PROBLEM AREAS IN LEGAL ETHICS | ATTY. J.
G CAPANAS
EH 401 | 2019-2020
TOPIC: Responsible and professional behavior
SPS. JACINTO VS. BANGOT
A.C. NO. 8494
FACTS:
A complaint brought by Spouses Jacinto against Atty. Bangot Jr.
for his unjust and dishonest treatment of them as his clients. The
Spouses consulted respondent, briefing him of their concern
and delivering the documents pertinent to their land. Atty.
Bangot told them that he would initiate a case for certiorari in
their behalf to nullify the order of the reconstitution , he
insinuated that one of their lots would be his attorney’s fees and
at first they did not initially agree because the lots were already
allocated to each of their 7 children but ultimately consented to
giving him only a portion of Lot No. 37926-H of 250 sq. meters.
Soon after, the respondent unilaterally prepared the
“Memorandum of Agreement”
MEMORANDUM OF AGREEMENT KNOW ALL MEN BY
THESE PRESENTS: I, ATTY. EMELIE P. BANGOT, JR., of legal
age, married and a resident of Lot 13, Block 1, Xavier Heights
Subd., Upper Balulang, Cagayan de Oro City, hereinafter
referred as the FIRST PARTY; and WE, SPOUSES EMILIO
JACINTO AND ALICIA JACINTO, both legal age, and
residents of Cagayan de Oro City, herein referred as the
SECOND PARTY; WITNESSETH:
1. That the FIRST PARTY shall be the counsel/lawyer of the
SECOND PARTY, regarding their parcel of land formerly
covered by Original Certificate of Title No. P-3387 with an area
of 4,138 sq. m., located at Kauswagan, Cagayan de Oro City,
presently subdivided into 8 lots with individual certificate of
titles (sic);
2. That the First Party shall get 300 sq. m., from Lot No. 37925-G
covered by TCT No. 121708; 3. That this agreement shall take
effect immediately upon the signing of the parties (sic) cannot
be revoked, amended or modified by the Second Party without
the consent of the First Party. The Spouses recalled that Atty.
Bangot requested them to proceed to his law office.
When they arrived, the daughter of Atty. Bangot handed to
them 2 sets of documents for their signatures. Because of full
trust, they did not bother reading the contents of the documents.
Per instruction, they brought the papers to their friend lawyer
for notarization and after notarization they returned to the office
where they were given their personal file without reading every
detail of the documents. Upon arriving in their home, they read
the contents of the MOA and were surprised that the true
intentions of their previous discussion were not reflected in the
MOA, it was not also signed by Atty. Bangot and neither were
there any witness signatures. The errors of the MOA were that
the lot indicated was the lot which could no longer be disposed
of since they were already committed to their children and that
the area had been increased to 300 sq. meters. They decided to
see Atty. Bangot to have the MOA revoked and as a gesture of
acknowledging his efforts, they offered to pay him in cash but
he refused to revoke the MOA because his wife was not
amenable to such an idea. They averred that he even challenged
them to file an appropriate case in court against him rather than
agree with our pleading for payment of cash. To their surprise,
the manifestation filed by Atty. Bangot was not a preparatory
pleading for certiorari so they contended that they were
deceived by Atty. Bangot into believing that the Manifestation
he filed would stop any legal disturbance on their property and
the same was a preparatory for certiorari.
IBP Commissioner: Suspended from the practice of law for one
year for his unfair and injudicious treatment.
IBP Board of Governors: Suspended for 2 years.
ISSUE:
Did Atty. Bangot violate his ethical duties as a member of the
Bar in his dealings with the Spouses?
RULING:
YES. He grossly violated his lawyer’s oath and his ethical duties
as an attorney because he did not observe candor and fairness
in his dealings with his clients. The MOA was not fair to the
parties and entered into in good faith.
To determine the reasonableness of attorney's fees, the
following factors as enumerated in Rule 20.1 of the Code of
Professional Responsibility may serve as a guide, to wit: (a) the
time spent and the extent of the services rendered or required;
(b) the novelty and difficulty of the questions involved; (c) the
importance of the subject matter; (d) the skill demanded; (e) the
probability of losing other employment as a result of acceptance
of the proffered case; (f) the customary charges for similar
services and the schedule of fees of the IBP chapter to which he
belongs; (g) the amount involved in the controversy and the
benefits resulting to the client from the service; (h) the
contingency or
certainty of compensation; (i) the character of the employment,
whether occasional or established; and (j) the professional
standing of the lawyer.
It was not disputed that only the filing of the two-page
Manifestation for Information constituted the respondent's
rendition of professional services for the complainants. This
Manifestation for Information was not even the procedural
precursor of the promised petition for certiorari. Moreover, he
did not actually file the petition for certiorari. And, lastly, he did
nothing more after filing the Manifestation for Information. He
certainly transgressed the Lawyer's Oath by receiving property
of a substantial value from the complainants after having made
them believe that he could ensure their land from intrusion by
third parties. He took advantage of them who had reposed their
full trust and confidence in his ability to perform the task by
virtue of his being a lawyer. He was definitely bent on obtaining
Lot No. 37925-G than in protecting the complainants' interest in
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their property. He exhibited this zeal by refusing their offer to
give cash for his attorney's fees instead of the land. We sadly
note in this connection that his changing the property ostensibly
agreed upon with the bigger lot as payment for his legal services
reflected his deceit at the start of the relationship. He
maintained the deceit by ultimately enforcing the MOA against
them through the action for specific performance.
Surely, the totality of the respondent's actuations inevitably
eroded public trust in the Legal Profession. On the basis of his
acts and actuations, the attorney's fees in the form of the lot he
charged from them were unconscionable and unreasonable.
The respondent appears to have impressed on the complainants
at the time of their negotiations that the attorney's fees in the
form of the lot would be delivered to him only on a contingent
basis. Again, he had misrepresented himself to them because the
express terms of the MOA stipulated that "this agreement shall
take effect immediately upon the signing of the parties [and]
cannot be revoked, amended or modified by the Second Party
without the consent of the First Party."
Section 24, Rule 138 of the Rules of Court explicitly provides:
Section 24. Compensation of attorneys; agreement as to fees. —
An attorney shall be entitled to have and recover from his client
no more than a reasonable compensation for his services, with a
view to the importance of the subject matter of the controversy,
the extent of the services rendered, and the professional
standing of the attorney. xxx
All the foregoing circumstances established that the respondent
was deceitful, dishonest and
unreasonable in his dealings with the complainants as his
clients. He thus violated his Lawyer's Oath, whereby he vowed,
among others, to do no falsehood, and not to consent to the
doing of any falsehood, as well as not to delay any man's cause
for money or malice but to conduct himself as a lawyer
according to the best of his knowledge and discretion "with all
good fidelity as well to the courts as to [his] clients. He also
breached the following canons of the Code of Professional
Responsibility, to wit: ● Rule 1.01 — A lawyer shall not engage
in unlawful, dishonest, immoral or deceitful conduct. ● Canon
15 — A lawyer shall observe candor, fairness and loyalty in all
his dealings and transactions with his clients. ● Canon 17 — A
lawyer owes fidelity to the cause of his client and he shall be
mindful of the trust and confidence reposed in him. ● Canon
18.03 — A lawyer shall not neglect a legal matter entrusted to
him, and his negligence in connection therewith shall render
him liable. ● Canon 20 — A lawyer shall charge only fair and
reasonable fees. ● Rule 20.4 — A lawyer shall avoid
controversies with clients concerning his compensation and
shall resort to judicial action only to prevent imposition,
injustice or fraud.
Although the complainants appeared to have initially bound
themselves to give a part of their land as the respondent's
professional fees, they did so apparently because he had
misrepresented to them the gravity and extent of their legal
matter. His misrepresentation was undeniably calculated to
make them part with their valuable asset in lieu of cash. He did
not thereafter render any worthy professional legal service in
their favor. Verily, as the cliché́ goes, they did not get their
money's worth from him. Even if this charge was his first
infraction, the grossness of his violations of the Lawyer's Oath
and the various relevant canons of the Code of Professional
Responsibility quoted earlier absolutely warranted his
suspension from the practice of law for 5 years effective upon
his receipt of this decision, with warning of sterner sanctions
should he hereafter commit a similar offense. In addition, the
respondent should not be entitled to receive any attorney's fees
in view of the worthlessness of the professional services he
supposedly rendered.
PASOK VS. ZAPATOS
A.C. NO. 7388
FACTS:
This is an administrative case concerning a retired RTC judge
who took on a case he had intervened while he was an MTCC
judge. Complainant was the counsel of the plaintiff in the said
case.
Respondent was former Presiding Judge of RTC Ozamis. Before
he became as such, he was the Presiding Judge of the MTCC
Tangub City where he presided over a Forcible Entry case, in
which judgment was rendered against Pasok’s client, Rupinta.
Another civil case was filed by Rupinta for Declaration of
Nullity of Deed of Absolute Sale, presided by Zapatos. When
the case was already scheduled for trial on the merits,
respondent suspended the hearing "motu proprio" since there
were still affirmative defenses raised by the defendants. This
prompted the plaintiff to file a Manifestation and Memorandum
which made respondent to inhibit himself from trying the case.
Respondent was appointed as Presiding Judge of RTC, then
later on he retired. Complainant was surprised when he
received a Manifestation from the defendants that they are now
represented by the respondent.
The case was appealed to the RTC. Despite the warning of the
complainant that the appearance of respondent is highly illegal,
immoral, unethical and adverse to the interest of the public,
respondent continued on with his appearance for the
defendants. Complainant filed a Motion to Expunge from the
Court Records the Memorandum filed by the defendants
through their counsel Ex-MTC and RTC Judge Zapatos, on the
ground that as the former presiding judge of the MTCC, Tangub
City, he is disqualified to appear as counsel for the defendants.
Respondent’s Defenses:
- Respondent raised that he cannot be charged nor
penalized for any violation as the counsel of the
defendants because when he rendered the first
judgment in the Forcible Entry case, he believes he was
completely in absolute neutrality.
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- Respondent, likewise, justified his appearance as
counsel for the defendants on the ground that he is
encountering extreme poverty due to the absence of
adequate income and as a source of livelihood he was
constrained to handle the aforesaid case.
- 4 years after he retired from the judiciary and more
than 10 years after he inhibited himself from
conducting trial on the civil case, he represented the
defendants in the civil case.
RTC denied the complainant's motion despite the fact that
respondent admitted the allegations in his Comment. Hence this
administrative complaint
IBP Ruling: Guilty of violating Rule 6.03 or CPR – suspension
for 1 month.
ISSUE:
WON Zapatos is guilty of violating Rule 6.03 of the CPR?
RULING:
Rule 6.03 of the Code of Professional Responsibility provides:
Rule 6.03. A lawyer shall not, after leaving government service, accept
engagement or employment in connection with any matter in which
he had intervened while in said service.
This rule traces its lineage to Canon 36 of the Canons of
Professional Ethics as discussed in the case of PCGG v.
Sandiganbayan:
36. Retirement from judicial position or public employment
A lawyer should not accept employment as an advocate in any matter
upon the merits of which he has previously acted in a judicial capacity.
A lawyer, having once held public office or having been in the public
employ should not, after his retirement, accept employment in
connection with any matter he has investigated or passed upon while
in such office or employ.
To come within the ambit of Rule 6.03 the respondent must be
shown to have accepted the engagement or employment in
relation to a matter that, by virtue of his judicial office, he had
previously exercised power to influence the outcome of the
proceedings. ITCAB, respondent, in his capacity as the judge of
the MTCC of Tangub, presided over the case before eventually
inhibiting himself. His act of presiding constituted intervention
within the meaning of the rule whose text does not mention the
degree or length of the intervention in the particular case or
matter.
It is also plain and unquestionable that Canon 36, prohibited
him as a former member of the Bench from handling any case
upon which he had previously acted in a judicial capacity. In
this context, he not only exercised the power to influence the
outcome of the proceedings but also had a direct hand in
bringing about the result of the case by virtue of his having the
power to rule on it.
The restriction extended to engagement or employment. The
respondent could not accept work or employment from anyone
that would involve or relate to any matter in which he had
intervened as a judge except on behalf of the body or authority
that he served during his public employment. The restriction as
applied to him lasted beyond his tenure in relation to the
matters in which he had intervened as judge. Accordingly, the
fact that he was already retired from the Bench, or that he was
already in the private practice of law when he was engaged for
the case was inconsequential.
As to the defense of poverty, although we can understand his
current situation and sympathize with him, his actuations
cannot be overlooked because they contravened the express
letter and spirit of Rule 6.03. In any case, his representing the
defendants in the civil cases was not the only way by which he
could improve his dire financial situation.
CHUA VS. DE CASTRO
A.C. NO. 10671
FACTS:
Chua alleged that his company, Nemar Computer Resources
Corp. (NCRC) filed a collection case against Dr. Aguila
Memorial College, represented by its counsel, Atty. De Castro.
According to Chua, since the filing of the collection case, it took
more than five (5) years to present one witness of NCRC due to
Atty. De Castro's propensity to seek postponements of agreed
hearing dates for unmeritorious excuses. Atty. De Castro's
flimsy excuses would vary from simple absence without notice,
to claims of alleged ailment unbacked by any medical
certificates, to claims of not being ready despite sufficient time
given to prepare, to the sending of a representative lawyer who
would profess non-knowledge of the case to seek continuance,
to a plea for the postponement without providing any reason
therefore.
Atty. De Castro:
● Countered that his pleas for continuance and resetting
were based on valid grounds.
● Pointed out that most of the resetting was without the
objection of the counsel for NCRC, and that, certain
resettings were even at the instance of the latter.
CBD:
● Found Atty. De Castro to have violated Canons 10, 11,
12 and 13 of the CPR when he deterred the speedy and
efficient administration of justice by deliberately
employing delaying tactics in the civil case.
● Recommended that he be suspended from the practice
of law for a period of six (6) months from notice, with
a warning that a similar lapse in the future may
warrant more severe sanctions.
IBP Board of Governors: Adopted and approved with
modification the Report and Recommendation of the CBD. They
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reduced the period of suspension from six (6) months to three
(3) months.
The Court affirmed the recommendation of the IBP Board of
Governors and held that Atty. De Castro violated his oath of
office in his handling of the collection case filed against his
client.
Atty. De Castro:
● Filed the present motion for reconsideration alleging
that the findings of malice, bad faith, and deliberate
intent on his part were merely based on the Summary
of Hearings and Reports of the Court, a self-serving
and misleading evidence submitted by the
complainant Chua.
● Argues that it is not an official document, but merely a
narration of the accusations of Chua.
● Disputes the allegations of Chua averring that the long
delay in the disposition of the collection case before the
RTC was due to the several postponements which
were found meritorious by the RTC. In fact, some
postponements were at the motions and at the instance
of Chua's counsel.
● Asseverates that he will soon be a septuagenarian. He
has been active in the academe, teaching law subjects
and preparing bar candidates for the Bar examinations.
His record as a lawyer is untarnished.
● States that if indeed he has committed professional
lapses in his schedules, these were not deliberate,
dishonest, malicious and with no ill motives.
ISSUE:
Whether or not to grant Atty. De Castro’s MR on the ground
that the delay is without malice, bad faith, and deliberate intent
on his part that would warrant the penalty imposed upon him
by the IBP-BOG, as affirmed by this Court.
RULING:
YES. After a second hard look at the facts of the case, relevant
laws, and jurisprudence, the Court finds merit in the motion for
reconsideration. (Pero naa gi-ADMONISH siya)
1. There is no debate that lawyers are instruments of the Court
in the administration of justice throughout the country.
● They are expected to maintain not only legal
proficiency but also a high standard of ethics, honesty,
integrity and fair dealing. Only in this way will the
people's faith and confidence in the judicial system be
ensured.
● A lawyer indubitably owes fidelity to the cause of his
clients, and is thus expected to serve the client with
competence and utmost diligence. He is enabled to
utilize every honorable means to defend the cause of
his client and secure what is due the latter.
Under the CPR, every lawyer is required to exert every effort
and consider it his duty to assist in the speedy and efficient
administration of justice. Yet, this obligation is not without
limitations. The CPR obliges him to employ only fair and honest
means to attain the lawful objectives of the client.
● The lawyer must then strike an even balance between
his fidelity to the Court and the legal profession on one
hand, and his commitment to the cause of his client, on
the other.
2. The Court has the authority to impose the proper disciplinary
sanctions on any member of the Bar found culpable for
misconduct.
● The Court has the responsibility to protect the
reputation of any member of the Bar who is
wrongfully or improperly charged.
● The burden of proving unethical conduct in every case
of disbarment or other administrative sanction rests on
the complainant, who is then bound to establish the
charge by clear, convincing and satisfactory evidence
before the Court wields its disciplinary power.
3. Here, Atty. De Castro professed only good intentions from the
very moment he accepted to defend, allegedly pro bono, the Dr.
Concepcion Aguila Memorial College of Batangas City, his alma
mater, in the civil case.
● He initially moved for and obtained the dismissal of
the complaint, but such dismissal was eventually
reversed on motion of the plaintiff.
● Thereafter, according to Chua, Atty. De Castro caused
various postponements and delays resulting in taking
more than five (5) years to present one witness.
4. The Court finds that the delay in the disposition of the civil
case was not solely attributable to Atty. De Castro.
● The trial court itself, either at its own initiative or at the
instance of Chua's counsel, allowed the delays.
● Consequently, if not all of such delays were
attributable to Atty. De Castro's doing, it would be
unfair to hold him solely responsible for the delays
caused in the case.
● Moreover, it appears that the trial court granted Atty.
De Castro's several motions for resetting of the trial;
and that at no time did the trial court sanction or cite
him for contempt of court for abuse on account of such
motions.
● Verily, if his explanations for whatever delays he
might have caused were accepted by the trial court
without any reservations or conditions, there would be
no legitimate grievance to be justly raised against him
on the matter.
Initially, the IBP and the Court similarly found Atty. De Castro
guilty of professional misconduct. The basis for the finding was
Rule 1.03 and Rule 10.3 of the CPR.
While Atty. De Castro's repeated requests for resetting and
postponement of the trial of the case may be considered as
contemptuous if there was a showing of abuse on his part, the
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Court, however, finds that Chua failed to show that Atty. De
Castro was indeed moved to cause delays by malice, or
dishonesty, or deceit, or grave misconduct as to warrant a
finding of administrative liability against him. The operative
phrase for causing delay in any suit or proceeding under Rule
1.03 is "for any corrupt motive or interest."
● Considering that this matter concerned Atty. De
Castro's state of mind, Chua failed to present sufficient
evidence of the overt acts committed by Atty. De
Castro that demonstrated his having deliberately
intended thereby to do wrong or to cause damage to
him and his business.
● On the contrary, there was a clear indication that the
postponements of the hearing at Atty. De Castro's
instance were mostly sanctioned by the trial court,
which negated or foreclosed malice, or dishonesty, or
deceit, or grave misconduct.
● The motions to re-set were based on grounds such as
the possibility for an amicable settlement, trips abroad
for an emergency medical treatment, and to attend a
son's graduation from the University of California,
which are not flimsy excuses.
5. Notwithstanding the absence of malice, dishonesty, or ill
motive, it is good to remind Atty. De Castro that as a member of
the Bar, he is expected to exert every effort and consider it his
duty to assist in the speedy and efficient administration of
justice and to be more circumspect whenever seeking the
postponements of cases. The Court reiterates what was stated in
Miwa v. Atty. Medina, that members of the Bar are exhorted:
To handle only as many cases as they can efficiently
handle. For it is not enough that a practitioner is qualified to
handle a legal matter, he is also required to prepare
adequately and give the appropriate attention to his legal
work. A lawyer owes entire devotion to the cause of his
client, warmth and zeal in the defense and maintenance of
his rights, and the exertion of his learning and utmost ability
that nothing can be taken or withheld from his client except
in accordance with law.
6. Violations of the Rules cannot be countenanced. Also, the
Court will not hesitate to refrain from imposing the appropriate
penalties in the presence of mitigating factors, such as the
respondent's length of service as a member of the Bar,
acknowledgment of his infraction, voluntary offer of
conciliation to the complainant, unblemished career,
humanitarian and equitable considerations, and respondents
advanced age, among other things, which have varying
significance in the Court's determination of the imposable
penalty. It may likewise be stated that the power to discipline
should be exercised on the preservative and not on the
vindictive principle.
7. Considering the Court's earlier discussion that the
responsibility for the delays caused in the case did not fall
exclusively on the shoulders of Atty. De Castro, punishing him
with suspension from the practice of law for three (3) months
would be disproportionate to the acts imputable to him.
● More so, that the trial court itself did not consider his
responsibility for the delays sanctionable as contempt
of court. Thus, the Court finds it proper for a
modification of the assailed Resolution.
● Instead, Atty. De Castro is ADMONISHED to exercise
the necessary prudence required in the practice of his
legal profession in his representation of the defendant
in the civil case.
FUJI VS. DELA CRUZ
A.C. NO. 11043
FACTS:
This case involves an administrative complaint dated
November 23, 2015 filed by Liang Fuji (Fuji) and his family,
against Bureau of Immigration Special Prosecutor Gemma Armi
M. Dela Cruz for gross misconduct and gross ignorance of the
law in relation to her issuance of a Charge Sheet against Fuji for
overstaying.
The facts that prompted Fuji’s administrative complaint against
Special Prosecutor Dela Cruz are as follows:
· In a Summary Deportation Order dated June 17,
2015, Fuji, a Chinese national, was ordered
deported for overstaying. From the Order, it
appears that Special Prosecutor Dela Cruz was
the special prosecutor who brought the formal
charge against Fuji and another person upon her
finding that Fuji's work visa had expired on May
8, 2013, with extension expired on December 6,
2013.
· Fuji was then brought to and detained at the
Bureau of Immigration Detention Facility,
National Capital Region Police Office, Taguig
City.
· March 22, 2016, the Board of Commissioners
issued a Resolution dismissing the deportation
charge against Fuji on the ground that the records
show that Liang has a working visa valid until 30
April 2016 under Jiang Tuo Mining Philippines,
Inc. as Marketing Liason. Fuji was directed to be
released from Bureau of Immigration-Warden's
Facility on March 23, 2016.
In his administrative complaint, Fuji alleged that his rights to
due process were violated since he was not afforded any hearing
or summary deportation proceedings before the deportation
order was issued against him. Fuji further alleged that Special
Prosecutor Dela Cruz failed miserably in discharging her duties
because a simple initial review of the Bureau of Immigration
records would have revealed that he was not overstaying
because his Section 9(g) work visa was valid until April 30, 2016.
On the other hand, respondent denied that she committed any
grave misconduct. She claimed that Fuji was accorded due
process during the summary deportation proceedings. She said
that as a civil servant, she enjoyed the presumption of regularity
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in the performance of her duties. She had no intention to violate CABILES VS. CEDO
any law and did not commit any flagrant disregard of the rules. A.C. NO. 10245
Additionally, she stated that Fuji stated in his March 29, 2016
Affidavit of Desistance that he had mistakenly signed some FACTS:
documents including the administrative complaint.
Cabiles filed an administrative case against the respondent
ISSUE: lawyer Cedo (Atty. Cedo) for neglecting two cases (labor case
and criminal case) that the former referred to the latter to
Whether or not respondent is administratively liable for her handle.
negligence in her failure to ascertain the facts before levying the
formal charge against Fuji for overstaying. (YES) LABOR CASE
RULING:
Cabiles engaged the services of Atty. Cedo to handle an illegal
dismissal case before the NLRC, wherein, Cabiles was one of the
Yes, respondent is administratively liable in this case. Contrary
respondents. She paid Atty. Cedo P5K to draft the respondents’
to respondent’s defense, Fuji's purported Affidavit of position paper and P2K for Atty. Cedo’s every appearance
Desistance is not sufficient cause to dismiss this administrative
before the NLRC. During the Hearing, only the complainant
complaint. This Court has previously held that proceedings of
showed up and submitted his Reply while Atty. Cedo did not
this nature cannot be interrupted or terminated by reason of file a Reply for the respondents. With this, the Labor Arbiter
desistance, settlement, compromise, restitution, withdrawal of
ruled in favor of the complainant. It also dismissed the appeal
the charges or failure of the complainant to prosecute the same.
of the respondents for failure to post the required cash or surety
bond, which is an essential requisite in perfecting an appeal.
In this case, Respondent failed in the performance of her basic
duties. Special prosecutors in the Bureau of Immigration should
Cabiles then alleged the following:
exercise such degree of vigilance and attention in reviewing the
immigration records, whenever the legal status and
a) That Atty. Cedo misled the respondents by claiming that it
documentation of an alien are at issue.
was the complainant who was absent during the said hearing;
Respondent was expected to be reasonably thorough in her
b) That because of the failure to submit a Reply, they were
review of the documents, especially as it may ultimately result
prevented from presenting the cash vouchers that would refute
in the deprivation of liberty of the prospective deportee. She
the complainant’s claim that he was a regular employee;
should not have simply relied on the handwritten note by
personnel from the BI-MIS at the bottom portion of the receipt
c) That with respect to the non-perfection of the appeal before
dated November 19, 2013 for 9A visa extension stating "Valid
the NLRC, Atty. Cedo did not help nor provide assistance to the
until: 06-Dec-2013." Had she inquired further; she would have
respondents as they rushed to file their appeal with the NLRC,
discovered that Fuji's application dated July 15, 2013 for
that, the NLRC Receiving Section informed them that their
conversion from temporary visitor visa (9A) to work visa (9G)
appeal was incomplete, as it lacked the mandatory cash/surety
was approved by the Board of Commissioners on November 21,
bond; and,
2013.

d) That Atty. Cedo failed to indicate his Mandatory Continuing

Generally, a lawyer who holds a government office may not be
Legal Education (MCLE) compliance in the position paper and
disciplined as a member of the Bar for misconduct in the
in the Memorandum of Appeal (MOA) that he prepared; the
discharge of her duties as a government official. However, if
first, second, and third compliance periods of the (MCLE)
said misconduct as a government official also constitutes a
requirement.
violation of her oath as a lawyer and the Code of Professional
Responsibility, then she may be subject to disciplinary sanction
CRIMINAL CASE
by this Court. In this case, Atty. Dela Cruz failed to observe Rule
18.03 of the Code of the Professional Responsibility, which
mandates that "a lawyer shall not neglect a legal matter Cabiles averred that she hired Atty. Cedo to file a criminal case
entrusted to him, and his negligence in connection therewith for unjust vexation against a certain Emelita. Cabiles alleged
shall render him liable." As a special prosecutor in the Bureau of the following:
Immigration, she is the representative, not of any private party,
but of the State. Her task was to investigate and verify facts to a) That as evidenced by the handwritten receipt, she paid Atty.
determine whether a ground for deportation exists, and if Cedo a total of P45K comprising his acceptance fees, the
further administrative action - in the form of a formal charge - expenses for the filing of the case, and the appearance fees;
should be taken against an alien.
b) That in order to come up with the necessary amount, she sold
Respondent is suspended from the practice of law for 3 months. to Atty. Cedo her car; and,

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c) That despite payment of his professional fees, Atty. Cedo did
not exert any effort to seasonably file her Complaint for unjust
vexation before the City Prosecutor's Office, which led to its
dismissal on the ground of prescription, also, the Motion for
Reconsideration (MR) was denied.
ATTY. CEDO’S ANSWER
As to the Labor case
a) Atty. Cedo argued that the Hearing before the NLRC was set
to provide the parties the opportunity either to explore the
possibility of an amicable settlement, or give time for him
(respondent lawyer) to decide whether to file a responsive
pleading, after which the case would be routinely submitted for
resolution, with or without the parties' further appearances;
b) As regards the cash vouchers, he opined that their submission
would only contradict their defense of lack of employer-
employee relationship; and,
c) Atty. Cedo did not refute Cabiles’ claim that he failed to
indicate his MCLE compliance in the position paper and in the
MOA.
As to the Criminal case
a) With respect to Cabiles’ allegation that she was virtually
forced to sell her car to Atty. Cedo to complete payment of the
latter's professional fee, Atty. Cedo claimed that he had fully
paid for the car.
IBP'S REPORT AND RECOMMENDATION
The Investigating Commissioner found Atty. Cedo guilty for
violating Canons 5, 17, and 18 of the Code of Professional
Responsibility (CPR) and recommended for his suspension
from the practice of law for two (2) years.
Also, it was found that Atty. Cedo is grossly negligent as shown
in the following:
a) in representing the respondents in the Labor case with failure
to comply with the MCLE requirements;
b) in failing to appear on the Hearing before the NLRC, and file
the necessary responsive pleading;
c) in failing to advise and assist his clients who had no
knowledge of, or were not familiar with, the NLRC rules of
procedure, in filing their appeal; and,
d) in failing to file seasonably the unjust vexation complaint
before the city prosecutor's office, in consequence of which it
was overtaken by prescription.
IBP BOARD OF GOVERNORS: It adopted and approved the
Investigating Commissioner's Report and Recommendation,
but reduced the suspension to one (1) year.
ISSUE:
Whether or not Atty. Cedo violated the Code of Professional
Responsibility?
RULING: YES.
Violation of Canon 5
“Canon 5 - A lawyer shall keep abreast of legal developments,
participate in continuing legal education programs, support
efforts to ach1eve highest and standards in law schools as well
as in the practical training of law students and assist in
disseminating information regarding the law and
jurisprudence.”
The Bar Matter 850 mandates continuing legal education for IBP
members as an additional requirement to enable them to
practice law.1âwphi1 This is "to ensure that throughout their
career, they keep abreast with law and jurisprudence, maintain the
ethics of the profession and enhance the standards of the practice of
law. The non-compliance with the MCLE requirement subjects
the lawyer to be listed as a delinquent IBP member.
As ruled in the case of Arnado v. Adaza, the Supreme Court (SC)
administratively sanctioned therein respondent lawyer for his
non-compliance with four MCLE Compliance Periods. That
even if therein respondent attended an MCLE Program covered
by the Fourth Compliance Period, his attendance therein would
only cover his deficiency for the First Compliance Period, and
he was still considered delinquent and had to make up for the
other compliance periods. This led to his suspension from the
practice of law for six (6) months or until he had fully complied
with all the MCLE requirements for all his non-compliant
periods.
In the case at hand, Atty. Cedo failed to indicate in the pleadings
filed in the said labor case the number and date of issue of his
MCLE Certificate of Compliance for the Third Compliance
Period. In fact, upon checking with the MCLE Office, Cabiles
discovered that Atty. Cedo had failed to comply with the three
MCLE compliance periods. Hence, clearly a violation of Canon
5, CPR.
Violation of Canons 17 and 18 and Rule 18.03
The circumstances of this case indicated that Atty. Cedo was
guilty of gross negligence for failing to exert his utmost best in
prosecuting and in defending the interest of his client, Cabiles.
Hence, the former is guilty of the following:
“Canon 17 - A lawyer owes fidelity to the cause of his client and
he shall be mindful of the trust and confidence reposed in him.
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Canon 18 - A lawyer shall serve his client with competence and
diligence.
Rule 18.03 - A lawyer shall not neglect a legal matter entrusted
to him, and his negligence in connection therewith shall render
him liable.”
Atty. Cedo’s act of receiving an acceptance fee for legal services,
only to subsequently fail to render such service at the
appropriate time, was a violation of Canons 17 and 18, CPR.
Clearly, he did not diligently and fully attend to the cases that
he accepted, although he had been fully compensated for them.
This can be shown from the following:
a) Atty. Cedo never successfully refuted Cabiles’ claim that he
was paid in advance his P2K appearance fee on for the
scheduled Hearing of the labor case, during which he was
absent;
b) Although Atty. Cedo had already received the sum of P45K
to file an unjust vexation case, he failed to promptly file the
appropriate complaint therefore with the City Prosecutor's
Office, in consequence of which the crime was prescribed,
resulting in the dismissal of the case.
As ruled by the SC:
“Case law further illumines that a lawyer's duty of competence
and diligence includes not merely reviewing the cases entrusted
to the counsel's care or giving sound legal advice, but also
consists of properly representing the client before any court or
tribunal, attending scheduled hearings or conferences,
preparing and filing the required pleadings, prosecuting the
handled cases with reasonable dispatch, and urging their
termination without waiting for the client or the court to prod
him or her to do so.
Conversely, a lawyer's negligence in fulfilling his duties subjects
him to disciplinary action. While such negligence or
carelessness is incapable of exact formulation, the Court has
consistently held that the lawyer's mere failure to perform the
obligations due his client is per se a violation.”
In the case at hand, clearly, in the two cases for which Atty. Cedo
was duly compensated, he was grossly remiss in his duties as
counsel. He exhibited lack of professionalism, even indifference,
in the defense and protection of Cabiles’ rights which resulted
in her losing the two cases.
As mentioned earlier, with respect to Canon 5, CPR, the failure
to comply with the MCLE requirements warranted a six-month
suspension in the Adaza case. Also, Atty. Cedo must likewise
be called to account for violating Canons 17, 18, and Rule 18.03.
In one case involving violation of Canons 17 and 18 where a
lawyer failed to file a petition for review with the Court of
Appeals, the lawyer was penalized with a six-month
suspension.
Hence, due to Atty. Cedo’s failure to maintain a high standard
of legal proficiency with his refusal to comply with the MCLE
as well as his lack of showing of his fealty to Cabiles’ interest
in view of his indifferent approach in handling the cases
entrusted to him, he is suspended from the practice of law for
one (1) year.
BUENAVIAJE VS. MAGDAMO
A.C. NO. 11616
FACTS:
Before us is an Administrative Complaint filed by Lito
Buenviaje (Buenviaje) against respondent Atty. Melchor G.
Magdamo (Atty. Magdamo), for violation of the Code of
Professional Responsibility.
In the instant Complaint, Buenviaje alleged that he was
married to the late Fe Gonzalo-Buenviaje, who died on
September 17, 2007.
Meanwhile, Atty. Magdamo was the counsel of Fe's sisters,
Lydia and Florenia Gonzalo, who filed a criminal case for
bigamy against Buenviaje. They claimed that Buenviaje was
married to a certain Amalia Ventura in 1978, thus, making
him guilty of bigamy. HTcADC
In an attempt to protect the rights and interests of his clients
in securing the monies of their sibling, deceased Fe, Atty.
Magdamo sent a Notice of Death of Depositor to the Bank of
the Philippine Islands (BPI)-Dagupan Branch where
Buenviaje and Fe appeared to have a joint account.
Aggrieved, Buenviaje filed the instant administrative
complaint against Atty. Magdamo for violation of Rule 1.01,
Canon 7, Rule 7.03 and Rule 19.01 of the Code of Professional
Responsibility. Buenviaje averred that in Atty. Magdamo's
Notice of Death of Depositor dated October 11, 2007 sent to
the BPI-Dagupan Branch, he untruthfully and maliciously
quoted the following statements: (1) "a clever swindler by the
name of Lito Buenviaje made it appear on spurious document that
he is the husband of Fe Gonzalo when in truth and in fact Lito
Buenviaje is married to Amalia Valera," (2) "since August 24, 2007,
Lito V. Buenviaje has been a fugitive from justice as he has been
hiding from the criminal charge in People of the Philippines versus
Lito Buenviaje y Visayana, case number 7H-103365 pending in the
City of Manila," and (3) "Fe never had a husband or child in her
entire life" to his prejudice.
Buenviaje alleged that he discovered the Notice's existence
sometime in December 2007 when he inquired about the
remaining balance of his joint account with Fe. He lamented
that he was shocked upon reading the letter and felt
humiliated at the words written against him as the bank
manager and the other bank personnel might have really
thought that he was a swindler and a fugitive from justice.
Buenviaje denied Atty. Magdamo's allegation that Fe was
never married as they were in fact married in a public civil
rite in the presence of many relatives of Fe. As to his alleged
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marriage with a certain Amalia Valera, Buenviaje admitted
that he had extramarital relationship with her and that they
had two (2) sons. When they separated and he subsequently
worked overseas, it did not stop him from fulfilling his
responsibilities as a father to his sons. He was then advised to
remit money to Amalia but he was told that he needed a
marriage contract to be able to do so, thus, he asked someone
to make a marriage contract for remittance purposes and that
he was told that there would be no record of it. Buenviaje
claimed that at that time, he really believed that no valid
marriage took place between him and Amalia and that he was
single up to the time he married Fe.
Buenviaje lamented that Atty. Magdamo employed dirty and
dishonest means and tactics to ensure that BPI will prevent
him from withdrawing money from the joint account that he
has with his late wife. He averred that in referring to him as a
"swindler," Atty. Magdamo succeeded in intimidating BPI-
Dagupan into extrajudicially "freezing" the joint account and
in not transacting with him.
Buenviaje also pointed out that Atty. Magdamo, in referring
to him as a fugitive from justice, in effect, made BPI-Dagupan
believe that a criminal complaint was already pending against
him when in truth and in fact, the August 24, 2007 complaint
for bigamy filed by Lydia and Florenia was still pending
before the Office of the City Prosecutor of Manila at the time
that they wrote and served the Notice to BPI-Dagupan.
Finally, Buenviaje questioned Atty. Magdamo's fitness to
continue in the practice of law as he has displayed lack of
ability to distinguish a fugitive from justice and a respondent
in a criminal investigation; employed of dirty and
unprofessional tactics of calling him a "swindler"; and by
referring to his marriage contract with his wife as "spurious
document." He, thus, prayed that considering Atty.
Magdamo's actuations, he should be disbarred or suspended
from the practice of law.
On January 9, 2008, the IBP-Commission on Bar Discipline
(IBP-CBD) directed Atty. Magdamo to submit his answer on
the complaint against him.
In its Report and Recommendation, the IBP-CBD
recommended that Atty. Magdamo be reprimanded for his
unethical actuations.
However, the IBP-Board of Governors, in a Notice of
Resolution No. XXI-2014-717, resolved to adopt and approve
with modification the Report and Recommendation of the
IBP-CBD, and instead suspend Atty. Magdamo from the
practice of law for three (3) months.
Aggrieved, Atty. Magdamo moved for reconsideration.
However, the IBP-Board of Governors resolved to deny Atty.
Magdamo's motion for reconsideration and affirm the latter's
suspension.
ISSUE:
Whether the findings and recommendation of the IBP-Board of
Governors in suspending Atty. Magdamo (for using offensive
and disrespectful language in his Notice addressed to BPI-
Dagupan) is proper.
RULING:
YES. We concur with the findings and recommendation of the
IBR-Board of Governors.
The practice of law is a privilege given to lawyers who meet
the high standards of legal proficiency and morality. Any
violation of these standards exposes the lawyer to
administrative liability. Canon 8 of the Code of Professional
Responsibility provides:
CANON 8 — A lawyer shall conduct himself with
courtesy, fairness and candor towards his
professional colleagues, and shall avoid harassing
tactics against the opposing counsel.
Rule 8.01. — A lawyer shall not, in his professional
dealings, use language which is abusive, offensive or
otherwise improper.
In the instant case, Atty. Magdamo's actuations do not
measure up to this Canon. The records show that he referred
to Buenviaje as a "swindler." He made this imputation with
pure malice for he had no evidence that Buenviaje is
committing swindling activities. Even if he was suspicious of
Buenviaje, he should have refrained from making such
malicious reference or name-calling for he should know as a
lawyer that the mere filing of a complaint against a person
does not guarantee a finding of guilt, and that an accused is
presumed innocent until proven guilty. Here, other than the
criminal complaint for bigamy which Fe's siblings filed before
the prosecutor's office, there were no other cases decided
against Buenviaje.
Atty. Magdamo's malicious imputation against Buenviaje is
further aggravated by the fact that said imputation was made
in a forum which is not a party to the legal dispute between
Fe's siblings and Buenviaje. He could have just informed BPI-
Dagupan of the death of its client and that there is a pending
litigation regarding their client's estate, and he did not have
to resort to name-calling and make unnecessary
commentaries in order to support his cause. Undoubtedly, his
malicious imputation against Buenviaje is unfair as the latter
was unnecessarily exposed to humiliation and shame even as
there was no actual case yet to be filed in the courts.
Moreover, Atty. Magdamo is likewise out of line when he
made inference to the marriage documents of Buenviaje and
Fe as "spurious" as well as his conclusion that "Fe never had a
husband or child in her entire life." He should know better
that without the courts' pronouncement to this effect, he is in
no position to draw conclusions and pass judgment as to the
existence, and validity or nullity of the marriage of Buenviaje
and Fe. That is not his job to do. While his statements in the
Notice given to BPI-Dagupan might be prompted by a good
cause, it was nevertheless careless, premature and without
basis. At the very least, Atty. Magdamo's actuations are
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blatant violation of Rule 10.02 of the Code of Professional
Responsibility which provides:
Rule 10.02 — A lawyer shall not knowingly misquote or
misrepresent the contents of a paper, the language or the
argument of opposing counsel, or the text of a decision or
authority, or knowingly cite as law a provision already
rendered inoperative by repeal or amendment, or assert as a
fact that which has not been proved.
We had an occasion to say that the use of disrespectful,
intemperate, manifestly baseless, and malicious statements
by an attorney in his pleadings or motions is a violation of the
lawyer's oath and a transgression of the canons of
professional ethics. The Court has constantly reminded
lawyers to use dignified language in their pleadings despite
the adversarial nature of our legal system. Though a lawyer's
language may be forceful and emphatic, it should always be
dignified and respectful, befitting the dignity of the legal
profession. The use of intemperate language and unkind
ascriptions has no place in the dignity of judicial forum. Atty.
Magdamo ought to have realized that this sort of public
behavior can only bring down the legal profession in the
public estimation and erode public respect for it.
Based on the foregoing, we cannot countenance Atty.
Magdamo's use of offensive and disrespectful language in his
Notice addressed to BPI-Dagupan. He clearly violated
Canons 8 and 10 of the Code of Professional Responsibility,
for his actions erode the public's perception of the legal
profession. We, thus, sustain the findings and
recommendation of the IBP-Board of Governors.
ACCORDINGLY, the Court AFFIRMS the Resolutions of the
Integrated Bar of the Philippines Board of Governors in CBD
Case No. 08-2141 and ORDERS the suspension of Atty.
Melchor G. Magdamo from the practice of law for three (3)
months effective upon his receipt of this Decision.
PALENCIA VS. LINSANGAN, ET AL.
A.C. NO. 10557
FACTS:
Jerry Palencia (“COMPLAINANT”) was an OFW-seafarer who
was seriously injured during work, when he fell into the
elevator shaft of the vessel M/T "PANOS G" flying a Cyprus
flag. He was initially treated in Singapore, and thereafter
discharged and flown to the Philippines to continue his medical
treatment and rehabilitation. While being confined at the Manila
Doctors Hospital, Moises and Jesherel, paralegals in
respondents' law office, approached the complainant and
convinced him to engage the services of the respondents’ law
office; in filing a suit for indemnity against his employers.
After several visits of the said paralegals and respondent Atty.
Pedro Linsangan (“ATTY. PEDRO”), the complainant executed
(1) an Attorney-Client Contract; and (2) a Special Power of
Attorney, where he engaged the legal services of the
respondents and Gurbani & Co., a law firm based in Singapore.
An agreement was made, wherein, the complainant is to pay
attorney's fees of 35% of any recovery or settlement obtained
for both. After the execution of the contract, the complainant
was able to recover US$60K as indemnity and US$20K under
their Collective Bargaining Agreement (CBA). From these
amounts, the respondents charged complainant attorney's fees
of 35% as agreed.
Further, the respondents (ATTY. PEDRO, ATTY. GERARD
AND ATTY. GLENDA, all surnamed Linsangan) and Gurbani
& Co. also filed a tort case (Singapore case) against the owners
of "Panos G" before the High Court of Singapore, wherein, the
respondents engaged the services of a law firm based in Cyprus,
in order to draft a written opinion on the issues involving
Cyprus law, among others. They also engaged the services of
the retired Justice Gancayco for his expert opinion regarding
various issues raised by defendant's lawyer and representatives.
Negotiations were then made, leading to a settlement where the
complainant was awarded with US$95K. Gurbani & Co.
remitted to the respondents the amount of US$59,608.40. From
this amount, respondents deducted: (1) US$5K as payment to
Justice Gancayco; (2) their attorney's fees equivalent to 35%;
and (3) other expenses, leaving the net amount of US$ l 8, 132.43
for complainant.
When the respondents tendered the net amount to the
complainant, the latter refused. He then contested the amount
comprised of the expenses and attorney's fees deducted which
led to two (2) civil cases:
1. Civil Case No. 05113475 (consignation case); this was filed
by the respondents to compel the complainant to receive the
amount tendered, dismissed by the RTC.
2. Civil Case No. 2401 (accounting case); filed by the
complainant where the RTC ruled in favor of complainant and
ordered respondents to make proper accounting, among others.
It also upheld the stipulated attorney's fees as binding between
the parties, and determined that the fees are lumped for both
respondents and Gurbani & Co. On appeal, the Court of
Appeals (CA) reduced the Attorney’s fees to 10%.
Thereafter, the complainant filed the letter-complaint before the
Bar of the Philippines’ Commission on Bar Discipline (“IBP-
CBD”), wherein, he requested that an investigation be
conducted and the corresponding disciplinary action be
imposed upon respondents for committing the following
unethical acts: (1) refusing to remit the amount collected in the
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Singapore case worth US$95K, and in offering only the net
amount (2) depositing complainant's money into their own
account; and (3) engaging in "ambulance chasing" by
deploying their agents to convince complainant to hire
respondents' services while the former was still bedridden in the
hospital.
RESPONDENTS’ ANSWER
They alleged the following:
(1) That the complainant retained the respondents and Gurbani
& Co. 's services for purposes of filing a claim against the ship
owner, its agents and principals which led to the filing of the
Singapore case. That, when they received the settlement amount
from the Singapore case, they sent a letter to the complainant
informing him about it and requested him to come to the former'
s office to get his net share. That, the complainant unjustly
refused to accept the amount, also, refused their tender of
payment in their letter dated sometime in August 2005. After
that, the respondents filed the consignation case.
(2) The respondents denied that they deposited the amount to
their own account. They claimed that the amount has been
placed for safekeeping in a vault located inside their office ever
since. That, after their receipt of the complaint and the IBP-
CBD's Order, they decided to deposit the money with Bank of
the Philippine Islands in an interest savings account, in trust for
complainant.
(3) As to the allegations of ambulance chasing, the respondents
averred that they provided free legal advice to the public. It
was in the course of this public service when they met the
complainant.
IBP-CBD
It ruled that the respondents violated the canons of the Code of
Professional Responsibility (CPR): (1) in soliciting legal
business through their agents while complainant was in the
hospital; (2) in failing to account for, and deliver the funds and
property of his client when due or upon demand; and (3) in
hiring the services of a foreign law firm and another lawyer
without prior knowledge and consent of complainant of the
fees and expenses to be incurred. It found that all three
respondents connived and thus recommended that all
respondents be suspended from the practice of law for a period
of one (1) year.
IBP-BOARD OF GOVERNORS
It adopted the above report and recommendation but modified
the penalty and increased respondents' suspension from the
practice of law to two (2) years with warning, against Atty.
Pedro and Atty. Gerard. However, it absolved Atty. Glenda for
lack of any evidence as to her participation in the acts
complained of.
ISSUES:
1. Whether or not the respondents are guilty for violating
the Canons of the CPR?
2. Whether or not the respondents disregarded the
agreement under the “Attorney-Client Contract” with
respect to the 35% attorney’s fees?
RULING:
FIRST ISSUE: YES. The Supreme Court (SC) found Atty. Pedro
and Atty. Gerard to have violated Rule 1.03, Rule 2.03, Canon 3,
Canon 16, Rule 16.01, and Rule 16.03 of the CPR, while the
records do not support Atty. Glenda’s participation in their
unethical activities, hence, C dismissed the case against her. The
complainant himself admitted that he only dealt with Atty.
Pedro and Atty. Gerard.
The penalty for gross misconduct consisting in the failure or
refusal, despite demand, of a lawyer to account for and to
return money or property belonging to a client carries a
suspension from the practice of law for 2 years. In this case, the
complainant, who was impaired for life, was constrained to file
this complaint and the action for accounting because of his
lawyers' lack of fidelity and good faith in handling the award he
received. However, the respondents' efforts in tendering
payment, albeit of an improper amount, to the complainant,
warrants the imposition of a 1-year suspension.
More importantly, the respondents’ acts do not merely
constitute a violation of Canon 16 and its rules, but already
amounts to gross misconduct, to wit:
First, the respondents breached the trust reposed in them when
they betrayed the express language of their Attorney-Client
Contract that they are only entitled to a single 35% attorney's
fees together with the Singapore counsels. In the process,
respondents have also unjustly retained for themselves the 35%
of the settlement award amounting to US$95K, which is more or
less around ₱1.5 million pocketed, and also immensely
disparaging to the amount of US$ l 8, 132.43 they tendered to
complainant.
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Second, their actions following the complainant's objection
manifests their disregard of their fiduciary duties. For two
years, the respondents insisted on, and forcibly deducted the
amount when there are alternative avenues to determine the
correct amount of attorney's fees. They instead treaded to a path
where they advanced their own interests ahead of their client's.
Third, the respondents also mishandled their client's money
when they did not exercise proper safekeeping over it; they
failed to deposit it in a separate trust account in a bank or trust
company of good repute for safekeeping but co-mingled it with
their own funds. Undoubtedly, the gravity of these acts
amounts to gross misconduct that warrants, at the very least, a
suspension.
SECOND ISSUE: YES. The relationship between a lawyer and
his client is highly fiduciary. This relationship holds a lawyer to
a great degree of fidelity and good faith especially in handling
money or property of his clients. Thus, Canon 16 and its rules
remind a lawyer to: (1) hold in trust all moneys and properties
of his client that may come into his possession; (2) deliver the
funds and property of his client when due or upon demand
subject to his retaining lien; and (3) account for all money or
property collected or received for or from his client.
It is the lawyer's duty to give a prompt and accurate account to
his client. Upon the collection or receipt of property or funds for
the benefit of the client, his duty is to notify the client promptly
and, absent a contrary understanding, pay or remit the same to
the client, less only proper fees and disbursements, as soon as
reasonably possible. He is under absolute duty to give his client
a full, detailed, and accurate account of all money and property
which has been received and handled by him, and must justify
all transactions and dealings concerning them.
In this case, the respondents claimed that they promptly
accounted for the total award of US$95K and after deducting
their fees, tendered the net amount of US$ l 8, 132.43 to the
complainant, however, the latter refused to accept the amount
because he contested both the expenses and the separate
deduction of attorney's fees by respondents and Gurbani & Co.
The Attorney-Client Contract between the parties states that:
"We/I hereby voluntarily agree and bind ourselves, our heirs
and assigns to pay Atty. Pedro L. Linsangan and his
collaborating Singapore counsels, the sum equivalent to thirty-
five [35%] percent of any recovery or settlement obtained."
Clearly, the stipulated rate referred to the combined
professional fees of both respondents and their collaborating
Singapore counsel, Gurbani & Co. Nevertheless, the
respondents proceeded to deduct separate fees on top of the
amount already deducted by Gurbani & Co. Since a claim for
attorney's fees may be asserted either in the very action in which
the services of a lawyer had been rendered, or in a separate
action, the respondents, instead of forcibly deducting their
share, should have moved for the judicial determination and
collection of their attorney's fees. The fact alone that a lawyer
has a lien for his attorney's fees on money in his hands collected
for his client does not entitle him to unilaterally appropriate his
client's money for himself. Worse, the respondents allegedly
kept the money inside the firm's vault for 2 years until they were
made aware of the disciplinary complaint against them before
the IBP-CBD. However, as noted by the IBP-CBD in its Report
and Recommendation:
“[T]he defense of respondents that they kept in their office vault
the share of complainant as computed by them in the amount of
US$18, 132.43, hence, they forgot the same and remembered it
only when they received the Order of this Commission for them
to file an Answer to complainant's Complaint [which is more than
2 years] is rather highly incredible considering that it involves a
substantial amount, the series of communications between the
parties, and the Civil cases subsequently filed.”
The SC held that even they will give credence to this
explanation, it is still improper for the lawyer to put his client's
funds in his personal safe deposit vault. Funds belonging to the
client should be deposited in a separate trust account in a bank
or trust company of good repute for safekeeping. It is apparent
from the foregoing that respondents failed to handle their
client's money with great degree of fidelity. They also showed
their lack of good faith when they appropriated for themselves
more than what is allowed under their contract. They have
demonstrated that the payment of their attorney's fees is more
important than their fiduciary and faithful duty of accounting
and returning what is rightfully due to their client. More, they
also failed to observe proper safekeeping of their client's money.
They clearly violated the trust reposed in them, and
demonstrated their lack of integrity and moral soundness.
The SC adopted the recommendation of the IBP-Board of
Governors of the imposition of two-year suspension for Atty.
Pedro and Atty. Gerard. This penalty corresponds to the
compounded infractions of the violations of Rule 1.03, Rule 2.03,
Canon 3, Canon 16, Rule 16.01, and Rule 16.03 of the CPR: (1)
one-year suspension for ambulance chasing; and (2) one-year
suspension for gross misconduct consisting in the failure or
refusal, despite demand, of a lawyer to account for and to return
money or property belonging to a client.
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MARIANO VS. ATTY. LAKI
A.C. NO. 1978
FACTS:
Mariano allegedly engaged Atty. Laki's legal services for the
filing of a petition for annulment of his marriage. Atty. Laki
informed him to prepare the amount of P160,000.00
representing a package deal for his professional fee, docket fee
and expenses for the preparation and filing of the petition,
subject to an advance payment of P50,000.00. Mariano
expressed his surprise over the huge amount that Atty. Laki was
asking, thus, the latter assured him that he could secure a
favorable decision even without Mariano's personal appearance
since he will file the petition for annulment before the RTC of
Tarlac which is presided by a "friendly judge" and is known to
be receptive to annulment cases.
Relying on Atty. Laki's assurance, Mariano initially paid Atty.
Laki P50,000.00. Due to the latter's relentless follow-ups of the
remaining balance, Mariano made succeeding payments in the
amounts of P40,000.00 and P60,000.00, all evidenced by receipts
issued by Atty. Laki.
Almost a year after, Mariano followed up the status of the
petition only to know that the petition has yet to be filed as Atty.
Laki withdrew the case for the reason that the Presiding Judge
of RTC - Tarlac has been dismissed by the SC and he did not
expect the new presiding judge to be "friendly".
Mariano attempted to get a copy of the petition but Atty. Laki
told him that he still has to locate the copy in his office. He tried
several times to get hold of a copy of the petition but
nevertheless failed, as it became very difficult to meet nor reach
Atty. Laki through his cell phone.
This prompted Mariano to demand from Atty. Laki the return
of his money but to no avail. Calls were rejected, and his office
was always closed. Hence the instant petition for disbarment.
ISSUE:
WON Atty. Laki failed to comply with his duty in a lawyer-
client relationship.
RULING: YES.
CANON 16 — A LAWYER SHALL HOLD IN TRUST ALL
MONEY AND PROPERTIES OF HIS CLIENT THAT MAY
COME INTO HIS POSSESSION.
Rule 16.01 — A lawyer shall account for all money or property
collected or received for or from the client.
Rule 16.02 — A lawyer shall keep the funds of each client
separate and apart from his own and those of others kept by
him.
Rule 16.03 — A lawyer shall deliver the funds and property of
his client when due or upon demand.
The rule on the accounting of monies and properties received
by lawyers from clients as well as their return upon demand is
explicit.
The fiduciary nature of the relationship between the counsel
and his client imposes on the lawyer the duty to account for
the money or property collected or received for or from his
client. When a lawyer collects or receives money from his client
for a particular purpose, he should promptly account to the
client how the money was spent. If he does not use the money
for its intended purpose, he must immediately return it to the
client.
ITC, it is clear that Atty. Laki violated his sworn duties under
the CPR. Not only did he fail to file the petition for annulment
of marriage despite receipt of the acceptance fee in the amount
of P150,000.00, he also failed to account for the money he
received. He also failed to keep his client abreast with the
developments and status of the case as he actually never
provided Mariano a copy of the petition despite demand.
Worse, after receiving his acceptance fee, Atty. Laki also made
it difficult for his client to contact him, as in fact Mariano felt
that he was being avoided.
Receiving payment for services not rendered, Atty. Laki was
unjustified in keeping Mariano's money. He is obliged to
immediately return the it. His refusal to do so despite repeated
demands constitutes a violation of his oath where he pledges
not to delay any man for money and swears to conduct himself
with good fidelity to his clients. It also gives rise to the
presumption that he has misappropriated it for his own use to
the prejudice of, and in violation of, the trust reposed in him by
the client.
Such acts constitute a blatant disregard of Rule 16.01 of the CPR.
But what the Court finds more deplorable was Atty. Laki's act
of giving assurance to Mariano that he can secure a favorable
decision without the latter's personal appearance because the
petition will be led in the RTC of Tarlac, which is allegedly
presided by a "friendly" judge who is receptive to annulment
cases.
His deceitful assurances give the implication that a favorable
decision can be obtained by being in cahoots with a "friendly"
judge. It gives a negative impression that decisions of the courts
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can be decided merely on the basis of close ties with the judge
and not necessarily on the merits. Atty. Laki's statements cast
doubts on the integrity of the courts in the eyes of the public. By
making false representation to his client, Atty. Laki not only
betrayed his client's trust but he also undermined the trust and
faith of the public in the legal profession
To summarize, first , Atty. Laki received money from his client
for the purpose of filing a petition but he failed to do so; second
, after his failure to render legal service despite the receipt of
acceptance fee, he also unjustifiably refused to return the money
he received; third , he grossly disrespected the IBP by ignoring
its directives to file his answer to the complaint and appear at
the mandatory hearings; and lastly, Atty. Laki maligned the
Judiciary by giving the impression that court cases are won, not
on the merits, but through close ties with the judges.
From these actuations, it is undisputed that Atty. Laki wronged
his client and the Judiciary as an institution, and the IBP of
which he is a member. He disregarded his duties as a lawyer
and betrayed the trust of his client, the IBP, and the courts.
The Court, thus, rules that Atty. Laki be disbarred and ordered
to return to Mariano the P150,000.00 plus 6% interest.
LOPEZ VS. CRISTOBAL
A.C. NO. 12146
FACTS:
Carlos V. Lopez (Lopez) filed an administrative complaint
before the CBD-IBP against Respondent Atty. Milagros Isabel A.
Cristobal (Atty. Cristobal).
Lopez alleged that he engaged the services of Atty. Cristobal as
his counsel in the case of Carlo Lopez v. Jesus A. Manego, Peter
Blair S. Agustin, and Rosalina Joson Pascual (subject case)
Atty. Cristobal required the payment of an acceptance fee
35,000.00. Lopez deposited the said amount to Atty. Cristobal's
Metrobank Account.
The RTC Branch 148 issued an Order requiring the parties to file
their respective position papers in connection with the subject
case. Lopez averred that despite knowledge of the lower court's
directive, Atty. Cristobal failed to file the position paper. That
Atty. Cristobal misrepresented to him that she already filed
their position paper in court. That Atty. Cristobal also did not
attend the hearings on the subject case and that she also
deliberately refused to communicate with Lopez.
Lopez informed Atty. Cristobal of his decision to stop her
engagement as his counsel in the subject case and demanded
that: (1) prepare and file her withdrawal of appearance in the
subject case and provide Lopez with a copy thereof; (2) return
the acceptance fee of (P35,000.00)
This demand was not heeded by Atty. Cristobal. This was
confirmed by the clerk of court of Branch 148 in a certification,
that withdrawal of appearance as counsel of Lopez had not yet
been filed.
Lopez filed a Verified Complaint before the CBD-IBP praying
that Atty. Cristobal be disciplined.
In her answer, Atty. Cristobal admitted that while she was
aware of RTC Branch 148's directive to file a position paper, she
did not proceed to prepare and file the said position paper on
account of the continued refusal of Lopez to pay her
accumulated legal fees. Atty. Cristobal claimed that Lopez
caused payment to be stopped on a P27,000.00 check that he had
previously issued in her favor as further payment of her legal
fees. She alleged that Lopez kept insisting on bargaining for the
attorney's fees that she was asking for.
The IBP 's Report and Recommendation
The supposed "continued refusal" of the complainant "to pay
(respondent's) accumulated legal fees" should have been a reason
for her to have withdrawn from the case. The same is sanctioned
under Rule 22.01 (e) of the Code of Professional Responsibility.
But Canon 22 is clear: A lawyer may withdraw his services only
for good cause and upon notice appropriate in the
circumstances. Notably, the respondent failed to observe the
above procedural requirement.
Surely, the supposed refusal to pay of the complainant cannot
be a justification of the respondent's failure to prepare and file
the required position paper. The failure of the client to pay the
agreed fees does not warrant the lawyer's abandoning his
client's cause. After all, once a lawyer agrees to take up the cause
of the client, he owes fidelity and entire devotion to that cause.
Recommended that the respondent be suspended for 6 months.
The IBP Board of Governors passed a Resolution adopting and
approving the findings and recommendation of Investigating
Commissioner.
ISSUE:
Whether Atty. Cristobal’s acts is proper.
RULING:
The Court agrees with the IBP Board of Governors that Atty.
Cristobal's failure to file the required position paper and her
failure to properly withdraw from the case reveals Atty.
Cristobal's failure to live up to her duties as a lawyer in
consonance with the strictures of her oath and the Code of
Professional Responsibility (CPR).
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The acts committed by Atty. Cristobal thus fall squarely within
the prohibition of Rule 18.03 and 18.04 of Canon 18 and Rule
22.01 of Canon 22 of the CPR, which provides:
Rule 18.03.–A lawyer shall not neglect a legal matter entrusted
to him, and his negligence in connection therewith shall render
him liable.
Rule 18.04.–A lawyer shall keep the client informed of the status
of his case and shall respond within a reasonable time to the
client's request for information.
Canon 18 clearly mandates that a lawyer is duty-bound to
competently and diligently serve his client once the former takes
up the latter's cause. The lawyer owes fidelity to such cause and
must always be mindful of the trust and confidence reposed
upon him. Hence, his neglect of a legal matter entrusted to him
amounts to inexcusable negligence for which he must be
administratively liable, as in this case. The Court finds no
credence to Atty. Cristobal's defense that her failure to prepare
and file the required position paper was justified because of
Lopez' refusal to pay her attorney's fees.
Also, Rule 22.01, Canon 22 of the CPR, on the other hand,
provides that an attorney may only retire from a case either by
written consent of his client or by permission of the court after
due notice and hearing, in which event the attorney should see
to it that the name of the new lawyer is recorded in the case. A
lawyer who desires to retire from an action without the written
consent of his client must file a petition for withdrawal in court.
He must serve a copy of his petition upon his client and the
adverse party at least three (3) days before the date set for
hearing, otherwise the court may treat the application as a "mere
scrap of paper." The circumstances of the case show that Atty.
Cristobal made no such move.
Atty. Cristobal clearly disregarded the mandate of Rule 22.01,
Canon 22 of the CPR. Atty. Cristobal never sought the written
consent of Lopez, his client or the permission of the court. Atty.
Cristobal also did not file a petition for withdrawal in court.
Here, the circumstances of this case indubitably show that after
receiving the amount of P35,000.00 as acceptance fee, Atty.
Cristobal failed to render any legal service in relation to the case
of Lopez.\
The Court finds a six-month suspension from the practice of law
appropriate as penalty for Atty. Cristobal's misconduct.
ROQUE VS. BALBIN
A.C. NO. 7088
FACTS:
Atty. Roque Jr. is the plaintiff's counsel in the case of
FELMAILEM, Inc. v Felma Mailem before the MeTC. After
securing a favorable judgment for his client, Atty. Balbalin, as
counsel for the defendant, and on appeal, started intimidating,
harassing, blackmailing, and maliciously threatening Atty.
Roque into withdrawing the case filed by his client.
Atty. Balabalin allegedly made various calls and sent text
messages and e-mails not just to him, but also to his friends and
other clients, threatening to file disbarment and/or criminal
suits against him.
Further, and in view of Atty. Roque's "high profile" stature,
Atty. Balbalin also threatened to publicize such suits in order to
besmirch and/or destroy Atty. Roque’s name and reputation.
ISSUE:
WON Atty. Balbalin should be administratively sanctioned for
the acts complained of.
RULING: YES.
Canon 8 of the CPR commands, to wit:
CANON 8 — A lawyer shall conduct himself with courtesy,
fairness and candor towards his professional colleagues, and
shall avoid harassing tactics against opposing counsel.
Jurisprudence further provides that "lawyers should treat their
opposing counsels and other lawyers with courtesy, dignity [,]
and civility. A great part of their comfort, as well as of their
success at the bar, depends upon their relations with their
professional brethren. Since they deal constantly with each
other, they must treat one another with trust and respect. Any
undue ill feeling between clients should not influence counsels
in their conduct and demeanor toward each other. Mutual
bickering, unjustified recriminations [,] and offensive behavior
among lawyers not only detract from the dignity of the legal
profession, but also constitute highly unprofessional conduct
subject to disciplinary action."
ITC, Atty. Balbalin’s acts were violations of Canon 8 of the CPR.
Instead of availing of remedies to contest the ruling adverse to
his client, he resorted to personal attacks against the opposing
litigant's counsel, Atty. Roque.
Thus, it appears that respondent's acts of repeatedly
intimidating, harassing, and blackmailing Atty. Roque
demonstrated a misuse of the legal processes available to him
and his client, especially considering that the aim of every
lawsuit should be to render justice to the parties according to
law, not to harass them.
More significantly, the foregoing showed Atty. Balbalin’s lack
of respect and despicable behavior towards a colleague in the
legal profession, and constituted conduct unbecoming of a
member thereof.
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Furthermore, Atty. Balbalin’s aforesaid acts also violated Canon
19 and Rule 19.01 of the CPR.
Under this Rule, a lawyer should not file or threaten to file any
unfounded or baseless criminal case or cases against the
adversaries of his client designed to secure a leverage to compel
the adversaries to yield or withdraw their own cases against the
lawyer's client.
To aggravate further respondent's administrative liability, he
also violated Canon 11, Canon 12, Rule 12.03, and Rule 12.04 of
the CPR, which respectively read:
CANON 11 — A lawyer shall observe and maintain the respect
due to the courts and to judicial officers and should insist on
similar conduct by others.
CANON 12 — A lawyer shall exert every effort and consider it
his duty to assist in the speedy and efficient administration of
justice.
Rule 12.03 — A lawyer shall not, after obtaining extensions of
time to le pleadings, memoranda or briefs, let the period lapse
without submitting the same or offering an explanation for his
failure to do so.
Rule 12.04 — A lawyer shall not unduly delay a case, impede
the execution of a judgment or misuse Court processes.
Atty. Roque’s acts of seeking for extension of time to file a
comment, and thereafter, failing to file the same and ignoring
the numerous directives not only indicated a high degree of
irresponsibility, but also constituted utter disrespect to the
judicial institution.
WHEREFORE, respondent Atty. Rizal P. Balbin is found guilty
of violating Canon 8, Canon 11, Canon 12, Rule 12.03, Rule 12.04,
Canon 19, and Rule 19.01 of the Code of Professional
Responsibility. Accordingly, he is hereby SUSPENDED from
the practice of law for a period of two (2) years, effective
immediately upon his receipt of this Decision. He is STERNLY
WARNED STERNLY WARNED that a repetition of the same or
similar acts will be dealt with more severely.
Topic: Duty to a colleague
CAMACHO VS. PANGULAYAN
A.C. NO. 4807
FACTS:
Atty. Manuel N. Camacho filed a complaint against the lawyers
comprising the Pangulayan and Associates Law Offices,
namely, Attorneys Luis Meinrado C. Pangulayan, Regina D.
Balmores, Catherine V. Laurel, and Herbert Joaquin P. Bustos.
Complainant, the hired counsel of some expelled students from
the AMA Computer College ("AMACC"), in an action for the
Issuance of a Writ of Preliminary Mandatory Injunction and for
Damages, docketed Civil Case No. Q-97-30549 of the Regional
Trial Court, Branch 78, of Quezon City, charged that
respondents, then counsel for the defendants, procured and
effected on separate occasions, without his knowledge,
compromise agreements ("Re-Admission Agreements") with
four of his clients in the aforementioned civil case which, in
effect, required them to waive all kinds of claims they might
have had against AMACC, the principal defendant, and to
terminate all civil, criminal and administrative proceedings
filed against it. Complainant averred that such an act of
respondents was unbecoming of any member of the legal
profession warranting either disbarment or suspension from the
practice of law.
Atty. Pangulayan’s defense:
Acknowledged that not one of his correspondents had taken
part in the negotiation, discussion, formulation, or execution of
the various Re-Admission Agreements complained of and were,
in fact, no longer connected at the time with the Pangulayan and
Associates Law Offices. The Re-Admission Agreements, he
claimed, had nothing to do with the dismissal of Civil Case Q-
97-30549 and were executed for the sole purpose of effecting the
settlement of an administrative case involving nine students of
AMACC who were expelled therefrom upon the
recommendation of the Student Disciplinary Tribunal. The
students were all members of the Editorial Board of
DATALINE, who apparently had caused to be published some
objectionable features or articles in the paper. The 3-member
Student Disciplinary Tribunal was immediately convened, and
after a series of hearings, it found the students guilty of the use
of indecent language and unauthorized use of the student
publication funds. The body recommended the penalty of
expulsion against the erring students.
The denial of the appeal made by the students to Dr. Amable R.
Aguiluz V, AMACC President, gave rise to the commencement
of Civil Case No. Q-97-30549 on 14th March 1997 before the
Regional Trial Court, Branch 78, of Quezon City. While the civil
case was still pending, letters of apology and Re-Admission
Agreements were separately executed by and/or in behalf of
some of the expelled students, (gimention sa case ang mga
specific letters and when sila na execute but all we have to know
is gi execute ni ang mga letters)
Following the execution of the letters of apology and Re-
Admission Agreements, a Manifestation, dated 06 June 1997,
was filed with the trial court where the civil case was pending
by Attorney Regina D. Balmores of the Pangulayan and
Associates Law Offices for defendant AMACC. A copy of the
manifestation was furnished complainant. In his Resolution,
dated 14 June 1997, Judge Lopez of the Quezon City Regional
Trial Court thereupon dismissed Civil Case No. Q-97-30549.
IBP Board of Governors: Atty. Meinrado Pangulayan is
suspended from the practice of law for SIX (6) MONTHS for
being
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remiss in his duty. Dismissal of the case against the other Take note: Atty. Luis Meinrado C. Pangulayan is ordered
Respondents for they did not take part in the negotiation of the SUSPENDED from the practice of law for a period of THREE (3)
case. MONTHS

ISSUE: The case against the other respondents is DISMISSED for

insufficiency of evidence.
Was Atty. Pangulayan remiss in his duty to his colleague?
CABALIDA VS. LOBRIDO, JR.
RULING: YES A.C. NO. 7972
“A lawyer should not in any way communicate upon the subject of FACTS:
controversy with a party represented by counsel, much less should he
undertake to negotiate or compromise the matter with him, but should This case involves a property dispute between petitioner
only deal with his counsel. It is incumbent upon the lawyer most Angelito Cabalida who had title in his name over a property
particularly to avoid everything that may tend to mislead a party not gifted to him by Australian Alan Keleher by virtue of a special
represented by counsel and he should not undertake to advise him as
relationship. Cabalida left due to a misunderstanding and
to law.”
Keleher hired Janeph Alpiere as his housekeeper. Keleher
committed suicide inside the property. Alpiere was assigned by
It would appear that when the individual letters of apology and
the Austrian Embassy to sell Keleher’s personal properties to
Re-Admission Agreements were formalized, complainant was
generate funds for hospital expenses. Alpiere kept the proceeds
by then already the retained counsel for plaintiff students in the
and Cabalida paid for the hospital expenses. Cabalida returned
civil case. Respondent Pangulayan had full knowledge of this
to the property only to find it bolted by Alpiere because Keleher
fact. Although aware that the students were represented by
failed to pay him his salary. Cabalida learned that the property
counsel, respondent attorney proceeded, nonetheless, to
was leased to by Alpiere to Salisi. Police and barangay refused
negotiate with them and their parents without at the very least
to intervene. No settlement was reached before the Lupong
communicating the matter to their lawyer, herein complainant,
Tagapamayapa. Cabalida sent a demand letter to Alpiere and
who was counsel of record in Civil Case No. Q-97-30549.
Salisi to no avail.
This failure of respondent whether by design or because of
Cabalida engaged the services of respondent Atty. Solomon
oversight, is an inexcusable violation of the canons of
Lobrido, at the time a partner at Ramos, Lapore, Pettiere and
professional ethics and in utter disregard of a duty owing to a
Lobrido Law Offices, to file an action for Ejectment with
colleague. Respondent fell short of the demands required of him
damages before the MTCC.
as a lawyer and as a member of the Bar.
Alpiere and Salisi engaged the services of respondent Atty
The allegation that the context of the Re-Admission Agreements
Danny L. Pondevilla, at the time a partner at Basiao, Bolivar and
centers only on the administrative aspect of the controversy is
Pondevilla Law and was concurrently City Legal Officer.
belied by the Manifestation 1 which, among other things,
explicitly contained the following stipulation; viz:
Respondents met for a possible amicable settlement at Atty.
"1. Among the nine (9) signatories to the complaint, four (4) of
Pondevilla’s office. In their initial meeting, the
whom assisted by their parents/guardian already executed a
parties agreed that the defendants would no longer pursue the
Re-Admission Agreement with AMACC President, AMABLE
case in exchange for P150,000.00. Three days thereafter,
R. AGUILUZ V acknowledging guilt for violating the AMA
Cabalida, unassisted by Atty. Lobrido, returned to Atty.
COMPUTER COLLEGE MANUAL FOR DISCIPLINARY
Pondevilla's office to finalize the amicable settlement. Atty.
ACTIONS and agreed among others to terminate all civil,
Pondevilla conveyed to Cabalida that his clients decided to
criminal and administrative proceedings which they may have
increase the amount to P250,000.00. The new terms were
against the AMACC arising from their previous dismissal.
embodied in a Memorandum of Agreement that was prepared
by Atty. Pondevilla but it only contained the signatures of
3. Consequently, as soon as possible, an Urgent Motion to
Alpiere and Pondevilla-Dequito because Salili wanted to
Withdraw from Civil Case No. Q-97-30549 will be filed by
ponder on its terms for two more weeks. Cabalida on the other
them."
hand signed the Memorandum of Agreement on the belief that
he can sell the property to a prospective buyer who was willing
The Court can only thus concur with the IBP Investigating
to purchase the same for P1,300,000.00. For the time being,
Commission and the IBP Board of Governors in their findings;
however, Cabalida considered mortgaging his property and
nevertheless, the recommended six-month suspension would
thus hired Lydia S. Gela (Gela) and Wilma Palacios (Palacios),
appear to be somewhat too harsh a penalty given the
real estate brokers, to assist him in the mortgaging process.
circumstances and the explanation of respondent.
Atty. Pondevilla presented the Memorandum of Agreement to
the MTCC but moved for the resetting of the Preliminary
Conference, which was granted, because Salili has not yet
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signed the Memorandum of Agreement. On the date of the
preliminary conference, however, counsels for both parties
requested for the provisional dismissal of the case on the belief
that the parties are close to arriving at an amicable settlement.
Cabalida again met with Atty. Pondevilla. This time, he was
accompanied by his brokers, Gela and Palacios, and by Danilo
Flores (Flores), a common friend of Cabalida and Keleher. Atty.
Pondevilla entered into a Trust Agreement with Cabalida and
his companions as evidenced by a document, entitled Trust
Agreement, which was prepared by Atty. Pondevilla on the
same day. The Trust Agreement provides that Cabalida, Gela,
Palacios and Flores received in trust P250,000.00 from Atty.
Pondevilla with the obligation to return the same upon release
of the proceeds of the mortgage over the property. Upon signing
the Trust Agreement, Atty. Pondevilla released the title. In truth
there was no money "received in trust."
Cabalida, again unassisted by Atty. Lobrido, returned to Atty.
Pondevilla's office to finalize his amicable settlement with Salili
and Alpiere. Atty. Pondevilla prepared a new Memorandum of
Agreement which contained the same terms as its earlier version
but no longer listed Salili as a party or signatory. Nonetheless,
Cabalida signed the revised Memorandum of Agreement,
which provides that Alpiere and Pondevilla-Dequito will no
longer claim the property and that Cabalida will pay them
P250,000.00 upon execution of the memorandum.
Upon release of the loan, Cabalida claimed the same and paid
P250,000.00 to atty. Pondevilla for which Atty. Pondevilla
issued a receipt cancelling the trust agreement. After receipt of
the money, Atty. Pondevilla submitted the Memorandum of
Agreement to the MTCC. He also submitted his Ex-Part
Manifestation with Motion to Withdraw which states that he is
joining the law office of Atty. Lobrido.
MTCC rendered judgment in accordance with the terms and
conditions of the memorandum of agreement. Atty. Lobrido
then filed an Ex-Parte Motion to Withdraw as Cabalida’s
counsel stating therein that it was upon Cabalida’s request and
his conformity. Atty. Adrian Arellano filed his Formal Entry of
Appearance for Cabalida and filed a Motion to Amend Decision
praying that the order be amended to include Salisi who refused
to vacate the property. MTCC said denied this motion.
Cabalida was unable to pay his loan thus the property was
foreclosed and sold in a public auction.
Cabalida asserts in his complaint that respondents colluded to
dispossess him of his property. Atty. Pondevilla was already a
member of Lobrido's law firm as early as their initial meeting
for the amicable settlement of the case. In the said meeting,
respondents convinced Cabalida that the best course of action
for him was to obtain a loan in order to come up with
P250,000.00 as payment to Alpiere. This was made even after the
respondents learned that Cabalida was in communication with
a prospective buyer who was willing to purchase the property
for P1,300,000.00. Atty. Pondevilla also withheld the possession
of the title from Cabalida and placed it in the custody of his
office staff until Cabalida's property was mortgaged. As for the
issuance of the Trust Agreement, Cabalida claims that he did
not receive P250,000.00 in trust from Atty. Pondevilla.
The complaint also provides that Atty. Lobrido did not assist
Cabalida when he entered into the MOA. Atty. Lobrido also
made it appear that his withdrawal as counsel was due to
Cabalida's insistence when it was Atty. Lobrido himself who
advised Cabalida to look for a new counsel as his work was
already over. Thus, Cabalida claims that the unethical acts of
respondents clearly violated the Code of Ethics. Respondents
took advantage of their knowledge of the law as against him
who was not even a high school graduate. He prays that their
actions merit disbarment and that they be held liable for
damages equivalent to the valueof the property lost.
The assigned commissioner gave respondents the benefit of the
doubt that there was no collusion in their actions but found both
individually violating the CPR.
The Board of Governors reversed the findings and exonerated
respondents. Cabalida’s subsequent motion for reconsideration
was denied.
ISSUE:
Whether or not the Board of Governors gravely erred in
exonerating respondents.
RULING:
Yes. The SC adopted the findings of the investigating
commissioner.
As to Atty. Lobrido:
It is a fundamental rule that official duty is presumed to have
been performed regularly, thus it is presumed that the
aforementioned court order has been furnished accordingly to
Atty. Lobrido. Atty. Lobrido's bare denial of knowledge of the
negotiations for and the submission of the Memorandum of
Agreement must fail. His failure to represent Cabalida in the
negotiations for the Memorandum of Agreement shows gross
neglect and indifference to his client's cause. Hence, there was
abject failure to observe due diligence. Atty. Lobrido has
therefore violated Canon 18 of the Code of Professional
Responsibility and Canon 18.03 which provides:
Canon 18 — A lawyer shall serve his client with competence and
diligence.
Canon 18.03. A lawyer shall not neglect a legal matter entrusted
to him, and his negligence in connection therewith shall render
him liable.
As to Atty. Pondevilla:
Atty. Pondevilla's participation in the negotiation for the
Memorandum of Agreement ensued when he relayed Alpiere's
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terms to Cabalida. The same terms that Pondevilla relayed to
Cabalida were then it faithfully stated in the Memorandum of
Agreement. Thus, Pondevilla cannot dilute his role in the
creation of the Memorandum of Agreement to that of a
spectator. The notary public's presence also does not remedy the
situation especially that his obligation is only towards ensuring
the authenticity and due execution of the instrument. Atty.
Pondevilla knew that Atty. Lobrido was Cabalida's counsel thus
he should have, at the very least, given notice to Atty. Lobrido
prior to submission of the Memorandum of Agreement to court.
Atty. Pondevilla's actions violated Canon 8.02 of the Code of
Professional Responsibility when he negotiated with Cabalida
without consulting Atty. Lobrido. Canon 8, Rule 8.02 of the
Code of Professional Responsibility provides that:
A lawyer shall not, directly or indirectly, encroach upon the
professional employment of another lawyer; however, it is the
right of any lawyer, without fear or favor, to give proper advice
and assistance to those seeking relief against unfaithful or
neglectful counsel.
This failure of Atty. Pondevilla, whether by design or because
of oversight, is an inexcusable violation of a canon of
professional ethics and in utter disregard of a duty owing to a
colleague. Atty. Pondevilla fell short of the demands required of
him as a lawyer and as a member of the Bar.
Further, for holding public office as a City Legal Officer and
being a named partner in a law office, Atty. Pondevilla thus
engaged in the unauthorized practice of law, in violation of
Section 7 (b) (2) of Republic Act No. 6713, otherwise known as
the Code of Conduct and Ethical Standards for Public officials
and Employees, in relation to Memorandum Circular No. 17,
series of 1986, which prohibits government officials or
employees from engaging in the private practice of their
profession unless: 1) they are authorized by their department
heads, and 2) that such practice will not conflict or tend to
conflict with their official functions. This is in contravention of
Canon 1, Rule 1.01 of the Code of Professional Responsibility
which provides:
CANON 1 — A lawyer shall uphold the constitution, obey the
laws of the land and promote respect for law and for legal
processes.
Rule 1.01. A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct.
Lawyers are servants of the law, vires legis, men of the law.
Their paramount duty to society is to obey the law and promote
respect for it.
TOPIC: Integrated Bar of the Philippines (IV)
GARCIA, ET AL. V. DE VERA
A.C. NO. 6052
FACTS:
This is a Petition filed by Attys. Oliver Owen L. Garcia,
Emmanuel Ravanera and Tony Velez, mainly seeking the
disqualification of respondent Atty. Leonard De Vera "from
being elected Governor of Eastern Mindanao" in the 16th
Intergrated Bar of the Philippines ("IBP") Regional Governors’
elections. Petitioner Garcia is the Vice-President of the
Bukidnon IBP Chapter, while petitioners Ravanera and Velez
are the past President and the incumbent President,
respectively, of the Misamis Oriental IBP Chapter.
Petitioner Garcia is the Vice-President of Bukidnon IBP Chapter,
while petitioners Ravanera and Velezare the past president and
the incumbent President, respectively, of the Misamis Oriental
IBP Chapter.Petitioners contended that respondent's transfer
from Pasay, Parnaque, Las Pinas and Muntinlupa(PPLM)
Chapter to Agusan del Sur Chapter is a brazen abuse and
misuse of the rotation rule, a mockery of the domicile rule and
a great insult to the lawyers of Eastern Mindanao for it implied
that there is no lawyer from the region qualified and willing to
serve the IBP.
Petitioners also submitted that respondent De Vera lacks the
requisite moral aptitude for the position. According to
petitioners, respondent De Vera was previously sanctioned by
the Supreme Court for irresponsibly attacking the integrity of
the SC Justices during the deliberations of the plunder law.They
further alleged that respondent De Vera could have been
disbarred in the United States for misappropriating his client's
funds had he not surrendered his California license to practice
law.
Respondent De Vera argued that the Court has no jurisdiction
over the present controversy contending that the election of the
officers of the IBP, including the determination of the
qualification of those who want to serve the organization, is
purely an internal matter governed as it is by the IBP By-Laws
and exclusively regulated and administered by the IBP.
Respondent also averred that an IBP member is entitled to
select, change or transfer his chapter or transfer his chapter
membership under Section 19, Article II and Section 29-2,
Article IV of the IBP By-Laws. He also stressed that the right to
transfer membership is also recognized in Section 4, 139-A of the
Rules of Court which is exactly the same as the first of the above-
quoted provision of the IBP By-Laws.
On the moral integrity question, respondent De Vera denies that
he exhibited disrespect to the Court or to any of its members
during its deliberations on the constitutionality of the plunder
law. As for the administrative complaint filed against him by
one of his clients when he was practicing law in California,
which in turn compelled him to surrender his California license
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to practice law, he maintains that it cannot serve as basis for
determining his moral qualification (or lack of it) to run for the
position he is aspiring for.
ISSUES:
(1) Whether this Court has jurisdiction over the present
controversy;
(2) Whether petitioners have a cause of action against
respondent De Vera, the determination of which in turn
requires the resolution of two sub-issues, namely:
(a) Whether the petition to disqualify respondent De Vera
is the proper remedy under the IBP By-Laws; and
(b) Whether the petitioners are the proper parties to bring
this suit;
(3) Whether the present Petition is premature;
(4) Assuming that petitioners have a cause of action and that the
present petition is not premature, whether respondent De Vera
is qualified to run for Governor of the IBP Eastern Mindanao
Region.
RULING:
Anent the first issue, in his Respectful Comment respondent De
Vera contends that the Supreme Court has no jurisdiction on the
present controversy. As noted earlier, respondent De Vera
submits that the election of the Officers of the IBP, including the
determination of the qualification of those who want to serve
the IBP, is purely an internal matter and exclusively within the
jurisdiction of the IBP.
The contention is untenable. Section 5, Article VIII of the 1987
Constitution confers on the Supreme Court the power to
promulgate rules affecting the IBP, thus:
Section 5. The Supreme Court shall have the following
powers:
(5) Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice of law, the
Integrated Bar, and the legal assistance to the underprivileged.
Such rules shall provide a simplified and inexpensive procedure
for the speedy disposition of cases, shall be uniform for all
courts of the same grade, and shall not diminish, increase, or
modify substantive rights. Rules of procedure of special courts
and quasi-judicial bodies shall remain effective unless
disapproved by the Supreme Court. (Emphasis supplied)
Implicit in this constitutional grant is the power to supervise all
the activities of the IBP, including the election of its officers.
In support of its stance on the second issue that the petitioners
have no cause of action against him, respondent De Vera argues
that the IBP By-Laws does not allow petitions to disqualify
candidates for Regional Governors since what it authorizes are
election protests or post-election cases under Section 40 thereof
which reads:
SECTION 40. Election contests. - Any nominee desiring to
contest an election shall, within two days after the
announcement of the results of the elections, file with the
President of the Integrated Bar a written protest setting
forth the grounds therefor. Upon receipt of such petition,
the President shall forthwith call a special meeting of the
outgoing Board of Governors to consider and hear the
protest, with due notice to the contending parties. The
decision of the Board shall be announced not later than the
following May 31, and shall be final and conclusive.
Indeed, there is nothing in the present IBP By-Laws which
sanctions the disqualification of candidates for IBP governors.
The remedy it provides for questioning the elections is the
election protest. But this remedy, as will be shown later, is not
available to just anybody.
Before its amendment in 1989, the IBP By-Laws allowed the
disqualification of nominees for the position of regional
governor. However, it was highly controversial, and in the
aftermath of the controversy which arose during the 1989 IBP
elections, this Court deemed it best to amend the nomination
and election processes for Regional Governors. The Court
localized the elections, i.e, each Regional Governor is nominated
and elected by the delegates of the concerned region, and
adopted the rotation process through the following provisions,
to wit:
SECTION 37: Composition of the Board. - The Integrated
Bar of the Philippines shall be governed by a Board of
Governors consisting of nine (9) Governors from the nine
(9) regions as delineated in Section 3 of the Integration
Rule, on the representation basis of one Governor for each
region to be elected by the members of the House of
Delegates from that region only. The position of Governor
should be rotated among the different chapters in the
region.
SECTION 39: Nomination and election of the Governors. -
At least one (1) month before the national convention the
delegates from each region shall elect the governor for
their region, the choice of which shall as much as possible
be rotated among the chapters in the region.
The changes adopted by the Court simplified the election
process and thus made it less controversial. The grounds for
disqualification were reduced, if not totally eradicated, for the
pool from which the Delegates may choose their nominees is
diminished as the rotation process operates.
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The effect of the new election process convinced this Court to
remove the provision on disqualification proceedings.
Consequently, under the present IBP By-Laws, the instant
petition has no firm ground to stand on.
Respondent De Vera likewise asseverates that under the
aforequoted Section 40 of the IBP By-Laws, petitioners are not
the proper persons to bring the suit for they are not qualified to
be nominated in the elections of regional governor for Eastern
Mindanao. He argues that following the rotation rule under
Section 39 of the IBP By-Laws as amended, only IBP members
from Agusan del Sur and Surigao del Norte are qualified to be
nominated.
Truly, with the applicability of Section 40 of the IBP By-Laws to
the present petition, petitioners are not the proper parties to
bring the suit. As provided in the aforesaid section, only
nominees can file with the President of the IBP a written protest
setting forth the grounds therefor. As claimed by respondent De
Vera, and not disputed by petitioners, only IBP members from
Agusan del Sur and Surigao del Norte are qualified to be
nominated and elected at the election for the 16th Regional
Governor of Eastern Mindanao. This is pursuant to the rotation
rule enunciated in the aforequoted Sections 37 and 38 of the IBP
By-Laws. Petitioner Garcia is from Bukidnon IBP Chapter while
the other petitioners, Ravanera and Velez, are from the Misamis
Oriental IBP Chapter. Consequently, the petitioners are not even
qualified to be nominated at the forthcoming election.
On the third issue relating to the ripeness or prematurity of the
present petition.
This Court is one with the IBP Board in its position that it is
premature for the petitioners to seek the disqualification of
respondent De Vera from being elected IBP Governor for the
Eastern Mindanao Region. Before a member is elected governor,
he has to be nominated first for the post. In this case, respondent
De Vera has not been nominated for the post. In fact, no
nomination of candidates has been made yet by the members of
the House of Delegates from Eastern Mindanao. Conceivably
too, assuming that respondent De Vera gets nominated, he can
always opt to decline the nomination.
Petitioners contend that respondent de Vera is disqualified for
the post because he is not really from Eastern Mindanao. His
place of residence is in Parañaque and he was originally a
member of the PPLM IBP Chapter. He only changed his IBP
Chapter membership to pave the way for his ultimate goal of
attaining the highest IBP post, which is the national presidency.
Petitioners aver that in changing his IBP membership,
respondent De Vera violated the domicile rule.
The contention has no merit. Under the last paragraph of Section
19 Article II, a lawyer included in the Roll of Attorneys of the
Supreme Court can register with the particular IBP Chapter of
his preference or choice, thus:
Section 19. Registration. –
Unless he otherwise registers his preference for a particular
Chapter, a lawyer shall be considered a member of the Chapter
of the province, city, political subdivision or area where his
office or, in the absence thereof, his residence is located. In no
case shall any lawyer be a member of more than one Chapter.
(Underscoring supplied)
Petitioners likewise claim that respondent De Vera is
disqualified because he is not morally fit to occupy the position
of governor of Eastern Mindanao.
We are not convinced. As long as an aspiring member meets the
basic requirements provided in the IBP By-Laws, he cannot be
barred. The basic qualifications for one who wishes to be elected
governor for a particular region are: (1) he is a member in good
standing of the IBP; 2) he is included in the voter’s list of his
chapter or he is not disqualified by the Integration Rule, by the
By-Laws of the Integrated Bar, or by the By-Laws of the Chapter
to which he belongs; (3) he does not belong to a chapter from
which a regional governor has already been elected, unless the
election is the start of a new season or cycle; and (4) he is not in
the government service.
There is nothing in the By-Laws which explicitly provides that
one must be morally fit before he can run for IBP governorship.
For one, this is so because the determination of moral fitness of
a candidate lies in the individual judgment of the members of
the House of Delegates. Indeed, based on each member’s
standard of morality, he is free to nominate and elect any
member, so long as the latter possesses the basic requirements
under the law. For another, basically the disqualification of a
candidate involving lack of moral fitness should emanate from
his disbarment or suspension from the practice of law by this
Court, or conviction by final judgment of an offense which
involves moral turpitude.
Petitioners, in assailing the morality of respondent De Vera on
the basis of the alleged sanction imposed by the Supreme Court
during the deliberation on the constitutionality of the plunder
law, is apparently referring to this Court’s Decision dated 29 July
2002 in In Re: Published Alleged Threats Against Members of the
Court in the Plunder Law Case Hurled by Atty. Leonard De Vera.
In this case, respondent De Vera was found guilty of indirect
contempt of court and was imposed a fine in the amount of
Twenty Thousand Pesos (P20,000.00) for his remarks contained
in two newspaper articles published in the Inquirer. Quoted
hereunder are the pertinent portions of the report, with De
Vera’s statements written in italics.
The ruling cannot serve as a basis to consider respondent De
Vera immoral. The act for which he was found guilty of indirect
contempt does not involve moral turpitude.
It cannot be said that the act of expressing one’s opinion on a
public interest issue can be considered as an act of baseness,
vileness or depravity.1âwphi1 Respondent De Vera did not
bring suffering nor cause undue injury or harm to the public
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when he voiced his views on the Plunder Law. Consequently,
there is no basis for petitioner to invoke the administrative case
as evidence of respondent De Vera’s alleged immorality.
On the administrative complaint that was filed against
respondent De Vera while he was still practicing law in
California, he explained that no final judgment was rendered by
the California Supreme Court finding him guilty of the charge.
He surrendered his license to protest the discrimination he
suffered at the hands of the investigator and he found it
impractical to pursue the case to the end. We find these
explanations satisfactory in the absence of contrary proof. It is a
basic rule on evidence that he who alleges a fact has the burden
to prove the same. In this case, the petitioners have not shown
how the administrative complaint affects respondent De Vera’s
moral fitness to run for governor.
Finally, on the allegation that respondent de Vera or his
handlers had housed the delegates from Eastern Mindanao in
the Century Park Hotel to get their support for his candidacy,
again petitioners did not present any proof to substantiate the
same. It must be emphasized that bare allegations,
unsubstantiated by evidence, are not equivalent to proof under
our Rules of Court.
WHEREFORE, the Petition to disqualify respondent Atty.
Leonard De Vera to run for the position of IBP Governor for
Eastern Mindanao in the 16th election of the IBP Board of
Governors is hereby DISMISSED.
LETTER OF ATTY. CECILIO Y. AREVALO, JR.
B.M. NO. 1370
FACTS:
Facts: In his letter, petitioner sought exemption from payment
of IBP dues in the amount of P12,035.00 as alleged unpaid
accountability for the years 1977-2005. He alleged that after
being admitted to the Philippine Bar in 1961, he became part of
the Philippine Civil Service from July 1962 until 1986, then
migrated to, and worked in, the USA in December 1986 until his
retirement in the year 2003. He maintained that he cannot be
assessed IBP dues for the years that he was working in the
Philippine Civil Service since the Civil Service law prohibits the
practice of one's profession while in government service, and
neither can he be assessed for the years when he was working
in the USA.
IBP:
There is no rule allowing the exemption of payment of annual
dues as requested by respondent, that what is allowed is
voluntary termination and reinstatement of membership. It
asserted that what petitioner could have done was to inform the
secretary of the IBP of his intention to stay abroad, so that his
membership in the IBP could have been terminated, thus, his
obligation to pay dues could have been stopped.
ATTY. AREVALO:
Payment of annual membership dues suffers from
constitutional infirmities, such as equal protection clause and
the due process clause.
Compulsory payment of the IBP annual membership dues
would indubitably be oppressive to him considering that he has
been in an inactive status and is without income derived from
his law practice.
His removal from nonpayment of annual membership dues
would constitute deprivation of property right without due
process of law.
He claims that nonpractice of law by a lawyer-member in
inactive status is neither injurious to active law practitioners, to
fellow lawyers in inactive status, nor to the community where
the inactive.
ISSUE:
Whether or not petitioner is entitled to exemption from
payment of his dues during the time that he was inactive in the
practice of law that is, when he was in the Civil Service from
1962-1986 and he was working abroad from 1986-2003?
RULING: No.
An "Integrated Bar" is a State-organized Bar, to which every
lawyer must belong, as distinguished from bar association
organized by individual lawyers themselves, membership in
which is voluntary. Organized by or under the direction of the
State, an Integrated Bar is an official national body of which all
lawyers are required to be members.
The integration of the Philippine Bar means the official
unification of the entire lawyer population. This requires
membership and financial support of every attorney as
condition sine qua non to the practice of law and the retention
of his name in the Roll of Attorneys of the Supreme Court.
Bar integration does not compel the lawyer to associate with
anyone. He is free to attend or not to attend the meetings of his
Integrated Bar Chapter or vote or refuse to vote in its elections
as he chooses. The only compulsion to which he is subjected
is the payment of his annual dues. The Supreme Court, in order
to foster the State's legitimate interest in elevating the quality of
professional legal services, may require that the cost of
improving the profession in this fashion be shared by the
subjects and beneficiaries of the regulatory program — the
lawyers.
Moreover, there is nothing in the Constitution that prohibits the
Court, under its constitutional power and duty to promulgate
rules concerning the admission to the practice of law and in the
integration of the Philippine Bar — which power required
members of a privileged class, such as lawyers are, to pay a
reasonable fee toward defraying the expenses of regulation of
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the profession to which they belong. It is quite apparent that the
fee is indeed imposed as a regulatory measure, designed to
raise funds for carrying out the noble objectives and purposes
of integration.
Thus, payment of dues is a necessary consequence of
membership in the IBP, of which no one is exempt. This means
that the compulsory nature of payment of dues subsists for as
long as one's membership in the IBP remains regardless of the
lack of practice of, or the type of practice, the member is engaged
in.
As a final note, it must be borne in mind that membership in the
bar is a privilege burdened with conditions, one of which is the
payment of membership dues. Failure to abide by any of them
entails the loss of such privilege if the gravity thereof warrants
such drastic move.
TABUZO VS. GOMOS
A.C. NO. 12005
FACTS:
An administrative complaint was filed by Atty Tabuzo
(complainant) against Atty. Gomos (respondent) who was then
a Commissioner of the IBP, for allegedly violating the law and
Constitution.
The controversy stemmed from an administrative complaint
filed by Lucille G. Sillo (Sillo) against complainant before the
IBP. The case was assigned to respondent for investigation and
report.
The respondent issued a Report and Recommendation
recommending that complainant reprimanded for the
impropriety of talking to Sillo, without her counsel, prior to the
calling of their case for mediation conference, and for the
abusive, offensive or improper language used in the pleadings
she filed in the said case.
The report and recommendation were adopted and approved
by the IBP Board of Governors.
Complainant alleged that respondent violated the law and
Constitution when he failed to act on her pleadings with
dispatch and for issuing his report and recommendation 174
days from the submission of the last pleading.
Respondent countered that it was complainant who caused the
delay of the resolution of the case because of the numerous
motions and pleadings she filed. Also, the report and
recommendation was based on facts, law and jurisprudence
which was adopted and approved by the IBP Board. If
complainant felt aggrieved by the report and recommendation,
she could have filed a motion for reconsideration of the Board's
Resolution.
The IBP Commission recommended the dismissal of the
complaint for lack of merit. It ratiocinated that complainant's
allegations while seemingly couched as acts of misconduct,
actually assails the report and recommendation of respondent
as investigating commissioner. The Commission stated that it
would be irregular and improper to review such findings
because it would be tantamount to reopening matters and issues
that have been passed upon and approved by the IBP Board.
The Commission agreed with the respondent that if
complainant felt aggrieved by such findings, her option would
have been to file a motion for reconsideration or some other
appropriate remedy, but not an administrative case against the
investigating commissioner.
The IBP Board adopted the Commission's report and
recommendation dismissing the complaint.
ISSUE:
(1) Whether respondent may be held administratively liable in
the same manner as judges and other government officials; and
(NO)
(2) Whether respondent may be held administratively liable for
rendering an alleged adverse judgment in his capacity as an
investigating commissioner of the IBP. (NO)
RULING:
IBP a public office or a private institution?
IBP is a sui generis public institution deliberately organized, by
both the legislative and judicial branches of government and
recognized by the present and past Constitutions, for the
advancement of the legal profession.
The IBP's officers, especially the IBP Commissioners, are not
considered as public officers under the purview of the law.
IBP as an organization has as its members all lawyers coming
from both the public and private sectors who are authorized to
practice law in the Philippines. However, Section 4 of the IBP's
By-Laws allows only private practitioners to occupy any
position in its organization. This means that only individuals
engaged in the private practice are authorized to be officers or
employees and to perform acts for and in behalf of the IBP.
Hence, the IBP Commissioners, being officers of the IBP, are
private practitioners performing public functions delegated to
them by this Court in the exercise of its constitutional power to
regulate the practice of law.
IBP Commissioners cannot be held administratively liable for
malfeasance, misfeasance and nonfeasance in the framework of
administrative law because they cannot strictly be considered as
being "employed" with the government or of any subdivision,
agency or instrumentality including government-owned or
controlled corporations.
Nonetheless, IBP Commissioners and other IBP officers may be
held administratively liable for violation of the rules
promulgated by this Court relative to the integrated bar and to
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the practice of law. Even if they are not "public officers'' in the
context of their employment relationship with the government,
they are still "officers of the court" and "servants of the law" who
are expected to observe and maintain the rule of law and to
make themselves exemplars worthy of emulation by others.45
Most importantly, no less than Sec. 5(5) of the Constitution
placed them under the Court's administrative supervision.
Therefore, IBP Commissioners may be held administratively
liable only in relation to their functions as IBP officers not as
government officials.
On the Alleged Delay of the Resolution of the case filed by Sillo against
the complainant.
Sec. 1, Rule III of the Rules of Procedure of the IBP-CBD
provides that "[t]he only pleadings allowed are verified
complaint, verified answer and verified position papers and
motion for reconsideration of a resolution."
The source of the complainant's main gripe against the
respondent is the supposed delay in the resolution of the
following motions as alleged in the complaint: (1) Motion for the
Issuance of a Subpoena Duces Tecum and Subpoena Ad
Testificandum; (2) Respondent’s interrogatories to Complainant
Lucille Sillo; (3) Motion to Sever; and (4) Motion to Inhibit.
Based on the above motions, complainant had filed several
pleadings which are not among those that are explicitly
enumerated in Sec. 1, Rule III of the Rules of Procedure of the
IBP-CBD. The rule uses the term "only" which is patently
indicative that the enumeration is tightly restrictive. Clearly, the
respondent had no positive duty at all to act on these
unsanctioned pleadings, especially in a manner favorable to the
complainant. The complainant cannot blame respondent for not
acting on prohibited or unsanctioned pleadings. Her insistence
in having the aforementioned motions resolved despite not
being mentioned as among the pleadings allowed by Sec. 1, Rule
III of the Rules of Procedure of the IBP-CBD actually contributed
to the delay of the whole proceedings.
IN THE MATTER OF BREWING CONTROVERSIES
A.M. NO. 09-5-2-SC
IBP-Southern Luzon filed its Motion for Leave to Intervene and
to Admit the Attached Petition In Intervention and the subject
Petition In Intervention, seeking a declaration that the post of
EVP for the 2011-2013 term be held open to all regions and that
it be qualified to nominate a candidate for the position of EVP
for the 2011-2013 term.
The Petition in Intervention was, in turn, opposed by Fortunato,
who insisted that IBP-Western Visayas was the only region that
could vie for the position of EVP for the 2011-2013 term.
In its Comment, the IBP-BOG prayed that the "IBP-Southern
Luzon be allowed to nominate a candidate for EVP for the 2011-
2013 term, without prejudice to the right of other regions except
IBP-Eastern Mindanao, to do the same."
POSITION OF IBP-SOUTHERN LUZON
In support of its bid to qualify in the election for EVP for the
2011-2013 term, IBP-Southern Luzon takes the following
positions:
● In view of the Court’s resolution to bar its representative,
Vinluan, from succeeding as IBP-President for the 2009-2011
term, the IBP-Southern Luzon was effectively deprived of its
right to the IBP presidency.
● With the election of Eugene A. Tan as IBP-President (January
29, 1990-April 1991), IBP-Western Visayas should no longer be
allowed to field a candidate in the forthcoming election for EVP.
● As he was just elected on January 5, 2013, Ubano cannot be
considered qualified to seek the position of EVP cum IBP-
President due to his lack of experience.
POSITION OF IBP-WESTERN VISAYAS
● The Petition in Intervention of IBP-Southern Luzon should not
be entertained as it would be contrary to Section 2, Rule 19, it
being filed following the finality of the December 14, 2010
Resolution of the Court
● With the term of current IBP-President Libarios coming to an
end, IBP-Western Visayas is the only region left qualified to field
a candidate for EVP
● The IBP Southern Luzon had already taken its turn in the
rotation system following the election of Vinluan as EVP (2007-
2009) and Raoul R. Angangco (Angangco) who also served as
EVP during the 1995-1997 term.
● The election of Eugene Tan cannot be considered as part of the
current rotation as he was elected following the special elections
held as a result of the October 6, 1989 Resolution of the Court.
ISSUES:
1) Whether the first rotational cycle was completed with the
election of Atty. Leonard De Vera.
2) Whether IBP-Southern Luzon has already served in the
current rotation.
3) Whether the IBP-Western Visayas has already served in the
current rotation.
RULING:
The First Rotational Cycle Already Completed
As earlier recited, Section 47 of the IBP By-Laws was amended
in the December 14, 2010 Resolution of the Court to read as
follows:
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Sec. 47. National Officers. – The Integrated Bar of the
Philippines shall have a President, an Executive Vice President,
and nine (9) regional Governors. The Executive Vice President
shall be elected on a strict rotation basis by the Board of
Governors from among themselves, by the vote of at least five
(5) Governors. The Governors shall be ex officio Vice President
for their respective regions. There shall also be a Secretary and
Treasurer of the Board of Governors.
The violation of the rotation rule in any election shall be
penalized by annulment of the election and disqualification of
the offender from election or appointment to any office in the
IBP.
From the above, it is clear that the amendment was effected to
underscore the shift of the rotation from the position of
president to that of EVP. The purpose of the system being to
ensure that all the regions will have an equal opportunity to
serve as EVP and then automatically succeed as president.
As previously mentioned, in Velez, the Court stated that the
rotation system applies to the election of the EVP only and
considered the service of then EVP De Vera, representing the
Eastern Mindanao region, as having completed the first
rotational cycle. For said reason, the Court affirmed the election
of Salazar of Bicolandia as EVP. The Court explained that the
rotation cycle with respect to the presidency would have been
completed with the succession of EVP De Vera as IBP-President.
The specific words used in Velez were:
In Bar Matter 491, it is clear that it is the position of IBP EVP
which is actually rotated among the nine Regional Governors.
The rotation with respect to the Presidency is merely a result of
the automatic succession rule of the IBP EVP to the Presidency.
Thus, the rotation rule pertains in particular to the position of
IBP EVP, while the automatic succession rule pertains to the
Presidency. The rotation with respect to the Presidency is but a
consequence of the automatic succession rule provided in
Section 47 of the IBP By-Laws.
In the case at bar, the rotation rule was duly complied with
since upon the election of Atty. De Vera as IBP EVP, each of
the nine IBP regions had already produced an EVP and, thus,
the rotation was completed. It is only unfortunate that the
supervening event of Atty. de Vera's removal as IBP Governor
and EVP rendered it impossible for him to assume the IBP
Presidency. The fact remains, however, that the rotation rule
had been completed despite the non-assumption by Atty. de
Vera to the IBP Presidency.
The Second Rotational Cycle
While there may have been no categorical pronouncement in
Velez that the second rotational cycle started with the election
of Salazar as EVP, it cannot be denied that it was so. With the
Velez declaration that the election of De Vera as EVP completed
the first cycle, there can be no other consequence except that the
term of EVP Salazar commenced a new rotational cycle.
Needless to state, Western Visayas is not the only region that
can vie for EVP for the 2011-2013 term. This answers the query
of Fortunato.
With respect to IBP-Southern Luzon, following the ruling in
Velez, it is clear that it already had its turn to serve as EVP in the
Second Rotational Cycle.
The Election of Eugene Tan as IBP President
Much has been said about the election of Eugene Tan as IBP-
President. IBP-Southern Luzon argues that with his election and
service as IBP-President from January 29, 1990 to April 1991, the
IBP-Western Visayas should no longer be allowed to field a
candidate in the forthcoming elections for the EVP. IBP-Western
Visayas counters that his election could not be considered as
part of the current rotation as he was elected following the
special elections held as a result of the October 6, 1989
Resolution of the Court. It has also been argued that he merely
served as Interim President.
As Velez declared that the election of EVP De Vera completed
the first rotational cycle, it could only mean that all regions had
their respective turns in the first rotational cycle. Thus, in this
second rotational cycle, issues as to the nature of his election and
service as IBP-President during the First Rotational Cycle are
inconsequential.
At any rate, Eugene Tan could not be considered as an interim
president. It was Justice Felix Antonio who was designated by
the Court as Interim Caretaker until the election of the IBP-
President by the elected IBP-BOG. The election of the new
President and Executive Vice-President was directed by the
Court itself and in no way can it be said that they served on an
interim basis. Besides, at that time, under Section 47, the rotation
concerned the presidency only. Section 47 was ordered to be
amended only in the December 14, 2010 Resolution,61 despite
Bar Matter No. 491 and Velez, which recognized the operational
fact that the rotation was from the position of President to that
of EVP.
If Eugene Tan served only up to April, 1991, it was not because
he served merely in the interim. He served up to that time only
because he resigned. As reflected in Bar Matter No. 565, dated
October 15, 1991, Tan resigned as IBP-President when he was
charged by several staff members of the IBP in a letter-complaint
to the Chief Justice, with favoritism or discrimination in the
hiring of officers and employees in the IBP and with extravagant
and irregular expenditure of IBP funds. The Court found the
acts of Eugene Tan as constituting grave abuse of authority and
serious misconduct in office, which would have warranted his
removal from office. Considering that he had earlier tendered
his resignation as IBP-President and his term of office already
expired on June 30, 1991, the Court imposed on him the penalty
of severe censure only.
Moreover, in A.M. No. 491, the Court stressed that: "One who
has served as President of the IBP may not run for election as
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EVP-IBP in a succeeding election until after the rotation of the
presidency among the nine (9) regions shall have completed;
whereupon the rotation shall begin anew."
Rotation by Exclusion
As clarified in the December 4, 2012 Resolution of the Court, the
rotation should be by exclusion. In said resolution, it was stated:
Resolution of the Court
Re: IBP-Western Visayas Region
After an assiduous review of the facts, the issues and the
arguments raised by the parties involved, the Court finds
wisdom in the position of the IBP-BOG, through retired Justice
Santiago M. Kapunan, that at the start of a new rotational cycle
"all chapters are deemed qualified to vie for the governorship
for the 2011-2013 term without prejudice to the chapters
entering into a consensus to adopt any pre-ordained sequence
in the new rotation cycle provided each chapter will have its
turn in the rotation." Stated differently, the IBP-BOG
recommends the adoption of the rotation by exclusion scheme.
The Court quotes with approval the reasons given by the IBP-
BOG on this score:
6. After due deliberation, the Board of Governors agreed and
resolved to recommend adherence to the principle of "rotation
by exclusion" based on the following reasons:
a) Election through "rotation by exclusion" is the more
established rule in the IBP. The rule prescribes that once a
member of the chapter is elected as Governor, his chapter would
be excluded in the next turn until all have taken their turns in
the rotation cycle. Once a full rotation cycle ends and a fresh
cycle commences, all the chapters in the region are once again
entitled to vie but subject again to the rule on rotation by
exclusion.
b) Election through a "rotation by exclusion" allows for a more
democratic election process. The rule provides for freedom of
choice while upholding the equitable principle of rotation which
assures that every member-chapter has its turn in every rotation
cycle.
c) On the other hand, rotation by pre-ordained sequence, or
election based on the same order as the previous cycle, tends to
defeat the purpose of an election. The element of choice – which
is crucial to a democratic process – is virtually removed. Only
one chapter could vie for election at every turn as the entire
sequence, from first to last, is already predetermined by the
order in the previous rotation cycle. This concept of rotation by
pre-ordained sequence negates freedom of choice, which is the
bedrock of any democratic election process.
d) The pronouncement of the Special Committee, which the
Supreme Court may have adopted in AM No. 09-5-2-SC,
involving the application of the rotation rule in the previous
election for GMR may not be controlling, not being one of the
principal issues raised in the GMR elections.
7. Thus, applying the principle of ‘rotation by exclusion’ in
Western Visayas which starts with a new rotation cycle, all
chapters (with the exception of Romblon) are deemed
qualified to vie for the Governorship for 2011-2013 term
without prejudice to the chapters entering into a consensus to
adopt any pre-ordained sequence in the new rotation cycle
provided each chapter will have its turn in the rotation.
The Court takes notice of the predictability of the rotation by
succession scheme. Through the rotation by exclusion scheme,
the elections would be more genuine as the opportunity to serve
as Governor at any time is once again open to all chapters,
unless, of course, a chapter has already served in the new cycle.
While predictability is not altogether avoided, as in the case
where only one chapter remains in the cycle, still, as previously
noted by the Court "the rotation rule should be applied in
harmony with, and not in derogation of, the sovereign will of
the electorate as expressed through the ballot."
Thus, as applied in the IBP-Western Visayas Region, initially, all
the chapters shall have the equal opportunity to vie for the
position of Governor for the next cycle except Romblon, so as no
chapter shall serve consecutively. Every winner shall then be
excluded after its term. Romblon then joins the succeeding
elections after the first winner in the cycle.
As stated therein, it would be without prejudice to the regions
entering into a consensus to adopt any pre-ordained sequence
in the new rotation cycle, provided each region would have its
turn in the rotation.
As noted by the Court in its December 4, 2012 Resolution, there
is a sense of predictability in the rotation by the pre-ordained
scheme. Through the rotation by exclusion scheme, the elections
will be more genuine, as the opportunity to serve at any time is
once again open to all, unless, of course, a region has already
served in the new cycle. While predictability is not altogether
avoided, as in the case where only one region remains in the
cycle, still, as previously noted by the Court "the rotation rule
should be applied in harmony with, and not in derogation of,
the sovereign will of the electorate as expressed through the
ballot."
The December 14, 2010 Resolution
That the Court, in its December 14, 2010 Resolution, ordered the
election of the EVP-IBP for the next term based on the inaccurate
report of the Special Committee, is a fact. That cannot be erased.
As a consequence, thereof, Libarios of IBP-Eastern Mindanao is
now the IBP President. He, however, is part of the second
rotational cycle because 1] in Velez it was categorically ruled
that the service of then EVP De Vera, representing the Eastern
Mindanao region, completed the first rotational cycle; and 2] he
could not be part of the first rotational cycle because EVP de
Vera of the same region had already been elected as such.
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It is to be noted that in the December 14, 2010 Resolution, the
Court did not categorically overturn the ruling in Velez. It
merely directed the election of the next EVP, without any
reference to any rotational cycle.
To declare that the first rotational cycle as not yet completed will
cause more confusion than solution. In fact, it has spawned this
current controversy. To consider the service of current
president, Libarios, as part of the first rotational cycle would
completely ignore the ruling in Velez.
The Best Option: Open to All Regions
How then do we treat the turns of those who had already served
in the second rotational cycle? Shall we treat them as anomalies?
As aberrant developments, as Justice Brion puts it?
A remedy is to reconcile the conflicting decisions and
resolutions with nothing in mind but the best interest of the IBP.
It appears from the pleadings, however, that the differences are
irresoluble.
To avoid the endless conflicts, confusions and controversies
which have been irritably plaguing the IBP, the solution is to
start another rotational round, a new cycle, open to all regions.
At any rate, all regions, after the election of Libarios, would be
considered as already having its turn in the presidency. This is
not to detract from the fact that under Section 47, as amended,
and from the pertinent rulings, the position of EVP-IBP is the
one being actually rotated, but as stated in the December 14,
2010 Resolution,71 it will enable the IBP "to start on a clean and
correct slate, free from the politicking and the under handed
tactics that have characterized the IBP elections for so long."
Section 47 of the IBP By-Laws should be further amended
Whatever the decision of the Court may be, to prevent future
wranglings and guide the IBP in their future course of action,
Section 47 and Section 49 of the IBP By-laws should again be
amended. Stress should be placed on the automatic succession
of the EVP to the position of the president. Surprisingly, the
automatic succession does not appear in present Section 47, as
ordered amended by the Court in the December 14, 2010
Resolution. It should be restored. Accordingly, Section 47 and
Section 49, Article VII, are recommended to read as follows:
Sec. 47. Election of National President Executive Vice President.
– The Integrated Bar of the Philippines shall have a President,
an Executive Vice President, and nine (9) regional Governors.
The Governors shall be ex-officio Vice President for their
respective regions.
The Board of Governors shall elect the President and Executive
Vice President from among themselves each by a vote of at least
five (5) Governors. Upon expiration of the term of the President,
the Executive Vice-President shall automatically succeed as
President.
Each region, as enumerated under Section 3, Rule 139-A of the
Rules of Court, shall have the opportunity to have its
representative elected as Executive Vice-President, provided
that, the election for the position of Executive Vice President
shall be on a strict rotation by exclusion basis. A region, whose
representative has just been elected as Executive Vice President,
can no longer have its representative elected for the same
position in subsequent elections until after all regions have had
the opportunity to be elected as such. At the end of the rotational
cycle, all regions, except the region whose representative has
just served the immediately preceding term, may be elected for
another term as Executive Vice-President in the new rotational
cycle. The region whose representative served last in the
previous rotational cycle may be elected Executive Vice-
President only after the first term of the new rotational cycle
ends, subject once more to the rule on exclusion.
The order of rotation by exclusion shall be without prejudice to
the regions entering into a consensus to adopt any pre-ordained
sequence in the new rotation cycle provided each region will
have its turn in the rotation.
A violation of the rotation rule in any election shall be penalized
by annulment of the election and disqualification of the offender
from election or appointment to any office in the IBP.
SEC. 49. Terms of office. - The President and the Executive Vice-
President shall hold office for a term of two years from July 1
following their election until June 30 of their second year in
office and until their successors shall have been duly chosen and
qualified.
In the event the President is absent or unable to act, his functions
and duties shall be performed by the Executive Vice President,
and in the event of the death, resignation, or removal of the
President, the Executive Vice President shall serve as Acting
President for the unexpired portion of the term. His tenure as
such shall not be considered a new turn in the rotation.
In the event of death, resignation, removal or disability of the
Executive Vice President, the Board of Directors shall elect
among the regions qualified to be elected as Executive Vice
President to serve the unexpired portion of the term or period
of disability.
In the event of the death, resignation, removal or disability of
both the President and the Executive Vice President, the Board
of Governors shall elect an Acting President to hold office for
the unexpired portion of the term or during the period of
disability. Unless otherwise provided in these By-Laws, all
other officers and employees appointed by the President with
the consent of the Board shall hold office at the pleasure of the
Board or for such terms as the Board may fix.
Creation of a permanent Committee for IBP Affairs
To further avoid conflicting and confusing rulings in the various
IBP cases like what happened to this one, the December 14,2010
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Resolution and Velez, it is recommended that the Court create a
committee for IBP affairs to primarily attend to the problems
and needs of a very important professional body and to make
recommendation for its improvement and strengthening.
WHEREFORE, the Court hereby resolves to:
1] GRANT the Motion for Leave to Intervene and to Admit the
Attached Petition In Intervention;
2] DECLARE that the election for the position of the EVP for the
2011-2013 term be open to all regions.
3] AMEND Section 47 and Section 49, Article VII of the IBP By-
Laws to read as recommended in the body of this disposition.
4] CREATE a permanent Committee for IBP Affairs.
MAGLANA VS. OPINION
B.M. NO. 2713
FACTS:
Delegates of IBP Eastern Visayas gathered to elect the Governor
of their region for the 2013-2015 term. When the election was
called to order and opened the nominations, Atty. Maglana,
then incumbent President of IBP Samar, was nominated for
governor. She then moved to declare IBP Samar the only chapter
eligible to be voted upon pursuant to the rotation rule under Bar
Matter No. 491 (BM 491) arguing that since the start of
implementation of the said rule, only IBP Samar had not served
as Governor of IBP Eastern Visayas.
Atty. Opinion, the candidate of IBP Eastern Samar took the floor
and manifested that before running for Governor, he sought the
opinion of the IBP if he was still qualified to run for Governor
considering that he also ran for the same position and lost in the
immediately preceding term. IBP Executive Committee issued
an opinion stating that despite losing the Governorship
elections in the immediately preceding term, he is still qualified
to seek again the same position this time around.
Atty. Opinion also manifested that in the 2011 Regional
Elections for IBP Eastern Visayas, the representative of IBP
Samar Chapter, Judge Amanzar, waived "the votes as he cannot
pursue an election at that time."
After heated debates and numerous protests, the election still
went through with Atty. Opinion being disqualified to run for
Governor. Governor Enage counted the votes, with six (6) votes
in favor of Atty. Opinion considered as stray votes and four (4)
votes in favor of Atty. Maglana. With the disqualification of
Atty. Opinion, Atty. Maglana was declared the Governor of IBP
Eastern visayas.
Atty. Opinion then filed an election protest raising two points.
First, the rotation rule has not been followed since other
chapters have had 2 elected governors while others only have
one -- hence IBP Eastern Samar cannot be disqualified to run
since it was merely exercising its right to run for the second time
like the other chapters. Second, that IBP Samar has waived its
turn in the rotation and that it should not be allowed to assert
its turn in the rotation at any time.
In her comment, Atty. Maglana argued that: First, IBP Samar did
not waive their right turn in the rotation, noting the categorical
denial of the IBP Samar Chapter President. Moreover, even if
such waiver did happen, IBP Samar Chapter can reclaim its
right to the governorship before the rotation is completed,
pursuant to Section 39, Article VI, as amended, of the IBP By-
Laws. Thus, for the 2013-2015 term, IBP Samar Chapter, which
remains to be the only chapter that did not have its turn in the
rotation, should be allowed to reclaim its right to the
governorship. Second, the rotation rule should be strictly
followed and since IBP Samar is the only chapter who has not
yet gotten their turn in the rotation, it should be deemed the
only chapter qualified to have a candidate.
ISSUE:
Whether Atty. Opinion should be declared the duly elected
Governor for IBP Eastern Visayas for the 2013-2015 term. YES
RULING:
Brief Background of IBP Structure: The IBP Eastern Visayas region is
composed of 9 chapters, namely: Biliran, Bohol, Cebu Province, Cebu
City, Eastern Samar, Leyte, Northern Samar, Samar and Southern
Leyte.
The rotation rule should be strictly implemented such that the
prior elections for governor shall be considered in determining
who should be the governor for that term. However, despite the
call for strict implementation, the rotation rule is subject to
waivers by the chapters of the regions.
The Rotation Rulein the IBP states:
Section 39. Nomination and election of the Governors. — At least one
(1) month before the national convention the delegates from each
region shall elect the Governor for their region, who shall be chosen by
rotation which is mandatory and shall be strictly implemented among
the Chapters in the region. When a Chapter waives its turn in the
rotation order, its place shall redound to the next Chapter in the line.
Nevertheless, the former may reclaim its right to the Governorship at
any time before the rotation is completed; otherwise, it will have to wait
for its turn in the next round, in the same place that it had in the round
completed.
It is to be noted that the rotation system should be counted from
the 1989-1991 term and should be completed in the 2005-2007
term. Pursuant to the rotational rule, the governorship of a
region shall rotate once in as many terms as there may be
chapters in the region, to give every chapter a chance to
represent the region in the IBP BOG.
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However, not every chapter was represented in the first
rotational cycle – in fact there were instances where the elected
governor came from the same chapter in that first rotation.
Because of this, the proper implementation of the rotation rule
got sidetracked.
governor in the 2013-2015 term. Applied in the present case, it
is clear that both IBP Eastern Samar and IBP Samar, along with
Cebu Province, Cebu City, Biliran and Northern Samar
Chapters, are qualified to field their candidates in the 2013
regional elections in the IBP Eastern Visayas region.

We cannot sustain Atty. Maglana's arguments, that: (1) the first
rotation cycle in IBP Eastern Visayas region had not been
completed in 2007; and (2) that the rotation cycle can only be
completed once a nominee from IBP Samar Chapter had served
as governor for the 2013-2015 term.
The election of Atty. Opinion is well-settled. He did not only
come from the chapter which is entitled to be elected for the
position but also got the majority of six (6) votes, as opposed to
the four (4) votes garnered by Atty. Maglana 2013 elections.

The primary reason why some chapters were represented twice

in the first rotation cycle was because of the waiver of Samar by
not fielding any candidate or failing to invoke the rotation rule
to challenge the nominations of the candidates from the
chapters who have already been represented. Because of this
waiver, the first cycle ended in 2007 with Samar not being
represented at all.

As provided Sec. 39, Article VI of the IBP By-Laws, the chapter

which has waived its turn in the rotation cycle may reclaim its
right to the governorship at any time before the rotation is
completed. Since the rotation was completed as of 2007, Atty.
Maglana cannot anymore reclaim IBP Samar’s right to the
governorship in 2013-2015 term – it should have exercised this
right before 2007.

Despite the amendment of Section 39, Article VI of the IBP By-

Laws mandating the strict implementation of the rotation by
exclusion rule, the Court cannot ignore the reality that prior to
the present amendment (i.e., from the 1989-1991 term until
December 2010), the prevailing rotation rule was not
mandatory; the choice of governor should only be rotated as
much as possible among the chapters of the region. The
mandatory implementation of the Rotation Rule would only
take effect in the 2011-2013 term, onwards. Hence, although
some chapters were not represented in the first rotation cycle
while others were represented twice, such developments can
only be justified under the “as much as possible” qualifier.
Taking this into consideration, the first rotation cycle has been
completed in 2007.

With the IBP Eastern Visayas already in its second rotation cycle
and with delegates from Leyte, Bohol and Southern Leyte
chapters serving as governor, Atty. Maglana’s position that only
IBP Samar is the only chapter qualified to field a candidate in
the 2013-2015 clearly fails.

The rotation by exclusion rule provides that "once a member of

[a] chapter is elected as Governor, his [or her] chapter would be
excluded in the next turn until all have taken their turns in the
rotation cycle. Once a full rotation cycle ends and a fresh cycle
commences, all the chapters in the region are once again entitled
to vie but subject again to the rule on rotation by exclusion."

Under this rule, considering that Leyte, Bohol and Southern

Leyte Chapters already served in the second rotation cycle, the
six remaining chapters are qualified to field their candidates for
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