Republic of the Philippines Not long afterwards, or more precisely on December 15, 1995,
SUPREME COURT Alauya addressed a letter to the President of Villarosa & Co.
Manila
THIRD DIVISION
A.M. No. SDC-97-2-P February 24, 1997
SOPHIA ALAWI, complainant,
vs.
ASHARY M. ALAUYA, Clerk of Court VI, Shari'a District Court,
Marawi City, respondent.
NARVASA, C.J.:
Sophia Alawi was (and presumably still is) a sales
representative (or coordinator) of E.B. Villarosa & Partners Co.,
Ltd. of Davao City, a real estate and housing company. Ashari
M. Alauya is the incumbent executive clerk of court of the 4th
Judicial Shari'a District in Marawi City, They were classmates,
and used to be friends.
It appears that through Alawi's agency, a contract was
executed for the purchase on installments by Alauya of one of
the housing units belonging to the above mentioned firm
(hereafter, simply Villarosa & Co.); and in connection
therewith, a housing loan was also granted to Alauya by the
National Home Mortgage Finance Corporation (NHMFC).
advising of the termination of his contract with the company.
He wrote:
. . I am formally and officially withdrawing from
and notifying you of my intent to terminate the
Contract/Agreement entered into between me
and your company, as represented by your Sales
Agent/Coordinator, SOPHIA ALAWI, of your
company's branch office here in Cagayan de Oro
City, on the grounds that my consent was
vitiated by gross misrepresentation, deceit,
fraud, dishonesty and abuse of confidence by
the aforesaid sales agent which made said
contract void ab initio. Said sales agent acting in
bad faith perpetrated such illegal and
unauthorized acts which made said contract an
Onerous Contract prejudicial to my rights and
interests. He then proceeded to expound in
considerable detail and quite acerbic language
on the "grounds which could evidence the bad
faith. deceit, fraud, misrepresentation,
dishonesty and abuse of confidence by the
unscrupulous sales agent . . .;" and closed with
the plea that Villarosa & Co. "agree for the
mutual rescission of our contract, even as I
inform you that I categorically state on record
that I am terminating the contract . . . I hope I
do not have to resort to any legal action before
said onerous and manipulated contract against
my interest be annulled. I was actually fooled by
your sales agent, hence the need to annul the
controversial contract."
Alauya sent a copy of the letter to the Vice-
President of Villarosa & Co. at San Pedro, Gusa,
Cagayan de Oro City. The envelope containing it,
and which actually went through the post, bore
no stamps. Instead at the right hand corner
above the description of the addressee, the
words, "Free Postage - PD 26," had been typed.
On the same date, December 15, 1995, Alauya
also wrote to Mr. Fermin T. Arzaga, Vice-
President, Credit & Collection Group of the
National Home Mortgage Finance Corporation
(NHMFC) at Salcedo Village, Makati City,
repudiating as fraudulent and void his contract
with Villarosa & Co.; and asking for cancellation
of his housing loan in connection therewith,
which was payable from salary deductions at
the rate of P4,338.00 a month. Among other
things, he said:
. . . (T)hrough this written notice,
I am terminating, as I hereby
annul, cancel, rescind and
voided, the "manipulated
contract" entered into between
me and the E.B. Villarosa &
Partner Co., Ltd., as represented
by its sales agent/coordinator,
SOPHIA ALAWI, who maliciously
and fraudulently manipulated
said contract and unlawfully
secured and pursued the housing
loan without my authority and
against my will. Thus, the
contract itself is deemed to be
void ab initio in view of the
attending circumstances, that my
consent was vitiated by
misrepresentation, fraud, deceit,
dishonesty, and abuse of
confidence; and that there was
no meeting of the minds
between me and the swindling
sales agent who concealed the
real facts from me.
And, as in his letter to Villarosa & Co., he narrated in
some detail what he took to be the anomalous
actuations of Sophia Alawi.
Alauya wrote three other letters to Mr. Arzaga of the NHMFC,
dated February 21, 1996, April 15, 1996, and May 3, 1996, in all
of which, for the same reasons already cited, he insisted on the
cancellation of his housing loan and discontinuance of
deductions from his salary on account thereof. a He also wrote
on January 18, 1996 to Ms. Corazon M. Ordoez, Head of the
Fiscal Management & Budget Office, and to the Chief, Finance
Division, both of this Court, to stop deductions from his salary
in relation to the loan in question, again asserting the
anomalous manner by which he was allegedly duped into
entering into the contracts by "the scheming sales agent." b
The upshot was that in May, 1996, the NHMFC wrote to the
Supreme Court requesting it to stop deductions on Alauya's
UHLP loan "effective May 1996." and began negotiating with
Villarosa & Co. " for the buy-back of . . . (Alauya's) mortgage.
and . . the refund of . . (his) payments." c
On learning of Alauya's letter to Villarosa & Co. of December
15, 1995, Sophia Alawi filed with this Court a verified complaint
dated January 25, 1996 to which she appended a copy of
the letter, and of the above mentioned envelope bearing the
typewritten words, "Free Postage - PD 26." 1 In that complaint,
she accused Alauya of:
1. "Imputation of malicious and libelous charges
with no solid grounds through manifest
ignorance and evident bad faith;"
2. "Causing undue injury to, and blemishing her
honor and established reputation;"
3. "Unauthorized enjoyment of the privilege of
free postage . . .;" and
4. Usurpation of the title of "attorney," which
only regular members of the Philippine Bar may
properly use.
She deplored Alauya's references to her as "unscrupulous
swindler, forger, manipulator, etc." without "even a bit of
evidence to cloth (sic) his allegations with the essence of
truth," denouncing his imputations as irresponsible, "all
concoctions, lies, baseless and coupled with manifest
ignorance and evident bad faith," and asserting that all her
dealings with Alauya had been regular and completely
transparent. She closed with the plea that Alauya "be dismissed
from the senice, or be appropriately desciplined (sic) . . ."
The Court resolved to order Alauya to comment on the
complaint, Conformably with established usage that notices of
resolutions emanate from the corresponding Office of the Clerk
of Court, the notice of resolution in this case was signed by
Atty. Alfredo P. Marasigan, Assistant Division Clerk of Court. 2
Alauya first submitted a "Preliminary Comment" 3 in which he
questioned the authority of Atty. Marasigan to require an
explanation of him, this power pertaining, according to him,
not to "a mere Asst. Div. Clerk of Court investigating an
Executive Clerk of Court." but only to the District Judge, the
Court Administrator or the Chief Justice, and voiced the
suspicion that the Resolution was the result of a "strong link"
between Ms. Alawi and Atty. Marasigan's office. He also
averred that the complaint had no factual basis; Alawi was
envious of him for being not only "the Executive Clerk of Court
and ex-officio Provincial Sheriff and District Registrar." but also
"a scion of a Royal Family . . ." 4
In a subsequent letter to Atty. Marasigan, but this time in much
less aggressive, even obsequious tones, 5 Alauya requested the
former to give him a copy of the complaint in order that he
might comment thereon. 6 He stated that his acts as clerk of
court were done in good faith and within the confines of the
law; and that Sophia Alawi, as sales agent of Villarosa & Co.
had, by falsifying his signature, fraudulently bound him to a
housing loan contract entailing monthly deductions of
P4,333.10 from his salary.
And in his comment thereafter submitted under date of June 5,
1996, Alauya contended that it was he who had suffered
"undue injury, mental anguish, sleepless nights, wounded
feelings and untold financial suffering," considering that in six
months, a total of P26,028.60 had been deducted from his
salary. 7 He declared that there was no basis for the complaint;
in communicating with Villarosa & Co. he had merely acted in
defense of his rights. He denied any abuse of the franking
privilege, saying that he gave P20.00 plus transportation fare to
a subordinate whom he entrusted with the mailing of certain
letters; that the words: "Free Postage - PD 26," were
typewritten on the envelope by some other person, an
averment corroborated by the affidavit of Absamen C.
Domocao, Clerk IV (subscribed and sworn to before
respondent himself, and attached to the comment as Annex
J); 8 and as far as he knew, his subordinate mailed the letters
with the use of the money he had given for postage, and if
those letters were indeed mixed with the official mail of the
court, this had occurred inadvertently and because of an
honest mistake. 9
Alauya justified his use of the title, "attorney," by the assertion
that it is "lexically synonymous" with "Counsellors-at-law." a
title to which Shari'a lawyers have a rightful claim, adding that
he prefers the title of "attorney" because "counsellor" is often
mistaken for "councilor," "konsehal" or the Maranao term
"consial," connoting a local legislator beholden to the mayor.
Withal, he does not consider himself a lawyer.
He pleads for the Court's compassion, alleging that what he did
"is expected of any man unduly prejudiced and injured." 10 He
claims he was manipulated into reposing his trust in Alawi, a
classmate and friend. 11 He was induced to sign a blank
contract on Alawi's assurance that she would show the
completed document to him later for correction, but she had
since avoided him; despite "numerous letters and follow-ups"
he still does not know where the property subject of his
supposed agreement with Alawi's principal, Villarosa & Co. is
situated; 12 He says Alawi somehow got his GSIS policy from his
wife, and although she promised to return it the next day, she
did not do so until after several months. He also claims that in
connection with his contract with Villarosa & Co., Alawi forged
his signature on such pertinent documents as those regarding
the down payment, clearance, lay-out, receipt of the key of the
house, salary deduction, none of which he ever saw. 13
Averring in fine that his acts in question were done without
malice, Alauya prays for the dismissal of the complaint for lack
of merit, it consisting of "fallacious, malicious and baseless
allegations." and complainant Alawi having come to the Court
with unclean hands, her complicity in the fraudulent housing
loan being apparent and demonstrable.
It may be mentioned that in contrast to his two (2) letters to
Assistant Clerk of Court Marasigan (dated April 19, 1996 and
April 22, 1996), and his two (2) earlier letters both dated
December 15, 1996 all of which he signed as "Atty. Ashary
M. Alauya" in his Comment of June 5, 1996, he does not use
the title but refers to himself as "DATU ASHARY M. ALAUYA."
The Court referred the case to the Office of the Court
Administrator for evaluation, report and recommendation. 14
The first accusation against Alauya is that in his aforesaid
letters, he made "malicious and libelous charges (against Alawi)
with no solid grounds through manifest ignorance and evident
bad faith, resulting in "undue injury to (her) and blemishing her
honor and established reputation." In those letters, Alauya had
written inter alia that:
1) Alawi obtained his consent to the contracts in question "by
gross misrepresentation, deceit, fraud, dishonesty and abuse of
confidence;"
2) Alawi acted in bad faith and perpetrated . . . illegal and
unauthorized acts . . . prejudicial to . . (his) rights and
interests;"
3) Alawi was an "unscrupulous (and "swindling") sales agent"
who had fooled him by "deceit, fraud, misrepresentation,
dishonesty and abuse of confidence;" and
4) Alawi had maliciously and fraudulently manipulated the
contract with Villarosa & Co., and unlawfully secured and
pursued the housing loan without . . (his) authority and against
. . (his) will," and "concealed the real facts . . ."
Alauya's defense essentially is that in making these statements,
he was merely acting in defense of his rights, and doing only
what "is expected of any man unduly prejudiced and injured,"
who had suffered "mental anguish, sleepless nights, wounded
feelings and untold financial suffering, considering that in six
months, a total of P26,028.60 had been deducted from his
salary. 15
The Code of Conduct and Ethical Standards for Public Officials
and Employees (RA 6713) inter alia enunciates the State policy
of promoting a high standard of ethics and utmost
responsibility in the public service. 16 Section 4 of the Code
commands that "(p)ublic officials and employees . . at all times
respect the rights of others, and . . refrain from doing acts
contrary to law, good morals, good customs, public policy,
public order, public safety and public interest." 17More than
once has this Court emphasized that "the conduct and
behavior of every official and employee of an agency involved
in the administration of justice, from the presiding judge to the
most junior clerk, should be circumscribed with the heavy
burden of responsibility. Their conduct must at all times be
characterized by, among others, strict propriety and decorum
so as to earn and keep the respect of the public for the
judiciary." 18
Now, it does not appear to the Court consistent with good
morals, good customs or public policy, or respect for the rights
of others, to couch denunciations of acts believed however
sincerely to be deceitful, fraudulent or malicious, in
excessively intemperate, insulting or virulent language. Alauya
is evidently convinced that he has a right of action against
Sophia Alawi. The law requires that he exercise that right with
propriety, without malice or vindictiveness, or undue harm to
anyone; in a manner consistent with good morals, good
customs, public policy, public order, supra; or otherwise stated, Alauya says he does not wish to use the title, "counsellor" or
that he "act with justice, give everyone his due, and observe "counsellor-at-law, " because in his region, there are pejorative
honesty and good connotations to the term, or it is confusingly similar to that
faith." 19 Righteous indignation, or vindication of right cannot given to local legislators. The ratiocination, valid or not, is of no
justify resort to vituperative language, or downright name- moment. His disinclination to use the title of "counsellor" does
calling. As a member of the Shari'a Bar and an officer of a not warrant his use of the title of attorney.
Court, Alawi is subject to a standard of conduct more stringent
than for most other government workers. As a man of the law, Finally, respecting Alauya's alleged unauthorized use of the
he may not use language which is abusive, offensive, franking privilege, 22 the record contains no evidence
scandalous, menacing, or otherwise improper. 20 As a judicial adequately establishing the accusation.
employee, it is expected that he accord respect for the person
and the rights of others at all times, and that his every act and WHEREFORE, respondent Ashari M. Alauya is hereby
word should be characterized by prudence, restraint, courtesy, REPRIMANDED for the use of excessively intemperate, insulting
dignity. His radical deviation from these salutary norms might or virulent language, i.e., language unbecoming a judicial
perhaps be mitigated, but cannot be excused, by his strongly officer, and for usurping the title of attorney; and he is warned
held conviction that he had been grievously wronged. that any similar or other impropriety or misconduct in the
future will be dealt with more severely.
As regards Alauya's use of the title of "Attorney," this Court has
already had occasion to declare that persons who pass the SO ORDERED.
Shari'a Bar are not full-fledged members of the Philippine Bar,
hence may only practice law before Shari'a courts. 21 While one Davide, Jr., Melo, Francisco and Panganiban, Jr., JJ., concur.
who has been admitted to the Shari'a Bar, and one who has
been admitted to the Philippine Bar, may both be considered
"counsellors," in the sense that they give counsel or advice in a
professional capacity, only the latter is an "attorney." The title
of "attorney" is reserved to those who, having obtained the
necessary degree in the study of law and successfully taken the
Bar Examinations, have been admitted to the Integrated Bar of
the Philippines and remain members thereof in good standing;
and it is they only who are authorized to practice law in this
jurisdiction.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 100113 September 3, 1991
RENATO CAYETANO, petitioner,
vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION
ON APPOINTMENT, and HON. GUILLERMO CARAGUE, in his
capacity as Secretary of Budget and Management, respondents.
Renato L. Cayetano for and in his own behalf.
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for
petitioner.
PARAS, J.:p
We are faced here with a controversy of far-reaching
proportions. While ostensibly only legal issues are involved, the
Court's decision in this case would indubitably have a profound
effect on the political aspect of our national existence.
The 1987 Constitution provides in Section 1 (1), Article IX-C:
There shall be a Commission on Elections composed of a
Chairman and six Commissioners who shall be natural-born
citizens of the Philippines and, at the time of their
appointment, at least thirty-five years of age, holders of a
college degree, and must not have been candidates for any
elective position in the immediately preceding -elections.
However, a majority thereof, including the Chairman, shall be
members of the Philippine Bar who have been engaged in the
practice of law for at least ten years. (Emphasis supplied)
The aforequoted provision is patterned after Section l(l), Article
XII-C of the 1973 Constitution which similarly provides:
There shall be an independent Commission on Elections
composed of a Chairman and eight Commissioners who shall
be natural-born citizens of the Philippines and, at the time of
their appointment, at least thirty-five years of age and holders
of a college degree. However, a majority thereof, including the
Chairman, shall be members of the Philippine Bar who have
been engaged in the practice of law for at least ten years.'
(Emphasis supplied)
Regrettably, however, there seems to be no jurisprudence as
to what constitutes practice of law as a legal qualification to an
appointive office.
Black defines "practice of law" as:
The rendition of services requiring the knowledge and the
application of legal principles and technique to serve the
interest of another with his consent. It is not limited to
appearing in court, or advising and assisting in the conduct of
litigation, but embraces the preparation of pleadings, and
other papers incident to actions and special proceedings,
conveyancing, the preparation of legal instruments of all kinds,
and the giving of all legal advice to clients. It embraces all
advice to clients and all actions taken for them in matters
connected with the law. An attorney engages in the practice of
law by maintaining an office where he is held out to be-an
attorney, using a letterhead describing himself as an attorney,
counseling clients in legal matters, negotiating with opposing
counsel about pending litigation, and fixing and collecting fees
for services rendered by his associate. (Black's Law Dictionary,
3rd ed.)
The practice of law is not limited to the conduct of cases in
court. (Land Title Abstract and Trust Co. v. Dworken, 129 Ohio
St. 23, 193 N.E. 650) A person is also considered to be in the
practice of law when he:
... for valuable consideration engages in the business of
advising person, firms, associations or corporations as to their
rights under the law, or appears in a representative capacity as
an advocate in proceedings pending or prospective, before any
court, commissioner, referee, board, body, committee, or
commission constituted by law or authorized to settle
controversies and there, in such representative capacity
performs any act or acts for the purpose of obtaining or
defending the rights of their clients under the law. Otherwise
stated, one who, in a representative capacity, engages in the
business of advising clients as to their rights under the law, or
while so engaged performs any act or acts either in court or
outside of court for that purpose, is engaged in the practice of
law. (State ex. rel. Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d
895, 340 Mo. 852)
This Court in the case of Philippine Lawyers Association
v.Agrava, (105 Phil. 173,176-177) stated:
The practice of law is not limited to the conduct of cases
or litigation in court; it embraces the preparation of pleadings
and other papers incident to actions and special proceedings,
the management of such actions and proceedings on behalf of
clients before judges and courts, and in addition, conveying. In
general, all advice to clients, and all action taken for them in
matters connected with the law incorporation services,
assessment and condemnation services contemplating an
appearance before a judicial body, the foreclosure of a
mortgage, enforcement of a creditor's claim in bankruptcy and
insolvency proceedings, and conducting proceedings in
attachment, and in matters of estate and guardianship have
been held to constitute law practice, as do the preparation and
drafting of legal instruments, where the work done involves the
determination by the trained legal mind of the legal effect of
facts and conditions. (5 Am. Jr. p. 262, 263). (Emphasis
supplied)
Practice of law under modem conditions consists in no small
part of work performed outside of any court and having no
immediate relation to proceedings in court. It embraces
conveyancing, the giving of legal advice on a large variety of
subjects, and the preparation and execution of legal
instruments covering an extensive field of business and trust
relations and other affairs. Although these transactions may
have no direct connection with court proceedings, they are
always subject to become involved in litigation. They require in
many aspects a high degree of legal skill, a wide experience is a practicing attorney at law within the meaning of the
with men and affairs, and great capacity for adaptation to statute. (Barr v. Cardell, 155 NW 312)
difficult and complex situations. These customary functions of
Practice of law means any activity, in or out of court, which
an attorney or counselor at law bear an intimate relation to the
requires the application of law, legal procedure, knowledge,
administration of justice by the courts. No valid distinction, so
training and experience. "To engage in the practice of law is to
far as concerns the question set forth in the order, can be
perform those acts which are characteristics of the profession.
drawn between that part of the work of the lawyer which
Generally, to practice law is to give notice or render any kind of
involves appearance in court and that part which involves
service, which device or service requires the use in any degree
advice and drafting of instruments in his office. It is of
of legal knowledge or skill." (111 ALR 23)
importance to the welfare of the public that these manifold
customary functions be performed by persons possessed of The following records of the 1986 Constitutional Commission
adequate learning and skill, of sound moral character, and show that it has adopted a liberal interpretation of the term
acting at all times under the heavy trust obligations to clients "practice of law."
which rests upon all attorneys. (Moran, Comments on the Rules
MR. FOZ. Before we suspend the session, may I make a
of Court, Vol. 3 [1953 ed.] , p. 665-666, citing In re Opinion of
manifestation which I forgot to do during our review of the
the Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar
provisions on the Commission on Audit. May I be allowed to
Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139,144).
make a very brief statement?
(Emphasis ours)
THE PRESIDING OFFICER (Mr. Jamir).
The University of the Philippines Law Center in conducting
orientation briefing for new lawyers (1974-1975) listed the The Commissioner will please proceed.
dimensions of the practice of law in even broader terms as
MR. FOZ. This has to do with the qualifications of the members
advocacy, counselling and public service.
of the Commission on Audit. Among others, the qualifications
One may be a practicing attorney in following any line of provided for by Section I is that "They must be Members of the
employment in the profession. If what he does exacts Philippine Bar" I am quoting from the provision "who have
knowledge of the law and is of a kind usual for attorneys been engaged in the practice of law for at least ten years".
engaging in the active practice of their profession, and he
To avoid any misunderstanding which would result in excluding
follows some one or more lines of employment such as this he
members of the Bar who are now employed in the COA or
Commission on Audit, we would like to make the clarification
that this provision on qualifications regarding members of the MR. OPLE. Yes. So that the construction given to this is that this
Bar does not necessarily refer or involve actual practice of law is equivalent to the practice of law.
outside the COA We have to interpret this to mean that as long
MR. FOZ. Yes, Mr. Presiding Officer.
as the lawyers who are employed in the COA are using their
legal knowledge or legal talent in their respective work within MR. OPLE. Thank you.
COA, then they are qualified to be considered for appointment
... ( Emphasis supplied)
as members or commissioners, even chairman, of the
Commission on Audit. Section 1(1), Article IX-D of the 1987 Constitution, provides,
among others, that the Chairman and two Commissioners of
This has been discussed by the Committee on Constitutional
the Commission on Audit (COA) should either be certified
Commissions and Agencies and we deem it important to take it
public accountants with not less than ten years of auditing
up on the floor so that this interpretation may be made
practice, or members of the Philippine Bar who have been
available whenever this provision on the qualifications as
engaged in the practice of law for at least ten years. (emphasis
regards members of the Philippine Bar engaging in the practice
supplied)
of law for at least ten years is taken up.
Corollary to this is the term "private practitioner" and which is
MR. OPLE. Will Commissioner Foz yield to just one question.
in many ways synonymous with the word "lawyer." Today,
MR. FOZ. Yes, Mr. Presiding Officer. although many lawyers do not engage in private practice, it is
still a fact that the majority of lawyers are private practitioners.
MR. OPLE. Is he, in effect, saying that service in the COA by a
(Gary Munneke, Opportunities in Law Careers [VGM Career
lawyer is equivalent to the requirement of a law practice that is
Horizons: Illinois], [1986], p. 15).
set forth in the Article on the Commission on Audit?
At this point, it might be helpful to define private practice. The
MR. FOZ. We must consider the fact that the work of COA,
term, as commonly understood, means "an individual or
although it is auditing, will necessarily involve legal work; it will
organization engaged in the business of delivering legal
involve legal work. And, therefore, lawyers who are employed in
services." (Ibid.). Lawyers who practice alone are often called
COA now would have the necessary qualifications in accordance
"sole practitioners." Groups of lawyers are called "firms." The
with the Provision on qualifications under our provisions on the
firm is usually a partnership and members of the firm are the
Commission on Audit. And, therefore, the answer is yes.
partners. Some firms may be organized as professional
corporations and the members called shareholders. In either
case, the members of the firm are the experienced attorneys. counselor in this wise: "Even today, there are still uninformed
In most firms, there are younger or more inexperienced laymen whose concept of an attorney is one who principally
salaried attorneyscalled "associates." (Ibid.). tries cases before the courts. The members of the bench and
bar and the informed laymen such as businessmen, know that
The test that defines law practice by looking to traditional
in most developed societies today, substantially more legal
areas of law practice is essentially tautologous, unhelpful
work is transacted in law offices than in the courtrooms.
defining the practice of law as that which lawyers do. (Charles
General practitioners of law who do both litigation and non-
W. Wolfram, Modern Legal Ethics [West Publishing Co.:
litigation work also know that in most cases they find
Minnesota, 1986], p. 593). The practice of law is defined as the
themselves spending more time doing what [is] loosely
performance of any acts . . . in or out of court, commonly
desccribe[d] as business counseling than in trying cases. The
understood to be the practice of law. (State Bar Ass'n v.
business lawyer has been described as the planner, the
Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863,
diagnostician and the trial lawyer, the surgeon. I[t] need not
870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325,
[be] stress[ed] that in law, as in medicine, surgery should be
22 A.2d 623, 626 [1941]). Because lawyers perform almost
avoided where internal medicine can be effective." (Business
every function known in the commercial and governmental
Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).
realm, such a definition would obviously be too global to be
workable.(Wolfram, op. cit.). In the course of a working day the average general practitioner
wig engage in a number of legal tasks, each involving different
The appearance of a lawyer in litigation in behalf of a client is
legal doctrines, legal skills, legal processes, legal institutions,
at once the most publicly familiar role for lawyers as well as an
clients, and other interested parties. Even the increasing
uncommon role for the average lawyer. Most lawyers spend
numbers of lawyers in specialized practice wig usually perform
little time in courtrooms, and a large percentage spend their
at least some legal services outside their specialty. And even
entire practice without litigating a case. (Ibid., p. 593).
within a narrow specialty such as tax practice, a lawyer will
Nonetheless, many lawyers do continue to litigate and the
shift from one legal task or role such as advice-giving to an
litigating lawyer's role colors much of both the public image
importantly different one such as representing a client before
and the self perception of the legal profession. (Ibid.).
an administrative agency. (Wolfram, supra, p. 687).
In this regard thus, the dominance of litigation in the public
By no means will most of this work involve litigation, unless the
mind reflects history, not reality. (Ibid.). Why is this so? Recall
lawyer is one of the relatively rare types a litigator who
that the late Alexander SyCip, a corporate lawyer, once
specializes in this work to the exclusion of much else. Instead,
articulated on the importance of a lawyer as a business
the work will require the lawyer to have mastered the full
range of traditional lawyer skills of client counselling, advice-
giving, document drafting, and negotiation. And increasingly
lawyers find that the new skills of evaluation and mediation are
both effective for many clients and a source of employment.
(Ibid.).
Most lawyers will engage in non-litigation legal work or in
litigation work that is constrained in very important ways, at
least theoretically, so as to remove from it some of the salient
features of adversarial litigation. Of these special roles, the
most prominent is that of prosecutor. In some lawyers' work
the constraints are imposed both by the nature of the client
and by the way in which the lawyer is organized into a social
unit to perform that work. The most common of these roles
are those of corporate practice and government legal service.
(Ibid.).
In several issues of the Business Star, a business daily, herein
below quoted are emerging trends in corporate law practice, a
departure from the traditional concept of practice of law.
We are experiencing today what truly may be called a
revolutionary transformation in corporate law practice.
Lawyers and other professional groups, in particular those
members participating in various legal-policy decisional
contexts, are finding that understanding the major emerging
trends in corporation law is indispensable to intelligent
decision-making.
Constructive adjustment to major corporate problems of today
requires an accurate understanding of the nature and
implications of the corporate law research function
accompanied by an accelerating rate of information
accumulation. The recognition of the need for such improved
corporate legal policy formulation, particularly "model-making"
and "contingency planning," has impressed upon us the
inadequacy of traditional procedures in many decisional
contexts.
In a complex legal problem the mass of information to be
processed, the sorting and weighing of significant conditional
factors, the appraisal of major trends, the necessity of
estimating the consequences of given courses of action, and
the need for fast decision and response in situations of acute
danger have prompted the use of sophisticated concepts of
information flow theory, operational analysis, automatic data
processing, and electronic computing equipment.
Understandably, an improved decisional structure must stress
the predictive component of the policy-making process,
wherein a "model", of the decisional context or a segment
thereof is developed to test projected alternative courses of
action in terms of futuristic effects flowing therefrom.
Although members of the legal profession are regularly
engaged in predicting and projecting the trends of the law, the
subject of corporate finance law has received relatively little
organized and formalized attention in the philosophy of
advancing corporate legal education. Nonetheless, a cross-
disciplinary approach to legal research has become a vital
necessity.
Certainly, the general orientation for productive contributions
by those trained primarily in the law can be improved through
an early introduction to multi-variable decisional context and
the various approaches for handling such problems. Lawyers,
particularly with either a master's or doctorate degree in
business administration or management, functioning at the
legal policy level of decision-making now have some
appreciation for the concepts and analytical techniques of
other professions which are currently engaged in similar types
of complex decision-making.
Truth to tell, many situations involving corporate finance
problems would require the services of an astute attorney
because of the complex legal implications that arise from each
and every necessary step in securing and maintaining the
business issue raised. (Business Star, "Corporate Finance Law,"
Jan. 11, 1989, p. 4).
In our litigation-prone country, a corporate lawyer is
assiduously referred to as the "abogado de campanilla." He is
the "big-time" lawyer, earning big money and with a clientele
composed of the tycoons and magnates of business and
industry.
Despite the growing number of corporate lawyers, many
people could not explain what it is that a corporate lawyer
does. For one, the number of attorneys employed by a single
corporation will vary with the size and type of the corporation.
Many smaller and some large corporations farm out all their
legal problems to private law firms. Many others have in-house
counsel only for certain matters. Other corporation have a staff
large enough to handle most legal problems in-house.
A corporate lawyer, for all intents and purposes, is a lawyer
who handles the legal affairs of a corporation. His areas of
concern or jurisdiction may include, inter alia: corporate legal
research, tax laws research, acting out as corporate secretary
(in board meetings), appearances in both courts and other
adjudicatory agencies (including the Securities and Exchange
Commission), and in other capacities which require an ability to
deal with the law.
At any rate, a corporate lawyer may assume responsibilities
other than the legal affairs of the business of the corporation
he is representing. These include such matters as determining
policy and becoming involved in management. ( Emphasis
supplied.)
In a big company, for example, one may have a feeling of being
isolated from the action, or not understanding how one's work
actually fits into the work of the orgarnization. This can be
frustrating to someone who needs to see the results of his
work first hand. In short, a corporate lawyer is sometimes
offered this fortune to be more closely involved in the running
of the business.
Moreover, a corporate lawyer's services may sometimes be
engaged by a multinational corporation (MNC). Some large
MNCs provide one of the few opportunities available to
corporate lawyers to enter the international law field. After all,
international law is practiced in a relatively small number of
companies and law firms. Because working in a foreign country
is perceived by many as glamorous, tills is an area coveted by
corporate lawyers. In most cases, however, the overseas jobs
go to experienced attorneys while the younger attorneys do
their "international practice" in law libraries. (Business Star,
"Corporate Law Practice," May 25,1990, p. 4).
This brings us to the inevitable, i.e., the role of the lawyer in
the realm of finance. To borrow the lines of Harvard-educated
lawyer Bruce Wassertein, to wit: "A bad lawyer is one who fails
to spot problems, a good lawyer is one who perceives the
difficulties, and the excellent lawyer is one who surmounts
them." (Business Star, "Corporate Finance Law," Jan. 11, 1989,
p. 4).
Today, the study of corporate law practice direly needs a "shot
in the arm," so to speak. No longer are we talking of the
traditional law teaching method of confining the subject study
to the Corporation Code and the Securities Code but an
incursion as well into the intertwining modern management
issues.
Such corporate legal management issues deal primarily with
three (3) types of learning: (1) acquisition of insights into
current advances which are of particular significance to the
corporate counsel; (2) an introduction to usable disciplinary
skins applicable to a corporate counsel's management
responsibilities; and (3) a devotion to the organization and
management of the legal function itself.
These three subject areas may be thought of as intersecting
circles, with a shared area linking them. Otherwise known as
"intersecting managerial jurisprudence," it forms a unifying
theme for the corporate counsel's total learning.
Some current advances in behavior and policy sciences affect
the counsel's role. For that matter, the corporate lawyer
reviews the globalization process, including the resulting
strategic repositioning that the firms he provides counsel for
are required to make, and the need to think about a
corporation's; strategy at multiple levels. The salience of the
nation-state is being reduced as firms deal both with global
multinational entities and simultaneously with sub-national
governmental units. Firms increasingly collaborate not only
with public entities but with each other often with those
who are competitors in other arenas.
Also, the nature of the lawyer's participation in decision-making
within the corporation is rapidly changing. The modem
corporate lawyer has gained a new role as a stakeholder in
some cases participating in the organization and operations of
governance through participation on boards and other
decision-making roles. Often these new patterns develop
alongside existing legal institutions and laws are perceived as
barriers. These trends are complicated as corporations
organize for global operations. ( Emphasis supplied)
The practising lawyer of today is familiar as well with
governmental policies toward the promotion and management
of technology. New collaborative arrangements for promoting
specific technologies or competitiveness more generally require
approaches from industry that differ from older, more
adversarial relationships and traditional forms of seeking to
influence governmental policies. And there are lessons to be
learned from other countries. In
Europe, Esprit, Eureka and Race are examples of collaborative
efforts between governmental and business Japan's MITI is
world famous. (Emphasis supplied)
Following the concept of boundary spanning, the office of the
Corporate Counsel comprises a distinct group within the
managerial structure of all kinds of organizations. Effectiveness
of both long-term and temporary groups within organizations
has been found to be related to indentifiable factors in the
group-context interaction such as the groups actively revising
their knowledge of the environment coordinating work with
outsiders, promoting team achievements within the
organization. In general, such external activities are better
predictors of team performance than internal group processes.
In a crisis situation, the legal managerial capabilities of the
corporate lawyer vis-a-vis the managerial mettle of
corporations are challenged. Current research is seeking ways
both to anticipate effective managerial procedures and to
understand relationships of financial liability and insurance
considerations. (Emphasis supplied)
Regarding the skills to apply by the corporate counsel, three
factors are apropos:
First System Dynamics. The field of systems dynamics has been
found an effective tool for new managerial thinking regarding
both planning and pressing immediate problems. An
understanding of the role of feedback loops, inventory levels,
and rates of flow, enable users to simulate all sorts of
systematic problems physical, economic, managerial, social,
and psychological. New programming techniques now make
the system dynamics principles more accessible to managers
including corporate counsels. (Emphasis supplied)
Second Decision Analysis. This enables users to make better
decisions involving complexity and uncertainty. In the context of
a law department, it can be used to appraise the settlement
value of litigation, aid in negotiation settlement, and minimize
the cost and risk involved in managing a portfolio of cases.
(Emphasis supplied)
Third Modeling for Negotiation Management. Computer-based
models can be used directly by parties and mediators in all
lands of negotiations. All integrated set of such tools provide
coherent and effective negotiation support, including hands-on
on instruction in these techniques. A simulation case of an
international joint venture may be used to illustrate the point.
[Be this as it may,] the organization and management of the
legal function, concern three pointed areas of consideration,
thus:
Preventive Lawyering. Planning by lawyers requires special skills
that comprise a major part of the general counsel's
responsibilities. They differ from those of remedial law.
Preventive lawyering is concerned with minimizing the risks of
legal trouble and maximizing legal rights for such legal entities
at that time when transactional or similar facts are being
considered and made.
Managerial Jurisprudence. This is the framework within which
are undertaken those activities of the firm to which legal
consequences attach. It needs to be directly supportive of this
nation's evolving economic and organizational fabric as firms
change to stay competitive in a global, interdependent
environment. The practice and theory of "law" is not adequate
today to facilitate the relationships needed in trying to make a
global economy work.
Organization and Functioning of the Corporate Counsel's Office.
The general counsel has emerged in the last decade as one of
the most vibrant subsets of the legal profession. The corporate
counsel hear responsibility for key aspects of the firm's
strategic issues, including structuring its global operations,
managing improved relationships with an increasingly
diversified body of employees, managing expanded liability
exposure, creating new and varied interactions with public
decision-makers, coping internally with more complex make or
by decisions.
This whole exercise drives home the thesis that knowing
corporate law is not enough to make one a good general
corporate counsel nor to give him a full sense of how the legal
system shapes corporate activities. And even if the corporate
lawyer's aim is not the understand all of the law's effects on
corporate activities, he must, at the very least, also gain a
working knowledge of the management issues if only to be
able to grasp not only the basic legal "constitution' or makeup
of the modem corporation. "Business Star", "The Corporate
Counsel," April 10, 1991, p. 4).
The challenge for lawyers (both of the bar and the bench) is to
have more than a passing knowledge of financial law affecting
each aspect of their work. Yet, many would admit to ignorance
of vast tracts of the financial law territory. What transpires next
is a dilemma of professional security: Will the lawyer admit
ignorance and risk opprobrium?; or will he feign understanding
and risk exposure? (Business Star, "Corporate Finance law,"
Jan. 11, 1989, p. 4).
Respondent Christian Monsod was nominated by President
Corazon C. Aquino to the position of Chairman of the COMELEC
in a letter received by the Secretariat of the Commission on
Appointments on April 25, 1991. Petitioner opposed the
nomination because allegedly Monsod does not possess the
required qualification of having been engaged in the practice of
law for at least ten years.
On June 5, 1991, the Commission on Appointments confirmed
the nomination of Monsod as Chairman of the COMELEC. On
June 18, 1991, he took his oath of office. On the same day, he
assumed office as Chairman of the COMELEC.
Challenging the validity of the confirmation by the Commission
on Appointments of Monsod's nomination, petitioner as a
citizen and taxpayer, filed the instant petition for certiorari and
Prohibition praying that said confirmation and the consequent
appointment of Monsod as Chairman of the Commission on
Elections be declared null and void.
Atty. Christian Monsod is a member of the Philippine Bar,
having passed the bar examinations of 1960 with a grade of 86-
55%. He has been a dues paying member of the Integrated Bar
of the Philippines since its inception in 1972-73. He has also
been paying his professional license fees as lawyer for more
than ten years. (p. 124, Rollo)
After graduating from the College of Law (U.P.) and having
hurdled the bar, Atty. Monsod worked in the law office of his
father. During his stint in the World Bank Group (1963-
1970), Monsod worked as an operations officer for about two
years in Costa Rica and Panama, which involved getting
acquainted with the laws of member-countries negotiating
loans and coordinating legal, economic, and project work of the
Bank. Upon returning to the Philippines in 1970, he worked with
the Meralco Group, served as chief executive officer of an
investment bank and subsequently of a business conglomerate,
and since 1986, has rendered services to various companies as
a legal and economic consultant or chief executive officer. As
former Secretary-General (1986) and National Chairman (1987)
of NAMFREL. Monsod's work involved being knowledgeable in
election law. He appeared for NAMFREL in its accreditation
hearings before the Comelec. In the field of advocacy, Monsod,
in his personal capacity and as former Co-Chairman of the
Bishops Businessmen's Conference for Human Development,
has worked with the under privileged sectors, such as the
farmer and urban poor groups, in initiating, lobbying for and
engaging in affirmative action for the agrarian reform law and
lately the urban land reform bill. Monsod also made use of his
legal knowledge as a member of the Davide Commission, a
quast judicial body, which conducted numerous hearings (1990)
and as a member of the Constitutional Commission (1986-
1987), and Chairman of its Committee on Accountability of
Public Officers, for which he was cited by the President of the
Commission, Justice Cecilia Muoz-Palma for "innumerable
amendments to reconcile government functions with individual
freedoms and public accountability and the party-list system for
the House of Representative. (pp. 128-129 Rollo) ( Emphasis
supplied)
Just a word about the work of a negotiating team of which
Atty. Monsod used to be a member.
In a loan agreement, for instance, a negotiating panel acts as a
team, and which is adequately constituted to meet the various
contingencies that arise during a negotiation. Besides top
officials of the Borrower concerned, there are the legal officer
(such as the legal counsel), the finance manager, and
an operations officer (such as an official involved in negotiating
the contracts) who comprise the members of the team.
(Guillermo V. Soliven, "Loan Negotiating Strategies for
Developing Country Borrowers," Staff Paper No. 2, Central
Bank of the Philippines, Manila, 1982, p. 11). (Emphasis
supplied)
After a fashion, the loan agreement is like a country's
Constitution; it lays down the law as far as the loan transaction
is concerned. Thus, the meat of any Loan Agreement can be
compartmentalized into five (5) fundamental parts: (1)
business terms; (2) borrower's representation; (3) conditions of
closing; (4) covenants; and (5) events of default. (Ibid., p. 13).
In the same vein, lawyers play an important role in any debt
restructuring program. For aside from performing the tasks of
legislative drafting and legal advising, they score national
development policies as key factors in maintaining their
countries' sovereignty. (Condensed from the work paper,
entitled "Wanted: Development Lawyers for Developing
Nations," submitted by L. Michael Hager, regional legal adviser
of the United States Agency for International Development,
during the Session on Law for the Development of Nations at
the Abidjan World Conference in Ivory Coast, sponsored by the
World Peace Through Law Center on August 26-31, 1973). (
Emphasis supplied)
Loan concessions and compromises, perhaps even more so than
purely renegotiation policies, demand expertise in the law of
contracts, in legislation and agreement drafting and in
renegotiation. Necessarily, a sovereign lawyer may work with
an international business specialist or an economist in the
formulation of a model loan agreement. Debt restructuring
contract agreements contain such a mixture of technical
language that they should be carefully drafted and signed only
with the advise of competent counsel in conjunction with the
guidance of adequate technical support personnel. (See
International Law Aspects of the Philippine External Debts, an
unpublished dissertation, U.S.T. Graduate School of Law, 1987,
p. 321). ( Emphasis supplied)
A critical aspect of sovereign debt restructuring/contract
construction is the set of terms and conditions which
determines the contractual remedies for a failure to perform
one or more elements of the contract. A good agreement must
not only define the responsibilities of both parties, but must
also state the recourse open to either party when the other
fails to discharge an obligation. For a compleat debt
restructuring represents a devotion to that principle which in
the ultimate analysis is sine qua non for foreign loan
agreements-an adherence to the rule of law in domestic and
international affairs of whose kind U.S. Supreme Court Justice
Oliver Wendell Holmes, Jr. once said: "They carry no banners,
they beat no drums; but where they are, men learn that bustle
and bush are not the equal of quiet genius and serene
mastery." (See Ricardo J. Romulo, "The Role of Lawyers in
Foreign Investments," Integrated Bar of the Philippine Journal,
Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265).
Interpreted in the light of the various definitions of the term
Practice of law". particularly the modern concept of law
practice, and taking into consideration the liberal construction
intended by the framers of the Constitution, Atty. Monsod's
past work experiences as a lawyer-economist, a lawyer-
manager, a lawyer-entrepreneur of industry, a lawyer-
negotiator of contracts, and a lawyer-legislator of both the rich
and the poor verily more than satisfy the constitutional
requirement that he has been engaged in the practice of law
for at least ten years.
Besides in the leading case of Luego v. Civil Service
Commission, 143 SCRA 327, the Court said:
Appointment is an essentially discretionary power and must be
performed by the officer in which it is vested according to his
best lights, the only condition being that the appointee should
possess the qualifications required by law. If he does, then the
appointment cannot be faulted on the ground that there are
others better qualified who should have been preferred. This is
a political question involving considerations of wisdom which
only the appointing authority can decide. (emphasis supplied)
No less emphatic was the Court in the case of (Central Bank v.
Civil Service Commission, 171 SCRA 744) where it stated:
It is well-settled that when the appointee is qualified, as in this
case, and all the other legal requirements are satisfied, the
Commission has no alternative but to attest to the
appointment in accordance with the Civil Service Law. The
Commission has no authority to revoke an appointment on the
ground that another person is more qualified for a particular
position. It also has no authority to direct the appointment of a
substitute of its choice. To do so would be an encroachment on
the discretion vested upon the appointing authority. An
appointment is essentially within the discretionary power of
whomsoever it is vested, subject to the only condition that the
appointee should possess the qualifications required by law. (
Emphasis supplied)
The appointing process in a regular appointment as in the case
at bar, consists of four (4) stages: (1) nomination; (2)
confirmation by the Commission on Appointments; (3) issuance
of a commission (in the Philippines, upon submission by the
Commission on Appointments of its certificate of confirmation,
the President issues the permanent appointment; and (4)
acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson
v. Romero, No. L-3081, October 14, 1949; Gonzales, Law on
Public Officers, p. 200)
The power of the Commission on Appointments to give its
consent to the nomination of Monsod as Chairman of the
Commission on Elections is mandated by Section 1(2) Sub-
Article C, Article IX of the Constitution which provides:
The Chairman and the Commisioners shall be appointed by the
President with the consent of the Commission on
Appointments for a term of seven years without
reappointment. Of those first appointed, three Members shall
hold office for seven years, two Members for five years, and
the last Members for three years, without reappointment.
Appointment to any vacancy shall be only for the unexpired
term of the predecessor. In no case shall any Member be
appointed or designated in a temporary or acting capacity.
Anent Justice Teodoro Padilla's separate opinion, suffice it to
say that his definition of the practice of law is the traditional or
stereotyped notion of law practice, as distinguished from the
modern concept of the practice of law, which modern
connotation is exactly what was intended by the eminent
framers of the 1987 Constitution. Moreover, Justice Padilla's
definition would require generally a habitual law practice,
perhaps practised two or three times a week and would
outlaw say, law practice once or twice a year for ten
consecutive years. Clearly, this is far from the constitutional
intent.
Upon the other hand, the separate opinion of Justice Isagani
Cruz states that in my written opinion, I made use of a
definition of law practice which really means nothing because
the definition says that law practice " . . . is what people
ordinarily mean by the practice of law." True I cited the
definition but only by way of sarcasm as evident from my
statement that the definition of law practice by "traditional
areas of law practice is essentially tautologous" or defining a
phrase by means of the phrase itself that is being defined.
Justice Cruz goes on to say in substance that since the law
covers almost all situations, most individuals, in making use of
the law, or in advising others on what the law means, are
actually practicing law. In that sense, perhaps, but we should
not lose sight of the fact that Mr. Monsod is a lawyer, a
member of the Philippine Bar, who has been practising law for
over ten years. This is different from the acts of persons
practising law, without first becoming lawyers.
Justice Cruz also says that the Supreme Court can even
disqualify an elected President of the Philippines, say, on the
ground that he lacks one or more qualifications. This matter, I
greatly doubt. For one thing, how can an action or petition be
brought against the President? And even assuming that he is
indeed disqualified, how can the action be entertained since he
is the incumbent President?
We now proceed:
The Commission on the basis of evidence submitted doling the
public hearings on Monsod's confirmation, implicitly
determined that he possessed the necessary qualifications as
required by law. The judgment rendered by the Commission in
the exercise of such an acknowledged power is beyond judicial
interference except only upon a clear showing of a grave abuse
of discretion amounting to lack or excess of jurisdiction. (Art.
VIII, Sec. 1 Constitution). Thus, only where such grave abuse of
discretion is clearly shown shall the Court interfere with the
Commission's judgment. In the instant case, there is no
occasion for the exercise of the Court's corrective power, since
no abuse, much less a grave abuse of discretion, that would
amount to lack or excess of jurisdiction and would warrant the
issuance of the writs prayed, for has been clearly shown.
Additionally, consider the following:
(1) If the Commission on Appointments rejects a nominee by
the President, may the Supreme Court reverse the
Commission, and thus in effect confirm the appointment?
Clearly, the answer is in the negative.
(2) In the same vein, may the Court reject the nominee, whom
the Commission has confirmed? The answer is likewise clear.
(3) If the United States Senate (which is the confirming body in
the U.S. Congress) decides to confirm a Presidential nominee, it
would be incredible that the U.S. Supreme Court would
still reverse the U.S. Senate.
Finally, one significant legal maxim is:
We must interpret not by the letter that killeth, but by the
spirit that giveth life.
Take this hypothetical case of Samson and Delilah. Once, the
procurator of Judea asked Delilah (who was Samson's beloved)
Separate Opinions
for help in capturing Samson. Delilah agreed on condition that

No blade shall touch his skin; NARVASA, J., concurring:

No blood shall flow from his veins.
When Samson (his long hair cut by Delilah) was captured, the
procurator placed an iron rod burning white-hot two or three
inches away from in front of Samson's eyes. This blinded the
man. Upon hearing of what had happened to her beloved,
Delilah was beside herself with anger, and fuming with
righteous fury, accused the procurator of reneging on his word.
The procurator calmly replied: "Did any blade touch his skin?
Did any blood flow from his veins?" The procurator was clearly
relying on the letter, not the spirit of the agreement.
In view of the foregoing, this petition is hereby DISMISSED.
SO ORDERED.
Fernan, C.J., Grio-Aquino and Medialdea, JJ., concur.
Feliciano, J., I certify that he voted to dismiss the petition.
(Fernan, C.J.)
Sarmiento, J., is on leave.
Regalado, and Davide, Jr., J., took no part.
I concur with the decision of the majority written by Mr. Justice
Paras, albeit only in the result; it does not appear to me that
there has been an adequate showing that the challenged
determination by the Commission on Appointments-that the
appointment of respondent Monsod as Chairman of the
Commission on Elections should, on the basis of his stated
qualifications and after due assessment thereof, be confirmed-
was attended by error so gross as to amount to grave abuse of
discretion and consequently merits nullification by this Court in
accordance with the second paragraph of Section 1, Article VIII
of the Constitution. I therefore vote to DENY the petition.
PADILLA, J., dissenting:
The records of this case will show that when the Court first
deliberated on the Petition at bar, I voted not only to require
the respondents to comment on the Petition, but I was the sole
vote for the issuance of a temporary restraining order to enjoin
respondent Monsod from assuming the position of COMELEC
Chairman, while the Court deliberated on his constitutional
qualification for the office. My purpose in voting for a TRO was
to prevent the inconvenience and even embarrassment to all
parties concerned were the Court to finally decide for
respondent Monsod's disqualification. Moreover, a reading of
the Petition then in relation to established jurisprudence
already showed prima facie that respondent Monsod did not
possess the needed qualification, that is, he had not engaged in
the practice of law for at least ten (10) years prior to his
appointment as COMELEC Chairman.
After considering carefully respondent Monsod's comment, I
am even more convinced that the constitutional requirement
of "practice of law for at least ten (10) years" has not been
met.
The procedural barriers interposed by respondents deserve
scant consideration because, ultimately, the core issue to be
resolved in this petition is the proper construal of the
constitutional provision requiring a majority of the membership
of COMELEC, including the Chairman thereof to "have been
engaged in the practice of law for at least ten (10) years." (Art.
IX(C), Section 1(1), 1987 Constitution). Questions involving the
construction of constitutional provisions are best left to judicial
resolution. As declared in Angara v. Electoral Commission, (63
Phil. 139) "upon the judicial department is thrown the solemn
and inescapable obligation of interpreting the Constitution and
defining constitutional boundaries."
The Constitution has imposed clear and specific standards for a
COMELEC Chairman. Among these are that he must have been
"engaged in the practice of law for at least ten (10) years." It is
the bounden duty of this Court to ensure that such standard is
met and complied with.
What constitutes practice of law? As commonly understood,
"practice" refers to the actual performance or application of
knowledge as distinguished from mere possession of
knowledge; it connotes
an active, habitual, repeated or customary action. 1 To
"practice" law, or any profession for that matter, means, to
exercise or pursue an employment or profession actively,
habitually, repeatedly or customarily.
Therefore, a doctor of medicine who is employed and is
habitually performing the tasks of a nursing aide, cannot be
said to be in the "practice of medicine." A certified public
accountant who works as a clerk, cannot be said to practice his
profession as an accountant. In the same way, a lawyer who is
employed as a business executive or a corporate manager,
other than as head or attorney of a Legal Department of a
corporation or a governmental agency, cannot be said to be in
the practice of law.
As aptly held by this Court in the case of People vs. Villanueva: 2
Practice is more than an isolated appearance for it consists in
frequent or customary actions, a succession of acts of the same
kind. In other words, it is frequent habitual exercise (State vs-
Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of
law to fall within the prohibition of statute has been
interpreted as customarily or habitually holding one's self out
to the public as a lawyer and demanding payment for such
services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644,647.) ...
(emphasis supplied).
It is worth mentioning that the respondent Commission on
Appointments in a Memorandum it prepared, enumerated
several factors determinative of whether a particular activity
constitutes "practice of law." It states:
1. Habituality. The term "practice of law" implies customarily or
habitually holding one's self out to the public as a lawyer
(People vs. Villanueva, 14 SCRA 109 citing State v. Boyen, 4 S.E.
522, 98 N.C. 644) such as when one sends a circular
announcing the establishment of a law office for the general
practice of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one
takes the oath of office as a lawyer before a notary public, and
files a manifestation with the Supreme Court informing it of his
intention to practice law in all courts in the country (People v.
De Luna, 102 Phil. 968).
Practice is more than an isolated appearance for it consists in
frequent or customary action, a succession of acts of the same
kind. In other words, it is a habitual exercise (People v.
Villanueva, 14 SCRA 109 citing State v. Cotner, 127, p. 1, 87
Kan, 864).
2. Compensation. Practice of law implies that one must have
presented himself to be in the active and continued practice of
the legal profession and that his professional services are
available to the public for compensation, as a service of his
livelihood or in consideration of his said services. (People v.
Villanueva, supra). Hence, charging for services such as
preparation of documents involving the use of legal knowledge
and skill is within the term "practice of law" (Ernani Pao, Bar
Reviewer in Legal and Judicial Ethics, 1988 ed., p. 8 citing
People v. People's Stockyards State Bank, 176 N.B. 901) and,
one who renders an opinion as to the proper interpretation of
a statute, and receives pay for it, is to that extent, practicing
law (Martin, supra, p. 806 citing Mendelaun v. Gilbert and
Barket Mfg. Co., 290 N.Y.S. 462) If compensation is expected,
all advice to clients and all action taken for them in matters
connected with the law; are practicing law. (Elwood Fitchette
et al., v. Arthur C. Taylor, 94A-L.R. 356-359)
3. Application of law legal principle practice or procedure which
calls for legal knowledge, training and experience is within the
term "practice of law". (Martin supra)
4. Attorney-client relationship. Engaging in the practice of law
presupposes the existence of lawyer-client relationship. Hence,
where a lawyer undertakes an activity which requires
knowledge of law but involves no attorney-client relationship,
such as teaching law or writing law books or articles, he cannot
be said to be engaged in the practice of his profession or a
lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30). 3
The above-enumerated factors would, I believe, be useful aids
in determining whether or not respondent Monsod meets the
constitutional qualification of practice of law for at least ten
(10) years at the time of his appointment as COMELEC
Chairman.
The following relevant questions may be asked:
1. Did respondent Monsod perform any of the tasks which are
peculiar to the practice of law?
2. Did respondent perform such tasks customarily or
habitually?
3. Assuming that he performed any of such tasks habitually, did
he do so HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his
appointment as COMELEC Chairman?
Given the employment or job history of respondent Monsod as
appears from the records, I am persuaded that if ever he did
perform any of the tasks which constitute the practice of law,
he did not do so HABITUALLY for at least ten (10) years prior to
his appointment as COMELEC Chairman.
While it may be granted that he performed tasks and activities
which could be latitudinarianly considered activities peculiar to
the practice of law, like the drafting of legal documents and the
rendering of legal opinion or advice, such were isolated
transactions or activities which do not qualify his past
endeavors as "practice of law." To become engaged in the
practice of law, there must be a continuity, or a succession of
acts. As observed by the Solicitor General in People vs.
Villanueva: 4
Essentially, the word private practice of law implies that one
must have presented himself to be in the active and continued
practice of the legal profession and that his professional
services are available to the public for a compensation, as a
source of his livelihood or in consideration of his said services.
ACCORDINGLY, my vote is to GRANT the petition and to declare
respondent Monsod as not qualified for the position of
COMELEC Chairman for not having engaged in the practice of
law for at least ten (10) years prior to his appointment to such
position.
CRUZ, J., dissenting:
I am sincerely impressed by the ponencia of my brother Paras
but find I must dissent just the same. There are certain points
on which I must differ with him while of course respecting
hisviewpoint.
To begin with, I do not think we are inhibited from examining
the qualifications of the respondent simply because his
nomination has been confirmed by the Commission on
Appointments. In my view, this is not a political question that
we are barred from resolving. Determination of the
appointee's credentials is made on the basis of the established
facts, not the discretion of that body. Even if it were, the
exercise of that discretion would still be subject to our review.
In Luego, which is cited in the ponencia, what was involved was
the discretion of the appointing authority to choose between
two claimants to the same office who both possessed the
required qualifications. It was that kind of discretion that we
said could not be reviewed.
If a person elected by no less than the sovereign people may
be ousted by this Court for lack of the required qualifications, I
see no reason why we cannot disqualified an appointee simply
because he has passed the Commission on Appointments.
Even the President of the Philippines may be declared ineligible
by this Court in an appropriate proceeding notwithstanding
that he has been found acceptable by no less than the
enfranchised citizenry. The reason is that what we would be
examining is not the wisdom of his election but whether or not
he was qualified to be elected in the first place.
Coming now to the qualifications of the private respondent, I
fear that the ponencia may have been too sweeping in its
definition of the phrase "practice of law" as to render the
qualification practically toothless. From the numerous activities
accepted as embraced in the term, I have the uncomfortable
feeling that one does not even have to be a lawyer to be
engaged in the practice of law as long as his activities involve
the application of some law, however peripherally. The stock
broker and the insurance adjuster and the realtor could come
under the definition as they deal with or give advice on matters
that are likely "to become involved in litigation."
The lawyer is considered engaged in the practice of law even if
his main occupation is another business and he interprets and
applies some law only as an incident of such business. That
covers every company organized under the Corporation Code
and regulated by the SEC under P.D. 902-A. Considering the
ramifications of the modern society, there is hardly any activity
that is not affected by some law or government regulation the
businessman must know about and observe. In fact, again
going by the definition, a lawyer does not even have to be part
of a business concern to be considered a practitioner. He can
be so deemed when, on his own, he rents a house or buys a car
or consults a doctor as these acts involve his knowledge and
application of the laws regulating such transactions. If he
operates a public utility vehicle as his main source of livelihood,
he would still be deemed engaged in the practice of law
because he must obey the Public Service Act and the rules and
regulations of the Energy Regulatory Board.
The ponencia quotes an American decision defining the
practice of law as the "performance of any acts ... in or out of
court, commonly understood to be the practice of law," which
tells us absolutely nothing. The decision goes on to say that
"because lawyers perform almost every function known in the
commercial and governmental realm, such a definition would
obviously be too global to be workable."
The effect of the definition given in the ponencia is to consider
virtually every lawyer to be engaged in the practice of law even
if he does not earn his living, or at least part of it, as a lawyer. It
is enough that his activities are incidentally (even if only
remotely) connected with some law, ordinance, or regulation.
The possible exception is the lawyer whose income is derived
from teaching ballroom dancing or escorting wrinkled ladies
with pubescent pretensions.
The respondent's credentials are impressive, to be sure, but
they do not persuade me that he has been engaged in the
practice of law for ten years as required by the Constitution. It
is conceded that he has been engaged in business and finance,
in which areas he has distinguished himself, but as an executive
and economist and not as a practicing lawyer. The plain fact is
that he has occupied the various positions listed in his resume
by virtue of his experience and prestige as a businessman and
not as an attorney-at-law whose principal attention is focused
on the law. Even if it be argued that he was acting as a lawyer
when he lobbied in Congress for agrarian and urban reform,
served in the NAMFREL and the Constitutional Commission
(together with non-lawyers like farmers and priests) and was a
member of the Davide Commission, he has not proved that his
activities in these capacities extended over the prescribed 10-
year period of actual practice of the law. He is doubtless
eminently qualified for many other positions worthy of his
abundant talents but not as Chairman of the Commission on
Elections.
I have much admiration for respondent Monsod, no less than
for Mr. Justice Paras, but I must regretfully vote to grant the
petition.
GUTIERREZ, JR., J., dissenting:
When this petition was filed, there was hope that engaging in
the practice of law as a qualification for public office would be
settled one way or another in fairly definitive terms.
Unfortunately, this was not the result.
Of the fourteen (14) member Court, 5 are of the view that Mr.
Christian Monsod engaged in the practice of law (with one of
these 5 leaving his vote behind while on official leave but not
expressing his clear stand on the matter); 4 categorically
stating that he did not practice law; 2 voting in the result
because there was no error so gross as to amount to grave
abuse of discretion; one of official leave with no instructions
left behind on how he viewed the issue; and 2 not taking part
in the deliberations and the decision.
There are two key factors that make our task difficult. First is
our reviewing the work of a constitutional Commission on
Appointments whose duty is precisely to look into the
qualifications of persons appointed to high office. Even if the
Commission errs, we have no power to set aside error. We can
look only into grave abuse of discretion or whimsically and
arbitrariness. Second is our belief that Mr. Monsod possesses
superior qualifications in terms of executive ability, proficiency
in management, educational background, experience in
international banking and finance, and instant recognition by
the public. His integrity and competence are not questioned by
the petitioner. What is before us is compliance with a specific
requirement written into the Constitution.
Inspite of my high regard for Mr. Monsod, I cannot shirk my
constitutional duty. He has never engaged in the practice of
law for even one year. He is a member of the bar but to say
that he has practiced law is stretching the term beyond rational
limits.
A person may have passed the bar examinations. But if he has
not dedicated his life to the law, if he has not engaged in an
activity where membership in the bar is a requirement I fail to
see how he can claim to have been engaged in the practice of
law.
Engaging in the practice of law is a qualification not only for
COMELEC chairman but also for appointment to the Supreme
Court and all lower courts. What kind of Judges or Justices will
we have if there main occupation is selling real estate,
managing a business corporation, serving in fact-finding
committee, working in media, or operating a farm with no 1.15.1. Respondent Monsod's activities since his passing the
active involvement in the law, whether in Government or Bar examinations in 1961 consist of the following:
private practice, except that in one joyful moment in the
1. 1961-1963: M.A. in Economics (Ph. D. candidate), University
distant past, they happened to pass the bar examinations?
of Pennsylvania
The Constitution uses the phrase "engaged in the practice of
2. 1963-1970: World Bank Group Economist, Industry
law for at least ten years." The deliberate choice of words
Department; Operations, Latin American Department; Division
shows that the practice envisioned is active and regular, not
Chief, South Asia and Middle East, International Finance
isolated, occasional, accidental, intermittent, incidental,
Corporation
seasonal, or extemporaneous. To be "engaged" in an activity
for ten years requires committed participation in something 3. 1970-1973: Meralco Group Executive of various
which is the result of one's decisive choice. It means that one is companies, i.e., Meralco Securities Corporation, Philippine
occupied and involved in the enterprise; one is obliged or Petroleum Corporation, Philippine Electric Corporation
pledged to carry it out with intent and attention during the ten-
4. 1973-1976: Yujuico Group President, Fil-Capital
year period.
Development Corporation and affiliated companies
I agree with the petitioner that based on the bio-data
5. 1976-1978: Finaciera Manila Chief Executive Officer
submitted by respondent Monsod to the Commission on
Appointments, the latter has not been engaged in the practice 6. 1978-1986: Guevent Group of Companies Chief Executive
of law for at least ten years. In fact, if appears that Mr. Monsod Officer
has never practiced law except for an alleged one year period
7. 1986-1987: Philippine Constitutional Commission
after passing the bar examinations when he worked in his
Member
father's law firm. Even then his law practice must have been
extremely limited because he was also working for M.A. and 8. 1989-1991: The Fact-Finding Commission on the December
Ph. D. degrees in Economics at the University of Pennsylvania 1989 Coup Attempt Member
during that period. How could he practice law in the United
9. Presently: Chairman of the Board and Chief Executive Officer
States while not a member of the Bar there?
of the following companies:
The professional life of the respondent follows:
a. ACE Container Philippines, Inc.
b. Dataprep, Philippines
c. Philippine SUNsystems Products, Inc.
d. Semirara Coal Corporation
e. CBL Timber Corporation
Member of the Board of the Following:
a. Engineering Construction Corporation of the Philippines
b. First Philippine Energy Corporation
c. First Philippine Holdings Corporation
d. First Philippine Industrial Corporation
e. Graphic Atelier
f. Manila Electric Company
g. Philippine Commercial Capital, Inc.
h. Philippine Electric Corporation
i. Tarlac Reforestation and Environment Enterprises
j. Tolong Aquaculture Corporation
k. Visayan Aquaculture Corporation
l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)
There is nothing in the above bio-data which even remotely
indicates that respondent Monsod has given the law enough
attention or a certain degree of commitment and participation
as would support in all sincerity and candor the claim of having
engaged in its practice for at least ten years. Instead of working
as a lawyer, he has lawyers working for him. Instead of giving
receiving that legal advice of legal services, he was the
oneadvice and those services as an executive but not as a
lawyer.
The deliberations before the Commission on Appointments
show an effort to equate "engaged in the practice of law" with
the use of legal knowledge in various fields of endeavor such as
commerce, industry, civic work, blue ribbon investigations,
agrarian reform, etc. where such knowledge would be helpful.
I regret that I cannot join in playing fast and loose with a term,
which even an ordinary layman accepts as having a familiar and
customary well-defined meaning. Every resident of this country
who has reached the age of discernment has to know, follow,
or apply the law at various times in his life. Legal knowledge is
useful if not necessary for the business executive, legislator,
mayor, barangay captain, teacher, policeman, farmer,
fisherman, market vendor, and student to name only a few.
And yet, can these people honestly assert that as such, they
are engaged in the practice of law?
The Constitution requires having been "engaged in the practice
of law for at least ten years." It is not satisfied with having been
"a member of the Philippine bar for at least ten years."
Some American courts have defined the practice of law, as
follows:
The practice of law involves not only appearance in court in
connection with litigation but also services rendered out of
court, and it includes the giving of advice or the rendering of
any services requiring the use of legal skill or knowledge, such
as preparing a will, contract or other instrument, the legal
effect of which, under the facts and conditions involved, must
be carefully determined. People ex rel. Chicago Bar Ass'n v.
Tinkoff, 399 Ill. 282, 77 N.E.2d 693; People ex rel. Illinois State
Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176
N.E. 901, and cases cited.
It would be difficult, if not impossible to lay down a formula or
definition of what constitutes the practice of law. "Practicing
law" has been defined as "Practicing as an attorney or
counselor at law according to the laws and customs of our
courts, is the giving of advice or rendition of any sort of service
by any person, firm or corporation when the giving of such
advice or rendition of such service requires the use of any
degree of legal knowledge or skill." Without adopting that
definition, we referred to it as being substantially correct
in People ex rel. Illinois State Bar Ass'n v. People's Stock Yards
State Bank, 344 Ill. 462,176 N.E. 901. (People v. Schafer, 87
N.E. 2d 773, 776)
For one's actions to come within the purview of practice of
law they should not only be activities peculiar to the work of a
lawyer, they should also be performed, habitually, frequently
or customarily, to wit:
xxx xxx xxx
Respondent's answers to questions propounded to him were
rather evasive. He was asked whether or not he ever prepared
contracts for the parties in real-estate transactions where he
was not the procuring agent. He answered: "Very seldom." In
answer to the question as to how many times he had prepared
contracts for the parties during the twenty-one years of his
business, he said: "I have no Idea." When asked if it would be
more than half a dozen times his answer was I suppose. Asked
if he did not recall making the statement to several parties that
he had prepared contracts in a large number of instances, he
answered: "I don't recall exactly what was said." When asked if
he did not remember saying that he had made a practice of
preparing deeds, mortgages and contracts and charging a fee
to the parties therefor in instances where he was not the
broker in the deal, he answered: "Well, I don't believe so, that
is not a practice." Pressed further for an answer as to his
practice in preparing contracts and deeds for parties where he
was not the broker, he finally answered: "I have done about
everything that is on the books as far as real estate is
concerned."
xxx xxx xxx
Respondent takes the position that because he is a real-estate
broker he has a lawful right to do any legal work in connection
with real-estate transactions, especially in drawing of real-
estate contracts, deeds, mortgages, notes and the like. There is
no doubt but that he has engaged in these practices over the
years and has charged for his services in that connection. ...
(People v. Schafer, 87 N.E. 2d 773)
xxx xxx xxx
... An attorney, in the most general sense, is a person
designated or employed by another to act in his stead; an
agent; more especially, one of a class of persons authorized to
appear and act for suitors or defendants in legal proceedings.
Strictly, these professional persons are attorneys at law, and
non-professional agents are properly styled "attorney's in fact;"
but the single word is much used as meaning an attorney at
law. A person may be an attorney in facto for another, without
being an attorney at law. Abb. Law Dict. "Attorney." A public
attorney, or attorney at law, says Webster, is an officer of a
court of law, legally qualified to prosecute and defend actions
in such court on the retainer of clients. "The principal duties of
an attorney are (1) to be true to the court and to his client; (2)
to manage the business of his client with care, skill, and
integrity; (3) to keep his client informed as to the state of his
business; (4) to keep his secrets confided to him as such. ... His
rights are to be justly compensated for his services." Bouv. Law
Dict. tit. "Attorney." The transitive verb "practice," as defined by
Webster, means 'to do or perform frequently, customarily, or
habitually; to perform by a succession of acts, as, to practice
gaming, ... to carry on in practice, or repeated action; to apply,
as a theory, to real life; to exercise, as a profession, trade, art.
etc.; as, to practice law or medicine,' etc...." (State v. Bryan, S.E.
522, 523; Emphasis supplied)
In this jurisdiction, we have ruled that the practice of law
denotes frequency or a succession of acts. Thus, we stated in
the case of People v. Villanueva (14 SCRA 109 [1965]):
xxx xxx xxx
... Practice is more than an isolated appearance, for it consists
in frequent or customary actions, a succession of acts of the
same kind. In other words, it is frequent habitual exercise
(State v. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768).
Practice of law to fall within the prohibition of statute has been
interpreted as customarily or habitually holding one's self out
to the public, as a lawyer and demanding payment for such
services. ... . (at p. 112)
It is to be noted that the Commission on Appointment itself
recognizes habituality as a required component of the meaning
of practice of law in a Memorandum prepared and issued by it,
to wit:
l. Habituality. The term 'practice of law' implies customarilyor
habitually holding one's self out to the public as a lawyer
(People v. Villanueva, 14 SCRA 109 citing State v. Bryan, 4 S.E.
522, 98 N.C. 644) such as when one sends a circular
announcing the establishment of a law office for the general
practice of law (U.S. v. Noy Bosque, 8 Phil. 146), or when one
takes the oath of office as a lawyer before a notary public, and
files a manifestation with the Supreme Court informing it of his
intention to practice law in all courts in the country (People v.
De Luna, 102 Phil. 968).
Practice is more than an isolated appearance, for it consists in
frequent or customary action, a succession of acts of the same
kind. In other words, it is a habitual exercise (People v.
Villanueva, 14 SCRA 1 09 citing State v. Cotner, 1 27, p. 1, 87
Kan, 864)." (Rollo, p. 115)
xxx xxx xxx I, therefore, believe that the Commission on Appointments
committed grave abuse of discretion in confirming the
While the career as a businessman of respondent Monsod may
nomination of respondent Monsod as Chairman of the
have profited from his legal knowledge, the use of such legal
COMELEC.
knowledge is incidental and consists of isolated activities which
do not fall under the denomination of practice of law. I vote to GRANT the petition.
Admission to the practice of law was not required for
Bidin, J., dissent
membership in the Constitutional Commission or in the Fact-
Finding Commission on the 1989 Coup Attempt. Any specific
legal activities which may have been assigned to Mr. Monsod
Separate Opinions
while a member may be likened to isolated transactions of
foreign corporations in the Philippines which do not categorize NARVASA, J., concurring:
the foreign corporations as doing business in the Philippines.
I concur with the decision of the majority written by Mr. Justice
As in the practice of law, doing business also should be active
Paras, albeit only in the result; it does not appear to me that
and continuous. Isolated business transactions or occasional,
there has been an adequate showing that the challenged
incidental and casual transactions are not within the context of
determination by the Commission on Appointments-that the
doing business. This was our ruling in the case of Antam
appointment of respondent Monsod as Chairman of the
Consolidated, Inc. v. Court of appeals, 143 SCRA 288 [1986]).
Commission on Elections should, on the basis of his stated
Respondent Monsod, corporate executive, civic leader, and qualifications and after due assessment thereof, be confirmed-
member of the Constitutional Commission may possess the was attended by error so gross as to amount to grave abuse of
background, competence, integrity, and dedication, to qualify discretion and consequently merits nullification by this Court in
for such high offices as President, Vice-President, Senator, accordance with the second paragraph of Section 1, Article VIII
Congressman or Governor but the Constitution in prescribing of the Constitution. I therefore vote to DENY the petition.
the specific qualification of having engaged in the practice of
Melencio-Herrera, J., concur.
law for at least ten (10) years for the position of COMELEC
Chairman has ordered that he may not be confirmed for that PADILLA, J., dissenting:
office. The Constitution charges the public respondents no less
The records of this case will show that when the Court first
than this Court to obey its mandate.
deliberated on the Petition at bar, I voted not only to require
the respondents to comment on the Petition, but I was the sole
vote for the issuance of a temporary restraining order to enjoin
respondent Monsod from assuming the position of COMELEC
Chairman, while the Court deliberated on his constitutional
qualification for the office. My purpose in voting for a TRO was
to prevent the inconvenience and even embarrassment to all
parties concerned were the Court to finally decide for
respondent Monsod's disqualification. Moreover, a reading of
the Petition then in relation to established jurisprudence
already showed prima facie that respondent Monsod did not
possess the needed qualification, that is, he had not engaged in
the practice of law for at least ten (10) years prior to his
appointment as COMELEC Chairman.
After considering carefully respondent Monsod's comment, I
am even more convinced that the constitutional requirement
of "practice of law for at least ten (10) years" has not been
met.
The procedural barriers interposed by respondents deserve
scant consideration because, ultimately, the core issue to be
resolved in this petition is the proper construal of the
constitutional provision requiring a majority of the membership
of COMELEC, including the Chairman thereof to "have been
engaged in the practice of law for at least ten (10) years." (Art.
IX(C), Section 1(1), 1987 Constitution). Questions involving the
construction of constitutional provisions are best left to judicial
resolution. As declared in Angara v. Electoral Commission, (63
Phil. 139) "upon the judicial department is thrown the solemn
and inescapable obligation of interpreting the Constitution and
defining constitutional boundaries."
The Constitution has imposed clear and specific standards for a
COMELEC Chairman. Among these are that he must have been
"engaged in the practice of law for at least ten (10) years." It is
the bounden duty of this Court to ensure that such standard is
met and complied with.
What constitutes practice of law? As commonly understood,
"practice" refers to the actual performance or application of
knowledge as distinguished from mere possession of
knowledge; it connotes
an active, habitual, repeated or customary action. 1 To
"practice" law, or any profession for that matter, means, to
exercise or pursue an employment or profession actively,
habitually, repeatedly or customarily.
Therefore, a doctor of medicine who is employed and is
habitually performing the tasks of a nursing aide, cannot be
said to be in the "practice of medicine." A certified public
accountant who works as a clerk, cannot be said to practice his
profession as an accountant. In the same way, a lawyer who is
employed as a business executive or a corporate manager,
other than as head or attorney of a Legal Department of a
corporation or a governmental agency, cannot be said to be in
the practice of law.
As aptly held by this Court in the case of People vs. Villanueva: 2
Practice is more than an isolated appearance for it consists in
frequent or customary actions, a succession of acts of the same
kind. In other words, it is frequent habitual exercise (State vs-
Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of
law to fall within the prohibition of statute has been
interpreted as customarily or habitually holding one's self out
to the public as a lawyer and demanding payment for such
services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644,647.) ...
(emphasis supplied).
It is worth mentioning that the respondent Commission on
Appointments in a Memorandum it prepared, enumerated
several factors determinative of whether a particular activity
constitutes "practice of law." It states:
1. Habituality. The term "practice of law" implies customarily or
habitually holding one's self out to the public as a lawyer
(People vs. Villanueva, 14 SCRA 109 citing State v. Boyen, 4 S.E.
522, 98 N.C. 644) such as when one sends a circular
announcing the establishment of a law office for the general
practice of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one
takes the oath of office as a lawyer before a notary public, and
files a manifestation with the Supreme Court informing it of his
intention to practice law in all courts in the country (People v.
De Luna, 102 Phil. 968).
Practice is more than an isolated appearance for it consists in
frequent or customary action, a succession of acts of the same
kind. In other words, it is a habitual exercise (People v.
Villanueva, 14 SCRA 109 citing State v. Cotner, 127, p. 1, 87
Kan, 864).
2. Compensation. Practice of law implies that one must have
presented himself to be in the active and continued practice of
the legal profession and that his professional services are
available to the public for compensation, as a service of his
livelihood or in consideration of his said services. (People v.
Villanueva, supra). Hence, charging for services such as
preparation of documents involving the use of legal knowledge
and skill is within the term "practice of law" (Ernani Pao, Bar
Reviewer in Legal and Judicial Ethics, 1988 ed., p. 8 citing
People v. People's Stockyards State Bank, 176 N.B. 901) and,
one who renders an opinion as to the proper interpretation of
a statute, and receives pay for it, is to that extent, practicing
law (Martin, supra, p. 806 citing Mendelaun v. Gilbert and
Barket Mfg. Co., 290 N.Y.S. 462) If compensation is expected,
all advice to clients and all action taken for them in matters
connected with the law; are practicing law. (Elwood Fitchette
et al., v. Arthur C. Taylor, 94A-L.R. 356-359)
3. Application of law legal principle practice or procedure which
calls for legal knowledge, training and experience is within the
term "practice of law". (Martin supra)
4. Attorney-client relationship. Engaging in the practice of law
presupposes the existence of lawyer-client relationship. Hence,
where a lawyer undertakes an activity which requires
knowledge of law but involves no attorney-client relationship,
such as teaching law or writing law books or articles, he cannot
be said to be engaged in the practice of his profession or a
lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30). 3
The above-enumerated factors would, I believe, be useful aids
in determining whether or not respondent Monsod meets the
constitutional qualification of practice of law for at least ten
(10) years at the time of his appointment as COMELEC
Chairman.
The following relevant questions may be asked:
1. Did respondent Monsod perform any of the tasks which are
peculiar to the practice of law?
2. Did respondent perform such tasks customarily or
habitually?
3. Assuming that he performed any of such tasks habitually, did
he do so HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his
appointment as COMELEC Chairman?
Given the employment or job history of respondent Monsod as
appears from the records, I am persuaded that if ever he did
perform any of the tasks which constitute the practice of law,
he did not do so HABITUALLY for at least ten (10) years prior to
his appointment as COMELEC Chairman.
While it may be granted that he performed tasks and activities
which could be latitudinarianly considered activities peculiar to
the practice of law, like the drafting of legal documents and the
rendering of legal opinion or advice, such were isolated
transactions or activities which do not qualify his past
endeavors as "practice of law." To become engaged in the
practice of law, there must be a continuity, or a succession of
acts. As observed by the Solicitor General in People vs.
Villanueva: 4
Essentially, the word private practice of law implies that one
must have presented himself to be in the active and continued
practice of the legal profession and that his professional
services are available to the public for a compensation, as a
source of his livelihood or in consideration of his said services.
ACCORDINGLY, my vote is to GRANT the petition and to declare
respondent Monsod as not qualified for the position of
COMELEC Chairman for not having engaged in the practice of
law for at least ten (10) years prior to his appointment to such
position.
CRUZ, J., dissenting:
I am sincerely impressed by the ponencia of my brother Paras
but find I must dissent just the same. There are certain points
on which I must differ with him while of course respecting
hisviewpoint.
To begin with, I do not think we are inhibited from examining
the qualifications of the respondent simply because his
nomination has been confirmed by the Commission on
Appointments. In my view, this is not a political question that
we are barred from resolving. Determination of the
appointee's credentials is made on the basis of the established
facts, not the discretion of that body. Even if it were, the
exercise of that discretion would still be subject to our review.
In Luego, which is cited in the ponencia, what was involved was
the discretion of the appointing authority to choose between
two claimants to the same office who both possessed the
required qualifications. It was that kind of discretion that we
said could not be reviewed.
If a person elected by no less than the sovereign people may
be ousted by this Court for lack of the required qualifications, I
see no reason why we cannot disqualified an appointee simply
because he has passed the Commission on Appointments.
Even the President of the Philippines may be declared ineligible
by this Court in an appropriate proceeding notwithstanding
that he has been found acceptable by no less than the
enfranchised citizenry. The reason is that what we would be
examining is not the wisdom of his election but whether or not
he was qualified to be elected in the first place.
Coming now to the qualifications of the private respondent, I
fear that the ponencia may have been too sweeping in its
definition of the phrase "practice of law" as to render the
qualification practically toothless. From the numerous activities
accepted as embraced in the term, I have the uncomfortable
feeling that one does not even have to be a lawyer to be
engaged in the practice of law as long as his activities involve
the application of some law, however peripherally. The stock
broker and the insurance adjuster and the realtor could come
under the definition as they deal with or give advice on matters
that are likely "to become involved in litigation."
The lawyer is considered engaged in the practice of law even if
his main occupation is another business and he interprets and
applies some law only as an incident of such business. That
covers every company organized under the Corporation Code
and regulated by the SEC under P.D. 902-A. Considering the
ramifications of the modern society, there is hardly any activity
that is not affected by some law or government regulation the
businessman must know about and observe. In fact, again
going by the definition, a lawyer does not even have to be part
of a business concern to be considered a practitioner. He can
be so deemed when, on his own, he rents a house or buys a car
or consults a doctor as these acts involve his knowledge and
application of the laws regulating such transactions. If he
operates a public utility vehicle as his main source of livelihood,
he would still be deemed engaged in the practice of law
because he must obey the Public Service Act and the rules and
regulations of the Energy Regulatory Board.
The ponencia quotes an American decision defining the
practice of law as the "performance of any acts . . . in or out of
court, commonly understood to be the practice of law," which
tells us absolutely nothing. The decision goes on to say that
"because lawyers perform almost every function known in the
commercial and governmental realm, such a definition would
obviously be too global to be workable."
The effect of the definition given in the ponencia is to consider
virtually every lawyer to be engaged in the practice of law even
if he does not earn his living, or at least part of it, as a lawyer. It
is enough that his activities are incidentally (even if only
remotely) connected with some law, ordinance, or regulation.
The possible exception is the lawyer whose income is derived
from teaching ballroom dancing or escorting wrinkled ladies
with pubescent pretensions.
The respondent's credentials are impressive, to be sure, but
they do not persuade me that he has been engaged in the
practice of law for ten years as required by the Constitution. It
is conceded that he has been engaged in business and finance,
in which areas he has distinguished himself, but as an executive
and economist and not as a practicing lawyer. The plain fact is
that he has occupied the various positions listed in his resume
by virtue of his experience and prestige as a businessman and
not as an attorney-at-law whose principal attention is focused
on the law. Even if it be argued that he was acting as a lawyer
when he lobbied in Congress for agrarian and urban reform,
served in the NAMFREL and the Constitutional Commission
(together with non-lawyers like farmers and priests) and was a
member of the Davide Commission, he has not proved that his
activities in these capacities extended over the prescribed 10-
year period of actual practice of the law. He is doubtless
eminently qualified for many other positions worthy of his
abundant talents but not as Chairman of the Commission on
Elections.
I have much admiration for respondent Monsod, no less than
for Mr. Justice Paras, but I must regretfully vote to grant the
petition.
GUTIERREZ, JR., J., dissenting:
When this petition was filed, there was hope that engaging in
the practice of law as a qualification for public office would be
settled one way or another in fairly definitive terms.
Unfortunately, this was not the result.
Of the fourteen (14) member Court, 5 are of the view that Mr.
Christian Monsod engaged in the practice of law (with one of
these 5 leaving his vote behind while on official leave but not
expressing his clear stand on the matter); 4 categorically
stating that he did not practice law; 2 voting in the result
because there was no error so gross as to amount to grave
abuse of discretion; one of official leave with no instructions
left behind on how he viewed the issue; and 2 not taking part
in the deliberations and the decision.
There are two key factors that make our task difficult. First is
our reviewing the work of a constitutional Commission on
Appointments whose duty is precisely to look into the
qualifications of persons appointed to high office. Even if the
Commission errs, we have no power to set aside error. We can
look only into grave abuse of discretion or whimsically and
arbitrariness. Second is our belief that Mr. Monsod possesses
superior qualifications in terms of executive ability, proficiency
in management, educational background, experience in
international banking and finance, and instant recognition by
the public. His integrity and competence are not questioned by
the petitioner. What is before us is compliance with a specific
requirement written into the Constitution.
Inspite of my high regard for Mr. Monsod, I cannot shirk my
constitutional duty. He has never engaged in the practice of
law for even one year. He is a member of the bar but to say
that he has practiced law is stretching the term beyond rational
limits.
A person may have passed the bar examinations. But if he has
not dedicated his life to the law, if he has not engaged in an
activity where membership in the bar is a requirement I fail to
see how he can claim to have been engaged in the practice of extremely limited because he was also working for M.A. and
law. Ph. D. degrees in Economics at the University of Pennsylvania
during that period. How could he practice law in the United
Engaging in the practice of law is a qualification not only for
States while not a member of the Bar there?
COMELEC chairman but also for appointment to the Supreme
Court and all lower courts. What kind of Judges or Justices will The professional life of the respondent follows:
we have if there main occupation is selling real estate,
1.15.1. Respondent Monsod's activities since his passing the
managing a business corporation, serving in fact-finding
Bar examinations in 1961 consist of the following:
committee, working in media, or operating a farm with no
active involvement in the law, whether in Government or 1. 1961-1963: M.A. in Economics (Ph. D. candidate), University
private practice, except that in one joyful moment in the of Pennsylvania
distant past, they happened to pass the bar examinations?
2. 1963-1970: World Bank Group Economist, Industry
The Constitution uses the phrase "engaged in the practice of Department; Operations, Latin American Department; Division
law for at least ten years." The deliberate choice of words Chief, South Asia and Middle East, International Finance
shows that the practice envisioned is active and regular, not Corporation
isolated, occasional, accidental, intermittent, incidental,
3. 1970-1973: Meralco Group Executive of various
seasonal, or extemporaneous. To be "engaged" in an activity
companies, i.e., Meralco Securities Corporation, Philippine
for ten years requires committed participation in something
Petroleum Corporation, Philippine Electric Corporation
which is the result of one's decisive choice. It means that one is
occupied and involved in the enterprise; one is obliged or 4. 1973-1976: Yujuico Group President, Fil-Capital
pledged to carry it out with intent and attention during the ten- Development Corporation and affiliated companies
year period.
5. 1976-1978: Finaciera Manila Chief Executive Officer
I agree with the petitioner that based on the bio-data
6. 1978-1986: Guevent Group of Companies Chief Executive
submitted by respondent Monsod to the Commission on
Officer
Appointments, the latter has not been engaged in the practice
of law for at least ten years. In fact, if appears that Mr. Monsod 7. 1986-1987: Philippine Constitutional Commission
has never practiced law except for an alleged one year period Member
after passing the bar examinations when he worked in his
father's law firm. Even then his law practice must have been
8. 1989-1991: The Fact-Finding Commission on the December
1989 Coup Attempt Member
9. Presently: Chairman of the Board and Chief Executive Officer
of the following companies:
a. ACE Container Philippines, Inc.
b. Dataprep, Philippines
c. Philippine SUNsystems Products, Inc.
d. Semirara Coal Corporation
e. CBL Timber Corporation
Member of the Board of the Following:
a. Engineering Construction Corporation of the Philippines
b. First Philippine Energy Corporation
c. First Philippine Holdings Corporation
d. First Philippine Industrial Corporation
e. Graphic Atelier
f. Manila Electric Company
g. Philippine Commercial Capital, Inc.
h. Philippine Electric Corporation
i. Tarlac Reforestation and Environment Enterprises
j. Tolong Aquaculture Corporation
k. Visayan Aquaculture Corporation
l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)
There is nothing in the above bio-data which even remotely
indicates that respondent Monsod has given the law enough
attention or a certain degree of commitment and participation
as would support in all sincerity and candor the claim of having
engaged in its practice for at least ten years. Instead of working
as a lawyer, he has lawyers working for him. Instead of giving
receiving that legal advice of legal services, he was the
oneadvice and those services as an executive but not as a
lawyer.
The deliberations before the Commission on Appointments
show an effort to equate "engaged in the practice of law" with
the use of legal knowledge in various fields of endeavor such as
commerce, industry, civic work, blue ribbon investigations,
agrarian reform, etc. where such knowledge would be helpful.
I regret that I cannot join in playing fast and loose with a term,
which even an ordinary layman accepts as having a familiar and
customary well-defined meaning. Every resident of this country
who has reached the age of discernment has to know, follow,
or apply the law at various times in his life. Legal knowledge is
useful if not necessary for the business executive, legislator,
mayor, barangay captain, teacher, policeman, farmer,
fisherman, market vendor, and student to name only a few.
And yet, can these people honestly assert that as such, they
are engaged in the practice of law?
The Constitution requires having been "engaged in the practice
of law for at least ten years." It is not satisfied with having been
"a member of the Philippine bar for at least ten years."
Some American courts have defined the practice of law, as
follows:
The practice of law involves not only appearance in court in
connection with litigation but also services rendered out of
court, and it includes the giving of advice or the rendering of
any services requiring the use of legal skill or knowledge, such
as preparing a will, contract or other instrument, the legal
effect of which, under the facts and conditions involved, must
be carefully determined. People ex rel. Chicago Bar Ass'n v.
Tinkoff, 399 Ill. 282, 77 N.E.2d 693; People ex rel. Illinois State
Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176
N.E. 901, and cases cited.
It would be difficult, if not impossible to lay down a formula or
definition of what constitutes the practice of law. "Practicing
law" has been defined as "Practicing as an attorney or
counselor at law according to the laws and customs of our
courts, is the giving of advice or rendition of any sort of service
by any person, firm or corporation when the giving of such
advice or rendition of such service requires the use of any
degree of legal knowledge or skill." Without adopting that
definition, we referred to it as being substantially correct
in People ex rel. Illinois State Bar Ass'n v. People's Stock Yards
State Bank, 344 Ill. 462,176 N.E. 901. (People v. Schafer, 87
N.E. 2d 773, 776)
For one's actions to come within the purview of practice of
law they should not only be activities peculiar to the work of a
lawyer, they should also be performed, habitually, frequently
or customarily, to wit:
xxx xxx xxx
Respondent's answers to questions propounded to him were
rather evasive. He was asked whether or not he ever prepared
contracts for the parties in real-estate transactions where he
was not the procuring agent. He answered: "Very seldom." In
answer to the question as to how many times he had prepared
contracts for the parties during the twenty-one years of his
business, he said: "I have no Idea." When asked if it would be
more than half a dozen times his answer was I suppose. Asked
if he did not recall making the statement to several parties that
he had prepared contracts in a large number of instances, he
answered: "I don't recall exactly what was said." When asked if
he did not remember saying that he had made a practice of
preparing deeds, mortgages and contracts and charging a fee
to the parties therefor in instances where he was not the
broker in the deal, he answered: "Well, I don't believe so, that
is not a practice." Pressed further for an answer as to his
practice in preparing contracts and deeds for parties where he
was not the broker, he finally answered: "I have done about
everything that is on the books as far as real estate is
concerned."
xxx xxx xxx
Respondent takes the position that because he is a real-estate gaming, ... to carry on in practice, or repeated action; to apply,
broker he has a lawful right to do any legal work in connection as a theory, to real life; to exercise, as a profession, trade, art.
with real-estate transactions, especially in drawing of real- etc.; as, to practice law or medicine,' etc...." (State v. Bryan, S.E.
estate contracts, deeds, mortgages, notes and the like. There is 522, 523; Emphasis supplied)
no doubt but that he has engaged in these practices over the
In this jurisdiction, we have ruled that the practice of law
years and has charged for his services in that connection. ...
denotes frequency or a succession of acts. Thus, we stated in
(People v. Schafer, 87 N.E. 2d 773)
the case of People v. Villanueva (14 SCRA 109 [1965]):
xxx xxx xxx
xxx xxx xxx
... An attorney, in the most general sense, is a person
... Practice is more than an isolated appearance, for it consists
designated or employed by another to act in his stead; an
in frequent or customary actions, a succession of acts of the
agent; more especially, one of a class of persons authorized to
same kind. In other words, it is frequent habitual exercise
appear and act for suitors or defendants in legal proceedings.
(State v. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768).
Strictly, these professional persons are attorneys at law, and
Practice of law to fall within the prohibition of statute has been
non-professional agents are properly styled "attorney's in fact;"
interpreted as customarily or habitually holding one's self out
but the single word is much used as meaning an attorney at
to the public, as a lawyer and demanding payment for such
law. A person may be an attorney in facto for another, without
services. ... . (at p. 112)
being an attorney at law. Abb. Law Dict. "Attorney." A public
attorney, or attorney at law, says Webster, is an officer of a It is to be noted that the Commission on Appointment itself
court of law, legally qualified to prosecute and defend actions recognizes habituality as a required component of the meaning
in such court on the retainer of clients. "The principal duties of of practice of law in a Memorandum prepared and issued by it,
an attorney are (1) to be true to the court and to his client; (2) to wit:
to manage the business of his client with care, skill, and
l. Habituality. The term 'practice of law' implies customarilyor
integrity; (3) to keep his client informed as to the state of his
habitually holding one's self out to the public as a lawyer
business; (4) to keep his secrets confided to him as such. ... His
(People v. Villanueva, 14 SCRA 109 citing State v. Bryan, 4 S.E.
rights are to be justly compensated for his services." Bouv. Law
522, 98 N.C. 644) such as when one sends a circular
Dict. tit. "Attorney." The transitive verb "practice," as defined by
announcing the establishment of a law office for the general
Webster, means 'to do or perform frequently, customarily, or
practice of law (U.S. v. Noy Bosque, 8 Phil. 146), or when one
habitually; to perform by a succession of acts, as, to practice
takes the oath of office as a lawyer before a notary public, and
files a manifestation with the Supreme Court informing it of his background, competence, integrity, and dedication, to qualify
intention to practice law in all courts in the country (People v. for such high offices as President, Vice-President, Senator,
De Luna, 102 Phil. 968). Congressman or Governor but the Constitution in prescribing
the specific qualification of having engaged in the practice of
Practice is more than an isolated appearance, for it consists in
law for at least ten (10) years for the position of COMELEC
frequent or customary action, a succession of acts of the same
Chairman has ordered that he may not be confirmed for that
kind. In other words, it is a habitual exercise (People v.
office. The Constitution charges the public respondents no less
Villanueva, 14 SCRA 1 09 citing State v. Cotner, 1 27, p. 1, 87
than this Court to obey its mandate.
Kan, 864)." (Rollo, p. 115)
I, therefore, believe that the Commission on Appointments
xxx xxx xxx
committed grave abuse of discretion in confirming the
While the career as a businessman of respondent Monsod may nomination of respondent Monsod as Chairman of the
have profited from his legal knowledge, the use of such legal COMELEC.
knowledge is incidental and consists of isolated activities which
I vote to GRANT the petition.
do not fall under the denomination of practice of law.
Admission to the practice of law was not required for Bidin, J., dissent
membership in the Constitutional Commission or in the Fact-
Finding Commission on the 1989 Coup Attempt. Any specific
legal activities which may have been assigned to Mr. Monsod
while a member may be likened to isolated transactions of
foreign corporations in the Philippines which do not categorize
the foreign corporations as doing business in the Philippines.
As in the practice of law, doing business also should be active
and continuous. Isolated business transactions or occasional,
incidental and casual transactions are not within the context of
doing business. This was our ruling in the case of Antam
Consolidated, Inc. v. Court of appeals, 143 SCRA 288 [1986]).
Respondent Monsod, corporate executive, civic leader, and
member of the Constitutional Commission may possess the
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-27654 February 18, 1970
IN THE MATTER OF PROCEEDINGS FOR DISCIPLINARY ACTION
AGAINST ATTY. VICENTE RAUL ALMACEN In L-27654, ANTONIO
H. CALERO,
vs.
VIRGINIA Y. YAPTINCHAY.
RESOLUTION
CASTRO, J.:
Before us is Atty. Vicente Raul Almacen's "Petition to Surrender
Lawyer's Certificate of Title," filed on September 25, 1967, in
protest against what he therein asserts is "a great injustice
committed against his client by this Supreme Court." He indicts
this Court, in his own phrase, as a tribunal "peopled by men
who are calloused to our pleas for justice, who ignore without
reasons their own applicable decisions and commit culpable
violations of the Constitution with impunity." His client's he
continues, who was deeply aggrieved by this Court's "unjust
judgment," has become "one of the sacrificial victims before
the altar of hypocrisy." In the same breath that he alludes to
the classic symbol of justice, he ridicules the members of this
Court, saying "that justice as administered by the present
members of the Supreme Court is not only blind, but also deaf
and dumb." He then vows to argue the cause of his client "in
the people's forum," so that "the people may know of the
silent injustice's committed by this Court," and that "whatever
mistakes, wrongs and injustices that were committed must
never be repeated." He ends his petition with a prayer that
... a resolution issue ordering the Clerk of Court to receive the
certificate of the undersigned attorney and counsellor-at-law
IN TRUST with reservation that at any time in the future and in
the event we regain our faith and confidence, we may retrieve
our title to assume the practice of the noblest profession.
He reiterated and disclosed to the press the contents of the
aforementioned petition. Thus, on September 26, 1967,
the Manila Times published statements attributed to him, as
follows:
Vicente Raul Almacen, in an unprecedented petition, said he
did it to expose the tribunal's "unconstitutional and
obnoxious" practice of arbitrarily denying petitions or appeals
without any reason.
Because of the tribunal's "short-cut justice," Almacen deplored,
his client was condemned to pay P120,000, without knowing
why he lost the case.
xxx xxx xxx
There is no use continuing his law practice, Almacen said in this
petition, "where our Supreme Court is composed of men who
are calloused to our pleas for justice, who ignore without
reason their own applicable decisions and commit culpable
violations of the Constitution with impunity.
xxx xxx xxx
He expressed the hope that by divesting himself of his title by
which he earns his living, the present members of the Supreme
Court "will become responsive to all cases brought to its
attention without discrimination, and will purge itself of those
unconstitutional and obnoxious "lack of merit" or "denied
resolutions. (Emphasis supplied)
Atty. Almacen's statement that
... our own Supreme Court is composed of men who are
calloused to our pleas of [sic] justice, who ignore their own
applicable decisions and commit culpable violations of the
Constitution with impunity
was quoted by columnist Vicente Albano Pacis in the issue of
the Manila Chronicle of September 28, 1967. In connection
therewith, Pacis commented that Atty. Almacen had "accused
the high tribunal of offenses so serious that the Court must
clear itself," and that "his charge is one of the constitutional
bases for impeachment."
The genesis of this unfortunate incident was a civil case
entitled Virginia Y. Yaptinchay vs. Antonio H. Calero,1 in which
Atty. Almacen was counsel for the defendant. The trial court,
after due hearing, rendered judgment against his client. On
June 15, 1966 Atty. Almacen received a copy of the decision.
Twenty days later, or on July 5, 1966, he moved for its
reconsideration. He served on the adverse counsel a copy of
the motion, but did not notify the latter of the time and place
of hearing on said motion. Meanwhile, on July 18, 1966, the
plaintiff moved for execution of the judgment. For "lack of
proof of service," the trial court denied both motions. To prove
that he did serve on the adverse party a copy of his first motion
for reconsideration, Atty. Almacen filed on August 17, 1966 a
second motion for reconsideration to which he attached the
required registry return card. This second motion for
reconsideration, however, was ordered withdrawn by the trial
court on August 30, 1966, upon verbal motion of Atty. Almacen
himself, who, earlier, that is, on August 22, 1966, had already
perfected the appeal. Because the plaintiff interposed no
objection to the record on appeal and appeal bond, the trial
court elevated the case to the Court of Appeals.
But the Court of Appeals, on the authority of this Court's
decision in Manila Surety & Fidelity Co., Inc. vs. Batu
Construction & Co., L-16636, June 24, 1965, dismissed the
appeal, in the following words:
Upon consideration of the motion dated March 27, 1967, filed
by plaintiff-appellee praying that the appeal be dismissed, and
of the opposition thereto filed by defendant-appellant; the
Court RESOLVED TO DISMISS, as it hereby dismisses, the
appeal, for the reason that the motion for reconsideration
dated July 5, 1966 (pp. 90-113, printed record on appeal) does
not contain a notice of time and place of hearing thereof and
is, therefore, a useless piece of paper (Manila Surety & Fidelity
Co., Inc. vs. Batu Construction & Co., G.R. No. L-16636, June 24,
1965), which did not interrupt the running of the period to
appeal, and, consequently, the appeal was perfected out of
time.
Atty. Almacen moved to reconsider this resolution, urging
that Manila Surety & Fidelity Co. is not decisive. At the same
time he filed a pleading entitled "Latest decision of the
Supreme Court in Support of Motion for Reconsideration,"
citing Republic of the Philippines vs. Gregorio A. Venturanza, L-
20417, decided by this Court on May 30, 1966, as the
applicable case. Again, the Court of Appeals denied the motion
for reconsideration, thus:
Before this Court for resolution are the motion dated May 9,
1967 and the supplement thereto of the same date filed by
defendant- appellant, praying for reconsideration of the
resolution of May 8, 1967, dismissing the appeal.
Appellant contends that there are some important distinctions
between this case and that of Manila Surety and Fidelity Co.,
Inc. vs. Batu Construction & Co., G.R. No. L- 16636, June 24,
1965, relied upon by this Court in its resolution of May 8, 1967.
Appellant further states that in the latest case, Republic vs.
Venturanza, L-20417, May 30, 1966, decided by the Supreme
Court concerning the question raised by appellant's motion,
the ruling is contrary to the doctrine laid down in the Manila
Surety & Fidelity Co., Inc. case.
There is no substantial distinction between this case and that
of Manila Surety & Fidelity Co.
In the case of Republic vs. Venturanza, the resolution denying
the motion to dismiss the appeal, based on grounds similar to
those raised herein was issued on November 26, 1962, which
was much earlier than the date of promulgation of the decision
in the Manila Surety Case, which was June 24, 1965. Further,
the resolution in the Venturanza case was interlocutory and
the Supreme Court issued it "without prejudice to appellee's
restoring the point in the brief." In the main decision in said
case (Rep. vs. Venturanza the Supreme Court passed upon the
issue sub silencio presumably because of its prior decisions
contrary to the resolution of November 26, 1962, one of which
is that in the Manila Surety and Fidelity case.
Therefore Republic vs. Venturanza is no authority on the
matter in issue.
Atty. Almacen then appealed to this Court by certiorari. We
refused to take the case, and by minute resolution denied the
appeal. Denied shortly thereafter was his motion for
reconsideration as well as his petition for leave to file a second
motion for reconsideration and for extension of time. Entry of
judgment was made on September 8, 1967. Hence, the second
motion for reconsideration filed by him after the Said date was
ordered expunged from the records.
It was at this juncture that Atty. Almacen gave vent to his
disappointment by filing his "Petition to Surrender Lawyer's
Certificate of Title," already adverted to a pleading that is
interspersed from beginning to end with the insolent
contemptuous, grossly disrespectful and derogatory remarks
hereinbefore reproduced, against this Court as well as its
individual members, a behavior that is as unprecedented as it is
unprofessional.
Nonetheless we decided by resolution dated September 28,
1967 to withhold action on his petition until he shall have
actually surrendered his certificate. Patiently, we waited for
him to make good his proffer. No word came from him. So he
was reminded to turn over his certificate, which he had earlier
vociferously offered to surrender, so that this Court could act
on his petition. To said reminder he manifested "that he has no
pending petition in connection with Case G.R. No. L-
27654, Calero vs. Yaptinchay, said case is now final and
executory;" that this Court's September 28, 1967 resolution did
not require him to do either a positive or negative act; and that
since his offer was not accepted, he "chose to pursue the
negative act."
In the exercise of its inherent power to discipline a member of
the bar for contumely and gross misconduct, this Court on
November 17, 1967 resolved to require Atty. Almacen to show
cause "why no disciplinary action should be taken against him."
Denying the charges contained in the November 17 resolution,
he asked for permission "to give reasons and cause why no
disciplinary action should be taken against him ... in an open
and public hearing." This Court resolved (on December 7) "to
require Atty. Almacen to state, within five days from notice
hereof, his reasons for such request, otherwise, oral argument
shall be deemed waived and incident submitted for decision."
To this resolution he manifested that since this Court is "the
complainant, prosecutor and Judge," he preferred to be heard
and to answer questions "in person and in an open and public
hearing" so that this Court could observe his sincerity and
candor. He also asked for leave to file a written explanation "in
the event this Court has no time to hear him in person." To give
him the ampliest latitude for his defense, he was allowed to file
a written explanation and thereafter was heard in oral
argument.
His written answer, as undignified and cynical as it is
unchastened, offers -no apology. Far from being contrite Atty.
Almacen unremittingly repeats his jeremiad of lamentations,
this time embellishing it with abundant sarcasm and innuendo.
Thus:
At the start, let me quote passages from the Holy Bible,
Chapter 7, St. Matthew:
"Do not judge, that you may not be judged. For with what
judgment you judge, you shall be judged, and with what
measure you measure, it shall be measured to you. But why
dost thou see the speck in thy brother's eye, and yet dost not
consider the beam in thy own eye? Or how can thou say to thy
brother, "Let me cast out the speck from thy eye"; and behold,
there is a beam in thy own eye? Thou hypocrite, first cast out
the beam from thy own eye, and then thou wilt see clearly to
cast out the speck from thy brother's eyes."
"Therefore all that you wish men to do to you, even to do you
also to them: for this is the Law and the Prophets."
xxx xxx xxx
Your respondent has no intention of disavowing the
statements mentioned in his petition. On the contrary, he
refirms the truth of what he stated, compatible with his
lawyer's oath that he will do no falsehood, nor consent to the
doing of any in court. But he vigorously DENY under oath that
the underscored statements contained in the CHARGE are
insolent, contemptuous, grossly disrespectful and derogatory
to the individual members of the Court; that they tend to bring
the entire Court, without justification, into disrepute; and
constitute conduct unbecoming of a member of the noble
profession of law.
xxx xxx xxx
Respondent stands four-square that his statement is borne by
TRUTH and has been asserted with NO MALICE BEFORE AND
AFTER THOUGHT but mainly motivated with the highest
interest of justice that in the particular case of our client, the
members have shown callousness to our various pleas for
JUSTICE, our pleadings will bear us on this matter, ...
xxx xxx xxx
To all these beggings, supplications, words of humility, appeals
for charity, generosity, fairness, understanding, sympathy and
above all in the highest interest of JUSTICE, what did we get
from this COURT? One word, DENIED, with all its hardiness and
insensibility. That was the unfeeling of the Court towards our
pleas and prayers, in simple word, it is plain callousness
towards our particular case.
xxx xxx xxx
Now that your respondent has the guts to tell the members of
the Court that notwithstanding the violation of the
Constitution, you remained unpunished, this Court in the
reverse order of natural things, is now in the attempt to inflict
punishment on your respondent for acts he said in good faith.
Did His Honors care to listen to our pleadings and supplications
for JUSTICE, CHARITY, GENEROSITY and FAIRNESS? Did His
Honors attempt to justify their stubborn denial with any
semblance of reason, NEVER. Now that your respondent is
given the opportunity to face you, he reiterates the same
statement with emphasis, DID YOU? Sir. Is this. the way of life
in the Philippines today, that even our own President, said:
"the story is current, though nebulous ,is to its truth, it is still
being circulated that justice in the Philippines today is not what
it is used to be before the war. There are those who have told
me frankly and brutally that justice is a commodity, a
marketable commodity in the Philippines."
xxx xxx xxx
We condemn the SIN, not the SINNER. We detest the ACTS, not
the ACTOR. We attack the decision of this Court, not the
members. ... We were provoked. We were compelled by force
of necessity. We were angry but we waited for the finality of
the decision. We waited until this Court has performed its
duties. We never interfered nor obstruct in the performance of
their duties. But in the end, after seeing that the Constitution
has placed finality on your judgment against our client and
sensing that you have not performed your duties with
"circumspection, carefulness, confidence and wisdom", your
Respondent rise to claim his God given right to speak the truth
and his Constitutional right of free speech.
xxx xxx xxx
The INJUSTICES which we have attributed to this Court and the
further violations we sought to be prevented is impliedly
shared by our President. ... .
xxx xxx xxx
What has been abhored and condemned, are the very things
that were applied to us. Recalling Madam Roland's famous
apostrophe during the French revolution, "O Liberty, what
crimes are committed in thy name", we may dare say, "O
JUSTICE, what technicalities are committed in thy name' or
more appropriately, 'O JUSTICE, what injustices are committed
in thy name."
xxx xxx xxx
We must admit that this Court is not free from commission of
any abuses, but who would correct such abuses considering
that yours is a court of last resort. A strong public opinion must
be generated so as to curtail these abuses.
xxx xxx xxx
The phrase, Justice is blind is symbolize in paintings that can be
found in all courts and government offices. We have added
only two more symbols, that it is also deaf and dumb. Deaf in
the sense that no members of this Court has ever heard our
cries for charity, generosity, fairness, understanding sympathy
and for justice; dumb in the sense, that inspite of our beggings,
supplications, and pleadings to give us reasons why our appeal
has been DENIED, not one word was spoken or given ... We
refer to no human defect or ailment in the above statement.
We only describe the. impersonal state of things and nothing
more.
xxx xxx xxx
As we have stated, we have lost our faith and confidence in the
members of this Court and for which reason we offered to
surrender our lawyer's certificate, IN TRUST ONLY. Because
what has been lost today may be regained tomorrow. As the
offer was intended as our self-imposed sacrifice, then we alone
may decide as to when we must end our self-sacrifice. If we
have to choose between forcing ourselves to have faith and
confidence in the members of the Court but disregard our
Constitution and to uphold the Constitution and be
condemned by the members of this Court, there is no choice,
we must uphold the latter.
But overlooking, for the nonce, the vituperative chaff which he
claims is not intended as a studied disrespect to this Court, let
us examine the grain of his grievances.
He chafes at the minute resolution denial of his petition for
review. We are quite aware of the criticisms2 expressed against
this Court's practice of rejecting petitions by minute
resolutions. We have been asked to do away with it, to state
the facts and the law, and to spell out the reasons for denial.
We have given this suggestion very careful thought. For we
know the abject frustration of a lawyer who tediously collates
the facts and for many weary hours meticulously marshalls his
arguments, only to have his efforts rebuffed with a terse
unadorned denial. Truth to tell, however, most petitions
rejected by this Court are utterly frivolous and ought never to
have been lodged at all.3 The rest do exhibit a first-impression
cogency, but fail to, withstand critical scrutiny. By and large,
this Court has been generous in giving due course to petitions
for certiorari.
Be this as it may, were we to accept every case or write a full
opinion for every petition we reject, we would be unable to
carry out effectively the burden placed upon us by the
Constitution. The proper role of the Supreme Court, as Mr.
Chief Justice Vinson of the U.S. Supreme Court has defined it, is
to decide "only those cases which present questions whose
resolutions will have immediate importance beyond the
particular facts and parties involved." Pertinent here is the
observation of Mr. Justice Frankfurter in Maryland vs.
Baltimore Radio Show, 94 L. ed 562, 566:
A variety of considerations underlie denials of the writ, and as
to the same petition different reasons may read different
justices to the same result ... .
Since there are these conflicting, and, to the uninformed, even
confusing reasons for denying petitions for certiorari, it has
been suggested from time to time that the Court indicate its
reasons for denial. Practical considerations preclude. In order
that the Court may be enabled to discharge its indispensable
duties, Congress has placed the control of the Court's business,
in effect, within the Court's discretion. During the last three
terms the Court disposed of 260, 217, 224 cases, respectively,
on their merits. For the same three terms the Court denied,
respectively, 1,260, 1,105,1,189 petitions calling for
discretionary review. If the Court is to do its work it would not
be feasible to give reasons, however brief, for refusing to take
these cases. The tune that would be required is prohibitive.
Apart from the fact that as already indicated different reasons
not infrequently move different members of the Court in
concluding that a particular case at a particular time makes
review undesirable.
Six years ago, in Novino, et al., vs. Court of Appeals, et
al., 1,21098, May 31, 1963 (60 O.G. 8099), this Court, through
the then Chief Justice Cesar Bengzon, articulated its considered
view on this matter. There, the petitioners counsel urged that a
"lack of merit" resolution violates Section 12 of Article VIII of
the Constitution. Said Chief Justice Bengzon:
In connection with identical short resolutions, the same
question has been raised before; and we held that these
"resolutions" are not "decisions" within the above
constitutional requirement. They merely hold that the petition
for review should not be entertained in view of the provisions
of Rule 46 of the Rules of Court; and even ordinary lawyers
have all this time so understood it. It should be remembered
that a petition to review the decision of the Court of Appeals is
not a matter of right, but of sound judicial discretion; and so
there is no need to fully explain the court's denial. For one
thing, the facts and the law are already mentioned in the Court
of Appeals' opinion.
By the way, this mode of disposal has as intended helped
the Court in alleviating its heavy docket; it was patterned after
the practice of the U.S. Supreme Court, wherein petitions for
review are often merely ordered "dismissed".
We underscore the fact that cases taken to this Court on
petitions for certiorari from the Court of Appeals have had the
benefit of appellate review. Hence, the need for compelling
reasons to buttress such petitions if this Court is to be moved
into accepting them. For it is axiomatic that the supervisory
jurisdiction vested upon this Court over the Court of Appeals is
not intended to give every losing party another hearing. This
axiom is implied in sec. 4 of Rule 45 of the Rules of Court which
recites:
Review of Court of Appeals' decision discretionary.A review is
not a matter of right but of sound judicial discretion, and will
be granted only when there are special and important reasons
therefor. The following, while neither controlling nor fully
measuring the court's discretion, indicate the character of
reasons which will be considered:
(a) When the Court of Appeals has decided a question of
substance, not theretofore determined by the Supreme Court,
nor has decided it in a way probably not in accord with law or
with the applicable decisions of the Supreme Court;
(b) When the Court of Appeals has so far departed from the
accepted and usual course of judicial proceedings, or so far
sanctioned such departure by the lower court, as to call for the
exercise of the power of supervision.
Recalling Atty. Almacen's petition for review, we found, upon a
thoroughgoing examination of the pleadings. and records, that
the Court of Appeals had fully and correctly considered the
dismissal of his appeal in the light of the law and applicable
decisions of this Court. Far from straying away from the
"accepted and usual course of judicial proceedings," it traced
the procedural lines etched by this Court in a number of
decisions. There was, therefore, no need for this Court to
exercise its supervisory power.
As a law practitioner who was admitted to the Bar as far back
as 1941, Atty. Almacen knew or ought to have known
that for a motion for reconsideration to stay the running of the
period of appeal, the movant must not only serve a copy of the
motion upon the adverse party (which he did), but also notify
the adverse party of the time and place of hearing (which
admittedly he did not). This rule was unequivocally articulated
in Manila Surety & Fidelity vs. Batu Construction & Co., supra:
The written notice referred to evidently is prescribed for
motions in general by Rule 15, Sections 4 and 5 (formerly Rule
26), which provides that such notice shall state the time, and
place of hearing and shall be served upon all the Parties
concerned at least three days in advance. And according to
Section 6 of the same Rule no motion shall be acted upon by
the court without proof of such notice. Indeed it has been held
that in such a case the motion is nothing but a useless piece of
paper (Philippine National Bank v. Damasco, I,18638, Feb. 28,
1963; citing Manakil v. Revilla, 42 Phil. 81; Roman Catholic
Bishop of Lipa v. Municipality of Unisan, 41 Phil. 866; and
Director of Lands vs. Sanz, 45 Phil. 117). The reason is obvious:
Unless the movant sets the time and place of hearing the Court
would have no way to determine whether that party agrees to
or objects to the motion, and if he objects, to hear him on his
objection, since the Rules themselves do not fix any period
within which he may file his reply or opposition.
If Atty. Almacen failed to move the appellate court to review
the lower court's judgment, he has only himself to blame. His
own negligence caused the forfeiture of the remedy of appeal,
which, incidentally, is not a matter of right. To shift away from
himself the consequences of his carelessness, he looked for a
"whipping boy." But he made sure that he assumed the
posture of a martyr, and, in offering to surrender his
professional certificate, he took the liberty of vilifying this
Court and inflicting his exacerbating rancor on the members
thereof. It would thus appear that there is no justification for
his scurrilous and scandalous outbursts.
Nonetheless we gave this unprecedented act of Atty. Almacen
the most circumspect consideration. We know that it is natural
for a lawyer to express his dissatisfaction each time he loses
what he sanguinely believes to be a meritorious case. That is
why lawyers are given 'wide latitude to differ with, and voice
their disapproval of, not only the courts' rulings but, also the
manner in which they are handed down.
Moreover, every citizen has the right to comment upon and
criticize the actuations of public officers. This right is not
diminished by the fact that the criticism is aimed at a judicial
authority,4 or that it is articulated by a lawyer.5 Such right is
especially recognized where the criticism concerns a concluded
litigation,6 because then the court's actuations are thrown
open to public consumption.7 "Our decisions and all our official
actions," said the Supreme Court of Nebraska,8 "are public
property, and the press and the people have the undoubted
right to comment on them, criticize and censure them as they
see fit. Judicial officers, like other public servants, must answer
for their official actions before the chancery of public opinion."
The likely danger of confusing the fury of human reaction to an
attack on one's integrity, competence and honesty, with
"imminent danger to the administration of justice," is the
reason why courts have been loath to inflict punishment on
those who assail their actuations.9 This danger lurks especially
in such a case as this where those who Sit as members of an
entire Court are themselves collectively the aggrieved parties.
Courts thus treat with forbearance and restraint a lawyer who
vigorously assails their actuations. 10 For courageous and
fearless advocates are the strands that weave durability into
the tapestry of justice. Hence, as citizen and officer of the
court, every lawyer is expected not only to exercise the right,
but also to consider it his duty to expose the shortcomings and
indiscretions of courts and judges. 11
Courts and judges are not sacrosanct. 12 They should and
expect critical evaluation of their performance. 13 For like the
executive and the legislative branches, the judiciary is rooted in
the soil of democratic society, nourished by the periodic
appraisal of the citizens whom it is expected to serve.
Well-recognized therefore is the right of a lawyer, both as an
officer of the court and as a citizen, to criticize in properly
respectful terms and through legitimate channels the acts of
courts and judges. The reason is that
An attorney does not surrender, in assuming the important
place accorded to him in the administration of justice, his right
as a citizen to criticize the decisions of the courts in a fair and
respectful manner, and the independence of the bar, as well as
of the judiciary, has always been encouraged by the courts. (In
re Ades, 6 F Supp. 487) .
Criticism of the courts has, indeed, been an important part of
the traditional work of the bar. In the prosecution of appeals,
he points out the errors of lower courts. In written for law
journals he dissects with detachment the doctrinal
pronouncements of courts and fearlessly lays bare for -all to
see that flaws and inconsistence" of the doctrines (Hill v.
Lyman, 126 NYS 2d 286). As aptly stated by Chief Justice
Sharswood in Ex Parte Steinman, 40 Am. Rep. 641:
No class of the community ought to be allowed freer scope in
the expansion or publication of opinions as to the capacity,
impartiality or integrity of judges than members of the bar.
They have the best opportunities for observing and forming a
correct judgment. They are in constant attendance on the
courts. ... To say that an attorney can only act or speak on this
subject under liability to be called to account and to be
deprived of his profession and livelihood, by the judge or
judges whom he may consider it his duty to attack and expose,
is a position too monstrous to be
entertained. ... .
Hence, as a citizen and as Officer of the court a lawyer is
expected not only to exercise the right, but also to consider it
his duty to avail of such right. No law may abridge this right.
Nor is he "professionally answerable for a scrutiny into the
official conduct of the judges, which would not expose him to
legal animadversion as a citizen." (Case of Austin, 28 Am. Dee.
657, 665).
Above all others, the members of the bar have the beat
Opportunity to become conversant with the character and
efficiency of our judges. No class is less likely to abuse the
privilege, as no other class has as great an interest in the
preservation of an able and upright bench. (State Board of
Examiners in Law v. Hart, 116 N.W. 212, 216)
To curtail the right of a lawyer to be critical of the foibles of
courts and judges is to seal the lips of those in the best position
to give advice and who might consider it their duty to speak
disparagingly. "Under such a rule," so far as the bar is
concerned, "the merits of a sitting judge may be rehearsed, but
as to his demerits there must be profound silence." (State v.
Circuit Court, 72 N.W. 196)
But it is the cardinal condition of all such criticism that it shall
be bona fide, and shall not spill over the walls of decency and
propriety. A wide chasm exists between fair criticism, on the
One hand, and abuse and slander of courts and the judges
thereof, on the other. Intemperate and unfair criticism is a
gross violation of the duty of respect to courts. It is Such a
misconduct that subjects a lawyer to disciplinary action.
For, membership in the Bar imposes upon a person obligations
and duties which are not mere flux and ferment. His investiture
into the legal profession places upon his shoulders no burden
more basic, more exacting and more imperative than that of
respectful behavior toward the courts. He vows solemnly to
conduct himself "with all good fidelity ... to the courts; 14 and
the Rules of Court constantly remind him "to observe and
maintain the respect due to courts of justice and judicial
officers." 15 The first canon of legal ethics enjoins him "to
maintain towards the courts a respectful attitude, not for the
sake of the temporary incumbent of the judicial office, but for
the maintenance of its supreme importance."
As Mr. Justice Field puts it:
... the obligation which attorneys impliedly assume, if they do
not by express declaration take upon themselves, when they
are admitted to the Bar, is not merely to be obedient to the
Constitution and laws, but to maintain at all times the respect
due to courts of justice and judicial officers. This obligation is
not discharged by merely observing the rules of courteous
demeanor in open court, but includes abstaining out of court
from all insulting language and offensive conduct toward
judges personally for their judicial acts. (Bradley, v. Fisher, 20
Law. 4d. 647, 652)
The lawyer's duty to render respectful subordination to the
courts is essential to the orderly administration of justice.
Hence, in the assertion of their clients' rights, lawyers
even those gifted with superior intellect are enjoined to rein up
their tempers.
The counsel in any case may or may not be an abler or more
learned lawyer than the judge, and it may tax his patience and
temper to submit to rulings which he regards as incorrect, but
discipline and self-respect are as necessary to the orderly
administration of justice as they are to the effectiveness of an
army. The decisions of the judge must be obeyed, because he
is the tribunal appointed to decide, and the bar should at all
times be the foremost in rendering respectful submission. (In
Re Scouten, 40 Atl. 481)
We concede that a lawyer may think highly of his intellectual
endowment That is his privilege. And he may suffer frustration
at what he feels is others' lack of it. That is his misfortune.
Some such frame of mind, however, should not be allowed to
harden into a belief that he may attack a court's decision in
words calculated to jettison the time-honored aphorism that
courts are the temples of right. (Per Justice Sanchez in Rheem
of the Philippines vs. Ferrer, L-22979. June 26, 1967)
In his relations with the courts, a lawyer may not divide his
personality so as to be an attorney at one time and a mere
citizen at another. Thus, statements made by an attorney in
private conversations or communications 16 or in the course of
a political, campaign, 17 if couched in insulting language as to
bring into scorn and disrepute the administration of justice,
may subject the attorney to disciplinary action.
Of fundamental pertinence at this juncture is an examination
of relevant parallel precedents.
1. Admitting that a "judge as a public official is neither
sacrosanct nor immune to public criticism of his conduct in
office," the Supreme Court of Florida in State v. Calhoon, 102
So. 2d 604, 608, nevertheless declared that "any conduct of a
lawyer which brings into scorn and disrepute the
administration of justice demands condemnation and the
application of appropriate penalties," adding that:
It would be contrary to, every democratic theory to hold that a
judge or a court is beyond bona fide comments and criticisms
which do not exceed the bounds of decency and truth or which
are not aimed at. the destruction of public confidence in the
judicial system as such. However, when the likely impairment
of the administration of justice the direct product of false and
scandalous accusations then the rule is otherwise.
2. In In Re Glenn, 130 N.W. 2d 672, an attorney was suspended
for putting out and circulating a leaflet entitled "JUSTICE??? IN
OTUMWA," which accused a municipal judge of having
committed judicial error, of being so prejudiced as to deny his
clients a fair trial on appeal and of being subject to the control
of a group of city officials. As a prefatory statement he wrote:
"They say that Justice is BLIND, but it took Municipal Judge
Willard to prove that it is also DEAF and DUMB!" The court did
not hesitate to find that the leaflet went much further than the
accused, as a lawyer, had a right to do.
The entire publication evidences a desire on the part Of the
accused to belittle and besmirch the court and to bring it into
disrepute with the general public.
3. In In Re Humphrey, 163 Pac. 60, the Supreme Court of
California affirmed the two-year suspension of an attorney who
published a circular assailing a judge who at that time was a
candidate for re-election to a judicial office. The circular which
referred to two decisions of the judge concluded with a
statement that the judge "used his judicial office to enable -
said bank to keep that money." Said the court:
We are aware that there is a line of authorities which place no
limit to the criticism members of the bar may make regarding
the capacity, impartiality, or integrity of the courts, even
though it extends to the deliberate publication by the attorney
capable of correct reasoning of baseless insinuations against
the intelligence and integrity of the highest courts. See State
Board, etc. v. Hart. 116 N.W. 212, 17 LRA (N.S.) 585, 15 Ann
Cas 197 and note: Ex parte Steinman 95 Pac. 220, 40 Am. Rep.
637. In the first case mentioned it was observed, for instance:
"It may be (although we do not so decide) that a libelous
publication by an attorney, directed against a judicial officer,
could be so vile and of such a nature as to justify the
disbarment of its author."
Yet the false charges made by an attorney in that case were of
graver character than those made by the respondent here. But,
in our view, the better rule is that which requires of those who
are permitted to enjoy the privilege of practicing law the
strictest observance at all times of the principles of truth,
honesty and fairness, especially in their criticism of the courts,
to the end that the public confidence in the due administration
of justice be upheld, and the dignity and usefulness of the
courts be maintained. In re Collins, 81 Pac. 220.
4. In People ex rel Chicago Bar Asso. v. Metzen, 123 N.E. 734,
an attorney, representing a woman who had been granted a
divorce, attacked the judge who set aside the decree on bill of
review. He wrote the judge a threatening letter and gave the
press the story of a proposed libel suit against the judge and
others. The letter began:
Unless the record in In re Petersen v. Petersen is cleared up so
that my name is protected from the libel, lies, and perjury
committed in the cases involved, I shall be compelled to resort
to such drastic action as the law allows and the case warrants.
Further, he said: "However let me assure you I do not intend to
allow such dastardly work to go unchallenged," and said that
he was engaged in dealing with men and not irresponsible
political manikins or appearances of men. Ordering the
attorney's disbarment, the Supreme Court of Illinois declared:
... Judges are not exempt from just criticism, and whenever
there is proper ground for serious complaint against a judge, it
is the right and duty of a lawyer to submit his grievances to the
proper authorities, but the public interest and the
administration of the law demand that the courts should have
the confidence and respect of the people. Unjust criticism,
insulting language, and offensive conduct toward the judges
personally by attorneys, who are officers of the court, which
tend to bring the courts and the law into disrepute and to
destroy public confidence in their integrity, cannot be
permitted. The letter written to the judge was plainly an
attempt to intimidate and influence him in the discharge of
judicial functions, and the bringing of the unauthorized suit,
together with the write-up in the Sunday papers, was intended
and calculated to bring the court into disrepute with the public.
5. In a public speech, a Rhode Island lawyer accused the courts
of the state of being influenced by corruption and greed, saying
that the seats of the Supreme Court were bartered. It does not
appear that the attorney had criticized any of the opinions or
decisions of the Court. The lawyer was charged with
unprofessional conduct, and was ordered suspended for a
period of two years. The Court said:
A calumny of that character, if believed, would tend to weaken
the authority of the court against whose members it was
made, bring its judgments into contempt, undermine its
influence as an unbiased arbiter of the people's right, and
interfere with the administration of justice. ...
Because a man is a member of the bar the court will not, under
the guise of disciplinary proceedings, deprive him of any part of
that freedom of speech which he possesses as a citizen. The
acts and decisions of the courts of this state, in cases that have
reached final determination, are not exempt from fair and
honest comment and criticism. It is only when an attorney
transcends the limits of legitimate criticism that he will be held
responsible for an abuse of his liberty of speech. We well
understand that an independent bar, as well as independent
court, is always a vigilant defender of civil rights. In Re Troy,
111 Atl. 723. 725.
6. In In Re Rockmore, 111 NYS 879, an attorney was suspended
for six months for submitting to an appellate court an affidavit
reflecting upon the judicial integrity of the court from which
the appeal was taken. Such action, the Court said, constitutes
unprofessional conduct justifying suspension from practice,
notwithstanding that he fully retracted and withdrew the
statements, and asserted that the affidavit was the result of an
impulse caused by what he considered grave injustice. The
Court said:
We cannot shut our eyes to the fact that there is a growing
habit in the profession of criticising the motives and integrity of
judicial officers in the discharge of their duties, and thereby
reflecting on the administration of justice and creating the
impression that judicial action is influenced by corrupt or
improper motives. Every attorney of this court, as well as every
other citizen, has the right and it is his duty, to submit charges
to the authorities in whom is vested the power to remove
judicial officers for any conduct or act of a judicial officer that
tends to show a violation of his duties, or would justify an
inference that he is false to his trust, or has improperly
administered the duties devolved upon him; and such charges
to the tribunal, if based upon reasonable inferences, will be
encouraged, and the person making them
protected. ... While we recognize the inherent right of an
attorney in a case decided against him, or the right of the
Public generally, to criticise the decisions of the courts, or the
reasons announced for them, the habit of criticising the
motives of judicial officers in the performance of their official
duties, when the proceeding is not against the officers whose
acts or motives are criticised, tends to subvert the confidence
of the community in the courts of justice and in the
administration of justice; and when such charges are made by
officers of the courts, who are bound by their duty to protect
the administration of justice, the attorney making such charges
is guilty of professional misconduct.
7. In In Re Mitchell, 71 So. 467, a lawyer published this
statement:
I accepted the decision in this case, however, with patience,
barring possible temporary observations more or less
vituperative and finally concluded, that, as my clients were
foreigners, it might have been expecting too much to look for a
decision in their favor against a widow residing here.
The Supreme Court of Alabama declared that:
... the expressions above set out, not only transcend the
bounds of propriety and privileged criticism, but are an
unwarranted attack, direct, or by insinuation and innuendo,
upon the motives and integrity of this court, and make out
a prima facie case of improper conduct upon the part of a
lawyer who holds a license from this court and who is under
oath to demean himself with all good fidelity to the court as
well as to his client.
The charges, however, were dismissed after the attorney
apologized to the Court.
8. In State ex rel. Dabney v. Breckenridge, 258 Pac. 747, an
attorney published in a newspaper an article in which he
impugned the motives of the court and its members to try a
case, charging the court of having arbitrarily and for a sinister
purpose undertaken to suspend the writ of habeas corpus. The
Court suspended the respondent for 30 days, saying that:
The privileges which the law gives to members of the bar is one
most subversive of the public good, if the conduct of such
members does not measure up to the requirements of the law
itself, as well as to the ethics of the profession. ...
The right of free speech and free discussion as to judicial
determination is of prime importance under our system and
ideals of government. No right thinking man would concede for
a moment that the best interest to private citizens, as well as
to public officials, whether he labors in a judicial capacity or
otherwise, would be served by denying this right of free speech
to any individual. But such right does not have as its corollary
that members of the bar who are sworn to act honestly and
honorably both with their client and with the courts where
justice is administered, if administered at all, could ever
properly serve their client or the public good by designedly
misstating facts or carelessly asserting the law. Truth and
honesty of purpose by members of the bar in such discussion is
necessary. The health of a municipality is none the less
impaired by a polluted water supply than is the health of the
thought of a community toward the judiciary by the filthy
wanton, and malignant misuse of members of the bar of the
confidence the public, through its duly established courts, has
reposed in them to deal with the affairs of the private
individual, the protection of whose rights he lends his strength
and money to maintain the judiciary. For such conduct on the
part of the members of the bar the law itself demands
retribution not the court.
9. In Bar Ass'n of San Francisco v. Philbrook, 170 Pac. 440, the
filing of an affidavit by an attorney in a pending action using in
respect to the several judges the terms criminal corrupt, and
wicked conspiracies,," "criminal confederates," "colossal and
confident insolence," "criminal prosecution," "calculated
brutality," "a corrupt deadfall," and similar phrases, was
considered conduct unbecoming of a member of the bar, and
the name of the erring lawyer was ordered stricken from the
roll of attorneys.
10. In State Board of Examiners v. Hart, 116 N.W. 215, the
erring attorney claimed that greater latitude should be allowed
in case of criticism of cases finally adjudicated than in those
pending. This lawyer wrote a personal letter to the Chief
Justice of the Supreme Court of Minnesota impugning both the
intelligence and the integrity of the said Chief Justice and his
associates in the decisions of certain appeals in which he had
been attorney for the defeated litigants. The letters were
published in a newspaper. One of the letters contained this
paragraph:
You assigned it (the property involved) to one who has no
better right to it than the burglar to his plunder. It seems like
robbing a widow to reward a fraud, with the court acting as a
fence, or umpire, watchful and vigilant that the widow got no
undue
advantage. ... The point is this: Is a proper motive for the
decisions discoverable, short of assigning to the court
emasculated intelligence, or a constipation of morals and
faithlessness to duty? If the state bar association, or a
committee chosen from its rank, or the faculty of the
University Law School, aided by the researches of its hundreds
of bright, active students, or if any member of the court, or any
other person, can formulate a statement of a correct motive
for the decision, which shall not require fumigation before it is
stated, and quarantine after it is made, it will gratify every
right-minded citizen of the state to read it.
The Supreme Court of Minnesota, in ordering the suspension
of the attorney for six months, delivered its opinion as follows:
The question remains whether the accused was guilty of
professional misconduct in sending to the Chief Justice the
letter addressed to him. This was done, as we have found, for
the very purpose of insulting him and the other justices of this
court; and the insult was so directed to the Chief Justice
personally because of acts done by him and his associates in
their official capacity. Such a communication, so made, could
never subserve any good purpose. Its only effect in any case
would be to gratify the spite of an angry attorney and humiliate
the officers so assailed. It would not and could not ever
enlighten the public in regard to their judicial capacity or
integrity. Nor was it an exercise by the accused of any
constitutional right, or of any privilege which any reputable
attorney, uninfluenced by passion, could ever have any
occasion or desire to assert. No judicial officer, with due regard
to his position, can resent such an insult otherwise than by
methods sanctioned by law; and for any words, oral or written,
however abusive, vile, or indecent, addressed secretly to the
judge alone, he can have no redress in any action triable by a
jury. "The sending of a libelous communication or libelous
matter to the person defamed does not constitute an
actionable publication." 18 Am. & Eng. Enc. Law (2d Ed.) p.
1017. In these respects the sending by the accused of this
letter to the Chief Justice was wholly different from his other
acts charged in the accusation, and, as we have said, wholly
different principles are applicable thereto.
The conduct of the accused was in every way discreditable; but
so far as he exercised the rights of a citizen, guaranteed by the
Constitution and sanctioned by considerations of public policy,
to which reference has been made, he was immune, as we
hold, from the penalty here sought to be enforced. To that
extent his rights as a citizen were paramount to the obligation
which he had assumed as an officer of this court. When,
however he proceeded and thus assailed the Chief Justice
personally, he exercised no right which the court can
recognize, but, on the contrary, willfully violated his obligation
to maintain the respect due to courts and judicial officers. "This
obligation is not discharged by merely observing the rules of
courteous demeanor in open court, but it includes abstaining
out of court from all insulting language and offensive conduct
toward the judges personally for their official acts." Bradley v.
Fisher, 13 Wall. (U.S.) 355, 20 L. Ed. 646. And there appears to
be no distinction, as regards the principle involved, between
the indignity of an assault by an attorney upon a judge,
induced by his official act, and a personal insult for like cause
by written or spoken words addressed to the judge in his
chambers or at his home or elsewhere. Either act constitutes
misconduct wholly different from criticism of judicial acts
addressed or spoken to others. The distinction made is, we
think entirely logical and well sustained by authority. It was
recognized in Ex parte McLeod supra. While the court in that
case, as has been shown, fully sustained the right of a citizen to
criticise rulings of the court in actions which are ended, it held
that one might be summarily punished for assaulting a judicial
officer, in that case a commissioner of the court, for his rulings
in a cause wholly concluded. "Is it in the power of any person,"
said the court, "by insulting or assaulting the judge because of
official acts, if only the assailant restrains his passion until the
judge leaves the building, to compel the judge to forfeit either
his own self-respect to the regard of the people by tame
submission to the indignity, or else set in his own person the
evil example of punishing the insult by taking the law in his own
hands? ... No high-minded, manly man would hold judicial
office under such conditions."
That a communication such as this, addressed to the Judge
personally, constitutes professional delinquency for which a
professional punishment may be imposed, has been directly
decided. "An attorney who, after being defeated in a case,
wrote a personal letter to the trial justice, complaining of his
conduct and reflecting upon his integrity as a justice, is guilty of
misconduct and will be disciplined by the court." Matter of
Manheim 133 App. Div. 136, 99 N.Y. Supp. 87 The same is held
in Re Griffin (City Ct.) 1 N.Y. 7 and in Re Wilkes (City Ct.) 3 N.Y.
In the latter case it appeared that the accused attorney had
addressed a sealed letter to a justice of the City Court of New
York, in which it was stated, in reference to his decision: "It is
not law; neither is it common sense. The result is I have been
robbed of 80." And it was decided that, while such conduct was
not a contempt under the state, the matter should be "called
to the attention of the Supreme Court, which has power to
discipline the attorney." "If," says the court, "counsel learned in
the law are permitted by writings leveled at the heads of
judges, to charge them with ignorance, with unjust rulings, and
with robbery, either as principals or accessories, it will not be
long before the general public may feel that they may redress
their fancied grievances in like manner, and thus the lot of a
judge will be anything but a happy one, and the administration
of justice will fall into bad repute."
The recent case of Johnson v. State (Ala.) 44 South. 671, was in
this respect much the same as the case at bar. The accused, an
attorney at law, wrote and mailed a letter to the circuit judge,
which the latter received by due course of mail, at his home,
while not holding court, and which referred in insulting terms
to the conduct of the judge in a cause wherein the accused had
been one of the attorneys. For this it was held that the
attorney was rightly disbarred in having "willfully failed to
maintain respect due to him [the judge] as a judicial officer,
and thereby breached his oath as an attorney." As recognizing
the same principle, and in support of its application to the facts
of this case, we cite the following: Ex parte Bradley, 7 Wall
(U.S.) 364, 19 L. Ed. 214; Beene v. State, 22 Ark.
149; Commonwealth v. Dandridge, 2 Va. Cas. 408; People v.
Green, 7 Colo 237, 244, 3 Pac. 65, 374, 49 Am. Rep. 351;
Smith's Appeal, 179 Pa. 14, 36 Atl. 134; Scouten's Appeal, 186
Pa. 270, Atl. 481.
Our conclusion is that the charges against the accused have
been so far sustained as to make it our duty to impose such a
penalty as may be sufficient lesson to him and a suitable
warning to others. ...
11. In Cobb v. United States, 172 F. 641, the court affirmed a
lawyer's suspension for 18 months for publishing a letter in a
newspaper in which he accused a judge of being under the
sinister influence of a gang that had paralyzed him for two
years.
12. In In Re Graves, 221 Pac. 411, the court held that an
attorney's unjustifiable attack against the official acts and
decisions of a judge constitutes "moral turpitude." There, the
attorney was disbarred for criticising not only the judge, but his
decisions in general claiming that the judge was dishonest in
reaching his decisions and unfair in his general conduct of a
case.
13. In In Re Doss, 12 N.E. 2d 659, an attorney published
newspaper articles after the trial of cases, criticising the court
in intemperate language. The invariable effect of this sort of
propaganda, said the court, is to breed disrespect for courts
and bring the legal profession into disrepute with the public,
for which reason the lawyer was disbarred.
14. In State v. Grimes, 354 Pac. 2d 108, an attorney, dissatisfied
with the loss of a case, prepared over a period of years vicious
attacks on jurists. The Oklahoma Supreme Court declared that
his acts involved such gross moral turpitude as to make him
unfit as a member of the bar. His disbarment was ordered,
even though he expressed an intention to resign from the bar.
The teaching derived from the above disquisition and
impressive affluence of judicial pronouncements is indubitable:
Post-litigation utterances or publications, made by lawyers,
critical of the courts and their judicial actuations, whether
amounting to a crime or not, which transcend the permissible
bounds of fair comment and legitimate criticism and thereby
tend to bring them into disrepute or to subvert public
confidence in their integrity and in the orderly administration
of justice, constitute grave professional misconduct which may
be visited with disbarment or other lesser appropriate
disciplinary sanctions by the Supreme Court in the exercise of
the prerogatives inherent in it as the duly constituted guardian
of the morals and ethics of the legal fraternity.
Of course, rarely have we wielded our disciplinary powers in
the face of unwarranted outbursts of counsel such as those
catalogued in the above-cited jurisprudence. Cases of
comparable nature have generally been disposed of under the
power of courts to punish for contempt which, although
resting on different bases and calculated to attain a different
end, nevertheless illustrates that universal abhorrence of such
condemnable practices.
A perusal of the more representative of these instances may
afford enlightenment.
1. In Salcedo vs. Hernandez, 61 Phil. 724, where counsel
branded the denial of his motion for reconsideration as
"absolutely erroneous and constituting an outrage to the rigths
of the petitioner Felipe Salcedo and a mockery of the popular
will expressed at the polls," this Court, although conceding that
It is right and plausible that an attorney, in defending the cause
and rights of his client, should do so with all the fervor and
energy of which he is capable, but it is not, and never will be so
for him to exercise said right by resorting to intimidation or
proceeding without the propriety and respect which the dignity
of the courts requires. The reason for this is that respect for
the courts guarantees the stability of their institution. Without
such guaranty, said institution would be resting on a very shaky
foundation,
found counsel guilty of contempt inasmuch as, in its opinion,
the statements made disclosed
... an inexcusable disrespect of the authority of the court and
an intentional contempt of its dignity, because the court is
thereby charged with no less than having proceeded in utter
disregard of the laws, the rights to the parties, and 'of the
untoward consequences, or with having abused its power and
mocked and flouted the rights of Attorney Vicente J.
Francisco's client ... .
2. In In re Sotto, 82 Phil. 595, counsel, a senator and the author
of the Press Freedom Law, reaching to, the imprisonment for
contempt of one Angel Parazo, who, invoking said law, refused
to divulge the source of a news item carried in his paper,
caused to be published in i local newspaper a statement
expressing his regret "that our High Tribunal has not only
erroneously interpreted said law, but it is once more putting in
evidence the incompetency or narrow mindedness of the
majority of its members," and his belief that "In the wake of so
many blunders and injustices deliberately committed during
these last years, ... the only remedy to put an end to go much
evil, is to change the members of the Supreme Court," which
tribunal he denounced as "a constant peril to liberty and
democracy" and "a far cry from the impregnable bulwark of
justice of those memorable times of Cayetano Arellano,
Victorino Mapa, Manuel Araullo and other learned jurists who
were the honor and glory of the Philippine Judiciary." He there
also announced that one of the first measures he would
introduce in then forthcoming session of Congress would have
for its object the complete reorganization of the Supreme
Court. Finding him in contempt, despite his avowals of good
faith and his invocation of the guarantee of free speech, this
Court declared:
But in the above-quoted written statement which he caused to
be published in the press, the respondent does not merely
criticize or comment on the decision of the Parazo case, which
was then and still is pending consideration by this Court upon
petition of Angel Parazo. He not only intends to intimidate the
members of this Court with the presentation of a bill in the
next Congress, of which he is one of the members, reorganizing
the Supreme Court and reducing the number of Justices from
eleven, so as to change the members of this Court which
decided the Parazo case, who according to his statement, are
incompetent and narrow minded, in order to influence the final
decision of said case by this Court, and thus embarrass or
obstruct the administration of justice. But the respondent also
attacks the honesty and integrity of this Court for the apparent
purpose of bringing the Justices of this Court into disrepute
and degrading the administration. of justice ... .
To hurl the false charge that this Court has been for the last
years committing deliberately so many blunders and injustices,
that is to say, that it has been deciding in favor of Que party
knowing that the law and justice is on the part of the adverse
party and not on the one in whose favor the decision was
rendered, in many cases decided during the last years, would
tend necessarily to undermine the confidence of the people in
the honesty and integrity of the members of this Court, and
consequently to lower ,or degrade the administration of justice
by this Court. The Supreme Court of the Philippines is, under
the Constitution, the last bulwark to which the Filipino people
may repair to obtain relief for their grievances or protection of
their rights when these are trampled upon, and if the people
lose their confidence in the honesty and integrity of the
members of this Court and believe that they cannot expect
justice therefrom, they might be driven to take the law into
their own hands, and disorder and perhaps chaos might be the
result. As a member of the bar and an officer of the courts,
Atty. Vicente Sotto, like any other, is in duty bound to uphold
the dignity and authority of this Court, to which he owes
fidelity according to the oath he has taken as such attorney,
and not to promote distrust in the administration of justice.
Respect to the courts guarantees the stability of other
institutions, which without such guaranty would be resting on a
very shaky foundation.
Significantly, too, the Court therein hastened to emphasize that
... an attorney as an officer of the court is under special
obligation to be respectful in his conduct and communication
to the courts; he may be removed from office or stricken from
the roll of attorneys as being guilty of flagrant misconduct (17
L.R.A. [N.S.], 586, 594.)
3. In Rheem of the Philippines vs. Ferrer: In re Proceedings
against Alfonso Ponce Enrile, et al., supra, where counsel
charged this Court with having "repeatedly fallen" into ,the
pitfall of blindly adhering to its previous "erroneous"
pronouncements, "in disregard of the law on jurisdiction" of
the Court of Industrial Relations, our condemnation of
counsel's misconduct was unequivocal. Articulating the
sentiments of the Court, Mr. Justice Sanchez stressed:
As we look back at the language (heretofore quoted) employed
in the motion for reconsideration, implications there are which
inescapably arrest attention. It speaks of one pitfall into which
this Court has repeatedly fallen whenever the jurisdiction of
the Court of Industrial Relations comes into question. That
pitfall is the tendency of this Court to rely on its own
pronouncements in disregard of the law on jurisdiction. It
makes a sweeping charge that the decisions of this
Court, blindly adhere to earlier rulings without as much as
making any reference to and analysis of the pertinent statute
governing the jurisdiction of the industrial court. The plain
import of all these is that this Court is so patently inept that in
determining the jurisdiction of the industrial court, it has
committed error and continuously repeated that error to the
point of perpetuation. It pictures this Court as one which
refuses to hew to the line drawn by the law on jurisdictional
boundaries. Implicit in the quoted statements is that the
pronouncements of this Court on the jurisdiction of the
industrial court are not entitled to respect. Those statements
detract much from the dignity of and respect due this Court.
They bring into question the capability of the members and
some former members of this Court to render justice. The
second paragraph quoted yields a tone of sarcasm which
counsel labelled as "so called" the "rule against splitting of
jurisdiction."
Similar thoughts and sentiments have been expressed in other
cases 18 which, in the interest of brevity, need not now be
reviewed in detail.
Of course, a common denominator underlies the aforecited
cases all of them involved contumacious statements made
in pleadings filed pending litigation. So that, in line with the
doctrinal rule that the protective mantle of contempt may
ordinarily be invoked only against scurrilous remarks or
malicious innuendoes while a court mulls over a pending case
and not after the conclusion thereof, 19 Atty. Almacen would
now seek to sidestep the thrust of a contempt charge by his
studied emphasis that the remarks for which he is now called
upon to account were made only after this Court had written
finis to his appeal. This is of no moment.
The rule that bars contempt after a judicial proceeding has
terminated, has lost much of its vitality. For sometime, this was
the prevailing view in this jurisdiction. The first stir for a
modification thereof, however, came when, in People vs.
Alarcon, 20 the then Chief Justice Manuel V. Moran dissented
with the holding of the majority, speaking thru Justice Jose P.
Laurel, which upheld the rule above-adverted to. A complete
disengagement from the settled rule was later to be made in In
re Brillantes, 21 a contempt proceeding, where the editor of the
Manila Guardian was adjudged in contempt for publishing an
editorial which asserted that the 1944 Bar Examinations were
conducted in a farcical manner after the question of the
validity of the said examinations had been resolved and the
case closed. Virtually, this was an adoption of the view
expressed by Chief Justice Moran in his dissent in Alarcon to
the effect that them may still be contempt by publication even
after a case has been terminated. Said Chief Justice Moran
in Alarcon:
A publication which tends to impede, obstruct, embarrass or
influence the courts in administering justice in a pending suit or
proceeding, constitutes criminal contempt which is 'summarily
punishable by courts. A publication which tends to degrade the
courts and to destroy public confidence in them or that which
tends to bring them in any way into disrepute, constitutes
likewise criminal contempt, and is equally punishable by courts.
What is sought, in the first kind of contempt, to be shielded
against the influence of newspaper comments, is the all-
important duty of the courts to administer justice in the
decision of a pending case. In the second kind of contempt, the
punitive hand of justice is extended to vindicate the courts
from any act or conduct calculated to bring them into disfavor
or to destroy public confidence in them. In the first there is no
contempt where there is no action pending, as there is no
decision which might in any way be influenced by the
newspaper publication. In the second, the contempt exists,
with or without a pending case, as what is sought to be
protected is the court itself and its dignity. Courts would lose
their utility if public confidence in them is destroyed.
Accordingly, no comfort is afforded Atty. Almacen by the
circumstance that his statements and actuations now under
consideration were made only after the judgment in his client's
appeal had attained finality. He could as much be liable for
contempt therefor as if it had been perpetrated during the
pendency of the said appeal.
More than this, however, consideration of whether or not he
could be held liable for contempt for such post litigation
utterances and actuations, is here immaterial. By the tenor of
our Resolution of November 17, 1967, we have confronted the
situation here presented solely in so far as it concerns Atty.
Almacen's professional identity, his sworn duty as a lawyer and
his fitness as an officer of this Court, in the exercise of the
disciplinary power the morals inherent in our authority and
duty to safeguard and ethics of the legal profession and to
preserve its ranks from the intrusions of unprincipled and
unworthy disciples of the noblest of callings. In this inquiry, the
pendency or non-pendency of a case in court is altogether of
no consequence. The sole objective of this proceeding is to
preserve the purity of the legal profession, by removing or
suspending a member whose misconduct has proved himself
unfit to continue to be entrusted with the duties and
responsibilities belonging to the office of an attorney.
Undoubtedly, this is well within our authority to do. By
constitutional mandate, 22 our is the solemn duty, amongst
others, to determine the rules for admission to the practice of
law. Inherent in this prerogative is the corresponding authority
to discipline and exclude from the practice of law those who
have proved themselves unworthy of continued membership in
the Bar. Thus
The power to discipline attorneys, who are officers of the
court, is an inherent and incidental power in courts of record,
and one which is essential to an orderly discharge of judicial
functions. To deny its existence is equivalent to a declaration
that the conduct of attorneys towards courts and clients is not
subject to restraint. Such a view is without support in any
respectable authority, and cannot be tolerated. Any court
having the right to admit attorneys to practice and in this state
that power is vested in this court-has the inherent right, in the
exercise of a sound judicial discretion to exclude them from
practice. 23
This, because the admission of a lawyer to the practice of law is
a representation to all that he is worthy of their confidence and
respect. So much so that
... whenever it is made to appear to the court that an attorney
is no longer worthy of the trust and confidence of the public
and of the courts, it becomes, not only the right, but the duty,
of the court which made him one of its officers, and gave him
the privilege of ministering within its bar, to withdraw the
privilege. Therefore it is almost universally held that both the
admission and disbarment of attorneys are judicial acts, and
that one is admitted to the bar and exercises his functions as
an attorney, not as a matter of right, but as a privilege
conditioned on his own behavior and the exercise of a just and
sound judicial discretion. 24
Indeed, in this jurisdiction, that power to remove or suspend
has risen above being a mere inherent or incidental power. It
has been elevated to an express mandate by the Rules of
Court. 25
Our authority and duty in the premises being unmistakable, we
now proceed to make an assessment of whether or not the
utterances and actuations of Atty. Almacen here in question
are properly the object of disciplinary sanctions.
The proffered surrender of his lawyer's certificate is, of course,
purely potestative on Atty. Almacen's part. Unorthodox though
it may seem, no statute, no law stands in its way. Beyond
making the mere offer, however, he went farther. In haughty
and coarse language, he actually availed of the said move as a
vehicle for his vicious tirade against this Court. The integrated
entirety of his petition bristles with vile insults all calculated to
drive home his contempt for and disrespect to the Court and
its members. Picturing his client as "a sacrificial victim at the
altar of hypocrisy," he categorically denounces the justice
administered by this Court to be not only blind "but also deaf
and dumb." With unmitigated acerbity, he virtually makes this
Court and its members with verbal talons, imputing to the
Court the perpetration of "silent injustices" and "short-cut
justice" while at the same time branding its members as
"calloused to pleas of justice." And, true to his announced
threat to argue the cause of his client "in the people's forum,"
he caused the publication in the papers of an account of his
actuations, in a calculated effort ;to startle the public, stir up
public indignation and disrespect toward the Court. Called
upon to make an explanation, he expressed no regret, offered
no apology. Instead, with characteristic arrogance, he rehashed
and reiterated his vituperative attacks and, alluding to the
Scriptures, virtually tarred and feathered the Court and its
members as inveterate hypocrites incapable of administering
justice and unworthy to impose disciplinary sanctions upon
him.
The virulence so blatantly evident in Atty. Almacen's petition,
answer and oral argumentation speaks for itself. The vicious
language used and the scurrilous innuendoes they carried far
transcend the permissible bounds of legitimate criticism. They
could never serve any purpose but to gratify the spite of an
irate attorney, attract public attention to himself and, more
important of all, bring ;this Court and its members into
disrepute and destroy public confidence in them to the
detriment of the orderly administration of justice. Odium of
this character and texture presents no redeeming feature, and
completely negates any pretense of passionate commitment to
the truth. It is not a whit less than a classic example of gross
misconduct, gross violation of the lawyer's oath and gross
transgression of the Canons of Legal Ethics. As such, it cannot
be allowed to go unrebuked. The way for the exertion of our
disciplinary powers is thus laid clear, and the need therefor is
unavoidable.
We must once more stress our explicit disclaimer of immunity
from criticism. Like any other Government entity in a viable
democracy, the Court is not, and should not be, above
criticism. But a critique of the Court must be intelligent and
discriminating, fitting to its high function as the court of last
resort. And more than this, valid and healthy criticism is by no
means synonymous to obloquy, and requires detachment and
disinterestedness, real qualities approached only through
constant striving to attain them. Any criticism of the Court
must, possess the quality of judiciousness and must be
informed -by perspective and infused by philosophy. 26
It is not accurate to say, nor is it an obstacle to the exercise of
our authority in ;the premises, that, as Atty. Almacen would
have appear, the members of the Court are the "complainants,
prosecutors and judges" all rolled up into one in this instance.
This is an utter misapprehension, if not a total distortion, not
only of the nature of the proceeding at hand but also of our
role therein.
Accent should be laid on the fact that disciplinary proceedings
like the present are sui generis. Neither purely civil nor purely
criminal, this proceeding is not and does not involve a
trial of an action or a suit, but is rather an investigation by the
Court into the conduct of its officers. 27 Not being intended to.
inflict punishment, it is in no sense a criminal prosecution.
Accordingly, there is neither a plaintiff nor a prosecutor therein
It may be initiated by the Court motu proprio. 28 Public interest
is its primary objective, and the real question for determination
is whether or not the attorney is still a fit person to be allowed
the privileges as such. Hence, in the exercise of its disciplinary
powers, the Court merely calls upon a member of the Bar to
account for his actuations as an officer of the Court with the
end in view of preserving the purity of the legal profession and
the proper and honest administration of justice by purging the
profession of members who by their misconduct have proved
themselves no longer worthy to be entrusted with the duties
and responsibilities pertaining to the office of an attorney. 29 In
such posture, there can thus be no occasion to speak of a
complainant or a prosecutor.
Undeniably, the members of the Court are, to a certain degree,
aggrieved parties. Any tirade against the Court as a body is
necessarily and inextricably as much so against the individual
members thereof. But in the exercise of its disciplinary powers,
the Court acts as an entity separate and distinct from the
individual personalities of its members. Consistently with the
intrinsic nature of a collegiate court, the individual members
act not as such individuals but. only as a duly constituted court.
Their distinct individualities are lost in the majesty of their
office. 30 So that, in a very real sense, if there be any
complainant in the case at bar, it can only be the Court itself,
not the individual members thereof as well as the people
themselves whose rights, fortunes and properties, nay, even
lives, would be placed at grave hazard should the
administration of justice be threatened by the retention in the
Bar of men unfit to discharge the solemn responsibilities of
membership in the legal fraternity.
Finally, the power to exclude persons from the practice of law
is but a necessary incident of the power to admit persons to
said practice. By constitutional precept, this power is vested
exclusively in this Court. This duty it cannot abdicate just as
much as it cannot unilaterally renounce jurisdiction legally
invested upon it. 31 So that even if it be conceded that the
members collectively are in a sense the aggrieved parties, that
fact alone does not and cannot disqualify them from the
exercise of that power because public policy demands that
they., acting as a Court, exercise the power in all cases which
call for disciplinary action. The present is such a case. In the
end, the imagined anomaly of the merger in one entity of the
personalities of complainant, prosecutor and judge is
absolutely inexistent.
Last to engage our attention is the nature and extent of the
sanctions that may be visited upon Atty. Almacen for his
transgressions. As marked out by the Rules of Court, these may
range from mere suspension to total removal or
disbarment. 32 The discretion to assess under the
circumstances the imposable sanction is, of course, primarily
addressed to the sound discretion of the Court which, being
neither arbitrary and despotic nor motivated by personal
animosity or prejudice, should ever be controlled by the
imperative need that the purity and independence of the Bar
be scrupulously guarded and the dignity of and respect due to
the Court be zealously maintained.
That the misconduct committed by Atty. Almacen is of
considerable gravity cannot be overemphasized. However,
heeding the stern injunction that disbarment should never be
decreed where a lesser sanction would accomplish the end
desired, and believing that it may not perhaps be futile to hope
that in the sober light of some future day, Atty. Almacen will
realize that abrasive language never fails to do disservice to an
advocate and that in every effervescence of candor there is
ample room for the added glow of respect, it is our view that
suspension will suffice under the circumstances. His
demonstrated persistence in his misconduct by neither
manifesting repentance nor offering apology therefor leave us
no way of determining how long that suspension should last
and, accordingly, we are impelled to decree that the same
should be indefinite. This, we are empowered to do not alone
because jurisprudence grants us discretion on the matter 33 but
also because, even without the comforting support of
precedent, it is obvious that if we have authority to completely
exclude a person from the practice of law, there is no reason
why indefinite suspension, which is lesser in degree and effect, IN RE CUNANAN
can be regarded as falling outside of the compass of that
94 PHIL. 534
authority. The merit of this choice is best shown by the fact
that it will then be left to Atty. Almacen to determine for
himself how long or how short that suspension shall last. For,
FACTS:
at any time after the suspension becomes effective he may
prove to this Court that he is once again fit to resume the Congress passed Rep. Act No. 972, or what is known as the Bar
practice of law. Flunkers Act, in 1952. The title of the law was, An Act to Fix
the Passing Marks for Bar Examinations from 1946 up to and
ACCORDINGLY, IT IS THE SENSE of the Court that Atty. Vicente
including 1955.
Raul Almacen be, as he is hereby, suspended from the practice
of law until further orders, the suspension to take effect Section 1 provided the following passing marks:
immediately.
1946-195170%
Let copies of this resolution. be furnished the Secretary of
1952 .71%
Justice, the Solicitor General and the Court of Appeals for their
information and guidance. 1953..72%
Concepcion,. C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, 1954..73%
Sanchez, Teehankee, Barredo and Villamor JJ., concur.
1955..74%
Fernando, J., took no part.
Provided however, that the examinee shall have no grade
lower than 50%.
Section 2 of the Act provided that A bar candidate who
obtained a grade of 75% in any subject shall be deemed to
have already passed that subject and the grade/grades shall be
included in the computation of the general average in
subsequent bar examinations.
ISSUE: substitute the judgment of the court on who can
practice law; and
Whether of not, R.A. No. 972 is constitutional.
4. The pretended classification is arbitrary and amounts to
RULING:
class legislation.
Section 2 was declared unconstitutional due to the fatal defect
As to the portion declared in force and effect, the Court could
of not being embraced in the title of the Act. As per its title, the
not muster enough votes to declare it void. Moreover, the law
Act should affect only the bar flunkers of 1946 to 1955 Bar
was passed in 1952, to take effect in 1953. Hence, it will not
examinations. Section2 establishes a permanent system for an
revoke existing Supreme Court resolutions denying admission
indefinite time. It was also struck down for allowing partial
to the bar of an petitioner. The same may also rationally fall
passing, thus failing to take account of the fact that laws and
within the power to Congress to alter, supplement or modify
jurisprudence are not stationary.
rules of admission to the practice of law.
As to Section1, the portion for 1946-1951 was declared
unconstitutional, while that for 1953 to 1955 was declared in
force and effect. The portion that was stricken down was
based under the following reasons:
1. The law itself admits that the candidates for admission
who flunked the bar from 1946 to 1952 had inadequate
preparation due to the fact that this was very close to
the end of World War II;
2. The law is, in effect, a judgment revoking the resolution
of the court on the petitions of the said candidates;
3. The law is an encroachment on the Courts primary
prerogative to determine who may be admitted to
practice of law and, therefore, in excess of legislative
power to repeal, alter and supplement the Rules of
Court. The rules laid down by Congress under this
power are only minimum norms, not designed to

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
January 9, 1973
IN THE MATTER OF THE INTEGRATION OF THE BAR OF THE
PHILIPPINES.
RESOLUTION
PER CURIAM:
On December 1, 1972, the Commission on Bar
Integration 1 submitted its Report dated November 30, 1972,
with the "earnest recommendation" on the basis of the
said Report and the proceedings had in Administrative Case No.
526 2 of the Court, and "consistently with the views and
counsel received from its [the Commission's] Board of
Consultants, as well as the overwhelming nationwide
sentiment of the Philippine Bench and Bar" that "this
Honorable Court ordain the integration of the Philippine Bar as
soon as possible through the adoption and promulgation of an
appropriate Court Rule."
The petition in Adm. Case No. 526 formally prays the Court to
order the integration of the Philippine Bar, after due hearing,
giving recognition as far as possible and practicable to existing
provincial and other local Bar associations. On August 16, 1962,
arguments in favor of as well as in opposition to the petition
were orally expounded before the Court. Written oppositions
were admitted, 3 and all parties were thereafter granted leave
to file written memoranda. 4
Since then, the Court has closely observed and followed
significant developments relative to the matter of the
integration of the Bar in this jurisdiction.
In 1970, convinced from preliminary surveys that there had
grown a strong nationwide sentiment in favor of Bar
integration, the Court created the Commission on Bar
Integration for the purpose of ascertaining the advisability of
unifying the Philippine Bar.
In September, 1971, Congress passed House Bill No. 3277
entitled "An Act Providing for the Integration of the Philippine
Bar, and Appropriating Funds Therefor." The measure was
signed by President Ferdinand E. Marcos on September 17,
1971 and took effect on the same day as Rep. Act 6397. This
law provides as follows:
SECTION 1. Within two years from the approval of this Act, the
Supreme Court may adopt rules of court to effect the
integration of the Philippine Bar under such conditions as it
shall see fit in order to raise the standards of the legal
profession, improve the administration of justice, and enable
the Bar to discharge its public responsibility more effectively.
SEC. 2. The sum of five hundred thousand pesos is hereby
appropriated, out of any funds in the National Treasury not
otherwise appropriated, to carry out the purposes of this Act.
Thereafter, such sums as may be necessary for the same
purpose shall be included in the annual appropriations for the
Supreme Court.
SEC. 3. This Act shall take effect upon its approval.
The Report of the Commission abounds with argument on the
constitutionality of Bar integration and contains all necessary
factual data bearing on the advisability (practicability and
necessity) of Bar integration. Also embodied therein are the
views, opinions, sentiments, comments and observations of
the rank and file of the Philippine lawyer population relative to
Bar integration, as well as a proposed integration Court Rule
drafted by the Commission and presented to them by that
body in a national Bar plebiscite. There is thus sufficient basis
as well as ample material upon which the Court may decide
whether or not to integrate the Philippine Bar at this time.
The following are the pertinent issues:
(1) Does the Court have the power to integrate the Philippine
Bar?
(2) Would the integration of the Bar be constitutional?
(3) Should the Court ordain the integration of the Bar at this
time?
A resolution of these issues requires, at the outset, a statement
of the meaning of Bar integration. It will suffice, for this
purpose, to adopt the concept given by the Commission on Bar
Integration on pages 3 to 5 of its Report, thus:
Integration of the Philippine Bar means the official unification
of the entire lawyer population of the Philippines. This
requires membership and financial support (in reasonable
amount) of every attorney as conditions sine qua non to the
practice of law and the retention of his name in the Roll of
Attorneys of the Supreme Court.
The term "Bar" refers to the collectivity of all persons whose
names appear in the Roll of Attorneys. An Integrated Bar (or
Unified Bar) perforce must include all lawyers.
Complete unification is not possible unless it is decreed by an
entity with power to do so: the State. Bar integration,
therefore, signifies the setting up by Government authority of a
national organization of the legal profession based on the
recognition of the lawyer as an officer of the court.
Designed to improve the position of the Bar as an
instrumentality of justice and the Rule of Law, integration
fosters cohesion among lawyers, and ensures, through their
own organized action and participation, the promotion of the
objectives of the legal profession, pursuant to the principle of
maximum Bar autonomy with minimum supervision and
regulation by the Supreme Court.
The purposes of an integrated Bar, in general, are:
(1) Assist in the administration of justice;
(2) Foster and maintain on the part of its members high ideals
of integrity, learning, professional competence, public service
and conduct;
(3) Safeguard the professional interests of its members;
(4) Cultivate among its members a spirit of cordiality and
brotherhood;
(5) Provide a forum for the discussion of law, jurisprudence,
law reform, pleading, practice and procedure, and the relations
of the Bar to the Bench and to the public, and publish
information relating thereto;
(6) Encourage and foster legal education;
(7) Promote a continuing program of legal research in
substantive and adjective law, and make reports and
recommendations thereon; and
(8) Enable the Bar to discharge its public responsibility
effectively.
Integration of the Bar will, among other things, make it possible
for the legal profession to:
(1) Render more effective assistance in maintaining the Rule of
Law;
(2) Protect lawyers and litigants against the abuse of tyrannical
judges and prosecuting officers;
(3) Discharge, fully and properly, its responsibility in the
disciplining and/or removal of incompetent and unworthy
judges and prosecuting officers;
(4) Shield the judiciary, which traditionally cannot defend itself
except within its own forum, from the assaults that politics and
self-interest may level at it, and assist it to maintain its
integrity, impartiality and independence;
(5) Have an effective voice in the selection of judges and
prosecuting officers;
(6) Prevent the unauthorized practice of law, and break up any
monopoly of local practice maintained through influence or
position;
(7) Establish welfare funds for families of disabled and
deceased lawyers;
(8) Provide placement services, and establish legal aid offices
and set up lawyer reference services throughout the country so
that the poor may not lack competent legal service;
(9) Distribute educational and informational materials that are
difficult to obtain in many of our provinces;
(10) Devise and maintain a program of continuing legal
education for practising attorneys in order to elevate the
standards of the profession throughout the country;
(11) Enforce rigid ethical standards, and promulgate minimum
fees schedules;
(12) Create law centers and establish law libraries for legal
research;
(13) Conduct campaigns to educate the people on their legal
rights and obligations, on the importance of preventive legal
advice, and on the functions and duties of the Filipino lawyer;
and
(14) Generate and maintain pervasive and meaningful country-
wide involvement of the lawyer population in the solution of
the multifarious problems that afflict the nation.
Anent the first issue, the Court is of the view that it may
integrate the Philippine Bar in the exercise of its power, under
Article VIII, Sec. 13 of the Constitution, "to promulgate rules
concerning pleading, practice, and procedure in all courts, and
the admission to the practice of law." Indeed, the power to
integrate is an inherent part of the Court's constitutional
authority over the Bar. In providing that "the Supreme Court
may adopt rules of court to effect the integration of the
Philippine Bar," Republic Act 6397 neither confers a new power
nor restricts the Court's inherent power, but is a mere
legislative declaration that the integration of the Bar will
promote public interest or, more specifically, will "raise the
standards of the legal profession, improve the administration
of justice, and enable the Bar to discharge its public
responsibility more effectively."
Resolution of the second issue whether the unification of
the Bar would be constitutional hinges on the effects of Bar
integration on the lawyer's constitutional rights of freedom of
association and freedom of speech, and on the nature of the
dues exacted from him.
The Court approvingly quotes the following pertinent
discussion made by the Commission on Bar Integration pages
44 to 49 of its Report:
Constitutionality of Bar Integration
Judicial Pronouncements.
In all cases where the validity of Bar integration measures has
been put in issue, the Courts have upheld their
constitutionality.
The judicial pronouncements support this reasoning:
Courts have inherent power to supervise and regulate the
practice of law.
The practice of law is not a vested right but a privilege; a
privilege, moreover, clothed with public interest, because a
lawyer owes duties not only to his client, but also to his
brethren in the profession, to the courts, and to the nation;
and takes part in one of the most important functions of the
State, the administration of justice, as an officer of the court.
Because the practice of law is privilege clothed with public
interest, it is far and just that the exercise of that privilege be
regulated to assure compliance with the lawyer's public
responsibilities.
These public responsibilities can best be discharged through
collective action; but there can be no collective action without
an organized body; no organized body can operate effectively
without incurring expenses; therefore, it is fair and just that all
attorneys be required to contribute to the support of such
organized body; and, given existing Bar conditions, the most
efficient means of doing so is by integrating the Bar through a
rule of court that requires all lawyers to pay annual dues to the
Integrated Bar.
1. Freedom of Association.
To compel a lawyer to be a member of an integrated Bar is not
violative of his constitutional freedom to associate (or the
corollary right not to associate).
Integration does not make a lawyer a member of any group of
which he is not already a member. He became a member of
the Bar when he passed the Bar examinations. All that
integration actually does is to provide an official national
organization for the well-defined but unorganized and
incohesive group of which every lawyer is already a member.
Bar integration does not compel the lawyer to associate with
anyone. He is free to attend or not attend the meetings of his
Integrated Bar Chapter or vote or refuse to vote in its elections
as he chooses. The body compulsion to which he is subjected is
the payment of annual dues.
Otherwise stated, membership in the Unified Bar imposes only
the duty to pay dues in reasonable amount. The issue
therefore, is a question of compelled financial support of group
activities, not involuntary membership in any other aspect.
The greater part of Unified Bar activities serves the function of
elevating the educational and ethical standards of the Bar to
the end of improving the quality of the legal service available to
the people. The Supreme Court, in order to further the State's
legitimate interest in elevating the quality of professional
services, may require that the cost of improving the profession
in this fashion be shared by the subjects and beneficiaries of
the regulatory program the lawyers.
Assuming that Bar integration does compel a lawyer to be a
member of the Integrated Bar, such compulsion is justified as
an exercise of the police power of the State. The legal
profession has long been regarded as a proper subject of
legislative regulation and control. Moreover, the inherent
power of the Supreme Court to regulate the Bar includes the
authority to integrate the Bar.
2. Regulatory Fee.
For the Court to prescribe dues to be paid by the members
does not mean that the Court levies a tax.
A membership fee in the Integrated Bar is an exaction for
regulation, while the purpose of a tax is revenue. If the Court
has inherent power to regulate the Bar, it follows that as an
incident to regulation, it may impose a membership fee for
that purpose. It would not be possible to push through an
Integrated Bar program without means to defray the
concomitant expenses. The doctrine of implied powers
necessarily includes the power to impose such an exaction.
The only limitation upon the State's power to regulate the Bar
is that the regulation does not impose an unconstitutional
burden. The public interest promoted by the integration of the
Bar far outweighs the inconsequential inconvenience to a
member that might result from his required payment of annual
dues.
3. Freedom of Speech.
A lawyer is free, as he has always been, to voice his views on in a more effective manner than they have been able to do in
any subject in any manner he wishes, even though such views the past. Because the requirement to pay dues is a valid
be opposed to positions taken by the Unified Bar. exercise of regulatory power by the Court, because it will apply
equally to all lawyers, young and old, at the time Bar
For the Integrated Bar to use a member's due to promote
integration takes effect, and because it is a new regulation in
measures to which said member is opposed, would not nullify
exchange for new benefits, it is not retroactive, it is not
or adversely affect his freedom of speech.
unequal, it is not unfair.
Since a State may constitutionally condition the right to
To resolve the third and final issue whether the Court should
practice law upon membership in the Integrated Bar, it is
ordain the integration of the Bar at this time requires a
difficult to understand why it should become unconstitutional
careful overview of the practicability and necessity as well as
for the Bar to use the member's dues to fulfill the very
the advantages and disadvantages of Bar integration.
purposes for which it was established.
In many other jurisdictions, notably in England, Canada and the
The objection would make every Governmental exaction the
United States, Bar integration has yielded the following
material of a "free speech" issue. Even the income tax would
benefits: (1) improved discipline among the members of the
be suspect. The objection would carry us to lengths that have
Bar; (2) greater influence and ascendancy of the Bar; (3) better
never been dreamed of. The conscientious objector, if his
and more meaningful participation of the individual lawyer in
liberties were to be thus extended, might refuse to contribute
the activities of the Integrated Bar; (4) greater Bar facilities and
taxes in furtherance of war or of any other end condemned by
services; (5) elimination of unauthorized practice; (6)
his conscience as irreligious or immoral. The right of private
avoidance of costly membership campaigns; (7) establishment
judgment has never yet been exalted above the powers and
of an official status for the Bar; (8) more cohesive profession;
the compulsion of the agencies of Government.
and (9) better and more effective discharge by the Bar of its
4. Fair to All Lawyers. obligations and responsibilities to its members, to the courts,
and to the public. No less than these salutary consequences
Bar integration is not unfair to lawyers already practising
are envisioned and in fact expected from the unification of the
because although the requirement to pay annual dues is a new
Philippine Bar.
regulation, it will give the members of the Bar a new system
which they hitherto have not had and through which, by Upon the other hand, it has been variously argued that in the
proper work, they will receive benefits they have not event of integration, Government authority will dominate the
heretofore enjoyed, and discharge their public responsibilities Bar; local Bar associations will be weakened; cliquism will be
the inevitable result; effective lobbying will not be possible; the
Bar will become an impersonal Bar; and politics will intrude
into its affairs.
It is noteworthy, however, that these and other evils
prophesied by opponents of Bar integration have failed to
materialize in over fifty years of Bar integration experience in
England, Canada and the United States. In all the jurisdictions
where the Integrated Bar has been tried, none of the abuses or
evils feared has arisen; on the other hand, it has restored
public confidence in the Bar, enlarged professional
consciousness, energized the Bar's responsibilities to the
public, and vastly improved the administration of justice.
How do the Filipino lawyers themselves regard Bar integration?
The official statistics compiled by the Commission on Bar
integration show that in the national poll recently conducted
by the Commission in the matter of the integration of the
Philippine Bar, of a total of 15,090 lawyers from all over the
archipelago who have turned in their individual responses,
14,555 (or 96.45 per cent) voted in favor of Bar integration,
while only 378 (or 2.51 per cent) voted against it, and 157 (or
1.04 per cent) are non-commital. In addition, a total of eighty
(80) local Bar association and lawyers' groups all over the
Philippines have submitted resolutions and other expressions
of unqualified endorsement and/or support for Bar integration,
while not a single local Bar association or lawyers' group has
expressed opposed position thereto. Finally, of the 13,802
individual lawyers who cast their plebiscite ballots on the
proposed integration Court Rule drafted by the Commission,
12,855 (or 93.14 per cent) voted in favor thereof, 662 (or 4.80
per cent) vote against it, and 285 (or 2.06 per cent) are non-
committal. 5 All these clearly indicate an overwhelming
nationwide demand for Bar integration at this time.
The Court is fully convinced, after a thoroughgoing
conscientious study of all the arguments adduced in Adm. Case
No. 526 and the authoritative materials and the mass of factual
data contained in the exhaustive Report of the Commission on
Bar Integration, that the integration of the Philippine Bar is
"perfectly constitutional and legally unobjectionable," within
the context of contemporary conditions in the Philippines, has
become an imperative means to raise the standards of the
legal profession, improve the administration of justice, and
enable the Bar to discharge its public responsibility fully and
effectively.
ACCORDINGLY, the Court, by virtue of the power vested in it by
Section 13 of Article VIII of the Constitution, hereby ordains the
integration of the Bar of the Philippines in accordance with the
attached COURT RULE, effective on January 16, 1973.
Concepcion, C.J., Makalintal, Zaldivar, Castillo, Fernando,
Teehankee, Barredo, Makasiar, Antonio and Esguerra, JJ.,
concur.
Republic of the Philippines Info on DIVORCE. ABSENCE.
SUPREME COURT ANNULMENT. VISA.
Manila
THE Please call: 521-0767 LEGAL 5217232, 5222041 CLINIC,
EN BANC INC. 8:30 am 6:00 pm 7-Flr. Victoria Bldg., UN Ave., Mla.
Annex B
Bar Matter No. 553 June 17, 1993 GUAM DIVORCE.
MAURICIO C. ULEP, petitioner, DON PARKINSON
vs.
an Attorney in Guam, is giving FREE BOOKS on Guam Divorce
THE LEGAL CLINIC, INC., respondent.
through The Legal Clinic beginning Monday to Friday during
R E SO L U T I O N office hours.
Guam divorce. Annulment of Marriage. Immigration Problems,
Visa Ext. Quota/Non-quota Res. & Special Retiree's Visa.
REGALADO, J.:
Declaration of Absence. Remarriage to Filipina Fiancees.
Petitioner prays this Court "to order the respondent to cease Adoption. Investment in the Phil. US/Foreign Visa for Filipina
and desist from issuing advertisements similar to or of the Spouse/Children. Call Marivic.
same tenor as that of annexes "A" and "B" (of said petition) and
THE 7F Victoria Bldg. 429 UN Ave., LEGAL Ermita, Manila nr. US
to perpetually prohibit persons or entities from making
Embassy CLINIC, INC. 1 Tel. 521-7232; 521-7251; 522-2041;
advertisements pertaining to the exercise of the law profession
521-0767
other than those allowed by law."
It is the submission of petitioner that the advertisements above
The advertisements complained of by herein petitioner are as
reproduced are champterous, unethical, demeaning of the law
follows:
profession, and destructive of the confidence of the
Annex A community in the integrity of the members of the bar and that,
as a member of the legal profession, he is ashamed and
SECRET MARRIAGE?
offended by the said advertisements, hence the reliefs sought
P560.00 for a valid marriage.
in his petition as hereinbefore quoted.
In its answer to the petition, respondent admits the fact of
publication of said advertisement at its instance, but claims
that it is not engaged in the practice of law but in the rendering
of "legal support services" through paralegals with the use of
modern computers and electronic machines. Respondent
further argues that assuming that the services advertised are
legal services, the act of advertising these services should be
allowed supposedly
in the light of the case of John R. Bates and Van O'Steen vs.
State Bar of Arizona, 2 reportedly decided by the United States
Supreme Court on June 7, 1977.
Considering the critical implications on the legal profession of
the issues raised herein, we required the (1) Integrated Bar of
the Philippines (IBP), (2) Philippine Bar Association (PBA), (3)
Philippine Lawyers' Association (PLA), (4) U.P. Womens
Lawyers' Circle (WILOCI), (5) Women Lawyers Association of
the Philippines (WLAP), and (6) Federacion International de
Abogadas (FIDA) to submit their respective position papers on
the controversy and, thereafter, their memoranda. 3 The said
bar associations readily responded and extended their valuable
services and cooperation of which this Court takes note with
appreciation and gratitude.
The main issues posed for resolution before the Court are
whether or not the services offered by respondent, The Legal
Clinic, Inc., as advertised by it constitutes practice of law and,
in either case, whether the same can properly be the subject of
the advertisements herein complained of.
Before proceeding with an in-depth analysis of the merits of
this case, we deem it proper and enlightening to present
hereunder excerpts from the respective position papers
adopted by the aforementioned bar associations and the
memoranda submitted by them on the issues involved in this
bar matter.
1. Integrated Bar of the Philippines:
xxx xxx xxx
Notwithstanding the subtle manner by which respondent
endeavored to distinguish the two terms, i.e., "legal support
services" vis-a-vis "legal services", common sense would readily
dictate that the same are essentially without substantial
distinction. For who could deny that document search,
evidence gathering, assistance to layman in need of basic
institutional services from government or non-government
agencies like birth, marriage, property, or business registration,
obtaining documents like clearance, passports, local or foreign
visas, constitutes practice of law?
xxx xxx xxx
The Integrated Bar of the Philippines (IBP) does not wish to
make issue with respondent's foreign citations. Suffice it to
state that the IBP has made its position manifest, to wit, that it
strongly opposes the view espoused by respondent (to the
effect that today it is alright to advertise one's legal services).
The IBP accordingly declares in no uncertain terms its
opposition to respondent's act of establishing a "legal clinic"
and of concomitantly advertising the same through newspaper
publications.
The IBP would therefore invoke the administrative supervision
of this Honorable Court to perpetually restrain respondent
from undertaking highly unethical activities in the field of law
practice as aforedescribed. 4
xxx xxx xxx
A. The use of the name "The Legal Clinic, Inc." gives the
impression that respondent corporation is being operated by
lawyers and that it renders legal services.
While the respondent repeatedly denies that it offers legal
services to the public, the advertisements in question give the
impression that respondent is offering legal services. The
Petition in fact simply assumes this to be so, as earlier
mentioned, apparently because this (is) the effect that the
advertisements have on the reading public.
The impression created by the advertisements in question can
be traced, first of all, to the very name being used by
respondent "The Legal Clinic, Inc." Such a name, it is
respectfully submitted connotes the rendering of legal services
for legal problems, just like a medical clinic connotes medical
services for medical problems. More importantly, the term
"Legal Clinic" connotes lawyers, as the term medical clinic
connotes doctors.
Furthermore, the respondent's name, as published in the
advertisements subject of the present case, appears with (the)
scale(s) of justice, which all the more reinforces the impression
that it is being operated by members of the bar and that it
offers legal services. In addition, the advertisements in
question appear with a picture and name of a person being
represented as a lawyer from Guam, and this practically
removes whatever doubt may still remain as to the nature of
the service or services being offered.
It thus becomes irrelevant whether respondent is merely
offering "legal support services" as claimed by it, or whether it
offers legal services as any lawyer actively engaged in law
practice does. And it becomes unnecessary to make a
distinction between "legal services" and "legal support
services," as the respondent would have it. The advertisements
in question leave no room for doubt in the minds of the
reading public that legal services are being offered by lawyers,
whether true or not.
B. The advertisements in question are meant to induce the
performance of acts contrary to law, morals, public order and
public policy.
It may be conceded that, as the respondent claims, the
advertisements in question are only meant to inform the
general public of the services being offered by it. Said
advertisements, however, emphasize to Guam divorce, and any
law student ought to know that under the Family Code, there is
only one instance when a foreign divorce is recognized, and
that is:
Article 26. . . .
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry,
the Filipino spouse shall have capacity to remarry under
Philippine Law.
It must not be forgotten, too, that the Family Code (defines) a
marriage as follows:
Article 1. Marriage is special contract of permanent
union between a man and woman entered into accordance
with law for the establishment of conjugal and family life. It is
the foundation of the family and an inviolable social
institution whose nature, consequences, and incidents are
governed by law and not subject to stipulation, except that
marriage settlements may fix the property relation during the
marriage within the limits provided by this Code.
By simply reading the questioned advertisements, it is obvious
that the message being conveyed is that Filipinos can avoid the
legal consequences of a marriage celebrated in accordance
with our law, by simply going to Guam for a divorce. This is not
only misleading, but encourages, or serves to induce, violation
of Philippine law. At the very least, this can be considered "the
dark side" of legal practice, where certain defects in Philippine
laws are exploited for the sake of profit. At worst, this is
outright malpractice.
Rule 1.02. A lawyer shall not counsel or abet activities aimed
at defiance of the law or at lessening confidence in the legal
system.
In addition, it may also be relevant to point out that
advertisements such as that shown in Annex "A" of the
Petition, which contains a cartoon of a motor vehicle with the
words "Just Married" on its bumper and seems to address
those planning a "secret marriage," if not suggesting a "secret
marriage," makes light of the "special contract of permanent
union," the inviolable social institution," which is how the
Family Code describes marriage, obviously to emphasize its
sanctity and inviolability. Worse, this particular advertisement
appears to encourage marriages celebrated in secrecy, which is
suggestive of immoral publication of applications for a
marriage license.
If the article "Rx for Legal Problems" is to be reviewed, it can
readily be concluded that the above impressions one may
gather from the advertisements in question are accurate. The
Sharon Cuneta-Gabby Concepcion example alone confirms
what the advertisements suggest. Here it can be seen that
criminal acts are being encouraged or committed
(a bigamous marriage in Hong Kong or Las Vegas) with
impunity simply because the jurisdiction of Philippine courts
does not extend to the place where the crime is committed.
Even if it be assumed, arguendo, (that) the "legal support
services" respondent offers do not constitute legal services as
commonly understood, the advertisements in question give the
impression that respondent corporation is being operated by
lawyers and that it offers legal services, as earlier discussed.
Thus, the only logical consequence is that, in the eyes of an
ordinary newspaper reader, members of the bar themselves
are encouraging or inducing the performance of acts which are better than a lawyer using a typewriter, even if both are (equal)
contrary to law, morals, good customs and the public good, in skill.
thereby destroying and demeaning the integrity of the Bar.
Both the Bench and the Bar, however, should be careful not to
xxx xxx xxx allow or tolerate the illegal practice of law in any form, not only
for the protection of members of the Bar but also, and more
It is respectfully submitted that respondent should be enjoined
importantly, for the protection of the public. Technological
from causing the publication of the advertisements in question,
development in the profession may be encouraged without
or any other advertisements similar thereto. It is also
tolerating, but instead ensuring prevention of illegal practice.
submitted that respondent should be prohibited from further
performing or offering some of the services it presently offers, There might be nothing objectionable if respondent is allowed
or, at the very least, from offering such services to the public in to perform all of its services, but only if such services are made
general. available exclusively to members of the Bench and Bar.
Respondent would then be offering technical assistance, not
The IBP is aware of the fact that providing computerized legal
legal services. Alternatively, the more difficult task of carefully
research, electronic data gathering, storage and retrieval,
distinguishing between which service may be offered to the
standardized legal forms, investigators for gathering of
public in general and which should be made available
evidence, and like services will greatly benefit the legal
exclusively to members of the Bar may be undertaken. This,
profession and should not be stifled but instead encouraged.
however, may require further proceedings because of the
However, when the conduct of such business by non-members
factual considerations involved.
of the Bar encroaches upon the practice of law, there can be
no choice but to prohibit such business. It must be emphasized, however, that some of respondent's
services ought to be prohibited outright, such as acts which
Admittedly, many of the services involved in the case at bar can
tend to suggest or induce celebration abroad of marriages
be better performed by specialists in other fields, such as
which are bigamous or otherwise illegal and void under
computer experts, who by reason of their having devoted time
Philippine law. While respondent may not be prohibited from
and effort exclusively to such field cannot fulfill the exacting
simply disseminating information regarding such matters, it
requirements for admission to the Bar. To prohibit them from
must be required to include, in the information given, a
"encroaching" upon the legal profession will deny the
disclaimer that it is not authorized to practice law, that certain
profession of the great benefits and advantages of modern
course of action may be illegal under Philippine law, that it is
technology. Indeed, a lawyer using a computer will be doing
not authorized or capable of rendering a legal opinion, that a
lawyer should be consulted before deciding on which course of
action to take, and that it cannot recommend any particular
lawyer without subjecting itself to possible sanctions for illegal
practice of law.
If respondent is allowed to advertise, advertising should be
directed exclusively at members of the Bar, with a clear and
unmistakable disclaimer that it is not authorized to practice law
or perform legal services.
The benefits of being assisted by paralegals cannot be ignored.
But nobody should be allowed to represent himself as a
"paralegal" for profit, without such term being clearly defined
by rule or regulation, and without any adequate and effective
means of regulating his activities. Also, law practice in a
corporate form may prove to be advantageous to the legal
profession, but before allowance of such practice may be
considered, the corporation's Article of Incorporation and By-
laws must conform to each and every provision of the Code of
Professional Responsibility and the Rules of Court. 5
2. Philippine Bar Association:
xxx xxx xxx.
Respondent asserts that it "is not engaged in the practice of
law but engaged in giving legal support services to lawyers and
laymen, through experienced paralegals, with the use of
modern computers and electronic machines" (pars. 2 and 3,
Comment). This is absurd. Unquestionably, respondent's acts
of holding out itself to the public under the trade name "The
Legal Clinic, Inc.," and soliciting employment for its
enumerated services fall within the realm of a practice which
thus yields itself to the regulatory powers of the Supreme
Court. For respondent to say that it is merely engaged in
paralegal work is to stretch credulity. Respondent's own
commercial advertisement which announces a certain Atty.
Don Parkinson to be handling the fields of law belies its
pretense. From all indications, respondent "The Legal Clinic,
Inc." is offering and rendering legal services through its reserve
of lawyers. It has been held that the practice of law is not
limited to the conduct of cases in court, but includes drawing
of deeds, incorporation, rendering opinions, and advising
clients as to their legal right and then take them to an attorney
and ask the latter to look after their case in court See Martin,
Legal and Judicial Ethics, 1984 ed., p. 39).
It is apt to recall that only natural persons can engage in the
practice of law, and such limitation cannot be evaded by
a corporation employing competent lawyers to practice for it.
Obviously, this is the scheme or device by which respondent
"The Legal Clinic, Inc." holds out itself to the public and solicits
employment of its legal services. It is an odious vehicle for
deception, especially so when the public cannot ventilate any
grievance for malpractice against the business conduit.
Precisely, the limitation of practice of law to persons who have
been duly admitted as members of the Bar (Sec. 1, Rule 138,
Revised Rules of Court) is to subject the members to
the discipline of the Supreme Court. Although respondent uses
its business name, the persons and the lawyers who act for it
are subject to court discipline. The practice of law is not a
profession open to all who wish to engage in it nor can it be
assigned to another (See 5 Am. Jur. 270). It is a personal
right limited to persons who have qualified themselves under
the law. It follows that not only respondent but also all the
persons who are acting for respondent are the persons
engaged in unethical law practice. 6
3. Philippine Lawyers' Association:
The Philippine Lawyers' Association's position, in answer to the
issues stated herein, are wit:
1. The Legal Clinic is engaged in the practice of law;
2. Such practice is unauthorized;
3. The advertisements complained of are not only unethical,
but also misleading and patently immoral; and
4. The Honorable Supreme Court has the power to supress and
punish the Legal Clinic and its corporate officers for its
unauthorized practice of law and for its unethical, misleading
and immoral advertising.
xxx xxx xxx
Respondent posits that is it not engaged in the practice of law.
It claims that it merely renders "legal support services" to
answers, litigants and the general public as enunciated in the
Primary Purpose Clause of its Article(s) of Incorporation. (See
pages 2 to 5 of Respondent's Comment). But its advertised
services, as enumerated above, clearly and convincingly show
that it is indeed engaged in law practice, albeit outside of
court.
As advertised, it offers the general public its advisory services
on Persons and Family Relations Law, particularly regarding
foreign divorces, annulment of marriages, secret marriages,
absence and adoption; Immigration Laws, particularly on visa
related problems, immigration problems; the Investments Law
of the Philippines and such other related laws.
Its advertised services unmistakably require the application of
the aforesaid law, the legal principles and procedures related
thereto, the legal advices based thereon and which activities
call for legal training, knowledge and experience.
Applying the test laid down by the Court in the aforecited
Agrava Case, the activities of respondent fall squarely and are
embraced in what lawyers and laymen equally term as "the
practice of law." 7
4. U.P. Women Lawyers' Circle:
In resolving, the issues before this Honorable Court, paramount
consideration should be given to the protection of the general
public from the danger of being exploited by unqualified
persons or entities who may be engaged in the practice of law.
At present, becoming a lawyer requires one to take a rigorous
four-year course of study on top of a four-year bachelor of arts
or sciences course and then to take and pass the bar
examinations. Only then, is a lawyer qualified to practice law.
While the use of a paralegal is sanctioned in many jurisdiction
as an aid to the administration of justice, there are in those
jurisdictions, courses of study and/or standards which would
qualify these paralegals to deal with the general public as such.
While it may now be the opportune time to establish these
courses of study and/or standards, the fact remains that at
present, these do not exist in the Philippines. In the meantime,
this Honorable Court may decide to make measures to protect
the general public from being exploited by those who may be
dealing with the general public in the guise of being
"paralegals" without being qualified to do so.
In the same manner, the general public should also be
protected from the dangers which may be brought about by
advertising of legal services. While it appears that lawyers are
prohibited under the present Code of Professional
Responsibility from advertising, it appears in the instant case
that legal services are being advertised not by lawyers but by
an entity staffed by "paralegals." Clearly, measures should be
taken to protect the general public from falling prey to those
who advertise legal services without being qualified to offer
such services. 8
A perusal of the questioned advertisements of Respondent,
however, seems to give the impression that information
regarding validity of marriages, divorce, annulment of
marriage, immigration, visa extensions, declaration of absence,
adoption and foreign investment, which are in essence, legal
matters , will be given to them if they avail of its services. The
Respondent's name The Legal Clinic, Inc. does not help
matters. It gives the impression again that Respondent will or
can cure the legal problems brought to them. Assuming that
Respondent is, as claimed, staffed purely by paralegals, it also
gives the misleading impression that there are lawyers involved
in The Legal Clinic, Inc., as there are doctors in any medical
clinic, when only "paralegals" are involved in The Legal Clinic,
Inc.
Respondent's allegations are further belied by the very
admissions of its President and majority stockholder, Atty.
Nogales, who gave an insight on the structure and main
purpose of Respondent corporation in the aforementioned
"Starweek" article." 9
5. Women Lawyer's Association of the Philippines:
Annexes "A" and "B" of the petition are clearly advertisements
to solicit cases for the purpose of gain which, as provided for
under the above cited law, (are) illegal and against the Code of
Professional Responsibility of lawyers in this country.
Annex "A" of the petition is not only illegal in that it is an
advertisement to solicit cases, but it is illegal in that in bold
letters it announces that the Legal Clinic, Inc., could work
out/cause the celebration of a secret marriage which is not
only illegal but immoral in this country. While it is advertised
that one has to go to said agency and pay P560 for a valid
marriage it is certainly fooling the public for valid marriages in
the Philippines are solemnized only by officers authorized to do
so under the law. And to employ an agency for said purpose of
contracting marriage is not necessary.
No amount of reasoning that in the USA, Canada and other
countries the trend is towards allowing lawyers to advertise
their special skills to enable people to obtain from qualified
practitioners legal services for their particular needs can justify
the use of advertisements such as are the subject matter of the
petition, for one (cannot) justify an illegal act even by whatever
merit the illegal act may serve. The law has yet to be amended
so that such act could become justifiable.
We submit further that these advertisements that seem to
project that secret marriages and divorce are possible in this
country for a fee, when in fact it is not so, are highly
reprehensible.
It would encourage people to consult this clinic about how they
could go about having a secret marriage here, when it cannot
nor should ever be attempted, and seek advice on divorce,
where in this country there is none, except under the Code of
Muslim Personal Laws in the Philippines. It is also against good
morals and is deceitful because it falsely represents to the
public to be able to do that which by our laws cannot be done
(and) by our Code of Morals should not be done.
In the case (of) In re Taguda, 53 Phil. 37, the Supreme Court
held that solicitation for clients by an attorney by circulars of
advertisements, is unprofessional, and offenses of this
character justify permanent elimination from the Bar. 10
6. Federacion Internacional de Abogados:
xxx xxx xxx
1.7 That entities admittedly not engaged in the practice of law,
such as management consultancy firms or travel agencies,
whether run by lawyers or not, perform the services rendered
by Respondent does not necessarily lead to the conclusion that
Respondent is not unlawfully practicing law. In the same vein,
however, the fact that the business of respondent (assuming it
can be engaged in independently of the practice of law)
involves knowledge of the law does not necessarily make
respondent guilty of unlawful practice of law.
. . . . Of necessity, no one . . . . acting as a consultant can render
effective service unless he is familiar with such statutes and
regulations. He must be careful not to suggest a course of
conduct which the law forbids. It seems . . . .clear that (the
consultant's) knowledge of the law, and his use of that
knowledge as a factor in determining what measures he shall
recommend, do not constitute the practice of law . . . . It is not
only presumed that all men know the law, but it is a fact that
most men have considerable acquaintance with broad features
of the law . . . . Our knowledge of the law accurate or
inaccurate moulds our conduct not only when we are acting
for ourselves, but when we are serving others. Bankers, liquor
dealers and laymen generally possess rather precise knowledge
of the laws touching their particular business or profession. A
good example is the architect, who must be familiar with
zoning, building and fire prevention codes, factory and
tenement house statutes, and who draws plans and
specification in harmony with the law. This is not practicing
law.
But suppose the architect, asked by his client to omit a fire
tower, replies that it is required by the statute. Or the
industrial relations expert cites, in support of some measure
that he recommends, a decision of the National Labor of men who customarily perform a certain function have no
Relations Board. Are they practicing law? In my opinion, they right to do so, or that the technical education given by our
are not, provided no separate fee is charged for the legal schools cannot be used by the graduates in their business.
advice or information, and the legal question is subordinate
In determining whether a man is practicing law, we should
and incidental to a major non-legal problem.
consider his work for any particular client or customer, as a
It is largely a matter of degree and of custom. whole. I can imagine defendant being engaged primarily to
advise as to the law defining his client's obligations to his
If it were usual for one intending to erect a building on his land
employees, to guide his client's obligations to his employees, to
to engage a lawyer to advise him and the architect in respect
guide his client along the path charted by law. This, of course,
to the building code and the like, then an architect who
would be the practice of the law. But such is not the fact in the
performed this function would probably be considered to be
case before me. Defendant's primarily efforts are along
trespassing on territory reserved for licensed attorneys.
economic and psychological lines. The law only provides the
Likewise, if the industrial relations field had been pre-empted
frame within which he must work, just as the zoning code limits
by lawyers, or custom placed a lawyer always at the elbow of
the kind of building the limits the kind of building the architect
the lay personnel man. But this is not the case. The most
may plan. The incidental legal advice or information defendant
important body of the industrial relations experts are the
may give, does not transform his activities into the practice of
officers and business agents of the labor unions and few of
law. Let me add that if, even as a minor feature of his work, he
them are lawyers. Among the larger corporate employers, it
performed services which are customarily reserved to members
has been the practice for some years to delegate special
of the bar, he would be practicing law. For instance, if as part of
responsibility in employee matters to a management group
a welfare program, he drew employees' wills.
chosen for their practical knowledge and skill in such matter,
and without regard to legal thinking or lack of it. More recently, Another branch of defendant's work is the representations of
consultants like the defendants have the same service that the the employer in the adjustment of grievances and in collective
larger employers get from their own specialized staff. bargaining, with or without a mediator. This is not per se the
practice of law. Anyone may use an agent for negotiations and
The handling of industrial relations is growing into a recognized
may select an agent particularly skilled in the subject under
profession for which appropriate courses are offered by our
discussion, and the person appointed is free to accept the
leading universities. The court should be very cautious about
employment whether or not he is a member of the bar. Here,
declaring [that] a widespread, well-established method of
however, there may be an exception where the business turns
conducting business is unlawful, or that the considerable class
on a question of law. Most real estate sales are negotiated by
brokers who are not lawyers. But if the value of the land
depends on a disputed right-of-way and the principal role of
the negotiator is to assess the probable outcome of the dispute
and persuade the opposite party to the same opinion, then it
may be that only a lawyer can accept the assignment. Or if a
controversy between an employer and his men grows from
differing interpretations of a contract, or of a statute, it is quite
likely that defendant should not handle it. But I need not reach
a definite conclusion here, since the situation is not presented
by the proofs.
Defendant also appears to represent the employer before
administrative agencies of the federal government, especially
before trial examiners of the National Labor Relations Board.
An agency of the federal government, acting by virtue of an
authority granted by the Congress, may regulate the
representation of parties before such agency. The State of New
Jersey is without power to interfere with such determination or
to forbid representation before the agency by one whom the
agency admits. The rules of the National Labor Relations Board
give to a party the right to appear in person, or by counsel, or
by other representative. Rules and Regulations, September
11th, 1946, S. 203.31. 'Counsel' here means a licensed
attorney, and ther representative' one not a lawyer. In this
phase of his work, defendant may lawfully do whatever the
Labor Board allows, even arguing questions purely legal.
(Auerbacher v. Wood, 53 A. 2d 800, cited in Statsky,
Introduction to Paralegalism [1974], at pp. 154-156.).
1.8 From the foregoing, it can be said that a person engaged in
a lawful calling (which may involve knowledge of the law) is not
engaged in the practice of law provided that:
(a) The legal question is subordinate and incidental to a major
non-legal problem;.
(b) The services performed are not customarily reserved to
members of the bar; .
(c) No separate fee is charged for the legal advice or
information.
All these must be considered in relation to the work for any
particular client as a whole.
1.9. If the person involved is both lawyer and non-lawyer, the
Code of Professional Responsibility succintly states the rule of
conduct:
Rule 15.08 A lawyer who is engaged in another profession or
occupation concurrently with the practice of law shall make
clear to his client whether he is acting as a lawyer or in another
capacity.
1.10. In the present case. the Legal Clinic appears to render
wedding services (See Annex "A" Petition). Services on routine,
straightforward marriages, like securing a marriage license, and
making arrangements with a priest or a judge, may not
constitute practice of law. However, if the problem is as
complicated as that described in "Rx for Legal Problems" on the
Sharon Cuneta-Gabby Concepcion-Richard Gomez case, then
what may be involved is actually the practice of law. If a non-
lawyer, such as the Legal Clinic, renders such services then it is book assumes to offer general advice on common problems,
engaged in the unauthorized practice of law. and does not purport to give personal advice on a specific
problem peculiar to a designated or readily identified person.
1.11. The Legal Clinic also appears to give information on
Similarly the defendant's publication does not purport to give
divorce, absence, annulment of marriage and visas (See
personal advice on a specific problem peculiar to a designated
Annexes "A" and "B" Petition). Purely giving informational
or readily identified person in a particular situation in their
materials may not constitute of law. The business is similar to
publication and sale of the kits, such publication and sale did
that of a bookstore where the customer buys materials on the
not constitutes the unlawful practice of law . . . . There being
subject and determines on the subject and determines by
no legal impediment under the statute to the sale of the kit,
himself what courses of action to take.
there was no proper basis for the injunction against defendant
It is not entirely improbable, however, that aside from purely maintaining an office for the purpose of selling to persons
giving information, the Legal Clinic's paralegals may apply the seeking a divorce, separation, annulment or separation
law to the particular problem of the client, and give legal agreement any printed material or writings relating to
advice. Such would constitute unauthorized practice of law. matrimonial law or the prohibition in the memorandum of
modification of the judgment against defendant having an
It cannot be claimed that the publication of a legal text which
interest in any publishing house publishing his manuscript on
publication of a legal text which purports to say what the law is
divorce and against his having any personal contact with any
amount to legal practice. And the mere fact that the principles
prospective purchaser. The record does fully support, however,
or rules stated in the text may be accepted by a particular
the finding that for the change of $75 or $100 for the kit, the
reader as a solution to his problem does not affect this. . . . .
defendant gave legal advice in the course of personal contacts
Apparently it is urged that the conjoining of these two, that is,
concerning particular problems which might arise in the
the text and the forms, with advice as to how the forms should
preparation and presentation of the purchaser's asserted
be filled out, constitutes the unlawful practice of law. But that
matrimonial cause of action or pursuit of other legal remedies
is the situation with many approved and accepted texts.
and assistance in the preparation of necessary documents (The
Dacey's book is sold to the public at large. There is no personal
injunction therefore sought to) enjoin conduct constituting the
contact or relationship with a particular individual. Nor does
practice of law, particularly with reference to the giving of
there exist that relation of confidence and trust so necessary to
advice and counsel by the defendant relating to specific
the status of attorney and client. THIS IS THE ESSENTIAL OF
problems of particular individuals in connection with a divorce,
LEGAL PRACTICE THE REPRESENTATION AND ADVISING OF A
separation, annulment of separation agreement sought and
PARTICULAR PERSON IN A PARTICULAR SITUATION. At most the
should be affirmed. (State v. Winder, 348, NYS 2D 270 [1973],
cited in Statsky, supra at p. 101.).
1.12. Respondent, of course, states that its services are "strictly
non-diagnostic, non-advisory. "It is not controverted, however,
that if the services "involve giving legal advice or counselling,"
such would constitute practice of law (Comment, par. 6.2). It is
in this light that FIDA submits that a factual inquiry may be
necessary for the judicious disposition of this case.
xxx xxx xxx
2.10. Annex "A" may be ethically objectionable in that it can
give the impression (or perpetuate the wrong notion) that
there is a secret marriage. With all the solemnities, formalities
and other requisites of marriages (See Articles 2, et seq., Family
Code), no Philippine marriage can be secret.
2.11. Annex "B" may likewise be ethically objectionable. The
second paragraph thereof (which is not necessarily related to
the first paragraph) fails to state the limitation that only
"paralegal services?" or "legal support services", and not legal
services, are available." 11
A prefatory discussion on the meaning of the phrase "practice
of law" becomes exigent for the proper determination of the
issues raised by the petition at bar. On this score, we note that
the clause "practice of law" has long been the subject of
judicial construction and interpretation. The courts have laid
down general principles and doctrines explaining the meaning
and scope of the term, some of which we now take into
account.
Practice of law means any activity, in or out of court, which
requires the application of law, legal procedures, knowledge,
training and experience. To engage in the practice of law is to
perform those acts which are characteristic of the profession.
Generally, to practice law is to give advice or render any kind of
service that involves legal knowledge or skill. 12
The practice of law is not limited to the conduct of cases in
court. It includes legal advice and counsel, and the preparation
of legal instruments and contract by which legal rights are
secured, although such matter may or may not be pending in a
court. 13
In the practice of his profession, a licensed attorney at law
generally engages in three principal types of professional
activity: legal advice and instructions to clients to inform them
of their rights and obligations, preparation for clients of
documents requiring knowledge of legal principles not
possessed by ordinary layman, and appearance for clients
before public tribunals which possess power and authority to
determine rights of life, liberty, and property according to law,
in order to assist in proper interpretation and enforcement of
law. 14
When a person participates in the a trial and advertises himself
as a lawyer, he is in the practice of law. 15 One who confers
with clients, advises them as to their legal rights and then takes
the business to an attorney and asks the latter to look after the
case in court, is also practicing law. 16 Giving advice for
compensation regarding the legal status and rights of another
and the conduct with respect thereto constitutes a practice of
law. 17 One who renders an opinion as to the proper
interpretation of a statute, and receives pay for it, is, to that
extent, practicing law. 18
In the recent case of Cayetano vs. Monsod, 19 after citing the
doctrines in several cases, we laid down the test to determine
whether certain acts constitute "practice of law," thus:
Black defines "practice of law" as:
The rendition of services requiring the knowledge and the
application of legal principles and technique to serve the
interest of another with his consent. It is not limited to
appearing in court, or advising and assisting in the conduct of
litigation, but embraces the preparation of pleadings, and
other papers incident to actions and special proceedings,
conveyancing, the preparation of legal instruments of all kinds,
and the giving of all legal advice to clients. It embraces all
advice to clients and all actions taken for them in matters
connected with the law.
The practice of law is not limited to the conduct of cases on
court.(Land Title Abstract and Trust Co. v. Dworken , 129 Ohio
St. 23, 193N. E. 650). A person is also considered to be in the
practice of law when he:
. . . . for valuable consideration engages in the business of
advising person, firms, associations or corporations as to their
right under the law, or appears in a representative capacity as
an advocate in proceedings, pending or prospective, before
any court, commissioner, referee, board, body, committee, or
commission constituted by law or authorized to settle
controversies and there, in such representative capacity,
performs any act or acts for the purpose of obtaining or
defending the rights of their clients under the law. Otherwise
stated, one who, in a representative capacity, engages in the
business of advising clients as to their rights under the law, or
while so engaged performs any act or acts either in court or
outside of court for that purpose, is engaged in the practice of
law. (State ex. rel. Mckittrick v. C.S. Dudley and Co., 102 S. W.
2d 895, 340 Mo. 852).
This Court, in the case of Philippines Lawyers Association
v. Agrava (105 Phil. 173, 176-177),stated:
The practice of law is not limited to the conduct of cases or
litigation in court; it embraces the preparation of pleadings and
other papers incident to actions and special proceedings, the
management of such actions and proceedings on behalf of
clients before judges and courts, and in addition, conveying. In
general, all advice to clients, and all action taken for them in
matters connected with the law incorporation services,
assessment and condemnation services contemplating an
appearance before a judicial body, the foreclosure of a
mortgage, enforcement of a creditor's claim in bankruptcy and
insolvency proceedings, and conducting proceedings in
attachment, and in matters or estate and guardianship have
been held to constitute law practice, as do the preparation and
drafting of legal instruments, where the work done involves
the determination by the trained legal mind of the legal effect
of facts and conditions. (5 Am. Jr. p. 262, 263).
Practice of law under modern conditions consists in no small
part of work performed outside of any court and having no
immediate relation to proceedings in court. It embraces
conveyancing, the giving of legal advice on a large variety of
subjects and the preparation and execution of legal
instruments covering an extensive field of business and trust
relations and other affairs. Although these transactions may
have no direct connection with court proceedings, they are
always subject to become involved in litigation. They require in
many aspects a high degree of legal skill, a wide experience
with men and affairs, and great capacity for adaptation to
difficult and complex situations. These customary functions of
an attorney or counselor at law bear an intimate relation to the
administration of justice by the courts. No valid distinction, so
far as concerns the question set forth in the order, can be
drawn between that part of the work of the lawyer which
involves appearance in court and that part which involves
advice and drafting of instruments in his office. It is of
importance to the welfare of the public that these manifold
customary functions be performed by persons possessed of
adequate learning and skill, of sound moral character, and
acting at all times under the heavy trust obligations to clients
which rests upon all attorneys. (Moran, Comments on the
Rules o Court, Vol. 3 [1973 ed.], pp. 665-666, citing In Re
Opinion of the Justices [Mass], 194 N. E. 313, quoted in Rhode
Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 197 A. 139,
144).
The practice of law, therefore, covers a wide range of activities
in and out of court. Applying the aforementioned criteria to the
case at bar, we agree with the perceptive findings and
observations of the aforestated bar associations that the
activities of respondent, as advertised, constitute "practice of
law."
The contention of respondent that it merely offers legal
support services can neither be seriously considered nor
sustained. Said proposition is belied by respondent's own
description of the services it has been offering, to wit:
Legal support services basically consists of giving ready
information by trained paralegals to laymen and lawyers, which
are strictly non-diagnostic, non-advisory, through the extensive
use of computers and modern information technology in the
gathering, processing, storage, transmission and reproduction
of information and communication, such as computerized legal
research; encoding and reproduction of documents and
pleadings prepared by laymen or lawyers; document search;
evidence gathering; locating parties or witnesses to a case; fact
finding investigations; and assistance to laymen in need of
basic institutional services from government or non-
government agencies, like birth, marriage, property, or
business registrations; educational or employment records or
certifications, obtaining documentation like clearances,
passports, local or foreign visas; giving information about laws
of other countries that they may find useful, like foreign
divorce, marriage or adoption laws that they can avail of
preparatory to emigration to the foreign country, and other
matters that do not involve representation of clients in court;
designing and installing computer systems, programs, or
software for the efficient management of law offices, The aforesaid conclusion is further strengthened by an article
corporate legal departments, courts and other entities published in the January 13, 1991 issue of the Starweek/The
engaged in dispensing or administering legal services. 20 Sunday Magazine of the Philippines Star, entitled "Rx for Legal
Problems," where an insight into the structure, main purpose
While some of the services being offered by respondent
and operations of respondent corporation was given by its own
corporation merely involve mechanical and technical
"proprietor," Atty. Rogelio P. Nogales:
knowhow, such as the installation of computer systems and
programs for the efficient management of law offices, or the This is the kind of business that is transacted everyday at The
computerization of research aids and materials, these will not Legal Clinic, with offices on the seventh floor of the Victoria
suffice to justify an exception to the general rule. Building along U. N. Avenue in Manila. No matter what the
client's problem, and even if it is as complicated as the Cuneta-
What is palpably clear is that respondent corporation gives out
Concepcion domestic situation, Atty. Nogales and his staff of
legal information to laymen and lawyers. Its contention that
lawyers, who, like doctors are "specialists" in various fields can
such function is non-advisory and non-diagnostic is more
take care of it. The Legal Clinic, Inc. has specialists in taxation
apparent than real. In providing information, for example,
and criminal law, medico-legal problems, labor, litigation, and
about foreign laws on marriage, divorce and adoption, it strains
family law. These specialist are backed up by a battery of
the credulity of this Court that all the respondent corporation
paralegals, counsellors and attorneys.
will simply do is look for the law, furnish a copy thereof to the
client, and stop there as if it were merely a bookstore. With its Atty. Nogales set up The Legal Clinic in 1984. Inspired by the
attorneys and so called paralegals, it will necessarily have to trend in the medical field toward specialization, it caters to
explain to the client the intricacies of the law and advise him or clients who cannot afford the services of the big law firms.
her on the proper course of action to be taken as may be
The Legal Clinic has regular and walk-in clients. "when they
provided for by said law. That is what its advertisements
come, we start by analyzing the problem. That's what doctors
represent and for the which services it will consequently
do also. They ask you how you contracted what's bothering
charge and be paid. That activity falls squarely within the
you, they take your temperature, they observe you for the
jurisprudential definition of "practice of law." Such a conclusion
symptoms and so on. That's how we operate, too. And once
will not be altered by the fact that respondent corporation
the problem has been categorized, then it's referred to one of
does not represent clients in court since law practice, as the
our specialists.
weight of authority holds, is not limited merely giving legal
advice, contract drafting and so forth.
There are cases which do not, in medical terms, require surgery
or follow-up treatment. These The Legal Clinic disposes of in a
matter of minutes. "Things like preparing a simple deed of sale
or an affidavit of loss can be taken care of by our staff or, if this
were a hospital the residents or the interns. We can take care
of these matters on a while you wait basis. Again, kung baga sa
hospital, out-patient, hindi kailangang ma-confine. It's just like
a common cold or diarrhea," explains Atty. Nogales.
Those cases which requires more extensive "treatment" are
dealt with accordingly. "If you had a rich relative who died and
named you her sole heir, and you stand to inherit millions of
pesos of property, we would refer you to a specialist in
taxation. There would be real estate taxes and arrears which
would need to be put in order, and your relative is even taxed
by the state for the right to transfer her property, and only a
specialist in taxation would be properly trained to deal with the
problem. Now, if there were other heirs contesting your rich
relatives will, then you would need a litigator, who knows how
to arrange the problem for presentation in court, and gather
evidence to support the case. 21
That fact that the corporation employs paralegals to carry out
its services is not controlling. What is important is that it is
engaged in the practice of law by virtue of the nature of the
services it renders which thereby brings it within the ambit of
the statutory prohibitions against the advertisements which it
has caused to be published and are now assailed in this
proceeding.
Further, as correctly and appropriately pointed out by the U.P.
WILOCI, said reported facts sufficiently establish that the main
purpose of respondent is to serve as a one-stop-shop of sorts
for various legal problems wherein a client may avail of legal
services from simple documentation to complex litigation and
corporate undertakings. Most of these services are
undoubtedly beyond the domain of paralegals, but rather, are
exclusive functions of lawyers engaged in the practice of law. 22
It should be noted that in our jurisdiction the services being
offered by private respondent which constitute practice of law
cannot be performed by paralegals. Only a person duly
admitted as a member of the bar, or hereafter admitted as
such in accordance with the provisions of the Rules of Court,
and who is in good and regular standing, is entitled to practice
law. 23
Public policy requires that the practice of law be limited to
those individuals found duly qualified in education and
character. The permissive right conferred on the lawyers is an
individual and limited privilege subject to withdrawal if he fails
to maintain proper standards of moral and professional
conduct. The purpose is to protect the public, the court, the
client and the bar from the incompetence or dishonesty of
those unlicensed to practice law and not subject to the
disciplinary control of the court. 24
The same rule is observed in the american jurisdiction
wherefrom respondent would wish to draw support for his
thesis. The doctrines there also stress that the practice of law is
limited to those who meet the requirements for, and have
been admitted to, the bar, and various statutes or rules
specifically so provide. 25 The practice of law is not a lawful
business except for members of the bar who have complied
with all the conditions required by statute and the rules of
court. Only those persons are allowed to practice law who, by
reason of attainments previously acquired through education
and study, have been recognized by the courts as possessing
profound knowledge of legal science entitling them to advise,
counsel with, protect, or defend the rights claims, or liabilities
of their clients, with respect to the construction,
interpretation, operation and effect of law. 26 The justification
for excluding from the practice of law those not admitted to
the bar is found, not in the protection of the bar from
competition, but in the protection of the public from being
advised and represented in legal matters by incompetent and
unreliable persons over whom the judicial department can
exercise little control. 27
We have to necessarily and definitely reject respondent's
position that the concept in the United States of paralegals as
an occupation separate from the law profession be adopted in
this jurisdiction. Whatever may be its merits, respondent
cannot but be aware that this should first be a matter for
judicial rules or legislative action, and not of unilateral adoption
as it has done.
Paralegals in the United States are trained professionals. As
admitted by respondent, there are schools and universities
there which offer studies and degrees in paralegal education,
while there are none in the Philippines. 28 As the concept of the
"paralegals" or "legal assistant" evolved in the United States,
standards and guidelines also evolved to protect the general
public. One of the major standards or guidelines was
developed by the American Bar Association which set up
Guidelines for the Approval of Legal Assistant Education
Programs (1973). Legislation has even been proposed to certify
legal assistants. There are also associations of paralegals in the
United States with their own code of professional ethics, such
as the National Association of Legal Assistants, Inc. and the
American Paralegal Association. 29
In the Philippines, we still have a restricted concept and limited
acceptance of what may be considered as paralegal service. As
pointed out by FIDA, some persons not duly licensed to
practice law are or have been allowed limited representation in
behalf of another or to render legal services, but such
allowable services are limited in scope and extent by the law,
rules or regulations granting permission therefor. 30
Accordingly, we have adopted the American judicial policy that,
in the absence of constitutional or statutory authority, a person
who has not been admitted as an attorney cannot practice law
for the proper administration of justice cannot be hindered by
the unwarranted intrusion of an unauthorized and unskilled
person into the practice of law. 31 That policy should continue
to be one of encouraging persons who are unsure of their legal
rights and remedies to seek legal assistance only from persons
licensed to practice law in the state. 32
Anent the issue on the validity of the questioned
advertisements, the Code of Professional Responsibility
provides that a lawyer in making known his legal services shall The pertinent part of the decision therein reads:
use only true, honest, fair, dignified and objective information
It is undeniable that the advertisement in question was a
or statement of facts. 33 He is not supposed to use or permit
flagrant violation by the respondent of the ethics of his
the use of any false, fraudulent, misleading, deceptive,
profession, it being a brazen solicitation of business from the
undignified, self-laudatory or unfair statement or claim
public. Section 25 of Rule 127 expressly provides among other
regarding his qualifications or legal services. 34 Nor shall he pay
things that "the practice of soliciting cases at law for the
or give something of value to representatives of the mass
purpose of gain, either personally or thru paid agents or
media in anticipation of, or in return for, publicity to attract
brokers, constitutes malpractice." It is highly unethical for an
legal business. 35 Prior to the adoption of the code of
attorney to advertise his talents or skill as a merchant
Professional Responsibility, the Canons of Professional Ethics
advertises his wares. Law is a profession and not a trade. The
had also warned that lawyers should not resort to indirect
lawyer degrades himself and his profession who stoops to and
advertisements for professional employment, such as
adopts the practices of mercantilism by advertising his services
furnishing or inspiring newspaper comments, or procuring his
or offering them to the public. As a member of the bar, he
photograph to be published in connection with causes in which
defiles the temple of justice with mercenary activities as the
the lawyer has been or is engaged or concerning the manner of
money-changers of old defiled the temple of Jehovah. "The
their conduct, the magnitude of the interest involved, the
most worthy and effective advertisement possible, even for a
importance of the lawyer's position, and all other like self-
young lawyer, . . . . is the establishment of a well-merited
laudation. 36
reputation for professional capacity and fidelity to trust. This
The standards of the legal profession condemn the lawyer's cannot be forced but must be the outcome of character and
advertisement of his talents. A lawyer cannot, without violating conduct." (Canon 27, Code of Ethics.).
the ethics of his profession. advertise his talents or skill as in a
We repeat, the canon of the profession tell us that the best
manner similar to a merchant advertising his goods. 37 The
advertising possible for a lawyer is a well-merited reputation
prescription against advertising of legal services or solicitation
for professional capacity and fidelity to trust, which must be
of legal business rests on the fundamental postulate that the
earned as the outcome of character and conduct. Good and
that the practice of law is a profession. Thus, in the case of
efficient service to a client as well as to the community has a
The Director of Religious Affairs. vs. Estanislao R. Bayot 38 an
way of publicizing itself and catching public attention. That
advertisement, similar to those of respondent which are
publicity is a normal by-product of effective service which is
involved in the present proceeding, 39 was held to constitute
right and proper. A good and reputable lawyer needs no
improper advertising or solicitation.
artificial stimulus to generate it and to magnify his success. He
easily sees the difference between a normal by-product of able
service and the unwholesome result of propaganda. 40
Of course, not all types of advertising or solicitation are
prohibited. The canons of the profession enumerate
exceptions to the rule against advertising or solicitation and
define the extent to which they may be undertaken. The
exceptions are of two broad categories, namely, those which
are expressly allowed and those which are necessarily implied
from the restrictions. 41
The first of such exceptions is the publication in reputable law
lists, in a manner consistent with the standards of conduct
imposed by the canons, of brief biographical and informative
data. "Such data must not be misleading and may include only
a statement of the lawyer's 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 distinction; 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." 42
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
the dignity or standing of the profession. 43
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. 44
Verily, taking into consideration the nature and contents of the
advertisements for which respondent is being taken to task,
which even includes a quotation of the fees charged by said
respondent corporation for services rendered, we find and so
hold that the same definitely do not and conclusively cannot
fall under any of the above-mentioned exceptions.
The ruling in the case of Bates, et al. vs. State Bar of
Arizona, 45 which is repeatedly invoked and constitutes the
justification relied upon by respondent, is obviously not
applicable to the case at bar. Foremost is the fact that the
disciplinary rule involved in said case explicitly allows a lawyer,
as an exception to the prohibition against advertisements by
lawyers, to publish a statement of legal fees for an initial
consultation or the availability upon request of a written
schedule of fees or an estimate of the fee to be charged for the
specific services. No such exception is provided for, expressly
or impliedly, whether in our former Canons of Professional
Ethics or the present Code of Professional Responsibility.
Besides, even the disciplinary rule in the Bates case contains a
proviso that the exceptions stated therein are "not applicable
in any state unless and until it is implemented by such
authority in that state." 46 This goes to show that an exception
to the general rule, such as that being invoked by herein
respondent, can be made only if and when the canons
expressly provide for such an exception. Otherwise, the
prohibition stands, as in the case at bar.
It bears mention that in a survey conducted by the American
Bar Association after the decision in Bates, on the attitude of
the public about lawyers after viewing television commercials,
it was found that public opinion dropped significantly 47 with
respect to these characteristics of lawyers:
Trustworthy from 71% to 14%
Professional from 71% to 14%
Honest from 65% to 14%
Dignified from 45% to 14%
Secondly, it is our firm belief that with the present situation of
our legal and judicial systems, to allow the publication of
advertisements of the kind used by respondent would only
serve to aggravate what is already a deteriorating public
opinion of the legal profession whose integrity has consistently
been under attack lately by media and the community in
general. At this point in time, it is of utmost importance in the
face of such negative, even if unfair, criticisms at times, to
adopt and maintain that level of professional conduct which is
beyond reproach, and to exert all efforts to regain the high
esteem formerly accorded to the legal profession.
In sum, it is undoubtedly a misbehavior on the part of the
lawyer, subject to disciplinary action, to advertise his services
except in allowable instances 48 or to aid a layman in the
unauthorized practice of law. 49 Considering that Atty. Rogelio
P. Nogales, who is the prime incorporator, major stockholder
and proprietor of The Legal Clinic, Inc. is a member of the
Philippine Bar, he is hereby reprimanded, with a warning that a
repetition of the same or similar acts which are involved in this
proceeding will be dealt with more severely.
While we deem it necessary that the question as to the legality
or illegality of the purpose/s for which the Legal Clinic, Inc. was
created should be passed upon and determined, we are
constrained to refrain from lapsing into an obiter on that
aspect since it is clearly not within the adjudicative parameters
of the present proceeding which is merely administrative in
nature. It is, of course, imperative that this matter be promptly
determined, albeit in a different proceeding and forum, since,
under the present state of our law and jurisprudence, a
corporation cannot be organized for or engage in the practice
of law in this country. This interdiction, just like the rule against
unethical advertising, cannot be subverted by employing some
so-called paralegals supposedly rendering the alleged support
services.
The remedy for the apparent breach of this prohibition by
respondent is the concern and province of the Solicitor General
who can institute the corresponding quo
warranto action, 50 after due ascertainment of the factual
background and basis for the grant of respondent's corporate
charter, in light of the putative misuse thereof. That spin-off
from the instant bar matter is referred to the Solicitor General
for such action as may be necessary under the circumstances.
ACCORDINGLY, the Court Resolved to RESTRAIN and ENJOIN
herein respondent, The Legal Clinic, Inc., from issuing or
causing the publication or dissemination of any advertisement
in any form which is of the same or similar tenor and purpose
as Annexes "A" and "B" of this petition, and from conducting,
directly or indirectly, any activity, operation or transaction
proscribed by law or the Code of Professional Ethics as
indicated herein. Let copies of this resolution be furnished the
Integrated Bar of the Philippines, the Office of the Bar
Confidant and the Office of the Solicitor General for
appropriate action in accordance herewith.
Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino,
Davide, Jr., Romero, Nocon, Bellosillo, Melo and Quiason, JJ.,
concur
Republic of the Philippines 1. Administrative Cases No. 1302 and 1391.
SUPREME COURT
In 1933, complainant Paulino Valencia (Paulino in short) and his
Manila
wife Romana allegedly bought a parcel of land, where they
EN BANC built their residential house, from a certain Serapia Raymundo,
an heir of Pedro Raymundo the original owner. However, they
failed to register the sale or secure a transfer certificate of title
in their names.
A.M. Nos. 1302, 1391 and 1543 April 26, 1991
Sometime in December, 1968, a conference was held in the
PAULINO VALENCIA, complainant, house of Atty. Eduardo Jovellanos to settle the land dispute
vs. between Serapia Raymundo (Serapia in short) another heir of
ATTY. ARSENIO FER CABANTING, respondent. Pedro Raymundo, and the Valencia spouses since both were
relatives and distant kin of Atty. Jovellanos. Serapia was willing
CONSTANCIA L. VALENCIA, complainant,
to relinquish ownership if the Valencias could show documents
vs.
evidencing ownership. Paulino exhibited a deed of sale written
ATTY. DIONISIO C. ANTINIW, ATTY. EDUARDO U. JOVELLANOS
in the Ilocano dialect. However, Serapia claimed that the deed
and ATTY. ARSENIO FER. CABANTING, respondents.
covered a different property. Paulino and Serapia were not
LYDIA BERNAL, complainant, able to settle their differences. (Report of Investigating Judge
vs. Catalino Castaneda, Jr., pp. 21-22).
ATTY. DIONISIO C. ANTINIW, respondent.
On December 15, 1969 Serapia, assisted by Atty. Arsenio Fer.
Cabanting, filed a complaint against Paulino for the recovery of
possession with damages. The case was docketed as Civil Case
No. V-2170, entitled "Serapia Raymundo, Plaintiff, versus
PER CURIAM:
Paulino Valencia, Defendant." (Report, p. 11).
These consolidated administrative cases seek to disbar
Summoned to plead in Civil Case No. V-2170, the Valencias
respondents Dionisio Antiniw, Arsenio Fer. Cabanting and
engaged the services of Atty. Dionisio Antiniw. Atty. Antiniw
Eduardo Jovellanos (the last named, now an MCTC Judge) for
advised them to present a notarized deed of sale in lieu of the
grave malpractice and misconduct in the exercise of their legal
private document written in Ilocano. For this purpose, Paulino
profession committed in the following manner:
gave Atty. Antiniw an amount of P200.00 to pay the person
who would falsify the signature of the alleged vendor
(Complaint, p. 2; Rollo, p. 7). A "Compraventa Definitiva" (Exh.
B) was executed purporting to be a sale of the questioned lot.
On January 22, 1973, the Court of First Instance of Pangasinan,
Branch V, rendered a decision in favor of plaintiff, Serapia
Raymundo. The lower court expressed the belief that the said
document is not authentic. (Report, p. 14)
Paulino, thereafter, filed a Petition for Certiorari, under Rule
65, with Preliminary Injunction before the Court of Appeals
alleging that the trial court failed to provide a workable
solution concerning his house. While the petition was pending,
the trial court, on March 9, 1973, issued an order of execution
stating that "the decision in this case has already become final
and executory" (Exhibits 3 and 3-A). On March 14, 1973, a writ
of execution was issued.
On March 20, 1973, Serapia sold 40 square meters of the
litigated lot to Atty. Jovellanos and the remaining portion she
sold to her counsel, Atty. Arsenio Fer. Cabanting, on April 25,
1973. (Annex "A" of Administrative Case No. 1302).
On March 4, 1974, Paulino filed a disbarment proceeding
(docketed as Administrative Case No. 1302) against Atty.
Cabanting on the ground that said counsel allegedly violated
Article 1491 of the New Civil Code as well as Article II of the
Canons of Professional Ethics, prohibiting the purchase of
property under litigation by a counsel.
On March 21, 1974 the appellate court dismissed the petition
of Paulino.
On October 14, 1974, Constancia Valencia, daughter of
Paulino, filed a disbarment proceeding (docketed as
Administrative Case No. 1391) against Atty. Dionisio Antiniw for
his participation in the forgery of "Compraventa Definitiva" and
its subsequent introduction as evidence for his client; and also,
against Attys. Eduardo Jovellanos and Arsenio Cabanting for
purchasing a litigated property allegedly in violation of Article
1491 of the New Civil Code; and against the three lawyers, for
allegedly rigging Civil Case No. V-2170 against her parents. On
August 17, 1975, Constancia Valencia filed additional charges
against Atty. Antiniw and Atty. Jovellanos as follows:
1. AGAINST ATTY. DIONISIO ANTINIW:
In the year 1973 Atty. Dionisio Antiniw fraudulently and in
confabulation with one Lydia Bernal had a deed of sale,
fabricated, executed and ratified before him as Notary Public
by one Santiago Bernal in favor of Lydia Bernal when as a
matter of fact said Santiago Bernal had died already about
eight years before in the year 1965.
2. AGAINST ATTY. EDUARDO JOVELLANOS:
In the year 1954 Atty. Eduardo Jovellanos, fraudulently and in
bad faith, in confabulation with Rosa de los Santos as vendee
had, as Notary Public, executed and ratified before him, two (2)
deeds of sale in favor of said Rosa de los Santos when as a
matter of fact the said deeds were not in fact executed by the
supposed vendor Rufino Rincoraya and so Rufino Rincoraya
had filed a Civil Case in Court to annul and declare void the said
sales (p. 7, Report)
2. Administrative Case No. 1543.
A deed of donation propter nuptias involving the transfer of a
piece of land by the grandparents of Lydia Bernal
(complainant,) in favor of her parents, was lost during the last
world war. For this reason, her grandmother (the living donor)
executed a deed of confirmation of the donation propter
nuptias with renunciation of her rights over the property.
(Complaint, p. 1). Notwithstanding the deed, her grandmother
still offered to sell the same property in favor of the
complainant, ostensibly to strengthen the deed of donation (to
prevent others from claim-ing the property).
On consultation, Atty., Antiniw advised them to execute a deed
of sale. Atty. Antiniw allegedly prepared and notarized the
deed of sale in the name of her grandfather (deceased at the
time of signing) with her grandmother's approval.
Felicidad Bernal-Duzon, her aunt who had a claim over the
property filed a complaint against her (Lydia Bernal) and her
counsel, Atty. Antiniw for falsification of a public document.
(Complaint, pp. 1-2) The fiscal exonerated the counsel for lack
of evidence, while a case was filed in court against Lydia Bernal.
On October 3, 1975, Lydia Bernal filed a disbarment proceeding
(docketed as Administrative Case No.1543) against Atty.
Antiniw for illegal acts and bad advice.
Pursuant to the resolution of the First Division of this Court
dated December 9, 1974, the resolution of the Second Division
dated March 3, 1975 and the two resolutions of the Second
Division both dated December 3, 1975, Administrative Cases
Nos. 1302, 1391 and 1543 were referred to the Office of the
Solicitor General for investigation, report and
recommendation.
Upon formal request of Constancia L. Valencia and Lydia Bernal
dated March 3, 1976, all of these cases were ordered
consolidated by Solicitor General Estelito P. Mendoza per his
handwritten directive of March 9, 1976.
On April 12, 1988, We referred the investigation of these cases
to the Integrated Bar of the Philippines.1wphi1 When Atty.
Jovellanos was appointed as Municipal Circuit Trial Court Judge
of Alcala-Bautista, Pangasinan, We referred the investigation of
these cases to Acting Presiding Judge Cesar Mindaro, Regional
Trial Court, Branch 50, Villasis, Pangasinan, for further
investigation.
In view of the seriousness of the charge against the
respondents and the alleged threats against the person of
complainant Constancia L. Valencia, We directed the transfer
of investigation to the Regional Trial Court of Manila.
The three administrative cases were raffled to Branch XVII of
the Regional Trial Court of Manila, under the sala of Judge
Catalino Castaneda, Jr.
After investigation, Judge Catalino Castaeda, Jr.,
recommended the dismissal of cases against Atty. Jovellanos
and Atty. Arsenio Fer. Cabanting; dismissal of Administrative
Case No. 1543 and the additional charges in Administrative
Case No. 1391 against Antiniw and Judge Jovellanos; however,
he recommended the suspension of Atty. Antiniw from the
practice of law for six months finding him guilty of malpractice
in falsifying the "Compraventa Definitiva."
The simplified issues of these consolidated cases are:
I. Whether or not Atty. Cabanting purchased the subject
property in violation of Art. 1491 of the New Civil Code.
II. Whether or not Attys. Antiniw and Jovellanos are guilty of
malpractice in falsifying notarial documents.
III. Whether or not the three lawyers connived in rigging Civil
Case No. V-2170.
I
Under Article 1491 of the New Civil Code:
The following persons cannot acquire by purchase, even at a
public of judicial auction, either in person or through the
mediation of another:
xxx xxx xxx
(5) . . . this prohibition includes the act of acquiring by
assignment and shall apply to lawyers, with respect to the
property and rights which may be the object of any litigation in
which they make take part by virtue of their profession.
Public policy prohibits the transactions in view of the fiduciary
relationship involved. It is intended to curtail any undue
influence of the lawyer upon his client. Greed may get the
better of the sentiments of loyalty and disinterestedness. Any
violation of this prohibition would constitute malpractice (In re:
Attorney Melchor Ruste, 40 O.G. p. 78) and is a ground for
suspension. (Beltran vs. Fernandez, 70 Phil. 248).
Art. 1491, prohibiting the sale to the counsel concerned,
applies only while the litigation is pending. (Director of Lands
vs. Adaba, 88 SCRA 513; Hernandez vs. Villanueva, 40 Phil.
775).
In the case at bar, while it is true that Atty. Arsenio Fer.
Cabanting purchased the lot after finality of judgment, there
was still a pending certiorari proceeding. A thing is said to be in
litigation not only if there is some contest or litigation over it in
court, but also from the moment that it becomes subject to the
judicial action of the judge. (Gan Tingco vs. Pabinguit, 35 Phil.
81). Logic indicates, in certiorari proceedings, that the
appellate court may either grant or dismiss the petition. Hence,
it is not safe to conclude, for purposes under Art. 1491 that the
litigation has terminated when the judgment of the trial court
become final while a certiorari connected therewith is still in
progress. Thus, purchase of the property by Atty. Cabanting in
this case constitutes malpractice in violation of Art. 1491 and
the Canons of Professional Ethics. Clearly, this malpractice is a
ground for suspension.
The sale in favor of Atty. Jovellanos does not constitute
malpractice. There was no attorney-client relationship
between Serapia and Atty. Jovellanos, considering that the introduction in court prejudices his prime duty in the
latter did not take part as counsel in Civil Case No. V-2170. The administration of justice as an officer of the court.
transaction is not covered by Art. 1491 nor by the Canons
A lawyer owes entire devotion to the interest of his client
adverted to.
(Santos vs. Dichoso, 84 SCRA 622), but not at the expense of
II truth. (Cosmos Foundry Shopworkers Union vs. La Bu, 63 SCRA
313). The first duty of a lawyer is not to his client but to the
It is asserted by Paulino that Atty. Antiniw asked for and
administration of justice. (Lubiano vs. Gordalla, 115 SCRA 459)
received the sum of P200.00 in consideration of his executing
To that end, his client's success is wholly subordinate. His
the document "Compraventa Definitiva" which would show
conduct ought to and must always be scrupulously observant
that Paulino bought the property. This charge, Atty. Antiniw
of law and ethics. While a lawyer must advocate his client's
simply denied. It is settled jurisprudence that affirmative
cause in utmost earnestness and with the maximum skill he
testimony is given greater weight than negative testimony
can marshal, he is not at liberty to resort to illegal means for
(Bayasen vs. CA, L-25785, Feb. 26, 1981; Vda. de Ramos vs. CA,
his client's interest. It is the duty of an attorney to employ, for
et al., L40804, Jan. 31, 1978). When an individual's integrity is
the purpose of maintaining the causes confided to him, such
challenged by evidence, it is not enough that he deny the
means as are consistent with truth and honor. (Pangan vs.
charges against him; he must meet the issue and overcome the
Ramos, 93 SCRA 87).
evidence for the relator and show proofs that he still maintains
the highest degree of morality and integrity which at all time is Membership in the Bar is a privilege burdened with conditions.
expected of him. (De los Reyes vs. Aznar, Adm. Case No. 1334, By far, the most important of them is mindfulness that a lawyer
Nov. 28, 1989). is an officer of the court. (In re: Ivan T. Publico, 102 SCRA 722).
This Court may suspend or disbar a lawyer whose acts show his
Although Paulino was a common farmer who finished only
unfitness to continue as a member of the Bar. (Halili vs. CIR,
Grade IV, his testimony, even if not corroborated by another
136 SCRA 112). Disbarment, therefore, is not meant as a
witness, deserves credence and can be relied upon. His
punishment depriving him of a source of livelihood but is
declaration dwelt on a subject which was so delicate and
rather intended to protect the administration of justice by
confidential that it would be difficult to believe the he
requiring that those who exercise this function should be
fabricated his evidence.
competent, honorable and reliable in order that courts and the
There is a clear preponderant evidence that Atty. Antiniw public may rightly repose confidence in them. (Noriega vs.
committed falsification of a deed of sale, and its subsequent
Sison, 125 SCRA 293). Atty. Antiniw failed to live up to the high
standards of the law profession.
The other charges of malpractice against Atty. Antiniw and
Atty. Jovellanos should be dismissed for lack of evidence.
During the proceedings in Administrative Case No. 1543, Lydia
Bernal testified in full on direct examination, but she never
submitted herself for cross-examination. Several subpoenas for
cross-examination were unheeded. She eventually requested
the withdrawal of her complaint.
Procedural due process demands that respondent lawyer
should be given an opportunity to cross-examine the witnesses
against him.1wphi1 He enjoys the legal presumption that he is
innocent of the charges against him until the contrary is
proved. (Santos vs. Dichoso, 84 SCRA 622). The case must be
established by clear, convincing and satisfactory proof. (Camus
vs. Diaz, Adm. Case No. 1616, February 9, 1989), Since Atty.
Antiniw was not accorded this procedural due process, it is but
proper that the direct testimony of Lydia Bernal be stricken
out.
In view also of the affidavit of desistance executed by the
complainant, Administrative Case No. 1543 should be
dismissed. Although the filing of an affidavit of desistance by
complainant for lack of interest does not ipso facto result in the
termination of a case for suspension or disbarment of an erring
lawyer (Munar vs. Flores, 122 SCRA 448), We are constrained in
the case at bar, to dismiss the same because there was no
evidence to substantiate the charges.
The additional charge against Atty. Antiniw in Administrative
Case No. 1391 is predicated on the information furnished by
Lydia Bernal. It was not based on the personal knowledge of
Constancia L. Valencia: hence, hearsay. "Any evidence, whether
oral or documentary, is hearsay if its probative value is not
based on the personal knowledge of the witness but on the
knowledge of some other person not on the witness stand."
(Regalado, Remedial Law Compendium, 6th ed., vol. 2, 1989, p.
486). Being hearsay, the evidence presented is inadmissible.
The additional charge filed by Constancia L. Valencia against
Atty. Jovellanos in Administrative Case No. 1391 was not
proved at all. Complainant failed to prove her additional
charges.
III
There is no evidence on record that the three lawyers involved
in these administrative cases conspired in executing the
falsified "Compraventa Definitiva" and rigged the Civil Case No.
V-2170.
Atty. Jovellanos is a distant kin of the Raymundos and
Valencias. In fact, he and the Valencias are neighbors and only
two meters separate their houses. It would not be believable
that Atty. Jovellanos, a practicing lawyer, would hold a meeting
with the heirs of Pedro Raymundo in his house with the
intention of inducing them to sue the Valencias. Atty.
Jovellanos even tried to settle the differences between the
parties in a meeting held in his house. He appeared in Civil Case
No. V-2170 as an involuntary witness to attest to the holding of
the conference.
Besides, the camaraderie among lawyers is not proof of
conspiracy, but a sign of brotherhood among them. One of the
fourfold duties of a lawyer is his duty to the Bar. A lawyer
should treat the opposing counsel, and his brethren in the law
profession, with courtesy, dignity and civility. They may "do as
adversaries do in law: strive mightily but (they) eat and drink as
friends." This friendship does not connote conspiracy.
WHEREFORE, judgment is hereby rendered declaring: 1.
Dionisio Antiniw DISBARRED from the practice of law, and his
name is ordered stricken off from the roll of attorneys; 2.
Arsenio Fer. Cabanting SUSPENDED from the practice of law for
six months from finality of this judgment; and 3. Administrative
Case No. 1391 against Attorney Eduardo Jovellanos and
additional charges therein, and Administrative Case No. 1543
DISMISSED.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz,
Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Grio-
Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC A.C. No. 6705 March 31, 2006
RUTHIE LIM-SANTIAGO, Complainant,
vs. ATTY. CARLOS B. SAGUCIO, Respondent.
D E C I S I O N CARPIO, J.:
The Case
This is a disbarment complaint against Atty. Carlos B. Sagucio
for violating Rule 15.03 of the Code of Professional
Responsibility and for defying the prohibition against private
practice of law while working as government prosecutor.
The Facts
Ruthie Lim-Santiago ("complainant") is the daughter of Alfonso
Lim and Special Administratrix of his estate. 1Alfonso Lim is a
stockholder and the former President of Taggat Industries,
Inc. 2
Atty. Carlos B. Sagucio ("respondent") was the former
Personnel Manager and Retained Counsel of Taggat Industries,
Inc. 3 until his appointment as Assistant Provincial Prosecutor
of Tuguegarao, Cagayan in 1992. 4
Taggat Industries, Inc. ("Taggat") is a domestic corporation
engaged in the operation of timber concessions from the
government. The Presidential Commission on Good
Government sequestered it sometime in 1986, 5 and its
operations ceased in 1997. 6
Sometime in July 1997, 21 employees of Taggat ("Taggat
employees") filed a criminal complaint entitled "Jesus Tagorda,
Jr. et al. v. Ruthie Lim-Santiago," docketed as I.S. No. 97-240
("criminal complaint"). 7 Taggat employees alleged that
complainant, who took over the management and control of
Taggat after the death of her father, withheld payment of their
salaries and wages without valid cause from 1 April 1996 to 15
July 1997. 8
Respondent, as Assistant Provincial Prosecutor, was assigned to
conduct the preliminary investigation. 9 He resolved the
criminal complaint by recommending the filing of 651
Informations 10 for violation of Article 288 11 in relation to
Article 116 12 of the Labor Code of the Philippines. 13
Complainant now charges respondent with the following
violations:
1. Rule 15.03 of the Code of Professional Responsibility
Complainant contends that respondent is guilty of representing
conflicting interests. Respondent, being the former Personnel
Manager and Retained Counsel of Taggat, knew the operations
of Taggat very well. Respondent should have inhibited himself
from hearing, investigating and deciding the case filed by
Taggat employees. 14Furthermore, complainant claims that
respondent instigated the filing of the cases and even harassed
and threatened Taggat employees to accede and sign an
affidavit to support the complaint. 15
2. Engaging in the private practice of law while working as a
government prosecutor
Complainant also contends that respondent is guilty of
engaging in the private practice of law while working as a
government prosecutor. Complainant presented evidence to
prove that respondent received P10,000 as retainers fee for
the months of January and February 1995, 16 another P10,000
for the months of April and May 1995, 17 and P5,000 for the
month of April 1996. 18
Complainant seeks the disbarment of respondent for violating
Rule 15.03 of the Code of Professional Responsibility and for
defying the prohibition against private practice of law while
working as government prosecutor.
Respondent refutes complainants allegations and counters
that complainant was merely aggrieved by the resolution of the
criminal complaint which was adverse and contrary to her
expectation. 19
Respondent claims that when the criminal complaint was filed,
respondent had resigned from Taggat for more than five
years. 20 Respondent asserts that he no longer owed his
undivided loyalty to Taggat. 21 Respondent argues that it was
his sworn duty to conduct the necessary preliminary
investigation. 22 Respondent contends that complainant failed
to establish lack of impartiality when he performed his
duty. 23 Respondent points out that complainant did not file a
motion to inhibit respondent from hearing the criminal
complaint 24 but instead complainant voluntarily executed and
filed her counter-affidavit without mental reservation. 25
Respondent states that complainants reason in not filing a
motion to inhibit was her impression that respondent would
exonerate her from the charges filed as gleaned from
complainants statement during the hearing conducted on 12
February 1999:
xxx
Q. (Atty. Dabu). What do you mean you didnt think he would
do it, Madam Witness?
A. Because he is supposed to be my fathers friend and he was
working with my Dad and he was supposed to be trusted by my
father. And he came to me and told me he gonna help me. x x
x. 26
Respondent also asserts that no conflicting interests exist
because he was not representing Taggat employees or
complainant. Respondent claims he was merely performing his
official duty as Assistant Provincial Prosecutor. 27Respondent
argues that complainant failed to establish that respondents
act was tainted with personal interest, malice and bad faith. 28
Respondent denies complainants allegations that he instigated
the filing of the cases, threatened and harassed Taggat
employees. Respondent claims that this accusation is bereft of
proof because complainant failed to mention the names of the
employees or present them for cross-examination. 29
Respondent does not dispute his receipt, after his appointment The Integrated Bar of the Philippines Investigating
as government prosecutor, of retainer fees from complainant Commissioner Ma. Carmina M. Alejandro-Abbas ("IBP
but claims that it Commissioner Abbas") heard the case 36 and allowed the
parties to submit their respective memoranda. 37 Due to IBP
was only on a case-to-case basis and it ceased in
Commissioner Abbas resignation, the case was reassigned to
1996. 30 Respondent contends that the fees were paid for his
Commissioner Dennis A.B. Funa ("IBP Commissioner Funa"). 38
consultancy services and not for representation. Respondent
submits that consultation is not the same as representation After the parties filed their memoranda and motion to resolve
and that rendering consultancy services is not the case, the IBP Board of Governors issued Resolution No. XVI-
prohibited. 31 Respondent, in his Reply-Memorandum, states: 2004-479 ("IBP Resolution") dated 4 November 2004 adopting
with modification 39 IBP Commissioner Funas Report and
x x x [I]f ever Taggat paid him certain amounts, these were paid
Recommendation ("Report") finding respondent guilty of
voluntarily by Taggat without the respondents asking,
conflict of interests, failure to safeguard a former clients
intended as token consultancy fees on a case-to-case basis and
interest, and violating the prohibition against the private
not as or for retainer fees. These payments do not at all show
practice of law while being a government prosecutor. The IBP
or translate as a specie of conflict of interest. Moreover, these
Board of Governors recommended the imposition of a penalty
consultations had no relation to, or connection with, the
of three years suspension from the practice of law. The Report
above-mentioned labor complaints filed by former Taggat
reads:
employees. 32
Now the issue here is whether being a former lawyer of
Respondent insists that complainants evidence failed to prove
Taggat conflicts with his role as Assistant Provincial Prosecutor
that when the criminal complaint was filed with the Office of
in deciding I.S. No. 97-240. A determination of this issue will
the Provincial Prosecutor of Cagayan, respondent was still the
require the test of whether the matter in I.S. No. 97-240 will
retained counsel or legal consultant. 33
conflict with his former position of Personnel Manager and
While this disbarment case was pending, the Resolution and Legal Counsel of Taggat.
Order issued by respondent to file 651 Informations against
I.S. No. 97-240 was filed for "Violation of Labor Code"
complainant was reversed and set aside by Regional State
(see Resolution of the Provincial Prosecutors Office, Annex "B"
Prosecutor of Cagayan Rodolfo B. Cadelina last 4 January
of Complaint). Herein Complainant, Ruthie Lim-Santiago, was
1999. 34 Hence, the criminal complaint was dismissed. 35
being accused as having the "management and control" of
The IBPs Report and Recommendation Taggat (p. 2, Resolution of the Prov. Pros. Office, supra).
Clearly, as a former Personnel Manager and Legal Counsel of
Taggat, herein Respondent undoubtedly handled the personnel
and labor concerns of Taggat. Respondent, undoubtedly dealt
with and related with the employees of Taggat. Therefore,
Respondent undoubtedly dealt with and related with
complainants in I.S. No. 97-240. The issues, therefore, in I.S.
No. 97-240, are very much familiar with Respondent. While the
issues of unpaid salaries pertain to the periods 1996-1997, the
mechanics and personalities in that case are very much familiar
with Respondent.
A lawyer owes something to a former client. Herein Respondent
owes to Taggat, a former client, the duty to "maintain inviolate
the clients confidence or to refrain from doing anything which
will injuriously affect him in any matter in which he previously
represented him" (Natam v. Capule, 91 Phil. 640; p. 231,
Agpalo, Legal Ethics, 4th ed.)
Respondent argues that as Assistant Provincial Prosecutor, he
does not represent any client or any interest except justice. It
should not be forgotten, however, that a lawyer has
an immutable duty to a former client with respect to matters
that he previously handled for that former client. In this case,
matters relating to personnel, labor policies, and labor
relations that he previously handled as Personnel Manager and
Legal Counsel of Taggat. I.S. No. 97-240 was for "Violation of
the Labor Code." Here lies the conflict. Perhaps it would have
been different had I.S. No. 97-240 not been labor-related, or if
Respondent had not been a Personnel Manager concurrently
as Legal Counsel. But as it is, I.S. No. 97-240 is labor-related
and Respondent was a former Personnel Manager of Taggat.
xxxx
While Respondent ceased his relations with Taggat in 1992 and
the unpaid salaries being sought in I.S. No. 97-240 were of the
years 1996 and 1997, the employees and management
involved are the very personalities he dealt with as Personnel
Manager and Legal Counsel of Taggat. Respondent dealt with
these persons in his fiduciary relations with Taggat. Moreover,
he was an employee of the corporation and part of its
management.
xxxx
As to the propriety of receiving "Retainer Fees" or "consultancy
fees" from herein Complainant while being an Assistant
Provincial Prosecutor, and for rendering legal consultancy work
while being an Assistant Provincial Prosecutor, this matter had
long been settled. Government prosecutors are prohibited to
engage in the private practice of law (see Legal and Judicial
Ethics, Ernesto Pineda, 1994 ed., p. 20; People v. Villanueva, 14
SCRA 109; Aquino v. Blanco 70 Phil. 647). The act of being a
legal consultant is a practice of law. To engage in the practice
of law is to do any of those acts that are characteristic of the
legal profession (In re: David, 93 Phil. 461). It covers any
activity, in or out of court, which required the application of
law, legal principles, practice or procedures and calls for legal
knowledge, training and experience (PLA v. Agrava, 105 Phil.
173; People v. Villanueva, 14 SCRA 111; Cayetano v. Monsod,
201 SCRA 210).
Respondent clearly violated this prohibition.
As for the secondary accusations of harassing certain
employees of Taggat and instigating the filing of criminal
complaints, we find the evidence insufficient.
Accordingly, Respondent should be found guilty of conflict of
interest, failure to safeguard a former clients interest, and
violating the prohibition against the private practice of law
while being a government prosecutor. 40
The IBP Board of Governors forwarded the Report to the Court
as provided under Section 12(b), Rule 139-B 41 of the Rules of
Court.
The Ruling of the Court
The Court exonerates respondent from the charge of violation
of Rule 15.03 of the Code of Professional Responsibility
("Code"). However, the Court finds respondent liable for
violation of Rule 1.01, Canon 1 of the Code of Professional
Responsibility against unlawful conduct. 42 Respondent
committed unlawful conduct when he violated Section 7(b)(2)
of the Code of Conduct and Ethical Standards for Public
Officials and Employees or Republic Act No. 6713 ("RA 6713").
Canon 6 provides that the Code "shall apply to lawyers in
government service in the discharge of their official
duties." 43 A government lawyer is thus bound by the
prohibition "not [to] represent conflicting
interests." 44However, this rule is subject to certain limitations.
The prohibition to represent conflicting interests does not
apply when no conflict of interest exists, when a written
consent of all concerned is given after a full disclosure of the
facts or when no true attorney-client relationship
exists. 45 Moreover, considering the serious consequence of
the disbarment or suspension of a member of the Bar, clear
preponderant evidence is necessary to justify the imposition of
the administrative penalty. 46
Respondent is also mandated under Rule 1.01 of Canon 1 not
to engage in "unlawful x x x conduct." Unlawful conduct
includes violation of the statutory prohibition on a government
employee to "engage in the private practice of [his] profession
unless authorized by the Constitution or law, provided, that
such practice will not conflict or tend to conflict with [his]
official functions." 47
Complainants evidence failed to substantiate the claim that
respondent represented conflicting interests
In Quiambao v. Bamba, 48 the Court enumerated various tests
to determine conflict of interests. One test of inconsistency of
interests is whether the lawyer will be asked to use against his
former client any confidential information acquired through
their connection or previous employment. 49 In essence, what a
lawyer owes his former client is to maintain inviolate the
clients confidence or to refrain from doing anything which will
injuriously affect him in any matter in which he previously
represented him. 50
In the present case, we find no conflict of interests when
respondent handled the preliminary investigation of the
criminal complaint filed by Taggat employees in 1997. The
issue in the criminal complaint pertains to non-payment of
wages that occurred from 1 April 1996 to 15 July 1997. Clearly,
respondent was no longer connected with Taggat during that
period since he resigned sometime in 1992.
In order to charge respondent for representing conflicting
interests, evidence must be presented to prove that
respondent used against Taggat, his former client, any
confidential information acquired through his previous
employment. The only established participation respondent
had with respect to the criminal complaint is that he was the
one who conducted the preliminary investigation. On that basis
alone, it does not necessarily follow that respondent used any
confidential information from his previous employment with
complainant or Taggat in resolving the criminal complaint.
The fact alone that respondent was the former Personnel
Manager and Retained Counsel of Taggat and the case he
resolved as government prosecutor was labor-related is not a
sufficient basis to charge respondent for representing
conflicting interests. A lawyers immutable duty to a former
client does not cover transactions that occurred beyond the
lawyers employment with the client. The intent of the law is to
impose upon the lawyer the duty to protect the clients
interests only on matters that he previously handled for the
former client and not for matters that arose after the lawyer-
client relationship has terminated.
Further, complainant failed to present a single iota of evidence
to prove her allegations. Thus, respondent is not guilty of
violating Rule 15.03 of the Code.
Respondent engaged in the private practice of law while
working as a government prosecutor
The Court has defined the practice of law broadly as
x x x any activity, in or out of court, which requires the
application of law, legal procedure, knowledge, training and
experience. "To engage in the practice of law is to perform
those acts which are characteristics of the profession.
Generally, to practice law is to give notice or render any kind of
service, which device or service requires the use in any degree
of legal knowledge or skill." 51
"Private practice of law" contemplates a succession of acts of
the same nature habitually or customarily holding ones self to
the public as a lawyer. 52
Respondent argues that he only rendered consultancy services
to Taggat intermittently and he was not a retained counsel of
Taggat from 1995 to 1996 as alleged. This argument is without
merit because the law does not distinguish between
consultancy services and retainer agreement. For as long as
respondent performed acts that are usually rendered by
lawyers with the use of their legal knowledge, the same falls
within the ambit of the term "practice of law."
Nonetheless, respondent admitted that he rendered his legal
services to complainant while working as a government
prosecutor. Even the receipts he signed stated that the
payments by Taggat were for "Retainers fee." 53 Thus, as
correctly pointed out by complainant, respondent clearly
violated the prohibition in RA 6713.
However, violations of RA 6713 are not subject to disciplinary
action under the Code of Professional Responsibility unless the
violations also constitute infractions of specific provisions of
the Code of Professional Responsibility. Certainly, the IBP has
no jurisdiction to investigate violations of RA 6713 the Code
of Conduct and Ethical Standards for Public Officials and
Employees unless the acts involved also transgress provisions
of the Code of Professional Responsibility.
Here, respondents violation of RA 6713 also constitutes a
violation of Rule 1.01 of Canon 1, which mandates that "[a]
lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct." Respondents admission that he received
from Taggat fees for legal services while serving as a
government prosecutor is an unlawful conduct, which
constitutes a violation of Rule 1.01.
Respondent admitted that complainant also charged him with
unlawful conduct when respondent stated in his Demurrer to
Evidence:
In this instant case, the complainant prays that the respondent
be permanently and indefinitely suspended or disbarred from
the practice of the law profession and his name removed from
the Roll of Attorneys on the following grounds:
xxxx
d) that respondent manifested gross misconduct and gross
violation of his oath of office and in his dealings with the
public. 54
On the Appropriate Penalty on Respondent
The appropriate penalty on an errant lawyer depends on the
exercise of sound judicial discretion based on the surrounding
facts. 55
Under Civil Service Law and rules, the penalty for government
employees engaging in unauthorized private practice of
profession is suspension for six months and one day to one
year. 56 We find this penalty appropriate for respondents
violation in this case of Rule 1.01, Canon 1 of the Code of
Professional Responsibility.
WHEREFORE, we find respondent Atty. Carlos B.
Sagucio GUILTY of violation of Rule 1.01, Canon 1 of the Code
of Professional Responsibility. Accordingly,
we SUSPEND respondent Atty. Carlos B. Sagucio from the
practice of law for SIX MONTHS effective upon finality of this
Decision.
Let copies of this Decision be furnished the Office of the Bar
Confidant to be appended to respondents personal record as
an attorney, the Integrated Bar of the Philippines, the
Department of Justice, and all courts in the country for their
information and guidance.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12426 February 16, 1959
PHILIPPINE LAWYER'S ASSOCIATION, petitioner,
vs.
CELEDONIO AGRAVA, in his capacity as Director of the
Philippines Patent Office, respondent.
Arturo A. Alafriz for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor
Pacifico P. de Castro for respondent.
MONTEMAYOR, J.:
This is the petition filed by the Philippine Lawyer's Association
for prohibition and injunction against Celedonio Agrava, in his
capacity as Director of the Philippines Patent Office.
On may 27, 1957, respondent Director issued a circular
announcing that he had scheduled for June 27, 1957 an
examination for the purpose of determining who are qualified
to practice as patent attorneys before the Philippines Patent
Office, the said examination to cover patent law and
jurisprudence and the rules of practice before said office.
According to the circular, members of the Philippine Bar,
engineers and other persons with sufficient scientific and
technical training are qualified to take the said examination. It
would appear that heretofore, respondent Director has been
holding similar examinations.
It is the contention of the petitioner Philippine Lawyer's
Association that one who has passed the bar examinations and
is licensed by the Supreme Court to practice law in the
Philippines and who is in good standing, is duly qualified to
practice before the Philippines Patent Office, and that
consequently, the cat of the respondent Director requiring
members of the Philippine Bar in good standing to take and
pass an examination given by the Patent Office as a condition
precedent to their being allowed to practice before said office,
such as representing applicants in the preparation and
prosecution of applications for patent, is in excess of his
jurisdiction and is in violation of the law.
In his answer, respondent Director, through the Solicitor
General, maintains that the prosecution of patent cases "does
not involve entirely or purely the practice of law but includes
the application of scientific and technical knowledge and
training, so much so that, as a matter of actual practice, the
prosecution of patent cases may be handled not only by
lawyers, but also engineers and other persons with sufficient
scientific and technical training who pass the prescribed
examinations as given by the Patent Office; . . . that the Rules
of Court do not prohibit the Patent Office, or any other quasi-
judicial body from requiring further condition or qualification
from those who would wish to handle cases before the Patent
Office which, as stated in the preceding paragraph, requires
more of an application of scientific and technical knowledge
than the mere application of provisions of law; . . . that the
action taken by the respondent is in accordance with Republic
Act No. 165, otherwise known as the Patent Law of the
Philippines, which similar to the United States Patent Law, in
accordance with which the United States Patent Office has also
prescribed a similar examination as that prescribed by
respondent. . . .
Respondent further contends that just as the Patent law of the
United States of America authorizes the Commissioner of
Patents to prescribe examinations to determine as to who
practice before the United States Patent Office, the
respondent, is similarly authorized to do so by our Patent Law,
Republic Act No. 165.
Although as already stated, the Director of Patents, in the past,
would appear to have been holding tests or examinations the
passing of which was imposed as a required qualification to
practice before the Patent Office, to our knowledge, this is the
first time that the right of the Director of Patents to do so,
specially as regards members of the bar, has been questioned
formally, or otherwise put in issue. And we have given it careful
thought and consideration.
The Supreme Court has the exclusive and constitutional power
with respect to admission to the practice of law in the
Philippines1 and to any member of the Philippine Bar in good
standing may practice law anywhere and before any entity,
whether judicial or quasi-judicial or administrative, in the
Philippines. Naturally, the question arises as to whether or not
appearance before the patent Office and the preparation and
the prosecution of patent applications, etc., constitutes or is
included in the practice of law.
The practice of law is not limited to the conduct of cases or
litigation in court; it embraces the preparation of pleadings and
other papers incident to actions and social proceedings, the
management of such actions and proceedings on behalf of
clients before judges and courts, and in addition, conveying. In
general, all advice to clients, and all action taken for them in
matters connected with the law corporation services,
assessment and condemnation services contemplating an
appearance before a judicial body, the foreclosure of a
mortgage, enforcement of a creditor's claim in bankruptcy and
insolvency proceedings, and conducting proceedings in
attachment, and in matters of estate and guardianship have
been held to constitute law practice as do the preparation and
drafting of legal instruments, where the work done involves the
determination by the trained legal mind of the legal effect of
facts and conditions. (5 Am. Jur. p. 262, 263). (Emphasis
supplied).
Practice of law under modern conditions consists in no small
part of work performed outside of any court and having no
immediate relation to proceedings in court. It embraces
conveyancing, the giving of legal advice on a large variety of
subjects, and the preparation and execution of legal
instruments covering an extensive field of business and trust
relations and other affairs. Although these transactions may
have no direct connection with court proceedings, they are
always subject to become involved in litigation. They require in
many aspects a high degree of legal skill, a wide experience
with men and affairs, and great capacity for adaptation to
difficult and complex situations. These customary functions of
an attorney or counselor at law bear an intimate relation to the
administration of justice by the courts. No valid distinction, so
far as concerns the question set forth in the order, can be
drawn between that part which involves advice and drafting of
instruments in his office. It is of importance to the welfare of
the public that these manifold customary functions be
performed by persons possessed of adequate learning and skill,
of sound moral character, and acting at all times under the
heavy trust obligations to clients which rests upon all
attorneys. (Moran, Comments on the Rules of Court, Vol. 3
(1953 ed.), p. 665-666, citing In re Opinion of the Justices
(Mass.), 194 N.E. 313, quoted in Rhode Is. Bar Assoc. vs.
Automobile Service Assoc. (R. I. ) 179 A. 139, 144). (Emphasis
ours).
In our opinion, the practice of law includes such appearance
before the Patent Office, the representation of applicants,
oppositors, and other persons, and the prosecution of their
applications for patent, their oppositions thereto, or the
enforcement of their rights in patent cases. In the first place,
although the transaction of business in the Patent Office
involves the use and application of technical and scientific
knowledge and training, still, all such business has to be
rendered in accordance with the Patent Law, as well as other
laws, including the Rules and Regulations promulgated by the
Patent Office in accordance with law. Not only this, but
practice before the Patent Office involves the interpretation
and application of other laws and legal principles, as well as the
existence of facts to be established in accordance with the law
of evidence and procedure. For instance: Section 8 of our
Patent Law provides that an invention shall not be patentable if
it is contrary to public order or morals, or to public health or
welfare. Section 9 says that an invention shall not be
considered new or patentable if it was known or used by
others in the Philippines before the invention thereof by the
inventor named in any printed publication in the Philippines or
any foreign country more than one year before the application
for a patent therefor, or if it had been in public use or on sale
in the Philippines for more than one year before the
application for the patent therefor. Section 10 provides that
the right to patent belongs to the true and actual inventor, his
heirs, legal representatives or assigns. Section 25 and 26 refer
to connection of any mistake in a patent. Section 28
enumerates the grounds for cancellation of a patent; that
although any person may apply for such cancellation, under
Section 29, the Solicitor General is authorized to petition for
the cancellation of a patent. Section 30 mentions the
requirements of a petition for cancellation. Section 31 and 32
provide for a notice of hearing of the petition for cancellation
of the patent by the Director of Patents in case the said
cancellation is warranted. Under Section 34, at any time after
the expiration of three years from the day the patent was
granted, any person patent on several grounds, such as, if the
patented invention is not being worked in the Philippines on a
commercial scale, or if the demand for the patented article in
the Philippines on a commercial scale, or if the demand for the
patented article in the Philippines is not being met to an
adequate extent and reasonable terms, or if by reason of the
patentee's refusal to grant a license on reasonable terms or by
reason of the condition attached by him to the license,
purchase or use of the patented article or working of the
patented process or machine of production, the establishment
of a new trade or industry in the Philippines is prevented; or if
the patent or invention relates to food or medicine or is
necessary to public health or public safety. All these things
involve the applications of laws, legal principles, practice and
procedure. They call for legal knowledge, training and
experience for which a member of the bar has been prepared.
In support of the proposition that much of the business and
many of the act, orders and decisions of the Patent Director
involve questions of law or a reasonable and correct evaluation
of facts, the very Patent Law, Republic Act No. 165, Section 61,
provides that:
. . . . The applicant for a patent or for the registration of a
design, any party to a proceeding to cancel a patent or to
obtain a compulsory license, and any party to any other
proceeding in the Office may appeal to the Supreme Court
from any final order or decision of the director.
In other words, the appeal is taken to this Tribunal. If the
transaction of business in the Patent Office and the acts, orders
and decisions of the Patent Director involved exclusively or
mostly technical and scientific knowledge and training, then
logically, the appeal should be taken not to a court or judicial
body, but rather to a board of scientists, engineers or technical
men, which is not the case.
Another aspect of the question involves the consideration of
the nature of the functions and acts of the Head of the Patent
Office.
. . . . The Commissioner, in issuing or withholding patents, in
reissues, interferences, and extensions, exercises quasi-judicial
functions. Patents are public records, and it is the duty of the
Commissioner to give authenticated copies to any person, on
payment of the legal fees. (40 Am. Jur. 537). (Emphasis
supplied).
. . . . The Commissioner has the only original initiatory
jurisdiction that exists up to the granting and delivering of a
patent, and it is his duty to decide whether the patent is new
and whether it is the proper subject of a patent; and his action
in awarding or refusing a patent is a judicial function. In passing
on an application the commissioner should decide not only
questions of law, but also questions of fact, as whether there
has been a prior public use or sale of the article invented. . . .
(60 C.J.S. 460). (Emphasis supplied).
The Director of Patents, exercising as he does judicial or quasi-
judicial functions, it is reasonable to hold that a member of the
bar, because of his legal knowledge and training, should be
allowed to practice before the Patent Office, without further
examination or other qualification. Of course, the Director of
Patents, if he deems it advisable or necessary, may require that
members of the bar practising before him enlist the assistance
of technical men and scientist in the preparation of papers and
documents, such as, the drawing or technical description of an
invention or machine sought to be patented, in the same way
that a lawyer filing an application for the registration of a
parcel of land on behalf of his clients, is required to submit a
plan and technical description of said land, prepared by a
licensed surveyor.
But respondent Director claims that he is expressly authorized
by the law to require persons desiring to practice or to do
business before him to submit an examination, even if they are
already members of the bar. He contends that our Patent Law,
Republic Act No. 165, is patterned after the United States
Patent Law; and of the United States Patent Office in Patent
Cases prescribes an examination similar to that which he
(respondent) has prescribed and scheduled. He invites our
attention to the following provisions of said Rules of Practice:
Registration of attorneys and agents. A register of an
attorneys and a register agents are kept in the Patent Office on
which are entered the names of all persons recognized as
entitled to represent applicants before the Patent Office in the
preparation and prosecution of applicants for patent.
Registration in the Patent Office under the provisions of these
rules shall only entitle the person registered to practice before
the Patent Office.
(a) Attorney at law. Any attorney at law in good standing
admitted to practice before any United States Court or the
highest court of any State or Territory of the United States who
fulfills the requirements and complied with the provisions of
these rules may be admitted to practice before the Patent
Office and have his name entered on the register of attorneys.
xxx xxx xxx
(c) Requirement for registration. No person will be admitted
to practice and register unless he shall apply to the
Commissioner of Patents in writing on a prescribed form
supplied by the Commissioner and furnish all requested
information and material; and shall establish to the satisfaction
of the Commissioner that he is of good moral character and of
good repute and possessed of the legal and scientific and
technical qualifications necessary to enable him to render
applicants for patent valuable service, and is otherwise
competent to advise and assist him in the presentation and
prosecution of their application before the Patent Office. In
order that the Commissioner may determine whether a person
seeking to have his name placed upon either of the registers
has the qualifications specified, satisfactory proof of good
moral character and repute, and of sufficient basic training in
scientific and technical matters must be submitted and an
examination which is held from time to time must be taken and
passed. The taking of an examination may be waived in the
case of any person who has served for three years in the
examining corps of the Patent Office.
Respondent states that the promulgation of the Rules of
Practice of the United States Patent Office in Patent Cases is
authorized by the United States Patent Law itself, which reads
as follows:
The Commissioner of Patents, subject to the approval of the proceedings as the said court may by its rules determine.
Secretary of Commerce may prescribe rules and regulations (Emphasis supplied)
governing the recognition of agents, attorneys, or other
Respondent Director concludes that Section 78 of Republic Act
persons representing applicants or other parties before his
No. 165 being similar to the provisions of law just reproduced,
office, and may require of such persons, agents, or attorneys,
then he is authorized to prescribe the rules and regulations
before being recognized as representatives of applicants or
requiring that persons desiring to practice before him should
other persons, that they shall show they are of good moral
submit to and pass an examination. We reproduce said Section
character and in good repute, are possessed of the necessary
78, Republic Act No. 165, for purposes of comparison:
qualifications to enable them to render to applicants or other
persons valuable service, and are likewise to competent to SEC. 78. Rules and regulations. The Director subject to the
advise and assist applicants or other persons in the approval of the Secretary of Justice, shall promulgate the
presentation or prosecution of their applications or other necessary rules and regulations, not inconsistent with law, for
business before the Office. The Commissioner of Patents may, the conduct of all business in the Patent Office.
after notice and opportunity for a hearing, suspend or exclude,
The above provisions of Section 78 certainly and by far, are
either generally or in any particular case from further practice
different from the provisions of the United States Patent Law
before his office any person, agent or attorney shown to be
as regards authority to hold examinations to determine the
incompetent or disreputable, or guilty of gross misconduct, or
qualifications of those allowed to practice before the Patent
who refuses to comply with the said rules and regulations, or
Office. While the U.S. Patent Law authorizes the Commissioner
who shall, with intent to defraud in any matter, deceive,
of Patents to require attorneys to show that they possess the
mislead, or threaten any applicant or prospective applicant, or
necessary qualifications and competence to render valuable
other person having immediate or prospective applicant, or
service to and advise and assist their clients in patent cases,
other person having immediate or prospective business before
which showing may take the form of a test or examination to
the office, by word, circular, letter, or by advertising. The
be held by the Commissioner, our Patent Law, Section 78, is
reasons for any such suspension or exclusion shall be duly
silent on this important point. Our attention has not been
recorded. The action of the Commissioner may be reviewed
called to any express provision of our Patent Law, giving such
upon the petition of the person so refused recognition or so
authority to determine the qualifications of persons allowed to
suspended by the district court of the United States for the
practice before the Patent Office.
District of Columbia under such conditions and upon such
Section 551 of the Revised Administrative Code authorizes exemptions, depreciation, these as regards the Bureau of
every chief of bureau to prescribe forms and make regulations Internal Revenue, and the classification of goods, imposition of
or general orders not inconsistent with law, to secure the customs duties, seizures, confiscation, etc., as regards the
harmonious and efficient administration of his branch of the Bureau of Customs, may not also require that any lawyer
service and to carry into full effect the laws relating to matters practising before them or otherwise transacting business with
within the jurisdiction of his bureau. Section 608 of Republic them on behalf of clients, shall first pass an examination to
Act 1937, known as the Tariff and Customs Code of the qualify.
Philippines, provides that the Commissioner of Customs shall,
In conclusion, we hold that under the present law, members of
subject to the approval of the Department Head, makes all
the Philippine Bar authorized by this Tribunal to practice law,
rules and regulations necessary to enforce the provisions of
and in good standing, may practice their profession before the
said code. Section 338 of the National Internal Revenue Code,
Patent Office, for the reason that much of the business in said
Commonwealth Act No. 466 as amended, states that the
office involves the interpretation and determination of the
Secretary of Finance, upon recommendation of the Collector of
scope and application of the Patent Law and other laws
Internal Revenue, shall promulgate all needful rules and
applicable, as well as the presentation of evidence to establish
regulations for the effective enforcement of the provisions of
facts involved; that part of the functions of the Patent director
the code. We understand that rules and regulations have been
are judicial or quasi-judicial, so much so that appeals from his
promulgated not only for the Bureau of Customs and Internal
orders and decisions are, under the law, taken to the Supreme
Revenue, but also for other bureaus of the Government, to
Court.
govern the transaction of business in and to enforce the law for
said bureaus. For the foregoing reasons, the petition for prohibition is
granted and the respondent Director is hereby prohibited from
Were we to allow the Patent Office, in the absence of an
requiring members of the Philippine Bar to submit to an
express and clear provision of law giving the necessary
examination or tests and pass the same before being permitted
sanction, to require lawyers to submit to and pass on
to appear and practice before the Patent Office. No costs.
examination prescribed by it before they are allowed to
practice before said Patent Office, then there would be no Paras, C.J., Bengzon, Padilla, Reyes, A., Bautista Angelo,
reason why other bureaus specially the Bureau of Internal Labrador, Concepcion, Reyes, J.B.L. and Endencia, JJ., concur.
Revenue and Customs, where the business in the same area
are more or less complicated, such as the presentation of
books of accounts, balance sheets, etc., assessments
Republic of the Philippines
SUPREME COURT
Manila
EN BANC A.M. No. 1928 August 3, 1978
In the Matter of the IBP Membership Dues Delinquency of Atty.
MARCIAL A. EDILION (IBP Administrative Case No. MDD-1)
R E S O L U T I O N CASTRO, C.J.:
The respondent Marcial A. Edillon is a duly licensed practicing
attorney in the Philippines.
On November 29, 1975, the Integrated Bar of the Philippines
(IBP for short) Board of Governors unanimously adopted
Resolution No. 75-65 in Administrative Case No. MDD-1 (In the
Matter of the Membership Dues Delinquency of Atty. Marcial
A. Edillon) recommending to the Court the removal of the
name of the respondent from its Roll of Attorneys for
"stubborn refusal to pay his membership dues" to the IBP since
the latter's constitution notwithstanding due notice.
On January 21, 1976, the IBP, through its then President Liliano
B. Neri, submitted the said resolution to the Court for
consideration and approval, pursuant to paragraph 2, Section
24, Article III of the By-Laws of the IBP, which reads:
.... Should the delinquency further continue until the following
June 29, the Board shall promptly inquire into the cause or
causes of the continued delinquency and take whatever action
it shall deem appropriate, including a recommendation to the
Supreme Court for the removal of the delinquent member's
name from the Roll of Attorneys. Notice of the action taken
shall be sent by registered mail to the member and to the
Secretary of the Chapter concerned.
On January 27, 1976, the Court required the respondent to
comment on the resolution and letter adverted to above; he
submitted his comment on February 23, 1976, reiterating his
refusal to pay the membership fees due from him.
On March 2, 1976, the Court required the IBP President and
the IBP Board of Governors to reply to Edillon's comment: on
March 24, 1976, they submitted a joint reply.
Thereafter, the case was set for hearing on June 3, 1976. After
the hearing, the parties were required to submit memoranda
in amplification of their oral arguments. The matter was
thenceforth submitted for resolution.
At the threshold, a painstaking scrutiny of the respondent's
pleadings would show that the propriety and necessity of the
integration of the Bar of the Philippines are in essence
conceded. The respondent, however, objects to particular
features of Rule of Court 139-A (hereinafter referred to as the
Court Rule) 1 in accordance with which the Bar of the
Philippines was integrated and to the provisions of par. 2,
Section 24, Article III, of the IBP By-Laws (hereinabove cited).
The authority of the IBP Board of Governors to recommend to
the Supreme Court the removal of a delinquent member's
name from the Roll of Attorneys is found in par. 2 Section 24,
Article Ill of the IBP By-Laws (supra), whereas the authority of
the Court to issue the order applied for is found in Section 10 the said organization to which he is admittedly personally
of the Court Rule, which reads: antagonistic, he is being deprived of the rights to liberty and
property guaranteed to him by the Constitution. Hence, the
SEC. 10. Effect of non-payment of dues. Subject to the
respondent concludes, the above provisions of the Court Rule
provisions of Section 12 of this Rule, default in the payment of
and of the IBP By-Laws are void and of no legal force and
annual dues for six months shall warrant suspension of
effect.
membership in the Integrated Bar, and default in such payment
for one year shall be a ground for the removal of the name of The respondent similarly questions the jurisdiction of the Court
the delinquent member from the Roll of Attorneys. to strike his name from the Roll of Attorneys, contending that
the said matter is not among the justiciable cases triable by the
The all-encompassing, all-inclusive scope of membership in the
Court but is rather of an "administrative nature pertaining to
IBP is stated in these words of the Court Rule:
an administrative body."
SECTION 1. Organization. There is hereby organized an
The case at bar is not the first one that has reached the Court
official national body to be known as the 'Integrated Bar of the
relating to constitutional issues that inevitably and inextricably
Philippines,' composed of all persons whose names now
come up to the surface whenever attempts are made to
appear or may hereafter be included in the Roll of Attorneys of
regulate the practice of law, define the conditions of such
the Supreme Court.
practice, or revoke the license granted for the exercise of the
The obligation to pay membership dues is couched in the legal profession.
following words of the Court Rule:
The matters here complained of are the very same issues
SEC. 9. Membership dues. Every member of the Integrated Bar raised in a previous case before the Court, entitled
shall pay such annual dues as the Board of Governors shall "Administrative Case No. 526, In the Matter of the Petition for
determine with the approval of the Supreme Court. ... the Integration of the Bar of the Philippines, Roman Ozaeta, et
al., Petitioners." The Court exhaustively considered all these
The core of the respondent's arguments is that the above
matters in that case in its Resolution ordaining the integration
provisions constitute an invasion of his constitutional rights in
of the Bar of the Philippines, promulgated on January 9, 1973.
the sense that he is being compelled, as a pre-condition to
The Court there made the unanimous pronouncement that it
maintaining his status as a lawyer in good standing, to be a
was
member of the IBP and to pay the corresponding dues, and
that as a consequence of this compelled financial support of
... fully convinced, after a thoroughgoing conscientious study of
all the arguments adduced in Adm. Case No. 526 and the
authoritative materials and the mass of factual data contained
in the exhaustive Report of the Commission on Bar Integration,
that the integration of the Philippine Bar is 'perfectly
constitutional and legally unobjectionable'. ...
Be that as it may, we now restate briefly the posture of the
Court.
An "Integrated Bar" is a State-organized Bar, to which every
lawyer must belong, as distinguished from bar associations
organized by individual lawyers themselves, membership in
which is voluntary. Integration of the Bar is essentially a
process by which every member of the Bar is afforded an
opportunity to do his share in carrying out the objectives of the
Bar as well as obliged to bear his portion of its responsibilities.
Organized by or under the direction of the State, an integrated
Bar is an official national body of which all lawyers are required
to be members. They are, therefore, subject to all the rules
prescribed for the governance of the Bar, including the
requirement of payment of a reasonable annual fee for the
effective discharge of the purposes of the Bar, and adherence
to a code of professional ethics or professional responsibility
breach of which constitutes sufficient reason for investigation
by the Bar and, upon proper cause appearing, a
recommendation for discipline or disbarment of the offending
member. 2
The integration of the Philippine Bar was obviously dictated by
overriding considerations of public interest and public welfare
to such an extent as more than constitutionally and legally
justifies the restrictions that integration imposes upon the
personal interests and personal convenience of individual
lawyers. 3
Apropos to the above, it must be stressed that all legislation
directing the integration of the Bar have been uniformly and
universally sustained as a valid exercise of the police power
over an important profession. The practice of law is not a
vested right but a privilege, a privilege moreover clothed with
public interest because a lawyer owes substantial duties not
only to his client, but also to his brethren in the profession, to
the courts, and to the nation, and takes part in one of the most
important functions of the State the administration of
justice as an officer of the court. 4 The practice of law being
clothed with public interest, the holder of this privilege must
submit to a degree of control for the common good, to the
extent of the interest he has created. As the U. S. Supreme
Court through Mr. Justice Roberts explained, the expression
"affected with a public interest" is the equivalent of "subject to
the exercise of the police power" (Nebbia vs. New York, 291
U.S. 502).
When, therefore, Congress enacted Republic Act No.
6397 5 authorizing the Supreme Court to "adopt rules of court
to effect the integration of the Philippine Bar under such
conditions as it shall see fit," it did so in the exercise of the
paramount police power of the State. The Act's avowal is to
"raise the standards of the legal profession, improve the
administration of justice, and enable the Bar to discharge its
public responsibility more effectively." Hence, the Congress in
enacting such Act, the Court in ordaining the integration of the
Bar through its Resolution promulgated on January 9, 1973,
and the President of the Philippines in decreeing the
constitution of the IBP into a body corporate through
Presidential Decree No. 181 dated May 4, 1973, were
prompted by fundamental considerations of public welfare and
motivated by a desire to meet the demands of pressing public
necessity.
The State, in order to promote the general welfare, may
interfere with and regulate personal liberty, property and
occupations. Persons and property may be subjected to
restraints and burdens in order to secure the general
prosperity and welfare of the State (U.S. vs. Gomez Jesus, 31
Phil 218), for, as the Latin maxim goes, "Salus populi est
supreme lex." The public welfare is the supreme law. To this
fundamental principle of government the rights of individuals
are subordinated. Liberty is a blessing without which life is a
misery, but liberty should not be made to prevail over authority
because then society win fall into anarchy (Calalang vs.
Williams, 70 Phil. 726). It is an undoubted power of the State to
restrain some individuals from all freedom, and all individuals
from some freedom.
But the most compelling argument sustaining the
constitutionality and validity of Bar integration in the
Philippines is the explicit unequivocal grant of precise power to
the Supreme Court by Section 5 (5) of Article X of the 1973
Constitution of the Philippines, which reads:
Sec. 5. The Supreme Court shall have the following powers:
xxx xxx xxx
(5) Promulgate rules concerning pleading, practice, and pro.
procedure in all courts, and the admission to the practice of
law and the integration of the Bar ...,
and Section 1 of Republic Act No. 6397, which reads:
SECTION 1. Within two years from the approval of this Act, the
Supreme Court may adopt rules of Court to effect the
integration of the Philippine Bar under such conditions as it
shall see fit in order to raise the standards of the legal
profession, improve the administration of justice, and enable
the Bar to discharge its public responsibility more effectively.
Quite apart from the above, let it be stated that even without
the enabling Act (Republic Act No. 6397), and looking solely to
the language of the provision of the Constitution granting the
Supreme Court the power "to promulgate rules concerning
pleading, practice and procedure in all courts, and the
admission to the practice of law," it at once becomes
indubitable that this constitutional declaration vests the
Supreme Court with plenary power in all cases regarding the
admission to and supervision of the practice of law.
Thus, when the respondent Edillon entered upon the legal
profession, his practice of law and his exercise of the said
profession, which affect the society at large, were (and are)
subject to the power of the body politic to require him to
conform to such regulations as might be established by the
proper authorities for the common good, even to the extent of
interfering with some of his liberties. If he did not wish to
submit himself to such reasonable interference and regulation,
he should not have clothed the public with an interest in his
concerns.
On this score alone, the case for the respondent must already
fall.
The issues being of constitutional dimension, however, we now
concisely deal with them seriatim.
1. The first objection posed by the respondent is that the Court
is without power to compel him to become a member of the
Integrated Bar of the Philippines, hence, Section 1 of the Court
Rule is unconstitutional for it impinges on his constitutional
right of freedom to associate (and not to associate). Our
answer is: To compel a lawyer to be a member of the
Integrated Bar is not violative of his constitutional freedom to
associate. 6
Integration does not make a lawyer a member of any group of
which he is not already a member. He became a member of
the Bar when he passed the Bar examinations. 7 All that
integration actually does is to provide an official national
organization for the well-defined but unorganized and
incohesive group of which every lawyer is a ready a member. 8
Bar integration does not compel the lawyer to associate with
anyone. He is free to attend or not attend the meetings of his
Integrated Bar Chapter or vote or refuse to vote in its elections
as he chooses. The only compulsion to which he is subjected is
the payment of annual dues. The Supreme Court, in order to
further the State's legitimate interest in elevating the quality of
professional legal services, may require that the cost of
improving the profession in this fashion be shared by the
subjects and beneficiaries of the regulatory program the
lawyers. 9
Assuming that the questioned provision does in a sense compel
a lawyer to be a member of the Integrated Bar, such
compulsion is justified as an exercise of the police power of the
State. 10
2. The second issue posed by the respondent is that the
provision of the Court Rule requiring payment of a membership
fee is void. We see nothing in the Constitution that prohibits
the Court, under its constitutional power and duty to
promulgate rules concerning the admission to the practice of
law and the integration of the Philippine Bar (Article X, Section
5 of the 1973 Constitution) which power the respondent
acknowledges from requiring members of a privileged class,
such as lawyers are, to pay a reasonable fee toward defraying
the expenses of regulation of the profession to which they
belong. It is quite apparent that the fee is indeed imposed as a
regulatory measure, designed to raise funds for carrying out
the objectives and purposes of integration. 11
3. The respondent further argues that the enforcement of the
penalty provisions would amount to a deprivation of property
without due process and hence infringes on one of his
constitutional rights. Whether the practice of law is a property
right, in the sense of its being one that entitles the holder of a
license to practice a profession, we do not here pause to
consider at length, as it clear that under the police power of
the State, and under the necessary powers granted to the
Court to perpetuate its existence, the respondent's right to
practise law before the courts of this country should be and is a
matter subject to regulation and inquiry. And, if the power to
impose the fee as a regulatory measure is recognize, then a
penalty designed to enforce its payment, which penalty may be
avoided altogether by payment, is not void as unreasonable or
arbitrary. 12
But we must here emphasize that the practice of law is not a
property right but a mere privilege, 13 and as such must bow to
the inherent regulatory power of the Court to exact
compliance with the lawyer's public responsibilities.
4. Relative to the issue of the power and/or jurisdiction of the
Supreme Court to strike the name of a lawyer from its Roll of
Attorneys, it is sufficient to state that the matters of admission,
suspension, disbarment and reinstatement of lawyers and their
regulation and supervision have been and are indisputably
recognized as inherent judicial functions and responsibilities,
and the authorities holding such are legion. 14
In In Re Sparks (267 Ky. 93, 101 S.W. (2d) 194), in which the
report of the Board of Bar Commissioners in a disbarment
proceeding was confirmed and disbarment ordered, the court,
sustaining the Bar Integration Act of Kentucky, said: "The
power to regulate the conduct and qualifications of its officers
does not depend upon constitutional or statutory grounds. It is
a power which is inherent in this court as a court
appropriate, indeed necessary, to the proper administration of
justice ... the argument that this is an arbitrary power which
the court is arrogating to itself or accepting from the legislative
likewise misconceives the nature of the duty. It has limitations
no less real because they are inherent. It is an unpleasant task
to sit in judgment upon a brother member of the Bar,
particularly where, as here, the facts are disputed. It is a grave
responsibility, to be assumed only with a determination to
uphold the Ideals and traditions of an honorable profession
and to protect the public from overreaching and fraud. The
very burden of the duty is itself a guaranty that the power will
not be misused or prostituted. ..."
The Court's jurisdiction was greatly reinforced by our 1973
Constitution when it explicitly granted to the Court the power
to "Promulgate rules concerning pleading, practice ... and the
admission to the practice of law and the integration of the Bar
... (Article X, Sec. 5(5) the power to pass upon the fitness of the
respondent to remain a member of the legal profession is
indeed undoubtedly vested in the Court.
We thus reach the conclusion that the provisions of Rule of
Court 139-A and of the By-Laws of the Integrated Bar of the
Philippines complained of are neither unconstitutional nor
illegal.
WHEREFORE, premises considered, it is the unanimous sense
of the Court that the respondent Marcial A. Edillon should be
as he is hereby disbarred, and his name is hereby ordered
stricken from the Roll of Attorneys of the Court.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 163155 July 21, 2006
ALFREDO HILADO, MANUEL LACSON, JOSE MA. TUVILLA,
JOAQUIN LIMJAP LOPEZ SUGAR CORPORATION, petitioners,
vs.
JUDGE AMOR A. REYES, PRESIDING JUDGE, REGIONAL TRIAL
COURT OF MANILA, BRANCH 21 and ADMINISTRATRIX JULITA
CAMPOS BENEDICTO, respondents.
DECISION
CARPIO MORALES, J.:
The present petition is one for mandamus and prohibition.
Julita Campos Benedicto (private respondent), the surviving
spouse of the deceased Roberto S. Benedicto, filed on May 25,
2000 a petition for issuance of letters of administration,
docketed as Special Proceeding No. 00-97505, "Intestate Estate
of Roberto S. Benedicto" (the case), before the Regional Trial
Court (RTC) of Manila. The case was raffled to Branch 21
presided by Judge Amor A. Reyes (public respondent).
Private respondent was, by Order1 of August 2, 2000,
appointed Administratrix of the estate of Benedicto (the
estate), and letters of administration were thereafter issued in
her favor.
Herein petitioners, Alfredo Hilado, Manuel Lacson, Jose M.
Tuvilla, Joaquin Limjap, Lopez Sugar Corporation and First
Farmers Holding Corporation had, during the lifetime of
Benedicto, filed before the Bacolod City RTC two complaints for
damages or collection of sums of money, docketed as Civil Case
No. 95-9137 and Civil Case No. 111718, against Roberto
Benedicto et al.2
In the initial inventory of the estate which private respondent
submitted on January 18, 20013 in the case before the Manila
RTC, she listed, among other liabilities of the estate, the claims
of petitioners subject of the above-said Bacolod RTC cases as
follows:
LIST OF LIABILITIES
DESCRIPTION AMOUNT
xxxx
A claim of several sugar planters which is presently P136,045,772.50
the subject of Civil Case No. 95-9137 entitled Lacson [at P50.00 per U
et al. v. R.S. Benedicto et al., pending before Branch $1.00]
44 of the Regional Trial Court in Bacolod City
A claim filed by various sugar planters which is P35,198,697.40
presently the subject of Civil Case [at P50.00 per U
No. 11178 entitled Lopez Sugar Corporation et al. v. $1.00]
 R.S. Benedicto, et al., pending before Branch 41 of
the Regional Trial Court in Bacolod City.4
(Emphasis and underscoring supplied)
From January 2002 until November 2003, the Branch Clerk of
Court of Branch 21 of the Manila RTC allowed petitioners
through counsel Sedigo and Associates to regularly and
periodically examine the records of the case and to secure
certified true copies thereof.
By December 2003, however, Atty. Grace Carmel Paredes, an
associate of petitioners' counsel, was denied access to the last
folder-record of the case which, according to the court's
clerical staff, could not be located and was probably inside the
chambers of public respondent for safekeeping.5
Petitioners' counsel thus requested public respondent, by
letter6 of January 15, 2004, to allow Atty. Paredes to personally
check the records of the case. Acting on the letter, the Officer-
In- Charge/Legal Researcher of Branch 21 advised petitioners'
counsel in writing that "per instruction of the Hon. Presiding
Judge[,] only parties or those with authority from the parties
are allowed to inquire or verify the status of the case pending
in this Court," and that they may be "allowed to go over the
records of the above-entitled case upon presentation of
written authority from the [administratrix]."7
On February 2, 2004, petitioners' counsel was served with a
notice of hearing of the case on February 13, 2004.8Petitioners'
counsel thus attended such scheduled hearing during which
he filed a Motion for Inhibition9 of public respondent on the
ground of gross ignorance, dereliction of duty, and manifest
partiality towards the administratrix. Public respondent, noting
that an error was committed in the service to petitioners of the
notice of hearing, ignored the motion of petitioners' counsel.10
Intending to compare the list of properties in the estate's
inventory all of which properties were appraised at a fair value
of P100 million with the list of assets valued at P1 Billion said to
have been ceded in 1990 to the decedent under his
Compromise Agreement with the Presidential Commission on
Good Government,11 petitioners' counsel sent the Branch Clerk
of Court of Branch 21 of the Manila RTC a letter12 requesting to
be furnished with certified true copies of the "updated
inventory."
By still another letter,13 petitioners' counsel requested to be
furnished with certified true copies of the order issued by the
court during the hearing of February 13, 2004, as well as the
transcript of stenographic notes taken thereon.14
By Order15 of March 2, 2004, public respondent indicated why
petitioners had no standing to file the Motion for Inhibition as
well as to request for certified true copies of the above-
indicated documents. Read the Order of March 2, 2004:
Perusal of the motion shows that the movant is asking this
Court to act on their motion despite the denial of their
Omnibus Motion to Intervene which to date remains pending
resolution with the Court of Appeals.
As correctly pointed out by the Administratrix, said motion is
filed by persons/entities who have no legal standing in the
above-entitled case, hence they cannot ask anything from this
Court, much more for this Court to act on pleadings filed or
soon to be filed.
For the record, the Court received two (2) letters dated
February 17 and 27, 2004 addressed to Atty. Maria Luisa Lesle
G. Gonzales, the Branch Clerk of Courtasking that he be
furnished with certified true copies of the updated inventory
and Order issued by this Court on February 13, 2004 hearing as
well as the corresponding transcript of stenographic notes
within fifteen (15) days from receipt of said letters.
Considering that the movants were not allowed to intervene in
the proceedings per order of this Court dated January 2,
2002, copies of all pleadings/orders filed/issued relative to this
case may only be secured from the [Administratrix] and/or
counsel.16 (Underscoring supplied)
Petitioners thus filed on April 30, 2004 before this Court the
present petition for mandamus and prohibition to compel
public respondent to allow them to access, examine, and
obtain copies of any and all documents forming part of the
records of the case and disqualify public respondent from
further presiding thereover.
In their petition, petitioners contend that the records of the
case are public records to which the public has the right to
access, inspect and obtain official copies thereof,17 recognition
of which right is enjoined under Section 7, Article III of the
Constitution and Section 2, Rule 135 and Section 11, Rule 136
of the Rules of Court.
Petitioners further contend that public respondent manifested
her arbitrariness, malice and partiality through her blatant
disregard of basic rules in the disposition and safekeeping of
court records, and her denial of their right to access the
records suffices to bar her from presiding over the case;18 and
public respondent's incompetence, malice, bad faith and
partiality are underscored by her failure to enforce for more
than three years the requirement of the Rules of Court on the
prompt submission by the administratrix of her final inventory
and the filing of a periodic accounting of her administration.19
By Comment20 filed on September 21, 2004, private
respondent submits that the petition is fatally defective since
petitioners failed to disclose in their certification of non-forum
shopping that they had earlier instituted an administrative
complaint against public respondent which prayed for the
same reliefs21 for the disqualification of public respondent
from presiding over the case and for the court docket to be
opened for examination.
Private respondent further submits that the petition for
prohibition should be dismissed since petitioners are not
parties to the case, hence, they have no personality to file a
motion for inhibition.22
As to the alleged denial of petitioners' right to examine court
records and participate in the proceedings, private respondent
submits that this is not unqualifiedly true for petitioners must
have secured a copy of the inventory of the assets and
liabilities of the estate, they being aware of the declared fair
value of the estate and their counsel was present during the
February 13, 2004 hearing.23
For consideration then are the following issues: (1) whether
the present petition is fatally defective for failure of petitioners
to disclose in the certificate of non-forum shopping that they
had priorly instituted an administrative complaint against
public respondent which prays for the same reliefs; (2)
whether a writ of mandamus may issue to compel public
respondent to allow petitioners to examine and obtain copies
of any or all documents forming part of the records of the case;
and (3) whether a writ of prohibition will issue in favor of
petitioners, who are not parties to the case, to inhibit public
respondent from presiding over the case.
As reflected above, petitioners had, before the filing of the
present petition, filed an administrative complaint before this
Court against public respondent, "Alfredo Hilado, Lopez Sugar
Corporation and First Farmers Holding Corporation v. Judge
Amor A. Reyes, Regional Trial Court of Manila, Branch
21," docketed as A.M. No. RTJ-05-1910.
Petitioners subsequently filed a supplemental24 and a second
supplemental administrative complaint25 praying for 1) the
imposition of appropriate disciplinary sanctions against public
respondent for, among other things, denying them their right
to access the docket of the case, and 2) the disqualification of
public respondent from presiding over the case, which latter
prayer was, however, subsequently withdrawn in a
motion26 filed on April 30, 2004, the same day that the present
petition was filed.
Denying the existence of forum shopping, petitioners argue
that it "exists only where the elements of litis pendencia are
present, or where a final judgment in one case will amount
to res judicata in the other."27
It is well settled that the doctrine of res judicata applies only to
judicial or quasi-judicial proceedings, and not to the exercise of
administrative powers.28
The non-existence of forum shopping notwithstanding, this
Court proscribes the filing of an administrative complaint
before the exhaustion of judicial remedies against questioned
errors of a judge in the exercise of its jurisdiction.
Resort to and exhaustion of judicial remedies are prerequisites
for the taking of, among other measures, an administrative
complaint against the person of the judge concerned. So Atty.
Flores v. Hon. Abesamis29 teaches:
x x x [T]he law provides ample judicial remedies against errors
or irregularities being committed by a Trial Court in the
exercise of its jurisdiction. The ordinary remedies against errors
or irregularities which may be regarded as normal in nature
(i.e., error in appreciation or admission of evidence, or in
construction or application of procedural or substantive law or
legal principle) include a motion for reconsideration (or after
rendition of a judgment or final order, a motion for new trial),
and appeal. The extraordinary remedies against error or
irregularities which may be deemed extraordinary in character
(i.e., whimsical, capricious, despotic exercise of power or
neglect of duty, etc.) are inter alia the special civil actions
of certiorari, prohibition or mandamus, or a motion for
inhibition, a petition for change of venue, as the case may be.
x x x Resort to and exhaustion of these judicial remedies, as
well as the entry of judgment in the corresponding action or
proceeding, are pre-requisites for the taking of other
measures against the persons of the judges concerned,
whether of civil, administrative, or criminal nature. It is only
after the available judicial remedies have been exhausted and
the appellate tribunals have spoken with finality, that the door
to an inquiry into his criminal, civil or administrative liability
may be said to have opened, or closed.
x x x Law and logic decree that "administrative or criminal
remedies are neither alternative nor cumulative to judicial
review where such review is available, and must wait on the
result thereof" Indeed, since judges must be free to judge,
without pressure or influence from external forces or factors,
they should not be subject to intimidation, the fear of civil,
criminal or administrative sanctions for acts they may do and
dispositions they may make in the performance of their duties
and functions; x x x30 (Emphasis and underscoring supplied;
citations omitted)
It is thus only after a questioned action of a judge in a pending
case has been judicially resolved with finality that the door to
an inquiry into his or her administrative liability may be said to
have opened.
Parenthetically, during the pendency of the present petition or
on April 15, 2005, the Second Division of this Court rendered a
decision31 on the above-said administrative complaint filed by
petitioners against public respondent.
On the merits of the petition for mandamus, Section 7 of
Article III of the Constitution provides:
SECTION 7. The right of the people to information on matters
of public concern shall be recognized. Access to official
records, and to documents, and papers pertaining to official
acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall
be afforded the citizen, subject to such limitations as may be
provided by law.(Emphasis and underscoring supplied)
The above-quoted constitutional provision guarantees a
general right the right to information on matters of "public
concern" and, as an accessory thereto, the right of access to
"official records" and the like. The right to information on
"matters of public concern or of public interest" is both the
purpose and the limit of the constitutional right of access to
public documents.32
Insofar as the right to information relates to judicial records, an
understanding of the term "judicial record" or "court record" is
in order.
The term "judicial record" or "court record" does not only refer
to the orders, judgment or verdict of the courts. It comprises
the official collection of all papers, exhibits and pleadings filed
by the parties, all processes issued and returns made thereon,
appearances, and word-for-word testimony33 which took place a public officer is properly performing his duty. In other words,
during the trial and which are in the possession, custody, or the right of the public to be informed of the proceedings in
control of the judiciary or of the courts for purposes of court is not founded in the desire or necessity of people to
rendering court decisions. It has also been described to include know about the doing of others, but in the necessity of knowing
any paper, letter, map, book, other document, tape, whether its servant, the judge, is properly performing his duty. x
photograph, film, audio or video recording, court reporter's xx
notes, transcript, data compilation, or other materials, whether
The case in Cowley vs. Pulsifer (137 Mass. 392) is so pertinent
in physical or electronic form, made or received pursuant to
to the questions presented for our decision in the case at bar
law or in connection with the transaction of any official
that we cannot refrain from quoting extensively therefrom. x x
business by the court, and includes all evidence it has received
x
in a case.34
x x x "The general advantage to the country in having these
In determining whether a particular information is of public
proceedings made public more than counterbalances the
concern, there is no right test. In the final analysis, it is for the
inconveniences to the private persons whose conduct may be
courts to determine on a case to case basis whether the matter
the subject of such proceedings." x x x
at issue is of interest or importance as it relates to or affect the
public.35 "The chief advantage to the country to which we can discern,
and that which we understand to be intended by the foregoing
It bears emphasis that the interest of the public hinges on its
passage, is the security which publicity gives for the proper
right to transparency in the administration of justice, to the
administration of justice. x x x It is desirable that the trial of
end that it will serve to enhance the basic fairness of the
causes should take place under the public eye, not because the
judicial proceedings, safeguard the integrity of the fact-finding
controversies of one citizen with another are of public concern,
process, and foster an informed public discussion of
but because it is of the highest moment that those who
governmental affairs. Thus in Barretto v. Philippine Publishing
administer justice should act under the sense of public
Co.,36 this Court held:
responsibility, and that every citizen should be able to satisfy
x x x The foundation of the right of the public to know what is himself with his own eyes as to the mode in which a public duty
going on in the courts is not the fact that the public, or a is performed."
portion of it, is curious, or that what is going on in the court is
From this quotation it is obvious that it was not the idea of the
news, or would be interesting, or would furnish topics of
supreme court of Massachusetts to lay down the proposition
conversation; but is simply that it has a right to know whether
that simply because a pleading happened to be filed in a public
office it becomes public property that any individual, whether
interested or not, had the right to publish its contents, or that
any newspaper was privileged to scatter the allegations
contained therein to the four corners of the country. The right
of the public to know the contents of the paper is the basis of
the privilege, which is, as we have said, the right to determine
by its own senses that its servant, the judge, is performing his
duties according to law. x x x37 (Emphasis and underscoring
supplied; citations omitted)
Decisions and opinions of a court are of course matters of
public concern or interest for these are the authorized
expositions and interpretations of the laws, binding upon all
citizens, of which every citizen is charged with
knowledge.38 Justice thus requires that all should have free
access to the opinions of judges and justices, and it would be
against sound public policy to prevent, suppress or keep the
earliest knowledge of these from the public.39 Thus, in Lantaco
Sr. et al. v. Judge Llamas,40 this Court found a judge to have
committed grave abuse of discretion in refusing to
furnish Lantaco et al. a copy of his decision in a criminal case of
which they were even the therein private complainants, the
decision being "already part of the public record which the
citizen has a right to scrutinize."
Unlike court orders and decisions, however, pleadings and
other documents filed by parties to a case need not be matters
of public concern or interest. For they are filed for the purpose
of establishing the basis upon which the court may issue an
order or a judgment affecting their rights and interests.
In thus determining which part or all of the records of a case
may be accessed to, the purpose for which the parties filed
them is to be considered.
In intestate proceedings, the heirs file pleadings and
documents for the purpose of establishing their right to a share
of the estate. As for the creditors, their purpose is to establish
their claim to the estate and be paid therefor before the
disposition of the estate.
Information regarding the financial standing of a person at the
time of his death and the manner by which his private estate
may ultimately be settled is not a matter of general, public
concern or one in which a citizen or the public has an interest
by which its legal rights or liabilities maybe affected. Granting
unrestricted public access and publicity to personal financial
information may constitute an unwarranted invasion of privacy
to which an individual may have an interest in limiting its
disclosure or dissemination.
If the information sought then is not a matter of public concern
or interest, denial of access thereto does not violate a citizen's
constitutional right to information.
Once a particular information has been determined to be of
public concern, the accessory right of access to official records,
including judicial records, are open to the public.
The accessory right to access public records may, however, be
restricted on a showing of good cause. How "good cause" can
be determined, the Supreme Judicial Court of Massachusetts
in Republican Company v. Appeals Court teaches:41
The public's right of access to judicial records, including
transcripts, evidence, memoranda, and court orders, maybe
restricted, but only on a showing of "good cause." "To
determine whether good cause is shown, a judge must balance
the rights of the parties based on the particular facts of each
case." In so doing, the judge "must take into account all
relevant factors, 'including, but not limited to, the nature of the
parties and the controversy, the type of information and the
privacy interests involved, the extent of community
interest, and the reason for the request.'"42 (Emphasis and
underscoring supplied; citations omitted)
And even then, the right is subject to inherent supervisory and
protective powers of every court over its own records and
files.43
The Supreme Court of Canada, expounding on the right of the
court to exercise supervisory powers over materials
surrendered into its care, held:
It follows that the court, as the custodian of the exhibits, is
bound to inquire into the use that is to be made of them and,
in my view, is fully entitled to regulate that use by securing
appropriate undertakings and assurances if those be advisable
to protect competing interests. x x x
In exercising its supervisory powers over materials surrendered
into its care, the court may regulate the use made of it. In an
application of this nature, the court must protect the
respondent and accommodate public interest in access. x x x In
an application of this nature the court must protect the
respondent and accommodate the public interest in
access. This can only be done in terms of the actual purpose,
and in the face of obvious prejudice and the absence of a
specific purpose, the order for unrestricted access and
reproduction should not have been made.44 (Underscoring
supplied)
In fine, access to court records may be permitted at the
discretion45 and subject to the supervisory and protective
powers of the court,46 after considering the actual use or
purpose for which the request for access is based and
the obvious prejudice to any of the parties. In the exercise of
such discretion, the following issues may be relevant: "whether
parties have interest in privacy, whether information is being
sought for legitimate purpose or for improper purpose,
whether there is threat of particularly serious embarrassment
to party, whether information is important to public health and
safety, whether sharing of information among litigants would
promote fairness and efficiency, whether party benefiting from
confidentiality order is public entity or official, and whether
case involves issues important to the public."47
By the administratrix-private respondent's own information,
petitioners are the plaintiffs in two complaints (against Roberto
Benedicto et al.) for damages and/or sums of money, Civil Case
No. 95-9137 and Civil Case No. 11178, filed before the Bacolod
RTC. She contends, however, that "if the motion to dismiss
[these RTC Bacolod cases is] granted, . . . petitioners would
have absolutely no interest of any kind [over] the [e]state of
the [d]eceased Roberto S. Benedicto."48
Petitioners' stated main purpose for accessing the records
to monitor prompt compliance with the Rules governing the
preservation and proper disposition of the assets of the
estate, e.g., the completion and appraisal of the Inventory and
the submission by the Administratrix of an annual
accounting49 appears legitimate, for, as the plaintiffs in the
complaints for sum of money against Roberto Benedicto et al.,
they have an interest over the outcome of the settlement of
his estate. They are in fact "interested persons" under Rule
135, Sec. 2 of the Rules of Court reading:
Rule 135, SEC. 2. Publicity of proceedings and records. x x x x
The records of every court of justice shall be public records and
shall be available for the inspection of any interested person, at
all proper business hours, under the supervision of the clerk
having custody of such records, unless the court shall, in any
special case, have forbidden their publicity, in the interest of
morality or decency. (Underscoring supplied),
entitled to be informed of the inventory as well as other
records which are relevant to their claims against Benedicto.
As long then as any party, counsel or person has a legitimate
reason to have a copy of court records and pays court fees,50 a
court may not deny access to such records. Of course as this
Court held in Beegan v. Borja,51precautionary measures to
prevent tampering or alteration must be observed:
We are not unaware of the common practice in the courts with
respect to the photocopying or xeroxing of portions of case
records as long as the same are not confidential or disallowed
by the rules to be reproduced. The judge need not be bothered
as long as the permission of the Clerk of Court has been sought
and as long as a duly authorized representative of the court
takes charge of the reproduction within the court premises if
warranted or if not, the said court representative must bring
along the case records where reproduction takes place and
return the same intact to the Clerk of Court.52
In fine, this Court finds the petition for mandamus meritorious,
petitioners being "interested persons" who have a legitimate
reason or purpose for accessing the records of the case.
Respecting the prohibition aspect of the petition, the same
fails.
Sections 1 and 2 of Rule 137 of the Rules of Court which govern
disqualification of judges provide:
SECTION 1. Disqualification of judges. No judge or judicial
officer shall sit in any case in which he, or his wife or child, is
pecuniarily interested as heir, legatee, creditor or otherwise, or
in which he is related to either party within the sixth degree of
consanguinity or affinity or to counsel within the fourth degree,
computed according to the rules of the civil law, or in which he
was presided in any inferior court when his ruling or decision is
the subject of review, without the written consent of all parties the inventory of assets and liabilities of the estate and the
in interest, signed by them and entered upon the record. hearing conducted by the trial court on February 13, 2004,
subject to precautionary measures to prevent tampering or
A judge may, in the exercise of his sound discretion, disqualify
alteration thereof.
himself from sitting in a case, for just and valid reasons other
than those mentioned above. The petition for prohibition is DISMISSED.
SECTION 2. Objection that judge disqualified, how made and
effect. - If it be claimed that an official is disqualified from
sitting as above provided, the party objecting to his
competency may, in writing, file with the official his objection,
stating the grounds therefor, and the official shall thereupon
proceed with the trial, or withdraw therefrom, in accordance
with his determination of the question of his disqualification.
His decision shall be forthwith made in writing and filed with
the other papers in the case, but no appeal or stay shall be
allowed from, or by reason of, his decision in favor of his own
competency, until after final judgment in the case. (Emphasis
and underscoring supplied)
Since petitioners are not parties to the case, they may not seek
public respondent's inhibition, whether under the first
paragraph of above-quoted Section 1 which constitutes
grounds for mandatory disqualification, or under the second
paragraph of the same section on voluntary disqualification.
WHEREFORE, the petition for mandamus is GRANTED. Public
respondent is ORDERED to allow petitioners to access,
examine, and obtain copies of any and all documents-part of
the records of Special Proceeding No. 00-97505 bearing on
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
ADM. CASE No. 3319 June 8, 2000
LESLIE UI, complainant,
vs.
ATTY. IRIS BONIFACIO, respondent.
DE LEON, JR., J.:
Before us is an administrative complaint for disbarment against
Atty. Iris Bonifacio for allegedly carrying on an immoral
relationship with Carlos L. Ui, husband of complainant, Leslie
Ui.
The relevant facts are:
On January 24, 1971 complainant Leslie Ui married Carlos L. Ui
at the Our Lady of Lourdes Church in Quezon City1 and as a
result of their marital union, they had four (4) children, namely,
Leilani, Lianni, Lindsay and Carl Cavin, all surnamed Ui.
Sometime in December 1987, however, complainant found out
that her husband. Carlos Ui, was carrying on an illicit
relationship with respondent Atty. Iris Bonifacio with whom he
begot a daughter sometime in 1986, and that they had been
living together at No. 527 San Carlos Street, Ayala Alabang
Village in Muntinlupa City. Respondent who is a graduate of
the College of Law of the University of the Philippines was
admitted to the Philippine Bar in 1982.
Carlos Ui admitted to complainant his relationship with the
respondent. Complainant then visited respondent at her office
in the later part of June 1988 and introduced herself as the
legal wife of Carlos Ui. Whereupon, respondent admitted to
her that she has a child with Carlos Ui and alleged, however;
that everything was over between her and Carlos Ui.
Complainant believed the representations of respondent and
thought things would turn out well from then on and that the
illicit relationship between her husband and respondent would
come to an end.
However, complainant again discovered that the illicit
relationship between her husband and respondent continued,
and that sometime in December 1988, respondent and her
husband, Carlos Ui, had a second child. Complainant then met
again with respondent sometime in March 1989 and pleaded
with respondent to discontinue her illicit relationship with
Carlos Ui but to no avail. The illicit relationship persisted and
complainant even came to know later on that respondent had
been employed by her husband in his company.
A complaint for disbarment, docketed as Adm. Case No. 3319,
was then filed on August 11, 1989 by the complainant against
respondent Atty. Iris Bonifacio before the Commission on Bar
Discipline of the Integrated Bar of the Philippines (hereinafter,
Commission) on the ground of immorality, more particularly,
for carrying on an illicit relationship with the complainant's
husband, Carlos Ui. In her Answer,2 respondent averred that
she met Carlos Ui sometime in 1983 and had known him all
along to be a bachelor, with the knowledge, however, that
Carlos Ui had children by a Chinese woman in Amoy, China,
from whom he had long been estranged. She stated that
during one of their trips abroad, Carlos Ui formalized his
intention to marry her and they in fact got married in Hawaii,
USA in 19853. Upon their return to Manila, respondent did not
live with Carlos Ui. The latter continued to live with his children
in their Greenhills residence because respondent and Carlos Ui
wanted to let the children gradually to know and accept the
fact of his second marriage before they would live together.4
In 1986, respondent left the country and stayed in Honolulu,
Hawaii and she would only return occasionally to the
Philippines to update her law practice and renew legal ties.
During one of her trips to Manila sometime in June 1988, she
was confronted by a woman who insisted that she was the
lawful wife of Carlos Ui. Hurt and desolate upon her discovery
of the true civil status of Carlos Ui, respondent then left for
Honolulu, Hawaii sometime in July 1988 and returned only in
March 1989 with her two (2) children. On March 20, 1989, a
few days after she reported to work with the law firm5 she was
connected with, the woman who represented herself to be the
wife of Carlos Ui again came to her office, demanding to know
if Carlos Ui has been communicating with her.
It is respondent's contention that her relationship with Carlos
Ui is not illicit because they were married abroad and that after
June 1988, when respondent discovered Carlos Ui's true civil
status, she cut off all her ties with him. Respondent averred
that Carlos Ui never lived with her in Alabang, and that he
resided at 26 Potsdam Street, Greenhills, San Juan, Metro
Manila. It was respondent who lived in Alabang in a house
which belonged to her mother, Rosalinda L. Bonifacio; and that
the said house was built exclusively from her parents'
funds.6 By way of counterclaim, respondent sought moral
damages in the amount of Ten Million Pesos
(Php10,000,000.00) against complainant for having filed the
present allegedly malicious and groundless disbarment case
against respondent.
In her Reply7 dated April 6, 1990, complainant states, among
others, that respondent knew perfectly well that Carlos Ui was
married to complainant and had children with her even at the
start of her relationship with Carlos Ui, and that the reason
respondent went abroad was to give birth to her two (2)
children with Carlos Ui.
During the pendency of the proceedings before the Integrated
Bar, complainant also charged her husband, Carlos Ui, and
respondent with the crime of Concubinage before the Office of
the Provincial Fiscal of Rizal, docketed as I.S. No. 89-5247, but
the same was dismissed for insufficiency of evidence to
establish probable cause for the offense charged. The
resolution dismissing the criminal complaint against
respondent reads:
Complainant's evidence had prima facie established the
existence of the "illicit relationship" between the respondents
allegedly discovered by the complainant in December 1987.
The same evidence however show that respondent Carlos Ui
was still living with complainant up to the latter part of 1988
and/or the early part of 1989.
It would therefore be logical and safe to state that the
"relationship" of respondents started and was discovered by
complainant sometime in 1987 when she and respondent
Carlos were still living at No. 26 Potsdam Street, Northeast
Greenhills, San Juan, Metro Manila and they, admittedly,
continued to live together at their conjugal home up to early
(sic) part of 1989 or later 1988, when respondent Carlos left
the same.
From the above, it would not be amiss to conclude that altho
(sic) the relationship, illicit as complainant puts it, had
been prima facie established by complainant's evidence, this
same evidence had failed to even prima facie establish the
"fact of respondent's cohabitation in the concept of husband
and wife at the 527 San Carlos St., Ayala Alabang house, proof
of which is necessary and indispensable to at least create
probable cause for the offense charged. The statement alone
of complainant, worse, a statement only of a conclusion
respecting the fact of cohabitation does not make the
complainant's evidence thereto any better/stronger (U.S. vs.
Casipong and Mongoy, 20 Phil. 178).
It is worth stating that the evidence submitted by respondents
in support of their respective positions on the matter support
and bolster the foregoing conclusion/recommendation.
WHEREFORE, it is most respectfully recommended that the
instant complaint be dismissed for want of evidence to
establish probable cause for the offense charged.
RESPECTFULLY SUBMITTED.8
Complainant appealed the said Resolution of the Provincial
Fiscal of Rizal to the Secretary of Justice, but the same was
dismissed9 on the ground of insufficiency of evidence to prove
her allegation that respondent and Carlos Ui lived together as
husband and wife at 527 San Carlos Street, Ayala Alabang,
Muntinlupa, Metro Manila.
In the proceedings before the IBP Commission on Bar
Discipline, complainant filed a Motion to Cite Respondent in
Contempt of the Commission 10 wherein she charged
respondent with making false allegations in her Answer and for
submitting a supporting document which was altered and
intercalated. She alleged that in the Answer of respondent filed
before the Integrated Bar, respondent averred, among others,
that she was married to Carlos Ui on October 22, 1985 and
attached a Certificate of Marriage to substantiate her
averment. However, the Certificate of Marriage 11 duly certified
by the State Registrar as a true copy of the record on file in the
Hawaii State Department of Health, and duly authenticated by
the Philippine Consulate General in Honolulu, Hawaii, USA
revealed that the date of marriage between Carlos Ui and
respondent Atty. Iris Bonifacio was October 22, 1987, and not
October 22, 1985 as claimed by respondent in her Answer.
According to complainant, the reason for that false allegation
was because respondent wanted to impress upon the said IBP
that the birth of her first child by Carlos Ui was within the
wedlock. 12 It is the contention of complainant that such act
constitutes a violation of Articles 183 13 and 184 14 of the
Revised Penal Code, and also contempt of the Commission; and
that the act of respondent in making false allegations in her
Answer and submitting an altered/intercalated document are
indicative of her moral perversity and lack of integrity which
make her unworthy to be a member of the Philippine Bar.
In her Opposition (To Motion To Cite Respondent in
Contempt), 15 respondent averred that she did not have the
original copy of the marriage certificate because the same was
in the possession of Carlos Ui, and that she annexed such copy
because she relied in good faith on what appeared on the copy
of the marriage certificate in her possession.
Respondent filed her Memorandum 16 on February 22, 1995
and raised the lone issue of whether or not she has conducted
herself in an immoral manner for which she deserves to be
barred from the practice of law. Respondent averred that the
complaint should be dismissed on two (2) grounds, namely:
(i) Respondent conducted herself in a manner consistent with
the requirement of good moral character for the practice of
the legal profession; and
(ii) Complainant failed to prove her allegation that respondent
conducted herself in an immoral manner.
In her defense, respondent contends, among others, that it
was she who was the victim in this case and not Leslie Ui
because she did not know that Carlos Ui was already married,
and that upon learning of this fact, respondent immediately
cut-off all her ties with Carlos Ui. She stated that there was no
reason for her to doubt at that time that the civil status of
Carlos Ui was that of a bachelor because he spent so much
time with her, and he was so open in his courtship. 18
On the issue of the falsified marriage certificate, respondent
alleged that it was highly incredible for her to have knowingly
attached such marriage certificate to her Answer had she
known that the same was altered. Respondent reiterated that
there was no compelling reason for her to make it appear that
her marriage to Carlos Ui took place either in 1985 or 1987,
because the fact remains that respondent and Carlos Ui got
married before complainant confronted respondent and
informed the latter of her earlier marriage to Carlos Ui in June
1988. Further, respondent stated that it was Carlos Ui who
testified and admitted that he was the person responsible for
changing the date of the marriage certificate from 1987 to
1985, and complainant did not present evidence to rebut the
testimony of Carlos Ui on this matter.
Respondent posits that complainant's evidence, consisting of
the pictures of respondent with a child, pictures of respondent
with Carlos Ui, a picture of a garage with cars, a picture of a
light colored car with Plate No. PNS 313, a picture of the same
car, and portion of the house and ground, and another picture
of the same car bearing Plate No. PNS 313 and a picture of the
house and the garage, 19 does not prove that she acted in an
immoral manner. They have no evidentiary value according to
her. The pictures were taken by a photographer from a private
security agency and who was not presented during the
hearings. Further, the respondent presented the Resolution of
the Provincial Fiscal of Pasig in I.S. Case No. 89-5427 dismissing
the complaint filed by Leslie Ui against respondent for lack of
evidence to establish probable cause for the offense
charged 20 and the dismissal of the appeal by the Department
of Justice21 to bolster her argument that she was not guilty of
any immoral or illegal act because of her relationship with
Carlos Ui. In fine, respondent claims that she entered the
relationship with Carlos Ui in good faith and that her conduct
cannot be considered as willful, flagrant, or shameless, nor can
it suggest moral indifference. She fell in love with Carlos Ui
whom she believed to be single, and, that upon her discovery
of his true civil status, she parted ways with him.
In the Memorandum 22 filed on March 20, 1995 by complainant
Leslie Ui, she prayed for the disbarment of Atty. Iris Bonifacio
and reiterated that respondent committed immorality by
having intimate relations with a married man which resulted in
the birth of two (2) children. Complainant testified that
respondent's mother, Mrs. Linda Bonifacio, personally knew
complainant and her husband since the late 1970s because
they were clients of the bank where Mrs. Bonifacio was the
Branch Manager. 23 It was thus highly improbable that
respondent, who was living with her parents as of 1986, would
not have been informed by her own mother that Carlos Ui was
a married man. Complainant likewise averred that respondent
committed disrespect towards the Commission for submitting
a photocopy of a document containing an intercalated date.
In her Reply to Complainant's Memorandum 24, respondent
stated that complainant miserably failed to show sufficient
proof to warrant her disbarment. Respondent insists that
contrary to the allegations of complainant, there is no showing
that respondent had knowledge of the fact of marriage of
Carlos Ui to complainant. The allegation that her mother knew
Carlos Ui to be a married man does not prove that such
information was made known to respondent.
Hearing on the case ensued, after which the Commission on
Bar Discipline submitted its Report and Recommendation,
finding that:
In the case at bar, it is alleged that at the time respondent was
courted by Carlos Ui, the latter represented himself to be
single. The Commission does not find said claim too difficult to
believe in the light of contemporary human experience.
Almost always, when a married man courts a single woman, he
represents himself to be single, separated, or without any firm
commitment to another woman. The reason therefor is not
hard to fathom. By their very nature, single women prefer
single men.
The records will show that when respondent became aware
the (sic) true civil status of Carlos Ui, she left for the United
States (in July of 1988). She broke off all contacts with him.
When she returned to the Philippines in March of 1989, she
lived with her brother, Atty. Teodoro Bonifacio, Jr. Carlos Ui
and respondent only talked to each other because of the
children whom he was allowed to visit. At no time did they live
together.
Under the foregoing circumstances, the Commission fails to
find any act on the part of respondent that can be considered
as unprincipled or disgraceful as to be reprehensible to a high
degree. To be sure, she was more of a victim that (sic) anything
else and should deserve compassion rather than
condemnation. Without cavil, this sad episode destroyed her b. a resident thereof;
chance of having a normal and happy family life, a dream
c. at least twenty-one (21) years of age;
cherished by every single girl.
d. a person of good moral character;
xxx xxx xxx
e. he must show that no charges against him involving moral
Thereafter, the Board of Governors of the Integrated Bar of the
turpitude, are filed or pending in court;
Philippines issued a Notice of Resolution dated December 13,
1997, the dispositive portion of which reads as follows: f. possess the required educational qualifications; and
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED g. pass the bar examinations. 25 (Emphasis supplied)
and APPROVED, the Report and Recommendation of the
Clear from the foregoing is that one of the conditions prior to
Investigating Commissioner in the above-entitled case, herein
admission to the bar is that an applicant must possess good
made part of this Resolution/Decision as Annex "A", and,
moral character. More importantly, possession of good moral
finding the recommendation fully supported by the evidence
character must be continuous as a requirement to the
on record and the applicable laws and rules, the complaint for
enjoyment of the privilege of law practice, otherwise, the loss
Gross Immorality against Respondent is DISMISSED for lack of
thereof is a ground for the revocation of such privilege. It has
merit. Atty. Iris Bonifacio is REPRIMANDED for knowingly and
been held
willfully attaching to her Answer a falsified Certificate of
Marriage with a stern warning that a repetition of the same will If good moral character is a sine qua non for admission to the
merit a more severe penalty. bar, then the continued possession of good moral character is
also a requisite for retaining membership in the legal
We agree with the findings aforequoted.
profession. Membership in the bar may be terminated when a
The practice of law is a privilege. A bar candidate does not have lawyer ceases to have good moral character. (Royong vs.
the right to enjoy the practice of the legal profession simply by Oblena, 117 Phil. 865).
passing the bar examinations. It is a privilege that can be
A lawyer may be disbarred for "grossly immoral conduct, or by
revoked, subject to the mandate of due process, once a lawyer
reason of his conviction of a crime involving moral turpitude".
violates his oath and the dictates of legal ethics. The requisites
A member of the bar should have moral integrity in addition to
for admission to the practice of law are:
professional probity.
a. he must be a citizen of the Philippines;
It is difficult to state with precision and to fix an inflexible
standard as to what is "grossly immoral conduct" or to specify
the moral delinquency and obliquity which render a lawyer
unworthy of continuing as a member of the bar. The rule
implies that what appears to be unconventional behavior to
the straight-laced may not be the immoral conduct that
warrants disbarment.
Immoral conduct has been defined as "that conduct which is
willful, flagrant, or shameless, and which shows a moral
indifference to the opinion of the good and respectable
members of the community." (7 C.J.S. 959). 26
In the case at bar, it is the claim of respondent Atty. Bonifacio
that when she met Carlos Ui, she knew and believed him to be
single. Respondent fell in love with him and they got married
and as a result of such marriage, she gave birth to two (2)
children. Upon her knowledge of the true civil status of Carlos
Ui, she left him.
Simple as the facts of the case may sound, the effects of the
actuations of respondent are not only far from simple, they will
have a rippling effect on how the standard norms of our legal
practitioners should be defined. Perhaps morality in our liberal
society today is a far cry from what it used to be before. This
permissiveness notwithstanding, lawyers, as keepers of public
faith, are burdened with a higher degree of social responsibility
and thus must handle their personal affairs with greater
caution. The facts of this case lead us to believe that perhaps
respondent would not have found herself in such a
compromising situation had she exercised prudence and been
more vigilant in finding out more about Carlos Ui's personal
background prior to her intimate involvement with him.
Surely, circumstances existed which should have at least
aroused respondent's suspicion that something was amiss in
her relationship with Carlos Ui, and moved her to ask probing
questions. For instance, respondent admitted that she knew
that Carlos Ui had children with a woman from Amoy, China,
yet it appeared that she never exerted the slightest effort to
find out if Carlos Ui and this woman were indeed unmarried.
Also, despite their marriage in 1987, Carlos Ui never lived with
respondent and their first child, a circumstance that is simply
incomprehensible considering respondent's allegation that
Carlos Ui was very open in courting her.
All these taken together leads to the inescapable conclusion
that respondent was imprudent in managing her personal
affairs. However, the fact remains that her relationship with
Carlos Ui, clothed as it was with what respondent believed was
a valid marriage, cannot be considered immoral. For
immorality connotes conduct that shows indifference to the
moral norms of society and the opinion of good and
respectable members of the community. 27 Moreover, for such
conduct to warrant disciplinary action, the same must be
"grossly immoral," that is, it must be so corrupt and false as to
constitute a criminal act or so unprincipled as to be
reprehensible to a high degree. 28
We have held that "a member of the Bar and officer of the
court is not only required to refrain from adulterous
relationships . . . but must also so behave himself as to avoid
scandalizing the public by creating the belief that he is flouting It is the bounden duty of lawyers to adhere unwaveringly to
those moral standards." 29 Respondent's act of immediately the highest standards of morality.1avvphi1 The legal profession
distancing herself from Carlos Ui upon discovering his true civil exacts from its members nothing less. Lawyers are called upon
status belies just that alleged moral indifference and proves to safeguard the integrity of the Bar, free from misdeeds and
that she had no intention of flaunting the law and the high acts constitutive of malpractice. Their exalted positions as
moral standard of the legal profession. Complainant's bare officers of the court demand no less than the highest degree of
assertions to the contrary deserve no credit. After all, the morality.
burden of proof rests upon the complainant, and the Court will
WHEREFORE, the complaint for disbarment against respondent
exercise its disciplinary powers only if she establishes her case
Atty. Iris L. Bonifacio, for alleged immorality, is hereby
by clear, convincing and satisfactory evidence. 30 This, herein
DISMISSED.
complainant miserably failed to do.
However, respondent is hereby REPRIMANDED for attaching to
On the matter of the falsified Certificate of Marriage attached
her Answer a photocopy of her Marriage Certificate, with an
by respondent to her Answer, we find improbable to believe
altered or intercalated date thereof, with a STERN WARNING
the averment of respondent that she merely relied on the
that a more severe sanction will be imposed on her for any
photocopy of the Marriage Certificate which was provided her
repetition of the same or similar offense in the future.
by Carlos Ui. For an event as significant as a marriage
ceremony, any normal bride would verily recall the date and SO ORDERED.
year of her marriage. It is difficult to fathom how a bride,
Bellosillo, Mendoza, Quisumbing and Buena, JJ., concur.
especially a lawyer as in the case at bar, can forget the year
when she got married. Simply stated, it is contrary to human
experience and highly improbable.
Furthermore, any prudent lawyer would verify the information
contained in an attachment to her pleading, especially so when
she has personal knowledge of the facts and circumstances
contained therein. In attaching such Marriage Certificate with
an intercalated date, the defense of good faith of respondent
on that point cannot stand.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.C. No. 376 April 30, 1963
JOSEFINA ROYONG, complainant,
vs.
ATTY. ARISTON OBLENA, respondent.
BARRERA, J.:
In a verified complaint filed with this Court on January 14,
1959, complainant Josefina Royong charged the respondent
Ariston J. Oblena, a member of the Philippine Bar, with rape
allegedly committed on her person in the manner described
therein. Upon requirement of this Court, the respondent filed
his answer denying all the allegations in the complaint and
praying that he be not disbarred. On February 3, 1959, this
Court referred the case to the Solicitor General for
investigation, report and recommendation.
On July 10, 1961, the Solicitor General submitted his report on
the case with the recommendation that the respondent "be
permanently removed from his office lawyer and his name be
stricken from the roll of attorneys". The pertinent part of the
report reads as follows:
The complainant testified that after lunch on August 5, 1958,
Cecilia Angeles, her foster mother, left her alone in their house
and went down to the pig sty to feed the pigs. At about 1:00
p.m., while she" (complainant) was ironing clothes on the
second floor of the house the respondent entered and read a
newspaper at her back. Suddenly he covered her mouth with
one hand and with the other hand dragged her to one of the
bedrooms of the house and forced her to lie down on the floor.
She did not shout for help because he threatened her and her
family with death. He next undressed as she lay on the floor,
then had sexual intercourse with her after he removed her
panties and gave her hard blows on the thigh with his fist to
subdue her resistance. After the sexual intercourse, he warned
her not to report him to her foster parents, otherwise, he
would kill her and all the members of her family. She resumed
ironing clothes after he left until 5:00 o'clock that afternoon
when she joined her foster mother on the first floor of the
house. As a result of the sexual intercourse she became
pregnant and gave birth to a baby on June 2, 1959 (pp. 4-8, 21,
23, 26, 27, t.s.n., hearing of Aug. 5, 1959).
She admitted that had she shouted for help she would have
been heard by the neighbors that she did not report the
outrage to anyone because of the threat made by the
respondent; that she still frequented the respondent's house
after August 5, 1959, sometimes when he was alone, ran
errands for him, cooked his coffee, and received his mail for
him. Once, on November 14, 1958, when respondent was sick
of influenza, she was left alone with him in his house while her
aunt Briccia Angeles left for Manila to buy medicine (pp. 11,
14-18, 24, t.s.n., hearing of August 5, 1959).
The respondent on the witness stand denied that he raped the
complainant (p. 3, t.s.n., hearing of March 25 1960). He
testified that after lunch on August 5, 1958, he went to the
Commission Of Civil Service to follow up his appointment as
technical assistant in the office of the mayor of Makati, Rizal,
and read the record of the administrative case against
Buenaventura Perez (pp. 23, 24, 34, t.s.n., hearing of March 25,
1960, Exhs. 1 and 2).
The respondent, however, admitted that he had illicit relations
with the complainant from January, 1957 to December, 1958,
when their clandestine affair was discovered by the
complainant's foster parents, but to avoid criminal liability for
seduction, according to him, he limited himself to kissing and
embracing her and sucking her tongue before she completed
her eighteenth birthday. They had their first sexual intercourse
on May 11, 1958, after she had reached eighteen, and the
second one week later, on May 18. The last intercourse took
place before Christmas in December, 1958. In all, they had
sexual intercourse about fifty times, mostly in her house and
sometimes in his house whenever they had the opportunity.
He intended to marry her when she could legally contract
marriage without her foster parents' intervention, 'in case
occasion will permit ... because we cannot ask permission to
marry, for her foster parents will object and even my common-
law wife, will object.' After the discovery of their relationship
by the complainant's foster parents, he confessed the affair to
Briccia, explaining that he wanted to have a child, something
she (Briccia) could not give him. (pp. 14-16, 19-25, t.s.n.,
hearing of March 25, 1960).
xxx xxx xxx
FINDINGS AND COMMENT
There is no controversy that the respondent had carnal
knowledge of the complainant. The complainant claims she
surrendered to him under circumstances of violence and
intimidation, but the undersigned are convinced that the
sexual intercourse was performed not once but repeatedly and
with her consent. From her behaviour before and after the
alleged rape, she appears to have been more a sweetheart
than of the victim of an outrage involving her honor ....
But the foregoing observations notwithstanding, the
undersigned cannot in conscience recommend respondent's
exoneration. The respondent tempted Briccia Angeles to live
maritally with him not long after she and her husband parted,
and it is not improbable that the spouses never reconciled
because of him. His own evidence shows that, tiring of her
after more than fifteen years of adulterous relationship with
her and on the convenient excuse that she, Briccia Angeles,
could not bear a child, he seduced Josefina Andalis, then 17 or
18 years of age, resulting in her pregnancy and the birth of a
child, on June 2, 1959. The seduction was accomplished with
grave abuse of confidence and by means of promises of
marriage which he knew he could not fulfill without grievous
injury to the woman who forsook her husband so that he,
respondent, could have all of her. He also took advantage of his
moral influence over her. From childhood, Josefina Andalis,
treated him as an uncle and called him 'tata' (uncle),
undoubtedly because he is the paramour of a sister of her
mother. Considering her age (she was 17 or 18 years old then),
it is not difficult to see why she could not resist him.
The evidence further shows that on July 22, 1954, the
respondent filed a sworn petition dated May 22, 1954 alleging
"that he is a person of good moral character" (Par. 3) and
praying that the Supreme Court permit him "to take the bar
examinations to be given on the first Saturday of August, 1954,
or at any time as the Court may fix.."
But he was not then the person of good moral character he
represented himself to be. From 1942 to the present, he has
continuously lived an adulterous life with Briccia Angeles
whose husband is still alive, knowing that his concubine is a
married woman and that her marriage still subsists. This fact
permanently disqualified him from taking the bar
examinations, and had it been known to the Supreme Court in
1954, he would not have been permitted to take the bar
examinations that year or thereafter, or to take his oath of
office as a lawyer. As he was then permanently disqualified
from admission to the Philippine Bar by reason of his
adulterous relations with a married woman, it is submitted that
the same misconduct should be sufficient ground for his
permanent disbarment, unless we recognize a double standard
of morality, one for membership to the Philippine Bar and
another for disbarment from the office of a lawyer.
xxx xxx xxx
RECOMMENDATION
Wherefore, the undersigned respectfully recommend that after
due hearing, respondent Ariston J. Oblena be permanently
removed from his office as a lawyer and his name be stricken
from the roll of attorneys.
In view of his own findings as a result of his investigation, that
even if respondent did not commit the alleged rape
nevertheless he was guilty of other misconduct, the Solicitor
General formulated another complaint which he appended to
his report, charging the respondent of falsely and deliberately
alleging in his application for admission to the bar that he is a
person of good moral character; of living adulterously with
Briccia Angeles at the same time maintaining illicit relations
with the complainant Josefina Royong, niece of Briccia, thus
rendering him unworthy of public confidence and unfit and
unsafe to manage the legal business of others, and praying that
this Court render judgment ordering "the permanent removal
of the respondent ... from his office as a lawyer and the
cancellation of his name from the roll of attorneys."
In his answer to this formal complaint, respondent alleged the
special defense that "the complaint does not merit action",
since the causes of action in the said complaint are different
and foreign from the original cause of action for rape and that
"the complaint lacks the necessary formalities called for in Sec.
1, Rule 128 of the Rules of Court." Respondent prayed that
after due notice and hearing for additional evidence, the
complaint be dismissed.
On September 13, 1961, this Court designated the Court
Investigators to receive the additional evidence. Accordingly
the case was set for hearing of which the parties were duly
notified. On September 29, 1961, respondent asked leave to
submit a memorandum which was granted, and on October 9,
1961 the same was filed, alleging the following: 1) That the
charge of rape has not been proven; 2) That no act of
seduction was committed by the respondent; 3) That no act of
perjury or fraudulent concealment was committed by the
respondent when he filed his petition for admission to the bar;
and 4) That the respondent is not morally unfit to be a member
of the bar.
Wherefore, the parties respectfully pray that the foregoing
stipulation of facts be admitted and approved by this
Honorable Court, without prejudice to the parties adducing
other evidence to prove their case not covered by this
stipulation of facts. 1wph1.t
At the hearing on November 16, 1961, respondent presented
his common-law wife, Briccia Angeles, who testified as follows:
... Respondent is her common-law husband (t.s.n. 23). She first
met respondent on December 16, 1941 at Cavinti, Laguna
(t.s.n. 23). She and her sister Cecilia Angeles-Royong were
evacuated to Cavinti by the Red Cross (t.s.n. 23). She was
already married (to Teodoro Arines) at the time (t.s.n. 24). She
and Arines are from Iriga, Camarines Sur (t.s.n. 24).
Respondent and one Mr. Flores registered them (t.s.n. 24) as
evacuees. When Mr. Flores asked her about her status she told
him she was 'single' (t.s.n. 25). She and her sister, Cecilia, were
then told to stay at respondent's house, respondent courted
her (t.s.n. 26). Respondent asked her if she was married and
she told him 'we will talk about that later on' (t.s.n. 26). She
told respondent she was married (to Arines) when she and
respondent were already living together as 'husband and wife',
in 1942( t.s.n. 26). Respondent asked her to marry him, when
they were living as husband and wife (t.s.n. 27). Her sister
Cecilia left Cavinti 2 months after their arrival thereat, but she
did not go with her because she and respondent 'had already a
good understanding'(sexual relations) [t.s.n. 27]. Later, she left
Cavinti and went to her hometown in Iriga, Camarines Sur,
because respondent was already reluctant to live with her and
he told her it was better for her to go home to Iriga (t.s.n. 25).
Arriving at Iriga, she met her legitimate husband (Arines), who
told her he had already a wife, named Conching Guevara (t.s.n.
28-29). She then went back to Cavinti (in 1943), with her
father, and lived with respondent (t.s.n. 29). Respondent
eventually agreed that she live with him (t.s.n. 35); in fact, she
is still presently living with respondent (t.s.n. 35) [Report of
Court Investigators, March 6, 1962, pp. 5-6]."
Thereafter, respondent requested permission to submit an
affidavit at a later date, which request was also granted. The
affidavit was filed on December 16, 1961, the respondent
averring, among others, the following:.
... That he never committed any act or crime of seduction
against the complainant, because the latter was born on
February 19, 1940, and his first sexual intercourse with her
took place on May 11, 1958, when she was already above 18
years of age; that he had been living with his common-law
wife, Briccia Angeles, for almost 20 years, but from the time he
began courting her, he 'had no intention to alienate' her love
for her husband, Arines, or to commit the crime of adultery;
that he courted Briccia on October 16, 1941, and was shortly
thereafter accepted by her; that on February 21, 1942, he
found Briccia alone in his house, who told him that her sister,
Cecilia, had gone to Pagsanjan with the other evacuees; that
from said date (February 21), to the present, he and Briccia had
been living together as common-law husband and wife; that 2
or 3 weeks thereafter, he asked Briccia to marry him, but she
confessed she was already married, and maybe her husband
(Arines) was still living in Iriga; that he could not then drive
Briccia away, because she was a stranger in the place, nor
could he urge her to join her sister Cecilia, as the latter had left
Pagsanjan; that in 1943 she told Briccia to separate from him
and to return to Iriga, and urged her never to see him again;
that contrary to his expectations, Briccia returned to Cavinti 3
months thereafter; that Briccia strongly insisted to live with
him again, telling him that she cannot separate from him
anymore, as he was ashamed; that Briccia's father told him
that Briccia's husband (Arines) had agreed not to molest them
as in fact he (Arines) was already living with another woman;
that he had 'no choice but to live with her' (Briccia) again; that
when he filed his petition to take the bar examinations in 1954,
he 'did not have the slightest intention to hide' from this Court
the fact of his 'open cohabitation with a married woman'
(Briccia Angeles); that he did not state said fact in his petition,
because he did not see in the form of the petition being used in
1954 that the fact must be stated; and that since his birth, he
thought and believed he was a man of good moral character,
and it was only from the Solicitor General that he first learned
he was not so; and that he did not commit perjury or
fraudulent concealment when he filed his petition to take the
bar examinations in 1954." (Report of the Court Investigators,
pp. 6-8, March 6, 1962).
After hearing, the investigators submitted a report with the
finding that: 1) Respondent used his knowledge of the law to
take advantage by having illicit relations with complainant,
knowing as he did, that by committing immoral acts on her, he
was free from any criminal liability; and 2) Respondent
committed gross immorality by continuously cohabiting with a
married woman even after he became a lawyer in 1955 to the
present; and 3) That respondent falsified the truth as to his
moral character in his petition to take the 1954 bar
examinations, being then immorally (adulterously) in
cohabitation with his common-law wife, Briccia Angeles, a
married woman. The investigators also recommended that the
respondent be disbarred or alternatively, be suspended from
the practice of law for a period of one year.
Upon the submission of this report, a copy of which was served
on respondent, through his counsel of record, the case was set
for hearing before the Court on April 30, 1962. Respondent
asked leave to file his memorandum in lieu of oral argument.
This was granted and the corresponding memorandum was
duly filed.
It is an admitted and uncontroverted fact that the respondent
had sexual relations with the complainant several times, and as
a consequence she bore him a child on June 2, 1959; and that
he likewise continuously cohabited with Briccia Angeles, in an
adulterous manner, from 1942 up to the present.
The main point in issue is thus limited illicit relations with the
complainant Josefina Royong the and the open cohabitation
with Briccia Angeles, a married woman, are sufficient grounds
to cause the respondent's disbarment.
It is argued by the respondent that he is not liable for
disbarment notwithstanding his illicit relations with the
complainant and his open cohabitation with Briccia Angeles, a
married woman, because he has not been convicted of any
crime involving moral turpitude. It is true that the respondent
has not been convicted of rape, seduction, or adultery on this
count, and that the grounds upon which the disbarment
proceedings is based are not among those enumerated by
Section 25, Rule 127 of the Rules of Court for which a lawyer
may be disbarred. But it has already been held that this
enumeration is not exclusive and that the power of the courts
to exclude unfit and unworthy members of the profession is
inherent; it is a necessary incident to the proper administration
of justice; it may be exercised without any special statutory
authority, and in all proper cases unless positively prohibited
by statute; and the power may be exercised in any manner that
will give the party be disbarred a fair trial and a fair opportunity
to be heard. (1 Francisco, Rules of Court [1958 ed.] 698, citing
In Re Pelaez, 44 Phil. 567). Although it is a well settled rule that
the legislature (or the Supreme Court by virtue of its rule-
making power) may provide that certain acts or conduct shall
require disbarment, the accepted doctrine is that statutes and
rules merely regulate the power to disbar instead of creating it,
and that such statutes (or rules) do not restrict the general
powers of the court over attorneys, who are its officers, and
that they may be removed for other than statutory grounds (7
C.J.S. 734). In the United States, where from our system of
legal ethics is derived, "the continued possession of a fair
private and professional character or a good moral character is
a requisite condition for the rightful continuance in the
practice of law for one who has been admitted, and its loss
requires suspension or disbarment even though the statutes do
not specify that as a ground of disbarment". The moral
turpitude for which an attorney may be disbarred may consist
of misconduct in either his professional or non-professional
activities (5 Am. Jur. 417). The tendency of the decisions of this
Court has been toward the conclusion that a member of the
bar may be removed or suspended from office as a lawyer for
other than statutory grounds. Indeed, the rule is so phrased as
to be broad enough to cover practically any misconduct of a
lawyer (In Re Pelaez, 44 Phil. 567). In the case at bar, the moral
depravity of the respondent is most apparent. His pretension
that before complainant completed her eighteenth birthday,
he refrained from having sexual intercourse with her, so as not
to incur criminal liability, as he himself declared and that he
limited himself merely to kissing and embracing her and
sucking her tongue, indicates a scheming mind, which together
with his knowledge of the law, he took advantage of, for his
lurid purpose.
Moreover, his act becomes more despicable considering that
the complainant was the niece of his common-law wife and
that he enjoyed a moral ascendancy over her who looked up to
him as her uncle. As the Solicitor General observed: "He also
took advantage of his moral influence over her. From
childhood, Josefina Andalis (Royong), treated him as an uncle
and called him 'tata' (uncle), undoubtedly because he is the
paramour of a sister of her mother. Considering her age (she
was 17 or 18 years old then), her inexperience and his moral
ascendency over her, it is not difficult to see why she could not
resist him." Furthermore, the blunt admission of his illicit
relations with the complainant reveals the respondent to be a
person who would suffer no moral compunction for his acts if
the same could be done without fear of criminal liability. He
has, by these acts, proven himself to be devoid of the moral
integrity expected of a member of the bar.
The respondent's misconduct, although unrelated to his office,
may constitute sufficient grounds for disbarment. This is a
principle we have followed since the ruling in In Re Pelaez, 44
Phil. 567, where this Court quoted with approval the following
portion of the decision of the Supreme Court of Kansas in the
case of Peyton's Appeal (12 Kan. 398, 404), to wit:.
The nature of the office, the trust relation which exists
between attorney and client, as well as between court and
attorney, and the statutory rule prescribing the qualifications
of attorneys, uniformly require that an attorney be a person of
good moral character. If that qualification is a
condition precedent to a license or privilege to enter upon the
practice of the law, it would seem to be equally essential
during the continuance of the practice and the exercise of the
privilege. So it is held that an attorney will be removed not only
for malpractice and dishonesty in his profession, but also for
gross misconduct not connected with his professional duties,
which shows him to be unfit for the office and unworthy of the
privileges which his license and the law confer upon him.
(Emphasis supplied).
Respondent's conduct though unrelated to his office and in no
way directly bearing on his profession, has nevertheless
rendered him unfit and unworthy of the privileges of a lawyer.
We cannot give sanction to his acts. For us to do so would be
as the Solicitor General puts it recognizing "a double
standard of morality, one for membership to the Philippine
Bar, and another for disbarment from the office of the lawyer."
If we concede that respondent's adulterous relations and his
simultaneous seduction of his paramour's niece did not and do
not disqualify him from continuing with his office of lawyer,
this Court would in effect be requiring moral integrity as an
essential prerequisite for admission to the bar, only to later on
tolerate and close its eyes to the moral depravity and character
degeneration of the members of the bar.
The decisions relied upon by the respondent in justifying his
stand that even if he admittedly committed fornication, this is
no ground for disbarment, are not controlling. Fornication, if
committed under such scandalous or revolting circumstances
as have proven in this case, as to shock common sense of
decency, certainly may justify positive action by the Court in
protecting the prestige of the noble profession of the law. The
reasons advanced by the respondent why he continued his
adulterous relations with Briccia Angeles, in that she helped
him in some way finish his law studies, and that his "sense of
propriety and Christian charity" did not allow him to abandon
her after his admission to the bar after almost 13 years of
cohabitation, are hardly an excuse for his moral dereliction.
The means he employed, as he stated, in order to extricate
himself from the predicament he found himself in, by courting
the complainant and maintaining sexual relations with her
makes his conduct more revolting. An immoral act cannot
justify another immoral act. The noblest means he could have
employed was to have married the complainant as he was then
free to do so. But to continue maintaining adulterous relations
with a married woman and simultaneously maintaining
promiscuous relations with the latter's niece is moral
perversion that can not be condoned. Respondent's conduct
therefore renders him unfit and unworthy for the privileges of
the legal profession. As good character is an essential
qualification for admission of an attorney to practice, he may
be removed therefrom whenever he ceases to possess such
character (7 C.J.S. 735).
The respondent further maintains that the Solicitor General
exceeded his authority in filing the present complaint against
him for seduction, adultery and perjury, as it charges an
offense or offenses different from those originally charged in
the complaint of January 14, 1959 for rape, and cites as
authority Sections 4 and 5 of Rule 128 of the Rules of Court,
which state:.
SEC. 4. Report of the Solicitor General. Based upon the
evidence adduced at the hearing, if the Solicitor General finds
no sufficient ground to proceed against the respondent, he
shall submit a report to the Supreme Court containing his
findings of fact and conclusion, whereupon the respondent
shall be exonerated unless the court orders differently.
SEC. 5. Complaint of the Solicitor General. Answer of the
respondent. If the Solicitor General finds sufficient ground to
proceed against the respondent, he shall file the corresponding
complaint, accompanied with all the evidence introduced in his
investigation, with the Supreme Court, and the respondent
shall be served by the clerk of the Supreme Court with a copy
of the complaint with direction to answer the same within
fifteen days.
The contention is devoid of merit. Nothing in the language of
the foregoing rules requires the Solicitor General to charge in
his complaint the same offense charged in the complaint
originally filed by the complainant for disbarment. Precisely,
the law provides that should the Solicitor General find
sufficient grounds to proceed against the respondent, he shall
file the corresponding complaint, accompanied by the evidence
introduced in his investigation. The Solicitor General therefore
is at liberty to file any case against the respondent he may be
justified by the evidence adduced during the investigation..
The respondent also maintains that he did not falsify his
petition to take the bar examinations in 1954 since according
to his own opinion and estimation of himself at that time, he
was a person of good moral character. This contention is
clearly erroneous. One's own approximation of himself is not a
gauge to his moral character. Moral character is not a
subjective term, but one which corresponds to objective
reality. Moral character is what a person really is, and not what
he or other people think he is. As former Chief Justice Moran
observed: An applicant for license to practice law is required to
show good moral character, or what he really is, as
distinguished from good reputation, or from the opinion
generally entertained of him, the estimate in which he is held
by the public in the place where he is known. As has been said,
ante the standard of personal and professional integrity which
should be applied to persons admitted to practice law is not
satisfied by such conduct as merely enables them to escape the
penalties of criminal law. Good moral character includes at
least common honesty (3 Moran, Comments on the Rules of
Court, [1957 ed.] 626, citing In Re Weinstein, 42 P. [2d] 744
B.L.D., Cooper v. Greeley. 1 Den. [N.Y.] 3447; In Re Del Rosario,
52 Phil. 399; and People v. Macauley, 82 N.E. 612).
Respondent, therefore, did not possess a good moral character
at the time he applied for admission to the bar. He lived an
adulterous life with Briccia Angeles, and the fact that people
who knew him seemed to have acquiesced to his status, did
not render him a person of good moral character. It is of no
moment that his immoral state was discovered then or now as
he is clearly not fit to remain a member of the bar.
WHEREFORE, judgment is hereby entered striking the name of
herein respondent, Ariston J. Oblena, from the roll of
attorneys.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.C. No. 1512 January 29, 1993
VICTORIA BARRIENTOS, complainant,
vs.
TRANSFIGURACION DAAROL, respondent.
RESOLUTION
PER CURIAM:
In a sworn complaint filed with this Court on August 20, 1975,
complainant Victoria C. Barrientos seeks the disbarment of
respondent Transfiguracion Daarol, ** a member of the
Philippine Bar, on grounds of deceit and grossly immoral
conduct.
After respondent filed his answer (Rollo, p. 12), the Court
Resolved to refer the case to the Solicitor General for
investigation, report and recommendation (Rollo, p. 18).
As per recommendation of the Solicitor General and for the
convenience of the parties and their witnesses who were
residing in the province of Zamboanga del Norte, the Provincial
Fiscal of said province was authorized to conduct the
investigation and to submit a report, together with transcripts
of stenographic notes and exhibits submitted by the parties, if
any (Rollo, p. 20).
On November 9, 1987, the Office of the Solicitor General
submitted its Report and Recommendation, viz.:
Evidence of the complainant:
. . . complainant Victoria Barrientos was single and a resident of
Bonifacio St., Dipolog City; that when she was still a teenager
and first year in college she came to know respondent
Transfiguracion Daarol in 1969 as he used to go to their house
being a friend of her sister Norma; that they also became
friends, and she knew the respondent as being single and living
alone in Galas, Dipolog City; that he was the General Manager
of Zamboanga del Norte Electric Cooperative, Inc. (ZANECO)
and subsequently transferred his residence to the ZANECO
compound at Laguna Blvd. at Del Pilar St., Dipolog City (pp.
109-111, tsn, September 30, 1976).
That on June 27, 1973, respondent came to their house and
asked her to be one of the usherettes in the Mason's
convention in Sicayab, Dipolog City, from June 28 to 30, 1973
and, she told respondent to ask the permission of her parents,
which respondent did, and her father consented; that for three
whole days she served as usherette in the convention and
respondent picked her up from her residence every morning
and took her home from the convention site at the end of each
day (pp. 112-114, tsn, id.).
That in the afternoon of July 1, 1973, respondent came to
complainant's house and invited her for a joy ride with the
permission of her mother who was a former classmate of
respondent; that respondent took her to Sicayab in his jeep
and then they strolled along the beach, and in the course of
which respondent proposed his love to her; that respondent
told her that if she would accept him, he would marry her
within six (6) months from her acceptance; complainant told
respondent that she would think it over first; that from then on
respondent used to visit her in their house almost every night,
and he kept on courting her and pressed her to make her
decision on respondent's proposal; that on July 7, 1973, she
finally accepted respondent's offer of love and respondent
continued his usual visitations almost every night thereafter;
they agreed to get married in December 1973 (pp. 115-119,
tsn, id.).
That in the morning of August 20, 1973, respondent invited
her, with the consent of her father, to a party at the Lopez
Skyroom; that at 7:00 p.m. of that day respondent fetched her
from her house and went to the Lopez Skyroom (pp. 119-121,
tsn, id); that at about 10:00 p.m. of that evening they left the
party at the Lopez Skyroom, but before taking her home
respondent invited her for a joy ride and took her to the airport
at Sicayab, Dipolog City; respondent parked the jeep by the
beach where there were no houses around; that in the course
of their conversation inside the jeep, respondent reiterated his
promise to marry her and then started caressing her
downward and his hand kept on moving to her panty and down
to her private parts (pp. 121-122, tsn. id.); that she then said:
"What is this Trans?", but he answered: "Day, do not be afraid
of me. I will marry you" and reminded her also that "anyway,
December is very near, the month we have been waiting for"
([p], 122, tsn, id.), then he pleaded, "Day, just give this to me,
do not be afraid" (ibid), and again reiterated his promise and
assurances, at the same time pulling down her panty; that she
told him that she was afraid because they were not yet
married, but because she loved him she finally agreed to have
sexual intercourse with him at the back seat of the jeep; that
after the intercourse she wept and respondent again reiterated
his promises and assurances not to worry because anyway he
would marry her; and at about 12:00 midnight they went home
(pp.
122-124, tsn, id.).
After August 20, 1973, respondent continued to invite her to
eat outside usually at the Honeycomb Restaurant in Dipolog
City about twice or three times a week, after which he would
take her to the airport where they would have sexual
intercourse; that they had this sexual intercourse from August
to October 1973 at the frequency of two or three times a
week, and she consented to all these things because she loved
him and believed in all his promises (pp. 125-127, tsn, id.).
Sometime in the middle part of September, 1973 complainant
noticed that her menstruation which usually occurred during
the second week of each month did not come; she waited until
the end of the month and still there was no menstruation; she
submitted to a pregnancy test and the result was positive; she
informed respondent and respondent suggested to have the
fetus aborted but she objected and respondent did not insist; annulment of his previous marriage, he told complainant that it
respondent then told her not to worry because they would get would soon be approved (pp. 141-142, tsn, id.); he came back
married within one month and he would talk to her parents in February and in March 1974 and told complainant the same
about their marriage (pp. 129-132, tsn, id.). thing (p. 142, tsn, id.); complainant wrote her mother to come
to Manila when she delivers the child, but her mother
On October 20, 1973, respondent came to complainant's
answered her that she cannot come as nobody would be left in
house and talked to her parents about their marriage; it was
their house in Dipolog and instead suggested that complainant
agreed that the marriage would be celebrated in Manila so as
go to Cebu City which is nearer; complainant went to Cebu City
not to create a scandal as complainant was already pregnant;
in April 1974 and, her sister Norma took her to the Good
complainant and her mother left for Manila by boat on October
Shepherd Convent at Banawa Hill; she delivered a baby girl on
22, 1973 while respondent would follow by plane; and they
June 14, 1974 at the Perpetual Succor Hospital in Cebu City;
agreed to meet in Singalong, Manila, in the house of
and the child was registered as "Dureza Barrientos" (pp. 143-
complainant's sister Delia who is married to Ernesto Serrano
148, tsn, id.).
(pp. 132-135, tsn, id.).
In the last week of June 1974 complainant came to Dipolog City
On October 26, 1973, when respondent came to see
and tried to contact respondent by phone and, thru her
complainant and her mother at Singalong, Manila, respondent
brother, but to no avail; as she was ashamed she just stayed in
told them that he could not marry complainant because he was
their house; she got sick and her father sent her to Zamboanga
already married (p. 137, tsn, id.); complainant's mother got
City for medical treatment; she came back after two weeks but
mad and said: "Trans, so you fooled my daughter and why did
still respondent did not come to see her (tsn. 48-150, tsn, id.);
you let us come here in Manila?" (p. 138, tsn, id.). Later on,
she consulted a lawyer and filed an administrative case against
however, respondent reassured complainant not to worry
respondent with the National Electrification Administration;
because respondent had been separated from his wife for 16
the case was referred to the Zamboanga del Norte Electric
years and he would work for the annulment of his marriage
Cooperative (ZANECO) and it was dismissed and thus she filed
and, subsequently marry complainant (p. 139, tsn, id.);
the present administrative case (pp. 150-151, tsn, id.).
respondent told complainant to deliver their child in Manila
and assured her of a monthly support of P250.00 (p. 140, Evidence for the Respondent
tsn, id.); respondent returned to Dipolog City and actually sent
The evidence of the respondent consists of his sole testimony
the promised support; he came back to Manila in January 1974
and one exhibit, the birth certificate of the child (Exh. 1).
and went to see complainant; when asked about the
Respondent declared substantially as follows: that he was born
on August 6, 1932 in Liloy, Zamboanga del Norte; that he
married Romualda Sumaylo in Liloy in 1955; that he had a son
who is now 20 years old; that because of incompatibility he had
been estranged from his wife for 16 years; that in 1953 he was
baptized as a moslem and thereby embraced the Islam Religion
(pp.
173-180 tsn, Jan. 13, 1977); that he came to know
complainant's father since 1952 because he was his teacher;
likewise he knew complainant's mother because they were
former classmates in high school; that he became acquainted
with complainant when he used to visit her sister, Norma, in
their house; they gradually became friends and often talked
with each other, and even talked about their personal
problems; that he mentioned to her his being estranged from
his wife; that with the consent of her parents he invited her to
be one of the usherettes in the Masonic Convention in Sicayab,
Dipolog City held on June 28-30, 1973 (pp. 185-192, tsn, id.);
that the arrangement was for him to fetch her from her
residence and take her home from the convention site; that it
was during this occasion that they became close to each other
and after the convention, he proposed his love to her on July 7,
1973; that (sic) a week of courtship, she accepted his proposal
and since then he used to invite her (pp. 193-194, tsn, id.).
That in the evening of August 20, 1973, respondent invited
complainant to be his partner during the Chamber of
Commerce affair at the Lopez Skyroom; that at about 10:00
p.m. of that evening after the affair, complainant complained
to him of a headache, so he decided to take her home but once
inside the jeep, she wanted to have a joy ride, so he drove
around the city and proceeded to the airport; that when they
were at the airport, only two of them, they started the usual
kisses and they were carried by their passion; they forgot
themselves and they made love; that before midnight he took
her home; that thereafter they indulged in sexual intercourse
many times whenever they went on joy riding in the evening
and ended up in the airport which was the only place they
could be alone
(p. 195, tsn, id.).
That it was sometime in the later part of October 1973 that
complainant told him of her pregnancy; that they agreed that
the child be delivered in Manila to avoid scandal and
respondent would take care of expenses; that during
respondent's talk with the parents of complainant regarding
the latter's pregnancy, he told him he was married but
estranged from his wife; that when complainant was already in
Manila, she asked him if he was willing to marry her, he
answered he could not marry again, otherwise, he would be
charged with bigamy but he promised to file an annulment of
his marriage as he had been separated from his wife for 16
years; that complainant consented to have sexual intercourse
with him because of her love to him and he did not resort to
force, trickery, deceit or cajolery; and that the present case
was filed against him by complainant because of his failure to
give the money to support complainant while in Cebu waiting
for the delivery of the child and, also to meet complainant's
medical expenses when she went to Zamboanga City for
medical check-up (pp. 198-207, tsn, id.).
FINDING OF FACTS
From the evidence adduced by the parties, the following facts
are not disputed:
1. That the complainant, Victoria Barrientos, is single, a college
student, and was about 20 years and 7 months old during the
time (July-October 1975) of her relationship with respondent,
having been born on December 23, 1952; while respondent
Transfiguracion Daarol is married, General Manager of
Zamboanga del Norte Electric Cooperative, and 41 years old at
the time of the said relationship, having been born on August
6, 1932;
2. That respondent is married to Romualda A. Sumaylo with
whom be has a son; that the marriage ceremony was
solemnized on September 24, 1955 at Liloy, Zamboanga del
Norte by a catholic priest, Rev. Fr. Anacleto Pellamo, Parish
Priest thereat; and that said respondent had been separated
from his wife for about 16 years at the time of his relationship
with complainant;
3. That respondent had been known by the Barrientos family
for quite sometime, having been a former student of
complainant's father in 1952 and, a former classmate of
complainant's mother at the Andres Bonifacio College in
Dipolog City; that he became acquainted with complainant's
sister, Norma in 1963 and eventually with her other sisters,
Baby and Delia and, her brother, Boy, as he used to visit Norma
at her residence; that he also befriended complainant and who
became a close friend when he invited her, with her parents'
consent, to be one of the usherettes during the Masonic
Convention in Sicayab, Dipolog City from June 28 to 30, 1973,
and he used to fetch her at her residence in the morning and
took her home from the convention site after each day's
activities;
4. That respondent courted complainant, and after a week of
courtship, complainant accepted respondent's love on July 7,
1973; that in the evening of August 20, 1973, complainant with
her parents' permission was respondent's partner during the
Chamber of Commerce affair at the Lopez Skyroom in the
Dipolog City, and at about 10:00 o'clock that evening, they left
the place but before going home, they went to the airport at
Sicayab, Dipolog City and parked the jeep at the beach, where
there were no houses around; that after the usual
preliminaries, they consummated the sexual act and at about
midnight they went home; that after the first sexual act,
respondent used to have joy ride with complainant which
usually ended at the airport where they used to make love
twice or three times a week; that as a result of her intimate
relations, complainant became pregnant;
5. That after a conference among respondent, complainant and
complainant's parents, it was agreed that complainant would
deliver her child in Manila, where she went with her mother on
October 22, 1973 by boat, arriving in Manila on the 25th and,
stayed with her brother-in-law Ernesto Serrano in Singalong,
Manila; that respondent visited her there on the 26th, 27th
and 28th of October 1973, and again in February and March
1974; that later on complainant decided to deliver the child in
Cebu City in order to be nearer to Dipolog City, and she went
there in April 1974 and her sister took her to the Good
Shepherd Convent at Banawa Hill, Cebu City; that on June 14,
1974, she delivered a baby girl at the Perpetual Succor Hospital
in Cebu City and, named her "Dureza Barrientos"; that about
the last week of June 1974 she went home to Dipolog City; that
during her stay here in Manila and later in Cebu City, the
respondent defrayed some of her expenses; that she filed an
administrative case against respondent with the National
Electrification Administration; which complaint, however, was
dismissed; and then she instituted the present disbarment
proceedings against respondent.
xxx xxx xxx
In view of the foregoing, the undersigned respectfully
recommend that after hearing, respondent Transfiguracion
Daarol be disbarred as a lawyer. (Rollo, pp. 28-51).
After a thorough review of the case, the Court finds itself in full
accord with the findings and recommendation of the Solicitor
General.
From the records, it appears indubitable that complainant was
never informed by respondent attorney of his real status as a
married individual. The fact of his previous marriage was
disclosed by respondent only after the complainant became
pregnant. Even then, respondent misrepresented himself as
being eligible to re-marry for having been estranged from his
wife for 16 years and dangled a marriage proposal on the
assurance that he would work for the annulment of his first
marriage. It was a deception after all as it turned out that
respondent never bothered to annul said marriage. More
importantly, respondent knew all along that the mere fact of
separation alone is not a ground for annulment of marriage
and does not vest him legal capacity to contract another
marriage.
Interestingly enough. respondent lived alone in Dipolog City
though his son, who was also studying in Dipolog City, lived
separately from him. He never introduced his son and went
around with friends as though he was never married much less
had a child in the same locality. This circumstance alone belies
respondent's claim that complainant and her family were
aware of his previous marriage at the very start of his
courtship. The Court is therefore inclined to believe that
respondent resorted to deceit in the satisfaction of his sexual
desires at the expense of the gullible complainant. It is not in
accordance with the nature of the educated, cultured and
respectable, which complainant's family is, her father being the
Assistant Principal of the local public high school, to allow a
daughter to have an affair with a married man.
But what surprises this Court even more is the perverted sense
of respondent's moral values when he said that: "I see nothing
wrong with this relationship despite my being married." (TSN,
p. 209, January 13, 1977; Rollo, p. 47) Worse, he even
suggested abortion. Truly, respondent's moral sense is so
seriously impaired that we cannot maintain his membership in
the Bar. In Pangan v. Ramos (107 SCRA 1 [1981]), we held that:
(E)ven his act in making love to another woman while his first
wife is still alive and their marriage still valid and existing is
contrary to honesty, justice, decency and morality. Respondent
made a mockery of marriage which is a sacred institution
demanding respect and dignity.
Finally, respondent even had the temerity to allege that he is a
Moslem convert and as such, could enter into multiple
marriages and has inquired into the possibility of marrying
complainant (Rollo, p. 15). As records indicate, however, his
claim of having embraced the Islam religion is not supported by
any evidence save that of his self-serving testimony. In this
regard, we need only to quote the finding of the Office of the
Solicitor General, to wit:
When respondent was asked to marry complainant he said he
could not because he was already married and would open him
to a charge of bigamy (p. 200, tsn, January 13, 1977). If he were
a moslem convert entitled to four (4) wives, as he is now
claiming, why did he not marry complainant? The answer is
supplied by respondent himself. He said while he was a
moslem, but, having been married in a civil ceremony, he could
no longer validly enter into another civil ceremony without
committing bigamy because the complainant is a christian (p.
242, tsn, January 13, 1977). Consequently, if respondent knew,
that notwithstanding his being a moslem convert, he cannot
marry complainant, then it was grossly immoral for him to have
sexual intercourse with complainant because he knew the
existence of a legal impediment. Respondent may not,
therefore, escape responsibility thru his dubious claim that he
has embraced the Islam religion. (Rollo,
p. 49).
By his acts of deceit and immoral tendencies to appease his
sexual desires, respondent Daarol has amply demonstrated his
moral delinquency. Hence, his removal for conduct
unbecoming a member of the Bar on the grounds of deceit and
grossly immoral conduct (Sec. 27, Rule 138, Rules of Court) is in
order. Good moral character is a condition which precedes
admission to the Bar (Sec. 2, Rule 138, Rules of Court) and is
not dispensed with upon admission thereto. It is a continuing
qualification which all lawyers must possess (People v. Tuanda,
181 SCRA 682 [1990]; Delos Reyes v. Aznar, 179 SCRA 653
[1989]), otherwise, a lawyer may either be suspended or
disbarred.
As we have held in Piatt v. Abordo (58 Phil. 350 [1933], cited
in Leda v. Tabang, 206 SCRA 395 [1992]):
It cannot be overemphasized that the requirement of good
character is not only a condition precedent to admission to the
practice of law; its continued possession is also essential for
remaining in the practice of law (People v. Tuanda, Adm. Case
No. 3360, 30 January 1990, 181 SCRA 692). As aptly put by Mr.
Justice George A. Malcolm: "As good character is an essential
qualification for admission of an attorney to practice, when the
attorney's character is bad in such respects as to show that he
is unsafe and unfit to be entrusted with the powers of an
attorney, the court retains the power to discipline him (Piatt v.
Abordo, 58 Phil. 350 [1933]).
Only recently, another disbarment proceeding was resolved by
this Court against a lawyer who convinced a woman that her
prior marriage to another man was null and void ab initio and
she was still legally single and free to marry him (the lawyer),
married her, was supported by her in his studies, begot a child
with her, abandoned her and the child, and married another
woman (Terre vs. Terre, Adm. Case No. 2349, July 3, 1992).
Here, respondent, already a married man and about 41 years
old, proposed love and marriage to complainant, then still a 20-
year-old minor, knowing that he did not have the required legal
capacity. Respondent then succeeded in having carnal relations
with complainant by deception, made her pregnant, suggested
abortion, breached his promise to marry her, and then
deserted her and the child. Respondent is therefore guilty of
deceit and grossly immoral conduct.
The practice of law is a privilege accorded only to those who
measure up to the exacting standards of mental and moral
fitness. Respondent having exhibited debased morality, the
Court is constrained to impose upon him the most severe
disciplinary action disbarment.
The ancient and learned profession of law exacts from its
members the highest standard of morality. The members are,
in fact, enjoined to aid in guarding the Bar against the
admission of candidates unfit or unqualified because deficient
either moral character or education (In re Puno, 19 SCRA 439,
[1967]; Pangan vs. Ramos, 107 SCRA 1 [1981]).
As officers of the court, lawyers must not only in fact be of
good moral character but must also be seen to be of good
moral character and must lead a life in accordance with the
highest moral standards of the community. More specifically, a
member of the Bar and an officer of the Court is not only
required to refrain from adulterous relationships or the
keeping of mistresses but must also behave himself in such a
manner as to avoid scandalizing the public by creating the
belief that he is flouting those moral standards (Tolosa vs.
Cargo, 171 SCRA 21, 26 [1989], citing Toledo vs. Toledo, 7 SCRA
757 [1963] and Royong vs. Oblena, 7 SCRA 859 [1963]).
In brief, We find respondent Daarol morally delinquent and as
such, should not be allowed continued membership in the
ancient and learned profession of law (Quingwa v. Puno, 19
SCRA 439 [1967]).
ACCORDINGLY, We find respondent Transfiguracion Daarol
guilty of grossly immoral conduct unworthy of being a member
of the Bar and is hereby ordered DISBARRED and his name
stricken off from the Roll of Attorneys. Let copies of this
Resolution be furnished to all courts of the land, the Integrated
Bar of the Philippines, the Office of the Bar Confidant and
spread on the personal record of respondent Daarol.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 180363 April 28, 2009
EDGAR Y. TEVES, Petitioner,
vs.
THE COMMISSION ON ELECTIONS and HERMINIO G.
TEVES, Respondents.
DECISION
YNARES-SANTIAGO, J.:
The issue for resolution is whether the crime of which
petitioner Edgar Y. Teves was convicted in Teves v.
Sandiganbayan1 involved moral turpitude.
The facts of the case are undisputed.
Petitioner was a candidate for the position of Representative of
the 3rd legislative district of Negros Oriental during the May
14, 2007 elections. On March 30, 2007, respondent Herminio
G. Teves filed a petition to disqualify2 petitioner on the ground
that in Teves v. Sandiganbayan,3 he was convicted of violating
Section 3(h), Republic Act (R.A.) No. 3019, or the Anti-Graft and
Corrupt Practices Act, for possessing pecuniary or financial
interest in a cockpit, which is prohibited under Section 89(2) of
the Local Government Code (LGC) of 1991, and was sentenced
to pay a fine of P10,000.00. Respondent alleged that petitioner
is disqualified from running for public office because he was
convicted of a crime involving moral turpitude which carries
the accessory penalty of perpetual disqualification from public
office.4 The case was docketed as SPA No. 07-242 and assigned
to the COMELECs First Division.
On May 11, 2007, the COMELEC First Division disqualified
petitioner from running for the position of member of House of
Representatives and ordered the cancellation of his Certificate
of Candidacy.5
Petitioner filed a motion for reconsideration before the
COMELEC en banc which was denied in its assailed October 9,
2007 Resolution for being moot, thus:
It appears, however, that [petitioner] lost in the last 14 May
2007 congressional elections for the position of member of the
House of Representatives of the Third district of Negros
Oriental thereby rendering the instant Motion for
Reconsideration moot and academic.
WHEREFORE, in view of the foregoing, the Motion for
Reconsideration dated 28 May 2007 filed by respondent Edgar
Y. Teves challenging the Resolution of this Commission (First
Division) promulgated on 11 May 2007 is hereby DENIED for
having been rendered moot and academic.
SO ORDERED.6
Hence, the instant petition based on the following grounds:
I.
THERE WAS ABUSE OF DISCRETION, AMOUNTING TO LACK OR
EXCESS OF JURISDICTION, WHEN THE COMELEC EN BANC
DEMURRED IN RESOLVING THE MAIN ISSUE RAISED IN
PETITIONERS MOTION FOR RECONSIDERATION, WHETHER
PETITIONER IS DISQUALIFIED TO RUN FOR PUBLIC OFFICE
TAKING INTO CONSIDERATION THE DECISION OF THE SUPREME
COURT IN G.R. NO. 154182.
II.
THE MAIN ISSUE IS NOT RENDERED MOOT AND ACADEMIC AS
THE RESOLUTION THEREOF WILL DETERMINE PETITIONERS
QUALIFICATION TO RUN FOR OTHER PUBLIC POSITIONS IN
FUTURE ELECTIONS.
III.
THERE WAS ABUSE OF DISCRETION, AMOUNTING TO LACK OR
EXCESS OF JURISDICTION, WHEN THE COMELEC EN BANC IN
EFFECT AFFIRMED THE FINDINGS OF THE FIRST DIVISION
WHICH RULED THAT PETITIONERS CONVICTION FOR
VIOLATION OF SECTION 3(H) OF R.A. 3019 AND THE
IMPOSITION OF FINE IS A CONVICTION FOR A CRIME
INVOLVING MORAL TURPITUDE.
A.
THE ISSUE OF WHETHER PETITIONER WAS CONVICTED OF A
CRIME INVOLVING MORAL TURPITUDE SHOULD BE RESOLVED
TAKING INTO CONSIDERATION THE FINDINGS OF THE
SUPREME COURT IN G.R. NO. 154182.
B.
THERE IS NOTHING IN THE DECISION OF THE SUPREME COURT
THAT SUPPORTS THE FINDINGS OF THE FIRST DIVISION OF THE
COMELEC, THAT BASED ON THE "TOTALITY OF FACTS"
DOCTRINE, PETITIONER WAS CONVICTED OF A CRIME
INVOLVING MORAL TURPITUDE.7
The petition is impressed with merit.
The fact that petitioner lost in the congressional race in the
May 14, 2007 elections did not effectively moot the issue of
whether he was disqualified from running for public office on
the ground that the crime he was convicted of involved moral
turpitude. It is still a justiciable issue which the COMELEC
should have resolved instead of merely declaring that the
disqualification case has become moot in view of petitioners
defeat.
Further, there is no basis in the COMELECs findings that
petitioner is eligible to run again in the 2010 elections because
his disqualification shall be deemed removed after the
expiration of a period of five years from service of the
sentence. Assuming that the elections would be held on May
14, 2010, the records show that it was only on May 24, 2005
when petitioner paid the fine of P10,000.00 he was sentenced
to pay in Teves v. Sandignbayan.8Such being the reckoning
point, thus, the five-year disqualification period will end only
on May 25, 2010. Therefore he would still be ineligible to run
for public office during the May 14, 2010 elections.
Hence, it behooves the Court to resolve the issue of whether or
not petitioners violation of Section 3(h), R.A. No. 3019 involves
moral turpitude.1avvphi1
Section 12 of the Omnibus Election Code reads:
Sec. 12. Disqualifications. - Any person who has been declared
by competent authority insane or incompetent, or has been
sentenced by final judgment for subversion, insurrection,
rebellion, or for any offense for which he has been sentenced
to a penalty of more than eighteen months, or for a crime
involving moral turpitude, shall be disqualified to be a
candidate and to hold any office, unless he has been given
plenary pardon or granted amnesty.lawphil.net
The disqualifications to be a candidate herein provided shall be
deemed removed upon the declaration by competent
authority that said insanity or incompetence had been
removed or after the expiration of a period of five years from
his service of sentence, unless within the same period he again
becomes disqualified. (Emphasis supplied)
Moral turpitude has been defined as everything which is done
contrary to justice, modesty, or good morals; an act of
baseness, vileness or depravity in the private and social duties
which a man owes his fellowmen, or to society in general.9
Section 3(h) of R.A. 3019 of which petitioner was convicted,
reads:
Sec. 3. Corrupt practices of public officers. In addition to acts
or omissions of public officers already penalized by existing
law, the following shall constitute corrupt practices of any
public officer and are hereby declared to be unlawful:
xxxx
(h) Directly or indirectly having financial or pecuniary interest in
any business, contract or transaction in connection with which
he intervenes or takes part in his official capacity, or in which
he is prohibited by the Constitution or by any law from having
any interest.
The essential elements of the violation of said provision are as
follows: 1) The accused is a public officer; 2) he has a direct or
indirect financial or pecuniary interest in any business, contract
or transaction; 3) he either: a) intervenes or takes part in his
official capacity in connection with such interest, or b) is
prohibited from having such interest by the Constitution or by
law.10
Thus, there are two modes by which a public officer who has a
direct or indirect financial or pecuniary interest in any business,
contract, or transaction may violate Section 3(h) of R.A. 3019.
The first mode is when the public officer intervenes or takes
part in his official capacity in connection with his financial or
pecuniary interest in any business, contract, or transaction. The
second mode is when he is prohibited from having such an
interest by the Constitution or by law.11
In Teves v. Sandiganbayan,12 petitioner was convicted under
the second mode for having pecuniary or financial interest in a
cockpit which is prohibited under Sec. 89(2) of the Local
Government Code of 1991. The Court held therein:
However, the evidence for the prosecution has established that
petitioner Edgar Teves, then mayor of Valencia, Negros
Oriental, owned the cockpit in question. In his sworn
application for registration of cockpit filed on 26 September
1983 with the Philippine Gamefowl Commission, Cubao,
Quezon City, as well as in his renewal application dated 6
January 1989 he stated that he is the owner and manager of
the said cockpit. Absent any evidence that he divested himself
of his ownership over the cockpit, his ownership thereof is
rightly to be presumed because a thing once proved to exist
continues as long as is usual with things of that nature. His
affidavit dated 27 September 1990 declaring that effective
January 1990 he "turned over the management of the cockpit
to Mrs. Teresita Z. Teves for the reason that [he] could no
longer devote a full time as manager of the said entity due to
other work pressure" is not sufficient proof that he divested
himself of his ownership over the cockpit. Only the
management of the cockpit was transferred to Teresita Teves
effective January 1990. Being the owner of the cockpit, his
interest over it was direct.
Even if the ownership of petitioner Edgar Teves over the
cockpit were transferred to his wife, still he would have a direct
interest thereon because, as correctly held by respondent
Sandiganbayan, they remained married to each other from
1983 up to 1992, and as such their property relation can be
presumed to be that of conjugal partnership of gains in the
absence of evidence to the contrary. Article 160 of the Civil
Code provides that all property of the marriage is presumed to
belong to the conjugal partnership unless it be proved that it
pertains exclusively to the husband or to the wife. And Section
143 of the Civil Code declares all the property of the conjugal
partnership of gains to be owned in common by the husband
and wife. Hence, his interest in the Valencia Cockpit is direct
and is, therefore, prohibited under Section 89(2) of the LGC of
1991, which reads:
Section 89. Prohibited Business and Pecuniary Interest. (a) It
shall be unlawful for any local government official or employee,
directly or indirectly, to:
xxxx
(2) Hold such interests in any cockpit or other games licensed
by a local government unit. [Emphasis supplied].
The offense proved, therefore, is the second mode of violation
of Section 3(h) of the Anti-Graft Law, which is possession of a
prohibited interest.13
However, conviction under the second mode does not
automatically mean that the same involved moral turpitude. A
determination of all surrounding circumstances of the violation
of the statute must be considered. Besides, moral turpitude
does not include such acts as are not of themselves immoral
but whose illegality lies in their being positively prohibited, as
in the instant case.
Thus, in Dela Torre v. Commission on Elections,14 the Court
clarified that:
Not every criminal act, however, involves moral turpitude. It is
for this reason that "as to what crime involves moral turpitude,
is for the Supreme Court to determine." In resolving the
foregoing question, the Court is guided by one of the general
rules that crimes mala in se involve moral turpitude, while
crimes mala prohibita do not, the rationale of which was set
forth in "Zari v. Flores," to wit:
"It (moral turpitude) implies something immoral in itself,
regardless of the fact that it is punishable by law or not. It must
not be merely mala prohibita, but the act itself must be
inherently immoral. The doing of the act itself, and not its
prohibition by statute fixes the moral turpitude. Moral
turpitude does not, however, include such acts as are not of
themselves immoral but whose illegality lies in their being
positively prohibited."
This guideline nonetheless proved short of providing a clear-cut
solution, for in "International Rice Research Institute v. NLRC,
the Court admitted that it cannot always be ascertained
whether moral turpitude does or does not exist by merely
classifying a crime as malum in se or as malum prohibitum.
There are crimes which are mala in se and yet but rarely
involve moral turpitude and there are crimes which involve
moral turpitude and are mala prohibita only. In the final
analysis, whether or not a crime involves moral turpitude is
ultimately a question of fact and frequently depends on all the
circumstances surrounding the violation of the statute.
(Emphasis supplied)1awphi1
Applying the foregoing guidelines, we examined all the
circumstances surrounding petitioners conviction and found
that the same does not involve moral turpitude.
First, there is neither merit nor factual basis in COMELECs
finding that petitioner used his official capacity in connection
with his interest in the cockpit and that he hid the same by
transferring the management to his wife, in violation of the
trust reposed on him by the people.
The COMELEC, in justifying its conclusion that petitioners
conviction involved moral turpitude, misunderstood or
misapplied our ruling in Teves v. Sandiganbayan. According to
the COMELEC:
In the present case, while the crime for which [petitioner] was
convicted may per se not involve moral turpitude, still the
totality of facts evinces [his] moral turpitude. The prohibition
was intended to avoid any conflict of interest or any instance
wherein the public official would favor his own interest at the
expense of the public interest. The [petitioner] knew of the
prohibition but he attempted to circumvent the same by
holding out that the Valencia Cockpit and Recreation Center is
to be owned by a certain Daniel Teves. Later on, he would aver
that he already divested himself of any interest of the cockpit
in favor of his wife. But the Supreme Court saw through the
ruse and declared that what he divested was only the
management of the cockpit but not the ownership. And even if
the ownership is transferred to his wife, the respondent would
nevertheless have an interest thereon because it would still
belong to the conjugal partnership of gains, of which the
[petitioner] is the other half.
[Petitioner] therefore maintained ownership of the cockpit by
deceit. He has the duty to divest himself but he did not and
instead employed means to hide his interests. He knew that it not have intervened or taken part in his official capacity in the
was prohibited he nevertheless concealed his interest thereon. issuance of a cockpit license during the material time, as
The facts that he hid his interest denotes his malicious intent to alleged in the information, because he was not a member of
favor self-interest at the expense of the public. Only a man the Sangguniang Bayan.16
with a malevolent, decadent, corrupt and selfish motive would
Thus, petitioner, as then Mayor of Valencia, did not use his
cling on and conceal his interest, the acquisition of which is
influence, authority or power to gain such pecuniary or
prohibited. This plainly shows his moral depravity and proclivity
financial interest in the cockpit. Neither did he intentionally
to put primacy on his self interest over that of his fellowmen.
hide his interest in the subject cockpit by transferring the
Being a public official, his act is also a betrayal of the trust
management thereof to his wife considering that the said
reposed on him by the people. Clearly, the totality of his acts is
transfer occurred before the effectivity of the present LGC
contrary to the accepted rules of right and duty, honesty and
prohibiting possession of such interest.
good morals. The crime, as committed by the [petitioner],
plainly involves moral turpitude.15 As aptly observed in Teves v. Sandiganbayan:
On the contrary, the Courts ruling states: As early as 1983, Edgar Teves was already the owner of the
Valencia Cockpit. Since then until 31 December 1991,
The Sandiganbayan found that the charge against Mayor Teves
possession by a local official of pecuniary interest in a cockpit
for causing the issuance of the business permit or license to
was not yet prohibited. It was before the effectivity of the LGC
operate the Valencia Cockpit and Recreation Center is "not
of 1991, or on January 1990, that he transferred the
well-founded." This it based, and rightly so, on the additional
management of the cockpit to his wife Teresita. In accordance
finding that only the Sangguniang Bayan could have issued a
therewith it was Teresita who thereafter applied for the
permit to operate the Valencia Cockpit in the year 1992.
renewal of the cockpit registration. Thus, in her sworn
Indeed, under Section 447(3) of the LGC of 1991, which took
applications for renewal of the registration of the cockpit in
effect on 1 January 1992, it is the Sangguniang Bayan that has
question dated 28 January 1990 and 18 February 1991, she
the authority to issue a license for the establishment,
stated that she is the Owner/Licensee and Operator/Manager
operation, and maintenance of cockpits. Unlike in the old LGC,
of the said cockpit. In her renewal application dated 6 January
Batas Pambansa Blg. 337, wherein the municipal mayor was
1992, she referred to herself as the Owner/Licensee of the
the presiding officer of the Sangguniang Bayan, under the LGC
cockpit. Likewise in the separate Lists of Duly Licensed
of 1991, the mayor is not so anymore and is not even a
Personnel for Calendar Years 1991 and 1992, which she
member of the Sangguniang Bayan. Hence, Mayor Teves could
submitted on 22 February 1991 and 17 February 1992,
respectively, in compliance with the requirement of the
Philippine Gamefowl Commission for the renewal of the
cockpit registration, she signed her name as
Operator/Licensee.17 (Emphasis supplied)
Second, while possession of business and pecuniary interest in
a cockpit licensed by the local government unit is expressly
prohibited by the present LGC, however, its illegality does not
mean that violation thereof necessarily involves moral
turpitude or makes such possession of interest inherently
immoral. Under the old LGC, mere possession by a public
officer of pecuniary interest in a cockpit was not among the
prohibitions. Thus, in Teves v. Sandiganbayan, the Court took
judicial notice of the fact that:
x x x under the old LGC, mere possession of pecuniary interest
in a cockpit was not among the prohibitions enumerated in
Section 41 thereof. Such possession became unlawful or
prohibited only upon the advent of the LGC of 1991, which
took effect on 1 January 1992. Petitioner Edgar Teves stands
charged with an offense in connection with his prohibited
interest committed on or about 4 February 1992, shortly after
the maiden appearance of the prohibition. Presumably, he was
not yet very much aware of the prohibition. Although
ignorance thereof would not excuse him from criminal liability,
such would justify the imposition of the lighter penalty of a fine
of P10,000 under Section 514 of the LGC of 1991.18 (Italics
supplied)
The downgrading of the indeterminate penalty of
imprisonment of nine years and twenty-one days as minimum
to twelve years as maximum to a lighter penalty of a fine of
P10,000.00 is a recognition that petitioners violation was not
intentionally done contrary to justice, modesty, or good morals
but due to his lack of awareness or ignorance of the
prohibition.
Lastly, it may be argued that having an interest in a cockpit is
detrimental to public morality as it tends to bring forth idlers
and gamblers, hence, violation of Section 89(2) of the LGC
involves moral turpitude.
Suffice it to state that cockfighting, or sabong in the local
parlance, has a long and storied tradition in our culture and
was prevalent even during the Spanish occupation.19 While it is
a form of gambling, the morality thereof or the wisdom in
legalizing it is not a justiciable issue. In Magtajas v. Pryce
Properties Corporation, Inc., it was held that:
The morality of gambling is not a justiciable issue. Gambling is
not illegal per se. While it is generally considered inimical to
the interests of the people, there is nothing in the Constitution
categorically proscribing or penalizing gambling or, for that
matter, even mentioning it at all. It is left to Congress to deal
with the activity as it sees fit. In the exercise of its own
discretion, the legislature may prohibit gambling altogether or
allow it without limitation or it may prohibit some forms of
gambling and allow others for whatever reasons it may
consider sufficient. Thus, it has prohibited jueteng and monte
but permits lotteries, cockfighting and horse-racing. In making
such choices, Congress has consulted its own wisdom, which
this Court has no authority to review, much less reverse. Well
has it been said that courts do no sit to resolve the merits of
conflicting theories. That is the prerogative of the political
departments. It is settled that questions regarding the wisdom,
morality, or practicability of statutes are not addressed to the
judiciary but may be resolved only by the legislative and
executive departments, to which the function belongs in our
scheme of government. That function is exclusive. Whichever
way these branches decide, they are answerable only to their
own conscience and the constituents who will ultimately judge
their acts, and not to the courts of justice.
WHEREFORE, the petition is GRANTED. The assailed
Resolutions of the Commission on Elections dated May 11,
2007 and October 9, 2007 disqualifying petitioner Edgar Y.
Teves from running for the position of Representative of the
3rd District of Negros Oriental, are REVERSED and SET ASIDE
and a new one is entered declaring that the crime committed
by petitioner (violation of Section 3(h) of R.A. 3019) did not
involve moral turpitude.
SO ORDERED.
Pursuant to Section 13, Article VIII of the Constitution, it is
hereby certified that the conclusions in the above Decision
were reached in consultation before the case was assigned to
the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice
CONCURRING OPINION
BRION, J.:
I fully concur with the ponencia of my esteemed colleague,
Justice Consuelo Ynares-Santiago. I add these views to further
explore the term "moral turpitude" a term that, while
carrying far-reaching effects, embodies a concept that to date
has not been given much jurisprudential focus.
I. Historical Roots
The term "moral turpitude" first took root under the United
States (U.S.) immigration laws.1 Its history can be traced back
as far as the 17th century when the States of Virginia and
Pennsylvania enacted the earliest immigration resolutions
excluding criminals from America, in response to the British
governments policy of sending convicts to the colonies. State
legislators at that time strongly suspected that Europe was
deliberately exporting its human liabilities.2 In the U.S., the
term "moral turpitude" first appeared in the Immigration Act of
March 3, 1891, which directed the exclusion of persons who
have been convicted of a felony or other infamous crime or
misdemeanor involving moral turpitude; this marked the first
time the U.S. Congress used the term "moral turpitude" in
immigration laws.3 Since then, the presence of moral turpitude
has been used as a test in a variety of situations, including
legislation governing the disbarment of attorneys and the
revocation of medical licenses. Moral turpitude also has been
judicially used as a criterion in disqualifying and impeaching
witnesses, in determining the measure of contribution
between joint tortfeasors, and in deciding whether a certain
language is slanderous.4
In 1951, the U.S. Supreme Court ruled on the constitutionality
of the term "moral turpitude" in Jordan v. De George.5 The
case presented only one question: whether conspiracy to
defraud the U.S. of taxes on distilled spirits is a crime involving
moral turpitude within the meaning of Section 19 (a) of the
Immigration Act of 1919 (Immigration Act). Sam De George, an
Italian immigrant was convicted twice of conspiracy to defraud
the U.S. government of taxes on distilled spirits. Subsequently,
the Board of Immigration Appeals ordered De Georges
deportation on the basis of the Immigration Act provision that
allows the deportation of aliens who commit multiple crimes
involving moral turpitude. De George argued that he should
not be deported because his tax evasion crimes did not involve
moral turpitude. The U.S. Supreme Court, through Chief Justice
Vinzon, disagreed, finding that "under an unbroken course of
judicial decisions, the crime of conspiring to defraud the U.S. is
a crime involving moral turpitude."6 Notably, the Court
determined that fraudulent conduct involved moral turpitude
without exception:
Whatever the phrase "involving moral turpitude" may mean in
peripheral cases, the decided cases make it plain that crimes in
which fraud was an ingredient have always been regarded as
involving moral turpitude.xxx Fraud is the touchstone by which
this case should be judged.xxx We therefore decide that
Congress sufficiently forewarned respondent that the statutory
consequence of twice conspiring to defraud the United States
is deportation. 7
Significantly, the U.S. Congress has never exactly defined what
amounts to a "crime involving moral turpitude." The legislative
history of statutes containing the moral turpitude standard
indicates that Congress left the interpretation of the term to
U.S. courts and administrative agencies.8 In the absence of
legislative history as interpretative aid, American courts have
resorted to the dictionary definition "the last resort of the
baffled judge."9 The most common definition of moral
turpitude is similar to one found in the early editions of Blacks
Law Dictionary:
[An] act of baseness, vileness, or the depravity in private and
social duties which man owes to his fellow man, or to society in
general, contrary to the accepted and customary rule of right
and duty between man and man. xxx Act or behavior that
gravely violates moral sentiment or accepted moral standards
of community and is a morally culpable quality held to be
present in some criminal offenses as distinguished from others.
xxx The quality of a crime involving grave infringement of the
moral sentiment of the community as distinguished from
statutory mala prohibita.10
In the Philippines, the term moral turpitude was first
introduced in 1901 in Act No. 190, otherwise known as the
Code of Civil Actions and Special Proceedings.11 The Act
provided that a member of the bar may be removed or
suspended from his office as lawyer by the Supreme Court
upon conviction of a crime involving moral
turpitude.12Subsequently, the term "moral turpitude" has been
employed in statutes governing disqualifications of notaries
public,13 priests and ministers in solemnizing
marriages,14 registration to military service,15 exclusion16 and
naturalization of aliens,17 discharge of the accused to be a state
witness,18 admission to the bar,19 suspension and removal of
elective local officials,20 and disqualification of persons from
running for any elective local position.21
In Re Basa,22 a 1920 case, provided the first instance for the
Court to define the term moral turpitude in the context of
Section 21 of the Code of Civil Procedure on the disbarment of
a lawyer for conviction of a crime involving moral turpitude.
Carlos S. Basa, a lawyer, was convicted of the crime of
abduction with consent. The sole question presented was
whether the crime of abduction with consent, as punished by
Article 446 of the Penal Code of 1887, involved moral
turpitude. The Court, finding no exact definition in the statutes,
turned to Bouviers Law Dictionary for guidance and held:
"Moral turpitude," it has been said, "includes everything which
is done contrary to justice, honesty, modesty, or good morals."
(Bouvier's Law Dictionary, cited by numerous courts.) Although
no decision can be found which has decided the exact
question, it cannot admit of doubt that crimes of this character
involve moral turpitude. The inherent nature of the act is such
that it is against good morals and the accepted rule of right
conduct.
Thus, early on, the Philippines followed the American lead and
adopted a general dictionary definition, opening the way for a
case-to-case approach in determining whether a crime involves
moral turpitude.
II. Problems with the Definition of Moral Turpitude
Through the years, the Court has never significantly deviated
from the Blacks Law Dictionary definition of moral turpitude as
"an act of baseness, vileness, or depravity in the private duties
which a man owes his fellow men, or to society in general,
contrary to the accepted and customary rule of right and duty
between man and woman, or conduct contrary to justice,
honesty, modesty, or good morals."23 This definition is more
specific than that used in In re Vinzon24 where the term moral
turpitude was considered as encompassing "everything which
is done contrary to justice, honesty, or good morals."25
In the U.S., these same definitions have been highly criticized
for their vagueness and ambiguity.26 In Jordan, Justice Jackson
noted that "except for the Courts [majority opinion], there
appears to be a universal recognition that we have here an
undefined and undefinable standard."27 Thus, the phrase
"crimes involving moral turpitude" has been described as
"vague," "nebulous," "most unfortunate," and even
"bewildering." 28
Criticisms of moral turpitude as an inexactly defined concept
are not unwarranted. First, the current definition of the term is
broad. It can be stretched to include most kinds of wrongs in
society -- a result that the Legislature could not have intended.
This Court itself concluded in IRRI v. NLRC29 that moral
turpitude "is somewhat a vague and indefinite term, the
meaning of which must be left to the process of judicial more easily interpreted by laymen.33 This led Justice Jackson to
inclusion or exclusion as the cases are reached" once again conclude in Jordan that "moral turpitude offered judges no
confirming, as late as 1993 in IRRI, our case-by-case approach clearer guideline than their own consciences, inviting them to
in determining the crimes involving moral turpitude. condemn all that we personally disapprove and for no better
reason than that we disapprove it."34 This trait, however,
Second, the definition also assumes the existence of a
cannot be taken lightly, given that the consequences of
universally recognized code for socially acceptable behavior --
committing a crime involving moral turpitude can be severe.
the "private and social duties which man owes to his fellow
man, or to society in general"; moral turpitude is an act Crimes Categorized as Crimes Involving Moral Turpitude35
violating these duties. The problem is that the definition does
Since the early 1920 case of In re Basa,36 the Court has
not state what these duties are, or provide examples of acts
maintained its case-by-case categorization of crimes on the
which violate them. Instead, it provides terms such as
basis of moral turpitude and has labeled specific crimes as
"baseness," "vileness," and "depravity," which better describe
necessarily involving moral turpitude. The following is a list, not
moral reactions to an act than the act itself. In essence, they
necessarily complete, of the crimes adjudged to involve moral
are "conclusory but non-descriptive."30 To be sure, the use of
turpitude:
morality as a norm cannot be avoided, as the term "moral
turpitude" contains the word "moral" and its direct 1. Abduction with consent37
connotation of right and wrong. "Turpitude," on the other
2. Bigamy38
hand, directly means "depravity" which cannot be appreciated
without considering an acts degree of being right or wrong. 3. Concubinage39
Thus, the law, in adopting the term "moral turpitude,"
4. Smuggling40
necessarily adopted a concept involving notions of morality
standards that involve a good measure of subjective 5. Rape41
consideration and, in terms of certainty and fixity, are far from
6. Estafa through falsification of a document42
the usual measures used in law.31
7. Attempted Bribery43
Third, as a legal standard, moral turpitude fails to inform
anyone of what it requires.32 It has been said that the loose 8. Profiteering44
terminology of moral turpitude hampers uniformity since [i]t
9. Robbery45
is hardly to be expected that a word which baffle judges will be
10. Murder, whether consummated or attempted46 Crimes Categorized as Crimes Not Involving Moral Turpitude61
11. Estafa47 The Court, on the other hand, has also had the occasion to
categorically rule that certain crimes do not involve moral
12. Theft48
turpitude, namely:
13. Illicit Sexual Relations with a Fellow Worker49
1. Minor transgressions of the law (i.e., conviction for
14. Violation of BP Bldg. 2250 speeding)62

15. Falsification of Document51 2. Illegal recruitment63

16. Intriguing against Honor52 3. Slight physical injuries and carrying of deadly weapon (Illegal
possession of firearms)64
17. Violation of the Anti-Fencing Law53
4. Indirect Contempt65
18. Violation of Dangerous Drugs Act of 1972 (Drug-pushing)54
III. Approaches and Standards.
19. Perjury55
Even a cursory examination of the above lists readily reveals
20. Forgery56
that while the concept of "moral turpitude" does not have one
21. Direct Bribery57 specific definition that lends itself to easy and ready
application, the Court has been fairly consistent in its
22. Frustrated Homicide58
understanding and application of the term and has not
Zari v. Flores59 is one case that has provided jurisprudence its significantly deviated from what it laid down in In re Basa. The
own list of crimes involving moral turpitude, namely: adultery, key element, directly derived from the word "turpitude," is the
concubinage, rape, arson, evasion of income tax, barratry, standard of depravity viewed from a scale of right and wrong.
bigamy, blackmail, bribery, criminal conspiracy to smuggle
The application of this depravity standard can be made from at
opium, dueling, embezzlement, extortion, forgery, libel, making
least three perspectives or approaches, namely: from the
fraudulent proof of loss on insurance contract, murder,
objective perspective of the act itself, irrespective of whether
mutilation of public records, fabrication of evidence, offenses
or not the act is a crime; from the perspective of the crime
against pension laws, perjury, seduction under the promise of
itself, as defined through its elements; and from the subjective
marriage, estafa, falsification of public document, and estafa
thru falsification of public document.60
perspective that takes into account the perpetrators level of
depravity when he committed the crime.
The Court best expressed the first approach in Zari v.
Flores66 where the Court saw the involvement of moral
turpitude where an act is intrinsically immoral, regardless of
whether it is punishable by law or not. The Court emphasized
that moral turpitude goes beyond being merely mala prohibita;
the act itself must be inherently immoral. Thus, this approach
requires that the committed act itself be examined, divorced
from its characterization as a crime.
A ruling that exemplifies this approach is that made in the U.S.
case In The Matter of G---67 where, in considering gambling, it
was held that:
Gambling has been in existence since time immemorial. Card
playing for small stakes is a common accompaniment of social
life; small bets on horse racing and the "policy or numbers
games" are diversions of the masses. That such enterprises
exist surreptitiously is a matter of common knowledge. Many
countries permit it under a license system. In ancient times
laws were enacted to discourage people from gambling on the
theory that the State had first claim upon their time and
energy, and at later dates antigambling laws were aimed
especially at the activity as practiced by the working classes.
Present-day movements to suppress gambling are also tinged
with other considerations. In urban communities in the past
few decades the purely religious opposition to gambling has
tended to become less violent because certain activities, highly
reputable according to prevailing social standards, have come
more and more to resemble it. Prohibition against gambling
has had something of a police rather than a truly penal
character. At all times an important fact in arousing
antagonism in gambling has been the association, almost
inevitable, with sharp practice. In established societies more or
less serious attempts are everywhere made, however, to
prohibit or to regulate gambling in its more notorious forms.
It would appear that statutes permitting gambling, such as
those under discussion, rest primarily on the theory that they
are in the interest of public policy: that is to regulate and
restrict any possible abuse, to obviate cheating and other
corrupt practices that may result if uncontrolled.
From this discussion, the Court went on to conclude that
gambling is a malum prohibitum that is not intrinsically evil
and, thus, is not a crime involving moral turpitude.
With the same approach, but with a different result, is Office of
the Court Administrator v. Librado,68 a case involving drug
possession. Librado, a Deputy Sheriff in MTCC Iligan City was
convicted of possession of "shabu," a prohibited drug. The
Office of the Court Administrator commenced an
administrative case against him and he was subsequently
suspended from office. In his subsequent plea for
reinstatement, the Court strongly denounced drug possession
as an "especially vicious crime, one of the most pernicious evils
that has ever crept into our society For those who become
addicted to it not only slide into the ranks of the living dead,
what is worse, they become a grave menace to the safety of
law abiding members of society." The Court, apparently
drawing on what society deems important, held that the use of
drugs amounted to an act so inherently evil that no law was
needed to deem it as such; it is an evil without need for a law
to call it evil69 - "an immoral act in itself regardless of whether
it is punishable or not."70
In People v. Yambot,71 the Court categorically ruled that the
possession of a deadly weapon does not involve moral
turpitude since the act of carrying a weapon by itself is not
inherently wrong in the absence of a law punishing it. Likewise,
the Court acknowledged in Court Administrator v. San
Andres72 that illegal recruitment does not involve moral
turpitude since it is not in itself an evil act being ordinarily an
act in the ordinary course of business in the absence of the a
law prohibiting it.
The second approach is to look at the act committed through
its elements as a crime. In Paras v. Vailoces,73 the Court
recognized that as a "general rule, all crimes of which fraud is
an element are looked on as involving moral turpitude." This is
the same conclusion that the U.S. Supreme Court made in
Jordan, i.e., that crimes requiring fraud or intent to defraud
always involve moral turpitude.74
Dela Torre v. Commission on Elections75 is a case in point that
uses the second approach and is one case where the Court
even dispensed with the review of facts and circumstances
surrounding the commission of the crime since Dela Torre did
not assail his conviction. Dela Torre was disqualified by the
Comelec from running as Mayor of Cavinti, Laguna on the basis
of his conviction for violation of Presidential Decree No. 1612,
otherwise known as the Anti-Fencing Law. Dela Torre appealed
to this Court to overturn his disqualification on the ground that
the crime of fencing is not a crime involving moral turpitude.
The Court ruled that moral turpitude is deducible from the
third element. Actual knowledge by the fence of the fact that
property received is stolen displays the same degree of
malicious deprivation of ones rightful property as that which
animated the robbery or theft which, by their very nature, are
crimes of moral turpitude.
To be sure, the elements of the crime can be a critical factor in
determining moral turpitude if the second approach is used in
the crimes listed above as involving moral turpitude. In Villaber
v. Commission on Elections,76the Court, by analyzing the
elements alone of the offense under Batas Pambansa Blg. 22,
held that the "presence of the second element manifest moral
turpitude" in that "a drawer who issues an unfunded check
deliberately reneges on his private duties he owes his fellow
men or society in a manner contrary to accepted and
customary rule of right and duty, justice, honesty or good
morals." The same conclusion was reached by the Court in
Magno v. Commission on Elections,77 when it ruled that direct
bribery involves moral turpitude, thus:
Moral turpitude can be inferred from the third element. The
fact that the offender agrees to accept a promise or gift and
deliberately commits an unjust act or refrains from performing
an official duty in exchange for some favors, denotes a
malicious intent on the part of the offender to renege on the
duties which he owes his fellowmen and society in general.
Also, the fact that the offender takes advantage of his office
and position is a betrayal of the trust reposed on him by the
public. It is a conduct clearly contrary to the accepted rules of
right and duty, justice, honesty and good morals. In all
respects, direct bribery is a crime involving moral turpitude.
[Emphasis supplied]
The third approach, the subjective approach, essentially takes
the offender and his acts into account in light of the attendant
circumstances of the crime: was he motivated by ill will
indicating depravity? The Court apparently used this approach
in Ao Lin v. Republic,78 a 1964 case, when it held "that the use
of a meter stick without the corresponding seal of the Internal
Revenue Office by one who has been engaged in business for a
long time, involves moral turpitude because it involves a
fraudulent use of a meter stick, not necessarily because the
Government is cheated of the revenue involved in the sealing
of the meter stick, but because it manifests an evil intent on
the part of the petitioner to defraud customers purchasing
from him in respect to the measurement of the goods
purchased."
In IRRI v. NLRC,79 the International Rice Research Institute
terminated the employment contract of Nestor Micosa on the
ground that he has been convicted of the crime of homicide a
a crime involving moral turpitude. The Court refused to
characterize the crime of homicide as one of moral turpitude in
light of the circumstances of its commission. The Court ruled:
These facts show that Micosas intention was not to slay the
victim but only to defend his person. The appreciation in his
favor of the mitigating circumstances of self-defense and
voluntary surrender, plus the total absence of any aggravating
circumstances demonstrate that Micosas character and
intentions were not inherently vile, immoral or unjust. [italics
supllied].
The Court stressed, too, not only the subjective element, but
the need for the appreciation of facts in considering whether
moral turpitude exists an unavoidable step under the third
approach. Thus, the Court explained:
This is not to say that all convictions of the crime of homicide
do not involve moral turpitude. Homicide may or may not
involve moral turpitude depending on the degree of the crime.
Moral turpitude is not involved in every criminal act and is not
shown by every known and intentional violation of statute, but
whether any particular conviction involves moral turpitude may
be a question of fact and frequently depends on all the
surrounding circumstances. [Emphasis supplied]
In contrast, while IRRI refused to characterize the crime of
homicide as one of moral turpitude, the recent case of Soriano
v. Dizon80 held that based on the circumstances, the crime of
frustrated homicide committed by the respondent involved
moral turpitude. In Soriano, complainant Soriano filed a
disbarment case against respondent Atty. Manuel Dizon
alleging that the crime of frustrated homicide involves moral
turpitude under the circumstances surrounding its commission,
and was a sufficient ground for his disbarment under Section
27 of Rule 138 of the Rules of Court. The Court after noting the
factual antecedents of IRRI held that
The present case is totally different. As the IBP correctly found,
the circumstances clearly evince the moral turpitude of
respondent and his unworthiness to practice law. Atty. Dizon
was definitely the aggressor, as he pursued and shot
complainant when the latter least expected it. The act of
aggression shown by respondent will not be mitigated by the
fact that he was hit once and his arm twisted by complainant.
Under the circumstances, those were reasonable actions
clearly intended to fend off the lawyers assault.
We also consider the trial courts finding of treachery as a
further indication of the skewed morals of respondent. He shot
the victim when the latter was not in a position to defend
himself. In fact, under the impression that the assault was
already over, the unarmed complainant was merely returning
the eyeglasses of Atty. Dizon when the latter unexpectedly shot
him. To make matters worse, respondent wrapped the handle
of his gun with a handkerchief so as not to leave fingerprints. In
so doing, he betrayed his sly intention to escape punishment
for his crime.
The totality of the facts unmistakably bears the earmarks of
moral turpitude. By his conduct, respondent revealed his
extreme arrogance and feeling of self-importance. As it were,
he acted like a god on the road, who deserved to be venerated
and never to be slighted. Clearly, his inordinate reaction to a
simple traffic incident reflected poorly on his fitness to be a
member of the legal profession. His overreaction also evinced
vindictiveness, which was definitely an undesirable trait in any
individual, more so in a lawyer. In the tenacity with which he
pursued complainant, we see not the persistence of a person
who has been grievously wronged, but the obstinacy of one
trying to assert a false sense of superiority and to exact
revenge. 81 [Emphasis supplied]
Laguitan v. Tinio,82 expressed in terms of the protection of the
sanctity of marriage,83 also necessarily looked at the subjective
element because the offenders concubinage involved an
assault on the basic social institution of marriage. Another
subjective element case, in terms of looking at the damage
wrought by the offenders act, is People v. Jamero84 where the
Court disregarded the appellants argument that the trial court
erred in ordering the discharge of Inocencio Retirado from the
Information in order to make him a state witness, since he has
been previously convicted of the crime of malicious mischief
a crime involving moral turpitude. The Court said:
In the absence of any evidence to show the gravity and the
nature of the malicious mischief committed, We are not in a
position to say whether or not the previous conviction of
malicious mischief proves that accused had displayed the
baseness, the vileness and the depravity which constitute
moral turpitude. And considering that under paragraph 3 of
Article 329 of the Revised Penal Code, any deliberate act (not
constituting arson or other crimes involving destruction)
causing damage in the property of another, may constitute the
crime of malicious mischief, We should not make haste in
declaring that such crime involves moral turpitude without
determining, at least, the value of the property destroyed
and/or the circumstances under which the act of destroying
was committed.85 [Emphasis supplied]
Thus, again, the need for a factual determination was
considered necessary.
In sum, a survey of jurisprudence from the earliest case of In Re
Basa86 to the recent case of Soriano v. Dizon 87shows that the
Court has used varying approaches, but used the same
standard or measure the degree of attendant depravity. The
safest approach to avoid being misled in ones conclusion is to
apply all three approaches, if possible, and to evaluate the
results from each of the approaches. A useful caveat in the
evaluation is to resolve any doubt in favor of the perpetrator,
as a conclusion of moral turpitude invariably signifies a worse
consequence for him or her.
IV. The Approaches Applied to TEVES
The Objective Approach
The crime for which petitioner Teves was convicted (possession
of pecuniary or financial interest in a cockpit) is, at its core,
related to gambling an act that by contemporary community
standards is not per se immoral. Other than the ruling
heretofore cited on this point,88 judicial notice can be taken of
state-sponsored gambling activities in the country that,
although not without controversy, is generally regarded to be
within acceptable moral limits. The ponencia correctly noted
that prior to the enactment of the Local Government Code of
1991, mere possession by a public officer of pecuniary interest
in a cockpit was not expressly prohibited. This bit of history
alone is an indicator that, objectively, no essential depravity is
involved even from the standards of a holder of a public office.
This reasoning led the ponencia to conclude that "its illegality
does not mean that violation thereof . . . makes such
possession of interest inherently immoral."89
From the Perspective of the Elements of the Crime
Under this approach, we determine whether a crime involves
moral turpitude based solely on our analysis of the elements of
the crime alone.
The essential elements of the offense of possession of
prohibited interest (Section 3(h) of the Anti-Graft Law) for
which the petitioner was convicted are:
1. The accused is a public officer;
2. He has a direct or indirect financial or pecuniary interest in
any business, contract or transaction; and
3. He is prohibited from having such interest by the
Constitution or any law.
From the perspective of moral turpitude, the third element is
the critical element. This element shows that the holding of
interest that the law covers is not a conduct clearly contrary to
the accepted rules of right and duty, justice, honesty and good
morals; it is illegal solely because of the prohibition that exists
in law or in the Constitution. Thus, no depravity immediately
leaps up or suggests itself based on the elements of the crime
committed.
The Subjective Approach
This approach is largely the ponencias approach, as it expressly
stated that "a determination of all surrounding circumstances
of the violation of the statute must be considered."90 In doing
this, the ponencia firstly considered that the petitioner did not
use his official capacity in connection with the interest in the
cockpit, not that he hid this interest by transferring it to his
wife, as the transfer took effect before the effectivity of the
law prohibiting the possession of interest. The ponencia
significantly noted, too, that the violation was not intentionally
committed in a manner contrary to justice, modesty, or good
morals, but due simply to Teves lack of awareness or
ignorance of the prohibition. This, in my view, is the clinching
argument that no moral turpitude can be involved as no
depravity can be gleaned where intent is clearly absent.
Conclusion
To recapitulate, all three approaches point to the conclusion
that no moral turpitude was involved in the crime Teves
committed, with the predominant reasons being the first (or
objective) and the third (or subjective) approaches. Analysis in
this manner, with one approach reinforcing another, results in
clear and easily appreciated conclusions.
ARTURO D. BRION
Associate Justice

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 97239 May 12, 1993
INTERNATIONAL RICE RESEARCH INSTITUTE, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION (THIRD DIVISION)
AND NESTOR B. MICOSA, respondents.
Jimenez & Associates for petitioner.
Santos & Associates for private respondent.
NOCON, J.:
Posed for determination in this petition for certiorari is the
question of whether a conviction of a crime involving moral
turpitude is a ground for dismissal from employment and
corollarily, whether a conviction of a crime of homicide
involves moral turpitude.
International Rice Research Institute (IRRI) is an international
organization recognized by the Philippine government and
accorded privileges, rights and immunities normally granted to
organizations of universal character. In 1977, it hired private
respondent Nestor B. Micosa as laborer, who thereby became
bound by IRRI Employment Policy and Regulations, the
Miscellaneous Provisions of which states viz:
C. Conviction and Previous Separation
l. . . .
2. An employer who has been convicted of a (sic) criminal
offense involving moral turpitude may be dismissed from the
service. 1
On February 6, 1967, Micosa stabbed to death one Reynaldo
Ortega inside a beer house in Los Baos, Laguna.
On September 15, 1987, Micosa was accused of the crime of
homicide. During the pendency of the criminal case, Micosa
voluntarily applied for inclusion in IRRI's Special Separation
Program. However, on January 9, 1990, IRRI's Director General,
Klaus L. Lampe expressed deep regret that he had to
disapprove Micosa's application for separation because of
IRRI's desire to retain the skills and talents that persons like
him possess. 2
On January 23, 1990, the trial court rendered a decision
fending Micosa guilty of homicide, but appreciating, however,
in his favor the presence of the mitigating circumstances of (a)
incomplete self-defense and (b) voluntary surrender, plus the
total absence of any aggravating circumstance.
Subsequently, Micosa applied for suspension of his sentence
under the Probation Law.
On February 8, 1990, IRRI's Director General personally wrote
Micosa that his appointment as laborer was confirmed, making
him a regular core employee whose appointment was for an
indefinite period and who "may not be terminated except for
justifiable causes as defined by the pertinent provisions of the
Philippine Labor Code.3
On March 30, 1990, IRRI's Human Resource Development
Head, J.K. Pascual wrote Micosa urging him to resign from
employment in view of his conviction in the case for homicide.
On April 4, 1990, the Laguna Parole and Probation Office No. II
wrote IRRI informing the latter that said office found Micosa's
application for probation meritorious as he was evaluated "to
possess desirable social antecedents in his life." 4
On April 6, 1990, Micosa informed J.K. Pascual that he had no
intention of resigning from his job at IRRI.
On April 22, 1990, J. K. Pascual replied to Micosa's letter
insisting that the crime for which he was convicted involves
moral turpitude and informing him that he is thereby charged
of violating Section I-AA, Par VII, C-2 of the Institute's Personnel
Manual.
On April 27, 1990, Micosa explained to J.K. Pascual that the
slaying of Reynaldo Ortega on February 6, 1987 arose out of his
act of defending himself from unlawful aggression; that his
conviction did not involve moral turpitude and that he opted
not to appeal his conviction so that he could avail of the
benefits of probation, which the trial court granted to him.
On May 7, 1990, Micosa sought the assistance of IRRI's
Grievance Committee who recommended to the Director
General, his continued employment. However, on May 21,
1990, J.K. Pascual issued a notice to Micosa that the latter's
employment was to terminate effective May 25, 1990.
On May 29, 1990, Micosa filed a case for illegal dismissal.
On August 21, 1990, Labor Arbiter Numeriano D. Villena
rendered judgment finding the termination of Micosa illegal
and ordering his reinstatement with full backwages from the
date of his dismissal up to actual reinstatement. The dispositive
portion of the same is hereunder quoted:
WHEREFORE, premises considered, the following orders are
hereby entered:
1. Finding the termination of complainant's services illegal;
2. Ordering respondent International Rice Research Institute to
reinstate complainant Nestor B. Micosa to his former position
without loss of seniority rights and other privileges
appurtenant, thereto immediately upon receipt hereof;
3. Ordering respondent International Rice Research Institute to
pay complainant Nestor B. Micosa his full backwages computed
from the date of his dismissal on May 25, 1990 up to actual
reinstatement based on his latest salary rate of P41,068.00 per
month.
4. Ordering respondent International Rice Research Institute,
to pay complainant's counsel the amount of Five Thousand
Pesos P5,000.00, representing his attorney's fees; and.
5. Dismissing the claim for damages for lack of merit. turpitude, is a valid ground for his dismissal under the
Miscellaneous Provisions of IRRI's Employment Policy
SO ORDERED. 5
Regulations.
On appeal, the National Labor Relations Commission was
In addition to its claim that it has the prerogative to issue rules
basically in agreement with the findings and conclusions of the
and regulations including those concerning employee discipline
Labor Arbiter. Hence, in a resolution dated January 31, 1991, it
and that its employees are bound by the aforesaid personnel
affirmed the appealed decision, the dispositive portion of
manual, petitioner justifies its action as a legitimate act of self-
which states:
defense. It admits that Micosa's interests in his employment
WHEREFORE, the appealed decision is AFFIRMED with and means of livelihood are adversely affected; that a
modification deleting the award of attorney's fees. convict should not be discriminated against in society and that
he should be given the same opportunities as those granted to
SO ORDERED. 6
other fellow citizens but claims that at times, one's right is
Accordingly, petitioner filed this instant petition raising the deemed superior than that of another. In this case, petitioner
following issues: believes that it has a superior right to maintain a very high
degree or standard not only to forestall any internal problem
1. THE NATIONAL LABOR RELATIONS COMMISSION HAS ACTED
hampering operations but also to prevent even the smallest
WITH GRAVE ABUSE OF DISCRETION IN FINDING THAT IRRI
possibility that said problems could occur considering that it is
HAD NO RIGHT NOR AUTHORITY TO PRESCRIBE ANY OTHER
an international organization with concomitant obligation to
CAUSE/S FOR DISMISSAL IF THE SAME IS NOT AMONG THOSE
the host country to avoid creating disturbance or give occasion
ENUMERATED IN ARTICLE OF THE LABOR CODE.
for such disturbance.
2. THE NATIONAL LABOR RELATIONS COMMISSION
It should be recalled, however, that Micosa was issued an
COMMITTED GRAVE ABUSE OF DISCRETION IN HOLDING THAT
appointment with an assurance from the IRRI's Director
"THERE IS NO BASIS TO APPLY PETITIONER'S INSTITUTE
General that as regular core employee he "may not be
PERSONNEL MANUAL IN DISMISSING THE COMPLAINANT ON
terminated except for justifiable causes as defined by the
THE SOLE GROUND THAT HIS CONVICTION OF HOMICIDE
pertinent provisions of the Philippine Labor Code." 8 Thus, IRRI
CONSTITUTE MORAL TURPITUDE. 7
could not remove him from his job if there existed no
The basic premise of petitioner is that Micosa's conviction of justifiable cause as defined by the Labor Code.
the crime of homicide, which is a crime involving moral
Article 282 of the Labor Code enumerates the just causes
wherein an employer may terminate an employment. Verily,
conviction of a crime involving moral turpitude is not one of
these justifiable causes. Neither may said ground be justified
under Article 282 (c) nor under 282 (d) by analogy. Fraud or
willful breach by the employees of the trust reposed in him by
his employer or duly authorized representative under Article
282 (c) refers to any fault or culpability on the part of the
employee in the discharge of his duty rendering him absolutely
unworthy of the trust and confidence demanded by his
position. It cannot be gainsaid that the breach of trust must be
related to the performance of the employee's function. 9 On
the other hand, the commission of a crime by the employee
under Article 282 (d) refer to an offense against the person of
his employer or any immediate member of his family or his
duly authorized representative. Analogous causes must have
an element similar to those found in the specific just cause
enumerated under Article 282. Clearly lacking in the ground
invoked by petitioner is its relation to his work or to his
employer.
In the case at bar, the commission of the crime of homicide
was outside the perimeter of the IRRI complex, having been
committed in a restaurant after office hours and against a non-
IRRI employee. Thus, the conviction of Micosa for homicide
was not work-related, his misdeed having no relation to his
position as laborer and was not directed or committed against
IRRI or its authorized agent.
Besides, IRRI failed to show how the dismissal of Micosa would
be in consideration of the safety and welfare of its employees,
its reputation and standing in the community and its special
obligations to its host country. It did not present evidence to
show that Micosa possessed a tendency to kill without
provocation or that he posed a clear and present danger to the
company and its personnel. On the contrary, the records reveal
that Micosa's service record is unblemished. There is no record
whatsoever that he was involved in any incident similar to that
which transpired on that fateful night of February 6, 1987. In
fact, even after his conviction, the IRRI's Director General
expressed his confidence in him when he disapproved his
application for special separation in a letter dated January 8,
1990 and when he conveyed to him IRRI's decision to promote
him to the status of a regular core employee, with the
commensurate increases in benefits in a letter dated February
1990. Respondent IRRI derogates the letters' significance
saying that they were mere pro-forma communications which
it had given to numerous other workers. But whether or not
such letters were "form letters, they expressed the message
that were meant to be conveyed, i.e., that Micosa is fit for
continued employment. In addition, the employees at IRRI's
Grievance Committee interceded favorably in behalf of Micosa
when they recommended his retention despite his conviction
showing that the very employees which IRRI sought to protect
did not believe that they were placing their very own lives in
danger with Micosa's retention.
Likewise, noteworthy is the fact that Micosa, although found
guilty as charged, was also found worthy of probation. This
means that all the information regarding his character,
antecedents, environment, as well as his mental and physical
condition were evaluated as required under Section 8 of the
Probation Law and it was found that there existed no undue
risk that Micosa will commit another crime during his period of
probation and that his being placed on probation would be to
the benefit of society as a whole.
In the face of all these, IRRI remained adamant and insisted on
Micosa's termination. Certainly, said termination cannot be
upheld for it lacked not only a legal basis but factual basis as
well.
Even under IRRI's Employment Policy and Regulations, the
dismissal of Micosa's on the ground of his conviction for
homicide cannot be sustained. The miscellaneous provisions of
said personnel manual mentions of conviction of a crime
involving moral turpitude as a ground for dismissal. IRRI simply
assumed that conviction of the crime of homicide is conviction
of a crime involving moral turpitude. We do not subscribe to
this view.
Moral turpitude has been defined in Can v. Galing 10 citing In
Re Basa 11 and Tak Ng v. Republic 12 as everything which is done
contrary to justice, modesty, or good morals; an act of
baseness, vileness or depravity in the private and social duties
which a man owes his fellowmen, or to society in general,
contrary to justice, honesty, modesty or good morals.
As to what crime involves moral turpitude, is for the Supreme
Court to
determine. 13 Thus, the precipitate conclusion of IRRI that
conviction of the crime of homicide involves moral turpitude is
unwarranted considering that the said crime which resulted
from an act of incomplete self-defense from an unlawful
aggression by the victim has not been so classified as involving
moral turpitude.
IRRI argues that the crime of homicide committed by Micosa
involves moral turpitude as the killing of a man is conclusively
an act against justice and is immoral in itself not merely
prohibited by law. It added that Micosa stabbed the victim
more than what was necessary to repel the attack.
IRRI failed to comprehend the significance of the facts in their
totality. The facts on record show that Micosa was then
urinating and had his back turned when the victim drove his fist
unto Micosa's face; that the victim then forcibly rubbed
Micosa's face into the filthy urinal; that Micosa pleaded to the
victim to stop the attack but was ignored and that it was while
Micosa was in that position that he drew a fan knife from the
left pocket of his shirt and desperately swung it at the victim
who released his hold on Micosa only after the latter had
stabbed him several times. These facts show that Micosa's
intention was not to slay the victim but only to defend his
person. The appreciation in his favor of the mitigating
circumstances of self- defense and voluntary surrender, plus
the total absence of any aggravating circumstance
demonstrate that Micosa's character and intentions were not
inherently vile, immoral or unjust.
This is not to say that all convictions of the crime of homicide WHEREFORE, the petition, is hereby DISMISSED for lack of
do not involve moral turpitude. Homicide may or may not merit.
involve moral turpitude depending on the degree of the
SO ORDERED.
crime. 14 Moral turpitude is not involved in every criminal act
and is not shown by every known and intentional violation of Narvasa, C.J., Padilla and Regalado, JJ., concur.
statute, but whether any particular conviction involves moral
turpitude may be a question of fact and frequently depends on
all the surrounding circumstances. 15 While . . . generally but
not always, crimes mala in se involve moral turpitude, while
crimes mala prohibita do not, it, cannot always be ascertained
whether moral turpitude does or does not exist by classifying a
crime as malum in se or as malum prohibitum, since there are
crimes which are mala in se and yet but rarely involve moral
turpitude and there are crimes which involve moral turpitude
and are mala prohibita only. 16 It follows therefore, that moral
turpitude is somewhat a vague and indefinite term, the
meaning of which must be left to the process of judicial
inclusion or exclusion as the cases are reached.
In fine, there is nothing in this case to show any abuse of
discretion by the National Labor Relations Commission in
affirming the decision of the Labor Arbiter finding that Micosa
was illegally dismissed. For certiorari to lie, there must be
capricious, arbitrary and whimsical exercise of power, the very
antithesis of the judicial prerogative in accordance with
centuries of both civil and common traditions. 17 The abuse of
discretion must be grave and patent, and it must be shown
that the discretion was exercised arbitrarily or despotically. 18
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.C. No. 6792 January 25, 2006
ROBERTO SORIANO, Complainant,
vs.
Atty. MANUEL DIZON, Respondent.
DECISION
PER CURIAM:
Before us is a Complaint-Affidavit1 for the disbarment of Atty.
Manuel Dizon, filed by Roberto Soriano with the Commission
on Bar Discipine (CBD) of the Integrated Bar of the Philippines
(IBP). Complainant alleges that the conviction of respondent
for a crime involving moral turpitude, together with the
circumstances surrounding the conviction, violates Canon 1 of
Rule 1.01 of the Code of Professional Responsibility;2 and
constitutes sufficient ground for his disbarment under Section
27 of Rule 138 of the Rules of Court.3
Because of the failure of Atty. Dizon to submit his Answer to
the Complaint, the CBD issued a Notice dated May 20, 2004,
informing him that he was in default, and that an ex-parte
hearing had been scheduled for June 11, 2004.4 After that
hearing, complainant manifested that he was submitting the
case on the basis of the Complaint and its
attachments.5 Accordingly, the CBD directed him to file his
Position Paper, which he did on July 27, 2004.6Afterwards, the
case was deemed submitted for resolution.
On December 6, 2004, Commissioner Teresita J. Herbosa
rendered her Report and Recommendation, which was later
adopted and approved by the IBP Board of Governors in its
Resolution No. XVI-2005-84 dated March 12, 2005.
In his Complaint-Affidavit, Soriano alleged that respondent had
violated Canon 1, Rule 1.01 of the Code of Professional
Responsibility; and that the conviction of the latter for
frustrated homicide,7 which involved moral turpitude, should
result in his disbarment.
The facts leading to respondents conviction were summarized
by Branch 60 of the Regional Trial Court of Baguio City in this
wise:
"x x x. The accused was driving his brown Toyota Corolla and
was on his way home after gassing up in preparation for his trip
to Concepcion, Tarlac with his wife. Along Abanao Street, a taxi
driver overtook the car driven by the accused not knowing that
the driver of the car he had overtaken is not just someone, but
a lawyer and a prominent member of the Baguio community
who was under the influence of liquor. Incensed, the accused
tailed the taxi driver until the latter stopped to make a turn at
[the] Chugum and Carino Streets. The accused also stopped his
car, berated the taxi driver and held him by his shirt. To stop
the aggression, the taxi driver forced open his door causing the
accused to fall to the ground. The taxi driver knew that the
accused had been drinking because he smelled of liquor.
Taking pity on the accused who looked elderly, the taxi driver
got out of his car to help him get up. But the accused, by now
enraged, stood up immediately and was about to deal the taxi
driver a fist blow when the latter boxed him on the chest
instead. The accused fell down a second time, got up again and
was about to box the taxi driver but the latter caught his fist
and turned his arm around. The taxi driver held on to the
accused until he could be pacified and then released him. The
accused went back to his car and got his revolver making sure
that the handle was wrapped in a handkerchief. The taxi driver
was on his way back to his vehicle when he noticed the
eyeglasses of the accused on the ground. He picked them up
intending to return them to the accused. But as he was
handing the same to the accused, he was met by the barrel of
the gun held by the accused who fired and shot him hitting him
on the neck. He fell on the thigh of the accused so the latter
pushed him out and sped off. The incident was witnessed by
Antonio Billanes whose testimony corroborated that of the taxi
driver, the complainant in this case, Roberto Soriano."8
It was the prosecution witness, Antonio Billanes, who came to
the aid of Soriano and brought the latter to the hospital.
Because the bullet had lacerated the carotid artery on the left
side of his neck,9 complainant would have surely died of
hemorrhage if he had not received timely medical assistance,
according to the attending surgeon, Dr. Francisco Hernandez,
Jr. Soriano sustained a spinal cord injury, which caused
paralysis on the left part of his body and disabled him for his
job as a taxi driver.
The trial court promulgated its Decision dated November 29,
2001. On January 18, 2002, respondent filed an application for
probation, which was granted by the court on several
conditions. These included satisfaction of "the civil liabilities
imposed by [the] court in favor of the offended party, Roberto
Soriano."10
According to the unrefuted statements of complainant, Atty.
Dizon, who has yet to comply with this particular undertaking,
even appealed the civil liability to the Court of Appeals.11
In her Report and Recommendation, Commissioner Herbosa
recommended that respondent be disbarred from the practice
of law for having been convicted of a crime involving moral
turpitude.
The commissioner found that respondent had not only been
convicted of such crime, but that the latter also exhibited an
obvious lack of good moral character, based on the following
facts:
"1. He was under the influence of liquor while driving his car;
"2. He reacted violently and attempted to assault Complainant
only because the latter, driving a taxi, had overtaken him;
"3. Complainant having been able to ward off his attempted
assault, Respondent went back to his car, got a gun, wrapped
the same with a handkerchief and shot Complainant[,] who
was unarmed;
"4. When Complainant fell on him, Respondent simply pushed
him out and fled;
"5. Despite positive identification and overwhelming evidence,
Respondent denied that he had shot Complainant;
"6. Apart from [his] denial, Respondent also lied when he
claimed that he was the one mauled by Complainant and two
unidentified persons; and,
"7. Although he has been placed on probation, Respondent
has[,] to date[,] not yet satisfied his civil liabilities to
Complainant."12
On July 8, 2005, the Supreme Court received for its final action
the IBP Resolution adopting the Report and Recommendation
of the Investigating Commissioner.
We agree with the findings and recommendations of
Commissioner Herbosa, as approved and adopted by the IBP
Board of Governors.
Under Section 27 of Rule 138 of the Rules of Court, conviction
for a crime involving moral turpitude is a ground for
disbarment or suspension. By such conviction, a lawyer is
deemed to have become unfit to uphold the administration of
justice and to be no longer possessed of good moral
character.13 In the instant case, respondent has been found
guilty; and he stands convicted, by final judgment, of frustrated
homicide. Since his conviction has already been established
and is no longer open to question, the only issues that remain
to be determined are as follows: 1) whether his crime of
frustrated homicide involves moral turpitude, and 2) whether
his guilt warrants disbarment.
Moral turpitude has been defined as "everything which is done
contrary to justice, modesty, or good morals; an act of
baseness, vileness or depravity in the private and social duties
which a man owes his fellowmen, or to society in general,
contrary to justice, honesty, modesty, or good morals."14
The question of whether the crime of homicide involves moral
turpitude has been discussed in International Rice Research
Institute (IRRI) v. NLRC,15 a labor case concerning an employee
who was dismissed on the basis of his conviction for homicide.
Considering the particular circumstances surrounding the
commission of the crime, this Court rejected the employers
contention and held that homicide in that case did not involve
moral turpitude. (If it did, the crime would have been violative
of the IRRIs Employment Policy Regulations and indeed a
ground for dismissal.) The Court explained that, having
disregarded the attendant circumstances, the employer made
a pronouncement that was precipitate. Furthermore, it was not
for the latter to determine conclusively whether a crime
involved moral turpitude. That discretion belonged to the
courts, as explained thus:
"x x x. Homicide may or may not involve moral turpitude
depending on the degree of the crime. Moral turpitude is not
involved in every criminal act and is not shown by every known
and intentional violation of statute, but whether any particular
conviction involves moral turpitude may be a question of fact
and frequently depends on all the surrounding circumstances. x
x x."16 (Emphasis supplied)
In the IRRI case, in which the crime of homicide did not involve
moral turpitude, the Court appreciated the presence of
incomplete self-defense and total absence of aggravating
circumstances. For a better understanding of that Decision, the
circumstances of the crime are quoted as follows:
"x x x. The facts on record show that Micosa [the IRRI
employee] was then urinating and had his back turned when
the victim drove his fist unto Micosa's face; that the victim
then forcibly rubbed Micosa's face into the filthy urinal; that
Micosa pleaded to the victim to stop the attack but was
ignored and that it was while Micosa was in that position that
he drew a fan knife from the left pocket of his shirt and
desperately swung it at the victim who released his hold on
Micosa only after the latter had stabbed him several times.
These facts show that Micosa's intention was not to slay the
victim but only to defend his person. The appreciation in his
favor of the mitigating circumstances of self-defense and
voluntary surrender, plus the total absence of any aggravating
circumstance demonstrate that Micosa's character and
intentions were not inherently vile, immoral or unjust."17
The present case is totally different. As the IBP correctly found,
the circumstances clearly evince the moral turpitude of
respondent and his unworthiness to practice law.
Atty. Dizon was definitely the aggressor, as he pursued and
shot complainant when the latter least expected it. The act of
aggression shown by respondent will not be mitigated by the
fact that he was hit once and his arm twisted by complainant.
Under the circumstances, those were reasonable actions
clearly intended to fend off the lawyers assault.
We also consider the trial courts finding of treachery as a
further indication of the skewed morals of respondent. He shot
the victim when the latter was not in a position to defend
himself. In fact, under the impression that the assault was
already over, the unarmed complainant was merely returning
the eyeglasses of Atty. Dizon when the latter unexpectedly shot
him. To make matters worse, respondent wrapped the handle
of his gun with a handkerchief so as not to leave fingerprints. In
so doing, he betrayed his sly intention to escape punishment
for his crime.
The totality of the facts unmistakably bears the earmarks of
moral turpitude. By his conduct, respondent revealed his
extreme arrogance and feeling of self-importance. As it were,
he acted like a god on the road, who deserved to be venerated
and never to be slighted. Clearly, his inordinate reaction to a
simple traffic incident reflected poorly on his fitness to be a
member of the legal profession. His overreaction also evinced
vindictiveness, which was definitely an undesirable trait in any
individual, more so in a lawyer. In the tenacity with which he
pursued complainant, we see not the persistence of a person
who has been grievously wronged, but the obstinacy of one
trying to assert a false sense of superiority and to exact
revenge.
It is also glaringly clear that respondent seriously transgressed
Canon 1 of the Code of Professional Responsibility through his
illegal possession of an unlicensed firearm18 and his unjust
refusal to satisfy his civil liabilities.19 He has thus brazenly
violated the law and disobeyed the lawful orders of the courts.
We remind him that, both in his attorneys oath20 and in the
Code of Professional Responsibility, he bound himself to "obey
the laws of the land."
All told, Atty. Dizon has shown through this incident that he is
wanting in even a basic sense of justice. He obtained the
benevolence of the trial court when it suspended his sentence
and granted him probation. And yet, it has been four
years21 since he was ordered to settle his civil liabilities to
complainant. To date, respondent remains adamant in refusing
to fulfill that obligation. By his extreme impetuosity and
intolerance, as shown by his violent reaction to a simple traffic
altercation, he has taken away the earning capacity, good
health, and youthful vigor of his victim. Still, Atty. Dizon
begrudges complainant the measly amount that could never
even fully restore what the latter has lost.
Conviction for a crime involving moral turpitude may relate,
not to the exercise of the profession of lawyers, but certainly to
their good moral character.22 Where their misconduct outside
of their professional dealings is so gross as to show them
morally unfit for their office and unworthy of the privileges
conferred upon them by their license and the law, the court
may be justified in suspending or removing them from that
office.23
We also adopt the IBPs finding that respondent displayed an
utter lack of good moral character, which is an essential
qualification for the privilege to enter into the practice of law.
Good moral character includes at least common honesty.24
In the case at bar, respondent consistently displayed dishonest
and duplicitous behavior. As found by the trial court, he had
sought, with the aid of Vice-Mayor Daniel Farias, an out-of-
court settlement with complainants family.25 But when this
effort failed, respondent concocted a complete lie by making it
appear that it was complainants family that had sought a
conference with him to obtain his referral to a neurosurgeon.26
The lies of Atty Dizon did not end there. He went on to
fabricate an entirely implausible story of having been mauled
by complainant and two other persons.27 The trial court had
this to say:
"The physical evidence as testified to by no less than three (3)
doctors who examined [Atty. Dizon] does not support his
allegation that three people including the complainant helped
each other in kicking and boxing him. The injuries he sustained
were so minor that it is improbable[,] if not downright
unbelievable[,] that three people who he said were bent on
beating him to death could do so little damage. On the
contrary, his injuries sustain the complainants version of the
incident particularly when he said that he boxed the accused
on the chest. x x x."28
Lawyers must be ministers of truth. No moral qualification for
bar membership is more important than truthfulness.29 The
rigorous ethics of the profession places a premium on honesty
and condemns duplicitous behavior.30 Hence, lawyers must not
mislead the court or allow it to be misled by any artifice. In all
their dealings, they are expected to act in good faith.
The actions of respondent erode rather than enhance public
perception of the legal profession. They constitute moral
turpitude for which he should be disbarred. "Law is a noble
profession, and the privilege to practice it is bestowed only
upon individuals who are competent intellectually,
academically and, equally important, morally. Because they are
vanguards of the law and the legal system, lawyers must at all
times conduct themselves, especially in their dealings with
their clients and the public at large, with honesty and integrity
in a manner beyond reproach."31
The foregoing abhorrent acts of respondent are not merely
dishonorable; they reveal a basic moral flaw. Considering the
depravity of the offense he committed, we find the penalty
recommended by the IBP proper and commensurate.
The purpose of a proceeding for disbarment is to protect the
administration of justice by requiring that those who exercise
this important function be competent, honorable and reliable -
- lawyers in whom courts and clients may repose
confidence.32 Thus, whenever a clear case of degenerate and
vile behavior disturbs that vital yet fragile confidence, we shall
not hesitate to rid our profession of odious members.
We remain aware that the power to disbar must be exercised
with great caution, and that disbarment should never be
decreed when any lesser penalty would accomplish the end
desired. In the instant case, however, the Court cannot extend
that munificence to respondent. His actions so despicably and
wantonly disregarded his duties to society and his profession.
We are convinced that meting out a lesser penalty would be
irreconcilable with our lofty aspiration for the legal profession -
- that every lawyer be a shining exemplar of truth and justice.
We stress that membership in the legal profession is a privilege
demanding a high degree of good moral character, not only as
a condition precedent to admission, but also as a continuing
requirement for the practice of law. Sadly, herein respondent
has fallen short of the exacting standards expected of him as a
vanguard of the legal profession.
In sum, when lawyers are convicted of frustrated homicide, the
attending circumstances not the mere fact of their conviction
would demonstrate their fitness to remain in the legal
profession. In the present case, the appalling vindictiveness,
treachery, and brazen dishonesty of respondent clearly show
his unworthiness to continue as a member of the bar.
WHEREFORE, RESPONDENT MANUEL DIZON is
hereby DISBARRED, and his name is ORDERED STRICKEN from
the Roll of Attorneys. Let a copy of this Decision be entered in
his record as a member of the Bar; and let 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.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
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.
x-----------------------x
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.
RESOLUTION
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 the Manila 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, 20029
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.18Such 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.
Let copies of this Resolution 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.
Vitug, (Acting Chairman),Carpio, and Azcuna, JJ., concur.
Davide, Jr., C.J., (Chairman ), abroad, on official business.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
A.C. No. 5485 March 16, 2005
ELMER CANOY, Complainant,
vs.
ATTY. JOSE MAX ORTIZ, respondent.
DECISION
TINGA, J.:
There are no good reasons that would justify a lawyer virtually
abandoning the cause of the client in the midst of litigation
without even informing the client of the fact or cause of
desertion. That the lawyer forsook his legal practice on account
of what might be perceived as a higher calling, election to
public office, does not mitigate the dereliction of professional
duty. Suspension from the practice is the usual penalty, and
there is no reason to deviate from the norm in this case.
A Complaint1 dated 10 April 2001 was filed with the Office of
the Bar Confidant by Elmer Canoy (Canoy) accusing Atty. Jose
Max Ortiz (Atty. Ortiz) of misconduct and malpractice. It was
alleged that Canoy filed a complaint for illegal dismissal against
his former employer, Coca Cola Bottlers Philippines. The
complaint was filed with the National Labor Relations
Commission (NLRC) Regional Arbitration Board VI in Bacolod
City.2 Atty. Ortiz appeared as counsel for Canoy in this
proceeding. In 1998, the labor arbiter hearing the complaint
ordered the parties to submit their respective position papers.
Canoy submitted all the necessary documents and records to
Atty. Ortiz for the preparation of the position paper.
Thereafter, he made several unfruitful visits to the office of
Atty. Ortiz to follow-up the progress of the case. After a final
visit at the office of Atty. Ortiz in April of 2000, during which
Canoy was told to come back as his lawyer was not present,
Canoy decided to follow-up the case himself with the NLRC. He
was shocked to learn that his complaint was actually dismissed
way back in 1998, for failure to prosecute, the parties not
having submitted their position papers.3 The dismissal was
without prejudice. Canoy alleged that Atty. Ortiz had never
communicated to him about the status of the case, much less
the fact that he failed to submit the position paper.
The Comment4 filed by Atty. Ortiz is the epitome of self-
hagiography. He informs the Court that since commencing his
law practice in 1987, he has mostly catered to indigent and
low-income clients, at considerable financial sacrifice to
himself. Atty. Ortiz claims that for more than ten years, his law
office was a virtual adjunct of the Public Attorney's Office with
its steady stream of non-paying clients in the "hundreds or
thousands."5 At the same time, he hosted a legal assistance
show on the radio, catering to far-flung municipalities and
reaching "the people who need legal advice and
assistance."6 Atty. Ortiz pursued on with this lifestyle until his
election as Councilor of Bacolod City, a victory which he
generously attributes to the help "of the same people whom
he had helped by way of legal assistance before."7
Canoy was among those low-income clients whom Atty. Ortiz
deigned to represent. The lawyer was apparently confident
that the illegal dismissal case would eventually be resolved by
way of compromise. He claims having prepared the position
paper of Canoy, but before he could submit the same, the
Labor Arbiter had already issued the order dismissing the
case.8 Atty. Ortiz admits though that the period within which to
file the position paper had already lapsed. He attributes this
failure to timely file the position paper to the fact that after his
election as Councilor of Bacolod City, "he was frankly
preoccupied with both his functions as a local government
official and as a practicing lawyer." Eventually, "his desire to
help was beyond physical limitations," and he withdrew from
his other cases and his "free legal services."9
According to Atty. Ortiz, "Mr. Canoy should have at least
understood that during all that time, he was free to visit or call
the office and be entertained by the secretary as [he] would
normally report to the office in the afternoon as he had to
attend to court trials and report to the Sanggunian office."10 He
states that it was his policy to inform clients that they should
be the ones to follow-up their cases with his office, as it would
be "too difficult and a financial burden to attend making
follow-ups with hundreds of clients, mostly indigents" with only
two office personnel.11
Nonetheless, Atty. Ortiz notes that the dismissal of Canoy's
complaint was without prejudice, thus the prescriptive period
had been tolled. He claims not being able to remember
whether he immediately informed Canoy of the dismissal of
the case, though as far as he could recall, Canoy had conveyed
a message to him that he had a lawyer to handle the case, thus
his office did not insist on refiling the same.12
The matter was referred to the Integrated Bar of the
Philippines (IBP) for investigation, report and
recommendation.13 Canoy eventually submitted a motion
withdrawing the complaint, but this was not favorably acted
upon by the IBP in view of the rule that the investigation of a
case shall not be interrupted or terminated by reason of
withdrawal of the charges.14 Eventually, the investigating
commissioner concluded that "clearly, the records show that
[Atty. Ortiz] failed to exercise that degree of competence and
diligence required of him in prosecuting his clients' (sic) claim,"
and recommended that Atty. Ortiz be reprimanded.15 The IBP
Commission on Discipline adopted the recommendation, with
the slight modification that Atty. Ortiz be likewise warned that
a repetition of the same negligence shall be dealt with more
severely in the future.
The Court is sensitive to the difficulties in obtaining legal
representation for indigent or low-income litigants. Apart from
the heroic efforts of government entities such as the Public
Attorney's Office, groups such as the IBP National Committee
on Legal Aid and the Office of Legal Aid of the UP College of
Law have likewise been at the forefront in the quest to provide
legal representation for those who could not otherwise afford
the services of lawyers. The efforts of private practitioners who
assist in this goal are especially commendable, owing to their
sacrifice in time and resources beyond the call of duty and
without expectation of pecuniary reward.
Yet, the problem of under-representation of indigent or low-
income clients is just as grievous as that of non-representation.
Admirable as the apparent focus of Atty. Ortiz's legal practice
may have been, his particular representation of Canoy in the
latter's illegal dismissal case leaves much to be desired.
Several of the canons and rules in the Code of Professional
Responsibility guard against the sort of conduct displayed by
Atty. Ortiz with respect to the handling of Canoy's case.
CANON 17A LAWYER OWES FIDELITY TO THE CAUSE OF HIS
CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND
CONFIDENCE REPOSED IN HIM.
CANON 18A LAWYER SHALL SERVE HIS CLIENT WITH
COMPETENCE AND DILIGENCE.
...
Rule 18.03A lawyer shall not neglect a legal matter entrusted
to him, and his negligence in connection therewith shall render
him liable.
Rule 18.04A lawyer shall keep the client informed of the
status of his case and shall respond within a reasonable time to
the client's request for information.
...
CANON 22A LAWYER SHALL WITHDRAW HIS SERVICES ONLY
FOR GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE
CIRCUMSTANCES.
...
Rule 22.02 A lawyer who withdraws or is discharged shall,
subject to a retainer lien, immediately turn over all papers and
property to which the client is entitled, and shall cooperate
with his successor in the orderly transfer of the matter,
including all information necessary for the proper handling of
the matter.
Atty. Ortiz should have filed the position paper on time, owing
to his duty as counsel of Canoy to attend to this legal matter
entrusted to him. His failure to do so constitutes a violation of
Rule 18.03 of the Code of Professional Responsibility.
Once he agrees to take up the cause of a client, a lawyer owes
fidelity to such cause and must always be mindful of the trust
and confidence reposed in him. He must serve the client with
competence and diligence and champion the latter's cause
with wholehearted fidelity, care and devotion. Elsewise stated,
he owes entire devotion to the interest of the client, warm zeal
in the maintenance and defense of his client's rights, and the
exertion of his utmost learning and ability to the end that
nothing be taken or withheld from his client, save by the rules
of law, legally applied. This simply means that his client is
entitled to the benefit of any and every remedy and defense
that is authorized by the law of the land and he may expect his
lawyer to assert every such remedy or defense. If much is
demanded from an attorney, it is because the entrusted
privilege to practice law carries with it the correlative duties
not only to the client but also to the court, to the bar and to
the public. A lawyer who performs his duty with diligence and
candor not only protects the interest of his client; he also
serves the ends of justice, does honor to the bar and helps
maintain the respect of the community to the legal
profession.16
If indeed Atty. Ortiz's schedule, workload, or physical condition
was such that he would not be able to make a timely filing, he
should have informed Canoy of such fact. The relationship of
lawyer-client being one of confidence, there is ever present the
need for the client to be adequately and fully informed of the
developments of the case and should not be left in the dark as
to the mode and manner in which his/her interests are being
defended.17
There could have been remedies undertaken to this inability of
Atty. Ortiz to file on time the position paper had Canoy been
told of such fact, such as a request for more time to file the
position paper, or maybe even the hiring of collaborating
counsel or substitution of Atty. Ortiz as counsel. Since Atty.
Ortiz did not exercise the necessary degree of care by either
filing the position paper on time or informing Canoy that the
paper could not be submitted seasonably, the ignominy of
having the complaint dismissed for failure to prosecute could
not be avoided.
That the case was dismissed without prejudice, thus allowing
Canoy to refile the case, hardly serves to mitigate the liability of
Atty. Ortiz, as the failure to file the position paper is per se a
violation of Rule 18.03.18
Neither is the Court mollified by the circumstance of Atty.
Ortiz's election as a City Councilor of Bacolod City, as his
adoption of these additional duties does not exonerate him of
his negligent behavior. The Code of Professional Responsibility
does allow a lawyer to withdraw his legal services if the lawyer
is elected or appointed to a public office.19 Statutes expressly
prohibit the occupant of particular public offices from engaging
in the practice of law, such as governors and mayors,20 and in
such instance, the attorney-client relationship is
terminated.21 However, city councilors are allowed to practice
their profession or engage in any occupation except during
session hours, and in the case of lawyers such as Atty. Ortiz,
subject to certain prohibitions which are not relevant to this
case.22In such case, the lawyer nevertheless has the choice to
withdraw his/her services.23 Still, the severance of the relation
of attorney-client is not effective until a notice of discharge by
the client or a manifestation clearly indicating that purpose is
filed with the court or tribunal, and a copy thereof served upon
the adverse party, and until then, the lawyer continues to be
counsel in the case.24
Assuming that Atty. Ortiz was justified in terminating his
services, he, however, cannot just do so and leave complainant
in the cold unprotected.25 Indeed, Rule 22.02 requires that a
lawyer who withdraws or is discharged shall, subject to a lien,
immediately turn over all papers and property to which the
client is entitled, and shall cooperate with his successor in the
orderly transfer of the matter. Atty. Ortiz claims that the his failure to inform Canoy of such fact, and the successive
reason why he took no further action on the case was that he dismissal of the complaint.
was informed that Canoy had acquired the services of another
Lawyers who devote their professional practice in representing
counsel. Assuming that were true, there was no apparent
litigants who could ill afford legal services deserve
coordination between Atty. Ortiz and this new counsel.
commendation. However, this mantle of public service will not
In fact, it took nearly two years before Canoy had learned that deliver the lawyer, no matter how well-meaning, from the
the position paper had not been filed and that the case had consequences of negligent acts. It is not enough to say that all
been dismissed. This was highly irresponsible of Atty. Ortiz, pauper litigants should be assured of legal representation.
much more so considering that Canoy was one of the indigent They deserve quality representation as well.
clients whom Atty. Ortiz proudly claims as his favored clientele.
WHEREFORE, respondent Atty. Jose Max S. Ortiz is ordered
It does not escape the Court's attention that Atty. Ortiz faults
SUSPENDED from the practice of law for one (1) month from
Canoy for not adequately following up the case with his
notice, with the warning that a repetition of the same
office.26 He cannot now shift the blame to complainant for
negligence will be dealt with more severely. Let a copy of this
failing to inquire about the status of the case, since, as stated
decision be attached to respondent's personal record in the
above, it was his duty as lawyer to inform his clients of the
Office of the Bar Confidant and copies be furnished to all
status of cases entrusted to him.27
chapters of the Integrated Bar of the Philippines and to all the
The appropriate sanction is within the sound discretion of this courts in the land.
Court. In cases of similar nature, the penalty imposed by the
SO ORDERED.
Court consisted of either a reprimand, a fine of five hundred
pesos with warning, suspension of three months, six months,
and even disbarment in aggravated cases.28 Given the
circumstances, the Court finds the penalty recommended by
the IBP too lenient and instead suspends Atty. Ortiz from the
practice of law for one (1) month. The graver penalty of
suspension is warranted in lieu of an admonition or a
reprimand considering that Atty. Ortiz's undisputed negligence
in failing to timely file the position paper was compounded by