consti ethics

8/6/2019 Consti Ethics

1/13

Republic of the PhilippinescralawSUPREME COURTManila

SECOND DIVISION

NEMROD GOTIS,G.R. No. 157201Petitioner,cralawPresent:cralawcralawQUISUMBING, J., Chairperson,cralaw- versus -cralawCARPIO,cralawCARPIO MORALES,cralawTINGA, andcralawVELASCO, JR., JJ.cralawPEOPLE OF THE PHILIPPINES,Promulgated:

Respondent.cralawcralawSeptember 14, 2007x-----------------------------------------------------------------------------------------xD E C I S I O NVELASCO, JR., J.:In order to determine the sufficiency of a provocation for the purpose of mitigating a crime, one must look into the act constituting the provocation, the social standing of the person provoked, and the place and time when the provocation is made.[1]In the present case, a finding that the act of the victim did not cons

titute unlawful aggression does not automatically negate the attendant circumstance of sufficient provocation.The CaseThis Petition for Review on Certiorari[2] under Rule 45 seeks the annulment of the August 30, 2002 Decision[3] and February 12, 2003 Resolution[4] of the Courtof Appeals (CA) in CA-G.R. CR No. 22536 entitled People of the Philippines v. Nemrod Gotis. The assailed Decision affirmed the October 29, 1997 Decision[5] of the Irosin, Sorsogon Regional Trial Court (RTC), Branch 55, convicting petitionerNemrod of the crime of homicide. The assailed Resolution denied petitioners Motion for Reconsideration.

The FactsOn October 21, 1990, at around six oclock in the evening, petitioner, Nemrod Gotis, and his brother, Nahom, arrived at Eddie Bautistas coconut plantation in Barangay Bonga, Bulan, Sorsogon looking for Serafin Gotis.Serafins wife, Carmen, and daughter, Nilda, were then at the plantation.Petitioner and Nahom, who were both armed with bolos, angrily approached Carmen and Nilda and asked them where Serafin was.Not being able to find Serafin, Nahom pointed his bolo at Nilda and said, We will kill your father![6]After petitioner and Nahom had left, Carmen and Nilda went to the house of Adolfo Malinao to wait for Serafin.When Serafin arrived, Carmen told him what had hap

pened at the plantation and prevented him from going home. Serafin, however, disregarded Carmens warning and insisted on going home.[7]


2/13

On their way home, Serafin and his family had to pass by Nahoms house.Upon reaching the gate of Nahoms house, Serafin called for Nahom and asked him to come out.When Nahom heard the shouts of Serafin, he immediately called petitioner for help.Petitioner came over and advised Serafin to go home, but he refused to leave.Instead, Serafin attempted to hack petitioner and tried to enter the gate of Nahoms house.[8]Thereafter, Nahom struck Serafin on the head with a bolo.[9]Meanwhile, petitioner entered his brothers house to look for a bolo.[10]chanroblesvirtu

allawlibraryAfter being hit, Serafin ran away.Petitioner, however, pursued him, and hit himseveral times on the back and arm.[11]Carmen, who was then following Serafin, saw the incident and cried for help.Serafins brother, Jose, responded, but beforehe could extend any help, petitioner poked a Batangas knife on his neck.Jose, however, was able to parry the blow with his arm.Thereafter, petitioner ran away.[12]chanroblesvirtuallawlibrarySerafin was brought to a hospital in Irosin, Sorsogon, but he eventually died during treatment.

cralawOn January 16, 1991, the following Information was submitted before the trial court:That on or about the 21st day of October, 1990 at about [seven] oclock in the evening at Barangay Bonga, Municipality of Bulan, Province of Sorsogon, Philippines and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and mutually helping one another, armed with bolos andwith intent to kill, did then and there, willfully, unlawfully and feloniously,with treachery and evident premeditation, attack, assault and hack one Serafin Gotis in the different parts of his body which caused his instantaneous death, tothe damage and prejudice of his legal heirs.[13]

Petitioner admitted having killed Serafin.He, however, interposed the justifyingcircumstance of self-defense. He claimed that he hit Serafin merely to defend himself against the latters attack.After trial, the RTC rendered its Decision, the dispositive portion of which reads:

cralawWHEREFORE, the Court renders judgment in Crim. Case No. 676 finding the accused Nahom Gotis and Nemrod Gotis guilty beyond reasonable doubt of the crime of Homicide as defined in Article 249, of the Revised Penal Code.With respect toNahom Gotis[,] the mitigating circumstance of incomplete self-defense and defense of relative should be appreciated in his favor.Applying the provisions of Article 69 of the Revised Penal Code[,] the court hereby sentences the accused NahomGotis to suffer imprisonment of an indeterminate [s]entence of six (6) months of arresto mayor maximum as the minimum to six (6) years of prision correccionalmaximum as the maximum.The accused Nemrod Gotis is to be credited the mitigatingcircumstances of sufficient provocation and voluntary surrender and applying the provisions of Article 64 (5) of the Revised Penal Code[,] the said accused isto suffer imprisonment for an [i]ndeterminate [s]entence of [f]our (4) years [and] two (2) months of prision correccional medium as the minimum to [t]en (10) years of prision mayor medium as the maximum.The accused Nahom Gotis shall jointlyand severally indemnify the heirs of Serafin Gotis the amount of P50,000.00 andto pay the cost.

cralawx x x xcralawSO ORDERED.[14]


3/13

Nahom applied for probation which was granted by the trial court.Petitioner, onthe other hand, appealed to the CA.The Ruling of the Court of Appeals

The appellate court held that petitioner failed to satisfactorily prove the elements of self-defense.Particularly, the CA held that unlawful aggression did notexist at the time that petitioner attacked the victim.It observed that the unlawful aggression against petitioners life had already ceased when petitioner wentinside his brothers house and the victim ran away.Thus, [petitioners] coming outof the house with a bolo is indicative of a determination to kill Serafin Gotisand not merely to defend himself.[15]However, the CA ruled that petitioner is not entitled to the mitigating circumstance of sufficient provocation because this circumstance is anchored on [petitioners] plea for self-defense which stands discredited by the trial court x x x.[16]chanroblesvirtuallawlibrary

Also, on the award of damages, the CA granted actual damages in the amount of PhP 3,000, observing that expenses for the embalmment of the deceased x x x [were]duly documented by a receipt.[17]chanroblesvirtuallawlibraryThe fallo of the August 30, 2002 Decision of the CA reads:WHEREFORE, the Decision finding [petitioner] Nemrod Gotis guilty of Homicide isAFFIRMED with the modification that he is hereby sentenced to suffer a prison term of eight (8) years of prision mayor, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal, as maximum and to pay the heirs of Serafin Gotis the amount of P3,000.00 as actual damages in addition to the P50,000.00[as] civil indemnity awarded by the trial court.[18]chanroblesvirtuallawlibrary

Hence, we have this petition.The IssueWhether or not the Honorable Court of Appeals gravely erred in affirming with modification the Decision of the Regional Trial Court disregarding petitioners plea of self-defense.[19]

The Courts RulingThe petition is partly meritorious.

Factual Questions Not ReviewableThe present petition was brought under Rule 45 of the Rules of Court.It is a settled doctrine that petitions of this nature should only raise questions of law.[20]Moreover, the general rule is that questions of fact are not reviewable, subject only to certain exceptions as when the judgment is not supported by sufficient evidence or is premised on a misapprehension of facts.[21]chanroblesvirtuallawlibrary

In the present case, petitioner maintains that the CA failed to appreciate thathe had acted in self-defense, and thus, he should not be held liable for Serafins death.However, petitioner failed to show that the CAs findings of fact should


4/13

be disregarded. The factual findings are borne out by the records and are supported by substantial evidence.Article 11(1) of the Revised Penal Code provides the elements of self-defense asa justifying circumstance, thus:1.Anyone who acts in defense of his person or rights, provided that the followin

g circumstances concur:First. Unlawful Aggression;Second. Reasonable necessity of the means employed to prevent or repel it;Third. Lack of sufficient provocation on the part of the person defending himself.Unlawful aggression by the victim is a primordial element of self-defense; without it, there can be no self-defense, complete or incomplete.[22] To be appreciated, the unlawful aggression must be a continuing circumstance or must have beenexisting at the time the defense is made.[23]A person making a defense has no mo

re right to attack an aggressor when the unlawful aggression has ceased.[24]In this case, the trial and appellate courts correctly held that while Serafin initially attacked petitioner with a bolo, the unlawful aggression already ceased when the latter was able to go inside his brothers house and the former ran away.Atthis point, there was no longer any danger on his life; thus, there was also nonecessity to defend himself by pursuing and attacking Serafin.Sufficient Provocation as a Mitigating CircumstanceThe trial court appreciated the mitigating circumstance of sufficient provocation.However, the appellate court reversed the trial courts ruling explaining thatsufficient provocation is not compatible with the finding that petitioner did not act in self-defense.By faulting petitioner for inflicting injuries on the vict

im after the latter had run away, the CA likened sufficient provocation with unlawful aggression. The CA erred.As an element of self-defense, unlawful aggression presupposes an actual, sudden, and unexpected attack, or imminent danger of the attack, from the victim.[25]On the other hand, as a mitigating circumstance, sufficient provocation is any unjust or improper conduct or act of the victim adequate enough to excite a person to commit a wrong, which is accordingly proportionate in gravity.[26]Notably,while an act cannot be considered an unlawful aggression for the purpose of self-defense, the same act can be considered as sufficient provocation for the purpose of mitigating the crime.In Pepito v. CA,[27]the victim, before the killing, had challenged the accusedsfamily with a bolo and an indian pana.After this attack, the victim went home.The accused thereafter grabbed a bolo, pursued the victim, and killed him.The Court did not consider the victims act as an unlawful aggression for the purpose ofself-defense.However, such was considered a provocation sufficient to mitigate the crime. People v. Ubaldo[28] had likewise disregarded the violent act of the victim before the shooting incident as an unlawful aggression, but appreciated itas a mitigating circumstance of sufficient provocation.Moreover, the retaliation of the accused in Romero v. People,[29] although not considered an unlawful aggression, was nevertheless deemed as sufficient provocation.The Courtexplained, Thrusting his bolo at petitioner, threatening to kill him, and hacking the bamboo walls of his house are, in our view, sufficient provoc

ation to enrage any man, or stir his rage and obfuscate his thinking, more so when the lives of his wife and children are in danger.[30]


5/13

In the present case, petitioner was merely pacifying Serafin when the latter suddenly attempted to hack the former.Although petitioner evaded the attack, Serafins act was enough provocation to anger petitioner and cause him to strike back.Thus, we find that sufficient provocation attended the crime.The prison term imposed by the trial court in its October 29, 1997 Decision is hereby REINSTATED.

WHEREFORE, the petition is PARTIALLY GRANTED.The August 30, 2002 Decision in CA-G.R. CR No. 22536 is AFFIRMED with MODIFICATION on the penalty, as follows:Petitioner is hereby found GUILTY of Homicide, and sentenced to suffer an indeterminate prison term of four (4) years and two (2) months of prisin correccionalas minimum to ten (10) years of prisin mayor as maximum, and to pay the heirs ofSerafin Gotis PhP 50,000 as indemnity for his death and PhP 3,000 as actual damages.No pronouncement as to costs.

SO ORDERED.-----------------

EN BANC[B.M. No. 1370. May 9, 2005]

LETTER OF ATTY. CECILIO Y. AREVALO, JR., REQUESTING EXEMPTION FROM PAYMENT OF IBP DUES.D E C I S I O NCHICO-NAZARIO, J.:

This is a request for exemption from payment of the Integrated Bar of the Philippines (IBP) dues filed by petitioner Atty. Cecilio Y. Arevalo, Jr.

In his letter,[1] dated 22 September 2004, 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 until1986, 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 ones profession while in government service, and neither can he be assessed for the years when he was working in the USA.

On 05 October 2004, the letter was referred to the IBP for comment.[2]

On 16 November 2004, the IBP submitted its comment[3] stating inter alia: thatmembership in the IBP is not based on the actual practice of law; that a lawyercontinues to be included in the Roll of Attorneys as long as he continues to bea member of the IBP; that one of the obligations of a member is the payment of annual dues as determined by the IBP Board of Governors and duly approved by theSupreme Court as provided for in Sections 9 and 10, Rule 139-A of the Rules of Court; that the validity of imposing dues on the IBP members has been upheld as necessary to defray the cost of an Integrated Bar Program; and that the policy ofthe IBP Board of Governors of no exemption from payment of dues is but an implementation of the Courts directives for all members of the IBP to help in defrayin

g the cost of integration of the bar. It maintained that 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 asser


6/13

ted that what petitioner could have done was to inform the secretary of the IBPof 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. It also alleged that the IBP Board of Governors is in the process of discussing proposals for the creation of an inactive status for its members, which if approved bythe Board of Governors and by this Court, will exempt inactive IBP members frompayment of the annual dues.

In his reply[4] dated 22 February 2005, petitioner contends that what he is questioning is the IBP Board of Governors Policy of Non-Exemption in the payment of annual membership dues of lawyers regardless of whether or not they are engaged in active or inactive practice. He asseverates that the Policy of Non-Exemptionin the payment of annual membership dues suffers from constitutional infirmities, such as equal protection clause and the due process clause. He also posits that 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 withoutincome derived from his law practice. He adds that his removal from nonpaymentof annual membership dues would constitute deprivation of property right without due process of law. Lastly, he claims that non-practice of law by a lawyer-me

mber in inactive status is neither injurious to active law practitioners, to fellow lawyers in inactive status, nor to the community where the inactive lawyers-members reside.

Plainly, the issue here is: whether or nor petitioner is entitled to exemption from payment of his dues during the time that he was inactive in the practice oflaw that is, when he was in the Civil Service from 1962-1986 and he was working abroad from 1986-2003?

We rule in the negative.

An Integrated Bar is a State-organized Bar, to which every lawyer must belong, asdistinguished from bar association organized by individual lawyers themselves, m

embership in which is voluntary. Integration of the Bar is essentially a process by which every member of the Bar is afforded an opportunity to do his shares in carrying out the objectives of the Bar as well as obliged to bear his portionof its responsibilities. Organized by or under the direction of the State, an Integrated Bar is an official national body of which all lawyers are required tobe members. They are, therefore, subject to all the rules prescribed for the governance of the Bar, including the requirement of payment of a reasonable annualfee for the effective discharge of the purposes of the Bar, and adherence to acode of professional ethics or professional responsibility, breach of which constitutes sufficient reason for investigation by the Bar and, upon proper cause appearing, a recommendation for discipline or disbarment of the offending member.[5]

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.[6]

Bar integration does not compel the lawyer to associate with anyone. He is freeto 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 States legitimate interest in elevating the quality of professionallegal 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.[7]

Moreover, there is nothing in the Constitution that prohibits the Court, under i


7/13

ts constitutional power and duty to promulgate rules concerning the admission tothe practice of law and in the integration of the Philippine Bar[8] - which power required members of a privileged class, such as lawyers are, to pay a reasonable fee toward defraying the expenses of regulation of 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.

The rationale for prescribing dues has been explained in the Integration of thePhilippine Bar,[9] thus:

For the court to prescribe dues to be paid by the members does not mean that theCourt is attempting to levy a tax.

A membership fee in the Bar association is an exaction for regulation, while taxpurpose of a tax is a revenue. If the judiciary has inherent power to regulatethe Bar, it follows that as an incident to regulation, it may impose a membership fee for that purpose. It would not be possible to put on an integrated Bar program without means to defray the expenses. The doctrine of implied powers necess

arily carries with it the power to impose such exaction.

The only limitation upon the States power to regulate the privilege of law is that the regulation does not impose an unconstitutional burden. The public interestpromoted by the integration of the Bar far outweighs the slight inconvenience to a member resulting from his required payment of the annual dues.

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 duessubsists for as long as ones membership in the IBP remains regardless of the lackof practice of, or the type of practice, the member is engaged in.

There is nothing in the law or rules which allows exemption from payment of memb

ership dues. At most, as correctly observed by the IBP, he could have informedthe Secretary of the Integrated Bar of his intention to stay abroad before he left. In such case, his membership in the IBP could have been terminated and hisobligation to pay dues could have been discontinued.

As abovementioned, the IBP in its comment stated that the IBP Board of Governorsis in the process of discussing the situation of members under inactive statusand the nonpayment of their dues during such inactivity. In the meantime, petitioner is duty bound to comply with his obligation to pay membership dues to theIBP.

Petitioner also contends that the enforcement of the penalty of removal would amount to a deprivation of property without due process and hence infringes on oneof his constitutional rights.

This question has been settled in the case of In re Atty. Marcial Edillon,[10] in this wise:

. . . Whether the practice of law is a property right, in the sense of its beingone that entitles the holder of a license to practice a profession, we do not here pause to consider at length, as it [is] clear that under the police power ofthe State, and under the necessary powers granted to the Court to perpetuate its existence, the respondents right to practice law before the courts of this country should be and is a matter subject to regulation and inquiry. And, if the power to impose the fee as a regulatory measure is recognize[d], then a penalty de

signed to enforce its payment, which penalty may be avoided altogether by payment, is not void as unreasonable or arbitrary.


8/13

But we must here emphasize that the practice of law is not a property right buta mere privilege, and as such must bow to the inherent regulatory power of the Court to exact compliance with the lawyers public responsibilities.

As a final note, it must be borne in mind that membership in the bar is a privilege burdened with conditions,[11] one of which is the payment of membership dues. Failure to abide by any of them entails the loss of such privilege if the gra

vity thereof warrants such drastic move.

WHEREFORE, petitioners request for exemption from payment of IBP dues is DENIED.He is ordered to pay P12,035.00, the amount assessed by the IBP as membership fees for the years 1977-2005, within a non-extendible period of ten (10) days from receipt of this decision, with a warning that failure to do so will merit hissuspension from the practice of law.

SO ORDERED.

Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Ti

nga, and Garcia, JJ., concur.-----------

EN BANC[B.M. No. 793. July 30, 2004]

IN RE: SUSPENSION FROM THE PRACTICE OF LAW IN THE TERRITORY OF GUAM OF ATTY. LEON G. MAQUERAR E S O L U T I O NTINGA, J.:

May a member of the Philippine Bar who was disbarred or suspended from the practice of law in a foreign jurisdiction where he has also been admitted as an attor

ney be meted the same sanction as a member of the Philippine Bar for the same infraction committed in the foreign jurisdiction? There is a Rule of Court provision covering this cases central issue. Up to this juncture, its reach and breadth have not undergone the test of an unsettled case.

In a Letter dated August 20, 1996,[1] the District Court of Guam informed this Court of the suspension of Atty. Leon G. Maquera (Maquera) from the practice of law in Guam for two (2) years pursuant to the Decision rendered by the Superior Court of Guam on May 7, 1996 in Special Proceedings Case No. SP0075-94,[2] a disciplinary case filed by the Guam Bar Ethics Committee against Maquera.

The Court referred the matter of Maqueras suspension in Guam to the Bar Confidantfor comment in its Resolution dated November 19, 1996.[3] Under Section 27, Rule 138 of the Revised Rules of Court, the disbarment or suspension of a member ofthe Philippine Bar in a foreign jurisdiction, where he has also been admitted as an attorney, is also a ground for his disbarment or suspension in this realm,provided the foreign courts action is by reason of an act or omission constituting deceit, malpractice or other gross misconduct, grossly immoral conduct, or a violation of the lawyers oath.

In a Memorandum dated February 20, 1997, then Bar Confidant Atty. Erlinda C. Verzosa recommended that the Court obtain copies of the record of Maqueras case since the documents transmitted by the Guam District Court do not contain the factual and legal bases for Maqueras suspension and are thus insufficient to enable herto determine whether Maqueras acts or omissions which resulted in his suspension

in Guam are likewise violative of his oath as a member of the Philippine Bar.[4]


9/13

Pursuant to this Courts directive in its Resolution dated March 18, 1997,[5] theBar Confidant sent a letter dated November 13, 1997 to the District Court of Guam requesting for certified copies of the record of the disciplinary case againstMaquera and of the rules violated by him.[6]

The Court received certified copies of the record of Maqueras case from the District Court of Guam on December 8, 1997.[7]

Thereafter, Maqueras case was referred by the Court to the Integrated Bar of thePhilippines (IBP) for investigation report and recommendation within sixty (60)days from the IBPs receipt of the case records.[8]

The IBP sent Maquera a Notice of Hearing requiring him to appear before the IBPsCommission on Bar Discipline on July 28, 1998.[9] However, the notice was returned unserved because Maquera had already moved from his last known address in Agana, Guam and did not leave any forwarding address.[10]

On October 9, 2003, the IBP submitted to the Court its Report and Recommendationand its Resolution No. XVI-2003-110, indefinitely suspending Maquera from the p

ractice of law within the Philippines until and unless he updates and pays his IBP membership dues in full.[11]

The IBP found that Maquera was admitted to the Philippine Bar on February 28, 1958. On October 18, 1974, he was admitted to the practice of law in the territory of Guam. He was suspended from the practice of law in Guam for misconduct, ashe acquired his clients property as payment for his legal services, then sold itand as a consequence obtained an unreasonably high fee for handling his clientscase.[12]

In its Decision, the Superior Court of Guam stated that on August 6, 1987, Edward Benavente, the creditor of a certain Castro, obtained a judgment against Castro in a civil case. Maquera served as Castros counsel in said case. Castros prope

rty subject of the case, a parcel of land, was to be sold at a public auction insatisfaction of his obligation to Benavente. Castro, however, retained the right of redemption over the property for one year. The right of redemption couldbe exercised by paying the amount of the judgment debt within the aforesaid period.[13]

At the auction sale, Benavente purchased Castros property for Five Hundred U.S. Dollars (US$500.00), the amount which Castro was adjudged to pay him.[14]

On December 21, 1987, Castro, in consideration of Maqueras legal services in thecivil case involving Benavente, entered into an oral agreement with Maquera andassigned his right of redemption in favor of the latter.[15]

On January 8, 1988, Maquera exercised Castros right of redemption by paying Benavente US$525.00 in satisfaction of the judgment debt. Thereafter, Maquera had the title to the property transferred in his name.[16]

On December 31, 1988, Maquera sold the property to C.S. Chang and C.C. Chang forThree Hundred Twenty Thousand U.S. Dollars (US$320,000.00).[17]

On January 15, 1994, the Guam Bar Ethics Committee (Committee) conducted hearings regarding Maqueras alleged misconduct.[18]

Subsequently, the Committee filed a Petition in the Superior Court of Guam praying that Maquera be sanctioned for violations of Rules 1.5[19] and 1.8(a)[20] of

the Model Rules of Professional Conduct (Model Rules) in force in Guam. In itsPetition, the Committee claimed that Maquera obtained an unreasonably high fee for his services. The Committee further alleged that Maquera himself admitted hi


10/13

s failure to comply with the requirement in Rule 1.8 (a) of the Model Rules thata lawyer shall not enter into a business transaction with a client or knowinglyacquire a pecuniary interest adverse to a client unless the transaction and theterms governing the lawyers acquisition of such interest are fair and reasonableto the client, and are fully disclosed to, and understood by the client and reduced in writing.[21]

The Committee recommended that Maquera be: (1) suspended from the practice of law in Guam for a period of two [2] years, however, with all but thirty (30) daysof the period of suspension deferred; (2) ordered to return to Castro the difference between the sale price of the property to the Changs and the amount due himfor legal services rendered to Castro; (3) required to pay the costs of the disciplinary proceedings; and (4) publicly reprimanded. It also recommended that other jurisdictions be informed that Maquera has been subject to disciplinary action by the Superior Court of Guam.[22]

Maquera did not deny that Castro executed a quitclaim deed to the property in his favor as compensation for past legal services and that the transaction, exceptfor the deed itself, was oral and was not made pursuant to a prior written agre

ement. However, he contended that the transaction was made three days followingthe alleged termination of the attorney-client relationship between them, and that the property did not constitute an exorbitant fee for his legal services toCastro.[23]

On May 7, 1996, the Superior Court of Guam rendered its Decision[24] suspendingMaquera from the practice of law in Guam for a period of two (2) years and ordering him to take the Multi-State Professional Responsibility Examination (MPRE) within that period. The court found that the attorney-client relationship between Maquera and Castro was not yet completely terminated when they entered into the oral agreement to transfer Castros right of redemption to Maquera on December 21, 1987. It also held that Maquera profited too much from the eventual transferof Castros property to him since he was able to sell the same to the Changs with

more than US$200,000.00 in profit, whereas his legal fees for services renderedto Castro amounted only to US$45,000.00. The court also ordered him to take the MPRE upon his admission during the hearings of his case that he was aware of the requirements of the Model Rules regarding business transactions between an attorney and his client in a very general sort of way.[25]

On the basis of the Decision of the Superior Court of Guam, the IBP concluded that although the said court found Maquera liable for misconduct, there is no evidence to establish that [Maquera] committed a breach of ethics in the Philippines.[26] However, the IBP still resolved to suspend him indefinitely for his failureto pay his annual dues as a member of the IBP since 1977, which failure is, in turn, a ground for removal of the name of the delinquent member from the Roll ofAttorneys under Section 10, Rule 139-A of the Revised Rules of Court.[27]

The power of the Court to disbar or suspend a lawyer for acts or omissions committed in a foreign jurisdiction is found in Section 27, Rule 138 of the Revised Rules of Court, as amended by Supreme Court Resolution dated February 13, 1992, which states:

Section 27. Disbarment or suspension of attorneys by Supreme Court, grounds therefor.A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct insuch office, grossly immoral conduct, or by reason of his conviction of a crimeinvolving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a willful disobedience appearing

as attorney for a party to a case without authority to do so. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.


11/13

The disbarment or suspension of a member of the Philippine Bar by a competent court or other disciplinatory agency in a foreign jurisdiction where he has also been admitted as an attorney is a ground for his disbarment or suspension if thebasis of such action includes any of the acts hereinabove enumerated.

The judgment, resolution or order of the foreign court or disciplinary agency sh

all be prima facie evidence of the ground for disbarment or suspension (Emphasissupplied).

The Court must therefore determine whether Maqueras acts, namely: acquiring by assignment Castros right of redemption over the property subject of the civil casewhere Maquera appeared as counsel for him; exercising the right of redemption; and, subsequently selling the property for a huge profit, violate Philippine lawor the standards of ethical behavior for members of the Philippine Bar and thusconstitute grounds for his suspension or disbarment in this jurisdiction.

The Superior Court of Guam found that Maquera acquired his clients property by exercising the right of redemption previously assigned to him by the client in pay

ment of his legal services. Such transaction falls squarely under Article 1492in relation to Article 1491, paragraph 5 of the Civil Code of the Philippines. Paragraph 5 of Article 1491[28] prohibits the lawyers acquisition by assignment ofthe clients property which is the subject of the litigation handled by the lawyer. Under Article 1492,[29] the prohibition extends to sales in legal redemption.

The prohibition ordained in paragraph 5 of Article 1491 and Article 1492 is founded on public policy because, by virtue of his office, an attorney may easily take advantage of the credulity and ignorance of his client[30] and unduly enrichhimself at the expense of his client.

The case of In re: Ruste[31] illustrates the significance of the aforementionedprohibition. In that case, the attorney acquired his clients property subject of

a case where he was acting as counsel pursuant to a deed of sale executed by his clients in his favor. He contended that the sale was made at the instance ofhis clients because they had no money to pay him for his services. The Court ruled that the lawyers acquisition of the property of his clients under the circumstances obtaining therein rendered him liable for malpractice. The Court held:

Whether the deed of sale in question was executed at the instance of the spousesdriven by financial necessity, as contended by the respondent, or at the lattersbehest, as contended by the complainant, is of no moment. In either case an attorney occupies a vantage position to press upon or dictate his terms to a harassed client, in breach of the rule so amply protective of the confidential relations, which must necessarily exist between attorney and client, and of the rights of both.[32]

The Superior Court of Guam also hinted that Maqueras acquisition of Castros rightof redemption, his subsequent exercise of said right, and his act of selling the redeemed property for huge profits were tainted with deceit and bad faith whenit concluded that Maquera charged Castro an exorbitant fee for his legal services. The court held that since the assignment of the right of redemption to Maquera was in payment for his legal services, and since the property redeemed by himhad a market value of US$248,220.00 as of December 21, 1987 (the date when theright of redemption was assigned to him), he is liable for misconduct for accepting payment for his legal services way beyond his actual fees which amounted only to US$45,000.00.

Maqueras acts in Guam which resulted in his two (2)-year suspension from the practice of law in that jurisdiction are also valid grounds for his suspension fromthe practice of law in the Philippines. Such acts are violative of a lawyers swo


12/13

rn duty to act with fidelity toward his clients. They are also violative of theCode of Professional Responsibility, specifically, Canon 17 which states that [a] lawyer owes fidelity to the cause of his client and shall be mindful the trustand confidence reposed in him; and Rule 1.01 which prohibits lawyers from engaging in unlawful, dishonest, immoral or deceitful conduct. The requirement of good moral character is not only a condition precedent to admission to the Philippine Bar but is also a continuing requirement to maintain ones goods standing in the

legal profession.[33]

It bears stressing that the Guam Superior Courts judgment ordering Maqueras suspension from the practice of law in Guam does not automatically result in his suspension or disbarment in the Philippines. Under Section 27,[34] Rule 138 of the Revised Rules of Court, the acts which led to his suspension in Guam are mere grounds for disbarment or suspension in this jurisdiction, at that only if the basis of the foreign courts action includes any of the grounds for disbarment or suspension in this jurisdiction.[35] Likewise, the judgment of the Superior Court ofGuam only constitutes prima facie evidence of Maqueras unethical acts as a lawyer.[36] More fundamentally, due process demands that he be given the opportunityto defend himself and to present testimonial and documentary evidence on the mat

ter in an investigation to be conducted in accordance with Rule 139-B of the Revised Rules of Court. Said rule mandates that a respondent lawyer must in all cases be notified of the charges against him. It is only after reasonable noticeand failure on the part of the respondent lawyer to appear during the scheduledinvestigation that an investigation may be conducted ex parte.[37]

The Court notes that Maquera has not yet been able to adduce evidence on his behalf regarding the charges of unethical behavior in Guam against him, as it is not certain that he did receive the Notice of Hearing earlier sent by the IBPs Commission on Bar Discipline. Thus, there is a need to ascertain Maqueras current and correct address in Guam in order that another notice, this time specifically informing him of the charges against him and requiring him to explain why he should not be suspended or disbarred on those grounds (through this Resolution), may

be sent to him.

Nevertheless, the Court agrees with the IBP that Maquera should be suspended from the practice of law for non-payment of his IBP membership dues from 1977 up tothe present.[38] Under Section 10, Rule 139-A of the Revised Rules of Court, non-payment of membership dues for six (6) months shall warrant suspension of membership in the IBP, and default in such payment for one year shall be ground forremoval of the name of the delinquent member from the Roll of Attorneys.[39]

WHEREFORE, Atty. Leon G. Maquera is required to SHOW CAUSE, within fifteen (15)days from receipt of this Resolution, why he should not be suspended or disbarred for his acts which gave rise to the disciplinary proceedings against him in the Superior Court of Guam and his subsequent suspension in said jurisdiction.

The Bar Confidant is directed to locate the current and correct address of Atty.Maquera in Guam and to serve upon him a copy of this Resolution.

In the meantime, Atty. Maquera is SUSPENDED from the practice of law for ONE (1)YEAR or until he shall have paid his membership dues, whichever comes later.

Let a copy of this Resolution be attached to Atty. Maqueras personal record in the Office of the Bar Confidant and copies be furnished to all chapters of the Integrated Bar of the Philippines and to all courts in the land.

SO ORDERED.

Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr., Azcuna, and Chico-


13/13

Nazario, JJ., concur.Corona, J., on leave.

consti ethics

Documents