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Republic of the Philippines

SUPREME COURT

Manila

FIRST DIVISION

A.C. No. 5281 February 12, 2008

MANUEL L. LEE,petitioner,

vs.

ATTY. REGINO B. TAMBAGO,respondent.

R E S O L U T I O N

CORONA,J.:

In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged

respondent Atty. Regino B. Tambago with violation of the Notarial Law and the

ethics of the legal profession for notarizing a spurious last will and testament.

In his complaint, complainant averred that his father, the decedent Vicente Lee,

Sr., never executed the contested will. Furthermore, the spurious will

contained the forged signatures of Cayetano Noynay and Loreto Grajo, the

purported witnesses to its execution.

In the said will, the decedent supposedly bequeathed his entire estate to his

wife Lim Hock Lee, save for a parcel of land which he devised to Vicente Lee, Jr.

and Elena Lee, half-siblings of complainant.

The will was purportedly executed and acknowledged before respondent on

June 30, 1965.1Complainant, however, pointed out that the residence

certificate2of the testator noted in the acknowledgment of the will was dated

January 5, 1962.3Furthermore, the signature of the testator was not the same

as his signature as donor in a deed of donation4(containing his purported

genuine signature). Complainant averred that the signatures of his deceased

father in the will and in the deed of donation were "in any way (sic) entirely and

diametrically opposed from (sic) one another in all angle[s]."5

Complainant also questioned the absence of notation of the residence

certificates of the purported witnesses Noynay and Grajo. He alleged that their

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signatures had likewise been forged and merely copied from their respective

voters affidavits.

Complainant further asserted that no copy of such purported will was on file in

the archives division of the Records Management and Archives Office of the

National Commission for Culture and the Arts (NCCA). In this connection, the

certification of the chief of the archives division dated September 19, 1999

stated:

Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT

executed by BARTOLOME RAMIREZ on June 30, 1965 and is available in

this Office[s] files.6

Respondent in his comment dated July 6, 2001 claimed that the complaint

against him contained false allegations: (1) that complainant was a son of thedecedent Vicente Lee, Sr. and (2) that the will in question was fake and

spurious. He alleged that complainant was "not a legitimate son of Vicente Lee,

Sr. and the last will and testament was validly executed and actually notarized

by respondent per affidavit7of Gloria Nebato, common-law wife of Vicente Lee,

Sr. and corroborated by the joint affidavit8of the children of Vicente Lee, Sr.,

namely Elena N. Lee and Vicente N. Lee, Jr. xxx."9

Respondent further stated that the complaint was filed simply to harass him

because the criminal case filed by complainant against him in the Office of the

Ombudsman "did not prosper."

Respondent did not dispute complainants contention that no copy of the will

was on file in the archives division of the NCCA. He claimed that no copy of the

contested will could be found there because none was filed.

Lastly, respondent pointed out that complainant had no valid cause of action

against him as he (complainant) did not first file an action for the declaration of

nullity of the will and demand his share in the inheritance.

In a resolution dated October 17, 2001, the Court referred the case to theIntegrated Bar of the Philippines (IBP) for investigation, report and

recommendation.10

In his report, the investigating commissioner found respondent guilty of

violation of pertinent provisions of the old Notarial Law as found in the Revised

Administrative Code. The violation constituted an infringement of legal ethics,

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particularly Canon 111and Rule 1.0112of the Code of Professional

Responsibility (CPR).13Thus, the investigating commissioner of the IBP

Commission on Bar Discipline recommended the suspension of respondent for

a period of three months.

The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May 26,

2006, resolved:

[T]o ADOPT and APPROVE, as it is hereby ADOPTED and

APPROVED,with modification,the Report and Recommendation of the

Investigating Commissioner of the above-entitled case, herein made part

of this Resolution as Annex "A"; and, finding the recommendation fully

supported by the evidence on record and the applicable laws and rules,

and considering Respondents failure to comply with the laws in the

discharge of his function as a notary public, Atty. Regino B. Tambago ishereby suspended from the practice of law for one year and Respondents

notarial commission isRevoked and Disqualifiedfromreappointment

as Notary Public for two (2) years.14

We affirm with modification.

A will is an act whereby a person is permitted, with the formalities prescribed

by law, to control to a certain degree the disposition of his estate, to take effect

after his death.15A will may either be notarial or holographic.

The law provides for certain formalities that must be followed in the execution

of wills. The object of solemnities surrounding the execution of wills is to close

the door on bad faith and fraud, to avoid substitution of wills and testaments

and to guarantee their truth and authenticity.16

A notarial will, as the contested will in this case, is required by law to be

subscribed at the end thereof by the testator himself. In addition, it should be

attested and subscribed by three or more credible witnesses in the presence of

the testator and of one another.17

The will in question was attested by only two witnesses, Noynay and Grajo. On

this circumstance alone, the will must be considered void.18This is in

consonance with the rule that acts executed against the provisions of

mandatory or prohibitory laws shall be void, except when the law itself

authorizes their validity.

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The Civil Code likewise requires that a will must be acknowledged before a

notary public by the testator and the witnesses.19The importance of this

requirement is highlighted by the fact that it was segregated from the other

requirements under Article 805 and embodied in a distinct and separate

provision.20

An acknowledgment is the act of one who has executed a deed in going before

some competent officer or court and declaring it to be his act or deed. It

involves an extra step undertaken whereby the signatory actually declares to

the notary public that the same is his or her own free act and deed.21The

acknowledgment in a notarial will has a two-fold purpose: (1) to safeguard the

testators wishes long after his demise and (2) to assure that his estate is

administered in the manner that he intends it to be done.

A cursory examination of the acknowledgment of the will in question showsthat this particular requirement was neither strictly nor substantially complied

with. For one, there was the conspicuous absence of a notation of the residence

certificates of the notarial witnesses Noynay and Grajo in the acknowledgment.

Similarly, the notation of the testators old residence certificate in the same

acknowledgment was a clear breach of the law. These omissions by respondent

invalidated the will.

As the acknowledging officer of the contested will, respondent was required to

faithfully observe the formalities of a will and those of notarization. As we held

inSantiago v. Rafanan:22

The Notarial Law is explicit on the obligations and duties of notaries

public. They are required to certify that the party to every document

acknowledged before him had presented the proper residence certificate

(or exemption from the residence tax); and to enter its number, place of

issue and date as part of such certification.

These formalities are mandatory and cannot be disregarded, considering the

degree of importance and evidentiary weight attached to notarized

documents.23A notary public, especially a lawyer,24is bound to strictly observe

these elementary requirements.

The Notarial Law then in force required the exhibition of the residence

certificate upon notarization of a document or instrument:

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Section 251. Requirement as to notation of payment of [cedula] residence

tax. Every contract, deed, or other document acknowledged before a

notary public shall have certified thereon that the parties thereto have

presented their proper [cedula] residence certificate or are exempt from

the [cedula] residence tax, and there shall be entered by the notary

public as a part of such certificate the number, place of issue, and date

of each [cedula] residence certificate as aforesaid.25

The importance of such act was further reiterated by Section 6 of the Residence

Tax Act26which stated:

When a person liable to the taxes prescribed in this Act acknowledges

any document before a notary public xxx it shall be the duty of such

person xxx with whom such transaction is had or business done, to

require the exhibition of the residence certificate showing payment of theresidence taxes by such person xxx.

In the issuance of a residence certificate, the law seeks to establish the true

and correct identity of the person to whom it is issued, as well as the payment

of residence taxes for the current year. By having allowed decedent to exhibit

an expired residence certificate, respondent failed to comply with the

requirements of both the old Notarial Law and the Residence Tax Act. As much

could be said of his failure to demand the exhibition of the residence

certificates of Noynay and Grajo.

On the issue of whether respondent was under the legal obligation to furnish a

copy of the notarized will to the archives division, Article 806 provides:

Art. 806. Every will must be acknowledged before a notary public by the

testator and the witness.The notary public shall not be required to

retain a copy of the will, or file another with the office of the Clerk

of Court.(emphasis supplied)

Respondents failure, inadvertent or not, to file in the archives division a copy of

the notarized will was therefore not a cause for disciplinary action.

Nevertheless, respondent should be faulted for having failed to make the

necessary entries pertaining to the will in his notarial register. The old Notarial

Law required the entry of the following matters in the notarial register, in

chronological order:

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1. nature of each instrument executed, sworn to, or acknowledged before

him;

2. person executing, swearing to, or acknowledging the instrument;

3. witnesses, if any, to the signature;

4. date of execution, oath, or acknowledgment of the instrument;

5. fees collected by him for his services as notary;

6. give each entry a consecutive number; and

7. if the instrument is a contract, a brief description of the substance of

the instrument.27

In an effort to prove that he had complied with the abovementioned rule,

respondent contended that he had crossed out a prior entry and entered

instead the will of the decedent. As proof, he presented a photocopy of his

notarial register. To reinforce his claim, he presented a photocopy of a

certification28stating that the archives division had no copy of the affidavit of

Bartolome Ramirez.

A photocopy is a mere secondary evidence. It is not admissible unless it is

shown that the original is unavailable. The proponent must first prove the

existence and cause of the unavailability of the original,29otherwise, the

evidence presented will not be admitted. Thus, the photocopy of respondents

notarial register was not admissible as evidence of the entry of the execution of

the will because it failed to comply with the requirements for the admissibility

of secondary evidence.

In the same vein, respondents attempt to controvert the certification dated

September 21, 199930must fail. Not only did he present a mere photocopy of

the certification dated March 15, 2000;31its contents did not squarely prove the

fact of entry of the contested will in his notarial register.

Notaries public must observe with utmost care32and utmost fidelity the basic

requirements in the performance of their duties, otherwise, the confidence of

the public in the integrity of notarized deeds will be undermined.33

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Defects in the observance of the solemnities prescribed by law render the entire

will invalid. This carelessness cannot be taken lightly in view of the importance

and delicate nature of a will, considering that the testator and the witnesses,

as in this case, are no longer alive to identify the instrument and to confirm its

contents.34Accordingly, respondent must be held accountable for his acts. The

validity of the will was seriously compromised as a consequence of his breach

of duty.35

In this connection, Section 249 of the old Notarial Law provided:

Grounds for revocation of commission. The following derelictions of

duty on the part of a notary public shall, in the discretion of the proper

judge of first instance, be sufficient ground for the revocation of his

commission:

xxx xxx xxx

(b) The failure of the notary to make the proper entry or entries in his

notarial register touching his notarial acts in the manner required by law.

xxx xxx xxx

(f) The failure of the notary to make the proper notation regarding cedula

certificates.36

These gross violations of the law also made respondent liable for violation of his

oath as a lawyer and constituted transgressions of Section 20 (a), Rule 138 of

the Rules of Court37and Canon 138and Rule 1.0139of the CPR.

The first and foremost duty of a lawyer is to maintain allegiance to the Republic

of the Philippines, uphold the Constitution and obey the laws of the land.40For

a lawyer is the servant of the law and belongs to a profession to which society

has entrusted the administration of law and the dispensation of justice.41

While the duty to uphold the Constitution and obey the law is an obligationimposed on every citizen, a lawyer assumes responsibilities well beyond the

basic requirements of good citizenship. As a servant of the law, a lawyer should

moreover make himself an example for others to emulate.42Being a lawyer, he

is supposed to be a model in the community in so far as respect for the law is

concerned.43

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The practice of law is a privilege burdened with conditions.44A breach of these

conditions justifies disciplinary action against the erring lawyer. A disciplinary

sanction is imposed on a lawyer upon a finding or acknowledgment that he has

engaged in professional misconduct.45These sanctions meted out to errant

lawyers include disbarment, suspension and reprimand.

Disbarment is the most severe form of disciplinary sanction.46We have held in

a number of cases that the power to disbar must be exercised with great

caution47and should not be decreed if any punishment less severe such as

reprimand, suspension, or fine will accomplish the end desired.48The rule

then is that disbarment is meted out only in clear cases of misconduct that

seriously affect the standing and character of the lawyer as an officer of the

court.49

Respondent, as notary public, evidently failed in the performance of theelementary duties of his office. Contrary to his claims that he "exercised his

duties as Notary Public with due care and with due regard to the provision of

existing law and had complied with the elementary formalities in the

performance of his duties xxx," we find that he acted very irresponsibly in

notarizing the will in question. Such recklessness warrants the less severe

punishment of suspension from the practice of law. It is, as well, a sufficient

basis for the revocation of his commission50and his perpetual disqualification

to be commissioned as a notary public.51

WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty ofprofessional misconduct. He violated (1) the Lawyers Oath; (2) Rule 138 of the

Rules of Court; (3) Canon 1 and Rule 1.01 of the Code of Professional

Responsibility; (4) Art. 806 of the Civil Code and (5) the provisions of the old

Notarial Law.

Atty. Regino B. Tambago is herebySUSPENDEDfrom the practice of law for one

year and his notarial commissionREVOKED.Because he has not lived up to

the trustworthiness expected of him as a notary public and as an officer of the

court, he isPERPETUALLYDISQUALIFIEDfrom reappointment as a notarypublic.

Let copies of this Resolution be furnished to all the courts of the land, the

Integrated Bar of the Philippines and the Office of the Bar Confidant, as well as

made part of the personal records of respondent.

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SO ORDERED.

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

A.C. No. 5439 January 22, 2007

CLARITA J. SAMALA,Complainant,

vs.

ATTY. LUCIANO D. VALENCIA,Respondent.

R E S O L U T I O N

AUSTRIA-MARTINEZ,J.:

Before us is a complaint1dated May 2, 2001 filed by Clarita J. Samala

(complainant) against Atty. Luciano D. Valencia (respondent) for Disbarment on

the following grounds: (a) serving on two separate occasions as counsel for

contending parties; (b) knowingly misleading the court by submitting false

documentary evidence; (c) initiating numerous cases in exchange for

nonpayment of rental fees; and (d) having a reputation of being immoral by

siring illegitimate children.

After respondent filed his Comment, the Court, in its Resolution of October 24,

2001, referred the case to the Integrated Bar of the Philippines (IBP) for

investigation, report and recommendation.2

The investigation was conducted by Commissioner Demaree Jesus B. Raval.

After a series of hearings, the parties filed their respective memoranda3and

the case was deemed submitted for resolution.

Commissioner Wilfredo E.J.E. Reyes prepared the Report and

Recommendation4dated January 12, 2006. He found respondent guilty of

violating Canons 15 and 21 of the Code of Professional Responsibility and

recommended the penalty of suspension for six months.

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In a minute Resolution5passed on May 26, 2006, the IBP Board of Governors

adopted and approved the report and recommendation of Commissioner Reyes

but increased the penalty of suspension from six months to one year.

We adopt the report of the IBP Board of Governors except as to the issue on

immorality and as to the recommended penalty.

On serving as counsel for contending parties.

Records show that in Civil Case No. 95-105-MK, filed in the Regional Trial

Court (RTC), Branch 272, Marikina City, entitled "Leonora M. Aville v. Editha

Valdez" for nonpayment of rentals, herein respondent, while being the counsel

for defendant Valdez, also acted as counsel for the tenants Lagmay, Valencia,

Bustamante and Bayuga6by filing an Explanation and Compliance before the

RTC.

7

In Civil Case No. 98-6804 filed in the Metropolitan Trial Court (MTC), Branch

75, Marikina City, entitled "Editha S. Valdez and Joseph J. Alba, Jr. v. Salve

Bustamante and her husband" for ejectment, respondent represented Valdez

against Bustamante - one of the tenants in the property subject of the

controversy. Defendants appealed to the RTC, Branch 272, Marikina City

docketed as SCA Case No. 99-341-MK. In his decision dated May 2,

2000,8Presiding Judge Reuben P. dela Cruz9warned respondent to refrain

from repeating the act of being counsel of record of both parties in Civil Case

No. 95-105-MK.

But in Civil Case No. 2000-657-MK, filed in the RTC, Branch 273, Marikina

City, entitled "Editha S. Valdez v. Joseph J. Alba, Jr. and Register of Deeds of

Marikina City," respondent, as counsel for Valdez, filed a Complaint for

Rescission of Contract with Damages and Cancellation of Transfer Certificate of

Title No. 275500 against Alba, respondent's former client in Civil Case No. 98-

6804 and SCA Case No. 99-341-MK.

Records further reveal that at the hearing of November 14, 2003, respondent

admitted that in Civil Case No. 95-105-MK, he was the lawyer for Lagmay (one

of the tenants) but not for Bustamante and Bayuga10albeit he filed the

Explanation and Compliance for and in behalf of the tenants.11Respondent

also admitted that he represented Valdez in Civil Case No. 98-6804 and SCA

Case No. 99-341-MK against Bustamante and her husband but denied being

the counsel for Alba although the case is entitled "Valdezand Albav.

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Bustamante and her husband," because Valdez told him to include Alba as the

two were the owners of the property12and it was only Valdez who signed the

complaint for ejectment.13But, while claiming that respondent did not

represent Alba, respondent, however, avers that he already severed his

representation for Alba when the latter charged respondent with

estafa.14Thus, the filing of Civil Case No. 2000-657-MK against Alba.

Rule 15.03, Canon 15 of the Code of Professional Responsibility provides that a

lawyer shall not represent conflicting interests except by written consent of all

concerned given after a full disclosure of the facts.

A lawyer may not, without being guilty of professional misconduct, act as

counsel for a person whose interest conflicts with that of his present or former

client.15He may not also undertake to discharge conflicting duties any more

than he may represent antagonistic interests. This stern rule is founded on theprinciples of public policy and good taste.16It springs from the relation of

attorney and client which is one of trust and confidence. Lawyers are expected

not only to keep inviolate the client's confidence, but also to avoid the

appearance of treachery and double-dealing for only then can litigants be

encouraged to entrust their secrets to their lawyers, which is of paramount

importance in the administration of justice.17

One of the tests of inconsistency of interests is whether the acceptance of a new

relation would prevent the full discharge of the lawyer's duty of undivided

fidelity and loyalty to the client or invite suspicion of unfaithfulness or double-dealing in the performance of that duty.18

The stern rule against representation of conflicting interests is founded on

principles of public policy and good taste. It springs from the attorney's duty to

represent his client with undivided fidelity and to maintain inviolate the client's

confidence as well as from the injunction forbidding the examination of an

attorney as to any of the privileged communications of his client.19

An attorney owes loyalty to his client not only in the case in which he has

represented him but also after the relation of attorney and client has

terminated.20The bare attorney-client relationship with a client precludes an

attorney from accepting professional employment from the client's adversary

either in the same case21or in a different but related action.22A lawyer is

forbidden from representing a subsequent client against a former client when

the subject matter of the present controversy is related, directly or indirectly, to

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the subject matter of the previous litigation in which he appeared for the

former client.23

We held in Nombrado v. Hernandez24that the termination of the relation of

attorney and client provides no justification for a lawyer to represent an interest

adverse to or in conflict with that of the former client. The reason for the rule is

that the client's confidence once reposed cannot be divested by the expiration

of the professional employment.25Consequently, a lawyer should not, even

after the severance of the relation with his client, do anything which will

injuriously affect his former client in any matter in which he previously

represented him nor should he disclose or use any of the client's confidences

acquired in the previous relation.26

In this case, respondent's averment that his relationship with Alba has long

been severed by the act of the latter of not turning over the proceeds collectedin Civil Case No. 98-6804, in connivance with the complainant, is unavailing.

Termination of the attorney-client relationship precludes an attorney from

representing a new client whose interest is adverse to his former client. Alba

may not be his original client but the fact that he filed a case entitled

"Valdezand Albav. Bustamante and her husband," is a clear indication that

respondent is protecting the interests of both Valdez and Alba in the said case.

Respondent cannot just claim that the lawyer-client relationship between him

and Alba has long been severed without observing Section 26, Rule 138 of the

Rules of Court wherein the written consent of his client is required.

In Gonzales v. Cabucana, Jr.,27citing the case of Quiambao v. Bamba,28we

held that:

The proscription against representation of conflicting interests applies to a

situation where the opposing parties are present clients in the same action or

in an unrelated action. It is of no moment that the lawyer would not be called

upon to contend for one client that which the lawyer has to oppose for the other

client, or that there would be no occasion to use the confidential information

acquired from one to the disadvantage of the other as the two actions are

wholly unrelated. It is enough that the opposing parties in one case, one of

whom would lose the suit, are present clients and the nature or conditions of

the lawyer's respective retainers with each of them would affect the

performance of the duty of undivided fidelity to both clients.29

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Respondent is bound to comply with Canon 21 of the Code of Professional

Responsibility which states that "a lawyer shall preserve the confidences and

secrets of his client even after the attorney-client relation is terminated."

The reason for the prohibition is found in the relation of attorney and client,

which is one of trust and confidence of the highest degree. A lawyer becomes

familiar with all the facts connected with his client's case. He learns from his

client the weak points of the action as well as the strong ones. Such knowledge

must be considered sacred and guarded with care.30

From the foregoing, it is evident that respondent's representation of Valdez and

Alba against Bustamante and her husband, in one case, and Valdez against

Alba, in another case, is a clear case of conflict of interests which merits a

corresponding sanction from this Court. Respondent may have withdrawn his

representation in Civil Case No. 95-105-MK upon being warned by thecourt,31but the same will not exculpate him from the charge of representing

conflicting interests in his representation in Civil Case No. 2000-657-MK.

Respondent is reminded to be more cautious in accepting professional

employments, to refrain from all appearances and acts of impropriety including

circumstances indicating conflict of interests, and to behave at all times with

circumspection and dedication befitting a member of the Bar, especially

observing candor, fairness and loyalty in all transactions with his clients.32

On knowingly misleading the court by submitting false documentaryevidence.

Complainant alleges that in Civil Case No. 00-7137 filed before MTC, Branch

75 for ejectment, respondent submitted TCT No. 273020 as evidence of Valdez's

ownership despite the fact that a new TCT No. 275500 was already issued in

the name of Alba on February 2, 1995.

Records reveal that respondent filed Civil Case No. 00-7137 on November 27,

2000 and presented TCT No. 273020 as evidence of Valdez's ownership of the

subject property.33During the hearing before Commissioner Raval, respondent

avers that when the Answer was filed in the said case, that was the time that

he came to know that the title was already in the name of Alba; so that when

the court dismissed the complaint, he did not do anything

anymore.34Respondent further avers that Valdez did not tell him the truth and

things were revealed to him only when the case for rescission was filed in 2002.

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Upon examination of the record, it was noted that Civil Case No. 2000-657-MK

for rescission of contract and cancellation of TCT No. 275500 was also filed on

November 27, 2000,35before RTC, Branch 273, Marikina City, thus belying the

averment of respondent that he came to know of Alba's title only in 2002 when

the case for rescission was filed. It was revealed during the hearing before

Commissioner Raval that Civil Case Nos. 00-7137 and 2000-657-MK were filed

on the same date, although in different courts and at different times.

Hence, respondent cannot feign ignorance of the fact that the title he submitted

was already cancelled in lieu of a new title issued in the name of Alba in 1995

yet, as proof of the latter's ownership.

Respondent failed to comply with Canon 10 of the Code of Professional

Responsibility which provides that a lawyer shall not do any falsehood, nor

consent to the doing of any in court; nor shall he mislead, or allow the Court tobe mislead by any artifice. It matters not that the trial court was not misled by

respondent's submission of TCT No. 273020 in the name of Valdez, as shown

by its decision dated January 8, 200236dismissing the complaint for

ejectment. What is decisive in this case is respondent's intent in trying to

mislead the court by presenting TCT No. 273020 despite the fact that said title

was already cancelled and a new one, TCT No. 275500, was already issued in

the name of Alba.

InYoung v. Batuegas,37we held that a lawyer must be a disciple of truth. He

swore upon his admission to the Bar that he will "do no falsehood nor consentto the doing of any in court" and he shall "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."38He should bear in mind that as an officer

of the court his high vocation is to correctly inform the court upon the law and

the facts of the case and to aid it in doing justice and arriving at correct

conclusion.39The courts, on the other hand, are entitled to expect only

complete honesty from lawyers appearing and pleading before them. While a

lawyer has the solemn duty to defend his client's rights and is expected to

display the utmost zeal in defense of his client's cause, his conduct must neverbe at the expense of truth.

A lawyer is the servant of the law and belongs to a profession to which society

has entrusted the administration of law and the dispensation of justice.40As

such, he should make himself more an exemplar for others to emulate.41

>On initiating numerous cases in exchange for nonpayment of rental fees.

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Complainant alleges that respondent filed the following cases: (a) Civil Case No.

2000-657-MK at the RTC, Branch 272; (b) Civil Case No. 00-7137 at the MTC,

Branch 75; and (c) I.S. Nos. 00-4439 and 01-036162 both entitled "Valencia v.

Samala" for estafa and grave coercion, respectively, before the Marikina City

Prosecutor. Complainant claims that the two criminal cases were filed in

retaliation for the cases she filed against Lagmay docketed as I.S. No. 00-4306

for estafa and I.S. No. 00-4318 against Alvin Valencia (son of respondent) for

trespass to dwelling.

As culled from the records, Valdez entered into a retainer agreement with

respondent. As payment for his services, he was allowed to occupy the property

for free and utilize the same as his office pursuant to their retainer

agreement.42

Respondent filed I.S. Nos. 00-443943

and 01-03616244

both entitled "Valenciav. Samala" for estafa and grave coercion, respectively, to protect his client's

rights against complainant who filed I.S. No. 00-430645for estafa against

Lagmay, and I.S. No. 00-431846against Alvin Valencia47for trespass to

dwelling.

We find the charge to be without sufficient basis. The act of respondent of filing

the aforecited cases to protect the interest of his client, on one hand, and his

own interest, on the other, cannot be made the basis of an administrative

charge unless it can be clearly shown that the same was being done to abuse

judicial processes to commit injustice.

The filing of an administrative case against respondent for protecting the

interest of his client and his own right would be putting a burden on a

practicing lawyer who is obligated to defend and prosecute the right of his

client.

On having a reputation for being immoral by siring illegitimate children.

We find respondent liable for being immoral by siring illegitimate children.

During the hearing, respondent admitted that he sired three children by

Teresita Lagmay who are all over 20 years of age,48while his first wife was still

alive. He also admitted that he has eight children by his first wife, the youngest

of whom is over 20 years of age, and after his wife died in 1997, he married

Lagmay in 1998.49Respondent further admitted that Lagmay was staying in

one of the apartments being claimed by complainant. However, he does not

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consider his affair with Lagmay as a relationship50and does not consider the

latter as his second family.51He reasoned that he was not staying with Lagmay

because he has two houses, one in Muntinlupa and another in Marikina.52

In this case, the admissions made by respondent are more than enough to hold

him liable on the charge of immorality. During the hearing, respondent did not

show any remorse. He even justified his transgression by saying that he does

not have any relationship with Lagmay and despite the fact that he sired three

children by the latter, he does not consider them as his second family. It is

noted that during the hearing, respondent boasts in telling the commissioner

that he has two houses - in Muntinlupa, where his first wife lived, and in

Marikina, where Lagmay lives.53It is of no moment that respondent eventually

married Lagmay after the death of his first wife. The fact still remains that

respondent did not live up to the exacting standard of morality and decorum

required of the legal profession.

Under Canon 1, Rule 1.01 of the Code of Professional Responsibility, a lawyer

shall not engage in unlawful, dishonest, immoral or deceitful conduct. It may

be difficult to specify the degree of moral delinquency that may qualify an act

as immoral, yet, for purposes of disciplining a lawyer, immoral conduct has

been defined as that "conduct which is willful, flagrant, or shameless, and

which shows a moral indifference to the opinion of respectable members of the

community.54Thus, in several cases, the Court did not hesitate to discipline a

lawyer for keeping a mistress in defiance of the mores and sense of morality of

the community.55That respondent subsequently married Lagmay in 1998 after

the death of his wife and that this is his first infraction as regards immorality

serve to mitigate his liability.

ACCORDINGLY, the Court finds respondent Atty. Luciano D.

ValenciaGUILTYof misconduct and violation of Canons 21, 10 and 1 of the

Code of Professional Responsibility. He isSUSPENDEDfrom the practice of law

for three (3) years, effective immediately upon receipt of herein Resolution.

Let copies of this Resolution be furnished all courts of the land, the IntegratedBar of the Philippines as well as the Office of the Bar Confidant for their

information and guidance, and let it be entered in respondent's personal

records.

SO ORDERED.

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Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. L-961 September 21, 1949

BLANDINA GAMBOA HILADO,petitioner,

vs.

JOSE GUTIERREZ DAVID, VICENTE J. FRANCISCO, JACOB ASSAD and

SELIM JACOB ASSAD,respondents.

Delgado, Dizon and Flores for petitioner.

Vicente J. Francisco for respondents.

TUASON,J.:

It appears that on April 23, 1945, Blandina Gamboa Hilado brought an action

against Selim Jacob Assad to annul the sale of several houses and lot executed

during the Japanese occupation by Mrs. Hilado's now deceased husband.

On May 14, Attorneys Ohnick, Velilla and Balonkita filed an answer on behalf

of the defendant; and on June 15, Attorneys Delgado, Dizon, Flores and

Rodrigo registered their appearance as counsel for the plaintiff. On October 5,these attorneys filed an amended complaint by including Jacob Assad as party

defendant.

On January 28, 1946, Attorney Francisco entered his appearance as attorney

of record for the defendant in substitution for Attorney Ohnick, Velilla and

Balonkita who had withdrawn from the case.

On May 29, Attorney Dizon, in the name of his firm, wrote Attorney Francisco

urging him to discontinue representing the defendants on the ground that their

client had consulted with him about her case, on which occasion, it was

alleged, "she turned over the papers" to Attorney Francisco, and the latter sent

her a written opinion. Not receiving any answer to this suggestion, Attorney

Delgado, Dizon, Flores and Rodrigo on June 3, 1946, filed a formal motion with

the court, wherein the case was and is pending, to disqualify Attorney

Francisco.

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Attorney Francisco's letter to plaintiff, mentioned above and identified as

Exhibit A, is in full as follows:

VICENTE J. FRANCISCO

Attorney-at-Law

1462 Estrada, Manila

July 13, 1945.

Mrs. Blandina Gamboa Hilado

Manila, Philippines

My dear Mrs. Hilado:

From the papers you submitted to me in connection with civil case No.70075 of the Court of First Instance of Manila, entitled "Blandina

Gamboa Hilado vs. S. J. Assad," I find that the basic facts which brought

about the controversy between you and the defendant therein are as

follows:

(a) That you were the equitable owner of the property described in the

complaint, as the same was purchased and/or built with funds

exclusively belonging to you, that is to say, the houses and lot pertained

to your paraphernal estate;

(b) That on May 3, 1943, the legal title to the property was with your

husband, Mr. Serafin P. Hilado; and

(c) That the property was sold by Mr. Hilado without your knowledge on

the aforesaid date of May 3, 1943.

Upon the foregoing facts, I am of the opinion that your action against Mr.

Assad will not ordinarily prosper. Mr. Assad had the right to presume

that your husband had the legal right to dispose of the property as the

transfer certificate of title was in his name. Moreover, the price of

P110,000 in Japanese military notes, as of May 3, 1943, does not quite

strike me as so grossly inadequate as to warrant the annulment of the

sale. I believe, lastly, that the transaction cannot be avoided merely

because it was made during the Japanese occupation, nor on the simple

allegation that the real purchaser was not a citizen of the Philippines. On

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his last point, furthermore, I expect that you will have great difficulty in

proving that the real purchaser was other than Mr. Assad, considering

that death has already sealed your husband's lips and he cannot now

testify as to the circumstances of the sale.

For the foregoing reasons, I regret to advise you that I cannot appear in

the proceedings in your behalf. The records of the case you loaned to me

are herewith returned.

Yours very truly,

(Sgd.) VICENTE J. FRANCISCO

VJF/Rag.

In his answer to plaintiff's attorneys' complaint, Attorney Francisco alleged that

about May, 1945, a real estate broker came to his office in connection with the

legal separation of a woman who had been deserted by her husband, and also

told him (Francisco) that there was a pending suit brought by Mrs. Hilado

against a certain Syrian to annul the sale of a real estate which the deceased

Serafin Hilado had made to the Syrian during the Japanese occupation; that

this woman asked him if he was willing to accept the case if the Syrian should

give it to him; that he told the woman that the sales of real property during the

Japanese regime were valid even though it was paid for in Japanese military

notes; that this being his opinion, he told his visitor he would have no objection

to defending the Syrian;

That one month afterwards, Mrs. Hilado came to see him about a suit she had

instituted against a certain Syrian to annul the conveyance of a real estate

which her husband had made; that according to her the case was in the hands

of Attorneys Delgado and Dizon, but she wanted to take it away from them;

that as he had known the plaintiff's deceased husband he did not hesitate to

tell her frankly that hers was a lost case for the same reason he had told the

broker; that Mrs. Hilado retorted that the basis of her action was not that themoney paid her husband was Japanese military notes, but that the premises

were her private and exclusive property; that she requested him to read the

complaint to be convinced that this was the theory of her suit; that he then

asked Mrs. Hilado if there was a Torrens title to the property and she answered

yes, in the name of her husband; that he told Mrs. Hilado that if the property

was registered in her husband's favor, her case would not prosper either;

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That some days afterward, upon arrival at his law office on Estrada street, he

was informed by Attorney Federico Agrava, his assistant, that Mrs. Hilado had

dropped in looking for him and that when he, Agrava, learned that Mrs.

Hilado's visit concerned legal matters he attended to her and requested her to

leave the "expediente" which she was carrying, and she did; that he told

Attorney Agrava that the firm should not handle Mrs. Hilado's case and he

should return the papers, calling Agrava's attention to what he (Francisco)

already had said to Mrs. Hilado;

That several days later, the stenographer in his law office, Teofilo Ragodon,

showed him a letter which had been dictated in English by Mr. Agrava,

returning the "expedients" to Mrs. Hilado; that Ragodon told him (Attorney

Francisco) upon Attorney Agrava's request that Agrava thought it more proper

to explain to Mrs. Hilado the reasons why her case was rejected; that he

forthwith signed the letter without reading it and without keeping it for aminute in his possession; that he never saw Mrs. Hilado since their last

meeting until she talked to him at the Manila Hotel about a proposed

extrajudicial settlement of the case;

That in January, 1946, Assad was in his office to request him to handle his

case stating that his American lawyer had gone to the States and left the case

in the hands of other attorneys; that he accepted the retainer and on January

28, 1946, entered his appearance.

Attorney Francisco filed an affidavit of stenographer Ragodon in corroborationof his answer.

The judge trying the case, Honorable Jose Gutierrez David, later promoted to

the Court of Appeals, dismissed the complaint. His Honor believed that no

information other than that already alleged in plaintiff's complaint in the main

cause was conveyed to Attorney Francisco, and concluded that the intercourse

between the plaintiff and the respondent did not attain the point of creating the

relation of attorney and client.

Stripped of disputed details and collateral matters, this much is undoubted:

That Attorney Francisco's law firm mailed to the plaintiff a written opinion over

his signature on the merits of her case; that this opinion was reached on the

basis of papers she had submitted at his office; that Mrs. Hilado's purpose in

submitting those papers was to secure Attorney Francisco's professional

services. Granting the facts to be no more than these, we agree with

petitioner's counsel that the relation of attorney and client between Attorney

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Francisco and Mrs. Hilado ensued. The following rules accord with the ethics of

the legal profession and meet with our approval:

In order to constitute the relation (of attorney and client) a professional

one and not merely one of principal and agent, the attorneys must be

employed either to give advice upon a legal point, to prosecute or defend

an action in court of justice, or to prepare and draft, in legal form such

papers as deeds, bills, contracts and the like. (Atkinson vs. Howlett, 11

Ky. Law Rep. (abstract), 364; cited in Vol. 88, A. L. R., p. 6.)

To constitute professional employment it is not essential that the client

should have employed the attorney professionally on any previous

occasion. . . . It is not necessary that any retainer should have been paid,

promised, or charged for; neither is it material that the attorney

consulted did not afterward undertake the case about which theconsultation was had. If a person, in respect to his business affairs or

troubles of any kind, consults with his attorney in his professional

capacity with the view to obtaining professional advice or assistance, and

the attorney voluntarily permits or acquiesces in such consultation, then

the professional employment must be regarded as established. . . . (5

Jones Commentaries on Evidence, pp. 4118-4119.)

An attorney is employed-that is, he is engaged in his professional

capacity as a lawyer or counselor-when he is listening to his client's

preliminary statement of his case, or when he is giving advice thereon,just as truly as when he is drawing his client's pleadings, or advocating

his client's cause in open court. (Denver Tramway Co. vs. Owens, 20

Colo., 107; 36 P., 848.)

Formality is not an essential element of the employment of an attorney.

The contract may be express or implied and it is sufficient that the

advice and assistance of the attorney is sought and received, in matters

pertinent to his profession. An acceptance of the relation is implied on

the part of the attorney from his acting in behalf of his client in

pursuance of a request by the latter. (7 C. J. S., 848-849; see Hirach

Bros. and Co. vs. R. E. Kennington Co., 88 A. L. R., 1.)

Section 26 (e), Rule 123 of the Rules of Court provides that "an attorney

cannot, without the consent of his client, be examined as to any

communication made by the client to him, or his advice given thereon in the

course of professional employment;" and section 19 (e) of Rule 127 imposes

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upon an attorney the duty "to maintain inviolate the confidence, and at every

peril to himself, to preserve the secrets of his client." There is no law or

provision in the Rules of Court prohibiting attorneys in express terms from

acting on behalf of both parties to a controversy whose interests are opposed to

each other, but such prohibition is necessarily implied in the injunctions above

quoted. (In reDe la Rosa, 27 Phil., 258.) In fact the prohibition derives validity

from sources higher than written laws and rules. As has been aptly said inIn

reMerron, 22 N. M., 252, L.R.A., 1917B, 378, "information so received is

sacred to the employment to which it pertains," and "to permit it to be used in

the interest of another, or, worse still, in the interest of the adverse party, is to

strike at the element of confidence which lies at the basis of, and affords the

essential security in, the relation of attorney and client."

That only copies of pleadings already filed in court were furnished to Attorney

Agrava and that, this being so, no secret communication was transmitted tohim by the plaintiff, would not vary the situation even if we should discard

Mrs. Hilado's statement that other papers, personal and private in character,

were turned in by her. Precedents are at hand to support the doctrine that the

mere relation of attorney and client ought to preclude the attorney from

accepting the opposite party's retainer in the same litigation regardless of what

information was received by him from his first client.

The principle which forbids an attorney who has been engaged to

represent a client from thereafter appearing on behalf of the client's

opponent applies equally even though during the continuance of the

employment nothing of a confidential nature was revealed to the attorney

by the client. (Christian vs. Waialua Agricultural Co., 30 Hawaii, 553,

Footnote 7, C. J. S., 828.)

Where it appeared that an attorney, representing one party in litigation,

had formerly represented the adverse party with respect to the same

matter involved in the litigation, the court need not inquire as to how

much knowledge the attorney acquired from his former during that

relationship, before refusing to permit the attorney to represent theadverse party. (Brown vs. Miller, 52 App. D. C. 330; 286, F. 994.)

In order that a court may prevent an attorney from appearing against a

former client, it is unnecessary that the ascertain in detail the extent to

which the former client's affairs might have a bearing on the matters

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involved in the subsequent litigation on the attorney's knowledge thereof.

(Boyd vs. Second Judicial Dist. Court, 274 P., 7; 51 Nev., 264.)

This rule has been so strictly that it has been held an attorney, on

terminating his employment, cannot thereafter act as counsel against his

client in the same general matter, even though, while acting for his

former client, he acquired no knowledge which could operate to his

client's disadvantage in the subsequent adverse employment. (Pierce vs.

Palmer [1910], 31 R. I., 432; 77 Atl., 201, Ann. Cas., 1912S, 181.)

Communications between attorney and client are, in a great number of

litigations, a complicated affair, consisting of entangled relevant and irrelevant,

secret and well known facts. In the complexity of what is said in the course of

the dealings between an attorney and a client, inquiry of the nature suggested

would lead to the revelation, in advance of the trial, of other matters that mightonly further prejudice the complainant's cause. And the theory would be

productive of other un salutary results. To make the passing of confidential

communication a condition precedent; i.e., to make the employment

conditioned on the scope and character of the knowledge acquired by an

attorney in determining his right to change sides, would not enhance the

freedom of litigants, which is to be sedulously fostered, to consult with lawyers

upon what they believe are their rights in litigation. The condition would of

necessity call for an investigation of what information the attorney has received

and in what way it is or it is not in conflict with his new position. Litigants

would in consequence be wary in going to an attorney, lest by an unfortunate

turn of the proceedings, if an investigation be held, the court should accept the

attorney's inaccurate version of the facts that came to him. "Now the

abstinence from seeking legal advice in a good cause is by hypothesis an evil

which is fatal to the administration of justice." (John H. Wigmore's Evidence,

1923, Section 2285, 2290, 2291.)

Hence the necessity of setting down the existence of the bare relationship of

attorney and client as the yardstick for testing incompatibility of interests. This

stern rule is designed not alone to prevent the dishonest practitioner fromfraudulent conduct, but as well to protect the honest lawyer from unfounded

suspicion of unprofessional practice. (Strong vs. Int. Bldg., etc.; Ass'n, 183 Ill.,

97; 47 L.R.A., 792.) It is founded on principles of public policy, on good taste.

As has been said in another case, the question is not necessarily one of the

rights of the parties, but as to whether the attorney has adhered to proper

professional standard. With these thoughts in mind, it behooves attorneys, like

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Caesar's wife, not only to keep inviolate the client's confidence, but also to

avoid the appearance of treachery and double-dealing. Only thus can litigants

be encouraged to entrust their secrets to their attorneys which is of paramount

importance in the administration of justice.

So without impugning respondent's good faith, we nevertheless can not

sanction his taking up the cause of the adversary of the party who had sought

and obtained legal advice from his firm; this, not necessarily to prevent any

injustice to the plaintiff but to keep above reproach the honor and integrity of

the courts and of the bar. Without condemning the respondents conduct as

dishonest, corrupt, or fraudulent, we do believe that upon the admitted facts it

is highly in expedient. It had the tendency to bring the profession, of which he

is a distinguished member, "into public disrepute and suspicion and

undermine the integrity of justice."

There is in legal practice what called "retaining fee," the purpose of which

stems from the realization that the attorney is disabled from acting as counsel

for the other side after he has given professional advice to the opposite party,

even if he should decline to perform the contemplated services on behalf of the

latter. It is to prevent undue hardship on the attorney resulting from the rigid

observance of the rule that a separate and independent fee for consultation

and advice was conceived and authorized. "A retaining fee is a preliminary fee

given to an attorney or counsel to insure and secure his future services, and

induce him to act for the client. It is intended to remunerate counsel for being

deprived, by being retained by one party, of the opportunity of rendering

services to the other and of receiving pay from him, and the payment of such

fee, in the absence of an express understanding to the contrary, is neither

made nor received in payment of the services contemplated; its payment has no

relation to the obligation of the client to pay his attorney for the services which

he has retained him to perform." (7 C.J.S., 1019.)

The defense that Attorney Agrava wrote the letter Exhibit A and that Attorney

Francisco did not take the trouble of reading it, would not take the case out of

the interdiction. If this letter was written under the circumstances explained byAttorney Francisco and he was unaware of its contents, the fact remains that

his firm did give Mrs. Hilado a formal professional advice from which, as

heretofore demonstrated, emerged the relation of attorney and client. This letter

binds and estop him in the same manner and to the same degree as if he

personally had written it. An information obtained from a client by a member

or assistant of a law firm is information imparted to the firm. (6 C. J., 628; 7 C.

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J. S., 986.) This is not a mere fiction or an arbitrary rule; for such member or

assistant, as in our case, not only acts in the name and interest of the firm, but

his information, by the nature of his connection with the firm is available to his

associates or employers. The rule is all the more to be adhered to where, as in

the present instance, the opinion was actually signed by the head of the firm

and carries his initials intended to convey the impression that it was dictated

by him personally. No progress could be hoped for in "the public policy that the

client in consulting his legal adviser ought to be free from apprehension of

disclosure of his confidence," if the prohibition were not extended to the

attorney's partners, employers or assistants.

The fact that petitioner did not object until after four months had passed from

the date Attorney Francisco first appeared for the defendants does not operate

as a waiver of her right to ask for his disqualification. In one case, objection to

the appearance of an attorney was allowed even on appeal as a ground forreversal of the judgment. In that case, in which throughout the conduct of the

cause in the court below the attorney had been suffered so to act without

objection, the court said: "We are all of the one mind, that the right of the

appellee to make his objection has not lapsed by reason of failure to make it

sooner; that professional confidence once reposed can never be divested by

expiration of professional employment." (Nickels vs. Griffin, 1 Wash. Terr., 374,

321 A. L. R. 1316.)

The complaint that petitioner's remedy is by appeal and not by certiorari

deserves scant attention. The courts have summary jurisdiction to protect the

rights of the parties and the public from any conduct of attorneys prejudicial to

the administration of the justice. The summary jurisdiction of the courts over

attorneys is not confined to requiring them to pay over money collected by them

but embraces authority to compel them to do whatever specific acts may be

incumbent upon them in their capacity of attorneys to perform. The courts

from the general principles of equity and policy, will always look into the

dealings between attorneys and clients and guard the latter from any undue

consequences resulting from a situation in which they may stand unequal. The

courts acts on the same principles whether the undertaking is to appear, or, forthat matter, not to appear, to answer declaration, etc. (6 C.J., 718 C.J.S.,

1005.) This summary remedy against attorneys flows from the facts that they

are officers of the court where they practice, forming a part of the machinery of

the law for the administration of justice and as such subject to the disciplinary

authority of the courts and to its orders and directions with respect to their

relations to the court as well as to their clients. (Charest vs. Bishop, 137 Minn.,

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102; 162, N.W., 1062, Note 26, 7 C. J. S., 1007.) Attorney stand on the same

footing as sheriffs and other court officers in respect of matters just mentioned.

We conclude therefore that the motion for disqualification should be allowed. It

is so ordered, without costs.

Republic of the Philippines

SUPREME COURT

SECOND DIVISION

Adm. Case No. 4680 August 29, 2000

AQUILINO Q. PIMENTEL, JR.,complainant,

vs.ATTYS. ANTONIO M. LLORENTE and LIGAYA P. SALAYON, respondents.

MENDOZA,J.:

This is a complaint for disbarment against respondents Antonio M. Llorente

and Ligaya P. Salayon for gross misconduct, serious breach of trust, and

violation of the lawyer's oath in connection with the discharge of their duties as

members of the Pasig City Board of Canvassers in the May 8, 1995 elections.

Salayon, then election officer of the Commission on Elections (COMELEC), was

designated chairman of said Board, while Llorente, who was then CityProsecutor of Pasig City, served as itsex oficiovice-chairman as provided by

law.1Complainant, now a senator, was also a candidate for the Senate in that

election.

Complainant alleges that, in violation of R.A. No. 6646, 27(b),2respondents

tampered with the votes received by him, with the result that, as shown in the

Statements of Votes (SoVs) and Certificate of Canvass (CoC) pertaining to 1,263

precincts of Pasig City, (1) senatorial candidates Juan Ponce Enrile, Anna

Dominique Coseteng, Gregorio Honasan, Marcelo Fernan, Ramon Mitra, and

Rodolfo Biazon were credited with votes which were above the number of votes

they actually received while, on the other hand, petitioner's votes were reduced;

(2) in 101 precincts, Enrile's votes were in excess of the total number of voters

who actually voted therein; and (3) the votes from 22 precincts were twice

recorded in 18 SoVs. Complainant maintains that, by signing the SoVs and

CoC despite respondents' knowledge that some of the entries therein were

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false, the latter committed a serious breach of public trust and of their lawyers'

oath.

Respondents denied the allegations against them. They alleged that the

preparation of the SoVs was made by the 12 canvassing committees which the

Board had constituted to assist in the canvassing. They claimed that the errors

pointed out by complainant could be attributed to honest mistake, oversight,

and/or fatigue.

In his Consolidated Reply, complainant counters that respondents should be

held responsible for the illegal padding of the votes considering the nature and

extent of the irregularities and the fact that the canvassing of the election

returns was done under their control and supervision.

On December 4, 1998, the Integrated Bar of the Philippines, to which thismatter had been referred pursuant to Rule 139-B, 13, in relation to 20 of the

Rules of Court, recommended the dismissal of the complaint for lack of

merit.3Petitioner filed a motion for reconsideration on March 11, 1999, but his

motion was denied in a resolution of the IBP Board of Governors dated April

22, 1999. On June 4, 1999, he filed this petition pursuant to Rule 139-B,

12(c).

It appears that complainant likewise filed criminal charges against respondents

before the COMELEC (E.O. Case No. 96-1132) for violation of R.A. No. 6646,

27(b). In its resolution dated January 8, 1998, the COMELEC dismissedcomplainant's charges for insufficiency of evidence. However, on a petition for

certiorari filed by complainant,4this Court set aside the resolution and directed

the COMELEC to file appropriate criminal charges against respondents.

Reconsideration was denied on August 15, 2000.

Considering the foregoing facts, we hold that respondents are guilty of

misconduct.

First. Respondent Llorente seeks the dismissal of the present petition on the

ground that it was filed late. He contends that a motion for reconsideration is aprohibited pleading under Rule 139-B, 12(c)5and, therefore, the filing of such

motion before the IBP Board of Governors did not toll the running of the period

of appeal. Respondent further contends that, assuming such motion can be

filed, petitioner nevertheless failed to indicate the date of his receipt of the April

22, 1999 resolution of the IBP denying his motion for reconsideration so that it

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cannot be ascertained whether his petition was filed within the 15-day period

under Rule 139-B, 12(c).

The contention has no merit. The question of whether a motion for

reconsideration is a prohibited pleading or not under Rule 139-B, 12(c) has

been settled inHalimao v. Villanueva,6in which this Court held:

Although Rule 139-B, 12(C) makes no mention of a motion for

reconsideration, nothing in its text or in its history suggests that such

motion is prohibited. It may therefore be filed within 15 days from notice

to a party. Indeed, the filing of such motion should be encouraged before

resort is made to this Court as a matter of exhaustion of administrative

remedies, to afford the agency rendering the judgment an opportunity to

correct any error it may have committed through a misapprehension of

facts or misappreciation of the evidenced.7

On the question whether petitioner's present petition was filed within the 15-

day period provided under Rule 139-B, 12(c), although the records show that

it was filed on June 4, 1999, respondent has not shown when petitioner

received a copy of the resolution of the IBP Board of Governors denying his

motion for reconsideration. It would appear, however, that the petition was filed

on time because a copy of the resolution personally served on the Office of the

Bar Confidant of this Court was received by it on May 18, 1999. Since copies of

IBP resolutions are sent to the parties by mail, it is possible that the copy sent

to petitioner was received by him later than May 18, 1999. Hence, it may beassumed that his present petition was filed within 15 days from his receipt of

the IBP resolution. In any event, the burden was on respondent, as the moving

party, to show that the petition in this case was filed beyond the 15-day period

for filing it.

Even assuming that petitioner received the IBP resolution in question on May

18, 1999, i.e., on the same date a copy of the same was received by the Office

of the Bar Confidant, the delay would only be two days.8The delay may be

overlooked, considering the merit of this case. Disbarment proceedings are

undertaken solely for public welfare. The sole question for determination is

whether a member of the bar is fit to be allowed the privileges as such or not.

The complainant or the person who called the attention of the Court to the

attorney's alleged misconduct is in no sense a party, and generally has no

interest in the outcome except as all good citizens may have in the proper

administration of justice.9For this reason, laws dealing with double

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jeopardy10or prescription11or with procedure like verification of pleadings12and

prejudicial questions13have no application to disbarment proceedings.

Even in ordinary civil actions, the period for perfecting appeals is relaxed in the

interest of justice and equity where the appealed case is clearly meritorious.

Thus, we have given due course to appeals even though filed six,14four,15and

three16days late. In this case, the petition is clearly meritorious.

Second. The IBP recommends the dismissal of petitioner's complaint on the

basis of the following: (1) respondents had no involvement in the tabulation of

the election returns, because when the Statements of Votes (SoVs) were given

to them, such had already been accomplished and only needed their respective

signatures; (2) the canvassing was done in the presence of watchers,

representatives of the political parties, the media, and the general public so

that respondents would not have risked the commission of any irregularity;and (3) the acts dealt with in R.A. No. 6646, 27(b) aremala in seand notmala

prohibita, and petitioner failed to establish criminal intent on the part of

respondents.17

The recommendation is unacceptable. In disciplinary proceedings against

members of the bar, only clear preponderance of evidence is required to

establish liability.18As long as the evidence presented by complainant or that

taken judicial notice of by the Court19 is more convincing and worthy of belief

than that which is offered in opposition thereto,20the imposition of disciplinary

sanction is justified..

In this case, respondents do not dispute the fact that massive irregularities

attended the canvassing of the Pasig City election returns. The only

explanation they could offer for such irregularities is that the same could be

due to honest mistake, human error, and/or fatigue on the part of the

members of the canvassing committees who prepared the SoVs.

This is the same allegation made inPimentel v. Commission on Elections.21In

rejecting this allegation and ordering respondents prosecuted for violation of

R.A. No. 6646, 27(b), this Court said:

There is a limit, we believe, to what can be construed as an honest

mistake or oversight due to fatigue, in the performance of official duty.

The sheer magnitude of she error, not only in the total number of votes

garnered by the aforementioned candidates as reflected in the CoC and

the SoVs, which did not tally with that reflected in the election returns,

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