged that Judge Abaya denied the application for bail of the accused in Criminal Case No. 5304 entitled "People vs. Henry Arias and Fernando Oniot for murder, in consideration of the sum of P 2,000.00 given by Mrs. Leonila Fuertes, complainant and mother of the victim in the aforesaid case. Mrs. Leonila Fuertes, a school teacher, testified that she went to Branch 52 at about 5:00 P.M. on August 13, 1985 in r esponse to a telephone call from court stenographer Nelly Vicente that Judge Abaya wanted to see her personally. Nelly Vicente referred her to Carmencita P. Baloco, the officer-in-charge who then called Judge Abaya f rom the other branch. Judge Abaya directed her to the adjoining courtroom where he told her, "Ang kaso ninyo ay m edyo tagilid, 50-50 dahil walang eyewitness." (Your case is shaky with only a 50-50 chance of winning because there is no eyewitness.) She retorted that there was an eyewitness but the Judge insisted that there was none because the supposed eyewitness had his back turned when her son was stabbed. Nonetheless, the Judge assured her that he would be able to do something about it ("Ngunit lahat ay magagawan ko ng paraan dahil ako ang nakakaalam sa mga decision dito").lâwphî1.ñèt When Mrs. Fuertes asked the Judge what he wanted, he told her that he has a problem. "Kailangan ko ng pera Limang Libo at Ide-deny ko ang bail na mga acusado" (I need Five Thousand Pesos and I will deny bail to the accused). Mrs. Fuertes expressed puzzlement on why she had to give money when she was the aggrieved party, but the Judge cut her off by saying he needed the money badly before he leaves for Manila. Mrs. Fuertes answered that she would have to consult her brothers-in-law about the matter. The Judge told her to see him at his house at 7:00 o'clock in the evening. Mrs. Fuertes consulted her brothers-in-law as well as the then prosecuting fiscal, now Judge Angel R. Miclat about the matter. Although they were all against the Idea of her acceding to the Judge's demand, she delivered the amount of Pl,200.00 to Judge  Abaya on August 15,1985 in his chambers, telling him that was all she could afford. Judge Abaya looked dissatisfied but said "Never mind" and that he would just contact her at the next trial for the final judgment. 9 Roselyn Teologo, stenographic reporter of Branch 52 corroborated that portion of Mrs. Fuertes' testimony relating to the phone call of Nelly Vicente to Mrs. Fuertes, the latter's arrival on August 13, 1985 at Branch 52 and Mrs. Fuertes having been closeted with Judge Abaya inside the courtroom for about 20 minutes. She further testified that Carmen Baloco who eavesdropped on the Judge and Mrs. Fuertes' conversation remarked, "Grabe ito, nanghihingi ng pera." (This is terrible, he is asking money.) She added that when Judge Abaya emerged from the courtroom, he instructed her not to tell anybody that Mrs. Fuertes had been there. 10  Additional corroborative evidence was given by Judge Angel R. Miclat, then acting City Fiscal for Puerto Princess City handling Criminal Case No. 5304. He testified that Mrs. Fuertes came to him in August of 1986 to inform him that Judge Abaya was asking P5,000.00 from her so that the bail application of the accused would be denied. While he advised her to file a complaint against Judge Abaya, he was informed later on that Mrs. Fuertes gave Judge Abaya not the amount being asked, but only about P1,200.00. 11

Likewise submitted in evidence by the complainants were the entries in Mrs. Fuertes' diary, thus:  August 13, 1985 called by Judge Abaya to see him after office hours. He asked me for my case was 50-50. 12  August 15, I went to town to see Baby Francisco, gave P2,000 and I brought the money to Judge. 13 July 2, 1986 Judge Abaya with companion Rufo Gonzales and Celia Fernandez. Purpose they convinced me to sign my name in the affidavit stating that I will deny the previous affidavit I made stated that Judge asked from me certain amount and his request was granted. But I did not sign and asked me to see him in town at the residence of Menchie his niece personally nakiusap kay Baby upang mai-deny ang affidavit ko through Atty. Austria ay nakiusap pa rin. He is talking care Nanette na idinay ko. 13-A Judge Abaya denied the solicitation as well as the receipt of money from Mrs. Fuertes. He alleged that the bail application of the accused in Criminal Case No. 5304 was denied, not because of any outside interference, but because the evidence of guilt was strong. He surmised that Mrs. Fuertes and Nelly Vicente had been pressured by Atty. Ligaya Gonzales-Austria into testifying against him out of sheer vindictiveness and that Mrs. Fuertes might have been blaming him for the delay in the resolution of the criminal case against her son's alleged killers. We quote with approval Justice Herrera's perceptive reasons for giving full faith and credence to Mrs. Fuertes' testimony: We find no improper motive as to why Mrs. Fuertes, a school teacher, would impute such a serious offense against a judge unless it be the truth. Mrs. Fuertes is not a disgruntled litigant. Judge Abaya having denied the petition for bail of the suspected killer of Mrs, Fuertes' son, she should, under normal circumstances be grateful to the Judge. Yet she charged him with a serious offense, and travelled all the way from Palawan to Manila to testify against the Judge. Under the circumstances, We cannot accept Judge Abaya's contention that Mrs. Fuertes perjured herself just to accommodate the vengeanceful ire of Atty. Austria against Judge Abaya. That would be contrary to the ordinary prompting of m en. Upon the other hand, the testimony of Mrs. Fuertes is too rich in details brought out on cross-examination which cannot simply be swept aside as m ere fabrications. They find support in collateral but highly significant circumstances pointed to by Mrs. Teologo, such as (1) the visible presence of Mrs. Fuertes in the courtroom in conference with Judge Abaya at 5:00 o'clock in the afternoon of August 15, (should be 13) 1985; and (2) the highly credible testimony of Judge Miclat on the report made to him by Mrs. Fuertes, as then acting City Fiscal, on the solicitation of Judge Abaya. It certainly cannot be said that Mrs. Fuertes merely concocted her story at the time regarding the solicitation of Judge Abaya in connection with the pending case of the suspected killers of her son. There was absolutely no motive for her to do So. 14 c. Charge of illegal Exaction against Judge Abaya. — It is alleged that Judge Abaya exacted portions of the salaries of two (2) employees in Branch 51 of the Palawan RTC 46

as a condition for their continued employment. Edgardo Servando, one of the complainants herein, and who was appointed stenographer on September 3, 1984 upon the recommendation of Judge Abaya, declared that such recommendation was made in consideration of his agreement to give Judge Abaya Pl,000.00 from his initial salary and thereafter a monthly amount of P400.00, which undertaking he complied with. However, in December when the Judge before leaving for Manila for the Christmas vacation asked him for Pl,000.00 from as fringe benefits, m edical allowance and year-end bonus, he was unable to comply as he did not then have cash, the payment of said benefits having been in checks. A week later, he received a notice of termination effective at the close of business hours on December 31, 1984 from the Supreme Court upon the recommendation of Judge Abaya. 15 Nilo Jamora, a former stenographer of Branch 51 testified that since his employment in said Branch, Judge Abaya had been exacting from him P350.00 every payday, which exaction ceased only in March 1986 when Atty. Ligaya Gonzales-Austria filed her charges against Judge Abaya. He further stated that when he refused to retract his charges against Judge Abaya before the Sangguniang Panlalawigan despite the Judge's offer of money, the latter demoted him to process server. 16 Judge Abaya likewise denied this charge, labelling the same as sheer vindictiveness due to Servando's termination and Jamora's demotion, fanned by Atty. Austria's proddings. He insists that the personnel action taken on Servando and Jamora was due to t heir inefficiency. While the investigating officer, Justice Herrera observed that both Servando and Jamora "testified in a natural and straightforward, albeit in an angry manner without attempting to conceal their contempt for Judge Abaya,  17 he conclu ded that "the evidence in this regard would be unable to withstand judicial scrutiny for want of ample corroboration. It would simply be the word of one against a judge. 18 We are in accord with this observation, for indeed, the charge if true is so demeaning to an RTC judge that it r equires more than a bare allegation to sustain it. In t his regard, we give respondent Judge the benefit of the doubt. In summation, we find Judge Emmanuel M. Abaya guilty of grave and serious misconduct affecting Ms integrity and moral character which would have warranted his dismissal from the service had his resignation not been accepted. The office of a judge exists for one solemn end —  to promote justice by administering it fairly and impartially. In regarding justice as a commodity to be sold at a price, Judge  Abaya betrayed the very essence of magistracy. In complicity with Annabelle Cardenas, he likewise abused the trust and confidence of the people, shortchanging them of services undoubtedly vital to the speedy administration of justice. The judge is the visible representation of the law and of justice. From him, the people draw their will and awareness to obey the law. 19 For him then to transgress the highest ideals of justice and public service for personal gain is indeed a demoralizing example constituting a valid cause for disenchantment and loss of confidence in the judiciary as well as in the civil service system.

By these acts, Judge Abaya has demonstrated his unfitness and unworthiness of the honor and requisites attached to his office. As he had previously resigned, we hereby order the forfeiture of his retirement benefits, except earned leave credits, as recommended by the investigating officer Justice Herrera. We further mete out to Annabelle Cardenas in consequence of her grave misconduct as above-described the penalty of removal from office as Court Stenographer with prejudice to her re-appointment to the Judiciary. II. A.M. No. R-698-P and Adm. Case No. 2909 The complaints for dishonesty and grave misconduct in A.M. No. R-698-P and for disbarment in Adm. Case No. 2909 against Atty. Ligaya Gonzales-Austria, then Clerk of Court of Branch 52, RTC Palawan, stem from her act of having allegedly forged the signature of Judge Abaya in a probation order dated April 22, 1986 in Criminal Case No. 4999 of said court entitled "People of the Philippines vs. Leonardo Cruz" for attempted homicide.  Atty. Ligaya Gonzales-Austria admits to having signed the probation order and of having promulgated it, but explains that these were done with the knowledge and consent of Judge Abaya, who had asked her to prepare orders and decisions in Branch 52 to ease his l oad of presiding over two (2) branches. She adverts to Judge Abaya's order of November 4, 1985 which granted accused Leonardo Cruz' motion for reconsideration of the order denying probation. This order, which carried certain conditions, set the promulgation of the probation order on January 16, 1986 at 8:00 o'clock in the morning. In the meantime, Judge Abaya requested Atty. Austria to prepare the probation order with the day and month in blank for the signature of the Judge. On January 16,1986, Judge Abaya was absent so the promulgation was reset to April 16, 1986. On the latter date, t he provincial warden failed to bring the accused to court, hence the promulgation of the probation order was again reset to June 3, 1986, with Judge Abaya allegedly giving instructions before he left for Manila to promulgate said order even in his absence should the probationer Leonardo Cruz arrive in court. On April 21, 1986, Leonardo Cruz came and begged that the probation order be promulgated the following day, April 22, 1986 as he had to leave for Coron in the same pumpboat that brought him to Puerto Princess and he had no money to sustain him up to the time the Judge arrives from Manila. As r equested, the promulgation was set on  April 22, 1986, only for Atty. Austria to discover that Judge Abaya had neglected to sign the probation order. In view of the predicament of Leonardo Cruz and the authority granted to her by Judge Abaya, Atty. Austria signed Judge Abaya's name to the probation order and promulgated it.  Atty. Austria justifies her action under the theory of agency (Art. 1881 of the Civil Code) 20 in that having been granted full authority to promulgate the probation order, she necessarily had the authority to sign the Judge's name if the need arose. She further maintains that as Judge Abaya never complained about the alleged forgery, he is deemed to have ratified it and is now estopped from questioning her authority. Lastly, she compares the probation order to a writ of execution which is usually done by the Clerk of Court. 21 47

Respondent's arguments are quite novel but unpersuasive. As thoroughly explained by Justice Herrera: .....her explanation that she is the one preparing decisions and orders in Branch 52 with the knowledge and consent of Judge Abaya during the time that the latter was acting as Presiding Judge of said branch and that she was directed to promulgate the probation order in favor of Leonardo Cruz only to discover that the judge overlooked to sign the order, even if true, is not a valid justification for her to simulate the signature of Judge Abaya in the probation order. This is patently illegal. As a lawyer and branch clerk of court, she ought to know that under no circumstances is her act of signing the name of the judge permissible. She could have probably released the order with the statement that it is upon orders of the judge or by authority of the judge but she could not under any circumstance make it appear as she did in this case that the Judge signed the order when in fact he did not. The duties of t he clerk of court i n the absence of any express direction of the Judge is well defined under Section 5, Rule 136 of the Rules of Court which reads: Sec. 5. Duties of the Clerk in the absence or by direction of the judge. — In the absence of the judge, the clerk may perform all the duties of the judge in receiving applications, petitions, inventories, reports, and the issuance of all orders and notices that follow as a matter of course under these rules, and may also, when directed so to do by the  judge, receive the accounts of executors, administrators, guardians, trustees, and receivers, and all evidence relating to them, or to the settlement of the estates of deceased persons, or to guardianship, trusteeships, or receiverships, and forthwith transmit such reports, accounts, and evidence to the judge, together with his findings in relation to the same, if the judge shall direct him to make findings and include the same in his report. Signing orders in the name of, and simulating the signature of the judge is not one of them.  Atty. Austria's theory of agency that she lawfully acted as agent of the Judge is wholly devoid of merit. The judicial power vested in a judge and its exercise is strictly personal to the Judge because of, and by reason of his highest qualification, and can never be the subject of agency. That would not only be contrary to law, but also subversive of public order and public policy. Nor could her void act in signing the name of the judge be validly ratified by the latter. Judge Abaya himself is bereft of any power to authorize the clerk of court to sign his name in his official capacity in a matter pending adjudication before him. The issuance of the order in question is strictly judicial and is exclusively vested in the judge which is beyond his authority to delegate. 22 Generally speaking, a lawyer who holds a government office may not be disciplined as a member of the bar for misconduct in the discharge of his duties as a government official. 23 However, if that misconduct as a government official is of such a character as to affect his qualification as a lawyer or to show moral delinquency, then he may be disciplined as a m ember of the bar on such ground. 24 We find Atty. Austria's misconduct as Branch Clerk of Court to affect her qualification as a member of tile Bar, for precisely as a lawyer, she ought to have known the illegality of the act complained of.

WHEREFORE, finding the respondents Judge Emmanuel M. Abaya, Annabelle Cardenas and Atty. Ligaya Gonzales-Austria guilty as charged, except that of illegal exaction against Judge Abaya, the Court hereby orders: 1. In Adm. Matter No. R-705-RTJ, the FORFEITURE of the retirement benefits of Judge Emmanuel M. Abaya, except his earned leave credits; and the DISMISSAL from office of Annabelle Cardenas as Stenographic Reporter with prejudice to her reappointment to the Judiciary; and, 2. In Adm. Matter No. R-698-P and Adm. Case No. 2909, the resignation of Atty. Ligaya Gonzales-Austria as Branch Clerk of Court IS ACCEPTED as of December 31, 1987 and any and all benefits accruing during her government service are declared forfeited, except her earned leave credits. Her SUSPENSION as a member of the Bar for a period of one year from t he finality of this decision is further decreed. Let copies of this resolution be furnished the Ombudsman for the filing of appropriate criminal charges against respondents if warranted. Copies of this resolution shall be attached to the respondents' respective personal records. ENRIQUEZ SR. VS HON. GIMENEZ Facts: R.A. No. 1383 was passed creating the National Waterworks and Sewerage  Authority (NAWASA) as a public corporation and vesting in it the ownership and control over all existing government-owned waterworks systems. However, Bauan Batangas passed Res. No. 152 stating that it does not desire to submit their local waterworks to the provisions of said R.A. No. 1383. Provincial Fiscal rendered an opinion holding that R.A. No. 1383 is valid and constitutional and declined to represent the municipality of Bauan in an action to be brought against the NAWASA to test the validity and constitutionality of the Act. Given this, the municipality engaged the services of a special counsel to commence an action challenging the constitutionality of R.A. No. 1383. The Petitioners are the special counsel seeking reimbursement for initial attorney’s fees, which the Auditor General disallowed citing that the Municipality of Bauan had no authority to engage the services of a special counsel Issue: Whether municipality of Bauan had authority to engage the services of a special counsel Held: No. The Provincial Fiscal is the legal adviser of the mayor and counsel of the various municipalities of a province and it is his duty to represent the municipality in any court except when he is disqualified by law, which in this case he is not. A fiscal cannot refuse the performance of his functions on grounds not provided for by law without violating his oath of office. Instead of engaging the services of a special attorney, the municipal council should have requested the Secretary of Justice to appoint an acting provincial fiscal in place of the provincial fiscal who had declined to handle and prosecute its case in court. 48