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CASE NAME: Gonzales-Austria ( w/ Fuertes and Servando) v Abaya ( w/ Cardenas) Author: Rolando J. Tabinga

DATE: August 23, 1989 Subject: ETHICS

AM No. R-705-RTJ

DOCTRINE: Generally speaking, a lawyer who holds a government office may not be disciplined as a member of the bar for misconduct in the discharge of
his duties as a government official. However, if that misconduct as a government official is of such a character as to affect his qualification as a lawyer or to
show moral delinquency, then he may be disciplined as a member of the bar on such ground.

FACTS:

I. Complainants Atty. Ligaya Gonzales-Austria (Atty. Austria), Leonila Fuertes (Fuertes), and Edgardo Servando (Servando) have filed a case against
Judge Emmanuel M. Abaya (Judge Abaya) of RTC Br. 51 of Puerto Princesa City (MABUHAY! Hometown ko!) on the following grounds:
a. Estafa through falsification of public or official documents, by verifying official hours rendered by a certain Anabelle Cardenas (Cardenas)
who has never reported for duty, and by receiving salaries of said Cardenas through the forgery of the Cardenas signature, thus deceiving the
government and defrauding the govt of bug amount of money.
b. Gross dishonesty and corruption by soliciting, demanding, receiving bribed money in exchanged for favorable resolutions and decisions
from different litigations in Br. 52, where Abaya has been temporarily assigned.
c. Illegal exaction of portion of the salaries of his subordinate Servando as part and condition of his continued employment in Br. 51, where Abaya
is the presiding judge.
II. Judge Abaya has denied all the accusations against him. He says that these accusations are in retaliation of Atty Austria against (1) the administrative
case that Judge Abaya has earlier filed against one of his accusers, Atty. Austria, for dishonesty and grave misconduct in having forged Judge
Abayas signature in a probation order in a criminal case i which the latter presiding and (2) for the disbarment of said Atty Austria based on the
same alleged offense.
III. After Atty Austria files her comment, the court has consolidated the cases. The court has granted the MR of complainants, which adjoins Cardenas as
defendant, along with Judge Abaya, in this said case.
IV. The case is referred to Court of Appeals Justice Oscar M. Herrera (fiat!) for investigation, report and recommendation. Justice Herrera find Judge
Abaya and Cerdenas guilty of the charges against them and thereby recommends:
a. FORFEITURE of retirement benefits of Judge Abaya except earned leave credits;
b. REMOVAL of Annabelle Cardenas from office as Court Stenographer;
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c. ONE-YEAR SUSPENSION from office as Attorney of Atty. Austria.

ISSUE/S: (a) WON Judge Abaya is guilty of all the accusations imputed against him. Yes, only in respect to letters a and b

(b) WON Atty Austria is guilty of dishonesty and misconduct. Assuming yes, is she disbarred?

(a) First issue:

a.1 Estafa thru Falsification of public or official documents the court finds that Cardenas, having allegedly worked as Stenographic Reporter of Br.
51, is a ghost employee of the court who has never reported to work. Cardenas has been working at a Travel Agency and studying in college during the
periods where she allegedly has worked in court. Based on the evidence presented, it shows that Cardenas is enrolled at Holy Trinity College during her
tenure as Court Stenographic. The school records show that Cardenas has attended her classes from 2:00 PM to 8:15 PM during the same time that she has
worked in court from 8am 5pm.. Though she avers that one of her professors has permitted her to attend her work first, school records reveal that she has
been enrolled not only in one subject but also to several more. Thus, the court finds that it is impossible for her to work in that said court with incurring no
absences and tardiness while having enrolled in college and having worked in a Travel Agency. Moreover, the court finds that Judge Abaya is really the one
who falsifies the daily time records and receives salaries of Cardenas with knowledge and consent of the latter. However, no proof to support Atty Astrias
theory that Judge Abaya has appropriated the money for himself.

a.2 Gross dishonesty and corruption by soliciting, demanding, receiving bribed Judge Abaya is, at that time, temporarily assigned as the
presiding judge of Br. 52 where he has successfully solicited, demanded and received a bribe from Leonila Fuentes, a teacher, on his promise that he shall
deny the bail of the accused who has killed her (Fuentes) son. Judge Abaya is the one who has solicited and demanded the bride. At first, Feuntes is reluctant
to accept the offer. However, after having consulted her family and her city prosecutor friend, Feuntes has given in to the demands of Judge Abaya by paying
the latter a certain amount, which is actually lower than the agreed amount. Judge Abaya alleges that Fuentes has only testified against him because of the
brainwashing of Atty. Austria to Fuentes. The court affirms the findings of Justice Herrera that Fuentes has no improper motive to impute such a serious
offense against said judge; thus, the court gives credence to the given testimonies of Fuentes.

a.3 Illegal exaction It is alleged that Judge Abaya has exacted the portions of two employees(Servando is one of the employees here) in Br. 51 of
Puerto Princesa RTC as a condition for their continued employment. The court gives respondent Judge Abaya the benefit of the doubt.

HELD/RULING of 1st issue: In summation, the court find Judge Abaya guilt of grave and serious misconduct affecting his moral characted which would
have warrented his dismissal from the service had his resignation not been accepted. The court forfeits all of his retirement benefits except earned leave
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credits. Annabelle Cardenas is dimissed from office with prejudice to her reappointment to the Judiciary.

The judge is the visible representation of the law and of justice. From him, the people draw their will and awareness to obey the law. For him then to
transgress the highest ideals of justice and public service for personal gain is indeed a demoralizing example constituting a valid cause for disenchantment
and loss of confidence in the judiciary as well as in the civil service system.

By these acts, Judge Abaya has demonstrated his unfitness and unworthiness of the honor and requisites attached to his office.

(b) second issue (dishonesty and misconduct/disbarment of Atty Austria) - The complaints for dishonesty and grave misconduct and for disbarment
against Atty. Ligaya Gonzales-Austria, then Clerk of Court of Branch 52, RTC Palawan, stem from her act of having allegedly forged the signature of Judge
Abaya in a probation order in Criminal Case entitled "People vs. Leonardo Cruz" for attempted homicide. Atty Austria admits to having signed said
probations orders but done with knowledge and consent of Judge Abaya. Because of workload, Judge Abaya is not able to sign and promulgate the said
order, which causes further delay for the probational release of Cruz. Cruz has personally come to the courthouse of Judge Abaya to beg the latter to sign said
order, however, he has again forgotten to sign it. Atty Austria, acting as clerk of court, is the one who promulgates said order. She justifies her action under
the theory of agency (Art 1881 of the Civil Code) in that having been granted full authority to promulgate the probation order, she necessarily had the
authority to sign the Judge's name if the need arose. She further maintains that as Judge Abaya never complained about the alleged forgery, he is deemed to
have ratified it and is now estopped from questioning her authority. Lastly, she compares the probation order to a writ of execution which is usually done by
the Clerk of Court. The court affirms the findings of Justice Herrera that the duties of the clerk of court in the absence of any express direction of the judge is
well defined under section 5, Rule 136 of the Rules of Court. Signing orders in the name of, and simulating the signature of the judge is not included under
said Rule. Wherefore, the court ACCEPTS the resignation of AttyAustria and DECLARES the forfeiture of her salaries and SUSPENDS her as a
member of the bar for one (1) year.
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