Pale (Judicial Clemency and Reinstatement to Practice Law)

BASIS OF JUDICIAL CLEMENCY AND REINSTATEMENT TO THE PRACTICE OF LAW No specific mention was made as to what authority the power of JUDICIAL CLEMENCY AND REINSTATEMENT. However, the Philippine Constitution provides a broad power to the Supreme Court to Limit, Deny and even grant for the restoration of the privilege of a member of the Bar to practice law.

Article VIII, Section 5, (5) provides: "Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court." I. Judicial Clemency What is Judicial Clemency? Clemency, is an act of mercy removing any disqualification, should be balanced with the preservation of public confidence in the courts. The Court will grant it only if there is a showing that it is well merited. Proof of reformation and showing of potential and promise are indispensable. (In Re: Letter of Judge Augustus Diaz. 533 SCRA 534) Purpose: The primary purpose is to seek mercy or benevolence of the Court for the past mistakes. It usually includes requests for reinstatement, commutation of period of sentence or removal of certain disabilities. To whom is it applicable?

Judicial Clemency is given to members of the bar, who seeks to be given compassion by the Court to resume his or her previous status prior to suspension, or even disbarrement. Here, there must be a showing of clear remorse of the petitioner of his previous actions.

v. JURISPRUDENCE a. JUDICIAL CLEMENCY Cases Involving Lawyers- JC Granted In RE: 2003 BAR EXAMINATIONS ATTY. DANILO DE GUZMAN, 586 SCRA 373 (2009) Atty. Danilo De Guzman was stripped his license to practice law for his alleged involvment in the leakage in the 2003 Bar Examination. As a consequence of his dire acts, he was later on disbarred. Petitioner now seeks for Judicial Clemency and Reinstatement to the Bar. Petitioner submits various endorsements from individuals and entities all attesting to his good moral character. A total of 14 Open Letters, Testimonial Letters and personal letters of certain distinguished individuals were included. Citing In Re: Carlos S. Basa, petitioner pleaded that he be afforded the same kindeness and compasssion in order that his future may not be perpetually foreclosed. The Court was convinced that petitioner has since reformed and has sincerely reflected on his transgressions. The penalty of disbarment may now be lifted and he be allowed to practice of law. The Court further ruled that while it is ever mindful of its duty to discipline its erring officers, it also knows how to show compassion when the penalty imposed has already served its purpose. Among the proof where the Petitioner has sufficiently demonstrated the remorse expected of him, the attestations submitted by his peers in the community and other esteemed members of the legal profession, his subsequent track record in public service. His achievements as a lawyer would redound to the general good and more than mitigate the stain on his record. Compassion to the petitioner is warranted.

Maccarubo vs. Maccarubo (424 SCRA 42) Re: Petition (For Extraordinary Mercy) of Edmundo Macarubbo. (2013)

Florence Macarrubo filed a verified complaint for disbarrment agianst Atty. Edmundo Macarrubo, alleging that respondent decieved her into marrying him despite his prior subsisting marriage with a certain Helen Esparza. He was first suspended, then later on meted the punishment of disbarrment. While the court is ever mindful of its duty to discipline and even remove its errant officers, concomitant to it is its duty to show compassion to those who have reformed. For resolution is the Petition for Extraordinary Mercy filed by respondent Edmundo Macarubbo who seeks to be reinstated in the Roll of Attorneys. Eight years after or on June 4, 2012, respondent filed the instant Petion seeking judicial clemency and reinstatement in the Roll of Attorneys. Citing In Re: Letter of Judge Agustus C. Diaz, the court laid down the following guidelines in resolving requests for judicial clemency, to wit: 1.

There must be proof of remorse and reformation.

2. Sufficient time must have lapsed from the imposition of the penalty to ensure a period of reformation. 3. The age of the person asking for clemency must show that he still has productive years ahead of him that can be put to good use by giving him a chance to redeem himself. 4.

There must be a showing of promise as well as potential for public service.

5. There must be other relevant factors and circumstances that may justify clemency. Moreover, to be reinstated to the practice of law, the applicant must, like any other candidate for admission to the bar, satisfy the Court that he is a person of good moral character. (In re: Atty. Tranquillo Rovero, A.C. No. 126, December 29, 1980, 101 SCRA 799, 801) Respondent has sufficiently shown his remorse and acknowledge his indiscretion in the legal profession and in his personal life. He asked forgiveness form his childern and maintianed a cordial relationship with them as shown in attached pictures. Devoted his time to his ailing mother. Appointed as Private Secretary to Mayor Enrile, Cagayan and thereafter assumed the position of Local Assessment Operations Officer. Took active part in socio-civic activities by helping his neighbors and friends who are in dire need.

Documents of respondent's reformed ways included 11 affidavits from persons and associations attesting to his reformed ways. IBP Cagayan chapter, Parish Priest. At the age of 58, he still has productive years ahead that could significantly contribute to the upliftment of the law profession and the betterment of society. His petition is GRANTED. b. JUDICIAL CLEMENCY Cases Involving Judges - JC Granted In Re: Letter of Judge Augustus Diaz. 533 SCRA 534 (2007) Judge Diaz was an applicant for judgeship in one of the vacant Regional Trial Court branches in Metro Manila. In connection therewith, he was interviewed by JBC. He was told to seek judicial clemency due to the fact that he was once fined P20,000. He claims that this lapse happened only one as a result of “oversight”. He requests judicial clemency and, in particular, that he be allowed to “again be nominaterd to one of the vacant branches of the RTC of Metro Manila. Rule 4 of the Rules of the JBC provides: "SEC. 5.Disqualification. - The following are disqualified from being nominated for appointment to any judicial post or as Ombudsman or Deputy Ombudsman: x

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3. Those who have been convicted in any criminal case; or in an administrative case, where the penalty imposed is at least a fine of more than P10,000 unless he has been granted judicial clemency. X

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The Court laid down the following guidelines in resolving requests for judicial clemency: 1) There must be proof of remorse and reformation. These shall include but should not be limited to certifications or testimonials of the officer/s or chapter/s of the IBP, judges or judges associations and prominent members of the community with proven integrity and probity. A subsequent finding of guilt in an administrative case for the same or similar misconduct will give rise to a strong presumptin of non-reformation. 2) Sufficent time must have lapsed form the impostion of the penalty to ensure a period of reform. 3) The age of the person asking for clemency must show that he still has

productive years ahead of him that can be put to good use by giving him a chance to redeem himself. 4) There must be a showing of promise (such as intellectual aptitude, learning or legal acumen or contribution to legal scholarship and the development of the legal system or administrative and other relevant skills), as well as potential for public service. 5) Ther must be other relevant factors and circumstance that may justify clemency.

As applied to the case, Judge Diaz expressed sincere repentance for his past malfeasance. He humbly accepted the verdict of this Court in Alvarez. Three years have elapsed since the promulgation of Alvarez. It is sufficient to ensure that he has learned his lesson and that he has reformed. His 12 years of service in the judiciary may be taken as proof of his dedication to the institution.

In re: Former Judge Ralph S. Lee, 580 SCRA 462 (2009) The Court previously found Judge Lee, liable for undue delay in deciding cases for which we imposed the penalty of fine of P20,000.00 He requested for judicial clemency because the sanction imposed him precludes him from qualifying for a promotion in the Judiciary.

The Court applied the guidelines in resolving requests for judicial clemency laid down in In re: Letter of Judge Augustus Diaz. The Court found these standards satisfied in the present case based on the following reasons: First, Judge Lee in his letter expressed his deepest regrets and profound apologies to the Court for his professional shortcomings. Second, while only three (3) years have passed since the Court rendered the decision in the case, Judge Lee showed his intent and the effects of his reformation within that short period of time Third, Judge Lee is only 51 years old and still has many productive years ahead of him to render judicial service. Fourth, Judge Lee has made substantial contributions to legal education.

Lastly, an exceptional catalytic factor that justifies the grant of clemency despite the lapse of only three (3) years, is the remarkable courage and bravery Judge Lee displayed during the floods of tropical storm Ondoy in 2009 when he rescued flood victims in his neighborhood at the risk of his own life.

In Re: Emma J. Castillo vs. Judge Manuel M. Calanog, 239 SCRA 268 (1994) The Court in its decision on July 12, 1991 found Judge Calanog guilty of immorality and ordered dismissed from the service "with prejudice to his reinstatement or appointment to any public office including a government-owned or controlled corporation, and forfeiture of retirement benefits, if any." As proof of his moral regeneration, Atty. Calanog alleges that he has become active in religious and civic activities. In support of his allegations, he has submitted testimonials. Atty. Calanog is a relatively young man of 54. If his contributions during the four years that he was an RTC judge were any measure of his potentiality for public service, he has productive years still ahead of him which should not be foreclosed. The penalty of disqualification from appointment to any public office should be lifted so that the opportunity for public service in other fields may be opened to him.

In Re: Undated Letter of Mr. Louis C. Biraogo, Petitioner in Biraogo vs. Nograles and Limkaichong, 580 SCRA 107 (2009) Through six letters filed by Retired Justice Ruben T. Reyes, he sought the benevolence of the Court to lift his indefinite suspension from the practice of law and disqualification to hold public office. The said sanctions were recommended because Justice Reyes was found to have prematurely leaked the ponencia in G.R. No. 179120. The Court found that Justice Reyes’ espousal of much regret and sincere apology for the incident, his thirty-five years of service in the government prior to the suspension, and considering his advanced age, satisfied the guidelines. However, the Court only allowed Justice Reyes to return to private practice and chose not to lift the suspension in holding of public office and he is also not allowed to teach law in MCLE and to become a lecturer in the PHILJA. The granting of these petitions still depends on the discretion of the Court, notwithstanding the criteria and guidelines. For as long as the Court is satisfied that a member of the bar or the bench suffering from suspension, disbarment or any other disabilities has shown strong proofs of

rehabilitation, he may be allowed or readmitted to the practice of law. However, this is without prejudice to the authority of the Court to impose additional conditions to grant requests for judicial clemency and/or reinstatement. c. Cases where JUDICIAL CLEMENCY is not granted In the Matter of Petition for Absolute Judicial Clemency of Former Judge Baguinda Ali A. Pacalna, MTTC Marawi City (2013) The Petition for Judicial Clemency filed by respondent Baguinda-Ali A Pacalna is DENIED for lack of merit. Respondent’s petition is not supported by any single proof of his professed repentance. His appeal for clemency is solely anchored on his avowed intention to go back to the judiciary on his personal belief that “he can be x x x an effective instrument in the delivery of justice in the Province Of Lanao del Sur because of his seventeen (17) years of experience,” and on his “promise before the Almighty God and the High Court that he will never repeat the acts or omissions that he had committed as a Judge.” He claims having learned “enough lessons” during the three years he became jobless and his family had “suffered so much because of his shortcoming. REINSTATEMENT •

What is Reinstatement?

 In general, is to place again in a former state, condition, or office; to restore to a state or position from which the object or person had been removed. (Black's Law Dictionary Free Online Legal Dictionary 2nd Ed.)  In the practice of law, reinstatement is the restoration in disbarment proceedings to a disbarred lawyer the privilege to practice law.  The Supreme Court has the exclusive authority to reinstate a disbarred or indefinitely suspended lawyer to the office of attorney-at-law. It may reinstate him for reasons and upon assurance satisfactory to the court.  The power of the Supreme Court to reinstate is based on its constitutional prerogative to promulgate rules on the admission of applicants to the practice of law. [Sec. 5(5), Art. VIII, 1987 Philippine Constitution] •

Condition in reinstatement

 The applicant must, like a candidate for admission to the bar, satisfy the Court that he is a person of good moral character – a fit and proper person to practice law. •

According to the IBP, a member undergoes suspension or disbarment “to protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely to discharge properly their professional duties to clients, the public, the legal system, and the legal profession”.

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READMISSION TO THE BAR OF LAWYERS WHO HAVE BEEN SUSPENDED

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Suspension

 Suspension is the removal of a lawyer from the practice of law for a specified minimum period of time. Generally, suspension should be for a period of time equal to or greater than six months, but in no event should the time period prior to application for reinstatement be more than three years. Procedures should be established to allow a suspended lawyer to apply for reinstatement, but a lawyer who has been suspended should not be permitted to return to practice until he has completed a reinstatement process demonstrating rehabilitation, compliance with all applicable discipline or disability orders and rules, and fitness to practice law. •

Suspension

 Interim suspension is the temporary suspension of a lawyer from the practice of law pending imposition of final discipline. Interim suspension includes: •

suspension upon conviction of a “serious crime” or,

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suspension when the lawyer’s continuing conduct is or is likely to cause immediate and serious injury to a client or the public.

 Indefinite Suspension is the removal of the right of a lawyer to practice law for a undefined period of time. •

Zaldivar v. Gonzales, G.R. Nos. 79690-707, April 7, 1993

 The Gonzales’ contrition, so noticeably absent in his earlier pleadings, has washed clean the offense of his disrespect. His remorse has soften his arrogance and made up for his misconduct. Gonzales’ suspension has given him ample time and opportunity to amend his erring ways, rehabilitate himself, and thus, prove himself worthy once again to enjoy the privileges of membership of the Bar.

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Is the lifting of the suspension order automatic?

 The lifting of a lawyer’s suspension is not automatic upon the end of the period stated in the Court’s decision, and an order from the Court lifting the suspension at the end of the period is necessary in order to enable [him] to resume the practice of his profession. ( J.K. Mercado and Sons Agricultural Enterprises, Inc. et al. v. Atty. deVera, et al. and Atty. de Vera v. Atty. Encanto, et al.)  Thus, according to the OBC, a suspended first present proof(s) of his compliance by submitting certifications from the Integrated Bar of the Philippines and from the Executive Judge that he has indeed desisted from the practice of law during the period of suspension. Thereafter, the Court, after evaluation, and upon a favorable recommendation from the OBC, will issue are solution lifting the order of suspension and thus allow him to resume the practice of law. (Maniago v. Atty. De Dios, A.C. No. 7472,March 30, 2010) •

Guidelines to be observed in the matter of the lifting of an order of suspension

1. After a finding that respondent lawyer must be suspended from the practice of law, the Court shall render a decision imposing the penalty; 2. Unless the Court explicitly states that the decision is immediately executory upon receipt thereof, respondent has 15 days within which to file a motion for reconsideration thereof. The denial of said motion shall render the decision final and executory; 3. Upon the expiration of the period of suspension, respondent shall file a Sworn Statement with the Court, through the Office of the Bar Confidant, stating there in that he or she has desisted from the practice of law and has not appeared in any court during the period of his or her suspension; •

Guidelines to be observed in the matter of the lifting of an order of suspension

4. Copies of the Sworn Statement shall be furnished to the Local Chapter of the IBP and to the Executive Judge of the courts where respondent has pending cases handled by him or her, and/or where he or she has appeared as counsel; 5. The Sworn Statement shall be considered as proof of respondent’s compliance with the order of suspension;

6. Any finding or report contrary to the statements made by the lawyer under oath shall be a ground for the imposition of a more severe punishment, or disbarment, as may be warranted. •

READMISSION TO THE BAR OF LAWYERS WHO HAVE BEEN DISBARRED

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Disbarment

 Disbarment terminates the individual’s status as a lawyer.  Where disbarment is not permanent, procedures should be established for a lawyer who has been disbarred to apply for readmission, provided that: 1. no application should be considered for five years from the effective date of disbarment; 2. the petitioner must show by clear and convincing evidence: a) successful completion of the bar examination; b) compliance with all applicable discipline or disability orders or rules; and c) rehabilitation and fitness to practice law •

Considerations in reinstatement

1. The applicant’s character and standing prior to the disbarment; 2. The nature and character of the charge for which he was disbarred; 3. His conduct subsequent to the disbarment, and the time that has elapsed between the disbarment and the application for reinstatement; (Prudential Bank v. Benjamin Grecia, A.C. No. 2756,Dec. 18, 1990) 4. His efficient government service; (In re: Adriatico, G.R. No. L-2532, Nov. 17, 1910) 5. Applicant’s appreciation of the significance of his dereliction and his assurance that he now possesses the requisite probity and integrity; and 6. Favorable endorsement of the IBP and pleas of his loved ones. (Yap Tan v. Sabandal, B.M. No. 144, Feb. 24, 1989)  Whether or not the applicant shall be reinstated rests on the discretion of the court. (Prudential Bank v. Benjamin Grecia, A.C. No. 2756,Dec. 18, 1990)

 The court may require applicant for reinstatement to enroll in and pass the required fourth year review classes in a recognized law school. (Cui v. Cui, In Re:Resian A.C. No. 270, Mar. 1974) •

Effects of reinstatement

 Reinstatement to the roll of attorneys wipes out the restrictions and disabilities resulting from a previous disbarment (Cui v. Cui, G.R. No. L-18727, Aug. 31, 1964);  Recognition of moral rehabilitation and mental fitness to practice law;  Lawyer shall be subject to same law, rules and regulations as those applicable to any other lawyer; and  Lawyer must comply with the conditions imposed on his readmission. •

Effect of Executive Pardon

 If during the pendency of a disbarment proceeding the respondent was granted executive pardon, the dismissal of the case on that sole basis will depend on whether the executive pardon is absolute or conditional. •

Absolute or unconditional pardon – the disbarment case will be dismissed.

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Conditional pardon - the disbarment case will not be dismissed on the basis thereof.

 An absolute pardon by the President is one that operates to wipe out the conviction as well as the offense itself. The grant thereof to a lawyer is a bar to a proceeding for disbarment against him, if such proceeding is based solely on the fact of such conviction. (In re: Parcasio, A.C. No. 100,Feb. 18, 1976)  But where the proceeding to disbar is founded on the professional misconduct involved in the transaction which culminated in his conviction, the effect of the pardon is only to relieve him of the penal consequences of his act and does not operate as a bar to the disbarment proceeding, inasmuch as the criminal acts may nevertheless constitute proof that the attorney does not possess good moral character. (In re: Lontok, 43Phil. 293, Apr. 7, 1922)  In the light of recent court pronouncements that a lawyer may be disciplined even for non-professional misconduct, one may argue that a lawyer convicted of a crime involving moral turpitude, and subsequently receives absolute pardon, may still be proceeded against under the Code of Professional

Responsibility even if the acts of which he was found guilty did not involve professional misconduct (A modification of In ReLontok, supra). •

READMISSION TO THE BAR OF LAWYERS WHO HAVE BEEN REPATRIATED

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What is the effect of loss Philippine citizenship?

 The loss of Philippine citizenship ipso jure terminates the privilege to practice law in the Philippines.  Filipino citizenship is a continuing requirement for the practice of law, loss of which means the termination of one’s membership in the Bar and the privilege to engage in the practice of law. •

Sec. 5(4), RA 9225

 Lawyers who reacquire their Philippine citizenship should apply to the SC for license or permit to practice their profession.  Filipino lawyer who becomes a citizen of another country but later re-acquires his Philippine citizenship under RA 9225 remains to be a member of the Philippine Bar •

Petition for Leave to Resume Practice of Law, Benjamin Dacanay

 FACTS: •

March 1960- Dacanay was admitted to the Philippine Bar.

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December 1998 - He migrated to Canada.

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May 2004 - He became a Canadian citizen.

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July 2006 - He acquired Philippine citizenship pursuant to RA No. 9225

 ISSUE: May Dacanay be allowed to resume his privilege to practice law in the Philippines after reacquiring Philippine citizenship? •

Petition for Leave to Resume Practice of Law, Benjamin Dacanay

 HELD: •

General Rule – A lawyer who has lost his Filipino citizenship can no longer practice law in the Philippines

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Exception- When a Filipino citizenship is lost by reason of naturalization as a citizen of another country but subsequently reacquired pursuant to R.A. 9225.

 No automatic right to resume law practice accrues. One must first secure from the SC the authority to do so, conditioned on: •

The updating and payment in full of the annual membership dues in the IBP.

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The payment of professional tax

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The completion of at least 36 credit hours of mandatory continuing legal education.

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The retaking of the lawyer’s oath

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GOOD MORAL CHARACTER VS. REHABILITATION

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GOOD MORAL CHARACTER

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Good Moral Character is defined as a pattern of behaviour that is consistent with the community’s current ethical standards and that shows an absence o deceit or moral reprehensible conduct. (Black’s Dictionary)

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Although the term “good moral character” admits of broad dimensions, it has been defined as “including at least common honesty” (Rayong vs. Oblena, Adm. Case No. 376, April 30, 1963, 7 SCRA 859; In Re Del Rosario, 52 Phil. 399 [1928]. It has also been held that no moral qualification for bar membership is more important than truthfulness or candor (Fellner vs. Bar Association of Baltimore City, 131 A 2d. 729).- [The Legal Profession—A Matter of Privilege, 330 SCRA 22()]

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REHABILITATION

 (Crim Law) The process of seeking to improve a criminal’s character and outlook so that he or she can function in society without committing other crime.  (Evidence) The restoration of a witness’ credibility after the witness has been impeached.  Applying the above-mentioned definition of rehabilitation in Legal Ethics, Rehabilitation is also a process of restoring the disbarred lawyer’s moral character for him to be once again qualified as a member of the Bar. As

discussed in “Maintaining Integrity in the Professional and Private Life of a Lawyer, 586 SCRA 384(2009)” •

REHABILITATION

 Full Rehabilitation Must be Shown by Disbarred lawyer  The lawyer who was disbarred or suspended in the practice of law be reinstated, he must show to the satisfaction of the Court that he has been reinstated.  Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. Petitioner’s subsequent track record in public service affords the Court some hope that if he were to reacquire membership in the Philippine bar, his achievements as a lawyer would redound to the general good and more than mitigate the stain on his record. Compassion to the petitioner is warranted. Nonetheless, we wish to impart to him the following stern warning: “Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all men in the world, to repudiate and override the laws, to trample them underfoot and to ignore the very bands of society, argues recreancy to his position and office and sets a pernicious example to the insubordinate and dangerous elements of the body politic.” •

REHABILITATION

 Whether the applicant shall be reinstated in the Roll of Attorneys rests to a great extent on the sound discretion of the Court. The action will depend on whether or not the Court decides that the public interest in the orderly and impartial administration of justice will continue to be preserved even with the applicant’s reentry as a counselor at law. The applicant must, like a candidate for admission to the bar, satisfy the Court that he is a person of good moral character, a fit and proper person to practice law. The Court will take into consideration the applicant’s character and standing prior to the disbarment, the nature and character of the charge/s for which he was disbarred, his conduct subsequent to the disbarment, and the time that has elapsed between the disbarment and the application for reinstatement. (Bernardo vs. Mejia, 531 SCRA 639 [2007]) •

Conclusion

 Judicial Clemency and Reinstatement are not deemed filed together in a petition in all cases. It can be observed on the cases cited, that when a lawyer/judge has been suspended or disbarred, he prays for both.

 Meanwhile, in cases wherein a judge or lawyer was merely reprimanded and punished but not suspended or disbarred, these individuals only seek judicial clemency. The reasons for the petition vary, from eligibility for a higher position, commutation of period of suspension or to be able to hold public office again.