FIRST DIVISION
[G.R. No. 120468. August 15, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LOPE LIWANAG y
BUENAVENTURA, SANDY SIMBULAN y GARCIA and RAMIL
VENDIBIL y CASTRO, accused.
LOPE LIWANAG y BUENAVENTURA, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:
Accused-appellant Lope Liwanag y Buenaventura, and his co-accused Randy
Simbulan and Ramil Vendibil, were charged with the crime of highway robbery
with multiple rape in an Information[1]which reads, thus:
That on or about the 27th day of April, 1992, in the Municipality of Paraaque,
Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, armed with an icepick, conspiring and confederating
together and mutually helping and aiding one another, with intent to gain and by
means of force, violence and intimidation, did then and there willfully, unlawfully
and feloniously, take, rob and divest from the complainant, Corazon Hernandez y
Delfin the amount of P60.00; That on the occasion thereof, the above-named
accused, conspiring and confederating together and each of them mutually helping
and aiding one another and by means of force and intimidation, did, then and there
willfully, unlawfully and feloniously one at a time have carnal knowledge of the
said complainant, inside the Levitown Subdivision, Paraaque, Metro Manila,
against her will and consent;
That accused Randy Simbulan y Garcia, who is allegedly 14 years old, has acted
with discernment in the commission of the offense; and
That the aggravating circumstance of that means employed or circumstance
brought about which add ignominy to the natural effect of the act where one of the
accused, by means of force and intimidation, caused the victim to suck his penis
made the effect of the crime more humiliating to the victim, attended the
commission of the offense.
CONTRARY TO LAW.
During the arraignment, all of them pleaded not guilty to the charge. Accused
Randy Simbulan and Ramil Vendibil were earlier released on recognizance, and
were later ordered rearrested for their failure to appear at the scheduled
hearings. However, the warrants for their arrest were not implemented. Trial on
the merits, thus, ensued only against accused-appellant Lope Liwanag y
Buenaventura.
Complainant Corazon Hernandez was on her way home to Paraaque at around
1:00 oclock in the early morning of April 27, 1992. Upon reaching the tricycle
terminal at Doa Soledad St., Better Living Subdivision, Paraaque, Metro Manila,
she was offered by tricycle driver Ramil Vendibil a special trip, which means that
she would be brought right in front of her house. She agreed and boarded the
tricycle.While they were about to leave, Randy Simbulan and Lope Liwanag also
rode the tricycle behind the driver. When they reached India Street, Lope Liwanag
entered the sidecar and sat beside complainant. He immediately grabbed
complainants shoulder, pointed an instrument at the side of her neck, and declared
a hold-up. Surprised and fearing for her life, complainant told accused-appellant
that she only had sixty pesos (P60.00) in her bag. Accused-appellant Lope
Liwanag instructed Randy Simbulan to get her bag.
While the tricycle was traversing the road leading to the municipal building of
Paraaque, accused-appellant informed complainant that since they could not get
anything from her anyway, she might as well submit herself to them. Then,
accused-appellant began kissing complainant and touching her private
parts. Randy Simbulan, meanwhile, inserted his finger into complainants vagina.
As they were entering Levitown Subdivision, accused-appellant ordered
complainant to act naturally while they passed the guardhouse. Once they got
through, accused-appellant asked her to give in to his desire, and then, he again
began touching her private parts. Complainant answered that she would rather be
killed than accede to his desire. This prompted accused-appellant to hit her with an
icepick on the abdomen.
Upon reaching a vacant lot, accused-appellant ordered Vendibil to stop the
tricycle. He then tried to strangle complainant, causing her to fall down from her
seat and lose consciousness. When she regained consciousness, she was forced to
board the tricycle. Again, they rode around the village. Accused-appellant tried to
strangle her with a bandana and ordered her to remove her underwear. When she
refused, accused-appellant himself removed her underwear, opened his pant zipper
and forced her to sit on his lap. Complainant struggled, so accused-appellant
ordered the tricycle to stop and dragged complainant out. Accused-appellant then
brought complainant to a grassy vacant lot and forced himself on her. After
satisfying his lust, they again boarded the tricycle and accused-appellant informed
complainant that his companions would follow. Complainants pleas were in
vain. After a few minutes of driving around, they came upon another vacant lot
where accused-appellant and Vendibil dragged complainant. There, Vendibil
forced complainant to put his penis into her mouth. Unsatisfied, Vendibil forced
her to lie down and succeeded in having sexual intercourse with her while
accused-appellant and Simbulan watched. Thereafter, Simbulan took his
turn. After he satisfied his lust, they talked of killing complainant.
Complainant pleaded for her life and, in desperation, she offered them money in
exchange for her life. Accused-appellant asked her if she can produce P10,000.00,
but she said she could not. Accused-appellant lowered his demand to
P5,000.00. They negotiated until they finally agreed on the sum of
P2,000.00. Accused-appellant instructed complainant to deliver the money at
Guadalupe, Makati. She was to place the amount inside a bag together with a
sandwich she was to buy at Burger Machine. They agreed to meet at 11:30 that
same morning. When they finally let go of her, complainant proceeded to a
church. At daybreak, she went home and told her mother the whole
incident. Together, they proceeded to the Fort Bonifacio police station and
reported the matter. The police, in turn, devised an entrapment operation.
At the appointed hour, complainant went to Guadalupe, Makati, bringing with her
an envelope containing pieces of plain paper. Accused-appellant arrived after 45
minutes. Complainant handed the envelope to him, then she ran away. Accused-
appellant also ran and boarded a bus, but he was collared and arrested by the
police.
Dr. Louella Nario, Medico Legal Officer of the National Bureau of Investigation
conducted an examination on the complainant and issued a medical
certificate[2] with the following findings:
Extragenital Physical Injuries:
Abrasions, linear, leg, right, upper third, anterior aspect, 4.8 cms., in length and
left, lower third, anterior aspect, 4.7 cm. in length.
Contused abrasion, epigastric region, 2.4 x 0.3 cm.
Contusions, reddish, mandibular region, right side, 1.8 x 1.5 cm. and left side, 2.0
x 1.0 cms.; neck, lateral aspect, right side, 5.5 x 0.5 cms., and 9.8 x 0.5 cms. and
2.5 x 0.5 cms. deltoid region, left side, 2.4 x 1.3 cms. purplish, deltoid region, left
side, 4.2 x 2.5 cms.
Genital Examination:
Pubic hair, fully grown, abundant. Labia majora and minora, gaping. Fourchette,
lax. Vestibular mucosa, congested, with fresh superficial abrasion at the fossa
navicularis. Hymen, thick, short, intact.Hymenal orifice, annular, admits a tube,
2.0 cms., in diameter with moderate resistance. Vagina walls, tight. Rugosities,
prominent.
Conclusion:
1. The above-described extragenital physical injuries noted on the body of the
subject at the time of examination.
2. Genital injury present.
Accused-appellant denied the accusation against him. He claimed that at around
12:00 oclock midnight of April 27, 1992, he was at his house at Texas Street,
Better Living Subdivision, Paraaque, Metro Manila. His uncle, Emilio Changco,
dropped by and, together with Ponciano Buenaventura and Hermenegildo
Liwanag, they had a drinking session up to 3:00 oclock in the morning. At around
4:00 oclock in the morning, Changco left and accused-appellant went to sleep. He
woke up at 7:30 in the morning to prepare for his trip to San Miguel, Bulacan to
see his grandfather.
He alleged that while waiting for a ride in front of Jollibee at Guadalupe, Makati,
he was arrested by policemen in civilian clothes for being a rebel soldier, based on
a mark on his right fist indicating his membership in the Guardians Luzon, an
association of soldiers. He was brought to Fort Bonifacio where he allegedly met
for the first time Randy Simbulan and Ramil Vendibil. He claimed that the three of
them were beaten and subjected to electric shocks. He also claimed that policemen
forced his co-accused to point to him.
On April 17, 1995, a decision [3] was rendered by the Regional Trial Court of
Makati, Branch 138, the dispositive portion of which reads:
WHEREFORE, the Court finds accused Lope Liwanag y Buenaventura GUILTY
beyond reasonable doubt of having violated Presidential Decree No. 532, known
as the Anti-Piracy and Anti-Highway Robbery Law of 1974. Considering that on
the occasion of the highway robbery, rape was committed, a situation which calls
for the imposition of death penalty under Presidential Decree No. 532 but which
penalty was still proscribed at the time of the commission of the offense alleged in
the Information, said accused is hereby sentenced to suffer the penalty of reclusion
perpetua, the penalty next lower in degree (People v. Miranda, 235 SCRA
202). He is further ordered to indemnify the complainant Corazon Hernandez of
the amount of One Million Pesos (P1,000,000.00) representing moral damages;
P20,000.00 as litigation expenses and attorneys fees and to return the P60.00 taken
from her. Filing fees due on the award shall be a lien on the amount which may be
recovered by the complainant from the accused.
As to the two other co-accused, Randy Simbulan and Ramil Vendibil, trial of the
case shall therefore continue.
Aggrieved by the trial courts decision, accused-appellant interposed the instant
appeal assigning as errors the following:
1. The trial court erred in convicting accused-appellant notwithstanding the fact
that he was deprived of his constitutional right to effective and competent counsel,
and, consequently, other constitutional rights afforded an accused;
2. The trial court erred in convicting accused-appellant notwithstanding that there
was no sufficient evidence positively identifying him as the perpetrator of the
crime charged;
3. The trial court erred in convicting accused-appellant in spite of the
inconsistencies that tainted the evidence for the prosecution;
4. The trial court erred in convicting accused-appellant in spite of the
improbability of the manner by which the crime was allegedly committed;
5. The trial court erred in convicting accused-appellant inspite of complainants
failure to offer any resistance prior to and even during her alleged rape; and
6. The trial court erred in disregarding the defense of accused-appellant as a mere
alibi.
Accused-appellant submits that he was deprived of his constitutional right to
counsel under Article III, Section 14, (2) of the 1987 Constitution which provides,
thus:
In all criminal prosecutions, the accused shall be presumed innocent until the
contrary is proved, and shall enjoy the right to be heard by himself and counsel, x
x x. (Italics supplied)
As a consequence, accused-appellant claims that from the time he was arrested up
to the time of his conviction, he was deprived of his other constitutional rights,
particularly his right to be secure in his person against unreasonable searches and
seizures,[4] his right to preliminary investigation,[5] and his right to bail.[6]
In addition, accused-appellant claims that the assistance extended to him by his
former counsel was ineffective to the extent that private complainant, as well as
prosecution witnesses SPO1 Armando P. Sevilla and Editha Hernandez, were
hardly cross-examined, while Dra. Louella Nario was not cross-examined at all.
In any case, accused-appellant claims that he could not have committed the crime
being imputed to him as he was engaged in a drinking session at the very moment
when the alleged crime was committed.
Accused-appellant maintains that the trial court erred in convicting him because:
1) the prosecution failed to provide sufficient evidence positively identifying him
as the perpetrator of the crime; 2) inconsistencies tainted the prosecution evidence;
3) the manner by which the crime was committed was improbable; and, 4)
complainant failed to offer any resistance prior to and even during her alleged
rape.
This appeal revolves primarily on the issue of whether accused-appellant was
denied his constitutionally guaranteed right to be heard by himself and
counsel. He argues that his right to be heard through his counsel means that he
should be effectively assisted by counsel throughout the proceedings, from the
time he was arrested up to the time judgment is rendered.
The records show that at the start of the proceedings before the trial court,
accused-appellant was represented by counsel de officio, Atty. William T. Uy of
the Public Attorneys Office. In the middle of the trial, accused-appellant retained
the services of counsel de parte Atty. Bienvenido R. Brioso, replacing Atty.
Uy. After the trial court rendered the judgment of conviction, Atty. Brioso filed the
Notice of Appeal on behalf of accused-appellant. Atty. Brioso, however, failed to
file the appellants brief because of the refusal of accused-appellants mother to
transmit the entire records of the case to him. Thus, accused-appellant was
required to manifest whether he still desired to be represented by Atty. Brioso in
this appeal. Upon accused-appellants failure to reply, Atty. Francis Ed. Lim was
appointed counsel de officio.
There is no dispute that accused-appellant was provided with a counsel de
officio who assisted him during the arraignment and conducted the cross
examination of all prosecution witnesses as well as his direct
examination. Thereafter, from the time he was cross-examined up to the
presentation of other defense witnesses, he was assisted by a counsel of his choice.
Accused-appellants citation of People v. Holgado[7] and Powell v. Alabama,
[8]
insofar as the right to be heard by counsel is concerned, is misleading. Both
cases only defined the right to be heard by counsel as the right to be assisted by
counsel. It cannot be inferred from these cases that the right to be heard by counsel
presupposes the right to an intelligent counsel. The requirement is not for counsel
to be intelligent, but to be effective.
Jurisprudence defined the meaning of effective counsel only in the light of Article
III, Section 12 (1) of the Constitution, which refers to the right of persons under
custodial investigation. In People v. Lucero,[9] the rationale for this constitutional
right was elucidated by this Court, to wit:
The 1987 Constitution requires that a person under investigation for the
commission of a crime should be provided with counsel. We have
constitutionalized the right to counsel because of our hostility against the use of
duress and other undue influence in extracting confessions from a suspect. Force
and fraud tarnish confessions and render them inadmissible. In providing for said
right, this Court has held in the same case that when the Constitution requires the
right to counsel, it did not mean any kind of counsel but effective and vigilant
counsel. The requirements of effectiveness and vigilance of counsel during that
stage before arraignment were for the purposes of guarding against the use of
duress and other undue influence in extracting confessions which may taint them
and render them inadmissible. (Italics supplied)
On the other hand, Article III, Section 14 (2) of the 1987 Constitution requires that
the accused shall enjoy the right to be heard by himself and counsel. The reason
for the latter provision was explained inPeople v. Holgado, thus:
One of the great principles of justice guaranteed by our Constitution is that no
person shall be held to answer for a criminal offense without due process of law,
and that all accused shall enjoy the right to be heard by himself and counsel. In
criminal cases there can be no fair hearing unless the accused be given an
opportunity to be heard by counsel. The right to be heard would be of little avail if
it does not include the right to be heard by counsel. Even the most intelligent or
educated may have no skill in the science of the law, particularly in the rules of
procedure, and, without counsel, he may be convicted not because he is guilty but
because he does not know how to establish his innocence. And this can happen
more easily to persons who are ignorant or uneducated. It is for this reason that
the right to be assisted by counsel is deemed so important that it has become a
constitutional right and it is so implemented that under our rules of procedure it is
not enough for the Court to apprise an accused of his right to have an attorney, it is
not enough to ask him whether he desires the aid of an attorney, but it is essential
that the court should assign one de oficio for him if he so desires and he is poor or
grant him a reasonable time to procure an attorney of his own.[10] (Italics supplied)
In essence, the right to be heard by counsel simply refers to the right to be assisted
by counsel for the purpose of ensuring that an accused is not denied the collateral
right to due process, a fundamental right which cannot be waived by an
accused. The underlying basis for due process is the concept of fairness, without
which there can be no justice. In other words, there can be no due process
accorded an accused if he is not given the right to be heard through counsel or
assisted by counsel. It follows that in order to be heard, and therefore be accorded
due process, the assistance given by counsel must be effective as implied in the
rationale of Article III, Section 14 (2). In this sense, this Court subscribes to
American jurisprudence when it held that [t]he right of an accused to counsel is
beyond question a fundamental right. Without counsel, the right to a fair trial itself
would be of little consequence, for it is through counsel that the accused secures
his other rights. In other words, the right to counsel is the right to effective
assistance of counsel.[11]
In the light of the above ratiocination, accused-appellant contends that the right to
be heard by counsel is the right to effective assistance of
counsel. Citing Strickland v. Washington,[12] accused-appellant contends that the
assistance rendered by counsel is ineffective or is defective if the following
elements are present: (1) that counsels performance was deficient, which requires
a showing that counsel was not functioning as the counsel guaranteed the
defendant by the Sixth Amendment; and (2) that the deficient performance
prejudiced the defense, which requires a showing that counsels errors were so
serious as to deprive the defendant of a fair trial, a trial which result is
reliable. Accused-appellant claims that the assistance afforded him by his counsel
during the course of the trial was ineffective since the counsel de officio failed to
safeguard his rights necessary for the reversal of his conviction.
One of the rights which accused-appellant contends his counsel de officio failed to
safeguard was his right to be secure in his person against unreasonable searches
and seizures as enshrined in the Bill of Rights. He claims that his right was
violated when he was arrested without a warrant which his counsel should have
contested.
Accused-appellants argument is not well-taken. As reiterated in People v. Costelo:
[13]
[A]ppellants failure to quash the information, his participation in the trial and
presenting evidence in his behalf, placed him in estoppel to make such
challenge. He has patently waived any objection or irregularities and is deemed as
having submitted himself to the jurisdiction of the court. It should be noted that
the legality of arrest affects only the jurisdiction of the court over the person of
the accused.Consequently, if objection on such ground is waived, the illegality of
the arrest is not sufficient reason for setting aside an otherwise valid judgment
rendered after the trial, free from error. The technicality cannot render the
subsequent proceedings void and deprive the State of its right to convict the guilty
when the facts on the record point to the culpability of the accused. (Italics
supplied)
Any objection involving a warrant of arrest must be made before he enters his
plea, otherwise the objection is deemed waived.[14]
Accused-appellant, likewise, claims that he was deprived of his right to a
preliminary investigation. Had his counsel de oficio been effective, he should have
filed the proper motion on his behalf.
There is no merit in this contention.
Considering that accused-appellant submitted himself to the jurisdiction of the
trial court, he is deemed to have waived his right to preliminary investigation.
As aptly stated in People v. Buluran:[15]
The failure to accord appellants their right to preliminary investigation did not
impair the validity of the information nor affect the jurisdiction of the trial
court. While the right to preliminary investigation is a substantive right and not a
mere formal or technical right of the accused, nevertheless, the right to
preliminary investigation is deemed waived when the accused fails to invoke it
before or at the time of entering a plea at arraignment. It appearing that appellants
only raised the issue of lack of preliminary investigation during appeal, their right
to a preliminary investigation was deemed waived when they entered their
respective pleas of not guilty.[16]
Accused-appellant next contends that he was deprived of his right to bail. He
contends that had his counsel de officio been effective, he would have filed the
proper motion.
The contention is without any merit. As ruled by this Court in People v. Manes:[17]
The issue of bail has been rendered academic by the conviction of the
accused. When an accused is charged with a capital offense, or an offense
punishable by reclusion perpetua, or life imprisonment or death, and evidence of
guilt is strong, bail must be denied, as it is neither a matter of right nor of
discretion.
In the case of Strickland,[18] the United States Supreme Court:
Judicial scrutiny of counsels performance must be highly deferential. It is all too
tempting for a defendant to secondguess counsels assistance after conviction or
adverse sentence, and it is all too easy for a court, examining counsels defense
after it has proved unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable. A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsels challenged conduct, and to evaluate the conduct
from counsels perspective at the time. Because of the difficulties inherent in
making the evaluation, a court must indulge a strong presumption that counsels
conduct falls within the wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy. There are countless
ways to provide effective assistance in any given case. Even the best criminal
defense attorneys would not defend a particular client in the same way.
In showing the ineffectiveness of the assistance rendered by counsel de
officio, accused-appellant points out the following:
The private complainant, whose testimony was the principal basis of the
conviction, was hardly cross-examined. The same is true with prosecution
witnesses SPO1 Armando P. Sevilla and Editha Hernandez.In fact, prosecution
witness Dra. Louella Nario was not cross-examined at all.
As a result of the insufficient cross-examination of the witnesses for the
prosecution, particularly the private complainant, the defense of the accused-
appellant failed to bring to the attention of the trial court several matters which
amplify the improbability, if not impossibility, in the complainants testimony on
how the crime was allegedly committed. Thus, the defense was not able to
highlight several crucial points, among which are: (1) the impossibility that the
alleged crime, particularly the rape, was committed in a populated area - an
inhabited and well-developed subdivision in Paraaque, with a 24-hour store
(Burger Machine) at that - without being noticed; (2) the fact that, assuming that
accused-appellant had carnal knowledge of the complainant, the latter did not
offer any form of resistance; and (3) the impossibility that after the crime charged
was allegedly committed, accused-appellant and his co-accused gentlemanly
accompanied complainant to a place of her choice (the church).
Moreover, several questions remained unanswered. For example (1) What time did
the complainant report the incident to the police?; (2) How long did the police
plan the alleged entrapment?; (3) Were there other officers involved in the
entrapment?; and (4) Why was the money and other materials used for entrapment
not presented in evidence?
Furthermore, there were also no attempts to impeach the testimony of the private
complainant on the scene of the crime through the use of contradictory evidence
as provided in the Rules. For instance, accused-appellants counsel could have
presented a resident of the subdivision where the crime was allegedly committed
to describe the area. Such witness can establish: (1) whether or not the area where
the crime was allegedly committed was indeed too dark for anyone to notice the
commission of the alleged crime; (2) whether or not the houses in the subdivision
are indeed too far apart that occurrences outside one house would not be
discernible from within; and (3) whether or not the location of the houses in the
subdivision is such that it would indeed be useless for a woman, faced with the
threat of rape to even attempt to ask for help.
We are not convinced. The assistance extended by Attorney Uy of the Public
Attorneys Office was sufficiently effective. As noted by the Office of the Solicitor
General, to wit:
The pertinent transcripts of stenographic notes would show that appellants
counsel de oficio, Atty. William Uy, cross-examined the private complainant
extensively as well as two other prosecution witnesses (SPO1 Sevilla and Edith
Hernandez). That said counsel opted not to cross-examine the prosecution expert
witness, Dr. Louella Nario, is of no moment because said witness merely
explained in court her findings and conclusions that she had arrived at after
conducting the medical examination on the private complainant [Exhibit C] (TSN,
March 30, 1993, pp. 10-12). In fact, at one point, Atty. Uy raised an objection to
the private prosecutors question on how private complainants genital injuries were
sustained for being incompetent to answer, which objection was impliedly
sustained by the trial judge (Ibid., p. 13).
In assessing the effectiveness of counsels assistance, the Strickland standard
invoked by accused-appellant is too stringent for application in Philippine judicial
setting. Strickland only seeks to ensure that the adversarial testing process is
present in a case by requiring that the assistance rendered by counsel
be effective. The presence of an adversarial testing process, in other words,
ensures that the trial is fair by according the accused due process through the
effective assistance of counsel.
While fairness is likewise the object of Article III, Section 14 (2) of the Philippine
Constitution, the assistance afforded by counsel to an accused in light of the
Philippine constitutional requirement need only be in accordance with the
pertinent provisions of the Rules of Court, the Code of Professional Responsibility
and the Canons of Professional Ethics. In Philippine judicial setting, a counsel
assisting an accused is presumed to be providing all the necessary legal defense
which are reasonable under the circumstances in accordance with said norms.
In this regard, a counsel assisting an accused is guided by the following provisions
of Section 20 of Rule 138 of the Rules of Court:
Sec. 20. Duties of attorneys. -- It is the duty of an attorney:
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(c) To counsel or maintain such actions or proceedings only as appear to him to be
just, and such defenses only as he believes to be honestly debatable under the law;
(d) To employ, for the purpose of maintaining the causes confided to him, such
means only as are consistent with truth and honor, and never seek to mislead the
judge or any judicial officer by an artifice or false statement of fact or law;
xxxxxxxxx
(h) Never to reject, for any consideration personal to himself, the cause of the
defenseless or oppressed;
(i) In the defense of a person accused of crime, by all fair and honorable means,
regardless of his personal opinion as to the guilt of the accused, to present every
defense that the law permits, to the end that no person may be deprived of life or
liberty, but by due process of law. (Italics supplied)
The following canons of the Code of Professional Responsibility, likewise,
provide:
Canon 2 -- A lawyer shall make his legal services available in an efficient and
convenient manner compatible with the independence, integrity and effectiveness
of the profession.
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Canon 12 -- A lawyer shall exert every effort and consider it his duty to assist in
the speedy and efficient administration of justice.
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Canon 17 -- A lawyer owes fidelity to the cause of his client and he shall be
mindful of the trust and confidence reposed in him.
Canon 18 -- A lawyer shall serve his client with competence and diligence.
xxxxxxxxx
Canon 19 -- A lawyer shall represent his client with zeal within the bounds of the
law.
Lastly, the Canons of Professional Ethics provide:
4. A lawyer assigned as counsel for an indigent prisoner ought not to ask to be
excused for any trivial reason and should always exert his best efforts in his
behalf.
5. It is the right of the lawyer to undertake the defense of a person accused of
crime, regardless of his personal opinion as to the guilt of the accused; otherwise,
innocent persons, victims only of suspicious circumstances, might be denied
proper defense. Having undertaken such defense, the lawyer is bound, by all fair
and honorable means, to present every defense that the law of the land permits, to
the end that no person may be deprived of life or liberty but by due process of law.
15. x x x x x x x x x
The lawyer owes entire devotion to the interest of the client, warm zeal in the
maintenance and defense of his rights and the exertion of his utmost learning and
ability, to the end that nothing be taken or be withheld from him, save by the rules
of law, legally applied. No fear of judicial disfavor or public unpopularity should
restrain him from the full discharge of his duty. In the judicial forum the client is
entitled to the benefit of any and every remedy and defense that is authorized by
the law of the land, and he may expect his lawyer to assert every such remedy or
defense. But it is steadfastly to be borne in mind that the great trust of the lawyer
is to be performed within and not without the bounds of the law. The office of
attorney does not permit, much less does it demand of him for any client, violation
of law or any manner of fraud or chicanery. He must obey his own conscience and
not that of his client.
The above-cited norms are more than adequate to guide a counsels conduct in the
performance of his duty to assist a client in an effective manner as required by
Article III, Section 14 (2). Said constitutional provision is patterned after the Sixth
Amendment of the American Constitution. As in Article III, Section 14 (2), the
Sixth Amendment refers simply to counsel, not specifying particular requirements
of effective assistance. It relies instead on the legal professions maintenance of
standards sufficient to justify the laws presumption that counsel will fulfill the role
in the adversary process that the Amendment envisions. The proper measure of
attorney performance remains simply reasonableness under prevailing
professional norms.[19]
Coupled with the presumption that counsels performance was reasonable under
the circumstances, as long as the trial was fair in that the accused was accorded
due process by means of an effective assistance of counsel, then the constitutional
requirement that an accused shall have the right to be heard by himself and
counsel is satisfied. The only instance when the quality of counsels assistance can
be questioned is when an accused is deprived of his right to due readiness to use the same by hitting complainant with it. Besides, she testified that
process. Otherwise, there is the danger that questioning counsels acts or omissions she was already weak and tired to be able to do anything against three malefactors
in the conduct of his duties as counsel for an accused may breed more unwanted who were stronger than her. It would have been foolhardy for complainant to resist
consequences than merely upholding an accuseds constitutional right or raising the the accused considering her weakened condition. The workings of a human mind
standard of the legal profession. placed under emotional stress are unpredictable and people react differently -
In the case at bar, accused-appellants right to due process has been observed and some may shout, some may faint, and some may be shocked into insensibility
the trial was conducted in a fair manner. Corollarily, this Court sees no reason to while others may openly welcome the intrusion. In any case, the law does not
doubt or overcome the presumption that counsel de officio reasonably assisted impose upon a rape victim the burden of proving resistance. Physical resistance
accused-appellant in accordance with the prevailing norms of professional conduct need not be established in rape when intimidation is exercised upon the victim and
and his sworn duties as an officer of the court. she submits herself against her will to the rapists lust because of fear for life and
Based on the findings of the trial court, accused-appellant was not at all prejudiced personal safety.[23]
by the alleged ineffectiveness of his counsel. The alleged failures by his counsel to Lastly, complainant positively pointed at accused-appellant as one of the
safeguard his rights from the time he was arrested up to the time he was sentenced perpetrators of the crime. Accused-appellant could not show any reason why
and the alleged inadequacies in the direct and cross-examinations of prosecution complainant would point him as one of the perpetrators of the crime. It is settled
witnesses were ultimately inconsequential to the eventual outcome of the case. If that where there is no evidence to show any dubious reason or improper motive
at all, the outcome was the result of the strength of the prosecution evidence rather why a prosecution witness would testify falsely against an accused or falsely
than the failures and inadequacies in the conduct of the defense as shown by the implicate him in a crime, the testimony is worthy of full faith and credit.[24]
following: The trial court ordered accused-appellant to pay complainant moral damages in
First, counsels decision to adopt the defense of denial and alibi as part of the trial the amount of P1,000,000.00. This award must be reduced to P50,000.00. The
strategy merely highlighted the strength of the prosecution evidence. While its purpose of this award is not to enrich the victim but to compensate her for injuries
adoption may have been dictated by the factual circumstances of the case as to her feelings. Moreover, moral damages for rape is fixed at P50,000.00.[25]
perceived by accused-appellant, however, denial is an inherently weak defense WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court
vis--vis the positive and categorical assertion of prosecution witnesses. In fact, the of Makati, Branch 138, finding accused-appellant Lope Liwanag guilty of
trial court found accused-appellants denial to be self-serving. violating P.D. No. 532 and sentencing him to suffer the penalty of reclusion
Like denial, accused-appellants alibi was not looked upon with favor by the trial perpetua, to indemnify complainant Corazon Hernandez P20,000.00 as litigation
court. Not only is it one of the weakest defenses due to its being capable of easy expenses and attorneys fees and to return the P60.00 is AFFIRMED with the
fabrication, it also cannot prevail over witnesses positive identification of accused- MODIFICATION that the amount of moral damages is reduced to
appellant as the perpetrator of the crime. In any event, for the defense of alibi to P50,000.00. Costs against accused-appellant.
prosper, it is not enough that the accused can prove his being at another place at SO ORDERED.
the time of its commission, it is likewise essential that he can show physical Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.
impossibility for him to be at the locus delicti.[20] The trial court found accused-
appellants and his witnesses testimonies on the formers alibi unconvincing.
In the instant case, accused-appellant claims that he was engaged in a drinking
session with some persons at their house in Texas Street, Better Living
Subdivision at about the time when the crime was committed until 3:00 oclock in
the morning. However, Better Living Subdivision is adjacent to Levitown
Subdivision, where the rape was committed. In fact, it was in Better Living
Subdivision where complainant was robbed and sexually molested prior to being
raped at Levitown Subdivision.
Second, accused-appellant also points to alleged discrepancies between some of
complainants accounts in her sworn statement and some of her declarations in her
direct testimony regarding the position of accused relative to that of complainant,
the kind of instrument used to threaten complainant and the person who got
complainants money. The apparent discrepancies, however, only refer to
immaterial or irrelevant details. Complainant was consistent in her narration in her
sworn statement as well as during her direct examination and even in the cross-
examination regarding the roles played by the three accused in the commission of
the crime.
A Sinumpaang Salaysay or a sworn statement is merely a short narrative
subscribed to by the complainant in question and answer form. Thus, it is only to
be expected that it is not as exhaustive as ones testimony in open court. The
contradictions, if any, may be explained by the fact that an affidavit can not
possibly disclose the details in their entirety, and may inaccurately describe,
without deponent detecting it, some of the occurrences narrated. Being taken ex-
parte, an affidavit is almost always incomplete and often inaccurate, sometimes
from partial suggestions, and sometimes from the want of suggestions and
inquiries. It has thus been held that affidavits are generally subordinated in
importance to open court declarations because the former are often executed when
an affiants mental faculties are not in such a state as to afford her a fair
opportunity of narrating in full the incident which has transpired. Further,
affidavits are not complete reproductions of what the declarant has in mind
because they are generally prepared by the administering officer and the affiant
simply signs them after the same have been read to her.[21]
In People v. Mangat,[22] this Court has reiterated the doctrine that discrepancies
between sworn statements and testimonies made at the witness stand do not
necessarily discredit the witness. Sworn statements/affidavits are generally
subordinated in importance to open court declarations because the former are often
executed when an affiants mental faculties are not in such a state as to afford him a
fair opportunity of narrating in full the incident which has transpired. Testimonies
given during trials are much more exact and elaborate. Thus testimonial evidence
carries more weight than statements/affidavits.
Third, accused-appellant alleges that complainant failed to offer any resistance
prior to or even during her alleged rape thereby concluding that it could have been
consensual. She did not ask for help when the alleged rape took place in a
populated area. She likewise did not try to escape when she had the opportunity to
do so.
This Court finds the above argument specious and unmeritorious. It should be FIRST DIVISION
noted that accused-appellant was brandishing an icepick which clearly showed his [A.C. No. 5299. August 19, 2003]
ATTY. ISMAEL G. KHAN, JR., Assistant Court Administrator and Chief,
Public Information Office, complainant, vs. ATTY. RIZALINO T.
SIMBILLO,respondent.
[G.R. No. 157053. August 19, 2003]
ATTY. RIZALINO T. SIMBILLO, petitioner, vs. IBP COMMISSION ON
BAR DISCIPLINE and ATTY. ISMAEL G. KHAN, JR., in his capacity as
Assistant Court Administrator and Chief, Public Information
Office, respondents.
RES OLUTIO N
YNARES-SANTIAGO, J.:
This administrative complaint arose from a paid advertisement that appeared in
the July 5, 2000 issue of the newspaper, Philippine Daily Inquirer, which reads:
ANNULMENT OF MARRIAGE Specialist 532-4333/521-2667.[1]
Ms. Ma. Theresa B. Espeleta, a staff member of the Public Information Office of
the Supreme Court, called up the published telephone number and pretended to be
an interested party.She spoke to Mrs. Simbillo, who claimed that her husband,
Atty. Rizalino Simbillo, was an expert in handling annulment cases and can
guarantee a court decree within four to six months, provided the case will not
involve separation of property or custody of children. Mrs. Simbillo also said that
her husband charges a fee of P48,000.00, half of which is payable at the time of
filing of the case and the other half after a decision thereon has been rendered.
Further research by the Office of the Court Administrator and the Public
Information Office revealed that similar advertisements were published in the
August 2 and 6, 2000 issues of theManila Bulletin and August 5, 2000 issue of
The Philippine Star.[2]
On September 1, 2000, Atty. Ismael G. Khan, Jr., in his capacity as Assistant Court
Administrator and Chief of the Public Information Office, filed an administrative
complaint against Atty. Rizalino T. Simbillo for improper advertising and
solicitation of his legal services, in violation of Rule 2.03 and Rule 3.01 of the
Code of Professional Responsibility and Rule 138, Section 27 of the Rules of
Court.[3]
In his answer, respondent admitted the acts imputed to him, but argued that
advertising and solicitation per se are not prohibited acts; that the time has come to
change our views about the prohibition on advertising and solicitation; that the
interest of the public is not served by the absolute prohibition on lawyer
advertising; that the Court can lift the ban on lawyer advertising; and that the
rationale behind the decades-old prohibition should be abandoned. Thus, he
prayed that he be exonerated from all the charges against him and that the Court
promulgate a ruling that advertisement of legal services offered by a lawyer is not
contrary to law, public policy and public order as long as it is dignified.[4]
The case was referred to the Integrated Bar of the Philippines for investigation,
report and recommendation.[5] On June 29, 2002, the IBP Commission on Bar
Discipline passed Resolution No. XV-2002-306,[6] finding respondent guilty of
violation of Rules 2.03 and 3.01 of the Code of Professional Responsibility and
Rule 138, Section 27 of the Rules of Court, and suspended him from the practice
of law for one (1) year with the warning that a repetition of similar acts would be
dealt with more severely. The IBP Resolution was noted by this Court on
November 11, 2002.[7]
In the meantime, respondent filed an Urgent Motion for Reconsideration, [8] which
was denied by the IBP in Resolution No. XV-2002-606 dated October 19, 2002[9]
Hence, the instant petition for certiorari, which was docketed as G.R. No. 157053
entitled, Atty. Rizalino T. Simbillo, Petitioner versus IBP Commission on Bar
Discipline, Atty. Ismael G. Khan, Jr., Asst. Court Administrator and Chief, Public
Information Office, Respondents. This petition was consolidated with A.C. No.
5299 per the Courts Resolution dated March 4, 2003.
In a Resolution dated March 26, 2003, the parties were required to manifest
whether or not they were willing to submit the case for resolution on the basis of
the pleadings.[10]Complainant filed his Manifestation on April 25, 2003, stating
that he is not submitting any additional pleading or evidence and is submitting the
case for its early resolution on the basis of pleadings and records
thereof. [11] Respondent, on the other hand, filed a Supplemental Memorandum on
June 20, 2003.
We agree with the IBPs Resolutions Nos. XV-2002-306 and XV-2002-606.
Rules 2.03 and 3.01 of the Code of Professional Responsibility read:
Rule 2.03. A lawyer shall not do or permit to be done any act designed primarily
to solicit legal business.
Rule 3.01. A lawyer shall not use or permit the use of any false, fraudulent,
misleading, deceptive, undignified, self-laudatory or unfair statement or claim
regarding his qualifications or legal services.
Rule 138, Section 27 of the Rules of Court states:
SEC. 27. Disbarment and suspension of attorneys by Supreme Court, grounds
therefor. A member of the bar may be disbarred or suspended from his office as
attorney by the Supreme Court for any deceit, malpractice or other gross
misconduct in such office, grossly immoral conduct or by reason of his conviction
of a crime involving moral turpitude, or for any violation of the oath which he is
required to take before the admission to practice, or for a willful disobedience
appearing as attorney for a party without authority to do so.
It has been repeatedly stressed that the practice of law is not a business. [12] It is a
profession in which duty to public service, not money, is the primary
consideration. Lawyering is not primarily meant to be a money-making venture,
and law advocacy is not a capital that necessarily yields profits. [13] The gaining of
a livelihood should be a secondary consideration. [14] The duty to public service and
to the administration of justice should be the primary consideration of lawyers,
who must subordinate their personal interests or what they owe to themselves.
[15]
The following elements distinguish the legal profession from a business:
1. A duty of public service, of which the emolument is a by-product, and in which
one may attain the highest eminence without making much money;
2. A relation as an officer of the court to the administration of justice involving
thorough sincerity, integrity and reliability;
3. A relation to clients in the highest degree of fiduciary;
4. A relation to colleagues at the bar characterized by candor, fairness, and
unwillingness to resort to current business methods of advertising and
encroachment on their practice, or dealing directly with their clients.[16]
There is no question that respondent committed the acts complained of. He
himself admits that he caused the publication of the advertisements. While he
professes repentance and begs for the Courts indulgence, his contrition rings
hollow considering the fact that he advertised his legal services again after he
pleaded for compassion and after claiming that he had no intention to violate the
rules. Eight months after filing his answer, he again advertised his legal services in
the August 14, 2001 issue of the Buy & Sell Free Ads Newspaper.[17] Ten months
later, he caused the same advertisement to be published in the October 5, 2001
issue of Buy & Sell.[18] Such acts of respondent are a deliberate and contemptuous
affront on the Courts authority.
What adds to the gravity of respondents acts is that in advertising himself as a
self-styled Annulment of Marriage Specialist, he wittingly or unwittingly erodes
and undermines not only the stability but also the sanctity of an institution still
considered sacrosanct despite the contemporary climate of permissiveness in our
society. Indeed, in assuring prospective clients that an annulment may be obtained
in four to six months from the time of the filing of the case, [19] he in fact
encourages people, who might have otherwise been disinclined and would have
refrained from dissolving their marriage bonds, to do so.
Nonetheless, the solicitation of legal business is not altogether
proscribed. However, for solicitation to be proper, it must be compatible with the
dignity of the legal profession. If it is made in a modest and decorous manner, it
would bring no injury to the lawyer and to the bar.[20] Thus, the use of simple signs
stating the name or names of the lawyers, the office and residence address and
fields of practice, as well as advertisement in legal periodicals bearing the same
brief data, are permissible. Even the use of calling cards is now acceptable.
[21]
Publication in reputable law lists, in a manner consistent with the standards of
conduct imposed by the canon, of brief biographical and informative data is
likewise allowable. As explicitly stated in Ulep v. Legal Clinic, Inc.:[22]
Such data must not be misleading and may include only a statement of the lawyers
name and the names of his professional associates; addresses, telephone numbers,
cable addresses; branches of law practiced; date and place of birth and admission
to the bar; schools attended with dates of graduation, degrees and other
educational distinctions; public or quasi-public offices; posts of honor; legal
authorships; legal teaching positions; membership and offices in bar associations
and committees thereof, in legal and scientific societies and legal fraternities; the
fact of listings in other reputable law lists; the names and addresses of references;
and, with their written consent, the names of clients regularly represented.
The law list must be a reputable law list published primarily for that purpose; it
cannot be a mere supplemental feature of a paper, magazine, trade journal or
periodical which is published principally for other purposes. For that reason, a
lawyer may not properly publish his brief biographical and informative data
in a daily paper, magazine, trade journal or society program. Nor may a
lawyer permit his name to be published in a law list the conduct, management, or
contents of which are calculated or likely to deceive or injure the public or the bar,
or to lower dignity or standing of the profession.
The use of an ordinary simple professional card is also permitted. The card may
contain only a statement of his name, the name of the law firm which he is
connected with, address, telephone number and special branch of law
practiced. The publication of a simple announcement of the opening of a law firm
or of changes in the partnership, associates, firm name or office address, being for
the convenience of the profession, is not objectionable. He may likewise have his
name listed in a telephone directory but not under a designation of special branch
of law. (emphasis and italics supplied)
WHEREFORE, in view of the foregoing, respondent RIZALINO T. SIMBILLO
is found GUILTY of violation of Rules 2.03 and 3.01 of the Code of Professional
Responsibility and Rule 138, Section 27 of the Rules of Court. He is
SUSPENDED from the practice of law for ONE (1) YEAR effective upon receipt
of this Resolution. He is likewise STERNLY WARNED that a repetition of the
same or similar offense will be dealt with more severely.
SECOND DIVISION
 FIDELA BENGCO AND TERESITA A.C. No. 6368
BENGCO,
Complainants, Promulgated:
-versus- June 13, 2012
ATTY. PABLO S. BERNARDO,
Respondent.
DECISION
REYES, J.:
This is a complaint[1] for disbarment filed by complainants Fidela G. Bengco
(Fidela) and Teresita N. Bengco (Teresita) against respondent Atty. Pablo
Bernardo (Atty. Bernardo) for deceit, malpractice, conduct unbecoming a member
of the Bar and violation of his duties and oath as a lawyer.
The acts of the respondent which gave rise to the instant complaint are as follows:
That sometime on or about the period from April 15, 1997 to July 22, 1997, Atty.
Pablo Bernardo with the help and in connivance and collusion with a certain
Andres Magat [wilfully] and illegally committed fraudulent act with intent to
defraud herein complainants Fidela G. Bengco and Teresita N. Bengco by using
false pretenses, deceitful words to the effect that he would expedite the titling of
the land belonging to the Miranda family of Tagaytay City who are the
acquaintance of complainants herein and they convinced herein complainant[s]
that if they will finance and deliver to him the amount of [P]495,000.00 as
advance money he would expedite the titling of the subject land and further by
means of other similar deceit like misrepresenting himself as lawyer of William
Gatchalian, the prospective buyer of the subject land, who is the owner of Plastic
City at Canomay Street, Valenzuela, Metro Manila and he is the one handling
William Gatchalians business transaction and that he has contracts at NAMREA,
DENR, CENRO and REGISTER OF DEEDS which representation he well knew
were false, fraudulent and were only made to induce the complainant[s] to give
and deliver the said amount ([P]495,000.00) and once in possession of said
amount, far from complying with his obligation to expedite and cause the titling of
the subject land, [wilfully], unlawfully and illegally misappropriated, misapplied
and converted the said amount to his personal use and benefit and despite demand
upon him to return the said amount, he failed and refused to do so, which acts
constitute deceit, malpractice, conduct unbecoming a member of the Bar and
Violation of Duties and Oath as a lawyer.[2]
In support of their complaint, the complainants attached thereto Resolutions dated
December 7, 1998[3] and June 22, 1999[4] of the Third Municipal Circuit Trial
Court (MCTC) of Sto. Tomas and Minalin, Sto. Tomas, Pampanga and the Office
of the Provincial Prosecutor of San Fernando, Pampanga, respectively, finding
probable cause for the filing of the criminal information [5] against both Atty.
Bernardo and Andres Magat (Magat) before the Regional Trial Court (RTC) of
San Fernando, Pampanga, Branch 48, charging them with the crime of Estafa
punishable under Article 315, par. 2(a) of the Revised Penal Code.
The respondent was required to file his Comment. [6] On September 24, 2004, the
respondent filed an undated Comment,[7] wherein he denied the allegations against
him and averred the following:
2. He had not deceived both complainants between the period from April 15, 1997
to July 22, 1997 for purposes of getting from them the amount of [P]495,000.00. It
was Andy Magat whom they contacted and who in turn sought the legal services
of the respondent. It was Andy Magat who received the said money from them.
3. There was no connivance made and entered into by Andy Magat and
respondent. The arrangement for titling of the land was made by Teresita N.
Bengco and Andy Magat with no participation of respondent.
4. The acceptance of the respondent to render his legal service is legal and allowed
in law practice.[8]
The case was referred to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.
On February 16, 2005, the IBP ordered the respondent to submit a verified
comment pursuant to Rule 139-B, Section 6 of the Rules of Court as it appeared
that the respondents undated comment filed with the Court was not verified.[9]
On March 15, 2005, respondent through counsel requested for an additional
fifteen (15) days from March 17, 2005, or until April 1, 2005, within which to
comply due to his medical confinement.[10]
Thereafter, on April 4, 2005, the respondent filed a second motion [11] for extension
praying for another 20 days, or until April 22, 2005, alleging that he was still
recovering from his illness.
On August 3, 2005, the case was set for mandatory conference. [12] The respondent
failed to appear; thus, the IBP considered the respondent in default for his failure
to appear and for not filing an answer despite extensions granted. The case was
then submitted for report and recommendation.[13]
Based on the records of the case, Investigating Commissioner Rebecca
Villanueva-Maala made the following findings:
[O]n or before the period from 15 April 1997 to 22 July 1997, respondent with the
help and in connivance and collusion with a certain Andres Magat (Magat), by
using false pretenses and deceitful words, [wilfully] and illegally committed
fraudulent acts to the effect that respondent would expedite the titling of the land
belonging to the Miranda family of Tagaytay City, who were the acquaintance of
complainants.
Respondent and Magat convinced complainants that if they finance and deliver to
them the amount of [P]495,000.00 as advance money, they would expedite the
titling of the subject land. Respondent represented himself to be the lawyer of
William Gatchalian, the owner of Plastic City located at Canomay Street,
Valenzuela, Metro Manila, who was allegedly the buyer of the subject land once it
has been titled. Respondent and Magat also represented that they have contacts at
NAMREA, DENR, CENRO and the Register of Deeds which representation they
knew to be false, fraudulent and were only made to induce complainants to give
and deliver to them the amount of [P]495,000.00. Once in possession of the said
amount, far from complying with their obligation to expedite and cause the titling
of the subject land, respondent and Magat [wilfully], unlawfully and illegally
misappropriated, misapplied and converted the said amount to their personal use
and benefit and despite demand upon them to return the said amount, they failed
and refused to do so.
In view of the deceit committed by respondent and Magat, complainants filed a
complaint for Estafa against the former before the Third Municipal Circuit Trial
Court, of Sto. Tomas and Minalin, Sto. Tomas, Pampanga. In the preliminary
investigation conducted by the said court, it finds sufficient grounds to hold
respondent and Magat for trial for the crime of Estafa defined under par. 2(a) of
Art. 315 of the Revised Penal Code, as amended. The case was transmitted to the
Office of the Provincial Prosecutor of Pampanga for appropriate action as per
Order dated 7 December 1998.
The Assistant Provincial Prosecutor of the Office of the Provincial Prosecutor of
Pampanga conducted a re-investigation of the case. During the re-investigation
thereof, Magat was willing to reimburse to complainants the amount of
[P]200,000.00 because according to him the amount of [P]295,000.00 should be
reimbursed by respondent considering that the said amount was turned over to
respondent for expenses incurred in the documentation prior to the titling of the
subject land. Both respondent and Magat requested for several extensions for time
to pay back their obligations to the complainants. However, despite extensions of
time granted to them, respondent and Magat failed to fulfil their promise to pay
back their obligation. Hence, it was resolved that the offer of compromise was
construed to be an implied admission of guilt. The Asst. Provincial Prosecutor
believes that there was no reason to disturb the findings of the investigating judge
and an Information for Estafa was filed against respondent and Magat on 8 July
1999 before the Regional Trial Court, San Fernando, Pampanga.
The failure of the lawyer to answer the complaint for disbarment despite due
notice on several occasions and appear on the scheduled hearings set, shows his
flouting resistance to lawful orders of the court and illustrates his despiciency for
his oath of office as a lawyer which deserves disciplinary sanction x x x.
From the facts and evidence presented, it could not be denied that respondent
committed a crime that import deceit and violation of his attorneys oath and the
Code of Professional Responsibility under both of which he was bound to obey
the laws of the land. The commission of unlawful acts, specially crimes involving
moral turpitude, acts of dishonesty in violation of the attorneys oath, grossly
immoral conduct and deceit are grounds for suspension or disbarment of lawyers
(Rule 138, Section 27, RRC).
The misconduct complained of took place in 1997 and complainants filed the case
only on 16 April 2004. As provided for by the Rules of Procedure of the
Commission of Bar Discipline, as amended, dated 24 March 2004, A complaint
for disbarment, suspension or discipline of attorneys prescribes in two (2) years
from the date of the professional misconduct (Section 1, Rule VIII).[14]
The Investigating Commissioner recommended that:
x x x [R]espondent ATTY. PABLO A. BERNARDO be SUSPENDED for a
period of TWO YEARS from receipt hereof from the practice of his profession as
a lawyer and as a member of the Bar. [15]
On February 1, 2007, the IBP Board of Governors issued Resolution No. XVII-
2007-065, viz:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED with modification, the Report and Recommendation of
the Investigating Commissioner of the above-entitled case, herein made part of
this Resolution as Annex A; and, finding the recommendation fully supported by
the evidence on record and the applicable laws and rules, Atty. Pablo S. Bernardo
is hereby ordered, the restitution of the amount of [P]200,000.00 within sixty
(60) days from receipt of notice with Warning that if he does not return the
amount with in sixty days from receipt of this Order then he will be meted the
penalty of Suspension from the practice of law for one (1) year.[16]
On May 16, 2007, the respondent promptly filed a Motion for
Reconsideration[17] of the aforesaid Resolution of the IBP. The respondent averred
that: (1) the IBP resolution is not in accord with the rules considering that the
complaint was filed more than two (2) years from the alleged misconduct and
therefore, must have been dismissed outright; (2) he did not commit any
misrepresentation in convincing Fidela to give him money to finance the titling of
the land; (3) he was hired as a lawyer through Magat who transacted with Teresita
as evidenced by a Memorandum of Agreement [18] signed by the latter; (4) he was
denied due process when the Investigating Commissioner considered him as in
default after having ignored the representative he sent during the hearing on
August 3, 2005; and (5) he long restituted the amount of P225,000.00 not as an
offer of compromise but based on his moral obligation as a lawyer due to Teresitas
declaration that he had to stop acting as her legal counsel sometime in the third
quarter of 1997. The respondent pointed out the admission made by Fidela in her
direct testimony before the RTC that she received the amount, as evidenced by
photocopies of receipts.
In an Order[19] dated May 17, 2007 issued by the IBP, the complainant was
required to comment within fifteen (15) days from receipt thereof.
In her Comment,[20] Fidela explained that it took them quite some time in filing the
administrative case because they took into consideration the possibility of an
amicable settlement instead of a judicial proceeding since it would stain the
respondents reputation as a lawyer; that the respondent went into hiding which
prompted them to seek the assistance of CIDG agents from Camp Olivas in order
to trace the respondents whereabouts; that the respondent was duly accorded the
opportunity to be heard; and finally, that no restitution of the P200,000.00 plus
corresponding interest has yet been made by the respondent.
On June 21, 2008, Fidela filed a Manifestation [21] stating that the RTC rendered a
decision in the criminal case for Estafa finding the accused, Atty. Bernardo and
Magat guilty of conspiracy in the commission of Estafa under Article 315 par. 2(a)
of the Revised Penal Code and both are sentenced to suffer six (6) years and one
(1) day of Prision Mayoras minimum to twelve (12) years and one (1) day
of Reclusion Temporal as maximum.[22]
In a Letter[23] dated March 23, 2009, addressed to the IBP, Fidela sought the
resolution of the present action as she was already 86 years of age. Later, an Ex-
parte Motion to Resolve the Case [24] dated September 1, 2010 was filed by the
complainants. In another Letter dated October 26, 2011, Fidela, being 88 years
old, sought for Atty. Bernardos restitution of the amount of P200,000.00 so she
can use the money to buy her medicine and other needs.
The Court adopts and agrees with the findings and conclusions of the IBP.
It is first worth mentioning that the respondents defense of prescription is
untenable. The Court has held that administrative cases against lawyers do not
prescribe. The lapse of considerable time from the commission of the offending
act to the institution of the administrative complaint will not erase the
administrative culpability of a lawyer.Otherwise, members of the bar would only
be emboldened to disregard the very oath they took as lawyers, prescinding from
the fact that as long as no private complainant would immediately come forward,
they stand a chance of being completely exonerated from whatever administrative
liability they ought to answer for.[25]
Further, consistent with his failure to file his answer after he himself pleaded for
several extensions of time to file the same, the respondent failed to appear during
the mandatory conference, as ordered by the IBP. As a lawyer, the respondent is
considered as an officer of the court who is called upon to obey and respect court
processes. Such acts of the respondent are a deliberate and contemptuous affront
on the courts authority which can not be countenanced.
It can not be overstressed that lawyers are instruments in the administration of
justice. As vanguards of our legal system, they are expected to maintain not only
legal proficiency but also a high standard of morality, honesty, integrity and fair
dealing. In so doing, the peoples faith and confidence in the judicial system is
ensured. Lawyers may be disciplined whether in their professional or in their
private capacity for any conduct that is wanting in morality, honesty, probity and
good demeanor.[26]
Rules 2.03 and 3.01 of the Code of Professional Responsibility read:
Rule 2.03. A lawyer shall not do or permit to be done any act designed primarily
to solicit legal business.
Rule 3.01. A lawyer shall not use or permit the use of any false, fraudulent,
misleading, deceptive, undignified, self-laudatory or unfair statement or claim
regarding his qualifications or legal services.
There is no question that the respondent committed the acts complained of. He
himself admitted in his answer that his legal services were hired by the
complainants through Magat regarding the purported titling of land supposedly
purchased. While he begs for the Courts indulgence, his contrition is shallow
considering the fact that he used his position as a lawyer in order to deceive the
complainants into believing that he can expedite the titling of the subject
properties. He never denied that he did not benefit from the money given by the
complainants in the amount of P495,000.00.
The practice of law is not a business. It is a profession in which duty to public
service, not money, is the primary consideration. Lawyering is not primarily meant
to be a money-making venture, and law advocacy is not a capital that necessarily
yields profits. The gaining of a livelihood should be a secondary
consideration. The duty to public service and to the administration of justice
should be the primary consideration of lawyers, who must subordinate their
personal interests or what they owe to themselves.[27]
It is likewise settled that a disbarment proceeding is separate and distinct from a
criminal action filed against a lawyer despite having involved the same set of
facts. Jurisprudence has it that a finding of guilt in the criminal case will not
necessarily result in a finding of liability in the administrative case. Conversely,
the respondents acquittal does not necessarily exculpate him administratively.[28]
In Yu v. Palaa,[29] the Court held that:
Respondent, being a member of the bar, should note that administrative cases
against lawyers belong to a class of their own. They are distinct from and they
may proceed independently of criminal cases. A criminal prosecution will not
constitute a prejudicial question even if the same facts and circumstances are
attendant in the administrative proceedings. Besides, it is not sound judicial policy
to await the final resolution of a criminal case before a complaint against a lawyer
may be acted upon; otherwise, this Court will be rendered helpless to apply the
rules on admission to, and continuing membership in, the legal profession during
the whole period that the criminal case is pending final disposition, when the
objectives of the two proceedings are vastly disparate. Disciplinary proceedings
involve no private interest and afford no redress for private grievance. They are
undertaken and prosecuted solely for the public welfare and for preserving courts
of justice from the official ministration of persons unfit to practice law. The
attorney is called to answer to the court for his conduct as an officer of the court.
[30]
(Citations omitted)
As the records reveal, the RTC eventually convicted the respondent for the crime
of Estafa for which he was meted the penalty of sentenced to suffer six (6) years
and one (1) day of Prision Mayor as minimum to twelve (12) years and one (1)
day of Reclusion Temporal as maximum. Such criminal conviction clearly
undermines the respondents moral fitness to be a member of the Bar. Rule 138,
Section 27 provides that:
SEC. 27. Disbarment and suspension of attorneys by Supreme Court, grounds
therefor. A member of the bar may be disbarred or suspended from his office as
attorney by the Supreme Court for any deceit, malpractice or other gross
misconduct in such office, grossly immoral conduct or by reason of his conviction
of a crime involving moral turpitude, or for any violation of the oath which he is
required to take before the admission to practice, or for a wilful disobedience
appearing as attorney for a party without authority to do so.
In view of the foregoing, this Court has no option but to accord him the
punishment commensurate to all his acts and to accord the complainants,
especially the 88-year old Fidela, with the justice they utmost deserve.
WHEREFORE, in view of the foregoing, respondent Atty. Pablo S. Bernardo is
found guilty of violating the Code of Professional Responsibility. Accordingly, he
isSUSPENDED from the practice of law for ONE (1) YEAR effective upon
notice hereof.
Further, the Court ORDERS Atty. Pablo S. Bernardo (1) to RETURN the
amount of P200,000.00 to Fidela Bengco and Teresita Bengco within TEN (10)
DAYS from receipt of this Decision and (2) to SUBMIT his proof of compliance
thereof to the Court, through the Office of the Bar Confidant within TEN (10)
DAYS therefrom; with aSTERN WARNING that failure to do so shall merit him
the additional penalty of suspension from the practice of law for one (1) year.
Let copies of this Decision be entered in his record as attorney and be furnished
the Integrated Bar of the Philippines and all courts in the country for their
information and guidance.
SO ORDERED.
FIRST DIVISION PEDRO L. LINSANGAN, Complainant, - v e r s u s -
ATTY. NICOMEDES TOLENTINO, Respondent.
A.C. No. 6672 Promulgated: September 4, 2009
CORONA, J.:
This is a complaint for disbarment[1] filed by Pedro Linsangan of the Linsangan
Linsangan & Linsangan Law Office against Atty. Nicomedes Tolentino for
solicitation of clients and encroachment of professional services.
Complainant alleged that respondent, with the help of paralegal Fe Marie Labiano,
convinced his clients[2] to transfer legal representation. Respondent promised them
financial assistance[3] and expeditious collection on their claims.[4] To induce them
to hire his services, he persistently called them and sent them text messages.
To support his allegations, complainant presented the sworn affidavit [5] of James
Gregorio attesting that Labiano tried to prevail upon him to sever his lawyer-client
relations with complainant and utilize respondents services instead, in exchange
for a loan of P50,000. Complainant also attached respondents calling card:[6]
Front
NICOMEDES TOLENTINO
LAW OFFFICE
CONSULTANCY & MARITIME SERVICES
W/ FINANCIAL ASSISTANCE
Fe Marie L. Labiano
Paralegal
1st MIJI Mansion, 2nd Flr. Rm. M-01 Tel: 362-7820
6th Ave., cor M.H. Del Pilar Fax: (632) 362-7821
Grace Park, Caloocan City Cel.: (0926) 2701719
Back
SERVICES OFFERED:
CONSULTATION AND ASSISTANCE
TO OVERSEAS SEAMEN
REPATRIATED DUE TO ACCIDENT,
INJURY, ILLNESS, SICKNESS, DEATH
AND INSURANCE BENEFIT CLAIMS
ABROAD.
Respondent, in his defense, denied knowing Labiano and authorizing the printing
and circulation of the said calling card.[7]
The complaint was referred to the Commission on Bar Discipline (CBD) of the
Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.[8]
Based on testimonial and documentary evidence, the CBD, in its report and
recommendation,[9] found that respondent had encroached on the professional
practice of complainant, violating Rule 8.02 [10] and other canons[11] of the Code of
Professional Responsibility (CPR). Moreover, he contravened the rule against
soliciting cases for gain, personally or through paid agents or brokers as stated in
Section 27, Rule 138[12] of the Rules of Court. Hence, the CBD recommended that
respondent be reprimanded with a stern warning that any repetition would merit a
heavier penalty.
We adopt the findings of the IBP on the unethical conduct of respondent but we
modify the recommended penalty.
The complaint before us is rooted on the alleged intrusion by respondent into
complainants professional practice in violation of Rule 8.02 of the CPR. And the
means employed by respondent in furtherance of the said misconduct themselves
constituted distinct violations of ethical rules.
Canons of the CPR are rules of conduct all lawyers must adhere to, including the
manner by which a lawyers services are to be made known. Thus, Canon 3 of the
CPR provides:
CANON 3 - A LAWYER IN MAKING KNOWN HIS LEGAL SERVICES
SHALL USE ONLY TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE
INFORMATION OR STATEMENT OF FACTS.
Time and time again, lawyers are reminded that the practice of law is a profession
and not a business; lawyers should not advertise their talents as merchants
advertise their wares.[13] To allow a lawyer to advertise his talent or skill is to
commercialize the practice of law, degrade the profession in the publics estimation
and impair its ability to efficiently render that high character of service to which
every member of the bar is called.[14]
Rule 2.03 of the CPR provides:
RULE 2.03. A LAWYER SHALL NOT DO OR PERMIT TO BE DONE ANY
ACT DESIGNED PRIMARILY TO SOLICIT LEGAL BUSINESS.
Hence, lawyers are prohibited from soliciting cases for the purpose of gain, either
personally or through paid agents or brokers. [15] Such actuation constitutes
malpractice, a ground for disbarment.[16]
Rule 2.03 should be read in connection with Rule 1.03 of the CPR which provides:
RULE 1.03. A LAWYER SHALL NOT, FOR ANY CORRUPT MOTIVE OR
INTEREST, ENCOURAGE ANY SUIT OR PROCEEDING OR DELAY ANY
MANS CAUSE.
This rule proscribes ambulance chasing (the solicitation of almost any kind of
legal business by an attorney, personally or through an agent in order to gain
employment)[17] as a measure to protect the community from barratry and
champerty.[18]
Complainant presented substantial evidence [19] (consisting of the sworn statements
of the very same persons coaxed by Labiano and referred to respondents office) to
prove that respondent indeed solicited legal business as well as profited from
referrals suits.
Although respondent initially denied knowing Labiano in his answer, he later
admitted it during the mandatory hearing.
Through Labianos actions, respondents law practice was benefited. Hapless
seamen were enticed to transfer representation on the strength of Labianos word
that respondent could produce a more favorable result.
Based on the foregoing, respondent clearly solicited employment violating Rule
2.03, and Rule 1.03 and Canon 3 of the CPR and Section 27, Rule 138 of the
Rules of Court.
With regard to respondents violation of Rule 8.02 of the CPR, settled is the rule
that a lawyer should not steal another lawyers client nor induce the latter to retain
him by a promise of better service, good result or reduced fees for his services.
[20]
Again the Court notes that respondent never denied having these seafarers in
his client list nor receiving benefits from Labianos referrals. Furthermore, he
never denied Labianos connection to his office. [21] Respondent committed an
unethical, predatory overstep into anothers legal practice. He cannot escape
liability under Rule 8.02 of the CPR.
Moreover, by engaging in a money-lending venture with his clients as borrowers,
respondent violated Rule 16.04:
Rule 16.04 A lawyer shall not borrow money from his client unless the clients
interests are fully protected by the nature of the case or by independent
advice. Neither shall a lawyer lend money to a client except, when in the interest
of justice, he has to advance necessary expenses in a legal matter he is handling
for the client.
The rule is that a lawyer shall not lend money to his client. The only exception is,
when in the interest of justice, he has to advance necessary expenses (such as
filing fees, stenographers fees for transcript of stenographic notes, cash bond or
premium for surety bond, etc.) for a matter that he is handling for the client.
The rule is intended to safeguard the lawyers independence of mind so that the
free exercise of his judgment may not be adversely affected. [22] It seeks to ensure
his undivided attention to the case he is handling as well as his entire devotion and
fidelity to the clients cause. If the lawyer lends money to the client in connection
with the clients case, the lawyer in effect acquires an interest in the subject matter
of the case or an additional stake in its outcome. [23] Either of these circumstances
may lead the lawyer to consider his own recovery rather than that of his client, or
to accept a settlement which may take care of his interest in the verdict to the
prejudice of the client in violation of his duty of undivided fidelity to the clients
cause.[24]
As previously mentioned, any act of solicitation constitutes malpractice [25] which
calls for the exercise of the Courts disciplinary powers. Violation of anti-
solicitation statutes warrants serious sanctions for initiating contact with a
prospective client for the purpose of obtaining employment. [26] Thus, in this
jurisdiction, we adhere to the rule to protect the public from the Machiavellian
machinations of unscrupulous lawyers and to uphold the nobility of the legal
profession.
Considering the myriad infractions of respondent (including violation of the
prohibition on lending money to clients), the sanction recommended by the IBP, a
mere reprimand, is a wimpy slap on the wrist. The proposed penalty is grossly
incommensurate to its findings.
A final word regarding the calling card presented in evidence by petitioner. A
lawyers best advertisement is a well-merited reputation for professional capacity
and fidelity to trust based on his character and conduct. [27] For this reason, lawyers
are only allowed to announce their services by publication in reputable law lists or
use of simple professional cards.
Professional calling cards may only contain the following details:
(a) lawyers name;
(b) name of the law firm with which he is connected;
(c) address;
(d) telephone number and
(e) special branch of law practiced.[28]
Labianos calling card contained the phrase with financial assistance. The phrase
was clearly used to entice clients (who already had representation) to change
counsels with a promise of loans to finance their legal actions. Money was
dangled to lure clients away from their original lawyers, thereby taking advantage
of their financial distress and emotional vulnerability. This crass commercialism
degraded the integrity of the bar and deserved no place in the legal profession.
However, in the absence of substantial evidence to prove his culpability, the Court
is not prepared to rule that respondent was personally and directly responsible for
the printing and distribution of Labianos calling cards.
WHEREFORE, respondent Atty. Nicomedes Tolentino for violating Rules 1.03,
2.03, 8.02 and 16.04 and Canon 3 of the Code of Professional Responsibility and
Section 27, Rule 138 of the Rules of Court is hereby SUSPENDED from the
practice of law for a period of one year effective immediately from receipt of
this resolution. He is STERNLY WARNED that a repetition of the same or
similar acts in the future shall be dealt with more severely.
SECOND DIVISION
MARTIN LAHM III and JAMES P. A.C. No. 7430
CONCEPCION,
Complainants, Promulgated:
- versus - February 15, 2012
LABOR ARBITER JOVENCIO Ll. MAYOR, JR.,
Respondent.
RESOLUTION
REYES, J.:
Before us is a verified complaint [1] filed by Martin Lahm III and James P.
Concepcion (complainants) praying for the disbarment of Labor Arbiter
Jovencio Ll. Mayor, Jr. (respondent) for alleged gross misconduct and
violation of lawyers oath.
On June 27, 2007, the respondent filed his Comment [2] to the complaint.
In a Resolution[3] dated July 18, 2007, the Court referred the case to the
Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.
The antecedent facts, as summarized in the Report and
Recommendation[4] dated September 19, 2008 of Commissioner Romualdo A.
Din, Jr. of the IBP Commission on Bar Discipline, are as follows:
On September 5, 2006 a certain David Edward Toze filed a complaint for
illegal dismissal before the Labor Arbitration Branch of the National Labor
Relations Commission against the members of the Board of Trustees of
the International School, Manila. The same was docketed as NLRC-NCR
Case No. 00-07381-06 and raffled to the sala of the respondent. Impleaded as
among the party-respondents are the complainants in the instant case.
On September 7, 2006, David Edward Toze filed a Verified Motion for the
Issuance of a Temporary Restraining Order and/or Preliminary Injunction
Against the Respondents. The said Motion was set for hearing on September
12, 2006 at 10:00 in the morning. A day after, on September 8, 2006, the
counsel for the complainants herein entered its appearance and asked for
additional time to oppose and make a comment to the Verified Motion for the
Issuance of a Temporary Restraining Order and/or Preliminary Injunction
Against the Respondents of David Edward Toze.
Thereafter, the respondent issued an Order dated September 14, 2006 that
directs the parties in the said case to maintain the status quo ante. The
complainants herein sought the reconsideration of the Order dated September
14, 200[6] x x x.
xxxx
On account of the Order dated September 14, 2006, David Edward Toze was
immediately reinstated and assumed his former position as superintendent of
the International School Manila.
The pending incidents with the above-mentioned illegal dismissal case were
not resolved, however, the scheduled hearing for the issuance of a
preliminary injunction on September 20, 2006 and September 27, 2006 was
postponed.
On January 19, 2007, the co-respondents of the complainants herein in the
said illegal dismissal case filed a motion for an early resolution of their
motion to dismiss the said case, but the respondent instead issued an Order
dated February 6, 2007 requiring the parties to appear in his Office on
February 27, 2007 at 10:00 in the morning in order to thresh out David
Edward Toze claim of moral and exemplary damages.
xxxx
The respondent on the other maintains that the Order dated September 14,
2006 was issued by him on account of [the] Verified Motion for the Issuance
of a Temporary Restraining Order and/or Preliminary Injunction Against the
Respondents that was filed by David Edward Toze, and of the Entry of
Appearance with Motion for Additional Time to File Comment that was
thereafter filed by the counsel for the herein complainants in the illegal
dismissal case pending before the respondent.
The respondent maintains that in order to prevent irreparable damage on the
person of David Edward Toze, and on account of the urgency of [the] Verified
Motion for the Issuance of a Temporary Restraining Order and/or Preliminary
Injunction Against the Respondents of David Edward Toze, and that the
counsel for respondents in the illegal dismissal case have asked for a
relatively long period of fifteen days for a resetting, he (respondent) found
merit in issuing the Order dated September 14, 2006 that requires the parties
to maintain the status quo ante.
xxx
The respondent argues that [the] instant case should be dismissed for being
premature since the aforementioned illegal dismissal case is still pending
before the Labor Arbitration Branch of the National Labor Relations
Commission, that the instant case is a subterfuge in order to compel the
respondent to inhibit himself in resolving the said illegal dismissal case
because the complainants did not assail the Order dated September 14, 2006
before the Court of Appeals under Rule 65 of the Rules of Court. [5]
Based on the foregoing, the Investigating Commissioner concluded that: (1)
the grounds cited by the respondent to justify his issuance of the status quo
ante order lacks factual basis and is speculative; (2) the respondent does not
have the authority to issue a temporary restraining order and/or a preliminary
injunction; and (3) the inordinate delay in the resolution of the motion for
reconsideration directed against the September 14, 2006 Order showed an
orchestrated effort to keep the status quo ante until the expiration of David
Edward Tozes employment contract.
Accordingly, the Investigating Commissioner recommended that:
WHEREFORE, it is respectfully recommended that the respondent be
SUSPENDED for a period of six (6) months with a warning that a repetition
of the same or similar incident will be dealt with more severe penalty.[6]
On December 11, 2008, the IBP Board of Governors issued Resolution No.
XVIII-2008-644[7] which adopted and approved the recommendation of the
Investigating Commissioner. The said resolution further pointed out that the
Board of Governors had previously recommended the respondents suspension
from the practice of law for three years in Administrative Case (A.C.) No.
7314 entitled Mary Ann T. Flores v. Atty. Jovencio Ll. Mayor, Jr..
The respondent sought to reconsider the foregoing disposition, [8] but it was
denied by the IBP Board of Governors in its Resolution No. XIX-2011-476
dated June 26, 2011.
The case is now before us for confirmation. We agree with the IBP Board of
Governors that the respondent should be sanctioned.
Section 27, Rule 138 of the Rules of Court provides that a lawyer may be
removed or suspended from the practice of law, inter alia, for gross
misconduct and violation of the lawyers oath. Thus:
Section 27. Attorneys removed or suspended by Supreme Court on what
grounds. A member of the bar may be removed or suspended from his
office as attorney by the Supreme Court for any deceit, malpractice, or
other gross misconduct in such office, grossly immoral conduct, or by
reason of his conviction of a crime involving moral turpitude, or for any
violation of the oath which he is required to take before the admission to
practice, or for a wilful disobedience of any lawful order of a superior court,
or for corruptly or wilful 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. (emphasis supplied)
A lawyer may be suspended or disbarred for any misconduct showing any
fault or deficiency in his moral character, honesty, probity or good demeanor.
[9]
Gross misconduct is any inexcusable, shameful or flagrant unlawful
conduct on the part of a person concerned with the administration of
justice; i.e., conduct prejudicial to the rights of the parties or to the right
determination of the cause. The motive behind this conduct is generally a
premeditated, obstinate or intentional purpose. [10]
Intrinsically, the instant petition wants this Court to impose disciplinary
sanction against the respondent as a member of the bar. However, the grounds
asserted by the complainants in support of the administrative charges against
the respondent are intrinsically connected with the discharge of the
respondents quasi-judicial functions.
Nonetheless, it cannot be discounted that the respondent, as a labor arbiter, is
a public officer entrusted to resolve labor controversies. It is well settled that
the Court may suspend or disbar a lawyer for any conduct on his part
showing his unfitness for the confidence and trust which characterize the
attorney and client relations, and the practice of law before the courts, or
showing such a lack of personal honesty or of good moral character as to
render him unworthy of public confidence.[11]
Thus, the fact that the charges against the respondent were based on his acts
committed in the discharge of his functions as a labor arbiter would not
hinder this Court from imposing disciplinary sanctions against him.
The Code of Professional Responsibility does not cease to apply to a lawyer
simply because he has joined the government service. In fact, by the express
provision of Canon 6 thereof, the rules governing the conduct of lawyers
shall apply to lawyers in government service in the discharge of their official
tasks. Thus, where a lawyers misconduct as a government official is of such
nature as to affect his qualification as a lawyer or to show moral delinquency,
then he may be disciplined as a member of the bar on such grounds. [12]
In Atty. Vitriolo v. Atty. Dasig,[13] we stressed that:
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.However, if said misconduct as a
government official also constitutes a violation of his oath as a lawyer,
then he may be disciplined by this Court as a member of the Bar.
In this case, the record shows that the respondent, on various occasions,
during her tenure as OIC, Legal Services, CHED, attempted to extort from
Betty C. Mangohon, Rosalie B. Dela Torre, Rocella G. Eje, and Jacqueline N.
Ng sums of money as consideration for her favorable action on their pending
applications or requests before her office. The evidence remains unrefuted,
given the respondents failure, despite the opportunities afforded her by this
Court and the IBP Commission on Bar Discipline to comment on the charges.
We find that respondents misconduct as a lawyer of the CHED is of such a
character as to affect her qualification as a member of the Bar, for as a
lawyer, she ought to have known that it was patently unethical and illegal for
her to demand sums of money as consideration for the approval of
applications and requests awaiting action by her office.
xxx
A member of the Bar who assumes public office does not shed his
professional obligations. Hence, the Code of Professional Responsibility,
promulgated on June 21, 1988, was not meant to govern the conduct of
private practitioners alone, but of all lawyers including those in
government service. This is clear from Canon 6 of said Code. Lawyers in
government are public servants who owe the utmost fidelity to the public
service. Thus, they should be more sensitive in the performance of their
professional obligations, as their conduct is subject to the ever-constant
scrutiny of the public.
For a lawyer in public office is expected not only to refrain from any act or
omission which might tend to lessen the trust and confidence of the citizenry
in government, she must also uphold the dignity of the legal profession at all
times and observe a high standard of honesty and fair dealing. Otherwise
said, a lawyer in government service is a keeper of the public faith and is
burdened with high degree of social responsibility, perhaps higher than
her brethren in private practice.[14] (emphasis supplied and citations
omitted)
In Tadlip v. Atty. Borres, Jr.,[15] we ruled that an administrative case against a
lawyer for acts committed in his capacity as provincial adjudicator of the
Department of Agrarian Reform Regional Arbitration Board may be likened
to administrative cases against judges considering that he is part of the quasi-
judicial system of our government.
This Court made a similar pronouncement in Buehs v. Bacatan[16] where the
respondent-lawyer was suspended from the practice of law for acts he
committed in his capacity as an accredited Voluntary Arbitrator of the
National Conciliation and Mediation Board.
Here, the respondent, being part of the quasi-judicial system of our
government, performs official functions that are akin to those of judges.
Accordingly, the present controversy may be approximated to administrative
cases of judges whose decisions, including the manner of rendering the same,
were made subject of administrative cases.
As a matter of public policy, not every error or mistake of a judge in the
performance of his official duties renders him liable. In the absence of fraud,
dishonesty or corruption, the acts of a judge in his official capacity do not
always constitute misconduct although the same acts may be erroneous. True,
a judge may not be disciplined for error of judgment absent proof that such
error was made with a conscious and deliberate intent to cause an injustice. [17]
While a judge may not always be held liable for ignorance of the law for
every erroneous order that he renders, it is also axiomatic that when the legal
principle involved is sufficiently basic, lack of conversance with it constitutes
gross ignorance of the law. Indeed, even though a judge may not always be
subjected to disciplinary action for every erroneous order or decision he
renders, that relative immunity is not a license to be negligent or abusive and
arbitrary in performing his adjudicatory prerogatives. [18]
When the law is sufficiently basic, a judge owes it to his office to know and
to simply apply it. Anything less would be constitutive of gross ignorance of
the law.[19]
In the case at bench, we find the respondent guilty of gross ignorance of the
law.
Acting on the motion for the issuance of a temporary restraining order and/or
writ of preliminary injunction, the respondent issued the September 14, 2006
Order requiring the parties to maintain the status quo ante until the said
motion had been resolved. It should be stressed, however, that at the time the
said motion was filed, the 2005 Rules of Procedure of the National Labor
Relations Commission (NLRC) is already in effect.
Admittedly, under the 1990 Rules of Procedure of the NLRC, the labor
arbiter has, in proper cases, the authority to issue writs of preliminary
injunction and/or restraining orders. Section 1, Rule XI of the 1990 Rules of
Procedure of the NLRC provides that:
Section 1. Injunction in Ordinary Labor Disputes. A preliminary injunction or
restraining order may be granted by the Commission through its Divisions
pursuant to the provisions of paragraph (e) of Article 218 of the Labor Code,
as amended, when it is established on the basis of the sworn allegations in the
petition that the acts complained of involving or arising from any labor
dispute before the Commission, which, if not restrained or performed
forthwith, may cause grave or irreparable damage to any party or render
ineffectual any decision in favor of such party.
If necessary, the Commission may require the petitioner to post a bond and
writ of preliminary injunction or restraining order shall become effective only
upon the approval of the bond which shall answer for any damage that may
be suffered by the party enjoined, if it is finally determined that the petitioner
is not entitled thereto.
The foregoing ancillary power may be exercised by the Labor Arbiters
only as an incident to the cases pending before them in order to preserve
the rights of the parties during the pendency of the case, but excluding
labor disputes involving strike or lockout. (emphasis supplied)
Nevertheless, under the 2005 Rules of Procedure of the NLRC, the labor
arbiters no longer has the authority to issue writs of preliminary injunction
and/or temporary restraining orders. Under Section 1, Rule X of the 2005
Rules of Procedure of the NLRC, only the NLRC, through its Divisions, may
issue writs of preliminary injunction and temporary restraining orders. Thus:
Section 1. Injunction in Ordinary Labor Disputes. - A preliminary
injunction or restraining order may be granted by the Commission
through its Divisions pursuant to the provisions of paragraph (e) of Article
218 of the Labor Code, as amended, when it is established on the basis of the
sworn allegations in the petition that the acts complained of involving or
arising from any labor dispute before the Commission, which, if not
restrained or performed forthwith, may cause grave or irreparable damage to
any party or render ineffectual any decision in favor of such party. (emphasis
supplied)
The role of the labor arbiters, with regard to the issuance of writs of
preliminary injunctions and/or writ of preliminary injunction, at present, is
limited to reception of evidence as may be delegated by the NLRC. Thus,
Section 4, Rule X of the 2005 Rules of Procedure of the NLRC provides that:
Section 4. Reception of Evidence; Delegation. - The reception of evidence
for the application of a writ of injunction may be delegated by the
Commission to any of its Labor Arbiters who shall conduct such hearings
in such places as he may determine to be accessible to the parties and their
witnesses, and shall thereafter submit his report and recommendation to the
Commission within fifteen (15) days from such delegation. (emphasis
supplied)
The foregoing rule is clear and leaves no room for interpretation. However,
the respondent, in violation of the said rule, vehemently insist that he has the
authority to issue writs of preliminary injunction and/or temporary restraining
order. On this point, the Investigating Commissioner aptly ruled that:
The respondent should, in the first place, not entertained Edward Tozes
Verified Motion for the Issuance of a Temporary Restraining Order and/or
Preliminary Injunction Against the Respondents. He should have denied it
outright on the basis of Section 1, Rule X of the 2005 Revised Rules of
Procedure of the National Labor Relations Commission.
xxxx
The respondent, being a Labor Arbiter of the Arbitration Branch of the
National Labor Relations Commission, should have been familiar with
Sections 1 and 4 of the 2005 Revised Rules of procedure of the National
Labor Relations Commission. The first, states that it is the Commission of the
[NLRC] that may grant a preliminary injunction or restraining order. While
the second, states [that] Labor Arbiters [may] conduct hearings on the
application of preliminary injunction or restraining order only in a delegated
capacity.[20]
What made matters worse is the unnecessary delay on the part of the
respondent in resolving the motion for reconsideration of the September 14,
2006 Order. The unfounded insistence of the respondent on his supposed
authority to issue writs of preliminary injunction and/or temporary restraining
order, taken together with the delay in the resolution of the said motion for
reconsideration, would clearly show that the respondent deliberately intended
to cause prejudice to the complainants.
On this score, the Investigating Commissioner keenly observed that:
The Commission is very much disturbed with the effect of the Order dated
September 14, 2006 and the delay in the resolution of the pending incidents
in the illegal dismissal case before the respondent.
 Conspicuously, Section 3 (Term of Contract) of the Employment Contract It cannot be gainsaid that since public office is a public trust, the ethical
between David Edward Toze and International School Manila provides that conduct demanded upon lawyers in the government service is more exacting
David Edward Toze will render work as a superintendent for the school years than the standards for those in private practice. Lawyers in the government
August 2005-July 2006 and August 2006-July 2007. service are subject to constant public scrutiny under norms of public
The Order dated September 14, 2006 in effect reinstates David Edward Toze accountability. They also bear the heavy burden of having to put aside their
as superintendent of International School of Manila until the resolution of the private interest in favor of the interest of the public; their private activities
formers Verified Motion for the Issuance of a Temporary Restraining Order should not interfere with the discharge of their official functions. [26]
and/or Preliminary Injunction Against the Respondents. At this point, the respondent should be reminded of our exhortation
Since the Employment Contract between David Edward Toze and in Republic of the Philippines v. Judge Caguioa,[27] thus:
International School Manila is about to expire or end on August 2007, Ignorance of the law is the mainspring of injustice. Judges are called upon to
prudence dictates that the respondent expediently resolved [sic] the merits of exhibit more than just a cursory acquaintance with statutes and procedural
David Edward Tozes Verified Motion for the Issuance of a Temporary rules. Basic rules should be at the palm of their hands. Their inexcusable
Restraining Order and/or Preliminary Injunction Against the Respondents failure to observe basic laws and rules will render them administratively
because any delay in the resolution thereof would result to undue benefit in liable. Where the law involved is simple and elementary, lack of conversance
favor of David Edward Toze and unwarranted prejudice to International with it constitutes gross ignorance of the law. Verily, for transgressing the
School Manila. elementary jurisdictional limits of his court, respondent should be
xxxx administratively liable for gross ignorance of the law.
At the time the respondent inhibited himself from resolving the illegal When the inefficiency springs from a failure to consider so basic and
dismissal case before him, there are barely four (4) months left with the elemental a rule, a law or a principle in the discharge of his functions, a judge
Employment Contract between David Edward Toze and International School is either too incompetent and undeserving of the position and title he holds or
Manila. he is too vicious that the oversight or omission was deliberately done in bad
From the foregoing, there is an inordinate delay in the resolution of the faith and in grave abuse of judicial authority.[28] (citations omitted)
reconsideration of the Order dated September 14, 2006 that does not escape WHEREFORE, finding respondent Atty. Jovencio Ll. Mayor, Jr. guilty of
the attention of this Commission. There appears an orchestrated effort to gross ignorance of the law in violation of his lawyers oath and of the Code of
delay the resolution of the reconsideration of the Order dated September 14, Professional Responsibility, the Court resolved to SUSPEND respondent
2006 and keep status quo ante until expiration of David Edward Tozes from the practice of law for a period of six (6) months, with
Employment Contract with International School Manila come August 2007, a WARNING that commission of the same or similar offense in the future
thereby rendering the illegal dismissal case moot and academic. will result in the imposition of a more severe penalty.
xxxx Let copies of this Resolution be furnished the IBP, as well as the Office of the
Furthermore, the procrastination exhibited by the respondent in the Bar Confidant and the Court Administrator who shall circulate it to all courts
resolution of [the] assailed Order x x x should not be countenanced, specially, for their information and guidance and likewise be entered in the record of
under the circumstance that is attendant with the term of the Employment the respondent as attorney.
Contract between David Edward Toze and International School Manila. The SO ORDERED.
respondents lackadaisical attitude in sitting over the pending incident before
him for more than five (5) months only to thereafter inhibit himself
therefrom, shows the respondents disregard to settled rules and jurisprudence.
Failure to decide a case or resolve a motion within the reglementary period
constitutes gross inefficiency and warrants the imposition of administrative
sanction against the erring magistrate x x x. The respondent, being a Labor
Arbiter, is akin to judges, and enjoined to decide a case with dispatch. Any
delay, no matter how short, in the disposition of cases undermine the peoples
faith and confidence in the judiciary x x x. [21]
Indubitably, the respondent failed to live up to his duties as a lawyer in
consonance with the strictures of the lawyers oath and the Code of
Professional Responsibility, thereby occasioning sanction from this Court.
In stubbornly insisting that he has the authority to issue writs of preliminary
injunction and/or temporary restraining order contrary to the clear import of
the 2005 Rules of Procedure of the NLRC, the respondent violated Canon 1
of the Code of Professional Responsibility which mandates lawyers to obey
the laws of the land and promote respect for law and legal processes.
All told, we find the respondent to have committed gross ignorance of the
law, his acts as a labor arbiter in the case below being inexcusable thus
unquestionably resulting into prejudice to the rights of the parties therein.
Having established the foregoing, we now proceed to determine the
appropriate penalty to be imposed.
Under Rule 140[22] of the Rules of Court, as amended by A.M. No. 01-8-10-
SC, gross ignorance of the law is a serious charge, [23] punishable by a fine of
more thanP20,000.00, but not exceeding P40,000.00, suspension from office
without salary and other benefits for more than three but not exceeding six
months, or dismissal from the service.[24]
In Tadlip v. Atty. Borres, Jr., the respondent-lawyer and provincial
adjudicator, found guilty of gross ignorance of the law, was suspended from
the practice of law for six months. Additionally, in parallel cases, [25] a judge
found guilty of gross ignorance of the law was meted the penalty of
suspension for six months.
Here, the IBP Board of Governors recommended that the respondent be
suspended from the practice of law for six months with a warning that a
repetition of the same or similar incident would be dealt with more severe
penalty. We adopt the foregoing recommendation.
This Court notes that the IBP Board of Governors had previously
recommended the respondents suspension from the practice of law for three
years in A.C. No. 7314, entitled Mary Ann T. Flores v. Atty. Jovencio Ll.
Mayor, Jr.. This case, however, is still pending.
EN BANC
[A.C. No. 4018. March 8, 2005]
OMAR P. ALI, complainant, vs. ATTY. MOSIB A. BUBONG, respondent.
DECISION
PER CURIAM:
This is a verified petition for disbarment [1] filed against Atty. Mosib Ali Bubong
for having been found guilty of grave misconduct while holding the position of
Register of Deeds of Marawi City.
It appears that this disbarment proceeding is an off-shoot of the administrative
case earlier filed by complainant against respondent. In said case, which was
initially investigated by the Land Registration Authority (LRA), complainant
charged respondent with illegal exaction; indiscriminate issuance of Transfer
Certificate of Title (TCT) No. T-2821 in the names of Lawan Bauduli Datu, Mona
Abdullah,[2] Ambobae Bauduli Datu, Matabae Bauduli Datu, Mooamadali Bauduli
Datu, and Amenola Bauduli Datu; and manipulating the criminal complaint filed
against Hadji Serad Bauduli Datu and others for violation of the Anti-Squatting
Law. It appears from the records that the Baudali Datus are relatives of
respondent.[3]
The initial inquiry by the LRA was resolved in favor of respondent. The
investigating officer, Enrique Basa, absolved respondent of all the charges brought
against him, thus:
It is crystal clear from the foregoing that complainant not only failed to prove his
case but that he has no case at all against respondent Mosib Ali Bubong.
Wherefore, premises considered, it is respectfully recommended that the
complaint against respondent be dismissed for lack of merit and evidence.[4]
The case was then forwarded to the Department of Justice for review and in a
report dated 08 September 1992, then Secretary of Justice Franklin Drilon
exonerated respondent of the charges of illegal exaction and infidelity in the
custody of documents. He, however, found respondent guilty of grave misconduct
for his imprudent issuance of TCT No. T-2821 and manipulating the criminal case
for violation of the Anti-Squatting Law instituted against Hadji Serad Bauduli
Datu and the latters co-accused. As a result of this finding, Secretary Drilon
recommended respondents dismissal from service.
On 26 February 1993, former President Fidel V. Ramos issued Administrative
Order No. 41 adopting in toto the conclusion reached by Secretary Drilon and
ordering respondents dismissal from government service. Respondent
subsequently questioned said administrative order before this Court through a
petition for certiorari, mandamus, and prohibition[5] claiming that the Office of the
President did not have the authority and jurisdiction to remove him from office.
He also insisted that respondents[6] in that petition violated the laws on security of
tenure and that respondent Reynaldo V. Maulit, then the administrator of the LRA
committed a breach of Civil Service Rules when he abdicated his authority to
resolve the administrative complaint against him (herein respondent).
In a Resolution dated 15 September 1994, we dismissed the petition for failure on
the part of petitioner to sufficiently show that public respondent committed grave
abuse of discretion in issuing the questioned order.[7] Respondent thereafter filed a
motion for reconsideration which was denied with finality in our Resolution of 15
November 1994.
On the basis of the outcome of the administrative case, complainant is now before
us, seeking the disbarment of respondent. Complainant claims that it has become
obvious that respondent had proven himself unfit to be further entrusted with the
duties of an attorney[8] and that he poses a serious threat to the integrity of the legal
profession.[9]
In his Comment, respondent maintains that there was nothing irregular with his
issuance of TCT No. T-2821 in the name of the Bauduli Datus. According to him,
both law[10] and jurisprudence support his stance that it was his ministerial duty, as
the Register of Deeds of Marawi City, to act on applications for land registration
on the basis only of the documents presented by the applicants. In the case of the
Bauduli Datus, nothing in the documents they presented to his office warranted
suspicion, hence, he was duty-bound to issue TCT No. T-2821 in their favor.
Respondent also insists that he had nothing to do with the dismissal of criminal
complaint for violation of the Anti-Squatting Law allegedly committed by Hadji
Serad Abdullah and the latters co-defendants. Respondent explains that his
participation in said case was a result of the two subpoenas duces tecum issued by
the investigating prosecutor who required him to produce the various land titles
involved in said dispute. He further claims that the dismissal of said criminal case
by the Secretary of Justice was based solely on the evidence presented by the
parties. Complainants allegation, therefore, that he influenced the outcome of the
case is totally unjustified.
Through a resolution dated 26 June 1995,[11] this Court referred this matter to the
Integrated Bar of the Philippines (IBP) for investigation, report, and
recommendation. Acting on this resolution, the IBP commenced the investigation
of this disbarment suit. On 23 February 1996, Commissioner Victor C. Fernandez
issued the following order relative to the transfer of venue of this case. The
pertinent portion of this order provides:
ORDER
When this case was called for hearing, both complainant and respondent appeared.
The undersigned Commissioner asked them if they are willing to have the
reception of evidence vis--vis this case be done in Marawi City, Lanao del Sur
before the president of the local IBP Chapter. Both parties agreed. Accordingly,
transmit the records of this case to the Director for Bar Discipline for appropriate
action.[12]
On 30 March 1996, the IBP Board of Governors passed a resolution approving
Commissioner Fernandezs recommendation for the transfer of venue of this
administrative case and directed the Western Mindanao Region governor to
designate the local IBP chapter concerned to conduct the investigation, report, and
recommendation.[13] The IBP Resolution states:
Resolution No. XII-96-153
Adm. Case No. 4018
Omar P. Ali vs. Atty. Mosib A. Bubong
RESOLVED TO APPROVE the recommendation of Commissioner Victor C.
Fernandez for the Transfer of Venue of the above-entitled case and direct the
Western Mindanao Region Governor George C. Jabido to designate the local IBP
Chapter concerned to conduct the investigation, report and recommendation.
Pursuant to this resolution, Atty. Benjamin B. Bernardino, Director for Bar
Discipline, wrote a letter dated 23 October 1996 addressed to Governor George C.
Jabido, President of IBP Cotabato Chapter requesting the latter to receive the
evidence in this case and to submit his recommendation and recommendation as
directed by the IBP Board of Governors.[14]
In an undated Report and Recommendation, the IBP Cotabato Chapter [15] informed
the IBP Commission on Bar Discipline (CBD) that the investigating panel [16] had
sent notices to both complainant and respondent for a series of hearings but
respondent consistently ignored said notices. The IBP Cotabato Chapter concluded
its report by recommending that respondent be suspended from the practice of law
for five years.
On 01 July 1998, respondent filed a motion dated 30 June 1998 praying for the
transmittal of the records of this case to the Marawi City-Lanao del Sur Chapter of
the IBP pursuant to Resolution No. XII-96-153 as well as Commissioner
Fernandezs Order dated 23 February 1996.
Commissioner Fernandez thereafter ordered the investigating panel of IBP
Cotabato Chapter to comment on respondents motion. [17] Complying with this
directive, the panel expressed no opposition to respondents motion for the
transmittal of the records of this case to IBP Marawi City.[18] On 25 September
1998, Commissioner Fernandez ordered the referral of this case to IBP Marawi
City for the reception of respondents evidence. [19] This order of referral, however,
was set aside by the IBP Board of Governors in its Resolution No. XIII-98-268
issued on 4 December 1998. Said resolution provides:
RESOLVED to DENY the ORDER of Commissioner Victor C. Fernandez for the
transmittal of the case records of the above-entitled case to Marawi City, rather he
is directed to re-evaluate the recommendation submitted by Cotabato Chapter and
report the same to the Board of Governors.[20]
Prior to the issuance of Resolution No. XIII-98-268, respondent filed on 08
October 1998 a motion praying that the recommendation of the IBP Cotabato
Chapter be stricken from the records. [21] Respondent insists that the investigating
panel constituted by said IBP chapter did not have the authority to conduct the
investigation of this case since IBP Resolution XII-96-153 and Commissioner
Fernandezs Order of 23 February 1996 clearly vested IBP Marawi City with the
power to investigate this case. Moreover, he claims that he was never notified of
any hearing by the investigating panel of IBP Cotabato Chapter thereby depriving
him of his right to due process.
Complainant opposed[22] this motion arguing that respondent is guilty of laches.
According to complainant, the report and recommendation submitted by IBP
Cotabato Chapter expressly states that respondent was duly notified of the
hearings conducted by the investigating panel yet despite these, respondent did
nothing to defend himself. He also claims that respondent did not even bother to
submit his position paper when he was directed to do so. Further, as respondent is
a member of IBP Marawi City Chapter, complainant maintains that the presence of
bias in favor of respondent is possible. Finally, complainant contends that to refer
the matter to IBP Marawi City would only entail a duplication of the process
which had already been completed by IBP Cotabato Chapter.
In an Order dated 15 October 1999, [23] Commissioner Fernandez directed IBP
Cotabato Chapter to submit proofs that notices for the hearings conducted by the
investigating panel as well as for the submission of the position paper were duly
received by respondent. On 21 February 2000, Atty. Jabido, a member of the IBP
Cotabato Chapter investigating panel, furnished Commissioner Fernandez with a
copy of the panels order dated 4 August 1997. [24] Attached to said order was
Registry Receipt No. 3663 issued by the local post office. On the lower portion of
the registry receipt was a handwritten notation reading Atty. Mosib A. Bubong.
On 20 April 2001, Commissioner Fernandez ordered Atty. Pedro S. Castillo,
Chairman of the Commission on Bar Discipline for Mindanao, to reevaluate the
report and recommendation submitted by IBP Cotabato Chapter. This directive
had the approval of the IBP Board of Governors through its Resolution No. XIV-
2001-271 issued on 30 June 2001, to wit:
RESOLVED to APPROVE the recommendation of Director Victor C. Fernandez
for the Transfer of Venue of the above-entitled case and direct the CBD Mindanao
to conduct an investigation, re-evaluation, report and recommendation within sixty
(60) days from receipt of notice.[25]
Meanwhile, Bainar A. Ali, informed the CBD Mindanao of the death of her father,
Omar P. Ali, complainant in this case. According to her, her father passed away on
12 June 2002 and that in interest of peace and Islamic brotherhood, she was
requesting the withdrawal of this case.[26]
Subsequently, respondent filed another motion, this time, asking the IBP CBD to
direct the chairman of the Commission on Bar Discipline for Mindanao to
designate and authorize the IBP Marawi City-Lanao del Sur Chapter to conduct an
investigation of this case.[27] This motion was effectively denied by Atty. Pedro S.
Castillo in an Order dated 19 July 2002.[28] According to Atty. Castillo
After going over the voluminous records of the case, with special attention made
on the report of the IBP Cotabato City Chapter, the Complaint and the Counter-
Affidavit of respondent, the undersigned sees no need for any further
investigation, to be able to make a re-evaluation and recommendation on the
Report of the IBP Chapter of Cotabato City.
WHEREFORE, the Motion to authorize the IBP-Chpater of Marawi City,
Zamboanga del Norte is hereby denied. The undersigned will submit his Report to
the Commission on Bar Discipline, IBP National Office within ten (10) days from
date hereof.
In his Report and Recommendation, Atty. Castillo adopted in toto the findings and
conclusion of IBP Cotabato Chapter ratiocinating as follows:
The Complaint for Disbarment is primarily based on the Decision by the Office of
the President in Administrative Case No. 41 dated February 26, 1993, wherein
herein respondent was found guilty of Grave Misconduct in:
a) The imprudent issuance of T.C.T. No. T-2821; and,
b) Manipulating the criminal complaint for violation of the anti-squatting law.
And penalized with dismissal from the service, as Register of Deeds of Marawi
City. In the Comment filed by respondent in the instant Adminsitrative Case, his
defense is good faith in the issuance of T.C.T. No. T-2821 and a denial of the
charge of manipulating the criminal complaint for violation of the anti-squatting
law, which by the way, was filed against respondents relatives. Going over the
Decision of the Office of the President in Administrative Case No. 41, the
undersigned finds substantial evidence were taken into account and fully
explained, before the Decision therein was rendered. In other words, the finding of
Grave Misconduct on the part of respondent by the Office of the President was
fully supported by evidence and as such carries a very strong weight in
considering the professional misconduct of respondent in the present case.
In the light of the foregoing, the undersigned sees no reason for amending or
disturbing the Report and Recommendation of the IBP Chapter of South Cotabato.
[29]
In a resolution passed on 19 October 2002, the IBP Board of Governors adopted
and approved, with modification, the afore-quoted Report and Recommendation
of Atty. Castillo. The modification pertained solely to the period of suspension
from the practice of law which should be imposed on respondent whereas Atty.
Castillo concurred in the earlier recommendation of IBP Cotabato Chapter for a
five-year suspension, the IBP Board of Governors found a two-year suspension to
be proper.
On 17 January 2003, respondent filed a Motion for Reconsideration with the IBP
which the latter denied as by that time, the matter had already been endorsed to
this Court.[30]
The issue thus posed for this Courts resolution is whether respondent may be
disbarred for grave misconduct committed while he was in the employ of the
government. We resolve this question in the affirmative.
The Code of Professional Responsibility does not cease to apply to a lawyer
simply because he has joined the government service. In fact, by the express
provision of Canon 6 thereof, the rules governing the conduct of lawyers shall
apply to lawyers in government service in the discharge of their official tasks.
Thus, where a lawyers misconduct as a government official is of such nature as to
affect his qualification as a lawyer or to show moral delinquency, then he may be
disciplined as a member of the bar on such grounds. [31] Although the general rule
is that a lawyer who holds a government office may not be disciplined as a
member of the bar for infractions he committed as a government official, he may,
however, be disciplined as a lawyer if his misconduct constitutes a violation of his
oath a member of the legal profession.[32]
Indeed, in the case of Collantes v. Atty. Vicente C. Renomeron,[33] we ordered the
disbarment of respondent on the ground of his dismissal from government service
because of grave misconduct. Quoting the late Chief Justice Fred Ruiz Castro, we
declared
[A] person takes an oath when he is admitted to the bar which is designed to
impress upon him his responsibilities. He thereby becomes an officer of the court
on whose shoulders rests the grave responsibility of assisting the courts in the
proper, fair, speedy and efficient administration of justice. As an officer of the
court he is subject to a rigid discipline that demands that in his every exertion the
only criterion be that truth and justice triumph. This discipline is what has given
the law profession its nobility, its prestige, its exalted place. From a lawyer, to
paraphrase Justice Felix Frankfurter, are expected those qualities of truth-
speaking, a high sense of honor, full candor, intellectual honesty, and the strictest
observance of fiduciary responsibility all of which, throughout the centuries, have
been compendiously described as moral character.[34]
Similarly, in Atty. Julito D. Vitriolo, et al. v. Atty. Felina Dasig,[35] this Court found
sufficient basis to disbar respondent therein for gross misconduct perpetrated
while she was the Officer-in-Charge of Legal Services of the Commission on
Higher Education. As we had explained in that case
[A] lawyer in public office is expected not only to refrain from any act or omission
which might tend to lessen the trust and confidence of the citizenry in government,
she must also uphold the dignity of the legal profession at all times and observe a
high standard of honesty and fair dealing. Otherwise said, a lawyer in government
service is a keeper of the public faith and is burdened with high degree of social
responsibility, perhaps higher than her brethren in private practice.[36] (Emphasis
supplied)
In the case at bar, respondents grave misconduct, as established by the Office of
the President and subsequently affirmed by this Court, deals with his qualification
as a lawyer. By taking advantage of his office as the Register of Deeds of Marawi
City and employing his knowledge of the rules governing land registration for the
benefit of his relatives, respondent had clearly demonstrated his unfitness not only
to perform the functions of a civil servant but also to retain his membership in the
bar. Rule 6.02 of the Code of Professional Responsibility is explicit on this matter.
It reads:
Rule 6.02 A lawyer in the government service shall not use his public position to
promote or advance his private interests, nor allow the latter to interfere with his
public duties.
Respondents conduct manifestly undermined the peoples confidence in the public
office he used to occupy and cast doubt on the integrity of the legal profession.
The ill-conceived use of his knowledge of the intricacies of the law calls for
nothing less than the withdrawal of his privilege to practice law.
As for the letter sent by Bainar Ali, the deceased complainants daughter,
requesting for the withdrawal of this case, we cannot possibly favorably act on the
same as proceedings of this nature cannot be interrupted or terminated by reason
of desistance, settlement, compromise, restitution, withdrawal of the charges or
failure of the complainant to prosecute the same. [37] As we have previously
explained in the case of Irene Rayos-Ombac v. Atty. Orlando A. Rayos:[38]
A case of suspension or disbarment may proceed regardless of interest or lack of
interest of the complainant. What matters is whether, on the basis of the facts
borne out by the record, the charge of deceit and grossly immoral conduct has
been duly proven. This rule is premised on the nature of disciplinary proceedings.
A proceeding for suspension or disbarment is not in any sense a civil action where
the complainant is a plaintiff and the respondent lawyer is a defendant.
Disciplinary proceedings involve no private interest and afford no redress for
private grievance. They are undertaken and prosecuted solely for the public
welfare. They are undertaken for the purpose of preserving courts of justice from
the official ministration of persons unfit to practice in them. The attorney is called
to answer to the court for his conduct as an officer of the court. The complainant
or the person who called the attention of the court to the attorneys alleged
misconduct is in no sense a party, and has generally no interest in the outcome
except as all good citizens may have in the proper administrative of justice.[39]
WHEREFORE, respondent Atty. Mosib A. Bubong is hereby DISBARRED and
his name is ORDERED STRICKEN from the Roll of Attorneys. Let a copy of this
Decision be entered in the respondents record as a member of the Bar, and notice
of the same be served on the Integrated Bar of the Philippines, and on the Office
of the Court Administrator for circulation to all courts in the country.
SO ORDERED.