EN BANC [A.C. No. 4921.

March 6, 2003]

CARMELITA I. ZAGUIRRE, complainant, vs. ATTY. ALFREDO CASTILLO, respondent. DECISION PER CURIAM:

Before this Court is a Petition for Disbarment filed by Carmelita I. Zaguirre against Atty. Alfredo Castillo on the ground of Gross Immoral Conduct.

The facts as borne by the records are as follows:

Complainant and respondent met sometime in 1996 when the two became officemates at the National Bureau of Investigation (NBI).[1] Respondent courted complainant and promised to marry her while representing himself to be single.[2] Soon they had an intimate relationship that started sometime in 1996 and lasted until 1997.[3] During their affair, respondent was preparing for the bar examinations which he passed. On May 10, 1997, he was admitted as a member of the Philippine Bar.[4] It was only around the first week of May 1997 that complainant first learned that respondent was already married when his wife went to her office and confronted her about her relationship with respondent.[5] On September 10, 1997, respondent, who by now is a lawyer, executed an affidavit, admitting his relationship with the complainant and recognizing the unborn child she was carrying as his.[6] On December 09, 1997, complainant gave birth to a baby girl, Aletha Jessa.[7] By this time however, respondent had started to refuse recognizing the child and giving her any form of support.[8]

Respondent claims that: he never courted the complainant; what transpired between them was nothing but mutual lust and desire; he never represented himself as single since it was known in the NBI that he was already married and with children;[9] complainant is almost 10 years older than him and knew beforehand that he is already married;[10] the child borne by complainant is not his, because the complainant was seeing other men at the time they were having an affair.[11] He admits that he signed the affidavit dated September 10, 1997 but explains that he only did so to save complainant from embarrassment. Also, he did not know at the time that complainant was seeing other men.[12]

After due hearing, the IBP Commission on Bar Discipline found Atty. Alfredo Castillo guilty of gross immoral conduct and recommends that he be meted the penalty of indefinite suspension from the practice of law.

The Court agrees with the findings and recommendation of the IBP.

The Code of Professional Responsibility provides:

Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

xxx xxx

xxx

CANON 7 - A lawyer shall at all times uphold the integrity and dignity of the legal profession, and support the activities of the Integrated Bar.

xxx xxx

xxx

Rule 7.03 - A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor should he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.

Immoral conduct has been defined as:

xxx that conduct which is so willful, flagrant, or shameless as to show indifference to the opinion of good and respectable members of the community. Furthermore, such conduct must not only be immoral, but grossly immoral. That is, it must be so corrupt as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree or committed under such scandalous or revolting circumstances as to shock the common sense of decency.[13]

In his affidavit dated September 10, 1997, duly acknowledged before a notary public, he declared explicitly:

1. That I had a relationship with one Carmelita Zaguirre, my officemate;

2. That as a result of that relationship, she is presently pregnant with my child;

3. That I hereby voluntarily recognize the child now under (sic) her womb to be my own;

4. That I am willing to support the said child henceforth, including his/her personal and medical needs, education, housing, food, clothing and other necessities for living, which I will give through his/her mother, Carmelita Zaguirre, until he/she becomes of legal age and capable to live on his/her own;

5. That I undertake to sign the birth certificate as an additional proof that he/she is my child; however, my failure to sign does not negate the recognition and acknowledgement already done herein;

6. That I am executing this affidavit without compulsion on my part and being a lawyer, I have full knowledge of the consequence of such acknowledgment and recognition.[14]

More incriminating is his handwritten letter dated March 12, 1998 which states in part:

Ayoko ng umabot tayo sa kung saan-saan pa. All your officemates, e.g., Ate Ging, Glo, Guy and others (say) that I am the look like(sic) of your daughter.

Heres my bargain. I will help you in supporting your daughter, but I cannot promise fix amount for monthly support of your daughter. However it shall not be less than P500 but not more than P1,000.[15]

In the recent case of Luguid vs. Judge Camano, Jr., the Court in castigating a judge stated that:

...even as an ordinary lawyer, respondent has to conform to the strict standard of conduct demanded of members of the profession. Certainly, fathering children by a woman other than his lawful wife fails to meet these standards.[16]

Siring a child with a woman other than his wife is a conduct way below the standards of morality required of every lawyer.[17]

Moreover, the attempt of respondent to renege on his notarized statement recognizing and undertaking to support his child by Carmelita demonstrates a certain unscrupulousness on his part which is highly censurable, unbecoming a member of a noble profession, tantamount to self-stultification.[18]

This Court has repeatedly held:

as officers of the court, lawyers must not only in fact be of good moral character but must also be seen to be of good moral character and leading lives in accordance with the highest moral standards of the community. More specifically, a member of the Bar and officer of the court is not only required to refrain from adulterous relationships or the keeping of mistresses but must also so behave himself as to avoid scandalizing the public by creating the belief that he is flouting those moral standards.[19]

While respondent does not deny having an extra-marital affair with complainant he seeks understanding from the Court, pointing out that men by nature are polygamous,[20] and that what happened between them was nothing but mutual lust and desire.[21] The Court is not convinced. In fact, it is appalled at the reprehensible, amoral attitude of the respondent.

Respondent claims that he did not use any deception to win her affection. Granting arguendo that complainant entered into a relationship with him knowing full well his marital status, still it does not absolve him of gross immorality for what is in question in a case like this is respondents fitness to be a member of the legal profession. It is not dependent whether or not the other party knowingly engaged in an immoral relationship with him.

We agree with the IBP that the defense of in pari delicto is not feasible. The Court held in Mortel vs. Aspiras:

In a disbarment proceeding, it is immaterial that the complainant is in pari delicto because this is not a proceeding to grant relief to the complainant, but one to purge the law profession of unworthy members, to protect the public and the courts.[22]

The illicit relationship with Carmelita took place while respondent was preparing to take the bar examinations. Thus, it cannot be said that it is unknown to him that an applicant for admission to membership in the bar must show that he is possessed of good moral character, a requirement which is not dispensed with upon admission to membership of the bar.[23] This qualification is not only a condition precedent to admission to the legal profession, but its continued possession is essential to maintain ones good standing in the profession;[24] it is a continuing requirement to the practice of law[25] and therefore admission to the bar does not preclude a subsequent judicial inquiry, upon proper complaint, into any question concerning his mental or moral fitness before he became a lawyer. This is because his admission to practice merely creates a rebuttable presumption that he has all the qualifications to become a lawyer.

The Court held:

The practice of law is not a right but a privilege bestowed by the State on those who show that they possess, and continue to possess, the qualifications required by law for the conferment of such privilege. We must stress that membership in the bar is a privilege burdened with conditions. A lawyer has the privilege to practice law only during good behavior. He can be deprived of his license for misconduct ascertained and declared by judgment of the court after giving him the opportunity to be heard.[26]

and in Dumadag vs. Lumaya:

The practice of law is a privilege burdened with conditions. Adherence to the rigid standards of mental fitness, maintenance of the highest degree of morality and faithful compliance with the rules of the legal profession are the conditions required for remaining a member of good standing of the bar and for enjoying the privilege to practice law.[27]

Respondent repeatedly engaged in sexual congress with a woman not his wife and now refuses to recognize and support a child whom he previously recognized and promised to support. Clearly therefore, respondent violated the standards of morality required of the legal profession and should be disciplined accordingly.

As consistently held by this Court, disbarment shall not be meted out if a lesser punishment could be given.[28] Records show that from the time he took his oath in 1997, he has severed his ties with complainant and now lives with his wife and children in Mindoro. As of now, the Court does not perceive this fact as an indication of respondents effort to mend his ways or that he recognizes the impact of his offense on the noble profession of law. Nevertheless, the Court deems it more appropriate under the circumstances that indefinite suspension should be meted out than disbarment. The suspension shall last until such time that respondent is able to show, to the full satisfaction of the Court, that he had instilled in himself a firm conviction of maintaining moral integrity and uprightness required of every member of the profession.

The rule is settled that a lawyer may be suspended or disbarred for any misconduct, even if it pertains to his private activities, as long as it shows him to be wanting in moral character, honesty, probity or good demeanor.[29]

ACCORDINGLY, in view of the foregoing, the Court finds respondent GUILTY of Gross Immoral Conduct and ordered to suffer INDEFINITE SUSPENSION from the practice of law.

Let a copy of this Decision be attached to Atty. Castillos personal record in the Office of the Bar Confidant and a copy thereof be furnished the IBP and all courts throughout the country.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur. Ynares-Santiago and Corona, JJ., on leave.

[1] Rollo, p. 11.

[2] Id., p. 2.

[3] Id., p. 12.

[4] Annex A, Rollo, p. 5.

[5] Rollo, p. 2.

[6] Id., p. 7.

[7] Annex B, Rollo, p. 6.

[8] Rollo, p. 2.

[9] Id., at p. 11.

[10] Id., at p. 13.

[11] Id., at p.12.

[12] Id., at p. 13.

[13] Narag vs. Narag, 291 SCRA 451, 464 (1998).

[14] Annex C, Rollo, p. 7.

[15] Id., p. 39.

[16] A.M. No. RTJ-99-1509, August 8, 2002.

[17] Paras vs. Paras, 343 SCRA 414, 426 (2000).

[18] Marcayda vs. Naz, 125 SCRA 466, 469 (1983).

[19] Narag vs. Narag, supra, footnote 13.

[20] Rollo, p. 14.

[21] Id.,at p.11.

[22] 100 Phil. 586, 592 (1956).

[23] Cordova vs. Cordova, 179 SCRA 680, 683 (1989); Vda. de Mijares vs. Villalluz, 274 SCRA 1, 8 (1997).

[24] Rayos-Ombac vs. Rayos, 285 SCRA 93, 100 (1998); Igual vs. Javier, 254 SCRA 416 (1996); Villanueva vs. Sta. Ana, 245 SCRA 707 (1995); People vs. Tunada, 18 SCRA 692 (1990); Melendrez vs. Decena, 176 SCRA 662 (1989).

[25] Nakpil vs. Valdes, 286 SCRA 758, 774 (1998).

[26] Sebastian vs. Calis, 344 SCRA 1, 8 (1999).

[27] 334 SCRA 513, 521 (2000).

[28] Saburnido vs. Madrono, A.C. No. 4497, September 26, 2001.

[29] Nakpil vs. Valdes, supra.

G.R. No. 100113

September 3, 1991

RENATO CAYETANO, petitioner, vs. CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacity as Secretary of Budget and Management, respondents.

Renato L. Cayetano for and in his own behalf.

Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.

PARAS, J.:p

We are faced here with a controversy of far-reaching proportions. While ostensibly only legal issues are involved, the Court's decision in this case would indubitably have a profound effect on the political aspect of our national existence.

The 1987 Constitution provides in Section 1 (1), Article IX-C:

There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elective position in the immediately preceding -elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (Emphasis supplied)

The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution which similarly provides:

There shall be an independent Commission on Elections composed of a Chairman and eight Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five

years of age and holders of a college degree. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years.' (Emphasis supplied)

Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as a legal qualification to an appointive office.

Black defines "practice of law" as:

The rendition of services requiring the knowledge and the application of legal principles and technique to serve the interest of another with his consent. It is not limited to appearing in court, or advising and assisting in the conduct of litigation, but embraces the preparation of pleadings, and other papers incident to actions and special proceedings, conveyancing, the preparation of legal instruments of all kinds, and the giving of all legal advice to clients. It embraces all advice to clients and all actions taken for them in matters connected with the law. An attorney engages in the practice of law by maintaining an office where he is held out to be-an attorney, using a letterhead describing himself as an attorney, counseling clients in legal matters, negotiating with opposing counsel about pending litigation, and fixing and collecting fees for services rendered by his associate. (Black's Law Dictionary, 3rd ed.)

The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in the practice of law when he:

... for valuable consideration engages in the business of advising person, firms, associations or corporations as to their rights under the law, or appears in a representative capacity as an advocate in proceedings pending or prospective, before any court, commissioner, referee, board, body, committee, or commission constituted by law or authorized to settle controversies and there, in such representative capacity performs any act or acts for the purpose of obtaining or defending the rights of their clients under the law. Otherwise stated, one who, in a representative capacity, engages in the business of advising clients as to their rights under the law, or while so engaged performs any act or acts either in court or outside of court for that purpose, is engaged in the practice of law. (State ex. rel. Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)

This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177) stated:

The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings and other papers incident to actions and special proceedings, the management of such actions and proceedings on behalf of clients before judges and courts, and in addition, conveying. In general, all advice to clients, and all action taken for them in matters connected with the law incorporation services, assessment and condemnation services contemplating an appearance before a judicial body, the foreclosure of a mortgage,

enforcement of a creditor's claim in bankruptcy and insolvency proceedings, and conducting proceedings in attachment, and in matters of estate and guardianship have been held to constitute law practice, as do the preparation and drafting of legal instruments, where the work done involves the determination by the trained legal mind of the legal effect of facts and conditions. (5 Am. Jr. p. 262, 263). (Emphasis supplied)

Practice of law under modem conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety of subjects, and the preparation and execution of legal instruments covering an extensive field of business and trust relations and other affairs. Although these transactions may have no direct connection with court proceedings, they are always subject to become involved in litigation. They require in many aspects a high degree of legal skill, a wide experience with men and affairs, and great capacity for adaptation to difficult and complex situations. These customary functions of an attorney or counselor at law bear an intimate relation to the administration of justice by the courts. No valid distinction, so far as concerns the question set forth in the order, can be drawn between that part of the work of the lawyer which involves appearance in court and that part which involves advice and drafting of instruments in his office. It is of importance to the welfare of the public that these manifold customary functions be performed by persons possessed of adequate learning and skill, of sound moral character, and acting at all times under the heavy trust obligations to clients which rests upon all attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] , p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139,144). (Emphasis ours)

The University of the Philippines Law Center in conducting orientation briefing for new lawyers (1974-1975) listed the dimensions of the practice of law in even broader terms as advocacy, counselling and public service.

One may be a practicing attorney in following any line of employment in the profession. If what he does exacts knowledge of the law and is of a kind usual for attorneys engaging in the active practice of their profession, and he follows some one or more lines of employment such as this he is a practicing attorney at law within the meaning of the statute. (Barr v. Cardell, 155 NW 312)

Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. "To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill." (111 ALR 23)

The following records of the 1986 Constitutional Commission show that it has adopted a liberal interpretation of the term "practice of law."

MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do during our review of the provisions on the Commission on Audit. May I be allowed to make a very brief statement?

THE PRESIDING OFFICER (Mr. Jamir).

The Commissioner will please proceed.

MR. FOZ. This has to do with the qualifications of the members of the Commission on Audit. Among others, the qualifications provided for by Section I is that "They must be Members of the Philippine Bar" I am quoting from the provision "who have been engaged in the practice of law for at least ten years".

To avoid any misunderstanding which would result in excluding members of the Bar who are now employed in the COA or Commission on Audit, we would like to make the clarification that this provision on qualifications regarding members of the Bar does not necessarily refer or involve actual practice of law outside the COA We have to interpret this to mean that as long as the lawyers who are employed in the COA are using their legal knowledge or legal talent in their respective work within COA, then they are qualified to be considered for appointment as members or commissioners, even chairman, of the Commission on Audit.

This has been discussed by the Committee on Constitutional Commissions and Agencies and we deem it important to take it up on the floor so that this interpretation may be made available whenever this provision on the qualifications as regards members of the Philippine Bar engaging in the practice of law for at least ten years is taken up.

MR. OPLE. Will Commissioner Foz yield to just one question.

MR. FOZ. Yes, Mr. Presiding Officer.

MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to the requirement of a law practice that is set forth in the Article on the Commission on Audit?

MR. FOZ. We must consider the fact that the work of COA, although it is auditing, will necessarily involve legal work; it will involve legal work. And, therefore, lawyers who are employed in COA now would have the necessary qualifications in accordance with the Provision on qualifications under our provisions on the Commission on Audit. And, therefore, the answer is yes.

MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the practice of law.

MR. FOZ. Yes, Mr. Presiding Officer.

MR. OPLE. Thank you.

... ( Emphasis supplied)

Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman and two Commissioners of the Commission on Audit (COA) should either be certified public accountants with not less than ten years of auditing practice, or members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (emphasis supplied)

Corollary to this is the term "private practitioner" and which is in many ways synonymous with the word "lawyer." Today, although many lawyers do not engage in private practice, it is still a fact that the majority of lawyers are private practitioners. (Gary Munneke, Opportunities in Law Careers [VGM Career Horizons: Illinois], [1986], p. 15).

At this point, it might be helpful to define private practice. The term, as commonly understood, means "an individual or organization engaged in the business of delivering legal services." (Ibid.). Lawyers who practice alone are often called "sole practitioners." Groups of lawyers are called "firms." The firm is usually a partnership and members of the firm are the partners. Some firms may be organized as professional corporations and the members called shareholders. In either case, the members of the firm are the experienced attorneys. In most firms, there are younger or more inexperienced salaried attorneyscalled "associates." (Ibid.).

The test that defines law practice by looking to traditional areas of law practice is essentially tautologous, unhelpful defining the practice of law as that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. 593). The practice of law is defined as the performance of any acts . . . in or out of court, commonly understood to be the practice of law. (State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers perform almost every function known in the commercial and governmental realm, such a definition would obviously be too global to be workable.(Wolfram, op. cit.).

The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar role for lawyers as well as an uncommon role for the average lawyer. Most lawyers spend little time in courtrooms, and a large percentage spend their entire practice without litigating a case. (Ibid., p. 593). Nonetheless, many

lawyers do continue to litigate and the litigating lawyer's role colors much of both the public image and the self perception of the legal profession. (Ibid.).

In this regard thus, the dominance of litigation in the public mind reflects history, not reality. (Ibid.). Why is this so? Recall that the late Alexander SyCip, a corporate lawyer, once articulated on the importance of a lawyer as a business counselor in this wise: "Even today, there are still uninformed laymen whose concept of an attorney is one who principally tries cases before the courts. The members of the bench and bar and the informed laymen such as businessmen, know that in most developed societies today, substantially more legal work is transacted in law offices than in the courtrooms. General practitioners of law who do both litigation and non-litigation work also know that in most cases they find themselves spending more time doing what [is] loosely desccribe[d] as business counseling than in trying cases. The business lawyer has been described as the planner, the diagnostician and the trial lawyer, the surgeon. I[t] need not [be] stress[ed] that in law, as in medicine, surgery should be avoided where internal medicine can be effective." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

In the course of a working day the average general practitioner wig engage in a number of legal tasks, each involving different legal doctrines, legal skills, legal processes, legal institutions, clients, and other interested parties. Even the increasing numbers of lawyers in specialized practice wig usually perform at least some legal services outside their specialty. And even within a narrow specialty such as tax practice, a lawyer will shift from one legal task or role such as advice-giving to an importantly different one such as representing a client before an administrative agency. (Wolfram, supra, p. 687).

By no means will most of this work involve litigation, unless the lawyer is one of the relatively rare types a litigator who specializes in this work to the exclusion of much else. Instead, the work will require the lawyer to have mastered the full range of traditional lawyer skills of client counselling, advice-giving, document drafting, and negotiation. And increasingly lawyers find that the new skills of evaluation and mediation are both effective for many clients and a source of employment. (Ibid.).

Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very important ways, at least theoretically, so as to remove from it some of the salient features of adversarial litigation. Of these special roles, the most prominent is that of prosecutor. In some lawyers' work the constraints are imposed both by the nature of the client and by the way in which the lawyer is organized into a social unit to perform that work. The most common of these roles are those of corporate practice and government legal service. (Ibid.).

In several issues of the Business Star, a business daily, herein below quoted are emerging trends in corporate law practice, a departure from the traditional concept of practice of law.

We are experiencing today what truly may be called a revolutionary transformation in corporate law practice. Lawyers and other professional groups, in particular those members participating in various legal-policy decisional contexts, are finding that understanding the major emerging trends in corporation law is indispensable to intelligent decision-making.

Constructive adjustment to major corporate problems of today requires an accurate understanding of the nature and implications of the corporate law research function accompanied by an accelerating rate of information accumulation. The recognition of the need for such improved corporate legal policy formulation, particularly "model-making" and "contingency planning," has impressed upon us the inadequacy of traditional procedures in many decisional contexts.

In a complex legal problem the mass of information to be processed, the sorting and weighing of significant conditional factors, the appraisal of major trends, the necessity of estimating the consequences of given courses of action, and the need for fast decision and response in situations of acute danger have prompted the use of sophisticated concepts of information flow theory, operational analysis, automatic data processing, and electronic computing equipment. Understandably, an improved decisional structure must stress the predictive component of the policy-making process, wherein a "model", of the decisional context or a segment thereof is developed to test projected alternative courses of action in terms of futuristic effects flowing therefrom.

Although members of the legal profession are regularly engaged in predicting and projecting the trends of the law, the subject of corporate finance law has received relatively little organized and formalized attention in the philosophy of advancing corporate legal education. Nonetheless, a cross-disciplinary approach to legal research has become a vital necessity.

Certainly, the general orientation for productive contributions by those trained primarily in the law can be improved through an early introduction to multi-variable decisional context and the various approaches for handling such problems. Lawyers, particularly with either a master's or doctorate degree in business administration or management, functioning at the legal policy level of decision-making now have some appreciation for the concepts and analytical techniques of other professions which are currently engaged in similar types of complex decision-making.

Truth to tell, many situations involving corporate finance problems would require the services of an astute attorney because of the complex legal implications that arise from each and every necessary step in securing and maintaining the business issue raised. (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

In our litigation-prone country, a corporate lawyer is assiduously referred to as the "abogado de campanilla." He is the "big-time" lawyer, earning big money and with a clientele composed of the tycoons and magnates of business and industry.

Despite the growing number of corporate lawyers, many people could not explain what it is that a corporate lawyer does. For one, the number of attorneys employed by a single corporation will vary with the size and type of the corporation. Many smaller and some large corporations farm out all their legal problems to private law firms. Many others have in-house counsel only for certain matters. Other corporation have a staff large enough to handle most legal problems in-house.

A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal affairs of a corporation. His areas of concern or jurisdiction may include, inter alia: corporate legal research, tax laws research, acting out as corporate secretary (in board meetings), appearances in both courts and other adjudicatory agencies (including the Securities and Exchange Commission), and in other capacities which require an ability to deal with the law.

At any rate, a corporate lawyer may assume responsibilities other than the legal affairs of the business of the corporation he is representing. These include such matters as determining policy and becoming involved in management. ( Emphasis supplied.)

In a big company, for example, one may have a feeling of being isolated from the action, or not understanding how one's work actually fits into the work of the orgarnization. This can be frustrating to someone who needs to see the results of his work first hand. In short, a corporate lawyer is sometimes offered this fortune to be more closely involved in the running of the business.

Moreover, a corporate lawyer's services may sometimes be engaged by a multinational corporation (MNC). Some large MNCs provide one of the few opportunities available to corporate lawyers to enter the international law field. After all, international law is practiced in a relatively small number of companies and law firms. Because working in a foreign country is perceived by many as glamorous, tills is an area coveted by corporate lawyers. In most cases, however, the overseas jobs go to experienced attorneys while the younger attorneys do their "international practice" in law libraries. (Business Star, "Corporate Law Practice," May 25,1990, p. 4).

This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To borrow the lines of Harvard-educated lawyer Bruce Wassertein, to wit: "A bad lawyer is one who fails to spot problems, a good lawyer is one who perceives the difficulties, and the excellent lawyer is one who surmounts them." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

Today, the study of corporate law practice direly needs a "shot in the arm," so to speak. No longer are we talking of the traditional law teaching method of confining the subject study to the Corporation Code and the Securities Code but an incursion as well into the intertwining modern management issues.

Such corporate legal management issues deal primarily with three (3) types of learning: (1) acquisition of insights into current advances which are of particular significance to the corporate counsel; (2) an introduction to usable disciplinary skins applicable to a corporate counsel's management responsibilities; and (3) a devotion to the organization and management of the legal function itself.

These three subject areas may be thought of as intersecting circles, with a shared area linking them. Otherwise known as "intersecting managerial jurisprudence," it forms a unifying theme for the corporate counsel's total learning.

Some current advances in behavior and policy sciences affect the counsel's role. For that matter, the corporate lawyer reviews the globalization process, including the resulting strategic repositioning that the firms he provides counsel for are required to make, and the need to think about a corporation's; strategy at multiple levels. The salience of the nation-state is being reduced as firms deal both with global multinational entities and simultaneously with sub-national governmental units. Firms increasingly collaborate not only with public entities but with each other often with those who are competitors in other arenas.

Also, the nature of the lawyer's participation in decision-making within the corporation is rapidly changing. The modem corporate lawyer has gained a new role as a stakeholder in some cases participating in the organization and operations of governance through participation on boards and other decision-making roles. Often these new patterns develop alongside existing legal institutions and laws are perceived as barriers. These trends are complicated as corporations organize for global operations. ( Emphasis supplied)

The practising lawyer of today is familiar as well with governmental policies toward the promotion and management of technology. New collaborative arrangements for promoting specific technologies or competitiveness more generally require approaches from industry that differ from older, more adversarial relationships and traditional forms of seeking to influence governmental policies. And there are lessons to be learned from other countries. In Europe, Esprit, Eureka and Race are examples of collaborative efforts between governmental and business Japan's MITI is world famous. (Emphasis supplied)

Following the concept of boundary spanning, the office of the Corporate Counsel comprises a distinct group within the managerial structure of all kinds of organizations. Effectiveness of both long-term and temporary groups within organizations has been found to be related to indentifiable factors in the group-context interaction such as the groups actively revising their knowledge of the environment coordinating work with outsiders, promoting team achievements within the organization. In general, such external activities are better predictors of team performance than internal group processes.

In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-vis the managerial mettle of corporations are challenged. Current research is seeking ways both to anticipate effective managerial

procedures and to understand relationships of financial liability and insurance considerations. (Emphasis supplied)

Regarding the skills to apply by the corporate counsel, three factors are apropos:

First System Dynamics. The field of systems dynamics has been found an effective tool for new managerial thinking regarding both planning and pressing immediate problems. An understanding of the role of feedback loops, inventory levels, and rates of flow, enable users to simulate all sorts of systematic problems physical, economic, managerial, social, and psychological. New programming techniques now make the system dynamics principles more accessible to managers including corporate counsels. (Emphasis supplied)

Second Decision Analysis. This enables users to make better decisions involving complexity and uncertainty. In the context of a law department, it can be used to appraise the settlement value of litigation, aid in negotiation settlement, and minimize the cost and risk involved in managing a portfolio of cases. (Emphasis supplied)

Third Modeling for Negotiation Management. Computer-based models can be used directly by parties and mediators in all lands of negotiations. All integrated set of such tools provide coherent and effective negotiation support, including hands-on on instruction in these techniques. A simulation case of an international joint venture may be used to illustrate the point.

[Be this as it may,] the organization and management of the legal function, concern three pointed areas of consideration, thus:

Preventive Lawyering. Planning by lawyers requires special skills that comprise a major part of the general counsel's responsibilities. They differ from those of remedial law. Preventive lawyering is concerned with minimizing the risks of legal trouble and maximizing legal rights for such legal entities at that time when transactional or similar facts are being considered and made.

Managerial Jurisprudence. This is the framework within which are undertaken those activities of the firm to which legal consequences attach. It needs to be directly supportive of this nation's evolving economic and organizational fabric as firms change to stay competitive in a global, interdependent environment. The practice and theory of "law" is not adequate today to facilitate the relationships needed in trying to make a global economy work.

Organization and Functioning of the Corporate Counsel's Office. The general counsel has emerged in the last decade as one of the most vibrant subsets of the legal profession. The corporate counsel hear responsibility for key aspects of the firm's strategic issues, including structuring its global operations, managing improved relationships with an increasingly diversified body of employees, managing expanded liability exposure, creating new and varied interactions with public decision-makers, coping internally with more complex make or by decisions.

This whole exercise drives home the thesis that knowing corporate law is not enough to make one a good general corporate counsel nor to give him a full sense of how the legal system shapes corporate activities. And even if the corporate lawyer's aim is not the understand all of the law's effects on corporate activities, he must, at the very least, also gain a working knowledge of the management issues if only to be able to grasp not only the basic legal "constitution' or makeup of the modem corporation. "Business Star", "The Corporate Counsel," April 10, 1991, p. 4).

The challenge for lawyers (both of the bar and the bench) is to have more than a passing knowledge of financial law affecting each aspect of their work. Yet, many would admit to ignorance of vast tracts of the financial law territory. What transpires next is a dilemma of professional security: Will the lawyer admit ignorance and risk opprobrium?; or will he feign understanding and risk exposure? (Business Star, "Corporate Finance law," Jan. 11, 1989, p. 4).

Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of Chairman of the COMELEC in a letter received by the Secretariat of the Commission on Appointments on April 25, 1991. Petitioner opposed the nomination because allegedly Monsod does not possess the required qualification of having been engaged in the practice of law for at least ten years.

On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as Chairman of the COMELEC. On June 18, 1991, he took his oath of office. On the same day, he assumed office as Chairman of the COMELEC.

Challenging the validity of the confirmation by the Commission on Appointments of Monsod's nomination, petitioner as a citizen and taxpayer, filed the instant petition for certiorari and Prohibition praying that said confirmation and the consequent appointment of Monsod as Chairman of the Commission on Elections be declared null and void.

Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of 1960 with a grade of 86-55%. He has been a dues paying member of the Integrated Bar of the Philippines since its inception in 1972-73. He has also been paying his professional license fees as lawyer for more than ten years. (p. 124, Rollo)

After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod worked in the law office of his father. During his stint in the World Bank Group (1963-1970), Monsod worked as an operations officer for about two years in Costa Rica and Panama, which involved getting acquainted with the laws of member-countries negotiating loans and coordinating legal, economic, and project work of the Bank. Upon returning to the Philippines in 1970, he worked with the Meralco Group, served as chief executive officer of an investment bank and subsequently of a business conglomerate, and since 1986, has rendered services to various companies as a legal and economic consultant or chief executive officer. As former Secretary-General (1986) and National Chairman (1987) of NAMFREL. Monsod's work involved being knowledgeable in election law. He appeared for NAMFREL in its accreditation hearings before the Comelec. In the field of advocacy, Monsod, in his personal capacity and as former Co-Chairman of the Bishops Businessmen's Conference for Human Development, has worked with the under privileged sectors, such as the farmer and urban poor groups, in initiating, lobbying for and engaging in affirmative action for the agrarian reform law and lately the urban land reform bill. Monsod also made use of his legal knowledge as a member of the Davide Commission, a quast judicial body, which conducted numerous hearings (1990) and as a member of the Constitutional Commission (1986-1987), and Chairman of its Committee on Accountability of Public Officers, for which he was cited by the President of the Commission, Justice Cecilia Muoz-Palma for "innumerable amendments to reconcile government functions with individual freedoms and public accountability and the party-list system for the House of Representative. (pp. 128-129 Rollo) ( Emphasis supplied)

Just a word about the work of a negotiating team of which Atty. Monsod used to be a member.

In a loan agreement, for instance, a negotiating panel acts as a team, and which is adequately constituted to meet the various contingencies that arise during a negotiation. Besides top officials of the Borrower concerned, there are the legal officer (such as the legal counsel), the finance manager, and an operations officer (such as an official involved in negotiating the contracts) who comprise the members of the team. (Guillermo V. Soliven, "Loan Negotiating Strategies for Developing Country Borrowers," Staff Paper No. 2, Central Bank of the Philippines, Manila, 1982, p. 11). (Emphasis supplied)

After a fashion, the loan agreement is like a country's Constitution; it lays down the law as far as the loan transaction is concerned. Thus, the meat of any Loan Agreement can be compartmentalized into five (5) fundamental parts: (1) business terms; (2) borrower's representation; (3) conditions of closing; (4) covenants; and (5) events of default. (Ibid., p. 13).

In the same vein, lawyers play an important role in any debt restructuring program. For aside from performing the tasks of legislative drafting and legal advising, they score national development policies as key factors in maintaining their countries' sovereignty. (Condensed from the work paper, entitled "Wanted: Development Lawyers for Developing Nations," submitted by L. Michael Hager, regional legal adviser of the United States Agency for International Development, during the Session on Law for the Development of Nations at the Abidjan World Conference in Ivory Coast, sponsored by the World Peace Through Law Center on August 2631, 1973). ( Emphasis supplied)

Loan concessions and compromises, perhaps even more so than purely renegotiation policies, demand expertise in the law of contracts, in legislation and agreement drafting and in renegotiation. Necessarily, a sovereign lawyer may work with an international business specialist or an economist in the formulation of a model loan agreement. Debt restructuring contract agreements contain such a mixture of technical language that they should be carefully drafted and signed only with the advise of competent counsel in conjunction with the guidance of adequate technical support personnel. (See International Law Aspects of the Philippine External Debts, an unpublished dissertation, U.S.T. Graduate School of Law, 1987, p. 321). ( Emphasis supplied)

A critical aspect of sovereign debt restructuring/contract construction is the set of terms and conditions which determines the contractual remedies for a failure to perform one or more elements of the contract. A good agreement must not only define the responsibilities of both parties, but must also state the recourse open to either party when the other fails to discharge an obligation. For a compleat debt restructuring represents a devotion to that principle which in the ultimate analysis is sine qua non for foreign loan agreements-an adherence to the rule of law in domestic and international affairs of whose kind U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. once said: "They carry no banners, they beat no drums; but where they are, men learn that bustle and bush are not the equal of quiet genius and serene mastery." (See Ricardo J. Romulo, "The Role of Lawyers in Foreign Investments," Integrated Bar of the Philippine Journal, Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265).

Interpreted in the light of the various definitions of the term Practice of law". particularly the modern concept of law practice, and taking into consideration the liberal construction intended by the framers of the Constitution, Atty. Monsod's past work experiences as a lawyer-economist, a lawyer-manager, a lawyerentrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both the rich and the poor verily more than satisfy the constitutional requirement that he has been engaged in the practice of law for at least ten years.

Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court said:

Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide. (emphasis supplied)

No less emphatic was the Court in the case of (Central Bank v. Civil Service Commission, 171 SCRA 744) where it stated:

It is well-settled that when the appointee is qualified, as in this case, and all the other legal requirements are satisfied, the Commission has no alternative but to attest to the appointment in accordance with the Civil Service Law. The Commission has no authority to revoke an appointment on the ground that another person is more qualified for a particular position. It also has no authority to direct the appointment of a substitute of its choice. To do so would be an encroachment on the discretion vested upon the appointing authority. An appointment is essentially within the discretionary power of whomsoever it is vested, subject to the only condition that the appointee should possess the qualifications required by law. ( Emphasis supplied)

The appointing process in a regular appointment as in the case at bar, consists of four (4) stages: (1) nomination; (2) confirmation by the Commission on Appointments; (3) issuance of a commission (in the Philippines, upon submission by the Commission on Appointments of its certificate of confirmation, the President issues the permanent appointment; and (4) acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson v. Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers, p. 200)

The power of the Commission on Appointments to give its consent to the nomination of Monsod as Chairman of the Commission on Elections is mandated by Section 1(2) Sub-Article C, Article IX of the Constitution which provides:

The Chairman and the Commisioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity.

Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition of the practice of law is the traditional or stereotyped notion of law practice, as distinguished from the modern concept of the practice of law, which modern connotation is exactly what was intended by the eminent framers of the 1987 Constitution. Moreover, Justice Padilla's definition would require generally a habitual law practice, perhaps practised two or three times a week and would outlaw say, law practice once or twice a year for ten consecutive years. Clearly, this is far from the constitutional intent.

Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written opinion, I made use of a definition of law practice which really means nothing because the definition says that law practice " . . . is what people ordinarily mean by the practice of law." True I cited the definition but only by way of sarcasm as evident from my statement that the definition of law practice by "traditional areas of law practice is essentially tautologous" or defining a phrase by means of the phrase itself that is being defined.

Justice Cruz goes on to say in substance that since the law covers almost all situations, most individuals, in making use of the law, or in advising others on what the law means, are actually practicing law. In that sense,

perhaps, but we should not lose sight of the fact that Mr. Monsod is a lawyer, a member of the Philippine Bar, who has been practising law for over ten years. This is different from the acts of persons practising law, without first becoming lawyers.

Justice Cruz also says that the Supreme Court can even disqualify an elected President of the Philippines, say, on the ground that he lacks one or more qualifications. This matter, I greatly doubt. For one thing, how can an action or petition be brought against the President? And even assuming that he is indeed disqualified, how can the action be entertained since he is the incumbent President?

We now proceed:

The Commission on the basis of evidence submitted doling the public hearings on Monsod's confirmation, implicitly determined that he possessed the necessary qualifications as required by law. The judgment rendered by the Commission in the exercise of such an acknowledged power is beyond judicial interference except only upon a clear showing of a grave abuse of discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of discretion is clearly shown shall the Court interfere with the Commission's judgment. In the instant case, there is no occasion for the exercise of the Court's corrective power, since no abuse, much less a grave abuse of discretion, that would amount to lack or excess of jurisdiction and would warrant the issuance of the writs prayed, for has been clearly shown.

Additionally, consider the following:

(1) If the Commission on Appointments rejects a nominee by the President, may the Supreme Court reverse the Commission, and thus in effect confirm the appointment? Clearly, the answer is in the negative.

(2) In the same vein, may the Court reject the nominee, whom the Commission has confirmed? The answer is likewise clear.

(3) If the United States Senate (which is the confirming body in the U.S. Congress) decides to confirm a Presidential nominee, it would be incredible that the U.S. Supreme Court would still reverse the U.S. Senate.

Finally, one significant legal maxim is:

We must interpret not by the letter that killeth, but by the spirit that giveth life.

Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah (who was Samson's beloved) for help in capturing Samson. Delilah agreed on condition that

No blade shall touch his skin;

No blood shall flow from his veins.

When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod burning white-hot two or three inches away from in front of Samson's eyes. This blinded the man. Upon hearing of what had happened to her beloved, Delilah was beside herself with anger, and fuming with righteous fury, accused the procurator of reneging on his word. The procurator calmly replied: "Did any blade touch his skin? Did any blood flow from his veins?" The procurator was clearly relying on the letter, not the spirit of the agreement.

In view of the foregoing, this petition is hereby DISMISSED.

SO ORDERED.

Fernan, C.J., Grio-Aquino and Medialdea, JJ., concur.

Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.)

Sarmiento, J., is on leave.

Regalado, and Davide, Jr., J., took no part.

Separate Opinions

NARVASA, J., concurring:

I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it does not appear to me that there has been an adequate showing that the challenged determination by the Commission on Appointments-that the appointment of respondent Monsod as Chairman of the Commission on Elections should, on the basis of his stated qualifications and after due assessment thereof, be confirmed-was attended by error so gross as to amount to grave abuse of discretion and consequently merits nullification by this Court in accordance with the second paragraph of Section 1, Article VIII of the Constitution. I therefore vote to DENY the petition.

PADILLA, J., dissenting:

The records of this case will show that when the Court first deliberated on the Petition at bar, I voted not only to require the respondents to comment on the Petition, but I was the sole vote for the issuance of a temporary restraining order to enjoin respondent Monsod from assuming the position of COMELEC Chairman, while the Court deliberated on his constitutional qualification for the office. My purpose in voting for a TRO was to prevent the inconvenience and even embarrassment to all parties concerned were the Court to finally decide for respondent Monsod's disqualification. Moreover, a reading of the Petition then in relation to established jurisprudence already showed prima facie that respondent Monsod did not possess the needed qualification, that is, he had not engaged in the practice of law for at least ten (10) years prior to his appointment as COMELEC Chairman.

After considering carefully respondent Monsod's comment, I am even more convinced that the constitutional requirement of "practice of law for at least ten (10) years" has not been met.

The procedural barriers interposed by respondents deserve scant consideration because, ultimately, the core issue to be resolved in this petition is the proper construal of the constitutional provision requiring a majority of the membership of COMELEC, including the Chairman thereof to "have been engaged in the practice of law for at least ten (10) years." (Art. IX(C), Section 1(1), 1987 Constitution). Questions involving the construction of constitutional provisions are best left to judicial resolution. As declared in Angara v. Electoral Commission, (63 Phil. 139) "upon the judicial department is thrown the solemn and inescapable obligation of interpreting the Constitution and defining constitutional boundaries."

The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among these are that he must have been "engaged in the practice of law for at least ten (10) years." It is the bounden duty of this Court to ensure that such standard is met and complied with.

What constitutes practice of law? As commonly understood, "practice" refers to the actual performance or application of knowledge as distinguished from mere possession of knowledge; it connotes an active, habitual, repeated or customary action. 1 To "practice" law, or any profession for that matter, means, to exercise or pursue an employment or profession actively, habitually, repeatedly or customarily.

Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a nursing aide, cannot be said to be in the "practice of medicine." A certified public accountant who works as a clerk, cannot be said to practice his profession as an accountant. In the same way, a lawyer who is employed as a business executive or a corporate manager, other than as head or attorney of a Legal Department of a corporation or a governmental agency, cannot be said to be in the practice of law.

As aptly held by this Court in the case of People vs. Villanueva: 2

Practice is more than an isolated appearance for it consists in frequent or customary actions, a succession of acts of the same kind. In other words, it is frequent habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public as a lawyer and demanding payment for such services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis supplied).

It is worth mentioning that the respondent Commission on Appointments in a Memorandum it prepared, enumerated several factors determinative of whether a particular activity constitutes "practice of law." It states:

1. Habituality. The term "practice of law" implies customarily or habitually holding one's self out to the public as a lawyer (People vs. Villanueva, 14 SCRA 109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the establishment of a law office for the general practice of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a notary public, and files a manifestation with the Supreme Court informing it of his intention to practice law in all courts in the country (People v. De Luna, 102 Phil. 968).

Practice is more than an isolated appearance for it consists in frequent or customary action, a succession of acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 109 citing State v. Cotner, 127, p. 1, 87 Kan, 864).

2. Compensation. Practice of law implies that one must have presented himself to be in the active and continued practice of the legal profession and that his professional services are available to the public for compensation, as a service of his livelihood or in consideration of his said services. (People v. Villanueva, supra). Hence, charging for services such as preparation of documents involving the use of legal knowledge and skill is within the term "practice of law" (Ernani Pao, Bar Reviewer in Legal and Judicial Ethics, 1988 ed., p. 8 citing People v. People's Stockyards State Bank, 176 N.B. 901) and, one who renders an opinion as to the proper interpretation of a statute, and receives pay for it, is to that extent, practicing law (Martin, supra, p. 806 citing Mendelaun v. Gilbert and Barket Mfg. Co., 290 N.Y.S. 462) If compensation is expected, all advice to

clients and all action taken for them in matters connected with the law; are practicing law. (Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-359)

3. Application of law legal principle practice or procedure which calls for legal knowledge, training and experience is within the term "practice of law". (Martin supra)

4. Attorney-client relationship. Engaging in the practice of law presupposes the existence of lawyer-client relationship. Hence, where a lawyer undertakes an activity which requires knowledge of law but involves no attorney-client relationship, such as teaching law or writing law books or articles, he cannot be said to be engaged in the practice of his profession or a lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30). 3

The above-enumerated factors would, I believe, be useful aids in determining whether or not respondent Monsod meets the constitutional qualification of practice of law for at least ten (10) years at the time of his appointment as COMELEC Chairman.

The following relevant questions may be asked:

1.

Did respondent Monsod perform any of the tasks which are peculiar to the practice of law?

2.

Did respondent perform such tasks customarily or habitually?

3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his appointment as COMELEC Chairman?

Given the employment or job history of respondent Monsod as appears from the records, I am persuaded that if ever he did perform any of the tasks which constitute the practice of law, he did not do so HABITUALLY for at least ten (10) years prior to his appointment as COMELEC Chairman.

While it may be granted that he performed tasks and activities which could be latitudinarianly considered activities peculiar to the practice of law, like the drafting of legal documents and the rendering of legal opinion or advice, such were isolated transactions or activities which do not qualify his past endeavors as "practice of law." To become engaged in the practice of law, there must be a continuity, or a succession of acts. As observed by the Solicitor General in People vs. Villanueva: 4

Essentially, the word private practice of law implies that one must have presented himself to be in the active and continued practice of the legal profession and that his professional services are available to the public for a compensation, as a source of his livelihood or in consideration of his said services.

ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not qualified for the position of COMELEC Chairman for not having engaged in the practice of law for at least ten (10) years prior to his appointment to such position.

CRUZ, J., dissenting:

I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same. There are certain points on which I must differ with him while of course respecting hisviewpoint.

To begin with, I do not think we are inhibited from examining the qualifications of the respondent simply because his nomination has been confirmed by the Commission on Appointments. In my view, this is not a political question that we are barred from resolving. Determination of the appointee's credentials is made on the basis of the established facts, not the discretion of that body. Even if it were, the exercise of that discretion would still be subject to our review.

In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing authority to choose between two claimants to the same office who both possessed the required qualifications. It was that kind of discretion that we said could not be reviewed.

If a person elected by no less than the sovereign people may be ousted by this Court for lack of the required qualifications, I see no reason why we cannot disqualified an appointee simply because he has passed the Commission on Appointments.

Even the President of the Philippines may be declared ineligible by this Court in an appropriate proceeding notwithstanding that he has been found acceptable by no less than the enfranchised citizenry. The reason is that what we would be examining is not the wisdom of his election but whether or not he was qualified to be elected in the first place.

Coming now to the qualifications of the private respondent, I fear that the ponencia may have been too sweeping in its definition of the phrase "practice of law" as to render the qualification practically toothless. From the numerous activities accepted as embraced in the term, I have the uncomfortable feeling that one does not even have to be a lawyer to be engaged in the practice of law as long as his activities involve the

application of some law, however peripherally. The stock broker and the insurance adjuster and the realtor could come under the definition as they deal with or give advice on matters that are likely "to become involved in litigation."

The lawyer is considered engaged in the practice of law even if his main occupation is another business and he interprets and applies some law only as an incident of such business. That covers every company organized under the Corporation Code and regulated by the SEC under P.D. 902-A. Considering the ramifications of the modern society, there is hardly any activity that is not affected by some law or government regulation the businessman must know about and observe. In fact, again going by the definition, a lawyer does not even have to be part of a business concern to be considered a practitioner. He can be so deemed when, on his own, he rents a house or buys a car or consults a doctor as these acts involve his knowledge and application of the laws regulating such transactions. If he operates a public utility vehicle as his main source of livelihood, he would still be deemed engaged in the practice of law because he must obey the Public Service Act and the rules and regulations of the Energy Regulatory Board.

The ponencia quotes an American decision defining the practice of law as the "performance of any acts ... in or out of court, commonly understood to be the practice of law," which tells us absolutely nothing. The decision goes on to say that "because lawyers perform almost every function known in the commercial and governmental realm, such a definition would obviously be too global to be workable."

The effect of the definition given in the ponencia is to consider virtually every lawyer to be engaged in the practice of law even if he does not earn his living, or at least part of it, as a lawyer. It is enough that his activities are incidentally (even if only remotely) connected with some law, ordinance, or regulation. The possible exception is the lawyer whose income is derived from teaching ballroom dancing or escorting wrinkled ladies with pubescent pretensions.

The respondent's credentials are impressive, to be sure, but they do not persuade me that he has been engaged in the practice of law for ten years as required by the Constitution. It is conceded that he has been engaged in business and finance, in which areas he has distinguished himself, but as an executive and economist and not as a practicing lawyer. The plain fact is that he has occupied the various positions listed in his resume by virtue of his experience and prestige as a businessman and not as an attorney-at-law whose principal attention is focused on the law. Even if it be argued that he was acting as a lawyer when he lobbied in Congress for agrarian and urban reform, served in the NAMFREL and the Constitutional Commission (together with non-lawyers like farmers and priests) and was a member of the Davide Commission, he has not proved that his activities in these capacities extended over the prescribed 10-year period of actual practice of the law. He is doubtless eminently qualified for many other positions worthy of his abundant talents but not as Chairman of the Commission on Elections.

I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must regretfully vote to grant the petition.

GUTIERREZ, JR., J., dissenting:

When this petition was filed, there was hope that engaging in the practice of law as a qualification for public office would be settled one way or another in fairly definitive terms. Unfortunately, this was not the result.

Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the practice of law (with one of these 5 leaving his vote behind while on official leave but not expressing his clear stand on the matter); 4 categorically stating that he did not practice law; 2 voting in the result because there was no error so gross as to amount to grave abuse of discretion; one of official leave with no instructions left behind on how he viewed the issue; and 2 not taking part in the deliberations and the decision.

There are two key factors that make our task difficult. First is our reviewing the work of a constitutional Commission on Appointments whose duty is precisely to look into the qualifications of persons appointed to high office. Even if the Commission errs, we have no power to set aside error. We can look only into grave abuse of discretion or whimsically and arbitrariness. Second is our belief that Mr. Monsod possesses superior qualifications in terms of executive ability, proficiency in management, educational background, experience in international banking and finance, and instant recognition by the public. His integrity and competence are not questioned by the petitioner. What is before us is compliance with a specific requirement written into the Constitution.

Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never engaged in the practice of law for even one year. He is a member of the bar but to say that he has practiced law is stretching the term beyond rational limits.

A person may have passed the bar examinations. But if he has not dedicated his life to the law, if he has not engaged in an activity where membership in the bar is a requirement I fail to see how he can claim to have been engaged in the practice of law.

Engaging in the practice of law is a qualification not only for COMELEC chairman but also for appointment to the Supreme Court and all lower courts. What kind of Judges or Justices will we have if there main occupation is selling real estate, managing a business corporation, serving in fact-finding committee, working in media, or operating a farm with no active involvement in the law, whether in Government or private practice, except that in one joyful moment in the distant past, they happened to pass the bar examinations?

The Constitution uses the phrase "engaged in the practice of law for at least ten years." The deliberate choice of words shows that the practice envisioned is active and regular, not isolated, occasional, accidental,

intermittent, incidental, seasonal, or extemporaneous. To be "engaged" in an activity for ten years requires committed participation in something which is the result of one's decisive choice. It means that one is occupied and involved in the enterprise; one is obliged or pledged to carry it out with intent and attention during the ten-year period.

I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the Commission on Appointments, the latter has not been engaged in the practice of law for at least ten years. In fact, if appears that Mr. Monsod has never practiced law except for an alleged one year period after passing the bar examinations when he worked in his father's law firm. Even then his law practice must have been extremely limited because he was also working for M.A. and Ph. D. degrees in Economics at the University of Pennsylvania during that period. How could he practice law in the United States while not a member of the Bar there?

The professional life of the respondent follows:

1.15.1. Respondent Monsod's activities since his passing the Bar examinations in 1961 consist of the following:

1.

1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania

2. 1963-1970: World Bank Group Economist, Industry Department; Operations, Latin American Department; Division Chief, South Asia and Middle East, International Finance Corporation

3. 1970-1973: Meralco Group Executive of various companies, i.e., Meralco Securities Corporation, Philippine Petroleum Corporation, Philippine Electric Corporation

4.

1973-1976: Yujuico Group President, Fil-Capital Development Corporation and affiliated companies

5.

1976-1978: Finaciera Manila Chief Executive Officer

6.

1978-1986: Guevent Group of Companies Chief Executive Officer

7.

1986-1987: Philippine Constitutional Commission Member

8.

1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt Member

9.

Presently: Chairman of the Board and Chief Executive Officer of the following companies:

a.

ACE Container Philippines, Inc.

b.

Dataprep, Philippines

c.

Philippine SUNsystems Products, Inc.

d.

Semirara Coal Corporation

e.

CBL Timber Corporation

Member of the Board of the Following:

a.

Engineering Construction Corporation of the Philippines

b.

First Philippine Energy Corporation

c.

First Philippine Holdings Corporation

d.

First Philippine Industrial Corporation

e.

Graphic Atelier

f.

Manila Electric Company

g.

Philippine Commercial Capital, Inc.

h.

Philippine Electric Corporation

i.

Tarlac Reforestation and Environment Enterprises

j.

Tolong Aquaculture Corporation

k.

Visayan Aquaculture Corporation

l.

Guimaras Aquaculture Corporation (Rollo, pp. 21-22)

There is nothing in the above bio-data which even remotely indicates that respondent Monsod has given the law enough attention or a certain degree of commitment and participation as would support in all sincerity and candor the claim of having engaged in its practice for at least ten years. Instead of working as a lawyer, he has lawyers working for him. Instead of giving receiving that legal advice of legal services, he was the oneadvice and those services as an executive but not as a lawyer.

The deliberations before the Commission on Appointments show an effort to equate "engaged in the practice of law" with the use of legal knowledge in various fields of endeavor such as commerce, industry, civic work, blue ribbon investigations, agrarian reform, etc. where such knowledge would be helpful.

I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman accepts as having a familiar and customary well-defined meaning. Every resident of this country who has reached the age of discernment has to know, follow, or apply the law at various times in his life. Legal knowledge is useful if not necessary for the business executive, legislator, mayor, barangay captain, teacher, policeman, farmer, fisherman, market vendor, and student to name only a few. And yet, can these people honestly assert that as such, they are engaged in the practice of law?

The Constitution requires having been "engaged in the practice of law for at least ten years." It is not satisfied with having been "a member of the Philippine bar for at least ten years."

Some American courts have defined the practice of law, as follows:

The practice of law involves not only appearance in court in connection with litigation but also services rendered out of court, and it includes the giving of advice or the rendering of any services requiring the use of legal skill or knowledge, such as preparing a will, contract or other instrument, the legal effect of which, under the facts and conditions involved, must be carefully determined. People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d 693; People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901, and cases cited.

It would be difficult, if not impossible to lay down a formula or definition of what constitutes the practice of law. "Practicing law" has been defined as "Practicing as an attorney or counselor at law according to the laws and customs of our courts, is the giving of advice or rendition of any sort of service by any person, firm or corporation when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill." Without adopting that definition, we referred to it as being substantially correct in People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901. (People v. Schafer, 87 N.E. 2d 773, 776)

For one's actions to come within the purview of practice of law they should not only be activities peculiar to the work of a lawyer, they should also be performed, habitually, frequently or customarily, to wit:

xxx

xxx

xxx

Respondent's answers to questions propounded to him were rather evasive. He was asked whether or not he ever prepared contracts for the parties in real-estate transactions where he was not the procuring agent. He answered: "Very seldom." In answer to the question as to how many times he had prepared contracts for the parties during the twenty-one years of his business, he said: "I have no Idea." When asked if it would be more than half a dozen times his answer was I suppose. Asked if he did not recall making the statement to several parties that he had prepared contracts in a large number of instances, he answered: "I don't recall exactly what was said." When asked if he did not remember saying that he had made a practice of preparing deeds, mortgages and contracts and charging a fee to the parties therefor in instances where he was not the broker in the deal, he answered: "Well, I don't believe so, that is not a practice." Pressed further for an answer as to his practice in preparing contracts and deeds for parties where he was not the broker, he finally answered: "I have done about everything that is on the books as far as real estate is concerned."

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xxx

Respondent takes the position that because he is a real-estate broker he has a lawful right to do any legal work in connection with real-estate transactions, especially in drawing of real-estate contracts, deeds,

mortgages, notes and the like. There is no doubt but that he has engaged in these practices over the years and has charged for his services in that connection. ... (People v. Schafer, 87 N.E. 2d 773)

xxx

xxx

xxx

... An attorney, in the most general sense, is a person designated or employed by another to act in his stead; an agent; more especially, one of a class of persons authorized to appear and act for suitors or defendants in legal proceedings. Strictly, these professional persons are attorneys at law, and non-professional agents are properly styled "attorney's in fact;" but the single word is much used as meaning an attorney at law. A person may be an attorney in facto for another, without being an attorney at law. Abb. Law Dict. "Attorney." A public attorney, or attorney at law, says Webster, is an officer of a court of law, legally qualified to prosecute and defend actions in such court on the retainer of clients. "The principal duties of an attorney are (1) to be true to the court and to his client; (2) to manage the business of his client with care, skill, and integrity; (3) to keep his client informed as to the state of his business; (4) to keep his secrets confided to him as such. ... His rights are to be justly compensated for his services." Bouv. Law Dict. tit. "Attorney." The transitive verb "practice," as defined by Webster, means 'to do or perform frequently, customarily, or habitually; to perform by a succession of acts, as, to practice gaming, ... to carry on in practice, or repeated action; to apply, as a theory, to real life; to exercise, as a profession, trade, art. etc.; as, to practice law or medicine,' etc...." (State v. Bryan, S.E. 522, 523; Emphasis supplied)

In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of acts. Thus, we stated in the case of People v. Villanueva (14 SCRA 109 [1965]):

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... Practice is more than an isolated appearance, for it consists in frequent or customary actions, a succession of acts of the same kind. In other words, it is frequent habitual exercise (State v. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public, as a lawyer and demanding payment for such services. ... . (at p. 112)

It is to be noted that the Commission on Appointment itself recognizes habituality as a required component of the meaning of practice of law in a Memorandum prepared and issued by it, to wit:

l. Habituality. The term 'practice of law' implies customarilyor habitually holding one's self out to the public as a lawyer (People v. Villanueva, 14 SCRA 109 citing State v. Bryan, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the establishment of a law office for the general practice of law (U.S. v. Noy Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a notary public, and files a

manifestation with the Supreme Court informing it of his intention to practice law in all courts in the country (People v. De Luna, 102 Phil. 968).

Practice is more than an isolated appearance, for it consists in frequent or customary action, a succession of acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 1 09 citing State v. Cotner, 1 27, p. 1, 87 Kan, 864)." (Rollo, p. 115)

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While the career as a businessman of respondent Monsod may have profited from his legal knowledge, the use of such legal knowledge is incidental and consists of isolated activities which do not fall under the denomination of practice of law. Admission to the practice of law was not required for membership in the Constitutional Commission or in the Fact-Finding Commission on the 1989 Coup Attempt. Any specific legal activities which may have been assigned to Mr. Monsod while a member may be likened to isolated transactions of foreign corporations in the Philippines which do not categorize the foreign corporations as doing business in the Philippines. As in the practice of law, doing business also should be active and continuous. Isolated business transactions or occasional, incidental and casual transactions are not within the context of doing business. This was our ruling in the case of Antam Consolidated, Inc. v. Court of appeals, 143 SCRA 288 [1986]).

Respondent Monsod, corporate executive, civic leader, and member of the Constitutional Commission may possess the background, competence, integrity, and dedication, to qualify for such high offices as President, Vice-President, Senator, Congressman or Governor but the Constitution in prescribing the specific qualification of having engaged in the practice of law for at least ten (10) years for the position of COMELEC Chairman has ordered that he may not be confirmed for that office. The Constitution charges the public respondents no less than this Court to obey its mandate.

I, therefore, believe that the Commission on Appointments committed grave abuse of discretion in confirming the nomination of respondent Monsod as Chairman of the COMELEC.

I vote to GRANT the petition.

Bidin, J., dissent

Separate Opinions

NARVASA, J., concurring:

I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it does not appear to me that there has been an adequate showing that the challenged determination by the Commission on Appointments-that the appointment of respondent Monsod as Chairman of the Commission on Elections should, on the basis of his stated qualifications and after due assessment thereof, be confirmed-was attended by error so gross as to amount to grave abuse of discretion and consequently merits nullification by this Court in accordance with the second paragraph of Section 1, Article VIII of the Constitution. I therefore vote to DENY the petition.

Melencio-Herrera, J., concur.

PADILLA, J., dissenting:

The records of this case will show that when the Court first deliberated on the Petition at bar, I voted not only to require the respondents to comment on the Petition, but I was the sole vote for the issuance of a temporary restraining order to enjoin respondent Monsod from assuming the position of COMELEC Chairman, while the Court deliberated on his constitutional qualification for the office. My purpose in voting for a TRO was to prevent the inconvenience and even embarrassment to all parties concerned were the Court to finally decide for respondent Monsod's disqualification. Moreover, a reading of the Petition then in relation to established jurisprudence already showed prima facie that respondent Monsod did not possess the needed qualification, that is, he had not engaged in the practice of law for at least ten (10) years prior to his appointment as COMELEC Chairman.

After considering carefully respondent Monsod's comment, I am even more convinced that the constitutional requirement of "practice of law for at least ten (10) years" has not been met.

The procedural barriers interposed by respondents deserve scant consideration because, ultimately, the core issue to be resolved in this petition is the proper construal of the constitutional provision requiring a majority of the membership of COMELEC, including the Chairman thereof to "have been engaged in the practice of law for at least ten (10) years." (Art. IX(C), Section 1(1), 1987 Constitution). Questions involving the construction of constitutional provisions are best left to judicial resolution. As declared in Angara v. Electoral Commission, (63 Phil. 139) "upon the judicial department is thrown the solemn and inescapable obligation of interpreting the Constitution and defining constitutional boundaries."

The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among these are that he must have been "engaged in the practice of law for at least ten (10) years." It is the bounden duty of this Court to ensure that such standard is met and complied with.

What constitutes practice of law? As commonly understood, "practice" refers to the actual performance or application of knowledge as distinguished from mere possession of knowledge; it connotes an active, habitual, repeated or customary action. 1 To "practice" law, or any profession for that matter, means, to exercise or pursue an employment or profession actively, habitually, repeatedly or customarily.

Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a nursing aide, cannot be said to be in the "practice of medicine." A certified public accountant who works as a clerk, cannot be said to practice his profession as an accountant. In the same way, a lawyer who is employed as a business executive or a corporate manager, other than as head or attorney of a Legal Department of a corporation or a governmental agency, cannot be said to be in the practice of law.

As aptly held by this Court in the case of People vs. Villanueva: 2

Practice is more than an isolated appearance for it consists in frequent or customary actions, a succession of acts of the same kind. In other words, it is frequent habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public as a lawyer and demanding payment for such services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis supplied).

It is worth mentioning that the respondent Commission on Appointments in a Memorandum it prepared, enumerated several factors determinative of whether a particular activity constitutes "practice of law." It states:

1. Habituality. The term "practice of law" implies customarily or habitually holding one's self out to the public as a lawyer (People vs. Villanueva, 14 SCRA 109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the establishment of a law office for the general practice of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a notary public, and files a manifestation with the Supreme Court informing it of his intention to practice law in all courts in the country (People v. De Luna, 102 Phil. 968).

Practice is more than an isolated appearance for it consists in frequent or customary action, a succession of acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 109 citing State v. Cotner, 127, p. 1, 87 Kan, 864).

2. Compensation. Practice of law implies that one must have presented himself to be in the active and continued practice of the legal profession and that his professional services are available to the public for compensation, as a service of his livelihood or in consideration of his said services. (People v. Villanueva, supra). Hence, charging for services such as preparation of documents involving the use of legal knowledge and skill is within the term "practice of law" (Ernani Pao, Bar Reviewer in Legal and Judicial Ethics, 1988 ed., p. 8 citing People v. People's Stockyards State Bank, 176 N.B. 901) and, one who renders an opinion as to the proper interpretation of a statute, and receives pay for it, is to that extent, practicing law (Martin, supra, p. 806 citing Mendelaun v. Gilbert and Barket Mfg. Co., 290 N.Y.S. 462) If compensation is expected, all advice to clients and all action taken for them in matters connected with the law; are practicing law. (Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-359)

3. Application of law legal principle practice or procedure which calls for legal knowledge, training and experience is within the term "practice of law". (Martin supra)

4. Attorney-client relationship. Engaging in the practice of law presupposes the existence of lawyer-client relationship. Hence, where a lawyer undertakes an activity which requires knowledge of law but involves no attorney-client relationship, such as teaching law or writing law books or articles, he cannot be said to be engaged in the practice of his profession or a lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30). 3

The above-enumerated factors would, I believe, be useful aids in determining whether or not respondent Monsod meets the constitutional qualification of practice of law for at least ten (10) years at the time of his appointment as COMELEC Chairman.

The following relevant questions may be asked:

1.

Did respondent Monsod perform any of the tasks which are peculiar to the practice of law?

2.

Did respondent perform such tasks customarily or habitually?

3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his appointment as COMELEC Chairman?

Given the employment or job history of respondent Monsod as appears from the records, I am persuaded that if ever he did perform any of the tasks which constitute the practice of law, he did not do so HABITUALLY for at least ten (10) years prior to his appointment as COMELEC Chairman.

While it may be granted that he performed tasks and activities which could be latitudinarianly considered activities peculiar to the practice of law, like the drafting of legal documents and the rendering of legal opinion or advice, such were isolated transactions or activities which do not qualify his past endeavors as "practice of law." To become engaged in the practice of law, there must be a continuity, or a succession of acts. As observed by the Solicitor General in People vs. Villanueva: 4

Essentially, the word private practice of law implies that one must have presented himself to be in the active and continued practice of the legal profession and that his professional services are available to the public for a compensation, as a source of his livelihood or in consideration of his said services.

ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not qualified for the position of COMELEC Chairman for not having engaged in the practice of law for at least ten (10) years prior to his appointment to such position.

CRUZ, J., dissenting:

I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same. There are certain points on which I must differ with him while of course respecting hisviewpoint.

To begin with, I do not think we are inhibited from examining the qualifications of the respondent simply because his nomination has been confirmed by the Commission on Appointments. In my view, this is not a political question that we are barred from resolving. Determination of the appointee's credentials is made on the basis of the established facts, not the discretion of that body. Even if it were, the exercise of that discretion would still be subject to our review.

In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing authority to choose between two claimants to the same office who both possessed the required qualifications. It was that kind of discretion that we said could not be reviewed.

If a person elected by no less than the sovereign people may be ousted by this Court for lack of the required qualifications, I see no reason why we cannot disqualified an appointee simply because he has passed the Commission on Appointments.

Even the President of the Philippines may be declared ineligible by this Court in an appropriate proceeding notwithstanding that he has been found acceptable by no less than the enfranchised citizenry. The reason is

that what we would be examining is not the wisdom of his election but whether or not he was qualified to be elected in the first place.

Coming now to the qualifications of the private respondent, I fear that the ponencia may have been too sweeping in its definition of the phrase "practice of law" as to render the qualification practically toothless. From the numerous activities accepted as embraced in the term, I have the uncomfortable feeling that one does not even have to be a lawyer to be engaged in the practice of law as long as his activities involve the application of some law, however peripherally. The stock broker and the insurance adjuster and the realtor could come under the definition as they deal with or give advice on matters that are likely "to become involved in litigation."

The lawyer is considered engaged in the practice of law even if his main occupation is another business and he interprets and applies some law only as an incident of such business. That covers every company organized under the Corporation Code and regulated by the SEC under P.D. 902-A. Considering the ramifications of the modern society, there is hardly any activity that is not affected by some law or government regulation the businessman must know about and observe. In fact, again going by the definition, a lawyer does not even have to be part of a business concern to be considered a practitioner. He can be so deemed when, on his own, he rents a house or buys a car or consults a doctor as these acts involve his knowledge and application of the laws regulating such transactions. If he operates a public utility vehicle as his main source of livelihood, he would still be deemed engaged in the practice of law because he must obey the Public Service Act and the rules and regulations of the Energy Regulatory Board.

The ponencia quotes an American decision defining the practice of law as the "performance of any acts . . . in or out of court, commonly understood to be the practice of law," which tells us absolutely nothing. The decision goes on to say that "because lawyers perform almost every function known in the commercial and governmental realm, such a definition would obviously be too global to be workable."

The effect of the definition given in the ponencia is to consider virtually every lawyer to be engaged in the practice of law even if he does not earn his living, or at least part of it, as a lawyer. It is enough that his activities are incidentally (even if only remotely) connected with some law, ordinance, or regulation. The possible exception is the lawyer whose income is derived from teaching ballroom dancing or escorting wrinkled ladies with pubescent pretensions.

The respondent's credentials are impressive, to be sure, but they do not persuade me that he has been engaged in the practice of law for ten years as required by the Constitution. It is conceded that he has been engaged in business and finance, in which areas he has distinguished himself, but as an executive and economist and not as a practicing lawyer. The plain fact is that he has occupied the various positions listed in his resume by virtue of his experience and prestige as a businessman and not as an attorney-at-law whose principal attention is focused on the law. Even if it be argued that he was acting as a lawyer when he lobbied in Congress for agrarian and urban reform, served in the NAMFREL and the Constitutional Commission

(together with non-lawyers like farmers and priests) and was a member of the Davide Commission, he has not proved that his activities in these capacities extended over the prescribed 10-year period of actual practice of the law. He is doubtless eminently qualified for many other positions worthy of his abundant talents but not as Chairman of the Commission on Elections.

I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must regretfully vote to grant the petition.

GUTIERREZ, JR., J., dissenting:

When this petition was filed, there was hope that engaging in the practice of law as a qualification for public office would be settled one way or another in fairly definitive terms. Unfortunately, this was not the result.

Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the practice of law (with one of these 5 leaving his vote behind while on official leave but not expressing his clear stand on the matter); 4 categorically stating that he did not practice law; 2 voting in the result because there was no error so gross as to amount to grave abuse of discretion; one of official leave with no instructions left behind on how he viewed the issue; and 2 not taking part in the deliberations and the decision.

There are two key factors that make our task difficult. First is our reviewing the work of a constitutional Commission on Appointments whose duty is precisely to look into the qualifications of persons appointed to high office. Even if the Commission errs, we have no power to set aside error. We can look only into grave abuse of discretion or whimsically and arbitrariness. Second is our belief that Mr. Monsod possesses superior qualifications in terms of executive ability, proficiency in management, educational background, experience in international banking and finance, and instant recognition by the public. His integrity and competence are not questioned by the petitioner. What is before us is compliance with a specific requirement written into the Constitution.

Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never engaged in the practice of law for even one year. He is a member of the bar but to say that he has practiced law is stretching the term beyond rational limits.

A person may have passed the bar examinations. But if he has not dedicated his life to the law, if he has not engaged in an activity where membership in the bar is a requirement I fail to see how he can claim to have been engaged in the practice of law.

Engaging in the practice of law is a qualification not only for COMELEC chairman but also for appointment to the Supreme Court and all lower courts. What kind of Judges or Justices will we have if there main occupation is selling real estate, managing a business corporation, serving in fact-finding committee, working in media, or operating a farm with no active involvement in the law, whether in Government or private practice, except that in one joyful moment in the distant past, they happened to pass the bar examinations?

The Constitution uses the phrase "engaged in the practice of law for at least ten years." The deliberate choice of words shows that the practice envisioned is active and regular, not isolated, occasional, accidental, intermittent, incidental, seasonal, or extemporaneous. To be "engaged" in an activity for ten years requires committed participation in something which is the result of one's decisive choice. It means that one is occupied and involved in the enterprise; one is obliged or pledged to carry it out with intent and attention during the ten-year period.

I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the Commission on Appointments, the latter has not been engaged in the practice of law for at least ten years. In fact, if appears that Mr. Monsod has never practiced law except for an alleged one year period after passing the bar examinations when he worked in his father's law firm. Even then his law practice must have been extremely limited because he was also working for M.A. and Ph. D. degrees in Economics at the University of Pennsylvania during that period. How could he practice law in the United States while not a member of the Bar there?

The professional life of the respondent follows:

1.15.1. Respondent Monsod's activities since his passing the Bar examinations in 1961 consist of the following:

1.

1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania

2. 1963-1970: World Bank Group Economist, Industry Department; Operations, Latin American Department; Division Chief, South Asia and Middle East, International Finance Corporation

3. 1970-1973: Meralco Group Executive of various companies, i.e., Meralco Securities Corporation, Philippine Petroleum Corporation, Philippine Electric Corporation

4.

1973-1976: Yujuico Group President, Fil-Capital Development Corporation and affiliated companies

5.

1976-1978: Finaciera Manila Chief Executive Officer

6.

1978-1986: Guevent Group of Companies Chief Executive Officer

7.

1986-1987: Philippine Constitutional Commission Member

8.

1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt Member

9.

Presently: Chairman of the Board and Chief Executive Officer of the following companies:

a.

ACE Container Philippines, Inc.

b.

Dataprep, Philippines

c.

Philippine SUNsystems Products, Inc.

d.

Semirara Coal Corporation

e.

CBL Timber Corporation

Member of the Board of the Following:

a.

Engineering Construction Corporation of the Philippines

b.

First Philippine Energy Corporation

c.

First Philippine Holdings Corporation

d.

First Philippine Industrial Corporation

e.

Graphic Atelier

f.

Manila Electric Company

g.

Philippine Commercial Capital, Inc.

h.

Philippine Electric Corporation

i.

Tarlac Reforestation and Environment Enterprises

j.

Tolong Aquaculture Corporation

k.

Visayan Aquaculture Corporation

l.

Guimaras Aquaculture Corporation (Rollo, pp. 21-22)

There is nothing in the above bio-data which even remotely indicates that respondent Monsod has given the law enough attention or a certain degree of commitment and participation as would support in all sincerity and candor the claim of having engaged in its practice for at least ten years. Instead of working as a lawyer, he has lawyers working for him. Instead of giving receiving that legal advice of legal services, he was the oneadvice and those services as an executive but not as a lawyer.

The deliberations before the Commission on Appointments show an effort to equate "engaged in the practice of law" with the use of legal knowledge in various fields of endeavor such as commerce, industry, civic work, blue ribbon investigations, agrarian reform, etc. where such knowledge would be helpful.

I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman accepts as having a familiar and customary well-defined meaning. Every resident of this country who has reached the age of discernment has to know, follow, or apply the law at various times in his life. Legal knowledge is useful if not necessary for the business executive, legislator, mayor, barangay captain, teacher, policeman, farmer,

fisherman, market vendor, and student to name only a few. And yet, can these people honestly assert that as such, they are engaged in the practice of law?

The Constitution requires having been "engaged in the practice of law for at least ten years." It is not satisfied with having been "a member of the Philippine bar for at least ten years."

Some American courts have defined the practice of law, as follows:

The practice of law involves not only appearance in court in connection with litigation but also services rendered out of court, and it includes the giving of advice or the rendering of any services requiring the use of legal skill or knowledge, such as preparing a will, contract or other instrument, the legal effect of which, under the facts and conditions involved, must be carefully determined. People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d 693; People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901, and cases cited.

It would be difficult, if not impossible to lay down a formula or definition of what constitutes the practice of law. "Practicing law" has been defined as "Practicing as an attorney or counselor at law according to the laws and customs of our courts, is the giving of advice or rendition of any sort of service by any person, firm or corporation when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill." Without adopting that definition, we referred to it as being substantially correct in People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901. (People v. Schafer, 87 N.E. 2d 773, 776)

For one's actions to come within the purview of practice of law they should not only be activities peculiar to the work of a lawyer, they should also be performed, habitually, frequently or customarily, to wit:

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Respondent's answers to questions propounded to him were rather evasive. He was asked whether or not he ever prepared contracts for the parties in real-estate transactions where he was not the procuring agent. He answered: "Very seldom." In answer to the question as to how many times he had prepared contracts for the parties during the twenty-one years of his business, he said: "I have no Idea." When asked if it would be more than half a dozen times his answer was I suppose. Asked if he did not recall making the statement to several parties that he had prepared contracts in a large number of instances, he answered: "I don't recall exactly what was said." When asked if he did not remember saying that he had made a practice of preparing deeds, mortgages and contracts and charging a fee to the parties therefor in instances where he was not the broker in the deal, he answered: "Well, I don't believe so, that is not a practice." Pressed further for an answer as to

his practice in preparing contracts and deeds for parties where he was not the broker, he finally answered: "I have done about everything that is on the books as far as real estate is concerned."

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Respondent takes the position that because he is a real-estate broker he has a lawful right to do any legal work in connection with real-estate transactions, especially in drawing of real-estate contracts, deeds, mortgages, notes and the like. There is no doubt but that he has engaged in these practices over the years and has charged for his services in that connection. ... (People v. Schafer, 87 N.E. 2d 773)

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xxx

xxx

... An attorney, in the most general sense, is a person designated or employed by another to act in his stead; an agent; more especially, one of a class of persons authorized to appear and act for suitors or defendants in legal proceedings. Strictly, these professional persons are attorneys at law, and non-professional agents are properly styled "attorney's in fact;" but the single word is much used as meaning an attorney at law. A person may be an attorney in facto for another, without being an attorney at law. Abb. Law Dict. "Attorney." A public attorney, or attorney at law, says Webster, is an officer of a court of law, legally qualified to prosecute and defend actions in such court on the retainer of clients. "The principal duties of an attorney are (1) to be true to the court and to his client; (2) to manage the business of his client with care, skill, and integrity; (3) to keep his client informed as to the state of his business; (4) to keep his secrets confided to him as such. ... His rights are to be justly compensated for his services." Bouv. Law Dict. tit. "Attorney." The transitive verb "practice," as defined by Webster, means 'to do or perform frequently, customarily, or habitually; to perform by a succession of acts, as, to practice gaming, ... to carry on in practice, or repeated action; to apply, as a theory, to real life; to exercise, as a profession, trade, art. etc.; as, to practice law or medicine,' etc...." (State v. Bryan, S.E. 522, 523; Emphasis supplied)

In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of acts. Thus, we stated in the case of People v. Villanueva (14 SCRA 109 [1965]):

xxx

xxx

xxx

... Practice is more than an isolated appearance, for it consists in frequent or customary actions, a succession of acts of the same kind. In other words, it is frequent habitual exercise (State v. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public, as a lawyer and demanding payment for such services. ... . (at p. 112)

It is to be noted that the Commission on Appointment itself recognizes habituality as a required component of the meaning of practice of law in a Memorandum prepared and issued by it, to wit:

l. Habituality. The term 'practice of law' implies customarilyor habitually holding one's self out to the public as a lawyer (People v. Villanueva, 14 SCRA 109 citing State v. Bryan, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the establishment of a law office for the general practice of law (U.S. v. Noy Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a notary public, and files a manifestation with the Supreme Court informing it of his intention to practice law in all courts in the country (People v. De Luna, 102 Phil. 968).

Practice is more than an isolated appearance, for it consists in frequent or customary action, a succession of acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 1 09 citing State v. Cotner, 1 27, p. 1, 87 Kan, 864)." (Rollo, p. 115)

xxx

xxx

xxx

While the career as a businessman of respondent Monsod may have profited from his legal knowledge, the use of such legal knowledge is incidental and consists of isolated activities which do not fall under the denomination of practice of law. Admission to the practice of law was not required for membership in the Constitutional Commission or in the Fact-Finding Commission on the 1989 Coup Attempt. Any specific legal activities which may have been assigned to Mr. Monsod while a member may be likened to isolated transactions of foreign corporations in the Philippines which do not categorize the foreign corporations as doing business in the Philippines. As in the practice of law, doing business also should be active and continuous. Isolated business transactions or occasional, incidental and casual transactions are not within the context of doing business. This was our ruling in the case of Antam Consolidated, Inc. v. Court of appeals, 143 SCRA 288 [1986]).

Respondent Monsod, corporate executive, civic leader, and member of the Constitutional Commission may possess the background, competence, integrity, and dedication, to qualify for such high offices as President, Vice-President, Senator, Congressman or Governor but the Constitution in prescribing the specific qualification of having engaged in the practice of law for at least ten (10) years for the position of COMELEC Chairman has ordered that he may not be confirmed for that office. The Constitution charges the public respondents no less than this Court to obey its mandate.

I, therefore, believe that the Commission on Appointments committed grave abuse of discretion in confirming the nomination of respondent Monsod as Chairman of the COMELEC.

I vote to GRANT the petition.

Bidin, J., dissent

Footnotes

Webster's 3rd New International Dictionary.

14 SCRA 109

3 Commission on Appointments' Memorandum dated 25 June 1991 RE: WHAT CONSTITUTES PRACTICE OF LAW, pp. 6-7.

14 SCRA 109.

A.C. No. 6971

February 23, 2006

QUIRINO TOMLIN II, Complainant, vs. ATTY. SALVADOR N. MOYA II, Respondent.

DECISION

YNARES-SANTIAGO, J.:

On December 1, 2003, Quirino Tomlin II filed a complaint1 before the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP) against Atty. Salvador N. Moya II for allegedly reneging on his monetary obligations and for having issued bouncing checks; thereby violating the Code of Professional Responsibility2 and Batas Pambansa (B.P.) Blg. 22.3

Complainant averred that respondent borrowed from him P600,000.00 partially covered by seven postdated checks. However, when complainant tried to encash them on their respective due dates, the checks were all dishonored by the drawee bank, to wit:
Check No. MOB 1011326 MOB 1011311 MOB 1011328 MOB 1011313 MOB 1011329 MOB 1011314 MOB 1011330 Due Date May 16, 2001 June 11, 2001 June 17, 2001 August 12, 2001 August 16, 2001 August 19, 2001 September 18, 2001 Amount P13,500.00 P30,000.00 P5,000.00 P50,000.00 P5,000.00 P50,000.00 P5,000.00 Reason for Dishonor RTCOCI RTCOCI Account Closed Account Closed Account Closed Account Closed Account Closed

Complainant made several demands, the last being a formal letter4 sent on September 25, 2002;5 however, respondent still failed and refused to pay his debt without justifiable reason. Consequently, complainant instituted a case for seven counts of violation of B.P. Blg. 22 against the respondent before the Municipal Trial Court of Sta. Maria, Bulacan.6 In addition, he filed the instant case for respondents disbarment.

On December 1, 2003, respondent was directed to file his answer but instead he filed several motions for extension of time to file a responsive pleading7 and a motion to dismiss complaint.8

Respondent alleged that the case should be dismissed outright for violation of the rule on non-forum shopping. He argued that complainant did not inform the IBP about the cases he filed for violations of B.P. Blg. 22 against respondent pending before the Municipal Trial Court of Sta. Maria, Bulacan.9 Respondent argued that the filing of the administrative case despite the pendency of the criminal cases is a form of harassment which should not be allowed.

On April 28, 2004, the Commission on Bar Discipline denied10 the motion to dismiss for being a prohibited pleading under Section 2, Rule 3 of its Rules of Procedure. Respondents motion for reconsideration11 was likewise denied on June 16, 2004.12

Thereafter, respondent filed several motions for extension of time to file an answer.13 His last motion for extension was however denied for lack of merit. Consequently, the Commission on Bar Discipline declared him in default.14

Respondent thereafter filed a manifestation with motion to terminate proceedings on the ground of prescription15 and omnibus motion to recall the default order.16

On January 3, 2005, the Commission on Bar Discipline required the parties to submit their respective verified position papers after which the case shall be considered submitted for resolution.17

Only the complainant submitted his position paper.18

In the Report and Recommendation dated March 31, 2005, the Investigating Commissioner noted that respondent failed to file an answer and/or position paper despite several requests for extension, in disregard of the orders of the IBP. Moreover, it was observed that the pending criminal action against respondent does not pose a prejudicial question to the resolution of the issues in the present administrative case. Hence, it was recommended that respondent be suspended from the practice of law for one year.

On October 22, 2005, the IBP Board of Governors adopted and approved the report of the Investigating Commissioner, but modified the penalty of suspension from the practice of law from one year to two years.

We agree with the findings and recommendation of the IBP.

Lawyers are instruments for the administration of justice. As vanguards of our legal system, they are expected to maintain not only legal proficiency but also a high standard of morality, honesty, integrity and fair dealing.

In so doing, the peoples faith and confidence in the judicial system is ensured.19 Lawyers may be disciplined whether in their professional or in their private capacity for any conduct that is wanting in morality, honesty, probity and good demeanor.20 Any gross misconduct of a lawyer in his profession or private capacity is a ground for the imposition of the penalty of suspension or disbarment because good character is an essential qualification for the admission to the practice of law and for the continuance of such privilege.21

In the present case, respondent admitted his monetary obligations to the complainant but offered no justifiable reason for his continued refusal to pay. Complainant made several demands, both verbal and written, but respondent just ignored them and even made himself scarce. Although he acknowledged his financial obligations to the complainant, respondent never offered nor made arrangements to pay his debt. On the contrary, he refused to recognize any wrongdoing nor shown remorse for issuing worthless checks, an act constituting gross misconduct.22 Respondent must be reminded that it is his duty as a lawyer to faithfully perform at all times his duties to society, to the bar, to the courts and to his clients. As part of his duties, he must promptly pay his financial obligations.23

The contention that complainant violated the rule against forum shopping with the filing of this administrative complaint is bereft of merit. There is forum-shopping whenever, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another24 or when he institutes two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition.25 Forum shopping applies only to judicial cases or proceedings, not to disbarment proceedings.26 Moreover, Criminal Case Nos. 6-367-03 to 6-373-03 for violation of B.P. Blg. 22 refer to the respondents act of making or drawing and issuance of worthless checks; while the present administrative case seeks to discipline respondent as a lawyer for his dishonest act of failing to pay his debt in violation of the Code of Professional Responsibility.lavvph!1.net

Respondent, being a member of the bar, should note that administrative cases against lawyers belong to a class of their own. They are distinct from and they may proceed independently of criminal cases. The burden of proof in a criminal case is guilt beyond reasonable doubt while in an administrative case, only preponderance of evidence is required. Thus, a criminal prosecution will not constitute a prejudicial question even if the same facts and circumstances are attendant in the administrative proceedings.27

Besides, it is not sound judicial policy to await the final resolution of a criminal case before a complaint against a lawyer may be acted upon; otherwise, this Court will be rendered helpless from applying the rules on admission to and continuing membership in the legal profession during the whole period that the criminal case is pending final disposition when the objectives of the two proceedings are vastly disparate.28

Finally, we note that respondent failed to file his answer and verified position paper despite several opportunities given him by the IBP, that is, from the time he received on December 20, 200329 the Order30 of the IBP requiring him to file an answer until March 31, 2005 when the Investigating Commissioner submitted the Report and Recommendation. Instead, he filed several motions for extension of time, motion to dismiss

the complaint, motion for reconsideration, manifestation with motion to terminate proceedings, and omnibus motion to recall the default order. Until the end, respondent offered no plausible explanation for his failure to pay his debts. Instead, he kept on insisting, on plainly unmeritorious grounds, the dismissal of the complaint. Verily, respondents failure to comply with the orders of the IBP without justifiable reason manifests his disrespect of judicial authorities.31 Respondent should be reminded that the IBP has disciplinary authority over him by virtue of his membership therein.32

In view of the foregoing, we find the penalty of suspension from the practice of law for two years as recommended by the IBP commensurate under the circumstances.

WHEREFORE, Atty. Salvador N. Moya II is found GUILTY of gross misconduct and violation of the Code of Professional Responsibility and is hereby SUSPENDED from the practice of law for two years, effective immediately, with a warning that any further infraction by him shall be dealt with most severely.

Let copies of this Decision be furnished to all courts as well as the Integrated Bar of the Philippines and the Office of the Bar Confidant.

SO ORDERED.

CONSUELO YNARES-SANTIAGO Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN Chief Justice

REYNATO S. PUNO Associate Justice Asscociate Justice ANGELINA SANDOVAL-GUTIERREZ Associate Justice ANTONIO T. CARPIO LEONARDO A. QUISUMBING

Asscociate Justice MA. ALICIA AUSTRIA-MARTINEZ Associate Justice Asscociate Justice CONCHITA CARPIO-MORALES Associate Justice Asscociate Justice ADOLFO S. AZCUNA Associate Justice Asscociate Justice MINITA V. CHICO-NAZARIO Associate Justice Asscociate Justice CANCIO C. GARCIA DANTE O. TINGA ROMEO J. CALLEJO, SR. RENATO C. CORONA

Footnotes

1 Rollo, pp. 12-17.

2 Code of Professional Responsibility, Canon 1: A lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law and for legal processes; and

Code of Professional Responsibility, Rule 1.01: A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

3 Batas Pambansa Blg. 22 (1979), Sec. 1.

4 Rollo, p. 8.

5 Id. at 9.

6 Id. at 61-67.

7 Id. at 26-29, 30-33, 34-38.

8 Id. at 45-58.

9 Criminal Case Nos. 6-367-03 to 6-373-03.

10 Rollo, p. 110.

11 Id. at 113-120.

12 Id. at 123-124.

13 Id. at 125-130, 135-137.

14 Id. at 140-141.

15 Id. at 142-146.

16 Id. at 147-150.

17 Id. at 152-153.

18 Id. at 157-165.

19 Lao v. Medel, 453 Phil. 115, 120 (2003).

20 Garcia v. Bala, A.C. No. 5039, November 25, 2005.

21 People v. Tuanda, A.C. No. 3360, January 30, 1990, 181 SCRA 692, 697.

22 Lao v. Medel, supra at 121.

23 Id. at 120.

24 First Philippine International Bank v. Court of Appeals, 322 Phil. 280, 305 (1996).

25 Chemphil Export & Import Corporation v. Court of Appeals, 321 Phil. 619, 655-656 (1995).

26 Lucente v. Evangelista, Jr., 444 Phil. 721, 727 (2003).

27 Po Cham v. Pizarro, A.C. No. 5499. August 16, 2005.

28 In re Brillantes, Adm. Case No. 1245, March 2, 1977, 76 SCRA 1, 15.

29 Rollo, p. 26.

30 Id. at 25.

31 Garcia v. Bala, supra note 20.

32 Lao v. Medel, supra note 19 at 123.

lawphil

Today is Wednesday, March 06, 2013

Republic of the Philippines SUPREME COURT Manila

FIRST DIVISION

A.C. No. 5653

February 27, 2006

JOHN SIY LIM, Complainant, vs. ATTY. CARMELITO A. MONTANO, Respondent.

DECISION

CALLEJO, SR., J.:

Atty. Carmelito A. Montano stands charged with gross misconduct relative to his filing of Civil Case No. C19928 entitled Spouses Tomas See Tuazon and Natividad See Deecho v. John Siy Lim and the Register of Deeds of Caloocan City.1

It appears that complainant John Siy Lim was the defendant in Civil Case No. C-14542 for reformation of contract, quieting of title, with damages, then pending before the Regional Trial Court (RTC) of Caloocan City, Branch 131.2 The subject of the dispute was a 650-square meter conjugal lot along A. del Mundo Street, 7th Avenue, Caloocan City covered by Transfer Certificate of Title (TCT) No. 860. After trial, the RTC ruled in favor of defendant (complainant herein), and declared that the deed of sale the parties executed on July 15, 1987

was an absolute and unconditional conveyance of subject property by the plaintiff in favor of such defendant. On motion for reconsideration, however, the trial court reversed itself and declared that the sale was in fact an equitable mortgage. It thus ordered the cancellation of TCT No. 152621 and the reinstatement of the previous title on the subject property.

The complainant appealed the case to the Court of Appeals, docketed as CA-G.R. CV No. 40167. In its Decision dated March 31, 1995, the appellate court reversed the ruling of the RTC, to wit:

WHEREFORE, the appealed Order dated November 16, 1992, is hereby REVERSED and SET ASIDE, and the original Decision of the trial court, dated December 2, 1991, hereby REINSTATED, with the modification that plaintiff-appellee is ordered to pay defendant-appellant the sum of Five Thousand (P5,000.00) Pesos a month as reasonable rental for the use and occupation of Apartment No. 161 from July 15, 1988 until the premises shall have been vacated and possession thereof peacefully turned over to defendant-appellant.

The counterclaim for attorneys fees of defendant-appellant is DENIED. There is no clear showing that the action taken by plaintiff-appellee was done in bad faith. There should be no penalty on the right to litigate.3

The aggrieved party elevated the matter to this Court, and the petition was docketed as G.R. No. 119794. On October 3, 2000, the Court affirmed the ruling of the CA and denied the petition.4 Entry of judgment was made of record on October 3, 2000.5

On January 4, 2002, respondent filed a Notice of Appearance6 as counsel of Tomas See Tuazon (the losing party) in the RTC of Caloocan City, Branch 131 in Civil Case No. C-14542. On January 7, 2002, he filed, in behalf of his client, a "Motion to Comply to [sic] Decision without Writ,"7 worded as follows:

1. Plaintiff is aware that pursuant to the decision of the court, as affirmed by the Court of Appeals and the Supreme Court, the decision on the present case had already become final and executory.

2. In order to avoid undue inconvenience on the part of herein defendant, plaintiff shall voluntarily settle the money judgment as stated in the decision sought to be enforced.

3. The plaintiff will be filing Eight Hundred Ten Thousand (P810,000.00) Pesos, equivalent to 162 months of rent as per decision and the same to be covered by supersedeas bond issued by a reliable insurance company to answer for said obligation.

4. Every month starting February 15, 2002, plaintiff shall deposit to the court the amount of P5,000.00 as monthly rent.8

On the same date, respondent, in behalf of his clients (the spouses Tomas See Tuazon) filed the Complaint9 for nullity of TCT and other documents, reconveyance, maintenance of physical possession before the RTC of Caloocan City, eventually raffled to Branch 121 thereof (Civil Case No. C-19928).

Meantime, on February 19, 2002, Judge Luisito C. Sardillo of Branch 12610 issued an Order11 in Civil Case No. C-14542 granting the Motion for Execution with Manifestation earlier filed by the prevailing party (complainant herein), and denying for lack of merit, the "Motion to Comply to [sic] Decision without Writ" filed by respondent counsel.

This prompted the complainant to file the instant complaint for disbarment against respondent. In his Complaint-Affidavit12 dated March 20, 2002, complainant alleged that respondent filed the complaint in Civil Case No. C-19928 out of malice, pointing out that it involves "the same parties, the same causes of action and relief prayed for as that of Civil Case No. C-14542." Thus, the complainant prayed that the respondent be "disbarred and/or suspended from the practice of law for his gross misconduct," on the following allegation:

6. Evidently, I have been subjected to harassment by the antics of the respondent in filing a recycled case docketed as Civil Case No. C-19928 on January 07, 2002. Respondent is guilty in abetting the conduct of his clients, Sps. Tuazon. He has clearly violated his lawyers oath not to promote or sue groundless, false or unlawful suits among others. Instead of counseling his clients to abide and obey the decision of our Supreme Court, the final arbiter of all controversies and disputes, he is showing disrespect to a final and executory decision of our court.13

In his Comment,14 respondent denied the allegations against him. While he admitted that he filed Civil Case No. C-19928 as counsel for the plaintiff therein, he claimed that it was not filed with malicious intent. Moreover, while the new case involved the same party, it was for a different cause of action and relief, and, as such, the principle of res judicata did not apply. He further explained that the complaint in Civil Case No. C14542 was for declaratory relief or reformation of instrument, while Civil Case No. 19928 was for annulment of title. He accepted the case based on "his professional appreciation that his client had a good case."

In his Reply,15 the complainant stressed that the respondent was guilty of forum shopping; Civil Case No. C19928 was nothing but a revival of the old complaint; and "the lame excuse of the respondent that the present case is an action in rem while the other case is an action in personam" did not merit consideration.

On November 25, 2002, the Court resolved to refer the matter to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.16

On September 1, 2003, the IBP Commission on Bar Discipline assigned the case to Commissioner Salvador L. Pea. Only the counsel for the respondent appeared at the mandatory conference held on September 30, 2003. Finding that there were no factual issues in the case, Commissioner Pea terminated the mandatory conference and ordered the parties to submit their respective verified Position Papers, and, thereafter, considered the case submitted for resolution.

The case was re-assigned to Commissioner Doroteo B. Aguila who submitted his Report and Recommendation dated May 9, 2005, finding the respondent guilty of misconduct. It was recommended that respondent be meted a two months suspension from the practice of law.

According to the Investigating Commissioner, the elements of res judicata are present in this case as to bar the filing of Civil Case No. C-19928 since (a) the judgment in Civil Case No. C-14542, upholding the validity of the absolute deed of sale, had attained finality; (b) the court which rendered the decision had the required jurisdiction; and (c) the disposition of the case was a judgment on the merits.

On October 22, 2005, the Board of Governors of the IBP Commission on Bar Discipline issued Resolution No. XVII-2005-108, adopting said Report and Recommendation with the modification that respondent be suspended from the practice of law for six (6) months.

We agree that respondent is administratively liable.lavvph!1.net

In this case, it is clear that respondent is guilty of forum shopping. By his own admission, he was aware that Civil Case No. C-14542 was already final and executory when he filed the second case (Civil Case No. C19928). His allegation that he "was not the original counsel of his clients" and that "when he filed the subsequent case for nullity of TCT, his motive was to protect the rights of his clients whom he believed were not properly addressed in the prior case for reformation and quieting of title," deserves scant consideration. As a responsible member of the bar, he should have explained the effect of such final and executory decision on his clients rights, instead of encouraging them to file another case involving the same property and asserting the same rights.

The essence of forum shopping is the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment. It exists when, as a result of an adverse opinion in one forum, a party seeks a favorable opinion in another, or when he institutes two or more actions or proceedings grounded on the same cause to increase the chances of obtaining a favorable decision. An important factor in determining its existence is the vexation caused to the courts and the parties-litigants by the filing of similar cases to claim substantially the same reliefs.17 Forum

shopping exists where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in another.18 Thus, the following requisites should concur:

(a) identity of parties, or at least such parties as represent the same interests in both actions, (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts, and (c) the identity of the two preceding particulars is such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration. x x x19

The fact that the parties in the first and second cases are not identical will not prevent the application of the principle of res judicata. Mere substantial identity of parties, or a community of interests between a party in the first case and a party in the subsequent case, even if the latter was not impleaded in the first case, is sufficient.20 Moreover, a party cannot, by varying the form of action or adopting a different method of presenting his case, escape the operation of the principle that one and the same cause of action shall not be twice litigated between the same parties or their privies.21 This was what respondent resorted to in order to give some semblance of merit to the complaint for annulment of title. He should have realized that the ruling of the Court in Tuazon v. Court of Appeals22 effectively determined with finality the rights and obligations of the parties under the questioned deed of sale.

A lawyer owes fidelity to the cause of his client but not at the expense of truth and the administration of justice.23 The filing of multiple petitions constitutes abuse of the Courts processes and improper conduct that tends to impede, obstruct and degrade the administration of justice and will be punished as contempt of court. Needless to state, the lawyer who files such multiple or repetitious petitions (which obviously delays the execution of a final and executory judgment) subjects himself to disciplinary action for incompetence (for not knowing any better) or for willful violation of his duties as an attorney to act with all good fidelity to the courts, and to maintain only such actions as appear to him to be just and are consistent with truth and honor. 24

The filing of another action concerning the same subject matter, in violation of the doctrine of res judicata, runs contrary to Canon 12 of the Code of Professional Responsibility, which requires a lawyer to exert every effort and consider it his duty to assist in the speedy and efficient administration of justice. By his actuations, respondent also violated Rule 12.0225 and Rule 12.0426 of the Code, as well as a lawyers mandate "to delay no man for money or malice."27

Lawyers should be reminded that their primary duty is to assist the courts in the administration of justice. Any conduct which tends to delay, impede or obstruct the administration of justice contravenes such lawyers duty. Indeed, the Court has time and again warned not to resort to forum shopping for this practice clogs the court dockets.28

While we rule that the respondent should be sanctioned for his actions, we also note that the power to disbar should be exercised with great caution, to be imposed only in a clear case of misconduct that seriously affects the standing and character of the lawyer as an officer of the Court and as a member of the bar. Disbarment should never be decreed where any lesser penalty could accomplish the end desired.29

WHEREFORE, for violating Canon 12 of the Code of Professional Responsibility, respondent Atty. Carmelito A. Montano is SUSPENDED from the practice of law for a period of six (6) months. He is STERNLY WARNED that any future violation of his duties as a lawyer will be dealt with more severely. This Decision is immediately executory. Atty. Montano is DIRECTED to inform the Court of the date of receipt of this decision.

SO ORDERED.

ROMEO J. CALLEJO, SR. Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN Chief Justice Chairperson

CONSUELO YNARES-SANTIAGO Associate Justice Asscociate Justice On leave* MINITA V. CHICO-NAZARIO Associate Justice MA. ALICIA AUSTRIA-MARTINEZ

Footnotes

* On leave.

1 Rollo, pp. 17-24.

2 The judge who originally heard the case was Judge Antonio J. Fineza, who was found guilty of gross misconduct in this Courts Decision of May 5, 2003 in A.M. No. RTJ-02-1705 [450 Phil. 642 (2003)], for his refusal to issue a writ of execution in said case. It appears that the case was later transferred to Branch 126 (id. at 7-17).

3 Id. at 40.

4 Id. at 31-46.

5 Id. at 47.

6 Id. at 4.

7 Id. at 5-6.

8 Id. (Emphasis supplied)

9 Id. at 17-24.

10 As earlier noted, the case was transferred to this sala.

11 Rollo, pp. 48-54.

12 Id. at 1-2.

13 Id. at 2.

14 Id. at 58-62.

15 Id. at 63-67.

16 Id. at 68.

17 Foronda v. Guerrero, A.C. No. 5469, August 10, 2004, 436 SCRA 9, 23.

18 TBoli Agro-Industrial Development, Inc. v. Solilapsi, 442 Phil. 499, 508 (2002).

19 Id.

20 Dapar v. Biascan, G.R. No. 141880, September 27, 2004, 439 SCRA 179, 199, citing Rovels Enterprises, Inc. v. Ocampo, 439 Phil. 777, 790-791 (2002).

21 j. feria and m.c. noche, civil procedure annotated, volume 2, (2001 ed.) 131, citing Pealosa v. Tuason, 22 Phil. 303 (1912) and Paz v. Inandan, 75 Phil. 608 (1945).

22 396 Phil. 32 (2000).

23 Garcia v. Francisco, A.C. No. 3923, March 30, 1993, 220 SCRA 512, 515.

24 Foronda v. Guerrero, supra note 15, at 23.

25 Rule 12.02 A lawyer shall not file multiple actions arising from the same cause.

26 Rule 12.04 A lawyer shall not unduly delay a case, impede the execution of a judgment or misuse court processes.

27 See Foronda v. Guerrero, supra note 15, at 24.

28 Sanchez v. Brion, 319 Phil. 67, 70 (1995).

29 Alitagtag v. Atty. Garcia, 451 Phil. 420, 426 (2003).

[A.C. No. 6632. August 2, 2005]

NORTHWESTERN UNIVERSITY, INC., and BEN A. NICOLAS, complainants, vs. Atty. MACARIO D. ARQUILLO, respondent. DECISION PANGANIBAN, J.:

Representing conflicting interests is prohibited by the Code of Professional Responsibility. Unless all the affected clients written consent is given after a full disclosure of all relevant facts, attorneys guilty of representing conflicting interests shall as a rule be sanctioned with suspension from the practice of law.

The Case and the Facts

This administrative case stems from a sworn Letter-Complaint[1] filed with the Integrated Bar of the Philippines-Commission on Bar Discipline (IBP-CBD) by Ben A. Nicolas, acting for himself and on behalf of Northwestern University, Inc. In that Letter-Complaint, Atty. Macario D. Arquillo was charged with deceit, malpractice, gross misconduct and/or violation of his oath as attorney by representing conflicting interests. The material averments of the Complaint are summarized by the IBP-CBD as follows:

Herein [c]omplainants, Northwestern University, Inc. and Mr. Ben A. Nicolas, accuses (sic) herein [r]espondent, Atty. Macario D. Arquillo, of engaging in conflicting interest in a case before the National Labor Relations Commission, Regional Arbitration Branch No. 1, San Fernando, La Union.

Complainant alleges that in a consolidated case, herein [r]espondent appeared and acted as counsels for both complainants (eight out of the eighteen complainants therein) and respondent (one out of the ten respondents therein).

In a consolidation of NLRC Cases [Nos.] 1-05-1086-97, 1-05-1087-97, 1-05-1088-97, 1-05-1091-97, 1-051092-97, 1-05-1097-97, 1-05-1109-97, 1-05-1096-97 (consolidated cases), herein [r]espondent appeared as counsel for complainants therein, Teresita A. Velasco, Gervacio A. Velasco, Mariel S. Hernando, Virginio C. Rasos, Bonifacio S. Blas, Ronald A. Daoang, Luzviminda T. Urcio and Araceli Quimoyog. In the very same consolidated case, [r]espondent was also the counsel of one of the respondents therein, Jose G. Castro.

Complainants, as their evidence, submitted the Motion to Dismiss dated August 12, 1997 filed by Jose G. Castro, represented by his counsel, herein [r]espondent filed before the NLRC of San Fernando, La Union.

Sixteen (16) days later or on August 28, 1997, [r]espondent filed a Complainants Consolidated Position Paper, this time representing some of the complainants in the very same consolidated case.[2] (Citations omitted)

Respondent failed to file his Answer to the Complaint despite a June 24 1998 Order[3] of the IBP-CBD directing him to do so. Even after receiving five notices, he failed to appear in any of the scheduled hearings. Consequently, he was deemed to have waived his right to participate in the proceedings. Thereafter, the complainants were ordered to submit their verified position paper with supporting documents, after which the case was to be deemed submitted for decision.[4] In their Manifestation[5] dated August 30, 2004, they said that they would no longer file a position paper. They agreed to submit the case for decision on the basis of their Letter-Affidavit dated March 16, 1998, together with all the accompanying documents.

Report and Recommendation of the IBP

In his Report,[6] Commissioner Dennis B. Funa found respondent guilty of violating the conflict-of-interests rule under the Code of Professional Responsibility. Thus, the former recommended the latters suspension from the practice of law for a period of six (6) months.

In Resolution No. XVI-2004-415 dated October 7, 2004, the Board of Governors of the IBP adopted the Report and Recommendation of Commissioner Funa, with the modification that the period of suspension was increased to two (2) years.

On December 12, 2004, the Resolution and the records of the case were transmitted to this Court for final action, pursuant to Section 12(b) of Rule 139-B of the Rules of Court. On January 20, 2005, respondent filed a Motion for Reconsideration to set aside Resolution No. XVI-2004-415. The IBP denied the Motion.

The Courts Ruling

We agree with the findings of the IBP Board of Governors, but reduce the recommended period of suspension to one year.

Administrative Liability of Respondent

The Code of Professional Responsibility requires lawyers to observe candor, fairness and loyalty in all their dealings and transactions with their clients.[7] Corollary to this duty, lawyers shall not represent conflicting interests, except with all the concerned clients written consent, given after a full disclosure of the facts.[8]

When a lawyer represents two or more opposing parties, there is a conflict of interests, the existence of which is determined by three separate tests: (1) when, in representation of one client, a lawyer is required to fight for an issue or claim, but is also duty-bound to oppose it for another client; (2) when the acceptance of the new retainer will require an attorney to perform an act that may injuriously affect the first client or, when called upon in a new relation, to use against the first one any knowledge acquired through their professional connection; or (3) when the acceptance of a new relation would prevent the full discharge of an attorneys duty to give undivided fidelity and loyalty to the client or would invite suspicion of unfaithfulness or double dealing in the performance of that duty.[9]

In the present case, Atty. Macario D. Arquillo, as counsel for Respondent Jose C. Castro in NLRC Case Nos. I05-1083-97 to I-05-1109-97, filed a Motion to Dismiss those cases. Shortly thereafter, a position paper was filed by Atty. Arquillo as counsel for several complainants in consolidated NLRC Case Nos. I-05-1087-97, I-051088-97, I-05-1091-97, I-05-1092-97, I-05-1096-97, I-05-1097-97, and I-05-1109-97. All the cases in the second set were included in the first one, for which he had filed the subject Motion to Dismiss. Furthermore, in his position paper for the complainants, Atty. Arquillo protected his other client, Respondent Jose C. Castro, in these words:

3. More than lack of valid cause for the dismissal of complainants, respondents, except Atty. Jose C. Castro and Atty. Ernesto B. Asuncion, should be made accountable for not according complainants their right to due process.[10]

In his two-page Motion for Reconsideration, Atty. Arquillo claims that there was no conflict of interest in his representation of both the respondent and the complainants in the same consolidated cases, because all of them were allegedly on the same side. Attaching to the Motion the Decision of Labor Arbiter Norma C. Olegario on the consolidated NLRC cases, Atty. Arquillo theorizes that her judgment absolved Castro of personal liability for the illegal dismissal of the complainants; this fact allegedly showed that there was no conflict in the interests of all the parties concerned.

This Court does not agree. Atty. Arquillos acts cannot be justified by the fact that, in the end, Castro was proven to be not personally liable for the claims of the dismissed employees. Having agreed to represent one of the opposing parties first, the lawyer should have known that there was an obvious conflict of interests, regardless of his alleged belief that they were all on the same side. It cannot be denied that the dismissed employees were the complainants in the same cases in which Castro was one of the respondents. Indeed, Commissioner Funa correctly enounced:

As counsel for complainants, [r]espondent had the duty to oppose the Motion to Dismiss filed by Jose G. Castro. But under the circumstance, it would be impossible since [r]espondent is also the counsel of Jose G. Castro. And it appears that it was [r]espondent who prepared the Motion to Dismiss, which he should be opposing [a]s counsel of Jose G. Castro, Respondent had the duty to prove the Complaint wrong. But

Respondent cannot do this because he is the counsel for the complainants. Here lies the inconsistency. The inconsistency of interests is very clear.

Thus it has been noted

The attorney in that situation will not be able to pursue, with vigor and zeal, the clients claim against the other and to properly represent the latter in the unrelated action, or, if he can do so, he cannot avoid being suspected by the defeated client of disloyalty or partiality in favor of the successful client. The foregoing considerations will strongly tend to deprive the relation of attorney and client of those special elements which make it one of trust and confidence[.] (Legal Ethics, Agpalo, p. 230, 4th ed.; In re De la Rosa, 21 Phil. 258)[11]

An attorney cannot represent adverse interests. It is a hornbook doctrine grounded on public policy that a lawyers representation of both sides of an issue is highly improper. The proscription applies when the conflicting interests arise with respect to the same general matter, however slight such conflict may be. It applies even when the attorney acts from honest intentions or in good faith.[12]

The IBP Board of Governors recommended that respondent be suspended from the practice of law for two years. Considering, however, prior rulings in cases also involving attorneys representing conflicting interests, we reduce the suspension to one (1) year.[13]

WHEREFORE, Atty. Macario D. Arquillo is found GUILTY of misconduct and is hereby SUSPENDED from the practice of law for a period of one (1) year effective upon his receipt of this Decision, with a warning that a similar infraction shall be dealt with more severely in the future.

SO ORDERED.

Davide, Jr., C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, CarpioMorales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, and Garcia, JJ., concur. Corona, J., on official leave.

[1] Dated March 16, 1998; rollo, pp. 2-3.

[2] Report of the IBP-CBD, pp. 1-2.

[3] IBP-CBD Order, per Commissioner Ma. Carmina M. Alejandro-Abbas; rollo, p. 17.

[4] IBP-CBD Order, August 18, 2004; rollo, p. 36.

[5] Rollo, pp. 38-39.

[6] Report of the IBP Investigating Commissioner, August 27, 2004.

[7] Canon 15 of the Code of Professional Responsibility.

[8] Rule 15.03, id.

[9] Santos v. Beltran, 418 SCRA 17, December 11, 2003; Hornilla v. Salunat, 405 SCRA 220, 223, July 1, 2003. See Agpalo, The Code of Professional Responsibility for Lawyers, p. 166.

[10] Complainants Position Paper signed by Atty. Macario D. Arquillo, p. 8, August 28, 1997; rollo, p. 14. Emphasis ours.

[11] Report of IBP Investigating Commissioner, p. 4.

[12] Nakpil v. Valdes, 350 Phil. 412, March 4, 1998.

[13] See Santos v. Beltran, supra; Nakpil v. Valdes, supra; Tiania v. Ocampo, 200 SCRA 472, August 12, 1991.

SECOND DIVISION

Adm. Case No. 6589

EPIFANIA Q. BANTOLO, Complainant, versus - ATTY. EGMEDIO B. CASTILLON, JR., Respondent.

Promulgated:

December 19, 2005

x-------------------------------------------------------------------x

DECISION

TINGA, J.:

In a letter-complaint to the Integrated Bar of the Philippines (IBP) dated 02 October 1997,[1] Epifania Q. Bantolo charged Atty. Egmedio B. Castillon, Sr. of violating the lawyers oath and Section 20 of Rule 138 of the Rules of Court for having (i) wittingly or willingly performed, promoted, or sued any groundless, false or unlawful suit, and or giving aid or consent to the same; (ii) delayed the just execution of the suit without legal or justifiable cause and employing illegal means and unlawful force to do so; (iii) blatantly showed disrespect to the Regional Trial Court by disobeying its lawful orders; and (iv) for employing unlawful and illegal means to attain his ends.

According to complainant, respondent is the lawyer and one of the defendants in a case involving a parcel of land in Valderrama, Antique.[2] The case was decided in favor of the complainant and her coplaintiffs, and thereafter, a writ of execution was issued, by virtue of which, defendants were ejected from the property. However, respondents, with his co-defendants subsequently entered the disputed property and harvested the palay planted therein.[3] Plaintiffs were prompted to move for defendants to be declared in contempt of court because of their open defiance and willful disobedience to the lawful orders of the court, which were abetted by the acts of Atty. Egmedio Castillon who is an officer of the court.[4] On 25 January 1991, the trial court declared Atty. Castillon and his co-defendants guilty of indirect contempt of court, with the penalty of one month imprisonment and fine.[5] Subsequently, on 26 July 1994, the Court of Appeals

affirmed the decision of the trial court, with the modification that instead of imprisonment, defendants were ordered to pay a fine of P1,000.00 each.[6]

In his Answer to Complaint dated 02 March 1998, respondent denied complainants allegations and claimed that said complaint was a form of harassment.[7] Hearings were thereafter scheduled but were cancelled and reset due to the unavailability of the complainant. Finally, on 09 December 1998, a hearing for the reception of complainants evidence was conducted.[8] While notices were subsequently sent to respondent setting the case for reception of his evidence, no such hearing pushed through due to respondents failure to inform the IBP of his new office address. Thus, respondent was deemed to have waived his right to present evidence.[9]

In the Report and Recommendation (Report) dated 17 March 2004, the investigating commissioner, Atty. Rafael Antonio M. Santos, found that complainant failed to prove that respondents actions, with respect to his unsuccessful defense of the case were not within the bounds of the law. Moreover, that respondent lost his case in the trial court does not necessarily support the charge of willingly promoting or ruing any groundless, false or unlawful suit or giving aid, or consenting to the same, [10] he added. Thus, according to the IBP, the only remaining issue to be resolved is respondents liability, if any, for his contumacious acts, as found by the trial court and the Court of Appeals.[11]

Recognizing that the findings of the trial court and the appellate court with respect to respondents contumacious acts as final and conclusive, it was found that respondent committed an act which constitutes a breach of his sworn promise to obey the laws as well as the legal orders of the duly constituted authorities. Furthermore, the Report noted respondents attempts to thwart the instant disbarment proceedings, to wit: i) attempt to mislead the Commission on Bar Discipline by representing that the proceedings relative to the contempt charges against him are still pending when in fact they had already been terminated; ii) placing too much emphasis on the alleged lack of personality of the complainant to file the disbarment complaint; and iii) failure to notify the Commission of his change of address.[12]

Finding however, that the penalty of disbarment would be reasonable under the circumstances, the Commission recommended instead the penalty of suspension for one month.[13] As explained in the Report:

A close examination of the facts of this case reveals that the basis of the act for which the court found to be contumacious is a claim of ownership over the subject property, and thus arose from an emotional attachment to the property which they had possessed prior to their dispossession as a consequence of the decision in Civil Case No. 1345. Respondents subsequent acts, however, including those which were found to be contumacious, as well as his actuations in the instant case, merit disciplinary sanctions, for which is recommended that respondent be suspended for one (1) month.[14]

On 30 July 2004, the IBP

passed a resolution adopting the Report and Recommendation, to wit:

RESOLUTION NO, XVI-2004-376 CBD Case No. 510 Epifania Q. Bantolo vs. Atty. Egmedio B. Castillon

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex A; and finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering that respondent has been found by both the Trial Court and the Court of Appeals guilty of indirect contempt for disobeying the writ of execution and for attempting to mislead the Commission into believing that the contempt charge is still pending by submitting an Order of the trial court which pertains to a second contempt charge, Atty. Egmedio B. Castillon, Sr. is hereby SUSPENDED from the practice of law for one (1) month.

The findings and recommendation of the IBP are well-taken.

Lawyers are particularly called upon to obey court orders and processes, and this deference is underscored by the fact that willful disregard thereof may subject the lawyer not only to punishment for contempt but to disciplinary sanctions as well.[15] Such is the situation in the instant case. We need not delve into the factual findings of the trial court and the Court of Appeals on the contempt case against respondents. Suffice it to say that respondent lawyers commission of the contumacious acts have been shown and proven, and eventually punished by the lower courts.

A lawyer is first and foremost an officer of the court. Thus, while he owes his entire devotion to the interest and causes of his client he must ensure that he acts within the bounds of reason and common sense, always aware that he is an instrument of truth and justice. More importantly, as an officer of the court and its indispensable partner in the sacred task of administering justice, graver responsibility is imposed upon a lawyer than any other to uphold the integrity of the courts[16] and to show respect to its processes. Thus, any act on his part which tends visibly to obstruct, pervert or impede and degrade the administration of justice constitutes professional misconduct calling for the exercise of disciplinary action against him.[17]

Respondents defiance of the writ of execution is a brazen display of disrespect of the very system which he has sworn to support. Likewise, his various attempts to delay and address issues inconsequential to the

disbarment proceedings had necessarily caused delay, and even threatened to obstruct the investigation being conducted by the IBP.

Nevertheless, the supreme penalty of disbarment is not proper in the instant case. The rule is that disbarment is meted out only in clear cases of misconduct that seriously affect the standing and character of the lawyer as an officer of the court. While the Court will not hesitate to remove an erring lawyer from the esteemed brotherhood of lawyers when the evidence calls for it, it will also not disbar him where a lesser penalty will suffice to accomplish the desired end.[18] In the case of respondent, the Court finds that a months suspension from the practice of law will provide him with enough time to purge himself of his misconduct and will give him the opportunity to retrace his steps back to the virtuous path of the legal profession.

WHEREFORE, respondent Atty. Egmedio B. Castillon is found GUILTY of gross misconduct and is SUSPENDED from the practice of law for a period of one (1) month with a warning that a repetition of the same or similar act will be dealt with more severely. Respondents suspension is effective upon notice of this decision. Let notice of this decision be spread in respondents record as an attorney in this Court, and notice of the same served on the Integrated Bar of the Philippines and on the Office of the Court Administrator for circulation to all the courts concerned.

SO ORDERED.

DANTE O. TINGA

Associate Justice

WE CONCUR:

REYNATO S. PUNO Associate Justice

Chairman

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

ROMEO J. CALLEJO, SR. Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

[1]Rollo, pp.1-2.

[2]Gertrudes Bantolo, et al. v. Coleta Castillon, et al., Civil Case No. 1345, RTC Antique, Branch 10.

[3]Rollo, p. 1.

[4]Rollo, p. 2.

[5] Rollo, pp. 7-13.

[6] Rollo, pp. 62-75.

[7] Rollo, pp. 17-19.

[8] Rollo, pp. 111-155.

[9] Rollo, p. 168.

[10] Rollo, pp. 168-169.

[11] Rollo, p. 170.

[12] Rollo, pp. 173-175.

[13] Rollo, p. 175.

[14] Rollo, p. 176.

[15]Agpalo, The Code of Professional Responsibility (First Edition), p. 116, citing In re Macdougall, 3 Phil. 70 (1903).

[16] Choa v. Judge Chiongson, 329 Phil. 270, 276 (1996).

[17]Zaldivar v. Sandiganbayan, Nos. L-79690-707 7 October 1988, 166 SCRA 316, 332.

[18] Garcia v. Manuel, Adm. Case No. 5811, 20 January 2003, 395 SCRA 386, 392, citations omitted.

THIRD DIVISION [G.R. No. 158130. July 29, 2005]

ATTY. MARTIN T. SUELTO, petitioner, vs. NELSON A. SISON, EMIL A. SISON, FRANKLIN A. SISON and SANTOS LAND DEVELOPMENT CORPORATION, respondents. DECISION CARPIO MORALES, J.:

From the decision of the Court of Appeals[1] reversing that of the Regional Trial Court (RTC) of Davao City[2] which adjudged herein respondents brothers Nelson, Emil and Franklin, all surnamed Sison, to pay herein petitioner Atty. Martin T. Suelto the sum of P100,000.00 for and as notarial fees for services the latter has rendered, as well as actual litigation costs in the form of filing and docket fees,[3] petitioner lodged the present Petition for Review on Certiorari.

Before January 15, 1994, respondents Sison brothers started negotiating for the sale of their three (3) parcels of land to their herein co-respondent Santos Land Development Corporation (the corporation).

In the series of negotiations, Atty. Danilo A. Basa, one of two[4] retained counsel of the corporation,[5] was present in order to incorporate whatever the parties agreed upon in the draft of the Memorandum of Agreement (MOA)[6] and the Deed of Absolute Sale they were going to forge.

A Road Right-of-Way Agreement[7] between the Heirs of Bernardo D. Carpio and the Sisons reading:

xxx

WITNESSETH:

WHEREAS, the persons composing the FIRST PARTY are the surviving heirs and successors-in-interest of the late BERNARDO D. CARPIO, the late husband of SOL T. CARPIO, one of the signatories herein, and the father of the rest of the signatories to this agreement;

WHEREAS, the late BERNARDO D. CARPIO, on the one hand, and C. A. SISON ENTERPRISES, INC. & CONCORDIA A. SISON, on the other hand, executed a document called Road Right-of-Way Agreement dated

May 29, 1984, consisting of three (3) pages and entered in the Notarial Registry of Notary Public Renato B. Pagatpatan of Davao City as Doc. No. 78; Page No. 16; Book No. 21; Series of 1984;

WHEREAS, the parties composing the SECOND PARTY are the successors-in-interests of C.A. SISON ENTERPRISES, INC. and Concordia A. Sison;

WHEREAS, the parties herein have agreed to go on with and fulfill the aforesaid Road Right-of-Way Agreement;

NOW THEREFORE, for and in consideration of the foregoing, the parties herein have agreed, as follows:

1. That by this agreement, the rights and obligation of the late Bernardo D. Carpio under the aforesaid Road Right-of-Way Agreement are deemed to have been transmitted to the FIRST PARTY [while] those rights and obligations under the same Road Right-of-Way Agreement pertaining to C. A. SISON ENTERPRISES, INC. and Concordia A. Sison are deemed to have been transmitted to the SECOND PARTY. A copy of the aforesaid Road Right-of-Way Agreement is attached to this agreement as Annex A to form an integral part thereof; shall (sic)

2. That the parties have the right to assign, transfer, or in any other way, transmit their rights and obligations under this agreement and the aforesaid Road Right-of-Way Agreement Annex A hereof, to any party or parties provided that the party making such assignment, or transfer shall give notice to the other;

3. That the two (2) year period mentioned in paragraph 1 found on page 1 of the Road Right-of-Way Agreement Annex A hereof shall be reckoned from ___________ (sic), 1994.

x x x[8] (Emphasis and underscoring supplied),

was in the meantime prepared and signed by the parties. It was notarized by the Sisons counsel Atty. Arturo V. Agudo on January 10, 1994.

On January 15, 1994, the parties agreed to conclude and sign the MOA prepared by Atty. Basa whereon the Sisons had in fact affixed their signatures.[9] The parties met at the office of the corporation.

Since Atty. Basa was at the time out of the country, the corporation asked its other retained counsel, herein petitioner, to give the MOA a final look.

On perusing the MOA prepared by Atty. Basa, petitioner inputed therein the names of the respective spouses of the Sisons. And to paragraph 5(h) of the MOA which reads:

(h) That the FIRST PARTY shall within thirty (30) days from date of execution of this document undertake the delineation of the Road Right of Way Agreement as stipulated in the Road Right of Way Agreement dated May 29, 1984 between Bernardo Carpio and C.A. Sison Enterprises, Inc. and Concordia A. Sison.[10] (Underscoring supplied),

petitioner added a second sentence reading:

The delineation shall include the technical description of the exact location of the Road Right of Way which should be incorporated in an affidavit of confirmation thereof to be executed by the parties therein and/or their duly authorized representatives and which should be accordingly registered in the involved certificates o[f] title in the office of the Register of Deeds by and at the expense of the FIRST PARTY.

x x x[11] (Underscoring supplied).

Aside from incorporating to the MOA the above-stated amendments, petitioner prepared a Joint Affidavit of Clarification and Confirmation (Joint Affidavit),[12] in conformity with the immediately-quoted second sentence he introduced to paragraph 5(h) of the MOA, executed by Sol T. Carpio as representative of Bernardo D. Carpio, and Nelson A. Sison as representative of the Sisons, reading:

WE, SOL T. CARPIO, of legal age, widow, Filipino and a resident of Davao City, Philippines, and NELSON A. SISON, of legal age, Filipino, married and a resident of Davao City, Philippines, after having been duly sworn to in accordance with law hereby depose and say that:

That we are both representatives of the parties to that ROAD RIGHT OF WAY AGREEMENT dated May 29, 1984 by and between Bernardo Carpio and C.A. Sison Enterprises, Inc., and Concordia A. Sison; Sol T. Carpio being the widow of Bernardo Carpio and the attorney-in-fact of her children who are her co-heirs of said decedent (Bernardo Carpio) while Nelson A. Sison is duly authorized representative of C.A. Sison Enterprises, Inc., and Concordia A. Sison, as well as the registered owner himself of one of the parcels of land involved in the aforementioned Road Right of Way Agreement;

That while the specific location and technical description of the area agreed by the parties have already been determined and in fact actually established on the ground, the same was not properly indicated or annotated in the Certificates of Title thereof, hence, the need of this affidavit for that purpose, and thus be duly annotated.

That the aforementioned area subject-matter of the aforementioned Road Right of Way Agreement, as now established, has the following Technical Description, to wit:

x x x (Emphasis and underscoring supplied).

A pertinent provision in the MOA prepared by Atty. Basa, which was retained in the final MOA, called for the retention by the corporation of 10% of the total purchase price for the following purpose:[13]

(3) x x x

(b) . . . Provided, further, that the [CORPORATION] shall withhold an amount equivalent to TEN PERCENT (10%) of the total purchase price to defray expenses for taxes, notarial and attorneys fees and other fees and charges and incidental expenses relative to the sale of the parcels of land and the improvements thereof and to carry out the transfer thereof to the [CORPORATION]. (Emphasis and underscoring supplied).

There was, however, no agreement on the amount of notarial fees to be paid or taken from the 10% retained amount.[14]

On January 15, 1994, the Sisons and the corporation affixed their signatures on the MOA, as finalized by petitioner who notarized it on even date.

The Sisons and the corporation subsequently executed three Deeds of Absolute Sale dated February 11, 1994 covering the 3 Sison properties[15] in favor of the corporation. The deeds of sale were notarized by the Sisons counsel Atty. Agudo.

On February 3, 1994, the corporation received from petitioner a Statement of Account[16] dated January 15, 1994 addressed to it, for the account of Nelson A. Sison, Emil A. Sison and Franklin A. Sison, wherein petitioner made the following billing:

Legal fees for preparation and notarization of Memorandum of Agreement dated January 15, 1994 between Santos Land Development Corporation and Nelson A. Sison, Emil A. Sison and Franklin A. Sison recorded as Doc. No. 06; Page No. 03, Book No. XVI, Series of 1994 at the minimum rate of one and one-half per cent (1) of the consideration of P40,274,870.00; for final preparation of the Deeds of Absolute Sale per stipulations therein but was notarized by another lawyer after signing thereof . . . P604,123.05

(Emphasis and underscoring supplied).

On February 7, 1994, Mrs. Sol T. Carpio and Nelson Sison signed the Joint Affidavit[17] prepared and notarized on even date by petitioner.

It appears that petitioner sent a letter dated February 18, 1994 to the Sisons stating his fees and charges in connection with the preparation of documents on the sale. For by letter of February 21, 1994,[18] the Sisons wrote petitioner the following:

We received your letter dated February 18, 1994, stating your fees and charges regarding the preparation of documents of the Deed of Sale of our land to Santos Land. The families of Franklin, Emil and Nelson would like to make it clear to you that it is our understanding with the Santos Land particularly with Mrs. Nelia Partoza (President of Santos Land) that all documents regarding the sale of the lands to be sold will be prepared by the Sison family with their chosen lawyer/adviser which is not you.

We made this clear to them because our family is also in the subdivision business and the preparation of the Deed of Sale and other pertinent papers regarding its transfer to the buyers is just an ordinary thing to us and to our lawyer.

You have never been hired by us or asked your help in any matter dealing with the sale of our land to Santos Land in all our talk to Santos Land you are always the adviser of Santos Land and not on our side. We have our own legal adviser so you have no right to charge us with any legal fees whatsoever.

In the making of the memorandum agreement between Santos Land and Sison family, it has been our understanding with Mrs. Nelia Partoza that they will shoulder all expenses regarding its being finalized.

We hope that this letter will clarify everything regarding the matter of fees. (Emphasis and underscoring supplied).

A copy of the Sisons February 21, 1994 letter was received on February 26, 1994[19] by the corporation.

In the meantime, the Sisons requested from the corporation through its President, Nelia D. Partoza, the remittance to them of the balance of the 10% of the purchase price retained pursuant to the earlier-quoted paragraph 3(b) of the MOA. Partoza complied with the request, drawing the Sisons to send her a letter of April 28, 1994[20] reading:

We thank you very much for releasing the checks covering the balance of the 10 percent retention.

We have transferred and given to you the title of the lands which you bought from us and all legal fees, taxes and incidental expenses have already been covered by us.

As to the case of your legal adviser and retainer Atty. Martin Suelto, please refer to the letter which we wrote to him and of which you have been copy furnished.

Enclosed herewith is the copy of the letter which we sent to him for your perusal. (Underscoring supplied).

The April 28, 1994 letter of the Sisons was received by the corporation on April 29, 1994.[21] The records do not show that this letter drew any comment or response from the corporation.

As petitioner failed to collect his fees in connection with his finalization and notarization of the MOA and preparation and notarization of the Joint Affidavit of Clarification and Confirmation, he filed on August 24, 1994 a complaint before the RTC of Davao City for Collection of Sum of Money and Attorneys Fees[22] against the Sisons alleging, inter alia, that:

xxx

4. Plaintiff prepared and notarized a MEMORAN-DUM OF AGREEMENT dated January 15, 1994 between Santos Land Development Corporation and defendants Emil A. Sison, Franklin A. Sison, and Nelson A. Sison, the latter in his personal capacity and as the attorney-in-fact for Franklin A. Sison, concerning the sale of certain parcels of land, recorded in his Notarial Register as Doc. No. 06; Page No. 03; Book No. XVI, Series of 1994, copy hereto attached and made integral part hereof as Annex A.

5.

Paragraph 3 (b) of the aforementioned Memorandum of Agreement, provides:

xxxx

3. That the total price of FORTY MILLION TWO HUNDRED SEVENTY FOUR THOUSAND EIGHT HUNDRED SEVENTY (P40,274,870.00) PESOS shall be payable in accordance with the following manner:

(a) x x x x

(b) That the balance of THIRTY FOUR MILLION TWO HUNDRED THIRTY THREE THOUSAND SIX HUNDRED THIRTY NINE PESOS & 50/100 (P34,233,639.50) shall be payable in three (3) years computed five months after the date of execution of this Memorandum of Agreement. Provided, that payments herein shall be payable in equal quarterly installments covered by postdated checks of the SECOND PARTY. Provided, further, that the SECOND PARTY shall withhold an amount equivalent to TEN PERCENT (10%) of the total purchase price to defray expenses for taxes, notarial and attorneys fees and other fees and charges and incidental expenses relative to the sale of the parcels of land and the improvements thereof and to carry out the transfer thereof to the SECOND PARTY.

x x x x (Emphasis supplied by petitioner)

6. Furthermore, he gave extensive legal advises (sic )and services to the defendants concerning the implementation of the Memorandum of Agreement. Plaintiff likewise prepared and notarized a JOINT AFFIDAVIT OF CLARIFICATION AND CONFIRMATION between Sol T. Carpio and Nelson A. Sison concerning a ROAD RIGHT OF WAY AGREEMENT affecting the parcels of land subject of the Memorandum of Agreement and the deeds of Absolute Sale, to facilitate and expedite the implementation of the said Memorandum of Agreement.

xxxx

11. For failure and refusal of the defendants to pay the just claim of plaintiff, plaintiff was constrained to engage the services of counsel on a contingent basis equal to 25% of whatever plaintiff may recover from defendants for which defendants should be held liable.

12. Plaintiff will spend about TEN THOUSAND PESOS (P10,000.00) to file and prosecute this case but the exact amount shall be proved during the trial of this case.[23] (Underscoring supplied).

The Sisons, in their Answer with Counterclaim,[24] denied having any obligation to petitioner, they alleging that they never engaged his legal services nor received any legal advice from him as it was the corporation, petitioners client, which retained his services and requested him to finalize and notarize the MOA prepared by Atty. Basa; and that they had no obligation in his preparation and notarization of the Joint Affidavit.

As special defense, the Sisons alleged that when petitioner finalized and notarized the MOA and prepared the Joint Affidavit, the corporation assured them that it would take care of his legal fees.

By way of compulsory counterclaim, the Sisons alleged that the filing of the baseless complaint against them was malicious, as a result of which they were compelled to engage the services of counsel to protect them and would likely incur incidental expenses of at least P10,000.00; moral damages in the amount of P500,000.00 each, and exemplary damages in the amount of P50,000.00 each.[25]

The Sisons later filed a Third Party Complaint[26] against the corporation, alleging, inter alia, as follows:

xxx

4. Inasmuch as it was third-party defendant which retained the services of [petitioner] in connection with the notarization of the said memorandum of agreement including the other related documents and committed to pay all the legal fees therefor, then the fees being collected by plaintiff should be borne solely by the thirdparty defendant;

5. However, third-party defendant failed to make the necessary arrangement for the payment of Atty. Sueltos attorneys fees as a consequence of which third-party plaintiffs were unnecessarily haled to court by Atty. Suelto and was thereafter compelled to file this third-party complaint for which they incurred expenses of P50,000.00 as and by way of attorneys fees.[27] (Underscoring supplied).

The Third Party Complaint thus prayed that judgment be rendered ordering the third party defendantcorporation to indemnify third party plaintiffs, the Sisons, for whatever they may be required to pay petitioner and to pay them P50,000.000 for attorneys fees.[28]

To the Third Party Complaint the corporation filed their Answer,[29] alleging, inter alia, that the Sisons had no cause of action against it, it being their agreement that the Sisons would pay the services of petitioner.

Upon the following issues, to wit:

1. Whether or not plaintiff has been retained by, and/or rendered legal services to, either of the other parties (defendants/third-party plaintiffs and third-party defendant) in connection with the preparation and notarization of the Memorandum of Agreement and other documents and legal advices as to justify him to claim for such fees, and whether the fees had been agreed upon beforehand?

2. Assuming the plaintiff is entitled to claim notarial and attorneys fees, who is liable to pay the same, and whether the amount being claimed is fair and reasonable?

3. On the part of the plaintiff, whether he is entitled to damages and attorneys fees from the defendant/third-party plaintiffs; on the part of the defendants/third-party plaintiffs, whether [they are] entitled to damages and attorneys fees from the plaintiff on [their] counterclaim and for reimbursement from the third-party defendant; and on the part of the third-party defendant, whether it is entitled to its claim for damages and attorneys fees from defendants/third-party plaintiffs. (Underscoring supplied),

the trial court, Branch 33 of the RTC of Davao, by decision of July 28, 1997,[30] held that the participation of petitioner in the final negotiation of the sale was not as lawyer of the Sisons but of the corporation, and if petitioner rendered some advice in connection therewith, it should be for the account of the corporation in accordance with their Retainership Agreement.

Respecting notarial fees, the trial court found no evidence to show that the parties had any agreement beforehand on the amount thereof.

On the 10% retention provision in the MOA, the trial court held that the same was not for attorneys and notarial fees alone, it having stated that it was to defray expenses for taxes, notarial and attorneys fees, and other fees and charges and incidental expenses relative to the sale . . . and to carry out the transfer [of the properties] to [the corporation].

Passing on the services of petitioner, the trial court held that with respect to the MOA, as finalized, he did some revisions thereon, albeit the revision . . . to include the names of the wives of the Sisons is not material to the effectivity of the MOA . . . As for the addition by petitioner of a sentence to paragraph 5(h) bearing on the Road Right-of-Way provision, the trial court held:

The clause x x x exact location of the Road Right of Way which should be incorporated in an affidavit of confirmation thereof to be executed by the parties therein and/or their duly authorized representatives and which should be accordingly registered in the involved certificates of title in the office of the Register of Deeds by and at the expense of the FIRST PARTY, which was added on by the plaintiff to the MOA is but an

amplification of the first clause in the paragraph, and may even be dispensed with. As a matter of fact, the Memorandum of Agreement (Exh. 6) which was already signed by the SISONS when presented to SUELTO had this last sentence in its paragraph 5(h): The delineation shall include the Technical Description of the road register (sic) with the Register of Deeds which practically encompasses the idea suggested in the revision made by the plaintiff. If the delineation shall include the technical description then the exact location of the road will definitely be identified. This delineation will definitely be in a public instrument in order that it will be registered with the Register of Deeds. There is no need for the confirmation of Sol T. Carpio because the original Road Right of Way Agreement was already embodied in a public instrument, and binding on the successors-in-interest of the contracting parties, and there is no indication that the heirs of Bernardo Carpio are reneging on that agreement. At most, plaintiff could have refined the last sentence in paragraph 5(h) of Exh. 6 by adding a word or words between road and register and it would have served the import of paragraph 5(h).[31] (Emphasis and underscoring supplied).

In other words, the trial court found that petitioners addition of the second sentence to paragraph 5(h) of the MOA was a mere amplification of the first sentence thereof, and the execution of the Joint Affidavit was not necessary as the Road Right-of-Way Agreement dated May 29, 1984 was embodied in a public instrument which is binding on the successors-in-interest of the parties absent any indication that the heirs of Bernardo D. Carpio are reneging on that agreement.

In any event, the trial court held that petitioners preparation and notarization of the Joint Affidavit was done not for the benefit of the Sisons but for the benefit of his client, the corporation, and that the argument of petitioner that the January 10, 1994 Road Right-of-Way Agreement earlier prepared, signed by the parties, and notarized by the Sisons counsel Atty. Agudo could not be registered in the absence of technical description of the properties covered is untenable, for the Registry of Deeds has the ministerial duty to register deeds, conveyances, and the like, whether effecting registered or unregistered land, executed in accordance with law in the form of public instruments.

The trial court added that the technical description of the Road Right-of-Way is needed only for purposes of issuing a separate title and that even without the technical description, the agreement may still be annotated on the grantors certificate of title.

Be that as it may, the trial court held that since the Sisons were likewise benefited by petitioners notarization of the MOA and of the Joint Affidavit, it is only proper that they should recompense him, pursuant to the earlier-quoted provision of the MOA on the retention of 10% of the purchase price, citing Article 2142 of the Civil Code which provides:

ART. 2142. Certain lawful, voluntary and unilateral acts give rise to the juridical relation of quasi contract to the end that no one shall be unjustly enriched or benefited at the expense of another.

Holding that the notarial services done by petitioner must be based on quantum meruit, there being no prior agreement thereon, the trial court found petitioners bill for P604,123.05 unreasonable, unconscionable and grossly inflated, citing Section 24, Rule 138 of the Rules of Court which provides:

SEC. 24. An attorney shall be entitled to have and recover from his client no more than a reasonable compensation for his services, with a view to the importance of the subject matter of the controversy, the extent of the services rendered, and the professional standing of the attorney. No court shall be bound by the opinion of attorneys as expert witnesses as to the proper compensation, but may disregard such testimony and base its conclusion on its own professional knowledge. A written contract for services shall control the amount to be paid therefore unless found by the court to be unconscionable or unreasonable. (Underscoring supplied).

The trial court, noting that petitioners services were limited to perusing the MOA (Exhibit. 6), going over what [had] already been agreed upon and therefore, in [petitioners] own word, he could not change what [the parties thereto] had agreed upon, and making two (2) additions in the MOA, one of which, as stated earlier, is a mere amplification of what had already been agreed upon, [the other being the furnishing of the names of the respective spouses of the Sisons], and . . . preparing the Joint Affidavit of Clarification and Confirmation, which to the mind of the Court benefited most his client, and which could have been prepared by [the] SISONS lawyer just as well,[32] and taking into account the value of the properties sold P40 million plus , held that the amount of P100,000.00 as notarial fees is reasonable and conscionable.

Accordingly, the trial court disposed as follows:

WHEREFORE, premises considered, judgment is hereby rendered adjudging the defendants SISON liable to pay SUELTO the sum of P100,000.00 for and as notarial fees for services the latter has rendered, as well as actual litigation costs in the form of filing and docket fees.

The counterclaim of the SISONS and the counterclaim of SANTOS LAND are dismissed for lack of merit.

SO ORDERED.[33]

On appeal to the Court of Appeals, the defendants-third party- plaintiffs Sisons assigned to the trial court the following errors:

1. THE LOWER COURT ERRED IN HOLDING DEFENDANTS-THIRD PARTY PLAINTIFFS-APPEL-LANTS LIABLE TO PAY THE NOTARIAL FEES OF PLAINTIFF-APPELLEE AS IT DOES NOT CONFORM WITH ITS FINDING THAT IT WAS THIRD PARTY DEFENDANT-APPELLEE WHICH ENGAGED THE SERVICES OF PLAINTIFF-APPELLEE.

2. THE LOWER COURT ERRED IN NOT FINDING THAT THE THIRD-PARTY DEFENDANT-APPELLEE ASSUMED THE RESPONSIBILITY OF PAYING PLAINTIFF-APPELLEES NOTARIAL FEES WHICH FACT IS SUPPORTED BY THE EVIDENCE.

3. THE LOWER COURT ERRED IN FIXING THE NOTARIAL FEES OF PLAINTIFF-APPELLEE AT P100,000.00, THE SAME BEING UNCONSCIONABLE CONSIDERING THE FACT THAT HIS SERVICES CONSISTED IN MAKING MINOR AND INCONSEQUENTIAL REVISIONS IN AN ALREADY PREPARED MEMORANDUM OF AGREEMENT AND NOTARIZING THE SAME, AND PREPARING AND NOTARIZING A JOINT AFFIDAVIT OF CLARIFICATION AND CONFIRMATION WHICH WAS FOUND TO BE IMMATERIAL AND BENEFICIAL TO HIS CLIENT.[34] (Underscoring supplied).

By the assailed decision of October 30, 2002,[35] the appellate court reversed that of the trial court.

The appellate court agreed with the Sisons contention that the trial courts judgment is inconsistent with its factual findings that it was the corporation which engaged petitioners services in connection with the finalization and notarization of the MOA and preparation and notarization of the Joint Affidavit. It too agreed with the Sisons claim that the corporation, being in the real estate business, agreed to assume petitioners notarial fees.

In another vein, the appellate court, noting the provision in the MOA regarding the retention of the 10% selling price by the buyer corporation to be applied to expenses including notarial and attorneys fees and the corporations returning of the balance thereof to the seller-Sisons in the amount of more than P600,000.00 despite the corporations previous receipt of petitioners Statement of Account and copy of petitioners demand letter to the Sisons, held that the return of the said balance elicited the clear and unrebutted presumption . . . that all expenses pertinent to the sale have been discharged.

Accordingly, the appellate court set aside the trial courts decision.

His motion for reconsideration[36] having been denied by Resolution of April 11, 2003[37] by the Court of Appeals, petitioner comes before this Court[38] raising the following issues:

I. WHETHER OR NOT THE DECISION OF THE HONORABLE COURT OF APPEALS IS CONTRARY TO THE EVIDENCE PRESENTED.

II. WHETHER OR NOT THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN DISREGARDING THE BEST EVIDENCE RULE.

III WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN MARGINAL[I]ZING THE SERVICES OF THE PLAINTIFF-APPELLANT.[39] (Underscoring supplied).

Why the Sisons are not amenable to settle petitioners billing for notarial fees is reflected in the following transcript of Nelson Sisons testimony:

Q Of course, when that Memorandum of Agreement was being finalized, you were very much aware of the fact that there is that provision about the payment of the notarial fees and the attorneys fees as provided in the Memorandum of Agreement, is it not?

Yes, sir.

Q And you are aware of the fact that you are the one, under the agreement, who will be paying for the notarial fees and other fees of the lawyer?

Yes.

Q And of course, that provision was eventually included in the final draft that you signed the Memorandum of Agreement, is it not?

Yes, sir.

Q x x x You are willing to pay for the notarial fees after it is finished to be taken out of the ten percent retention?

Yes.

But of course, your only objection is that, it should be a lawyer of your own choice?

Yes, sir.

xxx

Q You said that when you objected to Attorney Sueltos notarizing the Memorandum of Agreement, Mrs. Partoza, as President of Santos Land assured you and I quote: Amin na lang yan. When she told you: AMIN NA LANG YAN, what was your understanding when she said AMIN NA LANG YAN?

A Our understanding when she said Amin na lang yan, on our objection why the name of our lawyer was changed to Atty. Suelto is that, inasmuch as Atty. Suelto, we believe is their retainer, and there are lots of lawyers retaining them, so, they will absorb the expenses, if there is any, on signing of the Memorandum of Agreement, for convenience of both. x x x[40] (Emphasis and underscoring supplied).

As gathered from the above-quoted transcript of Nelson Sisons testimony, the Sisons were willing to pay for the notarial fees to be charged to the 10% retained amount of the purchase price, if the lawyer notarizing it is one of their choice. That the Sisons wanted to have a lawyer of their choice to notarize the MOA could be on account of their desire to be able to save some expenses, as gleaned from petitioners testimony regarding Nelson Sisons alleged reason why it should be the Sisons own lawyer who should notarize the Deed of Sale:

[ATTY. LOREJO]:

You notarized [the Deed of Absolute Sale]?

A Well, it was supposed to be finalized after I made the corrections but then, the Sisons, more specially Nelson Sison, made a request that the document, the deed of sale should be notarized by their lawyer so that they will be able to save some expenses. . .[41] (Emphasis and underscoring supplied).

Why the corporation returned to the Sisons the balance of the 10% retained purchase price, despite its awareness that petitioner, its own retained counsel, had a pending request to it to settle his notarial fees from said 10% retained purchase price spawns conflicting versions. The corporation claims that the Sisons had told

it that they would settle petitioners notarial fees. The Sisons claim, on the other hand, that the corporation through Nelia Partoza undertook to settle the same.

What is clear, however, both in the pleadings and in the evidence of both parties, is that the notarial fees for the MOA, not to mention the Joint Affidavit, had not been paid. The appellate courts presumption that the notarial fees had been paid with the return by the corporation to the Sisons of the balance of the 10% retained purchase is thus incongruous with the clearly established fact that petitioners notarial fees had not been paid.

As priorly stated, by Nelson Sisons admission, he and his siblings were willing to charge the payment of notarial fees to the 10% retained purchase price provided the lawyernotary public was one of their choice. The MOA provision that notarial fees relative to the sale, among other expenses, would be charged to the 10% retained purchase price bears no qualification whatsoever, however, on which lawyer whether of the Sisons or of the corporation would perform notarial services for the provision to apply.

The Sisons, having agreed in the MOA, which is the law between them and the corporation, to charge notarial fees from the retained 10% of the purchase price, but the balance thereof having been returned to them without petitioners notarial fees being settled, they are under obligation to settle the same, at a reasonable amount of course.

The trial courts determination of the amount of P100,000.00 as fair and reasonable notarial fees, inclusive of actual litigation cost, under the circumstances reflected above, merits this Courts approval. It levels the unreasonable, unconscionable billing of petitioner-retained counsel of the corporation and the desire of the Sisons made known to the corporation and petitioner to save on expenses by wanting a lawyer of their own choice to notarize the MOA and other documents.

WHEREFORE, the assailed decision of the Court of Appeals is hereby REVERSED and SET ASIDE, and the decision of Branch 33 of the Regional Trial Court of Davao City is, in light of the foregoing discussions, REINSTATED.

No pronouncement as to costs.

SO ORDERED.

Panganiban, (Chairman), Sandoval-Gutierrez, and Garcia, JJ., concur. Corona, J., on official leave.

[1] CA Rollo at 120-130.

[2] Records at 244-269; CA Rollo at 48-73.

[3] P3,861.75, dorsal side of page 1 of the Complaint, Records at 1.

[4] TSN, October 11, 1996 at 9, Folder of TSN at 531.

[5] TSN, July 15, 1996 at 11-12, Folder of TSN at 445-446.

[6] Exhs. 6 6-e, Folder of Exhibits at 42-47.

[7] Exh. 9, Folder of Exhibits at 61-63.

[8] Ibid.

[9] Supra, note 6.

[10] Exh. A and A-6, Folder of Exhibits at 1-7.

[11] Ibid.

[12] Exh. B, Folder of Exhibits at 8-9.

[13] Exh. A-3, Folder of Exhibits at 4.

[14] TSN, October 11, 1996 at 16, Folder of Exhibits at 538.

[15] Exhs. 10, 11, and 12, Folder of Exhibits at 64-69.

[16] Exh. C, Folder of Exhibits at 10.

[17] Supra, note 12.

[18] Exh. 4, Folder of Exhibits at 40.

[19] Ibid.

[20] Exh. 5, Folder of Exhibits at 41.

[21] Ibid.

[22] Records at 1-5.

[23] Id. at 2-4.

[24] Id. at 19-22.

[25] Id. at 21.

[26] Id. at 59-62.

[27] Id. at 60.

[28] Ibid.

[29] Id. at 85-89.

[30] Id. at 244-269.

[31] Id. at 264-265.

[32] Id. at 71 (emphasis and underscoring supplied).

[33] Page 25 of decision, Records at 268.

[34] CA Rollo at 41.

[35] Id. at 120-130.

[36] Id. at 195-202.

[37] Id. at 204-216.

[38] Rollo at 5-24.

[39] Id. at 6.

[40] TSN, March 26, 1996 at 348-349, 351.

[41] TSN, September 27, 1995 at 61-62.

SPECIAL SECOND DIVISION [G.R. No. 131966. August 31, 2005]

REPUBLIC OF THE PHILIPPINES, petitioner, vs. HON. ANIANO A. DESIERTO, as Ombudsman, EDUARDO M. COJUANGCO, JR., MARIA CLARA L. LOBREGAT, ROLANDO DELA CUESTA, JOSE M. CONCEPCION, JOSE R. MENDOZA, HERMENEGILDO C. ZAYCO, EMMANUEL M. ALAMEDA, AMADO C. MAMURIC, DOUGLAS LU YM, JAIME GANDIAGA, NARCISO M. PINEDA, DANILO S. URSUA, respondents. RESOLUTION AUSTRIA-MARTINEZ, J.:

This resolves the Motion for Reconsideration and the Second Motion for Reconsideration filed by private respondent Cojuangco, Jr. as well as the Motion for Reconsideration filed by petitioner Republic of the Philippines.

On September 23, 2002, the Court, in the above-entitled case, granted the petition for certiorari filed by the Republic of the Philippines. The resolution of the Ombudsman in OMB-0-90-2811 dismissing the Republics complaint was set aside, and the Ombudsman was ordered to proceed with the preliminary investigation in said case and to exclude respondents Teodoro D. Regala and Jose C. Concepcion as defendants. Respondent Eduardo M. Cojuangco, Jr. and petitioner Republic of the Philippines then filed their respective motions for reconsideration of the aforesaid decision. Both were denied by the Court in its Resolution dated August 16, 2004.

Respondent Cojuangco, Jr. filed a second motion for reconsideration on the ground, among others, that the Resolution dated August 16, 2004, was promulgated without the requisite division of five as required by A.M. No. 99-8-09-SC. The Court in its Resolution dated April 25, 2005 recalled the Resolution dated August 16, 2004 and the (first) Motion for Reconsideration together with the Second Motion for Reconsideration is deemed submitted for resolution.

In his first Motion for Reconsideration, respondent Cojuangco argues that:

a. It was because of lack of evidence or probable cause that the Ombudsman dismissed the complaint in OMB-0-90-2811, not because the offense has prescribed or that LOI 926 and PD Nos. 961 and 1468 precluded prosecution under RA No. 3019 and Article 186 of the Revised Penal Code. Since the Court in its decision of September 23, 2002 did not overturn the Ombudsmans finding of lack of probable cause, the Ombudsmans Resolution of June 2, 1997 may not be nullified.

b. No evidentiary basis exists for the Courts finding that the offense had not prescribed; it was, consequently, error for the Court to have found that the offense charged had not prescribed.

c. It was also error for the Court to have found that PD Nos. 961 and 1468, LOI No. 926 may not be taken into account in determining whether the respondent violated R.A. No. 3019 and Article 186 of the Revised Penal Code.

d. The Court, apparently, overlooked respondents contention that his constitutional right to speedy disposition of his case has been violated warranting dismissal of OMB-0-90-2811.[1]

Petitioner Republic of the Philippines, for its part, questions the Courts ruling ordering the exclusion of respondents Teodoro D. Regala and Jose C. Concepcion as defendants in OMB-0-90-2811.[2]

The Court will first resolve respondent Cojuangcos motions for reconsideration.

In his second Motion for Reconsideration, respondent raises the same issues which were earlier submitted in his first Motion for Reconsideration, i.e., as to the existence of probable cause and the matter of prescription.[3]

The Court denies both motions of respondent Cojuangco, Jr.

Graft Investigation Officer II Aleu A. Amante, in his Resolution dated June 2, 1997, recommended the dismissal of the case on the finding that there is no sufficient evidence to engender a well-founded belief that violation of the Anti-Graft Law was committed and that respondents are probably guilty thereof.[4] Contrary to respondents argument, such conclusion is basically premised on the finding that the acquisition by UNICOM of the sixteen oil mills was done in accordance with P.D. No. 961,[5] and not because there was no sufficient evidence that private respondents are probably guilty of the charges against them. Amantes recommendation specifically stated that respondents cannot be made criminally liable for implementing a government policy because there is no element of evident bad faith or malice.[6] And, as is stated in the assailed Decision, the validity of LOI No. 926, and P.D. Nos. 961 and 1468 will not protect respondents from criminal prosecution for violations of R.A. No. 3019 and Article 186 of the Revised Penal Code, to wit:

Moreover, we categorically held in the Orosa case that the fact the transactions were done pursuant to P.D. Nos. 961 and 1468 will not shield the respondents from being charged considering that prosecution for violations of R.A. 3019 involves questions as to whether the contracts or transactions entered pursuant thereto

by the private respondents were manifestly and grossly disadvantageous to the government; whether they caused undue injury to the government; and whether the private respondents were interested for personal gain or had material interests in the transactions.

Similarly in the present case, contrary to the Ombudsmans belief, LOI No. 926 and P.D. Nos. 961 and 1468 cannot protect private respondents from criminal prosecution as they are being charged with commission of acts tantamount to violations of R.A. 3019 and Article 186 of the Revised Penal Code.[7] (Emphasis supplied)

In other words, while P.D. Nos. 961 and 1468 may have sanctioned UNICOMs acquisition of the sixteen oil mills, it should not deter the Ombudsman from determining in the preliminary investigation whether such acquisition caused undue prejudice, disadvantage and injury to the government, or that private respondents had a material and personal interest in the acquisition thereof, acts which are defined as corrupt practices and declared unlawful under R.A. No. 3019. These questions have not been taken into consideration by the Ombudsman when he concluded that there is no sufficient evidence to engender a well-founded belief that violation of the Anti-Graft Law was committed and that respondents are probably guilty thereof.

If the Court were to adhere to private respondents argument that valid laws shall be taken into account in determining whether there was a violation of R.A. No. 3019 and Article 186 of the Revised Penal Code, then the validity of laws would create a blanket shield and there would be no prosecution for violations of R.A. No. 3019 and Article 186 of the Revised Penal Code, as all acts committed by public officers will be beyond reach, despite the undue damage, injury and prejudice to the government, and the personal gain and material interest of the public officers involved.

Moreover, it is not true that the Court has no evidentiary basis for its finding that the offense had not prescribed. As stated in the assailed Decision, since the ten-year prescriptive period in violation of R.A. No. 3019 is governed by Section 2 of Act No. 3326, and applying further the ruling in Domingo vs. Sandiganbayan,[8] the complaint in this case, which was filed on March 2, 1990, was well within the prescriptive period. The counting of the applicable ten-year prescriptive period in this case commenced from the date of discovery of the offense, which could have been between February 1986 after the EDSA Revolution, and the filing of the complaint with the Presidential Commission on Good Government (PCGG) on March 2, 1990. Between these dates, at the most, only four (4) years had lapsed. Hence, the complaint was timely filed.

The Court likewise finds respondents contention in his motions that the seven-year delay in the disposition of the preliminary investigation by the Ombudsman warrants the dismissal of the case against him, without merit.

In the case of Dela Pea vs. Sandiganbayan,[9] the Court had the occasion to re-state the doctrine that:

The concept of speedy disposition is relative or flexible. A mere mathematical reckoning of the time involved is not sufficient. Particular regard must be taken of the facts and circumstances peculiar to each case. Hence, the doctrinal rule is that in the determination of whether that right has been violated, the factors that may be considered and balanced are as follows: (1) the length of delay; (2) the reasons for the delay; (3) the assertion or failure to assert such right by the accused; and (4) the prejudice caused by the delay.

Despite the finding that there was a considerable delay by the Sandiganbayan in the disposition of the petitioners case, the Court did not dismiss their case for the reason that the failure of the petitioners therein to assert their right to a speedy disposition of their case amounts to a waiver of such right. Thus, the Court held:

Moreover, it is worthy to note that it was only on 21 December 1999, after the case was set for arraignment, that petitioners raised the issue of the delay in the conduct of the preliminary investigation. As stated by them in their Motion to Quash/Dismiss, [o]ther than the counter-affidavits, [they] did nothing. Also, in their petition, they averred: Aside from the motion for extension of time to file counter-affidavits, petitioners in the present case did not file nor send any letter-queries addressed to the Office of the Ombudsman for Mindanao which conducted the preliminary investigation. They slept on their right a situation amounting to laches. The matter could have taken a different dimension if during all those four years, they showed signs of asserting their right to a speedy disposition of their cases or at least made some overt acts, like filing a motion for early resolution, to show that they were not waiving that right. Their silence may, therefore be interpreted as a waiver of such right. As aptly stated in Alvizo, the petitioner therein was insensitive to the implications and contingencies of the projected criminal prosecution posed against him by not taking any step whatsoever to accelerate the disposition of the matter, which inaction conduces to the perception that the supervening delay seems to have been without his objection, [and] hence impliedly with his acquiescence.[10] (Emphasis supplied)

In respondent Cojuangcos case, records shows that the last pleading filed prior to the Ombudsmans Resolution dated June 2, 1997 was respondents Motion to Suspend Filing of Counter-Affidavit, which was filed on May 15, 1991.[11] Between 1991 and 1997, respondent did nothing to assert his right to a speedy disposition of his case. Clearly, his silence during such period amounts to a waiver of such right.

Moreover, respondents right to a speedy disposition of his case should not work against and preclude the people's equally important right to public justice[12] considering that the funds used to acquire the 16 mothballed oil mills came from the coconut levy funds, which are not only affected with public interest, but are, in fact, prima facie public funds.[13]

It is noted that the Courts decision in the Orosa case,[14] which is cited in the decision of the present case, was set aside per Resolution dated July 7, 2004, on the ground that two of the respondents therein, Ma. Clara Lobregat and Jose C. Concepcion, were deprived of their right to file their comments on the petition, and as such, the case was not yet ripe for resolution when the Court rendered its decision. Be that as it may, said

resolution does not bear any consequence on the present case as the jurisprudence relied upon in the Orosa case are still valid and binding precedents.

As regards petitioner Republics motion that the assailed Decision be reconsidered insofar as the exclusion of respondents Teodoro D. Regala and Jose C. Concepcion as defendants in OMB-0-90-2811 is concerned, the Court finds the same bereft of merit.

According to petitioner, respondents Regala and Concepcion should not be excluded as respondents because they are being charged for illegal acts committed in their official capacity as members of the Board of Directors of UNICOM and UCPB, in conspiracy with the other private respondents.[15] Such argument, however, has already been overruled by the Court in both the Regala[16] and Castillo[17] cases, wherein the Court ordered the exclusion of petitioners therein from the acts complained of in connection with the legal services they rendered to the other respondents. Thus, the Court held in the Castillo case that:

It is true that unlike in Regala, petitioner in the present case is not being required to name his clients. However, the case of Regala is still applicable to the present case because the two cases are the same in more important aspects.

The fact of the lawyer-client relationship between petitioner and defendants Enriquezes and Panlilios was immediately raised by petitioner as one of his affirmative defenses. In the same vein, in Regala the professional relationship was raised merely as a defense by defendant lawyers and was not yet proved during the trial. This notwithstanding, this Court struck out the complaint against the lawyers.

The respondent Republic argued in its Comment that:

Moreover, the rule of confidentiality under the lawyer-client relationship is not a valid ground to dismiss a complaint against a party. It is merely a ground for disqualification of a witness (Section 24, Rule 130, Rules of Court) and may only be invoked at the appropriate time, such as, when a lawyer is under compulsion to answer as witness, as when, having taken the witness stand, he is questioned on such confidential communication or advice, or is being otherwise judicially coerced to produce, through subpoena duces tecum to otherwise, letters or other documents containing the same privileged matter. But defendant is not being required to testify about or otherwise reveal any confidential communication made by the client to him or his advice given thereon. What is clear from the complaint is that defendant is being sued as principal defendant for being in conspiracy with the other defendants in the commission of the acts complained of.

Besides, the attorney-client privileged communication does not apply if the confidence received by an attorney is for the purpose of advancing a criminal or fraudulent purpose.

This was the same argument raised by the Republic in the case of Regala. In overruling the Republics position, this Court ruled:

An argument is advanced that the invocation by petitioners of the privilege of attorney-client confidentiality at this stage of the proceedings is premature and that they should wait until they are called to testify and examine as witnesses as to matters learned in confidence before they can raise their objection. But petitioners are not mere witnesses. They are co-principals in the case for recovery of alleged ill-gotten wealth. They have made their position clear from the very beginning that they are not willing to testify and they cannot be compelled to testify in view of their constitutional right against self-incrimination and of their fundamental legal right to maintain inviolate the privilege of attorney-client confidentiality.[18]

In this case, respondents Regala and Concepcion were constituted as Members of the Board Directors of UNICOM and UCPB in the course of their duties as counsel, and following the ruling in the Regala and Castillo cases, they should be excluded as defendants to the case.

Finally, during the pendency of this petition, respondent Maria Clara L. Lobregat died on January 2, 2004.[19] The death of an accused prior to final judgment terminates his criminal liability as well as the civil liability based solely thereon.[20] Consequently, the case against respondent Lobregat should be dismissed.

WHEREFORE, the first and second Motions for Reconsideration filed by private respondent Eduardo M. Cojuangco, Jr., and the motion for reconsideration of petitioner Republic of the Philippines are hereby DENIED with FINALITY.

The Decision dated September 23, 2002 is MODIFIED to the effect that the charges against deceased respondent Maria Clara L. Lobregat in OMB-0-90-2811, pending preliminary investigation before the Office of the Ombudsman, is ordered dismissed.

SO ORDERED.

Davide, Jr., C.J., Puno, Quisumbing, (Chairman), and Callejo, Sr., JJ., concur.

[1] Rollo, pp. 637-638.

[2] Id., p. 693.

[3] Id., pp. 1170-1180.

[4] Original Record, Folder 1, p.783.

[5] Rollo, p. 81.

[6] Id., pp. 81-82.

[7] Republic vs. Desierto, G.R. No. 131966, September 23, 2002, 389 SCRA 452, 459.

[8] G.R. No. 109376, January 20, 2000, 322 SCRA 655 [2000], cited in Republic vs. Desierto, G.R. No. 136506, August 23, 2001, 363 SCRA 585.

[9] G. R. No. 144542, June 29, 2001, 360 SCRA 478, 485, 487-488.

[10] Id., pp. 487-488.

[11] Records, Vol. 1, p. 672.

[12] Guerrero vs. Court of Appeals, G.R. No. 107211, June 28, 1996, 257 SCRA 703, 716.

[13] Republic vs. COCOFED, G.R. Nos. 147062-64, December 14, 2001, 372 SCRA 462, 481.

[14] Republic vs. Desierto, G.R. No. 136506, August 23, 2001, 363 SCRA 585.

[15] Rollo, p. 695.

[16] Regala vs. Sandiganbayan, First Division, G.R. No. 105938, September 20, 1996, 262 SCRA 122.

[17] Castillo vs. Sandiganbayan, G.R. No. 138231, February 21, 2002, 377 SCRA 509.

[18] Id., pp. 513-515.

[19] Rollo, Annex 1, p. 1137.

[20] Article 89 of the Revised Penal Code; Benedicto vs. Court of Appeals, G.R. No. 125359, September 4, 2001, 364 SCRA 334, 362.

THIRD DIVISION [G.R. No. 147511. January 20, 2003]

MARINA Z. REYES; ALFREDO A. FRANCISCO; ANGELITA Z. GARCIA; ALFREDO Z. FRANCISCO, JR; ARMANDO Z. FRANCISCO; ALMA C. FRANCISCO; EUGENIA Z. LUNA; CLARITA Z. ZABALLERO, LEONARDO Z. ZABALLERO, JR, and TEODORO Z. ZABALLERO, in substitution of LEONARDO M. ZABALLERO; AUGUSTO M. ZABALLERO; FRINE A. ZABALLERO; ELENA FRONDA ZABALLERO; VICTOR GREGORIO F. ZABALLERO; MARIA ELENA F. ZABALLERO; LOURDES ZABALLERO-LAVA; SOCORRO EMILIA ZABALLERO-YAP; and TERESITA F. ZABALLERO, petitioners, vs. NATIONAL HOUSING AUTHORITY, respondent. DECISION PUNO, J.:

This is an appeal by certiorari from the decision of the Court of Appeals in CA-GR CV No. 51641 dated September 29, 2000[1] affirming the judgment of the Regional Trial Court of Quezon City, Branch 79 which dismissed the complaint for forfeiture of rights filed by herein petitioners, as well as the Resolution dated March 13, 2001 denying petitioners motion for reconsideration.

Records show that in 1977, respondent National Housing Authority (NHA) filed separate complaints for the expropriation of sugarcane lands, particularly Lot Nos. 6450, 6448-E, 6198-A and 6199 of the cadastral survey of Dasmarias, Cavite belonging to the petitioners, before the then Court of First Instance of Cavite, and docketed as Civil Case Nos. T.G.-392, T.G.-396 and T.G.-417. The stated public purpose of the expropriation was the expansion of the Dasmarias Resettlement Project to accommodate the squatters who were relocated from the Metropolitan Manila area. The trial court rendered judgment ordering the expropriation of these lots and the payment of just compensation. This was affirmed by the Supreme Court in a decision rendered on October 29, 1987 in the case of NHA vs. Zaballero[2] and which became final on November 26, 1987.[3]

On February 24, 1989, the expropriation court (now Branch 18, Regional Trial Court of Tagaytay City) issued an Order[4] the dispositive portion of which reads:

WHEREFORE, and resolving thus, let an Alias Writ of Execution be immediately issued and that:

(1) The Register of Deeds of the Province of Cavite is hereby ordered to transfer, in the name of the plaintiff National Housing Authority, the following:

(a) Transfer Certificate No. RT-638 containing an area of 79,167 square meters situated in Barrio Bangkal, Dasmarias, Cavite;

(b) Transfer Certificate of Title No. T-55702 containing an area of 20,872 square meters situated in Barrio Bangkal, Dasmarias, Cavite;

(c) Transfer Certificate of Title No. RT-639 and RT-4641 covering Lot Nos. 6198-A and 6199 with an aggregate area of 159,985 square meters also situated in Barrio Bangkal, Dasmarias, Cavite.

(2) Plaintiff National Housing Authority is likewise hereby ordered, under pain of contempt, to immediately pay the defendants, the amounts stated in the Writ of Execution as the adjudicated compensation of their expropriated properties, which process was received by it according to the records, on September 26, 1988, segregating therefrom, and in separate check, the lawyers fees in favor of Atty. Bobby P. Yuseco, in the amount of P322,123.05, as sustained by their contract as gleaned from the records, with no other deduction, paying on its own (NHA) account, the necessary legal expenses incident to the registration or issuance of new certificates of title, pursuant to the provisions of the Property Registration Law (PD 1529);

(3) Defendants, however, are directed to pay the corresponding capital gains tax on the subject properties, directing them additionally, to coordinate with the plaintiff NHA in this regard, in order to facilitate the termination of this case, put an end to this controversy and consign the same to its final rest.

For the alleged failure of respondent NHA to comply with the above order, petitioners filed on April 28, 1992 a complaint[5] for forfeiture of rights before the Regional Trial Court of Quezon City, Branch 79, in Civil Case No. Q-92-12093. They alleged that respondent NHA had not relocated squatters from the Metropolitan Manila area on the expropriated lands in violation of the stated public purpose for expropriation and had not paid the just compensation fixed by the court. They prayed that respondent NHA be enjoined from disposing and alienating the expropriated properties and that judgment be rendered forfeiting all its rights and interests under the expropriation judgment. In its Answer,[6] respondent NHA averred that it had already paid a substantial amount to herein petitioners and that the expropriation judgment could not be executed in view of several issues raised by respondent NHA before the expropriation court (now Branch 18, RTC, Tagaytay City) concerning capital gains tax, registration fees and other expenses for the transfer of title to respondent NHA, as well as the claims for attorneys fees of Atty. Joaquin Yuseco, Jr., collaborating counsel for petitioners.

Ocular inspections[7] conducted by the trial court on the subject properties show that:

1. 80% of Lot No. 6198-A with an area of 120,146 square meters is already occupied by relocatees whose houses are made of light materials with very few houses partly made of hollow blocks. The relocatees were relocated only on (sic) March of 1994;

2. Most of the area covered by Lot No. 2075 is almost occupied by houses and structures, most of which are made of concrete materials. These houses are not being occupied by squatters relocated to the said lot by the defendant NHA;

3. Lot No. 6199 is also occupied by concrete houses and structures but likewise there are no relocatees in said lot. A large area of the same is still unoccupied.

On September 29, 1995, the trial court rendered judgment dismissing the complaint. Finding that the failure of respondent NHA to pay just compensation and of petitioners to pay capital gains tax are both unjustified and unreasonable, the trial court held that: (1) respondent NHA is not deemed to have abandoned the public purpose for which the subject properties were expropriated because the relocation of squatters involves a long and tedious process. It ruled that respondent NHA actually pursued the public purpose of the expropriation when it entered into a contract with Arceo C. Cruz involving the construction of low cost housing on the expropriated lots to be sold to qualified low income beneficiaries; (2) there is no condition imposed in the expropriation judgment that the subject properties shall revert back to its original owners in case the purpose of expropriation is terminated or abandoned; (3) the payment of just compensation is independent of the obligation of herein petitioners to pay capital gains tax; and (4) in the payment of just compensation, the basis should be the value at the time the property was taken. On appeal, the Court of Appeals affirmed the decision of the trial court.

Petitioners are now before us raising the following assignment of errors:

1. The Honorable Court of Appeals had decided a question of substance not in accord with justice and equity when it ruled that, as the judgment of the expropriation court did not contain a condition that should the expropriated property be not used for the intended purpose it would revert to the condemnee, the action to declare the forfeiture of rights under the expropriation judgment can not prosper;

2. The Honorable Court of Appeals decided a question of substance not in accord with jurisprudence, justice and equity when it ruled that the non-payment is not a ground for forfeiture;

3. The Honorable Court of Appeals erred in not declaring the judgment of expropriation forfeited in light of the failure of respondent to use the expropriated property for the intended purpose but for a totally different purpose.

The petition is not impressed with merit.

Petitioners contend that respondent NHA violated the stated public purpose for the expansion of the Dasmarias Resettlement Project when it failed to relocate the squatters from the Metro Manila area, as borne out by the ocular inspection conducted by the trial court which showed that most of the expropriated properties remain unoccupied. Petitioners likewise question the public nature of the use by respondent NHA when it entered into a contract for the construction of low cost housing units, which is allegedly different from the stated public purpose in the expropriation proceedings. Hence, it is claimed that respondent NHA has forfeited its rights and interests by virtue of the expropriation judgment and the expropriated properties should now be returned to herein petitioners. We are not persuaded.

The 1987 Constitution explicitly provides for the exercise of the power of eminent domain over private properties upon payment of just compensation. More specifically, section 9, Article III states that private property shall not be taken for public use without just compensation. The constitutional restraints are public use and just compensation.

Petitioners cannot insist on a restrictive view of the eminent domain provision of the Constitution by contending that the contract for low cost housing is a deviation from the stated public use. It is now settled doctrine that the concept of public use is no longer limited to traditional purposes. Here, as elsewhere, the idea that public use is strictly limited to clear cases of use by the public has been abandoned. The term public use has now been held to be synonymous with public interest, public benefit, public welfare, and public convenience.[8] The rationale for this new approach is well explained in the case of Heirs of Juancho Ardona, et al. vs. Reyes, et al.,[9] to wit:

The restrictive view of public use may be appropriate for a nation which circumscribes the scope of government activities and public concerns and which possesses big and correctly located public lands that obviate the need to take private property for public purposes. Neither circumstance applies to the Philippines. We have never been a laissez faire State. And the necessities which impel the exertion of sovereign power are all too often found in areas of scarce public land or limited government resources.

xxx

xxx

xxx

The taking to be valid must be for public use. There was a time when it was felt that a literal meaning should be attached to such a requirement. Whatever project is undertaken must be for the public to enjoy, as in the case of streets or parks. Otherwise, expropriation is not allowable. It is not anymore. As long as the purpose of the taking is public, then the power of eminent domain comes into play. As just noted, the constitution in at least two cases, to remove any doubt, determines what is public use. One is the expropriation of lands to be subdivided into small lots for resale at cost to individuals. The other is in the transfer, through the exercise of this power, of utilities and other private enterprise to the government. It is accurate to state then that at present whatever may be beneficially employed for the general welfare satisfies the requirement of public use. (emphasis supplied)

The act of respondent NHA in entering into a contract with a real estate developer for the construction of low cost housing on the expropriated lots to be sold to qualified low income beneficiaries cannot be taken to mean as a deviation from the stated public purpose of their taking. Jurisprudence has it that the expropriation of private land for slum clearance and urban development is for a public purpose even if the developed area is later sold to private homeowners, commercials firms, entertainment and service companies, and other private concerns.[10]

Moreover, the Constitution itself allows the State to undertake, for the common good and in cooperation with the private sector, a continuing program of urban land reform and housing which will make at affordable cost decent housing and basic services to underprivileged and homeless citizens in urban centers and resettlement areas.[11] The expropriation of private property for the purpose of socialized housing for the marginalized sector is in furtherance of the social justice provision under Section 1, Article XIII of the Constitution which provides that:

SECTION 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good.

To this end, the State shall require the acquisition, ownership, use and disposition of property and its increments.

It follows that the low cost housing project of respondent NHA on the expropriated lots is compliant with the public use requirement.

We likewise do not subscribe to petitioners contention that the stated public purpose was abandoned when respondent NHA failed to occupy the expropriated lots by relocating squatters from the Metro Manila area. The expropriation judgment declared that respondent NHA has a lawful right to take petitioners properties for the public use or purpose of expanding the Dasmarias Resettlement Project. The taking here is absolute, without any condition, restriction or qualification. Contrary to petitioners submission, the ruling enunciated in the early case of Fery vs. Municipality of Cabanatuan,[12] is still good and sound doctrine, viz.:

x x x If, for example, land is expropriated for a particular purpose, with the condition that when that purpose is ended or abandoned the property shall return to its former owner, then, of course, when the purpose is terminated or abandoned the former owner reacquires the property so expropriated. x x x If, upon the contrary, however, the decree of expropriation gives to the entity a fee simple title, then, of course, the land becomes the absolute property of the expropriator x x x.

When land has been acquired for public use in fee simple unconditionally, either by the exercise of eminent domain or by purchase, the former owner retains no rights in the land, and the public use may be abandoned, or the land may be devoted to a different use, without any impairment of the estate or title acquired, or any reversion to the former owner.

Petitioners further aver that the continued failure of respondent NHA to pay just compensation for a long period of time justifies the forfeiture of its rights and interests over the expropriated lots. They demand the return of the expropriated lots. Respondent NHA justifies the delay to pay just compensation by reason of the failure of petitioners to pay the capital gains tax and to surrender the owners duplicate certificates of title.

In the recent case of Republic of the Philippines vs. Court of Appeals, et al.,[13] the Court ruled that nonpayment of just compensation does not entitle the private landowners to recover possession of their expropriated lots. Thus:

Thus, in Valdehueza vs. Republic where the private landowners had remained unpaid ten years after the termination of the expropriation proceedings, this Court ruled

The points in dispute are whether such payment can still be made and, if so, in what amount. Said lots have been the subject of expropriation proceedings. By final and executory judgment in said proceedings, they were condemned for public use, as part of an airport, and ordered sold to the government. x x x. It follows that both by virtue of the judgment, long final, in the expropriation suit, as well as the annotations upon their title certificates, plaintiffs are not entitled to recover possession of their expropriated lots which are still devoted to the public use for which they were expropriated but only to demand the market value of the same.

Said relief may be granted under plaintiffs prayer for such other remedies, which may be deemed just and equitable under the premises.

The Court proceeded to reiterate its pronouncement in Alfonso vs. Pasay City where the recovery of possession of property taken for public use prayed for by the unpaid landowner was denied even while no requisite expropriation proceedings were first instituted. The landowner was merely given the relief of recovering compensation for his property computed at its market value at the time it was taken and appropriated by the State.

The judgment rendered by the Bulacan RTC in 1979 on the expropriation proceedings provides not only for the payment of just compensation to herein respondents but likewise adjudges the property condemned in favor of petitioner over which parties, as well as their privies, are bound. Petitioner has occupied, utilized and, for all intents and purposes, exercised dominion over the property pursuant to the judgment. The exercise of

such rights vested to it as the condemnee indeed has amounted to at least a partial compliance or satisfaction of the 1979 judgment, thereby preempting any claim of bar by prescription on grounds of non-execution. In arguing for the return of their property on the basis of non-payment, respondents ignore the fact that the right of the expropriating authority is far from that of an unpaid seller in ordinary sales, to which the remedy of rescission might perhaps apply. An in rem proceeding, condemnation acts upon the property. After condemnation, the paramount title is in the public under a new and independent title; thus, by giving notice to all claimants to a disputed title, condemnation proceedings provide a judicial process for securing better title against all the world than may be obtained by voluntary conveyance. (emphasis supplied)

We, however, likewise find the refusal of respondent NHA to pay just compensation, allegedly for failure of petitioners to pay capital gains tax and surrender the owners duplicate certificates of title, to be unfounded and unjustified.

First, under the expropriation judgment the payment of just compensation is not subject to any condition. Second, it is a recognized rule that although the right to enter upon and appropriate the land to public use is completed prior to payment, title to the property expropriated shall pass from the owner to the expropriator only upon full payment of the just compensation. In the case of Association of Small Landowners in the Phils., Inc., et al. vs. Secretary of Agrarian Reform,[14] it was held that:

Title to property which is the subject of condemnation proceedings does not vest the condemnor until the judgment fixing just compensation is entered and paid, but the condemnors title relates back to the date on which the petition under the Eminent Domain Act, or the commissioners report under the Local Improvement Act, is filed.

x x x Although the right to appropriate and use land taken for a canal is complete at the time of entry, title to the property taken remains in the owner until payment is actually made.

In Kennedy v. Indianapolis, the US Supreme Court cited several cases holding that title to property does not pass to the condemnor until just compensation had actually been made. In fact, the decisions appear to be uniformly to this effect. As early as 1838, in Rubottom v. McLure, it was held that actual payment to the owner of the condemned property was a condition precedent to the investment of the title to the property in the State albeit not to the appropriation of it to public use. In Rexford v. Knight, the Court of Appeals of New York said that the construction upon the statutes was that the fee did not vest in the State until the payment of the compensation although the authority to enter upon and appropriate the land was complete prior to the payment. Kennedy further said that both on principle and authority the rule is x x x that the right to enter on and use the property is complete, as soon as the property is actually appropriated under the authority of law for a public use, but that the title does not pass from the owner without his consent, until just compensation has been made to him.

Our own Supreme Court has held in Visayan Refining Co. v. Camus and Paredes, that:

If the laws which we have exhibited or cited in the preceding discussion are attentively examined it will be apparent that the method of expropriation adopted in this jurisdiction is such as to afford absolute reassurance that no piece of land can be finally and irrevocably taken from an unwilling owner until compensation is paid. x x x. (emphasis supplied)

With respect to the amount of the just compensation still due and demandable from respondent NHA, the lower courts erred in not awarding interest computed from the time the property is actually taken to the time when compensation is actually paid or deposited in court. In Republic, et al. vs. Court of Appeals, et al.,[15] the Court imposed interest at 12% per annum in order to help eliminate the issue of the constant fluctuation and inflation of the value of the currency over time, thus:

The constitutional limitation of just compensation is considered to be the sum equivalent to the market value of the property, broadly described to be the price fixed by the seller in open market in the usual and ordinary course of legal action and competition or the fair value of the property as between one who receives, and one who desires to sell, it being fixed at the time of the actual taking by the government. Thus, if property is taken for public use before compensation is deposited with the court having jurisdiction over the case, the final compensation must include interests on its just value to be computed from the time the property is taken to the time when compensation is actually paid or deposited with the court. In fine, between the taking of the property and the actual payment, legal interests accrue in order to place the owner in a position as good as (but not better than) the position he was in before the taking occurred.

x x x This allowance of interest on the amount found to be the value of the property as of the time of the taking computed, being an effective forbearance, at 12% per annum should help eliminate the issue of the constant fluctuation and inflation of the value of the currency over time. Article 1250 of the Civil Code, providing that, in case of extraordinary inflation or deflation, the value of the currency at the time of the establishment of the obligation shall be the basis for the payment when no agreement to the contrary is stipulated, has strict application only to contractual obligations. In other words, a contractual agreement is needed for the effects of extraordinary inflation to be taken into account to alter the value of the currency.

Records show that there is an outstanding balance of P1,218,574.35 that ought to be paid to petitioners.[16] It is not disputed that respondent NHA took actual possession of the expropriated properties in 1977.[17] Perforce, while petitioners are not entitled to the return of the expropriated property, they are entitled to be paid the balance of P1,218,574.35 with legal interest thereon at 12% per annum computed from the taking of the property in 1977 until the due amount shall have been fully paid.

WHEREFORE, the appealed judgment is modified as follows:

1. Ordering respondent National Housing Authority to pay petitioners the amount of P1,218,574.35 with legal interest thereon at 12% per annum computed from the taking of the expropriated properties in 1997 until the amount due shall have been fully paid;

2. Ordering petitioners to pay the capital gains tax; and

3. Ordering petitioners to surrender to respondent National Housing Authority the owners duplicate certificates of title of the expropriated properties upon full payment of just compensation.

SO ORDERED.

Panganiban, Sandoval-Gutierrez, Corona and Carpio-Morales, JJ., concur.

[1] Penned by Associate Justice Remedios A. Salazar-Fernando, with Quirino D. Abad Santos, Jr. and Salvador J. Valdez, Jr, JJ., concurring; Annex A, Petition; Rollo, pp. 49-66.

[2] 155 SCRA 224 (1987).

[3] Exhibit B; Original Records, Volume 2, p. 305.

[4] Exhibit I; ibid., pp. 318-322.

[5] Original Records, Volume 1, pp. 1-5.

[6] Ibid., pp. 10-14.

[7] Commissioners Report issued in compliance with the Order dated July 13, 1994; Original Records, Volume 2, p. 407; Commissioners Report issued in compliance with the Order dated November 11, 1994; ibid., p. 653.

[8] Heirs of Juancho Ardona, et al. vs. Reyes, et al., 125 SCRA 220 (1983).

[9] Supra.

[10] Supra.

[11] Section 9, Article XIII, 1987 Constitution.

[12] 42 Phil 28 (1921).

[13] G.R. No. 146587, July 2, 2002.

[14] 175 SCRA 343 (1989).

[15] G.R. No. 146587, July 2, 2002.

[16] Original Records, Volume 3, pp. 731-732.

[17] See Zaballero, et al. vs. NHA, et al., supra, pp. 226-227.

G.R. No. 160445

February 16, 2006

JOSE TEOFILO T. MERCADO and MA. AGNES R. MERCADO, Petitioners, vs. SECURITY BANK CORPORATION, Respondent.

RESOLUTION

SANDOVAL GUTIERREZ, J.:

The dignity of the Court can never be protected where infraction of ethics meets with complacency rather than punishment. The people should not be given cause to break faith that a magistrate is the epitome of honor amongst men. To preserve its dignity, a court of justice should not yield to the assaults of disrespect.1

Incidental to the present petition for review on certiorari is the contempt proceedings against petitioner Jose Teofilo T. Mercado arising from his letter dated October 18, 2004, insinuating that: (1) the ponente succumbed to the "tremendous pressure" of Chief Justice Hilario G. Davide, Jr. in denying his petition; (2) the Security Bank Corporation, respondent, financed the ponentes travel to the United States; and (3) the ponente gave respondent a "go signal" to sell his property.

The facts are as follows:

On December 12, 2003, Jose Teofilo T. Mercado and Ma. Agnes R. Mercado, petitioners, filed with this Court a Petition for Review on Certiorari assailing the Court of Appeals (a) Decision2 dated May 27, 2003 in CA-G.R. SP No. 71570 dismissing their petition for annulment of judgment; and (b) its Resolution3 dated October 23, 2003 denying their motion for reconsideration.

On January 12, 2004, we denied the petition because of petitioners failure to show that a reversible error had been committed by the Appellate Court.4

Petitioners filed a motion for reconsideration alleging that the Court of Appeals, in dismissing their petition for annulment of judgment, merely relied on technical rules of procedure, thereby sacrificing the greater interest of justice and equity; and that their former counsels gross negligence constitutes extrinsic fraud, a ground for annulling the trial courts judgment.

On March 24, 2004, we issued a Resolution granting petitioners motion for reconsideration and reinstating their petition. We likewise required Security Bank Corporation, respondent, to comment on the petition.

In its comment, respondent averred that the issues raised in the present petition are mere rehash of the issues petitioners raised before the Appellate Court. As to the alleged negligence of their counsel, respondent pointed out that the same cannot be considered an extrinsic fraud since through the same counsel, they actively pursued and recovered moral damages and attorneys fees. Furthermore, assuming that petitioners counsel refused to file a motion for reconsideration with the trial court, still, they had the option to terminate his services and hire another; and that they should not have waited for four (4) years before filing the petition for annulment of judgment.

On June 7, 2004, we issued a Resolution denying the petition on the ground that petitioners indeed failed to show that a reversible error had been committed by the Appellate Court.

Petitioners filed a motion for reconsideration, but we dismissed the same in our Resolution dated September 15, 2004, thus:

We find no compelling reason to grant petitioners motion for reconsideration.

The Court of Appeals was correct in holding that before a petition for annulment of judgment can prosper, petitioners must first file an appeal, a motion for new trial or a petition for relief as required by the Revised Rules of Court. Having failed to do so, they cannot avail of an action for annulment of judgment, otherwise, they would benefit from their inaction or negligence.

It bears emphasis at this point that an action for annulment of judgment cannot and is not a substitute for the lost remedy of appeal.

Petitioners contention that their failure to appeal from the trial courts Decision was due to the negligence of their former counsel lacks merit. Records show that they participated actively, through their counsel, in the proceedings before the trial court. As party litigants, they were expected to be vigilant of their interests and, therefore, should monitor the progress of the case. Thus, they should have constantly communicated with their counsel to be advised of the status of their case. This way, they would not have lost their opportunity to appeal.

Granting that petitioners petition for annulment of judgment is in order, still the same is dismissible. For the remedy of annulment of judgment to prosper, either one of the following grounds must be present: (1) extrinsic fraud or (2) lack of jurisdiction or denial of due process. Petitioner argues that their counsels negligence constitutes extrinsic fraud. We are not convinced. Extrinsic fraud can be committed by a counsel against his client when the latter is prevented from presenting his case to the court. This situation is not present in this case.

We reiterate that in G.R. No. 151816, we ruled that the Court of Appeals did not commit reversible error in dismissing petitioners petition for certiorari and prohibition assailing the trial courts order of execution of its Decision in favor of respondent bank.

In fine, this Resolution should now write finis to the instant case.5

Petitioners filed a second motion for reconsideration but was denied for being prohibited.

On October 18, 2004, petitioner Mercado wrote Chief Justice Hilario G. Davide, Jr. stating that:

On March 24, 2004, the Third Division, in its Resolution, granted our Motion for Reconsideration and even gave due course and reinstated our petition.

But when I received the Resolution dated June 7, 2004 denying my Petition for Review on July 12, 2004, I immediately called my counsel, Atty. Jose P. Villanueva, on the phone. I asked him why on earth the ponente denied again my petition on the same ground for failure of petitioners to show that a reversible error had been committed by the appellate court? My counsel said, the ponente informed him that she has to deny our petition on the same ground because of the tremendous pressure from the Chief Justice to favor Security Bank Corporation (SBC). By the way, my counsel and the ponente are very close and long time friends to each other. When I heard the bad news, I was so shocked in disbelief. It is true, what you did is unthinkable, ungodly, and malicious. It is also very suspicious that after a few days after my conversation with Atty. Villanueva, he and his family left for London, leaving my case to the care of one of his Associates. Later on, the ponente herself left for the U.S.A. to visit her children. Is this a coincidence? As the saying goes, when there is smoke, there is fire. Another coincidence, before the receipt of the Resolution dated June 7, 2004, denying our petition on the basis of SBCs unsubstantiated Comment, SBC sold our property to M. Miranda Development Corporation and succeeded in getting a permit to demolish the four (4) building erected in our property from the Forbes Park Association, even if the case is still pending and we have not even filed our Motion for Reconsideration with the Supreme Court, not to mention the Lis Pendens annotated on the title of the property in the name of SBC. The person who bought our property from SBC for P120,000,000.00 is known to my nephew and us. While the buyer is drinking with my nephew and others, not knowing that one of them is my nephew, he bragged to them that he just bought the property of the Mercados in Forbes Park. The buyer said I paid already the property because SBC told me that they already have the go-signal from the

ponente to sell the property. Few days thereafter, all the improvements in our property were totally demolished by a construction company owned by my provincemate in Pampanga by the name of Mr. Bana, whom I personally met at the site while the demolition was being carried out.

Have you no conscience at all? Are you not bothered of the final judgment after life? Is this the legacy you want to impart to your children and all the Filipino people? What you did to my family and I is unforgivable not only to God and to humanity. You have deprived us of our precious possession without due process. This is also the abode of my wife, my children, their respective spouses, and my 10 grandchildren, not to mention the several household members and their families.

I would like to believe that the Supreme Court is the last bulwark of true justice. If you, the Chief Justice, himself, are the first person to make a mockery of our laws, no wonder why foreign investors do not want to invest in our country because they said, there is no justice in our courts, the Supreme Court in particular. This is in the highest degree of injustice. You have deprived us of our basic fundamental rights in the protection of our property without due process. There is no justice in our courts, the Supreme Court in particular. Do you think I will bring my case to the Supreme Court by mere question of facts? From our petition for Annulment of Judgment filed before the Court of Appeals and now the Petition for Review on Certiorari with the Supreme Court, my wife and I as petitioners-movants have clearly invoked LACK OF JURISDICTION on the part of the trial court to adjudicate respondent SBCs counterclaim for the payment of the loan. As I understand, when the ground invoked as basis for Annulment of Judgment is LACK OF JURISDICTION, the Petition may be filed at any time before it is barred by estoppel or laches, neither of which is obtaining in our case. Even in laymans legal point of view, this Petition of ours clearly and undoubtedly raises a question of law.

Please I beg of you, have a last hard look on our Petition and the two (2) Motions for Reconsideration and let us focus and not evade on the real issue on LACK OF JURISDICTION on the part of the trial court and not concentrate on negligence of counsel and other trivial reasons, etc. Or better yet, please refrain from influencing the members of the Third Division. Let them deliberate regularly on our case or inhibit themselves on the case. Please let the Institution serve justice, and not individual pecuniary interests. SBCs counsels are experts in fabrication of facts and in misleading the courts. I have a feeling that they might as well have led you to believe something, which is not true. Please dont be an instrument of their wicked schemes, lest the Supreme Court itself becomes their means to perpetrate injustice. This is the only Bank which is not interested in amicable settlement in spite of my several sincere offers of amicable settlement since the case was filed in 1995 up to 2003, and these are all in writing and duly received by SBC. Unfortunately, all my offers were rejected by them.

I wrote you this letter as a last resort because my family and I looked up at you before as the most honest and upright Chief Justice. As we would like to know if you really had intervened and put pressure, as the Ponente said to Atty. Villanueva, (my counsel) to favor SBC because if you did, then we rest our case. Please enlighten us before we seek another forum to seek redress the injustices, sleepless nights, humiliation and embarrassment we suffered. If we are wrong about you, and I hope we really are wrong, please accept our appeal for forgiveness and apologies. GOD is my witness, that what I have told you is the truth.

Mr. Chief Justice, the Filipino people know how religious you are. Please do what a religious man ought to do in serving justice. Please live up to our, as well as HIS expectations. (Emphasis supplied)

On November 2, 2004, Chief Justice Davide required Mercados lawyer, Atty. Jose P. Villanueva, to comment on the letter and show cause why he should not be held in contempt of court.6

On November 17, 2004, the Courts Third Division ordered Mercado to personally appear on November 22, 2004 and show cause why he should not be held in contempt of court.7

On the scheduled date, Mercado, together with Atty. Pablo G. Macapagal, his new counsel, appeared before the Third Division and swore to the truth of the letter he wrote.8 He manifested that he only stated therein what Atty. Villanueva told him that his petition was denied for the second time "because of the tremendous pressure from the Chief Justice." He further manifested that during the wake of Atty. Villanuevas mother, he (Atty. Villanueva) pointed to Justice Angelina Sandoval-Gutierrez, bragging that she is "a very very good, close and long time friend of his."9 However, while stating this, Mercado referred to Justice Conchita Carpio Morales as Justice Gutierrez.10

Forthwith, the Third Division issued in open court a Resolution11 directing Atty. Macapagal to submit a written explanation why Mercado should not be held in contempt of Court.

For his part, Atty. Villanueva submitted a comment,12 strongly denying Mercados allegations in his letter. He denied having told petitioners that their petition had to be denied again "because there was a tremendous pressure from the Chief Justice in favor of Security Bank Corporation." He also stressed that there was no correlation between the ponentes trip to the United States and his trip to London. He explained that he and his family went to London to attend the graduation of his daughter, Cherriemaya Veloso Villanueva. To substantiate this, he submitted a photocopy of "London School of Economics (LSE) and Political Science Presentation Ceremonies" where the name of his daughter, Cherriemaya Veloso Villanueva, is listed as one of the successful graduates. He likewise submitted a photocopy of his passport indicating his departure for London on July 14, 2004 and his arrival in the Philippines on July 27, 2004. In addition, he said he never met anyone from respondent bank, including its lawyers, and that there is no truth to Mercados statement regarding his nephews alleged encounter with the new owners of the subject property.

On December 13, 2004, Mercado submitted his explanation13 why he should not be punished for contempt of court. He claimed that the contemptuous statements in his letter merely reiterate the tenor of Atty. Villanuevas statements. He offered an apology, explaining that he wrote the letter while he was "under the impulse of personal stress" as he was losing his residential house.

On January 26, 2005, the Third Division ordered both Mercado and Atty. Villanueva to appear on February 21, 2005 to elucidate their respective positions.

Mercado testified that it was Atty. Villanueva who informed him that the ponente is Justice Gutierrez. Atty. Villanueva even bragged that she is his "very, very close friend."

For his part, Atty. Villanueva testified that it was Mercado who informed him that Justice Gutierrez is the ponente. He also confirmed that she attended the wake of his mother. But he denied Mercados claim that he pointed to Justice Gutierrez and said that she is his close friend.14

Thereafter, the Third Division designated Court of Appeals Justice Renato C. Dacudao as Commissioner to receive evidence on the factual issues involved in the contempt incident. 15

On May 18, 2005, Justice Dacudao submitted his Investigation, Report and Recommendation. He found Mercado "guilty of improper conduct tending to bring the authority and the administration of justice by the Court into disrespect when he openly belittled, degraded, and embarrassed the Highest Court of the land, particularly the Chief Justice x x x." However, he held that "there was no showing that he acted with malice and/or in bad faith or that he was properly motivated." Thus, he recommended that Mercado be fined in the sum of five thousand pesos (P5,000.00).

We cannot sustain Justice Dacudaos finding that Mercado did not act with malice or bad faith in imputing those derogatory and disrespectful remarks against Chief Justice Davide and the ponente.

Bad faith imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong.16 It contemplates a state of mind affirmatively operating with furtive design or some motive of self-interest or illwill for ulterior purposes.17 Malice is of the same genre. It connotes a sinister motive.

Mercados addressing such letter to Chief Justice Davide is a perfect illustration of bad faith and malice tending directly to degrade the administration of justice. It transgresses the permissible bounds of fair comment and criticisms bringing into disrepute, not only the authority and integrity of Chief Justice Davide and the ponente, but also of the entire Judiciary. While feigning to be searching for truth on whether Chief Justice Davide indeed exerted "tremendous pressure" to the ponente, he repeatedly humiliated him and the Judiciary in the most loutish and insolent manner. He accused him of doing an "unthinkable, ungodly, and malicious" act and of depriving his (Mercados) family of their "basic fundamental rights in the protection of (their) property without due process." He concluded that what Chief Justice Davide did to his family "is unforgivable not only to God and to humanity." In an insulting and insolent tenor, he stated that "if the Chief Justice, himself, is the first person to make a mockery of our laws," then there is "no wonder why foreign investors do not want to invest in our country."

Furthermore, he alleged that an irregularity or bribery attended the denial of his petition for review. He insinuated that the travels of Atty. Villanueva and the ponente abroad were financed by respondent bank, stating that "when there is smoke, there is fire." He also recklessly accused the ponente of giving respondent bank a "go-signal" to sell his property. In this backdrop, he asked Chief Justice Davide to "refrain from influencing the members of the Third Division;" "let them deliberate regularly on the case or inhibit themselves on the case;" and "let the Institution serve justice, and not individual pecuniary interests."

Finally, he condemned the entire Judiciary by saying "there is no justice in our courts, the Supreme Court in particular." And with impudence, he threatened Chief Justice Davide to enlighten him before he "seeks another forum to seek redress for the injustices, sleepless nights, humiliation and embarrassment" his family suffered.

Without doubt, Mercados letter is marked with malice, bad faith, and gross disrespect. He committed a remarkable feat of character assassination and honor vilification. Contrary to his claim that he is just verifying the truth of Atty. Villanuevas statements, the words in his letter are more accusatory than inquisitorial. What is disconcerting is that his accusations have no basis in fact and in law. Obviously, they caused intense pain and humiliation on the part of Chief Justice Davide and the ponente.

The Resolution of the Third Division of this Court dated September 15, 2004 denying Mercados motion for reconsideration is well explained. A principle almost repeated to satiety is that "an action for annulment of judgment cannot and is not a substitute for the lost remedy of appeal." A party must have first availed of appeal, a motion for new trial or a petition for relief before an action for annulment can prosper. Its obvious rationale is to prevent the party from benefiting from his inaction or negligence. Also, the action for annulment of judgment must be based either on (a) extrinsic fraud or (b) lack of jurisdiction or denial of due process.18 Having failed to avail of the remedies and there being a clear showing that neither of the grounds was present, the petition must be dismissed. Only a disgruntled litigant would find such legal disposition unacceptable.

Mercado bewails the denial by the Third Division of his petition through a mere Minute Resolution and after reinstating the petition. Apparently, he finds the Courts manner of denial and change of heart unusual and casts sinister undertone to them.

In In Re Laureta,19 we ruled that the Court is not "duty-bound" to render signed decisions all the time. It has ample discretion to formulate decisions and/or minute resolutions, provided a legal basis is given depending on its evaluation of a case. In the same case, we held that "the recall of a due course Order after a review of the records of the case is a common occurrence in the Court." Like the respondents in the said case, Mercado should not think that it is only his petition which has been subjected to such recall.

The Third Division initially denied Mercados petition because it is apparent on its face that the Court of Appeals committed no reversible error in dismissing his petition for annulment of judgment. Considering his motion for reconsideration alleging that the Appellate Court merely relied on technical rules of procedure and that his former counsel committed gross negligence, the Third Division took the most prudent course by reinstating the petition. Now, after considering the petition and the comment thereon, the Third Division was convinced that, indeed, the Appellate Court did not commit any reversible error. Is this irregular? The answer is a resounding "no." The reinstatement of a petition does not guarantee that it will be subsequently granted. Otherwise, the filing of comment and subsequent pleadings would be an exercise in futility.

Now, in a bid to escape liability for contempt, Mercado invokes freedom of speech and privacy of communication.

We are not persuaded.

A person charged with contempt of court for his utterances which clearly constitute contempt may not ordinarily escape liability by merely invoking the constitutional guaranty of freedom of speech. Liberty of speech must not be confused with abuse of such liberty. When he attributed those contemptuous remarks to Chief Justice Davide and the ponente, Mercado abused such liberty. His statements cast aspersions to their reputation and integrity and create a distrust to the Judiciary.

The fact that Mercados letter was addressed only to the Chief Justice does not rinse it of its contemptuous character. In In Re Laureta,20 we ruled that letters addressed to individual Justices, in connection with the performance of their judicial functions become part of the judicial record and are a matter of concern for the entire court.

Accordingly, we hold Mercado guilty of indirect contempt of court.

Section 3, Rule 71 of the 1997 Rules of Civil Procedure, as amended, provides:

Section 3. Indirect contempt to be punished after charge and hearing. After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt:

xxxxxx

d. Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice;

xxxxxx

As for Atty. Villanueva, while Justice Dacudao did not categorically state that he (Atty. Villanueva) told Mercado that Chief Justice Davide exerted "tremendous pressure" on the ponente, the reason why the petition was dismissed for the second time, however, we are inclined to believe that Atty. Villanueva gave such information to Mercado. Not only that, Atty. Villanueva also revealed the name of the ponente; that he and the ponente have known each other since 1964; and that the ponente would be at

the wake of his mother, thus:

After a careful and conscientious examination of the evidence adduced in the instant case, the undersigned investigator is fully convinced that it was only through Atty. Villanueva that petitioner could have learned or known the name of the ponente in the case.

As between petitioner and Atty. Villanueva, the undersigned investigator in inclined to give more credence to the testimony of petitioner. Not only was petitioner consistent, firm, and candid and detailed in his testimony, but he was also able to corroborate his claims, by submitting his diary which contained vital entries and by presenting the testimony of his nephew. x x x

Moreover, it was admitted by Atty. Villanueva that he and Justice Gutierrez have known each other since 1964 and that Justice Gutierrez was in the wake of his mother. These admissions tend to strengthen the allegations of petitioner that Atty. Villanueva was the one who told him the name of the ponente; that Atty. Villanueva told him that he and the ponente are very close; and that when petitioner attended the wake of Atty. Villanuevas mother, he was told by Atty. Villanueva that Justice Gutierrez, the ponente, was coming.

Rule 15.06 of Canon 15 of the Code of Professional Responsibility states that "a lawyer shall not state or imply that he is able to influence any public official, tribunal or legislative body." Further, Rule 15.07 provides that "a lawyer must impress upon his client compliance with the laws and the principles of fairness." Atty. Villanueva took the forbidden course. In informing Mercado that he was "a very very good, close and long time friend" of the ponente, Atty. Villanueva impressed upon the former that he can obtain a favorable disposition of his case. However, when his petition was dismissed twice, Mercados expectation crumbled. This prompted him to hurl unfounded, malicious, and disrespectful accusations against Chief Justice Davide and the ponente.

We have repeatedly admonished lawyers from making bold assurances to their clients. A lawyer who guarantees the successful outcome of a litigation will exert heavy pressure and employ any means to win the case at all costs. But when the case is lost, he will blame the courts, placing them under a cloud of suspicion. As what happened in this case, Atty. Villanuevas statements led Mercado, not only to suspect but also to believe, that the entire Court, together with Chief Justice Davide and the ponente, could be pressured or influenced,

Responsibility enjoins lawyers to observe and maintain the respect due to courts and the judicial officers.21 Atty. Villanuevas conduct, no doubt, degraded the integrity and dignity of Chief Justice Davide and the ponente and this Court as well.

Thus, we find Atty. Villanueva also guilty of indirect contempt of court.

On the appropriate penalty, the general rule is that courts have inherent power to impose a penalty for contempt reasonably commensurate with the gravity of the offense. And that the degree of punishment for contempt is said to lie within the sound discretion of the court.22 Considering the circumstances obtaining herein, we believe that Mercado and Atty. Villanueva should be fined P50,000.00 each and warned that a repetition of similar acts will warrant a more severe penalty.

One last word. The reason for the inherent power of courts to punish for contempt is that respect for the courts guarantees the stability of the judicial institution. Without such guarantee, the institution would be resting on a very shaky foundation.23 Thus, we must act to preserve its honor and integrity from assaults of disrespect. One reason why respect of the public for the Judiciary has diminished is because of unscrupulous lawyers who imply that judges and justices can be influenced or bribed. Such conduct has no place in the legal profession.

WHEREFORE, Jose Teofilo T. Mercado and Atty. Jose P. Villanueva are declared GUILTY of indirect contempt of court. They are FINED P50,000.00 each and WARNED that a repetition of similar acts will warrant a more severe penalty.

Let a copy of this Resolution be attached to Atty. Villanuevas personal record in the Office of the Bar Confidant and copies thereof be furnished the Integrated Bar of the Philippines.

SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZ

Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN Chief Justice

REYNATO S. PUNO Associate Justice Asscociate Justice ANTONIO T. CARPIO Associate Justice RENATO C. CORONA* Asscociate Justice ROMEO J. CALLEJO, SR. Associate Justice Asscociate Justice LEONARDO A. QUISUMBING Associate Justice Asscociate Justice CONCHITA CARPIO MORALES Associate Justice Asscociate Justice MINITA V. CHICO-NAZARIO Associate Justice Asscociate Justice CERTIFICATION CANCIO C. GARCIA< ADOLFO S. AZCUNA MA. ALICIA AUSTRIA-MARTINEZ DANTE O. TINGA (On leave) CONSUELO YNARES-SANTIAGO

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Resolution were reached in consultation before the case was assigned to the writer of the opinion of the Court.

ARTEMIO V. PANGANIBAN Chief Justice

Footnotes

* On leave.

1 See Salcedo v. Hernandez, 61 Phil. 724 (1935).

2 Rollo, pp. 48-60. Penned by Justice Sergio L. Pestao (deceased) and concurred in by Justice Bernardo P. Abesamis (retired) and Justice Noel G. Tijam.

3 Id., pp. 80-83.

4 See Resolution, id. p. 151.

5 Rollo, pp. 320-327.

6 Letter dated November 2, 2004, id., p. 393.

7 Resolution dated January 26, 2005, id., pp. 413-415.

8 TSN, November 22, 2004, p. 27.

9 TSN, November 22, 2005, p. 36.

10 Id. pp. 37-41.

11 Rollo, p. 65.

12 Letter dated November 22, 2004, id., pp. 366-369.

13 Compliance and Explanation dated November 30, 2004, id. pp. 403-409.

14 TSN, February 21, 2005, p. 12.

15 See Resolution, rollo, p. 679.

16 Spiegel v. Beacon Participation, 8 NE 2nd Series, 895, 1007.

17 Air France v. Carrascoso, L-21438, September 28, 1966, 18 SCRA 155, 166-167.

18 Salonga v. Court of Appeals, G.R. No. 111478, March 13, 1997, 269 SCRA 534.

19 G.R. No. 68635, March 12, 1987, 148 SCRA 382, 417.

20 Supra.

21 Fernandez v. Verzola, A. M. No. CA-04-40, August 13, 2004, 436 SCRA 369.

22 17 Am Jur 2d 105, citing United Marine Div. of I.L.A. v. Commonwealth, 193 Va 773, 71 SE2d 159, cert den 344 US 893, 97 L Ed 690, 73 S Ct 212.

23 See Salcedo v. Hernandez, supra.

FIRST DIVISION SPS. ANTONIO and NORMA SORIANO, Complainants,

- versus -

ATTY. REYNALDO P. REYES, Respondent.

A.C. No. 4676

Present:

PANGANIBAN, C.J. Chairperson, YNARES-SANTIAGO, AUSTRIA-MARTINEZ, CALLEJO, SR., and CHICO-NAZARIO, JJ.

Promulgated:

May 4, 2006 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

For alleged gross negligence in handling two civil cases, a complaint[1] for disbarment was filed by complainant spouses Antonio and Norma Soriano against Atty. Reynaldo P. Reyes.

Complainants alleged that sometime in the latter part of 1990, they engaged the services of respondent in a case they filed against Peninsula Development Bank entitled, Norton Resources and Development Corporation, et al. v. Peninsula Development Bank. The case was for Declaration of Nullity with Injunction and/or Restraining Order before the Regional Trial Court (RTC) of Davao City, Br. 13, docketed as Civil Case No. 20-465-90.[2] While the case was pending, respondent reassured complainants that he was diligently attending to the case and will inform them of the status of their case.

In 1994, complainants again engaged the services of respondent in a case they filed against the Technology and Livelihood Resource Center entitled, Spouses Antonio M. Soriano and Norma Soriano v. Technology and Livelihood Resource Center for Declaration of Nullity with Injunction and Temporary Restraining Order before the RTC of Davao City, Br. 16, docketed as Civil Case No. 22-674-94.[3] During the pendency of the second case, complainants inquired from respondent the status of the earlier Civil Case No. 20-465-90, the latter informed them that the same was still pending and/or ongoing.

Later, complainants learned that Civil Case No. 20-465-90 was dismissed[4] on 16 December 1991 for failure of the respondent to file a pre-trial brief. The dismissal reads:

On record is a pre-trial brief filed by defendant, thru counsel, Atty. Marlon B. Llauder, and this morning a supplemental pre-trial brief was submitted by defendants counsel. Atty. Reynaldo Reyes, counsel for the plaintiffs is present in Court but he moved for a suspension of the pre-trial conference this morning for the reason that plaintiffs are proposing to amicably settle this case. Defendants counsel vehemently objected to the postponement of the pre-trial conference and instead moved for a declaration of plaintiffs as non-suited for the reason that up to this time, plaintiffs have not submitted their pre-trial brief in violation of the Order of the Court, dated October 11, 1991, wherein plaintiffs counsel was afforded five (5) days from said date within which to submit to Court plaintiffs pre-trial brief.

The said motion is well-taken for the reason that the records failed to show that plaintiffs filed pre-trial brief. They are thus, declared as non-suited.

This case is hereby ordered dismissed.[5] (Underscoring supplied.)

A motion[6] for reconsideration was filed but the same was denied in an Order dated 27 April 1992.

As to Civil Case No. 22-674-94, complainants likewise found out that the case was dismissed for failure to prosecute. The order reads:

The records show that summons with a copy of the complaint have been served upon the defendant on May 11, 1994, but plaintiffs did not file the necessary pleadings in order to prosecute the same.

IN VIEW HEREOF, for failure to prosecute this case is ordered DISMISSED.

Furnish copy of this order, Atty. Reynaldo P. Reyes, plaintiffs counsel and defendants counsel, Atty. Francisco Figura.[7] (Underscoring supplied.)

Upon filing of a Motion for Reconsideration, though, the case was reconsidered and reinstated[8] on 15 August 1995.

Claiming that the acts of respondent greatly prejudiced and damaged them, complainants filed a Complaint for disbarment against respondent before this Court.

On 20 October 1997, the Supreme Court referred[9] the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation or decision. In his Comment,[10] respondent admitted that he was hired by the complainants in the case against the Peninsula Development Bank in the latter part of 1990. He averred that Peninsula Development Bank foreclosed the property of the complainants for failure to pay monetary obligations amounting to several millions of pesos. He said that some of the properties of the complainants were foreclosed in 1989, and the one-year redemption period was to expire in the latter part of 1990. About one week before the expiration of the redemption period, the complainants, through the respondent, filed a case against the Peninsula Development Bank before the RTC of Davao City, which was docketed as Civil Case No. 20-465-90. From the time of the filing of the complaint up to the present, herein complainants are in continuous possession of the already foreclosed properties, consisting of a Ford Econovan and farm tractors. According to respondent, complainants are still holding office in the real properties subject of the foreclosure and a portion thereof is being rented by a big taxi company. He disclosed that at the time he was hired in 1990, the agreement was that he would be paid the amount of Three Hundred Thousand Pesos (P300,000.00) as attorneys fees in five years. Respondent claimed that he assisted complainants in applying for a loan to pay off their obligations with Peninsula Development Bank but because of the numerous estafa cases filed against complainants, said loans did not materialize. Respondent further claimed that their agreed strategy was to arrange a settlement with regard to Civil Case No. 20-465-90. Respondent said he later realized that the complainants had no interest in paying their obligations to Peninsula Development Bank, and his attorneys fees. Respondent added that they differed in opinion with regard to the handling of the case and that complainants did not understand that the filing of the case had already helped them gain time to negotiate with the bank especially on the

matter of interest incurred by their loans. Finally, respondent concluded by saying that his attorneys fees, paid in meager installments, remain outstanding and unpaid.

In their reply,[11] complainants refuted respondents allegation of the alleged numerous estafa cases filed against them. Complainants averred that the certification attached by respondent showing that there were estafa cases filed against them has no bearing insofar as the disbarment case is concerned. They likewise denied that respondent assisted them in their loan application. They engaged the services of the respondent to prevent them from losing their properties to the Peninsula Development Bank and for no other reason. Finally, complainants maintained that respondent was paid his attorneys fees.

As early as 27 June 2000, the case had already been scheduled for hearing by Commissioner Agustine V. Gonzaga of the Commission on Bar Discipline. On 18 January 2002, after several hearings, the Commission admitted the documentary evidence offered as part of the testimony of complainants. On 1 March 2002, the day respondent was ordered to present his defense evidence, he failed to appear. Counsel for the complainants moved that the respondent be deemed to have waived his right to present his evidence for failure to appear on scheduled hearing despite due notice. In the interest of substantial justice, respondent was given a period of 10 days to comment on the complainants motion and scheduled the case for hearing on 19 April 2002. Despite due notice, however, respondent again failed to appear, thus, the Hearing Commissioner declared that respondent was considered to have waived his right to present his defense evidence. The parties were given 20 days from 19 April 2002 to file their respective memoranda, after which the case will be deemed submitted for resolution.

Only complainants filed a memorandum.

On 28 May 2003, Investigating Commissioner Milagros V. San Juan found respondent negligent in handling the cases of complainants; hence, said Investigating Commissioner recommended that he be disbarred. The pertinent portions of the report read:

There is no question that the respondent was engaged by the complainants as their counsel in two cases, namely Civil Case No. 20-465-90 and Civil Case No. 22-674-94. The respondent accepted both cases by filing a case of Nullity with Injunction and/or Restraining Order before the Regional Trial Court Br. 13, Davao City, against Peninsula Development Bank and against Livelihood Resource Center for Declaration of Nullity with Injunction and/or Temporary Restraining Order docketed as 22-674-94, Br. 16 RTC Davao City. The failure and negligence of respondent in handling the aforementioned cases is fully reflected in the Order of the Court re: Civil Case No. 20-465-90 which reads:

On record is a pretrial brief filed by defendant thru counsel, Atty. Marlon B. Llander and this morning a supplemental pretrial brief was submitted by defendants counsel, Atty. Reynaldo Reyes, counsel for the plaintiff is present in court but he moved for a suspension of the pretrial conference this morning for the

reason that plaintiffs are proposing to amicably settle this case. Defendants counsel vehemently objected to the postponement of the pretrial conference and instead moved for a declaration of plaintiffs as nonsuited for the reason that up to this time, plaintiff have not submitted their pretrial brief in violation of the Order of the Court, dated October 11, 1991 wherein plaintiffs counsel was afforded five (5) days time from date within which to submit to court plaintiffs pretrial brief.

The motion is well taken for the reason that the records failed to show that plaintiffs filed pretrial brief. They are thus declared as nonsuited.

This case is hereby ordered dismissed. x x x Regarding Civil Case No. 22-674-94, Regional Trial Court Br. 16, Davao City in the case filed against Technology and Livelihood Resource Center the court issued an Order dated May 5, 1995 which reads:

The record show that summons with a copy of the Complaint have been served upon the defendant on May 11, 1994, but plaintiffs did not file the necessary pleadings in order to prosecute the same.

In view hereof, for failure to prosecute this case is ordered Dismissed. x x x The records show that the real status of the cases were kept from the complainants by respondent. Despite the dismissal of both cases due to respondents negligence and irresponsibility he continued receiving compensation from complainants are evidenced by the receipts and vouchers which respondent acknowledged with his signatures. (Exhibits F, G, H, H-1 and I). Likewise, the respondent deceived the complainant by giving them false hopes that everything was alright and there was no problem regarding the cases.

All the foregoing show that there is clear violation of his oath as a lawyer particularly Canon 17 and Canon 18 of the Code of Professional Responsibility. Thus, it is submitted that Atty. Reynaldo P. Reyes be meted the penalty of Disbarment.[12]

On 21 June 2003, the IBP Board of Governors adopted and approved[13] the recommendation of the Investigating Commissioner.

In the interregnum, a Motion to Withdraw Testimony and Evidence[14] was filed by complainant Norma B. Soriano before this Court, stating that:

1. That although the complainant in this case names the spouses Antonio Soriano and Norma B. Soriano as the complainants, it is only complainant Norma B. Soriano who has testified and presented

evidence during the hearing of this case due to the untimely demise of her husband, complainant Antonio Soriano;

2. That subsequently to the undersigned complainants testimony and presentation of evidence, she has come upon information and facts that need to be reviewed and re-examine[d] in the highest interests of justice;

3. That before going into those information and facts that she came to learn after she gave her testimony before this Honorable Board, it is important to stress the following antecedent circumstances:

(a) That it was undersigned complainants late husband who conferred constantly with respondent Atty. Reynaldo P. Reyes;

(b) That herein complainant was not present in a conference with Atty. Reyes at the time his professional services were hired. So, it was only the deceased complainant Antonio Soriano who was familiar with the scope of professional engagement;

(c) That undersigned complainant did not participate in the conference between her late husband and respondent counsel on the agreed strategy because the late husband was the one actively managing the affairs of the family. Moreover, herein complainant was not really knowledgeable of the facts and details involved in the cases handled by respondent counsel;

(d) That for example, it was only later after her testimony that she learned that respondent was also attending to and handling the other cases of the late complainant Antonio Soriano, especially those cases filed in Makati, Complainant herein had the mistaken impression that the complainant-decedent had availed of the services of lawyers in Makati. Hence, the fees that respondent Atty. Reyes received after the cases below were for those cases in Makati;

(e) That it was a surprise for herein undersigned complainant to also learn that respondent Atty. Reyes went out of his way to accompany her late husband to a financier, who was an intimate friend of respondent, in Quezon City for the purpose (sic) sourcing the necessary funds to pay off our obligations to some creditors as the agreed strategy at the very start. Thus, it appears that respondent counsel went out of his way to help the late complainant Antonio Soriano solve his problems; and

(f) That I likewise subsequently learned that when respondent counsel became a city councilor of Davao City, he did what he can to help the late complainant Antonio Soriano have a council clearance over a parcel of land that he was selling for a memorial park.

4. That the foregoing facts and information that herein undersigned complainant learned after she gave her testimony seriously prompts her to seek the withdrawal of her testimony and her evidence in order that she can re-evaluate the same; and

5. That complainant herein is filing the instant motion in the interests of truth and justice as it is farthest from her intention to have this case resolved through an inadvertent presentation of facts that do not exactly reflect the entirety of the story and the truth, no matter how innocently and in good faith they were presented.[15]

The above quoted motion is tantamount to a withdrawal or desistance of the complaint.

As we have previously ruled, the affidavit of withdrawal of the disbarment case executed by a complainant does not automatically exonerate the respondent.

A case of suspension or disbarment may proceed regardless of interest or lack of interest of the complainant.[16] What matters is whether, on the basis of the facts borne out by the record, the charge of negligence has been duly proved. This rule is premised on the nature of disciplinary proceedings. A proceeding for suspension or disbarment is not in any sense a civil action where the complainant is a plaintiff and the respondent lawyer is a defendant. Disciplinary proceedings involve no private interest and afford no redress for private grievance. They are undertaken and prosecuted solely for the public welfare. They are undertaken for the purpose of preserving courts of justice from the official ministration of persons unfit to practice in them. The attorney is called to answer to the court for his conduct as an officer of the court. The complainant or the person who called the attention of the court to the attorneys alleged misconduct is in no sense a party, and has generally no interest in the outcome except as all good citizens may have in the proper administration of justice. Hence, if the evidence on record warrants, the respondent may be suspended or disbarred despite the desistance of complainant or his withdrawal of the charges.[17] Accordingly, notwithstanding the motion to withdraw evidence and testimony, the disbarment proceeding should proceed.

Looking into the merits of the complaint against respondent, we decide to modify the findings of the IBP.

As to Civil Case No. 20-465-90, records show that it was dismissed for failure of respondent to file the pre-trial brief.

Respondents failure to file the pre-trial brief constitutes inexcusable negligence.[18] The importance of filing a pre-trial brief cannot be gainsaid. For one, the lawyers are compelled to prepare their cases in advance. They eliminate haphazard preparation. Since pre-trial is a serious business of the court, preparation of the lawyers and parties for the pre-trial in both questions of fact and of law cannot be overemphasized as an essential requirement for a pre-trial conference. They enable both parties to view the documentary evidence of the other even before they are presented in court. They enable the parties to know the testimonies of each others witnesses. Pre-trial briefs also apprise the courts of the additional points the parties are willing to stipulate upon, or the additional points which could be inquired into for the purpose of additional stipulations. They also apprise the court of the respective demands of the parties, thus, enabling the court to discuss more intelligently an amicable settlement between or among the parties.[19] The failure to submit a pre-trial brief could very well, then, be fatal to the case of the client as in fact it is a ground for dismissal of the case. [20] For this reason, respondents failure to submit the pre-trial brief to the court within the given period constitutes negligence which entails disciplinary action. Not only is it a dereliction of duty to his client but to the court as well. Hence, this Court, in Spouses Galen v. Atty. Paguirigan,[21] explained:

An attorney is bound to protect his clients interest to the best of his ability and with utmost diligence. A failure to file brief for his client certainly constitutes inexcusable negligence on his part. The respondent has indeed committed a serious lapse in the duty owed by him to his client as well as to the Court not to delay litigation and to aid in the speedy administration of justice.

In this case, respondent did not only fail to file the pre-trial brief within the given period. Worse, he had not submitted the required pre-trial brief even at the time he filed a motion for reconsideration of the order of dismissal several months later. Expectedly, the motion for reconsideration was denied by the court. Respondents negligence is apparent in the trial courts denial of the motion for reconsideration, to wit:

The court, in the exercise of sound discretion, afforded the plaintiffs who were then present, five (5) days from October 11, 1991, within which to submit to the Court plaintiff pre-trial brief, but despite the order, and until December 16, 1991, a period of more than two (2) months has elapsed, yet herein plaintiffs still failed to file or submit the required pre-trial brief, which to the mind of this Court, is an obstinate refusal on the part of the plaintiffs to file said pre-trial brief, despite counsels knowledge of the importance of the same.

The plaintiffs, even in the filing of their Motion for reconsideration did not even care to attach pre-trial brief if indeed they are sincere in their intention to do so.

Clearly, respondent was not able to protect his clients interest through his own fault.

A lawyer is expected to be familiar with the rudiments of law and procedure and anyone who acquires his service is entitled to, not just competent service, but also whole-hearted devotion to his clients cause. It is the duty of a lawyer to serve his client with competence and diligence and he should exert his best efforts to

protect, within the bounds of law, the interest of his client. A lawyer should never neglect a legal matter entrusted to him, otherwise his negligence in fulfilling his duty will render him liable for disciplinary action.[22]

Canon 18, Rule 18.03 of the Code of Professional Responsibility provides that a lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable. In this case, by reason of Atty. Reyess negligence, complainant suffered actual loss. He should have given adequate attention, care and time to his cases. This is why a practicing lawyer may accept only so many cases that he can efficiently handle. Otherwise, his clients will be prejudiced. Once he agrees to handle a case, he should undertake the task with dedication and care. If he should do any less, then he is not true to his lawyers oath.[23]

Respondents excuse that complainants, from the time of filing of the complaint up to the time of filing his comment, were in continuous possession of the foreclosed property is flimsy. It only shows the cavalier attitude which respondent took towards his clients cause.

Anent Civil Case No. 22-624-94, the case was indeed dismissed for failure to prosecute although the said dismissal was later on reconsidered. However, this does not detract to the conclusion that, truly, respondent failed to demonstrate the required diligence in handling the case of complainants.[24]

Quite apart from the above, respondent also lacked candor in dealing with his clients as he omitted to apprise complainants of the status of the two cases and even assured the complainants that he was diligently attending to said cases.[25]

In Garcia v. Atty. Manuel,[26] this Court found therein respondent lawyer in bad faith for failing to inform his client of the status of the case. In said decision, the court has adamantly stressed that the lawyer-client relationship is highly fiduciary.[27] There is always a need for the client to receive from the lawyer periodic and full updates on developments affecting the case. The lawyer should apprise the client on the mode and manner that the lawyer is utilizing to defend the clients interests.[28]

In failing to inform his clients of the status of their cases, respondent failed to exercise such skill, care, and diligence as men of the legal profession commonly possess and exercise in such manners of professional employment.[29]

Time and again we have stated that disbarment is the most severe form of disciplinary sanction, and, as such, the power to disbar must always be exercised with great caution for only the most imperative reasons and in clear cases of misconduct affecting the standing and moral character of the lawyer as an officer of the court and a member of the bar. Accordingly, disbarment should not be decreed where any punishment less severe such as a reprimand, suspension, or fine would accomplish the end desired.[30]

The appropriate penalty on an errant lawyer depends on the exercise of sound judicial discretion based on the surrounding facts. The penalties for a lawyers failure to file the required brief or pleading range from reprimand, warning with fine, suspension and in grave cases, disbarment. In one case,[31] the penalty for a lawyers failure to file a pre-trial brief and other pleadings such as position papers leading to the dismissal of the case, is suspension of six months. Therefore, we find the penalty of disbarment as recommended by the IBP to be unduly harsh and we deem it appropriate to impose the penalty of one (1) year suspension, taking into account that this appears to be his first offense.

WHEREFORE, in view of the foregoing, respondent Atty. Reynaldo Reyes is found GUILTY of violating Canons 17 and 18 of the Code of Professional Responsibility and is SUSPENDED from the practice of law for one (1) year effective upon finality hereof with WARNING that a repetition of the same negligent act charged in this complaint will be dealt with more severely.

Let copies of this Decision be furnished the Office of the Bar Confidant, to be appended to respondents personal records as attorney; the

Integrated Bar of the Philippines; and all courts of the country for their information and guidance.

SO ORDERED.

MINITA V. CHICO-NAZARIO Associate Justice

WE CONCUR: ARTEMIO V. PANGANIBAN Chief Justice Chairperson

CONSUELO YNARES-SANTIAGO Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

ROMEO J. CALLEJO, SR. Associate Justice

[1] [2] [3] [4] [5] [6] [7] [8] [9] [10] [11] [12] [13] [14] [15] [16] [17] [18] 124. [19]

Rollo, pp. 3-6. Written in the Rollo as Civil Case No. 20,465-90. Written in the Rollo as Civil Case No. 22,674-94. Rollo, p. 7. Rollo, Vol. I, p. 7. Rollo, Vol. III, pp. 55-56. Id., p. 10. Rollo, Vol. I, p. 23. Id., p. 35. Id., pp. 27-31. Rollo, Vol. II, pp. 1-4. Rollo, Vol. V, pp. 7-9. Id., p. 2. Id., p. 28-29. Id., pp. 28-29. Go v. Candoy, 128 Phil. 461, 465 (1967). Rayos-Ombac v. Rayos, 349 Phil. 7, 15 (1998). Heirs of Tiburcio F. Ballesteros, Sr. v. Apiag, A.C. No. 5760, 30 September 2005, 471 SCRA 111, R.J. Francisco, Civil Procedure (First Ed., 2001) p. 607.

[20] Rule 18, Section 6 x x x Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial; and Rule 18, Section 5. Effect of failure to appear. - The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for dismissal of the action. x x x [21] 428 Phil. 590, 596 (2002), citing Tan v. Lapak, G.R. No. 93707, 23 January 2001, 350 SCRA 74, 83 and In Re: Santiago F. Marcos, A.C. No. 922, 29 December 1987, 156 SCRA 844, 847.

[22] [23] [24]

Spouses Galen v. Atty. Paguirigan, 428 Phil. 590, 597 (2002). Moton v. Atty. Cadiao, 377 Phil. 1, 5 (1999). Rollo, Vol. I, p. 11.

[25] Rule 18.04. - A lawyer should keep the client informed of the status of his case and shall respond within a reasonable time to the clients request for information. [26] [27] [28] [29] [30] [31] 443 Phil 479, 486 (2003). Espiritu v. Atty. Cabredo IV, 443 Phil. 24, 30 (2003). Macarilay v. Seria, A.C. No. 6591, 4 May 2005, 458 SCRA 12, 22-23. Godofredo C. Pineda v. Atty. Teddy C. Macapagal, A.C. No. 6026, 29 November 2005. Amaya v. Tecson, A.C. No. 5996, 7 February 2005, 450 SCRA 510, 516. Heirs of Tiburcio F. Ballesteros, Sr. v. Apiag, supra note 18.

ADM. CASE No. 4809

SPOUSES WILLIAM ADECER and TERESITA P. ADECER, Complainants, vs. ATTY. EMMANUEL AKUT, Respondent.

DECISION

TINGA, J.:

Before the Court is a petition for disbarment filed by Spouses William and Teresita Adecer (complainants) against Attorney Emmanuel A. Akut (respondent).

The instant petition is an offshoot of Criminal Case No. 72790 entitled "People of the Philippines v. William Adecer and Teresita Adecer" in which complainants were charged with committing a crime punishable under Article 318 of the Revised Penal Code (Other Deceits), before the Municipal Trial Court in Cities, Cagayan de Oro, Branch No. 5 (MTCC). Respondent was their legal counsel in the criminal case.

On 25 March 1997, respondent received a copy of the MTCCs Decision1 dated 12 March 1997 convicting complainants of Other Deceits and sentencing them to the penalty of arresto mayor2 and a fine of not less than P30,000.00.3 Complainants were also ordered to pay civil liability in the form of damages and attorneys fees totaling P66,000.00 to the private respondents in the criminal case.4 On 26 March 1997, the Decision was promulgated in the absence of the complainants, who were accorded due notice. Complainants received a copy of the Decision via registered mail on 4 April 1997. Respondent received an additional copy of the Decision on even date.

Respondent had fifteen (15) days from 25 March 1997, or until 9 April 1997, to file either an appeal5 or a petition for probation6 in behalf of the complainants. However, it was only on 16 May 1997 over a month after the Decision had become final and executory that respondent filed a Petition for Probation.

The MTCC issued a Writ of Execution On 19 May 1997. The next day, a warrant of arrest was served on complainants7 and they were incarcerated.8

On 28 May 1997, respondent filed a Memorandum in Support of the Petition for Probation stating, "[i]mmediately upon her receipt of a copy of the decision, accused Teresita Adecer contacted [her] lawyer but [her] lawyer was out of town during that time and so, while waiting for her lawyer to come home, she raised the required amount necessary to pay the civil indemnity awarded in the decision."9 Respondent explained that complainant Teresita Adecer raised the money in the belief that an application for probation would not be granted unless all monetary awards are paid in full.10 Respondent recounted that it was only on 16 May 1997, when complainant Teresita approached him and handed to him the money for the settlement of the civil liability, that he informed her that the application for probation should have been filed within the period for appeal.

The Petition for Probation was denied through a Resolution dated 7 June 1997. The MTCC held that the law does not permit the grant of probation after the lapse of the period for filing an appeal.11 With regard to respondents allegation that he was out of town during the period for filing an appeal, the MTCC examined the calendars of various courts and ascertained that respondent had scheduled and attended hearings before several courts in Cagayan de Oro during said period. This prompted the MTCC to comment, "[t]he court does not know if defense counsel suffered a sudden lack of vitamins to make him forget his duties towards his clients."12 It appears that complainants filed a Motion for Reconsideration with an Atty. Rogelio Zosa Bagabuyo as pro bono counsel for the complainants.13 The motion was denied through a Resolution dated 30 June 1997.

The records also reflect that complainants filed a pleading entitled Urgent Omnibus Motions to Recall Writ of Execution and for a Second Motion for Reconsideration with Leave of Court dated 21 June 1997.14 In answer to "insinuations" in said pleading, respondent, as former counsel of the complainants, filed a Manifestation dated 30 June 1997. He claimed therein that the complainants only had themselves to blame for failing to file a timely petition for probation. Allegedly, the complainants failed to comply with an agreement with respondent that they would immediately go to respondents office to discuss the steps to be taken should they receive an adverse decision. Respondent claimed that during the time complainants desisted from approaching him, he could not make a choice in behalf of the complainants between the remedy of appeal and the benefits of probation. He recounted that complainants came to his office only on 9 May 1997, a month after the decision had become final and executory, with money to pay for the civil liability. He asked them to return the next day, but they returned only on 16 May 1997 after he "sent somebody to fetch them on several occasion[s]."15

On 29 July 1997, while serving their sentence at the Lumbia Detention and Rehabilitation Center, complainants filed the instant administrative case praying that respondent be disbarred and ordered to reimburse complainants of expenses, with interest and damages.161avvphil.net

In his Comment dated 22 February 1998, respondent reiterated his account in the Memorandum in Support of the Petition for Probation dated 28 May 1997 on why a timely petition for probation was not filed. However, his explanation evolved somewhat since the last time. This time, he stated that complainants deliberately failed to meet with him seasonably for the signing of the verification of the Petition for Probation.17 On the MTCCs finding that respondent appeared before Cagayan de Oro courts during the period to file an appeal, he

retorted that he moved for the postponement of most of these hearings and attended only the more important ones.18 He explained that he was out of his office most of the time because starting February 1997, he and his wife were always out of town looking for faith healers to cure the malignant brain tumor of his wife, who succumbed to the cancer on 1 August 1997.19 Allegedly, after attending the "important" hearings, he immediately went out of town seeking faith healers.20

The instant case was referred by this Court to the Integrated Bar of the Philippines (IBP) for investigation, report, and recommendation.21 On 29 October 2003, Commissioner Wilfredo E.J.E. Reyes filed a Manifestation before this Court reporting that the records of the case were lost due to a carnapping incident.

On 7 November 2003, the records of the case were reconstituted. Stipulations were made and the parties agreed that the case would be deemed submitted for decision upon their filing of their respective Supplemental Position Papers.22 Furthermore, despite complainants several allusions to deceit on the part of respondent, the parties agreed on a single issue for resolution, i.e., whether respondent is administratively liable for a violating the principles of legal ethics and the Code of Professional Responsibility in filing the Petition for Probation beyond the reglementary period.23

In his Report and Recommendation dated 15 July 2005, Commissioner Reyes found that respondent failed to exercise the proper diligence in dealing with the case of his clients and recommended that respondent be suspended from the practice of law for one (1) month and admonished henceforth to be more careful in the performance of his duties to his clients. The IBP Board of Governors resolved to adopt and approve the findings of Commissioner Reyes with the modification that respondent instead be suspended for six (6) months. The case is now on review by this Court pursuant to Section 12 (b), Rule 139-B of the Revised Rules of Court.24

We affirm the findings of the Investigating Commissioner and adopt the recommendation of the Board of Governors.

The Code of Professional Responsibility mandates that a lawyer shall serve his client with competence and diligence.25 He shall not handle any legal matter without adequate preparation.26 Nor shall he neglect a legal matter entrusted to him; his negligence in connection therewith shall render him liable.27

Respondent is bound by the representations he made in his Memorandum in Support of the Petition for Probation, i.e., that a timely petition for probation was not filed due to the fact that he was out of town and that complainants were laboring under the misapprehension that the civil liability must be paid in full before probation could be availed of. Either of his two "explanations" is enough ground to render him liable for negligence under the Code of Professional Conduct. First, despite his receipt of a copy of the Decision and the consequent running of the fifteen (15)-day period to file a petition for probation, respondent went out of town without contacting complainants to give them proper legal advice. Furthermore, his admission that

complainants were [1] under the impression that they first had to pay off their civil liabilities prior to filing a petition for probation and [2] unaware that they had only fifteen (15) days from their counsels receipt of a copy of the decision to file their petition, proves that he failed to give complainants timely legal advise.

We consider first the implications of respondents allegation that he was out of town as his justification to the MTCC for failing to file a timely petition.

At the outset, it must be remembered that respondent was given a copy of the Decision while he was in town. Surely, he could have addressed his clients need during that time. At the very least, he should have made room in his schedule to confer with complainants on what course of action to take in furtherance of their cause and to prepare the necessary legal moves toward such end.

Furthermore, respondent was not away for the entirety of the crucial period and could have attended to his clients needs during the instances he was in Cagayan de Oro. And even if respondent had left town during the entire fifteen (15)-day period, in this age of cellular phones, long distance telephone accessibility, and even overnight mail delivery, it is highly unlikely that respondent would not be able to attend to his clients needs were he so inclined. He could at least have found a way to speak to his clients to inform them regarding the short window within which to file their petition. He could even have prepared a petition and mailed the same to his clients in order that they could sign it and themselves file it in court; or as intimated by the MTCC, he could have filed a motion for extension of time to file a petition for probation.28

There are many ways to provide proper representation for his clients and many things which respondent could have done that would give this Court the impression that he had the least bit of concern for his clients cause. But nothing of the sort was presented by respondent. Since he is primarily responsible for filing the vital pleading that would have made possible for his clients to avail of probation, we find that respondents omission is a culpable act of negligence for which he must be held liable.

Furthermore, when the MTCC decided to take judicial notice of his scheduled hearings within Cagayan de Oro to expose his lie, respondent "explained" that he was in town to attend some of the more "important hearings" but was out of town most of the time. Aside from the fact that respondent had attempted to deceive the court by initially stating without qualification that he was out of town, he later on uttered words which reveal his notion that some of his cases were more important, and therefore, given more immediate attention than others. Every case a lawyer accepts deserves his full attention, skill and competence, regardless of his impression that one case or hearing is more important than the other.29

Respondent has attached a death certificate showing that his wife died from cardiac arrest close to the period in question. We commiserate with respondent for the loss of his wife, and appreciate fully that during the period of a mans existence when the sense of mortality and loss is most closely felt more then ever, it would appear that no responsibility is more important than tending to loved ones. However, such is the lawyers

charge that no personal consideration should stand in the way of performing a legal duty.30 In these situations, it is only fair that a lawyer should lighten his case load lest he prejudice his clients cases.

We have held that the failure of an attorney to file a timely motion for reconsideration or an appeal renders him liable for negligence under the Code of Professional Responsibility.31 In the instant case, the negligence exhibited by the respondent is made more grievous by the fact that the Decision to be acted upon is one that subjects his clients to incarceration. The liberty of ones clients is not to be taken lightly, whether the sentence is for destierro or reclusion perpetua. Litigants entrust their properties, liberties, and even lives, in the hands of their lawyers, who must protect these values with utmost zeal and vigilance.

What compounds respondents negligence is his indifference to complainants plight. He abruptly dismissed his failure to communicate with complainants by stating that, "even if [complainants] house is near respondents office, yet respondent does not know [where] their house [is] as he ha[s] never gone to said house. It has never been the practice of respondent to visit his clients in their home. It must be the client who must go to him."32

Respondents choice to be oblivious to his clients place of residence is his prerogative. This, however, neither excuses nor explains why he was unable to contact his clients by telephone or cellular phone to properly advise them of their legal options. Furthermore, in adopting this style of dealing with clients, respondent takes the obvious risk of being incapable of contacting his clients during crucial periods. He should, thus, be prepared to be held in the event that his manner of dealing with clients results in the latters being deprived of remedies to which they would otherwise be entitled, for it is the duty of an attorney to advise his client promptly whenever he has any information which is important that the client receive.33

To cover his own inattention, respondent even blamed his clients for their ignorance by stating that they were under the wrong impression that the civil liability should be paid in full before they could ask for probation. The laymens lack of knowledge of substantive and procedural law is the exact reason why they hire the services of counsel. It was counsels responsibility to look after the welfare of his clients by communicating with them to determine whether they would take the avenue of an appeal or a petition for probation and to thereafter prepare and file the relevant pleading.

We note the IBP Investigating Commissioners observation that complainants themselves did not show much interest in their own case. Indeed, complainants did not attend hearings of their case; the decision was promulgated in their absence; during trial, complainants were thrice ordered arrested for their failure to attend hearings; thrice, too, respondent had to file a motion for reconsideration of the orders of arrest. It is true that the client must, with regard to his case, exercise that standard of case which an ordinary prudent man bestows upon his important business.34 However, complainants lackadaisical attitude is relevant only with regard to the binding effect upon them of the lapse of the fifteen (15)-day period and their loss of the fight to file the petition for probation. The instant administrative proceeding concerns respondents omission, not those of his clients.

The lawyer should serve his client in a conscientious, diligent and efficient manner and he should provide a quality of services at least equal to that which lawyers generally would expect of a competent lawyer in the like situation.35 By agreeing to be his clients counsel, he represents that he will exercise ordinary diligence or that reasonable degree of care and skill having reference to the character of the business he undertakes to do, to protect the clients interests and take all steps or do all acts necessary therefor, and his client may reasonably expect him to discharge his obligations diligently.36 Respondent has failed to measure up to his oath.

WHEREFORE, the petition is GRANTED. Atty. Emmanuel A. Akut is hereby SUSPENDED from the practice of law for six (6) months and ADMONISHED henceforth to be more circumspect in the performance of his duties to his clients, with the caveat that commission of the same or similar offense will be dealt with more severely.

SO ORDERED.

DANTE O. TINGA Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING Associate Justice Chairman

ANTONIO T. CARPIO Associate Justice Asscociate Justice PRESBITERO J. VELASCO Associate Justice CONCHITA CARPIO MORALES

Footnotes

1 Penned by Judge Ernesto Gabor Malferrari of the Cagayan de Oro MTCC, Branch 5.

2 Four months and one day to six months.

3 Complainants were sentenced to the penalty of Arresto Mayor (Four Months and One Day to Six Months) and a fine not less than P30,000.00. Rollo, p. 46.

4 On the civil aspect of the case, complainants were ordered to pay the private complainant P30,000.00 by way of moral damages, P10,000.00 in exemplary damages, P20,000.00 for attorneys fees, and P6,000.00 by way of litigation expenses, all of which are to earn 6% per annum from date of judgment. Id. at 46.

5 Rule 40, Section 2.

6 Section 4, Presidential Decree No. 968, as amended, Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant and upon application by said defendant within the period for perfecting an appeal place the defendant on probation.

7 Rollo, Folder I, p. 4.

8 See Id. at 169.

9 Id. at 15.

10 Id. at 15.

11 Citing Francisco v. Court of Appeals, 243 SCRA 384, (1996).

12 Rollo, Folder I, p. 9.

13 See Id. at 2.

14 Id. at 19.

15 Rollo, Folder I, p. 20.

16 Id. at 29.

17 Id. at 31.

18 Id. at 38.

19 Id. at 60. Notably, however, the cause of death indicated in the Certificate of Death is cardiac arrest; id. at p. 72.

20 Id. at 38.

21 Through a Resolution dated 15 November 1999; id. at 80.

22 Report and Recommendation of IBP Commissioner Wilfredo E.J.E. Reyes, p. 12.

23 Id.

24 Section 12 x x x

(b) If the Board, by the vote of a majority of its total membership, determines that the respondent should be suspended from the practice of law or disbarred, it shall issue a resolution setting forth its findings and recommendations which, together with the record of the case, shall forthwith be terminated to the Supreme Court for final action.

25 Canon 18, Code of Professional Responsibility.

26 Rule 18.02, Code of Professional Responsibility.

27 Rule 18.03, Code of Professional Responsibility.

28 Rollo, Folder I, pp. 11 and 12.

29 Regardless, too, of whether he accepts it for free or for a fee. See, Santiago et al, v. Fojas, A.C. No. 4103, 7 September 1995, 248 SCRA 68, 75-76.

30 See Alvero v. De la Rosa, 76 Phil, 428, 435 (1946).

31 Adaza v. Barinaga, A.C. No. 1604, 29 May 1981, 104 SCRA 684; Guiang v. Antonio, A.C. No. 2473, 3 February 1993, 218 SCRA 381.

32 Rollo, Folder I p. 37; See also Rollo, Folder II, p. 31.

33 Ruben E. Agpalo, Comments on the Code of Professional Responsibility and the Code of Judicial Conduct, c. 2001, p. 206, citing Baker v. Humphrey, 101 US 494, 25 L ed 1065 (1979).

34 Fernandez v. Tan Tiong Tick, G.R. No. L-15877, 28 April 1961, 1 SCRA 1138, 1144.

35 ABA, Code of Professional Conduct, p. 8, as cited in Legal and Judicial Ethics, Ernesto Pineda, c. 1995, p. 200.

36 Ruben E. Agpalo, Comments on the Code of Professional Responsibility and the Code of Judicial Conduct, c. 2001, p. 192.

SECOND DIVISION [A.M. No. RTJ-04-1891. July 28, 2005]

RE: ANONYMOUS COMPLAINT AGAINST JUDGE EDMUNDO T. ACUA, REGIONAL TRIAL COURT, CALOOCAN CITY, BRANCH 123. DECISION CALLEJO, SR., J.:

On November 21, 2003, the Office of the Court Administrator (OCA) received a Letter[1] dated November 3, 2003 from Concerned citizens of the lower court reporting the alleged practices of Judge Edmundo T. Acua, Regional Trial Court, Caloocan City, Branch 123. According to the letter, the respondent Judge conducted trials, signed orders and even sentenced accused while on official leave from August 15, 2001 to September 15, 2001. Among the decided cases were as follows:

1. Crim. Case No. C-63250 People v. Alex Sabayan; 2. Crim. Case No. C-63261-62 People v. Renato Simo; 3. Crim. Case No. C-61323 People v. Elizabeth Canaberal; 4. Crim. Case No. C-63238 People v. Narciso Asistio, et al.; and 5. Crim. Case No. C-63238 People v. Marlon Duritan.

The letter went on to question whether the respondent had authority to impose such sentences, issue orders and conduct hearings. Aside from listing the respondents dialogues, his favorite expressions were likewise listed, as follows:

1. Putris 2. Anak ng pating 3. Putang Ina 4. Pogi, beauty 5. Tulungan nyo naman ako, hirap na hirap na ko. 6. Mali ka na naman.

According to the unknown complainants, the respondent Judge also spends much of his energy talking and loves to berate and embarrass people, not caring whether he speaks in open court, as long as he has an audience. The complainants further stated that the respondents decisions usually take about seven to ten drafts, as he changes his mind so many times. It was further alleged that the respondent loves to glorify himself, and that his behavior was weird.

In his comment, the respondent averred that the writers of the letter were actuated by improper motive, and sent the letter with no other purpose than to harass him. Furthermore, the allegations in the letter were fabricated, exaggerated, or misquoted.

Anent the allegation that he conducted trials, signed orders and issued sentences while he was on official leave, the respondent alleged that he was issued an Authority to Travel[2] dated August 14, 2001 duly approved and signed by then Acting Court Administrator Zenaida Elepao allowing him to travel to Toronto, Canada to visit his brother, who unfortunately passed away before he could leave. As evidenced by the entries in the daily time records/logbook,[3] he was not yet on leave from August 15, 2001 to August 21, 2001. As such, he had the right and duty to come to court and conduct trials, sign orders and issue sentences. His application[4] for a thirty-day leave was from August 21, 2001 to September 21, 2001, duly approved by Deputy Court Administrator Jose P. Perez.

On the allegation that he exhibited weird behavior, he explained that he was still mourning the loss of his eldest son who died of a fatal aneurism last December 21, 2002. His son, who was at the prime of his life, had just taken the 2002 bar examinations and was employed at a law firm. The respondent Judge surmised that the unknown complainants may have seen and observed him at the second phase of his recovery, a time when he was depressed and angry.

As to the alleged humiliating statements that he made, the respondent Judge admitted having made some of them while he was discussing the performance ratings of his staff. He insisted, however, that he had been misquoted, and dismissed as mere fabrication some of the statements attributed to him. He admitted, however, that putris, putang-ina, beauty and pogi were among his favorite expressions, but clarified that he did not use them often, certainly not in open court.

In its Report dated September 17, 2004, the OCA recommended that the instant administrative case be redocketed as a regular administrative matter, and that the respondent be reprimanded for ignorance of a policy on leave of absence expressed through the ruling of the Court in Paz v. Tiong,[5] where it was held that a judge on leave of absence would have absolutely no authority to discharge his duties or exercise the powers of a judge. The OCA made the following evaluation:

Official records culled from the OCA Office of Administrative Services indicate that Judge Acua had an approved application for leave covering the period from 21 August 2001 to 21 September 2001. This

application for leave of absence was approved on 3 August 2001. In view of this approved application for leave, it was a natural expectation that Judge Acua would cease from exercising his functions during the said period.

However, per verification with the clerk-in-charge at RTC Branch 123, Caloocan City, respondent Judge Acua presided over the following cases on 21 August 2001:

1. Criminal Case No. C-63250 entitled People v. Alex Sibayan; 2. Criminal Case No. 63261-62 entitled People v. Renato Simo; and 3. Criminal Case No. 61323 entitled People v. Canaberal.

In his Comment dated 19 January 2004, the respondent judge admitted reporting for work on 21 August 2001 and presiding over two (2) criminal cases. He even took pride in the fact that he did not go on leave that day, pointing to the courts logbook as proof of his attendance.

The admission by Judge Acua confirms the allegation in the anonymous letter that he performed his functions on a day when he was already on leave of absence. The reference made by the respondent judge to the logbook only serves to establish that he indeed performed his duties on 21 August 2001 the first day of his official leave. We state that not even his overzealousness to work can shield him from administrative liability for ignorance of the consequences of his approved application for leave of absence.[6]

In a Resolution[7] dated December 8, 2004, the Court resolved to refer the matter to Court of Appeals Associate Justice Monina Arevalo-Zearosa for investigation, report and recommendation. The respondent manifested that he was going to file an extended comment, which the Investigating Justice allowed.

In his supplemental comment, the respondent alleged that he decided to defer his leave for another week as his siblings who would be going with him to Canada had not yet secured their visas. The respondent alleged that he was even uncertain if this could be done by amending his travel authority. Jenny Rivera-Baliton, the clerk in charge of criminal cases in the respondents sala, informed him that this would take another week or so. Ms. Rivera-Baliton executed an affidavit attesting to the veracity of the respondents claim. Thus, the respondent decided not to defer his leave anymore, and no longer reported for work beginning August 22, 2001. On the issue of hearing cases on August 21, 2001 despite his approved travel authority and approved leave, the respondent claimed, thus:

I was not actuated by any evil or improper motive. Neither was I motivated by any monetary consideration or otherwise except by my desire to discharge my sworn duty to administer justice expeditiously. I acted in

good faith and in the honest belief that I had the right to defer the effectivity of my leave chargeable against the 30-day forfeitable leave benefit. I wish to reiterate at this juncture what I stated in my original comment that the leave I applied for in 2001 was my first full availment of the 30-day forfeitable leave. Previously, and even after 2001, I went on forfeitable leave only for several days and never consumed the complete 30 days leave accorded to judges. In hearing cases on August 21, 2001, I did not receive any extra remuneration for it. The public service was not prejudiced thereby. I had in mind only the interest of the accused who were in detention. I had no intention of violating any rule, nor was it ever my intention to prejudice anybody. On that day, as in the past, I had a heavy case load, involving detention prisoners as I [my court is] a Drugs Court. (My court is also a commercial [law] and [Intellectual Property Law] Court, the only branch in Caloocan City which is that). Had I not heard the cases of the accused who pleaded guilty on that day, they would have waited for my return after 30 days.

If I committed any infraction of the rules on leave, in all sincerity, to reiterate, there was no intention at all on my part to so disregard the rules. If I committed any infraction, I plead for the leniency of this Court with a promise that I will not commit a repetition thereof anymore.[8]

The Investigating Justice thereafter submitted her Report, recommending that the complaint be dismissed for lack of merit. She ratiocinated that while the respondent Judge admitted having performed his functions on August 21, 2001, the date of the commencement of his approved leave, there was nothing repulsive in deferring the date of his leave. Moreover, there was no showing that the respondent was actuated by any ulterior motive other than to lessen his workload. According to the Investigating Justice, the respondents decision to report for work that day appears to have been motivated by his honest belief that he could defer his leave and make the necessary adjustments later; he had no clear intent to deliberately ignore the rules regarding vacation leaves. The Investigating Justice further pointed out that nobody was prejudiced by the respondents appearance during that day, and went on to state:

However, respondent should bear in mind that approved leaves are filed through official documents and in the future, such act may obliterate the validity of the issuances he made while on official leave when his orders, decisions and other promulgations reflect a date when he is already supposed to be on leave. Thus, he should exercise utmost caution regarding these matters.

Therefore, in our consideration, the act of respondent does not constitute such a gross ignorance of the rules that will warrant an administrative liability. In view of the lack of malice and improper motive in reporting for work and discharging his functions and taking into account his desire to dispense justice promptly, respondent cannot be said to have been grossly ignorant of the rules as to be deemed administratively liable.[9]

As to the use of humiliating and insensitive expressions, the Investigating Justice agreed with the OCA that the use of putris and putang ina were unfit expressions for men of the robe. It did not matter that they were not directed to any person in particular, as they give the impression of a persons ill manners. Considering

that the respondent is not an ordinary citizen, such intemperate language detracts from how a judge should conduct himself. The Investigating Justice made the following conclusion:

In sum, we find that the allegations in the anonymous complaint, some of which were admitted with qualifications by the respondent, are not sufficient to warrant a penalty other than to remind him of the rules regarding official leaves and of proper conduct of judges.

As a final note, respondent is reminded that as a judge, it is paramount that a judges official conduct should be free from the appearance of impropriety, and his personal behavior, not only in the bench and in the performance of his official duties, but also in his everyday life should be beyond reproach. This includes following simple rules as well as conducting himself in the most respectable and honorable manner possible. Only through such kind of demeanor of the members of the judiciary that the institution earns the respect and faith of our people in the administration of justice.[10]

The Court agrees with the Investigating Justices observation that the respondents use of such expletives is improper for the extolled office of a magistrate of the law. By virtue of the very office he holds, the public expects more of the respondent as he undeniably occupies an exalted yet delicate niche in the administration of justice. Those who don the judicial robe and wield the judicial gavel ought to impress in their consciousness that appearance is an essential manifestation of reality.[11] Thus, the respondents claim that his favorite expressions were not directed at anyone in particular is unacceptable.

Judges are demanded to be always temperate, patient and courteous both in conduct and in language.[12] Indeed, a judge should so behave at all times as to promote public confidence in the integrity and impartiality of the judiciary.[13] Propriety and the appearance of propriety are essential to the performance of all the activities of a judge.[14] We recognize, of course, that judges are also human beings, with their own burdens and private affairs. However, having accepted the esteemed position of judge, the respondent ought to have known that more is expected of him than an ordinary citizen. As subjects of constant public scrutiny, personal restrictions that might be viewed as burdensome by the ordinary citizen should be freely and willingly accepted by a judge. In particular, he or she must exhibit conduct consistent with the dignity of the judicial office.[15] Indeed, a judges personal behavior, not only while in the performance of official duties, must be beyond reproach, being the visible personification of law and of justice.[16]

Thus, while we commiserate with the respondent Judge for the loss of his brother and son, we cannot spare him from the consequences of his unacceptable behavior.

In Ignacio v. Valenzuela,[17] a judge who heard a motion while he was on vacation was held guilty of impropriety and was meted a fine of one months salary. To reiterate, a judge should avoid impropriety and the appearance of impropriety in all activities.[18] Thus, in conducting hearings and promulgation of decisions on the day when his official leave of absence was to commence, the respondent Judge was guilty of

impropriety. Considering, however, that no bad faith or ill motive can be attributed to the respondent, the Court deems it proper to reprimand him for his actuations.

WHEREFORE, respondent Judge Edmundo T. Acua is found GUILTY of impropriety and is REPRIMANDED therefor. He is STERNLY WARNED that the repetition of the same or similar act shall be dealt with more severely.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.

[1] Rollo, pp. 8-10.

[2] Annex B, Rollo, p. 30.

[3] Annexes A to A4, Id. at 26-28.

[4] Annex C, Id. at 31.

[5] A.M. No. MTJ-94-998, 9 February 1996, 253 SCRA 364.

[6] Rollo, p. 4.

[7] Id. at 72.

[8] Rollo, pp. 80-81.

[9] Report, p. 7.

[10] Id. at 9.

[11] Lumibao v. Judge Panal, 377 Phil. 157 (1999).

[12] Fidel v. Caraos, A.M. No. MTJ-99-1224, 12 December 2002, 394 SCRA 47.

[13] Rule 2.01, Code of Judicial Conduct.

[14] Canon 4, New Code of Judicial Conduct for the Philippine Judiciary, which took effect on June 1, 2004.

[15] Section 2, Canon 4, Id.

[16] Alday v. Cruz, Jr., A.M. No. RTJ-00-1530, 14 March 2001, 354 SCRA 322.

[17] A.C. No. 2252-CFI, 18 January 1982, 111 SCRA 12.

[18] Canon 2, Code of Judicial Conduct.

A.C. No. 6963

February 9, 2006

VICTORINA BAUTISTA, Complainant, vs. ATTY. SERGIO E. BERNABE, Respondent.

DECISION

YNARES-SANTIAGO, J.:

In a Complaint1 filed before the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP) on November 16, 2004, complainant Victorina Bautista2 prays for the suspension or disbarment of respondent Atty. Sergio E. Bernabe for malpractice and unethical conduct in the performance of his duties as a notary public and a lawyer.

Complainant alleged that on January 3, 1998, respondent prepared and notarized a Magkasanib na Salaysay3 purportedly executed by Donato Salonga and complainants mother, Basilia de la Cruz.4 Both affiants declared that a certain parcel of land in Bigte, Norzagaray, Bulacan, was being occupied by Rodolfo Lucas and his family for more than 30 years. Complainant claimed that her mother could not have executed the joint affidavit on January 3, 1998 because she has been dead since January 28, 1961.5

In his Answer,6 respondent denied that he falsified the Magkasanib na Salaysay. He disclaimed any knowledge about Basilias death. He alleged that before he notarized the document, he requested for Basilias presence and in her absence, he allowed a certain Pronebo, allegedly a son-in-law of Basilia, to sign above the name of the latter as shown by the word "by" on top of the name of Basilia. Respondent maintained that there was no forgery since the signature appearing on top of Basilias name was the signature of Pronebo.

On April 4, 2005, respondent filed a manifestation7 attaching thereto the affidavit of desistance8 of complainant which reads in part:

Ako na si, VICTORINA BAUTISTA CAPA, x x x matapos makapanumpa ng naaayon sa batas ay malaya at kusang loob na nagpapahayag ng mga sumusunod:

1. Na ako ang siyang tumatayong nagrereklamo laban kay Abogado, SERGIO EXQUIVEL BERNABE, sa isang kaso sa Tanggapan ng Integrated Bar of the Philippines na may Blg. CBD CASE NO. 04-1371;

2. Na ang nasabing habla ay hindi ko kagustuhan sapagkat iyon ay pinapirmahan lamang sa akin ni ELISEO OLOROSO at ng kanyang Abogado na si Atty. MARCIAL MORFE MAGSINO at sa katunayan hindi ako nakaharap sa Notaryo Publiko na si Abogado CARLITOS C. VILLARIN;

3. Na ang pagpapapirma sa akin ay isang panlilinlang at ako ay ginawang kasangkapan para sirain ang magandang pangalan nitong si Abogado SERGIO ESQUIVEL BERNABE;

4. Na dahil sa ganitong pangyayari, aking hinihiling sa Tanggapan ng Integrated Bar of the Philippines (IBP) na ang reklamo ko laban sa nasabing Abogado SERGIO ESQUIVEL BERNABE ay mapawa[la]ng bisa.

In the report dated August 29, 2005, the Investigating Commissioner9 recommended that:

1. Atty. Sergio Esquibel Bernabe be suspended from the practice of the legal profession for one (1) month;

2. Any existing commission of Atty. Sergio Esquibel Bernabe as notary public, be revoked; and

3. Atty. Sergio Esquibel Bernabe be barred from being granted a notarial commission for a period of one (1) year.10

In a resolution dated October 22, 2005, the Board of Governors of the IBP adopted and approved the recommendation of the Investigating Commissioner with modification that respondent be suspended from the practice of law for one year and his notarial commission be revoked and that he be disqualified for reappointment as notary public for two years.

We agree with the findings and recommendation of the IBP.

The records sufficiently established that Basilia was already dead when the joint affidavit was prepared on January 3, 1998. Respondents alleged lack of knowledge of Basilias death does not excuse him. It was his duty to require the personal appearance of the affiant before affixing his notarial seal and signature on the instrument.

A notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before him to attest to the contents and truth of what are stated therein. The presence of the parties to the deed will enable the notary public to verify the genuineness of the signature of the affiant.11

Respondents act of notarizing the Magkasanib na Salaysay in the absence of one of the affiants is in violation of Rule 1.01,12 Canon 1 of the Code of Professional Responsibility and the Notarial Law.13 By affixing his signature and notarial seal on the instrument, he led us to believe that Basilia personally appeared before him and attested to the truth and veracity of the contents of the affidavit when in fact it was a certain Pronebo who signed the document. Respondents conduct is fraught with dangerous possibilities considering the conclusiveness on the due execution of a document that our courts and the public accord on notarized documents. Respondent has clearly failed to exercise utmost diligence in the performance of his function as a notary public and to comply with the mandates of the law.14

Respondent was also remiss in his duty when he allowed Pronebo to sign in behalf of Basilia. A member of the bar who performs an act as a notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before him. The acts of the affiants cannot be delegated to anyone for what are stated therein are facts of which they have personal knowledge. They should swear to the document personally and not through any representative. Otherwise, their representatives name should appear in the said documents as the one who executed the same. That is the only time the representative can affix his signature and personally appear before the notary public for notarization of the said document. Simply put, the party or parties who executed the instrument must be the ones to personally appear before the notary public to acknowledge the document.15

Complainants desistance or withdrawal of the complaint does not exonerate respondent or put an end to the administrative proceedings. A case of suspension or disbarment may proceed regardless of interest or lack of interest of the complainant. What matters is whether, on the basis of the facts borne out by the record, the charge of deceit and grossly immoral conduct has been proven. This rule is premised on the nature of disciplinary proceedings. A proceeding for suspension or disbarment is not a civil action where the complainant is a plaintiff and the respondent lawyer is a defendant. Disciplinary proceedings involve no private interest and afford no redress for private grievance. They are undertaken and prosecuted solely for the public welfare. They are undertaken for the purpose of preserving courts of justice from the official ministration of persons unfit to practice in them. The attorney is called to answer to the court for his conduct as an officer of the court. The complainant or the person who called the attention of the court to the attorneys alleged misconduct is in no sense a party, and has generally no interest in the outcome except as all good citizens may have in the proper administration of justice.16

We find the penalty recommended by the IBP to be in full accord with recent jurisprudence. In Gonzales v. Ramos,17 respondent lawyer was found guilty of notarizing the document despite the non-appearance of one

of the signatories. As a result, his notarial commission was revoked and he was disqualified from reappointment for a period of two years. In addition, he was suspended from the practice of law for one year.

Finally, it has not escaped our notice that in paragraph 218 of complainants affidavit of desistance, she alluded that Atty. Carlitos C. Villarin notarized her Sinumpaang Salaysay19 dated November 12, 2004 which was attached to the complaint filed with the Commission on Bar Discipline of the IBP, without requiring her to personally appear before him in violation of the Notarial Law. This allegation must likewise be investigated.

WHEREFORE, for breach of the Notarial Law and Code of Professional Responsibility, the notarial commission of respondent Atty. Sergio E. Bernabe, is REVOKED. He is DISQUALIFIED from reappointment as Notary Public for a period of two years. He is also SUSPENDED from the practice of law for a period of one year, effective immediately. He is further WARNED that a repetition of the same or of similar acts shall be dealt with more severely. He is DIRECTED to report the date of receipt of this Decision in order to determine when his suspension shall take effect.

The Commission on Bar Discipline of the Integrated Bar of the Philippines is DIRECTED to investigate the allegation that Atty. Carlitos C. Villarin notarized the Sinumpaang Salaysay of Victorina Bautista dated November 12, 2004 without requiring the latters personal appearance.lavvph!1.net

Let copies of this Decision be furnished the Office of the Bar Confidant, the Integrated Bar of the Philippines, and all courts all over the country. Let a copy of this Decision likewise be attached to the personal records of the respondent.

SO ORDERED.

CONSUELO YNARES-SANTIAGO Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN Chief Justice Chairperson

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice Asscociate Justice MINITA V. CHICO-NAZARIO Associate Justice ROMEO J. CALLEJO, SR.

Footnotes

1 Rollo, pp. 1-2.

2 Referred to as Victorina Bautista Kapa and Victorina Bautista Capa in other parts of the records.

3 Rollo, p. 6.

4 Referred to as Basilia de la Cruz Bautista and Basilia B. Cruz in other parts of the records. See also Affidavit of Victorina Bautista, rollo, p. 7.

5 See Annex "A," rollo, p. 5.

6 Rollo, pp. 18-20.

7 Id. at 31-32.

8 Id. at 33.

9 Commissioner Doroteo B. Aguila.

10 Report and Recommendation, p. 4.

11 Gonzales v. Ramos, A.C. No. 6649, June 21, 2005, 460 SCRA 352, 357.

12 A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

13 See Social Security Commission v. Corral, A.C. No. 6249, October 14, 2004, 440 SCRA 291, 295.

14 Gonzales v. Ramos, supra at 358-359.

15 Bon v. Ziga, Adm. Case No. 5436, May 27, 2004, 429 SCRA 177, 185.

16 Rayos-Ombac v. Rayos, 349 Phil. 7, 15 [1998].

17 Supra note 11 at 359.

18 See rollo, p. 33. Paragraph 2 of complainants affidavit of desistance reads:

Na ang nasabing habla ay hindi ko kagustuhan sapagkat iyon ay pinapirmahan lamang sa akin ni ELISEO OLOROSO at ng kanyang Abogado na si Atty. MARCIAL MORFE MAGSINO at sa katunayan hindi ako nakaharap sa Notaryo Publiko na si Abogado CARLITOS C. VILLARIN[.] (Emphasis added)

19 Rollo, pp. 3-4.

Adm. Case No. 1392 April 2, 1984

PRECIOSA R. OBUSAN, complainant, vs. GENEROSO B. OBUSAN, JR., respondent.

Roger Castuciano for complainant.

Roemo J. Callejo for respondent.

AQUINO, J.:+.wph!1

This is a disbarment case filed in 1974 by Preciosa Razon against her husband Generoso B. Obusan, Jr. on the ground of adultery or grossly immoral conduct. He was admitted to the bar in 1968.

In 1967, when Generoso B. Obusan, Jr. was working in the Peoples Homesite and Housing Corporation, he became acquainted with Natividad Estabillo who represented to him that she was a widow. They had carnal relations. He begot with her a son who was born on November 27, 1972. He was named John Obusan (Exh. D). Generoso came to know that Natividad's marriage to Tony Garcia was subsisting or undissolved.

Four days after the birth of the child or on December 1, 1972, Generoso, 33, married Preciosa, 37, in a civil ceremony. The marriage was ratified in a religious ceremony held on December 30,1972 (Exh. C and C-1)

The couple lived with the wife's mother at 993 Sto. Cristo Street, Tondo, Manila for more than one year. In the evening of April 13, 1974, when his wife was out of the house, lawyer Obusan asked permission from his mother-in-law to leave the house and take a vacation in his hometown, Daet, Camarines Norte. Since then, he has never returned to the conjugal abode.

Preciosa immediately started looking for her husband. After much patient investigation and surveillance, she discovered that he was living and cohabiting with Natividad in an apartment located at 85-A Felix Manalo Street, Cubao, Quezon City. He had brought his car to that place.

The fact that Obusan and Natividad lived as husband and wife was corroborated by Linda Delfin, their housemaid in 1974; Remedios Bernal, a laundress, and Ernesto Bernal, a plumber, their neighbors staying at 94 Felix Manalo Street. The three executed the affidavits, Exhibits A, B and F, which were confirmed by their testimonies.

Romegil Q. Magana, a pook leader, testified that Obusan introduced himself as the head of the family (25-30 tsn Nov. 26, 1976). His name is at the head of the barangay list (Exh. E, G and H). Nieves Cacnio the owner of the apartment, came to know Obusan as Mr. Estabillo. She Identified five photographs, Exhibits I to I-D where respondent Obusan appeared as the man wearing eyeglasses.

Respondent's defense was that his relationship with Natividad was terminated when he married Preciosa. He admitted that from time to time he went to 85-A Felix Manalo Street but only for the purpose of giving financial assistance to his son, Jun-Jun. Lawyer Rogelio Panotes, the ninong of Jun-Jun, corroborated respondent's testimony.

He denied the testimonies of the maid, the laundress and the plumber. He claims that they were paid witnesses. He declared that he did not live with Natividad. He resided with his sister at Cypress Village, San Francisco del Monte, Quezon City.

On the other hand, he claimed that he was constrained to leave the conjugal home because he could not endure the nagging of his wife, their violent quarrels, her absences from the conjugal home (she allegedly went to Baguio, Luneta and San Andres Street) and her interference with his professional obligations.

The case was investigated by the Office of the Solicitor General. He filed a complaint for disbarment against the respondent. Obusan did not answer the complaint. He waived the presentation of additional evidence. His lawyer did not file any memorandum.

After an examination of the record, we find that the complainant has sustained the burden of proof. She has proven his abandonment of her and his adulterous relations with a married woman separated from her own husband.

Respondent was not able to overcome the evidence of his wife that he was guilty of grossly immoral conduct. Abandoning one's wife and resuming carnal relations with a former paramour, a married woman, fails within "that conduct which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community" (7 C.J.S. 959; Arciga vs. Maniwang Adm. Case No. 1608, August 14, 1981, 106 SCRA 591).

Thus, a lawyer was disbarred when he abandoned his lawful wife and cohabited with another woman who had borne him a child. He failed to maintain the highest degree of morality expected and required of a member of the bar (Toledo vs. Toledo, 117 Phil. 768).

WHEREFORE, respondent is disbarred. His name is stricken off the Roll of Attorneys.

SO ORDERED.

Makasiar, Actg. C.J., Concepcion, Jr., Guerrero, Abad Santos, De Castro, Melencio-Herrera, Plana, Escolin Relova, Gutierrez, Jr. and De la Fuente, JJ., concur.

G.R. No. 91133. March 22, 1993.

ROMINA M. SUAREZ, petitioner, vs. THE COURT OF APPEALS, PRESIDING JUDGE OF THE REGIONAL TRIAL COURT, BRANCH LXI, ANGELES CITY, respondents.

Ranel L. Trinidad for petitioner.

The Solicitor General for public respondents.

SYLLABUS

1. LEGAL ETHICS; LAWYERS; OBLIGATIONS. The legal difficulty petitioner finds herself in is imputable to the negligence of her de parte counsel, Atty. Vicente San Luis, in abandoning the conduct of the case without formally withdrawing or at least informing petitioner that he would be permanently staying in the U.S.A. so that petitioner could appoint another counsel. A lawyer owes absolute fidelity to the cause of his client. He owes his client full devotion to his genuine interests, warm zeal in the maintenance and defense of his rights, and the exertion of his utmost learning and ability (Canon 17, Code of Professional Responsibility; Agpalo's Legal Ethics, p. 157). A lawyer is required to exercise ordinary diligence or that reasonable degree of care and skill having reference to the character of the business he undertakes to do (Agpalo's Legal Ethics, p. 174). Among his duties to his client is attending to the hearings of the case (People's Homesite and Housing Corp. vs. Tiongco, 12 SCRA 471 [1964]; Agpalo's Legal Ethics, p. 175).

2. ID.; ID.; RIGHT OF CLIENTS; NOT PROTECTED IN CASE AT BAR. A client may reasonably expect that his counsel will make good his representations (Agpalo's Legal Ethics, p. 169) and has the right to expect that his lawyer will protect his interests during the trial of his case. For the general employment of an attorney to prosecute or defend a cause or proceeding ordinarily vests in a plaintiff's attorney the implied authority to take all steps or do all acts necessary or incidental to the regular and orderly prosecution or management of the suit, and in a defendant's attorney the power to take such steps as he deems necessary to defend the suit and protect the interests of the defendant (7A C.J.S. 315). Petitioner, therefore, had the right to expect that her counsel de parte, Atty. San Luis, would protect her interests during the trial of the cases. However, as aforestated, Atty. San Luis failed to discharge his duties as counsel for petitioner.

3. ID.; ID.; CLIENT BOUND BY HIS COUNSEL'S NEGLIGENCE; EXCEPTION. As a general rule, a client is bound by his counsel's conduct, negligence, and mistakes in handling the case during the trial (Fernandez vs. Tan Ting Tic, 1 SCRA 1138 [1961]; Rivera vs. Vda. de Cruz, 26 SCRA 58 [1968]; Don Lino Gutierrez & Sons, Inc. vs. Court of Appeals, 61 SCRA 87 [1974]). However, the rule admits of exceptions. A new trial may be granted where the incompetency of counsel is so great that the defendant is prejudiced and prevented from fairly presenting his defense (People vs. Manzanilla, 43 Phil. 167 [1922]; 16 C.J. 1145; 24 C.J.S. 68). Where a

case is not tried on the merits because of the negligence of counsel rather than the plaintiff, the case may be dismissed but, in the interest of justice, without prejudice to the filing of a new action (De Los Reyes vs. Capule, 102 Phil. 464 [1957]).

4. ID.; ID.; ID.; ID.; CASE AT BAR. Petitioner was deprived of her right to present and prove her defense due to the negligence of her counsel. The appearance of a certain Atty. Buen Zamar is of no moment as there was no client-attorney relationship between him and petitioner who did not engage his services to represent her in said cases. The fact that notices of the promulgation of judgment were sent to petitioner at her address of record produced no legal consequence because notice to a party is not effective notice in law (Elli vs. Ditan, 5 SCRA 503 [1962]; Mata vs. Rita Legarda, Inc., 7 SCRA 227 [1963]). We rule, therefore, that under the facts of the case, petitioner was deprived of due process of law. It is the better part of judicial wisdom and prudence to accord to petitioner the opportunity to prove her defense. It is abhorrent to the judicial conscience to consign petitioner to the ordeals of imprisonment without affording her full opportunity to present her evidence including, of course, the assistance of competent counselling.

DECISION

MELO, J p:

Before is a petition for review on certiorari seeking to set aside the decision of the Court of Appeals in CA-G.R. SP No. 17488 and to direct respondent trial court to reopen the joint trial of Criminal Cases No. 7284 to 7296, 7302-7303, and 7650.

It appears from the record that on May 7, 1985 petitioner was charged in Criminal Cases No. 7284-7296, and No. 7302-7303 before the Regional Trial Court, Branch 61, Angeles City with violation of Batas Pambansa Blg. 22, the Bouncing Check Law. On August 21, 1985, petitioner was again charged in the same court with the same offense in Criminal Case No. 7650. All these cases were consolidated for trial and decision in Branch LXI of the Regional Trial Court of the Third Judicial Region in Angeles City, at that time presided over by the Honorable Ramon C. Tuazon who has since retired. At the arraignment, petitioner pleaded "not guilty" to all the informations against her. She then posted bail in all the cases and was granted provisional liberty.

At the trial of the cases, petitioner did not appear in court despite notices sent to her residence as appearing on the record and to her bondsmen. Her counsel de parte, Atty. Vicente San Luis appeared in her behalf during the time the prosecution was presenting its evidence up to October 20, 1987 when it was the turn of the defense to present its evidence. However, the hearing on said date was postponed because of the absence of the private prosecutor and the continuation of the hearing was reset to November 19, 1987. On said date, Atty. Buen Zamar entered a special appearance for Atty. San Luis as counsel for the accused without, however, the consent of petitioner. From said date Atty. San Luis Did not appear in court as he had left for the United States of America and has not returned since then, without informing petitioner or withdrawing his

appearance. Atty. Zamar, together with the prosecution, asked for deferment of the hearing that day as he was not conversant with the facts of the case, and the continuation of hearing was reset to January 6, 1988, on which date Atty. Zamar again asked for postponement and the hearing was reset to February 3, 1988. However, also on January 6, 1988, the trial court issued an order forfeiting in favor of the government the bonds posted by petitioner for her provisional liberty in view of the failure of her bondsmen to produce her at the scheduled hearing of the cases against her. It appears that sometime in June, 1987, petitioner got married and lived with her husband at their conjugal dwelling at the Villa Dolores Subdivision, Angeles City.

On May 17, 1988, the trial court issued a notice in Criminal Case No. 7650 setting the promulgation of its decision on May 13, 1988 and said notice was sent by registered mail to Atty. San Luis and the petitioner's bondsmen and served by personal service by the court's process server at her address of record upon her mother who informed the process server that petitioner had been out of the country for almost two years already. Her mother did not forward the notice to petitioner.

On May 31, 1988, when Criminal Case No. 7650 was called for promulgation of judgment, the trial court appointed Atty. Augusto Panlilio as counsel de oficio to represent the absent petitioner. The judgment of conviction of petitioner was promulgated by the reading of the decision in open court by the Branch Clerk of Court and furnishing the parties through their respective counsel present in court with copies of the decision. Likewise, copies of the decision were sent by registered mail to petitioner's bondsmen, her attorney of record, and petitioner herself at her address of record, 1799 Burgos St., Angeles City.

On June 14, 1988, the trial court issued notices to all the parties setting the promulgation of its joint decision in Criminal Cases No. 7284-7296 and 7302-7303 for June 29, 1988. Copies of the notices were sent by registered mail to petitioner's counsel of record, Atty. Vicente San Luis, and to her bondsmen. Copy of the notice was served upon petitioner by personal service at her given address, which notice was received by her mother who again informed the process server that petitioner was out of the country.

On June 29, 1988, promulgation of the joint judgment of conviction of petitioner in the aforementioned was made by the Branch Clerk of Court who read the decision. Petitioner was represented by Atty. Buen Zamar at the reading of sentence.

On December 31, 1988, petitioner was arrested and detained in the local jail of Angeles City.

On February 6, 1989, petitioner, now represented by a new counsel de parte filed three motions, namely: (1) for temporary release as she was pregnant and allegedly suffering from a heart ailment; (2) to set aside promulgation of judgment (p. 44, Rollo); and (3) to re-open trial (p. 50 Rollo). The prosecution opposed the motions The trial court then denied the motions to set aside judgment and to re-open trial, but with regard to the motion for temporary release, directed that "should a medical examination or confinement in the hospital

be necessary, the court may allow the accused under guard to consult a physician or enter a hospital for medical treatment."

Thereupon, petitioner filed a petition for mandamus with this Court which was later docketed as G.R. No. 87564-79. The petition was, however, per our resolution dated April 24, 1989, referred to the Court of Appeals where the petition docketed as CA. G.R. SP No. 17488. On September 26 1989, the Court of Appeals promulgated its decision dismissing the petition.

Hence, the instant petition where petitioner assigns the following alleged errors of the Court of Appeals:

I. THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS CRIMINALLY LIABLE FOR THE CHECKS SUBJECT OF CRIMINAL CASES NOS. 7284, 7285 AND 7303 EVEN IF SHE WAS NEITHER THE DRAWER NOR MAKER OF THE SAME;

II. THE APPELLATE COURT ERRED IN HOLDING THAT THERE WERE VALID PROMULGATIONS OF JUDGMENTS IN THE SAID CASES;

III. THE APPELLATE COURT ERRED IN HOLDING THAT PAYMENT OF THE OBLIGATIONS CONTAINED IN THE CHECKS SUBJECT OF THE CRIMINAL CASES WOULD (NOT) MERIT LESS SEVERE PENALTIES IF NOT THE EXTINGUISHMENT OF THE ENTIRE CRIMINAL LIABILITY;

IV. THE APPELLATE COURT ERRED IN HOLDING THAT NO SUFFICIENT GROUNDS EXIST TO WARRANT THE REOPENING OF THE JOINT TRIAL OF THE CASES SUBJECT OF THE PETITION.

(pp. 7-8, Rollo.)

The resolution of this case hinges on the issue of whether or not petitioner was denied her day in court.

The legal difficulty petitioner finds herself in is imputable to the negligence of her de parte counsel, Atty. Vicente San Luis, in abandoning the conduct of the case without formally withdrawing or at least informing petitioner that he would be permanently staying in the U.S.A. so that petitioner could appoint another counsel.

A lawyer owes absolute fidelity to the cause of his client. He owes his client full devotion to his genuine interests, warm zeal in the maintenance and defense of his rights, and the exertion of his utmost learning and

ability (Canon 17, Code of Professional Responsibility; Agpalo's Legal Ethics, p. 157). A lawyer is required to exercise ordinary diligence or that reasonable degree of care and skill having reference to the character of the business he undertakes to do (Agpalo's Legal Ethics, p. 174). Among his duties to his client is attending to the hearings of the case (People's Homesite and Housing Corp. vs. Tiongco, 12 SCRA 471 [1964]; Agpalo's Legal Ethics, p. 175).

Atty. Vicente San Luis, petitioner's counsel de parte in the afore-stated cases, was unquestionably negligent in the performance of his duties to his client, herein petitioner. His negligence consisted in his failure to attend to the hearings of the case, his failure to advise petitioner that he was going to stay abroad so that the petitioner could have secured the services of another counsel, and his failure to withdraw properly as counsel for petitioner. This is a clear case where a party was totally abandoned by her counsel. A client may reasonably expect that his counsel will make good his representations (Agpalo's Legal Ethics, p. 169) and has the right to expect that his lawyer will protect his interests during the trial of his case. For the general employment of an attorney to prosecute or defend a cause or proceeding ordinarily vests in a plaintiffs attorney the implied authority to take all steps or do all acts necessary or incidental to the regular and orderly prosecution or management of the suit, and in a defendant's attorney the power to take such steps as he deems necessary to defend the suit and protect the interests of the defendant (74 C.J.S. 315). Petitioner, therefore, had the right to expect that her counsel de parte, Atty. San Luis, would protect her interests during the trial of the cases. However, as aforestated, Atty. San Luis failed to discharged his duties as counsel for petitioner.

As a general rule, a client is bound by his counsel's conduct, negligence, and mistakes in handling the case during the trial (Fernandez vs. Tan Ting Tic, 1 SCRA 1138 [1961]; Rivera vs. Vda. de Cruz, 26 SCRA 58 [1968]; Don Lino Gutierrez & Sons, Inc. vs. Court of Appeals, 61 SCRA 87 [1974]. However the rule admits exceptions. A new trial may be granted where the incompetency of counsel is so great that the defendant is prejudiced and prevented from fairly presenting his defense (People vs. Manzanilla, 43 Phil. 167 [1922]; 16 C.J. 1145; 24 C.J.S. 68). Where a case is not tried on the merits because of the negligence of counsel rather than the plaintiff, the case may be dismissed but, in the interest of justice, without prejudice to the filing of a new action (De Los Reyes vs. Capule, 102 Phil. 464 [1957].

Clearly, petitioner was deprived of her right to present and prove her defense due to the negligence of her counsel. The appearance of a certain Atty. Buen Zamar is of no comment as there was no client-attorney relationship between him and petitioner who did not engage his services to represent her is said cases. The fact that notices of the promulgation of judgment were sent to petitioner at her address of record produced no legal consequence because notice to a party is not effective notice in law (Elli vs. Ditan, 5 SCRA 503 [1962]; Mata vs. Rita Legarda, Inc. 7 SCRA 227 [1963]).

We rule, therefore, that under the facts of the case, petitioner was deprived of due process of law. It is the better part of judicial wisdom and prudence to accord the petitioner the opportunity to prove her defense. It is abhorrent to the judicial conscience to consign petitioner to the ordeals of imprisonment without affording her full opportunity to present her evidence including, of course, the assistance of competent counselling.

WHEREFORE, the decision of the Court of Appeals in CA G.R. SP No. 17488, the decision of the trial court in the subject criminal cases, and the order of the trial court denying petitioner's motion to set aside the promulgation of judgment and to reopen the cases are hereby SET ASIDE. The trial court is hereby DIRECTED to reopen Criminal Cases No. 7284-7296, 7302-7303, and 7650 for the reception of evidence for the defense.

SO ORDERED.

Bidin, Davide, Jr. and Romero, JJ., concur.

Gutierrez, Jr., J., On terminal leave.

Feliciano, J., In the result.