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![The facts being conceded, itis next inorder towritedowntheapplicable legalprovisions. Section21ofthe Code
of Civil Procedure as originally conceived related to disbarments of members of the bar. In 1919 at the
instigation of thePhilippineBarAssociation, said codalsection was amended by Act No. 2828 by adding at the
end thereof thefollowing: "Thepractice ofsoliciting cases atlaw for the purpose ofgain, either personally or
through paid agents or brokers, constitutes malpractice."
The statuteas amended conforms in principle totheCanons ofProfessionals Ethics adopted by the American
Bar Association in 1908and by the PhilippineBar Association in 1917. Canons 27 and 28 ofthe Code ofEthics
provide:
27. ADVERTISING, DIRECT OR INDIRECT. — The mostworthyandeffective advertisement possible, even for a
young lawyer, and especially with his brother lawyers, is the establishment ofa well-merited reputation for
professionalcapacity and fidelity to trust. This cannot be forced, but must be the outcome ofcharacter and
conduct. Thepublicationor circulation ofordinarysimplebusiness cards, being a matter ofpersonal taste or
local custom,and sometimes ofconvenience, is notperseimproper. Butsolicitationofbusiness by circulars or
advertisements, or by personal communications or interview not warranted by personal relations, is
unprofessional. It is equally unprofessional to procure business by indirection through touters ofany kind,
whether allied real estatefirms ortrustcompanies advertising to secure the drawing ofdeeds or wills or offering
retainers inexchangefor executorships ortrusteeships to beinfluencedby thelawyer. Indirect advertisement
for business by furnishing or inspiring newspaper comments concerning the manner oftheir conduct, the
magnitudeof theinterestinvolved, theimportanceofthelawyer's position, and all other like self-laudation,
defy the traditions and lower the tone ofour high calling, and are intolerable.
28. STIRRING UP LITIGATION,DIRECTLYOR THROUGH AGENTS. — It is unprofessional for a lawyer to volunteer
advice tobring a lawsuit, exceptin rarecases where ties ofblood, relationship or trust makeithis duty to doso.
Stirring up strife and litigationis not only unprofessional, butit is indictable at common law. It is disreputable to
hunt up defects in titles orother causes ofactionandinform thereofin order totheemployed tobring suit, or to
breed litigationby seeking out those with claims for personal injuries or those having any other grounds of
action inorder tosecurethem as clients, orto employ agents or runners for likepurposes, or to pay or reward
directlyor indirectly, those who bring or influence the bringing ofsuch cases to his office, or to remunerate
policemen, court orprison officials,physicians, hospital attaches or others who may succeed, under theguise of
giving disinterested friendly advice,in influencing thecriminal, the sick and the injured, the ignorant or others,
to seek his professionalservices. Aduty tothepublic and totheprofession devolves uponevery member ofthe
bar having knowledgeof such practices uponthepartofany practitionerimmediately to inform thereofto the
end that the offender may be disbarred.
Common barratryconsisting offrequently stirring up suits and quarrels between individuals was a crime at the
common law, and one of the penalties for this offense when committed by an attorney was disbarment.
Statutes intendedto reach the sameevilhave been providedin a number ofjurisdictions usually at the instance
ofthe bar itself, and havebeenupheld as constitutional. Thereason behind statutes ofthis type is not difficult
to discover. Thelaw is a profession and not a business. The lawyer may not seek or obtain employment by
himselfor through others for to doso would beunprofessional. (Statevs. Rossman[1909], 53 Wash., 1; 17 Ann.
Cas., 625; People vs. Mac Cabe [1893], 19 L. R. A., 231; 2 R. C. L., 1097.)
It becomes our duty to condemn inno uncertain terms the ugly practiceofsolicitationofcases by lawyers. It is
destructive of thehonorof a greatprofession. It lowers thestandards ofthat profession. It works against the
confidence of thecommunity intheintegrity ofthemembers ofthebar. Itresults in needless litigation and in
incenting to strife otherwise peacefully inclined citizens.
The solicitation of employment by an attorney is a ground for disbarment or suspension. That should be
distinctly understood.
Giving application ofthe lawandtheCanons ofEthics totheadmittedfacts, therespondentstands convicted of
having solicitedcases indefianceofthelaw andthosecanons. Accordingly, theonlyremaining duty ofthe court
is to fix upon the action which should here be taken. The provincial fiscal ofIsabela, with whom joined the
representative ofthe Attorney-Generalin the oral presentation ofthe case, suggests that the respondent be
only reprimanded.Wethink thatour action should go further than this ifonly to reflect our attitude toward
cases ofthis characterofwhich unfortunately therespondent's is only one. Thecommission ofoffenses ofthis
nature wouldamply justify permanent eliminationfrom the bar. But as mitigating, circumstances working in
favor ofthe respondent there are, first, his intimation that he was unaware ofthe impropriety ofhis acts,
second, his youth and inexperience at the bar,and, third, his promise not to commit a similar mistake in the
future. A modest period of suspension would seem to fit the case ofthe erring attorney. But it should be
distinctly understood thatthis result is reachedin view ofthe considerations which haveinfluencedthecourt to
the relatively lenient inthis particular instance and should, therefore, not be taken as indicating that future
convictions ofpractice ofthis kind will not be dealt with by disbarment.
In view ofall the circumstances ofthis case,thejudgment ofthe courtis that therespondent Luis B. Tagorda be
and is hereby suspended fromthepracticeas an attorney-at-lawfor theperiod ofonemonth fromApril 1,1929,
Street, Johns, Romualdez, and Villa-Real, JJ., concur.
Johnson, J., reserves his vote.
Separate Opinions
OSTRAND, J., dissenting:
I dissent. Under the circumstances ofthe case a reprimand would have been sufficient punishment.
2. THE DIRECTOR OF RELIGIOUS AFFAIRS vs. ESTANISLAOR. BAYOT
OZAETA, J.:
The respondent,who is an attorney-at-law, is charged with malpracticefor having published an advertisementin
the Sunday Tribune ofJune 13, 1943, which reads as follows:
Marriage
licensepromptly secured thru our assistance & the annoyance ofdelay or publicity avoided ifdesired, and
marriagearranged towishes ofparties.Consultation onanymatter free for the poor. Everything confidential.
Legal assistance service
12 Escolta, Manila, Room, 105
Tel. 2-41-60.
Appearing in his own behalf, respondent at first denied having published the said advertisement; but
subsequently, thruhis attorney, headmitted having caused its publicationandprayed for "the indulgence and
mercy"ofthe Court, promising "not torepeatsuch professionalmisconduct inthefuture andto abide himselfto
the strict ethicalrules ofthelaw profession."In further mitigationhe allegedthat the said advertisement was
published only once in the Tribune and that he never had any case at law by reason thereof.
Upon that plea the case was submitted to the Court for decision.](https://image.slidesharecdn.com/206361986-cases-ethics-150911132150-lva1-app6891/85/206361986-cases-ethics-2-320.jpg)
![Honorable Courtmay decideto makemeasures toprotect thegeneralpublicfrom being exploited by those who
may be dealing with the general public in the guise ofbeing "paralegals"without being qualified to do so.
In the same manner, the general publicshould alsobe protected from thedangers which may bebrought 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 byan entitystaffed by "paralegals."Clearly,measures should betaken to protect
the generalpublicfrom falling prey to those who advertiselegalservices without being qualified to offer such
services. 8
A perusal of the questioned advertisements ofRespondent, however, seems to give the impression that
information regarding validity ofmarriages, divorce, annulment ofmarriage, immigration, visa extensions,
declaration of absence, adoption andforeign investment, which are inessence, legal matters , will be given to
them ifthey availof its services. TheRespondent's name — The Legal Clinic, Inc. — does not help matters. It
gives the impression againthat Respondentwill or cancure the legalproblems brought to them. Assuming that
Respondentis, as claimed, staffedpurely by paralegals,it also gives the misleading impression that there are
lawyers involvedin TheLegalClinic,Inc., as there aredoctors in any medicalclinic, when only "paralegals"are
involved in The Legal Clinic, Inc.
Respondent's allegations are further belied by the very admissions ofits President and majority stockholder,
Atty. Nogales, who gave an insight on the structure and main purpose ofRespondent corporation in the
aforementioned "Starweek"article."9
5. Women Lawyer's Association ofthe Philippines:
Annexes "A"and "B"of the petitionareclearly advertisements to solicit cases for thepurpose ofgain which, as
provided for under theabove cited law, (are) illegal and against the Code ofProfessional Responsibility of
lawyers in this country.
Annex "A"of the petitionis not onlyillegalin that itis anadvertisement to solicitcases, but itis illegal in that in
bold letters itannounces thattheLegal Clinic, Inc., could work out/causethe celebration ofa secret marriage
which is not only illegal but immoral inthis country. While itis advertisedthat onehas togo to said agency and
pay P560 for a valid marriage it is certainly fooling the public for valid marriages in the Philippines are
solemnizedonly 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 theUSA, Canada andother countries the trend is towards allowing lawyers to
advertisetheir specialskills to enable people to obtain from qualified practitioners legal services for their
particular needs can justify the useofadvertisements such as are the subject matter ofthe petition, for one
(cannot) justify an illegalact evenby whatever merit theillegalact may serve. The lawhas yet tobe amended so
that such act could become justifiable.
We submitfurther 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 encouragepeopleto consult this clinicabouthow they could go about having a secret marriage here,
when it cannot norshould everbe attempted, and seek adviceon divorce, whereinthis country there is none,
except under theCode of Muslim Personal Laws in thePhilippines.It is also againstgoodmorals andis deceitful
because it falsely represents to the publicto be ableto dothat 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 SupremeCourt held thatsolicitation for clients by an attorney by
circulars ofadvertisements, is unprofessional,and offenses ofthis characterjustify permanent elimination from
the Bar. 10
6. Federacion Internacional de Abogados:
xxx xxx xxx
1.7 That entities admittedly not engagedin the practiceoflaw, such as management consultancy firms or travel
agencies, whetherrun by lawyers or not, perform theservices rendered by Respondent does not necessarily
lead to theconclusion that Respondentis not unlawfully practicing law.In thesame vein, however, thefact that
the business ofrespondent (assuming it can be engaged in independently ofthe practice oflaw) involves
knowledge ofthe law does not necessarily make respondent guilty ofunlawful practice oflaw.
. . . . Of necessity, noone. . . . acting as a consultant can rendereffective serviceunless heis familiar with such
statutes and regulations. Hemustbe carefulnotto suggesta courseofconduct which thelawforbids. It seems .
. . .clear that(theconsultant's) knowledgeofthelaw, andhis use ofthatknowledge as a factor in determining
what measures he shall recommend, donotconstitutethepracticeoflaw . . . . It is not only presumed that all
men know thelaw, but itis a fact thatmostmenhave considerableacquaintancewith broad features ofthelaw
. . . . Our knowledge ofthelaw— accurateor inaccurate — moulds our conductnot only when weareacting for
ourselves, but when weare serving others. Bankers, liquor dealers and laymen generally possess rather precise
knowledgeofthe laws touching their particular business or profession. Agood example is the architect, who
must be familiar withzoning, building and firepreventioncodes,factoryandtenementhousestatutes,and who
draws plans and specification in harmony with the law. This is not practicing law.
But suppose thearchitect, askedby his clientto omita firetower, replies that it is required by the statute. Or
the industrial relations expert cites, insupport ofsomemeasurethathe recommends, a decisionofthe National
Labor Relations Board. Are theypracticing law? In myopinion,they are not, provided noseparate feeis charged
for the legaladviceor information, and the legalquestion is subordinate and incidental to a major non-legal
problem.
It is largely a matter ofdegree and ofcustom.
If it were usual for one intending to erect a building on his land to engage a lawyer to advise him and the
architectin respectto thebuilding code and the like, then an architect who performed this function would
probably beconsideredto betrespassing on territory reservedfor licensedattorneys. Likewise, ifthe industrial
relations field had been pre-empted by lawyers, or custom placed a lawyer always at the elbow ofthe lay
personnelman. Butthis is not the case. Themost important body ofthe industrial relations experts are the
officers and business agents ofthe labor unions and few ofthem are lawyers. Among the larger corporate
employers,it has beenthepracticefor someyears to delegate special responsibility in employee matters to a
management group chosen for their practical knowledgeand skill in such matter, and without regard to legal
thinking or lack ofit. Morerecently, consultants like the defendants have the same service that the larger
employers get from their own specialized staff.
The handling ofindustrialrelations is growing into a recognizedprofession for which appropriate courses are
offered by our leading universities. The court shouldbe very cautious about declaring [that]a widespread, well-
establishedmethod ofconducting business is unlawful,or thattheconsiderableclass ofmen who customarily
perform a certain function haveno rightto do so,or that thetechnicaleducation givenby our schools cannot be
used by the graduates in their business.
In determining whether a man is practicing law, we should consider his work for any particular client or
customer, as a whole. I canimagine defendant being engaged primarily to advise as to the law defining his
client's obligations tohis employees, to guidehis client's obligations tohis employees, to guide his client along](https://image.slidesharecdn.com/206361986-cases-ethics-150911132150-lva1-app6891/85/206361986-cases-ethics-6-320.jpg)
![the path charted by law. This,ofcourse, would bethepractice ofthe law. But such is not the fact in the case
before me. Defendant's primarily efforts arealong economic andpsychological lines. Thelaw only provides the
frame within which he must work, just as the zoning code limits the kind ofbuilding the limits the kind of
building the architect may plan. The incidental legal advice or information defendant may give, does not
transformhis activities into the practice oflaw. Let me add that if, even as a minor feature ofhis work, he
performed services which arecustomarily reserved to members ofthe bar, he would be practicing law. For
instance, if as part of a welfare program, he drew employees'wills.
Another branchof defendant's work is the representations oftheemployer intheadjustmentofgrievances and
in collectivebargaining,with or withouta mediator. This is not per se the practice oflaw. Anyone may use an
agent for negotiations and may select an agent particularly skilled in the subject under discussion, and the
person appointed is freeto accept the employmentwhether ornothe is a member ofthe bar. Here, however,
there maybe an exception wherethe business turns on a question oflaw. Mostrealestatesales arenegotiated
by brokers whoare not lawyers.But ifthe valueofthe land depends on a disputed right-of-way andtheprincipal
role ofthe negotiatoris to assess theprobableoutcomeofthedisputeand persuade the opposite party to the
same opinion,then itmay bethat only a lawyer can accept the assignment. Or ifa controversy between an
employerandhis men grows from differing interpretations ofa contract, or ofa 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 torepresenttheemployer beforeadministrativeagencies ofthe federal government,
especially beforetrialexaminers ofthe National Labor Relations Board. An agency ofthe federal government,
acting by virtueof anauthority grantedby theCongress,mayregulatethe representation ofparties before such
agency. The State of New Jersey is without power to interfere with such determination or to forbid
representation beforetheagency by onewhomtheagency admits. The rules ofthe 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'onenota lawyer. In this phaseofhis work, defendantmay lawfully do whatevertheLaborBoard
allows, even arguing questions purely legal.(Auerbacher v. Wood, 53A. 2d 800,citedin 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 oflaw 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 ofthe 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 ofProfessional Responsibility
succintly states the rule ofconduct:
Rule 15.08 — Alawyer whois engaged inanother professionor occupation concurrently with the practiceoflaw
shall make clear to his client whether he is acting as a lawyer or in another capacity.
1.10. In the present case. theLegal Clinic appears to render wedding services (See Annex "A"Petition).
Services on routine, straightforwardmarriages,likesecuring a marriage license,andmaking arrangements with
a priest or a judge, may not constitute practice oflaw. However, ifthe problem is as complicated as that
describedin "Rx for Legal Problems"on the Sharon Cuneta-Gabby Concepcion-Richard Gomez case, then what
may be involved is actually thepracticeoflaw. Ifa non-lawyer, suchas the Legal Clinic, renders such services
then it is engaged in the unauthorized practice oflaw.
1.11. The Legal Clinicalsoappears to giveinformation on divorce, absence, annulment ofmarriage and
visas (SeeAnnexes "A"and "B"Petition). Purely giving informationalmaterials may not constitute oflaw. The
business is similarto thatofa bookstore where the customer buys materials onthesubject and determines on
the subject and determines by himselfwhat courses ofaction to take.
It is not entirely improbable,however,that aside frompurely giving information, the Legal Clinic's paralegals
may apply the law to the particular problem of the client, and give legal advice. Such would constitute
unauthorized practice oflaw.
It cannot beclaimedthat the publication ofa legaltext which publication ofa legal text which purports to say
what the lawis amount to legalpractice.And themerefact thattheprinciples orrules stated inthetext may be
accepted bya particular readeras a solutionto his problem does not affectthis.. . . . Apparently it is urged that
the conjoining ofthese two, that is, thetext and the forms, with adviceas tohowtheforms should befilled out,
constitutes theunlawful practice oflaw. But that is the situation with many approved and accepted texts.
Dacey's book is sold to the public at large. There is no personal contact or relationship with a particular
individual. Nordoes there existthatrelation ofconfidenceand trust sonecessaryto thestatus ofattorney and
client. THIS IS THE ESSENTIAL OF LEGAL PRACTICE — THE REPRESENTATION AND ADVISING OF APARTICULAR
PERSON IN APARTICULAR SITUATION. At most thebook assumes to offer general adviceon commonproblems,
and does not purport togivepersonaladviceon a specificproblem peculiar toa designated or readily identified
person. Similarly thedefendant's publication does not purport to give personal advice on a specific problem
peculiar toa designated or readily identified personin a particular situation — in their publication and sale of
the kits, such publication and sale did not constitutes the unlawful practice oflaw . . . . There being no legal
impediment under the statute to the sale ofthe kit, there was no proper basis for the injunction against
defendant maintaining an officefor the purposeofselling to persons seeking a divorce, separation, annulment
or separation agreement any printedmaterial or writings relating to matrimonial law or the prohibition in the
memorandumofmodification ofthejudgmentagainst defendant having an interest in any publishing house
publishing his manuscript on divorce and against his having any personal contact with any prospective
purchaser. The record does fully support, however, the finding thatfor thechangeof$75 or $100 for the kit,the
defendant gave legaladvice inthecourseofpersonal contacts concerning particularproblems whichmight arise
in the preparation and presentation ofthepurchaser's asserted matrimonialcauseofaction or pursuit ofother
legal remedies and assistance in thepreparation ofnecessary documents (The injunction therefore sought to)
enjoin conduct constituting the practiceoflaw,particularly with referenceto the giving ofadviceand counselby
the defendant relating tospecific problems ofparticular individuals in connection with a divorce, separation,
annulmentofseparationagreementsoughtand should beaffirmed.(State v. Winder, 348, NYS 2D 270 [1973],
cited in Statsky, supra at p. 101.).
1.12. Respondent, ofcourse,states that its services are "strictly non-diagnostic, non-advisory. "It is not
controverted, however, that iftheservices "involve giving legaladvice or counselling,"such would constitute
practice oflaw (Comment, par.6.2). It is inthis lightthatFIDAsubmits that a factual inquiry may be necessary
for the judicious disposition ofthis case.
xxx xxx xxx
2.10. Annex "A"may be ethicallyobjectionablein that itcan givetheimpression (or perpetuatethe wrong
notion) that thereis a secret marriage. Withall thesolemnities,formalities and other requisites ofmarriages
(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 relatedto the firstparagraph) fails to statethelimitation that only "paralegal services?"or "legal
support services", and not legal services, are available."11](https://image.slidesharecdn.com/206361986-cases-ethics-150911132150-lva1-app6891/85/206361986-cases-ethics-7-320.jpg)
![A prefatory discussion on the meaning of the phrase "practice of law" becomes exigent for the proper
determinationof the issues raised by the petitionatbar. On this score,we notethat the clause"practice of law"
has long been the subject ofjudicial construction and interpretation. The courts have laid down general
principles and doctrines explaining the meaning and scope ofthe term, some ofwhich we now take into
account.
Practice of law means any activity, in orout ofcourt, whichrequires the application oflaw, legal procedures,
knowledge, training and experience. To engage in the practice oflaw is to perform those acts which are
characteristicof the profession.Generally, topractice law is to give advice or render any kind ofservice that
involves legal knowledge or skill. 12
The practiceof lawis notlimitedto the conductofcases in court. It includes legal advice and counsel, and the
preparationof legal instruments and contract bywhich 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
professionalactivity: legal advice and instructions to clients to inform them oftheir rights and obligations,
preparationfor clients of documents requiring knowledgeoflegalprinciples not possessed by ordinary layman,
and appearance for clients beforepublictribunals which possess power and authority to determine rights oflife,
liberty, andproperty according to law,in order to assist in proper interpretation and enforcement oflaw. 14
When a person participates in thea trialand advertises himselfas a lawyer,heis in thepractice oflaw. 15 One
who confers withclients,advises them as to their legal rights and then takes the business to an attorney and
asks thelatterto look afterthecase incourt,is alsopracticing law.16 Giving advicefor compensation regarding
the legalstatus and rights ofanother and theconduct with respecttheretoconstitutes a practice oflaw.17 One
who renders an opinionas to theproperinterpretationofa statute, and receives pay for it, is, to that extent,
practicing law. 18
In the recent caseof Cayetano vs. Monsod, 19afterciting thedoctrines in severalcases,we laid down the test to
determine whether certain acts constitute "practice oflaw,"thus:
Black defines "practice of law"as:
The renditionof services requiring theknowledgeand theapplicationoflegal principles and technique to serve
the interest of another with his consent. Itis not limitedto appearing incourt, or advising and assisting in the
conduct of litigation, but embraces the preparation ofpleadings, and other papers incident to actions and
special proceedings, conveyancing, the preparationoflegal instruments ofall kinds, and the giving ofall legal
advice toclients. Itembraces alladvice toclients andall actions takenfor them inmatters connected with the
law.
The practiceof lawis notlimitedto the conductofcases on court.(Land TitleAbstractand Trust Co. v. Dworken ,
129 Ohio St. 23, 193N. E. 650). Aperson is also considered to be in the practice oflaw when he:
. . . . for valuableconsideration engages inthebusiness ofadvising person, firms, associations or corporations as
to their right underthelaw,or appears in a representativecapacityas anadvocate in proceedings, pending or
prospective,before any court, commissioner,referee,board,body, committee, or commission constituted by
law or authorizedto settle controversies andthere, insuch representative capacity, performs any actor acts for
the purpose of obtaining or defending therights oftheir clients underthelaw.Otherwise stated, one who, in a
representative capacity,engages in the business ofadvising clients as to their rights under the law, or while so
engaged performs any act or acts either incourt or outsideofcourt for thatpurpose, is engaged in the practice
oflaw. (State ex. rel. Mckittrick v. C.S. Dudley and Co., 102 S. W. 2d 895, 340 Mo. 852).
This Court, in the case ofPhilippines Lawyers Association v. Agrava (105 Phil. 173, 176-177),stated:
The practiceoflawis notlimitedto the conductofcases or litigation in court; it embraces the preparation of
pleadings and otherpapers incident toactions and special proceedings, the management ofsuch actions and
proceedings on behalfofclients beforejudges and courts, and inaddition, conveying. In general, all advice to
clients, andall actiontaken for them in matters connectedwiththelaw incorporationservices, assessment and
condemnationservices contemplating an appearance before a judicial body, the foreclosure ofa mortgage,
enforcementofa creditor's claimin bankruptcy and insolvency proceedings, and conducting proceedings in
attachment,and inmatters or estateand guardianship have been held to constitute law practice, as do the
preparationanddrafting oflegalinstruments,wherethework doneinvolves the determination by the trained
legal mind ofthe legal effect offacts and conditions. (5 Am. Jr. p. 262, 263).
Practice oflaw under modern conditions consists inno smallpart ofwork performed outside ofany court and
having no immediate relation toproceedings incourt.It embraces conveyancing, the giving oflegal advice on a
large variety ofsubjects and the preparation andexecutionoflegalinstruments covering an extensive field of
business and trust relations and otheraffairs. Although thesetransactions may have nodirect connection with
court proceedings, they arealways subject tobecome involved inlitigation. They requirein many aspects a high
degree oflegalskill, a wide experiencewith menandaffairs,and greatcapacity for adaptation to difficult and
complex situations. Thesecustomary functions ofanattorney or counselor atlaw bear an intimate relation to
the administrationofjusticeby thecourts.No validdistinction, sofar as concerns the question set forth in the
order, canbe drawn betweenthat partofthework ofthelawyerwhich involves appearance in court and that
part whichinvolves adviceand drafting ofinstruments in his office. It is ofimportance to the welfare ofthe
public that thesemanifold customary functions beperformedby persons possessed ofadequate learning and
skill, ofsoundmoralcharacter,andacting at alltimes under theheavy trust obligations to clients which rests
upon all attorneys. (Moran, Comments on theRules o Court, Vol.3 [1973ed.], pp. 665-666, citing In Re Opinion
of the Justices [Mass], 194N. E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.]197 A.
139, 144).
The practiceoflaw, therefore,covers a widerangeofactivities in andout ofcourt. Applying theaforementioned
criteria to the case at bar, we agree with the perceptive findings and observations ofthe aforestated bar
associations that the activities ofrespondent, as advertised, constitute "practice oflaw."
The contention ofrespondent thatit merely offers legal support services can neither beseriously considered nor
sustained.Said propositionis beliedby respondent's own description oftheservices ithas been offering, to wit:
Legal support services basically consists ofgiving readyinformationby trained paralegals tolaymenandlawyers,
which are strictly non-diagnostic, non-advisory, through the extensive use of computers and modern
information technology in the gathering, processing,storage, transmission andreproduction ofinformation and
communication,such as computerized legal research;encoding andreproduction ofdocuments and pleadings
prepared by laymen or lawyers; documentsearch; evidencegathering; locating parties or witnesses to a case;
fact finding investigations; and assistanceto laymenin need ofbasic institutionalservices from government or
non-governmentagencies, likebirth,marriage,property,or business registrations;educational or employment
records orcertifications, obtaining documentation like clearances, passports, local or foreign visas; giving
information aboutlaws ofother countries thatthey may find useful, likeforeigndivorce, marriage or adoption
laws that theycan avail ofpreparatory to emigration to the foreign country, and other matters that do not
involve representationofclients incourt; designing andinstalling computersystems,programs, or software for
the efficient management oflaw offices,corporate legal departments, courts and other entities engaged in
dispensing or administering legal services. 20
While someofthe services being offeredby respondent corporationmerely involve mechanical and technical
knowhow, such as theinstallation ofcomputer systems and programs for the efficient management oflaw
offices, or thecomputerization ofresearch aids and materials, thesewill not sufficeto justify an exception tothe
general rule.](https://image.slidesharecdn.com/206361986-cases-ethics-150911132150-lva1-app6891/85/206361986-cases-ethics-8-320.jpg)
![In view of the foregoing considerations, this Commissionerrespectfully recommends the following penalty range
to be deliberated upon by the Board for imposition on Respondent: minimum penalty ofreprimand to a
maximumpenalty of four (4) months suspension.It is furtherrecommendedthat inaddition tothepenalty to be
imposed, a sternwarning be given to Respondent in that should he violate his undertaking/promise not to
handle any casein the futurewheretheComplainant would betheadverse party and/or should heagain usethe
title of"Judge"which wouldcreate an impression that he is still connected to the judiciary, a more severe
penalty shall be imposed on him by the Commission.
RESPECTFULLY SUBMITTED.
The IBP Board of Governors approved withmodification thereport and recommendation ofthe Investigating
Commissioner, thus:
RESOLVED to ADOPT and APPROVE, as itis hereby ADOPTED andAPPROVED,with modification, theReport and
Recommendation of the Investigating Commissioner ofthe above-entitled case, herein made part ofthis
Resolutionas Annex "A", and, finding therecommendation fully supported by the evidence on record and the
applicablelaws and rules, and considering Respondent’s violation ofRule 1.01 and Rule 3.01 ofthe Code of
ProfessionalResponsibility,Atty.RobertoRomanillos is hereby SUSPENDED from the practice oflaw for six (6)
months with a WARNING that should he violate his undertaking/promise a more severe penalty shall be
imposed against him.
Undoubtedly,respondent represented theinconsistent interests ofSJHAI, DCIas substituted by Lydia Durano-
Rodriguez and theMontealegres.Respondentwas admonishedyet hecontinuedto represent Durano-Rodriguez
against SJHAI.
It is inconsequential that petitioner never questioned thepropriety ofrespondent’s continued representation of
Lydia Durano-Rodriguez.The lack ofoppositiondoes not mean tacitconsent. As long as the lawyer represents
inconsistent interests of two (2) or moreopposing clients, he is guilty ofviolating his oath. Rule 15.03 ofthe
Code of ProfessionalResponsibilityspecifically mandates that a lawyer shall notrepresent conflicting interests
except by written consent ofall concerned given after a full disclosure. Incidentally, it is also misleading for
respondent to insist that he was exonerated in A.C. No. 4783.
We agree withtheIBP that respondent’s continued useofthetitle"Judge"violated Rules 1.01 and 3.01 ofthe
Code of ProfessionalResponsibilityprohibiting a lawyer fromengaging indeceitful conduct and from using any
misleading statement or claimregarding qualifications or legalservices. Thequasi-judicial notice he posted in
the billboards referring to himselfas a judge is deceiving. It was a clear attempt to mislead the public into
believing thattheorder was issued inhis capacity as a judge whenhe was dishonorably strippedoftheprivilege.
Respondentdidnot honorably retire fromthejudiciary. Heresigned from being a judgeduring the pendency of
Zarate v. JudgeRomanillos, wherehewas eventually foundguilty ofgrave and serious misconduct and would
have been dismissed from the service had he not resigned.
In that case, respondentwas found guilty ofillegalsolicitation and receipt ofP10,000.00 from a party litigant.
We ruled thus:
Considering theforegoing, respondentJudge RobertoB. Romanillos is herebyfound guilty ofgrave and serious
misconduct affecting his integrity and honesty. He deserves the supreme penalty ofdismissal. However,
respondent, inanobvious attemptto escapepunishment for his misdeeds, tenderedhis resignation during the
pendencyof this case. … Consequently,we arenow precluded from dismissing respondent from the service.
Nevertheless,theruling in Peoplev. Valenzuela (135 SCRA712[1985]), wherein the respondent judge likewise
resignedbeforethecasecould beresolved, finds application in this case.Therein itwas held that the rule that
the resignation or retirement ofa respondent judge in an administrative case renders the case moot and
academic, is not a hard and fast rule. …
…
ACCORDINGLY, in view ofouraforestatedfinding that respondentJudge Romanillos is guiltyofgraveand serious
misconductwhichwould havewarranted his dismissalfrom theservicehad henotresigned during thependency
ofthis case,and itappearing that respondenthas yet toapply for his retirement benefits and other privileges if
any; the Court, consistent withthepenalties imposed inValenzuela (supra.), hereby orders the FORFEITURE of
all leaveandretirement benefits andprivileges towhich herein respondent Judge Romanillos may be entitled
WITH PREJUDICEto reinstatement and/or reemployment in any branch or instrumentality ofgovernment,
including government-owned or controlled agencies or corporations.
SO ORDERED.10
The penalty imposed upon him in said caseincluded forfeitureofall leave and retirement benefits and privileges
to which he may be entitled with prejudice to reinstatement and/or reemployment in any branch or
instrumentality ofgovernment, including government-ownedor controlled agencies or corporations. Certainly,
the use of the title ‘Judge’ is one ofsuch privileges.
We have previously declared that the use oftitles such as "Justice"is reserved to incumbent and retired
members oftheSupreme Court, theCourt ofAppeals andtheSandiganbayanandmay notbe used by any other
official oftheRepublic, including those given the rank of"Justice".11 By analogy, the title "Judge"should be
reserved only to judges, incumbentand retired, andnot tothosewhowere dishonorably discharged from the
service. As correctlypointed out by the Investigating Commissioner,theright to retain and usesaid title applies
only to the aforementioned members ofthebench and noother,and certainly notto thosewho wereremoved
or dismissed from the judiciary, such as respondent.
Membershipin the legal profession is a special privilege burdened with conditions.12 It is bestowed upon
individuals who arenotonly learned inlaw, but also knownto possess good moral character.13 Lawyers should
act and comport themselves with honesty and integrity ina manner beyond reproach, in order to promote the
public’s faith in the legal profession.14
To say that lawyers must at alltimes upholdandrespect the lawis to statetheobvious, butsuch statement can
never be overemphasized. Considering that,"of allclasses andprofessions, [lawyers are]mostsacredly bound to
uphold thelaw,"it is imperative that they live by the law. Accordingly, lawyers who violate their oath and
engage in deceitful conduct have no place in the legal profession.15
Disbarment is the most severeform ofdisciplinary sanction. We are mindful that the power to disbar must
always be exercised with great caution,for onlythemost imperativereasons,16 andin clearcases ofmisconduct
affecting thestanding andmoralcharacter ofthelawyeras anofficer ofthecourtandas a member ofthebar.17
This is not respondent’s first infraction as an officerofthe court and a member ofthelegal profession. He was
stripped ofhis retirement benefits and other privileges inZarate v. Judge Romanillos.18 InA.C. No. 4783, he got
off lightly with just an admonition.Considering his previous infractions, respondentshould haveadhered to the
tenets ofhis profession with extra fervor and vigilance. He did not. On the contrary, he manifested undue
disrespectto ourmandate andexhibiteda propensity toviolatethelaws. Heis thus unfitto discharge the duties
ofhis office and unworthy ofthetrust and confidencereposed onhimas anofficer ofthecourt. His disbarment
is consequently warranted.
Section 27, Rule 138 ofthe Revised Rules ofCourt provides:
SEC. 27. Disbarmentor suspension ofattorneys by Supreme Court; grounds therefor. –Amember ofthe bar
may be disbarred orsuspended fromhis office as attorney by theSupremeCourt for any deceit, malpractice, or
other gross misconduct in such office, grossly immoral conduct, or by reason ofhis conviction ofa crime](https://image.slidesharecdn.com/206361986-cases-ethics-150911132150-lva1-app6891/85/206361986-cases-ethics-12-320.jpg)
![This Court finds that the CourtofAppeals did not commita graveabuse ofdiscretionwhen itdenied petitioners'
motion for extensionof time tofilea motion for reconsideration, directed entry ofjudgment and denied their
motion for reconsideration. It correctly applied the rulelaiddownin Habaluyas Enterprises, Inc. v. Japzon, [G.R.
No. 70895,August 5,1985,138 SCRA 461, that the fifteen-day period for appealing or for filing a motion for
reconsiderationcannot beextended.In its Resolutiondenying themotion for reconsideration, promulgated on
July 30, 1986 (142 SCRA 208), this Court en banc restated and clarified the rule, to wit:
Beginning onemonthafter thepromulgation ofthis Resolution, the ruleshallbe strictly enforced that no motion
for extensionof timetofilea motion for reconsideration maybe filedwith theMetropolitan or Municipal Trial
Courts, theRegional TrialCourts, andtheIntermediateAppellateCourt. Such a motionmay befiled only incases
pending with the SupremeCourt as thecourt oflast resort, which may in its sound discretion either grant or
deny the extension requested. (at p. 212)
Lacsamana v. Second SpecialCases Division oftheintermediateAppellateCourt,[G.R. No. 73146-53, August 26,
1986, 143SCRA 643], reiterated the rule and went further to restate and clarify the modes and periods of
appeal.
Bacaya v. Intermediate Appellate Court, [G.R. No. 74824,Sept. 15, 1986,144 SCRA161],stressedtheprospective
application of said rule, and explained the operation ofthe grace period, to wit:
In other words, there is a one-month grace period from the promulgation on May 30, 1986 ofthe Court's
Resolutionin the clarificatoryHabaluyas case, orup to June30, 1986, withinwhichtherulebarring extensionsof
time to file motions for new trial or reconsideration is, as yet, not strictly enforceable.
Since petitioners herein filedtheir motionfor extensionon February 27, 1986, it is still within the grace period,
which expired on June 30, 1986, and may still be allowed.
This grace periodwas alsoapplied inMissionv. Intermediate Appellate Court[G.R. No.73669, October28,1986,
145 SCRA 306].]
In the instant case, however, petitioners'motion for extension oftime was filed on September 9, 1987, more
than a year after theexpiration ofthe graceperiod onJune 30,1986.Hence, itis no longer within the coverage
ofthe grace period.Considering thelength oftimefrom theexpirationofthe grace periodto thepromulgation
ofthe decision of theCourt ofAppeals on August25, 1987, petitioners cannot seek refuge in the ignorance of
their counselregarding said rule for their failureto file a motion for reconsideration within the reglementary
period.
Petitioners contend that the ruleenunciatedin the Habaluyas caseshould not bemade to apply to the case at
bar owing to the non-publication oftheHabaluyas decision in the Official Gazette as ofthe time the subject
decision of theCourt of Appeals was promulgated.Contrary topetitioners'view, there is no law requiring the
publication of SupremeCourt decisions in the Official Gazettebeforethey canbe binding and as a condition to
their becoming effective. Itis thebounden duty ofcounsel as lawyer in active law practice to keep abreast of
decisions of theSupreme Courtparticularly where issues have been clarified, consistently reiterated, and
publishedin the advancereports ofSupremeCourt decisions (G. R. s) and in suchpublications as the Supreme
Court Reports Annotated (SCRA) and law journals.
This Court likewisefinds that the CourtofAppeals committed nograve abuseofdiscretion inaffirming the trial
court's decision holding petitioner liableunder Article 2190 oftheCivilCode, which provides that "theproprietor
ofa building orstructure is responsiblefor thedamageresulting from its totalor partial collapse, ifit should be
due to the lack of necessary repairs.
Nor was thereerror inrejecting petitioners argument that privaterespondents had the "last clear chance"to
avoid the accident if only theyheeded the. warning tovacatethetailoring shop and , therefore,petitioners prior
negligence should bedisregarded, since thedoctrineof"last clear chance,"whichhas been appliedto vehicular
accidents, is inapplicable to this case.
WHEREFORE, in view ofthe foregoing, the Court Resolved to DENYthe instant petition for lack ofmerit.
16. ABAD V. BLEZA
Two administrativecases were filed against Judge Ildefonso Bleza ofthe Regional Trial Court, Branch XIX at
Bacoor, Cavite, thefirst whenhewas contemplating optional retirement due to poor health and the second,
after he had filed his application.Bleza's entitlement to disability retirementbenefits depends on theresolution
ofthese cases.
On October 15,1984, LieutenantColonelGregorio Abad ofthePhilippine Constabulary chargedJudge Bleza with
rendering a decision with malice, ignorance ofthe law, graveabuse ofdiscretion, and misconductas a judge. The
complaint is docketed as Adm. Case No. R-227-RTJ.
After a cockfightheld at the Imus, Cavitecockpit onJuly 19, 1981, complainantAbadand onePotencianoPonce
had a verbaltusslewhichculminated in Abad's being shot in the chest by Francisco Sabater, Jr., an alleged
bodyguard ofPonce. Sabater, was charged with frustrated homicide and Potenciano Ponce with attempted
homicide before the Regional Trial Court where the respondent presides.
The prosecutionalleged thatduring the aforementioned cockfight,Abad's gamecock lost to the one owned by
Ponce. Aremark byPoncethat complainant's cock was weak and lackedmorecare(mahina, kulang sa alaga) led
to a heated argument betweenthetwobut theywere pacifiedby certain local officials Abad then went to the
cockpit carinderia to takea snack. Poncefollowedhimshouting, "Whereis theColonel, walang Colonel Colonel
sa akin,papatayin ko yan,babarilin ko yan."As Poncewas approaching and holding a gun aimed at Abad, the
latter grabbed a glass and hurled it at Ponce who was hit at the head, causing him to fall down in a sitting
position. While thus seated, Ponce's gun was taken by his bodyguard, Francisco Sabater. Jr. Abad was then
advised by a certainCaptain Diaz to go home.Outside thecockpit gate, bodyguards ofPonce approached Abad
and engaged him ina fistfight. At this juncture, FranciscoSabater, Jr.,upontheorder ofPonce, firedsix (6) shots
at Abad, thelast onehitting him onthechest,theslug exiting attheback ofhis right shoulder. Abad was rushed
to the CaviteMedicalCenter in CaviteCity whereheunderwent an operation.On the4thdayhe was transferred
to the V. Luna Hospital at Quezon City where he was again operated on-to remove the slug imbedded in his
back. He stayed in the hospital for 123 days.
Sabater and Ponce presented a contrary version ofthe incident.
Potenciano Poncetestified thaton his way out ofthecockpit,Abaduttered obscenities against him which he
answeredin kind. However, common friends like Mayor Jamir ofImus, Barangay Captain Enrique Diaz, and
Cavite City Fiscal Gabriel pacifiedthem. After cooling off, Ponce decided to go home but on his way out ofthe
main gateofthecockpit, Abad, whowas drinking beer at a carinderia, hurled invectives at him. Ponce then
approached Abad toask for an explanation.Abadhithimon the forehead with a bottle ofbeer causing him to
fall down unconscious. Upon regaining consciousness, he was brought to the Cavite Medical Center. Ponce
denied having aimed his gun at Abad, insisting that his gun was never taken out of its holster. He also
contradictedthetestimony ofAbadthat his permit to carry his firearm outside ofhis residence was no longer
valid on July 19, 1981, stressing that his permit expired on November 18, 1981.
Francisco Sabater, Jr.testifiedthat he was at the cockpit that same afternoon as a bet taker or casador. He
declared that at about 5:30in thatafternoon, heheard Abad utter the following words at Ponce: "Putang-ina
mo, Pare pipilipitin ko ang leeg mo."Poncereacted byapproaching Abad who then took hold ofa beer bottle
from the table and hurled it at Ponce hitting him on the forehead. Ponce fell down. Thereupon, Francisco
Sabater, Jr., took thegun ofPonceand as Abadrefused tobe pacified, hewent outside thecockpit and firedthe](https://image.slidesharecdn.com/206361986-cases-ethics-150911132150-lva1-app6891/85/206361986-cases-ethics-28-320.jpg)
![his dismissal fromtheFireand RescueDivisionofthe MIAA; thatbecause he did not accede to Cruz'demand,
the latter filedagainst him an administrative casefor inefficiency and serious neglect ofduty, insubordination,
absenteeism, and habitualtardiness;that because ofthatbaseless complaint, hehas suffered embarrassment,
mental shock,anxieties, sleepless nights, and loss ofappetite. In his answer, Cruz denied knowledge ofthe
administrative case between Pacifico Ocampo and Ricardo Ortiz and averred that Ocampo's inefficiency,
absenteeism, and tardiness are substantiated by company records.
After trial,therespondent judgeruledin favor ofPacifico Ocampo. Heorderedcomplainant Cruz to pay Ocampo
the sum of P150,000.00for moral damages, P30,000.00for examplary damages and P5,000.00 for attorney's
fees.
The administrativecomplaint filed by Cruz alleged that the respondent judge disregarded the defendant's
incontrovertible evidence and knowingly rendered a wrong judgment against him.
In his comment, the respondentjudge allegedthat the decision,subjectmatterofthis case, is pending appeal
before the IntermediateAppellateCourt.This allegationwas not refuted bythecomplainant. Thus, any action
we can takeinthis casewouldbe premature.For only aftertheappellatecourt holds in a final judgment that a
trial judge's alleged errors werecommitteddeliberatelyand in badfaith may a charge ofknowingly rendering an
unjust decisionbe levelled againsthim. This is the pronouncementofthis Courtin several cases (See Garcia v.
Alconcel,111SCRA 178;Sta. Maria v. Ubay,87 SCRA179; and Gahol v. Riodique,64 SCRA494). In the meantime,
the presumption is that official duty was regularly performed.
WHEREFORE, IN VIEW OF THE FOREGOING, the administrative cases are hereby, DISMISSED. The
recommendationdated June6, 1984 submittedby theCourt Administrator that the respondentjudge beretired
from office due to hypertensiveheart disease andcongestive heart failure with cardiomegally (enlarged left
ventricle) under Permanent Total Disability, as endorsed by Dr. Antonio Valero of this Court, is hereby
APPROVED.
CANON 6
17. PENTICOSTES VS. IBAÑEZ
Sometimein 1989,Encarnacion Pascual,thesister-in-law ofAtty. Prudencio S. Penticostes (herein complainant)
was sued for non-remittance ofSSS payments. The complaint was docketed as I.S. 89-353 and assigned to
Prosecutor Diosdado S. Ibañez (herein respondent) for preliminary investigation. In the course of the
investigation,Encarnacion Pascual gave P1,804.00to respondentas paymentofherSocial Security System (SSS)
contributions in arrears. Respondent, however, did not remit the amount to the system. The fact ofnon-
payment was certified to by the SSS on October 2, 1989.
On November 16, 1990 or overa yearlater, complainantfiled withtheRegionalTrialCourt ofTarlac a complaint
for professionalmisconduct againstIbañez dueto the latter's failure toremitthe SSS contributions ofhis sister-
in-law. The complaint allegedthat respondent's misappropriation ofEncarnacion Pascual's SSS contributions
amounted to a violationof his oath as a lawyer. Sevendays later, or on November 23, 1990, respondent paid
P1,804.00 to the SSS on behalfofEncarnacion Pascual.
In the meantime, the case was referred to the Integrated Bar ofthe Philippines -Tarlac Chapter, the court
observing that it had nocompetence toreceiveevidence on the matter. Upon receipt ofthe case, the Tarlac
Chapter forwarded the same to the IBP's Commission on Bar Discipline.
In his defense, respondent claimed that his act ofaccommodating Encarnacion Pascual's request to make
payments totheSSS didnot amount to professional misconduct but was rather an act ofChristian charity.
Furthermore,he claimed thattheactionwas moot andacademic, theamount ofP1,804.00having already been
paid by him totheSSS. Lastly, hedisclaimed liabilityon theground that the acts complained ofwerenot doneby
him in his capacity as a practicing lawyer but on account ofhis office as a prosecutor.
On September 3,1998, theCommissionrecommendedthat the respondent be reprimanded, with a warning
that the commission of the same or similar offense would be dealt with more severely in the future. On
November 5,1998, theBoardofGovernors oftheIntegratedBarofthe Philippines adopted and approved its
Commission's recommendation.
This Court adopts therecommendation oftheIBPand finds respondent guiltyofprofessionalmisconduct. While
there is nodoubt that payment ofthecontested amounthad beeneffected totheSSS on November23,1990, it
is clear, however, that the same was made only after a complaint had been filed against respondent.
Furthermore,theduties ofa provincial prosecutor donot include receiving money from persons with official
transactions with his office.
This court has repeatedlyadmonishedlawyers thata high senseofmorality, honesty and fairdealing is expected
and required ofa memberofthe bar. Rule 1.01 ofthe Code ofProfessional Responsibility provides that "[a]
lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct."
It is glaringlyclear thatrespondent's non-remittance for over one year ofthe funds coming from Encarnacion
Pascualconstitutes conduct in gross violationoftheabovecanon. Thebelated payment ofthe same to the SSS
does not excusehis misconduct. While Pascualmay not strictly be considered a client ofrespondent, the rules
relating to a lawyer's handling offunds ofa clientis applicable. InDaroy v. Legaspi, 1 this court held that "(t)he
relation between an attorney andhis clientis highly fiduciary in nature...[thus]lawyers are bound to promptly
account for money or property received by them on behalfoftheir clients and failure to do so constitutes
professionalmisconduct."The failure ofrespondentto immediately remit theamount to theSSS gives risetothe
presumption thathehas misappropriatedit for his own use. This is a gross violation ofgeneral morality as well
as professional ethics; it impairs public confidence in the legal profession and deserves punishment. 2
Respondent's claimthathe may not beheld liable because he committed such acts, not in his capacity as a
private lawyer, but as a prosecutor is unavailing.Canon6 oftheCodeofProfessional Responsibility provides:
These canons shall apply to lawyers in government services in the discharge oftheir official tasks.
As statedby theIBPCommitteethat draftedtheCode,"a lawyer does not shedhis professionalobligations upon
assuming publicoffice. In fact, his publicofficeshould makehim moresensitive tohis professional obligations
because a lawyer's disreputable conduct is more likely to be magnified in the public's eye. 3 Want ofmoral
integrity is to be more severely condemned in a lawyer who holds a responsible public office. 4
ACCORDINGLY, this CourtREPRIMANDS respondentwith a STERN WARNING thatthecommission ofthesame or
similar offense will be dealt with more severely in the future.
LETcopies ofthis decision bespread inhis records and copies befurnished the Department ofJustice and the
Office ofthe Bar Confidant.
SO ORDERED.](https://image.slidesharecdn.com/206361986-cases-ethics-150911132150-lva1-app6891/85/206361986-cases-ethics-30-320.jpg)
![exceeded thetotalnumber ofvoters whoactually voted inthose precincts during the May 8, 1995 elections,
renders thedefenseof honest mistakeor oversight due tofatigue, as incredible and simply unacceptable.22
Indeed, whatis involvedhere is not justa case ofmathematical errorin the tabulation ofvotes per precinct as
reflected in theelection returns and thesubsequententry oftheerroneous figures in one or two SoVs23 but a
systematicschemeto padthevotes ofcertainsenatorial candidates at the expense ofpetitioner in complete
disregard of thetabulation in the election returns. Acursory look at the evidence submitted by petitioner
reveals that, inatleast24 SoVs involving 101 precincts,thevotes for candidateEnrile exceeded the number of
voters who actually voted inthesaid precincts and,in 18SoVs, returns from 22 precincts were-tabulated twice.
In addition,as theCourt noted inPimentel, thetotal number ofvotes creditedto each ofthe seven senatorial
candidates in question, as reflected in the CoC, markedly differ from those indicated in the SoVs.24
Despitethefact that thesediscrepancies, especially the doublerecording ofthereturns from 22 precincts and
the variationin the tabulation ofvotes as reflected in the SoVs and CoC, were apparent on the face ofthese
documents andthat thevariationinvolves substantial number ofvotes, respondents nevertheless certified the
SoVs as true and correct. Their acts constitute misconduct.
RespondentLlorente's contentionthathe merely certified thegenuineness and due execution ofthe SoVs but
not their correctness is belied by the certification which reads:
WE HEREBY CERTIFY that the foregoing Statement ofVotes by . . . [p]recinct is true and correct. IN WITNESS
WHEREOF, we sign thesepresents at the City/Municipality of___________Province of________this _______
day ofMay, 1995. (Emphasis added)
Nor does thefactthatthecanvassing was opento the publicandobserved by numerous individuals precludethe
commission of acts for which respondents areliable. Thefactis thatonlythey had access to the SoVs and CoC
and thus had the opportunity to compare them and detect the discrepancies therein.
Now, a lawyer who holds a government position maynot bedisciplined as a memberofthebar for misconduct
in the dischargeof his duties as a government official.25 However, ifthemisconduct alsoconstitutes a violation
ofthe Code of ProfessionalResponsibility orthelawyer's oath oris ofsuch character as to affecthis qualification
as a lawyeror shows moral delinquency onhis part,such individualmay bedisciplined as a member ofthe bar
for such misconduct.26
Here, by certifying as trueand correcttheSoVs in question, respondents committed a breachofRule1.01 ofthe
Code whichstipulates thata lawyer shallnot engagein "unlawful, dishonest, immoralor deceitful conduct."By
express provisionof Canon 6,this is madeapplicable to lawyers in the government service. In addition, they
likewise violated their oath ofoffice as lawyers to "do no falsehood."
Nowhere is the-needfor lawyers toobservehonesty both in their private and in their public dealings better
expressed in Sabayle v. Tandayag27 in which this Court said:
There is a strong publicinterest involved inrequiring lawyers tobehave at alltimes in a manner consistent with
truth and honorit is importantthatthecommoncaricaturethatlawyers by and large do not feel compelled to
speak the truth and to act honestly, should not become a common reality . . .28
It may be addedthat, as lawyers in the government service, respondents were under greater obligation to
observe this basic tenet ofthe profession because a public office is a public trust.
Third. Respondents'participationin the irregularities herein reflects on the legal profession, in general, and on
lawyers in governmentin particular. Such conductin the performanceoftheir official duties, involving no less
than the ascertainment ofthe popular will as expressed through the ballot, would have merited for them
suspensionwere itnotfor thefactthatthis is their firstadministrativetransgression and,in the caseofSalayon,
after a long publicservice.29Under thecircumstances, a penalty offine in theamountofP10,000.00 for each of
the respondents should be sufficient.
WHEREFORE, the Court finds respondents Antonio M. Llorente andLigaya P.SalayonGUILTYofmisconduct and
imposes on eachofthema FINEintheamount ofP10,000.00with a WARNINGthat commission ofsimilar acts
will be dealt with more severely.1âwphi1.nêt
SO ORDERED.
21. REPUBLIC V. CA (1998)
his is a petitionfor review on certiorariofthe decision 1 ofthe Court ofAppeals in CA-G.R. SP No. 43524. The
facts are as follows:
On February 10, 1992, private respondent Tetro Enterprises, Inc. fileda complaint,denominated "for recovery of
possession and damages,"against petitioner, the Republic ofthe Philippines, represented by the Regional
DirectorofRegion IIIofthe Department ofPublic Works and Highways (DPWH). Thecomplaint was assigned to
Branch 41 ofthe Regional Trial Court (RTC) ofSan Fernando, Pampanga, presided over by respondent Judge
Pedro M. Sunga,Jr. 2TetroEnterprises alleged that it was the owner ofa piece ofland, consisting of12,643
square meters, in San Fernando, Pampanga, registered in its name under Transfer Certificate ofTitle No.
283205-R; that the land hada "probable value"ofP252,569.00; that sometime in 1974, petitioner, without
having acquired theproperty throughexpropriation or negotiatedsale,constructed a road thereon; and that,
despitedemands by privaterespondent,petitioner refused to return thelandtaken and to pay the rent for the
use ofthe samesince1974. Privaterespondent,therefore, prayedthat petitioner be ordered toreturnthe land
to it in its "original state"and to closetheroad constructed thereon; and to pay actual damages in the amount
ofP100,000.00, rentals for the use ofthe land at P200.00 a month, in the total amount ofP40,800.00, and
attorney's fees.
Petitioner filed an answer 3 in duetime, alleging that privaterespondent hadno causeofaction because it had
not exhaustedadministrativeremedies beforefiling its complaintand thatthecase was actually a suit against
the Statewithout its consent. Petitioner allegedthat it constructed part ofthe Olongapo-Gapan Road on the
subjectproperty withtheknowledgeand consent ofprivaterespondent which infactentered into negotiations
regarding thepriceofthe land; that petitioner was willing to pay the fair market value ofthe property at the
time oftaking, plus interest, but, instead ofaccepting its offer,privaterespondent filedthepresent complaint;
and that the return ofthe land to private respondent was no longer feasible.
Upon agreement ofthe parties, the trialcourt issued an order, datedNovember 25, 1994,4 creating a board of
commissioners "to determine theactualvalueoftheproperty subjectofthis casewhich shall be a basis for an
amicablesettlement by the parties or the decision tobe rendered by this Court, as thecasemay be."The board
was composed ofEller V. Garcia, a real estate broker, representing private respondent Tetro Enterprises,
Abraham Sison, ProvincialAssessorofPampanga,representing petitioner,andJuanP. Limpin, Jr., clerk ofcourt
ofthe RTC, as chairman.
On December 8,1995, theboardrendered a report5 recommending that the price ofthe subject property be
fixed between P4,000.00 andP6,000.00persquaremeter as "thejustand reasonableprice"to be paid toprivate
respondent. Theboardfound that while the lot was, at the timeoftaking, devotedto sugarcane, it hadbecome
highly commercialsince theconstructionofthe Olongapo-Gapan Road resulting in the opening ofresidential
subdivisions and the construction ofcommercial buildings.
Based on the report ofthe board,theRTC rendered a decision 6 on September 2, 1996 fixing the price ofthe
land at P6,000.00 per square meteror thetotal amountofP75,858,000.00 for 12,643 square meters. The RTC
noted that a lot withinthevicinityofthe land inquestion hadbeen sold at P10,000.00 per square meter and](https://image.slidesharecdn.com/206361986-cases-ethics-150911132150-lva1-app6891/85/206361986-cases-ethics-46-320.jpg)
![that, as Provincial Assessor AbrahamSisonsaid, the government stood to benefit from the acquisition ofthe
property because it was "ofgreat use."
A copy of the decision was receivedby petitioner's counsel, the OfficeoftheSolicitor General, on September 9,
1996.
On September 17, 1996, the OSG moved for a reconsideration, contending that the RTC erred in fixing the
compensation for the taking oftheland on the basis ofits current marketvalueofP6,000.00 per square meter
when the basis shouldbe its priceat thetime oftaking by the governmentin 1974. Noproofofservice ofa copy
ofthe motion was, however, attached to the motion as required by Rule 15, §6. 7
In its order8 dated October 3, 1996, the RTC denied petitioner's motion, finding it to be without merit and, in
addition, tobe a "mere scrapofpaper"for having been filedin violation ofRule 15, §6 ofthe Rules ofCourt. A
copy ofthe order was received by the OSG on December 6, 1996.
Meanwhile,on December 3, 1996,privaterespondent Tetro Enterprises movedfor theexecutionofthe decision
in its favor. In its order dated December 23, 1996, the RTC granted the motion. On December 13, 1996,
petitionerfiled a notice of appeal,but thenoticewas denied bythecourt onJanuary 7, 1997 ontheground that
its decision of September 2, 1996 had become final and executory.
Petitioner filed a petition for certiorari in the Court ofAppeals to set a side the orders ofOctober 3, 1996,
December 23, 1996, and January 7, 1997 ofthe RTC. Its petition was, however, dismissed by the Court of
Appeals in its decision of June 9, 1997. In its resolution dated August 6, 1997, 9 the appellate court denied
reconsideration of its decision.
The Court of Appeals agreedwith theRTC thatbecause ofpetitioner's failure to attach proofofservice ofits
motion for reconsideration, themotion was nothing buta merescrapofpaper which did not toll the period of
appeal, with theresult that thetrial court's decision became final.Consequently, thetrial court correctly denied
petitioner's noticeof appeal. Petitionersubmittedto the CourtofAppeals a registry return card showing that
private respondent's counselhadreceived a copy ofits motion for reconsideration onSeptember 24, 1996, but
the Court of Appeals considered this to be of"little moment"for the reason that the proofofservice should
have been presented to the RTC and not to the appellate court for the first time. Concluding, the Court of
Appeals held:
[I]n a very realsense, petitioner's present predicament is ofits own making. Consider: counsel for the petitioner
did not a) append the registry return receipt and the affidavit of service, if one has been prepared, to
petitioner's motion for reconsideration; b) at any timeapprisethelowercourt ofthesending, ifthis bethecase,
ofa copy of the motionfor reconsiderationto Atty. Cruz-Ducut; c) appear at thehearing on the date he set for
the considerationof themotionfor reconsideration; d) oppose,despite notice, privaterespondent's motion for
execution;ande) seek reconsideration oftheorder disapproving petitioner's notice ofappeal, knowing pretty
well thata special civil action for certiorari is available onlywhen thereis no other plain,speedy and adequate
remedy in the ordinary courseoflaw. Petitionerthus cannotlay blameon respondent judge's doorstep for the
way the latter disposed ofthe incidents obtaining in this case.
Hence, this petition. Petitioner contends that —
THE COURT OF APPEALS COMMITTED GRAVE ERROR WHEN IT RIGIDLY AND STRICTLY APPLIED THE RULES OF
PROCEDURE AGAINST HEREIN PETITIONER WHICH, IF NOTCORRECTED, WOULD RESULTIN AMISCARRIAGEOF
JUSTICETO THE GREAT AND IRREPARABLEDAMAGETO THE GOVERNMENT.
Petitioner argues that ithad substantially complied with the requirement ofnotice to the adverse party as
shown by theregistry return card whichit submitted to the Court ofAppeals. This card shows that a copy of
petitioner's motion for reconsideration was sent by registered mail to private respondent's counsel, Atty.
Zenaida G. Cruz-Ducut, on September 18, 1996.
Petitioner furthercontends that ithas a meritorious defense because the value ofthe land taken should be
based not on its current market value but on its value at the time oftaking by the government in 1974.
Petitioner, therefore,prays thatthedecision ofthe CourtofAppeals be setasideand thecase be remanded to
the RTC for determinationofthe amountofjust compensation dueprivaterespondent"in accordance with law
and settled jurisprudence."
On the other hand, privaterespondentargues that the decision ofthe Court ofAppeals, holding petitioner's
motion for reconsiderationto bea merescrap ofpaper because itcontained no proofofservice ontheadverse
party, is in accordancewith the rulings ofthis Court. Anent petitioner's contention that the compensation for
the taking ofthe property should be based on its value at the time oftaking in 1974 and not on its current
market value,privaterespondent argues that the basis ofcompensation is nottheissuein this case. At any rate,
it is contendedthat thecases invoked by petitionerdo notapply since this caseis not one for expropriation but
one for recovery ofpossessionandfor damages. Moreover, private respondentargues that the government is
estopped fromquestioning the trialcourt's valuationbecauseit is based on therecommendation oftheboardof
commissioners in which petitioner was represented.
The petition is well taken.
There is no questionthatpetitioner's motionseeking reconsideration ofthe decision ofthe RTC did not have
attachedto itproofthat a copy thereofhad beenserved ontheadverse party as required by Rule 15, §6 ofthe
Rules ofCourt. In fact,it appears that, at the timethemotion was filed, no copy ofthesamehadbeenserved on
private respondentbecausepetitioner actually sent itto private respondent's counsel, Atty. Zenaida G. Cruz-
Ducut, only on September 18, 1996, 10 i.e, the day after the motion had been filed.
Nonetheless, considering thequestionraisedin the appealofthegovernment and the amount involved in this
case, we think the Court of Appeals should have considered the subsequent se rvice of the motion for
reconsiderationto bea substantial compliancewith therequirement in Rule 15, §6.In DeRapisura v. Nicolas, 11
the movantalso failed toattach to his motionfor reconsideration proofofserviceofa copy thereoftotheother
party. Nonetheless, this Courtheld the failurenotfatalas theadverseparty hadactuallyreceived a copy ofthe
motion andwas in fact present in courtwhen themotion was heard. Itwas held thatthedemands ofsubstantial
justice were satisfied by the actual receipt ofsaid motion under those conditions.
In People v.Leviste, 12 this Court heldit was graveabuse ofdiscretionfor thetrial courtto deny the motion for
postponementoftheprivateprosecutoreven thoughno copy ofthemotion had been servedon the accused, in
view ofthe fact that the prosecution was not available on the date ofthe trial. No substantial right ofthe
accused was impaired. On theotherhand,it was importantthat thecasebedecidedon the merits rather than
dismissedon a technicality. Theaccused should realize that postponements are part and parcel ofour legal
system, it was held.
In Azajar v. CourtofAppeals, 13thedefendantfiled a motionto dismiss withoutnoticeofhearing to theplaintiff
as required by Rule15,§4. As a result,theperiod for filing his answerexpired and he was declared in default.
Judgment by default was subsequentlyrendered againsthim. The Intermediate Appellate Court set aside the
decision after finding that defendant's reasons for his failure to set his motion for hearing was not "utterly
without plausibility."This circumstance, together with thefactthat defendant had meritorious defenses which,
iftrue, coulddefeat the plaintiffs claim,in the judgment oftheIAC, justified setting asidethedecisionofthetrial
court. On appeal, the Court sustained the ruling ofthe Intermediate Appellate Court.
In this case, Atty. Cruz-Ducut actually receiveda copy ofthe motion on September 24, 1996, days before the
October 2, 1996hearing. It is contended, however, that Atty. Cruz-Ducut ceased to be private respondent's](https://image.slidesharecdn.com/206361986-cases-ethics-150911132150-lva1-app6891/85/206361986-cases-ethics-47-320.jpg)
![counselon September 18, 1996and service ofpetitioner's motion shouldhave been madeonAtty. Restituto M.
David, its other counsel.
This allegation is not true. The records show that at the time she received a copy of the motion for
reconsiderationon September24,1996, Atty.Cruz-Ducut was still privaterespondent's counsel ofrecord. She
withdrew as counsel only on September 30, 1996. 14 There was thus effective service ofthe motion for
reconsideration on private respondent.
Indeed, as muchas possible,cases should bedeterminedon themerits, after full opportunity to all parties for
ventilation of their causes and defenses, ratherthan ontechnicality orsomeprocedural imperfections. In that
way, the ends of justicewouldbe betterserved.In Republic v. CourtofAppeals,15theSolicitor General filedthe
record on appeal sixdays late. This Court suspended therules onperfection ofappeal as its application would
result in the loss to the State ofclose to 300 hectares ofprime sugar land which a private individual had
apparently succeeded in registering in his name through fraudulent misrepresentation and machination.
This is not totoleratecarelessness or negligence on the part ofgovernment lawyers. But one thing is taking
disciplinary action against them. Another is protecting vital government interests which should not be
jeopardizedthroughtheneglectofthoseappearing for it whenthis canbe donewithout adverse results to the
private parties. These considerations lead us toconcludethatthetrial courtshould haveexercisedits discretion
in this case infavor of thegovernment. Theamount involved — P75,858,000.00 — plus theprima facie merit of
the government's appealthat, in accordance withtherulings 16 ofthis Court, the value ofthe property should
be basedon its priceat thetime oftaking oftheproperty in 1974 and not on its current market price, should
have giventheRTC pause andwithout necessarily reconsidering its ruling that the measure ofcompensation
should bethecurrent marketvalue, shouldhavecausedit togiveduecourseto theappeal. This case presents
an aspect of the problem of compensation absent from the decided cases, namely, the presence ofan
agreement of the parties to have "the actual value ofthe property"determined by a board, on which the
government was represented, to be used by the court in fixing the compensation for the land taken. This
considerationmay notnecessarily warranta differentruling but itdoes suggest a necessity: that ofhaving the
merits of petitioner's appeal decided by the appellate court.
WHEREFORE, the decision oftheCourt ofAppeals is REVERSED and the Regional Trial Court ofSan Fernando,
Pampanga (Branch 41) is ORDERED togiveduecourse topetitioner's appealfrom the decision in Civil Case No.
9197.
22. IGOY VS. SORIANO
As an officer of thecourt,it is the duty ofa lawyer to uphold thedignityandauthority ofthe court to which he
owes fidelity according totheoath hehas taken. Itis his foremostresponsibility "to observe and maintain the
respectdueto the courts ofjusticeand judicialofficers."1 Arrogating untooneself, as inthis case, the mantle of
a Justice of the Highest Court of the land for thepurposeofextorting moneyfrom a party-litigantis anultimate
betrayal of this duty whichcannotand should never be countenanced, because "[i]t is this kind ofgross and
flaunting misconducton thepartofthosewho arechargedwith theresponsibilityofadministering the law and
rendering justice that so quickly and surely corrodes the respect for the law and the courts without which
government cannot continue and that tears apart the very bonds ofour polity."2
ComplainantDoroteo A. Igoy is one ofthepetitioners inG.R.No. 141843, entitled "Heirs ofGavino Igoy,et al. v.
Mactan Shangrila Hotel".3 In a letter-complaintdated October 8, 2000,4 written in the Cebuano dialect and
addressed totheChief Justice, complainant allegedthat whiletheaforesaid case was still pending before the
Court ofAppeals, hetriedto look for a person intheSupreme Court who may assist him in obtaining justice.
Sometimein July 1, 1999, a friend introduced complainant to a certain "Justice"ofthe Supreme Court. He
narrated tothesaid Justicethehistory oftheir case.In turn, the saidJustice askedfor and receivedfrom him the
sum ofP20,000.00.However, thesaidJustice remindedcomplainant thathecould offerno help while the case
was pending before the Court ofAppeals.
In February 2000, they received an unfavorable decision from the Court of Appeals. Thus, complainant
immediately visited thesaid Justiceathis office in theSupremeCourt to informhimofthedecision ofthe Court
of Appeals. The Justice offered to prepare the petition for review to be filed with the Supreme Court.
Complainantsubsequently met the said Justice at the Max's Restaurant, where the latter turned over the
prepared petition for review. In considerationtherefor, the Justice asked for an additional P20,000.00. Since
complainant did not have that amount ofmoney with him at that time, he undertook to send the same by
courier as soon as hearrives inCebu. Complainant asked for the said Justice's complete name and addre ss,
which he readily gave as: Atty. Gilbert Soriano, 22Melon Street, Gatchalian Subdivision, Phase 3-13, Las Piñas
City.
As promised,complainant sent the amount ofP20,000.00 through the Aboitiz Express on May 2, 2000. The
parcel was received by a certain Alvin Soriano, who turned out to be respondent's son, on May 5, 2000.
Complainantwas surprisedto learn that on May 31, 2000, this Court denied the Petitionfor Review. Accordingly,
they filed a Motion for Reconsideration, which this Court denied with finality on July 31, 2000.
Together with his letter, complainant submitted the following documents:
l. Photocopy ofthe Petition for Review allegedly prepared by the "Justice;"5
2. Shipper's Copy ofPrepaid Consignment NoteNo. EO993783C datedMay 2, 2000, addressed to one
Atty. GilbertSoriano of22Melon St., Gatchalian Subdivision, Phase3-13, Las Piñas City, withtelephonenumbers
826-1018, containing cash in theamountofP20,000.00,6and sent by one Doroteo Igoy ofMactan, Lapu-lapu
City, with telephone numbers 495-8-49;7
3. Letter dated May 5, 2000 ofoneAtty. GilbertF. Soriano, addressed toAboitiz Express, authorizing his
daughter, Christine Soriano, or his son, Alvin A. Soriano, to receive Parcel No. EO993783C on his behalf;8
4. Note dated May 5, 2000, evidencing receipt by one AlvinSoriano ofthepackageon that dateat 11:30
o'clock in the morning.9
In his comment dated November 6,2000,10 Atty. GilbertSoriano deniedthathe was the"Justice"alluded to. He
allegedthat his friend,NicTaneo,introducedcomplainant to him because the latter was seeking help regarding
a pending caseinvolving his poor relatives; that complainantrequested him togo overtheirpetition to be filed
with the Supreme Court, toensure that the samewould not bedenied ontechnical grounds; he acceded to the
request, afterwhich complainanttold him thathewill besending hima tokenofgratitude, but hedid not know
that it was money.
Respondentfurthernarrated that on May 4,2000,he received a telephonecallfrom Aboitiz Express, informing
him that complainanthadsenthima parcel but the messenger was unable to locate his given address, and
asking himto executea letterauthorizing anyonein his houseto receive theparcel.He recalled complainant's
promiseofa token ofgratitude, sorespondent authorized his childrento accept theparcel. Hewas surprised to
find insidetheparcelcash intheamount ofP20,000.00. After several days ofmulling over what to do with the
money, respondent asked his friend to contact Atty. Rodulfo Taneo. the counsel for petitioners in G.R. No.
141843. Atty. Taneo told him to hold the money and wait until he arrives in Manila.
Respondentdenied giving complainant any assistance other than checking the formal requirements of the
petitionfor review. Healso denied thathe entertainedcomplainant inhis office intheFirstDivision ofthis Court
which, according to him,barely accommodates the stafftherein with very little elbow room. Assuming that
complainantwas thus accommodated inrespondent's office in the First Division, respondent could not have](https://image.slidesharecdn.com/206361986-cases-ethics-150911132150-lva1-app6891/85/206361986-cases-ethics-48-320.jpg)
![d. Solicitations oracceptanceofgifts — Public officials and employees shall notsolicit oraccept,directly
or indirectly, any gift,gratuity,favor, entertainment,loanor anything ofmonetaryvaluefrom any person in the
course of theirofficial duties or inconnection with any operation being regulatedby, or any transactions which
may be affected by the functions oftheir office.
Respondent, whois himselfa lawyer, should have avoided allthecircumstances in which hemight beaccusedof
using his office in the guise of"helping others", for this taints the integrity ofthe Court.
The denial of the respondent ofthe receipt ofinitial payment ofP20,000.00 cannot simply overcome the
positiveassertions of the complainant. Ifno such initial payment took place, Atty. Soriano would not have
claimed the subsequent payment through the Aboitiz Express.
The claim of Atty. Soriano that the amountwas givengratuitously would not excuse him from any liability. To
tolerate such acts wouldopen the floodgates tofraud or graft and corruptionto becommitted by officials and
employees of the Court.
Likewise,thefactthatrespondent tried to return theamount to Mr. Igoy aftertheChiefJustice required him to
comment onthecomplaintonly strengthened the caseagainst him. Even ifthe offer to return the money was
accepted bythecomplainant, it willnever exculpate him ofhis administrative liabilities. Respondent by his
brazen conduct consummated an actthat by itselfis a disservice totheadministrationofjustice and an affront
ofthe image of the court before the public.
It is admittedthat respondentoffered toresign, however, resignation should not be used as an easy way to
escapeadministrativeliability by a court personnelfacing administrative sanction.Respondent thereforecannot
go scot-free and besimplyforgiven for thedamage hecaused totheinstitution he was bound by his oath and
The Canons of Legal Ethics to serve with utmost integrity.
Respondentmay havebeen in theservice for 28years, buthe has blemishedhis record irreparably and under
the circumstances, this office believes that dismissal as a penalty is warranted.
The Court adopts the foregoing findings and recommendation ofthe OAS. Time and again, this Tribunal has
emphasized that "[t]he conduct or behavior of all officials and employees of an agency involved in the
administration of justice, from the presiding judgeto themostjunior clerk, should be circumscribed with the
heavy burden of responsibility.17 Theirconduct must, at all times be characterized by, among others, strict
proprietyanddecorum in orderto earn and maintain the respect ofthe public for the judiciary."18 Indeed,
Canon 6, Rule 6.02, of the Code ofProfessional Responsibility states in no uncertain terms that —
Rule 6.02.A lawyer in thegovernment serviceshallnot usehis publicposition to promoteor advancehis private
interests, nor allow the latter to interfere with his public duties.
The foregoing command acquires particularsignificancegiven the prevailing facts ofthis case considering that
respondentis a senior lawyerofthis Court.It bears stressing thatgovernment lawyers who are public servants
owe utmost fidelityto thepublic service, for public serviceis a public trust.As such, government lawyers should
be more sensitive totheirprofessionalobligations as their disreputableconductis morelikely tobe magnifiedin
the public eye.19
The Court could nothelp but express its great disappointmentover theconductofrespondentwho, as a lawyer
with twenty-eight(28) years ofgovernment service behind him, should have been among the first to set an
exampleto his co-employees and fellow civilservants. Instead, he badly tainted the image ofthis Tribunal as
well as thejudiciary.Only recentlyin In Re: Derogatory News Items Charging Court ofAppeals Associate Justice
Demetrio Demetria with Interference on Behalfofa Suspected Drug Queen,20 this Court said that:
Men and women ofthecourts must conductthemselves with honor, probity, fairness,prudenceand discretion.
Magistrates ofjusticemust always be fair andimpartial.They shouldavoidnotonlyacts ofimpropriety, but all
appearances ofimpropriety. Their influencein society must beconsciously and conscientiously exercised with
utmost prudence and discretion. Fortheirs is the assignedroleofpreserving theindependence,impartialityand
integrity ofthe Judiciary.
Respondentshould bereminded in this regardthatthenature andresponsibilities ofpublic officers enshrinedin
the Constitution, and oft-repeated inour caselaw, arenotmere rhetoricalwords to betakenlightly as idealistic
sentiments but as working standards andattainable goals that shouldbe matchedwith actual deeds.21 Those
involved intheadministration ofjusticemustlive upto thestrictest standards ofhonesty and integrity in the
public service,22
In sanctioning errant officers and employees involved in the administration ofjustice, the Court has held:
Since the administration ofjustice is a sacred task, the persons involved in it ought to live up to the strictest
standard ofhonesty, integrity anduprightness.It bears stressing onceagain thatpublic service requires utmost
integrity andthestrictest discipline possibleofevery public servant.Apublicofficeis a public trust that enjoins
all public officers andemployees,particularly those serving in thejudiciary torespond to the highest degree of
dedication often even beyond personal interest.23
All too often, this Court has declared thatany act which falls short ofthe exacting standards for public office,
especially on the partofthoseexpectedto preservetheimageofthejudiciary,shall not becountenanced.24 To
reiterate, publicofficeis a publictrust. Public officers must at alltimes beaccountableto thepeople, serve them
with the utmost degree ofresponsibility, integrity, loyalty and efficiency.25
This Court has also ruled that:
Time and again, wehaveemphasized theheavy burdenandresponsibility which court personnel are saddled
with in viewoftheir exaltedpositions as keepers ofthepublicfaith. They must beconstantly remindedthat any
impression ofimpropriety,misdeed or negligence in theperformance ofofficial functions must be avoided. As
we have held in thecase ofMendoza v. Mabutas (223 SCRA 411 [1993], citing Sy v. Academia, 198 SCRA 70s
[1991]), this Court condemns and wouldnever countenance such conduct, act or omission on the part ofall
those involved in the administration ofjustice which would violate the norm ofpublic accountability and
diminish or even just tend to diminish the faith ofthe people in the Judiciary.26
Respondent's acts seriously undermined thetrust and confidence ofthe public in the entire judicial system.
What makes his infraction worse is the fact that he is not a mere court employee, but a senior attorney
employedin the Highest Courtofthe Land. Hehas indeliblysullied his record ofgovernment service spanning
twenty-eight years, and insodoing he has prejudiced the integrity ofthe Court as a whole. Once more, this
Court is calledupon to apply disciplinary sanction on an errant member, and again it will not shirk from its
responsibility. Thus,this Courtimposes onrespondent the only penalty that he deserves — that ofdismissal
from the service.
ACCORDINGLY, respondentAtty.Gilbert Soriano is hereby DISMISSED from the service, with forfeiture ofall
retirementbenefits and leavecredits andwithprejudiceto reemployment in any branch or instrumentality of
the government including government-ownedor controlled corporations.This dismissal shall be immediately
executory. Further, respondent Atty. Gilbert Soriano is DIRECTED to SHOW CAUSEwithin ten (10) days from
notice hereofwhy heshould not beDISBARRED. Inthemeantime, respondentis SUSPENDED from the practice
of law. Let copies ofthis Resolution be attached to the records ofAtty. Gilbert Soriano and furnished the
Integrated Bar ofthe Philippines and all the courts throughout the country. SO ORDERED.](https://image.slidesharecdn.com/206361986-cases-ethics-150911132150-lva1-app6891/85/206361986-cases-ethics-50-320.jpg)
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206361986 cases-ethics
- 1. Get Homework/Assignment Done Homeworkping.com Homework Help https://www.homeworkping.com/ ResearchPaper help https://www.homeworkping.com/ Online Tutoring https://www.homeworkping.com/ click here for freelancing tutoring sites CANON 3 1. IN RE LUIS B. TAGORDA MALCOLM, J.: The respondent,Luis B. Tagorda, a practising attorney and a memberofthe provincialboard of Isabela, admits that previous tothe last general elections he made use ofa card written in Spanish and Ilocano, which, in translation, reads as follows: LUIS B. TAGORDA Attorney Notary Public CANDIDATEFOR THIRD MEMBER Province ofIsabela (NOTE. — As notary public,he canexecutefor you a deed ofsale for the purchase ofland as required by the cadastraloffice; can renew lost documents ofyouranimals; can makeyour application and final requisites for your homestead; and canexecuteany kind ofaffidavit. As a lawyer,he canhelp youcollect your loans although long overdue, as well as anycomplaintfor or against you. Comeor writeto him inhis town,Echague, Isabela.He offers free consultation, and is willing to help and serve the poor.) The respondent further admits that heis theauthor ofa letter addressedto a lieutenant ofbarrio in his home municipality written in Ilocano, which letter, in translation, reads as follows: ECHAGUE, ISABELA, September 18, 1928 MY DEAR LIEUTENANT: I would like to inform you of the approaching date for our induction into office as member oftheProvincial Board, thatis on the 16th ofnext month. Beforemy induction into office I should be very glad to hear yoursuggestions or recommendations for the good ofthe province in general and for your barrio in particular. You can come to my house at any time here in Echague, to submit to me any kind of suggestion or recommendation as you may desire. I also informyou that despite my membership in the Board I will have my residence here in Echague. I will attend the session oftheBoard ofIlagan,but willcomeback homeon thefollowing dayherein Echague to live and servewith youas a lawyer and notary public. Despitemy electionas memberofthe Provincial Board, I will exercisemy legal profession as a lawyer andnotary public. Incase youcannot seemeathome onanyweek day, I assureyou that youcan always findmethereon everySunday. I also inform you that I will receive any work regarding preparations ofdocuments ofcontract ofsales and affidavits to be sworn to before me as notary public even on Sundays. I would likeyou all to be informed ofthis matter for the reason that some people are in the beliefthat my residence as member of the Board will be in Ilagan and that I would then be disqualified to exercise my profession as lawyer and as notary public. Such is not the case and I would make it clear that I am free to exercise my profession as formerly and that I will have my residence here in Echague. I would request youkindfavor to transmit this information to your barrio people in any ofyour meetings or socialgatherings so that they may be informed ofmy desire to live and to serve with you in my capacity as lawyer and notary public. Ifthepeople in yourlocality havenotas yet contracted theservices ofother lawyers in connectionwiththeregistration oftheir landtitles, I would be willing to handle the work in court and would charge only three pesos for every registration. Yours respectfully, (Sgd.) LUIS TAGORDA Attorney Notary Public.
- 2. The facts beingconceded, itis next inorder towritedowntheapplicable legalprovisions. Section21ofthe Code of Civil Procedure as originally conceived related to disbarments of members of the bar. In 1919 at the instigation of thePhilippineBarAssociation, said codalsection was amended by Act No. 2828 by adding at the end thereof thefollowing: "Thepractice ofsoliciting cases atlaw for the purpose ofgain, either personally or through paid agents or brokers, constitutes malpractice." The statuteas amended conforms in principle totheCanons ofProfessionals Ethics adopted by the American Bar Association in 1908and by the PhilippineBar Association in 1917. Canons 27 and 28 ofthe Code ofEthics provide: 27. ADVERTISING, DIRECT OR INDIRECT. — The mostworthyandeffective advertisement possible, even for a young lawyer, and especially with his brother lawyers, is the establishment ofa well-merited reputation for professionalcapacity and fidelity to trust. This cannot be forced, but must be the outcome ofcharacter and conduct. Thepublicationor circulation ofordinarysimplebusiness cards, being a matter ofpersonal taste or local custom,and sometimes ofconvenience, is notperseimproper. Butsolicitationofbusiness by circulars or advertisements, or by personal communications or interview not warranted by personal relations, is unprofessional. It is equally unprofessional to procure business by indirection through touters ofany kind, whether allied real estatefirms ortrustcompanies advertising to secure the drawing ofdeeds or wills or offering retainers inexchangefor executorships ortrusteeships to beinfluencedby thelawyer. Indirect advertisement for business by furnishing or inspiring newspaper comments concerning the manner oftheir conduct, the magnitudeof theinterestinvolved, theimportanceofthelawyer's position, and all other like self-laudation, defy the traditions and lower the tone ofour high calling, and are intolerable. 28. STIRRING UP LITIGATION,DIRECTLYOR THROUGH AGENTS. — It is unprofessional for a lawyer to volunteer advice tobring a lawsuit, exceptin rarecases where ties ofblood, relationship or trust makeithis duty to doso. Stirring up strife and litigationis not only unprofessional, butit is indictable at common law. It is disreputable to hunt up defects in titles orother causes ofactionandinform thereofin order totheemployed tobring suit, or to breed litigationby seeking out those with claims for personal injuries or those having any other grounds of action inorder tosecurethem as clients, orto employ agents or runners for likepurposes, or to pay or reward directlyor indirectly, those who bring or influence the bringing ofsuch cases to his office, or to remunerate policemen, court orprison officials,physicians, hospital attaches or others who may succeed, under theguise of giving disinterested friendly advice,in influencing thecriminal, the sick and the injured, the ignorant or others, to seek his professionalservices. Aduty tothepublic and totheprofession devolves uponevery member ofthe bar having knowledgeof such practices uponthepartofany practitionerimmediately to inform thereofto the end that the offender may be disbarred. Common barratryconsisting offrequently stirring up suits and quarrels between individuals was a crime at the common law, and one of the penalties for this offense when committed by an attorney was disbarment. Statutes intendedto reach the sameevilhave been providedin a number ofjurisdictions usually at the instance ofthe bar itself, and havebeenupheld as constitutional. Thereason behind statutes ofthis type is not difficult to discover. Thelaw is a profession and not a business. The lawyer may not seek or obtain employment by himselfor through others for to doso would beunprofessional. (Statevs. Rossman[1909], 53 Wash., 1; 17 Ann. Cas., 625; People vs. Mac Cabe [1893], 19 L. R. A., 231; 2 R. C. L., 1097.) It becomes our duty to condemn inno uncertain terms the ugly practiceofsolicitationofcases by lawyers. It is destructive of thehonorof a greatprofession. It lowers thestandards ofthat profession. It works against the confidence of thecommunity intheintegrity ofthemembers ofthebar. Itresults in needless litigation and in incenting to strife otherwise peacefully inclined citizens. The solicitation of employment by an attorney is a ground for disbarment or suspension. That should be distinctly understood. Giving application ofthe lawandtheCanons ofEthics totheadmittedfacts, therespondentstands convicted of having solicitedcases indefianceofthelaw andthosecanons. Accordingly, theonlyremaining duty ofthe court is to fix upon the action which should here be taken. The provincial fiscal ofIsabela, with whom joined the representative ofthe Attorney-Generalin the oral presentation ofthe case, suggests that the respondent be only reprimanded.Wethink thatour action should go further than this ifonly to reflect our attitude toward cases ofthis characterofwhich unfortunately therespondent's is only one. Thecommission ofoffenses ofthis nature wouldamply justify permanent eliminationfrom the bar. But as mitigating, circumstances working in favor ofthe respondent there are, first, his intimation that he was unaware ofthe impropriety ofhis acts, second, his youth and inexperience at the bar,and, third, his promise not to commit a similar mistake in the future. A modest period of suspension would seem to fit the case ofthe erring attorney. But it should be distinctly understood thatthis result is reachedin view ofthe considerations which haveinfluencedthecourt to the relatively lenient inthis particular instance and should, therefore, not be taken as indicating that future convictions ofpractice ofthis kind will not be dealt with by disbarment. In view ofall the circumstances ofthis case,thejudgment ofthe courtis that therespondent Luis B. Tagorda be and is hereby suspended fromthepracticeas an attorney-at-lawfor theperiod ofonemonth fromApril 1,1929, Street, Johns, Romualdez, and Villa-Real, JJ., concur. Johnson, J., reserves his vote. Separate Opinions OSTRAND, J., dissenting: I dissent. Under the circumstances ofthe case a reprimand would have been sufficient punishment. 2. THE DIRECTOR OF RELIGIOUS AFFAIRS vs. ESTANISLAOR. BAYOT OZAETA, J.: The respondent,who is an attorney-at-law, is charged with malpracticefor having published an advertisementin the Sunday Tribune ofJune 13, 1943, which reads as follows: Marriage licensepromptly secured thru our assistance & the annoyance ofdelay or publicity avoided ifdesired, and marriagearranged towishes ofparties.Consultation onanymatter free for the poor. Everything confidential. Legal assistance service 12 Escolta, Manila, Room, 105 Tel. 2-41-60. Appearing in his own behalf, respondent at first denied having published the said advertisement; but subsequently, thruhis attorney, headmitted having caused its publicationandprayed for "the indulgence and mercy"ofthe Court, promising "not torepeatsuch professionalmisconduct inthefuture andto abide himselfto the strict ethicalrules ofthelaw profession."In further mitigationhe allegedthat the said advertisement was published only once in the Tribune and that he never had any case at law by reason thereof. Upon that plea the case was submitted to the Court for decision.
- 3. It is undeniablethatthe advertisement in question was a flagrant violationby therespondentofthe ethics ofhis profession,it being a brazen solicitation ofbusiness from thepublic. Section 25 ofRule 127 expressly provides among other things that"thepractice ofsoliciting cases atlaw for the purposeofgain, either personally or thru paid agents or brokers, constitutes malpractice."It is highly unethicalfor an attorneyto advertise his talents or skill as a merchant advertises his wares.Law is a profession andnota trade.The lawyerdegrades himselfand his profession who stoops to andadopts thepractices ofmercantilism by advertising his services oroffering themto the public. As a member of the bar,he defiles the temple ofjustice with mercenary activities as the money- changers of olddefiled the templeofJehovah. "The most worth andeffectiveadvertisement possible,even for a young lawyer, . . . is theestablishment ofa well-merited reputationfor professional capacity and fidelity to trust. This cannot be forced but must be the outcome ofcharacter and conduct."(Canon 27, Code ofEthics.) In In re Tagorda, 53Phil., therespondentattorney was suspended fromthepractice oflawfor theperiodofone month for advertising his services and soliciting work from the public by writing circular letters. That case, however, was more serious thanthis because there the solicitations were repeatedly made and were more elaborate and insistent. Considering his plea for leniency and his promise not torepeatthemisconduct, the Court is of the opinion and so decided that the respondent should be, as he hereby is, reprimanded. 3. MAURICIOC. ULEP, vs. THELEGAL CLINIC, INC. REGALADO, J.: Petitioner prays this Court "to order therespondent toceaseand desistfrom issuing advertisements similar to or ofthe sametenoras thatofannexes "A"and "B"(ofsaid petition) and to perpetually prohibit persons or entities from making advertisements pertaining to theexerciseofthelaw profession other than those allowed by law." The advertisements complained ofby herein petitioner are as follows: Annex A SECRETMARRIAGE? P560.00 for a valid marriage. Info on DIVORCE. ABSENCE. ANNULMENT. VISA. THE Pleasecall: 521-0767LEGAL 5217232, 5222041 CLINIC, INC. 8:30 am— 6:00 pm 7- Flr. Victoria Bldg., UN Ave., Mla. Annex B GUAMDIVORCE. DON PARKINSON an Attorney in Guam, is giving FREEBOOKS on Guam Divorce through The Legal Clinic beginning Monday to Friday during office hours. Guam divorce. Annulment of Marriage. Immigration Problems, Visa Ext. Quota/Non-quota Res. & Special Retiree's Visa. Declaration ofAbsence. Remarriage to Filipina Fiancees. Adoption. Investment in the Phil. US/Foreign Visa for Filipina Spouse/Children. Call Marivic. THE 7F Victoria Bldg. 429 UN Ave., LEGAL Ermita, Manila nr. US Embassy CLINIC, INC. 1 Tel. 521-7232; 521-7251; 522-2041; 521-0767 It is the submission ofpetitioner that the advertisements above reproduced are champterous, unethical, demeaning ofthe lawprofession, and destructive ofthe confidence of the community in the integrity ofthe members ofthebarand that, as a member ofthe legal profession, he is ashamed and offended by the said advertisements, hence the reliefs sought in his petition as hereinbefore quoted. In its answer tothepetition, respondentadmits thefact ofpublicationofsaidadvertisement at its instance, but claims that it is not engaged in the practice oflaw 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 theservices advertised arelegalservices, the actofadvertising theseservices should be allowed supposedly in the lightofthe caseofJohnR. Bates andVan O'Steen vs. State Bar ofArizona, 2 reportedly decided by the United States Supreme Court on June 7, 1977. Considering thecriticalimplications on the legal profession ofthe issues raised herein, we required the (1) Integrated Bar ofthe Philippines (IBP), (2) Philippine Bar Association (PBA), (3) Philippine Lawyers'Association (PLA), (4) U.P. Womens Lawyers'Circle(WILOCI), (5) WomenLawyers Association ofthePhilippines (WLAP), and (6) FederacionInternationalde Abogadas (FIDA) to submit their respectiveposition papers on the controversy and, thereafter, their memoranda. 3 Thesaid bar associations readily responded and extended their valuable services and cooperation ofwhich this Court takes note with appreciation and gratitude. The main issues posedfor resolution beforetheCourt are whetheror notthe services offered by respondent, The Legal Clinic, Inc., as advertised byit constitutes practice oflaw and, in either case, whether the same can properly be the subject ofthe advertisements herein complained of. Before proceeding with an in-depthanalysis ofthemerits ofthis 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 ofthe Philippines: xxx xxx xxx Notwithstanding thesubtle manner by which respondentendeavored to distinguish the two terms, i.e., "legal support services"vis-a-vis "legalservices", common sense would readily dictate that the same are essentially without substantial distinction. Forwho could deny that document search, evidence gathering, assistance to layman in needofbasic institutional services from government ornon-government agencies likebirth,marriage, property, or business registration, obtaining documents like clearance, passports, local or foreign visas, constitutes practice oflaw? xxx xxx xxx The Integrated Bar ofthePhilippines (IBP) does not wish to make issue with respondent's foreign citations. Suffice it to state that the IBPhas madeits position manifest, towit, thatit strongly opposes the viewespoused by respondent (to the effect that today it is alright to advertise one's legal services).
- 4. The IBP accordinglydeclaresinno uncertain terms its opposition to respondent's act ofestablishing a "legal clinic"and of concomitantly advertising the same through newspaper publications. The IBP would therefore invoke the administrative supervision ofthis Honorable Court to perpetually restrain respondent from undertaking highly unethical activities in the field oflaw practice as aforedescribed. 4 xxx xxx xxx A. The use of the name "The LegalClinic, Inc."gives theimpression thatrespondent corporationis being operated by lawyers and that it renders legal services. While therespondent repeatedly denies thatit offers legalservices to the public, the advertisements in question give the impression that respondentis offering legal services.The Petitionin fact simply assumes this to beso, as earlier mentioned, apparently becausethis (is) the effectthat the advertisements have on the reading public. The impressioncreated by theadvertisements in question can betraced, firstofall, totheverynamebeing used by respondent — "The Legal Clinic, Inc."Sucha name,it is respectfully submitted connotes therendering oflegal services for legalproblems,just likea medical clinic connotes medical services for medical problems. More importantly, the term "Legal Clinic"connotes lawyers, as the term medical clinic connotes doctors. Furthermore,therespondent's name, as publishedin the advertisements subjectofthepresent case, appears with (the) scale(s) of justice, which allthemorereinforces theimpression thatit is being operated by members ofthe bar andthat itoffers legal services. In addition, theadvertisements in questionappearwith a picture and name of a person being represented as a lawyer fromGuam,and this practically removes whatever doubt may still remain as to the nature ofthe service or services being offered. It thus becomes irrelevant whether respondentis merely offering "legal support services"as claimed by it, or whether itoffers legal services as any lawyer actively engaged in law practicedoes. Andit becomes unnecessary to make a distinction between "legal services"and "legal support services,"as therespondent wouldhave it. The advertisements in question leave noroomfor doubt in theminds ofthereading public that legal services are being offered by lawyers, whether true or not. B. The advertisements inquestion aremeant toinducethe performanceofacts contrary tolaw, morals, public order and public policy. It may be conceded that, as the respondentclaims,theadvertisements inquestion areonly meant toinformthe general publicof theservices being offeredby 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 marriagebetweena Filipino citizenand a foreigner is validly celebrated and a divorce is thereafter validly obtained abroadby thealienspousecapacitating himor 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 contractofpermanentunion betweena man andwomanenteredinto accordance with law for the establishment ofconjugal and family life. It is the foundation ofthe family and an inviolable socialinstitutionwhosenature,consequences, andincidents are governed by law andnotsubjectto stipulation, except thatmarriage settlements mayfix theproperty relation during themarriage withinthelimits providedby this Code. By simply reading thequestioned advertisements, itis obvious that themessagebeing conveyedis that Filipinos can avoidthelegal consequences ofa marriagecelebrated inaccordancewith ourlaw, bysimply going to Guam for a divorce.This is notonly misleading, butencourages,or serves to induce, violation ofPhilippine law. At the very least,this canbe considered "thedark side"oflegalpractice, wherecertain defects in Philippine laws are exploited for the sake ofprofit. At worst, this is outright malpractice. Rule 1.02. — Alawyershall not counselor abetactivities aimedat defianceofthelaw or at lessening confidence in the legal system. In addition,it may alsobe relevant to point out that advertisements such as that shown in Annex "A"ofthe Petition, which contains a cartoon ofa motor vehiclewith the words "JustMarried"on its bumper and seems to address thoseplanning a "secretmarriage,"if not suggesting a "secret marriage,"makes light ofthe "special contract of permanent union," the inviolable social institution,"which is how the Family Code describes marriage, obviously to emphasize its sanctityandinviolability. Worse, this particular advertisement appears to encourage marriages celebratedin secrecy, which is suggestive ofimmoral publication ofapplications for a marriage license. Ifthe article"Rx for LegalProblems"is to bereviewed, it canreadily beconcluded that the above impressions one may gather from the advertisements in question are accurate. The Sharon Cuneta -Gabby Concepcion examplealoneconfirms what theadvertisements suggest. Here it can be seen that criminal acts are being encouraged or committed (a bigamous marriagein Hong Kong or Las Vegas) withimpunity simply because the jurisdiction ofPhilippine courts does not extend to the place where the crime is committed. Even ifit be assumed,arguendo, (that) the "legal supportservices"respondent offers do not constitute legal services as commonly understood, the advertisements in question give the impression that respondent corporationis being operated by lawyers andthatit offers legal services, as earlier discussed. Thus, the only logical consequenceis that,in the eyes ofan ordinary newspaper reader, members ofthe bar themselves are encouraging orinducing the performanceofacts which arecontrary to law, morals, good customs andthepublic good, thereby destroying and demeaning the integrity ofthe Bar. xxx xxx xxx It is respectfully submitted that respondent should be enjoined from causing the publication of the advertisements in question, or anyother advertisements similar thereto. Itis also submitted that respondent should beprohibitedfrom further performing or offering someoftheservices itpresentlyoffers, or,at the very least, from offering such services to the public in general. The IBP is awareofthefact thatproviding computerized legal research,electronic data gathering, storage and retrieval, standardized legalforms, investigators for gathering ofevidence, and likeservices will greatly benefit the legalprofessionand should not be stifled but instead encouraged. However, when the conduct ofsuch business by non-members oftheBar encroaches upon the practice oflaw,therecan beno choicebut toprohibit such business. Admittedly, many oftheservices involvedin the case at bar can be better performed by specialists in other fields, suchas computer experts,whoby reasonoftheir having devoted timeand effortexclusively to such field cannot fulfilltheexacting requirements for admissionto theBar. To prohibit themfrom "encroaching"upon the legal professionwill denytheprofessionofthe great benefits andadvantages of modern technology. Indeed, a lawyer using a computer willbedoing better than a lawyer using a typewriter, even ifboth are (equal) in skill. Both the Bench and theBar, however,should becarefulnot toallow or tolerate the illegalpractice oflawin any form, not only for theprotection ofmembers oftheBar butalso, and more importantly, for the protection of
- 5. the public. Technologicaldevelopment intheprofession may be encouraged without tolerating, but instead ensuring prevention of illegal practice. There might benothing objectionable ifrespondent is allowed to perform all ofits services, but only ifsuch services aremadeavailableexclusively tomembers oftheBenchandBar. Respondent would then be offering technicalassistance,not legalservices. Alternatively,themoredifficulttask ofcarefully distinguishing between which service may be offered to the public in general and which should be made available exclusively to members of theBarmay be undertaken. This, however, may require further proceedings becauseofthefactual considerations involved. It must be emphasized, however, thatsomeofrespondent's services ought to be prohibited outright, such as acts which tend to suggest or inducecelebration abroadofmarriages whichare bigamous or otherwise illegal and void under Philippinelaw.Whilerespondent maynot beprohibited fromsimply disseminating information regarding such matters, it must be required to include, in the information given, a disclaimer that it is not authorized to practice law, that certain course ofaction may be illegal under Philippine law, that it is not authorized or capable of rendering a legalopinion, thata lawyershould beconsulted before deciding on which course of action to take, and that it cannot recommend any particular lawyer without subjecting itselfto possible sanctions for illegal practice oflaw. Ifrespondent is allowedto advertise, advertising should bedirectedexclusively at members ofthe Bar, with a clear and unmistakable disclaimer that it is not authorized to practice law or perform legal services. The benefits of being assisted byparalegals cannot be ignored. But nobody should be allowed to represent himselfas a "paralegal"for profit,without such term being clearly definedby rule orregulation, and withoutany adequateand effectivemeans ofregulating his activities. Also, lawpracticein a corporate formmay prove tobe advantageous to the legal profession, but before allowance of such practice may be considered, the corporation's Articleof Incorporation and By-laws must conform to each and every provision ofthe Code of Professional Responsibility and the Rules ofCourt. 5 2. Philippine Bar Association: xxx xxx xxx. Respondentasserts thatit "is notengaged in thepracticeoflaw butengaged in giving legal support services to lawyers and laymen, through experienced paralegals, with the use ofmodern computers and electronic machines"(pars. 2and 3, Comment). This is absurd. Unquestionably, respondent's acts ofholding out itselfto the publicunderthetradename"The Legal Clinic, Inc.,"andsoliciting employment for its enumerated services fall within therealmof a practicewhich thus yields itselfto the regulatory powers ofthe Supreme Court. For respondent to say that it is merely engaged in paralegal work is to stretch credulity. Respondent's own commercial advertisementwhichannounces a certainAtty. Don Parkinson tobe handling the fields oflaw belies its pretense. Fromall indications, respondent "The Legal Clinic, Inc."is offering and rendering legal services through its reserveof lawyers. Ithas been heldthat the practice oflaw is not limited tothe conduct ofcases in court, but includes drawing ofdeeds, incorporation,rendering opinions, and advising clients as to their legal right and then takethemto an attorney and ask thelatter to look after their case incourt See Martin,Legal and Judicial Ethics, 1984 ed., p. 39). It is apt to recall that only natural persons can engage in the practice oflaw, and such limitation cannot be evaded by a corporation employing competent lawyers to practicefor it.Obviously, this is theschemeor device by which respondent"The Legal Clinic, Inc."holds outitselfto the public and solicits employment ofits legal services. It is an odious vehiclefor deception, especially so whenthepubliccannot ventilate any grievance for malpracticeagainstthebusiness conduit. Precisely,thelimitationofpracticeoflaw to persons who have been duly admitted as members of theBar (Sec.1, Rule138, Revised Rules ofCourt) is to subject the members to the discipline of theSupremeCourt. Although respondentuses its business name, the persons and the lawyers who act for it aresubject to court discipline. Thepracticeoflawis not a professionopen toall who wishto 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 respondentbutalsoall 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 oflaw; 2. Such practice is unauthorized; 3. The advertisements complained ofarenotonly unethical,but alsomisleading andpatently immoral; and 4. The HonorableSupreme Courthas thepower tosupress andpunish the LegalClinicand its corporate officers for its unauthorized practice oflaw and for its unethical, misleading and immoral advertising. xxx xxx xxx Respondentposits that is it notengaged in thepracticeoflaw. It claims that it merely renders "legal support services" to answers,litigants and the general publicas enunciated inthePrimary Purpose Clauseofits Article(s) ofIncorporation.(See pages 2 to 5 ofRespondent's Comment). But its advertised services, as enumerated above, clearly and convincingly show that it is indeed engaged in law practice, albeit outside ofcourt. As advertised, it offers thegeneralpublic its advisory services on Persons and Family Relations Law,particularly regarding foreign divorces,annulmentofmarriages, secret marriages, absence and adoption; Immigration Laws, particularly on visa relatedproblems,immigration problems; theInvestments Law ofthe Philippines and such other related laws. Its advertised services unmistakably require the application ofthe 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 bytheCourt intheaforecitedAgrava Case, theactivities ofrespondent fallsquarely and are embraced in what lawyers and laymen equally term as "the practice oflaw."7 4. U.P. Women Lawyers'Circle: In resolving, theissues beforethis HonorableCourt, paramount considerationshould begiven totheprotection ofthe general publicfrom thedanger ofbeing exploitedby unqualified persons or entities whomay beengaged in the practice oflaw. At present, becoming a lawyer requires oneto take a rigorous four-year course ofstudy on top ofa four-year bachelor ofarts or sciences course and then to take and pass the bar examinations. Only then, is a lawyer qualified to practice law. While theuse ofa paralegal is sanctioned inmany jurisdiction as anaid to the administration ofjustice, there are in thosejurisdictions, courses ofstudy and/or standards whichwould qualify these paralegals to deal with the generalpublicas such. While it may now betheopportunetimeto establish these courses ofstudy and/or standards, the fact remains that at present, these do not exist in the Philippines. In the meantime, this
- 6. Honorable Courtmay decidetomakemeasures toprotect thegeneralpublicfrom being exploited by those who may be dealing with the general public in the guise ofbeing "paralegals"without being qualified to do so. In the same manner, the general publicshould alsobe protected from thedangers which may bebrought 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 byan entitystaffed by "paralegals."Clearly,measures should betaken to protect the generalpublicfrom falling prey to those who advertiselegalservices without being qualified to offer such services. 8 A perusal of the questioned advertisements ofRespondent, however, seems to give the impression that information regarding validity ofmarriages, divorce, annulment ofmarriage, immigration, visa extensions, declaration of absence, adoption andforeign investment, which are inessence, legal matters , will be given to them ifthey availof its services. TheRespondent's name — The Legal Clinic, Inc. — does not help matters. It gives the impression againthat Respondentwill or cancure the legalproblems brought to them. Assuming that Respondentis, as claimed, staffedpurely by paralegals,it also gives the misleading impression that there are lawyers involvedin TheLegalClinic,Inc., as there aredoctors in any medicalclinic, when only "paralegals"are involved in The Legal Clinic, Inc. Respondent's allegations are further belied by the very admissions ofits President and majority stockholder, Atty. Nogales, who gave an insight on the structure and main purpose ofRespondent corporation in the aforementioned "Starweek"article."9 5. Women Lawyer's Association ofthe Philippines: Annexes "A"and "B"of the petitionareclearly advertisements to solicit cases for thepurpose ofgain which, as provided for under theabove cited law, (are) illegal and against the Code ofProfessional Responsibility of lawyers in this country. Annex "A"of the petitionis not onlyillegalin that itis anadvertisement to solicitcases, but itis illegal in that in bold letters itannounces thattheLegal Clinic, Inc., could work out/causethe celebration ofa secret marriage which is not only illegal but immoral inthis country. While itis advertisedthat onehas togo to said agency and pay P560 for a valid marriage it is certainly fooling the public for valid marriages in the Philippines are solemnizedonly 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 theUSA, Canada andother countries the trend is towards allowing lawyers to advertisetheir specialskills to enable people to obtain from qualified practitioners legal services for their particular needs can justify the useofadvertisements such as are the subject matter ofthe petition, for one (cannot) justify an illegalact evenby whatever merit theillegalact may serve. The lawhas yet tobe amended so that such act could become justifiable. We submitfurther 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 encouragepeopleto consult this clinicabouthow they could go about having a secret marriage here, when it cannot norshould everbe attempted, and seek adviceon divorce, whereinthis country there is none, except under theCode of Muslim Personal Laws in thePhilippines.It is also againstgoodmorals andis deceitful because it falsely represents to the publicto be ableto dothat 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 SupremeCourt held thatsolicitation for clients by an attorney by circulars ofadvertisements, is unprofessional,and offenses ofthis characterjustify permanent elimination from the Bar. 10 6. Federacion Internacional de Abogados: xxx xxx xxx 1.7 That entities admittedly not engagedin the practiceoflaw, such as management consultancy firms or travel agencies, whetherrun by lawyers or not, perform theservices rendered by Respondent does not necessarily lead to theconclusion that Respondentis not unlawfully practicing law.In thesame vein, however, thefact that the business ofrespondent (assuming it can be engaged in independently ofthe practice oflaw) involves knowledge ofthe law does not necessarily make respondent guilty ofunlawful practice oflaw. . . . . Of necessity, noone. . . . acting as a consultant can rendereffective serviceunless heis familiar with such statutes and regulations. Hemustbe carefulnotto suggesta courseofconduct which thelawforbids. It seems . . . .clear that(theconsultant's) knowledgeofthelaw, andhis use ofthatknowledge as a factor in determining what measures he shall recommend, donotconstitutethepracticeoflaw . . . . It is not only presumed that all men know thelaw, but itis a fact thatmostmenhave considerableacquaintancewith broad features ofthelaw . . . . Our knowledge ofthelaw— accurateor inaccurate — moulds our conductnot only when weareacting for ourselves, but when weare serving others. Bankers, liquor dealers and laymen generally possess rather precise knowledgeofthe laws touching their particular business or profession. Agood example is the architect, who must be familiar withzoning, building and firepreventioncodes,factoryandtenementhousestatutes,and who draws plans and specification in harmony with the law. This is not practicing law. But suppose thearchitect, askedby his clientto omita firetower, replies that it is required by the statute. Or the industrial relations expert cites, insupport ofsomemeasurethathe recommends, a decisionofthe National Labor Relations Board. Are theypracticing law? In myopinion,they are not, provided noseparate feeis charged for the legaladviceor information, and the legalquestion is subordinate and incidental to a major non-legal problem. It is largely a matter ofdegree and ofcustom. If it were usual for one intending to erect a building on his land to engage a lawyer to advise him and the architectin respectto thebuilding code and the like, then an architect who performed this function would probably beconsideredto betrespassing on territory reservedfor licensedattorneys. Likewise, ifthe industrial relations field had been pre-empted by lawyers, or custom placed a lawyer always at the elbow ofthe lay personnelman. Butthis is not the case. Themost important body ofthe industrial relations experts are the officers and business agents ofthe labor unions and few ofthem are lawyers. Among the larger corporate employers,it has beenthepracticefor someyears to delegate special responsibility in employee matters to a management group chosen for their practical knowledgeand skill in such matter, and without regard to legal thinking or lack ofit. Morerecently, consultants like the defendants have the same service that the larger employers get from their own specialized staff. The handling ofindustrialrelations is growing into a recognizedprofession for which appropriate courses are offered by our leading universities. The court shouldbe very cautious about declaring [that]a widespread, well- establishedmethod ofconducting business is unlawful,or thattheconsiderableclass ofmen who customarily perform a certain function haveno rightto do so,or that thetechnicaleducation givenby our schools cannot be used by the graduates in their business. In determining whether a man is practicing law, we should consider his work for any particular client or customer, as a whole. I canimagine defendant being engaged primarily to advise as to the law defining his client's obligations tohis employees, to guidehis client's obligations tohis employees, to guide his client along
- 7. the path chartedby law. This,ofcourse, would bethepractice ofthe law. But such is not the fact in the case before me. Defendant's primarily efforts arealong economic andpsychological lines. Thelaw only provides the frame within which he must work, just as the zoning code limits the kind ofbuilding the limits the kind of building the architect may plan. The incidental legal advice or information defendant may give, does not transformhis activities into the practice oflaw. Let me add that if, even as a minor feature ofhis work, he performed services which arecustomarily reserved to members ofthe bar, he would be practicing law. For instance, if as part of a welfare program, he drew employees'wills. Another branchof defendant's work is the representations oftheemployer intheadjustmentofgrievances and in collectivebargaining,with or withouta mediator. This is not per se the practice oflaw. Anyone may use an agent for negotiations and may select an agent particularly skilled in the subject under discussion, and the person appointed is freeto accept the employmentwhether ornothe is a member ofthe bar. Here, however, there maybe an exception wherethe business turns on a question oflaw. Mostrealestatesales arenegotiated by brokers whoare not lawyers.But ifthe valueofthe land depends on a disputed right-of-way andtheprincipal role ofthe negotiatoris to assess theprobableoutcomeofthedisputeand persuade the opposite party to the same opinion,then itmay bethat only a lawyer can accept the assignment. Or ifa controversy between an employerandhis men grows from differing interpretations ofa contract, or ofa 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 torepresenttheemployer beforeadministrativeagencies ofthe federal government, especially beforetrialexaminers ofthe National Labor Relations Board. An agency ofthe federal government, acting by virtueof anauthority grantedby theCongress,mayregulatethe representation ofparties before such agency. The State of New Jersey is without power to interfere with such determination or to forbid representation beforetheagency by onewhomtheagency admits. The rules ofthe 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'onenota lawyer. In this phaseofhis work, defendantmay lawfully do whatevertheLaborBoard allows, even arguing questions purely legal.(Auerbacher v. Wood, 53A. 2d 800,citedin 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 oflaw 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 ofthe 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 ofProfessional Responsibility succintly states the rule ofconduct: Rule 15.08 — Alawyer whois engaged inanother professionor occupation concurrently with the practiceoflaw shall make clear to his client whether he is acting as a lawyer or in another capacity. 1.10. In the present case. theLegal Clinic appears to render wedding services (See Annex "A"Petition). Services on routine, straightforwardmarriages,likesecuring a marriage license,andmaking arrangements with a priest or a judge, may not constitute practice oflaw. However, ifthe problem is as complicated as that describedin "Rx for Legal Problems"on the Sharon Cuneta-Gabby Concepcion-Richard Gomez case, then what may be involved is actually thepracticeoflaw. Ifa non-lawyer, suchas the Legal Clinic, renders such services then it is engaged in the unauthorized practice oflaw. 1.11. The Legal Clinicalsoappears to giveinformation on divorce, absence, annulment ofmarriage and visas (SeeAnnexes "A"and "B"Petition). Purely giving informationalmaterials may not constitute oflaw. The business is similarto thatofa bookstore where the customer buys materials onthesubject and determines on the subject and determines by himselfwhat courses ofaction to take. It is not entirely improbable,however,that aside frompurely giving information, the Legal Clinic's paralegals may apply the law to the particular problem of the client, and give legal advice. Such would constitute unauthorized practice oflaw. It cannot beclaimedthat the publication ofa legaltext which publication ofa legal text which purports to say what the lawis amount to legalpractice.And themerefact thattheprinciples orrules stated inthetext may be accepted bya particular readeras a solutionto his problem does not affectthis.. . . . Apparently it is urged that the conjoining ofthese two, that is, thetext and the forms, with adviceas tohowtheforms should befilled out, constitutes theunlawful practice oflaw. But that is the situation with many approved and accepted texts. Dacey's book is sold to the public at large. There is no personal contact or relationship with a particular individual. Nordoes there existthatrelation ofconfidenceand trust sonecessaryto thestatus ofattorney and client. THIS IS THE ESSENTIAL OF LEGAL PRACTICE — THE REPRESENTATION AND ADVISING OF APARTICULAR PERSON IN APARTICULAR SITUATION. At most thebook assumes to offer general adviceon commonproblems, and does not purport togivepersonaladviceon a specificproblem peculiar toa designated or readily identified person. Similarly thedefendant's publication does not purport to give personal advice on a specific problem peculiar toa designated or readily identified personin a particular situation — in their publication and sale of the kits, such publication and sale did not constitutes the unlawful practice oflaw . . . . There being no legal impediment under the statute to the sale ofthe kit, there was no proper basis for the injunction against defendant maintaining an officefor the purposeofselling to persons seeking a divorce, separation, annulment or separation agreement any printedmaterial or writings relating to matrimonial law or the prohibition in the memorandumofmodification ofthejudgmentagainst defendant having an interest in any publishing house publishing his manuscript on divorce and against his having any personal contact with any prospective purchaser. The record does fully support, however, the finding thatfor thechangeof$75 or $100 for the kit,the defendant gave legaladvice inthecourseofpersonal contacts concerning particularproblems whichmight arise in the preparation and presentation ofthepurchaser's asserted matrimonialcauseofaction or pursuit ofother legal remedies and assistance in thepreparation ofnecessary documents (The injunction therefore sought to) enjoin conduct constituting the practiceoflaw,particularly with referenceto the giving ofadviceand counselby the defendant relating tospecific problems ofparticular individuals in connection with a divorce, separation, annulmentofseparationagreementsoughtand should beaffirmed.(State v. Winder, 348, NYS 2D 270 [1973], cited in Statsky, supra at p. 101.). 1.12. Respondent, ofcourse,states that its services are "strictly non-diagnostic, non-advisory. "It is not controverted, however, that iftheservices "involve giving legaladvice or counselling,"such would constitute practice oflaw (Comment, par.6.2). It is inthis lightthatFIDAsubmits that a factual inquiry may be necessary for the judicious disposition ofthis case. xxx xxx xxx 2.10. Annex "A"may be ethicallyobjectionablein that itcan givetheimpression (or perpetuatethe wrong notion) that thereis a secret marriage. Withall thesolemnities,formalities and other requisites ofmarriages (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 relatedto the firstparagraph) fails to statethelimitation that only "paralegal services?"or "legal support services", and not legal services, are available."11
- 8. A prefatory discussionon the meaning of the phrase "practice of law" becomes exigent for the proper determinationof the issues raised by the petitionatbar. On this score,we notethat the clause"practice of law" has long been the subject ofjudicial construction and interpretation. The courts have laid down general principles and doctrines explaining the meaning and scope ofthe term, some ofwhich we now take into account. Practice of law means any activity, in orout ofcourt, whichrequires the application oflaw, legal procedures, knowledge, training and experience. To engage in the practice oflaw is to perform those acts which are characteristicof the profession.Generally, topractice law is to give advice or render any kind ofservice that involves legal knowledge or skill. 12 The practiceof lawis notlimitedto the conductofcases in court. It includes legal advice and counsel, and the preparationof legal instruments and contract bywhich 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 professionalactivity: legal advice and instructions to clients to inform them oftheir rights and obligations, preparationfor clients of documents requiring knowledgeoflegalprinciples not possessed by ordinary layman, and appearance for clients beforepublictribunals which possess power and authority to determine rights oflife, liberty, andproperty according to law,in order to assist in proper interpretation and enforcement oflaw. 14 When a person participates in thea trialand advertises himselfas a lawyer,heis in thepractice oflaw. 15 One who confers withclients,advises them as to their legal rights and then takes the business to an attorney and asks thelatterto look afterthecase incourt,is alsopracticing law.16 Giving advicefor compensation regarding the legalstatus and rights ofanother and theconduct with respecttheretoconstitutes a practice oflaw.17 One who renders an opinionas to theproperinterpretationofa statute, and receives pay for it, is, to that extent, practicing law. 18 In the recent caseof Cayetano vs. Monsod, 19afterciting thedoctrines in severalcases,we laid down the test to determine whether certain acts constitute "practice oflaw,"thus: Black defines "practice of law"as: The renditionof services requiring theknowledgeand theapplicationoflegal principles and technique to serve the interest of another with his consent. Itis not limitedto appearing incourt, or advising and assisting in the conduct of litigation, but embraces the preparation ofpleadings, and other papers incident to actions and special proceedings, conveyancing, the preparationoflegal instruments ofall kinds, and the giving ofall legal advice toclients. Itembraces alladvice toclients andall actions takenfor them inmatters connected with the law. The practiceof lawis notlimitedto the conductofcases on court.(Land TitleAbstractand Trust Co. v. Dworken , 129 Ohio St. 23, 193N. E. 650). Aperson is also considered to be in the practice oflaw when he: . . . . for valuableconsideration engages inthebusiness ofadvising person, firms, associations or corporations as to their right underthelaw,or appears in a representativecapacityas anadvocate in proceedings, pending or prospective,before any court, commissioner,referee,board,body, committee, or commission constituted by law or authorizedto settle controversies andthere, insuch representative capacity, performs any actor acts for the purpose of obtaining or defending therights oftheir clients underthelaw.Otherwise stated, one who, in a representative capacity,engages in the business ofadvising clients as to their rights under the law, or while so engaged performs any act or acts either incourt or outsideofcourt for thatpurpose, is engaged in the practice oflaw. (State ex. rel. Mckittrick v. C.S. Dudley and Co., 102 S. W. 2d 895, 340 Mo. 852). This Court, in the case ofPhilippines Lawyers Association v. Agrava (105 Phil. 173, 176-177),stated: The practiceoflawis notlimitedto the conductofcases or litigation in court; it embraces the preparation of pleadings and otherpapers incident toactions and special proceedings, the management ofsuch actions and proceedings on behalfofclients beforejudges and courts, and inaddition, conveying. In general, all advice to clients, andall actiontaken for them in matters connectedwiththelaw incorporationservices, assessment and condemnationservices contemplating an appearance before a judicial body, the foreclosure ofa mortgage, enforcementofa creditor's claimin bankruptcy and insolvency proceedings, and conducting proceedings in attachment,and inmatters or estateand guardianship have been held to constitute law practice, as do the preparationanddrafting oflegalinstruments,wherethework doneinvolves the determination by the trained legal mind ofthe legal effect offacts and conditions. (5 Am. Jr. p. 262, 263). Practice oflaw under modern conditions consists inno smallpart ofwork performed outside ofany court and having no immediate relation toproceedings incourt.It embraces conveyancing, the giving oflegal advice on a large variety ofsubjects and the preparation andexecutionoflegalinstruments covering an extensive field of business and trust relations and otheraffairs. Although thesetransactions may have nodirect connection with court proceedings, they arealways subject tobecome involved inlitigation. They requirein many aspects a high degree oflegalskill, a wide experiencewith menandaffairs,and greatcapacity for adaptation to difficult and complex situations. Thesecustomary functions ofanattorney or counselor atlaw bear an intimate relation to the administrationofjusticeby thecourts.No validdistinction, sofar as concerns the question set forth in the order, canbe drawn betweenthat partofthework ofthelawyerwhich involves appearance in court and that part whichinvolves adviceand drafting ofinstruments in his office. It is ofimportance to the welfare ofthe public that thesemanifold customary functions beperformedby persons possessed ofadequate learning and skill, ofsoundmoralcharacter,andacting at alltimes under theheavy trust obligations to clients which rests upon all attorneys. (Moran, Comments on theRules o Court, Vol.3 [1973ed.], pp. 665-666, citing In Re Opinion of the Justices [Mass], 194N. E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.]197 A. 139, 144). The practiceoflaw, therefore,covers a widerangeofactivities in andout ofcourt. Applying theaforementioned criteria to the case at bar, we agree with the perceptive findings and observations ofthe aforestated bar associations that the activities ofrespondent, as advertised, constitute "practice oflaw." The contention ofrespondent thatit merely offers legal support services can neither beseriously considered nor sustained.Said propositionis beliedby respondent's own description oftheservices ithas been offering, to wit: Legal support services basically consists ofgiving readyinformationby trained paralegals tolaymenandlawyers, which are strictly non-diagnostic, non-advisory, through the extensive use of computers and modern information technology in the gathering, processing,storage, transmission andreproduction ofinformation and communication,such as computerized legal research;encoding andreproduction ofdocuments and pleadings prepared by laymen or lawyers; documentsearch; evidencegathering; locating parties or witnesses to a case; fact finding investigations; and assistanceto laymenin need ofbasic institutionalservices from government or non-governmentagencies, likebirth,marriage,property,or business registrations;educational or employment records orcertifications, obtaining documentation like clearances, passports, local or foreign visas; giving information aboutlaws ofother countries thatthey may find useful, likeforeigndivorce, marriage or adoption laws that theycan avail ofpreparatory to emigration to the foreign country, and other matters that do not involve representationofclients incourt; designing andinstalling computersystems,programs, or software for the efficient management oflaw offices,corporate legal departments, courts and other entities engaged in dispensing or administering legal services. 20 While someofthe services being offeredby respondent corporationmerely involve mechanical and technical knowhow, such as theinstallation ofcomputer systems and programs for the efficient management oflaw offices, or thecomputerization ofresearch aids and materials, thesewill not sufficeto justify an exception tothe general rule.
- 9. What is palpablyclear is that respondentcorporation gives out legal information to laymen and lawyers. Its contentionthat such function is non-advisory and non-diagnostic is more apparent than real. In providing information,for example,aboutforeign laws on marriage, divorce andadoption, it strains the credulity ofthis Court that all therespondentcorporation willsimply dois lookfor thelaw, furnisha copy thereofto the client, and stop there as if it weremerely a bookstore. Withits attorneys andso called paralegals, it will necessarily have to explain to the client the intricacies ofthelaw and advisehimor heron theproper courseofaction tobe taken as may beprovided for bysaidlaw.Thatis what its advertisements represent andfor thewhich services it will consequently chargeand bepaid.Thatactivity falls squarely within the jurisprudential definition of"practice oflaw."Such a conclusion willnotbe altered by the fact that respondent corporationdoes notrepresentclients in court sincelaw practice,as theweight ofauthority holds,is not limited merely giving legal advice, contract drafting and so forth. The aforesaid conclusionis further strengthened byan article published in the January 13, 1991 issue ofthe Starweek/The Sunday MagazineofthePhilippines Star,entitled "Rx for Legal Problems,"where an insight into the structure,mainpurpose andoperations ofrespondentcorporation was given by its own "proprietor,"Atty. Rogelio P. Nogales: This is thekindof business thatis transactedeveryday atThe Legal Clinic, withoffices on theseventh floor ofthe Victoria Building along U. N. Avenue in Manila. No matter what the client's problem, and eve n ifit is as complicatedas theCuneta-Concepcion domestic situation, Atty. Nogales and his staffoflawyers, who, like doctors are"specialists"in various fields can takecareofit. TheLegalClinic,Inc.has specialists in taxation and criminal law, medico-legalproblems,labor, litigation,and family law.Thesespecialist arebackedup by a battery ofparalegals, counsellors and attorneys. Atty. Nogales setup TheLegalClinic in1984. Inspired bythetrend in themedicalfield toward specialization, it caters to clients who cannot afford the services ofthe big law firms. The Legal Clinichas regular and walk-in clients. "when they come, we start by analyzing the problem. That's what doctors do also.They ask you how youcontracted what's bothering you, they takeyour temperature, they observe you for the symptoms and so on. That's how we operate, too. And once the problem has been categorized, then it's referred to one ofour specialists. There are cases which donot, in medicalterms,require surgery or follow-up treatment. These The Legal Clinic disposes of in a matter of minutes."Things like preparing a simple deed ofsale or an affidavit ofloss can be taken care of by our staff or, ifthis were a hospital the residents or the interns. We can take care ofthese matters on a whileyouwait 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"aredealt with accordingly. "Ifyou had a rich relative who died and named you her soleheir,and youstand to inherit millions ofpesos ofproperty, we would refer you to a specialistin taxation. Therewould bereal estatetaxes andarrears which wouldneedto be put in order, and your relative is eventaxed by the state for the rightto transfer her property, and only a specialistin taxation would be properly trainedto deal with theproblem.Now, ifthere wereotherheirs contesting your rich relatives will, thenyou would needa litigator, who knows how to arrange the problem for presentation in court, and gather evidence to support the case. 21 That fact that the corporationemploys paralegals tocarryout its services is notcontrolling. Whatis important is that it is engaged inthepracticeoflawby virtueofthenature ofthe services it renders which thereby brings it within theambit of thestatutory prohibitions against the advertisements which it has caused to be published and are now assailed in this proceeding. Further, as correctlyandappropriatelypointed out by the U.P. WILOCI, said reported facts sufficientlyestablish that the main purposeofrespondent is toserveas a one-stop-shop ofsorts for various legal problems wherein a client may availoflegalservices from simple documentation tocomplexlitigation and corporate undertakings. Most oftheseservices are undoubtedlybeyondthedomain ofparalegals, butrather,areexclusive functions of lawyers engaged in the practice oflaw. 22 It should benotedthatin ourjurisdiction theservices being offered by private respondent which constitute practice oflaw cannotbeperformed by paralegals. Only a person duly admitted as a member ofthe bar, or hereafter admitted as such in accordance with the provisions ofthe Rules ofCourt, and who is in good and regular standing, is entitled to practice law. 23 Public policy requires that the practice oflaw belimited tothoseindividuals found duly qualified in education and character. The permissiveright conferred on the lawyers is an individual and limited privilege subject to withdrawal ifhefails to maintain proper standards ofmoral and professionalconduct.The purposeis to protect the public, the court, the client and the bar fromtheincompetenceor dishonestyofthoseunlicensed topractice law and not subject to the disciplinary control ofthe court. 24 The same ruleis observed intheamerican jurisdiction wherefrom respondent would wish to draw support for his thesis. Thedoctrines therealso stress that the practice oflaw is limited to thosewho meettherequirements for, and havebeen admitted to, thebar,andvarious statutes orrules specifically so provide. 25 The practice of law is nota lawful business except for members ofthe barwho havecompliedwithall the conditions required by statute and therules ofcourt. Only those persons are allowedto practicelaw who, by reason ofattainments previously acquired through education and study, have been recognized by the courts as possessing profound knowledge oflegal science entitling them to advise, counsel with, protect, or defend the rights claims, or liabilities oftheir clients, with respectto the construction,interpretation, operation and effect oflaw. 26 The justification for excluding fromthepracticeoflaw thosenot admittedto the bar is found,not in the protection ofthe bar from competition, butin the protection ofthe public from being advised and represented in legal matters by incompetent and unreliable persons overwhomthejudicialdepartmentcanexercise little control. 27 We have to necessarily anddefinitely reject respondent's position that the concept in the United States of paralegals as an occupation separatefromthelaw profession beadopted in this jurisdiction. Whatever may be its merits, respondent cannot butbe aware that this should first be a matter for judicial rules or legislative action, and not ofunilateral adoption as it has done. Paralegals intheUnitedStates 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. 28As theconcept ofthe"paralegals"or "legalassistant"evolved intheUnitedStates, standards and guidelines also evolvedto protect thegeneral public.One ofthemajor standards or guidelines was developedby the AmericanBarAssociationwhichset up Guidelines for the ApprovalofLegal Assistant Education Programs (1973). Legislationhas evenbeenproposedto certify legal assistants. Therearealso associations ofparalegals in the UnitedStates with their owncodeofprofessional ethics,such as theNational AssociationofLegal Assistants, Inc. and the American Paralegal Association. 29 In the Philippines,we stillhave a restricted concept and limited acceptance ofwhat may be considered as paralegal service.As pointed out by FIDA, some persons not duly licensed to practice law are or have been allowedlimited representation in behalfofanother orto render legalservices, butsuchallowable services are limited in scope and extent by the law, rules or regulations granting permission therefor. 30 Accordingly,we have adopted the Americanjudicial policythat, in the absence ofconstitutional or statutory authority, a person who has not been admitted as an attorney cannot practicelaw for the proper administration ofjusticecannot behindered by the unwarranted intrusion ofan unauthorized and unskilled person into the
- 10. practice of law.31That policyshould continue tobe one ofencouraging persons who are unsure oftheir legal rights and remedies to seek legal assistance only from persons licensed to practice law in the state. 32 Anent the issueon the validity ofthe questioned advertisements, the Code ofProfessional Responsibility provides that a lawyer in making known his legalservices shalluse only true, honest, fair, dignified andobjective information orstatement offacts. 33 He is not supposed to use or permit the use ofany false, fraudulent, misleading,deceptive, undignified, self-laudatory orunfairstatement or claim regarding his qualifications or legal services. 34 Nor shall he pay or give something of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business. 35 Prior to the adoption ofthe code of ProfessionalResponsibility,theCanons ofProfessionalEthics had also warned thatlawyers shouldnot resort to indirectadvertisements for professional employment, suchas furnishing or inspiring newspaper comments, or procuring his photograph to bepublished inconnectionwith causes in which the lawyer has been oris engaged or concerning the manner oftheir conduct, the magnitude ofthe interest involved, the importance ofthe lawyer's position, and all other like self-laudation. 36 The standards of thelegalprofession condemn the lawyer's advertisement ofhis talents. Alawyer cannot, without violating theethics ofhis profession. advertise his talents or skillas ina manner similar to a merchant advertising his goods. 37 Theprescriptionagainst advertising oflegalservices or solicitation oflegal business rests on the fundamental postulatethat the that the practice oflaw is a profession. Thus, in the case ofThe Directorof Religious Affairs.vs.EstanislaoR. Bayot 38 an advertisement, similar to those ofrespondent which are involved in the present proceeding, 39 was held to constitute improper advertising or solicitation. The pertinent part of the decision therein reads: It is undeniablethat the advertisement in question was a flagrant violationby therespondentofthe ethics ofhis profession,it being a brazen solicitation ofbusiness from thepublic. Section 25 ofRule 127 expressly provides among other things that"thepractice ofsoliciting cases atlaw for thepurposeofgain, either personally or thru paid agents or brokers, constitutes malpractice."It is highly unethicalfor an attorneyto advertise his talents or skill as a merchant advertises his wares.Law is a profession andnota trade.The lawyerdegrades himselfand his profession who stoops to andadopts thepractices ofmercantilism by advertising his services oroffering themto the public. As a member of the bar,he defiles the temple ofjustice with mercenary activities as the money- changers of olddefiled the templeofJehovah. "The most worthyand effectiveadvertisement possible,even for a young lawyer,. . . . is the establishment ofa well-meritedreputation for professional capacity and fidelity to trust. This cannot beforcedbut must betheoutcomeofcharacter and conduct."(Canon 27, Code ofEthics.). We repeat, thecanonof theprofessiontell us thatthebestadvertising possible for a lawyer is a well-merited reputationfor professional capacity and fidelity to trust,whichmust beearnedas the outcomeofcharacter and conduct. Good andefficient serviceto a client as well as to the community has a way ofpublicizing itselfand catching publicattention. Thatpublicity is a normalby-productofeffectiveservice which is right and proper. A good and reputablelawyer needs no artificialstimulus to generateit and to magnify his success. He easily sees the differencebetween a normalby-productofable service and the unwholesome result ofpropaganda. 40 Of course,not alltypes of advertising or solicitationare prohibited. The canons ofthe profession enumerate exceptions totheruleagainstadvertising orsolicitationand definetheextentto whichthey may beundertaken. The exceptions areof twobroad categories,namely,thosewhich are expressly allowed and those which are necessarily implied from the restrictions. 41 The first of suchexceptions is thepublicationin reputable lawlists, in a mannerconsistentwiththestandards of conduct imposed by the canons,ofbriefbiographicaland informative data. "Suchdata must not be misleading and may includeonly a statement ofthelawyer's nameand the names ofhis professionalassociates; addresses, telephonenumbers, cableaddresses; branches oflaw practiced; date and place ofbirth and admission to the bar; schools attended with dates ofgraduation, degrees andother educational distinction; publicor quasi-public offices; posts of honor; legal authorships; legal teaching positions; membershipand offices in bar associations and committees thereof, in legal and scientific societies and legal fraternities; the fact oflistings in other reputablelaw lists; thenames and addresses ofreferences; and, with theirwritten consent, thenames ofclients regularly represented."42 The law list must bea reputable lawlistpublishedprimarilyfor that purpose; it cannot bea mere supplemental feature ofa paper, magazine, tradejournalor periodicalwhich is publishedprincipally for other purposes. For that reason,a lawyermaynot properly publish his briefbiographical and informative data in a daily paper, magazine, trade journal or societyprogram. Nor maya lawyerpermit his name tobe published in a law list the conduct, management or contents ofwhich arecalculated orlikely to deceive orinjurethepublic or the bar, or to lower the dignity or standing ofthe profession. 43 The use ofan ordinary simpleprofessional card is also permitted. Thecardmay containonly a statement ofhis name, thenameofthelaw firmwhichhe is connected with,address, telephonenumber and special branch of law practiced. The publication ofa simple announcement ofthe opening ofa law firm or ofchanges in the partnership, associates, firm name or office address, being for the convenience ofthe profession, is not objectionable. Hemay likewisehave his namelisted in a telephone directory but not under a designation of special branch oflaw. 44 Verily, taking intoconsideration thenatureand contents ofthe advertisements for which respondent is being taken to task, which even includes a quotationofthe fees chargedby said respondent corporation for services rendered, wefind andsoholdthat the same definitely do not and conclusively cannot fall under any ofthe above-mentioned exceptions. The ruling in the caseofBates, et al. vs. State Bar ofArizona, 45whichis repeatedly invokedand constitutes the justification reliedupon by respondent, is obviously not applicable tothecase at bar. Foremost is the fact that the disciplinary ruleinvolvedin said caseexplicitly allows a lawyer,as an exception to the prohibition against advertisements by lawyers,to publish a statement oflegal fees for aninitial consultationor theavailability upon requestofa writtenscheduleoffees or an estimateofthe feeto becharged for the specific services. No such exception is provided for,expressly or impliedly, whether in our former Canons ofProfessional Ethics or the presentCodeofProfessional Responsibility. Besides, even the disciplinary rule in the Bates case contains a proviso thattheexceptions statedthereinare "notapplicableinany stateunless and untilitis implemented by such authorityin thatstate."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 ina survey conductedby theAmerican Bar Association after thedecision in Bates, on the attitude ofthepublic about lawyers after viewing television commercials, it was found that public opinion dropped significantly 47 with respect to these characteristics oflawyers: Trustworthy from 71% to 14% Professional from 71% to 14% Honest from 65% to 14% Dignified from 45% to 14% Secondly, it is ourfirm beliefthat with the present situation ofour legal and judicial systems, to allow the publication ofadvertisements ofthe kind used by respondentwould onlyserveto aggravate what is already a deteriorating public opinionofthelegalprofession whose integrity has consistentlybeen under attack lately by media and the community in general. At this point in time, it is ofutmost importance in the face ofsuch negative, evenifunfair,criticisms attimes,to adopt and maintain that level ofprofessional conduct which is beyond reproach, and toexertall efforts to regainthehighesteem formerly accorded to the legal profession. In sum, it is undoubtedly a misbehavioron thepartofthe lawyer, subjectto disciplinaryaction,to advertise his services except inallowableinstances 48 orto aid a laymanin the unauthorized practiceoflaw. 49 Considering
- 11. that Atty. RogelioP.Nogales, whois the prime incorporator, major stockholder and proprietor ofThe Legal Clinic, Inc. is a member of thePhilippineBar, heis hereby reprimanded, with a warning that a repetition ofthe same or similar acts which are involved in this proceeding will be dealt with more severely. While we deem itnecessarythat the question as tothelegality or illegality ofthepurpose/s for which the Legal Clinic, Inc. was created should bepassed upon anddetermined, weareconstrainedto refrain from lapsing into an obiteron thataspect since it is clearly not within the adjudicative parameters ofthe present proceeding which is merelyadministrativein nature. Itis,ofcourse,imperative that this matter be promptly determined, albeit in a different proceeding and forum, since, under the present state ofour law and jurisprudence, a corporationcannot beorganized for or engage in thepracticeoflaw in this country. This interdiction, just like the rule againstunethicaladvertising, cannotbe subverted by employing some so-called paralegals supposedly rendering the alleged support services. The remedy for the apparent breach ofthis prohibition by respondent is the concern and province ofthe SolicitorGeneralwhocan institute the corresponding quo warrantoaction, 50 after due ascertainment ofthe factual backgroundand basis for thegrantofrespondent's corporate charter, in light ofthe putative misuse thereof. That spin-off from theinstant barmatter is referredto the SolicitorGeneral 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 thepublication or dissemination ofany advertisement in any form which is ofthe same or similar tenor and purposeas Annexes "A"and "B"ofthis petition, and from conducting, directly or indirectly, any activity, operation or transactionproscribed by lawor theCode ofProfessional Ethics as indicated herein. Let copies of this resolution befurnished the IntegratedBar ofthe Philippines, the Office ofthe Bar Confidant and the Office of the Solicitor General for appropriate action in accordance herewith. 4. SAN JOSEHOMEOWNERS ASSN. VS. ATTY. ROMANILLOS This is a Petition1for disbarment against Atty. Roberto B. Romanillos for allegedly representing conflicting interests and for using thetitle "Judge"despite having been found guilty ofgrave and serious misconduct in Zarate v. Judge Romanillos.2 The facts are as follows: In 1985, respondent representedSanJoseHomeowners Association,Inc.(SJHAI) beforetheHuman Settlements Regulation Commission (HSRC) ina case3 againstDurano and Corp., Inc. (DCI) for violation oftheSubdivision and CondominiumBuyer’s Protection Act(P.D. No. 957). SJHAI alleged that Lot No. 224was designated as a school site in thesubdivision plan thatDCI submitted totheBureau ofLands in 1961 but was sold by DCI to spouses Ramon and Beatriz Durano without disclosing it as a school site. While still the counselfor SJHAI,respondent represented Myrna and Antonio Montealegre in requesting for SJHAI’s conformity to construct a school building on Lot No. 224 to be purchased from Durano. When the request was denied, respondent applied for clearancebeforethe Housing and Land Use Regulatory Board (HLURB) in behalf of Montealegre. Petitioner’s Board ofDirectors terminated respondent’s services as counsel and engaged another lawyer to represent the association. Respondentalso acted as counsel for Lydia Durano-Rodriguez whosubstituted for DCI in Civil Case No. 18014 entitled "SanJoseHomeowners,Inc.v. Durano and Corp., Inc."filed before the Regional Trial Court ofMakati City, Branch 134.Thus, SJHAI filed a disbarmentcase againstrespondent for representing conflicting interests, docketed as Administrative Case No. 4783. In her Report4 datedAugust 3,1998,Investigating Commissioner Lydia A. Navarro ofthe Commission on Bar Discipline ofthe Integrated Bar ofthe Philippines (IBP) made the following findings: … Respondent failed to observe candor and fairness in dealing with his clients, knowing fully well that the Montealegrecase was adverseto theComplainant wherein he had previously been not only an active board member butits corporatesecretary having access to allits documents confidential orotherwiseand its counsel in handling theimplementation ofthewrit ofexecutionagainst its developer and owner, Durano and Co. Inc. Moreso, when Respondentacted as counselfor thesubstituted defendant Durano and Co. Inc., Lydia Durano- Rodriguez; the conflict of interest between the latter and the Complainant became so revealing and yet Respondent proceeded to represent the former. … For his defenseofgoodfaith indoing so; inasmuchas the samewasn’tcontroverted by the Complainant which was his first offense; Respondent must be given the benefit ofthe doubt to rectify his error subject to the condition that should he commit the same in the future; severe penalty will be imposed upon him.5 The Investigating Commissionerrecommendeddismissal ofthecomplaint with theadmonition thatrespondent should observeextra care and diligence in the practice ofhis profession to uphold its dignity and integrity beyond reproach. The IBP Board of Governors adopted and approved the report and recommendation ofthe Investigating Commissioner, which we noted in a resolution dated March 8, 1999. Notwithstanding theadmonition, respondentcontinued representing Lydia Durano-Rodriguez before the Court ofAppeals6 and this Court7 and even moved for the execution ofthe decision. Thus, a second disbarmentcase was filedagainst respondent for violation ofthe March 8, 1999 Resolution in A.C. No. 4783 and for his alleged deceitful conduct in using the title "Judge"although he was found guilty of grave and serious misconduct. Respondentusedthetitle"Judge"inhis officeletterhead, correspondences and billboards which was erected in several areas within the San Jose Subdivision sometime in October 2001. In his Commentand Explanation,8respondent claimedthat hecontinuedto represent Lydia Durano-Rodriguez against petitioner despite the March 8, 1999 Resolution because it was still pending when the second disbarment casewas filed. Hemaintained thattheinstant petitionis a rehash ofthefirstdisbarment case from which he was exonerated.Concerning thetitle "Judge", respondent stated that since the filing ofthe instant petition he had ceased to attach the title to his name. On July 7, 2003, the matter was referred to the IBP for investigation, report and recommendation.9 Investigating Commissioner Leland R. Villadolid, Jr. reported that respondent did not violate the admonition because it referredto future cases only and not to cases subject ofA.C. No. 4783. Besides, petitioner never questioned the propriety ofrespondent’s continued representation ofLydia Durano-Rodriguez on appeal until the case was terminated. The Investigating Commissioner, however, believed that respondent was deceitful when he used the title "Judge", thus creating a false impression that he was an incumbent. The Investigating Commissioner recommended thus:
- 12. In view ofthe foregoing considerations, this Commissionerrespectfully recommends the following penalty range to be deliberated upon by the Board for imposition on Respondent: minimum penalty ofreprimand to a maximumpenalty of four (4) months suspension.It is furtherrecommendedthat inaddition tothepenalty to be imposed, a sternwarning be given to Respondent in that should he violate his undertaking/promise not to handle any casein the futurewheretheComplainant would betheadverse party and/or should heagain usethe title of"Judge"which wouldcreate an impression that he is still connected to the judiciary, a more severe penalty shall be imposed on him by the Commission. RESPECTFULLY SUBMITTED. The IBP Board of Governors approved withmodification thereport and recommendation ofthe Investigating Commissioner, thus: RESOLVED to ADOPT and APPROVE, as itis hereby ADOPTED andAPPROVED,with modification, theReport and Recommendation of the Investigating Commissioner ofthe above-entitled case, herein made part ofthis Resolutionas Annex "A", and, finding therecommendation fully supported by the evidence on record and the applicablelaws and rules, and considering Respondent’s violation ofRule 1.01 and Rule 3.01 ofthe Code of ProfessionalResponsibility,Atty.RobertoRomanillos is hereby SUSPENDED from the practice oflaw for six (6) months with a WARNING that should he violate his undertaking/promise a more severe penalty shall be imposed against him. Undoubtedly,respondent represented theinconsistent interests ofSJHAI, DCIas substituted by Lydia Durano- Rodriguez and theMontealegres.Respondentwas admonishedyet hecontinuedto represent Durano-Rodriguez against SJHAI. It is inconsequential that petitioner never questioned thepropriety ofrespondent’s continued representation of Lydia Durano-Rodriguez.The lack ofoppositiondoes not mean tacitconsent. As long as the lawyer represents inconsistent interests of two (2) or moreopposing clients, he is guilty ofviolating his oath. Rule 15.03 ofthe Code of ProfessionalResponsibilityspecifically mandates that a lawyer shall notrepresent conflicting interests except by written consent ofall concerned given after a full disclosure. Incidentally, it is also misleading for respondent to insist that he was exonerated in A.C. No. 4783. We agree withtheIBP that respondent’s continued useofthetitle"Judge"violated Rules 1.01 and 3.01 ofthe Code of ProfessionalResponsibilityprohibiting a lawyer fromengaging indeceitful conduct and from using any misleading statement or claimregarding qualifications or legalservices. Thequasi-judicial notice he posted in the billboards referring to himselfas a judge is deceiving. It was a clear attempt to mislead the public into believing thattheorder was issued inhis capacity as a judge whenhe was dishonorably strippedoftheprivilege. Respondentdidnot honorably retire fromthejudiciary. Heresigned from being a judgeduring the pendency of Zarate v. JudgeRomanillos, wherehewas eventually foundguilty ofgrave and serious misconduct and would have been dismissed from the service had he not resigned. In that case, respondentwas found guilty ofillegalsolicitation and receipt ofP10,000.00 from a party litigant. We ruled thus: Considering theforegoing, respondentJudge RobertoB. Romanillos is herebyfound guilty ofgrave and serious misconduct affecting his integrity and honesty. He deserves the supreme penalty ofdismissal. However, respondent, inanobvious attemptto escapepunishment for his misdeeds, tenderedhis resignation during the pendencyof this case. … Consequently,we arenow precluded from dismissing respondent from the service. Nevertheless,theruling in Peoplev. Valenzuela (135 SCRA712[1985]), wherein the respondent judge likewise resignedbeforethecasecould beresolved, finds application in this case.Therein itwas held that the rule that the resignation or retirement ofa respondent judge in an administrative case renders the case moot and academic, is not a hard and fast rule. … … ACCORDINGLY, in view ofouraforestatedfinding that respondentJudge Romanillos is guiltyofgraveand serious misconductwhichwould havewarranted his dismissalfrom theservicehad henotresigned during thependency ofthis case,and itappearing that respondenthas yet toapply for his retirement benefits and other privileges if any; the Court, consistent withthepenalties imposed inValenzuela (supra.), hereby orders the FORFEITURE of all leaveandretirement benefits andprivileges towhich herein respondent Judge Romanillos may be entitled WITH PREJUDICEto reinstatement and/or reemployment in any branch or instrumentality ofgovernment, including government-owned or controlled agencies or corporations. SO ORDERED.10 The penalty imposed upon him in said caseincluded forfeitureofall leave and retirement benefits and privileges to which he may be entitled with prejudice to reinstatement and/or reemployment in any branch or instrumentality ofgovernment, including government-ownedor controlled agencies or corporations. Certainly, the use of the title ‘Judge’ is one ofsuch privileges. We have previously declared that the use oftitles such as "Justice"is reserved to incumbent and retired members oftheSupreme Court, theCourt ofAppeals andtheSandiganbayanandmay notbe used by any other official oftheRepublic, including those given the rank of"Justice".11 By analogy, the title "Judge"should be reserved only to judges, incumbentand retired, andnot tothosewhowere dishonorably discharged from the service. As correctlypointed out by the Investigating Commissioner,theright to retain and usesaid title applies only to the aforementioned members ofthebench and noother,and certainly notto thosewho wereremoved or dismissed from the judiciary, such as respondent. Membershipin the legal profession is a special privilege burdened with conditions.12 It is bestowed upon individuals who arenotonly learned inlaw, but also knownto possess good moral character.13 Lawyers should act and comport themselves with honesty and integrity ina manner beyond reproach, in order to promote the public’s faith in the legal profession.14 To say that lawyers must at alltimes upholdandrespect the lawis to statetheobvious, butsuch statement can never be overemphasized. Considering that,"of allclasses andprofessions, [lawyers are]mostsacredly bound to uphold thelaw,"it is imperative that they live by the law. Accordingly, lawyers who violate their oath and engage in deceitful conduct have no place in the legal profession.15 Disbarment is the most severeform ofdisciplinary sanction. We are mindful that the power to disbar must always be exercised with great caution,for onlythemost imperativereasons,16 andin clearcases ofmisconduct affecting thestanding andmoralcharacter ofthelawyeras anofficer ofthecourtandas a member ofthebar.17 This is not respondent’s first infraction as an officerofthe court and a member ofthelegal profession. He was stripped ofhis retirement benefits and other privileges inZarate v. Judge Romanillos.18 InA.C. No. 4783, he got off lightly with just an admonition.Considering his previous infractions, respondentshould haveadhered to the tenets ofhis profession with extra fervor and vigilance. He did not. On the contrary, he manifested undue disrespectto ourmandate andexhibiteda propensity toviolatethelaws. Heis thus unfitto discharge the duties ofhis office and unworthy ofthetrust and confidencereposed onhimas anofficer ofthecourt. His disbarment is consequently warranted. Section 27, Rule 138 ofthe Revised Rules ofCourt provides: SEC. 27. Disbarmentor suspension ofattorneys by Supreme Court; grounds therefor. –Amember ofthe bar may be disbarred orsuspended fromhis office as attorney by theSupremeCourt for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason ofhis conviction ofa crime
- 13. involving moral turpitude,or for any violation ofthe oath which he is required to take before admission to practice,or for a wilfuldisobedienceofany lawfulorder ofa superior court, or for corruptly or wilfully appearing as an attorney for a party to a case without authority so to do. The practice ofsoliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice. WHEREFORE, respondent Atty. RobertoB. Romanillos is DISBARRED and his name is ORDERED STRICKEN from the Roll of Attorneys.Let a copy ofthis Decisionbeenteredin respondent’s record as a member oftheBar, and notice of the same be served on the Integrated Bar of the Philippines, and on the Office of the Court Administrator for circulation to all courts in the country. 5. IN RE SYCIP Two separate Petitions werefiledbefore this Court1) by the surviving partners ofAtty. Alexander Sycip, who died on May 5, 1975,and 2) by thesurviving partners ofAtty. HerminioOzaeta, whodied onFebruary14,1976, praying that theybe allowedto continue using, in the names oftheir firms, the names ofpartners who had passed away. In the Court's Resolution ofSeptember 2, 1976, both Petitions were ordered consolidated. Petitioners base their petitions on the following arguments: 1. Under the law,a partnership is not prohibited fromcontinuing its business undera firmname which includes the name of a deceased partner; infact, Article1840ofthe Civil Codeexplicitly sanctions the practice when it provides in the last paragraph that: têñ.£îhqw⣠The use by the person or partnership continuing the business ofthe partnership name, or the name ofa deceased partner as partthereof, shall not ofitselfmaketheindividual property ofthedeceased partner liable for any debts contracted by such person or partnership. 1 2. In regulating other professions, such as accountancy andengineering, thelegislaturehas authorized the adoptionof firm names withoutanyrestrictionas to the use, insuch firm name, ofthenameofa deceased partner; 2thelegislative authorizationgiven to thoseengaged in the practice ofaccountancy — a profession requiring thesamedegree oftrust and confidence in respect ofclients as that implicit in the relationship of attorneyand client— to acquireand usea tradename, stronglyindicates that there is no fundamental policy that is offended by the continued useby a firmofprofessionals ofa firm name which includes the name ofa deceased partner, at least where such firm name has acquired the characteristics ofa "trade name."3 3. The Canons of Professional Ethics are not transgressed by the continued use ofthe name ofa deceased partner inthefirm name ofa lawpartnership becauseCanon33ofthe Canons ofProfessional Ethics adopted by the American Bar Association declares that: têñ.£îhqw⣠... The continued useof the name ofa deceased or former partner when permissible by local custom, is not unethical but care should be taken that no imposition or deception is practiced through this use. ... 4 4. There is no possibility ofimpositionor deceptionbecausethe deaths oftheir respective deceased partners werewell-publicized in allnewspapers ofgeneral circulation for several days; the stationeries now being used by themcarry new letterheads indicating the years when their respective deceased partners were connected withthefirm;petitioners will notify all leading national and internationallaw directories ofthe fact of their respective deceased partners'deaths. 5 5. No local custom prohibits the continued useofa deceased partner's name in a professional firm's name; 6 thereis no customor usage inthePhilippines,or atleastin the Greater Manila Area,which recognizes that the name of a law firm necessarily Identifies the individual members ofthe firm. 7 6. The continueduseofa deceased partner's name in the firm name oflaw partnerships has been consistently allowedby U.S. Courts andis an accepted practice inthelegal profession ofmost countries in the world. 8 The questioninvolved in thesePetitions first came under consideration by this Courtin 1953 whena law firm in Cebu (the Deen case) continued its practice ofincluding in its firm name that ofa deceased partner, C.D. Johnston. The matter was resolved with this Court advising the firm to desist from including in their firm designation the name ofC. D. Johnston, who has long been dead." The same issue was raised before this Court in 1958 as an incident in G. R. No. L-11964, entitled Register of Deeds ofManila vs. China Banking Corporation. Thelaw firmofPerkins & Ponce Enrile moved to intervene as amicus curiae.Before acting thereon, theCourt,in a Resolution ofApril15, 1957, statedthat it"would liketo be informed why the name of Perkins is still being used although Atty. E. A. Perkins is already dead." In a Manifestation dated May 21, 1957, the law firm ofPerkins and Ponce Enrile, raising substantially the same arguments as thosenowbeing raised bypetitioners, prayedthat the continued useofthe firm name"Perkins & Ponce Enrile"be held proper. On June 16, 1958, this Court resolved: têñ.£îhqw⣠After carefully considering the reasons given by Attorneys Alfonso Ponce Enrile and Associates for their continued useofthe name ofthe deceasedE. G. Perkins, theCourt found noreasonto departfrom the policy it adoptedin June1953when itrequired Attorneys Alfred P. Deen and Eddy A. Deen ofCebu City to desist from including in their firmdesignation, the name ofC. D.Johnston, deceased. TheCourt believes that, inview ofthe personal andconfidentialnature oftherelations between attorney and client, andthehighstandards demanded in the canons ofprofessional ethics, nopracticeshould beallowed which evenin a remotedegree could giverise to the possibility ofdeception. Saidattorneys areaccordingly advised to drop the name "PERKINS"from their firm name. Petitioners herein now seek a re-examination ofthe policy thus far enunciated by the Court. The Court finds no sufficient reason to depart from the rulings thus laid down. A. Inasmuch as "Sycip, Salazar, Feliciano, Hernandez and Castillo"and "Ozaeta, Romulo, De Leon, Mabanta and Reyes"are partnerships,theuse intheirpartnershipnames ofthe names ofdeceasedpartners will run counter to Article 1815 ofthe Civil Code which provides: têñ.£îhqw⣠Art. 1815. Every partnership shalloperate under a firm name,which may ormay notincludethenameofoneor more ofthe partners. Those who, notbeing members ofthepartnership, include their names inthefirm name,shall besubject to the liability, ofa partner. It is clearly tacit intheaboveprovisionthat names ina firmnameofa partnership musteither bethose ofliving partners and.in the caseofnon-partners,should be living persons who can be subjected to liability. In fact, Article 1825oftheCivil Codeprohibits a thirdperson fromincluding his name in the firm name under pain of assuming the liabilityofa partner. Theheirs ofa deceasedpartnerin a law firmcannot beheld liable as the old members to the creditors ofa firm particularly where they are non-lawyers. Thus, Canon 34 ofthe Canons of ProfessionalEthics "prohibits an agreement for thepaymentto thewidowand heirs ofa deceased lawyer ofa percentage, either gross or net, ofthe fees received fromthefuture business ofthedeceased lawyer's clients, both becausetherecipients ofsuch division are not lawyers and because such payments will not represent serviceor responsibilityon thepartofthe recipient."Accordingly, neither thewidow nor theheirs can be held
- 14. liable for transactionsentered into after the death oftheir lawyer-predecessor. There being no benefits accruing, there ran be no corresponding liability. Prescinding the law, there could be practical objections to allowing the use by law firms ofthe names of deceased partners. The public relations value of the use of an old firm name can tend to create undue advantages anddisadvantages in the practiceoftheprofession. An ablelawyerwithout connections willhaveto make a namefor himself starting from scratch. Another ablelawyer, whocan join an old firm, can initially ride on that old firm's reputation established by deceased partners. B. In regards to thelast paragraph ofArticle 1840 ofthe CivilCode cited bypetitioners, supra, the first factor to consider is thatit is withinChapter3 ofTitleIX ofthe Codeentitled "Dissolution andWinding Up."The Article primarilydeals withtheexemptionfrom liability in cases ofa dissolved partnership, ofthe individual property of the deceased partner for debts contracted by the person or partnership which continues the business using the partnership name or the name ofthe deceased partner as part thereof. What the law contemplates therein is a hold-over situation preparatory to formal reorganization. Secondly, Article1840treats more ofa commercial partnership with a good will to protect rather than ofa professional partnership, with no saleable good will but whose reputation depends on the personal qualifications of its individual members. Thus, it has been held that a saleable goodwill can exist only in a commercial partnership andcannot ariseina professional partnership consisting oflawyers. 9têñ.£îhqw⣠As a general rule, upon the dissolution ofa commercialpartnershipthesucceeding partners or parties have the right to carry on thebusiness under the old name,in the absence ofa stipulationforbidding it, (s)ince the name ofa commercial partnershipis a partnership asset inseparable fromthegoodwill ofthefirm. ...(60 Am Jur 2d, s 204, p. 115) (Emphasis supplied) On the other hand, têñ.£îhqw⣠... a professionalpartnership thereputation ofwhich depends or; theindividual skill ofthe members, such as partnerships of attorneys or physicians, has no good win to be distributed as a firm asset on its dissolution, however intrinsically valuable such skill and reputation may be, especially where there is no provision in the partnership agreement relating to good will as an asset. ... (ibid, s 203, p. 115) (Emphasis supplied) C. A partnership for thepracticeoflaw cannot belikened to partnerships formed by other professionals or for business. Foronething, thelaw on accountancy specifically allows theuseofa tradenamein connection with the practice of accountancy. 10 têñ.£îhqw⣠A partnership for thepracticeoflaw is nota legal entity. It is a mere relationship orassociation for a particular purpose. ... It is not a partnership formed for the purpose of carrying on trade or business or ofholding property."11Thus, ithas been stated that "theuse ofa nom deplume,assumedor tradenameinlaw practiceis improper. 12 The usualreasongiven for different standards ofconduct being applicable to the practice oflaw from those pertaining to business is that the law is a profession. Dean Pound, in his recently published contribution to the Survey ofthe Legal Profession, (The Lawyer from Antiquity toModern Times, p.5) defines a profession as "a group ofmen pursuing a learned art as a common calling in the spirit of public service, — no less a public service because it may incidentally be a means of livelihood." xxx xxx xxx Primary characteristics which distinguish the legal profession from business are: 1. A duty ofpublicservice, ofwhich theemolument is a byproduct, and in which one may attain the highest eminence without making much money. 2. A relation as an "officer of court" to the administration ofjustice involving thorough sincerity, integrity, and reliability. 3. A relation to clients in the highest degree fiduciary. 4. A relationto colleagues atthebar characterized by candor,fairness, and unwillingness to resort to current business methods ofadvertising and encroachment on their practice, or dealing directly with their clients. 13 "The right to practicelaw is not a naturalor constitutionalright butis in the natureofa privilegeor franchise. 14 It is limited to persons ofgood moral characterwith specialqualifications dulyascertainedand certified. 15 The right does not only presupposeinits possessor integrity, legalstanding and attainment, butalso theexercise of a special privilege, highly personal and partaking ofthe nature ofa public trust."16 D. Petitioners citedCanon33ofthe Canons ofProfessional Ethics ofthe American Bar Association"in support oftheir petitions. It is true thatCanon33does not consideras unethical the continued use ofthe name ofa deceased or former partner inthefirmnameofa law partnership whensuch a practiceis permissible bylocal custombut theCanon warns that care should be taken that no imposition or deception is practiced through this use. It must be concededthat inthePhilippines,no local custom permits or allows thecontinued use ofa deceased or former partner's namein thefirmnames oflawpartnerships. Firm names, under our custom, Identify the more activeand/or moreseniormembers or partners ofthe law firm. Aglimpse at the history ofthe firms of petitioners andofother lawfirms inthis countrywould showhowtheir firm names have evolved and changed from time to time as the composition ofthe partnership changed. têñ.£îhqw⣠The continueduseofa firmnameafterthedeath ofoneor more ofthepartners designatedby it is proper only where sustained bylocalcustom and not where by custom this purports to Identify the active members. ... There wouldseemto bea question, under theworking oftheCanon, as tothepropriety ofadding thenameofa new partner andatthesametimeretaining that ofa deceased partner whowas never a partner with the new one. (H.S. Drinker, op. cit., supra, at pp. 207208) (Emphasis supplied). The possibility ofdeceptionupon the public, real or consequential, where the name ofa deceased partner continues to beused cannot beruledout.Apersonin search oflegal counsel might be guided by the familiar ring ofa distinguished name appearing in a firm title. E. Petitioners argue that U.S. Courts have consistently allowed the continued use ofa deceased partner's name in the firm name oflaw partnerships. But that is so because it is sanctioned by custom. In the case ofMendelsohn v. EquitableLife AssuranceSociety(33 N.Y.S.2d 733) which petitioners Salazar, et al. quoted in their memorandum, theNewYork SupremeCourtsustained the use ofthe firm na me Alexander & Green even if none of the present ten partners of the firm bears either name because the practice was sanctioned by custom and did not offend any statutory provision or legislative policy and was adopted by agreement ofthe parties. The Court stated therein: têñ.£îhqw⣠The practicesoughtto beproscribed has thesanctionofcustomand offends no statutory provisionor legislative policy. Canon33ofthe Canons ofProfessional Ethics ofboth the American Bar Association and the New York
- 15. State Bar Associationprovides in part as follows: "The continued use ofthe name ofa deceased or former partner,when permissibleby local custom is not unethical, but care should be taken that no imposition or deception is practicedthrough this use."Thereis no question as tolocal custom. Many firms in the city use the names of deceased members with the approval ofother attorneys, bar associations and the courts. The Appellate Divisionof theFirst Department has considered the matter and reached The conclusion that such practice should not be prohibited. (Emphasis supplied) xxx xxx xxx Neither the Partnership Lawnor the Penal Law prohibits the practice in question. The use ofthe firm name herein is also sustainable by reason ofagreement between the partners. 18 Not so in this jurisdiction where there is nolocal customthat sanctions the practice. Customhas been definedas a rule of conductformed by repetitionofacts, uniformly observed(practiced) as a socialrule, legally binding and obligatory. 19Courts takeno judicial noticeofcustom. Acustom must beprovedas a fact,according totherules ofevidence. 20Alocalcustom as a sourceofrightcannot beconsidered bya courtofjusticeunless suchcustom is properly established by competent evidencelikeanyother fact. 21 We find such proofofthe existence ofa local custom,and of theelements requisiteto constitute thesame, wanting herein. Merely because something is done as a matter of practicedoes not meanthat Courts canrely on thesamefor purposes ofadjudication as a juridicalcustom. Juridical custom must be differentiated from social custom. The former can supplement statutory law or be applied in the absence ofsuch statute. Not so with the latter. Moreover, judicial decisions applying or interpreting the laws form part ofthe legal system. 22 When the Supreme Court in theDeenand Perkins cases issuedits Resolutions directing lawyers to desist from including the names of deceasedpartners in their firmdesignation, itlaid downa legal rule against which no custom or practice tothecontrary, even ifproven,can prevail. This is not tospeak ofour civil lawwhichclearly ordains that a partnership is dissolved by thedeath ofany partner. 23 Custom which are contrary to law, public order or public policy shall not be countenanced. 24 The practice of law is intimately and peculiarly related to the administration ofjustice and should not be considered like an ordinary "money-making trade."têñ.£îhqw⣠... It is of the essence of a profession that itis practicedin a spirit ofpublicservice. Atrade ... aims primarily at personal gain; a profession at the exercise ofpowers beneficial to mankind. If, as in the era ofwide free opportunity,we think of free competitiveselfassertion as thehighestgood,lawyer and grocer and farmer may seem to befreely competing with their fellows in their calling in order each to acquire as much ofthe world's good as he may within theallowed him by law. But themember ofa profession does not regard himselfas in competition with his professional brethren.He is not bartering his services as is the artisan nor exchanging the products of his skilland learning as thefarmersells wheat or corn. There shouldbe nosuch thing as a lawyers'or physicians'strike. The best serviceofthe professionalman is often rendered for no equivalent or for a trifling equivalent and it is his pride to do what he does in a way worthy ofhis profession even ifdone with no expectationof reward, This spirit ofpublic service inwhichtheprofessionoflaw is and ought tobe exercisedisa prerequisite of sound administration ofjustice according to law. The other two elements ofa profession, namely,organization and pursuit ofa learnedarthavetheirjustification inthat they secure and maintain that spirit. In fine,petitioners'desire topreserve the Identity oftheir firms in the eyes ofthe public must bow to legal and ethical impediment. ACCORDINGLY, the petitions filed herein are denied and petitioners advised to drop the names "SYCIP" and "OZAETA" from their respective firm names. Those names may, however, be includedin the listing of individuals who havebeenpartners intheirfirms indicating the years during which they served as such. 6. DACANAY VS. BAKER MCKENZIE Lawyer Adriano E. Dacanay, admittedto the bar in 1954, inhis 1980verifiedcomplaint, sought toenjoin Juan G. Collas,Jr.andnine other lawyers from practising lawunderthenameofBaker & McKenzie, a law firmorganized in Illinois. In a letter dated November 16, 1979respondent Vicente A. Torres, using the letterhead ofBaker & McKenzie, which contains the names ofthe ten lawyers, asked Rosie Clurman for the release of87 shares ofCathay Products International, Inc. to H.E. Gabriel, a client. Attorney Dacanay,in his reply datedDecember 7,1979, deniedany liability ofClurmanto Gabriel.He requested that he be informed whether the lawyer ofGabriel is Baker & McKenzie "and ifnot, what is your purpose in using the letterhead ofanother law office."Not having received any reply, he filed the instant complaint. We hold that Baker & McKenzie, being analien lawfirm,cannot practicelaw in thePhilippines (Sec. 1,Rule 138, Rules ofCourt). As admittedby therespondents in their memorandum, Baker & McKenzie is a professional partnershiporganized in 1949in Chicago, Illinois with members and associates in 30 cities around the world. Respondents, asidefrom being members ofthePhilippine bar, practising under the firm name ofGuerrero & Torres, are members or associates ofBaker & Mckenzie. As pointed out by the SolicitorGeneral, respondents'use ofthe firm name Baker & McKenzie constitutes a representation that being associatedwiththefirmthey could "render legal services ofthe highest quality to multinationalbusiness enterprises and others engaged in foreign trade and investment"(p. 3, respondents' memo). This is unethicalbecauseBaker &McKenzieis notauthorizedto practiselawhere. (See Ruben E. Agpalo, Legal Ethics, 1983 Ed., p. 115.) WHEREFORE, the respondents are enjoined from practising law under the firm name Baker & McKenzie. 7. RAMOS V. RADA CASTRO, J.: Moises R. Rada a messenger in the Court ofFirst Instance ofCamarines Norte, Branch II, is charged with a violation ofSection 12 ofCivil Service Rule XVIII, which provides as follows: Sec. 12. No officer or employeeshallengagedirectly in any private business, vocation, or profession or be connected withany commercial, credit,agricultural or industrialundertaking withouta writtenpermission from the head ofDepartment: Provided, That this prohibition will be absolute in the case ofthose officers and employees whose duties and responsibilities require that their entire time be at the dis posal of the Government:.... From the respondentRada's letters ofexplanationand their annexes, dated December 16, 1973 and June 27, 1974, respectively,andtheletter and its annexes, dated August 12, 1974, filed by the complainant Rene P. Ramos, by way ofrejoinder to Rada's explanation, undisputed fundamental facts emerge that justify us in dispensing with a full-blown investigation ofthis administrative case. The respondent Rada receives a monthly salary ofP267.75. On December 15, 1972 he was exte nded an appointment bytheAvescoMarketing Corporation, thru its president, Jimmy Tang, as representativetomanage and supervisereal properties situated in Camarines Norte which were foreclosed by the corporation. Rada accepted theappointmentanddischarged his duties as administrator. The administrative complaint against Rada was filedwiththeDepartment ofJustice on October 3, 1973. He requested permission to accept the appointment onOctober 27, 1973. Itis not indicated that his acceptance and discharge ofthe duties ofthe positionofadministrator has atall impaired his efficiency as messenger; nor has it been shown that he did not observe regular office hours.
- 16. Indubitably, therefore,Rada hasviolated thecivilservice ruleprohibiting government employees from engaging directlyin a privatebusiness, vocationor profession or being connectedwith any commercial, credit, agricultural or industrial undertaking without a written permission fromtheheadoftheDepartment.But, indubitably, also, his privatebusiness connection has notresultedin any prejudice totheGovernment service. Thus, his violation ofthe rule — thelack of priorpermissionis a technical one,and heshould bemeted nomorethantheminimum imposable penalty, which is reprimand. The duties of messenger Rada are generally ministerialwhichdo notrequirethat his entire day of24hoursbe at the disposalof theGovernment.Suchbeing his situation, it wouldbe tostiflehis willingness to apply himselfto a productiveendeavorto augmenthis income, and toaward a premium for slothfulness ifhe were to be banned from engaging inor being connectedwith a private undertaking outsideofofficehours andwithout foreseeable detriment to the Government service. His connection with Avesco Marketing Corporation need not be terminated,but hemustsecurea writtenpermissionfrom the ExecutiveJudge ofthe Court ofFirst Instance of Camarines Norte, whois hereby authorizedto grantor revokesuchpermission, undersuch terms andconditions as will safeguard the best interests ofthe service, in general, and the court, in particular. ACCORDINGLY, the respondentMoises R. Rada is adjudgedguilty ofa technical violation ofSection 12 ofCivil Service Rule XVIII,for which heis hereby reprimanded.He may however apply, ifhesodesires,for permissionto resume his business connection with the corporation, in the manner above indicated. 8. OMICOMINING AND INDUSTRIAL CORP. VS. VALLEJO Original petitionfor certiorariand prohibition withwrit ofpreliminary injunction to set aside the orders and judgment rendered by respondent Judge in Civil Case No. N-1963 (Alfredo Catolico v. Omico Mining and IndustrialCorporation,et al.) as having been made without or inexcess ofjurisdiction, or with grave abuse of discretion. FACTS On June 1, 1973,Alfredo Catolico (herein private respondent), then a judge ofthe Court ofFirst Instance of Cavite, filed with said court a complaint, docketed as Civil Case No. N-1963and assigned to BranchII presidedby respondent Judge Amador T. Vallejos, against Omico Mining and Industrial Corporation and Frederick G. Webber, the latter inhis personal capacity and as President and Chairman ofthe Board ofDirectors ofsaid corporation, alleging two (2) causes ofaction. The first, for the return often (10) certificates ofstock ofthe corporationborrowedfrom him by the defendants, and the second, for the payment ofhis services as legal counselfor thecorporation. Under thefirstcause ofaction, plaintiffCatolico allegedamong others that he is a resident of CaviteCitywherehe is a judge oftheCourt ofFirstInstanceand stockholderofthe defendant Omico Mining and IndustrialCorporationholding thirty (30) certificates ofstock duly paid up bearing Nos. 13437 to 13466, the samehaving beenissuedto him way back in August, 1969; thatdefendant corporation, through its co-defendantFrederick G. Webber, pleaded withhimthat ten(10) certificates ofstock, Nos.13437 to13446, be allowedto remain with themundertheirresponsibility,jointly and severally, for the specific purpose ofusing said certificates as part collateral for a loan in the amount ofP10,000,000.00, the defendants were then negotiating with theDevelopment Bank ofthe Philippines, and that both defendants, jointly and severally, promised to return saidcertificates ofstock upon theapprovalor disapproval oftheloanapplication; that when disapproval of said loan application appeared imminent, the defendants again pleaded with him for the retention of the same ten (10) certificates ofstock because they were negotiating for the purchase ofthe Bunning andCompany of Tuguegarao for P2,000,000,00,and thatthey needed said certificates as partcollateral for the transaction; thatwhen thosetwo transactions failed, hedemanded severaltimes ofthe defendants for the returnto himof theten(10) certificates aforementionedsothat hecouldusethem, butsaid demands were ofno avail; that inview of thefailure ofthe defendants to comply with his demands, he is forced to file the complaintseeking the returnto him ofsaid ten (10) certificates ofstock. Under the second cause ofaction, plaintiffafter reproducing thepertinentaverments inthefirst causeofaction,among which is the avermentthat he is a judgeoftheCourt ofFirstInstanceofCavite, further alleged that onOctober13,1968, both defendants enteredinto a contractofpersonal andprofessional services withhimunder the terms ofwhich hewas to head defendant corporation's legal departmentwith theconditionthat heshouldrender suchservices only after his office hours,"even into the dead weehours ofthe nightand wherever such services would not run in conflict with his duties as Judge"; that in consideration ofsuchservices, thedefendants undertook to pay him a yearly salaryofP35,000.00 fromthedateofthe contract, but wherea caseshallhave been settledin andout ofcourt, and defendants shall have won or saved money because of such settlement, he sha ll be paid by way of commission ten percent (10%) oftheamount involved inthelitigation and/or settlement; that, pursuantto said contract, hehas renderedlegal services as head ofthe legaldepartment ofdefendant Omicoand has attended to the personalconsultationofdefendantFrederick G. Webberuntilthefiling ofthecomplaint, when, by reason thereof, their official relations weresevered; thatthedefendants shouldrender thecorresponding accounting of his unpaid commission andsalaries, taking into consideration thepartial payments and advances given to him as salary; that a more detailedspecification ofthe services renderedby himin favorofthe defendants were made in a letter to the defendants, mailed on May 28, 1973 from his official res idence in Cavite City; that the defendants refused andfailed to render such accounting andto pay his emoluments, in spite ofhis repeated demands to that effect. Plaintiff, therefore,prayed that, on the firstcauseofaction, defendants be ordered to return to himtheten (10) certificates ofstock, or, in case thereturnthereofcannot bedone,to issueinhis favor the samenumber and amount ofcertificates ofstock as replacementor to pay him the par value thereof; and, on the secondcause ofaction, defendants be ordered to renderthecorresponding accounting ofthe amounts due him in accordancewith the averments in the complaint, and to pay him the balance as reflected in the accounting as approvedby thecourt; to pay him moral, exemplary, punitive and afflictive damages, in such amounts as assessedby thecourt; to pay him attorney's fees and costs; and to grant him such other reliefs available in the premises. 1 Served withthecorresponding summons and copies ofthecomplaint,thepetitioners, as defendants therein, on June 10, 1973 fileda motion todismiss thecomplaint on two grounds: namely (1) improper venue, in that the case was filed inCavite where plaintiffis not a resident, the truth being that he is a resident ofQuezon City where he has his permanent family home; and,as to the second causeofaction, the contract ofpersonal and professionalservices between plaintiffand defendants was entered into in the City ofManila, and, therefore, the caseshouldhave been filedin Manila in accordance with Section I ofRule 4 ofthe Revised Rules ofCourt; and (2) lack ofcauseofaction, in thatwith regard to thestock certificates thesameare in the name ofVicente Resonda; and,withrespect tothecontract ofpersonaland professional services whereinit was agreed that the plaintiffshallhead thelegal department ofdefendant OmicoMining & IndustrialCorporation, thesameis illegal, void and unenforceable,plaintiffbeing a judgeoftheCourt ofFirstInstancewho is prohibited by Section 35 of Rule 138 oftheRevised Rules ofCourt fromengaging inprivatepracticeas a member oftheBar. The motion to dismiss contains the following notice ofhearing: têñ.£îhqw⣠The Clerk ofCourt Court ofFirst Instance ofCavite City Branch II Greetings: Pleaseincludethe foregoing motion in thecalendar ofthe Honorable Court on Saturday, June 16, 1973, and have the same submitted for resolution without further arguments on the part ofthe defendants. (Sgd.) JOSEF. PEREZ COPYFURNISHED: (By registered Mail) Atty. Jaime B. Lumasag, Counsel for the Plaintiff, 5-C Banawe, Quezon City
- 17. Attachedto themotion isRegistry ReceiptNo. 45297issued by Manila Central Post Office on June 9, 1973. 2 On June 16, 1973, the date set for thehearing of themotionto dismiss,neithertheparties nor their respective counsels appearedin court. Butthecourt,noting that therewas no clear showing in the record that notice of hearing of said motion had been served upon counsel for the plaintiff, issued on June 18, 1973 an Order postponing consideration ofthemotion "untilcounsel for the defendants shallhave shown tothesatisfactionof the Court thata copy of his motion todismiss has been furnished counselfor theplaintiff."The Order adds that "in said event, the Clerk of Court shallcalendar anewthehearing ofthe motion to dismiss furnishing a copy of the date of the bearing to counsels for theplaintiffandfor thedefendants."3 Copies ofsaid Order weresent to the respective counsels ofthe parties on June 10, 1973 by registered mail. 4 While themotion to dismiss was pending resolutionby thecourtbecausedefendants had not yet presented to the court therequired proofofservice, plaintiff, on January 11, 1974,filed a petition to declarethe defendants in defaultandto allowhimto present his evidence ex parte.In said petition,plaintiffalleged, insubstance, that defendants had beenserved withsummons and copies ofthecomplaint onJune 8,1973; thatas ofJanuary 11, 1974, or aftera lapseof seven (7) months fromtheserviceofsummons, defendants had not filed their answer to the complaint; thatthedefendants hadfiled a motionto dismiss the complaint onJune 10,1973, thehearing ofwhich had been set toJune 16,1973but the noticeofsaid hearing was addressed totheClerk ofCourt,notto Atty. JaimeB. Lumasag, counsel for plaintiff; thattheRevised Rules ofCourt provides that petitions and motions should besentto opposing parties who shouldbe notified ofthedateofthe hearing thereof; that the notice of hearing indefendants'motion to dismiss is fatally defective, it being addressed to the Clerk ofCourt; and that because of thatdefect, defendants'motion todismiss is a "useless pieceofpaper", citing Philippine Advertising Counselors, Inc. v. Hon. Pedro A. Revilla, G.R. No. L-31869, promulgated on August 8, 1973. 5 By Order of January15,1974, thecourtgranted the petition6 and,consequently, it received ex parte the evidence ofthe plaintiff and rendered judgment thereon on January 29, 1974, the dispositive portion of which reads: têñ.£îhqw⣠WHEREFORE, judgmentis hereby rendered in favor ofthe plaintiffand against the defendants directing the latter: 1. To return to theplaintifften(10) certificates of stock corresponding to 100,000shares ofthe Omico Mining and IndustrialCorporationin the name ofVicenteResonda bearing Nos. 13437up toandincluding 13446 or in lieu thereof, todeliver to said plaintiffnew certificates ofthe above-named corporation ofequivalent value; 2. To pay to the plaintiff the total amount of One Million One Hundred Eighty-six Thousand Four Hundred Thirty-fivePesos and Eleven centavos (P1,186,435.11) atthelegalrateofinterest until said amount is fully paid; 3. To pay to the plaintiffby way ofattorney's fees the amount ofTen Thousand Pesos (P10,000.00); 4. To pay the costs."7 On March 5, 1974, defendants filed a motion for reconsideration, advancing the arguments (1) that the judgment is contrary to law and the liberal interpretation ofthe Revised Rules ofCourt, in that they have complied with the provisions ofSection 10ofRule13, Revised Rules ofCourt,by stating inthemotionto dismiss that a copythereof was furnishedby registered mail to Atty. Jaime B. Lumasag, counsel for the plaintiff, and attaching thereto the registry receipt thereforissued by the Manila Central PostOffice; that the purpose ofthe notice has been served becauseas per certificationofthe post office ofQuezon City, saidAtty. JaimeB. Lumasag received thecopy of theMotion toDismiss beforeJune 16, 1973,thedateset for the hearing ofthemotion; and that, withrespect tothereturncard,they havenot received thesame, hence, they could not comply with the submissionthereof; (2) that the circumstances obtaining in the case do not warrant the default order which finally paved theway for therendering ofjudgmentin favor ofthe plaintiff, because counselfor theplaintiffhad received a copy ofthe motion todismiss oneday beforethehearing thereof; thatsaidmotion shouldhave been acted upon, considering thatit contains contentious issues which when resolved would show the complaint to be "nothing butempty claims"; and that the ruling in Philippine Advertising Counselors, Inc. cannot apply, because the facts therein areatvariancewith those ofthepresent case; and (3) thatthedefendants havea valid defense andstrong evidence torebut and/or controverttheclaims oftheplaintiffas shown by the affidavits of Jose F. Perez and HilarionP. Dugenio, legal counsel andcorporate secretary, respectively, ofOmico Mining and IndustrialCorporation.The motion contains a noticeto counselfor plaintiffthat the hearing thereofhas been set for March 15, 1974. 8 On March 15,1974,plaintiffCatolico, onhis ownbehalf, filed a motion to postpone hearing ofthe motion for reconsiderationto April 29, 1974,to enablehim toprepareanintelligibleopposition thereto. The motion does not contain a notice ofhearing. It merely states at the foot thereofthata copy ofsaid motion was furnished Pio R. Marcos and GuillermoBandonil, counselfor defendants, without stating how delivery was effected. 9 But notwithstanding absenceofnoticeofhearing,thecourt,considering the absence, ofobjection thereto on the part ofthe defendants, granted the motion for postponement, with the condition that the defendants be furnishedwith a copy ofthe opposition; that defendants may filetheir replyto theopposition withinfifteen (15) days from receiptofa copy thereof; andthat thereafter the matter be deemed submitted for resolution. 10 On May 31, 1974, while defendants'motionfor reconsiderationwas stillpending beforethecourt because the defendants had notfiled yet their reply to the oppositionas they had not received a copy thereof, 11 plaintiff Catolico filed a motion for immediateexecutionofjudgment,alleging, among otherthings, that said judgment had already becomefinalandexecutory because the defendants failed tohave the order ofdefault lifted; that the motionfor reconsideration was filed out oftime; that there was a "manifest attempt on the part ofthe defendants to delay theproceedings toaffordthem an opportunity to havealltheir assets andshares dissipated by continuous sale ofthesameto theprejudice"not onlyofrespondentCatolico but also of"some forty to fifty creditors who filedcomplaints against the defendants for estafa and civil suits for collection amounting to hundreds ofthousands ofpesos"; that some80% ofdefendants'assets and properties hadalready been sold at fantastically lowprices todefraud creditors whohad beendeceitfully assured by the management thatthey are well protected; thatthejudgmentmight becomeineffective "due tothenotoriously deceptivemovements"(sic) to which thedefendants "daily and continuously expose themselves"; and that immediate execution ofthe judgment is the only protection that can be rendered to plaintiffunder the premises. 12 On June 18, 1974, the Court issued simultaneously two (2) Orders, one denying defendants'motion for reconsideration, 13and theother directing the issuance ofa writ ofexecution ofits decision ofJanuary 29, 1974. In thelatter Order, thecourt appointed the City SheriffofManila, herein respondent Leonardo Alcid, to execute said writ ofexecution. 14 On June 19, 1974, defendants filed their noticeofappealto this Court,anappealbond and a record on appeal. The record on appealwas approvedon August 27, 1974 only because ofthe absence ofthe respondent Judge from his station, he being then a participant in the seminar of Judges of Court of First Instance in the Development Academy ofthe Philippines at Tagaytay City. 15 On the same date, June 19, 1974, in the afternoon, respondent SheriffofManila, through his Senior Legal Assistant and Acting ExecutiveSheriffDominador Q. Cacpal served a noticeofgarnishment to the defendants, together witha writ ofexecution issued by the respondentJudge. On July 22, Pio R. Marcos, as President and Chairman oftheBoardofDirectors ofdefendant Omico Mining and Industrial Corporation, wrote a letter to respondentSheriffasking that thedefendants be givena littlechanceto exhaustthelegal remedies available to hold in abeyance theexecution andgarnishment. Among thereasons presentedby Marcos arethatdefendants were not given a chanceto havetheirday in courtin the motionfor immediate execution ofjudgment and that they have already appealed from the lower court's decision and order ofimmediate execution. 16 Becauseoftheimpending execution ofthejudgmentby defaultwhichthey believetobe illegal, defendants, on July 25, 1974, filedwith this Court the instantpetition praying,among other things, that respondent Judge be
- 18. restrained fromcommanding theCitySheriffofManila, or his dulyauthorized representative, to execute the decision of January 29, 1974. The petition assails mainly the Order of respondent Judge, declaring the defendants in default, the consequent reception oftheevidence ofthe plaintiffex parte and the judgment by default rendered thereon, as having been made without or in excess ofjurisdiction, or with grave abuse of discretion because said respondent Judge failed to resolve first the defendants'motion to dismiss. In a resolutiondated July24,1974, Werequired, withoutgiving duecourseto the petition, respondents tocomment on said petition withinten(10) days from notice thereof, and, as prayed for, issued a temporary restraining order. RespondentJudge andprivaterespondent Catolicofiled separatecomments.Per resolution datedAugust 20, 1974, We resolved to consider their comments as their Answer to the petition. In his answer, respondentJudgejustifies his failureto act ontheaforesaid motion to dismiss the complaint in this wise: têñ.£îhqw⣠In insisting in their petitionthat itwas obligatory for this respondent to grant or deny said motion to dismiss, counsels who filedthis petition seem tobe feigning ignoranceas to reasons why this respondent chose toignore their motionto dismiss and consideredit a merescrap ofpaper. Itis humblysubmittedthat said reasons have been amply setforthanddiscussedin the Decision renderedin CivilCase No.N-1963 (Annex F tothepetition) in accordance withthedecisionofthis HonorableTribunalin the caseofPhilippine Advertising Counselors, Inc., versus Hon. Pedro Revilla, et al., G.R. No. L-31869), to this effect: têñ.£îhqw⣠'Finally, Section4, Rule15 ofthe Rules ofCourtprovides thatnoticeofa motion shall beservedby theapplicant to all parties concerned, at least threedays beforethehearing thereof, together with a copy ofthemotion, and ofany affidavits and other papers accompanying it, and Section 5 ofthe same rule requires the motion to be directed to the parties concernedand to state the timeand placefor thehearing ofthemotion. Amotionwhich fails to comply with these requirements is nothing but a useless piece ofpaper ...'(Emphasis supplied). Counsels who filed the instant petition know more than anybody else that their motion to dismiss did not comply withthestandards required inthedecisionabovequotedfor it was addressed to theClerk ofCourt and not to the party concerned. As such,said motion todismiss was but 'a useless pieceofpaper'without any legal standing, and, therefore, could neither be granted nor denied, by this respondent .... Subsequently,or on September 6,1974, privaterespondent fileda motion todismiss said petitionon theground that the remedyof certiorariandprohibition is no longer available tothehereinpetitioners, inasmuch as they had already perfectedtheir appeal. 17 Petitioners opposed the motion to dismiss on the ground that their appeal is inadequate to protect their rights for, without the restraining order issued by this Court, the respondents could have executed the decision and orders in question. 18 ISSUES The first issuetobe resolvedhere is whether the respondentJudge actedwithout orin excess ofjurisdiction or with grave abuseof discretion in declaring thedefendants indefault,in receiving plaintiff's evidence ex parte and in rendering judgment thereon. The second is whether ordinary appeal, not certiorari and prohibition, is the proper remedy available to petitioners. 1. With regard to the firstissue, respondents contend that the motion to dismiss the complaint is a "useless pieceof paper"becausethenoticeofhearing incorporatedthereinis addressed to the Clerk ofCourt, not to the party concerned,that is,theplaintiffor his counsel, as required by the rules. We do not agree. As copied verbatim above,thenotice ofhearing states thetime andplace ofhearing, and a copy thereofwas sent through registeredmailseven (7) days before the date set for thehearing ofthemotionbutactuallyreceived by plaintiff's counsel one (1) day before said date, as per certification ofthe Quezon City Post Office. To Our mind, whatis decisivehere is that plaintiffhad sufficient notice ofthe time and place ofthe hearing of the motionto dismiss. We havesaid inManila Surety and Fidelity Co., Inc. v. Bath Constructionand Company, 19 "unless the movantsets the timeand placeofhearing the court wouldhave noway to determine whether that party agrees to or objects to the motion, and ifhe objects, to hear him on his objection, since the Rules themselves do notfix any period withinwhich hemay file his reply oropposition."In the Matusa case, We said that granting that the noticeis defective for failureto specify theexact date whenthemotion to dismiss should be heard,theCourt, in taking cognizanceofthe motionon thedatesetfor thehearing thereof, curedwhatever iota ofdefect sucha pleading mayhave had, especially ifit is taken into account that upon receipt ofthemotion to dismiss, plaintiffwas properly notified oftheexistenceofsaidpleading. 20 Indeed, We declared that there may be cases where the attendance ofcertain circumstances "may be considered substantive enough to truncatetheadverseliteral applicationofthe pertinent rules violated."21 The case at bar is such an instance, because private respondenthad sufficient noticeoftheplace,time anddatewhen the motion todismiss was to be heard.It is, therefore, evident from the foregoing that the respondent Judge acted with grave abuse of discretion when hedeclared thepetitioners in default. The motion to dismiss was pending before the court when suchdeclaration was made, and itis generally irregular to enter an order ofdefault while a motion to dismiss remains pending andundisposedof. 22 Theirregularity ofthe order ofdefault is evident from the fact that whenthepetitioners were declared in default, their time for filing an answer had not yet commenced to run anew becauseon saiddate, their counsel had not yet receivedanynoticeoftheactiontakenby thecourton their motionto dismiss. Under Section 4 ofRule 16 ofthe Revised Rules ofCourt, ifthe motion to dismiss is denied or ifthe determination thereofis deferred,themovant shallfilehis answer withintheperiod prescribed by Rule 11, computed fromthetimehe receivednotice ofthedenial or deferment, unless the court provides a different period. Inotherwords,theperiod for filing responsivepleading commences to run allover again from the time the defendant receives notice ofthe denial or deferment ofhis motion to dismiss. Inasmuch as petitioners were declared in default while their motion to dismiss was still pending resolution, they were, therefore, incorrectly declared indefault,and theholding ofthetrial ofthecaseon themerits, intheirabsence, without duenoticeto them ofthe date ofhearing, was a denial ofdueprocess. 23 Consequently, the order of default, the judgment and the order ofexecution are patent nullities. In connectionwith the foregoing,We notice the ambivalence with which the respondent Judge applied the rules. Thus, whilehe was unduly strict regarding the requirements ofnotice ofhearing to the defendants, he was, at the same time, unduly liberal with respect to the plaintiff. For instance, plaintiff's Motion for Reconsiderationdid not contain any noticeofhearing, or proofofservice thereof, or even the address ofthe plaintiffwho signed personally said motion. Notwithstanding the absence ofthese data, respondent Judge readilygranted the motion. Then there is plaintiff's motion for immediate execution ofjudgment pending appeal. Although itwas apparent thata copy ofsaid motioncould not havebeenreceived by the counselfor the defendants attheirofficein Baguio City prior to the date ofthehearing on June3, 1974,considering that it was only on May 29, 1974 whena copy ofsaid motion was allegedly posted by registered mail at the Manila Post Office, respondent Judge did not require, as he did with respect to defendants'motion to dismiss, proofof serviceofthenoticethereof. Such conduct falls short ofthe requirement that the official conduct ofa judge should not only be free from impropriety, but also from the appearance ofimpropriety.. 2. There is, moreover, theconsideration that the challenged judgment seeks to enforce a contract which is patently voidbecause it is contrary to law and public policy. The contract ofprofessional services enteredinto between privaterespondentandthepetitioners, whiletheformer was still a judge ofthe Court of First Instance,constituted private practice oflaw andin contraventionofthe express provision ofSection 35 of Rule 138 oftheRevised Rules ofCourt. The aforecited Rule was promulgated by this Court, pursuant to its constitutional powerto regulatethepractice oflaw. It is based on sound reasons ofpublic policy,for thereis no question thattherights, duties, privileges and functions ofthe office ofan attorney-at-law are so inherently incompatiblewith thehigh officialfunctions, duties,powers,discretions and privileges ofa judgeoftheCourt of First Instance. 24 This inhibitory rulemakes itobligatory upon the judicial officers concerned to give their full time and attentionto their judicial duties, prevent them from extending special favors to their own private interests and assurethepublic oftheir impartiality in the performanceoftheir functions. These objectives are dictated by a sense ofmoral decency and the desire to promote the public interest.
- 19. Privaterespondent should haveknown oroughtto know, that whenhe was elevated to the Bench ofthe Court ofFirst Instanceas a judgethereof, his right topractice lawas an attorney was suspended and continued to be suspended as long as he occupied the judicial position. 25 It is evident, therefore, that the aforesaid contractis voidbecausea contract, whose cause, objector purpose is contrary tolaw, morals,good customs, publicorder or publicpolicy, is consideredinexistent and void from the beginning. 26 3. On the question oftheremedy availedofby petitioners, respondents maintainthat where appeal is available, as ithas been shown tobe available tothepetitioners when they perfected their appeal in Civil Case No. N-1963, theremedy of certiorari and/or prohibition cannot beresorted to. In resolving this question, We advert to Our ruling in Matute v. Court ofAppeals, supra, where We stated: têñ.£îhqw⣠In opposing theinstant petition, theplaintiff-respondent contends thattheremedy ofthedefendant petitioner is not a petition for certiorari but an ordinary appeal pursuant to Rule41, Section 2, paragraph 3 which reads: 'A party who has been declared indefault may likewise appeal from the judgment rendered against him as contrary totheevidence orto thelaw, even ifno petition for reliefto set aside the order ofdefault has been presented by him in accordance with Rule 38.'. We do not agree. The remedy provided for in the above-quoted rule is properly, though not exclusively, availableto a defendant whohas been validly declared in default. It does not preclude a defendant who has been illegally declared in default from pursuing a more speedy and efficacious remedy, like a petition for certiorarito havethejudgmentby defaultset asideas a nullity. It shouldbe emphasized thata defendantwho is properly declared indefault is differently situatedfrom onewho is improvidently declaredin default. Theformer irreparably loses his rightto participatein the trial, whilethe latter retains such a right and may exercise the same after having theorder ofdefaultandthesubsequentjudgmentby defaultannulled andthecaseremanded to the court of origin. Moreover theformer is limited totheremedy set forth insection 2,paragraph3 ofRule41 by virtue of which hecan contest only thejudgment by default onthedesignated ground that it is contrary to the evidence or the law; the latter, however, has the option to avail ofthe same remedy or to forthwith interposea petition for certiorariseeking thenullification oftheorderofdefault evenbefore the promulgation ofa judgment bydefault,or in the event that thelatter has been rendered, to have both court decrees — the order ofdefault andthejudgmentby default — declared void.The defendant-petitioner's choice ofthe latter course of action is correct for hecontroverts thejudgmentby defaultnot ontheground that itis not supported by evidence or it is contrary to law, but on the ground that it is intrinsically void for having been rendered pursuant to a patently invalid order ofdefault. Granting, however, that an appeal is open to the defendant- petitioner, the same is no longer anadequateand speedy remedy considering thatthecourt a quo had already ordered the issuanceof a writ ofexecution and the carrying outofsuch writ loomedas a great probability. This is in consonancewith the doctrine enunciated inVda. deSaludes v. Pajarilloand Bautista (78Phil.754) wherein this Courtheld thatan'appealunderthecircumstances was notanadequate remedy there being an order or execution issuedby themunicipal court.'Hence, the rulethatcertioraridoes notliewhen there is an appeal is relaxedwhere, as in theinstantcase, thetrialcourt had already ordered the issuance ofa writ ofexecution. The above ruling applies with cogentforceinthepresent case. WHEREFORE, certiorariis granted andthedefault order, judgment and writofexecution renderedby therespondent JudgeinCivil CaseNo. N-1963arehereby set aside,and therespondent Judgeis orderedto hear and decidethemotion todismiss thecomplaint, taking into account Ourforegoing opinion.The temporaryrestraining order is madepermanent,withcosts against private respondent. 9. AQUINOV. BLANCO On February 5,1947, theCourt ofFirstInstanceofIloiloin an action broughtthereinby thepetitioners Santiago Aquiño and Dionisia Aguirre, as plaintiffs, against respondent Dominga Salveron, as defendant, rendered judgment ofwhich the following was the dispositive part: Por tanto,sedicta sentencia declarando que la demandada Dominga Salveron es la dueña de la parcela de terreno No.1 de la demanda; y quelos esposos demandantes Dionisia Aguirrey Santiago Aquiñosonlos dueños de la parcela deterreno No.2 de la demanda.Sin especialpronunciamento encuanto a la costas. (Petition, p. 1.) At the trailofthat casethethereindefendant Dominga Salveron was represented by Atty. Basilio Sorioso. Later said attorney was appointed, and qualified, as Assistant Provincial Fiscal ofIloilo, which position he was occupying onFebruary 11, 1947.On this lastdatenoticeoftheaforementioned judgment was served on him. For reasons which donotappearin the record,serviceofsad judgment was served on Mr. Sorioso despite the fact that he was no longer in private practice and was already discharging the official duties ofassistant provincialfiscal.The verifiedanswerofrespondentDominga Salveronin the presentproceedings alleges these last facts, and further avers that sheonly knew thata decision had been rendered in the case after the 21st of March, 1947,when thewrit ofexecution in the meantime issued was served on her. This case having been submittedto this Court withouttheproduction ofevidencebutmerely upon the verified petition and verified answer,underthedoctrinelaiddownby this Court inEvangelista vs. Dela Rosa, 76Phil., 115, as well as in the case ofBauermannvs.Casas, 10 Phil., 386, 390,thepetitioners must be understood to admit the truth ofall materialand relevantallegations ofthe adverseparty,and to rest their petition upon those allegations taken together withsuch oftheir ownas are admitted inthepleadings. Under this rule, theallegations ofrespondent Dominga Salveron above referredto must beaccepted. Butthis is not all; thereexists intherecord oftheinstant case theaffidavit ofMr. Basilio Soriosodated April 1,1947, which was attached to the defendant's (Dominga Salveron's) motionofApril2,1947(AnnexAofanswer) testifying to the following facts, among others: that he was the attorney ofsaid defendant in the said case; that he received a copy of the decision ofthe court on February 11, 1947,when hewas already in the dischargeofthe duties ofassistant provincial fiscal; that being very busy in the performanceofsaidduties whenhereceived said copy,he left said decision on his table, and due to the many tenancycases he was thenattending to, and even up to the date ofhis affidavit, aside from attending tothetrialofthecases assigned to him, he failed to notify said defendant, who was then living in Anilao, whichis 45 kilometers from theCityofIloilo, ofthesame; that his failure to notify said defendant was due to inadvertenceor excusablenegligenceon his partas at the timethe copy ofthe decision was served on him he was no longer practicing law but was discharging his official duties as assistantprovincialfiscaland there was at thetimewhen hereceived saidcopy somany tenancy cases hewas attending toand thereweresomany papers onhis tablethat thesaiddecision"just slipped out ofmy mind"; that a few days after the issuance ofthe writ ofexecution onMarch 21, the samewas served onthedefendant and thedecision cameto her knowledge; and that hadthedefendant been notified ofthe decision she would have taken steps to appeal therefrom because she believes she has a good case. When Attorney Soriosowas appointed totheposition ofassistant provincial fiscal and therein qualified, by operation oflaw heceasedto engage inprivatelaw practice, andas a consequencehe becamesimultaneously disqualified to continuerepresenting his formerclient,theherein respondentDominga Salveron, in the above- mentioned case. So that in contemplation oflawthenoticeofthedecisionupon him on February 11, 1947, was not a noticeupon saidrespondent, andtheperiod for perfecting an appeal onthepart ofthe latter inreality did not then commence torun but only,ifat all, whenshe acquiredknowledgeofsaid decisionupon theservice on her ofthe writ ofexecution on March 26, 1947. Buteven ifthe abovefacts had not intervened, there is in the record a clear showing that the case is wholly covered by Rule 38, section 2. The writ ofexecutionthus issuedunder date ofMarch21,1947, was served onrespondent Dominga Salveron, as defendant,on March26,1947, according toparagraph3 ofthepetition. But as allegedin paragraph 4 ofthe same petition andalsoin paragraph 4 ofthe answer,saidrespondent under dateofApril2, 1947,filed a petition to vacatesaid writ ofexecution. Andalthoughsaidpetition was first denied by vacation JudgeVillalobos, it was later granted byrespondent JudgeBlanco through thelatter's order ofMay 24, 1947,quoted in paragraph 5 of
- 20. the petition herein.That writ of execution was an "order"or "proceeding"entered or taken against said respondent, as defendant, within the meaning ofRule 38, section 2, providing: SEC. 2. Petition to CourtofFirst Instancefor relieffromjudgment or other proceeding thereof. — When a judgment or ordered is entered,or any otherproceeding is taken, against a party in a Court ofFirst Instance through fraud, accident, mistake, or excusablenegligence, hemay file a petition in such court and in the same cause prying that the judgment, order, or proceeding be set aside. Under thesefacts andcircumstances, wearesatisfied that a good casefor equitable reliefhas been made out under Rule38,section 2,andthatJudgeBlanco did not abuse his discretion in entering his order ofMay 24, 1947, quoted on page3 of theinstant petition, setting asidetheorder dated April 29, 1947,enteredby vacation Judge Villalobos, and permitting the therein defendant to present a record on appeal. Petition dismissed, with costs. 10. VILLEGAS V. LEGASPI These two cases (L-53869 and L-51928) filed in May, 1980 and September, 1979, respective, involved the prohibition in Section 11, Article VIII ofthe 1973 Charter, which used to read: Sec. 11. No member of theNationalAssembly shallappear as counselbefore any court inferior to a court with appellate jurisdiction, ... The antecedents facts follows: L-53869 On September 27, 1979, a complaint for annulment ofbank checks and damages was filed by Raul A. Villegas against theVera Cruz spouses and Primitivo Cania, Jr. (privaterespondents) beforetheCourt ofFirstInstance of Cebu, Branch XVI, then presided by Hon. Ceferino E. Dulay (Civil CaseNo. 431-L). An answer,dated October 11, 1979, was filedby privaterespondents through their counsel,AssemblymanValentino1. Legaspi, a member of the Batasang Pambansa from the province of Cebu. Raul A. Villegas "challenged" the appearance of Assemblyman Legaspi as counsel of record on the ground that he is barred under the Constitution from appearing before Courts of FirstInstance, which are essentiallytrialCourts or Courts ofFirst Instance, which are essentially trial Courts or Courts of First Instance, which are essentially trial Courts or Courts oforiginal jurisdiction. AftertheOpposition andReply totheOppositionwerefiled, JudgeDulay issued anOrder inhibiting himselffromthe aforesaid case because Assemblyman Legaspi was likewise the lawyer ofhis wife in two pending cases. Thecase was re-raffledandredocketed as Civil Case No.R-18857, and transferred to Branch II, presided by Judged Francisco P. Burgos (respondent Court). In an Order, dated February 27, 1980,Judge Burgos deniedthedisqualification ofAssemblyman Legaspi,as well as the Motion for Reconsideration filed thereafter. Hence, this recourse to certiorari and Prohibition. A temporary Restraining Order was issued ex-parte by this Tribunal on May 22, 1980enjoining respondentCourt from acting in Civil Case No. R-18857 below. L-51928 Edgardo P. Reyes filed, onJuly 3,1979, CivilCaseNo. 33739 before the Court ofFirst Instance ofRizal (Pasig), Branch XXI,against N. V. Verenigde Buinzenfabrieken Excelsior-DeMaas andprivaterespondent Eustaquio T.C. Acero to annul the saleof Excelsior's shares intheInternationalPipeIndustries Corporation (IPI) to EustaquioT.C Acero, allegedly on the ground that, prior thereto, the same shares had already been sold to him (Reyes). AssemblymanEstanislaoFernandez entered his appearance as counsel for Excelsior. This appearance was questioned on theground thatit was barred bySection 11, ArticleVIII ofthe1973Constitution, above-quoted. Initially,this case(L-51928) was filed as a SupplementalPetition toL-51122 (Eugenio Puyat, et als. Hon. SixtoT.J. de Guzman), butthis Courtorderedit docketed separately. And since the issue involved is on all fours with L- 53869, the Courtoptedto resolveCase No. L-51928jointly with L-53869 instead ofwith L-51122 as originally directed. The novel issue for determination is whether or not members ofthe Batasang Pambansa, like Attorneys Valentino L. Legaspi and Estanislao A. Fernandez, can appear as counsel before Courts ofFirst Instance. A comparison ofSection11, Article VIII, ofthe1973Constitutionprohibiting any Assemblyman from appearing as counsel"before any Court inferior to a Court with appellate jurisdiction", and the "similar"provision of Section 17, Article VI, ofthe 1935 Charter is elucidating. The last sentence ofthe latter provision reads: ... No member ofthe Commission on Appointments shall appear as counsel before any Court inferior to a collegiate Court ofappellate jurisdiction. A significant amendmentis thedeletion oftheterm"collegiate". Further,thelimitation now comprehends all members of the Batasang Pambansa, and is no longer confined to members of the Commissions on Appointments, a body not provided for under the 1973 Constitution. Under the amendment toArticle VIIIofthe 1973 Constitution,ratified in a national plebiscite held on April 7, 1981, Section 11 now reads: SEC. 11. No member oftheBatasang Pambansa shall appear as counsel before any court without appellate jurisdiction, ... The term 'collegiate"remains deleted , and the terminology is now "Court without appellate jurisdiction." Although the cases atbar were filed prior to the aforesaid amendment, they should be resolved under the amended provision.Weabideby the propositionthat"as a general rule, the provisions ofa new Constitution take effect immediately and become operative on pending litigation."1 Clearly,what is prohibited toa Batasang Pambansa member is "appearance as counsel""before any Court without appellate jurisdiction. "Appearance"has been defined as "voluntary submission to a court's jurisdiction". 2 "Counsel"means "an adviser, a person professionally engaged in the trial or management ofa cause in court; a legal advocate managing a case at law; a lawyer appointed or engagedto advise and represent in legal matters a particular client, publicofficer,or public body". 3 Ballantine's Law Dictionary says a counsel is "counselor, an attorney at law; one or moreattorneys representing parties in an action". 4 Thus, "appearance as counsel"is a voluntary submissionto a court's jurisdictionby a legaladvocateor advising lawyerprofessionally engaged to represent and plead the causeof another. This is the common, popularconnotation ofthis word which the Constitution must haveadopted. Inonecase, 5in resolving thequestion ofwhatconstitutes 'appearance as an advocate," the Court held that "advocate"theCourt held that "advocate" means one who pleads the cause ofanother before a tribunal or judicial court, a counselor. Judging from theprescribed criteria, thereshould beno question that Assemblyman Valentino L. Legaspi, in preparing theAnswer for privaterespondent-spouses in CivilCaseNo. R-18857beforetheCourt ofFirst Instance ofCebu, Branch II,appears as theircounsel. Similarly, AssemblymanEstanislaoA. Fernandez appears as counsel for Excelsior in Civil Case No. 33739 oftheCourtofFirst InstanceofRizal (Pasig), BranchXXI. They representand plead the cause ofanother before a Court ofjustice.
- 21. The next poserthen arises: are the Courts ofFirst Instance, where Assemblyman Legaspi and Fernandez, respectively, appear as counsel ofrecord, Courts with appellate jurisdiction? There are authorities to theeffectthat the essential criterion ofappellate jurisdiction is that it revises and corrects theproceedings in a casealreadyinstituted and does not create that cause 6 Or, that it necessarily implies thatthe subject-matter has been instatedin and acted upon by some other court whose judgment or proceedings are to bereviewed. 7 Inanearly Philippine case, 8 itwas held to mean jurisdiction to review the judgment of aninferior court. And,that itcalls for and demands previous legitimate jurisdiction by a court of origin. 9 By law, Courts of FirstInstanceare Courts ofgeneral original jurisdiction. 10However,under the same statute, their jurisdiction has been stated to be oftwo kinds: (a) original and (b) appellate. 11 They have appellate jurisdictionoverall cases arising in City andMunicipal Courts in their respectiveprovinces except over appeals from cases tried by Municipaljudges ofprovincial capatals or City Judges pursuants to the authority granted under the last paragraph ofSection 87 ofthe Judiciary Act. 12 It is rather clearthat Courts ofFirst Instance, by virtue ofa specific bestowal by the Judiciary Act of1948, as amended, canbe Courts withappellatejurisdiction. And, by the deliberate omission oftheword "collegiate"in both the originaland amendedSection 11, Article VIII ofthe 1973 Constitution, the obvious intention ofthe framers is thatCourts of FirstInstance, as appellate Tribunals, no longer fall within the ambit ofthe previous prohibition. Theyaresingle-Judge Courts with appellate jurisdiction from decisions and orders ofCity and Municipal Courts.13 Statedotherwise, under the amended proviso, Courts ofFirst Instance are not Courts without appellate jurisdiction. It is contended, however,that theCourts ofFirst Instance inthese two cases took cognizanceofthesuits in the exerciseof their exclusiveoriginaland notappellatejurisdiction, hence, Assemblymen Fernandez and Legaspi are still prohibited from appearing before said Courts as counsel. There is merit to this contention. It should bebornein mindthat Courts ofFirst Instancehavedual"personality". Depending on the casebeforeit, said Courts can beeither ofappellate or originaljurisdiction. Thequestion thento beresolved is whether or not Assemblymen can appear as counsel before Courts ofFirst Instance in cases originally filed with them. We are of the considered opinion that, to render effective the Constitutional provision, appearanc e by legislators beforeCourts of First Instance shouldbe limited to cases wherein said Courts exercise appellate jurisdiction. This is true to the time-honored principle that whatever is necessary to render effective any provision of a Constitution, whether the samebea prohibition or a restriction, must be deemed implied and intended in the provision itself. 14 It bears repeating that underSection 17, Article VI ofthe 1935 Charter, it was provided that members ofthe Commission onAppointments shall not"appear as counsel before any Court inferior to a collegiate Court of appellate jurisdiction."The intent was clear that members ofthe Commission on Appointments shall not "appear as counselbeforeanyCourt inferior toa collegiateCourt ofappellate jurisdiction."The intent was clear that members of the Commission on Appointments could notappear beforeCourts ofFirst Instance.Uppermost in the minds of theframers was "appellate jurisdiction"more than Court. Under Section 11, Article VIII ofthe 1973 Constitution,thescopeoftheprohibition was expandedto embraceall members ofthe National Assembly who were barred from"appear(ing) as counselbefore any Courtwithout appellate jurisdiction."Consistently, the principalcriterion is "appellate jurisdiction."So that, whena legislator appears in an original casefiled witha Court with "appellate jurisdiction." Appellate practice is allthat is permitted because oftheadmitted predominanceoflawyers in the legislature. 15 Their office has always favored themwith theinfluence andprestigethatit carried. Today, as before, it is only "appellate practice"that is allowed with the significant difference that, this time, the Court need not be a collegialbody. This sobecausewith theremoval of thelegislative power toreview appointments the source of power and influencethatmembers ofthe National Assembly could unduly exert in the exercise ofthe legal profession has been greatly minimized. This is a situation where therestricted meaning mustprevailover thegeneral becausethe natureofthesubject matter ofthecontextclearly indicates that thelimitedsenseis intended. 16 In fact, the original emandement proposedby Antonio V. Raquiza, Delegate ofthe First District, Ilocos Norte, in Resolution No. 345 entitled "Prohibiting Members oftheNational Assembly to Use Their Office As a Means ofPromoting Sel-Interest" — was to bara NationalAssembly member from appearing as counselbeforeany Court. Inthe"Whereas"clauses, that proposalwas believed tobe an "improvement"over Section17, Article VI ofthe1935Constitution and the purpose ofthe proposed amendement was explained as follows: xxx xxx xxx 2. The Constitutional provisionenumerates the kind ofcourtor administrativecases where a legislator cannot appear. Inour proposalheis absolutely barred becauseit is fearedthat thepractice ofhis profession will interfere with the performance of his duties or that because the power ofhis office might influence the administration ofjustice. ... (Emphasis supplied) 17 The co-author ofResolutionNo. 345. DelegateLeocadioE. Ignacio from the lone District ofIsabela, and Floor Leader ofthe 1971 ConstitutionalConvention,elucidatedfurtheron thepurposebehind the prohibition when he wrote in his Position Paperthat 'The prohibitionagainst appearing as counsel is necessary because ofthe under influencewhich members ofCongress enjoy whenthey practicebeforetheCourts and especially before administrativeagencies. It is an accepted fatthat our legislatureis composed ofa predominance ofpracticing lawyers, and who aretherefor expectedto benaturally notaverseto exerting allinfluence that they canmuster in the pursuitoftheirprofession."Continuing, hesaid: "The inabilityto practiceas counsel ... should be part of the sacrifices entailed in running for the position oflawmaker. 18 The amendement proposed by Delegate Gonzalo O. Catan, Jr. ofNegros Orientaleven wentfurther: "No member oftheNationalAssembly shall, during his term ofoffice, appearas counsel,directlyor indirectly, inany Court or administrative body ..."19 Delegate Emerito M. Salva from the Second District, Ilocos Norte, substituted his own amendment, thus: Section 13. No memberoftheNational Assemblyshall,during his term ofoffice, practice directly or indirectly any occupationor profession or beallowed toengagedirectly or indirectly in any trade,business, orindustry. 20 and explained: 10.2. Explaining thesubstituteamendment,DelegateSalva said thattheassemblymen should render full-time service to the national. He pointed out that they should be barred from the practice oftheir respective professions sincethey wouldreasonably be compensated for devoting their time to the work ofthe National Assembly. 21 While Section 11, ArticleVIII,as finally adopted by the Constitutional Convention, did not carry the several amendments proposed, theyarereflectiveofthesentiment prevailing at the1971 ConstitutionalConventional, and reinforcethecondition that appearanceas counsel by Assemblymen was meant tobeconfined toappellate practice and not unlimited practicebeforeCourts ofFirst Instance. That sentiment has been carried over the amendmentratified in theApril, 1981 plebiscite. For, there is nosubstantialdifferencebetween "Court inferior to a Court with appellatejurisdiction"(theoriginal1973provision) and "Court without appellate jurisdiction' (the amended provision). The objectiveoftheprohibition, thenandnow, is clearly to removeany possibility ofundueinfluence upon the administration ofjustice, to eliminatethepossible useofofficefor personalgain, toensureimpartiality in trials
- 22. and thus preservetheindependenceoftheJudiciary.The possible influence ofan Assemblyman on a signed Judge of the Court of FirstInstance, thoughnot entirely removed,is definitely diminished where the latter Court acts in the exercise of its appellateinstead oforiginal jurisdiction.The upper handthat a party representedby an Assemblymanby virtueof his officepossesses is more felt and could be more feared in original cases than in appealedcases becausethe decision or resolutionappealed fromthelattersituation has already a presumption not only of regularity but also ofcorrectness in its favor. In fine, "appellatepractice"is an intended qualification dictated by principles ofreason, justice and public interest. The limited applicationto "appellatepractice"is a view-point favored by constitutionalist ofeminence, Chief Justice Enrique M. Fernando, in his scholarly work "The Constitution ofthe Philippine, 22 where he said: It is to be notedthat at presenthe may appear as counselinanycriminal case, but he cannot do so before any administrativebody.Also, while it is only appellatepracticethatis allowed a member oftheNationalAssembly, formerly, such a limitation applied solely to a Senator or Representative who was in the Commission on Appointments, a body abolishedunder the presentConstitution. Thosedifferences should be noted (Emphasis supplied) 23 ChiefJustice Enrique M. Fernando also expounded on thereasonbehind the Constitutional prohibition, thus: ... The need for itwas felt bythe1934ConstitutionalConvention, a sentiment shared by the lastConstitutional Convention, because of thewidespread beliefthat legislators foundit difficultto resist, as perhaps most men, the promptings of self-interest.Clearly, thepurposewas and is to stress the fiduciary aspect ofthe position. There is thus fidelity to the maxim that a public office is a public trust. ... 24 Since the respectiveCourts ofFirstInstance, beforewhichAssemblymen Legaspi and Fernandez appeared as counsel, wereacting intheexerciseoforiginaland notappellate jurisdiction, they must be held barred from appearing as counsel before said Courts in the two cases involved herein. WHEREFORE, granting theWrits prayed for, theOrderissued on February 27, 1980 by the CourtofFirst Instance ofCebu, Branch II,in CivilCaseNo.R-18857, is hereby set aside, and Attorneys Estanislao A. Fernandez and Valentino Legaspihereby declaredprohibitedfrom appearing as counsel before the Court ofFirst Instance of Rizal (Pasig), Branch XXI,in CivilCaseNo. 33739, andbefore the CourtofFirst Instance ofCebu,Branch II, in Civil Case No. r-18857, respectively. The Restraining Order issued heretoforeinL-53869 is hereby made permanent. No costs in either case.
- 23. 11. US VS.NEY This proceeding is topunish the defendants for contempt.chanroblesvirtualawlibrary chanrobles virtual law library In the year 1902 this court decided that the defendant, J. Garcia Bosque, was not entitled to admission to practice lawin the PhilippineIslands, upon thegroundthat after the change ofsovereignty he had elected to remain a Spanishsubject and as such was notqualifiedfor admission tothebar ( In re Bosque, 1 Phil. Rep., 88), and an order was entered accordingly.chanroblesvirtualawlibrary chanrobles virtual law library In the year 1904 hemadean arrangementwith the defendant Ney,a practicing attorney, to carry on business together,sending out a circular signed "Ney & Bosque,"stating that they had established an office for the general practice of law in all the courts ofthe Islands and that Bosque would devote himselfespecially to consultation and officework relating to Spanish law. The paperwas headed "Law Office - Ney & Bosque. JuanG. Bosque, jurisconsulto español -C.W. Ney, abogado americano."chanrobles virtual law library Since that timethedefendant Bosque has not personally appeared in the courts, and with one exception, occuring throughaninadvertance,papers from the officewere signed not with the firm name alone nor with any designation of the firmas attorneys,but withthewords "Ney & Bosque -C.W. Ney, abogado."chanrobles virtual law library On two occasions, one onMay 1,1905, and the other on September 15, 1906, this court refused to consider petitions so singed with the names ofthe defendants and the practice being repeated, on the 2nd day of October, 1906, orderedthepapers sent to the Attorney-General to take appropriate action thereon, and he thereupon instituted this proceeding.chanroblesvirtualawlibrary chanrobles virtual law library The defendants disclaim any intentional contempt, and defend their acts as being within the law.chanroblesvirtualawlibrary chanrobles virtual law library Section 102 of theCodeof Civilprocedure, providing that every pleading must besubscribed bytheparty or his attorney, does notpermit, and by implication prohibits, a subscription ofthe names ofany other persons, whether agents or otherwise;thereforea signature containing the name ofoneneither a party nor an attorney was not a compliance withthis section, norwas it aided by the too obvious subterfuge ofthe addition ofthe individualnameof a licensed attorney.The illegality in this instance was aggravated by the fact that one ofthe agents so named was a person residing inthese Islands towhomthis court had expressly denied admission to the bar. The papers in questionwere irregularand wereproperly rejected. Werefuse torecognizeas a practice any signature of names appendedto pleadings orother papers in an action other than those specified in the statute. Asignatureby agents amounts to a signing by non-qualified attorneys, the office ofattorney being originally one of agency.( In re Cooper, 22N.Y., 67.) Wedo not, however, mean todiscountenance the use ofa suitable firm designation by partners, all of whom have been duly admitted to practice.chanroblesvirtualawlibrary chanrobles virtual law library It is to be notedthat weare not now considering an applicationfor thesuspension or removal ofthedefendant Ney from his office as attorney.The defendantBosque,not being an officer ofthecourt, couldnotbe proceeded against in that way, and probably for that reason the Attorney-General instituted this form of proceeding.chanroblesvirtualawlibrary chanrobles virtual law library Should either of these defendants be thus punished for contempt?chanrobles virtual law library Section 232 of the Code ofCivil Procedure describes contempt as follows: 1. Disobedience ofor resistanceto a lawfulwrit,process, order, judgment, or command ofa court, or injunction granted by a court or judge;chanrobles virtual law library 2. Misbehavior of an officer of the court in the performance of his official duties or in his official transactions. Where thelaw defines contempt,thepower ofthecourts is restricted to punishment for acts so defined. ( Ex parte Robinson, 86 U.S., 505.)chanrobles virtual law library As to the first subdivision ofthis section, no direct order or command ofthis court has been disobeyed or resistedby thedefendantNey. Theonly orderthat the defendant Bosque canhave disobeyedis theonedenying him the rightto practicelaw.This order,however,was directly binding uponhim, notwithstanding proceedings taken for its review,andany hope onhis partofultimately reversing it furnished noexcusefor its violation. Even had he been entitled under the statute to practice law without any license from the court and without an application to it, yet its order madeon his ownpetition. Amandate ofthecourt, whilein force, mustbeobeyed. The irregular signature to papers, though affixed by his associate, had his authorization and constitutes a substantialattemptto engage in practice. Moreover thefirm circular in setting forth the establishment ofan office for the generalpracticeoflawin allthecourts oftheIslands, amounted to an assertion ofhis right and purpose,not effectively qualifiedby theadditionthat hewoulddevotehimselfto consultation and office work relating to Spanish law. Spanish law plays animportantpart in the equipment ofa lawyer in the Archipelago, standing on a different footing from thelawofother foreigncountries, in regardto whicha skilled person might as a calling,advisewithout practicing law. The fact statedon thecircularthat he was a Spanish lawyer did not amount to a disclaimer ofhis professional character in the Islands. Independent ofstatutory provisions, a foreigner is notby reason ofhis status disqualified from practicing law. One ofthe most eminent American advocates was an alien barrister admitted to the bar after a contest in the court ofNew York State. ( In re Thomas Addis Emmett,2 Cain's Cases, 386.) Consequently the conduct ofthe defendant Bosque amounts to disobedience ofan ordermadein a proceeding towhichhe was a party.chanroblesvirtualawlibrary chanrobles virtual law library Under the secondsubdivisionofthesection cited, Bosqueis obviously not answerable, inasmuchas he was not an officer ofthecourt. On the other hand, under this subdivision, thedefendantNey,as anadmittedattorney, is liableifhis conduct amounted to misbehavior. We are ofthe opinion that it did. In the offense ofBosque in holding himselfout as a general practitioner Ney participated, and for theimpropersignature ofthe pleadings he was chiefly and personally responsible.It is impossible tosay thatthesignature itselfwas a violation ofthe law, and yet holdguiltless theman who repeatedly wroteit. Moreover we regret toadd thathis persistent and rash disregard of the rulings of the court has not commended him to our indulgence, while the offensive character of certain papers recently filed by him forbids us from presuming on the hope ofhis voluntarily conforming to thecustomary standardofmembers ofthe bar.chanroblesvirtualawlibrary chanrobles virtual law library The judgmentofthe court is thateachofthedefendants is fined in the sum of200 pesos, to be paid into the office ofthe clerk ofthis court within ten days, with the costs de oficio. So ordered.
- 24. 12. BELTRAN V.ABAD On March 28, 1983, this Court held respondent ELMO S. ABAD incontemptofcourt for unauthorizedpractice of law and hewas finedP500.00 with subsidiary imprisonmentin casehe failedto pay the fine.(121SCRA 217.) He paid the fine. On May 5, 1983,Atty. Procopio S. Beltran,Jr.,thecomplainant, filed a MOTION TO CIRCULARIZETO ALL METRO MANILACOURTS THEFACT THATELMO S. ABAD IS NOTAUTHORIZED TO PRACTICELAW. Asked to comment ontheMotion,Mr. Abadopposedit.He denied the allegations in the Motion that he had been practicing law even after our Decision ofMarch 28, 1983. Because the Motion and the Opposition raised a question offact, in Our resolution ofApril 10, 1984, We directed "the Clerk of Court to conduct an investigation in the premises and submit a report thereon with appropriate recommendation." In a comprehensiveand well-documentedReportwhich is hereby made a part ofthis Resolution, the Clerk of Court concluded: The aforesaid documentaryand testimonialevidence,as wellas theabove report oftheNBI,have clearlyproved that respondent Abad is still practicing law despite the decision ofthis Court ofMarch 28, 1983. The Clerk of Court makes the following recommendations: a. imposed a fine of P2,000.00 payable within ten (10) days from receipt ofthis resolution or an imprisonmentof twenty(20) days in caseofnon-payment thereof, with warning ofdrasticdisciplinary action of imprisonment in case of any further practice oflaw after receipt ofthis resolution; and b. debarred from admission tothePhilippine Bar until suchtimethat the Courtfinds him fit to become such a member. It is further recommended that a circular beissued to allcourts in thePhilippines through the OfficeoftheCourt Administratorthat respondentElmoS. Abadhas not been admittedto the Philippine Bar and is therefore not authorized to practice law. We find the Report to be in order and its recommendations to be well-taken. However, the latter are not sufficiently adequate in dealing with the improper activities ofthe respondent. The Report has found as a fact,overthedenials oftherespondent underoath,that hesigned Exhibits B, C, and D, and thathe made appearances in MetroManila courts. This aspect opens the respondent to a charge for perjury. The Report also reveals that Atty. RubenA. Jacobecollaborated withtherespondent as counsels for Antonio S. Maravilla one of the accused in Criminal Case Nos. 26084, 26085 and 26086 ofthe Regional Trial Court of Quezon City. (Exhibit D.) Atty. Jacobe should be called to account for his association with the respondent. WHEREFORE, Elmo S. Abad is hereby orderedto pay a fineofP12,000.00 within ten (10) days from notice, failing which he shallbe imprisonedfor twenty (20) days. He is also warned that ifhe persists in the unauthorized practice of law he shall be dealt with more severely. The Court Administratoris directed to circularize all courts in the country that the respondent has not been authorized to practice law. Acopy ofthe circular should be sent to the Integrated Bar ofthe Philippines. The Clerk ofCourtis directed to file withtheCity FiscalofManila an appropriate complaint for false testimony against the respondent. Finally, Atty. Ruben A. Jacobe is required to explain within ten (10) days from notice why he should not be disciplinedfor collaborating andassociating in thepracticeofthelaw with therespondent whois not a member ofthe bar. REPORT AND RECOMMENDATION RE: Bar Matter No. 139 — Elmo S. Abad, 1978 Successful Bar Examinees This report is submitted in compliance with the resolution ofApril 10, 1984. In the En Banc decision ofMarch 28, 1983 intheabove-entitledcase,theCourt found respondent Elmo S. Abad, who passedthe1978Barexaminations but has not been admitted to the Philippine Bar, in contempt ofCourt for illegalpracticeoflaw, and imposeduponhima fineofP500.00. Respondent paid the fine on May 2, 1983. On May 5, 1983 complainantfiled a motionto circularizeto allMetro Manila courts the fact that respondent is not authorized to practicelaw. The Courtin its resolution ofMay 26, 1983 requiredrespondent to comment on the saidmotion. Respondentfiled "Oppositionto MotionandManifestation"which was notedin theresolution ofJune 30, 1983. The complainant on March 14, 1984 reiterated his motion to circularize to all Metro Manila courts that respondentis notauthorized topracticelaw, withprayer thatthelatterbe punished with greater severity. He statedthat "Mr. Abad is stillpracticing law as evidenced bythefactthat last December 8, 1983 at about 2:00 o'clock in theafternoon, Mr. Abad appearedbefore the RegionalTrial Court, National Capital Judicial Region, Branch 100located at the 11th Floor,CityHall, Quezon City presidedby theHonorableJudge Jorge C. Macli-ing that Mr. Abad appeared as counsel for a certainCaroline T. Velez in CriminalCaseNos. 26084, 26085 and26086 entitled PeopleofthePhilippines vs. Maravilla,et al.Mr. Abadeven cited in the pleading his Professional Tax Receipt toprove that heis a licensed legalpractitioner whichis utterly false.Mr. Abadgave his address as Ruben A. Jacobe & Associates, Ground Floor, ADC Building, Ayala Avenue, Makati, Metro Manila." Respondent filed an "Opposition to Motion"denying the complainant's allegation, to wit: 4. ... respondent is not presenting himselftothegeneralpublic as a Practicing Lawyer like what Atty. Procopio S. Beltran insists to the Honorable Court; 5. That this motion is motivated byAtty. Beltran's personaldesireto inflict maliceand oppression upon the respondent whoeven until nowdoes not accedeto the terms and conditions ofthe former in connection with several cases filed against him by the said Atty. Beltran; 6. Respondentrespectfullysubmits thatAtty.Beltranis trying his very best to harass the respondent under the guise ofconducting a Crusade personally with the end in view that respondentsubmit tohis ill-desires and veiled threats and finally come into terms with him. In the hearings conducted by the undersigned, toprovetheallegations in his motion, complainantpresented the records inCriminal Cases Nos. 26084, 26085 and 26086, entitled "People ofthe Philippines vs. Antonio S. Maravilla, Jr., etal."ofBranch 100, Regional Trial Court, Quezon City, which were brought to this Court and Identified by Atty. Candido A. Domingo, Clerk ofCourtofsaidtrialcourt, and markedby theundersigned as the following exhibits:
- 25. 1. Transcript ofstenographic notes takendownduring theinitialtrial oftheaforesaid criminal cases on December 8,1983, at1:30 intheafternoon (Exhibit "A") whereit is stated that Atty. ElmoAbadwas counsel for Juan del Gallego III (Exhibit "A-1"); 2. Urgent motion for withdrawalfrom custody ofmotor vehicle filedfor Caroline T. Velez by Elmo Abad (Exhibit "B") with his nameand signature appearing therein as counsel for the said movant (Eexhibit "B-1"); 3. Page 4 of aforesaid motion (Exhibit "C") withthenameand signatureofElmo Abadappearing therein as submitting the aforesaid motion for consideration ofthe trial court (Exhibit "C-1"); 4. Urgent motion for deferment ofarraignment and trialfiled for accusedAntonioS. Maravilla, assisted by counselRuben A. Jacobe with Elmo Abad (Exhibit "D"), with the names and signatures ofElmo Abad and Ruben A. Jacobe appearing as counsel for the accused movant Antonio S. Maravilla (Exhibit "D-1"); 5. Also page 3 of theaforesaid motion for deferment ofarraignment and trial where the name and signature of Elmo Abad, together with thoseofRuben A. Jacobe, appear as submitting theaforesaid motion for the consideration and approval ofthe trial court (Exhibit "D-2"); and 6. Order of Judge Jorge C.Macli-ing datedJuly 26, 1983Exhibit "E") whereinon page 1thereofappears the statement that the urgent motion for deferment of arraignment and trial and the urgent motion for withdrawal from court of motor vehicle were filed by "Atty. Elmo Abad (Exhibit "E-1"). Complainantalsopresented Exhibit "F", his letterto the branchClerk ofCourt,Branch100,RegionalTrial Court, Quezon City requesting for certification thatMr. Abad had appeared as counsel for a certain Ma. Caroline T. Velez in the caseentitled People vs. Maravilla,et al., with Exhibit "F-1"to indicate that said Clerk ofCourt was the addressee of the said letter. After the original of theaboverecords werepresented to andmarked as exhibits by the Investigator, the same were xeroxed and the xerox copies were certified by Atty. Candido Domingo, Clerk ofCourt ofBranch 100, Regional Trial Court, Quezon City. Complainantalsotestifiedthat onDecember8, 1983hewas at the 11th floor oftheQuezon City Regional Trial Court NCJR, Branch 100, QuezonCity and sawrespondent Abad pass by in coat and tie and because he knew that Mr. Abad is a respondent ina casebefore the SupremeCourt andhad beendeclaredas a non-lawyer in its decision of March 28,1983, he(complainant) got curious and followedrespondent and saw thelatter enter the sala ofBranch 100 of the Regional Trial Court ofQuezon City; that he saw him there and after about twenty minutes when he went back to the same sala, he saw respondent in the place ofthe said court where the lawyers were supposed tobe seated; thatsome days after, he went back to the said sala and inspected the records of the criminal cases numbered 26084, 26085 and 26086,*which are the subject matters ofthe certification of the Clerk ofCourt, Atty. Domingo, before the Investigator (TSN, May 26, 1984, pp. 24-26). Mrs. Eufrocina B. Ison the Court Reporter who took down and transcribed the stenographic notes ofthe proceedings in the afternoon of December 8, 1983 in the said criminal cases in the aforesaid trial court, appearedbefore the undersigned Investigator and positively Identified respondentElmo Abadas theAtty. Elmo Abad who appeared as counselfor Juandel Gallego III in theaforesaid proceedings thatafternoonofDecember 8, 1983 (pp. 1& 2, TSN, May 11, 1984). Shefurthermore testified thatshe has no reason tobeinterested in this case in Identifying respondent Abad as theonewho appearedin said court on said afternoon ofDecember 8, 1983 (pp. 19-20, TSN, May 11, 1984). Respondent, whenasked about the aforesaid motions,Exhibits "B"and "D", and the signatures therein, denied that he filed the sameand thatthesignatures thereinare his. Healsodenied that heappeared inthehearing in the afternoonof December 8,1983in thesaid trialcourt.According to him,he was inBatangas at the time. He also testifiedthat the only explanation hecould give regarding the signatures intheaforesaid exhibits is thatthe same could have been effected by Atty. Beltran to show the Supreme Court that he (respondent) was still illegally practicing law. In connection with his defense, he filed — (1) a motion to presentthevideotapeto showhis whereabouts at the time ofthe said hearing in the afternoon ofDecember 8, 1983 in Branch 100, Regional Trial Court, Quezon City; and (2) a motion thathis signatureintheaforesaid motions filedin thesaid trialcourt insaid criminal cases be compared with his genuine signature. The Investigator orally deniedrespondent's motion to present the video tape for the reason that the matter intended to beprovedthereby, thatis thetime ofday, cannot be accurately determined from the film as the same could be doctored by lighting effects (p. 16, TSN, May 11, 1984). As to the motion for examinationand analysis ofrespondent's signature,theInvestigator, toaffordrespondent full opportunity to provehis defense,soughttheassistanceoftheNationalBureau ofInvestigation to compare respondent's signature intheaforesaid exhibits with the signatures appearing in the pleadings that he filed in the Supreme Court, which latter signature he admits as genuine and as his own. On August 7, 1984, the National Bureau of Investigation submitted its report regarding the questioned signatures ofrespondent. Quoted hereunder are its findings and conclusion: Findings: Comparative examination ofthespecimens, undermagnification and stereoscopic microscope, with the aid ofphotographic enlargements, reveals thatthereexist fundamental, significant similarities in writing characteristics andIdentifying details between thequestioned and the standard signatures ELMO S. ABAD, such as in: 1. Structural formation ofthe elements ofthe signatures 2. Proportion characteristics 3. Movement impulses 4. Direction of strokes 5. Manner ofexecution which is free, spontaneous and coordinated. CONCLUSION: The questioned and the standardsignatures ELMO S. ABAD were written by one and the same person. The aforesaid documentaryand testimonialevidence,as wellas the above report oftheNBI,have clearlyproved that respondent Abad is still practicing law despite the decision ofthis Court ofMarch 28, 1983. Moreover, theInvestigator, thru theOffice oftheCourt Administrator, requested the Metro Manila courts to inform said Officeifa certain Atty. Elmo Abad is appearing or has appeared intheir courts. In response to said query, the BranchClerk ofCourt,BranchXCIV,QuezonCity sentto the undersignedcertified xeroxcopies ofthe following that showed that Elmo Abad is appearing in Civil Case No. 36501. There was likewise received a certification dated May 9, 1984 from the Branch Clerk ofCourt ofthe Regional Trial Court,NationalCapital Judicial Region, Pasig, Branch CLIII,stating that Elmo Abad y Sanchez is appearing before said court as accused inCriminal Case No. 50651,***entitled "People ofthe Philippines vs. Atty. Elmo Abad y Sanchez"for Qualified Theft (Carnapping).
- 26. The actuations ofrespondent as shown from the foregoing constitute contempt of court that should be punished more severely considering his temerity instill continuing the practice oflaw despite the decision of March 28, 1983. It is thus respectfully recommended that respondent be: a. imposed a fine of P2,000.00 payable within ten (10) days from receipt ofthis resolution or an imprisonmentof twenty(20) days in caseofnon-payment thereof, with warning ofdrasticdisciplinary action of imprisonment in case of any further practice oflaw after receipt ofthis resolution; and b. debarred from admission tothePhilippine Bar until suchtimethat the Courtfinds him fit to become such a member. It is further recommended that a circular beissued to allcourts in thePhilippines through the OfficeoftheCourt Administratorthat respondentElmoS. Abadhas not been admittedto the Philippine Bar, and is therefore not authorized to practice law. 13. NORIEGA V. SISON This is a complaint for disbarment filedon June3, 1981by Herminio R.Noriega againstAtty. Emmanuel R. Sison "admitted to the Bar onMarch 31, 1976) on theground ofmalpractice through gross misrepresentation and falsification. ComplainantNoriega alleges thatrespondent Sisonis a regular and permanent employee ofthe Securities and Exchange Commission(SEC) as a Hearing Officerandas such, "is mandated to observe strictly the civil service rules and regulations, more particularly ... the prohibition of government employees to practice their professions"; thatto circumvent the prohibitionandto evadethelaw, respondent assumed a different name, falsified his Identity and represented himselfto be one "Atty. Manuel Sison", with offices at No. 605 EDSA, Cubao, QuezonCity, "at the times that he will handle private cases"; that "Manuel Sison"is not listed as a member of theBarin the records ofthe Supreme Court; that under his said assumed name, respondent is representing oneJuan Sacquing,thedefendant inCaseNo. E01978beforetheJuvenile andDomestic Relations Court ofManila,submitting pleadings thereinsigned by him respondent) under his assumed name, despite his full knowledge That "Manuel Sison"is not a member ofthe Bar and that his acts in doing so are illegal and unlawful.1 Xeroxcopies of pertinent documents, pleadings, orders andnotices are annexedto the complaint to support the material allegations therein. As requireD, respondent filed his Answer on August 20, 1981. He attached thereto a copy ofthe written authorizationgiven by Julio A. Sulit, Jr., AssociateCommissioner oftheSecurities andExchange Commission, for him to appear as counselofJuan Sacquing, a closefamily friend, intheJuvenile and Domestic Relations Court JDRC ofManila, Respondentalleges that heneverheld himselfoutto the publicas a practicing lawyer; that he provided legal services to Sacquing in viewofclosefamily friendship and for free; that he never represented himselfdeliberately and intentionally as "Atty. Manuel Sison"intheManila JDRC where,in the earlystages ofhis appearance, healways signedtheminutes as "Atty. Emmanuel R. Sison", and in oneinstance,he evenmadethe necessary correction whenthecourt staffwrote his name as Atty Manuel Sison"; that due to the "inept and careless work of theclericalstaffofthe JDRC", notices weresent to "Atty.Manuel Sison", at 605 EDSA, Cubao, Quezon City, whererespondent's parents conduct a printing office and establishment, which notices were honored by thepersonnel ofsaid office as respondent's familyhas called respondentby thenickname"Manuel"; that respondentdid not feelanynecessity tocorrect this error ofthe JDRC since he "could use his nickname 'Manuel' interchangeably with his original true name as a formal name, and its use was not done for a fraudulent purposenorto misrepresent"; and,that this administrative caseis only oneofthenumerous baseless complaints brought by complainantagainst respondent, theformer being a disgruntled loser in an injunction case in the SEC heard before respondent as Hearing Officer. In resolving this disbarmentcase,We must initially emphasizethedegreeofintegrity and respectability attached to the law profession. There is no denying that the profession ofan attorney is required after a long and laborious study.By years ofpatience, zealand ability the attorney acquires a fixed means ofsupportfor himself and his family. This is not tosay, however, that theemphasis is on the pecuniary value ofthis profession but rather on the socialprestigeand intellectual standing necessarily arising from and attached to the same by reason ofthe fact that every attorney is deemed an officer ofthe court. The importance ofthe dualaspects ofthelegal profession has beenwisely put by ChiefJustice Marshall ofthe United States Court when he said: On one hand, the profession ofan Atty.is ofgreat importanceto an individualandtheprosperity ofhis life may depend on its exercise. Therightto exercise it ought not to be lightly or capriciously taken from him. On the other hand, it is extremely desirable that the respectability ofthe Bar should be maintained and that its harmony with the bench shouldbepreserved. For theseobjects, some controlling power, some discretionought to be exercised with great moderation and judgment, but it must be exercised. 2 The purposeofdisbarment,therefore, is not meant as a punishmentdepriving himofa sourceoflivelihood but is rather intended toprotect theadministration ofjustice by requiring that those who exercise this function should becompetent, honorable and reliable inorder that thecourts andclients may rightly repose confidence in them. 3 In disbarmentproceedings,theburdenofproofrests upon the complainant, and for the court to exercise its disciplinary powers, thecase against therespondentmust beestablished by clear, convincing, and satisfactory proof. Considering theserious consequences ofthe disbarment orsuspensionofa memberofthe Bar,this Court has consistently held that clear preponderant evidence is necessary to justify the impos ition of the administrative penalty. 4 This Court has also held in re Atty. Felizarda M. de Guzman 5 that to be made the basis ofsuspension or disbarment,therecordmustdiscloseas freefromdoubt a casewhichcompels the exercise by this Court ofits disciplinary powers. The dubious characterofthe actdone as well as the motivation thereofmust be clearly demonstrated.An attorneyenjoys thelegal presumption thatheis innocent ofthe charges preferred against him until the contrary is proved; andas anofficer ofthecourt, thathe performed his duty in accordancewith his oath. Examining the facts ofthis case,Weholdthattheallegations inthecomplaint do not warrant disbarment ofthe respondent. Thereis no evidence that the respondent has committed an act constituting deceit, immoral conduct, violation ofhis oathas a lawyer,wilful disobedience ofany lawful orderofthe court, or corruptly and willfully appearing as an attorney to a part to a case without attorney to do so. 6 There is no violation oftheCivilServiceRules andRegulations for his appearance as counselfor thedefendantin the JDRC CaseNo. E-01978 was with authority given by the Associate Commisioner OfSEC, Julio A. Sulit, Jr. This Court also holds that under the facts complained of supported by the annexes and the answer of respondentlikewisesustainedby annexes attached theretoand thereply ofthe complainant, the accusation that respondentwith maliceand deliberateintent to evadethe laws, assumed a different name, falsified his Identity andrepresented himselfto beone"ATTY. MANUEL SISON"with offices atNo. 605 EDSA, Cubao,Quezon City at the times thathe willhandleprivatecases,is not meritorious. Neither is the charge referred to is that pending theslantiated. The only caseDRC CaseNo. E-01978 wherein respondent appeared as counsel for the defendant. Itbeing an isolated case, the samedoes not constitutethepracticeoflaw, moreso sincerespondent did not derive anypecuniary gainfor his appearance because respondent and defendant therein were close
- 27. family friends. Suchact of the respondentin going outofhis way to aidas counsel toa closefamily friend should not be allowed to be used as an instrument ofharrassment against respondent. The ruling in Zeta vs.Malinao(87 SCRA 303) wherein the respondentwas dismissed from the service because being a government employee, heappearedas counsel in a private case, cannot be applied in the case at bar because the respondentin saidZeta case had appeared as counsel without permission from his superiors. Although the complaintalleges violation ofcivilservicerules,thecomplainant however states that the basis of his complaintfor disbarmentis nottherespondent's actofappearing as counsel but the unauthorized use of another name. 7 A perusal of the records however, reveals that whereas there is indeed a pleading entitled "Objection/Oppositionto the2 Formal Offer ofEvidence"(Annex"C"to the Complaint for Disbarment, which is signed as "Manuel Sisori",counselfor defendant,605 EDSA, Cubao, QuezonCity, p. 7 ofthe Records), there is, however, noshowing thatrespondent was thus motivatedwith bad faithor malice,for otherwise lie would not have corrected the spelling of his name when the court staff misspelled it in one of the minutes ofthe proceeding.Moreover, Wefindno reason or motive for respondent to conceal his true name when he have already given express authority byhis superior toact as counselfor Juan Sacquing in the latter's case pending before the JDRC Andwhileit may beTruethatsubsequenterrors were made in sending notices to him under the name"Atty. Manuel Sison,'the errors wereattributableto theJDRC clerical staffandnotto therespondent. At most, this Court would only counsel therespondent to bemore careful and cautious insigning his name so as to avoid unnecessary confusion as regards his Identity. At this point, Weare constrainedto examinethemotives thatpromptedthecomplainant in filing the present case. An examination of the records reveals that the complainant was a defendant in the Securities and Exchange Commission(SEC) Case No.1982filed by the Integrated Livestock Dealers Inc. andTeofisto Jiao against seven (7) respondents including thecomplainant, seeking to oustthecomplainant and his codefendants from acting as officers of theIntegrated Livestock Dealers lnc. thenpending beforerespondent as Hearing Officer of the SEC, who after trial decided thecaseagainsttheherein complainant. Fromthis antecedentfact, thereis cast a grave andserious doubtas tothetruemotivation ofthecomplainant in filing the present case, considering further thatotheradministrativecharges werefiled by the complainantagainst respondent herein before the SEC, JDRC and the Fiscal's office in Manila. We hold that complainant's repeated charges or accusations only indicate his resentment and bitterness in losing theSEC caseand not with the honest and sinceredesireand objectives "(1) to compel the attorneyto deal fairly and honestly with his client;"(Strong vs. Munday52 N.J. Eq. 833, 21 A. 611) and "(2) to remove from the profession a person whosemisconduct has provedhimunfitto beentrusted with the duties and responsibilities belonging tothe officeof anattorney."(Ex parteBrounsalCowp 829;83 Reprint; 6 C.J., p. 581; see In re de los Angeles Adm.CaseNo. 225, Sept. 31,1959, cited in Moran, Comments on the Rules ofCourt, Vol. 6, p. 242). In the light of theforegoing, Wefindno reason or necessity to referthis complaint to the Solicitor General for investigation, report and recommendation. WHEREFORE, this case is hereby DISMISSED for lack ofmerit. 14. SAN LUIS VS. PINEDA This is a complaint for the punishment or the disbarment ofBenjamin B. Pineda. Complainantalleged that a few months before December 1941, Benjamin B. Pineda had been expelled as member oftheBar; thatnotwithstanding suchdisbarment, Pineda continuedto practicelaw; that in 1953 said Pineda was convicted, by finaljudgment, ofthecrimeofrobbery; thatalthoughPresidentMagsaysay pardoned him conditionally, such pardon did not blot out the stain ofmoralmisconduct.So, complainant prayedfor action for contempt; or for a newdisbarment,ifafter 1941,said Pineda had beenreinstated to membership intheBar. The matterwas referred to the SolicitorGeneral whose report filedlater andin duecourse, recommended that respondentshould only bewarnednot to practicelaw again.Suchrecommendation rested on his finding that Pineda continued to practice lawin Joloduring the latter partof1941 (i.e., after he had been disbarred in July 1940) — but that no evidence proved legal practice by respondent after 1941. Our records do not show that Pineda has ever been re-admitted to the Bar. Now, considering that 1941 is too faraway,we approve the recommendation; and the respondentis accordingly warned notto engage in thelegal profession again, untilhe is regularly re-admitted thereto. Needless to say, practice oflaw by one who is disbarred constitutes contempt ofcourt (U.S. vs. Ney, 8 Phil. 146; People vs. De Luna, 54 Off. Gaz. 6429.) CANON 5 15. DEROY V. CA This specialcivil action for certiorariseeks todeclare nulland void two(2) resolutions of theSpecialFirstDivision ofthe Court ofAppeals in thecaseofLuis Bernal, Sr.,et al.v. Felisa Perdosa DeRoy, etal., CA-G.R.CV No. 07286. The first resolutionpromulgated on30 September 1987deniedpetitioners'motionfor extension oftime tofilea motion for reconsiderationand directedentry ofjudgmentsincethedecision insaidcase hadbecome final; and the second Resolutiondated 27October 1987deniedpetitioners'motion for reconsideration for having been filed out oftime. At the outset, this Courtcould havedeniedthepetition outright for not being verified as required by Rule 65 section1 oftheRules ofCourt. However, eveniftheinstant petitiondidnot sufferfrom this defect, this Court, on procedural and substantive grounds, would still resolve to deny it. The facts ofthecaseareundisputed. Thefirewallofa burned-out building ownedby petitioners collapsed and destroyed the tailoring shop occupied by the family ofprivate respondents, resulting in injuries to private respondents and thedeath ofMarissa Bernal,a daughter.Privaterespondents had been warnedby petitioners to vacatetheir shop in view ofits proximityto theweakened wallbuttheformer failedto do so. On the basis of the foregoing facts,theRegional TrialCourt. First Judicial Region, Branch XXXVIII,presided by the Hon. Antonio M. Belen, rendered judgmentfinding petitioners guilty ofgross negligence and awarding damages to private respondents. On appeal,thedecisionofthe trialcourt was affirmed in toto by theCourtofAppeals in a decision promulgated on August 17, 1987, a copy of which was received by petitioners on August 25, 1987. On September 9, 1987, the last day of the fifteen-day period to file an appeal, petitioners filed a motion for extensionoftimetofilea motion for reconsideration,whichwas eventually denied bytheappellatecourt inthe ResolutionofSeptember 30, 1987.Petitioners filed their motion for reconsiderationon September24,1987but this was denied in the Resolution of October 27, 1987.
- 28. This Court findsthat the CourtofAppeals did not commita graveabuse ofdiscretionwhen itdenied petitioners' motion for extensionof time tofilea motion for reconsideration, directed entry ofjudgment and denied their motion for reconsideration. It correctly applied the rulelaiddownin Habaluyas Enterprises, Inc. v. Japzon, [G.R. No. 70895,August 5,1985,138 SCRA 461, that the fifteen-day period for appealing or for filing a motion for reconsiderationcannot beextended.In its Resolutiondenying themotion for reconsideration, promulgated on July 30, 1986 (142 SCRA 208), this Court en banc restated and clarified the rule, to wit: Beginning onemonthafter thepromulgation ofthis Resolution, the ruleshallbe strictly enforced that no motion for extensionof timetofilea motion for reconsideration maybe filedwith theMetropolitan or Municipal Trial Courts, theRegional TrialCourts, andtheIntermediateAppellateCourt. Such a motionmay befiled only incases pending with the SupremeCourt as thecourt oflast resort, which may in its sound discretion either grant or deny the extension requested. (at p. 212) Lacsamana v. Second SpecialCases Division oftheintermediateAppellateCourt,[G.R. No. 73146-53, August 26, 1986, 143SCRA 643], reiterated the rule and went further to restate and clarify the modes and periods of appeal. Bacaya v. Intermediate Appellate Court, [G.R. No. 74824,Sept. 15, 1986,144 SCRA161],stressedtheprospective application of said rule, and explained the operation ofthe grace period, to wit: In other words, there is a one-month grace period from the promulgation on May 30, 1986 ofthe Court's Resolutionin the clarificatoryHabaluyas case, orup to June30, 1986, withinwhichtherulebarring extensionsof time to file motions for new trial or reconsideration is, as yet, not strictly enforceable. Since petitioners herein filedtheir motionfor extensionon February 27, 1986, it is still within the grace period, which expired on June 30, 1986, and may still be allowed. This grace periodwas alsoapplied inMissionv. Intermediate Appellate Court[G.R. No.73669, October28,1986, 145 SCRA 306].] In the instant case, however, petitioners'motion for extension oftime was filed on September 9, 1987, more than a year after theexpiration ofthe graceperiod onJune 30,1986.Hence, itis no longer within the coverage ofthe grace period.Considering thelength oftimefrom theexpirationofthe grace periodto thepromulgation ofthe decision of theCourt ofAppeals on August25, 1987, petitioners cannot seek refuge in the ignorance of their counselregarding said rule for their failureto file a motion for reconsideration within the reglementary period. Petitioners contend that the ruleenunciatedin the Habaluyas caseshould not bemade to apply to the case at bar owing to the non-publication oftheHabaluyas decision in the Official Gazette as ofthe time the subject decision of theCourt of Appeals was promulgated.Contrary topetitioners'view, there is no law requiring the publication of SupremeCourt decisions in the Official Gazettebeforethey canbe binding and as a condition to their becoming effective. Itis thebounden duty ofcounsel as lawyer in active law practice to keep abreast of decisions of theSupreme Courtparticularly where issues have been clarified, consistently reiterated, and publishedin the advancereports ofSupremeCourt decisions (G. R. s) and in suchpublications as the Supreme Court Reports Annotated (SCRA) and law journals. This Court likewisefinds that the CourtofAppeals committed nograve abuseofdiscretion inaffirming the trial court's decision holding petitioner liableunder Article 2190 oftheCivilCode, which provides that "theproprietor ofa building orstructure is responsiblefor thedamageresulting from its totalor partial collapse, ifit should be due to the lack of necessary repairs. Nor was thereerror inrejecting petitioners argument that privaterespondents had the "last clear chance"to avoid the accident if only theyheeded the. warning tovacatethetailoring shop and , therefore,petitioners prior negligence should bedisregarded, since thedoctrineof"last clear chance,"whichhas been appliedto vehicular accidents, is inapplicable to this case. WHEREFORE, in view ofthe foregoing, the Court Resolved to DENYthe instant petition for lack ofmerit. 16. ABAD V. BLEZA Two administrativecases were filed against Judge Ildefonso Bleza ofthe Regional Trial Court, Branch XIX at Bacoor, Cavite, thefirst whenhewas contemplating optional retirement due to poor health and the second, after he had filed his application.Bleza's entitlement to disability retirementbenefits depends on theresolution ofthese cases. On October 15,1984, LieutenantColonelGregorio Abad ofthePhilippine Constabulary chargedJudge Bleza with rendering a decision with malice, ignorance ofthe law, graveabuse ofdiscretion, and misconductas a judge. The complaint is docketed as Adm. Case No. R-227-RTJ. After a cockfightheld at the Imus, Cavitecockpit onJuly 19, 1981, complainantAbadand onePotencianoPonce had a verbaltusslewhichculminated in Abad's being shot in the chest by Francisco Sabater, Jr., an alleged bodyguard ofPonce. Sabater, was charged with frustrated homicide and Potenciano Ponce with attempted homicide before the Regional Trial Court where the respondent presides. The prosecutionalleged thatduring the aforementioned cockfight,Abad's gamecock lost to the one owned by Ponce. Aremark byPoncethat complainant's cock was weak and lackedmorecare(mahina, kulang sa alaga) led to a heated argument betweenthetwobut theywere pacifiedby certain local officials Abad then went to the cockpit carinderia to takea snack. Poncefollowedhimshouting, "Whereis theColonel, walang Colonel Colonel sa akin,papatayin ko yan,babarilin ko yan."As Poncewas approaching and holding a gun aimed at Abad, the latter grabbed a glass and hurled it at Ponce who was hit at the head, causing him to fall down in a sitting position. While thus seated, Ponce's gun was taken by his bodyguard, Francisco Sabater. Jr. Abad was then advised by a certainCaptain Diaz to go home.Outside thecockpit gate, bodyguards ofPonce approached Abad and engaged him ina fistfight. At this juncture, FranciscoSabater, Jr.,upontheorder ofPonce, firedsix (6) shots at Abad, thelast onehitting him onthechest,theslug exiting attheback ofhis right shoulder. Abad was rushed to the CaviteMedicalCenter in CaviteCity whereheunderwent an operation.On the4thdayhe was transferred to the V. Luna Hospital at Quezon City where he was again operated on-to remove the slug imbedded in his back. He stayed in the hospital for 123 days. Sabater and Ponce presented a contrary version ofthe incident. Potenciano Poncetestified thaton his way out ofthecockpit,Abaduttered obscenities against him which he answeredin kind. However, common friends like Mayor Jamir ofImus, Barangay Captain Enrique Diaz, and Cavite City Fiscal Gabriel pacifiedthem. After cooling off, Ponce decided to go home but on his way out ofthe main gateofthecockpit, Abad, whowas drinking beer at a carinderia, hurled invectives at him. Ponce then approached Abad toask for an explanation.Abadhithimon the forehead with a bottle ofbeer causing him to fall down unconscious. Upon regaining consciousness, he was brought to the Cavite Medical Center. Ponce denied having aimed his gun at Abad, insisting that his gun was never taken out of its holster. He also contradictedthetestimony ofAbadthat his permit to carry his firearm outside ofhis residence was no longer valid on July 19, 1981, stressing that his permit expired on November 18, 1981. Francisco Sabater, Jr.testifiedthat he was at the cockpit that same afternoon as a bet taker or casador. He declared that at about 5:30in thatafternoon, heheard Abad utter the following words at Ponce: "Putang-ina mo, Pare pipilipitin ko ang leeg mo."Poncereacted byapproaching Abad who then took hold ofa beer bottle from the table and hurled it at Ponce hitting him on the forehead. Ponce fell down. Thereupon, Francisco Sabater, Jr., took thegun ofPonceand as Abadrefused tobe pacified, hewent outside thecockpit and firedthe
- 29. gun five (5)times upwards to call the attentionofthe authorities. WhenAbadapproachedhim, holding a broken bottle of beer and tried tostabhimwith it, hewas forced inself-defenseto fire the gunatAbadwhowas hit on the chest. On August 11, 1984, the respondent judge promulgatedhis decision, the dispositive portion ofwhich reads as follows: WHEREFORE, in Criminal Case No.B-82-119, entitled People v. Pontenciano Ponce y Dayacap, for Attempted Homicide, said accused is hereby ACQUITTED for insuffiency ofevidence, with cost de oficio. The case bond posted in his favor is ordered reimbursed to him by the Municipal Treasurer ofBacoor, Cavite. In Criminal CaseNo. B-82-57, entitledPeople v. Francisco Sabater, Jr.for Frustrated Homicide, said accused is hereby found guilty beyond reasonabledoubt oftheoffenseofFrustrated Homicide as defined and penalized under Art. 250of theRevisedPenal Code, with themitigating circumstances ofvoluntary surrender, incomplete self-defenseand withoutany intentionto kill the victim, without any aggravating circumstances to offset the same and applying the Indeterminate Sentence Law as amended, he is sentenced to suffer imprisonment ranging from four (4) months andtwenty (20) days ofarresto mayor, as minimum,and to indemnify the victim the sum of P9,750.00for medical andhospitalexpenses, without subsidiary imprisonment incase ofinsolvency and to pay the cost. It is this decision which forms the basis ofAbad's complaint. On August 23, 1985, we referred this case to Associate Justice Santiago Kapunan of the then Intermediate Appellate Court for investigation and recommendation. The investigating Justice submitted the following recommendation: Coming to thequestion of respondent's culpability ofthecharges thus levelled against him on the basis ofthe facts, thearguments and theapplicable provisions oflaw, it appears inescapable that respondent has not committed any wrongdoing to evokedisciplinary action in acquitting Ponceofattempted homicide. The ground for acquittalwas insufficiency ofevidencedueto inconsistencies ofthetestimonies ofthe prosecution witnesses which he specifically pointed out in thedecision.In addition, respondent found that Ponceneverpulled the gun tucked at his waist during the incident, although prosecution witnesses testified otherwise. In the face of conflicting evidence, it is difficultto imputedishonesty andunfairness torespondent inarriving at his conclusion as to whichsidetold the truth. And even ifhe made an error in his perception ofthe facts as he saw them, it cannot bejustly presumedthat hedid itin bad faith or withmalicious intent. For not every error or mistake ofa judge in theperformanceofhis duties makes him liabletherefor. To hold a judge administratively accountable for every erroneous ruling or decision he renders, assuming that he has erred, would be nothing short of harassment and would makehis position unbearable. (Dizon v. De Borja, G.R. Adm. Case No. 163-J, Jan. 28, 1971; Gamo v. Cruz, G.R.Adm. Matter No.467-NJ,October 22, 1975; Rodrigo v. Quijano, G.R. Adm. Matter No. 731-MJ, Sept9, 1977; Sec. ofJusticev. Marcos, G.R. Adm. Matter No, 207-J April 22, 1977). For no one called upon to try the facts orinterpret thelaw can beinfallible in his judgment (Paulino v. Guevarra, G.R.Adm. Matter No. 584-CJ, March 30, 1977; Lopez v. Corpuz, G.R. Adm. Matter No. 425-MJ, Aug. 31, 1977). Indeed, assuming thatPoncereallypulled outhis gunandpointedit at Abad as he approached him, itwouldnot be easy tofault respondent's reasoning thatPoncehad ampleopportunity tofirethegun at thevictim ifhe had the intention tokill him. AllwhatPonce had to do was to press the trigger while Abad was about to hurl the bottle, or glass at him. On this point, JusticeLuis B.Reyes'RevisedPenal Code (p.100, 1981 ed) has this to say: To constituteattempted homicide the person using a firearm must fire the same, with intent to kill at the offended party, without however inflicting a mortal wound on the latter. On the matter of the non-imposition by respondent ofsubsidiary imprisonment in case ofinsolvency, the decision did not meteoutthepenalty offine onSabater. Therebeing none, subsidiary imprisonment could not have been imposed, pursuant to Art. 39 ofthe Revised Penal Code. Respondent, however, was in errorin appreciating as a mitigating circumstance "lack ofintention to kill the victim"in fixing the penalty imposed on Sabater. xxx xxx xxx The kind ofweapon used by Sabater which was a .38 revolver and the location ofthe wound ofAbad would undoubtedlygivethepresumption that Sabater hadtheintent to kill and which inevitably led respondent to convict himofthecrimeoffrustrated.For inattempted/frustrated homicidetheoffendermust have the intent to kill the victim. Ifthereis no intent to kill on the part ofthe offender he is only liable for physical injuries. Therefore, the factalonethatrespondent found Sabater guilty ofthecrimeoffrustrated homicidewould prove that he had no doubt in his mind that Sabater had the intent to kill Abad. Respondent's appreciation as mitigating circumstanceoflackofintentto kill in favor ofSabater is palpably out ofplace. Presumably, what respondenthad inmind was to considerthemitigating circumstance oflack ofintention to commit so grave a wrong as that committed under Art. 13 oftheRevised PenalCode, which is different from lack ofintention to kill. It is believed that while respondentcommittedan error thus described, the same was done without malice or deliberate intent to perpetrate an injustice. But in any case, there was negligence for which he should be reprimanded. ACCORDINGLY, the undersigned recommends that respondent be reprimanded, with warning that a simi lar transgression in the future will be more severely dealt with. The recommendation is well taken although the reprimand may bedispensedwith considering therespondent's poor health and his impending retirement. As a matter ofpublicpolicy, in theabsenceoffraud, dishonesty or corruption, theacts ofa judge in his judicial capacity arenotsubjectto disciplinary action,even though suchacts are erroneous (Revita v. Rimando,98 SCRA 619). However,whilejudges shouldnot bedisciplined for inefficiencyon accountmerely ofoccasional mistakes or errors ofjudgment,yetit is highly imperative that they should be conversant with basic legal principles (Ubongon v. Mayo, 99SCRA 30) They arecalled upon to exhibit more than just a cursory acquaintance with statutes (Aducayen v. Flores, 51 SCRA 78) and to keep themselves abreast ofthe latest laws, rulings and jurisprudence affecting their jurisdiction (Vasquez v. Malvar, 85 SCRA 10). In the case ofAjeno v. Inserto (71SCRA 166,172), this Court held that:... Evenin the remaining years ofhis stay in the judiciary, he should keep abreast with the changes in the law and with the latest decisions and precedents. Although a judge is nearing retirement, he should not relax in his study ofthe law and court decisions. Servicein thejudiciary means a continuous studyand research on the law from beginning to end... The records fail toshow malice,ill-willor even bias on thepartofrespondent judge. His decision pointed out, one by one, theglaring inconsistencies intheprosecution's evidencewhichledto the exculpation ofdefendant Ponce. In Pabalan v. Guevarra (74 SCRA 53, 58), this Court held that... Evenon the assumption that the judicial officer has erred in theappraisal ofthe evidence, he cannot be held administratively or civilly liable for his judicial action. Ajudicialofficer cannotbe called toaccountin a civilaction for acts doneby him in the exercise ofhis judicial function however erroneous... The secondcasedocketed as AdministrativeMatter No. R561-RTJ was filed by Crisanto P. Cruz on December 11, 1985, against Bleza for knowingly rendering a wrong judgment. This case originated from the decision in an action for damages filed by one Pacifico Ocampo against complainant Cruz. PacificoOcampoalleged inthedamagesuit that on April16,1984, hefiled withtheManila International Airport Authority (MIAA) an administrative complaint against a certain Ricardo F. Ortiz; that complainant Cruz persuaded Himto withdrawthecomplaint with a threat that ifhewould not withdraw the same, Cruz will cause
- 30. his dismissal fromtheFireandRescueDivisionofthe MIAA; thatbecause he did not accede to Cruz'demand, the latter filedagainst him an administrative casefor inefficiency and serious neglect ofduty, insubordination, absenteeism, and habitualtardiness;that because ofthatbaseless complaint, hehas suffered embarrassment, mental shock,anxieties, sleepless nights, and loss ofappetite. In his answer, Cruz denied knowledge ofthe administrative case between Pacifico Ocampo and Ricardo Ortiz and averred that Ocampo's inefficiency, absenteeism, and tardiness are substantiated by company records. After trial,therespondent judgeruledin favor ofPacifico Ocampo. Heorderedcomplainant Cruz to pay Ocampo the sum of P150,000.00for moral damages, P30,000.00for examplary damages and P5,000.00 for attorney's fees. The administrativecomplaint filed by Cruz alleged that the respondent judge disregarded the defendant's incontrovertible evidence and knowingly rendered a wrong judgment against him. In his comment, the respondentjudge allegedthat the decision,subjectmatterofthis case, is pending appeal before the IntermediateAppellateCourt.This allegationwas not refuted bythecomplainant. Thus, any action we can takeinthis casewouldbe premature.For only aftertheappellatecourt holds in a final judgment that a trial judge's alleged errors werecommitteddeliberatelyand in badfaith may a charge ofknowingly rendering an unjust decisionbe levelled againsthim. This is the pronouncementofthis Courtin several cases (See Garcia v. Alconcel,111SCRA 178;Sta. Maria v. Ubay,87 SCRA179; and Gahol v. Riodique,64 SCRA494). In the meantime, the presumption is that official duty was regularly performed. WHEREFORE, IN VIEW OF THE FOREGOING, the administrative cases are hereby, DISMISSED. The recommendationdated June6, 1984 submittedby theCourt Administrator that the respondentjudge beretired from office due to hypertensiveheart disease andcongestive heart failure with cardiomegally (enlarged left ventricle) under Permanent Total Disability, as endorsed by Dr. Antonio Valero of this Court, is hereby APPROVED. CANON 6 17. PENTICOSTES VS. IBAÑEZ Sometimein 1989,Encarnacion Pascual,thesister-in-law ofAtty. Prudencio S. Penticostes (herein complainant) was sued for non-remittance ofSSS payments. The complaint was docketed as I.S. 89-353 and assigned to Prosecutor Diosdado S. Ibañez (herein respondent) for preliminary investigation. In the course of the investigation,Encarnacion Pascual gave P1,804.00to respondentas paymentofherSocial Security System (SSS) contributions in arrears. Respondent, however, did not remit the amount to the system. The fact ofnon- payment was certified to by the SSS on October 2, 1989. On November 16, 1990 or overa yearlater, complainantfiled withtheRegionalTrialCourt ofTarlac a complaint for professionalmisconduct againstIbañez dueto the latter's failure toremitthe SSS contributions ofhis sister- in-law. The complaint allegedthat respondent's misappropriation ofEncarnacion Pascual's SSS contributions amounted to a violationof his oath as a lawyer. Sevendays later, or on November 23, 1990, respondent paid P1,804.00 to the SSS on behalfofEncarnacion Pascual. In the meantime, the case was referred to the Integrated Bar ofthe Philippines -Tarlac Chapter, the court observing that it had nocompetence toreceiveevidence on the matter. Upon receipt ofthe case, the Tarlac Chapter forwarded the same to the IBP's Commission on Bar Discipline. In his defense, respondent claimed that his act ofaccommodating Encarnacion Pascual's request to make payments totheSSS didnot amount to professional misconduct but was rather an act ofChristian charity. Furthermore,he claimed thattheactionwas moot andacademic, theamount ofP1,804.00having already been paid by him totheSSS. Lastly, hedisclaimed liabilityon theground that the acts complained ofwerenot doneby him in his capacity as a practicing lawyer but on account ofhis office as a prosecutor. On September 3,1998, theCommissionrecommendedthat the respondent be reprimanded, with a warning that the commission of the same or similar offense would be dealt with more severely in the future. On November 5,1998, theBoardofGovernors oftheIntegratedBarofthe Philippines adopted and approved its Commission's recommendation. This Court adopts therecommendation oftheIBPand finds respondent guiltyofprofessionalmisconduct. While there is nodoubt that payment ofthecontested amounthad beeneffected totheSSS on November23,1990, it is clear, however, that the same was made only after a complaint had been filed against respondent. Furthermore,theduties ofa provincial prosecutor donot include receiving money from persons with official transactions with his office. This court has repeatedlyadmonishedlawyers thata high senseofmorality, honesty and fairdealing is expected and required ofa memberofthe bar. Rule 1.01 ofthe Code ofProfessional Responsibility provides that "[a] lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct." It is glaringlyclear thatrespondent's non-remittance for over one year ofthe funds coming from Encarnacion Pascualconstitutes conduct in gross violationoftheabovecanon. Thebelated payment ofthe same to the SSS does not excusehis misconduct. While Pascualmay not strictly be considered a client ofrespondent, the rules relating to a lawyer's handling offunds ofa clientis applicable. InDaroy v. Legaspi, 1 this court held that "(t)he relation between an attorney andhis clientis highly fiduciary in nature...[thus]lawyers are bound to promptly account for money or property received by them on behalfoftheir clients and failure to do so constitutes professionalmisconduct."The failure ofrespondentto immediately remit theamount to theSSS gives risetothe presumption thathehas misappropriatedit for his own use. This is a gross violation ofgeneral morality as well as professional ethics; it impairs public confidence in the legal profession and deserves punishment. 2 Respondent's claimthathe may not beheld liable because he committed such acts, not in his capacity as a private lawyer, but as a prosecutor is unavailing.Canon6 oftheCodeofProfessional Responsibility provides: These canons shall apply to lawyers in government services in the discharge oftheir official tasks. As statedby theIBPCommitteethat draftedtheCode,"a lawyer does not shedhis professionalobligations upon assuming publicoffice. In fact, his publicofficeshould makehim moresensitive tohis professional obligations because a lawyer's disreputable conduct is more likely to be magnified in the public's eye. 3 Want ofmoral integrity is to be more severely condemned in a lawyer who holds a responsible public office. 4 ACCORDINGLY, this CourtREPRIMANDS respondentwith a STERN WARNING thatthecommission ofthesame or similar offense will be dealt with more severely in the future. LETcopies ofthis decision bespread inhis records and copies befurnished the Department ofJustice and the Office ofthe Bar Confidant. SO ORDERED.
- 31. 18. MACOCOVS. DIAZ Acomplaint for malpracticefiled by one Marcelino Macoco againstEstebanB. Diaz, attorney-at-law, withlicense to practice in Philippine courts. In order to redeem a propertybelonging tohis wife's father, whichhad beenlevied uponsold at publicauction, complainantMarcelino Macocodeposited with the provincial sheriffofIlocos Norte the sum ofP380. As no redemptioncould bedone, themoney was returned by the sheriffto one Alberto Suguitan, then counsel for Marcelino Macoco. Suguitan used the money according to himself and failed to turn it over to Macoco; whereupon, the latter entrusted its collection to respondent herein, Esteban B. Diaz. It appears that Diaz succeeded in collecting P300 from Suguitan, but he also misappropriated this amount. Respondentadmittedthemisappropriation.He averred,however, that hehad an agreement with Macoco for the paymentof the money by him misappropriated; that whenthis agreement failed, he again entered into a similar arrangement with Hermenegildo Galapia,Lope Ragragola and Pedro Ragragola, who, as heattempted to prove, werethepersons towhomthesum ofP300was really due,Macocobeing merely a trustee thereof; and that in pursuanceof this arrangement whereby hewould pay the sumofP300,deducting therefrom20percent for his attorney's fees, hehad already made partial payments to said persons. Macoco, however, and Lope Ragragola denied this agreement. Whatever might have been theagreement and withwhomsoever respondent might have entered it into, the undeniable fact remains thathemisappropriated the money in breach oftrust. This makes him unfit for the office of an attorney-at-law. And his being a deputy fiscal and not law practitioner at the time of the misappropriation, far from mitigating his guilt, aggravates it. Want ofmoral integrity is to be more severely condemned in a lawyer who holds a responsible public office. Wherefore, respondent Esteban B.Diaz is hereby disbarred fromthepractice of law, and is hereby ordered to surrender his certificate to the clerk ofcourt within five days from notice. This Solicitor General is hereby ordered to investigate the conduct ofAttorney Alberto Suguitan and file later the corresponding report. 19. FAR EASTERN V. CA These consolidated petitions for review on certiorari seek in unison to annul and set aside the decision 1 of respondentCourt of Appeals ofNovember15,1996andits resolution 2 dated July 31, 1997 in CA-G.R. CV No. 24072, entitled "Philippine Ports Authority, Plaintiff-Appellee vs. Far Eastern Shipping Company, Senen C. Gavino and Manila Pilots'Association, Defendants-Appellants,"which affirmedwith modification the judgment ofthe trial court holding thedefendants-appellants therein solidarily liable for damages in favor ofherein private respondent. There is no dispute about the facts as found by the appellate court, thus — . . . On June 20, 1980, theM/V PAVLODAR,flying under the flagship oftheUSSR,owned andoperated by theFar Eastern Shipping Company (FESC for brevity's sake), arrived at the Port ofManila from Vancouver, British Columbia atabout7:00 o'clock inthemorning. The vesselwas assignedBerth 4 oftheManila International Port, as its berthing space. Captain RobertoAbellana was tasked by the Philippine Port Authority to supervise the berthing of the vessel.Appellant Senen Gavino was assigned by the Appellant Manila Pilots'Association (MPA for brevity's sake) to conduct docking maneuvers for the safe berthing ofthe vessel to Berth No. 4. Gavino boardedthevessel at thequarantineanchorageand stationedhimselfin thebridge, with the master of the vessel, Victor Kavankov, beside him.After a briefing ofGavinoby Kavankov ofthe particulars ofthe vessel and its cargo, thevessel lifted anchor from the quarantine anchorage and proceeded totheManila International Port. The sea was calm and the wind was ideal for docking maneuvers. When the vessel reachedthelandmark(the big church by theTondo North Harbor) one-halfmile fromthe pier, Gavino ordered the engine stopped. When the vessel was already about 2,000 feet from the pier, Gavino ordered the anchordropped. Kavankov relayedtheorders tothecrew ofthevessel onthebow.The left anchor, with two (2) shackles, were dropped. However, the anchor did not take hold as expected. The speed of the vesseldidnot slacken. Acommotion ensued between thecrew members.Abriefconference ensued between Kavankovandthecrew members. WhenGavinoinquired whatwas allthecommotionabout, Kavankov assured Gavino that there was nothing to it. After Gavino noticed thattheanchor did not takehold, heorderedtheengines half-astern. Abellana, who was then on the pier apron, noticed thatthevessel was approaching thepier fast. Kavankov likewisenoticedthat the anchor didnottake hold. Gavino thereafter gavethe"full-astern"code. Beforetherightanchor and additional shackles could be dropped, the bow ofthe vessel rammed into the apron ofthe pier causing considerable damage tothepier.The vessel sustained damage too, (Exhibit "7-Far Eastern Shipping). Kavankov filed his sea protest (Exhibit "1-Vessel"). Gavino submittedhis report to the ChiefPilot (Exhibit "1-Pilot") who referred the report to thePhilippine Ports Authority (Exhibit2-Pilot"). Abellana likewisesubmittedhis report ofthe incident (Exhibit "B"). Per contract and supplemental contract of the Philippine Ports Authority and the contractor for the rehabilitation ofthedamaged pier, the samecostthePhilippinePorts Authority the amount ofP1,126,132.25 (Exhibits "D"and "E"). 3 On January10,1983, thePhilippinePorts Authority (PPA, for brevity), throughtheSolicitor General,filed before the RegionalTrial CourtofManila,Branch39, a complaint for a sum ofmoneyagainst Far Eastern Shipping Co., Capt. Senen C. GavinoandtheManila Pilots'Association,docketedas CivilCaseNo. 83-14958, 4 praying that the defendants thereinbeheld jointlyandseverally liableto pay theplaintiffactual and exemplary damages plus costs ofsuit.In a decision dated August 1, 1985, the trial court ordered the defendants therein jointly and severally to pay the PPAtheamount ofP1,053,300.00 representing actual damages and the costs ofsuit. 5 The defendants appealedto the CourtofAppeals andraised thefollowing issues: (1) Is thepilot ofa commercial vessel, under compulsory pilotage,solely liable for thedamage caused by the vessel to the pier, at the port of destination, for his negligence? and(2) Would the owner ofthevessel beliable likewiseifthedamageis caused by the concurrent negligence ofthe master ofthe vessel and the pilot under a compulsory pilotage? As statedattheoutset, respondent appellate court affirmed the findings ofthecourt a quo except that iffound no employer-employeerelationshipexisting between herein private respondents Manila Pilots'Association (MPA, for short) and Capt. Gavino.6 This being so,it ruled instead thattheliability ofMPAis anchored, not on Article 2180 of the Civil Code, but on the provisions of Customs Administrative Order No. 15-65, 7 and accordinglymodified saiddecision ofthe trial court by holding MPA,along withits co-defendants therein, still solidarily liable toPPAbutentitledMPAto reimbursement from Capt. Gavinofor such amount ofthe adjudged pecuniary liability in excess ofthe amountequivalent to seventy-five percent (75%) ofits prescribed reserve fund. 8 Neither Far EasternShipping Co.(briefly, FESC) nor MPAwas happy with the decision ofthe Court ofAppeals and both ofthem elevated their respective plaints to us via separate petitions for review on certiorari. In G. R. No. 130068,whichwas assigned to the Second Division ofthis Court, FESC imputed that the Court of Appeals seriously erred: 1. in not holding SenenC. Gavino and theManila Pilots'Associationas the parties solelyresponsible for the resulting damages sustainedby thepierdeliberately ignoring theestablishedjurisprudence on the matter;
- 32. 2. in holdingthat the master had not exercised the required diligence demanded from him by the circumstances at the time the incident happened; 3. in affirming the amountofdamages sustained by the respondentPhilippine Ports Authority despite a strong and convincing evidence that the amount is clearly exorbitant and unreasonable; 4. in not awarding any amount ofcounterclaim prayed for by the petitioner in its answer; and 5. in not granting hereinpetitioner's claim againstpilotSenen C.Gavinoand Manila Pilots'Association in the event that it be held liable. 9 Petitioner asserts that since theMV PAVLODAR was under compulsory pilotage at the time ofthe incident, it was the compulsory pilot, Capt. Gavino,whowas incommandand had completecontrol in the navigation and docking of the vessel. It is the pilot who supersedes the master for the time being in the command and navigationof a shipandhis orders must beobeyed inall respects connectedwithhernavigation. Consequently, he was solelyresponsiblefor thedamagecaused upon thepier apron, andnot the owners ofthevessel. Itclaims that the master of the boatdidnotcommit any act ofnegligencewhen hefailedto countermandor overrulethe orders of thepilotbecause hedid notseeany justifiablereasonto do so.In otherwords,themaster cannot be faulted for relying absolutely on thecompetence ofthecompulsory pilot. Ifthemaster does notobserve that a compulsory pilot is incompetent or physically incapacitated, the master is justified in relying on the pilot. 10 Respondent PPA, in its comment, predictably in full agreement with the ruling ofrespondent court on the solidary liability of FESC, MPAand Capt. Gavino,stresses theconcurrentnegligenceofCapt. Gavino, the harbor pilot, andCapt.Viktor Kabankov,*shipmaster ofMV Pavlodar, as thebasis oftheirsolidary liability for damages sustained byPPA. Itposits that the vesselwas being piloted by Capt. Gavino withCapt. Kabankov beside him all the whileon thebridgeof thevessel, as the former took over the helm ofMV Pavlodar when it rammed and damagedtheapronof thepier ofBerth No.4 oftheManila InternationalPort. Their concurrent negligence was the immediate and proximatecause ofthe collision between the vessel and the pier — Capt. Gavino, for his negligence in theconductofdocking maneuvers for the safe berthing ofthe vessel; and Capt. Kabankov, for failing to countermandtheorders oftheharbor pilot and totakeoverand steer thevesselhimselfin the face of imminent danger, as well as for merely relying on Capt. Gavino during the berthing procedure. 11 On the other hand, inG.R. No.130150, originally assigned totheCourt's First Division and later transferred to the Third Division. MPA, now as petitioner in this case, avers that respondent court's errors consisted in disregarding and misinterpreting Customs Administrative Order No.15-65 which limits the liability ofMPA. Said pilots'association asseverates that it should not be held solidarily liable with Capt. Gavino who, as held by respondentcourt is only a member, notan employee, thereof. There being no employer-employee relationship, neither canMPAbe heldliablefor any vicarious liability for the respective exercise ofprofession by its members nor be considered a jointtortfeasoras to beheld jointly and severallyliable. 12It further argues that there was erroneous reliance on Customs Administrative Order No. 15-65 and the constitution and by-laws ofMPA, instead of theprovisions oftheCivilCodeondamages which, being a substantivelaw,is higherin category than the aforesaidconstitution and by-laws ofa professional organizationor an administrativeorderwhich bears no provision classifying the nature ofthe liability ofMPAfor the negligence its member pilots. 13 As for Capt. Gavino, counsel for MPAstates thattheformer had retired fromactivepilotageservices since July 28, 1994 andhas ceased to bea member ofpetitioner pilots'association. Heis not joinedas a petitioner in this case since his whereabouts are unknown. 14 FESC's commenttheretorelied onthecompetence ofthe Court ofAppeals in construing provisions oflaw or administrativeorders as bases for ascertaining the liability ofMPA, andexpressedfull accordwith the appellate court's holding of solidary liability among itself, MPAand Capt. Gavino. It further avers that the disputed provisions ofCustoms Administrative Order No. 15-65 clearly established MPA's solidary liability. 15 On the other hand, publicrespondent PPA, likewisethrough representations by the SolicitorGeneral, assumes the samesupportivestance it took in G.R. No. 130068in declaring its totalaccord with the ruling oftheCourt of Appeals that MPAis solidarily liablewith Capt. Gavino andFESC for damages,andin its application tothefullest extent oftheprovisions ofCustoms Administrative Order No. 15-65 in relation to MPA's constitution and by- laws which spellouttheconditions ofand governtheir respective liabilities. These provisions are clear and unambiguous as regards MPA's liability without need for interpretation or construction. Although Customs Administrative OrderNo. 15-65is a mereregulation issued by an administrative agency pursuant to delegated legislativeauthority tofix details to implementthelaw, it is legally binding and has thesame statutory force as any valid statute. 16 Upon motion 17 by FESC dated April 24, 1998 in G.R. No. 130150, said case was consolidated with G.R. No. 130068. 18 Prefatorily,on matters ofcompliance withproceduralrequirements, itmust bementioned that the conduct of the respective counselfor FESC andPPAleaves muchto bedesired,to thedispleasure and disappointment of this Court. Sec. 2, Rule 42 of the 1997 Rules of Civil Procedure 19 incorporates the former Circular No. 28 -91 which provided for whathas come tobe knownas thecertification againstforumshopping as anadditional requisite for petitions filed with the Supreme Court and the Court ofAppeals, aside from the other requirements containedin pertinent provisions oftheRules ofCourt therefor, withthe endin view ofpreventing the filing of multiplecomplaints involving thesame issues in the Supreme Court, Court ofAppeals or different divisions thereofor any other tribunal or agency. More particularly, the second paragraph ofSection 2, Rule 42 provides: xxx xxx xxx The petitioner shallalso submittogetherwith thepetitiona certification under oaththathe has nottheretofore commenced anyother action involving thesame issues in theSupremeCourt, theCourt ofAppeals or different divisions thereof, or any other tribunalor agency; ifthereis suchotheraction orproceeding,he must state the status ofthesame; and ifhe shouldthereafter learn that a similar action or proceeding has been filed or is pending beforetheSupreme Court, theCourt ofAppeals ordifferent divisions thereof, or any other tribunal or agency, heundertakes topromptly informtheaforesaid courts andother tribunalor agency thereofwithin five (5) days therefrom. (Emphasis ours.) For petitions for review filedbeforetheSupreme Court, Section 4(e), Rule 45 specifically requires that such petitionshallcontaina sworn certification against forumshopping as providedin the lastparagraphofSection 2, Rule 42. The records show that thelawfirm ofDel Rosario and DelRosariothroughits associate, Atty.Herbert A. Tria, is the counsel ofrecord for FESC in both G.R. No. 130068 and G.R. No. 130150. G.R. No. 130068, whichis assignedto the Court's Second Division, commenced with the filing by FESC through counselon August 22,1997ofa verified motionfor extensionoftime tofileits petitionfor thirty (30) days from August 28, 1997or untilSeptember27, 1997. 20Said motioncontainedthefollowing certificationagainst forum shopping 21 signed by Atty. Herbert A. Tria as affiant: CERTIFICATION
- 33. AGAINST FORUMSHOPPING I/we herebycertify that I/wehavenot commencedanyother action or proceeding involving thesame issues in the Supreme Court, the Court of Appeals, or any other tribunal or agency; that to the best of my own knowledge, no such actionor proceeding is pending intheSupreme Court, the Court ofAppeals, or any other tribunalor agency; that if I/weshould thereafter learnthata similar action or proceeding has been filed or is pending beforetheSupreme Court, theCourt ofAppeals, or any other tribunal or agency, I/we undertake to report that fact within five (5) days therefrom to this Honorable Court. This motionhaving been granted, FESC subsequently filedits petition onSeptember 26,1997,this time bearing a "verificationand certificationagainst forum-shopping"executed by one Teodoro P. Lopez on September 24, 1997, 22 to wit: VERIFICATION AND CERTIFICATION AGAINST FORUMSHOPPING in compliance with Section 4(e), Rule 45 in relation to Section 2, Rule 42 of the Revised Rules ofCivil Procedure I, Teodoro P. Lopez, of legal age, after being duly sworn, depose and state: 1. That I am the Manager, Claims Department ofFilsov Shipping Company, the localagentofpetitioner in this case. 2. That I have caused the preparation ofthis Petition for Review on Certiorari. 3. That I have read thesameandtheallegations thereincontained are true and correct based on the records of this case. 4. That I certify that petitioner has notcommenced any otheraction orproceeding involving the same issues intheSupreme Courtor Court ofAppeals, or any other tribunal or agency, that to the best ofmy own knowledge, no such actionor proceeding is pending in the Supreme Court, the Court ofAppeals or any other tribunal or agency, that if I should thereafter learn that a similar action or proceeding has been filed or is pending beforetheSupreme Court, theCourt ofAppeals,or any othertribunal or agency, I undertake to report the fact within five (5) days therefrom to this Honorable Court. (Italics supplied for emphasis.) Reviewing therecords, wefind that thepetition filed by MPAin G.R. No. 130150 then pending with the Third Divisionwas dulyfiled on August29, 1997with a copy thereoffurnished onthesamedateby registered mail to counselfor FESC. 23Counselofrecordfor MPA. Atty. Jesus P. Amparo, in his verification accompanying said petition dutifully revealed to the Court that — xxx xxx xxx 3. Petitioner has not commenced any other action or proceeding involving the same issues in this Honorable Court, theCourt ofAppeals ordifferent Divisions thereof, or any other tribunal oragency, but to the best ofhis knowledge, thereis anactionor proceeding pending in this Honorable Court, entitled Far Eastern Shipping Co.,Petitioner, vs. PhilippinePorts Authority andCourtofAppeals with a Motion for Extension oftime to file Petition ForReview by Certiorari filedsometimeon August18, 1987. Ifundersigned counsel will come to know ofany otherpending actionor claimfiled or pending he undertakes toreportsuch fact withinfive (5) days to this Honorable Court. 24 (Emphasis supplied.) Inasmuch as MPA's petition inG.R. No.130150was posted by registered mail on August 29, 1997 and taking judicial noticeoftheaverageperiod oftime it takes localmail to reachits destination, by reasonableestimation it would be fair toconcludethatwhen FESC filedits petition in G.R.No. 130068 on September 26, 1997,it would already have received a copy ofthe former and would then have knowledge ofthe pendency ofthe other petitioninitially filedwiththeFirstDivision. Itwas thereforeincumbent upon FESC to inform the Court ofthat fact through its certification againstforumshopping.For failureto makesuchdisclosure, it would appear that the aforequotedcertification accompanying the petitionin G.R. No. 130068 is defectiveand could have been a ground for dismissal thereof. Even assuming thatFESC hadnotyet received its copy ofMPA's petitionatthetime it filedits ownpetition and executed said certification, its signatory did state "that ifI should thereafter learn that a similar action or proceeding has beenfiled or is pending beforetheSupreme Court, theCourt ofAppeals or anyother tribunal or agency, I undertaketo report the fact withinfive (5) days therefromto this Honorable Court."25 Scouring the records pageby pagein this case,we find thatno manifestation concordant withsuch undertaking was then or at any other timethereafter ever filedby FESC norwas there any attemptto bring suchmatterto theattention ofthe Court. Moreover,it cannotfeignnon-knowledge ofthe existence ofsuch other petition because FESC itselffiled the motion for consolidation in G.R. No. 130150 ofthese two cases on April 24, 1998. It is disturbing to note that counsel for FESC, the law firm of Del Rosario and Del Rosario, displays an unprofessionaltendency oftaking theRules for granted, in this instance exemplified by its pro forma compliance therewith but apparently without full comprehension of and with less than faithful commitment to its undertakings to this Court in the interest ofjust, speedy and orderly administration ofcourt proceedings. As betweenthelawyerandthe courts,a lawyerowes candor, fairness and good faith to the court. 26 He is an officer ofthe court exercising a privilegewhich is indispensable in theadministration ofjustice. 27 Candidness, especially towards thecourts,is essential for the expeditious administration ofjustice. Courts are entitled to expect only completehonestyfrom lawyers appearing andpleading beforethem. 28Candor in alldealings is the very essenceofhonorable membership in the legal profession. 29 More specifically, a lawyer is obliged to observe therules ofprocedureand not tomisusethem todefeat the ends ofjustice. 30 It behooves a lawyer, therefore, to exert every effortand considerit his dutyto assist in the speedy and efficient administration of justice. 31Being an officerofthe court, a lawyer has a responsibility intheproperadministrationofjustice. Like the court itself, he is an instrument to advance its ends — the speedy, efficient, impartial, correct and inexpensiveadjudicationofcases andthepromptsatisfactionoffinal judgments. Alawyer should not only help attaintheseobjectives butshould likewiseavoid any unethical orimproperpractices that impede, obstruct or prevent their realization, charged as he is with the primary task ofassisting in the speedy and efficient administration ofjustice. 32 Sad to say,themembers ofsaid law firm sorelyfailed to observe their duties as responsiblemembers ofthe Bar. Their actuations are indicativeoftheirpredisposition totake lightlytheavowed duties ofofficers oftheCourt to promote respect for lawand for legal processes.33 Wecannotallow this stateofthings topass judicial muster. In view ofthe fact thatataround thetimethese petitions were commenced,the1997 Rules ofCivil Procedure had just taken effect, the Courttreated infractions ofthe new Rules then with relative liberality in evaluating full compliance therewith. Nevertheless, it would do well to remind all concerned that the penal provisions of Circular No. 28-91 which remain operative provides, inter alia: 3. Penalties. — xxx xxx xxx (c) The submission ofa falsecertification underPar. 2 ofthe Circularshall likewise constitute contempt of court, without prejudice to the filing ofcriminal action against the guilty party. The lawyer may also be subjected to disciplinary proceedings.
- 34. It must bestressedthat the certification against forum shopping ordainedunder theRules is to be executed by the petitioner, and not by counsel. Obviously itis thepetitioner, and not always thecounselwhose professional services have been retained for a particular case, whois in the best position to know whether he or it actually filed or caused thefiling of a petition in thatcase. Hence, a certification against forum shopping by counsel is a defectivecertification.It is clearly equivalentto non-compliancewith the requirement under Section 2, Rule 42 in relation to Section 4, Rule 45, and constitutes a valid cause for dismissal ofthe petition. Hence, theinitialcertification appendedto the motion for extensionoftimetofile petition in G.R. No. 130068 executed inbehalf of FESC by Atty. Tria is procedurally deficient. Butconsidering that itwas a superfluity atthat stage oftheproceeding,it being unnecessaryto file sucha certification with a mere motion for extension, we shall disregard sucherror.Besides,thecertification subsequently executedby TeodoroP. Lopez in behalfofFESC cures that defect toa certainextent,despitetheinaccuracies earlier pointed out. In the same vein, we shall consider theverificationsigned inbehalfofMPAby its counsel,Atty. Amparo,in G.R.No. 130150 as substantial compliance inasmuch as it servedthepurposeoftheRules ofinforming the Court ofthe pendency ofanother action or proceeding involving the same issues. It bears stressing thatproceduralrules areinstruments in the speedy and efficient administration ofjustice. They should be used to achieve such end and not to derail it. 34 Counselfor PPAdidnotmake matters any better. Despite the fact that, save for the Solicitor General at the time, thesamelegal team oftheOfficeoftheSolicitor General (OSG, for short) composedofAssistant Solicitor GeneralRomanG. Del Rosario and SolicitorLuis F. Simon, withtheaddition ofAssistantSolicitor General Pio C. Guerrero very much later in theproceedings,representedPPAthroughout the appellate proceedings in both G.R. No. 130068andG.R.No. 130150and was presumablyfullyacquaintedwith thefacts and issues of thecase, it took the OSG aninordinately and almost unreasonably long period oftime to file its comment, thus unduly delaying theresolution of these cases. It took severalchanges ofleadership intheOSG — from SilvestreH. Bello III to Romeo C. dela Cruz and, finally, RicardoP. Galvez — beforethecommentin behalfofPPAwas finally filed. In G.R. No. 130068, ittook eight (8) motions for extension oftimetotaling 210 days, a warning that no further extensions shall begranted, and personal service on theSolicitor Generalhimselfofthe resolutionrequiring the filing ofsuch comment beforetheOSG indulgedtheCourt withthelong requiredcommenton July 10, 1998. 35 This, despite thefactthat saidofficewas required to file its comment way back on November 12, 1997. 36 A closer scrutiny of the records likewise indicates that petitoner FESC was not even furnished a copy ofsaid comment as requiredby Section5, Rule42.Instead, a copy thereofwas inadvertently furnished to MPAwhich, from the pointof viewof G.R. No.130068, was a non-party. 37The OSG faredslightly better inG.R.No. 130150 in that it took only six(6) extensions,or a totalof180days, beforethecommentwas finally filed.38 Andwhileit properly furnished petitioner MPA with a copy of its comment, it would have been more desirable and expedientin this case tohavefurnishedits therein co-respondent FESC with a copy thereof, ifonly as a matter of professional courtesy. 39 This undeniably dilatory disinclination oftheOSG to seasonably filerequired pleadings constitutes deplorable disservice tothetax-paying publicand can only be categorized as censurable inefficiency on the part ofthe government law office. This is most certainly professionally unbecoming ofthe OSG. Another thing that baffles theCourt is why theOSG didnot take the inititive offiling a motion for consolidation in eitherG.R. No.130068or G.R.No. 130150,considering its familiarity with the background ofthe case and if only to makeits jobeasier byhaving to prepareand file onlyonecomment.It couldnot have been unaware of the pendency of one ortheotherpetition because, being counsel for respondent in both cases, petitioner is requiredto furnish itwith a copyofthe petitionunderpain ofdismissalofthe petitionfor failure otherwise. 40 Besides, in G.R. 130068, it prefaces its discussions thus — Incidentally, the Manila Pilots'Association (MPA), one ofthe defendants-appellants in the case before the respondentCourt ofAppeals, has taken a separate appealfrom the saiddecision tothis Honorable Court, which was docketed as G.R. No.130150and entitled"Manila Pilots'Association, Petitioner, versus Philippine Ports Authority and Far Eastern Shipping Co., Respondents."41 Similarly, in G.R. No. 130150, it states — Incidentally, respondentFar Eastern Shipping Co. (FESC) had also taken an appealfrom thesaid decision to this Honorable Court, docketed as G.R. No. 130068, entitled "Far Eastern Shipping Co. vs. Court ofAppeals and Philippine Ports Authority."42 We find herea lackadaisicalattitude andcomplacency on thepartoftheOSG in thehandling ofits cases and an almostreflexivepropensity to move for countless extensions, as ifto test the patience ofthe Court, before favoring it with the timely submission ofrequired pleadings. It must be emphasizedthattheCourt can resolve cases only as fastas the respective parties in a case file the necessary pleadings. The OSG, by needlessly extending the pendency ofthese cases through its numerous motions for extension, camevery closeto exhausting this Court's forbearanceand has regrettably fallenshort of its duties as the People's Tribune. The OSG is reminded that just like other members ofthe Bar, the canons under the Code ofProfessional Responsibility apply with equalforceon lawyers in governmentservicein the dischargeoftheir officialtasks. 43 These ethicalduties are renderedeven moreexacting as tothem because, as government counsel, they have the addedduty to abideby thepolicy ofthe State to promote a high standard ofethics in public service. 44 Furthermore,it is incumbent upon the OSG, as part ofthegovernmentbureaucracy, to perform and discharge its duties with thehighest degree ofprofessionalism,intelligenceand skill45 andto extend prompt, courteous and adequate service to the public. 46 Now, on the merits ofthe case. Aftera judicious examinationofthe records ofthis case,thepleadings filed, and the evidencepresentedby theparties in thetwopetitions, wefindno cogent reason to reverse and set aside the questioned decision. Whilenot entirely a caseoffirstimpression, weshalldiscuss the issues seriatim and, correlatively by way ofa judicial once-over, inasmuch as thematters raisedin both petitions beg for validation and updating ofwell-worn maritime jurisprudence. Thereby,we shall writefinis to theendless finger-pointing in this shipping mishap which has been stretched beyond the limits ofjudicial tolerance. The Port ofManila is withintheManila PilotageDistrictwhich is under compulsory pilotage pursuant to Section 8, Article III ofPhilippine Ports Authority Administrative Order No. 03-85, 47 which provides that: Sec. 8. Compulsor PilotageService. — Forentering a harbor andanchoring thereat,or passing through rivers or straits withina pilotagedistrict, as well as docking and undocking at any pier/wharf, or shifting from one berth or another,every vesselengaged incoastwiseand foreigntradeshall be under compulsory pilotage. . . . In case ofcompulsory pilotage,therespective duties andresponsibilities ofthecompulsory pilotandthemaster have been specified by the same regulation in this wise: Sec. 11. Control ofvessels and liability for damage. — On compulsory pilotage grounds, the Harbor Pilot providing theservice toa vesselshall beresponsiblefor thedamagecaused to a vessel or tolifeand property at ports due tohis negligenceor fault. He can only be absolved from liability ifthe accident is caused by force majeureor naturalcalamities provided hehas exercised prudenceand extra diligence to prevent or minimize damage. The Master shall retain overall command ofthevessel even on pilotagegrounds wherebyhe can countermand or overruletheorder orcommandofthe HarborPiloton beard. Insuch event,any damagecaused to a vessel or
- 35. to life andproperty atports by reasonofthefault or negligence ofthe Master shall be the responsibility and liabilityof the registeredownerofthe vessel concerned without prejudice to recourse against said Master. Such liabilityof the owner or Master ofthevesselor its pilots shall be determined by competent authority in appropriate proceedings in the light ofthe facts and circumstances ofeach particular case. Sec. 32. Duties andresponsibilities ofthePilotor Pilots'Association. — The duties and responsibilities ofthe Harbor Pilot shall be as follows: xxx xxx xxx f) a pilot shallbe heldresponsible for the direction ofa vesselfrom the timeheassumes his work as a pilot thereof until heleaves it anchoredor berthedsafely; Provided, however, that his responsibility shall cease at the moment the Master neglects or refuses to carry out hisorder. Customs AdministrativeOrder No. 15-65issued twenty years earlier likewise provided in Chapter I thereoffor the responsibilities of pilots: Par. XXXIX. — APilot shall beheld responsiblefor thedirection ofa vessel from the time he assumes control thereof until heleaves it anchoredfreefrom shoal: Provided, That his responsibility shallcease at the moment the master neglects or refuses to carry out his instructions. xxx xxx xxx Par. XLIV. — Pilots shallproperly andsafely secureor anchorvessels undertheir control when requested to do so by the master of such vessels. I. G.R. No. 130068 Petitioner FESC faults the respondent court with serious error in not holding MPAand Capt. Gavino solely responsiblefor thedamages causeto thepier. It avers that sincethevessel was under compulsory pilotage at the time with Capt. Gavino in command and having exclusive control of the vessel during the docking maneuvers, thenthe latter should be responsible for damages caused to the pier. 48 It likewise holds the appellate court inerror for holding that themaster oftheship, Capt. Kabankov, did not exercise the required diligence demanded by the circumstances. 49 We startour discussion of the successiveissues bearing inmind the evidentiary rulein American jurisprudence that there is a presumption offaultagainst a moving vessel that strikes a stationary object such as a dock or navigational aid.In admiralty, this presumption does more than merely require the ship to go forward and produce someevidenceon thepresumptivematter. Themoving vessel must show that it was without fault or that the collision was occasioned by the fault ofthestationaryobject or was theresultofinevitable accident. It has beenheld that suchvessel must exhaustevery reasonablepossibility which the circumstances admit and show thatin each,they didall that reasonablecarerequired. 50In the absence ofsufficient proofin rebuttal, the presumption of faultattaches toa moving vesselwhichcollides with a fixedobject andmakes a prima facie case offault against the vessel. 51 Logic and experience support this presumption: The common sensebehind therulemakes theburden a heavy one. Such accidents simply do not occur in the ordinary course of things unless the vessel has been mismanaged in some way. It is nor sufficient for the respondentto producewitnesses whotestify thatas soonas thedanger becameapparent everything possible was doneto avoidanaccident. The question remains, How then did the collision occur? The answer must be either that, inspiteof thetestimony ofthewitnesses, whatwas done was too little or too late or, ifnot, then the vessel was at fault for being in a position in which an unavoidable collision would occur. 52 The task, therefore,in thesecases is to pinpoint who was negligent — themaster oftheship, the harbor pilot or both. A pilot, inmaritime law, is a person duly qualified, andlicensed, to conduct a vessel into or out ofports, or in certainwaters. In a broadsense, the term"pilot"includes both (1) those whose duty itis to guidevessels into or out ofports, or inparticularwaters and (2) thoseentrusted with the navigationofvessels on the high seas. 53 However, the term"pilot"is moregenerally understood as a persontakenon board at a particular place for the purpose ofconducting a ship through a river, road or channel, or from a port. 54 Under English and American authorities, generally speaking,thepilotsupersedes the master for the time being in the command and navigationofthe ship, andhis orders must be obeyed in all matters connected with her navigation. Hebecomes themaster pro hac viceand shouldgiveall directions as to speed, course, stopping and reversing anchoring,towing and thelike. Andwhen a licensed pilot is employed in a place where pilotage is compulsory,it is his dutyto insist on having effectivecontrolofthe vessel, or to decline to act as pilot. Under certainsystems offoreignlaw,thepilotdoes not take entire charge ofthe vessel, but is deemed merely the adviser ofthemaster, whoretains commandandcontrol ofthenavigation evenin localities where pilotage is compulsory. 55 It is quitecommon for states and localities to provide for compulsory pilotage, and safety laws have been enacted requiring vessels approaching theirports, with certainexceptions,to takeon board pilots duly licensed under locallaw. Thepurposeoftheselaws is tocreatea body ofseamen thoroughly acquainted withtheharbor, to pilot vessels seeking to enter or depart, andthus protect life and property from the dangers ofnavigation. 56 In line withsuch establisheddoctrines, Chapter II ofCustoms Administrative Order No. 15-65 prescribes the rules for compulsorypilotageinthecovered pilotage districts, among which is the Manila Pilotage District, viz. — PARAGRAPH I. — Pilotagefor entering a harborand anchoring thereat, as well as docking and undocking in any pier or shifting from one berth to another shall be compulsory, except Government vessels and vessels of foreign governments entitled to courtesy, and other vessels engagedsolely in riveror harbor work, or in a daily ferry service betweenports which shall beexempt fromcompulsory pilotage provisions ofthese regulations: provided,however, that compulsory pilotage shall not apply in pilotage districts whose optional pilotage is allowed under these regulations. Pursuant thereto, Capt. Gavino was assigned topilotMV PavlodarintoBerth 4ofthe Manila International Port. Upon assuming such officeas compulsory pilot,Capt. Gavinois held totheuniversally accepted high standards of care and diligence required of a pilot, whereby he assumes to have skill and knowledge in respect to navigationin the particular waters over which his licenseextends superior to and more to be trusted than that ofthe master.57 Apilot57should havea thorough knowledge ofgeneral and local regulations and physical conditions affecting the vesselin his chargeand the waters for which heis licensed, such as a particular harbor or river. He is not held tothehighestpossibledegree ofskill and care,but must haveand exercise the ordinary skill and care demanded by the circumstances,andusually shown by an expert in his profession. Under extraordinary circumstancesm, a pilot must exercise extraordinary care. 58 In Atlee vs. TheNorthwesrernUnion PacketCompany.59 Mr. JusticeMiller spelledoutin greatdetailtheduties ofa pilot: . . . (T)he pilot ofa riversteamer, like theharborpilot, is selected for his personalknowledge ofthe topography through which hesteers his vessel. In the long course ofa thousand miles in one ofthese rivers, he must be familiar with the appearance ofthe shore on each side ofthe river as he goes along. Its banks, towns, its landings, its houses and trees, are alllandmarks by which hesteers his vessel. Thecompass is oflittleuseto him.
- 36. He must knowwherethenavigablechannelis,in its relation toall theseexternalobjects, especiallyin the night. He must also befamiliar with all dangers thatare permanently locatedin the course ofthe river, as sand-bars, snags, sunkenrocks ortrees or abandonedvessels orbarges.All this he must know and remember and avoid. To do this, he must be constantly informed ofthe changes in the current ofthe river, ofthe sand-bars newly made,of logs or snags, or other objects newly presented, against which his vessel might be injured. xxx xxx xxx It may be saidthat this is exacting a very high orderofability ina pilot. But when we consider the value ofthe lives and propertycommittedto their control,for in this they areabsolutemasters, the high compensation they receive, the care which Congress has taken to secure by rigid and frequent examinations and renewal of licenses, this very class ofskill, we do not think we fix the standard too high. Tested thereby, we affirm respondent court's finding that Capt. Gavino failed to measure up to such strict standard of careand diligence requiredofpilots in theperformanceoftheir duties. Witness this testimony of Capt. Gavino: Court: You have testified beforethatthereasonwhy the vesselbumped the pier was because the anchor was not released immediately or as soon as youhave given the order. Do you remember having srated that? A Yes, your Honor. Q And you gave this order to the captain ofthe vessel? A Yes, your Honor. Q By that testimony, you are leading the Court to understand that if that anchor was released immediately at the time you gave the order, the incident would not have happened. Is that correct? A Yes, sir, but actually itwas only a presumptionon my partbecausetherewas a commotion between the officers who are in charge ofthe dropping ofthe anchor and the captain. I could not understand their language, it was in Russian, so I presumed the anchor was not dropped on time. Q So, you are not sure whether it was really dropped on time or not? A I am not sure, your Honor. xxx xxx xxx Q You are not even sure what could have caused the incident. What factor could have caused the incident? A Well, in this case now, because either the anchor was not dropped on time or the anchor did not hold, that was the cause ofthe incident, your Honor. 60 It is disconcertingly riddledwith toomuch incertitude and manifests a seeming indifference for the possibly injurious consequences his commands as pilotmay have. Prudence requiredthat he, as pilot, should have made sure that his directions were promptly and strictly followed. As correctly noted by the trial court — Moreover, assuming thathe did indeed givethecommand todroptheanchor on time, as pilot he should have seen to itthat the order was carriedout, and hecouldhave donethis in a number ofways,oneofwhich was to inspectthebowof the vesselwheretheanchor mechanism was installed. Ofcourse, Captain Gavino makes referenceto a commotion among thecrewmembers whichsupposedly causedthedelay in theexecutionofthe command.This account was reflected inthepilot's report preparedfour hours later,butCapt. Kavankov, while not admitting whetheror notsuch a commotion occurred,maintained that the command to drop anchor was followed "immediately and precisely."Hence, the Court cannot give much weight or consideration to this portion ofGavino's testimony."61 An act may be negligentifit is done without thecompetence that a reasonable person in the position ofthe actor would recognizeas necessary to prevent it from creating an unreasonable risk ofharm to another. 62 Those who undertakeany work calling for special skills arerequired not only to exercisereasonablecareinwhat they do but also possess a standard minimum ofspecial knowledge and ability. 63 Every man who offers his services to another,and is employed,assumes to exercise in the employment such skills hepossesses, witha reasonable degree ofdiligence. In all these employments where peculiar skill is requisite, ifoneoffers his services he is understoodas holding himselfoutto thepublic as possessing thedegree ofskill commonly possessed by others in the same employment, and ifhis pretensions are unfounded he commits a species offraud on every man who employs him in reliance on his public profession. 64 Furthermore,thereis anobligationon allpersons to takethecarewhich, under ordinary circumstances ofthe case, a reasonable and prudent man would take, and the omission ofthat care constitutes negligence. 65 Generally,thedegree ofcarerequired is graduated according to the danger a person or property attendant upon the activity whichtheactor pursues or the instrumentality which he uses. The greater the danger the greater the degreeofcare required. Whatis ordinary under extraordinary ofconditions is dictated by those conditions; extraordinary risk demands extraordinary care. Similarly, the moreimminent thedanger, the higher the degree ofcare. 66 We give our imprimatur to thebases for theconclusion oftheCourt ofAppeals that Capt. Gavino was indeed negligent in the performance ofhis duties: xxx xxx xxx . . . As can be gleanedfrom thelogbook, Gavino ordered the left anchor and two (2) shackles dropped at 8:30 o'clock in themorning. Heordered the engines ofthe vesselstoppedat8:31 o'clock. By then,Gavino must have realizedthattheanchor did nothita hard object and was not clawed so as to reduce the momentum ofthe vessel. In point offact, the vesselcontinued travelling towards the pier at the same speed. Gavino failed to react, At 8:32 o'clock, thetwo (2) tugboats began topush the stern part ofthevessel fromtheportside bur the momentumofthe vesselwas not contained.Still, Gavino did notreact. Hedid noteven order the other anchor and two (2) moreshackles dropped toarrestthemomentum ofthevessel. Neither did he order full-astern. It was only at 8:34o'clock,or four (4) minutes,after the anchorwas droppedthatGavinoreacted.But his reaction was even (haphazard) because instead ofarresting fully the momentum ofthe vessel with the help ofthe tugboats, Gavino ordered merely "half-astern". It took Gavino another minuteto ordera "full-astern". By then,it was too late. Thevessel's momentumcouldno longer bearrestedand, barely a minute thereafter, the bow of the vesselhittheapronofthepier. Patently, Gavinomiscalculated. Hefailed toreactand undertake adequate measures to arrest fully themomentumofthevesselafter the anchor failed to claw to the seabed. When he reacted, the samewas even (haphazard). Gavino failed toreckonthebulk ofthevessel, its size and its cargo. He erroneously believedthat onlyone(1) anchorwould suffice andeven when the anchor failed to claw into the seabedor againsta hardobject intheseabed,Gavinofailed toorder the other anchor droppedimmediately.His claim thattheanchor was dropped whenthevessel was only 1,000 feet fromthepier is but a belated attemptto extricatehimselffrom thequagmire ofhis own insoucianceand negligence. Insum, then, Appellants'claim that the incident was caused by "force majeure"is barren offactual basis. xxx xxx xxx The harbor pilots are especiallytrainedfor this job.In thePhilippines,onemay not be a harbor pilot unless he passed the required examination and training conducted then by the Bureau ofCustom, under Customs
- 37. Administrative OrderNo. 15-65,nowunder thePhilippinePorts Authorityunder PPAAdministrative Order 63- 85, Paragraph XXXIX of the Customs Administrative Order No. 15-65 provides that "the pilot shall be held responsiblefor thedirectionofthevesselfrom the time heassumes controlthereof, until heleaves itanchored free from shoal:Provided, thathis responsibilityshall cease at the.momentthemaster neglects or refuse(s) to carry out his instructions."The overall direction regarding theprocedurefor docking and undocking the vessel emanates fromtheharbor pilot. In thepresent recourse, Gavino failed to live up to his responsibilities and exercisereasonablecareor that degree ofcarerequired by the exigencies oftheoccasion. Failure onhis part to exercisethedegreeof caredemandedby thecircumstances is negligence(Reeseversus Philadelphia & RR Co. 239 US 363, 60 L ed. 384, 57 Am Jur, 2d page 418). 67 This affirms the findings ofthe trial court regarding Capt. Gavino's negligence: This discussionshould not however, divert thecourtfrom the fact that negligence in manuevering the vessel must be attributed to Capt. Senen Gavino. He was an experienced pilot and by this time should have long familiarized himself with thedepth ofthe port andthedistancehe could keep between the vessel and port in order to berth safely. 68 The negligenceon the partofCapt.Gavinois evident; butCapt. Kabancov is no less responsible for the allision. His unconcerned lethargy as master ofthe ship in the face oftroublous exigence constitutes negligence. While it is indubitable that inexercising his functions a pilot is in sole command ofthe ship 69 and supersedes the masterfor thetime being inthecommandand navigation ofa ship and that hebecomes masterpro hacvice ofa vesselpiloted by him, 70 there is overwhelming authority totheeffect thatthemaster does not surrender his vessel to the pilot and the pilot is not the master. The master is still in command of the vessel notwithstanding thepresenceofa pilot. Thereareoccasions when the master may and should interfere and even displace the pilot,as when the pilot is obviously incompetentor intoxicated and the circumstances may require the masterto displace a compulsory pilotbecauseofincompetency orphysical incapacity. If, however, the masterdoes nor observe thata compulsory pilot is incompetent or physically incapacitated, the master is justified in relying on the pilot, but not blindly. 71 The master is notwholly absolvedfrom his duties while a pilot is on board his vessel, and may advise with or offer suggestions to him. Heis still in command ofthevessel,except so far as hernavigation is concerned, and must causetheordinary work ofthevesselto beproperly carriedon and the usual precaution taken. Thus, in particular, heis boundto seethatthere is sufficient watch on deck, and that the men are attentive to their duties,alsothatengines arestopped, towlines cast off, and the anchors clear and ready to go at the pilot's order. 72 A perusal of Capt. Kabankov's testimony makes itapparentthathe was remiss inthedischarge ofhis duties as master of the ship, leaving the entire docking procedure up to the pilot, instead ofmaintaining watchful vigilance over this risky maneuver: Q Will you please tell us whetheryou havetheright tointervenein docking ofyourship inthe harbor? A No sir, I haveno right tointervenein timeofdocking,only in case there is imminent danger to the vessel and to the pier. Q Did you ever intervene during the time that your ship was being docked by Capt. Gavino? A No sir, I did not intervene at the time when the pilot was docking my ship. Q Up to the time it was actually docked at the pier, is that correct? A No sir, I did not intervene up to the very moment when the vessel was docked. xxx xxx xxx Atty. Del Rosario (to the witness) Q Mr. Witness, what happened, if any, or was there anything unusual that happened during the docking? A Yes sir, our ship touched ihe pier and the pier was damaged. Court (to the witness) Q When you saidtouched thepier, areyou leading thecourt to understand thatyourship bumped the pier? A I believe that my vessel only touched the pier but the impact was very weak. Q Do you know whether the pier was damaged as a result ofthat slight or weak impact? A Yes sir, after the pier was damaged. xxx xxx xxx Q Being most concerned withthesafety ofyourvessel, inthemaneuvering ofyour vessel to the port, did you observeanything irregular inthemaneuvering by Capt. Gavino at the time he was trying to cause the vessel to be docked at the pier? A You mean the action ofCapt. Gavino or his condition? Court: Q Not the actuation that conform to the safety maneuver ofthe ship to the harbor? A No sir, it was a usual docking. Q By that statementofyours,you areleading thecourt tounderstand that therewas nothing irregular in the docking ofthe ship? A Yes sir, during the initial period ofthe docking, there was nothing unusual that happened. Q What about inthelast portionofthe docking oftheship, was there anything unusual or abnormal that happened? A None Your Honor,I believethatCapt.Gavinothoughtthat theanchor couldkeep orholdthe vessel. Q You want us to understand, Mr. Witness, that the dropping ofthe anchor ofthe vessel was nor timely? A I don't know the depth ofthis port but I think, ifthe anchor was dropped earlier and with more shackles, there could not have been an incident. Q So you could notprecisely tellthecourt that thedropping oftheanchorwas timery because you are not well aware ofthe seabed, is that correct?
- 38. A Yes sir,that is right. xxx xxx xxx Q Alright, Capt. Kavankov,didyou cometo know later whether the anchorheld its ground so much so that the vessel could not travel? A It is difficult for me to say definitely. I believe that the anchor did not hold the ship. Q You mean you don't know whether the anchor blades stuck to the ground to stop the ship from further moving? A Yes sir, it is possible. Q What is possible? A I think, the 2 shackles were not enough to hold the vessel. Q Did you know that the 2 shackles were dropped? A Yes sir, I knew that. Q If you knew that theshackles werenot enough toholdtheship, did you not makeany protest to the pilot? A No sir, after the incident, that was my assumption. Q Did you come to know later whether that presumption is correct? A I still don't know the ground in the harbor or the depths. Q So from the beginning, youwere not competent whether the2 shackles were also dropped to hold the ship? A No sir, at thebeginning, I did notdoubt it becauseI believe Capt. Gavino tobe an experienced pilot and he shouldbemoreawareas to the depths oftheharbor and the groundand I was confident in his actions. xxx xxx xxx Solicitor Abad (to the witness) Q Now, you were standing with the pilot on the bridge ofthe vessel before the inicident happened, were you not? A Yes sir, all the time, I was standing with the pilot. Q And so whatever the pilot saw, you could also see from that point ofview? A That is right. Q Whatever the piler can read from the panel ofthe bridge, you also could read, is that correct? A What is the meaning ofpanel? Q All indications necessary for men on the bridge to be informed ofthe movements ofthe ship? A That is right. Q And whatever sound thecaptain. . . Capt. Gavinowould hear fromthebridge, you could also hear? A That is right. Q Now, you said thatwhen the command tolowertheanchor was given, it was obeyed, is that right? A This command was executed by the third mate and boatswain. Court (to the witness) Q Mr. Witness,earlier intoday's hearing, yousaidthatyou did notintervenewith theduties ofthepilot and that, in your opinion, you can only intervene ifthe ship is placed in imminent danger, is that correct? A That is right, I did say that. Q In your observation before the incidentactually happened, didyou observe whether or not the ship, before the actual incident, the ship was placed in imminent danger? A No sir, I did not observe. Q By that answer, areyou leading the court to understand that because you did not intervene and because youbelievedthat itwas your duty tointervenewhen thevessel is placed in imminent danger to which you did not observeany imminent danger thereof, you have not intervened inany manner to the command of the pilot? A That is right, sir. xxx xxx xxx Q Assuminp that you disagreed with the pilot regarding the step being taken by the pilot in maneuvering the vessel, whose command will prevail, in case ofimminent danger to the vessel? A I did nor consider thesituation as having an imminent danger. I believed that the vessel will dock alongside the pier. Q You want us to understand thatyou did not seeanimminent danger to your ship, is that what you mean? A Yes sir, up to the very last moment, I believed that there was no imminent danger. Q Because ofthat, did you ever intervene in the command ofthe pilot? A Yes sir, I did not intervene because I believed that the command ofthe pilot to be correct. Solicitor Abad (to the witness) Q As a captain ofM/V Pavlodar, you consider docking maneuvers a serious matter, is it not?
- 39. A Yes sir,that is right. Q Since it affects not only thesafety ofthe port orpier, but also thesafety ofthevesseland the cargo, is it not? A That is right. Q So that, I assumethatyou werewatching Capt. Gavino very closely at the time he was making his commands? A I was close to him, I was hearing his command and being executed. Q And that you were alsoalert for any possible mistakes he might commit in the maneuvering ofthe vessel? A Yes sir, that is right. Q But at no timeduring themaneuver did youissueorder contrary to the orders Capt. Gavino made? A No sir. Q So that you were in full accord with all ofCapt. Gavino's orders? A Yes sir. Q Because, otherwise, you would have issued order that would supersede his own order? A In that case, I should t,ke him away from his command or remove the command from him. Court (to the witness) Q You were in full accord with the steps being taken by Capt. Gavino because you relied on his knowledge, on his familiarity oftheseabedandshoals andother surroundings or conditions under the sea, is that correct? A Yes sir, that is right. xxx xxx xxx Solicitor Abad (to the witness) Q And so after theanchors wereordereddropped and theydidnot takehold ofthe seabed, you were alerted that there was danger already on hand? A No sir, there was no imminent danger to the vessel. Q Do you mean totellus that eveniftheanchor was supposed to take hold ofthe bottom and it did not, there was no danger to the ship? A Yes sir, because the anchor dragged on the ground later. Q And after a few moments whentheanchor shouldhavetakenhold theseabedbur not done (sic), as you expected, you already were alerted that there was danger to the ship, is that correct? A Yes sir, I was alerted but there was no danger. Q And you were alerted that somebody was wrong? A Yes sir, I was alerted. Q And this alert vou assumed was the ordinary alertness that you have for normal docking? A Yes sir, I mean that it was usual condition ofany man in time ofdocking to be alert. Q And that is the same alertness when the anchor did not hold onto the ground, is that correct? A Yes sir, me and Capt. Gavino (thought) that the anchor will hold the ground. Q Since, as you saidthat youagreed allthewhilewiththe orders ofCapt. Gavino, you also therefore agreed with him inhis failureto takenecessary precaution againsttheeventuality thattheanchor will not hold as expected? Atty. Del Rosario: May I ask that the question . . . Solicitor Abad: Never mind, I will reform the question. xxx xxx xxx Solicitor Abad (to the witness) Q Is it not a fact that the vessel bumped the pier? A That is right, it bumped the pier. Q For the main reason that the anchor ofthe vessel did not hold the ground as expected? A Yes sir, that is my opinion. 73 Further, on redirect examination, Capt. Kabankov fortified his apathetic assessment ofthe situation: Q Now, after theanchor was dropped,was thereanypoint intimethat youfeltthat the vessel was in imminent danger. A No, at that time, the vessel was not in imminent, danger, sir. 74 This cavalier appraisal ofthe event by Capt. Kabankov is disturbingly antipodal to Capt. Gavino's anxious assessment ofthe situation: Q When a pilot is onboarda vessel,it is the piler's command whichshould befollowedat that moment until the vessel is, or goes to port or reaches port?
- 40. A Yes, yourHonor, but itdoes not take away from the Captain his prerogative to countermand the pilot. Q In what way? A In any case, which he thinks the pilot is not maneuvering correctly, the Captain always ha s the prerogative to countermand the pilot's order. Q But insofaras competence, efficiency and functional knowledee ofthe seabed which are vital or decisive in the safety (sic) bringing ofa vessel to the port, he is not competent? A Yes, your Honor. That is why they hire a pilotin an advisory capacity,but still, the safety ofthevessel rest(s) upon the Captain, the Master ofthe vessel. Q In this case, there was nota disagreement between you and the Captainofthevesselin the bringing ofthe vessel to port? A No, your Honor. Court: May proceed. Atty. Catris: In fact, the Master of thevesseltestifiedherethat hewas all along in conformity with the orders you, gave to him, and, as matter of fact,as hesaid, he obeyed all your orders. Can you tell, ifin the course ofgiving such normal orders for the saf(e) docking ofthe MV Pavlodar,do youremember ofany instance that the Master of the vessel did not obey your command for the safety docking ofthe MV Pavlodar? Atty. del Rosario: Already answered, he already said yes sir. Court: Yes, he has justansweredyes sir tothe Court that there was no disagreement insofar as the bringing ofthe vessel safely to the port. Atty. Catris: But in this instanceof docking oftheMV Pavlodar, doyou remember ofa timeduring the courseofthe docking that the MV Pavlodar was in imminent danger ofbumping the pier? A When we were about morethan one thousand meters from the pier, I think, the anchor was not holding, soI immediately orderedto pushthebowat a fourth quarter, at the back ofthevessel inorder toswing the bow away from the pier and at the same time, I ordered for a full astern ofthe engine. 75 These conflicting reactions can only imply, at the very least, unmindful disregard or, worse, neglectful relinquishment of duty by the shipmaster, tantamount to negligence. The findings of the trial court on this aspect is noteworthy: For, while the pilot Gavino mayindeed havebeencharged with the task ofdocking the vessel in the berthing space,it is undisputedthat the master ofthe vessel had the corresponding duty to countermand any ofthe orders madeby thepilot, andeven maneuverthevessel himself, incase ofimminent danger to the vessel and the port. In fact, in his testimony, Capt. Kavankov admitted thatall throughour the man(eu)vering procedures he did not notice anything was going wrong,andeven observedthat theorder given to drop the anchor was done at the proper time. Heevenventuredtheopinion that theaccident occurred because the anchor failed to take hold but that this did not alarm him because.there was still time to drop a second anchor. Under normal circumstances, the abovementioned facts would have caused the master ofa vessel to take charge ofthesituation and seeto the man(eu)vering ofthe vesselhimself. Instead,Capt.Kavankovchoseto rely blindly upon his pilot, who by this time was proven ill-equipped to cope with the situation. xxx xxx xxx It is apparentthat Gavinowas negligentbut Far Eastern's employeeCapt. Kavankov was no lesss responsible for as master ofthevesselhestoodby thepilotduring the man(eu)vering procedures and was privy to every move the latter made,as wellas thevessel's responseto each ofthe commands. His choice to rely blindly upon the pilot's skills, tothepoint that despitebeing appraised ofa noticeofalerthecontinued to relinquish control of the vesselto Gavino,shows indubitably thathe was notperforming his duties with thediligencerequired ofhim and therefore may be charged with negligence along with defend;int Gavino. 76 As correctly affirmed by the Court ofAppeals — We are in full accord with the findings and disquisitions ofthe Court a quo. In the present recourse, Captain ViktorKavankov had beena mariner for thirty-two years before the incident. When Gavino was (in) thecommand ofthe vessel, Kavankov was beside Gavino, relaying the commands or orders ofGavinoto the crewmembers-officers ofthevessel concerned. Hewas thus fully aware ofthe docking maneuvers and procedureGavino undertook to dock the vessel. Irrefragably, Kavankov was fully aware ofthe bulk and size ofthevessel andits cargoas wellas theweight ofthevessel. Kavankovcategorically admitted that, when the anchor andtwo (2) shackles weredroppedto thesea floor, the claws oftheanchor did not hitchon to any hard object in theseabed.The momentumofthe vesselwas not arrested. The use ofthe two (2) tugboats was insufficient.The momentum ofthe vessel, although a little bit arrested, continued (sic) the vessel going straightforward with its bowtowards theport(Exhibit"A-1 ). There was thus a needfor thevessel tomove"full- astern"and todrop theotheranchor with another shackle or two (2), for the vessel to avoid hitting the pier. Kavankovrefused to acteven as Gavino failed toact. Even as Gavinogavemere "half-astern"order, Kavankov supinely stood by. Thevessel was already about twenty (20) meters awayfrom the pier when Gavino gave the "full-astern"order. Even then, Kavankov did nothing toprevent thevesselfrom hitting thepier simply because he reliedon the competenceand plan ofGavino. Whilethe"full-astern''maneuver momentarily arrested the momentumofthe vessel, itwas,by then, too late. All along, Kavankov stood supinely beside Gavino, doing nothing but relay the commands ofGavino. Inscrutably, then, Kavankov was negligent. xxx xxx xxx The stark incompetenceofKavankov is competent evidenceto provetheunseaworthiness ofthe vessel. It has been held that the incompetence ofthe navigator, the master ofthe vessel or its crew makes the vessel unseaworthy (Tug OceanPrinceversus United States ofAmerica, 584 F. 2nd,page1151). Hence, the Appellant FESC is likewise liable for the damage sustained by the Appellee. 77
- 41. We find strongand well-reasoned supportin time-tested American maritime jurisprudence, on which much of our laws andjurisprudence onthematterarebased, for the conclusions ofthe CourtofAppeals adjudging both Capt. Gavino and Capt. Kabankov negligent. As early as 1869, theU.S. Supreme Court declared, through Mr. Justice Swayne, in The Steamship China vs. Walsh,78 that itis thedutyofthe masterto interfere incases ofthepilot's intoxicationor manifest incapacity, in cases of danger which hedoes not foresee, andin allcases ofgreatnecessity.The master has thesamepower to displace the pilot that he has to remove any subordinate officer ofthe vessel, at his discretion. In 1895, the U.S. Supreme Court, this time through Mr. Justice Brown, emphatically ruled that: Nor are rye satisfied withtheconduct ofthemaster inleaving thepilotin sole charge ofthe vessel. While the pilot doubtless supersedes the masterfor thetime being in the command and navigation ofthe ship, and his orders mustbe obeyedin allmatters connected with her navigation, themaster is not wholly absolved from his duties while thepilot is onboard, and may advise withhim, and even displace him in case he is intoxicated or manifestly incompetent. Heis stillincommandofthe vessel, exceptsofar as her navigation is concerned, and bound to see that there is a sufficient watch on deck, and that the men are attentive to their duties. . . . (N)orwithstanding thepilothas charge, it is the duty ofthe master toprevent accident,and not to abandon the vesselentirely tothepilot; but that there arecertain duties hehas todischarge(notwithstanding there is a pilot on board) for the benefitoftheowners. . . . thatin well conducted ships the master does not regard the presence of a duly licensedpilotin compulsory pilot waters as freeing him from every, obligation to attend to the safety of thevessel; but that, while the master sees that his officers and crew duly attend to the pilot's orders, he himself is bound to keep a vigilant eye on the navigation ofthe vessel, and, when exceptional circumstances exist, notonly to urge upon the pilot touseevery precaution,but toinsistupon suchbeing taken. 79 (Italics for emphasis.) In Jure vs. United FruitCo.,80 which, likethepresent petitions, involved compulsory pilotage, with a similar scenario where at andprior tothetime ofinjury, the vesselwas inthecharge ofa pilot with the master on the bridge of the vessel beside said pilot, the court therein ruled: The authority of themaster ofa vesselis notin completeabeyancewhile a pilot, who is required by law to be accepted, is in discharge ofhis functions. . . . It is the duty ofthe master to interfere in ca ses ofthe pilot's intoxicationor manifest incapacity, in cases ofdanger which he does not foresee, and in all cases ofgreat necessity. Themaster has thesame power to displacethepilotthat hehas to remove any subordinateofficer of the vessel. Hemay exerciseit, or not, according to his discretion. Therewas evidence to support findings that piaintiff's injury was due to the negligent operation ofthe Atenas, and that the master ofthat vessel was negligentin failing totakeaction toavoidendangering a vesselsituatedas the City ofCanton was and personsor property thereon. A phaseof the evidencefurnished support for theinferences . . . thathe negligently failedto suggestto the pilot the dangerwhich was disclosed, and means ofavoiding suchdanger; and thatthemaster's negligence in failing to give timelt admonitionto the pilot proximately contributed to the injury complained of. We are ofopinion that the evidencementionedtended toprove conductofthepilot, known tothemaster, giving rise to a case of danger or greatnecessity,calling for theinterventionofthe master. Amasterofa vessel is not without fault in acquiescing in canduct of a pilot which involves apparent andavoidabledanger,whether such danger is to the vesselupon whichthepilotis, or toanothervessel, orpersons or property thereonor on shore.(Emphasis ours.) Still in anothercase involving a nearly identicalsetting,thecaptain ofa vessel alongside the compulsory pilot was deemed to benegligent, since, in the words ofthe court, "he was in a position to exercise his superior authority if he haddeemedthespeed excessive ontheoccasionin question. I think it was clearly negligent of him not to have recognizedthedanger to any craftmooredatGravellDock and thathe should havedirected the pilot to reduce his speed as requiredby thelocal governmental regulations.His failureamounted to negligence and renders therespondent liable."81 (Emphasis supplied.) Thougha compulsory pilotmight beregarded as an independent contractor, he is at all times subject to the ultimate control ofthe ship's master. 82 In sum, where a compulsory pilotis in charge ofa ship,themaster being requiredto permithimto navigateit, if the masterobserves that the pilot is incompetent or physically incapable, then it is the dury ofthe master to refuse to permit thepilot toact. But ifno such reasons are present, then the masteris justified in relying upon the pilot,butnot blindly. Underthecircumstances ofthis case, ifa situationarose where the master, exercising that reasonablevigilancewhich the masterofa shipshould exercise,observed, or should have observed, that the pilot was sonavigating thevessel thatshe was going, or was likely togo, into danger, and there was in the exerciseofreasonablecareand vigilanceanopportunityfor themasterto intervenesoas tosavethe ship from danger, themaster shouldhave acted accordingly. 83 Themaster ofa vessel must exercise a degreeofvigilance commensurate with the circumstances. 84 Inasmuch as the matter of negligence is a question of fact, 85 we defer to the findings ofthe trial court, especially as this is affirmed by the CourtofAppeals. 86But evenbeyondthat, ourown evaluation is that Capt. Kabankov's shared liability is due mainly to thefactthat hefailedto act whentheperilous situationshould have spurred him intoquick and decisive action as masterofthe ship. Inthefaceofimminent oractualdanger, hedid not have to wait for the happenstance to occur before countermanding or overruling the pilot. By his own admission,Capt.Kabankov concurred withCapt. Gavino's decisions, and this is precisely the reason why he decidednot tocountermand any ofthe latter's orders. Inasmuch as both lower courts found Capt. Gavino negligent, by expressing full agreement therewith Capt. Kabankov was just as negligent as Capt. Gavino. In general, a pilot is personally liable for damages caused by his ownnegligenceor default to the owners of the vessel, and tothird parties for damages sustainedin a collision. Such negligence ofthepilotin theperformance ofduty constitutes a maritimetort. 87At common law,a shipowner is notliablefor injuries inflicted exclusively by the negligence of a pilot accepted by a vessel compulsorily. 88 The exemption from liability for such negligence shall apply ifthepilot is actually in chargeand solely in fault. Since, a pilotis responsible only for his own personal negligence, hecannotbe held accountable for damages proximately caused by the default of others, 89 or,iftherebe anything which concurred with the fault ofthe pilot in producing the accident, the vessel master and owners are liable. Since the colliding vessel is prima facieresponsible, theburden ofproofis upontheparty claiming benefitofthe exemption fromliability. Itmust beshown affirmatively that thepilot was at fault, and that there was no fault on the part ofthe officers or crew, which might have been conducive to the damage. The fact that the law compelledthemaster to takethepilot does notexoneratethevessel fromliability. The parties who suffer are entitled tohave their remedy against thevessel that occasioned the damage, and are not under necessity to look to the pilot from whom redress is not always had for compensation. The owners of the vessel are responsibleto the injured party for theacts ofthepilot, and they must beleft torecover theamount as well as they can againsthim. It cannotbe maintainedthat the circumstance ofhaving a pilot on board, and acting in conformity tohis directions operateas a dischargeofresponsibility ofthe owners. 90 Except insofar as their liabilityis limitedor exempted by statute, the vessel or her owner are liable for all damages caused by the negligence orother wrongs oftheowners or thoseinchargeofthevessel. Where the pilot ofa vessel is not a compulsory one in thesensethattheowneror master ofthevessel arebound to accept him, but is employed voluntarily, the owners ofthe vessel are, all the more, liable for his negligent act. 91 In the United States, the owners ofa vessel arenotpersonally liablefor thenegligentacts ofa compulsory pilot, but by admiraltylaw, the fault or negligence ofa compulsory pilot is imputable to thevessel and it may be held liabletherefor inrem. Where, however, by theprovisions ofthestatute the pilot is compulsory only inthesense that his fee mustbepaid,and is notin compulsory charge ofthe vessel, there is no exemption from liability. Even though thepilotis compulsory,ifhis negligencewas not thesolecause ofthe injury, but the negligence of the masteror crew contributedthereto, theowners areliable. 92 But the liability ofthe ship in rem does not releasethepilotfrom theconsequences ofhis own negligence. 93 Therationale for this ruleis that the masteris not entirelyabsolved ofresponsibility with respect to navigation when a compulsory pilot is in charge. 94
- 42. By way ofvalidationand inlight oftheaforecited guidepostrulings inAmerican maritimecases, wedeclarethat our rulings during the early years ofthis century in City ofManila vs. Gambe, 95 China Navigation Co., Ltd. vs. Vidal, 96 andYap Tica & Co.vs. Anderson,et al.97 have withstoodtheproverbial test oftime and remain good and relevant case law to this day. City ofManila stands for the doctrine that the pilot who was in command and completecontrolofa vessel, and not the owners, mustbeheld responsiblefor anaccident which was solelytheresult ofthe mistake ofthe pilot in not giving proper orders,and whichdidnot result fromthefailure ofthe owners to equip the vessel with the most modern andimproved machinery.In China Navigation Co., thepilotdeviated from the ordinary and safe course, withoutheeding thewarnings oftheship captain. Itwas this careless deviation thatcaused thevessel to collidewith a pinnacle rock which, thoughuncharted, was known to pilots and localnavigators. Obviously, the captain was blameless. Itwas thenegligenceofthe pilot alonewhichwas the proximate cause ofthe collision. The Court could not but then rule that — The pilot in the caseatbar having deviatedfrom the usualand ordinary coursefollowed by navigators in passing through the strait inquestion,without a substantialreason, was guiltyofnegligence,and thatnegligencehaving been the proximate causeofthedamages, heis liablefor suchdamages as usually and naturally flow therefrom. . . . . . . (T)he defendantshould haveknown oftheexistenceand locationofthe rock upon which the vessel struck while under his control and management. . . . . Consistent withthepronouncements in thesetwoearlier cases, buton a slightlydifferent tack, theCourt in Yap Tico & Co. exoneratedthepilotfrom liabilityfor theaccidentwheretheorders ofthepilotin the handling ofthe ship weredisregardedby theofficers andcrew oftheship.According totheCourt, a pilotis ". . . responsible for a full knowledgeof thechannel and the navigationonly so far as hecan accomplish it through the officers and crew ofthe ship,and I don't see chat hecan beheldresponsible for damage when the evidence shows, as it does in this case, that the officers andcrew oftheshipfailed toobey his orders."Nonetheless, it is possiblefor a compulsory pilot and themasterofthevesselto beconcurrently negligent and thus share the blame for the resulting damageas joint tortfeasors, 98butonly under thecircumstances obtaining in anddemonstratedby the instant petitions. It may be said, as a generalrule,thatnegligence in orderto render a person liableneed not bethesolecause of an injury. Itis sufficient thathis negligence, concurring with oneor moreefficientcauses other thanpiaintiff's, is the proximatecause of the injury. Accordingly,whereseveral causes combine to produce injuries, a person is not relievedfrom liability because heis responsiblefor only oneofthem, itbeing sufficientthat the negligence ofthe personcharged withinjuryis an efficient causewithoutwhich the injury would not have resulted to as great an extent, and that suchcause is not attributable to the person injured. It is no defense to one ofthe concurrent tortfeasors thattheinjurywould not haveresultedfrom his negligence alone, withoutthenegligence or wrongful acts of the other concurrentrortfeasor. 99Whereseveralcauses producing an injury areconcurrent and eachis anefficient cause withoutwhichtheinjurywould not havehappened, theinjury may be attributed to all or anyof the causes and recovery may behad againstany or allofthe responsiblepersons although under the circumstances of thecase, it mayappearthat one ofthemwas more culpable, and that the duty owed by them to the injured personwas not the same. No actor's negligence ceases to be a proximate cause merely because it does notexceed thenegligenceofother actors. Each wrongdoer is responsible for the entire result and is liable as though his acts were the sole cause ofthe injury. 100 There is no contributionbetween jointtortfeasors whoseliability is solidarysinceboth ofthemareliable for the total damage. Wheretheconcurrentor successivenegligentacts or omissions oftwoor more persons, although acting independently,are incombinationthedirect and proximate cause ofa singleinjury to a third person, it is impossibleto determineinwhat proportioneachcontributed totheinjuryandeither ofthemis responsible for the whole injury.Wheretheirconcurring negligenceresultedin injury or damage toa thirdparty, they become joint tortfeasors and aresolidarily liablefor theresulting damage under Article 2194 101 ofthe Civil Code. 102 As for the amount ofdamages awarded by the trialcourt,we find thesame tobereasonable. The testimony of Mr. PascualBarral,witness for PPA, on cross and redirect examination, appears to be grounded on practical considerations: Q So that the cost ofthetwoadditionalpiles as well as the(two) squaremeters is already included in this P1,300,999.77. A Yes sir, everything. It is (the) final cost already. Q For the eight piles. A Including the reduced areas and other reductions. Q (A)nd the two square meters. A Yes sir. Q In other words,this P1,300,999.77does not representonly for thesix piles that was damaged as well as the corresponding two piles. A The area was corresponding, was increasedby almost twoin the actualpayment. That was why the contract was decreased, the real amount was P1,124,627.40 and the final one is P1,300,999.77. Q Yes, but that P1,300,999.77 included the additional two new posts. A It was increased. Q Why was it increased? A The original was 48 and the actual was 46. Q Now, the damage was somewhere in 1980. It took place in 1980 and you started the repair and reconstruction in 1982, that took almost two years? A Yes sir. Q May it not happen thatby natural factors, the existing damagein 1980was aggravated for the2 year period that the damage portion was not repaired? A I don't think so because that area was at once marked and no vehicles can park, it was closed. Q Even ifor even natural elements cannot affect the damage? A Cannot, sir. xxx xxx xxx Q You said in the cross-examinationthat there weresix piles damaged by the accident, but that in the reconstruction ofthepier, PPAdroveand constructed 8 piles. Willyou explainto us why there was changein the number ofpiles from the original number?
- 43. A In pierswherethepiles arewithdrawnor pulledout,you cannotre-drive or drive piles at the same point. You have toredesign the driving ofthepiles. Wecannot drivethepiles at thesamepointwherethe piles are brokenor damaged or pulled out. Wehave to redesign, and you will note that in the reconstruction, we redesigned such that it necessitated 8 plies. Q Why not, why could you not drive the same number ofpiles and on the same spot? A The originallocationwas already disturbed. We cannot get required bearing capacity. The area is already disturbed. Q Nonetheless, if youdrove the original numberofpiles, six, on differentplaces, would not that have sustained the same load? A It will not suffice, sir. 103 We quote the findings of the lower court with approval. With regards to the amountofdamages that is to beawarded to plaintiff, the Court finds that the amount of P1,053,300.00is justified.Firstly, thedoctrineofres ipsa loquitur best expoundeduponin the landmark case of Republicvs.LuzonStevedoring Corp. (21SCRA 279) establishes thepresumptionthat in the ordinary course of events the ramming of the dock would not have occurred ifproper care was used. Secondly, thevarious estimates and plans justify the cost ofthe port construction price. The new structure constructed not only replaced thedamaged one but was builtofstronger materials toforestallthepossibility of any similar accidents in the future. The Court inevitablyfinds thattheplaintiffis entitled to an award ofP1,053,300.00 which represents actual damages caused bythedamageto Berth4 ofthe Manila International Port. Co-defendants FarEastern Shipping, Capt. Senen Gavino and Manila Pilots Association are solidariiy liable to pay this amount to plaintiff. 104 The Solicitor Generalrightly commented that the adjudicatedamount ofdamages represents the proportional cost ofrepair and rehabilitation ofthe damaged section ofthe pier. 105 Except insofar as their liability is limited or exempted by statute, the vessel or her owners are liable for al l damages caused bythenegligenceor otherwrongs ofthe owners or those inchargeofthevessel. As a general rule, the owners or those in possession and control ofa vessel and the vessel are liable for all natural and proximate damages caused topersons or property by reason ofher negligent management or navigation. 106 FESC's imputation of PPA's failure toprovide a safeandreliable berthing place is obtuse, not only because it appears to be a mere afterthought, being tardily raised only in this petition, but also because there is no allegation orevidenceonrecordaboutBerth No.4 being unsafeand unreliable, although perhaps it is a modest pier by international standards.Therewas, therefore,no error onthepart ofthe CourtofAppeals in dismissing FESC's counterclaim. II. G.R. No. 130150 This consolidated casetreats on whether the CourtofAppeals erredin holding MPAjointlyandsolidarily liable with its memberpilot. Capt. Gavino, in theabsenceofemployer-employeerelationshipandin applying Customs Administrative Order No. 15-65, as basis for the adjudged solidary liability ofMPAand Capt. Gavino. The pertinent provisions in Chapter I ofCustoms Administrative Order No. 15-65 are: PAR. XXVII. — In allpilotage districts wherepilotage is compulsory, thereshall becreated andmaintained by the pilots or pilots'association, inthemannerhereinafter prescribed, a reserve fund equal to P1,000.00 for each pilot thereof for the purpose of paying claims for damages to vessels or property caused through acts or omissions ofits members whilerendered incompulsory pilotageservice. In Manila, the reserve fund shall be P2,000.00 for each pilot. PAR. XXVIII. — Apilots'association shall not beliableundertheseregulations for damageto any vessel, or other property, resulting from acts ofa member ofan association intheactualperformance ofhis duty for a greater amount than seventy-five per centum (75%) ofits prescribed reserve fund; it being understood that ifthe associationis held liable for an amountgreaterthan the amountabove-stated,the excess shall be paid by the personal funds ofthe member concerned. PAR. XXXI. — Ifa payment is made fromthereserve fundofan association onaccountofdamages caused by a member thereof,andhe shall havebeenfoundatfault, such member shall reimburse the association in the amount so paid as soon as practicable; and for this purpose, not less than twenty-five per centum ofhis dividends shall be retained each month until the full amount has been returned to the reserve fund. PAR. XXXIV. — Nothing inthese regulations shallrelieveany pilots'associationor members thereof, individually or collectively, fromcivilresponsibility for damages to life orproperty resulting from the acts ofmembers in the performance oftheir duties. Correlatively, the relevant provisions ofPPAAdministrative Order No. 03-85, which timery amended this applicable maritime regulation, state: Art. IV Sec. 17. Pilots' Association — The Pilots in a Pilotage District shall organize themselves into a Pilots' Associationor firm,themembers ofwhichshallpromulgatetheir own By-Laws not inconflict withtherules and regulations promulgatedby theAuthority.TheseBy-Laws shallbe submittednot later than one (1) month after the organization ofthePilots'Association for approvalby the General Manager ofthe Authority. Subsequent amendments thereto shall likewise be submitted for approval. Sec. 25. Indemnity Insurance and Reserve Fund — a) Each Pilots' Association shall collectively insure its membership at the rate ofP50,000.00 each member to cover inwhole orin partany liability arising fromanyaccidentresulting indamageto vessel(s), port facilities andother properties and/orinjury to persons or death which any member may have caused in the course ofhis performance ofpilotage duties. . . . . b) The Pilotage Associationshall likewise setup and maintaina reserve fundwhichshall answer for any part ofthe liability referredto intheimmediately preceding paragraphwhich is left unsatisfiedby theinsurance proceeds, in the following manner: 1) Each pilot in the Association shall contribute from his own account an amount of P4,000.00 (P6,000.00 in theManila Pilotage District) to the reserve fund. This fund shall not be considered part ofthe capital ofthe Association nor charged as an expense thereof. 2) Seventy-fivepercent (75%) ofthereservefund shall beset aside for usein the payment ofdamages referred to aboveincurredin the actual performance ofpilots'duties and the excess shall be paid from the personal funds ofthe member concerned. xxx xxx xxx
- 44. 5) If paymentis made from the reserve fund ofan Association on account ofdamage caused by a member thereof who is foundatfault,he shall reimburse the Association in the amount so paid as soon as practicable; and for this purpose, not less than twenty-five percentum (25 %) ofhis dividend shall be retained each month untilthefullamount has been returned to thereservefund.Thereafter, the pilot involved shall be entitled to his full dividend. 6) When the reimbursement has beencompleted as prescribed in the preceding paragraph, the ten percentum (10%) and the interest withheld fromtheshares ofthe other pilots in accordance withparagraph (4) hereofshall be returned to them. c) Liabilityof Pilots'Association— Nothing in theseregulations shall relieve any Pilots'Association or members thereof, individually orcollectively, fromany civil, administrative and/or criminal responsibility for damages tolifeor property resulting fromtheindividual acts ofits members as wellas thoseofthe Association's employees and crew in the performance oftheir duties. The Court of Appeals, whileaffirming thetrial court's finding ofsolidary liability on the part ofFESC, MPAand Capt. Gavino, correctly based MPA's liability noton the concept ofemployer-employee relationship between Capt. Gavino and itself, but on the provisions ofCustoms Administrative Order No. 15-65: The Appellant MPAavers that, contrary to the findings and disquisitions ofthe Court a quo, the Appellant Gavino was not and has never beenanemployeeoftheMPAbut was only a member thereof. The Courta quo, it is noteworthy, did notstatethefactualbasis on which itanchored its finding thatGavino was the employee of MPA. We are in accordwith MPA's pose. Caselaw teaches Us that,for anemployer-employee relationship to exist, the confluence of the following elements must be established: (1) selection and engagement of employees; (2) the payment ofwages; (3) the power ofdismissal; (4) the employer's power to control the employees with respectto themeans and methodby which thework is tobe performed (Ruga versus NLRC, 181 SCRA 266). xxx xxx xxx The liability of MPAfor damages is not anchoredon Article 2180 oftheNewCivilCodeas erroneously foundand declared bytheCourt a quo but under the provisions ofCustoms Administrative Order No. 15-65, supra, in tandem with the by-laws ofthe MPA. 107 There being noemployer-employeerelationship, clearly Article2180108oftheCivil Codeis inapplicable since there is no vicarious liability ofan employer to speak of. It is so stated in American law, as follows: The well establishedrule is that pilotassociations are immuneto vicarious liabilityfor thetortoftheir members. They are not the employeroftheir members andexerciseno controlover themoncethey take the helm ofthe vessel. They arealso not partnerships becausethemembers do notfunction as agents for the association or for each other.Pilots'associations are alsonot liable for negligently assuring the competence oftheir members because as professional associations they made noguaranteeoftheprofessional conduct oftheir members to the general public. 109 Where under localstatutes and regulations,pilotassociations lack the necessary legal incidents ofresponsibility, they have been heldnotliablefor damages causedby thedefault ofa member pilot. 110 Whether or not the members of a pilots'associationareinlegaleffect a copartnershipdepends wholly on the powers and duties of the members in relation tooneanotherunder the provisions ofthe governing statutes and regulations. The relation of a pilot tohis association is not that ofa servant to the master, but ofan associate assisting and participating ina common purpose.Ultimately, therights andliabilities between a pilots'association and an individualmember depend largely upon the constitution, articles or by-laws ofthe association, subject to appropriate government regulations. 111 No reliance can be placed by MPA on the cited American rulings as to immunity from liability ofa pilots' associationin ljght ofexisting positiveregulation under Philippinelaw. TheCourt ofAppeals properlyapplied the clear and unequivocal provisions ofCustoms Administrative Order No. 15-65. In doing so, it was just being consistent withits finding ofthe non-existence ofemployer-employee relationship between MPA and Capt. Gavino which precludes the application ofArticle 2180 ofthe Civil Code. True. Customs AdministrativeOrder No. 15-65does not categorically characterize or label MPA's liability as solidary innature.Nevertheless,a carefulreading and proper analysis ofthe correlated provisions lead to the conclusionthatMPAis solidarily liable for the negligence ofits member pilots, withoutprejudice tosubsequent reimbursement from the pilot at fault. Art. 1207 oftheCivil Codeprovides thatthereis solidary liabilityonlywhen theobligation expresslyso states, or when the law orthenature oftheobligation requires solidarity.Plainly, Customs Administrative Order No. 15- 65, which as an implementing rulehas theforceand effectoflaw, can validly provide for solidary liability.We note the Solicitor General's comment hereon, to wit: . . . Customs Administrative OrderNo. 15-65may be a mere rule and regulation issued by an administrative agency pursuant toa delegated authority to fix "the details"in theexecutionor enforcement ofa policy set out in the law itself. Nonetheless, said administrative order, which adds totheproceduralor enforcing provisions of substantivelaw,is legallybinding and receives the samestatutory forceupongoing into effect.In that sense, it has equal, not lower, statutory force and effect as a regular statute passed by the legislature. 112 MPA's prayer for modificationoftheappellate court's decision under review by exculpating petitioner MPA "from liability beyondseventy-fivepercent(75 %) ofReserveFund"is unnecessary because the liability ofMPA under Par.XXVIII ofCustoms AdministrativeOrder No.15-65 is infactlimited to seventy-five percent (75 %) of its prescribed reservefund, any amount ofliability beyond thatbeing for the personal account oftheerring pilot and subjectto reimbursement in case ofa finding offault by the member concerned. This is clarified by the Solicitor General: Moreover, contrary to petitioner's pretensions, theprovisions ofCustoms Administrative Order No. 15-65do not limit theliability ofpetitioner as a pilots'association toan absurdly smallamount ofseventy-fiveper centum (75 %) of the memberpilots'contribution ofP2,000.00 to the reserve fund. The law speaks ofthe entire reserve fund required tobe maintained bythe pilots'association to answer (for) whatever liability arising from the tortious act ofits members. And eveniftheassociationis held liable for an amount greater than the reserve fund, the associationmaynot resisttheliability by claiming to beliableonly up to seventy-five per centum (75 %) of the reservefundbecausein suchinstanceithas the rightto bereimbursed by theoffending member pilot for the excess. WHEREFORE, in view of all oftheforegoing, the consolidated petitions for revieware DENIED and the assailed decision of the Court ofAppeals is AFFIRMED in toto. Counsel for FESC, the law firm ofDel Rosario and Del Rosario,specifically its associate,Atty. Herbert A. Tria, is REPRIMANDED and WARNED that a repetition ofthe same or similar acts ofheedless disregard ofits undertakings under theRules shall bedealt withmoreseverely. The originalmembers ofthe legal team ofthe Office ofthe Solicitor General assigned to this case, namely, Assistant Solicitor GeneralRomanG. Del Rosario and Solicitor Luis F. Simon, are ADMONISHED and WARNED that a repetition ofthesame or similar acts ofunduly delaying proceedings due to delayed filing ofrequired pleadings shall also be dealt with more stringently. The Solicitor Genral is DIRECTED to look into the circumstances ofthis caseand toadoptprovident measures to avoid a repetition ofthis incident and which would ensurepromptcompliancewith orders ofthis Court regarding the timely filing ofrequisite pleadings, in the interest ofjust, speedy and orderly administration ofjustice. Let copies ofthis decision be spread upon the personal records ofthe lawyers named herein in the Office ofthe Bar Confidant.
- 45. 20. PIMENTEL V.LLORENTE This is a complaint for disbarment against respondents Antonio M. Llorente and Ligaya P. Salayon for gross misconduct, serious breach oftrust, andviolation ofthe lawyer's oath in connectionwith thedischarge oftheir duties as members of thePasig City BoardofCanvassers intheMay 8, 1995 elections. Salayon, then election officer of the Commission onElections (COMELEC), was designatedchairmanofsaidBoard,whileLlorente, who was thenCityProsecutor ofPasig City, servedas its ex oficio vice-chairman as provided by law.1 Complainant, now a senator, was also a candidate for the Senate in that election. Complainantalleges that, in violationofR.A. No. 6646, §27(b),2respondents tamperedwith the votes received by him, with the result that, as shown in the Statements ofVotes (SoVs) and Certificate ofCanvass (CoC) pertaining to 1,263 precincts of Pasig City, (1) senatorial candidates Juan Ponce Enrile, Anna Dominique Coseteng, Gregorio Honasan, Marcelo Fernan,RamonMitra,and RodolfoBiazon werecredited withvotes which were above the number ofvotes they actually received while, on the other hand, petitioner's votes were reduced; (2) in101precincts,Enrile's votes were in excess ofthe total number ofvoters who actually voted therein;and(3) thevotes from 22precincts weretwicerecorded in 18 SoVs. Complainant maintains that, by signing theSoVs andCoC despiterespondents'knowledgethatsomeoftheentries therein werefalse, the latter committed a serious breach ofpublic trust and oftheir lawyers'oath. Respondents denied the allegations againstthem.They alleged that the preparation ofthe SoVs was made by the 12 canvassing committees which theBoardhad constituted to assist in thecanvassing. They claimedthat the errors pointed out by complainant could be attributed to honest mistake, oversight, and/or fatigue. In his ConsolidatedReply,complainant counters that respondents should be held responsible for the illegal padding of thevotes considering the natureand extent oftheirregularities andthe fact that the canvassing of the election returns was done under their control and supervision. On December 4,1998, theIntegrated Bar ofthePhilippines, towhichthis matter had been referredpursuant to Rule 139-B, §13, inrelationto §20 oftheRules ofCourt,recommendedthedismissal ofthecomplaint for lack of merit.3 Petitioner filed a motion for reconsideration on March 11, 1999, but his motion was denied in a resolutionof theIBP Board ofGovernors dated April 22, 1999. On June 4, 1999, hefiled this petitionpursuant to Rule 139-B, §12(c). It appears that complainantlikewisefiled criminalcharges againstrespondents before the COMELEC (E.O. Case No. 96-1132) for violation of R.A. No. 6646, §27(b). In its resolution dated January 8, 1998, the COMELEC dismissedcomplainant's charges for insufficiency ofevidence. However, on a petition for certiorari filed by complainant,4this Courtset aside the resolution and directedtheCOMELEC to file appropriatecriminal charges against respondents. Reconsideration was denied on August 15, 2000. Considering the foregoing facts, we hold that respondents are guilty ofmisconduct. First. RespondentLlorente seeks the dismissalofthe present petition on the ground that it was filed late. He contends thata motion for reconsiderationis a prohibited pleading under Rule 139-B, §12(c)5 and, therefore, the filing of such motion before the IBP Board ofGovernors did not toll the running ofthe period ofappeal. Respondentfurthercontends that, assuming suchmotion can befiled, petitioner nevertheless failedto indicate the date of his receiptof the April22,1999resolution oftheIBPdenying his motion for reconsideration so that it cannotbe ascertained whether his petition was filed within the 15-day period under Rule 139-B, §12(c). The contention has no merit. Thequestion ofwhether a motionfor reconsiderationis a prohibited pleading or not under Rule 139-B, §12(c) has been settled in Halimao v. Villanueva,6 in which this Court held: Although Rule 139-B, §12(C) makes no mention ofa motion for reconsideration, nothing in its text or in its history suggests that such motion is prohibited. Itmay thereforebefiled within 15 days from notice to a party. Indeed, the filing of such motion should be encouraged before resort is made to this Court as a matter of exhaustion ofadministrativeremedies,to afford theagency rendering thejudgment an opportunity to correct any error itmayhave committed through a misapprehension offacts or misappreciation ofthe evidenced.7 On the question whether petitioner's present petition was filedwithinthe 15-day period provided under Rule 139-B, §12(c), althoughtherecords show that it was filed on June 4, 1999, respondent has not shown whe n petitioner received a copy of the resolution of the IBP Board of Governors denying his motion for reconsideration. It wouldappear, however, that thepetition was filedon timebecausea copy oftheresolution personally servedon the Office ofthe Bar Confidant ofthis Court was received by it on May 18, 1999. Since copies ofIBPresolutions are sent to the parties by mail, it is possible that the copy sent to petitioner was received by him laterthan May 18, 1999. Hence,it may beassumed thathis present petitionwas filed within 15 days from his receipt oftheIBPresolution. Inanyevent, theburden was on respondent, as the moving party, to show that the petition in this case was filed beyond the 15-day period for filing it. Even assuming thatpetitioner receivedtheIBP resolutionin questionon May 18, 1999, i.e., on the same date a copy ofthe samewas received by theOfficeoftheBarConfidant, thedelay would only betwodays.8 Thedelay may be overlooked, considering themeritofthis case. Disbarment proceedings areundertaken solely for public welfare.The solequestionfor determinationis whethera memberofthe baris fit to beallowed the privilegesas such or not. Thecomplainant or the person who called the attention ofthe Court to the attorney's alleged misconductis in nosensea party, and generally has no interest intheoutcomeexcept as all good citizens may have in the proper administration of justice.9 For this reason, laws dealing with double jeopardy10 or prescription11or with procedurelike verification ofpleadings12 andprejudicialquestions13 havenoapplication to disbarment proceedings. Even in ordinary civil actions, the periodfor perfecting appeals is relaxed in the interest ofjustice and equity where theappealed case is clearlymeritorious.Thus, wehave given due course to appeals even though filed six,14 four,15 and three16 days late. In this case, the petition is clearly meritorious. Second. The IBP recommends the dismissal of petitioner's complaint on the basis of the following: (1) respondents had no involvementin the tabulation ofthe election returns, because when the Statements of Votes (SoVs) were given to them, such had already been accomplished and only needed their respective signatures; (2) the canvassing was done inthepresenceofwatchers, representatives ofthepoliticalparties, the media, andthegeneralpublic so thatrespondents wouldnot haveriskedthecommissionofany irregularity; and (3) the acts dealt with inR.A. No. 6646,§27(b) aremala in seand not mala prohibita, and petitioner failed to establish criminal intent on the part ofrespondents.17 The recommendation is unacceptable. In disciplinary proceedings against members ofthe bar, only clear preponderance ofevidenceis required to establish liability.18 As long as theevidence presentedby complainant or that takenjudicial noticeofby theCourt19 is more convincing and worthyofbeliefthan thatwhichis offered in opposition thereto,20 the imposition ofdisciplinary sanction is justified.. In this case, respondents do notdisputethefact thatmassiveirregularities attended the canvassing ofthe Pasig City election returns. Theonly explanation they could offer for suchirregularities is thatthesame could be due to honest mistake, humanerror, and/or fatigue onthepart ofthe members ofthe canvassing committees who prepared the SoVs. This is thesameallegation madein Pimentel v. Commission on Elections.21 In rejecting this allegation and ordering respondents prosecuted for violation ofR.A. No. 6646, §27(b), this Court said: There is a limit,we believe, to what can beconstrued as an honest mistake or oversight due to fatigue, in the performanceofofficialduty. Thesheer magnitudeofsheerror, notonly in the total number ofvotes garnered by the aforementionedcandidates as reflected in theCoC and theSoVs,which did not tally withthat reflected in the election returns, but also in the total number ofvotes credited for senatorial candidate Enrile which
- 46. exceeded thetotalnumber ofvoterswhoactually voted inthose precincts during the May 8, 1995 elections, renders thedefenseof honest mistakeor oversight due tofatigue, as incredible and simply unacceptable.22 Indeed, whatis involvedhere is not justa case ofmathematical errorin the tabulation ofvotes per precinct as reflected in theelection returns and thesubsequententry oftheerroneous figures in one or two SoVs23 but a systematicschemeto padthevotes ofcertainsenatorial candidates at the expense ofpetitioner in complete disregard of thetabulation in the election returns. Acursory look at the evidence submitted by petitioner reveals that, inatleast24 SoVs involving 101 precincts,thevotes for candidateEnrile exceeded the number of voters who actually voted inthesaid precincts and,in 18SoVs, returns from 22 precincts were-tabulated twice. In addition,as theCourt noted inPimentel, thetotal number ofvotes creditedto each ofthe seven senatorial candidates in question, as reflected in the CoC, markedly differ from those indicated in the SoVs.24 Despitethefact that thesediscrepancies, especially the doublerecording ofthereturns from 22 precincts and the variationin the tabulation ofvotes as reflected in the SoVs and CoC, were apparent on the face ofthese documents andthat thevariationinvolves substantial number ofvotes, respondents nevertheless certified the SoVs as true and correct. Their acts constitute misconduct. RespondentLlorente's contentionthathe merely certified thegenuineness and due execution ofthe SoVs but not their correctness is belied by the certification which reads: WE HEREBY CERTIFY that the foregoing Statement ofVotes by . . . [p]recinct is true and correct. IN WITNESS WHEREOF, we sign thesepresents at the City/Municipality of___________Province of________this _______ day ofMay, 1995. (Emphasis added) Nor does thefactthatthecanvassing was opento the publicandobserved by numerous individuals precludethe commission of acts for which respondents areliable. Thefactis thatonlythey had access to the SoVs and CoC and thus had the opportunity to compare them and detect the discrepancies therein. Now, a lawyer who holds a government position maynot bedisciplined as a memberofthebar for misconduct in the dischargeof his duties as a government official.25 However, ifthemisconduct alsoconstitutes a violation ofthe Code of ProfessionalResponsibility orthelawyer's oath oris ofsuch character as to affecthis qualification as a lawyeror shows moral delinquency onhis part,such individualmay bedisciplined as a member ofthe bar for such misconduct.26 Here, by certifying as trueand correcttheSoVs in question, respondents committed a breachofRule1.01 ofthe Code whichstipulates thata lawyer shallnot engagein "unlawful, dishonest, immoralor deceitful conduct."By express provisionof Canon 6,this is madeapplicable to lawyers in the government service. In addition, they likewise violated their oath ofoffice as lawyers to "do no falsehood." Nowhere is the-needfor lawyers toobservehonesty both in their private and in their public dealings better expressed in Sabayle v. Tandayag27 in which this Court said: There is a strong publicinterest involved inrequiring lawyers tobehave at alltimes in a manner consistent with truth and honorit is importantthatthecommoncaricaturethatlawyers by and large do not feel compelled to speak the truth and to act honestly, should not become a common reality . . .28 It may be addedthat, as lawyers in the government service, respondents were under greater obligation to observe this basic tenet ofthe profession because a public office is a public trust. Third. Respondents'participationin the irregularities herein reflects on the legal profession, in general, and on lawyers in governmentin particular. Such conductin the performanceoftheir official duties, involving no less than the ascertainment ofthe popular will as expressed through the ballot, would have merited for them suspensionwere itnotfor thefactthatthis is their firstadministrativetransgression and,in the caseofSalayon, after a long publicservice.29Under thecircumstances, a penalty offine in theamountofP10,000.00 for each of the respondents should be sufficient. WHEREFORE, the Court finds respondents Antonio M. Llorente andLigaya P.SalayonGUILTYofmisconduct and imposes on eachofthema FINEintheamount ofP10,000.00with a WARNINGthat commission ofsimilar acts will be dealt with more severely.1âwphi1.nêt SO ORDERED. 21. REPUBLIC V. CA (1998) his is a petitionfor review on certiorariofthe decision 1 ofthe Court ofAppeals in CA-G.R. SP No. 43524. The facts are as follows: On February 10, 1992, private respondent Tetro Enterprises, Inc. fileda complaint,denominated "for recovery of possession and damages,"against petitioner, the Republic ofthe Philippines, represented by the Regional DirectorofRegion IIIofthe Department ofPublic Works and Highways (DPWH). Thecomplaint was assigned to Branch 41 ofthe Regional Trial Court (RTC) ofSan Fernando, Pampanga, presided over by respondent Judge Pedro M. Sunga,Jr. 2TetroEnterprises alleged that it was the owner ofa piece ofland, consisting of12,643 square meters, in San Fernando, Pampanga, registered in its name under Transfer Certificate ofTitle No. 283205-R; that the land hada "probable value"ofP252,569.00; that sometime in 1974, petitioner, without having acquired theproperty throughexpropriation or negotiatedsale,constructed a road thereon; and that, despitedemands by privaterespondent,petitioner refused to return thelandtaken and to pay the rent for the use ofthe samesince1974. Privaterespondent,therefore, prayedthat petitioner be ordered toreturnthe land to it in its "original state"and to closetheroad constructed thereon; and to pay actual damages in the amount ofP100,000.00, rentals for the use ofthe land at P200.00 a month, in the total amount ofP40,800.00, and attorney's fees. Petitioner filed an answer 3 in duetime, alleging that privaterespondent hadno causeofaction because it had not exhaustedadministrativeremedies beforefiling its complaintand thatthecase was actually a suit against the Statewithout its consent. Petitioner allegedthat it constructed part ofthe Olongapo-Gapan Road on the subjectproperty withtheknowledgeand consent ofprivaterespondent which infactentered into negotiations regarding thepriceofthe land; that petitioner was willing to pay the fair market value ofthe property at the time oftaking, plus interest, but, instead ofaccepting its offer,privaterespondent filedthepresent complaint; and that the return ofthe land to private respondent was no longer feasible. Upon agreement ofthe parties, the trialcourt issued an order, datedNovember 25, 1994,4 creating a board of commissioners "to determine theactualvalueoftheproperty subjectofthis casewhich shall be a basis for an amicablesettlement by the parties or the decision tobe rendered by this Court, as thecasemay be."The board was composed ofEller V. Garcia, a real estate broker, representing private respondent Tetro Enterprises, Abraham Sison, ProvincialAssessorofPampanga,representing petitioner,andJuanP. Limpin, Jr., clerk ofcourt ofthe RTC, as chairman. On December 8,1995, theboardrendered a report5 recommending that the price ofthe subject property be fixed between P4,000.00 andP6,000.00persquaremeter as "thejustand reasonableprice"to be paid toprivate respondent. Theboardfound that while the lot was, at the timeoftaking, devotedto sugarcane, it hadbecome highly commercialsince theconstructionofthe Olongapo-Gapan Road resulting in the opening ofresidential subdivisions and the construction ofcommercial buildings. Based on the report ofthe board,theRTC rendered a decision 6 on September 2, 1996 fixing the price ofthe land at P6,000.00 per square meteror thetotal amountofP75,858,000.00 for 12,643 square meters. The RTC noted that a lot withinthevicinityofthe land inquestion hadbeen sold at P10,000.00 per square meter and
- 47. that, as ProvincialAssessor AbrahamSisonsaid, the government stood to benefit from the acquisition ofthe property because it was "ofgreat use." A copy of the decision was receivedby petitioner's counsel, the OfficeoftheSolicitor General, on September 9, 1996. On September 17, 1996, the OSG moved for a reconsideration, contending that the RTC erred in fixing the compensation for the taking oftheland on the basis ofits current marketvalueofP6,000.00 per square meter when the basis shouldbe its priceat thetime oftaking by the governmentin 1974. Noproofofservice ofa copy ofthe motion was, however, attached to the motion as required by Rule 15, §6. 7 In its order8 dated October 3, 1996, the RTC denied petitioner's motion, finding it to be without merit and, in addition, tobe a "mere scrapofpaper"for having been filedin violation ofRule 15, §6 ofthe Rules ofCourt. A copy ofthe order was received by the OSG on December 6, 1996. Meanwhile,on December 3, 1996,privaterespondent Tetro Enterprises movedfor theexecutionofthe decision in its favor. In its order dated December 23, 1996, the RTC granted the motion. On December 13, 1996, petitionerfiled a notice of appeal,but thenoticewas denied bythecourt onJanuary 7, 1997 ontheground that its decision of September 2, 1996 had become final and executory. Petitioner filed a petition for certiorari in the Court ofAppeals to set a side the orders ofOctober 3, 1996, December 23, 1996, and January 7, 1997 ofthe RTC. Its petition was, however, dismissed by the Court of Appeals in its decision of June 9, 1997. In its resolution dated August 6, 1997, 9 the appellate court denied reconsideration of its decision. The Court of Appeals agreedwith theRTC thatbecause ofpetitioner's failure to attach proofofservice ofits motion for reconsideration, themotion was nothing buta merescrapofpaper which did not toll the period of appeal, with theresult that thetrial court's decision became final.Consequently, thetrial court correctly denied petitioner's noticeof appeal. Petitionersubmittedto the CourtofAppeals a registry return card showing that private respondent's counselhadreceived a copy ofits motion for reconsideration onSeptember 24, 1996, but the Court of Appeals considered this to be of"little moment"for the reason that the proofofservice should have been presented to the RTC and not to the appellate court for the first time. Concluding, the Court of Appeals held: [I]n a very realsense, petitioner's present predicament is ofits own making. Consider: counsel for the petitioner did not a) append the registry return receipt and the affidavit of service, if one has been prepared, to petitioner's motion for reconsideration; b) at any timeapprisethelowercourt ofthesending, ifthis bethecase, ofa copy of the motionfor reconsiderationto Atty. Cruz-Ducut; c) appear at thehearing on the date he set for the considerationof themotionfor reconsideration; d) oppose,despite notice, privaterespondent's motion for execution;ande) seek reconsideration oftheorder disapproving petitioner's notice ofappeal, knowing pretty well thata special civil action for certiorari is available onlywhen thereis no other plain,speedy and adequate remedy in the ordinary courseoflaw. Petitionerthus cannotlay blameon respondent judge's doorstep for the way the latter disposed ofthe incidents obtaining in this case. Hence, this petition. Petitioner contends that — THE COURT OF APPEALS COMMITTED GRAVE ERROR WHEN IT RIGIDLY AND STRICTLY APPLIED THE RULES OF PROCEDURE AGAINST HEREIN PETITIONER WHICH, IF NOTCORRECTED, WOULD RESULTIN AMISCARRIAGEOF JUSTICETO THE GREAT AND IRREPARABLEDAMAGETO THE GOVERNMENT. Petitioner argues that ithad substantially complied with the requirement ofnotice to the adverse party as shown by theregistry return card whichit submitted to the Court ofAppeals. This card shows that a copy of petitioner's motion for reconsideration was sent by registered mail to private respondent's counsel, Atty. Zenaida G. Cruz-Ducut, on September 18, 1996. Petitioner furthercontends that ithas a meritorious defense because the value ofthe land taken should be based not on its current market value but on its value at the time oftaking by the government in 1974. Petitioner, therefore,prays thatthedecision ofthe CourtofAppeals be setasideand thecase be remanded to the RTC for determinationofthe amountofjust compensation dueprivaterespondent"in accordance with law and settled jurisprudence." On the other hand, privaterespondentargues that the decision ofthe Court ofAppeals, holding petitioner's motion for reconsiderationto bea merescrap ofpaper because itcontained no proofofservice ontheadverse party, is in accordancewith the rulings ofthis Court. Anent petitioner's contention that the compensation for the taking ofthe property should be based on its value at the time oftaking in 1974 and not on its current market value,privaterespondent argues that the basis ofcompensation is nottheissuein this case. At any rate, it is contendedthat thecases invoked by petitionerdo notapply since this caseis not one for expropriation but one for recovery ofpossessionandfor damages. Moreover, private respondentargues that the government is estopped fromquestioning the trialcourt's valuationbecauseit is based on therecommendation oftheboardof commissioners in which petitioner was represented. The petition is well taken. There is no questionthatpetitioner's motionseeking reconsideration ofthe decision ofthe RTC did not have attachedto itproofthat a copy thereofhad beenserved ontheadverse party as required by Rule 15, §6 ofthe Rules ofCourt. In fact,it appears that, at the timethemotion was filed, no copy ofthesamehadbeenserved on private respondentbecausepetitioner actually sent itto private respondent's counsel, Atty. Zenaida G. Cruz- Ducut, only on September 18, 1996, 10 i.e, the day after the motion had been filed. Nonetheless, considering thequestionraisedin the appealofthegovernment and the amount involved in this case, we think the Court of Appeals should have considered the subsequent se rvice of the motion for reconsiderationto bea substantial compliancewith therequirement in Rule 15, §6.In DeRapisura v. Nicolas, 11 the movantalso failed toattach to his motionfor reconsideration proofofserviceofa copy thereoftotheother party. Nonetheless, this Courtheld the failurenotfatalas theadverseparty hadactuallyreceived a copy ofthe motion andwas in fact present in courtwhen themotion was heard. Itwas held thatthedemands ofsubstantial justice were satisfied by the actual receipt ofsaid motion under those conditions. In People v.Leviste, 12 this Court heldit was graveabuse ofdiscretionfor thetrial courtto deny the motion for postponementoftheprivateprosecutoreven thoughno copy ofthemotion had been servedon the accused, in view ofthe fact that the prosecution was not available on the date ofthe trial. No substantial right ofthe accused was impaired. On theotherhand,it was importantthat thecasebedecidedon the merits rather than dismissedon a technicality. Theaccused should realize that postponements are part and parcel ofour legal system, it was held. In Azajar v. CourtofAppeals, 13thedefendantfiled a motionto dismiss withoutnoticeofhearing to theplaintiff as required by Rule15,§4. As a result,theperiod for filing his answerexpired and he was declared in default. Judgment by default was subsequentlyrendered againsthim. The Intermediate Appellate Court set aside the decision after finding that defendant's reasons for his failure to set his motion for hearing was not "utterly without plausibility."This circumstance, together with thefactthat defendant had meritorious defenses which, iftrue, coulddefeat the plaintiffs claim,in the judgment oftheIAC, justified setting asidethedecisionofthetrial court. On appeal, the Court sustained the ruling ofthe Intermediate Appellate Court. In this case, Atty. Cruz-Ducut actually receiveda copy ofthe motion on September 24, 1996, days before the October 2, 1996hearing. It is contended, however, that Atty. Cruz-Ducut ceased to be private respondent's
- 48. counselon September 18,1996and service ofpetitioner's motion shouldhave been madeonAtty. Restituto M. David, its other counsel. This allegation is not true. The records show that at the time she received a copy of the motion for reconsiderationon September24,1996, Atty.Cruz-Ducut was still privaterespondent's counsel ofrecord. She withdrew as counsel only on September 30, 1996. 14 There was thus effective service ofthe motion for reconsideration on private respondent. Indeed, as muchas possible,cases should bedeterminedon themerits, after full opportunity to all parties for ventilation of their causes and defenses, ratherthan ontechnicality orsomeprocedural imperfections. In that way, the ends of justicewouldbe betterserved.In Republic v. CourtofAppeals,15theSolicitor General filedthe record on appeal sixdays late. This Court suspended therules onperfection ofappeal as its application would result in the loss to the State ofclose to 300 hectares ofprime sugar land which a private individual had apparently succeeded in registering in his name through fraudulent misrepresentation and machination. This is not totoleratecarelessness or negligence on the part ofgovernment lawyers. But one thing is taking disciplinary action against them. Another is protecting vital government interests which should not be jeopardizedthroughtheneglectofthoseappearing for it whenthis canbe donewithout adverse results to the private parties. These considerations lead us toconcludethatthetrial courtshould haveexercisedits discretion in this case infavor of thegovernment. Theamount involved — P75,858,000.00 — plus theprima facie merit of the government's appealthat, in accordance withtherulings 16 ofthis Court, the value ofthe property should be basedon its priceat thetime oftaking oftheproperty in 1974 and not on its current market price, should have giventheRTC pause andwithout necessarily reconsidering its ruling that the measure ofcompensation should bethecurrent marketvalue, shouldhavecausedit togiveduecourseto theappeal. This case presents an aspect of the problem of compensation absent from the decided cases, namely, the presence ofan agreement of the parties to have "the actual value ofthe property"determined by a board, on which the government was represented, to be used by the court in fixing the compensation for the land taken. This considerationmay notnecessarily warranta differentruling but itdoes suggest a necessity: that ofhaving the merits of petitioner's appeal decided by the appellate court. WHEREFORE, the decision oftheCourt ofAppeals is REVERSED and the Regional Trial Court ofSan Fernando, Pampanga (Branch 41) is ORDERED togiveduecourse topetitioner's appealfrom the decision in Civil Case No. 9197. 22. IGOY VS. SORIANO As an officer of thecourt,it is the duty ofa lawyer to uphold thedignityandauthority ofthe court to which he owes fidelity according totheoath hehas taken. Itis his foremostresponsibility "to observe and maintain the respectdueto the courts ofjusticeand judicialofficers."1 Arrogating untooneself, as inthis case, the mantle of a Justice of the Highest Court of the land for thepurposeofextorting moneyfrom a party-litigantis anultimate betrayal of this duty whichcannotand should never be countenanced, because "[i]t is this kind ofgross and flaunting misconducton thepartofthosewho arechargedwith theresponsibilityofadministering the law and rendering justice that so quickly and surely corrodes the respect for the law and the courts without which government cannot continue and that tears apart the very bonds ofour polity."2 ComplainantDoroteo A. Igoy is one ofthepetitioners inG.R.No. 141843, entitled "Heirs ofGavino Igoy,et al. v. Mactan Shangrila Hotel".3 In a letter-complaintdated October 8, 2000,4 written in the Cebuano dialect and addressed totheChief Justice, complainant allegedthat whiletheaforesaid case was still pending before the Court ofAppeals, hetriedto look for a person intheSupreme Court who may assist him in obtaining justice. Sometimein July 1, 1999, a friend introduced complainant to a certain "Justice"ofthe Supreme Court. He narrated tothesaid Justicethehistory oftheir case.In turn, the saidJustice askedfor and receivedfrom him the sum ofP20,000.00.However, thesaidJustice remindedcomplainant thathecould offerno help while the case was pending before the Court ofAppeals. In February 2000, they received an unfavorable decision from the Court of Appeals. Thus, complainant immediately visited thesaid Justiceathis office in theSupremeCourt to informhimofthedecision ofthe Court of Appeals. The Justice offered to prepare the petition for review to be filed with the Supreme Court. Complainantsubsequently met the said Justice at the Max's Restaurant, where the latter turned over the prepared petition for review. In considerationtherefor, the Justice asked for an additional P20,000.00. Since complainant did not have that amount ofmoney with him at that time, he undertook to send the same by courier as soon as hearrives inCebu. Complainant asked for the said Justice's complete name and addre ss, which he readily gave as: Atty. Gilbert Soriano, 22Melon Street, Gatchalian Subdivision, Phase 3-13, Las Piñas City. As promised,complainant sent the amount ofP20,000.00 through the Aboitiz Express on May 2, 2000. The parcel was received by a certain Alvin Soriano, who turned out to be respondent's son, on May 5, 2000. Complainantwas surprisedto learn that on May 31, 2000, this Court denied the Petitionfor Review. Accordingly, they filed a Motion for Reconsideration, which this Court denied with finality on July 31, 2000. Together with his letter, complainant submitted the following documents: l. Photocopy ofthe Petition for Review allegedly prepared by the "Justice;"5 2. Shipper's Copy ofPrepaid Consignment NoteNo. EO993783C datedMay 2, 2000, addressed to one Atty. GilbertSoriano of22Melon St., Gatchalian Subdivision, Phase3-13, Las Piñas City, withtelephonenumbers 826-1018, containing cash in theamountofP20,000.00,6and sent by one Doroteo Igoy ofMactan, Lapu-lapu City, with telephone numbers 495-8-49;7 3. Letter dated May 5, 2000 ofoneAtty. GilbertF. Soriano, addressed toAboitiz Express, authorizing his daughter, Christine Soriano, or his son, Alvin A. Soriano, to receive Parcel No. EO993783C on his behalf;8 4. Note dated May 5, 2000, evidencing receipt by one AlvinSoriano ofthepackageon that dateat 11:30 o'clock in the morning.9 In his comment dated November 6,2000,10 Atty. GilbertSoriano deniedthathe was the"Justice"alluded to. He allegedthat his friend,NicTaneo,introducedcomplainant to him because the latter was seeking help regarding a pending caseinvolving his poor relatives; that complainantrequested him togo overtheirpetition to be filed with the Supreme Court, toensure that the samewould not bedenied ontechnical grounds; he acceded to the request, afterwhich complainanttold him thathewill besending hima tokenofgratitude, but hedid not know that it was money. Respondentfurthernarrated that on May 4,2000,he received a telephonecallfrom Aboitiz Express, informing him that complainanthadsenthima parcel but the messenger was unable to locate his given address, and asking himto executea letterauthorizing anyonein his houseto receive theparcel.He recalled complainant's promiseofa token ofgratitude, sorespondent authorized his childrento accept theparcel. Hewas surprised to find insidetheparcelcash intheamount ofP20,000.00. After several days ofmulling over what to do with the money, respondent asked his friend to contact Atty. Rodulfo Taneo. the counsel for petitioners in G.R. No. 141843. Atty. Taneo told him to hold the money and wait until he arrives in Manila. Respondentdenied giving complainant any assistance other than checking the formal requirements of the petitionfor review. Healso denied thathe entertainedcomplainant inhis office intheFirstDivision ofthis Court which, according to him,barely accommodates the stafftherein with very little elbow room. Assuming that complainantwas thus accommodated inrespondent's office in the First Division, respondent could not have
- 49. uttered the irresponsibleand degrading statements imputed on him by complainant. Further, respondent denied having receivedtheamount ofP20,000.00from complainant, arguing that, as a practicing catholic and active church leader, he can not in conscience deceive anyone and ask for money. Respondentlikewisedenied having demanded for an additional P20,000.00, countering thatcomplainant merely promised him a token gift for the little helpthathe extended, withoutmentionofany amount. In fact, healmost forgot about that promise, andhe remembered itonly when hewas notified by the courier service that hehad a parcel fromcomplainant. Thatwas almost two (2) months after thecase petitionfor review was filed with this Court. In closing,respondent insinuated that ifthis Court should find that he committed a misconduct despite his explanation, he shall offer to retire from the service. On November 16, 2000,complainantwroteanotherletter to the ChiefJustice, again written in the Cebuano dialect.11 Complainantaverredthat respondentwas introduced to him by Engr. William Redoblado as one of the Justices of theSupreme Court. Heonly learned thatrespondent was nota Justicewhen they metattheCebu Mactan International Airporton October 31, 2000.Respondent offeredto return theP40,000.00, but herefused to receivethesame. Instead,he toldrespondent tojust wait for theoutcomeofthecomplaint he filed against him with the Office of the ChiefJustice. In the same letter, complainant provided the following questions and answers, to wit: 1. What is the name ofthe Justice ofthe Supreme Court whom you contacted? Answer: Atty. Gilbert Soriano. 2. Where did you meet/see him? Answer: Inside the premises ofthe Supreme Court. 3. Who was the person who introduced him as Justice? Answer: Eng. WilliamRedobladowas the one who introduced to me that Gilbert Soriano is a Justice. I never knew that Gilbert Soriano is not a Justice. 4. Where did you specifically give to the Justice the first P20,000.00? Answer: At the ground floor ofthe Supreme Court beside the canteen where the parking area is located. 5. Who were with you at the Max's Restaurant when the petition was given to you? & Answer: Engr. WilliamRedoblado, Leonardo Paquibot, Atty. Rodolfo Taneo, Atty. Gilbert Soriano and myself(complainant Igoy). Atty. Taneo returned the petition because it was lacking. Respondentsubmitted his comment12 tothe second letter, wherein he contended that when complainant allegedly gave him the sum ofP20,000.00 on July 16, 1999, his case was still pending before the Court of Appeals; hence, there was then no reason for complainant to approach respondent and give him money. Moreover, itis unnaturalfor a personto givemoney to someone whom he does not know well and whom he met only for thefirst time. Respondentbrands as unbelievabletheversionthat complainanthanded the money to him at theparking area beside theSupremeCourtcanteen, where many oftheCourt's employees and visitors frequently pass.He claimed that it was not Engr. William Redoblado, but Mr. Taneo who introduced him to complainant. Respondentalleged thaton October 30, 2000, he informed Atty. Taneo that he was returning the money he received through Aboitiz Express. He was told ,by Atty. Taneo to meet him in Cebu. On October 31, 2000, respondentarrivedin Cebuandmet Atty.Taneoandcomplainant at an eatery near the airport. Respondent offered to return the P20,000.00 tocomplainant, but the latter refusedto accept it. Complainant stated that he will withdraw his complaint only after the Supreme Court decides their case in their favor. Respondent, however, informedcomplainant thatas a mere employeeofthecourt,he could not dictate the outcome ofthe case. On January8, 2001, Atty. Sorianofiled his letter ofresignation/retirementunder R.A. 1616, without specifying its effectivity date.13 The Office ofAdministrative Services, to which this casewas referredfor evaluation, issued a Memorandum on May 30, 2001, recommending respondent's dismissal fromtheservice effectiveimmediately, with forfeiture of all retirement benefits to which he may be entitled. Respondent's offerto resign was obviously an attempt to evade whatever penalty may be imposed on him. However, the mereexpedient ofresigning fromtheservicewillnot extricatehimfrom the consequences ofhis acts. As this Court pointed out in Rayos-Ombac v. Rayos:14 . . . Disciplinary proceedings involveno private interest and afford no redress for private grievance. They are undertakenand prosecuted solely for the public welfare. They are undertaken for the purpose ofpreserving courts ofjusticefrom the officialministration ofpersons unfit to practice in them. The attorney is called to answer tothecourt for his conduct as an officer ofthe court. The complainant or the person who called the attentionofthe courtto the attorney's alleged misconductis in nosensea party, and has generally no interest in the outcome except as all good citizen's may have in the proper administration ofjustice. Settled is the rulethatin administrativecases ofthis nature, theCourt mayproceed with its investigation and mete the appropriatepenaltyagainst erring officers ofthecourt.15Resignationshould not beusedeither as an escape or as an easy way out to evade administrative liability by court personnel facing administrative sanction.16 In recommending thedismissalofrespondent fromservice, the OfficeofAdministrativeServices (OAS) reasoned that: From the establishedfacts,it is clear thatcomplainant cameto see respondentto plead for help in preparing a Petition for Review. The respondent, on the other hand, saw it as an opportunity to make the complainant believethat hehas the"influenceand connections"inthecourt andwould beeasy for him (respondent) to help the complainant. True, as respondent claimed, hewas not urgedby ulterior motives in preparing the Petition for Review or at least reviewing thesame,but not being his officialdutyto do so, his actuation led complainantto believe that it should be for a fee. It would have been very easy for him to decline the offer ofP20,000.00 even ifit was gratuitously givenifhis realintentionwas merely to help. Heknew for a fact that the petitioners have a counsel who, presumably, knows the appropriate pleadings to be filed with this Court. Sec. 7 (D) ofR.A. 6713 (Code ofEthicalConduct and Standard for Public Officials and Employees) specifically provides: Sec. 7. Prohibited Acts and Transactions xxx xxx xxx
- 50. d. Solicitations oracceptanceofgifts— Public officials and employees shall notsolicit oraccept,directly or indirectly, any gift,gratuity,favor, entertainment,loanor anything ofmonetaryvaluefrom any person in the course of theirofficial duties or inconnection with any operation being regulatedby, or any transactions which may be affected by the functions oftheir office. Respondent, whois himselfa lawyer, should have avoided allthecircumstances in which hemight beaccusedof using his office in the guise of"helping others", for this taints the integrity ofthe Court. The denial of the respondent ofthe receipt ofinitial payment ofP20,000.00 cannot simply overcome the positiveassertions of the complainant. Ifno such initial payment took place, Atty. Soriano would not have claimed the subsequent payment through the Aboitiz Express. The claim of Atty. Soriano that the amountwas givengratuitously would not excuse him from any liability. To tolerate such acts wouldopen the floodgates tofraud or graft and corruptionto becommitted by officials and employees of the Court. Likewise,thefactthatrespondent tried to return theamount to Mr. Igoy aftertheChiefJustice required him to comment onthecomplaintonly strengthened the caseagainst him. Even ifthe offer to return the money was accepted bythecomplainant, it willnever exculpate him ofhis administrative liabilities. Respondent by his brazen conduct consummated an actthat by itselfis a disservice totheadministrationofjustice and an affront ofthe image of the court before the public. It is admittedthat respondentoffered toresign, however, resignation should not be used as an easy way to escapeadministrativeliability by a court personnelfacing administrative sanction.Respondent thereforecannot go scot-free and besimplyforgiven for thedamage hecaused totheinstitution he was bound by his oath and The Canons of Legal Ethics to serve with utmost integrity. Respondentmay havebeen in theservice for 28years, buthe has blemishedhis record irreparably and under the circumstances, this office believes that dismissal as a penalty is warranted. The Court adopts the foregoing findings and recommendation ofthe OAS. Time and again, this Tribunal has emphasized that "[t]he conduct or behavior of all officials and employees of an agency involved in the administration of justice, from the presiding judgeto themostjunior clerk, should be circumscribed with the heavy burden of responsibility.17 Theirconduct must, at all times be characterized by, among others, strict proprietyanddecorum in orderto earn and maintain the respect ofthe public for the judiciary."18 Indeed, Canon 6, Rule 6.02, of the Code ofProfessional Responsibility states in no uncertain terms that — Rule 6.02.A lawyer in thegovernment serviceshallnot usehis publicposition to promoteor advancehis private interests, nor allow the latter to interfere with his public duties. The foregoing command acquires particularsignificancegiven the prevailing facts ofthis case considering that respondentis a senior lawyerofthis Court.It bears stressing thatgovernment lawyers who are public servants owe utmost fidelityto thepublic service, for public serviceis a public trust.As such, government lawyers should be more sensitive totheirprofessionalobligations as their disreputableconductis morelikely tobe magnifiedin the public eye.19 The Court could nothelp but express its great disappointmentover theconductofrespondentwho, as a lawyer with twenty-eight(28) years ofgovernment service behind him, should have been among the first to set an exampleto his co-employees and fellow civilservants. Instead, he badly tainted the image ofthis Tribunal as well as thejudiciary.Only recentlyin In Re: Derogatory News Items Charging Court ofAppeals Associate Justice Demetrio Demetria with Interference on Behalfofa Suspected Drug Queen,20 this Court said that: Men and women ofthecourts must conductthemselves with honor, probity, fairness,prudenceand discretion. Magistrates ofjusticemust always be fair andimpartial.They shouldavoidnotonlyacts ofimpropriety, but all appearances ofimpropriety. Their influencein society must beconsciously and conscientiously exercised with utmost prudence and discretion. Fortheirs is the assignedroleofpreserving theindependence,impartialityand integrity ofthe Judiciary. Respondentshould bereminded in this regardthatthenature andresponsibilities ofpublic officers enshrinedin the Constitution, and oft-repeated inour caselaw, arenotmere rhetoricalwords to betakenlightly as idealistic sentiments but as working standards andattainable goals that shouldbe matchedwith actual deeds.21 Those involved intheadministration ofjusticemustlive upto thestrictest standards ofhonesty and integrity in the public service,22 In sanctioning errant officers and employees involved in the administration ofjustice, the Court has held: Since the administration ofjustice is a sacred task, the persons involved in it ought to live up to the strictest standard ofhonesty, integrity anduprightness.It bears stressing onceagain thatpublic service requires utmost integrity andthestrictest discipline possibleofevery public servant.Apublicofficeis a public trust that enjoins all public officers andemployees,particularly those serving in thejudiciary torespond to the highest degree of dedication often even beyond personal interest.23 All too often, this Court has declared thatany act which falls short ofthe exacting standards for public office, especially on the partofthoseexpectedto preservetheimageofthejudiciary,shall not becountenanced.24 To reiterate, publicofficeis a publictrust. Public officers must at alltimes beaccountableto thepeople, serve them with the utmost degree ofresponsibility, integrity, loyalty and efficiency.25 This Court has also ruled that: Time and again, wehaveemphasized theheavy burdenandresponsibility which court personnel are saddled with in viewoftheir exaltedpositions as keepers ofthepublicfaith. They must beconstantly remindedthat any impression ofimpropriety,misdeed or negligence in theperformance ofofficial functions must be avoided. As we have held in thecase ofMendoza v. Mabutas (223 SCRA 411 [1993], citing Sy v. Academia, 198 SCRA 70s [1991]), this Court condemns and wouldnever countenance such conduct, act or omission on the part ofall those involved in the administration ofjustice which would violate the norm ofpublic accountability and diminish or even just tend to diminish the faith ofthe people in the Judiciary.26 Respondent's acts seriously undermined thetrust and confidence ofthe public in the entire judicial system. What makes his infraction worse is the fact that he is not a mere court employee, but a senior attorney employedin the Highest Courtofthe Land. Hehas indeliblysullied his record ofgovernment service spanning twenty-eight years, and insodoing he has prejudiced the integrity ofthe Court as a whole. Once more, this Court is calledupon to apply disciplinary sanction on an errant member, and again it will not shirk from its responsibility. Thus,this Courtimposes onrespondent the only penalty that he deserves — that ofdismissal from the service. ACCORDINGLY, respondentAtty.Gilbert Soriano is hereby DISMISSED from the service, with forfeiture ofall retirementbenefits and leavecredits andwithprejudiceto reemployment in any branch or instrumentality of the government including government-ownedor controlled corporations.This dismissal shall be immediately executory. Further, respondent Atty. Gilbert Soriano is DIRECTED to SHOW CAUSEwithin ten (10) days from notice hereofwhy heshould not beDISBARRED. Inthemeantime, respondentis SUSPENDED from the practice of law. Let copies ofthis Resolution be attached to the records ofAtty. Gilbert Soriano and furnished the Integrated Bar ofthe Philippines and all the courts throughout the country. SO ORDERED.
- 51. 23. SUAREZ V.PLATON This is an originalpetition for theperemptory writ ofmandamus filedby Fortunato N. Suarez with this court, to compel therespondentjudgeto reinstatecriminalcase No.6426oftheCourtofFirst Instance ofTayabas so that the case may proceed to trial in the ordinary course. It appears on May9, 1935, Lieutenant Vivencio Orais, ofthe PhilippineConstabulary,oneofthe respondents in this case, fileda complaint under oathwiththejustice ofthepeaceofCalauag, Province ofTayabas, charging the petitionerherein,Fortunato N. Suarez, and one Tomas Ruedas,withsedition under Article 142 ofthe Revised Penal Code.The complaint,uponpreliminaryexamination, was docketed andgiven duecourse. While the said case was pending preliminary investigation, Lieutenant Orais, in obedience to an order ofthe Provincial Commander of Tayabas,moved for thetemporary dismissalofthe case. This motion was grantedby the justice ofthe peace of Calauag on May 20, 1935, and the case thus dismissed. At the instanceof the petitionerherein,Fortunato N. Suarez, thedeputy provincial fiscalofTayabas, Perfecto R. Palacio,in turn charged Lieutenant Vivencio Orais and Damian Jimenez in the justice ofthe peace court of Calauag with the crime of arbitrary detention committed, according to the information under date ofJuly 8, 1935, as follows: That on or about the 9th day ofMay, 1935, inthemunicipality ofCalauag,ProvinceofTayabas, P.I., and within the jurisdictionof this Court, theaccusedVivencioOrais being thena publicofficer to wit: a secondlieutenantof the PhilippineConstabulary duly appointed and qualified as such and detailed in the Province ofTayabas, without warrant of arrestand withoutanylegalground whatsoever, moved by personal grudge and ill-feeling which he entertained againstAttorney Fortunato Suarez, did, then and there willfully,unlawfully andfeloniously arrest anddetainsaidAttorney Fortunato Suarez in thetrainwhilethelatter was going toCalauag,andwith the purpose of concealing theillegality ofsaid arrest and detention ofsaid Fortunato Suarez said accused Vivencio Orais conniving withtheotheraccused,DamianJimenez, justice ofthepeaceofthesaid municipality,prepared and subscribed under oath beforesaid Fortunato Suarez with the commission ofthecrimeofsedition; that the said justice of the peace Damian Jimenez, conniving with the other accused Vivencio Orais with the same purpose of concealing theillegality ofthearrestand detention ofsaid Fortunato Suarez, without legal grounds whatsoever willfully and unlawfully issued an orderdeclaring that there weremerits in the complaint thereby sanctioning the illegaland unjust arrest anddetentionofFortunatoSuarez who was keptin themunicipal jail of Calauag for eight hours. The justice of thepeaceof Calauag, being oneofthe accused, thepreliminary examination was conducted by the justiceof the peace of Lopez, Tayabas, who thereafter bound the defendants over to the Court ofFirst Instance,wherethecase was docketed as criminal caseNo. 6426. Whilethecase was pending in thelattercourt, on petition, of the accused, the provincialfiscal ofTayabas,RamonValdez y Nieto, reinvestigated thecase. After such reinvestigation, hefiled onApril23, 1936, a motion for thedismissalofthe case. Fortunato N. Suarez, the petitionerherein,on May5, 1936, asked thecourtto appoint Attorney Godofredo Reyes as acting provincial fiscal to handle the prosecution, alleging, among other things, that the provincial fiscal had no courage to prosecute the accused. On May 11, 1936, Attorney Godofredo Reyes entered his appearance as private prosecutor, and vigorously objectedto the motionofdismissalfiled by the provincialfiscal.The Bar Association ofTayabas, throughits president, Emiliano A. Gala, entered its appearance as amicus curiae and likewise objected to the dismissalofthecase. On August14, 1936, the then presiding judge ofBranch I ofthe Court of First Instanceof Tayabas,Hon.Ed. Gutierrez David, afterhearing,denied themotion, ruling thattherewas prima facie caseagainst the accused.The court, upon petitioner oftheprovincial fiscal, designated Deputy Provincial Fiscal Perfecto R. Palacio to handle the prosecution.But Fiscal Palacio, being apparentlyofthe same opinion as the provincialfiscal,declined toproceed, and moved thata practicing attorney ora competent attorney in the Bureau of Justicebedesignatedin his stead.Accordingly, theprovincial fiscal ofSorsogon, Jacinto Yamson, at the requestof thejudgea quo was assigned by the Department ofJustice tohandletheprosecution ofthe case. Fiscal Yamsonafter going over the caselikewiseentered a nolleprosequi. So,on September 231936, he moved for reconsiderationof the court's order ofAugust 14, 1936,denying themotion for dismissal presented by the provincialfiscal.Attorney Godofredo Reyes againvigorously objected to this motion on the ground that there was sufficient prooftowarranttheprosecutionofthe accused. Thecase in this state when Judge Emilio Pena was appointed totheplace of JudgeGutierres David. Later, Judge Serviliano Platon, one ofthe respondents herein, was appointed to presideover case No. 6426corresponded, andthecase was thus transferred to that sala for action. JudgePlaton,after considerationofallthefacts and proofs submitted inthecase, considered the court's order ofAugust 14, 1936,anddismissed thecase, holding thattheevidence was insufficient to convict the accused ofthecrimecharged. Fromthis order,thepetitioner hereinappealed tothis Court and thecasewas here docketed as G.R. No. 45431. On June 30, by a closely divided court, the appeal was dismissed. The petitioner has nowfiled withthis Courtthepresent petition,in which, as stated in theopening paragraph of this decision, weare asked to issue the peremptory writ ofmandamus to compel the respondent judge to reinstate the criminal case which had been ordered dismissed by the said judge. The petitioner gives the following grounds for the issuance ofsaid writ: (SPANISH) Should the writofmandamus prayed for beissued? Weobservethat after the filing ofthe information by the provincialfiscal ofTayabas for arbitrary detention againstLieutenantOrais andthejustice ofthepeaceofLopez, the samefiscalmoved for the dismissalof thecase, because 'despues'de una reinvestigacion delos hechos que dieron margen a la presente causa, y examinada la misma con la debida atencion quesu importancia requireasi como las circunstancias del caso,ha llegadoa la conclusionde que nohaybasejustificativa para la prosecucion de esta causa."The grounds for this actionoftheprovincialfiscal arestated in his said motion for dismissal of April 23, 1936 (SPANISH) We have notoverlooked the factthat this motion for dismissalwas denied by Judge Gutierrez David ofAugust 14, 1936.It appears, however, that subsequently Fiscal Yamsom who, as stated above was assigned by the Department ofJustice toconduct the prosecution ofthecase,moved for reconsiderationofthe Court's order of August 14, 1936, denying the motion for dismissal. Judge Servillano Platon granted the motion for reconsiderationanddismissed thecase. In this motion for reconsideration not only does FiscalYamson reiterate the arguments advanced by Fiscal Valdez y Nieto in the latter's motion for dismissal, but adds (SPANISH) We cannotoveremphasizethenecessity ofclosescrutinyandinvestigation ofprosecuting officers ofall cases handledby them,butwhilst this Court is averseto any form ofvacillationby such officers in the prosecution of public offenses, it is unquestionable that they may, in appropriate cases, in order to do justice and avoid injustice, reinvestigate cases in whichthey havealready filedthecorresponding informations. In the languageof Mr. JusticeSutherland oftheSupremeCourtoftheUnitedStates, the prosecuting officer "is therepresentative not ofan ordinary party to a controversy, but ofa sovereignty whose obligation to govern impartially is as compelling as its obligation togovern at all; and whoseinterest, therefore, in a criminalprosecution is not thatit shall win a case, but thatjustice shall bedone.As such,he is in a peculiar andvery definite sense the servant of the law, the two foldaim ofwhichis that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, heshould doso. But, while he may strike hard blows, he is not at liberty to strike foulones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to useeverylegitimate means tobring abouta just one,"(69UnitedStates Law Review, June, 1935, No. 6, p. 309.) Considering all the circumstances,we cannotsay that Judge Servillano Platon, in granting the motion for the dismissalofthecasefor arbitrary detention against Lieutenant Orais and the justice ofthe peace ofLopez, abusedhis discretion so flagrantly as to justify, in theinterest ofjustice, a departure from the well-settled rule that an inferior tribunalin theperformanceofa judicialact within the scope ofits jurisdiction and discretion cannot becontrolledby mandamus.This is especially true in a matter involving theexaminationofevidenceand the decision of questions of law and fact, since such a duty is not ministerial. (High, Extraordinary Legal Remedies, sec.156, pp. 173-175). Upon theother hand, it should be observed that in the case ofLieutenant Orais, in the faceofthecircumstances surrounding the arrest as set forth inthetwo motions for dismissalby the provincialfiscal ofTayabas,whichfacts andcircumstances must havebeeninvestigated and duly weighed and considered by the respondentjudge oftheCourt ofFirstInstanceofTayabas, the arrest effected by Lieutenant
- 52. Orais cannot besaidto havebeentirely unjustified. If, "under trying circumstances and in a zealous effort to obey the orders of his superiorofficer and toenforce the law, a peace officer makes a mere mistake in good faith, he shouldbe exculpated. Otherwise, the courts will put a premium on crime and will terrorize peace officers througha fear of themselves violating thelaw. Seegenerally Voorhees onArrest; 5 Corpus Juris,pp. 399, 416; 2 R.C.L., 450. (United States vs. Santos, 36 Phil., 853, 855.)" The petition is hereby dismissed, without pronouncement regarding cost. So ordered. Avanceña, C.J., Villa-Real, Diaz and Concepcion, JJ., concur. Separate Opinions MORAN, J., dissenting: The majority decision takes for granted that which precisely is in issue in this case. In the morning of May 9,1935, theaccused, Lieutenant Vivencio Orais, and Attorney Fortunato Suarez were both in the train ontheirwayto Calauag, Tayabas.In theconversation which ensued between them, Attorney Suarez madecertain remarks abouttheabuses ofauthoritycommitted bytheofficers ofthe Government who conducted theraidagainst the Sakdalistas at Sariaya. Upon inquiry ofLieutenant Orais as towhat party Attorney Suarez belonged,and, pressedupon to statewhether or not hewas a Sakdalista, Attorney Suarez replied "may be". On the strength of these facts,LieutenantOrais arrestedAttorney Suarez for thealleged offenseofuttering seditious words, and conducted him to themunicipalbuilding ofCalauag and therelodged him injail. Hefiled in the justiceof thepeace court ofthe same municipality an information against Attorney Suarez for uttering seditious words, inviolationofarticle142 ofthen Revised PenalCode.On theday following, Lieutenant Orais, acting under the instruction of his superior, moved for the dismissal ofthe case. Thereafter, the deputy provincialfiscal of Tayabas,attheinstanceofFortunato Suarez, filedan information against Lieutenant Orais and DamianJimemez, thelatter as justiceofthepeace ofCalauag,Tayabas,for thecrimeofarbitrary detention, the information reading as follows: That on or about the 9th day ofMay, 1935, inthemunicipality ofCalauag,ProvinceofTayabas, P.I., and within the jurisdictionof this Court, theaccusedVivencioOrais being thena publicofficer to wit: a secondlieutenantof the PhilippineConstabulary duly appointed and qualified as such and detailed in the province ofTayabas, without any legal groundwhatsoever,moved by personal grudgeand ill-feeling which he entertained against Attorney Fortunato Suarez, did, then and there willfully, unlawfully and feloniously arrest and detain said Attorney FortunatoSuarez in thetrain while thelatter was going to Calauag; and withthepurposeofconcealing the illegality of said arrestand detention ofsaid Fortunato Suarez said accused VivencioOrais conniving with the other accused Damian Jimenez, justiceofthe peaceofsaid municipality, prepared and subscribed under oath before said justiceof thepeace a complaint falsely charging saidFortunato Suarez with the commission ofthe crime of sedition; thatthesaid justiceofthe peaceDamian Jimenez, conniving withtheotheraccused Vivencio Orais withthesame purpose ofconcealing the illegality ofthearrest and detention ofsaid Fortunato Suarez, without legal grounds whatsoever willfully and unlawfully issued an order declaring that there were merits in the complaintthereby sanctioning the illegalandunjust arrest anddetention ofFortunato Suarez whowas kept in the municipal jail of Calauag for eight hours. The justice of thepeaceof Lopez, Tayabas, conductedthepreliminaryinvestigation,and, thereafter, remanded the caseto the Courtof First Instance.On April23,1936, the provincial fiscal movedfor thedismissal ofthecase upon the alleged ground,that after a supposed reinvestigation,thenewfacts established therein disclose no sufficient evidence to sustain the information. The motion was overruled by Judge Gutierrez David, then presiding thesecond branch oftheCourt ofFirst InstanceofTayabas. JacintoYamson, appointed as specialfiscal to take chargeof thecase, moved for the reconsideration ofthe order ofJudgeGutierrez David. To this motion, Attorney Suarez, through counsel, interposedanopposition. Judge Servillano Platon, then presiding the first branch of theCourt of First Instance ofTayabas, accededto themotion and dismissedtheinformation. Fromthis order, AttorneySuarez appealed, buttheappeal was dismissed by this Court ontheground that mandamus was the proper remedy. Accordingly, the present action is filed in this Court. The sole questionhereinvolved is whether or not, according to theevidence in the hands ofthe prosecution, there is sufficientground toproceedwiththecriminalcasefor arbitrary detentionagainst Lieutenant Vivencio Orais andJustice ofthePeaceDamian Jimenez. Acloseexaminationofsuch evidence, which is attached to the record, will disclosethat thearrestofFortunato Suarez by Lieutenant Orais inthemorning ofMay 9, 1935, was prompted obviously, not by officialduty, butby personalresentmentagainst certain statements made by the former. I have taken pains to scrutinize carefully the testimonies ofall the witnesses who testified in the preliminary investigation, andthey show nothing seditious intheutterances ofAttorney Suarez on theoccasion in question. My conclusion, then, is thatthedetentionofAttorneySuarez by Lieutenant Orais was arbitrary, and that the charge made against Lieutenant Orais for arbitrary detention is well founded on facts. The fiscal, in moving for thedismissal ofthe case before the Court ofFirst Instance ofTayabas, mentioned a reinvestigation conducted by him ofthe case, in which he supposedly found a new evidence warranting its dismissal. Counsel for Attorney FortunatoSuarez, however, insisted on the production ofsuch new evidence before the court, but theprosecutioncouldnot respond tosuch demand.This is an indication thatthesupposed additional evidence never existed. But the majority,instead ofdeciding the issueas towhetheror nottheevidence in thehands ofthe prosecution was sufficient toproceedwith thecharge for arbitrary detention, takes for grantedthat such evidence was not sufficient, relying upon theassumptionthat the"circumstances surrounding the arrest as set forth in the two motions for dismissalby theprovincial fiscalofTayabas . . . musthave been investigatedand duly weighed and considered by the respondent judge ofthe Court ofFirst Instance ofTayabas."In other words, the majority assumes thatwhich is the subjectofthepetitioner's challenge, whichis tantamount toa refusal to consider his complaint after he has been told that he may come to this court by mandamus proceedings. Although a broaddiscretion must beconceded toprosecuting attorneys and trialcourts in thedetermination of sufficientgrounds for dismissing or continuing a criminalprosecution, yet when,as inthis case, the basis for the action ofboth officers — fiscal and judge — is produced in this court, and we are called upon to determine whether,on thebasis ofsuch evidenceand determinethequestion at issue. And, in the present case, it is my opinion thattheevidencewe havein therecordsufficiently shows thattheprosecutionfor arbitrary detention against LieutenantOrais musttake its course,and thatits dismissalwithout trial bytheCourt ofFirstInstance is without basis on facts and constitutes an abuse ofdiscretion. I agree, however,that there is noreasonfor including in the charge for arbitrary detention the justice ofthe peace ofCalauag,DamianJimenez. The evidenceshows noconnection between him and Lieutenant Orais in the arbitrary arrest ofAttorney Fortunato Suarez. My vote, therefore, is thatthepetition for mandamus must begrantedwith respect totheprosecution against Lieutenant Vivencio Orais, but denied with respect to the prosecution against Damian Jimenez.