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A.M. No. P-06-2177 June 27, 2006 (Formerly A.M. No. 06-4-268-RTC) RE: REPORT ON THE FINANCIAL AUDIT CONDUCTED ON THE BOOKS OF ACCOUNTS OF ATTY. RAQUEL G. KHO, CLERK OF COURT IV, REGIONAL TRIAL COURT, ORAS, EASTERN SAMAR . RESOLUTION CORONA, J.: This administrative case is a result of the audit conducted by the Office of the Court Administrator (OCA) of the books of accounts of Atty. Raquel G. Kho, former clerk of court of the Regional Trial Court, Branch 5, Oras, Eastern Samar. The audit covered the period March 1985 to October 31, 2005. The OCA, in its memorandum dated April 18, 2006, had the following findings: (1) there was a shortage of P545.00 in remittances to the General Fund; (2) a cash shortage of P24.00 in the Sheriffs General Fund; and (3) Atty. Kho did not deposit on time in the authorized depository bank the collections for the Fiduciary Fund (P60,000) and Special Allowance for the Judiciary Fund (P5,000). It also noted that Atty. Kho had already restituted the P545.00 and P24.00 cash shortages. Regarding the delayed remittance of the amount of P60,000 representing the amount of a confiscated cash bond, Kho explained that the Land Bank of the Philippines (the authorized depository bank) had no branch in their locality. The nearest Land Bank branch was approximately 95 kilometers away so it was his practice to keep his collections in the courts safety vault. On the other hand, the amount of P5,000 was collected as filing fee for an election protest. According to Kho, this was collected under Rule 40 of the Commission on Elections (COMELEC) Rules of Procedure. In defense, he presented a letter addressed to Senior Deputy Court Administrator Zenaida N. Elepao inquiring where to remit said amount. The OCA, through Deputy Court Administrator Jose P. Perez, responded that pending official instructions on how to manage the money collected under Rule 40 of the COMELEC Rules, it was to be treated as trust deposits and temporarily deposited in the Fiduciary Fund.1 However, Kho failed to do this. Consequently, the audit team advised him to deposit the P5,000 in the Special Allowance for the Judiciary Fund as provided under Sec. 21 (g) of the amended Administrative Circular No. 35-2004.2 He was also advised to deposit the confiscated P60,000 cash bond in the Judicial Development Fund account. He complied with both directives on November 15, 2005. On January 26, 2006, the OCA received a letter-complaint with the information that Kho, along with his alleged common-law-wife, stenographer Riza Amor L. Libanan, was engaged in lending out to court employees money in his possession as clerk of court, personally deriving profit from the interest earned. The OCA found Kho liable for violating OCA Circular No. 8A-933 dated April 21, 1993 when he kept the funds in a safety vault for more than a year. All clerks of lower courts are supposed to deposit all collections from bail bonds, rental deposits and other fiduciary collections with the Land Bank upon receipt thereof. Thus, it recommended that (1) the audit report be docketed as a regular administrative complaint against Kho and (2) a fine in the amount of P10,000 be imposed on him. We agree with the OCAs recommendations. Public office is a public trust.4 Those charged with the dispensation of justice, from the justices and judges to the lowliest clerks, should be circumscribed with the heavy burden of responsibility.5 Not only must their conduct at all times be characterized by propriety and decorum but, above all else, it must be beyond suspicion.6 A clerk of court, aside from being the custodian of the courts funds, revenues, property and premises, is also entrusted with the primary responsibility of correctly and effectively implementing regulations regarding fiduciary funds.7 Safekeeping of funds and collections is essential to an orderly administration of justice and no protestation of good faith can override the mandatory nature of the circulars designed to promote full accountability for government funds.8 Clerks of court have always been reminded of their duty to immediately deposit the various funds received by them to the authorized government depositories for they are not supposed to keep funds in their custody.9 Kho failed to make a timely turn-over of cash deposited with him. This was inexcusable because he could have purchased postal money orders from the local post office payable to the chief accountant, Accounting Division, FMOOCA. The money could have earned interest had he not kept them in the vault for over a year.10 As found by the OCA, although Kho had restituted all his cash accountabilities, he was nevertheless liable for failing to immediately deposit the collections for the judiciary funds. The failure to remit the funds in due time constitutes gross dishonesty and gross misconduct. It diminishes the faith of the people in the Judiciary.11 Dishonesty, being in the nature of a grave offense, carries the extreme penalty of dismissal from the service even if committed for the first time. However, Kho showed remorse by immediately restituting the cash shortages and complying with the directives of the audit team. And considering that this is his first offense, we find that the penalty of P10,000 fine is sufficient. We note that Kho has already transferred to the Department of Justice. However, it neither renders this matter moot nor frees him from liability. Moreover, his misconduct reflects on his fitness as a member of the bar. His malfeasance prima facie contravenes Canon 1,12 Rule 1.0113 of the Code of Professional Responsibility. Hence, he should explain why no further disciplinary sanction should be imposed on him. WHEREFORE, Atty. Raquel G. Kho is hereby found GUILTY of gross misconduct for his failure to make timely remittance of judiciary funds in his custody. He is ordered to pay a FINE of P10,000 within ten (10) days from receipt of this resolution. Atty. Kho is further ordered to SHOW CAUSE within the same period why he should not be disciplined for such misconduct as a lawyer and as an officer of the Court.

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SO ORDERED. RENATO C. CORONA Associate Justice WE CONCUR: REYNATO S. PUNO Associate Justice Chairperson ANGELINA SANDOVALGUTIERREZ Associate Justice The Antecedent Facts Sometime in September 1998, respondent sold to complainant a parcel of land located along Starlite Street in Cupang, Antipolo. Complainant paid respondent P70,000 in cash as full payment for the lot. Respondent did not issue a deed of sale. Instead, he issued a temporary receipt1ca and a Certificate of Land Occupancy2ca purportedly issued by the general overseer of the estate in which the lot was located. Respondent assured complainant that he could use the lot from then on. Complainant learned, not long after, that the Certificate of Land Occupancy could not be registered in the Register of Deeds. When complainant went to see respondent, the latter admitted that the real owner of the lot was a certain Rubio. Respondent also said there was a pending legal controversy over the lot. On 25 February 2001, complainant sent a letter3ca to respondent demanding the return of the P70,000 paid for the lot. Complainant then filed a criminal case against respondent in the Municipal Trial Court (Branch 2) of Antipolo City. On 26 September 2003, the trial court rendered a decision4ca convicting respondent of the crime of other forms of swindling under Article 316, paragraph 1 of the Revised Penal Code. The MTC sentenced respondent to suffer the penalty of imprisonment for one month and one day and ordered him to return the amount of P70,000 to complainant. On appeal, the Regional Trial Court (Branch 74) of Antipolo City set aside the lower court's ruling. For lack of evidence establishing respondent's guilt beyond reasonable doubt, the RTC acquitted respondent in a decision5ca dated 20 December 2005. The decision further stated that the remedy of complainant was to institute a civil action for the recovery of the amount he paid to respondent. On 23 February 2006, complainant filed with the Integrated Bar of the Philippines (IBP) an Affidavit-Complaint6ca against respondent. In his Answer,7ca respondent explained that what he sold to complainant was merely the right over the use of the lot, not the lot itself. Respondent maintained he never met the complainant during the negotiations for the sale of said right. Respondent claimed it was a certain Benjamin Hermida who received the purchase price. Respondent further alleged that it was one Edwin Tan, and not the complainant, who paid the purchase price. At the hearing set on 14 October 2008, complainant narrated that respondent personally sold to him the lot in question. Complainant stated respondent assured him that the papers would be processed as soon as payment was made. Complainant claimed he duly paid respondent P70,000, but when he followed up the sales documents, respondent just dismissed him and denied any transaction between them. For his part, respondent did not appear at the hearing despite receipt of notice. The IBP's Report and Recommendation In a Report and Recommendation8ca dated 17 October 2008, the IBP Commissioner on Bar Discipline (IBP-CBD) found respondent guilty of violating Rules 1.01 and 7.03 of the Code of Professional Responsibility.

ADOLFO S. AZCUNA Asscociate Justice

CANCIO C. GARCIA Associate Justice

Footnotes
1

Letter dated August 31, 2004.

Re: Guidelines in the Allocation of the Legal Fee Collected under Rule 141 of the Rules of Court, as amended, between the Special Allowance for the Judiciary Fund and the Judiciary Development Fund. Sec. 21 (g) states:
2

SEC. 21. Other fees. - The following fees shall also be collected by the Clerks of Court of the Regional Trial Courts or of courts of the first level, as the case may be: xxx xxx xxx (g) For Election Contests Including Election Protests, Counter-Protests, Protests-In-Intervention And Quo Warranto Proceedings involving Municipal Offices Three Thousand (P3,000.00) Pesos; and Barangay Offices- One Thousand Five Hundred (P1,500.00) Pesos. In addition, the filing fees prescribed by the COMELEC Rules of Procedures for these actions shall also be collected and indicated in the receipt. CARPIO, J.: The Case This complaint, filed by Alfredo B. Roa (complainant) against Atty. Juan R. Moreno (respondent), stemmed from a transaction involving the sale of a parcel of land. Complainant asks that respondent be disciplined and ordered to return the amount of money paid for the sale.

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The IBP-CBD recommended that respondent be suspended from the practice of law for three months and ordered to immediately deliver the amount of P70,000 to complainant, thus: PREMISES CONSIDERED, it is submitted that Respondent is GUILTY of violating Rules 1.01 and 7.03 of the Code of Professional Responsibility and should be given the penalty of THREE (3) MONTHS SUSPENSION. Respondent is hereby ORDERED to immediately deliver the amount of Seventy Thousand Pesos (P70,000.00) to herein complainant.9 In Resolution No. XVIII-2008-63210ca passed on 11 December 2008, the IBP Board of Governors adopted and approved with modification the recommendation of the Investigating Commissioner. The IBP Board of Governors suspended respondent from the practice of law for three months and ordered him to return the amount of P70,000 to complainant within 30 days from receipt of notice. Thus: RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and finding Respondent guilty of violating Rules 1.01 and 7.03 of the Code of Professional Responsibility, Atty. Juan R. Moreno is hereby SUSPENDED from the practice of law for three (3) months and Ordered to Return the Seventy Thousand Pesos (P70,000.00) to complainant within thirty (30) days from receipt of notice. (Underscoring supplied) The IBP Board of Governors forwarded the present case to this Court as provided under Section 12(b), Rule 139-B11ca of the Rules of Court. The Ruling of this Court We sustain the findings of the IBP and adopt its recommendation in part. Complainant and respondent presented two different sets of facts. According to complainant, respondent claimed to be the owner of the lot and even offered to be his lawyer in case of any legal problem that might crop up from the sale of the lot. On the other hand, respondent denied ever meeting complainant, much less selling the lot he insisted he did not even own. In his answer, he presented the affidavits of Benjamin and Cepriano Hermida who claimed that upon receipt of the payment for the right to use the lot, they immediately removed the improvements on the lot. The Hermidas also claimed they received the payment from one Mr. Edwin Tan, not from complainant. After a careful review of the records of the case, the Court gives credence to complainant's version of the facts. Respondent's credibility is highly questionable. Records show that respondent even issued a bogus Certificate of Land Occupancy to complainant whose only fault was that he did not know better. The Certificate of Land Occupancy has all the badges of intent to defraud. It purports to be issued by the "Office of the General Overseer." It contains a verification by the "Lead, Record Department" that the lot plan "conforms with the record on file." It is even printed on parchment paper strikingly similar to a certificate of title. To the unlettered, it can easily pass off as a document evidencing title. True enough, complainant actually tried, but failed, to register the Certificate of Land Occupancy in the Register of Deeds. Complainant readily parted with P70,000 because of the false assurance afforded by the sham certificate. The innocent public who deal in good faith with the likes of respondent are not without recourse in law. Section 27, Rule 138 of the Rules of Court states: SEC. 27. Disbarment or suspension of attorneys by Supreme Court, grounds therefor. A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a willful disobedience of any lawful order of a superior court, or for corruptly or willfully appearing as an attorney for a party to a case without authority to do so. x x x (Emphasis supplied) Further, Rule 1.01, Canon 1 of the Code of Professional Responsibility provides: Rule 1.01 A lawyer shall not engage in unlawful, dishonest, immoral, or deceitful conduct. Conduct, as used in the Rule, is not confined to the performance of a lawyer's professional duties. A lawyer may be disciplined for misconduct committed either in his professional or private capacity. The test is whether his conduct shows him to be wanting in moral character, honesty, probity, and good demeanor, or whether it renders him unworthy to continue as an officer of the court.12ca In the present case, respondent acted in his private capacity. He misrepresented that he owned the lot he sold to complainant. He refused to return the amount paid by complainant. As a final blow, he denied having any transaction with complainant. It is crystal-clear in the mind of the Court that he fell short of his duty under Rule 1.01, Canon 1 of the Code of Professional Responsibility. We cannot, and we should not, let respondent's dishonest and deceitful conduct go unpunished. Time and again we have said that the practice of law is not a right but a privilege. It is enjoyed only by those who continue to display unassailable character. Thus, lawyers must conduct themselves beyond reproach at all times, not just in their dealings with their clients but also in their dealings with the public at large, and a violation of the high moral standards of the legal profession justifies the imposition of the appropriate penalty, including suspension and even disbarment.13ca Respondent's refusal to return to complainant the money paid for the lot is unbecoming a member of the bar and an officer of the court. By his conduct, respondent failed to live up to the strict standard of professionalism required by the Code of Professional Responsibility. Respondent's acts violated the trust and respect complainant reposed in him as a member of the Bar and an officer of the court.

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However, we cannot sustain the IBP's recommendation ordering respondent to return the money paid by complainant. In disciplinary proceedings against lawyers, the only issue is whether the officer of the court is still fit to be allowed to continue as a member of the Bar. Our only concern is the determination of respondent's administrative liability. Our findings have no material bearing on other judicial action which the parties may choose to file against each other.14 That said, we deem that the penalty of three-month suspension recommended by the IBP is insufficient to atone for respondent's misconduct in this case. We consider a penalty of two-year suspension more appropriate considering the circumstances of this case. WHEREFORE, the Court finds Atty. Juan R. Moreno GUILTY of violating Rule 1.01, Canon 1 of the Code of Professional Responsibility. Accordingly, the Court SUSPENDS him from the practice of law for a period of two (2) years effective upon finality of this Resolution. Let copies of this Resolution 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 Resolution be attached to the personal records of respondent. SO ORDERED. A.C. No. 7136 August 1, 2007 Sometimes I wonder why we ever met. Is it only for me to find fleeting happiness but experience eternal pain? Is it only for us to find a true love but then lose it again? Or is it because there's a bigger plan for the two of us? I hope that you have experienced true happiness with me. I have done everything humanly possible to love you. And today, as you make your vows . . . I make my own vow to YOU! I will love you for the rest of my life. I loved you from the first time I laid eyes on you, to the time we spent together, up to the final moments of your single life. But more importantly, I will love you until the life in me is gone and until we are together again. Do not worry about me! I will be happy for you. I have enough memories of us to last me a lifetime. Always remember though that in my heart, in my mind and in my soul, YOU WILL ALWAYS . . . AND THE WONDERFUL THINGS YOU DO! BE MINE . . . . AND MINE ALONE, and I WILL ALWAYS BE YOURS AND YOURS ALONE! I LOVE YOU FOREVER, I LOVE YOU FOR ALWAYS. AS LONG AS I'M LIVING MY TWEETIE YOU'LL BE!"2 Eternally yours, NOLI from work. When he asked about her whereabouts, she replied that she slept at her parents' house in Binangonan, Rizal or she was busy with her work. In February or March 2001, complainant saw Irene and respondent together on two occasions. On the second occasion, he confronted them following which Irene abandoned the conjugal house. On April 22, 2001, complainant went uninvited to Irene's birthday celebration at which he saw her and respondent celebrating with her family and friends. Out of embarrassment, anger and humiliation, he left the venue immediately. Following that incident, Irene went to the conjugal house and hauled off all her personal belongings, pieces of furniture, and her share of the household appliances. Complainant later found, in the master's bedroom, a folded social card bearing the words "I Love You" on its face, which card when unfolded contained a handwritten letter dated October 7, 2000, the day of his wedding to Irene, reading: My everdearest Irene, By the time you open this, you'll be moments away from walking down the aisle. I will say a prayer for you that you may find meaning in what you're about to do.

JOSELANO GUEVARRA, complainant, vs. ATTY. JOSE EMMANUEL EALA, respondent. DECISION PER CURIAM: Joselano Guevarra (complainant) filed on March 4, 2002 a Complaint for Disbarment1 before the Integrated Bar of the Philippines (IBP) Committee on Bar Discipline (CBD) against Atty. Jose Emmanuel M. Eala a.k.a. Noli Eala (respondent) for "grossly immoral conduct and unmitigated violation of the lawyer's oath." In his complaint, Guevarra gave the following account: He first met respondent in January 2000 when his (complainant's) thenfiancee Irene Moje (Irene) introduced respondent to him as her friend who was married to Marianne (sometimes spelled "Mary Ann") Tantoco with whom he had three children. After his marriage to Irene on October 7, 2000, complainant noticed that from January to March 2001, Irene had been receiving from respondent cellphone calls, as well as messages some of which read "I love you," "I miss you," or "Meet you at Megamall." Complainant also noticed that Irene habitually went home very late at night or early in the morning of the following day, and sometimes did not go home

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Complainant soon saw respondent's car and that of Irene constantly parked at No. 71-B 11th Street, New Manila where, as he was to later learn sometime in April 2001, Irene was already residing. He also learned still later that when his friends saw Irene on or about January 18, 2002 together with respondent during a concert, she was pregnant. In his ANSWER,3 respondent admitted having sent the I LOVE YOU card on which the above-quoted letter was handwritten. On paragraph 14 of the COMPLAINT reading: 14. Respondent and Irene were even FLAUNTING THEIR ADULTEROUS RELATIONSHIP as they attended social functions together. For instance, in or about the third week of September 2001, the couple attended the launch of the "Wine All You Can" promotion of French wines, held at the Mega Strip of SM Megamall B at Mandaluyong City. Their attendance was reported in Section B of the Manila Standard issue of 24 September 2001, on page 21. Respondent and Irene were photographed together; their picture was captioned: "Irene with Sportscaster Noli Eala." A photocopy of the report is attached as Annex C.4 (Italics and emphasis in the original; CAPITALIZATION of the phrase "flaunting their adulterous relationship" supplied), respondent, in his ANSWER, stated: 4. Respondent specifically denies having ever flaunted an adulterous relationship with Irene as alleged in paragraph 14 of the Complaint, the truth of the matter being that their relationship was low profile and known only to the immediate members of their respective families, and that Respondent, as far as the general public was concerned, was still known to be legally married to Mary Anne Tantoco.5 (Emphasis and underscoring supplied) On paragraph 15 of the COMPLAINT reading: 15. Respondent's adulterous conduct with the complainant's wife and his apparent abandoning or neglecting of his own family, demonstrate his gross moral depravity, making him morally unfit to keep his membership in the bar. He flaunted his aversion to the institution of marriage, calling it a "piece of paper." Morally reprehensible was his writing the love letter to complainant's bride on the very day of her wedding, vowing to continue his love for her "until we are together again," as now they are.6 (Underscoring supplied), respondent stated in his ANSWER as follows: 5. Respondent specifically denies the allegations in paragraph 15 of the Complaint regarding his adulterous relationship and that his acts demonstrate gross moral depravity thereby making him unfit to keep his membership in the bar, the reason being that Respondent's relationship with Irene was not under scandalous circumstances and that as far as his relationship with his own family: 5.1 Respondent has maintained a civil, cordial and peaceful relationship with [his wife] Mary Anne as in fact they still occasionally meet in public, even if Mary Anne is aware of Respondent's special friendship with Irene. xxxx 5.5 Respondent also denies that he has flaunted his aversion to the institution of marriage by calling the institution of marriage a mere piece of paper because his reference [in his above-quoted handwritten letter to Irene] to the marriage between Complainant and Irene as a piece of paper was merely with respect to the formality of the marriage contract.7 (Emphasis and underscoring supplied) Respondent admitted8 paragraph 18 of the COMPLAINT reading: 18. The Rules of Court requires lawyers to support the Constitution and obey the laws. The Constitution regards marriage as an inviolable social institution and is the foundation of the family (Article XV, Sec. 2).9 And on paragraph 19 of the COMPLAINT reading: 19. Respondent's grossly immoral conduct runs afoul of the Constitution and the laws he, as a lawyer, has been sworn to uphold. In pursuing obsessively his illicit love for the complainant's wife, he mocked the institution of marriage, betrayed his own family, broke up the complainant's marriage, commits adultery with his wife, and degrades the legal profession.10 (Emphasis and underscoring supplied), respondent, in his ANSWER, stated: 7. Respondent specifically denies the allegations in paragraph 19 of the Complaint, the reason being that under the circumstances the acts of Respondent with respect to his purely personal and low profile special relationship with Irene is neither under scandalous circumstances nor tantamount to grossly immoral conduct as would be a ground for disbarment pursuant to Rule 138, Section 27 of the Rules of Court.11 (Emphasis and underscoring supplied) To respondent's ANSWER, complainant filed a REPLY,12 alleging that Irene gave birth to a girl and Irene named respondent in the Certificate of Live Birth as the girl's father. Complainant attached to the Reply, as Annex "A," a copy of a Certificate of Live Birth13 bearing Irene's signature and naming respondent as the father of her daughter Samantha Irene Louise Moje who was born on February 14, 2002 at St. Luke's Hospital. Complainant's REPLY merited a REJOINDER WITH MOTION TO DISMISS14 dated January 10, 2003 from respondent in which he denied having "personal knowledge of the Certificate of Live Birth attached to the complainant's Reply."15 Respondent moved to dismiss the complaint due to the pendency of a civil case filed by complainant for the annulment of his

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marriage to Irene, and a criminal complaint for adultery against respondent and Irene which was pending before the Quezon City Prosecutor's Office. During the investigation before the IBP-CBD, complainant's ComplaintAffidavit and Reply to Answer were adopted as his testimony on direct examination.16 Respondent's counsel did not cross-examine complainant.17 After investigation, IBP-CBD Investigating Commissioner Milagros V. San Juan, in a 12-page REPORT AND RECOMMENDATION18 dated October 26, 2004, found the charge against respondent sufficiently proven. The Commissioner thus recommended19 that respondent be disbarred for violating Rule 1.01 of Canon 1 of the Code of Professional Responsibility reading: Rule 1.01: A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct (Underscoring supplied), and Rule 7.03 of Canon 7 of the same Code reading: Rule 7.03: A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession. (Underscoring supplied) The IBP Board of Governors, however, annulled and set aside the Recommendation of the Investigating Commissioner and accordingly dismissed the case for lack of merit, by Resolution dated January 28, 2006 briefly reading: RESOLUTION NO. XVII-2006-06 CBD Case No. 02-936 Joselano C. Guevarra vs. Atty. Jose Emmanuel M. Eala a.k.a. Noli Eala RESOLVED to ANNUL and SET ASIDE, as it is hereby ANNULLED AND SET ASIDE, the Recommendation of the Investigating Commissioner, and to APPROVE the DISMISSAL of the above-entitled case for lack of merit.20 (Italics and emphasis in the original) Hence, the present petition21 of complainant before this Court, filed pursuant to Section 12 (c), Rule 13922 of the Rules of Court. The petition is impressed with merit. Oddly enough, the IBP Board of Governors, in setting aside the Recommendation of the Investigating Commissioner and dismissing the case for lack of merit, gave no reason therefor as its above-quoted 33-word Resolution shows. Respondent contends, in his Comment23 on the present petition of complainant, that there is no evidence against him.24 The contention fails. As the IBP-CBD Investigating Commissioner observed: While it may be true that the love letter dated October 7, 2000 (Exh. "C") and the news item published in the Manila Standard (Exh. "D"), even taken together do not sufficiently prove that respondent is carrying on an adulterous relationship with complainant's wife, there are other pieces of evidence on record which support the accusation of complainant against respondent. It should be noted that in his Answer dated 17 October 2002, respondent through counsel made the following statements to wit: "Respondent specifically denies having [ever] flaunted an adulterous relationship with Irene as alleged in paragraph [14] of the Complaint, the truth of the matter being [that] their relationship was low profile and known only to immediate members of their respective families . . . , and Respondent specifically denies the allegations in paragraph 19 of the complaint, the reason being that under the circumstances the acts of the respondents with respect to his purely personal and low profile relationship with Irene is neither under scandalous circumstances nor tantamount to grossly immoral conduct . . ." These statements of respondent in his Answer are an admission that there is indeed a "special" relationship between him and complainant's wife, Irene, [which] taken together with the Certificate of Live Birth of Samantha Louise Irene Moje (Annex "H-1") sufficiently prove that there was indeed an illicit relationship between respondent and Irene which resulted in the birth of the child "Samantha". In the Certificate of Live Birth of Samantha it should be noted that complainant's wife Irene supplied the information that respondent was the father of the child. Given the fact that the respondent admitted his special relationship with Irene there is no reason to believe that Irene would lie or make any misrepresentation regarding the paternity of the child. It should be underscored that respondent has not categorically denied that he is the father of Samantha Louise Irene Moje.25 (Emphasis and underscoring supplied) Indeed, from respondent's Answer, he does not deny carrying on an adulterous relationship with Irene, "adultery" being defined under Art. 333 of the Revised Penal Code as that "committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her, knowing her to be married, even if the marriage be subsequently declared void."26 (Italics supplied) What respondent denies is having flaunted such relationship, he maintaining that it was "low profile and known only to the immediate members of their respective families." In other words, respondent's denial is a negative pregnant, a denial pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. It was in effect an admission of the averments it was directed at. Stated

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otherwise, a negative pregnant is a form of negative expression which carries with it in affirmation or at least an implication of some kind favorable to the adverse party. It is a denial pregnant with an admission of the substantial facts alleged in the pleading. Where a fact is alleged with qualifying or modifying language and the words of the allegation as so qualified or modified are literally denied, it has been held that the qualifying circumstances alone are denied while the fact itself is admitted.27 (Citations omitted; emphasis and underscoring supplied) A negative pregnant too is respondent's denial of having "personal knowledge" of Irene's daughter Samantha Louise Irene Moje's Certificate of Live Birth. In said certificate, Irene named respondent a "lawyer," 38 years old as the child's father. And the phrase "NOT MARRIED" is entered on the desired information on "DATE AND PLACE OF MARRIAGE." A comparison of the signature attributed to Irene in the certificate28 with her signature on the Marriage Certificate29 shows that they were affixed by one and the same person. Notatu dignum is that, as the Investigating Commissioner noted, respondent never denied being the father of the child. Franklin A. Ricafort, the records custodian of St. Luke's Medical Center, in his January 29, 2003 Affidavit30 which he identified at the witness stand, declared that Irene gave the information in the Certificate of Live Birth that the child's father is "Jose Emmanuel Masacaet Eala," who was 38 years old and a lawyer.31 Without doubt, the adulterous relationship between respondent and Irene has been sufficiently proven by more than clearly preponderant evidence that evidence adduced by one party which is more conclusive and credible than that of the other party and, therefore, has greater weight than the other32 which is the quantum of evidence needed in an administrative case against a lawyer. Administrative cases against lawyers belong to a class of their own. They are distinct from and they may proceed independently of civil and criminal cases. . . . of proof for these types of cases differ. In a criminal case, proof beyond reasonable doubt is necessary; in an administrative case for disbarment or suspension, "clearly preponderant evidence" is all that is required.33 (Emphasis supplied) Respondent insists, however, that disbarment does not lie because his relationship with Irene was not, under Section 27 of Rule 138 of the Revised Rules of Court, reading: SEC. 27. Disbarment or suspension of attorneys by Supreme Court, grounds therefor. A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a willful disobedience appearing as an attorney for a party to a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice. The disbarment or suspension of a member of the Philippine Bar by a competent court or other disciplinatory agency in a foreign jurisdiction where he has also been admitted as an attorney is a ground for his disbarment or suspension if the basis of such action includes any of the acts hereinabove enumerated. The judgment, resolution or order of the foreign court or disciplinary agency shall be prima facie evidence of the ground for disbarment or suspension (Emphasis and underscoring supplied), under scandalous circumstances.34 The immediately-quoted Rule which provides the grounds for disbarment or suspension uses the phrase "grossly immoral conduct," not "under scandalous circumstances." Sexual intercourse under scandalous circumstances is, following Article 334 of the Revised Penal Code reading: ART. 334. Concubinage. - Any husband who shall keep a mistress in the conjugal dwelling, or, shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be punished by prision correccional in its minimum and medium periods. x x x x, an element of the crime of concubinage when a married man has sexual intercourse with a woman elsewhere. "Whether a lawyer's sexual congress with a woman not his wife or without the benefit of marriage should be characterized as 'grossly immoral conduct' depends on the surrounding circumstances."35 The case at bar involves a relationship between a married lawyer and a married woman who is not his wife. It is immaterial whether the affair was carried out discreetly. Apropos is the following pronouncement of this Court in Vitug v. Rongcal:36 On the charge of immorality, respondent does not deny that he had an extra-marital affair with complainant, albeit brief and discreet, and which act is not "so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree" in order to merit disciplinary sanction. We disagree. xxxx While it has been held in disbarment cases that the mere fact of sexual relations between two unmarried adults is not sufficient to warrant administrative sanction for such illicit behavior, it is not so with respect to betrayals of the marital vow of fidelity. Even if not all forms of extra-marital relations are punishable under penal law, sexual relations outside marriage is considered disgraceful and immoral as it manifests deliberate disregard of the sanctity of marriage and the marital vows protected by the Constitution and affirmed by our laws.37 (Emphasis and underscoring supplied) And so is the pronouncement in Tucay v. Atty. Tucay:38

8
The Court need not delve into the question of whether or not the respondent did contract a bigamous marriage . . . It is enough that the records of this administrative case substantiate the findings of the Investigating Commissioner, as well as the IBP Board of Governors, i.e., that indeed respondent has been carrying on an illicit affair with a married woman, a grossly immoral conduct and indicative of an extremely low regard for the fundamental ethics of his profession. This detestable behavior renders him regrettably unfit and undeserving of the treasured honor and privileges which his license confers upon him.39 (Underscoring supplied) Respondent in fact also violated the lawyer's oath he took before admission to practice law which goes: I _________, having been permitted to continue in the practice of law in the Philippines, do solemnly swear that I recognize the supreme authority of the Republic of the Philippines; I will support its Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same; I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well as to the courts as to my clients; and I impose upon myself this voluntary obligation without any mental reservation or purpose of evasion. So help me God. (Underscoring supplied) Respondent admittedly is aware of Section 2 of Article XV (The Family) of the Constitution reading: Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. In this connection, the Family Code (Executive Order No. 209), which echoes this constitutional provision, obligates the husband and the wife "to live together, observe mutual love, respect and fidelity, and render mutual help and support."40 Furthermore, respondent violated Rule 1.01 of Canon 1 of the Code of Professional Responsibility which proscribes a lawyer from engaging in "unlawful, dishonest, immoral or deceitful conduct," and Rule 7.03 of Canon 7 of the same Code which proscribes a lawyer from engaging in any "conduct that adversely reflects on his fitness to practice law." Clutching at straws, respondent, during the pendency of the investigation of the case before the IBP Commissioner, filed a Manifestation41 on March 22, 2005 informing the IBP-CBD that complainant's petition for nullity of his (complainant's) marriage to Irene had been granted by Branch 106 of the Quezon City Regional Trial Court, and that the criminal complaint for adultery complainant filed against respondent and Irene "based on the same set of facts alleged in the instant case," which was pending review before the Department of Justice (DOJ), on petition of complainant, had been, on motion of complainant, withdrawn. The Secretary of Justice's Resolution of January 16, 2004 granting complainant's Motion to Withdraw Petition for Review reads: Considering that the instant motion was filed before the final resolution of the petition for review, we are inclined to grant the same pursuant to Section 10 of Department Circular No. 70 dated July 3, 2000, which provides that "notwithstanding the perfection of the appeal, the petitioner may withdraw the same at any time before it is finally resolved, in which case the appealed resolution shall stand as though no appeal has been taken."42 (Emphasis supplied by complainant) That the marriage between complainant and Irene was subsequently declared void ab initio is immaterial. The acts complained of took place before the marriage was declared null and void.43 As a lawyer, respondent should be aware that a man and a woman deporting themselves as husband and wife are presumed, unless proven otherwise, to have entered into a lawful contract of marriage.44 In carrying on an extra-marital affair with Irene prior to the judicial declaration that her marriage with complainant was null and void, and despite respondent himself being married, he showed disrespect for an institution held sacred by the law. And he betrayed his unfitness to be a lawyer. As for complainant's withdrawal of his petition for review before the DOJ, respondent glaringly omitted to state that before complainant filed his December 23, 2003 Motion to Withdraw his Petition for Review, the DOJ had already promulgated a Resolution on September 22, 2003 reversing the dismissal by the Quezon City Prosecutor's Office of complainant's complaint for adultery. In reversing the City Prosecutor's Resolution, DOJ Secretary Simeon Datumanong held: Parenthetically the totality of evidence adduced by complainant would, in the fair estimation of the Department, sufficiently establish all the elements of the offense of adultery on the part of both respondents. Indeed, early on, respondent Moje conceded to complainant that she was going out on dates with respondent Eala, and this she did when complainant confronted her about Eala's frequent phone calls and text messages to her. Complainant also personally witnessed Moje and Eala having a rendezvous on two occasions. Respondent Eala never denied the fact that he knew Moje to be married to complainant[.] In fact, he (Eala) himself was married to another woman. Moreover, Moje's eventual abandonment of their conjugal home, after complainant had once more confronted her about Eala, only served to confirm the illicit relationship involving both respondents. This becomes all the more apparent by Moje's subsequent relocation in No. 71-B, 11th Street, New Manila, Quezon City, which was a few blocks away from the church where she had exchange marital vows with complainant. It was in this place that the two lovers apparently cohabited. Especially since Eala's vehicle and that of Moje's were always seen there. Moje herself admits that she came to live in the said address whereas Eala asserts that that was where he held office. The happenstance that it was in that said address that Eala and Moje had decided to hold office for the firm that both had formed

9
smacks too much of a coincidence. For one, the said address appears to be a residential house, for that was where Moje stayed all throughout after her separation from complainant. It was both respondent's love nest, to put short; their illicit affair that was carried out there bore fruit a few months later when Moje gave birth to a girl at the nearby hospital of St. Luke's Medical Center. What finally militates against the respondents is the indubitable fact that in the certificate of birth of the girl, Moje furnished the information that Eala was the father. This speaks all too eloquently of the unlawful and damning nature of the adulterous acts of the respondents. Complainant's supposed illegal procurement of the birth certificate is most certainly beside the point for both respondents Eala and Moje have not denied, in any categorical manner, that Eala is the father of the child Samantha Irene Louise Moje.45 (Emphasis and underscoring supplied) It bears emphasis that adultery is a private offense which cannot be prosecuted de oficio and thus leaves the DOJ no choice but to grant complainant's motion to withdraw his petition for review. But even if respondent and Irene were to be acquitted of adultery after trial, if the Information for adultery were filed in court, the same would not have been a bar to the present administrative complaint. Citing the ruling in Pangan v. Ramos,46 viz: x x x The acquittal of respondent Ramos [of] the criminal charge is not a bar to these [administrative] proceedings. The standards of legal profession are not satisfied by conduct which merely enables one to escape the penalties of x x x criminal law. Moreover, this Court, in disbarment proceedings is acting in an entirely different capacity from that which courts assume in trying criminal case47 (Italics in the original), this Court in Gatchalian Promotions Talents Pools, Inc. v. Atty. Naldoza,48 held: Administrative cases against lawyers belong to a class of their own. They are distinct from and they may proceed independently of civil and criminal cases. WHEREFORE, the petition is GRANTED. Resolution No. XVII-2006-06 passed on January 28, 2006 by the Board of Governors of the Integrated Bar of the Philippines is ANNULLED and SET ASIDE. Respondent, Atty. Jose Emmanuel M. Eala, is DISBARRED for grossly immoral conduct, violation of his oath of office, and violation of Canon 1, Rule 1.01 and Canon 7, Rule 7.03 of the Code of Professional Responsibility. Let a copy of this Decision, which is immediately executory, be made part of the records of respondent in the Office of the Bar Confidant, Supreme Court of the Philippines. And let copies of the Decision be furnished the Integrated Bar of the Philippines and circulated to all courts. This Decision takes effect immediately. SO ORDERED.

EN BANC

QUERY OF ATTY. KAREN M. SILVERIO-BUFFE, FORMER Clerk of Court BRANCH 81, ROMBLON, ROMBLON ON THE PROHIBITION FROM ENGAGING IN THE PRIVATE PRACTICE OF LAW.

A.M. No. 08-6-35

Present:

PUNO, C.J., *QUISUMBING,

*YNARES-SANTIA CARPIO, CORONA,

CARPIO MORAL

CHICO-NAZARIO VELASCO, JR., NACHURA,

LEONARDO-DE C BRION, PERALTA, BERSAMIN,

10
DEL CASTILLO, and x ABAD, JJ. x x

(b) Outside employment and other activities related thereto. Public officials and employees during their incumbency shall not: x x x (2) Engage in the private practice of their profession unless authorized by the Constitution or law, provided, that such practice will not conflict or tend to conflict with their official functions; or x x

Promulgated:

August 19, 2009

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

DECISION BRION, J.:

These prohibitions shall continue to apply for a period of one (1) year after resignation, retirement, or separation from public office, except in the case of subparagraph (b) (2) above, but the professional concerned cannot practice his profession in connection with any matter before the office he used to be with, in which case the one-year prohibition shall likewise apply.

This administrative matter started as a letter-query dated March 4, 2008 of Atty. Karen M. Silverio-Buffe (Atty. Buffe) addressed to the Office of the Court Administrator, which query the latter referred to the Court for consideration. In the course of its action on the matter, the Court discovered that the query was beyond pure policy interpretation and referred to the actual situation of Atty. Buffe, and, hence, was a matter that required concrete action on the factual situation presented.

In her letter-query, Atty. Buffe posed these questions: Why may an incumbent engage in private practice under (b)(2), assuming the same does not conflict or tend to conflict with his official duties, but a nonincumbent like myself cannot, as is apparently prohibited by the last paragraph of Sec. 7? Why is the former allowed, who is still occupying the very public position that he is liable to exploit, but a non-incumbent like myself who is no longer in a position of possible abuse/exploitation cannot?1[1]

The query, as originally framed, related to Section 7(b)(2) of Republic Act (R.A.) No. 6713, as amended (or the Code of Conduct and Ethical Standards for Public Officials and Employees). This provision places a limitation on public officials and employees during their incumbency, and those already separated from government employment for a period of one (1) year after separation, in engaging in the private practice of their profession. Section 7(b)(2) of R.A. No. 6713 provides: SECTION 7. Prohibited Acts and Transactions. In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful:

The query arose because Atty. Buffe previously worked as Clerk of Court VI of the Regional Trial Court (RTC), Branch 81 of Romblon; she resigned from her position effective February 1, 2008. Thereafter (and within the one-year period of prohibition mentioned in the above-quoted provision), she engaged in the private practice of law by appearing as private counsel in several cases before RTC-Branch 81 of Romblon.

11
Atty. Buffe alleged that Section 7(b)(2) of R.A. No. 6713 gives preferential treatment to an incumbent public employee, who may engage in the private practice of his profession so long as this practice does not conflict or tend to conflict with his official functions. In contrast, a public official or employee who has retired, resigned, or has been separated from government service like her, is prohibited from engaging in private practice on any matter before the office where she used to work, for a period of one (1) year from the date of her separation from government employment. Subsequently, in a Minute Resolution dated July 15, 2008, we resolved to refer this case to the Office of the Chief Attorney (OCAT) for evaluation, report and recommendation.3[3] The OCAT took the view that:

The premise of the query is erroneous. She interprets Section 7 (b) (2) as a blanket authority for an incumbent clerk of court to practice law. Clearly, there is a misreading of that provision of law.4[4]

Atty. Buffe further alleged that the intention of the above prohibition is to remove the exercise of clout, influence or privity to insider information, which the incumbent public employee may use in the private practice of his profession. However, this situation did not obtain in her case, since she had already resigned as Clerk of Court of RTC-Branch 18 of Romblon. She advanced the view that she could engage in the private practice of law before RTC-Branch 81 of Romblon, so long as her appearance as legal counsel shall not conflict or tend to conflict with her former duties as former Clerk of Court of that Branch.

and further observed:

Then Deputy Court Administrator (now Court Administrator) Jose P. Perez made the following observations when the matter was referred to him:

The general intent of the law, as defined in its title is to uphold the time-honored principle of public office being a public trust. Section 4 thereof provides for the norms of conduct of public officials and employees, among others: (a) commitment to public interest; (b) professionalism; and (c) justness and sincerity. Of particular significance is the statement under professionalism that [t]hey [public officials and employees] shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage. Thus, it may be well to say that the prohibition was intended to avoid any impropriety or the appearance of impropriety which may occur in any transaction between the retired government employee and his former colleagues, subordinates or superiors brought about by familiarity, moral ascendancy or undue influence, as the case may be.2[2]

The confusion apparently lies in the use of the term such practice after the phrase provided that. It may indeed be misinterpreted as modifying the phrase engage in the private practice of their profession should be prefatory sentence that public officials during their incumbency shall not be disregarded. However, read in its entirety, such practice may only refer to practice authorized by the Constitution or law or the exception to the prohibition against the practice of profession. The term law was intended by the legislature to include a memorandum or a circular or an administrative order issued pursuant to the authority of law. x x

The interpretation that Section 7 (b) (2) generally prohibits incumbent public officials and employees from engaging in the practice of law, which is declared therein a prohibited and unlawful act, accords with the constitutional policy on accountability of public officers stated in Article XI of the Constitution x x

The policy thus requires public officials and employees to devote full time public service so that in case of conflict between personal and public interest,

12
the latter should take precedence former.5[5][Footnotes omitted] over the April 10, 2008 and July 9, 2008 as counsel for the plaintiffs; (2) Civil Case No. V-1620, entitled Melchor M. Manal versus Zosimo Malasa, et al., on (sic) February, 2008, as counsel for the plaintiff; With respect to lawyers in the judiciary, the OCAT pointed to Section 5, Canon 3 of the Code of Conduct for Court Personnel the rule that deals with outside employment by an incumbent judicial employee and which limits such outside employment to one that does not require the practice of law.6[6] The prohibition to practice law with respect to any matter where they have intervened while in the government service is reiterated in Rule 6.03, Canon 6 of the Code of Professional Responsibility, which governs the conduct of lawyers in the government service.7[7] (3) Civil Case No. V-1396, entitled Solomon Y. Mayor versus Jose J. Mayor, on February 21, 2008, as counsel for the plaintiff; and (4) Civil Case No. V-1639, entitled Philippine National Bank versus Sps. Mariano and Olivia Silverio, on April 11, 2008 and July 9, 2008, as counsel for the defendants.

In view of the OCAT findings and recommendations, we issued an En Banc Resolution dated November 11, 2008 directing the Court Administrator to draft and submit to the Court a circular on the practice of profession during employment and within one year from resignation, retirement from or cessation of employment in the Judiciary. We likewise required the Executive Judge of the RTC of Romblon to (i) verify if Atty. Buffe had appeared as counsel during her incumbency as clerk of court and after her resignation in February 2008, and (ii) submit to the Court a report on his verification.8[8]

Atty. Buffe herself was furnished a copy of our November 11, 2008 En Banc Resolution and she filed a Manifestation (received by the Court on February 2, 2009) acknowledging receipt of our November 11, 2008 Resolution. She likewise stated that her appearances are part of Branch 81 records. As well, she informed the Court that she had previously taken the following judicial remedies in regard to the above query:

In compliance with this our Resolution, Executive Judge Ramiro R. Geronimo of RTC-Branch 81 of Romblon reported the following appearances made by Atty. Buffe:

1. SCA No. 089119028 (Annex C), filed with Branch 54 of the RTC Manila, which had been dismissed without prejudice on July 23, 2008 (Annex D) a recourse taken when undersigned was still a private practitioner; 2. SCA No. 08120423 (Annex A), filed with Branch 17 of the RTC of Manila, which had been also dismissed (with or without prejudice) on December 4, 2008 (Annex B) a recourse taken when undersigned was already a public prosecutor appearing before the same Branch 81, after she took her oath of office as such on August 15, 2008.[Emphasis supplied]

(1) Civil Case No. V-1564, entitled Oscar Madrigal Moreno, Jr. et al. versus Leonardo M. Macalam, et al. on February 19, 2008, March 4, 2008,

She also made known her intent to elevate the dismissal of the above cases so that eventually, the Honorable Supreme Court may put to rest the legal issue/s presented in the above petitions which is, why is it that R.A. No. 6713, Sec. 7 (b)(2) and last par. thereof, apparently contains an express prohibition (valid or invalid) on the private practice of undersigneds law profession, before Branch 81, while on the other hand not containing a similar, express prohibition in regard to undersigneds practice of profession, before the same court, as a public prosecutor within the supposedly restricted 1-year period?

13
OUR ACTION AND RULING Nor can she hide behind the two declaratory relief petitions she filed, both of which were dismissed, and her intent to elevate the dismissal to this Court for resolution. The first, filed before the RTC, Branch 54, Manila, was dismissed on July 23, 2008 because the court declined to exercise the power to declare rights as prayed for in the petition, as any decision that may be rendered will be inutile and will not generally terminate the uncertainty or controversy.12[12] The second, filed with the RTC, Branch 17, Manila, was dismissed for being an inappropriate remedy after the dismissal ordered by the RTC, Branch 54, Manila, on December 4, 2008.13[13] Under these circumstances, we see nothing to deter us from ruling on Atty. Buffes actions, as no actual court case other than the present administrative case, is now actually pending on the issue she raised. On the contrary, we see from Atty. Buffes recourse to this Court and the filing of the two declaratory petitions the intent to shop for a favorable answer to her query. We shall duly consider this circumstance in our action on the case.

Preliminary Considerations

As we stated at the outset, this administrative matter confronts us, not merely with the task of determining how the Court will respond to the query, both with respect to the substance and form (as the Court does not give interpretative opinions9[9] but can issue circulars and regulations relating to pleading, practice and procedure in all courts10[10] and in the exercise of its administrative supervision over all courts and personnel thereof11[11]), but also with the task of responding to admitted violations of Section 7 (b)(2) of R.A. No. 6713 and to multiple recourses on the same subject.

After our directive to the Office of the Court Administrator to issue a circular on the subject of the query for the guidance of all personnel in the Judiciary, we consider this aspect of the present administrative matter a finished task, subject only to confirmatory closure when the OCA reports the completion of the undertaking to us.

Atty. Buffes admitted appearance, before the very same branch she served and immediately after her resignation, is a violation that we cannot close our eyes to and that she cannot run away from under the cover of the letter-query she filed and her petition for declaratory relief, whose dismissal she manifested she would pursue up to our level. We note that at the time she filed her letter-query (on March 4, 2008), Atty. Buffe had already appeared before Branch 81 in at least three (3) cases. The terms of Section 7 (b)(2) of R.A. No. 6713 did not deter her in any way and her misgivings about the fairness of the law cannot excuse any resulting violation she committed. In other words, she took the risk of appearing before her own Branch and should suffer the consequences of the risk she took.

A last matter to consider before we proceed to the merits of Atty. Buffes actions relates to possible objections on procedural due process grounds, as we have not made any formal directive to Atty. Buffe to explain why she should not be penalized for her appearance before Branch 81 soon after her resignation from that Branch. The essence of due process is the grant of the opportunity to be heard; what it abhors is the lack of the opportunity to be heard.14[14] The records of this case show that Atty. Buffe has been amply heard with respect to her actions. She was notified, and she even responded to our November 11, 2008 directive for the Executive Judge of the RTC of Romblon to report on Atty. Buffes appearances before Branch 81; she expressly manifested that these appearances were part of the Branch records. Her legal positions on these appearances have also been expressed before this Court; first, in her original letter-query, and subsequently, in her Manifestation. Thus, no due process consideration needs to deter us from considering the legal consequences of her appearances in her previous Branch within a year from her resignation.

The Governing Law: Section 7 of R.A. No. 6713

14
Section 7 of R.A. No. 6713 generally provides for the prohibited acts and transactions of public officials and employees. Subsection (b)(2) prohibits them from engaging in the private practice of their profession during their incumbency. As an exception, a public official or employee can engage in the practice of his or her profession under the following conditions: first, the private practice is authorized by the Constitution or by the law; and second, the practice will not conflict, or tend to conflict, with his or her official functions. (c) That outside employment does not require the practice of law; Provided, however, that court personnel may render services as professor, lecturer, or resource person in law schools, review or continuing education centers or similar institutions; The outside employment does not require or induce the court personnel to disclose confidential information acquired while performing officials duties; The outside employment shall not be with the legislative or executive branch of government, unless specifically authorized by the Supreme Court.

(d)

The Section 7 prohibitions continue to apply for a period of one year after the public official or employees resignation, retirement, or separation from public office, except for the private practice of profession under subsection (b)(2), which can already be undertaken even within the one-year prohibition period. As an exception to this exception, the one-year prohibited period applies with respect to any matter before the office the public officer or employee used to work with.

(e)

The Section 7 prohibitions are predicated on the principle that public office is a public trust; and serve to remove any impropriety, real or imagined, which may occur in government transactions between a former government official or employee and his or her former colleagues, subordinates or superiors. The prohibitions also promote the observance and the efficient use of every moment of the prescribed office hours to serve the public.15[15]

Where a conflict of interest exists, may reasonably appear to exist, or where the outside employment reflects adversely on the integrity of the Judiciary, the court personnel shall not accept outside employment. [Emphasis supplied] In both the above discussed aspect of R.A. No. 6713 and the quoted Canon 3, the practice of law is covered; the practice of law is a practice of profession, while Canon 3 specifically mentions any outside employment requiring the practice of law. In Cayetano v. Monsod,16[16] we defined the practice of law as any activity, in and out of court, that requires the application of law, legal procedure, knowledge, training and experience. Moreover, we ruled that to engage in the practice of law is to perform those acts which are characteristics of the profession; 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.17[17] Under both provisions, a common objective is to avoid any conflict of interest on the part of the employee who may wittingly or unwittingly use confidential information acquired from his employment, or use his or her familiarity with court personnel still with the previous office. After separation from the service, Section 5, Canon 3 of the Code of Conduct for Court Personnel ceases to apply as it applies specifically to incumbents, but Section 7 and its subsection (b)(2) of R.A. No. 6713 continue to apply to the extent discussed above. Atty. Buffes situation falls under Section 7.

Parenthetically, in the case of court employees, Section 7(b)(2) of R.A. No. 6713 is not the only prohibition to contend with; Section 5, Canon 3 of the Code of Conduct for Court Personnel also applies. The latter provision provides the definitive rule on the outside employment that an incumbent court official or court employee may undertake in addition to his official duties: Outside employment may be allowed by the head of office provided it complies with all of the following requirements: (a) The outside employment is not with a person or entity that practices law before the courts or conducts business with the Judiciary; (b) The outside employment can be performed outside of normal working hours and is not incompatible with the performance of the court personnels duties and responsibilities;

15

Atty. Buffes Situation A distinctive feature of this administrative matter is Atty. Buffes admission that she immediately engaged in private practice of law within the one-year period of prohibition stated in Section 7(b)(2) of R.A. No. 6713. We find it noteworthy, too, that she is aware of this provision and only objects to its application to her situation; she perceives it to be unfair that she cannot practice before her old office Branch 81 for a year immediately after resignation, as she believes that her only limitation is in matters where a conflict of interest exists between her appearance as counsel and her former duties as Clerk of Court. She believes that Section 7 (b)(2) gives preferential treatment to incumbent public officials and employees as against those already separated from government employment. Atty. Buffe apparently misreads the law. As the OCAT aptly stated, she interprets Section 7 (b)(2) as a blanket authority for an incumbent clerk of court to practice law. We reiterate what we have explained above, that the general rule under Section 7 (b)(2) is to bar public officials and employees from the practice of their professions; it is unlawful under this general rule for clerks of court to practice their profession. By way of exception, they can practice their profession if the Constitution or the law allows them, but no conflict of interest must exist between their current duties and the practice of their profession. As we also mentioned above, no chance exists for lawyers in the Judiciary to practice their profession, as they are in fact expressly prohibited by Section 5, Canon 3 of the Code of Conduct for Court Personnel from doing so. Under both the general rule and the exceptions, therefore, Atty. Buffes basic premise is misplaced. As we discussed above, a clerk of court can already engage in the practice of law immediately after her separation from the service and without any period limitation that applies to other prohibitions under Section 7 of R.A. No. 6713. The clerk of courts limitation is that she cannot practice her profession within one year before the office where he or she used to work with. In a comparison between a resigned, retired or separated official or employee, on the one hand, and an incumbent official or employee, on the other, the former has the advantage because the limitation is only with respect to the office he or she used to work with and only for a period of one year. The incumbent cannot practice at all, save only where specifically allowed by the Constitution and the law and only in areas where no conflict of interests exists. This analysis again disproves Atty. Buffes basic premises. A worrisome aspect of Atty. Buffes approach to Section 7 (b)(2) is her awareness of the law and her readiness to risk its violation because of the unfairness she perceives in the law. We find it disturbing that she first violated the law before making any inquiry. She also justifies her position by referring to the practice of other government lawyers known to her who, after separation from their judicial employment, immediately engaged in the private practice of law and appeared as private counsels before the RTC branches where they were previously employed. Again we find this a cavalier attitude on Atty. Buffes part and, to our mind, only emphasizes her own willful or intentional disregard of Section 7 (b)(2) of R.A. No. 6713. By acting in a manner that R.A. No. 6713 brands as unlawful, Atty. Buffe contravened Rule 1.01 of Canon 1 of the Code of Professional Responsibility, which provides:

CANON 1 A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND FOR LEGAL PROCESSES x x x

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

As indicated by the use of the mandatory word shall, this provision must be strictly complied with. Atty. Buffe failed to do this, perhaps not with an evil intent, considering the misgivings she had about Section 7 (b)(2)s unfairness. Unlawful conduct under Rule 1.01 of Canon 1, however, does not necessarily require the element of criminality, although the Rule is broad enough to include it.18[18] Likewise, the presence of evil intent on the part of the lawyer is not essential to bring his or her act or omission within the terms of Rule 1.01, when it specifically prohibits lawyers from engaging in unlawful conduct.19[19] Thus, we find Atty. Buffe liable under this quoted Rule.

We also find that Atty. Buffe also failed to live up to her lawyers oath and thereby violated Canon 7 of the Code of Professional Responsibility when she blatantly and unlawfully practised law within the prohibited period by appearing before the RTC Branch she had just left. Canon 7 states:

CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND THE DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR. [Emphasis supplied] By her open disregard of R.A. No. 6713, she thereby followed the footsteps of the models she cited and wanted to replicate the former court officials who immediately waded into practice in the very same court they came from. She, like they, disgraced the dignity of the legal profession by openly disobeying and disrespecting the law.20[20] By her irresponsible

16
conduct, she also eroded public confidence in the law and in lawyers.21[21] Her offense is not in any way mitigated by her transparent attempt to cover up her transgressions by writing the Court a letter-query, which she followed up with unmeritorious petitions for declaratory relief, all of them dealing with the same Section 7 (b)(2) issue, in the hope perhaps that at some point she would find a ruling favorable to her cause. These are acts whose implications do not promote public confidence in the integrity of the legal profession.22[22]

Also on the basis of this principle, we ruled in Richards v. Asoy,27[27] that no evidentiary hearing is required before the respondent may be disciplined for professional misconduct already established by the facts on record.

Considering Atty. Buffes ready admission of violating Section 7(b)(2), the principle of res ipsa loquitur finds application, making her administratively liable for violation of Rule 1.01 of Canon 1 and Canon 7 of the Code of Professional Responsibility.23[23] In several cases, the Court has disciplined lawyers without further inquiry or resort to any formal investigation where the facts on record sufficiently provided the basis for the determination of their administrative liability.

We applied the principle of res ipsa loquitur once more in In re: Wenceslao Laureta28[28] where we punished a lawyer for grave professional misconduct solely based on his answer to a show-cause order for contempt and without going into a trial-type hearing. We ruled then that due process is satisfied as long as the opportunity to be heard is given to the person to be disciplined.29[29]

In Prudential Bank v. Castro,24[24] the Court disbarred a lawyer without need of any further investigation after considering his actions based on records showing his unethical misconduct; the misconduct not only cast dishonor on the image of both the Bench and the Bar, but was also inimical to public interest and welfare. In this regard, the Court took judicial notice of several cases handled by the errant lawyer and his cohorts that revealed their modus operandi in circumventing the payment of the proper judicial fees for the astronomical sums they claimed in their cases.25[25] The Court held that those cases sufficiently provided the basis for the determination of respondents' administrative liability, without need for further inquiry into the matter under the principle of res ipsa loquitur.26[26]

Likewise in Zaldivar v. Gonzales,30[30] the respondent was disciplined and punished for contempt for his slurs regarding the Courts alleged partiality, incompetence and lack of integrity on the basis of his answer in a show-cause order for contempt. The Court took note that the respondent did not deny making the negative imputations against the Court through the media and even acknowledged the correctness of his degrading statements. Through a per curiam decision, we justified imposing upon him the penalty of suspension in the following tenor:

The power to punish for contempt of court does not exhaust the scope of disciplinary authority of the Court over lawyers. The disciplinary authority of the Court over members of the Bar is but corollary to the Court's exclusive power of admission to the Bar. A lawyer is not merely a professional but also an officer of the court and as such, he is called upon to share in

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the task and responsibility of dispensing justice and resolving disputes in society. Any act on his part which visibly tends to obstruct, pervert, or impede and degrade the administration of justice constitutes both professional misconduct calling for the exercise of disciplinary action against him, and contumacious conduct warranting application of the contempt power.31[31] As we observed earlier,34[34] Atty. Buffe had no qualms about the simultaneous use of various fora in expressing her misgivings about the perceived unfairness of Section 7 of R.A. 6713. She formally lodged a query with the Office of the Court Administrator, and soon after filed her successive petitions for declaratory relief. Effectively, she exposed these fora to the possibility of embarrassment and confusion through their possibly differing views on the issue she posed. Although this is not strictly the forumshopping that the Rules of Court prohibit, what she has done is something that we cannot help but consider with disfavor because of the potential damage and embarrassment to the Judiciary that it could have spawned. This is a point against Atty. Buffe that cancels out the leniency we might have exercised because of the OCATs observation about her ignorance of and misgivings on the extent of the prohibition after separation from the service.

These cases clearly show that the absence of any formal charge against and/or formal investigation of an errant lawyer do not preclude the Court from immediately exercising its disciplining authority, as long as the errant lawyer or judge has been given the opportunity to be heard. As we stated earlier, Atty. Buffe has been afforded the opportunity to be heard on the present matter through her letter-query and Manifestation filed before this Court.

A member of the bar may be penalized, even disbarred or suspended from his office as an attorney, for violation of the lawyers oath and/or for breach of the ethics of the legal profession as embodied in the Code of Professional Responsibility.32[32] The appropriate penalty on an errant lawyer depends on the exercise of sound judicial discretion based on the surrounding facts.33[33]

Under the circumstances, we find that her actions merit a penalty of fine of P10,000.00, together with a stern warning to deter her from repeating her transgression and committing other acts of professional misconduct.35[35] This penalty reflects as well the Courts sentiments on how seriously the retired, resigned or separated officers and employees of the Judiciary should regard and observe the prohibition against the practice of law with the office that they used to work with.

In this case, we cannot discern any mitigating factors we can apply, save OCATs observation that Atty Buffes letter-query may really reflect a misapprehension of the parameters of the prohibition on the practice of the law profession under Section 7 (b) (2) of R.A. No. 6713. Ignorance of the law, however, is no excuse, particularly on a matter as sensitive as practice of the legal profession soon after ones separation from the service. If Atty. Buffe is correct in the examples she cited, it is time to ring the bell and to blow the whistle signaling that we cannot allow this practice to continue.

WHEREFORE, premises considered, we find Atty. Karen M. Silverio-Buffe GUILTY of professional misconduct for violating Rule 1.01 of Canon 1 and Canon 7 of the Code of Professional Responsibility. She is hereby FINED in the amount of Ten Thousand Pesos (P10,000.00), and STERNLY WARNED that a repetition of this violation and the commission of other acts of professional misconduct shall be dealt with more severely.

Let this Decision be noted in Atty. Buffes record as a member of the Bar. SO ORDERED.