A.M. No.

1625 February 12, 1990

ANGEL L. BAUTISTA, complainant,
vs.ATTY.
RAMON
GONZALES, respondent.

A.

RESOLUTION
PER CURIAM:
In a verified complaint filed by Angel L.
Bautista on May 19, 1976, respondent
Ramon A. Gonzales was charged with
malpractice, deceit, gross misconduct
and violation of lawyer's oath. Required
by this Court to answer the charges
against him, respondent filed on June 19,
1976 a motion for a bill of particulars
asking this Court to order complainant to
amend his complaint by making his
charges more definite. In a resolution
dated June 28, 1976, the Court granted
respondent's motion and required
complainant to file an amended
complaint. On July 15, 1976, complainant
submitted an amended complaint for
disbarment, alleging that respondent
committed the following acts:
1. Accepting a case wherein he
agreed with his clients, namely,
Alfaro
Fortunado,
Nestor
Fortunado and Editha Fortunado
[hereinafter referred to as the
Fortunados] to pay all expenses,
including court fees, for a
contingent fee of fifty percent
(50%) of the value of the property
in litigation.

2. Acting as counsel for the

Fortunados in Civil Case No. Q15143, wherein Eusebio Lopez, Jr.
is one of the defendants and,
without
said
case
being
terminated, acting as counsel for
Eusebio Lopez, Jr. in Civil Case
No. Q-15490;
3. Transferring to himself one-half
of
the
properties
of
the
Fortunados, which properties are
the subject of the litigation in Civil
Case No. Q-15143, while the case
was still pending;
4. Inducing complainant, who was
his former client, to enter into a
contract with him on August 30,
1971 for the development into a
residential subdivision of the land
involved in Civil Case No. Q15143, covered by TCT No. T1929, claiming that he acquired
fifty percent (50%) interest thereof
as attorney's fees from the
Fortunados, while knowing fully
well that the said property was
already sold at a public auction on
June 30, 1971, by the Provincial
Sheriff of Lanao del Norte and
registered with the Register of
Deeds of Iligan City;
5. Submitting to the Court of First
Instance of Quezon City falsified
documents purporting to be true
copies of "Addendum to the Land
Development Agreement dated
August 30, 1971" and submitting

the same document to the Fiscal's

Office of Quezon City, in
connection with the complaint for
estafa filed by respondent against
complainant designated as I.S.
No. 7512936;
6. Committing acts of treachery
and disloyalty to complainant who
was his client;
7. Harassing the complainant by
filing several complaints without
legal basis before the Court of
First Instance and the Fiscal's
Office of Quezon City;
8. Deliberately misleading the
Court of First Instance and the
Fiscal's Office by making false
assertion of facts in his pleadings;
9.
Filing
petitions
"cleverly
prepared (so) that while he does
not intentionally tell a he, he does
not tell the truth either."
Respondent filed an answer on
September 29, 1976 and an amended
answer on November 18, 1976, denying
the
accusations
against
him.
Complainant filed a reply to respondent's
answer on December 29, 1976 and on
March 24, 1977 respondent filed a
rejoinder.
In a resolution dated March 16, 1983, the
Court referred the case to the Office of
the Solicitor General for investigation,
report and recommendation. In the

investigation conducted by the Solicitor

General, complainant presented himself
as a witness and submitted Exhibits "A"
to "PP", while respondent appeared both
as witness and counsel and submitted
Exhibits "1" to "11". The parties were
required to submit their respective
memoranda.
On May 16, 1988 respondent filed a
motion to dismiss the complaint against
him, claiming that the long delay in the
resolution of the complaint against him
constitutes a violation of his constitutional
right to due process and speedy
disposition of cases. Upon order of the
Court, the Solicitor General filed a
comment to the motion to dismiss on
August 8, 1988, explaining that the delay
in the investigation of the case was due
to
the
numerous
requests
for
postponement of scheduled hearings
filed by both parties and the motions for
extension of time to file their respective
memoranda." [Comment of the Solicitor
General, p. 2; Record, p. 365].
Respondent filed a reply to the Solicitor
General's comment on October 26, 1988.
In a resolution dated January 16, 1989
the Court required the Solicitor General
to submit his report and recommendation
within thirty (30) days from notice.
On April 11, 1989, the Solicitor General
submitted
his
report
with
the
recommendation that Atty. Ramon A.
Gonzales be suspended for six (6)
months. The Solicitor General found that
respondent committed the following acts
of misconduct:

a. transferring to himself
one-half of the properties of
his clients during the
pendency of the case
where the properties were
involved;
b.
concealing
from
complainant the fact that
the property subject of their
land
development
agreement had already
been sold at a public
auction
prior
to
the
execution
of
said
agreement; and
c. misleading the court by
submitting alleged true
copies of a document
where two signatories who
had not signed the original
(or even the xerox copy)
were made to appear as
having fixed their signatures
[Report
and
Recommendation of the
Solicitor General, pp. 17-18;
Rollo, pp. 403-404].
Respondent then filed on April 14, 1989 a
motion to refer the case to the Integrated
Bar of the Philippines (IBP) for
investigation and disposition pursuant to
Rule 139-B of the Revised Rules of
Court. Respondent manifested that he
intends to submit more evidence before
the IBP. Finally, on November 27, 1989,
respondent filed a supplemental motion
to refer this case to the IBP, containing

additional arguments to bolster his

contentions in his previous pleadings.
I.
Preliminarily, the Court will dispose of the
procedural issue raised by respondent. It
is respondent's contention that the
preliminary investigation conducted by
the Solicitor General was limited to the
determination of whether or not there is
sufficient ground to proceed with the case
and that under Rule 139 the Solicitor
General still has to file an administrative
complaint against him. Respondent
claims that the case should be referred to
the IBP since Section 20 of Rule 139-B
provides that:
This Rule shall take effect
on June 1, 1988 and shall
supersede the present Rule
139 entitled DISBARMENT
OR
SUSPENSION
OF
ATTORNEYS. All cases
pending investigation by the
Office of the Solicitor
General shall be transferred
to the Integrated Bar of the
Philippines
Board
of
Governors for investigation
and disposition as provided
in this Rule except those
cases
where
the
investigation
has
been
substantially completed.
The above contention of respondent is
untenable. In the first place, contrary to
respondent's claim, reference to the IBP

of complaints against lawyers is not

mandatory upon the Court [Zaldivar v.
Sandiganbayan, G.R. Nos. 79690-707;
Zaldivar v. Gonzales, G.R. No. 80578,
October 7, 1988]. Reference of
complaints to the IBP is not an exclusive
procedure under the terms of Rule 139-B
of the Revised Rules of Court [Ibid].
Under Sections 13 and 14 of Rule 139-B,
the Supreme Court may conduct
disciplinary proceedings without the
intervention of the IBP by referring cases
for investigation to the Solicitor General
or to any officer of the Supreme Court or
judge of a lower court. In such a case,
the report and recommendation of the
investigating official shall be reviewed
directly by the Supreme Court. The Court
shall base its final action on the case on
the
report
and
recommendation
submitted by the investigating official and
the evidence presented by the parties
during the investigation.
Secondly, there is no need to refer the
case to the IBP since at the time of the
effectivity of Rule 139-B [June 1, 1988]
the investigation conducted by the Office
of the Solicitor General had been
substantially completed. Section 20 of
Rule 139-B provides that only pending
cases, the investigation of which has not
been substantially completed by the
Office of the Solicitor General, shall be
transferred to the IBP. In this case the
investigation by the Solicitor General was
terminated even before the effectivity of
Rule
139-B.
Respondent
himself
admitted in his motion to dismiss that the
Solicitor
General
terminated
the

investigation on November 26, 1986, the

date when respondent submitted his
reply memorandum [Motion to Dismiss, p.
1; Record, p. 353].
Thirdly, there is no need for further
investigation since the Office of the
Solicitor General already made a
thorough
and
comprehensive
investigation of the case. To refer the
case to the IBP, as prayed for by the
respondent, will result not only in
duplication of the proceedings conducted
by the Solicitor General but also to further
delay in the disposition of the present
case which has lasted for more than
thirteen (13) years.
Respondent's assertion that he still has
some evidence to present does not
warrant the referral of the case to the IBP.
Considering that in the investigation
conducted by the Solicitor General
respondent was given ample opportunity
to present evidence, his failure to adduce
additional evidence is entirely his own
fault. There was therefore no denial of
procedural due process. The record
shows that respondent appeared as
witness for himself and presented no less
than eleven (11) documents to support
his contentions. He was also allowed to
cross-examine the complainant who
appeared as a witness against him.
II.
The Court will now address the
substantive issue of whether or not
respondent committed the acts of

misconduct
Bautista.

alleged

by

complainant

After a careful review of the record of the

case and the report and recommendation
of the Solicitor General, the Court finds
that respondent committed acts of
misconduct which warrant the exercise
by this Court of its disciplinary power.
The record shows that respondent
prepared a document entitled "Transfer of
Rights" which was signed by the
Fortunados on August 31, 1971. The
document assigned to respondent onehalf (1/2) of the properties of the
Fortunados covered by TCT No. T-1929,
with an area of 239.650 sq. mm., and
TCT No. T-3041, with an area of 72.907
sq. m., for and in consideration of his
legal services to the latter. At the time the
document was executed, respondent
knew that the abovementioned properties
were the subject of a civil case [Civil
Case No. Q-15143] pending before the
Court of First Instance of Quezon City
since he was acting as counsel for the
Fortunados in said case [See Annex "B"
of Original Complaint, p. 12; Rollo, p. 16].
In executing the document transferring
one-half (1/2) of the subject properties to
himself, respondent violated the law
expressly prohibiting a lawyer from
acquiring his client's property or interest
involved in any litigation in which he may
take part by virtue of his profession
[Article 1491, New Civil Code]. This Court
has held that the purchase by a lawyer of
his client's property or interest in litigation
is a breach of professional ethics and

constitutes malpractice [Hernandez v.

Villanueva, 40 Phil. 774 (1920); Go
Beltran v. Fernandez, 70 Phil. 248
(1940)].

In the instant case, respondent, having

violated Art. 1491 of the Civil Code, must
be held accountable both to his client and
to society.

However, respondent notes that Canon

10 of the old Canons of Professional
Ethics, which states that "[t]he lawyer
should not purchase any interests in the
subject matter of the litigation which he is
conducting," does not appear anymore in
the
new
Code
of
Professional
Responsibility. He therefore concludes
that while a purchase by a lawyer of
property in litigation is void under Art.
1491 of the Civil Code, such purchase is
no longer a ground for disciplinary action
under the new Code of Professional
Responsibility.

Parenthetically, it should be noted that

the persons mentioned in Art. 1491 of the
Civil Code are prohibited from purchasing
the property mentioned therein because
of their existing trust relationship with the
latter. A lawyer is disqualified from
acquiring by purchase the property and
rights in litigation because of his fiduciary
relationship with such property and rights,
as well as with the client. And it cannot be
claimed that the new Code of
Professional Responsibility has failed to
emphasize the nature and consequences
of such relationship. Canon 17 states that
"a lawyer owes fidelity to the cause of his
client and he shall be mindful of the trust
and confidence reposed in him." On the
other hand, Canon 16 provides that "a
lawyer shall hold in trust all moneys and
properties of his client that may come into
his possession." Hence, notwithstanding
the absence of a specific provision on the
matter in the new Code, the Court,
considering the abovequoted provisions
of the new Code in relation to Art. 1491 of
the Civil Code, as well as the prevailing
jurisprudence, holds that the purchase by
a lawyer of his client's property in
litigation constitutes a breach of
professional
ethics
for
which
a
disciplinary action may be brought
against him.

This contention is without merit. The very

first Canon of the new Code states that
"a
lawyer
shall
uphold
the
Constitution, obey the laws of the land
and promote respect for law and legal
process" (Emphasis supplied), Moreover,
Rule 138, Sec. 3 of the Revised Rules of
Court requires every lawyer to take an
oath to 44 obey the laws [of the Republic
of the Philippines] as well as the legal
orders of the duly constituted authorities
therein." And for any violation of this oath,
a lawyer may be suspended or disbarred
by the Supreme Court [Rule 138, Sec.
27, Revised Rules of Court]. All of these
underscore the role of the lawyer as the
vanguard of our legal system. The
transgression of any provision of law by a
lawyer is a repulsive and reprehensible
act which the Court will not countenance.

Respondent's next contention that the

transfer of the properties was not really

implemented,
because
the
land
development agreement on which the
transfer depended was later rescinded, is
untenable. Nowhere is it provided in the
Transfer of Rights that the assignment of
the properties of the Fortunados to
respondent
was
subject
to
the
implementation of the land development
agreement. The last paragraph of the
Transfer of Rights provides that:
... for and in consideration of the
legal services of ATTY. RAMON A.
GONZALES, Filipino, married to
Lilia Yusay, and a resident of 23
Sunrise Hill, New Manila, Quezon
City, rendered to our entire
satisfaction, we hereby, by these
presents, do transfer and convey
to the said ATTY. RAMON A.
GONZALES,
his
heirs,
successor, and assigns, one-half
(1/2) of our rights and interests in
the
abovedescribed
property,
together with all the improvements
found therein [Annex D of the
Complaint,
Record,
p.
28;
Emphasis supplied].
It is clear from the foregoing that the
parties intended the transfer of the
properties to respondent to be absolute
and unconditional, and irrespective of
whether or not the land development
agreement was implemented.
Another misconduct committed by
respondent was his failure to disclose to
complainant, at the time the land
development agreement was entered

into, that the land covered by TCT No. T1929 had already been sold at a public
auction.
The
land
development
agreement was executed on August 31,
1977 while the public auction was held on
June 30, 1971.
Respondent denies that complainant was
his former client, claiming that his
appearance for the complainant in an
anti-graft case filed by the latter against a
certain Gilbert Teodoro was upon the
request of complainant and was
understood to be only provisional.
Respondent
claims
that
since
complainant was not his client, he had no
duty to warn complainant of the fact that
the land involved in their land
development agreement had been sold
at a public auction. Moreover, the sale
was duly annotated at the back of TCT
No. T-1929 and this, respondent argues,
serves as constructive notice to
complainant so that there was no
concealment on his part.
The above contentions are unmeritorious.
Even assuming that the certificate of sale
was annotated at the back of TCT No. T1929, the fact remains that respondent
failed to inform the complainant of the
sale of the land to Samauna during the
negotiations for the land development
agreement. In so doing, respondent
failed to live up to the rigorous standards
of ethics of the law profession which
place a premium on honesty and
condemn duplicitous conduct. The fact
that complainant was not a former client
of respondent does not exempt

respondent from his duty to inform

complainant of an important fact
pertaining to the land which is subject of
their negotiation. Since he was a party to
the land development agreement,
respondent should have warned the
complainant of the sale of the land at a
public auction so that the latter could
make a proper assessment of the viability
of the project they were jointly
undertaking. This Court has held that a
lawyer should observe honesty and
fairness even in his private dealings and
failure to do so is a ground for disciplinary
action against him [Custodio v. Esto,
Adm. Case No. 1113, February 22, 1978,
81 SCRA 517].
Complainant also charges respondent
with submitting to the court falsified
documents purporting to be true copies
of an addendum to the land development
agreement.
Based on evidence submitted by the
parties, the Solicitor General found that in
the document filed by respondent with
the Court of First Instance of Quezon
City, the signatories to the addendum to
the land development agreement namely,
Ramon A. Gonzales, Alfaro T. Fortunado,
Editha T. Fortunado, Nestor T. Fortunado,
and Angel L. Bautistawere made to
appear as having signed the original
document on December 9, 1972, as
indicated by the letters (SGD.) before
each of their names. However, it was only
respondent
Alfaro
Fortunado
and
complainant who signed the original and
duplicate original (Exh. 2) and the two

other parties, Edith Fortunado and Nestor

Fortunado, never did. Even respondent
himself admitted that Edith and Nestor
Fortunado only signed the xerox copy
(Exh. 2-A) after respondent wrote them
on May 24, 1973, asking them to sign the
said xerox copyattached to the letter and
to send it back to him after signing
[Rejoinder to Complainant's Reply, pp. 46; Rollo, pp. 327-329]. Moreover,
respondent acknowledged that Edith and
Nestor Fortunado had merely agreed by
phone to sign, but had not actually
signed, the alleged true copy of the
addendum as of May 23, 1973
[Respondent's Supplemental Motion to
Refer this Case to the Integrated Bar of
the Philippines, p. 16]. Thus, when
respondent submitted the alleged true
copy of the addendum on May 23, 1973
as Annex "A" of his Manifestation filed
with the Court of First Instance of Quezon
City, he knowingly misled the Court into
believing that the original addendum was
signed by Edith Fortunado and Nestor
Fortunado. Such conduct constitutes
willful disregard of his solemn duty as a
lawyer to act at all times in a manner
consistent with the truth. A lawyer should
never seek to mislead the court by an
artifice or false statement of fact or law
[Section 20 (d), Rule 138, Revised Rules
of Court; Canon 22, Canons of
Professional Ethics; Canon 10, Rule
10.01,
Code
of
Professional
Responsibility].
Anent the first charge of complainant, the
Solicitor
General
found
that
no
impropriety
was
committed
by

respondent in entering into a contingent

fee contract with the Fortunados [Report
and Recommendation, p. 8; Record, p.
394]. The Court, however, finds that the
agreement between the respondent and
the Fortunados, which provides in part
that:

part of the thing in dispute [See

Sampliner v. Motion Pictures Patents Co.,
et al., 255 F. 242 (1918)]. The execution
of these contracts violates the fiduciary
relationship between the lawyer and his
client, for which the former must incur
administrative sanctions.

We the [Fortunados] agree

on the 50% contingent fee,
provided, you [respondent
Ramon Gonzales] defray all
expenses, for the suit,
including court fees.

The Solicitor General next concludes that

respondent cannot be held liable for
acting as counsel for Eusebio Lopez, Jr.
in Civil Case No. Q-15490 while acting as
counsel for the Fortunados against the
same Eusebio Lopez, Jr. in Civil Case
No.
Q-15143.
The
Court,
after
considering the record, agrees with the
Solicitor General's findings on the matter.
The evidence presented by respondent
shows that his acceptance of Civil Case
No. Q-15490 was with the knowledge
and consent of the Fortunados. The
affidavit executed by the Fortunados on
June 23, 1976 clearly states that they
gave their consent when respondent
accepted the case of Eusebio Lopez, Jr.
[Affidavit of Fortunados, dated June 23,
1976; Rollo, p. 198]. One of the
recognized exceptions to the rule against
representation of conflicting interests is
where the clients knowingly consent to
the dual representation after full
disclosure of the facts by counsel [Canon
6, Canons of Professional Ethics; Canon
15, Rule 15.03, Code of Professional
Responsibility].

[Annex A to the Complaint,

Record, p. 4].
is contrary to Canon 42 of the Canons of
Professional Ethics which provides that a
lawyer may not properly agree with a
client to pay or bear the expenses of
litigation. [See also Rule 16.04, Code of
Professional Responsibility]. Although a
lawyer may in good faith, advance the
expenses of litigation, the same should
be subject to reimbursement. The
agreement between respondent and the
Fortunados, however, does not provide
for reimbursement to respondent of
litigation expenses paid by him. An
agreement whereby an attorney agrees
to pay expenses of proceedings to
enforce the client's rights is champertous
[JBP Holding Corp. v. U.S. 166 F. Supp.
324 (1958)]. Such agreements are
against public policy especially where, as
in this case, the attorney has agreed to
carry on the action at his own expense in
consideration of some bargain to have

Complainant also claims that respondent

filed several complaints against him
before the Court of First Instance and the

Fiscal's Office of Quezon City for the sole

purpose of harassing him.
The record shows that at the time of the
Solicitor General's investigation of this
case, Civil Case No. Q-18060 was still
pending before the Court of First Instance
of Quezon City, while the complaints for
libel (I.S. No. 76-5912) and perjury (I.S.
No. 5913) were already dismissed by the
City Fiscal for insufficiency of evidence
and lack of interest, respectively [Report
and Recommendation, pp. 16-17; Rollo,
pp. 402-403]. The Solicitor General found
no basis for holding that the complaints
for libel and perjury were used by
respondent to harass complainant. As to
Civil Case No. Q-18060, considering that
it was still pending resolution, the
Solicitor General made no finding on
complainants claim that it was a mere
ploy by respondent to harass him. The
determination of the validity of the
complaint in Civil Case No. Q-18060 was
left to the Court of First Instance of
Quezon City where the case was pending
resolution.
The Court agrees with the above findings
of the Solicitor General, and accordingly
holds that there is no basis for holding
that the respondent's sole purpose in
filing the aforementioned cases was to
harass complainant.
Grounds 6, 8 and 9 alleged in the
complaint need not be discussed
separately since the above discussion on
the other grounds sufficiently cover these
remaining grounds.

The Court finds clearly established in this

case that on four counts the respondent
violated the law and the rules governing
the conduct of a member of the legal
profession. Sworn to assist in the
administration of justice and to uphold
the rule of law, he has "miserably failed to
live up to the standards expected of a
member of the Bar." [Artiaga v.
Villanueva, Adm. Matter No. 1892, July
29, 1988, 163 SCRA 638, 647]. The
Court agrees with the Solicitor General
that, considering the nature of the
offenses committed by respondent and
the facts and circumstances of the case,
respondent lawyer should be suspended
from the practice of law for a period of six
(6) months.WHEREFORE, finding that
respondent Attorney Ramon A. Gonzales
committed serious misconduct, the Court
Resolved to SUSPEND respondent from
the practice of law for SIX (6) months
effective from the date of his receipt of
this Resolution. Let copies of this
Resolution be circulated to all courts of
the country for their information and
guidance, and spread in the personal
record of Atty. Gonzales.SO ORDERED.

In this petition for disbarment,

complainant Marciano Brion, Jr., charges
the respondent, Atty. Francisco Brillantes,
Jr., of having willfully violated a lawful
order of this Court in A.M. No. MTJ-92706, entitled Lupo Almodiel Atienza v.
Judge Francisco F. Brillantes, Jr.[1] The
decretal portion of our resolution
in Atienza reads:
WHEREFORE,
respondent
is
DISMISSED from the service with
forfeiture of all leave and retirement
benefits
and
with
prejudice
to
reappointment
in
any
branch,
instrumentality or agency of the
government,
including
governmentowned and controlled corporations. This
decision is immediately executory.
SO ORDERED.[2]

[A. C. No. 5305. March 17, 2003]

MARCIANO P. BRION, JR., petitioner,
vs. FRANCISCO F. BRILLANTES,
JR., respondent.

DECISION
QUISUMBING, J.:

Respondents dismissal in the

aforesaid case was ordered after he was
found guilty of Gross Immorality and
Appearance of Impropriety during his
incumbency as presiding judge of the
Metropolitan Trial Court, Branch 20,
Manila.
Petitioner now avers that respondent
violated our decree of perpetual
disqualification imposed upon him from
assuming any post in government
service,
including
any
posts
in
government-owned
and
controlled
corporations, when he accepted a legal
consultancy post at the Local Water
Utilities Administration (LWUA), from
1998 to 2000. Said consultancy included

an appointment by LWUA as 6 th member

of the Board of Directors of the Urdaneta
(Pangasinan)
Water
District. Upon
expiration of the legal consultancy
agreement, this was subsequently
renewed as a Special Consultancy
Agreement.
Petitioner contends that while both
consultancy agreements contained a
proviso to the effect that nothing therein
should be construed as establishing an
employer-employee relationship between
LWUA and respondent, the inclusion of
this proviso was only a ploy to circumvent
our order barring respondent from
appointment to a government agency.
Petitioner points out in reality, respondent
enjoys the same rights and privileges as
a regular employee, to wit:[3]
1. Issuance of LWUA properties such
as a cellular phone with accessories, as
evidenced by the covering Property Issue
Slips with respondent signing as
Accountable Employee;[4]
2. Official travel to various places in
the country as shown by Reports of
Authorized Travel kept by LWUAs
General Services Division[5]and Report of
Travel accomplished by respondent
himself;[6]
3. Designation as supervising officer
over other LWUA employees as brought
to light by written instructions personally
signed by respondent;[7]
4. Attendance in water district
conventions and meetings held in various
provinces;[8]

5. Membership in several sensitive

LWUA
committees
such
as
the Prequalification, Bids, and Awards
Committee
(PBAC),
Build-OperateTransfer (BOT) Committee, among
others, with receipt of corresponding
honoraria as borne out by various
Disbursement Vouchers;[9]
6. Sitting at meetings of the LWUA
Board of Trustees as evidenced by the
minutes of such meetings;[10] and
7. Receipt of Productivity Incentive
Bonus in 1999.
Petitioner submits that all of the
foregoing constitute deceitful conduct,
gross
misconduct,
and
willful
disobedience to a decree of this Court,
and show that respondent is unfit to be a
member of the Bar.
In his comment,[11] respondent admits
the existence of the Legal Consultancy
Contract as well as the Special
Consultancy Contract.However, he raises
the affirmative defense that under Civil
Service
Commission
(CSC)
Memorandum Circular No. 27, Series of
1993, services rendered pursuant to a
consultancy contract shall not be
considered government services, and
therefore, are not covered by Civil
Service Law, rules and regulations.
Further, says respondent, according
to the same Memorandum Circular
issued by the Commission, consultancy
contracts do not have to be submitted to
the Commission for approval. With
respect to his designation as the

6th Member of the Board of Directors of

the Urdaneta Water District, respondent
reasons out that the same is not a
reappointment, which is prohibited by our
ruling in Atienza, as said designation is
not an organic appointment to a LWUA
plantilla position. Hence, according to
respondent, the CSC need not pass
approval upon his temporary designation.
Respondent also argues that all the
members of the Urdaneta Water District
Board, especially the 6th Member, who
comes from the LWUA, assumed such
functions merely by virtue of a
designation and only in addition to their
regular duties. In any event, says
respondent,
his
designation
as
th
6 Member was revoked in April 2000
and the Special Consultancy Contract
was pre-terminated on April 30, 2000. It
has never been renewed since then. With
respect to his use of LWUA properties,
respondent admits receiving the cellular
phone unit but insists that he merely
borrowed it from one Solomon Badoy, a
former LWUA Board of Trustees Member.
In our Resolution of February 19,
2001, we referred this case to the
Integrated Bar of the Philippines (IBP) for
investigation,
report
and
recommendation. The IBP Commission
on Bar Discipline found that respondent
willfully violated a lawful order of this
Court and recommended that respondent
be suspended from the practice of law for
one (1) year and fined ten thousand
(P10,000) pesos.

There is no question that the LWUA

is a government-owned and controlled
corporation, created by virtue of
Presidential Decree No. 198. [12] As such,
our ruling in the Atienza case, A.M. No.
MTJ-92-706, which categorically prohibits
respondents appointment to any position
in any government-owned and controlled
corporation, clearly encompasses and
extends to LWUA positions.
In the instant case the respondent
does not deny the petitioners allegations.
[13]
Instead, he offers the existence of
Memorandum Circular No. 27, Series of
1993 (MC No. 27, s. 1993) to exculpate
himself from the charge against
him. However, it does not escape our
attention that the very Memorandum
Circular that respondent cites before this
Court
provides
that the
duties
enumerated
in
the
consultancy
contract are mainly advisory in nature.
[14]

Without belaboring the definition of

advisory,[15] it appears obvious to us that
the tasks and duties that respondent
performed pursuant to the consultancy
contract cannot, by any stretch of
imagination, be deemed merely advisory
in nature.
An adviser does not exercise
supervisory
powers
over
LWUA
employees nor does he issue written
instructions to them. An adviser is not
entitled to a seat in such vital LWUA
committees like PBAC and the BOT
Committee. Also, respondents continuous
receipt of honoraria for sitting as a

member of certain LWUA Committees,

particularly the BOT Committee, belies
his claim that he is a mere consultant for
the LWUA. The evidence on record
clearly shows that the LWUA Office Order
implementing National Compensation
Circular No. 75-95[16]refers to payments
of honoraria to officials/employees in
consideration of services rendered.
Most telling, in our view, is
respondents acceptance of his 1998
Productivity Incentive Bonus (PIB). The
Board of Trustees Resolution No. 26,
Series of 1999, of the LWUA, [17] which
governed the release of the PIB, limited
the entitlement to said bonus only to
officials and employees (permanent,
temporary, casual, or contractual) of
LWUA.
In sum, we find that for all intents and
purposes, respondent performed duties
and functions of a non-advisory nature,
which pertain to a contractual employee
of LWUA. As stated by petitioner in his
reply,[18] there is a difference between
a consultant hired on a contractual basis
(which is governed by CSC M.C. No. 27,
s. 1993) and a contractual employee
(whose appointment is governed, among
others, by the CSC Omnibus Rules on
Appointment and other Personnel
Actions). By performing duties and
functions, which clearly pertain to a
contractual employee, albeit in the guise
of an advisor or consultant, respondent
has transgressed both letter and spirit of
this Courts decree in Atienza.

The lawyers primary duty as

enunciated in the Attorneys Oath is to
uphold the Constitution, obey the laws of
the land, and promote respect for law and
legal processes.[19] That duty in its
irreducible minimum entails obedience to
the
legal
orders
of
the
courts. Respondents disobedience to this
Courts
order
prohibiting
his
reappointment
to
any
branch,
instrumentality, or agency of government,
including
government
owned
and
controlled corporations, cannot be
camouflaged by a legal consultancy or a
special
consultancy
contract. By
performing duties and functions of a
contractual employee of LWUA, by way
of a consultancy, and receiving
compensation and perquisites as such,
he displayed acts of open defiance of
the Courts authority, and a deliberate
rejection of his oath as an officer of the
court. It is also destructive of the
harmonious relations that should prevail
between Bench and Bar, a harmony
necessary for the proper administration of
justice. Such defiance not only erodes
respect for the Court but also corrodes
public confidence in the rule of law.
What
aggravates
respondents
offense is the fact that respondent is no
ordinary lawyer. Having served in the
judiciary for eight (8) years, he is very
well aware of the standards of moral
fitness for membership in the legal
profession. His propensity to try to get
away with an indiscretion becomes
apparent and inexcusable when he
entered into a legal consultancy contract

with the LWUA. Perhaps realizing its own

mistake, LWUA terminated said contract
with respondent, but then proceeded to
give him a special consultancy. This
travesty could not be long hidden from
public awareness, hence the instant
complaint for disbarment filed by
petitioner. Given
the
factual
circumstances found by Commission on
Bar Discipline, we have no hesitance in
accepting the recommendation of the
Board of Governors, Integrated Bar of the
Philippines, that respondent be fined and
suspended from the practice of law. The
Code of Professional Responsibility, Rule
1.01, provides that a lawyer shall not
engage in unlawful, dishonest, immoral or
deceitful conduct. For violating the Code
as well as transgressing his oath as an
officer of the court, his suspension for
one (1) year and a fine of ten thousand
(P10,000) pesos are in order.
WHEREFORE, respondent Atty.
Francisco Brillantes, Jr., is found liable
for having willfully violated a lawful
order of this Court in our decision of
March 29, 1995 rendered in A.M. No.
MTJ-92-706,
entitled Lupo
Almodiel
Atienza vs. Judge Francisco F. Brillantes,
Jr.He is hereby SUSPENDED from the
practice of law for one (1) year and
ordered to pay a FINE of Ten Thousand
(P10,000.00) Pesos, with a STERN
WARNING that a repetition of the same
or similar conduct shall be dealt with
more severely. Let a copy of this Decision
be furnished to the Bar Confidant and the
Integrated Bar of the Philippines and
spread on the personal records of

respondent as well as circulated to all

courts in the Philippines. This decision is
immediately executory.
SO ORDERED.

A.M. No. 1608 August 14, 1981

MAGDALENA T. ARCIGA complainant,
vs.SEGUNDINO
MANIWANG respondent.

D.

Magdalena T. Arciga in her complaint of

February 24, 1976 asked for the
disbarment of lawyer Segundino D.
Maniwang (admitted to the Bar in 1975 )
on the ground of grossly immoral conduct
because he refused to fulfill his promise
of marriage to her. Their illicit relationship
resulted in the birth on September 4,
1973 of their child, Michael Dino
Maniwang.
Magdalena
and
Segundino
got
acquainted sometime in October, 1970 at
Cebu City. Magdalena was then a
medical technology student in the Cebu
Institute of Medicine while Segundino
was a law student in the San Jose
Recoletos
College.
They
became
sweethearts but when Magdalena
refused to have a tryst with Segundino in
a motel in January, 1971, Segundino
stopped visiting her.
Their paths crossed again during a
Valentine's Day party in the following
month. They renewed their relationship.
After they had dinner one night in March,
1971 and finding themselves alone (like
Adam and Eve) in her boarding house
since the other boarders had gone on
vacation, they had sexual congress.

When Segundino asked Magdalena why

she had refused his earlier proposal to
have sexual intercourse with him, she
jokingly said that she was in love with
another man and that she had a child
with still another man. Segundino
remarked that even if that be the case, he
did not mind because he loved her very
much.
Thereafter, they had repeated acts of
cohabitation. Segundino started telling
his
acquaintances
that
he
and
Magdalena were secretly married.
In 1972 Segundino transferred his
residence to Padada, Davao del Sur. He
continued his law studies in Davao
City. .Magdalena remained in Cebu. He
sent to her letters and telegrams
professing his love for her (Exh. K to Z).
When Magdalena discovered in January,
1973 that she was pregnant, she and
Segundino went to her hometown, Ivisan,
Capiz, to apprise Magdalena's parents
that they were married although they
were not really so. Segundino convinced
Magdalena's father to have the church
wedding deferred until after he had
passed the bar examinations. He secured
his birth certificate preparatory to
applying for a marriage license.
Segundino continued sending letters to
Magdalena wherein he expressed his
love and concern for the baby in
Magdalena's womb. He reassured her
time and again that he would marry her
once he passed the bar examinations.

He was not present when Magdalena

gave birth to their child on September 4,
1973 in the Cebu Community Hospital.
He went to Cebu in December, 1973 for
the baptism of his child.
Segundino passed the bar examinations.
The results were released on April 25,
1975. Several days after his oath-taking,
which Magdalena also attended, he
stopped corresponding with Magdalena.
Fearing that there was something amiss,
Magdalena went to Davao in July, 1975
to contact her lover. Segundino told her
that they could not get married for lack of
money. She went back to Ivisan.
In December, 1975 she made another
trip to Davao but failed to see Segundino
who was then in Malaybalay, Bukidnon.
She followed him there only to be told
that their marriage could not take place
because he had married Erlinda Ang on
November 25, 1975. She was brokenhearted when she returned to Davao.
Segundino followed her there and
inflicted physical injuries upon her
because she had a confrontation with his
wife, Erlinda Ang. She reported the
assault to the commander of the Padada
police station and secured medical
treatment in a hospital (Exh. I and J).
Segundino admits in his answer that he
and Magdalena were lovers and that he
is the father of the child Michael. He also
admits that he repeatedly promised to
marry Magdalena and that he breached
that promise because of Magdalena's

shady past. She had allegedly been

accused in court of oral defamation and
had already an illegitimate child before
Michael was born.
The Solicitor General recommends the
dismissal of the case. In his opinion,
respondent's cohabitation with the
complainant and his reneging on his
promise of marriage do not warrant his
disbarment.
An applicant for admission to the bar
should have good moral character. He is
required to produce before this Court
satisfactory evidence of good moral
character and that no charges against
him, involving moral turpitude, have been
filed or are pending in any court.
If good moral character is a sine qua
non for admission to the bar, then the
continued possession of good moral
character is also a requisite for retaining
membership in the legal profession.
Membership in the bar may be
terminated when a lawyer ceases to have
good moral character (Royong vs.
Oblena, 117 Phil. 865).
A lawyer may be disbarred for grossly
immoral conduct, or by reason of his
conviction of a crime involving moral
turpitude". A member of the bar should
have moral integrity in addition to
professional probity.
It is difficult to state with precision and to
fix an inflexible standard as to what is
"grossly immoral conduct" or to specify

the moral delinquency and obliquity

which render a lawyer unworthy of
continuing as a member of the bar. The
rule implies that what appears to be
unconventional behavior to the straightlaced may not be the immoral conduct
that warrants disbarment.
Immoral conduct has been defined as
"that conduct which is willful, flagrant, or
shameless, and which shows a moral
indifference to the opinion of the good
and respectable members of the
community" (7 C.J.S. 959).
Where an unmarried female dwarf
possessing the intellect of a child became
pregnant by reason of intimacy with a
married lawyer who was the father of six
children, disbarment of the attorney on
the ground of immoral conduct was
justified (In re Hicks 20 Pac. 2nd 896).
There is an area where a lawyer's
conduct may not be inconsonance with
the canons of the moral code but he is
not subject to disciplinary action because
his misbehavior or deviation from the
path of rectitude is not glaringly
scandalous. It is in connection with a
lawyer's behavior to the opposite sex
where the question of immorality usually
arises. 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," will depend on the surrounding
circumstances.

This Court in a decision rendered in

1925, when old-fashioned morality still
prevailed, observed that "the legislator
well knows the frailty of the flesh and the
ease with which a man, whose sense of
dignity, honor and morality is not well
cultivated, falls into temptation when
alone with one of the fair sex toward
whom he feels himself attracted. An
occasion is so inducive to sin or crime
that the saying "A fair booty makes many
a thief" or "An open door may tempt a
saint" has become general." (People vs.
De la Cruz, 48 Phil. 533, 535).
Disbarment of a lawyer for grossly
immoral conduct is illustrated in the
following cases:
(1) Where lawyer Arturo P. Lopez
succeeded in having carnal knowledge of
Virginia C. Almirez, under promise of
marriage, which he refused to fulfill,
although they had already a marriage
license and despite the birth of a child in
consequence of their sexual intercourse;
he married another woman and during
Virginia's pregnancy, Lopez urged her to
take pills to hasten the flow of her
menstruation and he tried to convince her
to have an abortion to which she did not
agree. (Almirez vs. Lopez, Administrative
Case No. 481, February 28, 1969, 27
SCRA 169. See Sarmiento vs. Cui, 100
Phil. 1102).
(2) Where lawyer Francisco Agustin
made Anita Cabrera believe that they
were married before Leoncio V. Aglubat
in the City Hall of Manila, and, after such

fake marriage, they cohabited and she

later give birth to their child (Cabrera vs.
Agustin, 106 Phil. 256).
(3) Where lawyer Jesus B. Toledo
abandoned his lawful wife and cohabited
with another women who had borne him
a child (Toledo vs. Toledo, 117 Phil. 768.
As to disbarment for contracting a
bigamous marriage, see Villasanta vs.
Peralta, 101 Phil. 313).
(4) The conduct of Abelardo Simbol in
making a dupe of Concepcion Bolivar by
living on her bounty and allowing her to
spend for his schooling and other
personal necessities, while dangling
before her the mirage of a marriage,
marrying another girl as soon as he had
finished his studies, keeping his marriage
a secret while continuing to demand
money from the complainant, and trying
to sponge on her and persuade her to
resume their broken relationship after the
latter's discovery of his perfidy are
indicative of a character not worthy of a
member of the bar (Bolivar vs. Simbol,
123 Phil. 450).
(5) Where Flora Quingwa, a public school
teacher, who was engaged to lawyer
Armando Puno, was prevailed upon by
him to have sexual congress with him
inside a hotel by telling her that it was
alright to have sexual intercourse
because, anyway, they were going to get
married. She used to give Puno money
upon his request. After she became
pregnant and gave birth to a baby boy,
Puno refused to marry her. (Quingwa vs.

Puno, Administrative Case No. 389,

February 28, 1967, 19 SCRA 439).
(6) Where lawyer Anacleto Aspiras, a
married man, misrepresenting that he
was single and making a promise of
marriage, succeeded in having sexual
intercourse with. Josefina Mortel. Aspiras
faked a marriage between Josefina and
his own son Cesar. Aspiras wrote to
Josefina: "You are alone in my life till the
end of my years in this world. I will bring
you along with me before the altar of
matrimony." "Through thick and thin, for
better or for worse, in life or in death, my
Josephine you will always be the first,
middle and the last in my life." (Mortel vs.
Aspiras, 100 Phil. 586).
(7) Where lawyer Ariston Oblena, who
had been having adulterous relations for
fifteen years with Briccia Angeles, a
married woman separated from her
husband, seduced her eighteen-year-old
niece who became pregnant and begot a
child. (Royong vs. Oblena, 117 Phil. 865).
The instant case can easily be
differentiated from the foregoing cases.
This case is similar to the case of
Soberano vs. Villanueva, 116 Phil. 1206,
where lawyer Eugenio V. Villanueva had
sexual relations with Mercedes H.
Soberano before his admission to the bar
in 1954. They indulged in frequent sexual
intercourse. She wrote to him in 1950
and 1951 several letters making
reference to their trysts in hotels.

On letter in 1951 contain expressions of

such a highly sensual, tantalizing and
vulgar nature as to render them
unquotable and to impart the firm
conviction that, because of the close
intimacy between the complainant and
the respondent, she felt no restraint
whatsoever in writing to him with
impudicity.
According to the complainant, two
children were born as a consequence of
her long intimacy with the respondent. In
1955, she filed a complaint for
disbarment against Villanueva.
This Court found that respondent's
refusal to marry the complainant was not
so corrupt nor unprincipled as to warrant
disbarment. (See Montana vs. Ruado,
Administrative Case No. 507, February
24, 1975, 62 SCRA 382; Reyes vs.
Wong, Administrative Case No. 547,
January 29, 1975, 63 SCRA 667, Viojan
vs. Duran, 114 Phil. 322; Abaigar vs. Paz,
Administrative Case No. 997, September
10, 1979,93 SCRA 91).
Considering the facts of this case and the
aforecited precedents, the complaint for
disbarment against the respondent is
hereby dismissed.
SO ORDERED.

A.C. No. 6116

August 1, 2012

ENGR.
GILBERT
TUMBOKON, Complainant,
vs.ATTY.
MARIANO R. PEFIANCO, Respondent.
RESOLUTION
PERLAS-BERNABE, J.:
Before the Court is an administrative
complaint for disbarment filed by
complainant Engr. Gilbert Tumbokon
against respondent Atty. Mariano R.
Pefianco for grave dishonesty, gross
misconduct constituting deceit and
grossly immoral conduct.

In his Complaint,1 complainant narrated

that respondent undertook to give him
20% commission, later reduced to 10%,
of the attorney's fees the latter would
receive in representing Spouses Amable
and Rosalinda Yap (Sps. Yap), whom he
referred, in an action for partition of the
estate of the late Benjamin Yap (Civil
Case No. 4986 before the Regional Trial
Court of Aklan). Their agreement was
reflected in a letter2 dated August 11,
1995. However, respondent failed to pay
him
the
agreed
commission
notwithstanding receipt of attorney's fees
amounting to 17% of the total estate or
about P 40 million. Instead, he was
informed through a letter3 dated July 16,
1997 that Sps. Yap assumed to pay the
same after respondent had agreed to
reduce his attorney's fees from 25% to
17%. He then demanded the payment of
his
commission4 which
respondent
ignored.
Complainant
further
alleged
that
respondent has not lived up to the high
moral standards required of his
profession for having abandoned his
legal wife, Milagros Hilado, with whom he
has two children, and cohabited with Mae
FlorGalido, with whom he has four
children. He also accused respondent of
engaging
in
money-lending
business5 without
the
required
authorization
from
the
BangkoSentralngPilipinas.
In his defense, respondent explained that
he accepted Sps. Yap's case on a 25%
contingent fee basis, and advanced all

the expenses. He disputed the August 11,

1995 letter for being a forgery and
claimed that Sps. Yap assumed to pay
complainant's commission which he
clarified in his July 16, 1997 letter. He,
thus, prayed for the dismissal of the
complaint and for the corresponding
sanction against complainant's counsel,
Atty. Florencio B. Gonzales, for filing a
baseless complaint.6
In the Resolution7 dated February 16,
2004, the Court resolved to refer this
administrative case to the Integrated Bar
of the Philippines (IBP) for investigation,
report and recommendation. In his
Report
and
Recommendation8dated
October 10, 2008, the Investigating IBP
Commissioner
recommended
that
respondent be suspended for one (1)
year from the active practice of law, for
violation of the Lawyer's Oath, Rule 1.01,
Canon 1; Rule 7.03, Canon 7 and Rule
9.02, Canon 9 of the Code of
Professional Responsibility (Code). The
IBP Board of Governors adopted and
approved the same in its Resolution No.
XIX-2010-4539 dated August
28, 2010. Respondent moved for
reconsideration10 which was denied in
Resolution No. XIX-2011-141 dated
October 28, 2011.
After due consideration, We adopt the
findings and recommendation of the IBP
Board of Governors.
The practice of law is considered a
privilege bestowed by the State on those

who show that they possess and

continue
to
possess
the
legal
qualifications for the profession. As such,
lawyers are expected to maintain at all
times a high standard of legal proficiency,
morality, honesty, integrity and fair
dealing, and must perform their four-fold
duty to society, the legal profession, the
courts and their clients, in accordance
with the values and norms embodied in
the Code.11 Lawyers may, thus, be
disciplined for any conduct that is wanting
of the above standards whether in their
professional or in their private capacity.
In the present case, respondent's
defense that forgery had attended the
execution of the August 11, 1995 letter
was belied by his July 16, 1997 letter
admitting to have undertaken the
payment of complainant's commission
but passing on the responsibility to Sps.
Yap. Clearly, respondent has violated
Rule 9.02,12 Canon 9 of the Code which
prohibits a lawyer from dividing or
stipulating to divide a fee for legal
services with persons not licensed to
practice law, except in certain cases
which do not obtain in the case at bar.
Furthermore, respondent did not deny
the accusation that he abandoned his
legal family to cohabit with his mistress
with whom he begot four children
notwithstanding that his moral character
as well as his moral fitness to be retained
in the Roll of Attorneys has been
assailed. The settled rule is that betrayal
of the marital vow of fidelity or 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.13Consequently, We find no reason
to disturb the IBP's finding that
respondent
violated
the
Lawyer's
14
Oath and Rule 1.01, Canon 1 of the
Code which proscribes a lawyer from
engaging in "unlawful, dishonest, immoral
or deceitful conduct."
However, We find the charge of engaging
in illegal money lending not to have been
sufficiently
established.1wphi1 A
"business" requires some form of
investment and a sufficient number of
customers to whom its output can be sold
at profit on a consistent basis.15 The
lending of money to a single person
without showing that such service is
made available to other persons on a
consistent basis cannot be construed
asindicia that respondent is engaged in
the business of lending.
Nonetheless, while We rule that
respondent should be sanctioned for his
actions, We are minded that the power to
disbar should be exercised with great
caution and only in clear cases of
misconduct that seriously affect the
standing and character of the lawyer as
an officer of the court and as member of
the bar,16 or the misconduct borders on
the criminal, or committed under
scandalous circumstance,17 which do not
obtain
here.
Considering
the
circumstances of the case, We deem it
appropriate
that
respondent
be

suspended from the practice of law for a

period of one (1) year as recommended.
WHEREFORE,
respondent ATTY.
MARIANO
R.
PEFIANCO is
found GUILTY of violation of the Lawyers
Oath, Rule 1.01, Canon 1 of the Code of
Professional Responsibility and Rule
9.02, Canon 9 of the same Code
andSUSPENDED from
the
active
practice of law ONE (1) YEAR effective
upon notice hereof.
Let copies of this Resolution be entered
in the personal record of respondent as a
member of the Philippine Bar and
furnished the Office of the Bar Confidant,
the Integrated Bar of the Philippines and
the Office of the Court Administrator for
circulation to all courts in the country.
SO ORDERED.

A.M. No. 3249 November 29, 1989

SALVACION
CORDOVA, complainant,
vs.
ATTY.
LAURENCE
CORDOVA, respondent.

DELIZO
D.

RESOLUTION
PER CURIAM:
In an unsworn letter-complaint dated 14
April 1988 addressed to then Mr. Chief
Justice Claudio Teehankee, complainant
Salvacion Delizo charged her husband,
Atty. Laurence D. Cordova, with
immorality and acts unbecoming a
member of the Bar. The letter-complaint
was forwarded by the Court to the
Integrated Bar of the Philippines,
Commission
on
Bar
Discipline
("Commission"), for investigation, report
and recommendation.
The Commission, before acting on the
complaint, required complainant to
submit a verified complaint within ten (10)
days from notice. Complainant complied
and submitted to the Commission on 27
September 1988 a revised and verified
version of her long and detailed
complaint against her husband charging
him with immorality and acts unbecoming
a member of the Bar.

In an Order of the Commission dated 1

December
1988,
respondent
was
declared in default for failure to file an
answer to the complaint within fifteen (15)
days from notice. The same Order
required complainant to submit before
the Commission her evidence ex parte,
on 16 December 1988. Upon the
telegraphic request of complainant for the
resetting of the 16 December 1988
hearing, the Commission scheduled
another hearing on 25 January 1989. The
hearing scheduled for 25 January 1989
was rescheduled two (2) more times-first,
for 25 February 1989 and second, for 10
and 11 April 1989. The hearings never
took place as complainant failed to
appear. Respondent Cordova never
moved to set aside the order of default,
even though notices of the hearings
scheduled were sent to him.

submitted to this Court its report

reprimanding respondent for his acts,
admonishing him that any further acts of
immorality in the future will be dealt with
more severely, and ordering him to
support his legitimate family as a
responsible parent should.
The findings of the IBP Board of
Governors may be summed up as
follows:

In a telegraphic message dated 6 April

1989,
complainant
informed
the
Commission that she and her husband
had already "reconciled". In an order
dated 17 April 1989, the Commission
required the parties (respondent and
complainant) to appear before it for
confirmation and explanation of the
telegraphic message and required them
to file a formal motion to dismiss the
complaint within fifteen (15) days from
notice. Neither party responded and
nothing was heard from either party since
then.

Complainant and respondent Cordova

were married on 6 June 1976 and out of
this marriage, two (2) children were born.
In 1985, the couple lived somewhere in
Quirino Province. In that year, respondent
Cordova left his family as well as his job
as Branch Clerk of Court of the Regional
Trial
Court,
Cabarroguis,
Quirino
Province, and went to Mangagoy, Bislig,
Surigao del Sur with one Fely G.
Holgado. Fely G. Holgado was herself
married and left her own husband and
children to stay with respondent.
Respondent Cordova and Fely G.
Holgado lived together in Bislig as
husband and wife, with respondent
Cordova introducing Fely to the public as
his wife, and Fely Holgado using the
name
Fely
Cordova.
Respondent
Cordova gave Fely Holgado funds with
which to establish a sari-sari store in the
public market at Bislig, while at the same
time failing to support his legitimate
family.

Complainant having failed to submit her

evidence ex
parte before
the
Commission, the IBP Board of Governors

On 6 April 1986, respondent Cordova

and his complainant wife had an
apparent
reconciliation.
Respondent

promised that he would separate from

Fely Holgado and brought his legitimate
family to Bislig, Surigao del Sur.
Respondent would, however, frequently
come home from beerhouses or
cabarets, drunk, and continued to neglect
the support of his legitimate family. In
February 1987, complainant found, upon
returning from a trip to Manila
necessitated by hospitalization of her
daughter Loraine, that respondent
Cordova was no longer living with her
(complainant's) children in their conjugal
home; that respondent Cordova was
living with another mistress, one Luisita
Magallanes, and had taken his younger
daughter Melanie along with him.
Respondent and his new mistress hid
Melanie from the complinant, compelling
complainant to go to court and to take
back her daughter byhabeas corpus. The
Regional Trial Court, Bislig, gave her
custody of their children.
Notwithstanding respondent's promises
to reform, he continued to live with Luisita
Magallanes as her husband and
continued to fail to give support to his
legitimate family.
Finally the Commission received a
telegram message apparently from
complainant, stating that complainant
and respondent had been reconciled with
each other.
After a review of the record, we agree
with the findings of fact of the IBP Board.
We also agree that the most recent
reconciliation between complainant and

respondent, assuming the same to be

real, does not excuse and wipe away the
misconduct and immoral behavior of the
respondent carried out in public, and
necessarily adversely reflecting upon him
as a member of the Bar and upon the
Philippine Bar itself. An applicant for
admission to membership in the bar is
required to show that he is possessed of
good moral character. That requirement
is not exhausted and dispensed with
upon admission to membership of the
bar. On the contrary, that requirement
persists as a continuing condition for
membership in the Bar in good standing.
In Mortel v. Aspiras, 1 this Court, following
the rule in the United States, held that
"the continued possession ... of a good
moral character is a requisite condition
for the rightful continuance in the practice
of the law ... and its loss requires
suspension or disbarment, even though
the statutes do not specify that as a
ground for disbarment. " 2 It is important
to note that the lack of moral character
that we here refer to as essential is not
limited to good moral character relating to
the discharge of the duties and
responsibilities of an attorney at law. The
moral delinquency that affects the fitness
of a member of the bar to continue as
such includes conduct that outrages the
generally accepted moral standards of
the community, conduct for instance,
which makes "a mockery of the inviolable
social institution or marriage." 3 In Mortel,
the respondent being already married,
wooed and won the heart of a single, 21year old teacher who subsequently

cohabited with him and bore him a son.

Because
respondent's
conduct
in Mortel was
particularly
morally
repulsive, involving the marrying of his
mistress to his own son and thereafter
cohabiting with the wife of his own son
after the marriage he had himself
arranged, respondent was disbarred.
In Royong v. Oblena, 4 the respondent
was declared unfit to continue as a
member of the bar by reason of his
immoral
conduct
and
accordingly
disbarred. He was found to have
engaged in sexual relations with the
complainant who consequently bore him
a son; and to have maintained for a
number of years
an
adulterous
relationship with another woman.
In the instant case, respondent Cordova
maintained for about two (2) years an
adulterous relationship with a married
woman not his wife, in full view of the
general public, to the humiliation and
detriment of his legitimate family which
he, rubbing salt on the wound, failed or
refused to support. After a brief period of
"reform" respondent took up again with
another woman not his wife, cohabiting
with her and bringing along his young
daughter to live with them. Clearly,
respondent flaunted his disregard of the
fundamental institution of marriage and
its elementary obligations before his own
daughter and the community at large.
WHEREFORE, the Court Resolved to
SUSPEND respondent from the practice
of law indefinitely and until farther orders

from this Court. The Court will consider

lifting his suspension when respondent
Cordova submits proof satisfactory to the
Commission and this Court that he has
and continues to provide for the support
of his legitimate family and that he has
given up the immoral course of conduct
that he has clung to.
Fernan, C.J., Narvasa, Gutierrez, Jr.,
Cruz, Paras, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento,

EN BANC
RE: SC DECISION DATED A.C.
7940
MAY 20, 2008 IN G.R. NO. 161455
UNDER RULE 139-B OF THE
RULES OF COURT, Present:
ATTY. RODOLFO D. PACTOLIN,
Respondent. Promulgated:

No.

April 24, 2012

x
-------------------------------------------------------------------------------------- x
DECISION
PER CURIAM:
This case resolves the question of
whether or not the conviction of a lawyer
for a crime involving moral turpitude
constitutes sufficient ground for his
disbarment from the practice of law under
Section 27, Rule 138 of the Rules of
Court.
The Facts and the Case
In May 1996, Elmer Abastillas, the
playing
coach
of
the Ozamis City volleyball team, wrote
Mayor
Benjamin
A.
Fuentes
ofOzamis City,
requesting
financial

assistance for his team. Mayor Fuentes

approved the request and sent Abastillas
letter to the City Treasurer for
processing. Mayor
Fuentes
also
designated Mario R. Ferraren, a city
council member, as Officer-in-Charge
(OIC) of the city while Mayor Fuentes
was away. Abastillas eventually got
the P10,000.00
assistance
for his
volleyball team.
Meanwhile, respondent lawyer,
Atty.
Rodolfo
D.
Pactolin,
then
a Sangguniang Panlalawigan member of
Misamis Occidental, got a photocopy of
Abastillas letter and, using it, filed on
June 24, 1996 a complaint with the Office
of the Deputy Ombudsman-Mindanao
against Ferraren for alleged illegal
disbursement of P10,000.00 in public
funds. Atty. Pactolin attached to the
complaint a copy of what he claimed was
a falsified letter of Abastillas, which
showed that it was Ferraren, not Mayor
Fuentes,
who
approved
the
disbursement.
Aggrieved, Ferraren filed with the
Sandiganbayan in Criminal Case 25665
a complaint against Atty. Pactolin for
falsification of public document. [1] On
November 12, 2003 the Sandiganbayan
found Atty. Pactolin guilty of falsification
under Article 172 and sentenced him to
the
indeterminate
penalty
of
imprisonment of 2 years and 4 months
of prision correccional as minimum to 4

years, 9 months and 10 days

of prision correccional as maximum, to
suffer all the accessory penalties
of prision correccional, and to pay a fine
of P5,000.00,
with
subsidiary
imprisonment in case of insolvency.
Atty. Pactolin appealed to this
Court but on May 20, 2008 it affirmed his
conviction.[2] Since the Court treated the
matter as an administrative complaint
against him as well under Rule 139-B of
the Rules of Court, it referred the case to
the Integrated Bar of the Philippines (IBP)
for appropriate action.
Because complainant Ferraren
neither appeared nor submitted any
pleading during the administrative
proceedings before the IBP Commission
on Bar Discipline, on October 9, 2010 the
IBP Board of Governors passed
Resolution XIX-2010-632, adopting and
approving
the
Investigating
Commissioners
Report
and
Recommendation that the case against
Atty.
Pactolin
be
dismissed
for
insufficiency of evidence.
The Issue Presented
The only issue presented in this
case is whether or not Atty. Pactolin
should be disbarred after conviction by
final judgment of the crime of falsification.
The Courts Ruling

In his pleadings before the

Commission on Bar Discipline, Atty.
Pactolin reiterated the defenses he raised
before the Sandiganbayan and this Court
in the falsification case. He claims that
the Court glossed over the facts, that its
decision and referral to the IBP was
factually infirmed[3] and contained factual
exaggerations and patently erroneous
observation,[4] and was too adventurous.
[5]

To recapitulate, this Court upheld

the finding of the Sandiganbayan that the
copy of Abastillas letter which Atty.
Pactolin attached to his complaint was
spurious. Given the clear absence of a
satisfactory explanation regarding his
possession and use of the falsified
Abastillas letter, this Court held that the
Sandiganbayan did not err in concluding
that it was Atty. Pactolin who falsified the
letter. This Court relied on the settled rule
that in the absence of satisfactory
explanation, one found in possession of
and who used a forged document is the
forger and therefore guilty of falsification.
[6]

This Courts decision in said

falsification case had long become final
and executory. In In Re: Disbarment of
Rodolfo Pajo,[7]the Court held that in
disbarment cases, it is no longer called
upon to review the judgment of conviction
which has become final.The review of the

conviction no longer rests upon this

Court.
Under Section 27, Rule 138 of the
Rules of Court, a lawyer may be removed
or suspended on the following grounds:
(1) deceit; (2) malpractice; (3) gross
misconduct in office; (4) grossly immoral
conduct; (5) conviction of a crime
involving moral turpitude; (6) violation of
the lawyers oath; (7) willful disobedience
of any lawful order of a superior court;
and (8) corruptly or willfully appearing as
a lawyer for a party to a case without
authority so to do.
This Court has ruled that the crime
of falsification of public document is
contrary to justice, honesty, and good
morals and, therefore, involves moral
turpitude.[8] Moral
turpitude
includes
everything which is done contrary to
justice, honesty, modesty, or good
morals. It involves an act of baseness,
vileness, or depravity in the private duties
which a man owes his fellowmen, or to
society in general, contrary to the
accepted and customary rule of right and
duty between man and woman, or
conduct contrary to justice, honesty,
modesty, or good morals.[9]
Having said that, what penalty
should be imposed then on Atty.
Pactolin?

As a rule, this Court exercises the

power to disbar with great caution. Being
the most severe form of disciplinary
sanction, it is imposed only for 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.[10] Yet this Court has also consistently
pronounced that disbarment is the
appropriate penalty for conviction by final
judgment for a crime involving moral
turpitude.[11]
Here, Atty. Pactolins disbarment is
warranted. The
Sandiganbayan
has
confirmed that although his culpability for
falsification
has
been
indubitably
established, he has not yet served his
sentence. His conduct only exacerbates
his offense and shows that he falls short
of the exacting standards expected of
him as a vanguard of the legal
profession.[12]
This Court once again reminds all
lawyers that they, of all classes and
professions, are most sacredly bound to
uphold the law.[13] The privilege to
practice law is bestowed only upon
individuals
who
are
competent
intellectually, academically and, equally
important, morally. As such, lawyers must
at all times conduct themselves,
especially in their dealings with their
clients and the public at large, with

honesty and integrity in a manner beyond

reproach.[14]
WHEREFORE, Atty. Rodolfo D.
Pactolin is hereby DISBARRED and his
name REMOVED from the Rolls of
Attorney.Let a copy of this decision be
attached to his personal records and
furnished the Office of the Bar Confidant,
Integrated Bar of thePhilippines and the
Office of the Court Administrator for
circulation to all courts in the country.
SO ORDERED.

April 7, 1922
In Re MARCELINO LONTOK
MALCOLM, J.:
The Attorney-General asks that an order
issue for the removal of Marcelino Lontok
from his office of lawyer in the Philippine
Islands, because of having been
convicted of the crime of bigamy. The
respondent lawyer, in answer, prays that
the charges be dismissed, and bases his
plea principally on a pardon issued to him
by former Governor-General Harrison.
Marcelino Lontok was convicted by the
Court of First Instance of Zambales of the
crime of bigamy. This judgement was
affirmed on appeal to the Supreme Court,
while a further attempt to get the case
before the United States Supreme Court
was unsuccessful. On February 9, 1921,
a pardon was issued by the GovernorGeneral of the following tenor:
By virtue of the authority conferred
upon me by the Philippine Organic
Act on August 29, 1916, the
sentence in the case of Marcelino
Lontok convicted by the Court of
First Instance of Zambales of
bigamy
and
sentenced
on
February
27,
1918,
to
imprisonment for eight years, to
suffer the accessory penalties
prescribed by law, and to pay the
costs of the proceedings, which

sentence was, on September 8,

1919, confirmed by the Supreme
Court is hereby remitted, on
condition that he shall not again be
guilty of any misconduct.
The particular provision of the Code of
Civil Procedure, upon which the AttorneyGeneral relies in asking for the
disbarment of Attorney Lontok, provides
that a member of the bar may be
removed or suspended form his office of
lawyer by the Supreme Court "by reason
of his conviction of a crime involving
moral turpitude." (Sec. 21) That
conviction of the crime of bigamy involves
moral turpitude, within the meaning of the
law, cannot be doubted. The debatable
question relates to the effect of the
pardon by the Governor-General. On the
one hand, it is contended by the
Government that while the pardon
removes the legal infamy of the crime, it
cannot wash out the moral stain; on the
other hand, it is contended by the
respondent that the pardon reaches the
offense for which he was convicted and
blots it out so that he may not be looked
upon as guilty of it.
The cases are not altogether clear as to
just what effect a pardon has on the right
of a court of disbar an attorney for
conviction of a felony. On close
examination, however, it will be found
that the apparent conflict in the decisions
is more apparent than real, and arises
from differences in the nature of the
charges on which the proceedings to
disbar are based. Where preceedings to

strike an attorney's name from the rolls

are founded on, and depend alone, on a
statute making the fact of a conviction for
a felony ground for disbarment, it has
been held that a pardon operates to wipe
out the conviction and is a bar to any
proceeding for the disbarment of the
attorney after the pardon has been
granted. (In re Emmons [1915], 29 Cal.
App., 121; Scott vs. State [1894], 6 Tex.
Civ. App., 343). But where proceedings to
disbar an attorney are founded on the
professional misconduct involved in a
transaction which has culminated in a
conviction of felony, it has been held that
while the effect of the pardon is to relieve
him of the penal consequences of his act,
it does not operate as a bar to the
disbarment proceedings, inasmuch as
the criminal acts may nevertheless
constitute proof that the attorney does not
possess a good moral character and is
not a fit or proper person to retain his
license to practice law. (People vs.
Burton [1907], 39 Colo., 164; People vs.
George [1900],186 Ill., 122; Nelson vs.
Com. [1908],128 Ky., 779; Case of In re
[1881],86 N.Y., 563.)
The celebrated case of Ex parte Garland
[1866], 4 Wall., 380, is directly in point.
The petitioner in this case applied for a
license to practice law in the United
States courts, without first taking an oath
to the effect that he had never voluntarily
given aid to any government hostile to
the United States, as required by statute.
The petitioner, it seems, had been a
member of the Conferate Congress,
during the secession of the South, but

had been pardons by the President of the

United States. It was held, buy a divided
court, that to exclude the petitioner from
the practice of law for the offense named
would be to enforce a punishment for the
offense, notwithstanding the pardon
which the court had no right to do; and
the opinion of the court, in part, said:
A pardon reaches both the
punishment prescribed for the
offense and the guilt of the
offender; and when the pardon is
full, it releases the punishment and
blots out of existence the guilt, so
that in the eye of the law the
offender is an innocent as if he
had never committed the offense.
If granted before conviction, it
prevents any of the penalties and
disabilities,
consequent
upon
conviction, from attaching; if
granted
after
conviction,
it
removes
the
penalties
and
disabilities, and restores him to all
his civil rights; it makes him, as it
were, a new man, and gives him a
new credit and capacity.
There is only this limitation to its
operation; it does not restore
offices forfeited, or property or
interest vested in others in
consequence of the conviction and
judgement.
Although much which is contained in the
opinion of the four dissenting justices, in
the Garland case, appeals powerfully to
the minds of the court, we feel ourselves

under obligation to follow the rule laid

down by the majority decision of the
higher court. We do this with the more
grace when we recall that according to
the article 130 of the Penal Code, one of
the different ways by which criminal
liability is extinguished is by pardon. We
must also remember that the motion for
disbarment is based solely on the
judgement of conviction for a crime of
which the respondent has been
pardoned, We must also remember that
the motion for disbarment is based solely
on the judgment of conviction for crime of
which the respondent has been
pardoned, and that the language of the
pardon is not such as to amount to a
conditional pardon similar in nature to a
parole. It may be mentioned however, in
this connection, that if Marcelino Lontok
should again be guilty of any misconduct,
the condition of his pardon would be
violated, and he would then become
subject to disbarment.
It results, therefore, that the petition of
the Attorney-General cannot be granted,
and that the proceedings must be
dismissed. Costs shall be taxed as
provided by section 24 of the Code of
Civil Procedure. So ordered.

A.M. No. L-363

July 31, 1962

IN RE: DISBARMENT PROCEEDINGS

AGAINST
ATTY.
DIOSDADO
Q.
GUTIERREZ, respondent.
Victoriano A. Savellano for complaint.
Nestor M. Andrada for respondent.
MAKALINTAL, J.:
Respondent Diosdado Q. Gutierrez is a
member of the Philippine Bar, admitted to
it on October 5, 1945. In criminal case
No. R-793 of the Court of First Instance
of Oriental Mindoro he was convicted of
the murder of Filemon Samaco, former
municipal mayor of Calapan, and
together with his co-conspirators was
sentenced to the penalty of death. Upon
review by this Court the judgment of
conviction was affirmed on June 30, 1956
(G.R. No. L-17101), but the penalty was
changed to reclusion perpetua. After
serving a portion of the sentence
respondent was granted a conditional
pardon by the President on August 19,
1958. The unexecuted portion of the
prison term was remitted "on condition
that he shall not again violate any of the
penal laws of the Philippines."
On October 9, 1958 the widow of the
deceased Filemon Samaco, victim in the
murder case, filed a verified complaint
before this Court praying that respondent
be removed from the roll of lawyers

pursuant to Rule 127, section 5.

Respondent presented his answer in due
time, admitting the facts alleged by
complainant
regarding
pardon
in
defense, on the authority of the decision
of this Court in the case of In re Lontok,
43 Phil. 293.
Under section 5 of Rule 127, a member
of the bar may be removed suspended
from his office as attorney by the
Supreme Court by reason of his
conviction of a crime insolving moral
turpitude. Murder is, without doubt, such
a crime. The term "moral turpitude"
includes everything which is done
contrary to justice, honesty, modesty or
good morals. In re Carlos S. Basa, 41
Phil. 275. As used in disbarment statutes,
it means an act of baseness, vileness, or
depravity in the private and social duties
which a man owes to his fellowmen or to
society in general, contrary to the
accepted rule of right and duty between
man and man. State ex rel. Conklin v.
Buckingham, 84 P. 2nd 49; 5 Am. Jur.
Sec. 279. pp. 428-429.
The only question to be resolved is
whether or not the conditional pardon
extended to respondent places him
beyond the scope of the rule on
disbarment aforecited. Reliance is placed
by him squarely on the Lontok case. The
respondent therein was convicted of
bigamy and thereafter pardoned by the
Governor-General. In a subsequent
viction, this Court decided in his favor
and held: "When proceedings to strike an
attorney's name from the rolls the fact of

a conviction for a felony ground for

disbarment, it has been held that a
pardon operates to wipe out the
conviction and is a bar to any proceeding
for the disbarment of the attorney after
the pardon has been granted."
It is our view that the ruling does not
govern the question now before us. In
making it the Court proceeded on the
assumption that the pardon granted to
respondent Lontok was absolute. This is
implicit in the ratio decidendi of the case,
particularly in the citations to support it,
namely. In Re Emmons, 29 Cal. App.
121; Scott vs. State, 6 Tex. Civ. App. 343;
and Ex parte Garland, 4 Wall, 380. Thus
in Scott vs. State the court said:
We are of opinion that after
received an unconditional pardon
the record of the felony conviction
could no longer be used as a basis
for the proceeding provided for in
article 226. The record, when
offered in evidence, was met with
an unconditional pardon, and
could not, therefore, properly be
said to afford "proof of a conviction
of any felony." Having been thus
cancelled, all its force as a felony
conviction was taken away. A
pardon falling short of this would
not be a pardon, according to the
judicial construction which that act
of
executive
grace
was
received. Ex
parte Garland, 4
Wall, 344; Knote v. U.S., 95 U.S.
149, and cases there cited; Young
v. Young, 61 Tex. 191.

And the portion of the decision in Ex

parte Garland quoted with approval in the
Lontok case is as follows:
A pardon reaches both the
punishment prescribed for the
offense and the guilt of the
offender; and when the pardon is
full, it releases the punishment and
blots out the existence of guilt, so
that in the eye of the law the
offender is as innocent as if he
had never committed the offense.
It granted before conviction, it
prevents any of the penalties and
disabilities,
consequent
upon
conviction, from attaching; if
granted
after
conviction,
it
removes
the
penalties
and
disabilities, and restores him to all
his civil rights it makes him, as it
were, a new man, and gives him a
new credit and capacity.
The pardon granted to respondent here
is not absolute but conditional, and
merely remitted the unexecuted portion
of his term. It does not reach the offense
itself, unlike that in Ex parte Garland,
which was "a full pardon and amnesty for
all offense by him committed in
connection with rebellion (civil war)
against government of the United
States."
The foregoing considerations rendered In
re Lontok are inapplicable here.
Respondent Gutierrez must be judged
upon the fact of his conviction for murder
without regard to the pardon he invokes

in defense. The crime was qualified by

treachery and aggravated by its having
been committed in hand, by taking
advantage of his official position
(respondent being municipal mayor at the
time) and with the use of motor vehicle.
People
vs.
Diosdado
Gutierrez, supra. The degree of moral
turpitude involved is such as to justify his
being purged from the profession.
The practice of law is a privilege
accorded only to those who measure up
to certain rigid standards of mental and
moral fitness. For the admission of a
candidate to the bar the Rules of Court
not only prescribe a test of academic
preparation but require satisfactory
testimonials of good moral character.
These standards are neither dispensed
with nor lowered after admission: the
lawyer must continue to adhere to them
or else incur the risk of suspension or
removal. As stated in Ex parte Wall, 107
U.S. 263, 27 Law ed., 552, 556: "Of all
classes and professions, the lawyer is
most sacredly bound to uphold the laws.
He is their sworn servant; and for him, of
all men in the world, to repudiate and
override the laws, to trample them under
foot and to ignore the very bonds of
society, argues recreancy to his position
and office and sets a pernicious example
to the insubordinate and dangerous
elements of the body politic.
WHEREFORE, pursuant to Rule 127,
Section 5, and considering the nature of
the crime for which respondent Diosdado
Q. Gutierrez has been convicted, he is

ordered disbarred and his name stricken

from the roll of lawyers.
Bengzon, C.J., Labrador, Concepcion,
Barrera, Paredes, Dizon and Regala, JJ.,
concur.

thereof, petitioner commenced service of

the sentence.
A.M. No. 439 September 30, 1982
IN RE: QUINCIANO D. VAILOCES
ESCOLIN, J.:
This is a petition filed by Quinciano D.
Vailoces for readmission to the practice
of law and the inclusion of his name in
the roll of attorneys.
The records disclose that the Court of
First Instance of Negros Oriental in a
decision promulgated on September 30,
1955 found petitioner guilty of falsification
of public document, penalized under
Article 117 of the Revised Penal Code,
and imposed on him an indeterminate
sentence ranging from 2 years, 4 months
and 1 day of prision mayor, as minimum,
to 8 years and 1 day of prision mayor, as
maximum, with the accessory penalties
to the law, plus fine and costs. In its
decision the court found that petitioner,
as a member of the bar and in his
capacity as a notary public, aknowledged
the execution of a document purporting
to be the last will and testament of one
Tarcila Visitacion de Jesus. Presented for
probate before the Court of First Instance
of Negros Oriental, the genuineness of
the document was impugned by the
forced heirs of the alleged testatrix, and
the court, finding that the document was
a forgery, denied probate to the will.
On appeal, the Court of Appeals affirmed
the verdict of conviction; and upon finality

Thereafter, Ledesma de Jesus-Paras,

complainant in the criminal case,
instituted before this Court disbarment
proceedings against petitioner. The same
culminated in his disbarment on April 12,
1961. 1
On December 27, 1967, the President of
the
Philippines
granted
petitioner
"absolute and unconditional pardon" and
restored him "to full civil and political
rights. 2
Since August 23, 1968, petitioner had
repeatedly sought readmission to the
practice of law, the first of which was
denied by this Court in a minute
resolution dated August 30, 1968.
On February 27, 1970, petitioner
reiterated his plea, but consideration
thereof was deferred "until after the
integration of the bar has been
effected." 3
On December 12, 1977, he filed another
petition, attaching thereto copies, among
others, of the following documents, to wit:
the resolution of the Negros Oriental Bar
Association signed by 78 members
thereof,
indorsing
his
plea
for
reinstatement 4 ; the certificate of the
mayor of the municipality of Bindoy,
Negros Oriental, where petitioner has
been residing, to the effect that the latter
"is a person of exemplary moral
character, a peace-loving and law-abiding

citizen 5 a certification of Governor

William B. Villegas of Negros Oriental,
attesting to the fact that since the grant of
absolute pardon to petitioner, "he has
comported himself as a morally straight
and respectable citizen and that he has
been active and has cooperated in civic
and social undertakings, sincere and
honest in his desire to lead a decent and
dignified life" 6 ; the certification of Dean
Eduardo G. Flores of the College of Law,
Siliman
University,
vouching
to
petitioner's "honest, upright and moral life
... and because of his conduct he has
earned the sympathy of the people of the
community and regained the confidence
of the people and of his other
associates: 7 the statement of Atty.
Alexander G. Amor, former president of
the Negros Oriental Chapter of the
Integrated Bar of the Philippines,
certifying "that Mr. Quinciano D.
Vailoces ... is a person of good moral
character, whose integrity is beyond
question" 8 ;
and
the
clearance
certificates issued by Judge Romeo R.
Solis of the City Court of Dumaguete,
Provincial Fiscal Andrew S. Namukatkat
of Negros Oriental, and City Fiscal Pablo
E. Cabahug of Dumaguete City, to the
effect that petitioner "is a person of good
moral character" and that since his
release from the national penitentiary he
"has never been accused or convicted of
any crime involving moral turpitude." 9
When asked to comment, the Integrated
Bar of the Philippines, through its then
president, Atty. Marcelo D. Fernan,

favorably indorsed petitioner's request for

reinstatement.

in the roll of
attorneys; and

On February 13, 1978, Ledesma de

Jesus-Paras, complainant in the original
disbarment
proceedings,
filed
an
opposition
to
the
petitions
for
reinstatement; and this was followed by a
telegram of Nicanor Vailoces, barangay
captain of Domolog, Bindoy, Negros,
Oriental, addressed to his Excellency,
President Ferdinand E. Marcos, and
referred to this Court, opposing
petitioner's readmission to the bar "on
grounds of his non-reformation, immoral
conduct and pretensions of being a
licensed lawyer."

(2)
The
telegram
dated
February 16,
1978
of
Nicanor
Vailoces,
Barangay
Captain
of
Domolog,
Bindoy,
Negros
Oriental,
addressed to
his Excellency
Ferdinand E.
Marcos,
requesting the
Office of the
President to
oppose
the
petition
of
Quinciano
Vailoces
for
reinstatement
in the Roll of
Attorneys on
grounds
stated therein.

Anent these oppositions, the Integrated

Bar of the Philippines, through Atty.
Fernan, made the following observations:
By resolution of the Court
En Banc dated August 24,
1978, the following matters
have been referred to the
Integrated Bar for comment:
(1)
The
opposition of
complainant
Ledesma de
Jesus-Paras
to
respondent's
petition
and
supplementar
y petition for
reinstatement

It may be recalled that on January

17, 1978, the Board of Governors
of the Integrated Bar transmitted to
the Honorable Supreme Court for
its favorable consideration the
above
stated
petition
for
reinstatement.

Subsequent to its being served

with a copy of the resolution of the
Supreme Court, the Integrated Bar
received a petition dated February
14, 1978 signed by 'the people of
the
Municipality
of
Bindoy,
Province of Negros Oriental'
vehemently
opposing
the
reinstatement of Mr. Vailoces in
the Roll of Attorneys. On October
5, 1978 the President of the
Integrated Bar wrote to Mr.
Vailoces asking him to comment
on the above mentioned petitions
and telegram.
This Office is now in receipt of Mr.
Vailoces'
comment
dated
November 3, 1978, which is being
forwarded
herewith
to
the
Honorable
Supreme
Court
together with other pertinent
papers.
It is believed that Mr. Vailoces'
comment is a satisfactory answer
to the adverse allegations and
charges which have been referred
to him. The charges of immorality
(publicly maintaining a querida)
and
gambling
are
general
statements devoid of particular
allegations of fact and may well be
disregarded. Then, too, the
Municipal Mayor of Bindoy, Negros
Oriental - namely, Mr. Jesus A.
Mana-ay - who tops the list of
persons who have signed the
February
14,
1978
petition
vehemently
opposing
the

reinstatement of Mr. Vailoces,

appears to be the very same
official who on October 25, 1977
issued a Certification to the effect
that Mr. Vailoces 'is personally
known to me as a person of
exemplary character, a peace
loving and law abiding citizen' and
that 'he is cooperative in all our
civic and social activities and that
he is one of our respectable
citizens in our community.' That
this official should now sign a
petition containing statements
exactly opposite in thrust and
tenor is very intriguing, to say the
least, and it is not altogether
difficult to believe Mr. Vailoces'
imputations of politics in the
conduct of Mayor Mana-ay.
As for the opposition of Mrs.
Ledesma de Jesus-Paras, the
alleged absence of remorse on the
part of Mr. Vailoces, and his
alleged belligerence and display of
open defiance and hostility, etc.
are matters so subjective in
character
that
her
general
allegations and charges in this
regard
cannot
be
properly
considered. It is significant that Mr.
Vailoces in his comment states: "If
she
is
indeed
that
much
desperately so in need of cash
assistance, considering really that
she is an old woman being
recently widowed the second time,
for her satisfaction and as a
gesture of goodwill, I am willing to

assist her but only with a modest

amount because I am only a small
farmer with still three college
students to support."
Regarding the telegram dated
February 16, 1978 of one Nicanor
Vailoces stating as grounds for
denial of Mr. Quinciano D.
Vailoces' petition for reinstatement
the alleged 'grounds of nonreformation, immoral conduct and
pretensions of being a licensed
lawyer by soliciting cases,' there is
such a lack of specificity and
particularity in such statement of
grounds that one is at a loss as to
how a person in the place of Mr.
Quinciano D. Vailoces could
properly defend himself against
such charges.
Thus, the Integrated Bar of the
Philippines reaffirmed its indorsement of
petitioner's "reinstatement in the rolls of
attorneys."
This Court likewise referred the
oppositions interposed by Mrs. Ledesma
de Jesus-Paras and Nicanor Vailoces to
the Solicitor General for investigation and
recommendation; and on August 4, 1982,
the
latter,
after
conducting
an
investigation, submitted his report,
recommending that "Quinciano D.
Vailoces be reinstated in the roll of
attorneys upon taking his oath anew of
the corresponding oath of office."

The Court sustains the conclusion of the

Solicitor General that petitioner has
sufficiently proven himself fit to be
readmitted to the practice of law. True it is
that the plenary pardon extended to him
by the President does not of itself warrant
his reinstatement.
Evidence
of
reformation
is
required before applicant is
entitled
to
reinstatement,
notwithstanding the attorney has
received a pardon following his
conviction, and the requirements
of reinstatement had been held to
be the same as for original
admission to the bar, except that
the court may require a greater
degree of proof than in an original
evidence [7 C.J.S. Attorney &
Client, Sept. 41, p. 815]
The decisive question on an
application for reinstatement is
whether applicant is 'of good moral
character' in the sense in which
that phrase is used when applied
to attorneys-at-law and is a fit and
proper person to be entrusted with
the privileges of the office of an
attorney ... [7 C.J.S. Attorney &
Client, Sept. 41, p. 816].
Petitioner's conduct after disbarment can
stand searching scrutiny. He has
regained the respect and confidence of
his fellow attorneys as well as of the
citizens of his community. The favorable
indorsements of both the Integrated Bar
of the Philippines and its Negros Oriental

Chapter, the testimonials expressed in

his behalf by the provincial governor of
Negros Oriental as well as the municipal
and barrio officials of Bindoy, Negros
Oriental, his active participation in civic
and social undertakings in the community
attest to his moral reform and
rehabilitation
and
justify
his
reinstatement. Petitioner, now 69 years of
age, has reached the twilight of his life.
He has been barred from the practice of
his profession for a period of 21 years.
Adequate punishment has been exacted.
Chastened by his painful and humiliating
experience, he further "pledges with all
his honor ... that if reinstated in the roll of
attorneys he will surely and consistently
conduct himself honestly, uprightly and
worthily." Indeed, there is reasonable
expectation that he will endeavor to lead
an irreproachable life and maintain
steadfast fidelity to the lawyer's oath.
WHEREFORE, petitioner Quinciano D.
Vailoces is hereby ordered reinstated in
the roll of attorneys.

A.C. No. 5118 September 9, 1999

(A.C. CBD No. 97-485)
MARILOU
SEBASTIAN, complainant,
vs.
ATTY. DOROTHEO CALIS, respondent.

PER CURIAM:
For unlawful, dishonest, immoral or
deceitful conduct as well as violation of
his oath as lawyer, respondent Atty.
Dorotheo Calis faces disbarment.
The facts of this administrative case, as
found by the Commission on Bar
Discipline of the Integrated Bar of the
Philippines (IBP), 1 in its Report, are as
follows:
Complainant (Marilou Sebastian)
alleged
that
sometime
in
November, 1992, she was referred
to the respondent who promised to
process all necessary documents
required for complainant's trip to
the USA for a fee of One Hundred
Fifty
Thousand
Pesos
(P150,000.00).
On December 1, 1992 the
complainant made a partial
payment of the required fee in the
amount of Twenty Thousand

Pesos (P20,000.00), which was

received by Ester Calis, wife of the
respondent for which a receipt was
issued.
From the period of January 1993
to May 1994 complainant had
several conferences with the
respondent
regarding
the
processing
of
her
travel
documents. To facilitate the
processing, respondent demanded
an additional amount of Sixty Five
Thousand Pesos (P65,000.00)
and prevailed upon complainant to
resign
from
her
job
as
stenographer with the Commission
on Human Rights.
On June 20, 1994, to expedite the
processing
of
her
travel
documents complainant issued
Planters
Development
Bank
Check No. 12026524 in the
amount of Sixty Five Thousand
Pesos (P65,000.00) in favor of
Atty. D. Calis who issued a receipt.
After receipt of said amount,
respondent
furnished
the
complainant
copies
of
Supplemental
to
U.S.
Nonimmigrant Visa Application
(Of. 156) and a list of questions
which would be asked during
interviews.
When complainant inquired about
her passport, Atty. Calis informed
the former that she will be
assuming the name Lizette P.

Ferrer married to Roberto Ferrer,

employed as sales manager of
Matiao Marketing, Inc. The
complainant
was
furnished
documents
to
support
her
assumed identity.1wphi1.nt
Realizing that she will be travelling
with spurious documents, the
complainant demanded the return
of her money, however she was
assured by respondent that there
was nothing to worry about for he
has been engaged in the business
for quite sometime; with the
promise that her money will be
refunded if something goes wrong.
Weeks before her departure
respondent demanded for the
payment of the required fee which
was paid by complainant, but the
corresponding receipt was not
given to her.
When complainant demanded for
her passport, respondent assured
the complainant that it will be
given to her on her departure
which
was
scheduled
on
September 6, 1994. On said date
complainant was given her
passport and visa issued in the
name of Lizette P. Ferrer.
Complainant left together with
Jennyfer Belo and a certain
Maribel who were also recruits of
the respondent.

Upon arrival at the Singapore

International Airport, complainant
together with Jennyfer Belo and
Maribel were apprehended by the
Singapore Airport Officials for
carrying
spurious
travel
documents;
Complainant
contacted the respondent through
overseas telephone call and
informed
him
of
by
her
predicament. From September 6
to 9, 1994, complainant was
detained at Changi Prisons in
Singapore.
On September 9, 1994 the
complainant was deported back to
the Philippines and respondent
fetched her from the airport and
brought her to his residence at
872-A
Tres
Marias
Street,
Sampaloc, Manila. Respondent
took complainant's passport with a
promise that he will secure new
travel documents for complainant.
Since complainant opted not to
pursue with her travel, she
demanded for the return of her
money in the amount of One
Hundred Fifty Thousand Pesos
(P150,000.00).
On June 4, 1996, June 18 and
July 5, 1996 respondent made
partial refunds of P15,000.00;
P6,000.00; and P5,000.00.
On December 19, 1996 the
complainant through counsel, sent
a demand letter to respondent for

the refund of a remaining balance

of
One
Hundred
Fourteen
Thousand Pesos (P114,000.00)
which was ignored by the
respondent.
Sometime in March 1997 the
complainant went to see the
respondent, however his wife
informed her that the respondent
was in Cebu attending to business
matters.
In May 1997 the complainant
again tried to see the respondent
however she found out that the
respondent had transferred to an
unknown residence apparently
with
intentions
to
evade
responsibility.
Attached to the complaint are the
photocopies of receipts for the
amount paid by complainant,
applications for U.S.A. Visa,
questions and answers asked
during
interviews;
receipts
acknowledging partial refunds of
fees paid by the complainant
together with demand letter for the
remaining
balance
of
One
Hundred
Fourteen
Thousand
Pesos (P114,000.00); which was
received by the respondent. 2
Despite several notices sent to the
respondent requiring an answer to or
comment on the complaint, there was no
response. Respondent likewise failed to
attend the scheduled hearings of the

case. No appearance whatsoever was

made by the respondent. 3 As a result of
the inexplicable failure, if not obdurate
refusal of the respondent to comply with
the orders of the Commission, the
investigation against him proceeded ex
parte.
On September 24, 1998, the Commission
on Bar Discipline issued its Report on the
case, finding that:
It appears that the services of the
respondent was engaged for the
purpose of securing a visa for a
U.S.A. travel of complainant. There
was no mention of job placement or
employment abroad, hence it is not
correct to say that the respondent
engaged in illegal recruitment.
The alleged proposal of the
respondent to secure the U.S.A.
visa for the complainant under an
assumed name was accepted by
the complainant which negates
deceit on the part of the respondent.
Noted likewise is the partial refunds
made by the respondent of the fees
paid by the complainant. However,
the transfer of residence without a
forwarding address indicates his
attempt to escape responsibility.
In the light of the foregoing, we find
that the respondent is guilty of gross
misconduct for violating Canon 1
Rule 1.01 of the Code of
Professional Responsibility which
provides that a lawyer shall not

engage in unlawful, dishonest,

immoral or deceitful conduct.
WHEREFORE, it is respectfully
recommended
that
ATTY.
DOROTHEO
CALIS
be
SUSPENDED as a member of the
bar until he fully refunds the fees
paid to him by complainant and
comply with the order of the
Commission on Bar Discipline
pursuant to Rule 139-B, Sec. 6, of
the Rules of Court. 4
Pursuant to Section 12, Rule 139-B of the
Rules of Court, this administrative case
was elevated to the IBP Board of
Governors for review. The Board in a
Resolution 5 dated December 4, 1998
resolved to adopt and approve with
amendment the recommendation of the
Commission. The Resolution of the
Board states:
RESOLVED to ADOPT and
APPROVE, as it is hereby
ADOPTED
and
APPROVED, the Report
and Recommendation of
the
Investigating
Commissioner in the aboveentitled case, herein made
part
of
this
Resolution/Decision
as
Annex "A"; and, finding the
recommendation
fully
supported by the evidence
on
record
and
the
applicable
laws
and
rules, with
an

amendment that
Respondent Atty. Dorotheo
Calis be DISBARRED for
having been found guilty of
Gross
Misconduct
for
engaging
in
unlawful,
dishonest,
immoral
or
deceitful conduct.
We are now called upon to evaluate, for
final action, the IBP recommendation
contained in its Resolution dated
December 4, 1998, with its supporting
report.
After
examination
and
careful
consideration of the records in this case,
we find the Resolution passed by the
Board of Governors of the IBP in order.
We agree with the finding of the
Commission that the charge of illegal
recruitment was not established because
complainant failed to substantiate her
allegation on the matter. In fact she did
not mention any particular job or
employment promised to her by the
respondent. The only service of the
respondent
mentioned
by
the
complainant was that of securing a visa
for the United States.
We likewise concur with the IBP Board of
Governors in its Resolution, that herein
respondent is guilty of gross misconduct
by engaging in unlawful, dishonest,
immoral or deceitful conduct contrary to
Canon I, Rule 101 of the Code of
Professional Responsibility. Respondent
deceived the complainant by assuring
her that he could give her visa and travel

documents;
that
despite
spurious
documents nothing untoward would
happen; that he guarantees her arrival in
the USA and even promised to refund her
the fees and expenses already paid, in
case something went wrong. All for
material gain.
Deception and other fraudulent acts by a
lawyer are disgraceful and dishonorable.
They reveal moral flaws in a lawyer. They
are unacceptable practices. A lawyer's
relationship with others should be
characterized by the highest degree of
good faith, fairness and candor. This is
the essence of the lawyer's oath. The
lawyer's oath is not mere facile words,
drift and hollow, but a sacred trust that
must
be
upheld
and
keep
inviolable. 6 The nature of the office of an
attorney requires that he should be a
person of good moral character. 7 This
requisite is not only a condition precedent
to admission to the practice of law, its
continued possession is also essential for
remaining in the practice of law.8 We
have sternly warned that any gross
misconduct of a lawyer, whether in his
professional or private capacity, puts his
moral character in serious doubt as a
member of the Bar, and renders him unfit
to continue in the practice of law. 9
It is dismaying to note how respondent so
cavalierly jeopardized the life and liberty
of complainant when he made her travel
with spurious documents. How often
have victims of unscrupulous travel
agents and illegal recruiters been
imprisoned in foreign lands because they

were provided fake travel documents?

Respondent totally disregarded the
personal safety of the complainant when
he sent her abroad on false assurances.
Not only are respondent's acts illegal,
they are also detestable from the moral
point of view. His utter lack of moral
qualms and scruples is a real threat to
the Bar and the administration of justice.
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. 10 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. 11
Here, it is worth noting that the adamant
refusal of respondent to comply with the
orders of the IBP and his total disregard
of the summons issued by the IBP are
contemptuous
acts
reflective
of
unprofessional conduct. Thus, we find no
hesitation in removing respondent
Dorotheo Calis from the Roll of Attorneys
for his unethical, unscrupulous and
unconscionable
conduct
toward
complainant.
Lastly, the grant in favor of the
complainant for the recovery of the
P114,000.00 she paid the respondent is
in
order. 12 Respondent
not
only

unjustifiably refused to return the

complainant's money upon demand, but
he stubbornly persisted in holding on to it,
unmindful of the hardship and humiliation
suffered by the complainant.
WHEREFORE, respondent Dorotheo
Calis is hereby DISBARRED and his
name is ordered stricken from the Roll of
Attorneys. Let a copy of this Decision be
FURNISHED to the IBP and the Bar
Confidant to be spread on the personal
records of respondent. Respondent is
likewise ordered to pay to the
complainant immediately the amount of
One Hundred Fourteen Thousand
(P114,000.00) Pesos representing the
amount
he
collected
from
her.1wphi1.nt
SO ORDERED.

A.C. No. 7350

2013

February 18,

PATROCINIO
AGBULOS, Complainant,
vs.
ATTY.
ROSELLER
VIRAY, Respondent.

V.
A.

DECISION
PERALTA, J.:
The
case
stemmed
from
a
Complaint1 filed before the Office of the
Bar Confidant (OBC) by complainant Mrs.
Patrocinio V. Agbulos against respondent
Atty. Roseller A. Viray of Asingan,
Pangasinan, for allegedly notarizing a
document denominated as Affidavit of
Non-Tenancy2 in violation of the Notarial
Law. The said affidavit was supposedly
executed by complainant, but the latter
denies said execution and claims that the
signature and the community tax
certificate (CTC) she allegedly presented
are not hers. She further claims that the
CTC belongs to a certain Christian
Anton. 3 Complainant added that she did
not personally appear before respondent
for the notarization of the document. She,
likewise, states that respondent's client,
Rolando Dollente (Dollente), benefited
from the said falsified affidavit as it
contributed to the illegal transfer of a
property registered in her name to that of
Dollente.4

In his Comment,5 respondent admitted

having prepared and notarized the
document in question at the request of
his client Dollente, who assured him that
it was personally signed by complainant
and that the CTC appearing therein is
owned by her.6 He, thus, claims good
faith in notarizing the subject document.

act.11 Commissioner
Funa,
thus,
recommended that respondent be found
guilty of violating the Code of
Professional Responsibility and the 2004
Rules on Notarial Practice, and that he
be meted the penalty of six (6) months
suspension as a lawyer and six (6)
months suspension as a Notary Public.12

In a Resolution7 dated April 16, 2007, the

OBC referred the case to the Integrated
Bar of the Philippines (IBP) for
investigation, report and recommendation
or decision.

On April 15, 2008, the IBP Board of

Governors issued Resolution No. XVIII2008-166 which reads:

After the mandatory conference and

hearing, the parties submitted their
respective Position Papers.8Complainant
insists that she was deprived of her
property
because
of
the
illegal
notarization
of
the
subject
document.9 Respondent, on the other
hand, admits having notarized the
document in question and asks for
apology
and
forgiveness
from
complainant as a result of his
indiscretion.10
In his report, Commissioner Dennis A. B.
Funa (Commissioner Funa) reported that
respondent indeed notarized the subject
document in the absence of the alleged
affiant having been brought only to
respondent by Dollente. It turned out later
that the document was falsified and the
CTC belonged to another person and not
to complainant. He further observed that
respondent did not attempt to refute the
accusation against him; rather, he even
apologized
for
the
complained

RESOLVED to ADOPT and APPROVE,

as it is hereby ADOPTED and
APPROVED, with
modification, the
Report and Recommendation of the
Investigating Commissioner of the aboveentitled 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
Respondents violation of the Code of
Professional Responsibility and 2004
Rules on Notarial Practice, Atty. Roseller
A. Viray is hereby SUSPENDED from the
practice of law for one (1) month.13
Respondent
moved
for
the
reconsideration of the above decision,
but the same was denied. The above
resolution was further modified in
Resolution No. XX-2012-117, dated
March 10, 2012, to read as follows:
RESOLVED to DENY Respondents
Motion
for
Reconsideration,
and
unanimously MODIFY as it is hereby
MODIFIED Resolution No. XVIII- 2008-

166 dated April 15, 2008, in addition to

Respondents SUSPENSION from
the
practice of law for one (1) month, Atty.
Roseller
A.
Viray
is
hereby SUSPENDED as Notary Public
for six (6) months. (Emphasis in the
original)
The findings of the IBP are well taken.
Section 2 (b) of Rule IV of the 2004 Rules
on Notarial Practice emphasizes the
necessity of the affiants personal
appearance before the notary public: 14
xxxx
(b) A person shall not perform a
notarial act if the person involved
as signatory to the instrument or
document
(1) is not in the notarys
presence personally at the
time of the notarization; and
(2) is not personally known
to the notary public or
otherwise identified by the
notary
public
through
competent evidence of
identity as defined by these
Rules.
Moreover, Section 12,15 Rule II, of the
2004 Rules on Notarial Practice defines
the "competent evidence of identity"
referred to above.

In this case, respondent admits that not

only did he prepare and notarize the
subject affidavit but he likewise notarized
the same without the affiants personal
appearance. He explained that he did so
merely upon the assurance of his client
Dollente that the document was executed
by complainant. In notarizing the
document, respondent contented himself
with the presentation of a CTC despite
the Rules clear requirement of
presentation of competent evidence of
identity such as an identification card with
photograph and signature. With this
indiscretion,
respondent
failed
to
ascertain the genuineness of the affiants
signature which turned out to be a
forgery. In failing to observe the
requirements of the Rules, even the CTC
presented,
purportedly
owned
by
complainant, turned out to belong to
somebody else.
To be sure, a notary public should not
notarize a document unless the person
who signed the same is the very same
person who executed and personally
appeared before him to attest to the
contents and the truth of what are stated
therein.16 Without the appearance of the
person who actually executed the
document in question, the notary public
would be unable to verify the
genuineness of the signature of the
acknowledging party and to ascertain that
the document is the partys free act or
deed.17
As aptly observed by the Court in Dela
Cruz-Sillano v. Pangan:18

The Court is aware of the practice of not

a few lawyers commissioned as notary
public to authenticate documents without
requiring the physical presence of
affiants.
However,
the
adverse
consequences of this practice far
outweigh whatever convenience is
afforded to the absent affiants. Doing
away with the essential requirement of
physical presence of the affiant does not
take into account the likelihood that the
documents may be spurious or that the
affiants may not be who they purport to
be. 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
purpose of this requirement is to enable
the notary public to verify the
genuineness of the signature of the
acknowledging party and to ascertain that
the document is the partys free act and
deed.19
The Court has repeatedly emphasized in
a number of cases20 the important role a
notary public performs, to wit:
x x x [N]otarization is not an empty,
meaningless routinary act but one
invested with substantive public interest.
The notarization by a notary public
converts a private document into a public
document, making it admissible in
evidence without further proof of its
authenticity. A notarized document is, by
law, entitled to full faith and credit upon
its face. It is for this reason that a notary

public must observe with utmost care the

basic requirements in the performance of
his duties; otherwise, the publics
confidence in the integrity of a notarized
document would be undermined.21
Respondents failure to perform his duty
as a notary public resulted not only
damage to those directly affected by the
notarized document but also in
undermining the integrity of a notary
public and in degrading the function of
notarization.22 He should, thus, be held
liable for such negligence not only as a
notary public but also as a lawyer.23 The
responsibility to faithfully observe and
respect the legal solemnity of the oath in
an acknowledgment or jurat is more
pronounced when the notary public is a
lawyer because of his solemn oath under
the Code of Professional Responsibility
to obey the laws and to do no falsehood
or consent to the doing of any.24 Lawyers
commissioned as notaries public are
mandated to discharge with fidelity the
duties of their offices, such duties being
dictated by public policy and impressed
with public interest.251wphi1
As to the proper penalty, the Court finds
the need to increase that recommended
by the IBP which is one month
suspension as a lawyer and six months
suspension as notary public, considering
that respondent himself prepared the
document, and he performed the notarial
act without the personal appearance of
the affiant and without identifying her with
competent evidence of her identity. With
his indiscretion, he allowed the use of a

CTC by someone who did not own it.

Worse, he allowed himself to be an
instrument of fraud. Based on existing
jurisprudence,
when
a
lawyer
commissioned as a notary public fails to
discharge his duties as such, he is meted
the penalties of revocation of his notarial
commission, disqualification from being
commissioned as a notary public for a
period of two years, and suspension from
the practice of law for one year.26
WHEREFORE,
the
Court
finds
respondent
Atty.
Roseller
A.
Viray GUILTY of breach of the 2004
Rules on Notarial Practice and the Code
of
Professional
Responsibility.
Accordingly, the Court SUSPENDS him
from the practice of law for one (1)
year; REVOKES his
incumbent
commission, if any; and PROHIBITS him
from being commissioned as a notary
public for two (2) years, effective
immediately. He is WARNED that a
repetition of the same or similar acts in
the future shall be dealt with more
severely.
Let all the courts, through the Office of
the Court Administrator, as well as the
IBP and the Office of the Bar Confidant,
be notified of this Decision and be it
entered into respondent's personal
record.
SO ORDERED.

A.C. No. 6107

January 31, 2005

BEL-AIR
TRANSIT
SERVICE
CORPORATION (DOLLAR RENT-ACAR), Complainant,
vs.
ATTY.
ESTEBAN
Y.
MENDOZA, Respondent.
DECISION
CALLEJO, SR., J.:
In a verified Complaint1 dated June 11,
2003, Bel-Air Transit Service Corporation
(Dollar
Rent-A-Car)
charged
Atty.
Esteban Y. Mendoza with grossly
immoral and unethical conduct, praying
for his disbarment and that his name be
stricken-off from the Roll of Attorneys.
The complainant narrated that, on
September 19, 2001, the respondent
rented a car from it, a Toyota Camry with
Plate No. WMK 232, for the amount
of P5,549.00. Under the terms of the
Rental Agreement No. 97206, 2 which the
respondent personally signed, the latter
was to be fetched at his residence at No.
483 Northwestern Street, East Greenhills,
Mandaluyong City. The respondent
rented another Toyota Camry from the
complainant on September 28, 2001, this
time with Plate No. WRT 557, and was,
likewise, fetched at his residence in
accordance with the Rental Agreement
No. 97420.3 This second contract was
also
personally
signed
by
the

respondent.
The
statements
of
4
account were, thereafter, sent to the
respondent at his office and business
address at Martinez & Mendoza Law
Office,
Cityland
Show
Tower,
Mandaluyong City. Despite repeated
demands for payment, the respondent
refused to pay his account, which
constrained the complainant to send a
formal and final demand for payment
through counsel.5 This formal demand
was, likewise, ignored by the respondent,
further compelling the complainant to
resort to filing a complaint6 for recovery of
money on March 12, 2003 before the
Metropolitan Trial Court of Makati City,
Branch 65, docketed as Civil Case No.
81392.
According to the complainant, the
respondents refusal to pay for the
complainants
car
rental
services
constitutes deceit and grossly immoral
and unethical conduct, which violates the
Canons of Professional Ethics and
Articles 19, 20 and 21 of the Civil Code
on Human Relations. The complainant
further alleged that this is a sufficient
ground for the respondents disbarment,
considering that the respondent even
ignored the complainants repeated
demands for payment.7
In his Comment, the respondent denied
the allegations against him. He averred
that it was the law firm of Martinez &
Mendoza which engaged the services of
the complainant, and that all the trips
undertaken were for an out-of-town
engagement in Lucena City. To support

his claim, the respondent incorporated a

letter8 addressed to the Chief Operations
Manager of the complainant requesting
for the latters services.1a\^/phi1.net
The respondent alleged that the driver
assigned to him by the complainant
during the trip from Lucena City on
September 19, 2001 did not exercise
extraordinary diligence. He averred that
they almost figured in an accident, and
when he inquired as to why the said
driver was not cautious with his driving,
the latter replied that he had just been on
another out-of-town trip driving for
another client and only had three hours
of sleep the night before. The respondent
decided not to report the incident to the
complainant, thinking that it was going to
be the first and last incident. However,
during the trip of September 28, 2001,
the respondent again almost figured in an
accident, prompting the respondent to
contact the complainant to complain as to
why the latter was providing drivers to
their law firm who had not had enough
sleep. No one from the complainants
staff could provide him with a decent
answer, merely "Pasensiya
na." The
respondent then demanded a meeting
with the complainants president in order
to resolve the matter, but despite
repeated requests, the latter refused to
meet with him. The respondent further
averred, thus:
14. It is not only inaccurate but
also unfair for the complainant to
baselessly accuse the respondent
or M&M of refusing to pay their

claims. As shown above, M&M

immediately
paid
all
of
complainants billings for August
2001. It was only the billings for
September 2001 that remained
unpaid
because
M&M
and
respondent first wanted to meet
with the President of the
complainant to resolve their
complaint. M&M and respondent
do not have a history of not
honoring their obligations. As
officers of the court, it is cognizant
that
[they]
should
conduct
[themselves] properly so as not to
do injustice to anyone, including
the complainant.
14.1. Respondent almost met an
accident because the complainant
provided him with drivers that did
not have enough rest and sleep
before they drove for him. It is the
respondent who is the aggrieved
party
here
and
not
the
complainant. Thus, it is very
unfortunate
that
it
is
the
respondent who is slapped with a
disbarment case. M&M did not
even file a complaint with the
Department of Trade and Industry
for violation of the Consumers Act
of the Philippines because it
wanted to resolve its complaint
amicably.
14.2
Respondent
respectfully
manifests that, only to buy peace,
the questioned billings of the
complainant which [were] made

the subject of a complaint they

filed against him had already been
fully satisfied.
A copy of Official Receipt No. 52095
dated 4 September 2003 in the name of
"Martinez & Mendoza Law Office" is
attached hereto and made an integral
part hereof as Annex "H."9
The respondent concluded that the
complainant did not have a cause of
action for disbarment against him, as he
was merely exercising his right to contest
its questionable billings.
The case was referred to the Integrated
Bar of the Philippines (IBP) for
investigation, report and recommendation
and was assigned to IBP Commissioner
Caesar R. Dulay. During the hearing of
March 1, 2004, the counsel for the
complainant manifested that although the
respondent had already paid his account,
such payment was made only after the
court had already decided the case
against the respondent and after the filing
of a motion for execution,10 which the
respondent admitted. Thus, the parties
agreed during the hearing that as far as
the monetary obligation was concerned,
the said judgment had already been
satisfied by the respondent. The parties
were then required to file their respective
position papers, which were basically
reiterations of their previous allegations.
In his Report and Recommendation
dated April 19, 2004, Commissioner
Dulay made the following findings:

Respondent offers two reasons for nonpayment: First, that the obligation was
incurred not by him but by his law office
Martinez & Mendoza. Second, that the
respondent almost met an accident on
the two occasions he used the services
of the complainant and therefore "he
should not be penalized for exercising its
right
to
contest
complainants
questionable billings."
...
As to the first reason, we reiterate that as
decided by the Metropolitan Trial Court,
respondent was liable for the obligation to
the complainant. Indeed, respondent
cannot avoid the obligation and pass it on
to his law firm and just make a complete
denial considering that he is a name
partner in the firm and law partnership of
Martinez and Mendoza. The Metropolitan
Trial Court, therefore, ruled that
respondent was, nevertheless, liable for
the obligation of his law partnership.
Independent of the said decision, we find
that the documents attached as Annexes
"A" and "B" to the complaint appear to
have been signed by the respondent and
even assuming that it was the law firm
that was liable, there is nothing on record
to show that the law firm questioned the
billings of the complainant or that the
respondent referred the same to the law
firm for proper disposition.
As to the second reason, respondent
admits that there was no written demand
made for the complainant to account and
answer for the "near accidents" alleged

by respondent, which "near accidents" as

we understand are his reasons for not
immediately paying. We find the absence
of a written demand from the respondent
quite odd especially in the case of a
lawyer who is seeking to exercise his
"right
to
contest
complainants
questionable billings" or otherwise hold
complainant accountable for the said
"near accidents." It would perhaps be
understandable if the omission was made
by a layman; but for a lawyer not to put
his demand in writing, it would be
uncharacteristic to say the least. Neither
was a demand made by the law firm of
Martinez and Mendoza as a basis for
non-payment. We are, therefore, inclined
to look at this reason, (near accident) as
a mere afterthought and would not justify
respondent in not paying for two (2) years
what appears to be a clear and simple
obligation to complainant. As pointed out
by complainant, it was only after a writ of
execution was issued when payment was
made.

that respondent was acting with deceit in

not paying for the obligation incurred.
However, we find respondent lacking in
probity and forthrightness in dealing with
the complaint and quite simply negligent
in the handling of this particular obligation
to complainant. Taken in the light of the
circumstances presented, we believe
respondent should be admonished and
warned to avoid such similar conduct in
the future.

The reason offered by respondent for not

paying complainant particularly the
alleged "near accident" is, therefore, not
justifiable. The said reason appears to us
trite and contrived. Lack of funds to pay
an obligation may perhaps be a good
reason but to use as a reason the said
"near accident" on the bare assertion of
respondent alone and not supported by
any corroborating evidence may not be
readily acceptable. We are, on the other
hand, also not convinced that respondent
was deceitful or grossly negligent by his
actions. There is no evidence to show

It is settled that a lawyer may be

disbarred or suspended for any
misconduct, whether in his professional
or private capacity, which shows him to
be wanting in moral character, in honesty,
probity and good demeanor or unworthy
to continue as an officer of the court. 11 A
lawyer must, at all times, uphold the
integrity and dignity of the legal
profession.l^vvphi1.net Indeed, a lawyer
brings honor to the legal profession by
faithfully performing his duties to society,
to the bar, to the courts and to his clients.
To this end, a member of the legal

It was, thus, recommended that the

respondent be admonished and advised
to be more forthright in the handling of
his monetary obligations in the future. On
July 30, 2004, the IBP Commission on
Bar Discipline then issued Resolution No.
XVI-2004-378, adopting and approving
the recommendation of the Investigating
Commissioner, considering that there
was no evidence to show that the
respondent had acted with deceit in not
paying
for
the
questioned
obligation.1awphi1.nt

fraternity should refrain from doing any

act which might lessen in any degree the
confidence and trust reposed by the
public in the fidelity, honesty and integrity
in the legal profession.12 Thus, lawyers
must promptly pay their financial
obligations.13Their conduct must always
reflect the values and norms of the legal
profession as embodied in the Code of
Professional Responsibility.14
In this case, the respondent refused to
pay for the services of the complainant,
constraining the latter to file charges in
order to collect what was due to it under
the contracts, in which the respondent
himself was the signatory. Moreover, as
pointed out by IBP Commissioner Dulay,
the respondents claim that he almost
twice figured in accidents due to the
negligent drivers employed by the
complainant and that he intended to
question the companys billings (which he
also posited was a valid excuse for nonpayment), appears to have been
concocted as a mere afterthought.
Verily, the respondent is guilty of conduct
unbecoming of a member of the bar, and
should be admonished for his actuations.
WHEREFORE, respondent Atty. Esteban
Y. Mendoza is hereby ADMONISHED to
be more circumspect in his financial
obligations and his dealings with the
public. He is STERNLY WARNED that
similar conduct in the future shall be dealt
with more severely.

Let a copy of this Decision be included in

the respondents files which are with the
Office of the Bar Confidant, and
circularized to all courts and to the
Integrated Bar of the Philippines.
SO ORDERED.

G.R. No. 1203

May 15, 1903

In the matter of the suspension of

HOWARD D. TERRELL from the
practice of law.
PER CURIAM:
Howard D. Terrell, an attorney-at-law,
was ordered to show cause in the Court
of First Instance, in the city of Manila, on
the 5th day of February, 1903, why he
should not be suspended as a member of
the bar of the city of Manila for the
reasons:
First, that he had assisted in the
organization of the "Centro Bellas Artes"
Club, after he had been notified that the
said organization was made for the
purpose of evading the law then in force
in said city; and,
Secondly, for acting as attorney for said
"Centro Bellas Artes" during the time of
and after its organization, which
organization was known to him to be
created for the purpose of evading the
law.
The accused appeared on the return day,
and by his counsel, W. A. Kincaid, made
answer to these charges, denying the
same, and filed affidavits in answer
thereto. After reading testimony given by
said Howard D. Terrell, in the case of the
United States vs. H. D. Terrell,1 wherein

he was charged with estafa, and after

reading the said affidavits in his behalf,
and hearing his counsel, the court below
found, and decided as a fact, that the
charges aforesaid made against Howard
D. Terrell were true, and thereupon made
an order suspending him from his office
as a lawyer in the Philippine Islands, and
directed the clerk of the court to transmit
to this court a certified copy of the order
of suspension, as well as a full statement
of the facts upon which the same was
based.
We have carefully considered these
facts, and have reached the conclusion
that they were such as to justify the court
below in arriving at the conclusion that
the knowledge and acts of the accused in
connection with the organization of the
"Centro Bellas Artes" Club were of such a
nature and character as to warrant his
suspension from practice.
The promoting of organizations, with
knowledge of their objects, for the
purpose of violating or evading the laws
against
crime
constitutes
such
misconduct on the part of an attorney, an
officer of the court, as amounts to
malpractice or gross misconduct in his
office, and for which he may be removed
or suspended. (Code of Civil Procedure,
sec. 21.) The assisting of a client in a
scheme which the attorney knows to be
dishonest, or the conniving at a violation
of law, are acts which justify disbarment.
In this case, however, inasmuch as the
defendant in the case of the United

States, vs. Terrell was acquitted on the

charge of estafa, and has not, therefore,
been convicted of crime, and as the acts
with which he is charged in this
proceeding, while unprofessional and
hence to be condemned, are not criminal
in their nature, we are of opinion that the
ends of justice will be served by the
suspension of said Howard D. Terrell
from the practice of law in the Philippine
Islands for the term of one year from the
7th day of February, 1903.
It is therefore directed that the said
Howard D. Terrell be suspended from the
practice of law for a term of one year
from February 7, 1903. It is so ordered.

A.C. No. 6057

5. The OCCUPANCY AGREEMENT

dated
September
11,
1995 was
prepared and notarized by me under
the following circumstances:

June 27, 2006

PETER T. DONTON, Complainant,

vs.ATTY.
EMMANUEL
TANSINGCO, Respondent.

O.

DECISION
CARPIO, J.:
The Case
This is a disbarment complaint against
respondent Atty. Emmanuel O. Tansingco
("respondent") for serious misconduct
and deliberate violation of Canon
1,1 Rules 1.012 and 1.023 of the Code of
Professional Responsibility ("Code").
The Facts
In his Complaint dated 20 May 2003,
Peter T. Donton ("complainant") stated
that he filed a criminal complaint for
estafa thru falsification of a public
document4 against Duane O. Stier
("Stier"), Emelyn A. Maggay ("Maggay")
and respondent, as the notary public who
notarized the Occupancy Agreement.
The disbarment complaint arose when
respondent filed a counter-charge for
perjury5 against
complainant.
Respondent, in his affidavit-complaint,
stated that:

A. Mr. Duane O. Stier is the owner

and long-time resident of a real
property located at No. 33 Don
Jose Street, Bgy. San Roque,
Murphy, Cubao, Quezon City.
B. Sometime in September
1995, Mr. Stier a U.S. citizen
and thereby disqualified to own
real property in his name
agreed that the property be
transferred in the name of Mr.
Donton, a Filipino.
C. Mr. Stier, in the presence of Mr.
Donton, requested me to prepare
several documents that would
guarantee recognition of him being
the actual owner of the property
despite the transfer of title in the
name of Mr. Donton.
D. For this purpose, I prepared,
among others, the OCCUPANCY
AGREEMENT, recognizing Mr.
Stiers free and undisturbed use of
the property for his residence and
business
operations.
The
OCCUPANCY AGREEMENT was
tied up with a loan which Mr. Stier
had extended to Mr. Donton.6
Complainant averred that respondents
act of preparing the Occupancy
Agreement, despite knowledge that Stier,

being a foreign national, is disqualified to

own real property in his name, constitutes
serious misconduct and is a deliberate
violation of the Code. Complainant
prayed that respondent be disbarred for
advising Stier to do something in violation
of law and assisting Stier in carrying out a
dishonest scheme.
In his Comment dated 19 August 2003,
respondent claimed that complainant
filed the disbarment case against him
upon the instigation of complainants
counsel,
Atty.
Bonifacio
A.
7
Alentajan, because respondent refused
to act as complainants witness in the
criminal case against Stier and Maggay.
Respondent admitted that he "prepared
and
notarized"
the
Occupancy
Agreement and asserted its genuineness
and due execution.
In a Resolution dated 1 October 2003,
the Court referred the matter to the
Integrated Bar of the Philippines (IBP) for
investigation,
report
and
recommendation.
The
IBPs
Recommendation

Report

and

In her Report dated 26 February 2004

("Report"), Commissioner Milagros V.
San Juan ("Commissioner San Juan") of
the IBP Commission on Bar Discipline
found respondent liable for taking part in
a
"scheme
to
circumvent
the
constitutional prohibition against foreign
ownership of land in the Philippines."
Commissioner San Juan recommended

respondents suspension from the

practice of law for two years and the
cancellation of his commission as Notary
Public.
In Resolution No. XVI-2004-222 dated 16
April 2004, the IBP Board of Governors
adopted, with modification, the Report
and
recommended
respondents
suspension from the practice of law for
six months.
On 28 June 2004, the IBP Board of
Governors forwarded the Report to the
Court as provided under Section 12(b),
Rule 139-B8 of the Rules of Court.
On 28 July 2004, respondent filed a
motion for reconsideration before the IBP.
Respondent stated that he was already
76 years old and would already retire by
2005 after the termination of his pending
cases. He also said that his practice of
law is his only means of support for his
family and his six minor children.
In a Resolution dated 7 October 2004,
the IBP denied the motion for
reconsideration because the IBP had no
more jurisdiction on the case as the
matter had already been referred to the
Court.
The Ruling of the Court
The Court finds respondent liable for
violation of Canon 1 and Rule 1.02 of the
Code.

A lawyer should not render any service or

give advice to any client which will
involve defiance of the laws which he is
bound to uphold and obey.9 A lawyer who
assists a client in a dishonest scheme or
who connives in violating the law
commits an act which justifies disciplinary
action against the lawyer.10
By his own admission, respondent
admitted that Stier, a U.S. citizen, was
disqualified
from
owning
real
11
property. Yet,
in
his
motion
for
reconsideration,12 respondent
admitted
that he caused the transfer of ownership
to the parcel of land to Stier. Respondent,
however, aware of the prohibition, quickly
rectified his act and transferred the title in
complainants name. But respondent
provided "some safeguards" by preparing
several
documents,13including
the
Occupancy Agreement, that would
guarantee Stiers recognition as the
actual owner of the property despite its
transfer in complainants name. In effect,
respondent advised and aided Stier in
circumventing
the
constitutional
prohibition against foreign ownership of
lands14 by preparing said documents.
Respondent had sworn to uphold the
Constitution. Thus, he violated his oath
and the Code when he prepared and
notarized the Occupancy Agreement to
evade the law against foreign ownership
of
lands.
Respondent
used
his
knowledge of the law to achieve an
unlawful end. Such an act amounts to
malpractice in his office, for which he
may be suspended.15

In Balinon v. De Leon,16 respondent Atty.

De Leon was suspended from the
practice of law for three years for
preparing an affidavit that virtually
permitted him to commit concubinage.
In In re: Santiago,17 respondent Atty.
Santiago was suspended from the
practice of law for one year for preparing
a contract which declared the spouses to
be single again after nine years of
separation and allowed them to contract
separately subsequent marriages.
WHEREFORE, we find respondent Atty.
Emmanuel
O.
Tansingco GUILTY of
violation of Canon 1 and Rule 1.02 of the
Code of Professional Responsibility.
Accordingly, we SUSPEND respondent
Atty. Emmanuel O. Tansingco from the
practice of law for SIX MONTHS effective
upon finality of this Decision.
Let copies of this Decision be furnished
the Office of the Bar Confidant to be
appended to respondents personal
record as an attorney, the Integrated Bar
of the Philippines, the Department of
Justice, and all courts in the country for
their information and guidance.

G.R. No. 104599 March 11, 1994

JON DE YSASI III, petitioner,
vs.NATIONAL LABOR RELATIONS
COMMISSION (FOURTH DIVISION),
CEBU
CITY,
and
JON
DE
YSASI,respondents.
REGALADO, J.:
The adage that blood is thicker than
water obviously stood for naught in this
case, notwithstanding the vinculum of
paternity and filiation between the parties.
It would indeed have been the better part
of reason if herein petitioner and private
respondent
had
reconciled
their
differences in an extrajudicial atmosphere
of familial amity and with the grace of
reciprocal concessions. Father and son
opted instead for judicial intervention
despite the inevitable acrimony and
negative publicity. Albeit with distaste, the
Court cannot proceed elsewise but to
resolve their dispute with the same
reasoned detachment accorded any
judicial proceeding before it.
The records of this case reveal that
petitioner was employed by his father,
herein private respondent, as farm
administrator of Hacienda Manucao in
Hinigaran, Negros Occidental sometime
in April, 1980. Prior thereto, he was
successively employed as sales manager
of Triumph International (Phil.), Inc. and
later as operations manager of Top Form

Manufacturing
(Phil.),
Inc.
His
employment as farm administrator was
on a fixed salary, with other allowances
covering housing, food, light, power,
telephone, gasoline, medical and dental
expenses.
As farm administrator, petitioner was
responsible for the supervision of daily
activities and operations of the sugarcane
farm such as land preparation, planting,
weeding, fertilizing, harvesting, dealing
with third persons in all matters relating to
the hacienda and attending to such other
tasks as may be assigned to him by
private respondent. For this purpose, he
lived on the farm, occupying the upper
floor of the house there.
Following his marriage on June 6, 1982,
petitioner moved to Bacolod City with his
wife and commuted to work daily. He
suffered various ailments and was
hospitalized on two separate occasions in
June and August, 1982. In November,
1982, he underwent fistulectomy, or the
surgical removal of the fistula, a deep
sinuous ulcer. During his recuperation
which lasted over four months, he was
under the care of Dr. Patricio Tan. In
June, 1983, he was confined for acute
gastroenteritis
and,
thereafter, for
infectious hepatitis from December, 1983
to January, 1984.
During the entire periods of petitioner's
illnesses, private respondent took care of
his medical expenses and petitioner
continued to receive compensation.
However, in April, 1984, without due

notice, private respondent ceased to pay

the latter's salary. Petitioner made oral
and written demands for an explanation
for the sudden withholding of his salary
from Atty. Apolonio Sumbingco, private
respondent's auditor and legal adviser, as
well as for the remittance of his salary.
Both demands, however, were not acted
upon.
Petitioner then filed an action with the
National Labor Relations Commission
(NLRC, for brevity), Regional Arbitration
Branch No. VI, Bacolod City, on October
17, 1984, docketed therein as RAB Case
No. 0452-84, against private respondent
for illegal dismissal with prayer for
reinstatement without loss of seniority
rights and payment of full back wages,
thirteenth
month
pay
for
1983,
consequential, moral and exemplary
damages, as well as attorney's fees.
On July 31, 1991, said complaint for
illegal dismissal was dismissed by the
NLRC, 1 holding
that
petitioner
abandoned his work and that the
termination of his employment was for a
valid cause, but ordering private
respondent to pay petitioner the amount
of P5,000.00 as penalty for his failure to
serve notice of said termination of
employment to the Department of Labor
and Employment as required by Batas
Pambansa Blg. 130 and consonant with
this Court's ruling in Wenphil Corporation
vs. National
Labor
Relations
Commission, et al. 2 On appeal to the
Fourth Division of the NLRC, Cebu City,
said decision was affirmed in toto. 3

His motion for reconsideration 4 of said

decision having been denied for lack of
merit, 5 petitioner filed this petition
presenting the following issues for
resolution: (1) whether or not the
petitioner was illegally dismissed; (2)
whether or not he is entitled to
reinstatement, payment of back wages,
thirteenth month pay and other benefits;
and (3) whether or not he is entitled to
payment of moral and exemplary
damages and attorney's fees because of
illegal dismissal. The discussion of these
issues will necessarily subsume the
corollary questions presented by private
respondent, such as the exact date when
petitioner ceased to function as farm
administrator, the character of the
pecuniary amounts received by petitioner
from private respondent, that is, whether
the same are in the nature of salaries or
pensions, and whether or not there was
abandonment by petitioner of his
functions as farm administrator.
In his manifestation dated September 14,
1992,
the
Solicitor
General
recommended a modification of the
decision of herein public respondent
sustaining the findings and conclusions of
the Executive Labor Arbiter in RAB Case
No. 0452-84, 6 for which reason the
NLRC was required to submit its own
comment on the petition. In compliance
with the Court's resolution of November
16, 1992, 7 NLRC filed its comment on
February 12, 1992 largely reiterating its
earlier position in support of the findings
of the Executive Labor Arbiter. 8

Before proceeding with a discussion of

the issues, the observation of the labor
arbiter is worth noting:
This case is truly unique.
What makes this case
unique is the fact that
because of the special
relationship of the parties
and the nature of the action
involved, this case could
very well go down (in) the
annals of the Commission
as perhaps the first of its
kind. For this case is an
action filed by an only son,
his father's namesake, the
only child and therefore the
only heir against his own
father. 9
Additionally,
remarked:

the

Solicitor

General

. . . After an exhaustive
reading of the records, two
(2) observations were noted
that may justify why this
labor case deserves special
considerations. First, most
of the complaints that
petitioner
and
private
respondent had with each
other,
were
personal
matters affecting father and
son
relationship.
And
secondly, if any of the
complaints pertain to their
work, they allow their

personal relationship
come in the way. 10

to

I. Petitioner maintains that his dismissal

from employment was illegal because of
want of just cause therefor and nonobservance of the requirements of due
process. He also charges the NLRC with
grave abuse of discretion in relying upon
the findings of the executive labor arbiter
who decided the case but did not conduct
the hearings thereof.
Private respondent, in refutation, avers
that there was abandonment by petitioner
of his functions as farm administrator,
thereby arming private respondent with a
ground to terminate his employment at
Hacienda Manucao. It is also contended
that it is wrong for petitioner to question
the factual findings of the executive labor
arbiter and the NLRC as only questions
of law may be appealed for resolution by
this Court. Furthermore, in seeking the
dismissal of the instant petition, private
respondent faults herein petitioner for
failure to refer to the corresponding
pages of the transcripts of stenographic
notes, erroneously citing Sections 15(d)
and 16(d), Rule 44 (should be Section
16[c]
and
[d],
Rule 46 and Section 1[g], Rule 50) of the
Rules of Court, which provide that want
of page references to the records is a
ground for dismissal of an appeal.
Prefatorily, we take advertence of the
provisions of Article 221 of the Labor
Code that technical rules of evidence
prevailing in courts of law and equity shall

not be controlling, and that every and all

reasonable means to speedily and
objectively ascertain the facts in each
case shall be availed of, without regard to
technicalities of law or procedure in the
interest of due process.
It is settled that it is not procedurally
objectionable for the decision in a case to
be rendered by a judge, or a labor arbiter
for that matter, other than the one who
conducted the hearing. The fact that the
judge who heard the case was not the
judge who penned the decision does not
impair
the
validity
of
the
judgment, 11 provided that he draws up
his decision and resolution with due care
and makes certain that they truly and
accurately reflect conclusions and final
dispositions on the bases of the facts of
and evidence submitted in the case. 12

standing legal precept that rules of

procedure must be interpreted to help
secure, not defeat, justice. For this
reason, we cannot indulge private
respondent in his tendency to nitpick on
trivial technicalities to boost his
arguments. The strength of one's position
cannot be hinged on mere procedural
niceties but on solid bases in law and
jurisprudence.

Thus, the mere fact that the case was

initially assigned to Labor Arbiter Ricardo
T. Octavio, who conducted the hearings
therein from December 5, 1984 to July
11, 1985, and was later transferred to
Executive Labor Arbiter Oscar S. Uy, who
eventually decided the case, presents no
procedural
infirmity,
especially
considering that there is a presumption of
regularity in the performance of a public
officer's functions, 13 which petitioner has
not successfully rebutted.

The fundamental guarantees of security

of tenure and due process dictate that no
worker shall be dismissed except for just
and authorized cause provided by law
and after due process. 14 Article 282 of
the Labor Code enumerates the causes
for which an employer may validly
terminate an employment, to wit:
(a) serious misconduct or willful
disobedience by the employee of the
lawful orders of his employer or
representative in connection with his
work; (b) gross and habitual neglect by
the employee of his duties; (c) fraud or
willful breach by the employee of the trust
reposed in him by his employer or duly
authorized
representative;
(d)
commission of a crime or offense by the
employee against the person of his
employer or any immediate member of
his family or his duly authorized
representative; and (e) other causes
analogous to the foregoing.

We are constrained to heed the

underlying policy in the Labor Code
relaxing the application of technical rules
of procedure in labor cases in the interest
of due process, ever mindful of the long-

The employer may also terminate the

services of any employee due to the
installation of labor saving devices,
redundancy, retrenchment to prevent
losses or the closing or cessation of

operation of the establishment or

undertaking, unless the closing is for the
purpose of circumventing the pertinent
provisions of the Labor Code, by serving
a written notice on the workers and the
Department of Labor and Employment at
least one (1) month before the intended
date thereof, with due entitlement to the
corresponding separation pay rates
provided by law.15 Suffering from a
disease by reason whereof the continued
employment of the employee is
prohibited by law or is prejudicial to his
and his co-employee's health, is also a
ground for termination of his services
provided he receives the prescribed
separation pay. 16 On the other hand, it is
well-settled that abandonment by an
employee of his work authorizes the
employer to effect the former's dismissal
from employment. 17
After a careful review of the records of
this case, we find that public respondent
gravely erred in affirming the decision of
the executive labor arbiter holding that
petitioner abandoned his employment
and was not illegally dismissed from such
employment. For want of substantial
bases,
in
fact
or
in law, we cannot give the stamp of
finality and conclusiveness normally
accorded to the factual findings of an
administrative agency, such as herein
public respondent NLRC, 18 as even
decisions of administrative agencies
which are declared "final" by law are not
exempt from judicial review when so
warranted. 19

The following perceptive disquisitions of

the Solicitor General on this point
deserve acceptance:

hours
a
day
inside
Hacienda Manucao.
xxx xxx xxx

It is submitted that the

absences of petitioner in his
work from October 1982 to
December 1982, cannot be
construed as abandonment
of work because he has a
justifiable excuse. Petitioner
was
suffering
from
perennial abscess in the
peri-anal around the anus
and fistula under the
medical attention of Dr.
Patricio Tan of Riverside
Medical
Center,
Inc.,
Bacolod City (Tsn, Vol. III,
Dr. Tan, February 19, 1986
at 20-44).
This
fact
(was)
duly
communicated to private
respondent by medical bills
sent to Hacienda Manucao
(Tsn, Vol. III, Dr. Tan,
January 22, 1987 at 49-50).
During the period of his
illness
and
recovery,
petitioner stayed in Bacolod
City upon the instruction(s)
of private respondent to
recuperate thereat and to
handle only administrative
matters of the hacienda in
that city. As a manager,
petitioner is not really
obliged to live and stay 24

After
evaluating
the
evidence within the context
of
the
special
circumstances involved and
basic human experience,
petitioner's
illness
and
strained family relation with
respondent Jon de Ysasi II
may be considered as
justifiable
reason
for
petitioner Jon de Ysasi III's
absence from work during
the period of October 1982
to December 1982. In any
event, such absence does
not
warrant
outright
dismissal without notice and
hearing.
xxx xxx xxx
The
elements
of
abandonment as a ground
for
dismissal
of
an
employee are as follows:
(1) failure to
report for work
or
absence
without valid
or justifiable
reason; and
(2)
clear
intention
to
sever
the

employeremployee tie
(Samson
Alcantara, Re
viewer
in
Labor
and
Social
Legislation,
1989 edition,
p. 133).
This Honorable Court, in
several cases, illustrates
what
constitute
abandonment. In Dagupan
Bus
Company
v. NLRC (191 SCRA 328),
the Court rules that for
abandonment
to
arise,
there
must
be
a
concurrence of the intention
to abandon and some overt
act from which it may be
inferred that the employee
has no more interest to
work. Similarly, in Nueva
Ecija I Electric Cooperative,
Inc. v. NLRC(184
SCRA
25), for abandonment to
constitute a valid cause for
termination of employment,
there must be a deliberate,
unjustified refusal of the
employee to resume his
employment. . . Mere
absence is not sufficient; it
must be accompanied by
overt
acts
unerringly
pointing to the fact that the

employee simply does not

want to work anymore.
There
are
significant
indications in this case, that
there is no abandonment.
First, petitioner's absence
and his decision to leave
his
residence
inside
Hacienda
Manucao,
is
justified by his illness and
strained family relations.
Second he has some
medical certificates to show
his frail health. Third, once
able to work, petitioner
wrote a letter (Annex "J")
informing
private
respondent of his intention
to assume again his
employment. Last, but not
the least, he at once
instituted a complaint for
illegal dismissal when he
realized he was unjustly
dismissed. All these are
indications that petitioner
had no intention to abandon
his employment. 20
The records show that the parties herein
do not dispute the fact of petitioner's
confinement in the hospital for his various
afflictions
which
required
medical
treatment. Neither can it be denied that
private respondent was well aware of
petitioner's state of health as the former
admittedly shouldered part of the medical
and hospital bills and even advised the
latter to stay in Bacolod City until he was

fit to work again. The disagreement as to

whether or not petitioner's ailments were
so
serious
as
to
necessitate
hospitalization
and
corresponding
periods for recuperation is beside the
point. The fact remains that on account of
said illnesses, the details of which were
amply substantiated by the attending
physician, 21 and as the records are bereft
of any suggestion of malingering on the
part of petitioner, there was justifiable
cause for petitioner's absence from work.
We repeat, it is clear, deliberate and
unjustified refusal to resume employment
and not mere absence that is required to
constitute abandonment as a valid
ground for termination of employment. 22
With his position as farm administrator of
Hacienda
Manucao,
petitioner
unmistakably may be classified as a
managerial employee 23 to whom the law
grants an amount of discretion in the
discharge of his duties. This is why when
petitioner stated that "I assigned myself
where I want to go," 24 he was simply
being candid about what he could do
within the sphere of his authority. His
duties as farm administrator did not
strictly require him to keep regular hours
or to be at the office premises at all
times, or to be subjected to specific
control from his employer in every aspect
of his work. What is essential only is that
he runs the farm as efficiently and
effectively as possible and, while
petitioner may definitely not qualify as a
model employee, in this regard he proved
to be quite successful, as there was at
least a showing of increased production

during the time that petitioner was in

charge of farm operations.
If, as private respondent contends, he
had no control over petitioner during the
years 1983 to 1984, this is because that
was the period when petitioner was
recuperating from illness and on account
of which his attendance and direct
involvement in farm operations were
irregular and minimal, hence the
supervision and control exercisable by
private respondent as employer was
necessarily limited. It goes without saying
that the control contemplated refers only
to matters relating to his functions as
farm administrator and could not extend
to petitioner's personal affairs and
activities.
While it was taken for granted that for
purposes of discharging his duties as
farm administrator, petitioner would be
staying at the house in the farm, there
really was no explicit contractual
stipulation (as there was no formal
employment contract to begin with)
requiring him to stay therein for the
duration of his employment or that any
transfer of residence would justify the
termination of his employment. That
petitioner changed his residence should
not be taken against him, as this is
undeniably among his basic rights, nor
can such fact of transfer of residence per
se be a valid ground to terminate an
employer-employee relationship.
Private respondent, in his pleadings,
asserted that as he was yet uncertain of

his son's intention of returning to work

after his confinement in the hospital, he
kept petitioner on the payroll, reported
him as an employee of thehacienda for
social security purposes, and paid his
salaries and benefits with the mandated
deductions therefrom until the end of
December, 1982. It was only in January,
1983 when he became convinced that
petitioner would no longer return to work
that he considered the latter to have
abandoned his work and, for this reason,
no longer listed him as an employee.
According
to
private
respondent,
whatever amount of money was given to
petitioner
from
that
time
until
April, 1984 was in the nature of a pension
or an allowance or mere gratuitous doles
from a father to a son, and not salaries
as, in fact, none of the usual deductions
were made therefrom. It was only in April,
1984 that private respondent completely
stopped giving said pension or allowance
when he was angered by what he heard
petitioner had been saying about sending
him to jail.
Private respondent capitalizes on the
testimony of one Manolo Gomez taken
on oral deposition regarding petitioner's
alleged statement to him, "(h)e quemado
los (p)ue(n)tes de Manucao" ("I have
burned my bridges with Manucao") as
expressive of petitioner's intention to
abandon his job. In addition to
insinuations of sinister motives on the
part of petitioner in working at the farm
and thereafter abandoning the job upon
accomplishment of his objectives, private
respondent takes the novel position that

the agreement to support his son after

the latter abandoned the administration
of the farm legally converts the initial
abandonment to implied voluntary
resignation. 25
As earlier mentioned, petitioner ripostes
that private respondent undoubtedly
knew about petitioner's illness and even
paid for his hospital and other medical
bills.
The
assertion
regarding
abandonment of work, petitioner argues,
is further belied by his continued
performance of various services related
to the operations of the farm from May to
the last quarter of 1983, his persistent
inquiries from his father's accountant and
legal adviser about the reason why his
pension or allowance was discontinued
since April, 1984, and his indication of
having recovered and his willingness and
capability to resume his work at the farm
as expressed in a letter dated September
14,
1984. 26 With
these,
petitioner
contends that it is immaterial how the
monthly
pecuniary
amounts
are
designated, whether as salary, pension or
allowance, with or without deductions, as
he was entitled thereto in view of his
continued
service
as
farm
administrator. 27
To stress what was earlier mentioned, in
order that a finding of abandonment may
justly be made there must be a
concurrence of two elements, viz.: (1) the
failure to report for work or absence
without valid or justifiable reason, and (2)
a clear intention to sever the employeremployee relationship, with the second

element as the more determinative factor

and being manifested by some overt
acts. Such intent we find dismally wanting
in this case.
It will be recalled that private respondent
himself admitted being unsure of his
son's plans of returning to work. The
absence of petitioner from work since
mid-1982, prolonged though it may have
been, was not without valid causes of
which private respondent had full
knowledge. As to what convinced or led
him to believe that petitioner was no
longer returning to work, private
respondent
neither
explains
nor
substantiates by any reasonable basis
how he arrived at such a conclusion.
Moreover, private respondent's claim of
abandonment cannot be given credence
as even after January, 1983, when
private respondent supposedly "became
convinced" that petitioner would no
longer work at the farm, the latter
continued to perform services directly
required by his position as farm
administrator. These are duly and
correspondingly evidenced by such acts
as
picking
up
some
farm
machinery/equipment
from
G.A.
Machineries, Inc., 28 claiming and paying
for additional farm equipment and
machinery shipped by said firm from
Manila
to
Bacolod
through
Zip
Forwarders, 29 getting the payment of the
additional cash advances for molasses
for crop year 1983-1984 from Agrotex
Commodities, Inc., 30 and remitting to
private
respondent
through

Atty. Sumbingco the sums collected

along with receipts for medicine and oil. 31
It will be observed that all of these
chores, which petitioner took care of,
relate to the normal activities and
operations of the farm. True, it is a
father's prerogative to request or even
command his child to run errands for him.
In the present case, however, considering
the nature of these transactions, as well
as the property values and monetary
sums involved, it is unlikely that private
respondent would leave the matter to just
anyone. Prudence dictates that these
matters be handled by someone who can
be trusted or at least be held accountable
therefor, and who is familiar with the
terms, specifications and other details
relative thereto, such as an employee. If
indeed petitioner had abandoned his job
or was considered to have done so by
private respondent, it would be awkward,
or even out of place, to expect or to
oblige petitioner to concern himself with
matters relating to or expected of him
with respect to what would then be his
past and terminated employment. It is
hard to imagine what further authority an
employer can have over a dismissed
employee so as to compel him to
continue to perform work-related tasks:
It is also significant that the special power
of
attorney 32 executed
by private respondent on June 26, 1980
in favor of petitioner, specifically stating

xxx xxx xxx

That I, JON de YSASI,

Filipino, of legal age,
married, and a resident of
Hda. Manucao, hereinafter
called and referred to as
PRINCIPAL,
am
a
sugarcane planter, BISCOM
Mill District, and a duly
accredited planter-member
of
the
BINALBAGANISABELA
PLANTERS'
ASSOCIATION, INC.;
That as such plantermember of BIPA, I have
check/checks with BIPA
representing payment for all
checks and papers to which
I am entitled to (sic) as such
planter-member;
That
I
have
named,
appointed and constituted
as by these presents
I
HEREBY
NAME,
APPOINT
AND
CONSTITUTE as my true
and lawful ATTORNEY-INFACT
JON de YSASI III
whose specimen signature
is hereunder affixed, TO
GET FOR ME and in my
name, place and stead, my
check/checks
aforementioned,
said
ATTORNEY-IN-FACT being
herein given the power and

authority to sign for me and

in my name, place and
stead, the receipt or
receipts or payroll for the
said
check/checks.
PROVIDED,
HOWEVER,
that my said ATTORNEYIN-FACT cannot cash the
said check/checks, but to
turn the same over to me
for my proper disposition.
That I HEREBY RATIFY
AND CONFIRM the acts of
my
Attorney-in-Fact in getting
the said check/checks and
signing
the
receipts
therefor.
That I further request that
my said check/checks be
made
a
"CROSSED
CHECK".
xxx xxx xxx
remained in force even after petitioner's
employment was supposed to have been
terminated by reason of abandonment.
Furthermore,
petitioner's
numerous
requests for an explanation regarding the
stoppage
of
his
salaries
and
benefits, 33 the issuance of withholding
tax reports, 34 as well as correspondence
reporting his full recovery and readiness
to go back to work, 35 and, specifically, his
filing of the complaint for illegal dismissal
are hardly the acts of one who has
abandoned his work.

We are likewise not impressed by the

deposition of Manolo Gomez, as witness
for
private
respondent,
ascribing
statements to petitioner supposedly
indicative of the latter's intention to
abandon his work. We perceive the
irregularity in the taking of such
deposition without the presence of
petitioner's counsel, and the failure of
private respondent to serve reasonably
advance notice of its taking to said
counsel,
thereby
foreclosing
his
opportunity
to
cross-examine the deponent. Private
respondent also failed to serve notice
thereof on the Regional Arbitration
Branch No. VI of the NLRC, as certified
to by Administrative Assistant Celestina
G. Ovejera of said office. 36 Fair play
dictates that at such an important stage
of the proceedings, which involves the
taking of testimony, both parties must be
afforded equal opportunity to examine
and cross-examine a witness.
As to the monthly monetary amounts
given to petitioner, whether denominated
as salary, pension, allowance orex
gratia handout, there is no question as to
petitioner's entitlement thereto inasmuch
as he continued to perform services in his
capacity as farm administrator. The
change in description of said amounts
contained in the pay slips or in the
receipts prepared by private respondent
cannot be deemed to be determinative of
petitioner's employment status in view of
the peculiar circumstances above set out.
Besides, if such amounts were truly in the
nature of allowances given by a parent

out of concern for his child's welfare, it is

rather
unusual
that
receipts
therefor 37 should be necessary and
required as if they were ordinary
business expenditures.
Neither can we subscribe to private
respondent's theory that petitioner's
alleged abandonment was converted into
an implied voluntary resignation on
account of the father's agreement to
support his son after the latter
abandoned his work. As we have
determined that no abandonment took
place in this case, the monthly sums
received by petitioner, regardless of
designation, were in consideration for
services rendered emanating from an
employer-employee relationship and
were not of a character that can qualify
them as mere civil support given out of
parental duty and solicitude. We are also
hard put to imagine how abandonment
can be impliedly converted into a
voluntary resignation without any positive
act on the part of the employee
conveying a desire to terminate his
employment. The very concept of
resignation as a ground for termination
by
the
employee
of
his
employment38 does not square with the
elements constitutive of abandonment.
On procedural considerations, petitioner
posits that there was a violation by
private respondent of the due process
requirements under the Labor Code for
want of notice and hearing. 39 Private
respondent, in opposition, argues that
Section 2, Rule XIV, Book V of the

Omnibus Rules Implementing the Labor

Code applies only to cases where the
employer seeks to terminate the services
of an employee on any of the grounds
enumerated under Article 282 of the
Labor Code, but not to the situation
obtaining in this case where private
respondent did not dismiss petitioner on
any ground since it was petitioner who
allegedly abandoned his employment. 40
The due process requirements of notice
and hearing applicable to labor cases are
set out in Rule XIV, Book V of the
Omnibus Rules Implementing the Labor
Code in this wise:
Sec. 2. Notice of Dismissal.
Any employer who seeks
to dismiss a worker shall
furnish him a written notice
stating the particular acts or
omission(s) constituting the
grounds for his dismissal. In
cases of abandonment of
work, notice shall be served
at the worker's last known
address.
xxx xxx xxx
Sec.
5.
Answer
and
hearing. The worker may
answer the allegations as
stated against him in the
notice of dismissal within a
reasonable period from
receipt of such notice. The
employer shall afford the
worker ample opportunity to

be heard and to defend

himself with the assistance
of his representative, if he
so desires.
Sec. 6. Decision to dismiss.
The employer shall
immediately notify a worker
in writing of a decision to
dismiss him stating clearly
the reasons therefor.

them and such other

information as may be
required by the Ministry for
policy
guidance
and
statistical purposes.

xxx xxx xxx

Private respondent's argument is without

merit as there can be no question that
petitioner was denied his right to due
process since he was never given any
notice about his impending dismissal and
the grounds therefor, much less a chance
to be heard. Even as private respondent
controverts the applicability of the
mandatory
twin
requirements
of
procedural due process in this particular
case, he in effect admits that no notice
was served by him on petitioner. This fact
is corroborated by the certification issued
on September 5, 1984 by the Regional
Director for Region VI of the Department
of Labor that no notice of termination of
the employment of petitioner was
submitted thereto. 41

Sec.
11.
Report
of
dismissal. The employer
shall submit a monthly
report to the Regional
Office having jurisdiction
over the place of work at all
dismissals effected by him
during
the
month,
specifying
therein
the
names of the dismissed
workers, the reasons for
their dismissal, the dates of
commencement
and
termination of employment,
the positions last held by

Granting arguendo that

there
was
abandonment in this case, it nonetheless
cannot be denied that notice still had to
be served upon the employee sought to
be dismissed, as the second sentence of
Section 2 of the pertinent implementing
rules explicitly requires service thereof at
the employee's last known address, by
way of substantial compliance. While it is
conceded that it is the employer's
prerogative to terminate an employee,
especially when there is just cause
therefor, the requirements of due process
cannot be lightly taken. The law does not
countenance the arbitrary exercise of

Sec. 7. Right to contest

dismissal. Any decision
taken by the employer shall
be without prejudice to the
right of the worker to
contest the validity or
legality of his dismissal by
filing a complaint with the
Regional Branch of the
Commission.

such a power or prerogative when it has

the effect of undermining the fundamental
guarantee of security of tenure in favor of
the employee. 42
On the executive labor arbiter's
misplaced reliance on the Wenphil case,
the Solicitor General rejoins as follows:
The Labor Arbiter held thus:
While we are
in
full
agreement
with
the
respondent as
to his defense
of
implied
resignation
and/or
abandonment,
records
somehow
showed that
he failed to
notify
the
Department
of
Labor
and
Employment
for his sons'
(sic)/complain
ants'
(sic)
aba(n)donme
nt as required
by BP 130.
And for this
failure,
the
other requisite
for a valid

termination by
an employer
was
not
complied with.
This however,
would
not
work
to
invalidate the
otherwise (sic)
existence of a
valid cause for
dismissal. The
validity of the
cause
of
dismissal
must
be
upheld at all
times
provided
however that
sanctions
must
be
imposed
on
the
respondent for
his failure to
observe
the
notice on due
process
requirement.
(Wenphil
Corp.
v.
NLRC, G.R.
No.
80587).
(Decision
Labor Arbiter,
at
11-12,
Annex
"C"
Petition), . . .

This is thus a very different

case
from Wenphil
Corporation v. NLRC, 170
SCRA 69. In Wenphil, the
rule applied to the facts is:
once an employee is
dismissed for just cause, he
must not be rewarded
re-employment
and
backwages for failure of his
employer
to
observe
procedural due process.
The public policy behind
this is that, it may
encourage the employee to
do even worse and render a
mockery of the rules of
discipline required to be
observed. However, the
employer
must
be
penalized for his infraction
of due process. In the
present case, however, not
only
was
petitioner
dismissed
without
due
process, but his dismissal is
without
just
cause.
Petitioner did not abandon
his employment because he
has a justifiable excuse. 43
II. Petitioner avers that the executive
labor arbiter erred in disregarding the
mandatory provisions of Article 279 of the
Labor Code which entitles an illegally
dismissed employee to reinstatement
and back wages and, instead, affirmed
the imposition of the penalty of P5,000.00
on private respondent for violation of the
due process requirements. Private

respondent, for his part, maintains that

there was error in imposing the fine
because that penalty contemplates the
failure to submit the employer's report on
dismissed employees to the DOLE
regional office, as required under Section
5 (now, Section 11), Rule XIV of the
implementing rules, and not the failure to
serve notice upon the employee sought
to be dismissed by the employer.
Both the Constitution and the Labor Code
enunciate in no uncertain terms the right
of every worker to security of tenure. 44 To
give teeth to this constitutional and
statutory mandates, the Labor Code
spells out the relief available to an
employee in case of its denial:
Art. 279. Security of Tenure.
In cases of regular
employment, the employer
shall not terminate the
services of an employee
except for a just cause or
when authorized by this
Title. An employee who is
unjustly dismissed from
work shall be entitled to
reinstatement without loss
of seniority rights and other
privileges and to his full
backwages, inclusive of
allowances, and to his other
benefits of their monetary
equivalent computed from
the time his compensation
was withheld from him up to
the
time
of
actual
reinstatement.

Clearly, therefore, an employee is entitled

to reinstatement with full back wages in
the absence of just cause for
dismissal. 45 The Court, however, on
numerous occasions has tempered the
rigid application of said provision of the
Labor Code, recognizing that in some
cases certain events may have transpired
as would militate against the practicability
of granting the relief thereunder provided,
and declares that where there are
strained relations between the employer
and the employee, payment of back
wages and severance pay may be
awarded instead of reinstatement, 46 and
more particularly when managerial
employees are concerned. 47 Thus, where
reinstatement is no longer possible, it is
therefore appropriate that the dismissed
employee be given his fair and just share
of what the law accords him. 48
We note with favor and give our
imprimatur to the Solicitor General's
ratiocination, to wit:
As a general rule, an
employee who is unjustly
dismissed from work shall
be entitled to reinstatement
without loss of seniority
rights and to his backwages
computed from the time his
compensation was withheld
up to the time of his
reinstatement. (Morales vs.
NLRC, 188 SCRA 295). But
in Pacific
Cement
Company, Inc. vs. NLRC,
173
SCRA 192,
this

Honorable Court held that

when
it
comes
to
reinstatement, differences
should be made between
managers and the ordinary
workingmen. The Court
concluded that a company
which no longer trusts its
managers cannot operate
freely in a competitive and
profitable
manner. The
NLRC should know the
difference
between
managers and ordinary
workingmen.
It
cannot
imprudently
order
the
reinstatement of managers
with the same ease and
liberality as that of rank and
file workers who had been
terminated. Similarly, a
reinstatement may not be
appropriate or feasible in
case
of
antipathy
or
antagonism between the
parties (Morales, vs. NLRC,
188 SCRA 295).

III. Finally, petitioner insists on an award

of moral damages, arguing that his
dismissal from employment was attended
by bad faith or fraud, or constituted
oppression, or was contrary to morals,
good customs or public policy. He further
prays for exemplary damages to serve as
a deterrent against similar acts of unjust
dismissal by other employers.

In the present case, it is

submitted that petitioner
should not be reinstated as
farm
administrator
of
Hacienda Manucao. The
present
relationship
of
petitioner
and
private
respondent (is) so strained
that a harmonious and
peaceful
employeeemployer relationship is
hardly possible. 49

We are well aware of the Court's rulings

in a number of cases in the past allowing
recovery of moral damages where the
dismissal of the employee was attended
by bad faith or fraud, or constituted an act
oppressive to labor, or was done in a
manner contrary to morals, good customs
or public policy, 52 and of exemplary
damages if the dismissal was effected in
a wanton, oppressive or malevolent
manner. 53 We do not feel, however, that
an award of the damages prayed for in

Moral damages, under Article 2217 of the

Civil Code, may be awarded to
compensate one for diverse injuries such
as
mental
anguish,
besmirched
reputation, wounded feelings, and social
humiliation, provided that such injuries
spring from a wrongful act or omission of
the defendant which was the proximate
cause thereof. 50Exemplary damages,
under Article 2229, are imposed by way
of example or correction for the public
good, in addition to moral, temperate,
liquidated or compensatory damages.
They are not recoverable as a matter of
right, it being left to the court to decide
whether or not they should be
adjudicated. 51

this petition would be proper even if,

seemingly, the facts of the case justify
their allowance. In the aforestated cases
of illegal dismissal where moral and
exemplary damages were awarded, the
dismissed employees were genuinely
without fault and were undoubtedly
victims of the erring employers'
capricious exercise of power.
In the present case, we find that both
petitioner and private respondent can
equally be faulted for fanning the flames
which gave rise to and ultimately
aggravated this controversy, instead of
sincerely
negotiating
a
peaceful
settlement of their disparate claims. The
records reveal how their actuations
seethed with mutual antagonism and the
undeniable
enmity
between
them
negates the likelihood that either of them
acted in good faith. It is apparent that
each one has a cause for damages
against the other. For this reason, we
hold that no moral or exemplary
damages can rightfully be awarded to
petitioner.
On this score, we are once again
persuaded by the validity of the following
recommendation of the Solicitor General:
The Labor Arbiter's decision
in RAB Case No. 0452-84
should be modified. There
was
no
voluntary
abandonment in this case
because petitioner has a
justifiable excuse for his
absence, or such absence

does not warrant outright

dismissal without notice and
hearing.
Private
respondent, therefore, is
guilty of illegal dismissal.
He should be ordered to
pay backwages for a period
not exceeding three years
from date of dismissal. And
in lieu of reinstatement,
petitioner may be paid
separation pay equivalent
to one (1) month('s) salary
for every year of service, a
fraction of six months being
considered as one (1) year
in accordance with recent
jurisprudence (Tan, Jr. vs.
NLRC, 183 SCRA 651). But
all claims for damages
should be dismissed, for
both parties are equally at
fault. 54
The conduct of the respective counsel of
the parties, as revealed by the records,
sorely disappoints the Court and invites
reproof. Both counsel may well be
reminded that their ethical duty as
lawyers to represent their clients with
zeal 55 goes beyond merely presenting
their clients' respective causes in court. It
is just as much their responsibility, if not
more importantly, to exert all reasonable
efforts to smooth over legal conflicts,
preferably out of court and especially in
consideration of the direct and immediate
consanguineous ties between their
clients. Once again, we reiterate that the
useful function of a lawyer is not only to

conduct litigation but to avoid it whenever

possible by advising settlement or
withholding suit. He is often called upon
less for dramatic forensic exploits than for
wise counsel in every phase of life. He
should be a mediator for concord and a
conciliator for compromise, rather than a
virtuoso of technicality in the conduct of
litigation. 56
Rule 1.04 of the Code of Professional
Responsibility explicitly provides that "(a)
lawyer shall encourage his client to avoid,
end or settle the controversy if it will
admit of a fair settlement." On this point,
we find that both counsel herein fell short
of what was expected of them, despite
their avowed duties as officers of the
court. The records do not show that they
took pains to initiate steps geared toward
effecting a rapprochement between their
clients. On the contrary, their acerbic and
protracted exchanges could not but have
exacerbated the situation even as they
may have found favor in the equally
hostile eyes of their respective clients.
In the same manner, we find that the
labor arbiter who handled this regrettable
case has been less than faithful to the
letter and spirit of the Labor Code
mandating that a labor arbiter "shall exert
all efforts towards the amicable
settlement of a labor dispute within his
jurisdiction." 57 If he ever did so, or at
least entertained the thought, the copious
records of the proceedings in this
controversy are barren of any reflection
of the same.

One final word. This is one decision we

do not particularly relish having been
obliged to make. The task of resolving
cases
involving
disputes
among
members of a family leaves a bad taste in
the mouth and an aversion in the mind,
for no truly meaningful and enduring
resolution is really achieved in such
situations. While we are convinced that
we have adjudicated the legal issues
herein squarely on the bases of law and
jurisprudence, sanssentimentality, we are
saddened by the thought that we may
have failed to bring about the
reconciliation of the father and son who
figured as parties to this dispute, and that
our adherence here to law and duty may
unwittingly contribute to the breaking,
instead of the strengthening, of familial
bonds. In fine, neither of the parties
herein actually emerges victorious. It is
the Court's earnest hope, therefore, that
with the impartial exposition and
extended explanation of their respective
rights in this decision, the parties may
eventually see their way clear to an
ultimate resolution of their differences on
more convivial terms.
WHEREFORE,
the
decision
of
respondent National Labor Relations
Commission is hereby SET ASIDE.
Private respondent is ORDERED to pay
petitioner back wages for a period not
exceeding three (3) years, without
qualification or deduction, 58 and, in lieu of
reinstatement, separation pay equivalent
to one (1) month for every year of
service, a fraction of six (6) months being
considered as one (1) whole year.

SO ORDERED.
Narvasa, C.J., Padilla, Nocon and Puno,
JJ., concur.

Rule 2.02
A.C. No. 9259

Factual Antecedents
August 23, 2012

JASPER
JUNNO
F.
RODICA, Complainant,
vs.
ATTY.
MANUEL
"LOLONG"
M.
LAZARO, ATTY. EDWIN M. ESPEJO,
ATTY. ABEL M. ALMARIO, ATTY.
MICHELLE B. LAZARO, ATTY. JOSEPH
C.
TAN,
and
JOHN
DOES, Respondents.

On May 5, 2011, William Strong (Strong),

an American, was arrested and detained
by the operatives of the Bureau of
Immigration.
Strong
sought
the
assistance of Philip3 G. Apostol (Apostol),
a friend and neighbor, to secure the
services of a lawyer. Apostol referred him
to Atty. Manuel, who is a partner at the
M.M. Lazaro and Associates Law Office
(Lazaro Law Office).

"The power to disbar or suspend ought

always to be exercised on the
preservative and not on the vindictive
principle, with great caution and only for
the most weighty reasons."1

Atty. Manuel initially declined because his

law office only handles cases of its
retained clients and those known to him
or
any
of
the
associate
lawyers.4 However, he was eventually
prevailed upon by Apostol who would
consider it as a special favor if Atty.
Manuel would handle Strongs case.
Hence, Atty. Manuel, together with Atty.
Almario and Atty. Espejo, senior and
junior associates, respectively, at the
Lazaro Law Office, agreed to meet
Strong at the Taguig Detention Center of
the Bureau of Immigration.5

This is a Complaint2 for disbarment filed

by Jasper Junno F. Rodica (Rodica)
against Atty. Manuel "Lolong" M. Lazaro
(Atty. Manuel), Atty. Edwin M. Espejo
(Atty. Espejo), Atty. Abel M. Almario, (Atty.
Almario), Atty. Michelle B. Lazaro (Atty.
Michelle), and Atty. Joseph C. Tan (Atty.
Tan) for gross and serious misconduct,
deceit, malpractice, grossly immoral
conduct, and violation of the Code of
Professional Responsibility.

During the meeting, Atty. Manuel

explained to Strong the terms of the
Lazaro Law Offices engagement as well
as the fees. Strong assured him of his
capacity to pay and offered to pay a
success fee of US$100,000.00 should
the said law office be able to expedite his
release from detention as well as his
departure from the Philippines.6 Finding
Strong to be believable and trustworthy,
Atty. Manuel agreed to handle his case.7

LEONARDO-DE CASTRO,

PERLAS-BERNABE,**
RESOLUTION
DEL CASTILLO, J.:

During the course of their meeting,

Strong casually mentioned that he has a
property in Boracay and that he
suspected his neighbors as the persons
who caused his arrest. According to
Strong, his live-in partner Rodica filed a
Complaint before the Regional Trial Court
(RTC) of Kalibo, Aklan, for recovery of
possession
and
damages8(against
Hillview
Marketing
9
Corporation (Hillview),
Stephanie
Dornau (Dornau) as President of Hillview,
the
Alargo
Park
Neighborhood
Association, Inc. and spouses Robert and
Judy Gregoire) in connection with the
353-square meter property they bought in
Boracay. He disclosed that he and
Rodica had been trying to sell the
Boracay property to rid themselves of the
problems but could not find buyers
because of the said case. They even
offered the property to Apostol but the
latter was hesitant because of the said
pending case. Atty. Manuel averred that
towards the end of the interview with
Strong, Rodica arrived. Strong described
Rodica as his "handyman" who will act as
his liaison in the case.
Upon inquiry with the Bureau of
Immigration, it was discovered that
Strongs arrest was made pursuant to an
Interpol Red Notice; and that Strong is
wanted in Brazil for Conspiracy to
Commit Fraud, Setting Up a Gang and
Other Related Crimes. Specifically,
Strong is being indicted for his alleged
involvement in "an international gang
involved in shares fraud which led to the
creation of hundreds of millions of dollars

in illegal securities."10 Strong denied any

participation in the alleged crime. Strong
then pleaded with Atty. Manuel to
expedite his deportation to any country
except Brazil and reiterated his
willingness to pay the success fee of
US$100,000.00.

contrary to her expectations, there was

no "simultaneous over-all settlement of
her grievances x x x [with] the defendants
[in the RTC] case.12 Thinking that she
was deceived, Rodica filed the instant
administrative case. In sum, she claimed
that:

In her Complaint, Rodica alleged that in

one of her meetings with the lawyers of
the Lazaro Law Office, she hinted that
Atty. Tan, a senior partner at the Marcos
Ochoa Serapio Tan and Associates
(MOST Law) and who is also the lawyer
of Hillview and Dornau, was instrumental
in the immigration case of Strong.
According to Rodica, Atty. Manuel called
up Atty. Tan. Thereafter, Atty. Manuel
allegedly informed Rodica that Atty. Tan
admitted having initiated the immigration
case resulting in the detention of Strong;
that Atty. Tan threatened to do something
bad against Rodica and her family; and
that Atty. Tan demanded for Rodica to
withdraw the RTC case as part of a
settlement package.

21.
RESPONDENT
ATTORNEYS
(MANUEL, MICHELLE, EDWIN and
ABEL)
of
M.M.
LAZARO
&
ASSOCIATES, furthermore, committed
GRAVE MISCONDUCT & DECEIT to
complainant and the courts when (among
other things):

On May 25, 2011, the Bureau of

Immigration,
rendered
its
11
Judgment granting the motion of Strong
to voluntarily leave the country. On May
31, 2011, Strong left the Philippines.
Subsequently, or on June 6, 2011,
Rodica filed with the RTC a motion
effectively withdrawing her complaint.
Rodica alleged that after the deportation
of Strong and the withdrawal of the RTC
case, she heard nothing from the Lazaro
Law Office. She also claimed that

(a.) they mis-represented to

complainant that the withdrawal of
her case at the Regional Trial
Court at Kalibo (Branch VI-Civil
Case No. 8987) was only the first
step in an over-all settlement
package of all her differences with
her legal adversaries (i.e. Hillview
Marketing Corporation and the
latters officials / Stephanie Dornau
/ Atty. Joseph Tan etc.), which
respondent Manuel M. Lazaro had
allegedly already taken care of ;
(b.) they extorted from her more
than P 7 MILLION for alleged
professional / legal fees and
PENALTIES involved in William
Strongs immigration case, when
what actually happened was (c.) as complainant came to know
later, almost all of said amount
was allegedly used as "pay-off" to

immigration,
police
and
Malaca[]ang officials as well as
Atty. Joseph Tan, and as graft
money/ kotong / lagay / "tongpats", for the expeditious approval
of Mr. William Strongs voluntary
deportation plea with the Bureau
of Immigration ;
(d.) they even shamelessly denied
the status of the complainant as
their client, just so that they can
evade their responsibility to her ;
(e.)
they
even
submitted
concocted stories (re Mr. Apostols
purchase bid for the Boracay villa
of complainant; Atty. Espejos
attempt to cover-up for Lolong
Lazaro
and
accept
sole
responsibility for signing the
questioned manifestation and
withdrawal documents last May
24, 2011, and many others) with
the Regional Trial Court of Kalibo
(Branch VI) just so that they can
hide the truth, hide their crimes
and go scot free ;
22. RESPONDENT Atty. JOSEPH C.
TAN on the other hand performed as a
willing partner of ATTY. MANUEL M.
LAZARO by acting as conduit to his
Malacaang patron ("JOHN DOE") in
causing the arrest of William Strong last
May 5, 2011, and in packaging with
Lolong Lazaro of the magic formula
regarding William Strongs voluntary
deportation bid and the conditions

attached
thereto
explained ;

as

sufficiently

xxxx
23. RESPONDENTS also violated THEIR
OATH AS x x x ATTORNEYS, especially
with the phrases ". . . I will obey the
laws . . . I will do no falsehood, nor
consent to the doing of any in court ; . . . I
will delay no man for money or malice . . .
with all good fidelity as well to the courts
as to my clients . . . " ;13
Otherwise stated, Rodica claimed that
she is a client of the Lazaro Law Office
and that she was deceived into causing
the withdrawal of the RTC case. Further,
she claimed that the Lazaro Law Office
collected exorbitant fees from her.
In their Comment, Atty. Almario and Atty.
Espejo admitted being present in the May
13, 2011 meeting with Rodica. They
denied, however, that Atty. Manuel talked
with Atty. Tan during the said meeting, or
conveyed the information that Atty. Tan
and the group of Dornau were the ones
behind Strongs arrest and detention.
Atty. Almario and Atty. Espejo disputed
Rodicas assertion that the withdrawal of
the RTC case was a condition sine qua
non to Strongs departure from the
country. They pointed out that the
Manifestation with Motion to Withdraw
Motion for Reconsideration14 was filed
only on June 3, 2011,15 or nine days after
the May 25, 2011 Judgment of the
Bureau of Immigration was issued, and

three days after Strong left the country on

May 31, 2011. They insisted that Rodica
withdrew the RTC case because it was
one of the conditions set by Apostol
before buying the Boracay property.
As to the preparation of Rodicas Motion
to Withdraw Motion for Reconsideration
relative to the RTC case, Atty. Espejo
claimed that the former begged him to
prepare the said motion. Since the two
already became close friends, Atty.
Espejo accommodated Rodicas request.
He admitted to acceding to Rodicas
requests to put the name of the Lazaro
Law Office, the names of its partners, as
well as his name, in the motion and into
signing the same, without the prior
knowledge and consent of the other
senior lawyers of the firm. Atty. Espejo
claimed that he did all of these out of his
good intention to help and assist Rodica
in making the Boracay property more
saleable by freeing it from any pending
claims.
In
his
Comment,16 Atty.
Manuel
contended that none of the lawyers of the
Lazaro Law Office communicated with
Atty. Tan relative to the deportation
proceedings or the RTC case. He
claimed that it was highly improbable for
the Lazaro Law Office to impress upon
Rodica that it will coordinate with Atty.
Tan for the withdrawal of the RTC case to
expedite the deportation proceedings as
the RTC case was already dismissed as
early as March 29, 2011 for failure to
state a cause of action. Atty. Manuel
averred that the two cases are

incongruous with each other and one

cannot be used to compromise the other.
Atty. Joseph Tans Arguments
For his part, Atty. Tan asserted that the
allegations against him are "double
hearsay" because the same were based
on information allegedly relayed to
Rodica by Atty. Manuel, who, in turn,
allegedly heard it from Atty. Tan. 17He
denied any participation in the withdrawal
of the RTC case and the arrest and
deportation of Strong.
Atty. Tan stressed that Strong was
deported on May 31, 2011. Three days
thereafter, or on June 3, 2011, Rodica,
with the assistance of her counsel of
record, Atty. Joan I. Tabanar-Ibutnande
(Atty. Ibutnande), filed the Manifestation
with Motion to Withdraw Motion for
Reconsideration. He averred that if it is
indeed true, as Rodica alleged, that the
filing of the said motion was a precondition
to
Strongs
voluntary
deportation, then the filing of the same
should
have
preceded
Strongs
deportation. However, it was the reverse
in this case.
Atty. Tan also pointed out that it would be
inconceivable for him to participate in
Strongs arrest as he had already
obtained a favorable ruling "on the
merits" for his clients in the RTC case
even before Strong was arrested and
incarcerated. Besides, Strong is not a
party and had nothing to do with the RTC
case. Atty. Tan likewise denied having

any dealings with the rest of the

respondents insofar as the arrest and
voluntary deportation of Strong are
concerned. Neither did he receive any
phone call or message from his corespondents nor did he communicate
with them in any manner regarding
Strongs case.
Issue
The sole issue to be resolved is whether
the allegations in Rodicas Complaint
merit the disbarment or suspension of
respondents.
Our Ruling
In Siao v. Atty. De Guzman, Jr., 18 this
Court reiterated its oft repeated ruling
that in suspension or disbarment
proceedings,
lawyers
enjoy
the
presumption of innocence, and the
burden of proof rests upon the
complainant to clearly prove her
allegations by preponderant evidence.
Elaborating on the required quantum of
proof, this Court declared thus:
Preponderance of evidence means that
the evidence adduced by one side is, as
a whole, superior to or has greater weight
than that of the other. It means evidence
which is more convincing to the court as
worthy of belief than that which is offered
in opposition thereto. Under Section 1 of
Rule 133, in determining whether or not
there is preponderance of evidence, the
court may consider the following: (a) all
the facts and circumstances of the case;

(b) the witnesses manner of testifying,

their intelligence, their means and
opportunity of knowing the facts to which
they are testifying, the nature of the facts
to which they testify, the probability or
improbability of their testimony; (c) the
witnesses interest or want of interest,
and also their personal credibility so far
as the same may ultimately appear in the
trial; and (d) the number of witnesses,
although it does not mean that
preponderance is necessarily with the
greater number. (Citations omitted.)
In the absence of preponderant
evidence, the presumption of innocence
of the lawyer continues and the complaint
against him must be dismissed.19
In the present case, the totality of
evidence presented by Rodica failed to
overcome the said presumption of
innocence.
Rodicas claim of "settlement package"
is devoid of merit.
Rodicas assertions that Atty. Tan
orchestrated Strongs arrest and that Atty.
Manuel proposed the withdrawal of the
RTC case to facilitate the deportation of
Strong, are mere allegations without
proof and belied by the records of the
case. "The basic rule is that mere
allegation is not evidence, and is not
equivalent to proof."20 Aside from her
bare assertions, Rodica failed to present
even an iota of evidence to prove her
allegations. In fact, the records belie her
claims. The documents issued by the

Bureau of Immigration showed that

Strong was the subject of the Interpol
Red Notice for being a fugitive from
justice wanted for crimes allegedly
committed in Brazil.21 His warrant of
arrest was issued sometime in February
2008. Significantly, even before Strong
was arrested and eventually deported,
Atty. Tan had already obtained a
favorable judgment for his clients.
We also agree that it is highly
inconceivable for Atty. Tan and the
Lazaro Law Office to concoct the scheme
of "pressuring" Rodica to withdraw the
RTC case for the purpose of expediting
the deportation proceedings of Strong.
The following facts are undisputed: (1)
Rodicas counsel of record in the RTC is
Atty. Ibutnande; (2) the RTC case was
already dismissed in the Order22 of March
29, 2011 for failure to state a cause of
action; (3) on April 18, 2011, Rodica
through her counsel of record filed a
Motion for Reconsideration; (4) on May 5,
2011, Strong was arrested and detained
pursuant to an Interpol Red Notice; (5)
Strong hired the Lazaro Law Office to
handle his deportation case; (6) on May
19, 2011 Strong filed a Manifestation with
Omnibus Motion to voluntarily leave the
country; (7) the Bureau of Immigration
rendered a Judgment23 dated May 25,
2011 granting Strongs motion to
voluntarily leave the country; (8) Strong
left the country on May 31, 2011; (9)
Rodicas Manifestation with Motion to
Withdraw the Motion for Reconsideration
was filed on June 6, 2011; and, (8) acting
on the said Manifestation with Motion, the

RTC on June 14, 2011 issued an

Order24 granting the same.
Given the chronology of events, there
appears no relation between the
deportation case and the withdrawal of
the RTC case. Thus, it would be specious
if not far-fetched to conclude that the
withdrawal of the RTC case was a precondition to Strongs deportation.
As regards the alleged participation of
Atty. Manuel in the "settlement package"
theory of Rodica, suffice it to say that
Atty. Manuel has in his favor "the
presumption that, as an officer of the
court, he regularly performs the duties
imposed upon him by his oath as a
lawyer and by the Code of Professional
Responsibility." 25 Hence,
absent
any
competent evidence to the contrary, Atty.
Manuel, as Strongs counsel, is
presumed to have worked out the release
and subsequent deportation of his client
in
accordance
with
the
proper
procedures.
Preponderance of evidence shows that
Rodica caused the withdrawal of the
RTC case to facilitate the sale of the
Boracay property to Apostol.
We cannot lend credence to Rodicas
allegation that she was deceived by Atty.
Manuel, Atty. Espejo, Atty. Almario and
Atty. Michelle, another senior associate at
the Lazaro Law Office, into believing that
the withdrawal of the RTC case was part
of a settlement package to settle her
differences with her legal adversaries.

We accord more credence to the

explanation
of
the
respondents,
particularly Atty. Espejo, that in the
course of rendering legal services to
Strong, he had become close to Rodica
so much so that he accommodated
Rodicas request to cause the withdrawal
of the RTC case to facilitate the sale of
the Boracay property to Apostol.
In their Joint Comment,26 respondents
Attys. Almario, Espejo and Michelle
debunked the opinion of Rodicas "wellmeaning lawyer friends" that the
withdrawal of the RTC case "absolve[d]
all defendants from any wrong-doing"
and made "the contents of her original
complaint practically meaningless." Atty.
Almario and Atty. Espejo opined that
since the dismissal of Rodicas complaint
was based on her failure to state a cause
of action and without prejudice, the same
may simply be re-filed by revising her
complaint and ensuring that it states a
cause of action.
As argued by Atty. Manuel, he and his
lawyers only acted in the best interest of
their client Strong and rendered services
in accordance with the latters objective
of leaving the country and not being
deported to Brazil. The Lazaro Law Office
cannot be faulted for the dismissal of the
RTC case because it had already been
dismissed even before the Lazaro Law
Office was engaged to handle Strongs
immigration case. Besides, Rodica
admittedly agreed to withdraw her RTC
case to meet Apostols condition and to
make the property marketable.

Apostol corroborated Atty. Manuels

statement in his Affidavit 27 of July 21,
2011. He affirmed that he told Rodica that
he would only consider purchasing the
Boracay property if it is cleared of any
pending case so that he can protect
himself, as a buyer, from any possible
issues that may crop up involving the
said property. According to him, Rodica
assured him that she would work for the
termination of the RTC case and consult
her lawyers in Boracay on the matter so
she could already sell the property.
It is difficult to imagine that Rodica was
deceived by some of the respondent
lawyers into believing that the withdrawal
of the RTC case was only the initial step
in the settlement of her differences with
her adversaries.28 We went over the said
Manifestation with Motion to Withdraw
the Motion for Reconsideration29 and we
note that paragraph 6 thereof specifically
states:
6. However, the Plaintiff respectfully
manifests that after much serious thought
and deliberation, and considering the
anxieties caused by the pendency of the
instant case, Plaintiff is no longer
interested in pursuing the case.
Accordingly, Plaintiff respectfully moves
for the withdrawal of the Motion for
Reconsideration dated April 14, 2011 of
the Order dated March 29, 2011
dismissing the instant Complaint filed on
April 18, 2011.30
As already noted by the RTC, Branch 6,
Kalibo, Aklan in its Order31 dated April 4,

2011, in the case for recovery of

possession with damages:32
This Manifestation was signed by plaintiff,
her Manila lawyers and Atty. Joan
Ibutnande, plaintiffs counsel on record.
From the statements made by plaintiff in
her Manifestation to Withdraw Motion for
Reconsideration that she had made
serious thoughts and deliberation she
cannot now say that she was
manipulated and forced in signing the
same. The Court perceives plaintiff to be
an intelligent woman not to be swayed of
her
principles
and
beliefs
and
manipulated by others, she may have a
fickle mind when it comes to other things
but definitely it can not be applied to the
Court.
The Court does not see the connection
between the instant case and that of
William Strong as alleged by the plaintiff.
Mr. Strong is not a party in this case,
even plaintiffs counsel thought so too.
From the Motion for Reconsideration filed
by Atty. Joan Ibutnande, it was stated in
paragraph 5: "That the undersigned
counsel was baffled as she did not see
any connection [between] the incident
surrounding the arrest of Mr. William
Strong and the above-entitled case filed
by the [plaintiff], and told the plaintiff
about it x x x." As Mr. Strong is not a
party in the instance case, his affairs
whatever they are can not dictate the
outcome of this case.33
Moreover, it would appear from her own
narration that Rodica is not someone who

is nave or ignorant. In her complaint, she

claimed to be an astute businesswoman
who even has some business in
Barcelona, Spain.34 Thus, the more
reason we cannot lend credence to her
claim that she was tricked into believing
that the withdrawal of the RTC case was
only preliminary to the complete
settlement of all her differences with her
perceived adversaries. If such had been
the agreement, then a Compromise
Agreement enumerating all the terms and
conditions should have been filed instead
of the Manifestation with Motion to
Withdraw the Motion for Reconsideration.
In addition, the withdrawal should not
have been limited to the RTC case as it
appears that there are other cases
pending with other tribunals and
agencies35 involving the same parties. If
Rodica is to be believed, then these
cases should likewise have been
dismissed in order to achieve the full and
complete settlement of her concerns with
her adversaries.
From the above and by preponderance of
evidence, it is clear that Rodicas purpose
in withdrawing the RTC case is to pave
the way for Apostol to purchase the
Boracay property. In fact, Rodica
eventually executed a Deed of Absolute
Sale in favor of Apostol over the Boracay
property.36
Rodicas claim of paying more than P 7
million to the Lazaro Law Office is not
substantiated.

There is likewise no merit in Rodicas

allegation that the Lazaro Law Office
extorted from her more than P 7 million
for alleged professional and legal fees
and penalties relative to Strongs
immigration case. To support her claim,
Rodica attached four statements of
account issued by the Lazaro Law Office
for US$2,650.00 under Statement of
Account No. 13837,37 US$2,400.00 under
Statement
of
Account
No.
13838,38 US$1,550.00 under Statement
of Account No. 1383939 and US$8,650.00
under Statement of Account No.
13835,40 or for a total amount of
US$15,250.00. She likewise presented
photocopies of portions of her dollar
savings account passbook to show where
the aforesaid funds came from.
Considering the prevailing exchange rate
at that time, the Court notes that the sum
total of the abovementioned figures in its
peso equivalent is far less than P 7
million. In fact, the statements of account
even support the contention of Atty.
Manuel that Strong failed to fully pay the
amount of US$100,000.00 as success
fee. Anent the alleged withdrawals from
Rodicas dollar savings account, the
same merely established that she made
those withdrawals. They do not constitute
as competent proof that the amounts so
withdrawn were indeed paid to Lazaro
Law Office.
Rodica was not the client of the Lazaro
Law Office.

Rodica also faulted the Lazaro Law

Office lawyers for disclaiming that she is
their client. However, Rodica admitted in
paragraph 5 of her unnotarized Sworn
Affidavit41 that Atty. Manuel and his
lawyer-assistants were "engaged by
William Strong to handle his case with
the Philippine immigration authorities."
Thus, this Court is more inclined to
believe that the Lazaro Law Office
agreed to handle only the deportation
case of Strong and such acceptance
cannot be construed as to include the
RTC case. In fact, all the billings of
Lazaro Law Office pertained to the
immigration case, and not to the RTC
case. To reiterate, the RTC case has
nothing to do with Strongs deportation
case. Records also show that the RTC
case was filed long before Strong was
arrested and detained. In fact, it had
already been dismissed by the trial court
long before Strong engaged the legal
services of the Lazaro Law Office. More
importantly, Strong is not a party to the
RTC case. Also, the counsel of record of
Rodica in the RTC case is Atty.
Ibutnande, and not the Lazaro Law
Office. There is nothing on record that
would show that respondent Attys.
Manuel, Michelle, and Almario had any
participation therein.
Atty. Espejos participation in the RTC
case.
However, we cannot say the same as
regards Atty. Espejo. He admitted drafting
Rodicas Manifestation and Motion to
Withdraw Motion for Reconsideration

indicating therein the firm name of the

Lazaro Law Office as well as his name
and the names of Atty. Manuel and Atty.
Michelle without the knowledge and
consent of his superiors, and in likewise
affixing his signature thereon.
Atty. Espejo acknowledged committing
the abovementioned acts as a way of
assisting Rodica who had already
become his close friend. Atty. Espejos
admissions are as follows:
11. Atty. Espejo further recounts that after
being advised to simply withdraw her
Motion for Reconsideration ("MR"),
Rodica pleaded with Atty. Espejo to
prepare the documents required to be
filed with the RTC x x x to spare her
Boracay lawyers from preparing the
same. Atty. Espejo accommodated
Jasper and drafted the Manifestation with
Motion
to
Withdraw
Motion
for
Reconsideration ("Motion to Withdraw
MR") to be given to Rodicas Boracay
counsel, Atty. Joan I. Tabanar-Ibutnande,
who is in a better position to evaluate the
merit of the withdrawal of the MR.
11.1. Upon seeing Atty. Espejos initial
draft, Rodica requested Atty. Espejo to
include x x x the name of the Lazaro Law
Office as signatory allegedly to give more
credence and weight to the pleading and
to show the defendants in the RTC case
her sincere intention to terminate the
case.
Due to Rodicas pleas and insistence,
Atty. Espejo, who among all lawyers of

the Lazaro Law Office, became the most

familiar and "chummy" with Rodica,
agreed to include the Lazaro Law Office
and put his name as the signatory for the
Office. Still not satisfied, Rodica pleaded
with Atty. Espejo to further revise the
Motion to Withdraw MR to include the
names of Atty. Manuel and Atty. Michelle
as signatories and represented that she
herself will cause them to sign it. Relying
on Rodicas representations that she
would speak to Atty. Manuel about the
matter, Atty. Espejo obliged to include the
name of Atty. Michelle and Atty. Manuel.
Rodica repeatedly reminded Atty. Espejo
not to bother Atty. Manuel on the matter
and that she herself will take it up with
Atty. Manuel at the proper time.
11.2 Atty. Espejo has a soft heart. He
signed the pleading only with good
intentions of helping and assisting
Rodica, the common law wife of a client,
whom he had learned to fancy because
of being constantly together and
attending to her. He never thought ill of
Rodica and believed her when she said
she would speak to Atty. Lazaro about
the matter as represented. Atty. Espejo
only agreed to sign the pleading for
purposes of withdrawing Rodicas MR to
attain Rodicas purpose or desired result
and objective to convince or facilitate
the sale to Apostol and/or to make the
property more marketable to interested
buyers and to attain peace with the
defendants in the RTC case. Evidently,
Rodica took advantage of Atty. Espejos
youth and naivete and manipulated him
to do things on her behalf, and

deliberately excluded Atty. Almario the

senior lawyer. Rodica preferred to
discuss matters with Atty. Espejo than
with Atty. Almario as the latter often
contradicts her views. Atty. Espejo
apologized to Atty. Manuel for allowing
himself to be manipulated by Rodica.42
At the outset, Atty. Espejo was well aware
that Rodica was represented by another
counsel in the RTC case. As a practicing
lawyer, he should know that it is the said
counsel, Atty. Ibutnande, who has the
duty to prepare the said motion. In fact,
he himself stated that it is Atty. Ibutnande
who is in a better position to evaluate the
merit of the withdrawal of the Motion for
Reconsideration.
Atty. Espejos claim that he drafted and
signed the pleading just to extend
assistance to Rodica deserves scant
consideration. It is true that under Rules
2.01 and 2.02, Canon 2 of the Code of
Professional Responsibility, a lawyer
shall not reject, except for valid reasons,
the cause of the defenseless or the
oppressed, and in such cases, even if he
does not accept a case, shall not refuse
to render legal advise to the person
concerned if only to the extent necessary
to safeguard the latters right. However,
in this case, Rodica cannot be
considered as defenseless or oppressed
considering that she is properly
represented by counsel in the RTC case.
Needless to state, her rights are amply
safeguarded. It would have been different
had Rodica not been represented by any
lawyer, which, however, is not the case.

Moreover, the Court wonders why Atty.

Espejo, knowing fully well that Rodica is
not their law firms client and without the
knowledge and consent of his superiors,
gave in to Rodicas request for him to
indicate in the said motion the names of
his law firm, Atty. Manuel and Atty.
Michelle for the purpose of "giving more
weight and credit to the pleading." As a
member of the bar, Atty. Espejo ought to
know that motions and pleadings filed in
courts are acted upon in accordance with
their merit or lack of it, and not on the
reputation of the law firm or the lawyer
filing the same. More importantly, he
should have thought that in so doing, he
was actually assisting Rodica in
misrepresenting before the RTC that she
was being represented by the said law
firm and lawyers, when in truth she was
not.
It is well to remind Atty. Espejo that
before being a friend to Rodica, he is first
and foremost an officer of the
court.43Hence, he is expected to maintain
a high standard of honesty and fair
dealings and must conduct himself
beyond reproach at all times.44 He must
likewise ensure that he acts within the
bounds of reason and common sense,
always aware that he is an instrument of
truth and justice.45 As shown by his
actuations. Atty. Espejo fell short of what
is expected of him. Under the
circumstances, Atty. Espejo should have
exercised prudence by first diligently
studying the soundness of Rodicas pleas
and the repercussions of his acts.

We note that on August 5, 2011, or even

before the filing of the disbarment
complaint, Atty. Espejo already caused
the filing of his Motion to Withdraw
Appearance46 before the RTC. Therein,
Atty. Espejo already expressed remorse
and sincere apologies to the RTC for
wrongly employing the name of the
Lazaro Law Office. Considering that Atty.
Espejo is newly admitted to the Bar
(2010), we deem it proper to warm him to
be more circumspect and prudent in his
actuations.
WHEREFORE, premises considered, the
instant Complaint for disbarment against
respondents Atty. Manuel "Lolong" M.
Lazaro, Atty. Edwin M. Espejo, Atty. Abel
M. Almario, Atty. Michelle B. Lazaro and
Atty. Joseph C. Tan is DISMISSED. Atty.
Edwin M. Espejo is WARNED to be more
circumspect and
prudent in
his
actuations.
SO ORDERED.

Rule 2.03
A.C. No. 6672
2009

Complainant
also
"respondents" calling card:6
September 4,

attached

Front

SERVICES OFFERED:

PEDRO L. LINSANGAN, Complainant,

vs.
ATTY.
NICOMEDES
TOLENTINO, Respondent.

NICOMEDES
TOLENTINO

RESOLUTION

LAW OFFFICE

CORONA, J.:

CONSULTANCY
&
MARITIME SERVICES
W/
FINANCIAL
ASSISTANCE

This is a complaint for disbarment 1 filed

by Pedro Linsangan of the Linsangan
Linsangan & Linsangan Law Office
against Atty. Nicomedes Tolentino for
solicitation of clients and encroachment
of professional services.

Fe Marie
Paralegal
1st MIJI
Mansion,
2nd Flr.
Rm. M01
6th Ave.,
cor M.H.
Del Pilar
Grace
Park,
Caloocan
City

Complainant alleged that respondent,

with the help of paralegal Fe Marie
Labiano, convinced his clients2 to transfer
legal
representation.
Respondent
promised them financial assistance3 and
expeditious collection on their claims. 4To
induce them to hire his services, he
persistently called them and sent them
text messages.
To support his allegations, complainant
presented the sworn affidavit5 of James
Gregorio attesting that Labiano tried to
prevail upon him to sever his lawyerclient relations with complainant and
utilize respondents services instead, in
exchange for a loan of P50,000.

Back

L.

Labiano

Tel: 3627820
Fax:
(632)
3627821
Cel.:
(0926)
2701719

CONSULTATION AND
ASSISTANCE
TO
OVERSEAS
SEAMEN
REPATRIATED DUE TO
ACCIDENT,
INJURY,
ILLNESS,
SICKNESS,
DEATH
AND
INSURANCE
BENEFIT
CLAIMS
ABROAD.
1avvphi1

(emphasis supplied)
Hence, this complaint.
Respondent, in his defense, denied
knowing Labiano and authorizing the
printing and circulation of the said calling
card.7
The complaint was referred to the
Commission on Bar Discipline (CBD) of
the Integrated Bar of the Philippines (IBP)
for
investigation,
report
and
8
recommendation.
Based on testimonial and documentary
evidence, the CBD, in its report and

recommendation,9 found that respondent

had encroached on the professional
practice of complainant, violating Rule
8.0210 and other canons11of the Code of
Professional
Responsibility
(CPR).
Moreover, he contravened the rule
against soliciting cases for gain,
personally or through paid agents or
brokers as stated in Section 27, Rule
13812 of the Rules of Court. Hence, the
CBD recommended that respondent be
reprimanded with a stern warning that
any repetition would merit a heavier
penalty.

Time and time again, lawyers are

reminded that the practice of law is a
profession and not a business; lawyers
should not advertise their talents as
merchants advertise their wares.13 To
allow a lawyer to advertise his talent or
skill is to commercialize the practice of
law, degrade the profession in the
publics estimation and impair its ability to
efficiently render that high character of
service to which every member of the bar
is called.14

We adopt the findings of the IBP on the

unethical conduct of respondent but we
modify the recommended penalty.

RULE 2.03. A lawyer shall not do or

permit to be done any act designed
primarily to solicit legal business.

The complaint before us is rooted on the

alleged intrusion by respondent into
complainants professional practice in
violation of Rule 8.02 of the CPR. And the
means employed by respondent in
furtherance of the said misconduct
themselves constituted distinct violations
of ethical rules.

Hence, lawyers are prohibited from

soliciting cases for the purpose of gain,
either personally or through paid agents
or brokers.15 Such actuation constitutes
malpractice, a ground for disbarment.16

Canons of the CPR are rules of conduct

all lawyers must adhere to, including the
manner by which a lawyers services are
to be made known. Thus, Canon 3 of the
CPR provides:
CANON 3 - A lawyer in making known his
legal services shall use only true, honest,
fair, dignified and objective information or
statement of facts.

Rule 2.03 of the CPR provides:

Rule 2.03 should be read in connection

with Rule 1.03 of the CPR which
provides:
RULE 1.03. A lawyer shall not, for any
corrupt motive or interest, encourage any
suit or proceeding or delay any mans
cause.
This rule proscribes "ambulance chasing"
(the solicitation of almost any kind of
legal business by an attorney, personally
or through an agent in order to gain
employment)17 as a measure to protect

the community
champerty.18

from

barratry

and

Complainant
presented
substantial
evidence19 (consisting of the sworn
statements of the very same persons
coaxed by Labiano and referred to
respondents office) to prove that
respondent
indeed
solicited
legal
business as well as profited from
referrals suits.
Although respondent initially denied
knowing Labiano in his answer, he later
admitted it during the mandatory hearing.
Through Labianos actions, respondents
law practice was benefited. Hapless
seamen were enticed to transfer
representation on the strength of
Labianos word that respondent could
produce a more favorable result.
Based on the foregoing, respondent
clearly solicited employment violating
Rule 2.03, and Rule 1.03 and Canon 3 of
the CPR and Section 27, Rule 138 of the
Rules of Court.1avvphi1
With regard to respondents violation of
Rule 8.02 of the CPR, settled is the rule
that a lawyer should not steal another
lawyers client nor induce the latter to
retain him by a promise of better service,
good result or reduced fees for his
services.20 Again the Court notes that
respondent never denied having these
seafarers in his client list nor receiving
benefits from Labianos "referrals."
Furthermore, he never denied Labianos

connection to his office.21Respondent

committed an unethical, predatory
overstep into anothers legal practice. He
cannot escape liability under Rule 8.02 of
the CPR.
Moreover, by engaging in a moneylending venture with his clients as
borrowers, respondent violated Rule
16.04:
Rule 16.04 A lawyer shall not borrow
money from his client unless the clients
interests are fully protected by the nature
of the case or by independent advice.
Neither shall a lawyer lend money to a
client except, when in the interest of
justice, he has to advance necessary
expenses in a legal matter he is handling
for the client.
The rule is that a lawyer shall not lend
money to his client. The only exception
is, when in the interest of justice, he has
to advance necessary expenses (such as
filing fees, stenographers fees for
transcript of stenographic notes, cash
bond or premium for surety bond, etc.) for
a matter that he is handling for the client.
The rule is intended to safeguard the
lawyers independence of mind so that
the free exercise of his judgment may not
be adversely affected.22 It seeks to
ensure his undivided attention to the
case he is handling as well as his entire
devotion and fidelity to the clients cause.
If the lawyer lends money to the client in
connection with the clients case, the
lawyer in effect acquires an interest in the

subject matter of the case or an

additional stake in its outcome.23 Either of
these circumstances may lead the lawyer
to consider his own recovery rather than
that of his client, or to accept a settlement
which may take care of his interest in the
verdict to the prejudice of the client in
violation of his duty of undivided fidelity to
the clients cause.24
As previously mentioned, any act of
solicitation
constitutes
25
malpractice which calls for the exercise
of the Courts disciplinary powers.
Violation of anti-solicitation statutes
warrants serious sanctions for initiating
contact with a prospective client for the
purpose
of
obtaining
26
employment. Thus, in this jurisdiction,
we adhere to the rule to protect the public
from the Machiavellian machinations of
unscrupulous lawyers and to uphold the
nobility of the legal profession.
Considering the myriad infractions of
respondent (including violation of the
prohibition on lending money to clients),
the sanction recommended by the IBP, a
mere reprimand, is a wimpy slap on the
wrist. The proposed penalty is grossly
incommensurate to its findings.
A final word regarding the calling card
presented in evidence by petitioner. A
lawyers best advertisement is a wellmerited reputation for professional
capacity and fidelity to trust based on his
character and conduct.27 For this reason,
lawyers are only allowed to announce
their services by publication in reputable

law lists or use of simple professional

cards.
Professional calling cards may only
contain the following details:
(a) lawyers name;
(b) name of the law firm with which
he is connected;
(c) address;
(d) telephone number and
(e) special
practiced.28

branch

of

law

Labianos calling card contained the

phrase "with financial assistance." The
phrase was clearly used to entice clients
(who already had representation) to
change counsels with a promise of loans
to finance their legal actions. Money was
dangled to lure clients away from their
original
lawyers,
thereby
taking
advantage of their financial distress and
emotional vulnerability. This crass
commercialism degraded the integrity of
the bar and deserved no place in the
legal profession. However, in the
absence of substantial evidence to prove
his culpability, the Court is not prepared
to rule that respondent was personally
and directly responsible for the printing
and distribution of Labianos calling
cards.
WHEREFORE,
respondent
Atty.
Nicomedes Tolentino for violating Rules

1.03, 2.03, 8.02 and 16.04 and Canon 3

of
the
Code
of
Professional
Responsibility and Section 27, Rule 138
of
the
Rules
of
Court
is
hereby SUSPENDEDfrom the practice
of law for a period of one year effective
immediately from receipt of this
resolution. He isSTERNLY WARNED that
a repetition of the same or similar acts in
the future shall be dealt with more
severely.
Let a copy of this Resolution be made
part of his records in the Office of the Bar
Confidant, Supreme Court of the
Philippines, and be furnished to the
Integrated Bar of the Philippines and the
Office of the Court Administrator to be
circulated to all courts.
SO ORDERED.