BAR MATTER NO. 850 [August 22, 2000]

MANDATORY CONTINUING LEGAL EDUCATION (MCLE)

ADOPTING THE RULES ON MANDATORY  CONTINUING LEGAL EDUCATION FOR MEMBERS OF THE 

INTEGRATED BAR OF THE PHILIPPINES

EN BANC

R E S O L U T I O N

Considering the Rules on Mandatory Continuing Legal Education (MCLE) for members of the Integrated Bar of the Philippines (IBP), recommended by the IBP, endorsed by the Philippine Judicial Academy, and reviewed and passed upon by the Supreme Court Committee on Legal Education, the Court hereby resolves to adopt, as it hereby adopts, the following rules for proper implementation:

RULE 1 PURPOSE

Section 1. Purpose of the MCLE

Continuing legal education is required of members of the Integrated Bar of the Philippines (IBP) to ensure that throughout their career, they keep abreast with law and jurisprudence, maintain the ethics of the profession and enhance the standards of the practice of law.

RULE 2 MANDATORY CONTINUING LEGAL EDUCATION

Section 1. Constitution of the MCLE Committee

Within two (2) months from the approval of these Rules by the Supreme Court En Banc, the MCLE Committee shall be constituted in accordance with these Rules.

Section 2. Requirements of completion of MCLE

Members of the IBP not exempt under Rule 7 shall complete, every three (3) years, at least thirty-six (36) hours of continuing legal education activities approved by the MCLE Committee. Of the 36 hours: 

(a) At least six (6) hours shall be devoted to legal ethics. 

(b) At least (4) hours shall be devoted to trial and pretrial skills. 

(c) At least five (5) hours shall be devoted to alternative dispute resolution. 

(d) At least nine (9) hours shall be devoted to updates on substantive and procedural laws, and jurisprudence. 

(e) At least four (4) hours shall be devoted to legal writing and oral advocacy. 

(f) At least two (2) hours shall be devoted to international law and international conventions. 

(g) The remaining six (6) hours shall be devoted to such subjects as may be prescribed by the MCLE Committee. 

RULE 3 COMPLIANCE PERIOD

Section 1. Initial compliance period

The initial compliance period shall begin not later than three (3) months from the constitution of the MCLE Committee. Except for the initial compliance period for members admitted or readmitted after the establishment of the program, all compliance periods shall be for thirty-six (36) months and shall begin the day after the end of the previous compliance period.

Section 2. Compliance Group 1.

Members in the National Capital Region (NCR) or Metro Manila shall be permanently assigned to Compliance Group 1.

Section 3. Compliance Group 2.

Members in Luzon outside NCR shall be permanently assigned to Compliance Group 2. 

Section 4. Compliance Group 3.

Members in Visayas and Mindanao shall be permanently assigned to Compliance Group 3.

Section 5. Compliance period for members admitted or readmitted after establishment of the program.

Members admitted or readmitted to the Bar after the establishment of the program shall be permanently assigned to the appropriate Compliance Group based on their Chapter membership on the date of admission or readmission. 

The initial compliance period after admission or readmission shall begin on the first day of the month of admission or readmission and shall end on the same day as that of all other members in the same Compliance Group. 

(a) Where four (4) months or less remain of the initial compliance period after admission or readmission, the member is not required to comply with the program requirement for the initial compliance. 

(b) Where more than four (4) months remain of the initial compliance period after admission or readmission, the member shall be required to complete a number of hours of approved continuing legal education activities equal to the number of months remaining in the compliance period in which the member is admitted or readmitted. Such member shall be required to complete a number of hours of education in legal ethics in proportion to the number of months remaining in the compliance period. Fractions of hours shall be rounded up to the next whole number. 

RULE 4 COMPUTATION OF CREDIT UNITS

Section 1. Guidelines

The following are the guidelines for computation of credit units (CU):

PROGRAMS CREDIT UNITS SUPPORTING DOCUMENTS

1. SEMINARS, CONVENTIONS, CONFERENCES, SYMPOSIA, IN-HOUSE EDUCATION PROGRAMS, WORKSHOPS, DIALOGUES, ROUND TABLE DISCUSSIONS BY APPROVED PROVIDERS UNDER RULE 7 AND OTHER RELATED RULES

1.1 PARTICIPANT 1 CU PER HOUR CERTIFICATE OF ATTENDANCE WITH NUMBER OF HOURS 

1.2 LECTURER 5 CU PER HOUR PHOTOCOPY OF PLAQUE OR SPONSOR'S CERTIFICATION 

1.3 RESOURCE 3 CU PER HOUR PHOTOCOPY OF PLAQUE OR SPONSOR'S SPEAKER CERTIFICATION 

1.4 ASSIGNED 2 CU PER HOUR CERTIFICATION FROM SPONSORING PENALIST/ ORGANIZATION REACTOR/COMMENTATOR 

1.5 MODERATOR/ 2 CU PER HOUR CERTIFICATION FROM SPONSORING COORDINATOR/ ORGANIZATION FACILITATOR 

2. AUTHORSHIP, EDITING AND REVIEW

2.1 RESEARCH/ 5-10 CREDIT UNITS DULY CERTIFIED/PUBLISHED INNOVATIVE TECHNICAL REPORT/PAPER PROGRAM/CREATIVE PROJECT 

2.2 BOOK 50-100 PP 101+ PUBLISHED BOOK SINGLE AUTHOR 12-16 CU 17-20 CU 2 AUTHORS 10-12 CU 13-16 CU 3 OR MORE 5-6 CU 7-11 CU 

2.3 BOOK EDITOR 1/2 OF THE CU OF PUBLISHED BOOK WITH PROOF AUTHORSHIP AS EDITOR CATEGORY chan robles virtual law library

2.4 LEGAL ARTICLE 5-10 PP 11+ PUBLISHED ARTICLE SINGLE AUTHOR 6 CU 8 CU 2 AUTHORS 4 CU 6 CUchan robles virtual law library 3 OR MORE 2 CU 4 CU chan robles virtual law library

2.5 LEGAL 3-6 CU PER ISSUE PUBLISHED NEWSLETTER/JOURNAL NEWSLETTER/LAW JOURNAL EDITOR 

3. PROFESSIONAL 6 CU PER CHAIR CERTIFICATION OF LAW DEAN CHAIR/BAR 1 CU PER LECTURE OR BAR REVIEW DIRECTOR REVIEW/ HOUR LECTURE/LAW TEACHING 

Section 2. Limitation on certain credit unitschan robles virtual law library

In numbers 2 and 3 of the guidelines in the preceding Section, the total maximum credit units shall not exceed twenty (20) hours per three (3) years. 

RULE 5 CATEGORIES OF CREDIT

Section 1. Classes of credits

The credits are either participatory or non-participatory.

Section 2. Claim for participatory credit

Participatory credit may be claimed for: 

(a) Attending approved education activities like seminars, conferences, symposia, in-house education programs, workshops, dialogues or round table discussions. 

(b) Speaking or lecturing, or acting as assigned panelist, reactor, commentator, resource speaker, moderator, coordinator or facilitator in approved education activities. 

(c) Teaching in a law school or lecturing in a bar review class.

Section 3. Claim for non-participatory credit

Non-participatory credit may be claimed per compliance period for:

(a) Preparing, as an author or co-author, written materials published or accepted for publication, e.g., in the form of an article, chapter, book, or book review which contribute to the legal education of the author member, which were not prepared in the ordinary course of the member's practice or employment.

(b) Editing a law book, law journal or legal newsletter. 

RULE 6 COMPUTATION OF CREDIT HOURS

Section 1. Computation of credit hours

Credit hours are computed based on actual time spent in an activity (actual instruction or speaking time), in hours to the nearest one-quarter hour. 

RULE 7 EXEMPTIONS

Section 1. Parties exempted from the MCLE

The following members of the Bar are exempt from the MCLE requirement: 

(a) The President and the Vice President of the Philippines, and the Secretaries and Undersecretaries of Executives Departments; chan robles virtual law library

(b) Senators and Members of the House of Representatives; chan robles virtual law library

(c) The Chief Justice and Associate Justices of the Supreme Court, incumbent and retired members of the judiciary, incumbent members of the Judicial and Bar Council and incumbent court lawyers covered by the Philippine Judicial Academy program of continuing judicial education; 

(d) The Chief State Counsel, Chief State Prosecutor and Assistant Secretaries of the Department of Justice; 

(e) The Solicitor General and the Assistant Solicitor General; 

(f) The Government Corporate Counsel, Deputy and Assistant Government Corporate Counsel; 

(g) The Chairmen and Members of the Constitutional Commissions; 

(h) The Ombudsman, the Overall Deputy Ombudsman, the Deputy Ombudsmen and the Special Prosecutor of the Office of the Ombudsman; 

(i) Heads of government agencies exercising quasi-judicial functions; 

(j) Incumbent deans, bar reviews and professors of law who have teaching experience for at least 10 years accredited law schools; 

(k) The Chancellor, Vice-Chancellor and members of the Corps of Professors and Professorial Lectures of the Philippine Judicial Academy; and 

(l) Governors and Mayors.

Section 2. Other parties exempted from the MCLE

The following Members of the Bar are likewise exempt: 

(a) Those who are not in law practice, private or public. 

(b) Those who have retired from law practice with the approval of the IBP Board of Governors.

Section 3. Good cause for exemption from or modification of requirement

A member may file a verified request setting forth good cause for exemption (such as physical disability, illness, post graduate study abroad, proven expertise in law, etc.) from compliance with or modification of any of the requirements, including an extension of time for compliance, in accordance with a procedure to be established by the MCLE Committee.

Section 4. Change of status

The compliance period shall begin on the first day of the month in which a member ceases to be exempt under Sections 1, 2, or 3 of this Rule and shall end on the same day as that of all other members in the same Compliance Group. 

Section 5. Proof of exemption

Applications for exemption from or modification of the MCLE requirement shall be under oath and supported by documents. 

RULE 8 STANDARDS FOR APPROVAL OF EDUCATION ACTIVITIES

Section 1. Approval of MCLE program

Subject to the rules as may be adopted by the MCLE Committee, continuing legal education program may be granted approval in either of two (2) ways: (1) the provider of the activity is an approved provider and certifies that the activity meets the criteria of Section 3 of this Rules; and (2) the provider is specially mandated by law to provide continuing legal education.

Section 2. Standards for all education activities

All continuing legal education activities must meet the following standards: 

(a) The activity shall have significant current intellectual or practical content. 

(b) The activity shall constitute an organized program of learning related to legal subjects and the legal profession, including cross profession activities (e.g., accounting-tax or medical-legal) that enhance legal skills or the ability to practice law, as well as subjects in legal writing and oral advocacy. 

(c) The activity shall be conducted by a provider with adequate professional experience. 

(d) Where the activity is more than one (1) hour in length, substantive written materials must be distributed to all participants. Such materials must be distributed at or before the time the activity is offered. 

(e) In-house education activities must be scheduled at a time and location so as to be free from interruption like telephone calls and other distractions.chan robles virtual law library

RULE 9 APPROVAL OF PROVIDERS

Section 1. Approval of providers

Approval of providers shall be done by the MCLE Committee.

Section 2. Requirements for approval of providers

Any persons or group may be approved as a provider for a term of two (2) years, which may be renewed, upon written application. All providers of continuing legal education activities, including in-house providers, are eligible to be approved providers. Application for approval shall: 

(a) Be submitted on a form provided by the IBP; 

(b) Contain all information requested on the form; 

(c) Be accompanied by the approval fee.

Section 3. Requirements of all providers

All approved providers shall agree to the following: 

(a) An official record verifying the attendance at the activity shall be maintained by the provider for at least four (4) years after the completion date. The provider shall include the member on the official record of attendance only if the member's signature was obtained at the time of attendance at the activity. The official record of attendance shall contain the member's name and number in the Roll of Attorneys and shall identify the time, date, location, subject matter, and length of the education activity. A copy of such record shall be furnished the IBP. 

(b) The provider shall certify that:

(1) This activity has been approved for MCLE by the IBP in the amount of ________ hours of which hours will apply in (legal ethics, etc.), as appropriate to the content of the activity;

(2) The activity conforms to the standards for approved education activities prescribed by these Rules and such regulations as may be prescribed by the IBP pertaining to MCLE. 

(c) The provider shall issue a record or certificate to all participants identifying the time, date, location, subject matter and length of the activity. 

(d) The provider shall allow in-person observation of all approved continuing legal education activities by members of the IBP Board of Governors, the MCLE Committee, or designees of the Committee and IBP staff for purposes of monitoring compliance with these Rules. 

(e) The provider shall indicate in promotional materials, the nature of the activity, the time devoted to each devoted to each topic and identify of the instructors. The provider shall make available to each participant a copy of IBP-approved Education Activity Evaluation Form. chan robles virtual law library

(f) The provider shall maintain the completed Education Activity Evaluation Forms for a period of not less than one (1) year after the activity, copy furnished the IBP. 

(g) Any person or group who conducts an unauthorized activity under this program or issues a spurious certificate in violation of these Rules shall be subject to appropriate sanctions.

Section 4. Renewal of provider approval

The approval of a provider may be renewed every two (2) years. It may be denied if the provider fails to comply with any of the requirements of these Rules or fails to provide satisfactory education activities for the preceding period.

Section 5. Revocation of provider approval

The approval of any provider referred to in Rule 9 may be revoked by a majority vote of the IBP Board of Governors, upon recommendation of the MCLE Committee, after notice and hearing and for good cause. 

RULE 10 ACTIVITY AND PROVIDER APPROVAL FEE

Section 1. Payment of fees

Application for approval of an education activity or as a provider requires payment of an appropriate fee. 

RULE 11 GENERAL COMPLIANCE PROCEDURES

Section 1. Compliance card

Each member shall secure from the MCLE Committee a Compliance Card before the end of his compliance period. He shall complete the card by attesting under oath that he has complied with the education requirement or that he is exempt, specifying the nature of the exemption. Such Compliance Card must be returned to the address indicated therein not later than the day after the end of the member's compliance period. 

Section 2. Member record keeping requirementchan robles virtual law library

Each member shall maintain sufficient record of compliance or exemption, copy furnished the MCLE Committee. The record required to be provided to the members by the provider pursuant to Section 3(c) of Rule 9 should be sufficient record of attendance at a participatory activity. A record of non-participatory activity shall also be maintained by the member, as referred to in Section 3 of Rule 5. 

RULE 12 NON-COMPLIANCE PROCEDURES

Section 1. What constitutes non-compliance

The following shall constitute non-compliance: 

(a) Failure to complete the education requirement within the compliance period; 

(b) Failure to provide attestation of compliance or exemption; 

(c) Failure to provide satisfactory evidence of compliance (including evidence of exempt status) within the prescribed period; 

(d) Failure to satisfy the education requirement and furnish evidence of such compliance within sixty (60) days from receipt of a non-compliance notice; chan robles virtual law library

(e) Any other act or omission analogous to any of the foregoing or intended to circumvent or evade compliance with the MCLE requirements.chan robles virtual law library

Section 2. Non-compliance notice and 60-day period to attain compliance

A member failing to comply will receive a Non-Compliance Notice stating the specific deficiency and will be given sixty (60) days from the date of notification to explain the deficiency or otherwise show compliance with the requirements. Such notice shall contain, among other things, the following language in capital letters: 

YOUR FAILURE TO PROVIDE ADEQUATE JUSTIFICATION FOR NON-COMPLIANCE OR PROOF OF COMPLIANCE WITH THE MCLE REQUIREMENT BY (INSERT DATE 60 DAYS FROM THE DATE OF NOTICE), SHALL BE A CAUSE FOR LISTING AS A DELINQUENT MEMBER. 

The Member may use this period to attain the adequate number of credit hours for compliance. Credit hours earned during this period may only be counted toward compliance with the prior compliance period requirement unless hours in excess of the requirement are earned, in which case, the excess hours may be counted toward meeting the current compliance period requirement.

RULE 13 CONSEQUENCES OF NON-COMPLIANCE

Section 1. Non-compliance fee

A member who, for whatever reason, is in non-compliance at the end of the compliance period shall pay a non-compliance fee.

Section 2. Listing as delinquent member

Any member who fails to satisfactorily comply with Section 2 of Rule 12 shall be listed as a delinquent member by the IBP Board of Governors upon the recommendation of the MCLE Committee, in which case, Rule 139-A of the Rules of Court shall apply. 

RULE 14 REINSTATEMENT

Section 1. Process

The involuntary listing as a delinquent member shall be terminated when the member provides proof of compliance with the MCLE requirement, including payment of non-compliance fee. A member may attain the necessary credit hours to meet the requirement for the period of non-compliance during the period the member is on inactive status. These credit hours may not be counted toward meeting the current compliance period requirement. Credit hours attained during the period of non-compliance in excess of the number needed to satisfy the prior compliance period requirement may be counted toward meeting the current compliance period requirement.chan robles virtual law library

Section 2. Termination of delinquent listing administrative process

The termination of listing as a delinquent member is administrative in nature but it shall be made with notice and hearing by the MCLE Committee. 

RULE 15 MANDATORY CONTINUING LEGAL EDUCATION COMMITTEE

Section 1. Composition

The MCLE Committee shall be composed of five (5) members, namely: a retired Justice of the Supreme Court, as Chair, and four (4) members, respectively, nominated by the IBP, the Philippine Judicial Academy, a law center designated by the Supreme Court and associations of law schools and/or law professors. 

The members of the Committee shall be of proven probity and integrity. They shall be appointed by the Supreme Court for a term of three (3) years and shall receive such compensation as may be determined by the Court.

Section 2. Duty of the Committee

The MCLE Committee shall administer and adopt such implementing rules as may be necessary subject to the approval by the Supreme Court. It shall, in consultation with the IBP Board of Governors, prescribe a schedule of MCLE fees with the approval of the Supreme Court.

Section 3. Staff of the IBPchan robles virtual law library

The IBP shall employ such staff as may be necessary to perform the record-keeping, auditing, reporting, approval and other necessary functions. 

Section 4. Submission of annual budget

The IBP shall submit to the Supreme Court an annual budget for a subsidy to establish, operate and maintain the MCLE Program.

This resolution shall take effect in October 2000, following its publication in two (2) newspaper of general circulation in the Philippines.

Adopted this 22nd day of August, 2000. chan robles virtual law library

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur. 

THIRD DIVISION

G.R. No. 129090. April 30, 2003]

RICARDO B. GONZALES, Petitioner, v. COURT OF APPEALS and THE HEIRS OF CONSOLACION C. DE GUZMAN,Respondents.

D E C I S I O N

CORONA, J.:

Before us is a petition for certiorari of the resolution[1 of the Court of Appeals denying petitioners motion for extension of time to file appellants brief and, ultimately, dismissing petitioners appeal from the decision[2 of the Regional Trial Court of Manila, Branch XXIV, in Civil Case No. 91-57572. Petitioners motion for reconsideration of the assailed resolution was denied on March 31, 1997.[3

The undisputed facts follow.

Dr. Consolacion C. de Guzman, who died while this case was pending appeal before this Court and is now substituted by respondent heirs,[4 filed a complaint for damages against petitioner Dr. Ricardo B. Gonzales based on five causes of action. The trial court enumerated the same as follows:

The first cause consists in the act of the defendant in issuing and implementing Hospital Order No. 4, Series of 1990, which allegedly removed the defendant (sic) from a position as Head of the Department of Obstetrics & Gynecology in the Fabella Hospital which was issued unwarrantedly, maliciously and in wanton disregard of plaintiffs constitutional rights, and is a forced demotion in rank, function and status, and subjected plaintiff to social humiliation and embarrassment before all doctors,

and members of all hospital staff and employees of Fabella Hospital, and caused plaintiff mental anguish, anxiety and sleepless nights. The second cause of action is the allegation in the complaint that the filing by the defendant of the P6 Million libel case against the plaintiff in the Quezon City Fiscals Office which likewise caused plaintiff to suffer damages and incur attorneys fees. The third cause of action consists in the filing by the defendant of the administrative case with the Department of Health for grave misconduct and conduct prejudicial to the best interest of the service. And the fourth cause of action is the filing by the defendant of the complaint with the Philippine Obstetrics & Gynocology Society for cancellation of the plaintiffs membership as fellow. And the last cause of action is the filing by the defendant of the administrative case with the Philippine Regulatory Commission, to cancel plaintiffs license to practice her profession as a Doctor of Medicine.[5

On April 7, 1995, the trial court rendered a decision in favor of the deceased plaintiff. The dispositive portion of the said decision read:

Accordingly, the Court awards to the plaintiff and against the defendant the amount of P290,000.00 representing attorneys fees and costs of litigation, by way of actual damages and to compensate plaintiff for the pain, suffering and mental anguish she underwent by reason of the unwarranted filing of the administrative cases against her by the defendant, the Court orders defendant to pay plaintiff the amount of P1,000,000,000 (sic) as moral damages and likewise orders the defendant to pay the amount of P100,000.00 as exemplary damages. All amounts awarded to the plaintiff to bear interest at the legal rate from the date of this decision up to the time of actual payment.6

Petitioner appealed the said decision to the Court of Appeals. On February 21, 1996, the appellate court sent by registered mail to Atty. Ruben Almadro, petitioners counsel, a notice requiring him to file the appellants brief within 45 days from receipt thereof. According to the postmasters certification, the notice was received on February 26, 1996 by a certain Vicente Mendoza at the residence of Atty. Almadro. The petitioner therefore had 45 days from February 26, 1996 or up to April 11, 1996 to file the appellants brief.

Three months after the expiration of the 45-day period, on July 12, 1996, Atty. Almadro filed a motion for extension of time to file the appellants brief. He alleged that it was only on July 11, 1996, while in the process of transferring his case records and files from his old office to a new one, that he found the unopened letter-envelope sent by the appellate court requiring him to file the appellants brief within 45 days from receipt of the notice. Atty. Almadro surmised that the letter-envelope must have been received by a former househelp who failed to bring it to his attention. He also alleged that there was no indication by his househelp of the exact date of receipt of the said letter. He thus prayed that he be given another period of 30 days from July 12, 1996 or until August 11, 1996 within which to file the appellants brief.

On July 23, 1996, Dr. de Guzman moved to dismiss the appeal on the ground that the petitioners motion for extension of time for filing the brief was filed after the lapse of the original period.

On August 12, 1996, Atty. Almadro filed a manifestation stating that, since August 11, 1996 was a Sunday, he filed thru registered mail two copies of the appellants brief on August 10, 1996. He also manifested that he was filing seven other copies of the appellants brief to complete a total of nine copies, together with the affidavit of service to counsel for then respondent Dr. de Guzman.

On October 10, 1996, respondent Dr. de Guzman filed another motion reiterating her previous motions to dismiss, to expunge the appeal from the records and for the issuance of an entry of judgment.

On December 13, 1996, the appellate court issued a resolution, the dispositive portion of which read:

WHEREFORE, motion for time to file appellants brief is hereby DENIED, for lack of merit, and the appeal is DISMISSED. The appellants brief filed out of time is ordered expunged from the record of the case.

IT IS SO ORDERED.[7

In dismissing the appeal, the appellate court held that:

Section 15, Rule 46 of the Rules of Court states that Extension of time for the filing of briefs will not be allowed, except for good and sufficient cause, and only if the motion for extension is filed before the expiration of time sought to be extended. Defendant-appellant may secure several extensions to file brief provided each extension is predicated on good and sufficient cause and application for extension is filed before the time sought to be extended expires (Gregorio vs. Court of Appeals, 172 SCRA 120-121 cited in Moran, Comments on the Rules of Court, Volume 2, 1979 Edition, p. 489). When defendant-appellant filed a motion for time to file appellants brief on July 12, 1996, 92 days had elapsed since the last day to file appellants brief. Hence, this motion cannot be allowed.

Defendant-appellants reason for not filing his motion for extension of time to file appellants brief seasonably is flimsy and puerile, to say the least. For one, counsel for defendant-appellant alleged in his motion that he discovered that unopened letter envelope containing the notice, only on July 11, 1996, while he was in the process of transferring his various case records and files from his present office/residence to a new office. Up to this very day, however, this Court has not received any notice of change of address from counsel. Counsel further contends that the letter envelope must have been received by one of his previous househelps who must have inadvertently failed to bring said mail matter to his attention. The court has no way of knowing whether this is true as counsel himself was merely speculating. Even granting this to be true, this negligence is simply inexcusable. It is the duty of counsel to adopt and strictly maintain a system that efficiently takes into account all court notices sent to him and not simply allow a househelp, without counsels diligent supervision, to receive important court notices.8

Hence, this petition for certiorari under Rule 65 of the Rules of Court based on the following assignments of error:

I

THE FAILURE OF PETITIONER TO FILE HIS APPELLANTS BRIEF WITHIN THE PERIOD REQUIRED BY THE COURT OF APPEALS AND/OR TO SEEK AN EXTENSION WITHIN SAID PERIOD WAS DUE TO EXCUSABLE NEGLECT;

II

THE SETTLED RULE IS THAT LITIGATIONS SHOULD, AS MUCH AS POSSIBLE, BE DECIDED ON THEIR MERITS AND NOT ON TECHNICALITIES; and

III

RULES OF PROCEDURE SHOULD NOT BE APPLIED IN A VERY RIGID, TECHNICAL SENSE ESPECIALLY WHERE, AS IN THE CASE AT BAR, THE APPEAL IS VERY MERITORIOUS.[9

The petitioner imputes grave abuse of discretion amounting to lack of jurisdiction to the appellate court for denying his appeal purely on technical grounds. He argues that the failure of his counsel to get hold of the letter-notice of the appellate court for the filing of the brief was due to excusable neglect. Petitioner likewise contends that the appellate court gravely abused its discretion in not allowing the extension sought by the petitioner and in not admitting the appellants brief inspite of the fact that the respondent heirs substantial rights will not be violated by a contrary ruling. Litigations, according to the petitioner, should as much as possible be decided on their merits and not on technicalities. Rules of procedure should not be applied in a very rigid and technical manner as they are intended to promote, not to defeat, substantial justice.

The crucial issue for consideration is whether the negligence of petitioners counsel was inexcusable, thus rendering his plea for equity unmeritorious.

Section 12, Rule 44 of the 1997 Rules of Civil Procedure provides that:

Sec. 12. Extension of time for filing briefs. Extension of time for the filing of briefs will not be allowed, except for good and sufficient cause, and only if the motion for extension is filed before the expiration of the time sought to be extended. (underscoring supplied)

Clearly, petitioners counsel was negligent in not filing the motion for extension of time to file the appellants brief within the 45-day period from the date of receipt of notice as required by Section 7, Rule 44 of the 1997 Rules of Civil Procedure. Petitioners counsel, however, blames his househelp who allegedly forgot to give him the said notice or to call his attention to it. Said counsel allegedly discovered the same only when he was arranging his files after transferring to his new office.

We hold that an attorney owes it to himself and to his clients to adopt an efficient and orderly system of receiving and attending promptly to all judicial notices. He and his client must suffer the consequences of his failure to do so particularly where such negligence is not excusable as in the case at bar.[10 A lawyer can adopt an efficient way of handling court mail matters even if his residence also serves as his office. If petitioners counsel was not informed by his house-help of the notice which eventually got misplaced in his office files, said counsel has only himself to blame for entrusting the matter to an incompetent or irresponsible person.

Aside from his failure to adopt an organized and efficient system of managing his files and court notices, we also note that petitioners counsel, Atty. Almadro, allowed one year to lapse before he again acted on the appeal of his client. The trial court rendered the decision against the petitioner on April 7, 1995. Petitioner must have appealed the same either in June or July of the same year. Subsequently, the notice to file the appellants brief was received by the househelp of Atty. Almadro, petitioners counsel, on February 21, 1996. It was only on July 11, 1996 that Atty. Almadro claims to have discovered the notice. From the time he must have filed his appeal sometime in June or July of 1995 up to the time of the alleged discovery on July 11, 1996, Atty. Almadro apparently never bothered to check why he had not received any notice for the filing of his clients (appellants) brief.

The legal profession demands of a lawyer that degree of vigilance and attention expected of a good father of a family and should adopt the norm of practice expected of men of good intentions. In other words, a lawyer must always be protective of the interests of his clients as a good father would be protective of his own family.[11 Atty. Almadros actuation evidently shows his lack of interest in protecting and fighting for his clients interests.

WHEREFORE, premises considered, the petition for certiorari of the resolutions of the Court of Appeals is hereby DISMISSED. With costs against the petitioner.

SO ORDERED.

Puno, (Chairman), Panganiban, Sandoval-Gutierrez, and Carpio-Morales, JJ., concur.

EN BANC

[G. R. Nos. 146464-67.  November 15, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE VILLANUEVA, accused-appellant.

D E C I S I O N

PER CURIAM:

The words detestable, condemnable, abhorrent, disgusting, and abominable are not enough to describe a rape committed by a father against his own progeny.  Indeed, the proliferation of incestuous rape is a revolting phenomenon in a catholic country like the Philippines.[1] It is beyond comprehension that the Filipino values, close-family-ties culture, and religious beliefs inculcated in every Filipino could in some, like herein accused-appellant Jose Villanueva (hereafter JOSE), be easily outweighed or overshadowed by beastly sexual desires - and, worse, against one’s own flesh and blood.

Four Informations docketed as Criminal Cases Nos. 8355,[2] 8356,[3] 8357[4] and 8358[5] were filed before the Regional Trial Court of Legazpi City charging JOSE with rape allegedly committed against her own daughter Gina Villanueva (hereafter GINA) as follows:

Criminal Case No. 8355

That on October 8, 1995 at around 5:00 o’clock in the evening, more or less, at Sitio Recudo, Barangay Calanaga, Municipality of Rapu-Rapu, Province of Albay, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd and unchaste design, by means of force, threat and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge with his 10-year-old daughter GINA VILLANUEVA, against her will and consent, to her damage and prejudice.

ACTS CONTRARY TO LAW.

Criminal Case No. 8356

That sometime in the month of September 1995, at around 12:00 noon, more or less, at Sitio Palo, Barangay Calanaga, Municipality of Rapu-Rapu, Province of Albay, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd and unchaste design, by means of force, threat and intimidation did then and there willfully, unlawfully and feloniously poke a knife at her own daughter, GINA VILLANUEVA, 10 years of age, and then undress her and succeed in having carnal knowledge with her, against her will and consent, to her damage and prejudice.

ACTS CONTRARY TO LAW.

Criminal Case No. 8357

That sometime in August. 1995, in the evening, at Sitio Palo, Barangay Calanaga, Municipality of Rapu-Rapu, Province of Albay, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd and unchaste design, did then and there willfully, unlawfully and feloniously have carnal knowledge with her own 10-year-old daughter GINA VILLANUEVA while the latter was sleeping or otherwise unconscious, against her will and consent, to her damage and prejudice.

ACTS CONTRARY TO LAW.

Criminal Case No. 8358

That in the evening of April 18, 1998, at Sitio Recudo, Barangay Calanaga, Municipality of Rapu-Rapu, Province of Albay, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd and unchaste design, by means of force, threat and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge with his own 12-year old-daughter, GINA VILLANUEVA, against her will and consent, to her damage and prejudice.

ACTS CONTRARY TO LAW.

The cases were consolidated and jointly tried.  At his arraignment on 26 March 1999, JOSE entered a plea of “not guilty” in each case.[6]

At the pre-trial, the parties admitted that GINA was a minor, who was born on 23 May 1985.  They further admitted the identities of the parties.[7]

The witnesses presented by the prosecution were complainant GINA; Raymundo Sarga, Jr., a National Bureau of Investigation (NBI) investigator; Vilma Villanueva, the older sister of GINA and daughter of JOSE; and Dr. Lilli-Melrose Camara, the medico-legal officer who examined GINA.

GINA testified that sometime in August 1995, at around 5:30 A.M., in their house in Palo, Calanaga, Rapu-Rapu, Albay, she woke up and saw her father JOSE standing naked in front of her with his penis erect.  He forcibly removed her dress and panty, and laid down with her.  She tried to avoid him by pushing him.  She complained and told him that this was enough because he had already done the same to her two elder sisters.  Still, JOSE persisted and inserted his penis into her vagina against her will.  He then made push and pull movements, causing pain to her vagina.  Thereafter, he threatened her with a knife and told her that he would kill her if she reported the matter to anyone.[8]

On cross-examination, however, GINA admitted that she was unconscious at the time JOSE was satisfying his sexual desire.  She clarified that she was awakened when he was undressing her.  She tried to resist him, but she lost consciousness when he placed a piece of cloth on her mouth, which smelled like gin that caused her to sleep

again.  It was when she regained consciousness that she saw JOSE standing naked in front of her with his penis erect.  GINA knew that she was raped because she felt pain inside her vagina and there was blood flowing therefrom. She also noticed something whitish coming out from JOSE’s penis.[9]

GINA further declared that at the time the foregoing incident took place only she, JOSE and her younger sister Alma were in the house.  Her mother and her two elder sisters were then in Tabaco, Albay, to buy something.  When her mother Rosalina arrived, GINA reported to the latter the sexual assault committed by JOSE. Rosalina told GINA that she would be the one to take care of it.  However, Rosalina just remained silent because she herself was also threatened by JOSE.[10]

The second time JOSE raped her, according to GINA, was sometime in September 1995, at 12:00 noon.  At that time, she was alone with JOSE in their house in Palo, Calanaga, Rapu-Rapu, Albay.  Her mother was washing their laundry in the well, together with her younger sister; and her two elder sisters were in school.  While GINA was sitting at the porch, JOSE held her two hands and pulled her to the bedroom.  She pushed him and tried to free herself from his hold, but he was far stronger than her.  She shouted but not loud enough because JOSE, who was holding a knife, threatened to kill her if she would create any noise.  He then forcibly removed her dress and panty, mounted her, and inserted his penis into her vagina.  She felt something warm come out from his penis while it was inside her vagina.[11]

The third rape allegedly took place on 8 October 1995 at 5:00 P.M. in their house.  On that occasion, her mother and younger sister were in their neighbor’s house, while her two elder sisters were sent out by their father on an errand to borrow a hammer from a certain Manay Rolly, whose house was very far from theirs.  JOSE brought her from the porch to the bedroom.  She resisted and cried, telling him to have pity on her, but he did not heed her plea.  After undressing her, he placed himself on top of her and inserted his penis into her vagina.  She could not shout because he placed a hand on her mouth; she just kept on crying.  She did not report to her mother the incident because of JOSE’s threat to kill them.[12]

The fourth time GINA was allegedly raped by JOSE was on 18 April 1998 at 8:00 P.M., also in their house in Palo, Calanaga.  At that time, her mother and her 10-year-old sister were sleeping.  GINA was not able to shout because JOSE placed a piece of cloth on her mouth.  As in the other rape incidents, she resisted by kicking and scratching him.  He, however, succeeded in removing her dress and panty and in inserting his penis into her vagina.  After he finished his bestial act, he sat beside her and told her to suck his penis.  She refused and he left.[13]

Four days thereafter, at dawn, GINA left her parents’ house without permission.  She went to her uncle Efren Sarza, who in turn brought her to her grandfather Franciso Sarza or Lolo Kikoy. With the help of Lolo Kikoy and the Barangay Captain of Sagrada, she reported the rape incidents to the NBI in Legazpi City, [14] where she executed a sworn statement.[15]

Raymundo D. Sarga, Jr., testified that he was the one who took the sworn statement of GINA on 22 April 1998 at the headquarters of the NBI in Legazpi City.  On

the basis of GINA’s sworn statement and the medical examination conducted by a doctor from the Philippine National Police Crime Laboratory at Camp Simeon Ola, Legazpi City, he filed a complaint for rape against JOSE before the Municipal Trial Court of Rapu-Rapu.[16]

Vilma Villanueva testified that she was told by GINA of the four incidents of rape committed by JOSE.  One time, she saw his father naked from waist down, with GINA seated near him.  She and her other sister Salvacion were also raped by him.  She was 12 years old when JOSE started subjecting her to a series of sexual assaults.  While she was aggrieved by her father’s acts, she never thought of going to somebody to ask for help because of his threats.  Since her father is already detained, she would file charges against him.[17]

Dr. Lilli-Melrose Camara, a medico-legal officer of the PNP Technical Service Crime Laboratory, testified that she examined GINA sometime in April 1998.  The examination results revealed that GINA was in a non-virgin state and that she had healed hymenal lacerations at 7:00 and 9:00 o’clock positions. These lacerations could have been caused by any blunt instrument or a penis.[18]

The witnesses presented by the defense were GINA’s eldest sister, Salvacion Calaes; her youngest sister, Alma Villanueva; her mother, Rosalina Villanueva; and her father, accused-appellant JOSE.

Salvacion denied having told GINA and Vilma that she was raped by JOSE. She left their home because she had to work.  GINA left their home on 21 April 1998 and testified against JOSE because the latter was very strict.  She likewise asserted that Vilma could not have seen JOSE rape GINA in 1995 because she (Vilma) was then working in Tabaco, Albay, as a household helper.[19]

On cross-examination, Salvacion admitted that she loved her father very much.  She volunteered to testify for him because she did not want her father to suffer the same fate as that of Leo Echegaray, who was put to death by lethal injection for raping his own daughter.[20]

Alma Villanueva testified that she was staying with her sister Salvacion in Panal, Tabaco, Albay, to take care of Salvacion’s children.  She denied having been abused by her father.  She testified that she went with her mother and father to look for GINA, who had escaped after their parents refused to grant her permission to work.  Alma admitted that she loved her father so much that she did not want him to go to jail. [21]

Rosalina Villanueva declared that GINA was born on 11 October 1982.  She was married to JOSE on 15 August 1978. GINA never revealed to her that JOSE raped her.  The testimony of GINA that she was raped by JOSE in August and September 1995 in Sitio Palo, Calanaga, Rapu-Rapu, Albay, is not true because they never resided in Sitio Palo; their house was in Sitio Recudo.  For unknown reasons, GINA left their home on 21 April 1998 without asking permission from her, and they tried to look for her.  When she saw GINA a week after JOSE was detained, she asked her why she filed cases against her father.  GINA informed her that it was Lolo Kikoy, with whom GINA was staying, who instigated her to file the case.  She did not know the motive of

Lolo Kikoy in inducing GINA to file the cases against JOSE.  When she asked Francisco about it the latter answered that it was because JOSE was very strict.[22]

JOSE declared that GINA is his legitimate daughter with Rosalina Villanueva.  He was married to Rosalina Villanueva in August 1978.  He denied the four charges of rape.  He declared that he could not do that to GINA; besides, they did not have a house in Sitio Palo.  He could not have committed the rape on 18 April 1998 because GINA was not at home when he arrived from fishing.  She attended a dance at Batan, Rapu-Rapu, Albay, which was two kilometers away from their house, and she arrived home only the following morning.  Two days thereafter, she escaped presumably because he did not allow her to stay at her aunt’s house in Sto. Domingo, Albay.  It was his plan to bring her back home, but her aunt Gina Sarza refused to yield custody over GINA.  JOSE asserted that GINA filed these cases against him because of his refusal to allow her to live with her aunt in Sto. Domingo and to attend a dance.[23]

The trial court gave full faith and credence to the testimony of GINA.  It found GINA’s testimony “categorical, unequivocal, candid and straightforward.”  On the other hand, it found JOSE’s defense of denial “contrived and implausible.”  Thus, in its 2 October 2000 joint decision,[24]the trial court convicted JOSE of four counts of rape and sentenced him in each count to suffer the penalty of death and to pay GINA the amounts of P75,000 as indemnity; P50,000 as moral damages; and P20,000 as exemplary damages.

In view of the imposition of the death penalty, the case is before us for automatic review pursuant to Article 47 of the Revised Penal Code, as amended.

In the Appellant’s Brief, JOSE contends that the trial court erred

I.   ... IN FINDING THE ACCUSED FATHER GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF QUALIFIED RAPE ON FOUR (4) COUNTS WHEN THE FOUR (4) COMPLAINTS FOR RAPE DULY SIGNED, SUBSCRIBED AND SWORN TO BY THE OFFENDED PARTY FAILED TO ALLEGE QUALIFYING CIRCUMSTANCES.

II.  ... IN CONSIDERING THE COMPLAINTS FOR RAPE DESPITE THE LAPSE OF TIME THAT HAS OCCURRED FROM THE TIME IT HAPPENED TO THE REPORTING OF THE SAME TO THE POLICE AUTHORITIES.

In support of his first assigned error, JOSE argues that the death penalty should not be imposed on him because the sworn complaints which were the basis of the four informations did not allege the qualifying circumstances of relationship and minority.

Anent the second assigned error, JOSE posits that the delay of GINA in reporting the rape incidents puts her story in serious doubt.  If the rapes actually happened, there was no reason for GINA to delay the reporting.  She could even have prevented the other rapes if only she reported the rape allegedly committed in August 1995.

In his Reply Brief, JOSE further argues that the rapes have not been duly proved beyond reasonable doubt.  He wonders why GINA did not escape after the first rape, but instead she tolerated his behavior and relied on him for her basic needs of food, clothing, and shelter.

In the Appellee’s Brief, the Office of the Solicitor General (OSG) counters that JOSE’s argument on the first issue is off-tangent.  The four informations upon which JOSE was arraigned and to which he entered his plea contain all the allegations of qualified rape.  On the second issue, the OSG maintains that the delay of GINA in reporting the rape incidents neither created any doubt over her credibility, nor could it be taken against her, especially since the accused is her father.

At the heart of almost all rape cases is the issue of credibility of the witnesses.  Such issue is resolved primarily by the trial court because it is in a better position to decide the same, having heard the witnesses and observed their deportment and manner of testifying.  Accordingly, its findings are entitled to the highest degree of respect and will not be disturbed on appeal in the absence of any showing that the trial court overlooked, misunderstood, or misapplied some facts or circumstances of weight or substance which would otherwise affect the result of the case. [25] None of the exceptions exists in the case at bar.

Through the testimony of GINA, which the trial court found to be clear and worth believing, the prosecution has adequately proved the commission of the rapes by her father JOSE.  For the three rape incidents that occurred in 1995, when GINA was just 10 years of age, no proof of force and intimidation is necessary.  Under the first paragraph of Article 335, Revised Penal Code, as amended, rape is committed by having carnal knowledge of a woman under 12 years old.  As to the rape on 18 April 1998 when GINA was already 12 years of age, no clear evidence of force and intimidation could be found in her testimony; but she testified that she put up resistance by kicking and scratching her father. In any event, her father’s moral ascendancy and influence over her substituted for violence and intimidation.[26]

Anent the first assigned error, the same is bereft of merit. JOSE was arraigned and tried not under the sworn complaints, but under the informations which alleged the qualifying circumstances of minority and relationship.  The informations in Criminal Cases No. 8355, 8356 and 8357 for the rapes committed in 1995 stated that GINA was 10 years old, while the information in Criminal Case Nos. 8358 for the rape in 1998 alleged that she was 12 years old.  All informations specifically alleged that JOSE is GINA’s father.  He was therefore fully acquainted with the nature of the crime and the qualifying circumstances attendant in its commission as to enable him to adequately prepare for his defense.  Hence, his constitutional right to be informed of the nature and cause of the accusation against him cannot be said to have been violated.

GINA’s minority was not only admitted by the parties at the pre-trial, but was also conclusively established by her Birth Certificate [27] issued by the Municipal Civil Registrar of Rapu-Rapu, Albay, which shows that GINA was born on 23 May 1985.  Indeed, as alleged in the informations, she was 10 years old in 1995 when the first three rape incidents occurred, and 12 years old on 18 April 1998 when the fourth rape was committed against her.

Likewise, JOSE’s relationship to GINA was sufficiently proved. GINA’s testimony and her Birth Certificate show that JOSE is her father. JOSE himself and his wife Rosalina expressly admitted such fact.

And now on the second assigned of error.  The silence of a rape victim or her failure to disclose her misfortune to the authorities does not prove that the charges are baseless and fabricated.  The victim would rather bear the ignominy and pain in private than reveal her shame to the world or risk the rapist’s making good the threat to hurt her.[28] With more reason would a girl who was ravished by her own father keep quiet about what befell her.  Thus, the delay in reporting a rape case committed by a father against his daughter due to threats is justified.[29]

As to GINA’s failure to escape or leave their house after the first rape, the same could hardly undermine the charges of rape.  It must be noted that she was just 10 years old then and she was still fully dependent on her father for sustenance and support.  Furthermore, it is unfair to judge the action of children who have undergone traumatic experiences by the norms of behavior expected of mature individuals under the same circumstances.[30] At any rate, GINA managed to escape after the fourth rape when she was already 12 years old.

JOSE’s insinuation of ill-motive on the part of GINA to falsely accuse him of rape deserves scant consideration.  We agree with the trial court that “[t]he attributed ill-will, even if the same is true,...[would] not drive GINA to denounce and pin down [her] father with so serious a crime that could forfeit not only his personal liberty but his human existence as well.”

In previous cases, we held that parental punishment or disciplinary chastisement is not enough reason for a daughter in a Filipino family to falsely accuse her father of rape. She would not subject herself to an examination of her private parts, undergo the trauma and humiliation of a public trial, and embarrass herself with the need to narrate in detail how she was raped if she was not in fact raped. [31] It takes depravity for a young girl to concoct a tale of defloration, which would put her own father on death row, drag herself and the rest of her family to a lifetime of shame, and make them the object of gossip among their classmates and friends.[32]

On JOSE’s defense of denial, we have time and again ruled that mere denial cannot prevail over the positive testimony of a witness.  A mere denial, just like alibi, is a self-serving negative evidence, which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters.  As between a categorical testimony that rings of truth on one hand, and a bare denial on the other, the former is generally held to prevail. [33] Thus, JOSE’s denial cannot outweigh the declaration of GINA on affirmative matters.

There being proof beyond reasonable doubt that JOSE committed all the crimes charged, we have no choice but to affirm his conviction.  We cannot modify the death penalty imposed by the trial court on him because the twin qualifying circumstances of minority and relationship were properly alleged and adequately proved.  Anent his civil liability, the trial court’s ruling thereon stands except as to the award of exemplary damages, which must be increased from P20,000 to P25,000 pursuant to current jurisprudence.

WHEREFORE, the judgment of the Regional Trial Court of Legazpi City, Branch I, in Criminal Cases Nos. 8355, 8356, 8357 and 8358 finding accused-appellant JOSE

VILLANUEVA guilty beyond reasonable doubt of four counts of rape and sentencing him in each case to suffer the penalty of death and to pay GINA VILLANUEVA the sum of P75,000 as indemnity ex delicto and P50,000 as moral damages is AFFIRMED, with the modification that the award of exemplary damages is increased to P25,000 in each case.

Costs de officio.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Morales, Callejo, Sr., and Azcuna, JJ., concur.

[1] People   v.   Cabanela , 299 SCRA 153, 155 [1998].

[2] Original Records (OR), Criminal Case No. 8355, 58; Rollo, 5.

[3] OR, Criminal Case No. 8356, 73; Rollo, 6.

[4] OR, Criminal Case No. 8357, 65; Rollo, 7.

[5] OR, Criminal Case No. 8358, 50; Rollo, 8.

[6] OR, Criminal Case No. 8355, 69; OR, Criminal Case No. 8356, 78; OR, Criminal Case No. 8357, 70; OR, Criminal Case No. 8358, 56.

[7] OR, Criminal Case No. 8355, 79.

[8] TSN, 5 May 1999, 4-9.

[9] TSN, 6 May 1999, 7-8, 11-13.

[10] Id., 13-14; TSN, 5 May 1999, 5, 13.

[11] TSN, 5 May 1999, 14-17;TSN,6 May 1999, 19-23.

[12] TSN, 5 May 1999,18-21.

[13] TSN, 5 May 1999, 23-26.

[14] TSN, 6 May 1999, 3-5.

[15] Exhibit “B,” OR, Criminal Case No. 8355, 5-7.

[16] TSN, 13 May 1999, 3-7.

[17] TSN, 13 May 1999, 11-19, 23-27.

[18] TSN, 19 May 1999, 5-9.

[19] TSN, 23 July 1999, 4-9.

[20] Id., 10-11.

[21] TSN, 6 October 1999; 3-8,10, 12-13.

[22] TSN, 12 January 2000,3-12.

[23] TSN, 3 March 2000, 3-17.

[24] OR, Criminal Case No. 8355, 137-159; Rollo, 18-40. Per Judge Romeo S. Dañas.

[25] People   v.   Delos Santos, G.R. No. 137968 , 6 November 2001, citing People   v.   Manahan , 315 SCRA 476, 481 [1999].

[26] People   v.   Docena , 322 SCRA 820,830 [2000]; People   v.   Ardon , 354 SCRA 609, 622 [2001]; People   v.   Remudo, G.R. No. 127905 , 20 August 2001.

[27] Exhibit “A,” OR, Criminal Case No. 8357, 2.

[28] People v. Alvero, 329 SCRA 737, 754 [2001]; People v. Ardon, supra note 26, at 623.

[29] People v. Matrimonio, 215 SCRA 613, 633 [1992].

[30] People v. Alimon, 257 SCRA 658, 674 [1996]; People   v.   Mosqueda , 313 SCRA 694, 708 [1999]; People   v.   Panganiban, G.R. Nos. 138439-41 , 25 June 2001.

[31] People   v.   Gonzales , 338 SCRA 678, 688-689 [2000]; People   v.   Bertulfo, G.R. No. 143790 , 7 May 2002.

[32] People   v.   Cabanela , 299 SCRA 153, 161 [1998]; People   v.   Magdato , 324 SCRA 785, 797 [2000]; People v. Ardon, supra note 26, at 624.

[33] People   v.   Villanueva , 339 SCRA 482, 501 [2000]; People   v.   Alvero , 329 SCRA 737, 756 [2000]; People   v.   Ugang, G.R. No. 144036 , 5 May 2002.

FIRST DIVISION

[A.C. No.  4215.  May 21, 2001]

FELICISIMO M. MONTANO, complainant, vs. INTEGRATED BAR of the PHILIPPINES AND Atty. JUAN S. DEALCA, respondents.

R E S O L U T I O N

KAPUNAN, J.:

In a verified complaint filed before this Court on March 9, 1994, complainant Felicisimo M. Montano charged Atty. Juan Dealca with misconduct and prays that he be “sternly dealt wit administratively.” The complaint[1] is summarized as follows:

1.  On November 14, 1992, the complainant hired the services of Atty. Juan S. Dealca as his counsel in collaboration with Atty. Ronando L. Gerona in a case pending before the Court of Appeals docketed as CA-G.R. CV No. 37467 wherein the complainant was the plaintiff-appellant.

2.  The parties agreed upon attorney’s fees in the amount of P15,000.00, fifty percent (50%) of which was payable upon acceptance of the case and the remaining balance upon the termination of the case.  Accordingly, complainant paid respondent the amount of P7,500.00 representing 50% of the attorney’s fee.

3.            Thereafter, even before the respondent counsel had prepared the appellant’s brief and contrary to their agreement that the remaining balance be payable after the termination of the

case, Atty. Dealca demanded an additional payment from complainant.  Complainant obliged by paying the amount of P4,000.00.

4.  Prior to the filing of the appellant’s brief, respondent counsel again demand payment of the remaining balance of 3,500.00.  When complainant was unable to do so, respondent lawyer withdrew his appearance as complainant’s counsel without his prior knowledge and/or conformity.  Returning the case folder to the complainant, respondent counsel attached a Note dated February 28, 1993,[2] stating:

28 February 1994

Pepe and Del Montano,

For breaking your promise, since you do not want to fulfill your end of the bargain, here’s your reward:

Henceforth, you lawyer for yourselves.  Here are your papers.

Johnny

Complainant claimed that such conduct by respondent counsel exceeded the ethical standards of the law profession and prays that the latter be sternly dealt with administratively.  Complainant later on filed motions praying for the imposition of the maximum penalty of disbarment.

After respondent counsel filed his comment on the complaint, the Court in the Resolution of August 1, 1994, referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.

The Investigating Commissioner found respondent counsel guilty of unprofessional conduct and recommended that he be “severely reprimanded.” However, in a Resolution [3] by the IBP Board of Governors on July 26, 1997, it was resolved that the penalty recommended by the Investigating Commissioner meted to respondent by amended to “three (3) months suspension from the practice of law for having been found guilty of misconduct, which eroded the public confidence regarding his duty as a lawyer.”

Respondent counsel sought reconsideration of the aforementioned resolution of the IBP, alleging that the latter misapprehended the facts and that, in any case, he did not deserve the penalty imposed.  The true facts, according to him, are the following:

1. Complainant is being represented by Atty. Ronando L. Gerona in his case on appeal;

2. Due to the ailment of Atty. Gerona’s daughter, he could not prepare and submit complainant’s appellant’s brief on time;

3. Complainant went to the respondent to do just that, i.e., prepare and submit his appellant’s brief on time at the agreed fee of P15,000.00, 50% down and 50% upon its completion;

4. Working overtime, respondent was able to finish the appellant’s brief ahead of its deadline, so he advised the complainant about its completion with the request that the remaining

balance of P7,500.00 be paid.  Complainant paid P4,000.00 only, promising to pay the P3,500.00 “tomorrow” or on “later particular date.”  Please take note that, at this juncture, there was already a breach of the agreement on complainant’s part.

5. When that “tomorrow” or on a “later particular date” came, respondent, thru a messenger, requested the complainant to pay the P3,500.00 as promised but word was sent that he will again pay “tomorrow” or on  “later date.”  This promise-non-payment cycle went on repeatedly until the last day of the filing of the brief.  Please take note again that it was not the respondent but the complainant who sets the date when he will pay, yet fails to pay as promised;

6. Even without being paid completely, respondent, of his own free will and accord, filed complainant’s brief on time;

7. After the brief was filed, respondent tried to collect from the complainant the remaining balance of P3,500.00, but the latter made himself scarce.  As the records would show, such P3,500.00 remains unpaid until now;

8. Sensing that something was amiss, respondent sent the February 28, 1993 note and case folder to the complainant, hoping that the latter would see personally the former about it to settle the matter between them;

9. However, instead of seeing the respondent, complainant filed this case;

10. Respondent was constrained to file his withdrawal with the Court of Appeals because of this case to avoid further misunderstanding since he was the one who signed the appellant’s brief although Atty. Gerona was his counsel of record.  Such withdrawal was accordingly granted by the appellate court;

xxx  xxx       xxx.[4]

Respondent counsel further averred that complainant’s refusal to pay the agreed lawyer’s fees, measly as it was, was deliberate and in bad faith; hence, his withdrawal as counsel was “just, ethical and proper.” Respondent counsel concluded that not only was the penalty of suspension harsh for his act of merely trying to collect payment for his services rendered, but it indirectly would punish his family since he was the sole breadwinner with children in school and his wife terminally ill with cancer.

In its Resolution No. XIII-97-129 dated October 25, 1997, the IBP denied Atty. Dealca’s motion for reconsideration, to wit:

xxx

RESOLVED TO DENY Atty. Dealca’s Motion For Reconsideration of the Board’s Decision in the above-entitled case there being no substantive reason to reverse the finding therein.  Moreover, the motion is improperly laid the remedy of the respondent is to file the appropriate pleading with the Supreme Court within fifteen (15) days from receipt of notice of said Decision pursuant to Sec. 12 [c] of Rule 139-B.[5]

On December 10, 1997, this Court noted the following pleadings filed in the present complaint,

(a)  notice and a copy of Resolution No. XII-97-154 dated July 26, 1997 of the Integrated Bar of the Philippines amending the recommendation of the Investigating Commissioner of reprimand to three (3) months suspension of respondent from the practice of law for having been found guilty of misconduct which eroded the public confidence regarding his duty as a lawyer;

(b)  complainant’s motion for praying for the imposition of the maximum penalty of disbarment;

(c)  motion dated September 15, 1997 of respondent for reconsideration of the aforesaid resolution of July 26, 1997;

(d)  comment/opposition of respondent praying that the motion for the imposition of the maximum penalty be denied;

(e)  comment of complainant praying that the penalty of three (3) months suspension for the practice of law as recommended by the Integrated Bar of the Philippines pursuant to Resolution No. XII-97-154 be raised to a heavier penalty;

(f)  comment/manifestation/opposition of complainant praying that the respondent be disbarred; and

(g)  rejoinder of respondent praying that this case be dismissed for being baseless.[6]

and referred the same to the IBP for evaluation and report.

In compliance therewith, on March 28, 1998, the IBP issued Resolution No. XIII-98-42 referring the above-entitled case to Commissioner Vibar for evaluation, report and recommendation “in view of the Motion for Reconsideration granted by the Supreme Court.”

The Investigating Commissioner, after referring the case, recommended that his original recommendation of the imposition of the penalty of reprimand be maintained, noting that respondent counsel had served the IBP well as President of the Sorsogon Chapter. [7] Accordingly, on February 23, 1999, the IBP Board of Governors, issued the following resolution:

RESOLUTION NO. XIII-99-48

xxx

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner in the above-entitled case, herein made part of this Resolution/Decision as Annex “A”; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, the Motion for Reconsideration be granted and that the penalty of REPRIMAND earlier recommended by the Investigating Commissioner be imposed on Atty. Juan S. Dealca.[8]

Complainant asked the IBP to reconsider the foregoing resolution but the motion was denied.[9]

On April 10, 2000, complainant filed with this Court a petition for review on certiorari in connection with Administrative Case No. 4215 against the IBP and respondent counsel averring that the IBP Board of Governors committed grave abuse of discretion when it overturned its earlier resolution and granted respondent counsel’s motion for reconsideration on February 23, 1999.  He claimed that the earlier resolution denying the motion for reconsideration issued on October 25, 1997 had already become final and executory; hence, any further action or motion subsequent to such final and executory judgment shall be null and void.

When the Court issued the resolution of December 10, 1997 treating the several pleadings filed in the present complaint, it should be noted that the IBP resolution denying respondent’s motion for reconsideration (Resolution No. XIII-97-129) dated October 25, 1997, for some reason, had not yet reached this Court.  As of that date, the only IBP resolution attached to the records of the case was Resolution No. XII-97-54 amending the administrative sanction from reprimand to three months suspension.  Hence, at the time the pleadings were referred back to the IBP in the same resolution, the Court was not aware that the IBP had already disposed of the motion for reconsideration filed by respondent counsel.

Thus, when the IBP was informed of the said Court resolution, it construed the same as granting Atty. Dealca’s motion for reconsideration and as an order for IBP to conduct a re-evaluation of the case.  The IBP assumed that its resolution of October 25, 1997 was already considered by this Court when it referred the case back to the IBP.  It failed to notice that its resolution denying the motion for reconsideration was not among those pleadings and resolution referred back to it.

Hence, on the strength of this Court’s resolution which it had inadvertently misconstrued, the IBP conducted a re-evaluation of the case and came up with the assailed resolution now sought to be reversed.  The Court holds that the error is not attributable to the IBP.  It is regrettable that the procedural infirmity alleged by complainant actually arose from a mere oversight which was attributable to neither party.

Going into the merits, we affirm the findings made by the IBP that complainant engaged the services of respondent lawyer only for the preparation and submission of the appellant’s brief and the attorney’s fees was payable upon the completion and submission of the appellant’s brief and not upon the termination of the case.

There is sufficient evidence which indicates complainant’s willingness to pay the attorney’s fees.  As agreed upon, complainant paid half of the fees in the amount of P7,500.00 upon acceptance of the case.  And while the remaining balance was not yet due as it was agreed to be paid only upon the completion and submission of the brief, complainant nonetheless delivered to respondent lawyer P4,000.00 as the latter demanded.  This, notwithstanding, Atty. Dealca withdrew his appearance simply because of complainant’s failure to pay the remaining balance of P3,500.00, which does not appear to be deliberate.  The situation was aggravated by respondent counsel’s note to complainant withdrawing as counsel which was couched in impolite and insulting language.[10]

Given the above circumstances, was Atty. Dealca’s conduct just and proper?

We find Atty. Dealca’s conduct unbecoming of a member of the legal profession.  Under Canon 22 of the Code of Professional Responsibility, lawyer shall withdraw his services only for good cause and upon notice appropriate in the circumstances.  Although he may withdraw his

services when the client deliberately fails to pay the fees for the services, [11] under the circumstances of the present case, Atty. Dealca’s withdrawal was unjustified as complainant did not deliberately fail to pay him the attorney’s fees.  In fact, complainant exerted honest efforts to fulfill his obligation.  Respondent’s contemptuous conduct does not speak well of a member of the bar considering that the amount owing to him was only P3,500.00.  Rule 20.4 of Canon 20, mandates that a lawyer shall avoid controversies with clients concerning his compensation and shall resort to judicial action only to prevent imposition, injustice or fraud.  Sadly, for not so large a sum owed to him by complainant, respondent lawyer failed to act in accordance with the demands of the Code.

The Court, however, does not agree with complainant’s contention that the maximum penalty of disbarment should be imposed on respondent lawyer.  The power to disbar must be exercised with great caution.  Only in a clear case of misconduct that seriously affects the standing and character of the lawyer as an officer of the Court and member of the bar will disbarment be imposed as a penalty.  It should never be decreed where a lesser penalty, such as temporary suspension, would accomplish the end desired.[12] In the present case, reprimand is deemed sufficient.

WHEREFORE, in view of the foregoing, respondent Atty. Juan S. Dealca is REPRIMANDED with a warning that repetition of the same act will be dealt with more severely.

SO ORDERED.

Davide, Jr., C.J. (Chairman), Puno, Pardo, and Ynares-Santiago, JJ., concur.

[1] Rollo, pp. 1-3.

[2] Id., at 4.

[3] Id., at 23.

[4] Id., at 53-55.

[5] Id., at 143.

[6] Id., at 100.

[7] Id., at 117-118.

[8] Id., at 116.

[9] Id., at 150.

[10] See Note 2.

[11] Canon 22, Rule 22.01, (e); see also Orcino vs. Gaspar, 279 SCRA 379 (1997).

[12] Resurreccion vs. Sayson, 300 SCRA 129 (1998).

THIRD DIVISION

[G.R. Nos. 139927 and 139936.  November 22, 2000]

SALVADOR BIGLANG-AWA, REMEDIOS BIGLANG-AWA, petitioners, vs. HON. JUDGE MARCIANO I. BACALLA in his capacity as Presiding Judge of Branch 216 – Regional Trial Court of Quezon City, REPUBLIC OF THE PHILIPPINES (DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS), respondents.

D E C I S I O N

GONZAGA-REYES, J.:

Before us is a petition for certiorari under Rule 65 of the Rules of Court, with a prayer for the issuance of a writ of preliminary injunction, seeking to annul and set aside the Orders of the respondent Court dated August 5, 1998, ordering the issuance of  Writs of Possession of the properties of herein petitioners, and the Order dated August 12, 1998, issuing the corresponding Writs of Possession, as well as the Order dated July 7, 1999, denying the petitioners’ Motion for Reconsideration of the August 5, 1998 Orders.  The petition further prays for the dismissal of Civil Cases Nos. Q-97-31368 and Q-97-31369 for being premature due to failure to comply with the substantive requirements of Executive Order No. 1035 (1985).[1]

The antecedent facts are as follows:

Petitioners Remedios Biglang-awa and Salvador Biglang-awa are the registered owners of certain parcels of land situated in Talipapa, Novaliches, Quezon City.  The parcel of land owned by petitioner Remedios Biglang-awa is covered by T.C.T. No. RT-101389 (362966) with an area of 769 sq. m., while that owned by Salvador Biglang-awa is covered by T.C.T. No. RT-101390 (19352) with an area of 2,151 sq. m.  The government needed to expropriate 558 sq. m. of the aforesaid property of petitioner Remedios Biglang-awa, and 881 sq. m. of that belonging to petitioner Salvador Biglang-awa for the construction of the Mindanao Avenue Extension, Stages II-B and II-C..

On August 29, 1996, the petitioner Remedios Biglang-awa received a Notice from the respondent Republic, through the Department of Public Works and Highways (DPWH) Project Manager Patrick G. Gatan, requiring her to submit the documents necessary to determine the just compensation for her property.[2]

On October 15, 1996, Final Notices, signed by Project Director Cresencio M. Rocamora, were given by the DPWH to the petitioners to submit within five (5) days the pertinent documents, otherwise, expropriation proceedings would be filed against their properties.[3] As the petitioners failed to comply with these final notices, the respondent Republic, through the DPWH, filed with the respondent  Regional Trial Court of Quezon City[4] separate cases for expropriation against the petitioners, docketed as Civil Case Nos. Q-99-31368 and Q-97-31369.

On July 10, 1997, the petitioners received summons from the respondent court, and were ordered to file their respective Answers to the Complaints for expropriation.  The petitioners filed their Answers on August 11, 1997.

Subsequently, the respondent Republic, through the DPWH, deposited with the Land Bank of the Philippines the amounts of P3,964,500.00 and P2,511,000.00 for the properties of Salvador and Remedios Biglang-awa, respectively, based on the appraisal report of the Quezon City Appraisal Committee.

On April 24, 1998, respondent Republic filed separate Motions for the Issuance of Writs of Possession of the properties of the petitioners with the respondent court. The court issued Orders giving the petitioners, through  counsel Atty. Jose Felix Lucero, ten (10) days within which to submit their Opposition to the said motions.  The petitioners failed to file their Opposition to the Motion.

On August 5, 1998, the respondent court issued separate Orders [5] granting the motions for the issuance of writs of possession. Accordingly, the writs of possession were issued by the respondent court on August 12, 1998.[6]

On September 11, 1998, petitioner Remedios Biglang-awa received a Notice to Vacate her property.  A similar Notice was likewise received by petitioner Salvador Biglang-awa at about the same time.

On January 25, 1999, the petitioners filed a joint Manifestation with the respondent court to the effect that they were retaining the law firm of Gumpal and Valenzuela, in lieu of Atty. Jose Felix Lucero whose services they had already terminated due to the latter’s inaction and abandonment of their cases.

On May 10, 1999, the petitioners, through their new counsel, moved for a reconsideration of the respondent court’s Orders dated August 5, 1998, and a recall of the writs of possession issued on August 12, 1998, mainly on the ground that the respondent Republic failed to comply with the provisions of E.O. 1035 (1985), relating to the conduct of feasibility studies, information campaign, detailed engineering/surveys, and negotiation prior to the acquisition of, or entry into, the property being expropriated.

On July 7, 1999, the respondent court  issued an Order denying the petitioners’ Motion for Reconsideration, a copy of which was received by the petitioners on July 26, 1999.

Hence, this Petition for Certiorari.

The sole issue in this case is whether or not the respondent court gravely abused its discretion, amounting to lack or excess of its jurisdiction, when it issued the questioned orders.

We rule in the negative.

The petitioners contend that due process of law in relation to expropriation proceedings mandates that there be compliance with the provisions of Executive Order No. 1035, particularly Sections 2, 3, 4 and 6, claimed to constitute the substantive requirements of the expropriation law, prior, and as a condition precedent, to Section 2 of Rule 67 of the 1997 Revised Rules of Civil Procedure.  Hence, a writ of possession pursuant to the above provision of Rule 67 will issue only upon showing that the said provisions of E.O. 1035 have already been complied with.  As the writs of possession in the instant case were issued by the respondent court without the respondent Republic,

through the DPWH, having furnished the petitioners any feasibility study and “approved” parcellary survey in connection with the Mindanao Avenue Extension Project, [7] despite formal request by the latter,[8] and therefore without showing prior compliance with E.O. 1035, the petitioners contend that such issuance of the writs of possession by the respondent court was made with grave abuse of discretion amounting to lack or excess of jurisdiction.

We do not agree.

The provisions of law adverted to by petitioners are as follows:

Title A. Activities Preparatory To Acquisition Of Property

Sec. 2. Feasibility Studies.  Feasibility studies shall be undertaken for all major projects, and such studies shall, in addition to the usual technical, economic and operational aspects, include the social, political, cultural and environmental impact of the project.

Sec. 3. Information Campaign. Every agency, office and instrumentality of the government proposing to implement a development project which requires the acquisition of private real property or rights thereon shall first make consultations with the local government officials, including the regional development councils having jurisdiction over the area where the project will be undertaken to elicit their support and assistance for the smooth implementation of the project. The implementing agency/instrumentality concerned with the assistance of the local government officials and representatives of the Office of Media Affairs shall conduct an extensive public information campaign among the local inhabitants that will be affected by the project to acquaint them with the objectives and benefits to be derived from the project and thus avoid any resistance to or objection against the acquisition of the property for the project.

Sec. 4. Detailed Engineering/Surveys. The implementing government agency/ instrumentality concerned shall, well in advance of the scheduled construction of the project, undertake detailed engineering, including parcellary surveys to indicate the location and size of the sites and to determine ownership of the land to be acquired, including the status of such landownership.

xxx  xxx                                          xxx

Title B.  Procedure For Acquisition Of Property

Sec. 6.      Acquisition Through Negotiated Sale.  As an initial step, the government implementing agency/instrumentality concerned shall negotiate

with the owner of the land that is needed for the project for the purchase of said land, including improvements thereon. In the determination of the purchase price to be paid, the Ministry of Finance and the Provincial/City/Municipal Assessors shall extend full assistance and coordinate with the personnel of the government implementing agency concerned in the valuation of lands and improvements thereon taking into consideration the current and fair market value declared by the owner or administrator of the land, or such current market value as determined by the assessor, whichever is lower, prior to the negotiation. [Executive Order No. 1035 (1985)]

Nothing in the foregoing provisions supports the contention of the petitioners.  A careful perusal of the provisions cited do not yield the conclusion that the conduct of feasibility studies, information campaign and detailed engineering/surveys are conditions precedent to the issuance of a writ of possession against the property being expropriated.  Although compliance  with these activities should indeed be made prior to the decision to expropriate private property, the requirements for issuance of a writ of possession once the expropriation case is filed, are expressly and specifically governed by Section 2 of Rule 67 of the 1997 Rules of Civil Procedure, to wit:

 Sec.2.  Entry of the plaintiff upon depositing value with authorized government depositary.--  Upon the filing of the complaint or at anytime thereafter, and after due notice to the defendant, the plaintiff shall have the right to take or enter upon the possession of the real property involved if he deposits with the authorized government depositary an amount equivalent to the assessed value of the property for the purposes of taxation to be held by such bank subject to the orders of the court  xxx   xxx .

xxx  xxx                                          xxx

If such deposit is made the court shall order the sheriff or other proper officer to forthwith place the plaintiff in possession of the property involved and promptly submit a report thereof to the court with service of copies to the parties.

As clearly enunciated in Robern Development Corporation vs. Judge Jesus Quitain[9]:

 “Expropriation proceedings are governed by revised Rule 67 of the 1997 Rules of Civil Procedure which took effect on July 1, 1997. Previous doctrines inconsistent with this Rule are deemed reversed or modified. Specifically, (1) an answer, not a motion to dismiss, is the responsive pleading to a complaint in eminent domain; (2) the trial court may issue a writ of

possession once the plaintiff deposits an amount equivalent to the assessed value of the property, pursuant to Section 2 of said Rule, without need of a hearing to determine the provisional sum to be deposited; and (3) a final order of expropriation may not be issued prior to a full hearing and resolution of the objections and defenses of the property owner.” (Emphasis Ours)

Thus, pursuant to Section 2 of Rule 67 of the 1997 Revised Rules of Civil Procedure and the Robern Development Corporation case, the only requisites for authorizing immediate entry in expropriation proceedings are: (1) the filing of a complaint for expropriation sufficient in form and substance; and (2) the making of a deposit equivalent to the assessed value of the property subject to expropriation.  Upon compliance with the requirements the issuance of the writ of possession becomes “ministerial.”[10]

The antecedents and the rationale for the rule are explained thus:

“There is no prohibition against a procedure whereby immediate possession of the land involved in expropriation proceedings may be taken, provided always that due provision is made to secure the prompt adjudication and payment of just compensation to the owners. However, the requirements for authorizing immediate entry in expropriation proceedings have changed.

To start with, in Manila Railroad Company v. Paredes, [Manila Railroad Company v. Paredes, 31 Phil 118, 135, March 31 & December 17, 1915] the Court held that the railway corporation had the right to enter and possess the land involved in condemnation proceedings under Section 1, Act No. 1592, immediately upon the filing of a deposit fixed by order of the court.

The Rules of Court of 1964 sanctioned this procedure as follows:

Sec. 2.            Entry of plaintiff upon depositing value with National or Provincial Treasurer.  Upon the filing of the complaint or at any time thereafter the plaintiff shall have the right to take or enter upon the possession of the real or personal property involved if he deposits with the National or Provincial Treasurer its value, as provisionally and promptly ascertained and fixed by the court having jurisdiction of the proceedings, to be held by such treasurer subject to the orders and final disposition of the court. . . . (emphasis ours.)

Subsequently, former President Ferdinand E. Marcos signed into law Presidential Decree No. 42 and its companion decrees, which removed the court's discretion in determining the amount of the provisional value of the land to be expropriated and fixed the provisional deposit at its assessed value

for taxation purposes. Hearing was not required; only notice to the owner of the property sought to be condemned.

On the issue of the immediate possession, PD 42 (Authorizing The Plaintiff In Eminent Domain Proceedings To Take Possession Of The Property Involved Upon Depositing The Assessed Value, For Purposes of Taxation) provided:

WHEREAS, the existing procedure for the exercise of the right of eminent domain is not expeditious enough to enable the plaintiff to take or enter upon the possession of the real property involved as soon as possible, when needed for public purposes;

xxx  xxx                                          xxx

. . . [T]hat, upon filing in the proper court of the complaint in eminent domain proceedings or at anytime thereafter, and after due notice to the defendant, plaintiff shall have the right to take or enter upon the possession of the real property involved if he deposits with the Philippine National Bank, . . . an amount equivalent to the assessed value of the property for purposes of taxation, to be held by said bank subject to the orders and final disposition of the court.

The provisions of Rule 67 of the Rules of Court and of any other existing law contrary to or inconsistent herewith are hereby repealed.

Paragraph 3 of PD No. 1224 (Defining The Policy On The Expropriation Of Private Property for Socialized Housing Upon Payment Of Just Compensation) also authorized immediate takeover of the property in this manner:

3. Upon the filing of the petition for expropriation and the deposit of the amount of just compensation as provided for herein, the Government, or its authorized agency or entity, shall immediately have possession, control and disposition of the real property and the improvements thereon even pending resolution of the issues that may be raised whether before the Court of First Instance or the higher courts.

Where the "taking" was for "socialized housing," Section 3, PD 1259 (Amending Paragraphs 1, 2, And 3 Of PD No. 1224 Further Defining The Policy On The Expropriation Of Private Property For Socialized Housing Upon Payment Of Just Compensation), amending the above-quoted paragraph, provided:

Upon the filing of the petition for expropriation and the deposit of the amount of the just compensation provided for in Section 2 hereof, the Government, or its authorized agency or entity, shall immediately have possession, control and disposition of the real property and the improvements thereon even pending resolution of the issues that may be raised whether before the Court of First Instance, Court of Agrarian Relations or the higher courts.

Similarly, Section 1, PD No. 1313 (Further Amending Paragraph 3 Of Presidential Decree No. 1224 As Amended By Presidential Decree No. 1259, Defining The Policy On The Expropriation Of Private Property For Socialized Housing Upon Payment Of Just Compensation), amending paragraph 3 of PD 1224, decreed:

Upon the filing of the petition for expropriation and the deposit in the Philippine National Bank at its main office or any of its branches of the amount equivalent to ten percent (10%) of the just compensation provided for in Section 2 of Presidential Decree No. 1259, the government, or its authorized agency or entity, shall immediately have possession, control and disposition of the real property and the improvements thereon with the power of demolition, if necessary, even pending resolution of the issues that may be raised whether before the Court of First Instance, Court of Agrarian Relations, or the higher Courts.

In this connection, we also quote Section 7 of PD No. 1517 (Proclaiming Urban Land Reform In The Philippines And Providing For The Implementing Machinery Thereof), which reads:

xxx  xxx                                          xxx

Upon the filing of the petition for expropriation and the deposit in the Philippine National Bank at its main office or any of its branches of the amount equivalent to ten per cent (10%) of the declared assessment value in 1975, the Government, or its authorized agency or entity shall immediately have possession, control and disposition of the real property and the improvements thereon with the power of demolition, if necessary, even pending resolution of the issues that may be raised whether before the Court of First Instance, Court of Agrarian Relations, or the higher Courts.

Finally, PD 1533 (Establishing A Uniform Basis For Determining Just Compensation And The Amount Of Deposit For Immediate Possession Of The Property Involved In Eminent Domain Proceedings) mandated the deposit

of only ten percent (10%) of the assessed value of the private property being sought to be expropriated, after fixing the just compensation for it at a value not exceeding that declared by the owner or determined by the assessor, whichever is lower. Section 2 thereof reads:

Sec. 2.            Upon the filing of the petition for expropriation and the deposit in the Philippine National Bank at its main office or any of its branches of an amount equivalent to ten per cent (10%) of the amount of compensation provided in Section 1 hereof, the government or its authorized instrumentality agency or entity shall be entitled to immediate possession, control and disposition of the real property and the improvements thereon, including the power of demolition if necessary, notwithstanding the pendency of the issues before the courts.

Accordingly, in San Diego v. Valdellon [80 Phil 305, 310, November 22, 1977], Municipality of Daet v. Court of Appeals [93 SCRA 503, 525, October 18, 1979], and Haguisan v. Emilia [131 SCRA 517, 522-524, August 31, 1984], the Court reversed itself and ruled that Section 2, Rule 67 of the 1964 Rules, was repealed by Presidential Decree No. 42. The judicial duty of ascertaining and fixing the provisional value of the property was done away with, because the hearing on the matter had not been "expeditious enough to enable the plaintiff to take possession of the property involved as soon as possible, when needed for public purpose."

In Daet, the Court clarified that the provisional value of the land did not necessarily represent the true and correct one but only tentatively served as the basis for immediate occupancy by the condemnor. The just compensation for the property continued to be based on its current and fair market value, not on its assessed value which constituted only a percentage of its current fair market value.

However, these rulings were abandoned in Export Processing Zone Authority v. Dulay [149 SCRA 305, 311 & 316, April 29, 1987],  because "[t]he method of ascertaining just compensation under the aforecited decrees constitute[d] impermissible encroachment on judicial prerogatives. It tend[ed] to render this Court inutile in a matter which under the Constitution [was] reserved to it for final determination." The Court added:

We return to older and more sound precedents. This Court has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. (See Salonga v. Cruz Pano, supra).

The determination of "just compensation" in eminent domain cases is a judicial function. The executive department or the legislature may make the initial determinations but when a party claims a violation of the guarantee in the Bill of Rights that private property may not be taken for public use without just compensation, no statute, decree, or executive order can mandate that its own determination shall prevail over the court's findings. Much less can the courts be precluded from looking into the "just-ness" of the decreed compensation.

xxx  xxx                                          xxx

More precisely, Panes v. Visayas State College of Agriculture [264 SCRA 708, 719, November 27, 1996.] ruled that the judicial determination of just compensation included the determination of the provisional deposit. In that case, the Court invalidated the Writ of Possession because of lack of hearing on the provisional deposit, as required under then Section 2 of Rule 67, pre-1997 Rules. In the light of the declared unconstitutionality of PD Nos. 76, 1533 and 42, insofar as they sanctioned executive determination of just compensation, any right to immediate possession of the property must be firmly grounded on valid compliance with Section 2 of Rule 67, pre-1997 Rules; that is, the value of the subject property, as provisionally and promptly ascertained and fixed by the court that has jurisdiction over the proceedings, must be deposited with the national or the provincial treasurer.

However, the 1997 Rules of Civil Procedure revised Section 2 of Rule 67 and clearly reverted to the San Diego, Daet and Haguisan rulings. Section 2 now reads:

Sec. 2.            Entry of plaintiff upon depositing value with government depositary.  Upon the filing of the complaint or at any time thereafter and after due notice to the defendant, the plaintiff shall have the right to take or enter upon the possession of the real property involved if he deposits with the authorized government depositary an amount equivalent to the assessed value of the property for purposes of taxation to be held by such bank subject to the orders of the court. . . . .

xxx  xxx                                          xxx

After such deposit is made the court shall order the sheriff or other proper officer to forthwith place the plaintiff in possession of the property involved and promptly submit a report thereof to the court with service of copies to the parties. [Emphasis ours.]

In the present case, although the Complaint for expropriation was filed on June 6, 1997, the Motion for the Issuance of the Writ of Possession was filed on July 28, 1997; thus, the issuance of the Writ is covered by the 1997 Rules. As earlier stated, procedural rules are given immediate effect and are applicable to actions pending and undetermined at the time they are passed; new court rules apply to proceedings that take place after the date of their effectivity.  Therefore, Section 2, Rule 67 of the 1997 Rules of Civil Procedure, is the prevailing and governing law in this case.

With the revision of the Rules, the trial court's issuance of the Writ of Possession becomes ministerial, once the provisional compensation mentioned in the 1997 Rule is deposited. Thus, in the instant case the trial court did not commit grave abuse of discretion when it granted the NPC's Motion for the issuance of the Writ, despite the absence of hearing on the amount of the provisional deposit.

The Court nonetheless hastens to add that PD 1533 is not being revived.

Under Section 2, Rule 67 of the 1997 Rules, the provisional deposit should be in an amount equivalent to the full assessed value of the property to be condemned, not merely ten percent of it. Therefore, the provisional deposit of NPC is insufficient. Since it seeks to expropriate portions, not the whole, of four parcels of land owned by Robern, the provisional deposit should be computed on the basis of the Tax Declarations of the property: xxx”

Hence, the issuance of writs of possession by the respondent court  in favor of the respondent Republic after the latter, through the DPWH, filed complaints for expropriation and deposited the amounts of P3,964,500.00 and P2,511,000.00 equivalent to the assessed value of the properties of the petitioners is proper and not without basis.

Contrary to the claim of the petitioners, the issuance of a writ of possession pursuant to Rule 67 of the 1997 Revised Rules of Civil Procedure alone is neither “capricious” nor “oppressive”, as the said rule affords owners safeguards against unlawful deprivation of their property in expropriation proceedings, one of which is the deposit requirement which constitutes advance payment in the event expropriation proceeds, and stands as indemnity for damages should the proceedings fail of consummation.[11] The deposit likewise sufficiently satisfies the compensation requirement of the Constitution.[12] Moreover, the owners of the expropriated lands are entitled to legal interest on the compensation eventually adjudged from the date the condemnor takes possession of the land until the full compensation is paid to them or deposited in court.[13]

It is the ruling of this Court that there is no grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the respondent court in issuing the orders

and the writs of possession herein questioned.  Accordingly, the prayer for the dismissal of Civil Cases Nos. Q-97-31368 and Q-97-31369 on the ground of prematurity for failure to comply with E.O. 1035 is denied.

As regards Section 6 (Acquisition through Negotiated Sale) of E.O. 1035, records show that there had been an attempt on the part of the Republic to negotiate with the petitioners through the Notices sent by the former through the DPWH.  The Notice dated August 29, 1996 sent to petitioner Remedios Biglang-awa by the respondent Republic[14] was intended not only to inform her formally of the planned expropriation, but also to require her to submit several documents needed for the determination of the just compensation for her property. The petitioner failed to submit the required documents.  The respondent Republic sent both petitioners Remedios and Salvador Biglang-awa Final Notices dated October 15, 1996 stating that failure to submit the required documents “significantly delay[ed] the completion of the xxx project”, and that the petitioners were given five (5) days to “cooperate by way of submitting the documents being requested”, otherwise expropriation proceedings would be initiated against them.[15] These notices were ignored by the petitioners.  Consequently, the respondent Republic, through the DPWH, filed expropriation cases against the petitioners, conformably with Section 7 of E.O. 1035, to wit:

Sec. 7.  Expropriation. If the parties fail to agree in negotiation of the sale of the land as provided in the preceding section, the government implementing agency/instrumentality concerned shall have authority to immediately institute expropriation proceedings through the Office of the Solicitor General or the Government Corporate Counsel, as the case may be.  The just compensation to be paid for the property acquired through expropriation shall be in accordance with the provisions of P.D. No. 1533.  Courts shall give priority to the adjudication of cases on expropriation and shall immediately issue the necessary writ of possession upon deposit by the government implementing agency/instrumentality concerned of an amount equivalent to ten per cent (10%) of the amount of just compensation provided under P.D. No. 1533; Provided, That the period within which said writ of possession shall be issued shall in no case extend beyond five (5) days from the date such deposit was made.

Thus, the filing of the expropriation cases against the petitioners was not in violation of Section 6 of E.O. 1035, and was, on the contrary, in accordance with the provisions of the said special law.

The petitioners also claim that they are not bound by the gross and inexcusable abandonment of their cases by their former lawyer, Atty. Jose Felix Lucero, resulting to the non-filing of their Opposition to the respondents’ Motion for the Issuance of Writs of Possession.

Although the general rule is that the negligence of counsel binds the client, [16] the rule is not without an exception.  Petitioners rely on the case of Aceyork Aguilar vs.

Court of Appeals[17] wherein the court relaxed the rule to prevent miscarriage of justice.  We find no such prejudice to petitioners caused by the failure of their counsel.

When petitioner Remedios received a Notice to Vacate her property on September 11, 1998, the petitioners immediately tried to get in touch with their former counsel, Atty. Jose Felix Lucero, but to no avail as the latter refused to talk to them or even answer their letter.[18] No reason was given for the behavior of the counsel.  The petitioners wasted no time in hiring the services of a new counsel, the law firm of Gumpal and Valenzuela.  Considering that once the deposit under Section 2 of Rule 67 of the 1997 Revised Rules on Civil Procedure has been made, the expropriator becomes entitled to a writ of possession as a matter of right, and the issuance of the writ becomes ministerial on the part of the trial court, no opposition on the part of the petitioners on the grounds now pleaded could have prevented such issuance.  Therefore, the petitioners were not prejudiced by the lost opportunity to file their opposition to the respondent’s Motions for the Issuance of Writs of Possession.

WHEREFORE, the instant petition is DISMISSED for lack of merit.

SO ORDERED.

Melo, (Chairman), Vitug, and Panganiban, JJ., concur.

[1] Executive Order No. 1035, June  25, 1985, “Providing The Procedures And Guidelines For The Expeditious Acquisition By The Government Of Private Real Properties Or Rights Thereon For Infrastructure And Other Government Development Projects”.[2] Rollo, p. 46.  The documents required to be submitted by the DPWH include the Tax Declaration, Tax Clearance, Barangay Certification, pictures of the lot and its improvements, Tax Receipt, TCT,  and Subdivision Plan.[3] Id., pp. 47-48.[4] Branch 216, Quezon City, presided by Hon. Judge Marciano I. Bacalla.[5] Rollo, pp. 29-30, 33-34.[6] Id., pp. 31-32, 35-36.[7] Stages II-B and II-C.[8] Rollo, p. 222.[9] G.R. No. 135042, September 23, 1999, En Banc decision.[10] Robern Development Corporation vs. Judge Jesus Quitain, supra.  See also Republic vs. Tagle, 299 SCRA 549, at p. 552.[11] Visayan Refining Company vs. Camus, G.R. No. 15870, December 3, 1919, 40 Phil 550, at p. 563. Joaquin G. Bernas, S.J., The Constitution of the Philippines, A Commentary, at pp. 284-285, citing City of Manila vs. Battle, 25 Phil 566, 572 (1913).

      Art.III, Sec. 9 of the 1987 Philippine Constitution:  Sec. 9. Private property shall not be taken for public use without just compensation.[12]

[13] Digran vs. Auditor General, L-21593, April 29, 1966, 16 SCRA 762, at p. 771, citing Republic vs. Lara, G.R. No. L-5080, November 29, 1954, 96 Phil 170.[14] Only the Notice dated August 29, 1996 sent to petitioner Remedios Biglang-awa appears on record.[15] Rollo, pp. 47-48.[16] Meralco vs. CA, G.R. No. 88396, July 4, 1990, 187 SCRA 200, at p. 208; BR Sebastian Enterprises vs. CA, G.R. No. 41862, February 7, 1992, 206 SCRA 28, at p. 39.[17] G.R. No. 11482, November 28, 1995, 250 SCRA 371.[18] Rollo, pp. 11 and 52.

 

SECOND DIVISION

[A.C. No. 4680.  August 29, 2000]

AQUILINO Q. PIMENTEL, JR., complainant, vs. ATTYS. ANTONIO M. LLORENTE and LIGAYA P. SALAYON,respondents.

D E C I S I O N

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 City Prosecutor of Pasig City, served as its ex oficio vice-chairman as provided by law.[1] Complainant, 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), [2]respondents 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 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 this matter 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. [3] Petitioner 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 dismissed complainant’s charges for insufficiency of evidence. However, on a petition for certiorari filed by complainant,[4] this 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 a prohibited pleading under Rule 139-B, §12(c) [5] and, 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 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 in Halimao v. Villanueva,[6] in 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 evidence.[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 be assumed 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. [8] The 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.[9] For this reason, laws dealing with double jeopardy [10] or prescription[11] or with procedure like verification of pleadings[12] and prejudicial questions[13] have 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, [14] four,[15] and three[16] days 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) are mala in se and not mala 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.[18] As long as the evidence presented by complainant or that taken judicial notice of by the Court[19] is more convincing and worthy of belief than that which is offered in opposition thereto,[20] the 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 in Pimentel v. Commission on Elections.[21] In 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 the 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, but also in the total number of votes credited for senatorial candidate Enrile which exceeded the total number of voters who actually voted in those precincts during

the May 8, 1995 elections, renders the defense of honest mistake or oversight due to fatigue, as incredible and simply unacceptable.[22]

Indeed, what is involved here is not just a case of mathematical error in the tabulation of votes per precinct as reflected in the election returns and the subsequent entry of the erroneous figures in one or two SoVs [23] but a systematic scheme to pad the votes of certain senatorial candidates at the expense of petitioner in complete disregard of the tabulation in the election returns.  A cursory look at the evidence submitted by petitioner reveals that, in at least 24 SoVs involving 101 precincts, the votes for candidate Enrile exceeded the number of voters who actually voted in the said precincts and, in 18 SoVs, returns from 22 precincts were tabulated twice. In addition, as the Court noted in Pimentel, the total number of votes credited to each of the seven senatorial candidates in question, as reflected in the CoC, markedly differ from those indicated in the SoVs.[24]Despite the fact that these discrepancies, especially the double recording of the returns from 22 precincts and the variation in the tabulation of votes as reflected in the SoVs and CoC, were apparent on the face of these documents and that the variation involves substantial number of votes, respondents nevertheless certified the SoVs as true and correct.  Their acts constitute misconduct.

Respondent Llorente’s contention that he merely certified the genuineness and due execution of the SoVs but not their correctness is belied by the certification which reads:

WE HEREBY CERTIFY that the foregoing Statement of Votes by . . . [p]recinct is true and correct. IN WITNESS WHEREOF, we sign these presents at the City/Municipality of ___________ Province of ____________ this _______ day of May, 1995. (Emphasis added)

Nor does the fact that the canvassing was open to the public and observed by numerous individuals preclude the commission of acts for which respondents are liable.  The fact is that only they had access to the SoVs and CoC and thus had the opportunity to compare them and detect the discrepancies therein.

Now, a lawyer who holds a government position may not be disciplined as a member of the bar for misconduct in the discharge of his duties as a government official.[25] However, if the misconduct also constitutes a violation of the Code of Professional Responsibility or the lawyer’s oath or is of such character as to affect his qualification as a lawyer or shows moral delinquency on his part, such individual may be disciplined as a member of the bar for such misconduct.[26]

Here, by certifying as true and correct the SoVs in question, respondents committed a breach of Rule 1.01 of the Code which stipulates that a lawyer shall not engage in “unlawful, dishonest, immoral or deceitful conduct.” By express provision of Canon 6, this is made applicable to lawyers in the government service.  In addition, they likewise violated their oath of office as lawyers to “do no falsehood.”

Nowhere is the need for lawyers to observe honesty both in their private and in their public dealings better expressed in Sabayle v. Tandayag[27] in which this Court said:

There is a strong public interest involved in requiring lawyers . . . to behave at all times in a manner consistent with truth and honor. It is important that the common caricature that lawyers by and large do not feel compelled to speak the truth and to act honestly, should not become a common reality. . . .[28]

It may be added that, as lawyers in the government service, respondents were under greater obligation to observe this basic tenet of the profession because a public office is a public trust.

Third.  Respondents’ participation in the irregularities herein reflects on the legal profession, in general, and on lawyers in government, in particular.  Such conduct in the performance of their official duties, involving no less than the ascertainment of the popular will as expressed through the ballot, would have merited for them suspension were it not for the fact that this is their first administrative transgression and, in the case of Salayon, after a long public service. [29] Under the circumstances, a penalty of fine in the amount of P10,000.00 for each of the respondents should be sufficient.

WHEREFORE, the Court finds respondents Antonio M. Llorente and Ligaya P. Salayon GUILTY of misconduct and imposes on each of them a FINE in the amount of P10,000.00 with a WARNING that commission of similar acts will be dealt with more severely.

SO ORDERED.

Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

[1] Batas Pambansa Blg. 881, §221(b). The third member of the Board, Ceferino Adamos, now deceased, was the Clerk of Court of the Pasig City Metropolitan Trial Court.

[2] SEC.  27. Election Offenses.  In addition to the prohibited acts and election offenses enumerated in Section 261 and 262 of Batas Pambansa Blg. 881, as amended, the following shall be guilty of an election offense.

. . . .

(b)  Any member of the board of election inspectors or board of canvassers who tampers, increases, or decreases the votes received by a candidate in any election . . . .[3] Rollo, p. 116.[4] Pimentel, Jr. v. COMELEC, G.R. No. 133509, Feb. 9, 2000.

[5] SEC. 12. Review and decision by the Board of Governors.             . . . .

(c)  If the respondent is exonerated by the Board or the disciplinary sanction imposed by it is less than suspension or disbarment (such as admonition, reprimand, or fine) it shall issue a decision exonerating respondent or imposing such sanction.  The case shall be deemed terminated unless upon petition of the complainant or other interested party filed with the Supreme Court within fifteen (15) days from notice of the Board’s resolution, the Supreme Court orders otherwise.[6] 253 SCRA 1 (1996).[7] Id., at 6.[8] Counted from May 18, 1999, the 15th day falls on June 2, 1999.[9] Tajan v. Cusi, Jr., 57 SCRA 154 (1974); In re Almacen, 31 SCRA 562 (1970); Rayos-Ombac v. Rayos, 285 SCRA 93 (1998).[10] See Pangan v. Ramos, 107 SCRA 1 (1981); In re Del Rosario, 52 Phil. 399 (1928).[11] Calo v. Degamo, 20 SCRA 447 (1967).[12] In re:  Victorio D. Lanuevo, 66 SCRA 245 (1975).[13] Agripino Brillantes, 76 SCRA 1 (1977).

[14] Republic v. Court of Appeals, 83 SCRA 453 (1978).[15] Ramos v. Bagasao, 96 SCRA 395 (1980).[16] Philippine National Bank v. Court of Appeals, 246 SCRA 304 (1995).[17] IBP Report, p. 5; Rollo, p. 121.[18] In re Tionko, 43 Phil. 191 (1922); Re: Agripino A. Brillantes,  76 SCRA 1 (1977).[19] See Prudential Bank v. Castro, 155 SCRA 604 (1987); Richards v. Asoy, 152 SCRA 45 (1987).[20] Republic v. Court of Appeals, 160 SCRA 161 (1991).[21] G.R. No. 133509, Feb. 9, 2000.[22] Id., at 10.[23] E.g., Tatlonghari v. Commission on Elections, 199 SCRA 849 (1991); Angelia v. Tan, G.R. No. 135468, May 31, 2000.

[24] Tabulated as follows (Pimentel v. Commission on Elections, G.R. No. 133509, Feb. 9, 2000):

CANDIDATE CERTIFICATE OF CANVASS STATEMENT OF VOTES

Biazon 83,731 87,214

Coseteng 54,126 67,573

Enrile 91,798 90,161

Fernan 69,712 72,031

Honasan 62,159 62,077

Mitra 56,097 56,737

Pimentel 68,040 67,936

 [25] Gonzales-Austria v. Abaya, 176 SCRA 634 (1989).[26] Collantes v. Renomeron, 200 SCRA 584 (1991); Gonzales-Austria v. Abaya, 176 SCRA 634 (1989); See Ruben Agpalo, Legal Ethics 425 (4th ed., 1989).[27] 158 SCRA 497 (1988)[28] Id., at 506.[29] She first served in the lower courts before working in the Supreme Court from 1981-1990 (Comment, p. 5; Rollo, p. 48).

Synopsis/Syllabi

EN BANC

[A.C. No. 4017.  September 29, 1999]

GATCHALIAN PROMOTIONS TALENTS POOL, INC., complainant, vs. ATTY. PRIMO R. NALDOZA, respondent.

D E C I S I O N

PER CURIAM:

On April 19, 1993, Gatchalian Promotions Talents Pool, Inc., filed before this Court a Petition for disbarment against Attorney Primo R. Naldoza.  The precursor of this Petition was the action of respondent, as counsel for complainant, appealing a Decision of the Philippine Overseas Employment Agency (POEA).  In relation to the appeal, complainant asserts that respondent should be disbarred for the following acts:

1.  Appealing a decision, knowing that the same was already final and executory

2.  Deceitfully obtaining two thousand, five hundred and fifty-five US dollars (US$2,555) from complainant, allegedly for “cash bond” in the appealed case

3.  Issuing a spurious receipt to conceal his illegal act.[1]

In his Answer,[2] respondent denies that he persuaded complainant to file an appeal.  On the contrary, he asserts that it was the complainant who insisted on appealing the case in order to delay the execution of the POEA Decision.[3] He also controverts complainant’s allegation that he asked for a cash bond and that he issued the fake receipt.[4]

In a Resolution dated May 17, 1993, this Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.

The pertinent portions of the complaint were summarized by the IBP in this wise:

“Under its petition, complainant alleges that the respondent was given the task to defend the interest of the complainant corporation in POEA Case No. 8888-06-468, entitled Olano, et al. versus Gatchalian Promotions Talents Pool, Inc., et al.; that when the said case was resolved in favor of the complainant therein on October 5, 1992, the respondent Atty. Naldoza knowing fully well that the said decision had already become final and unappealable[,] through malpractice in [an] apparent desire to collect or to ‘bleed’ his client of several thousand pesos  of attorney’s fees, convinced the complainant to appeal the case before the Supreme Court.  Thus, on December 14, 1992, the respondent filed with the Supreme Court a Petition for Review which was docketed as G.R. No. 107984 and that two (2) days thereafter misrepresented to the complainant corporation that the complainant ha[d] to pay, which it did, [a] “Cash Bond’ in UNITED STATES DOLLAR amounting to TWO THOUSAND FIVE HUNDRED FIFTY FIVE (U.S. $2,555.00) to the Supreme Court in order that the said appealed case could be heard or acted upon by the Supreme Court.  The said amount was given to the respondent.

“x x x [S]ubsequently the complainant corporation came to know that the fees to be paid to the Supreme Court consist[ed] only of normal filing and docket fees for such kind of appeal but in order to cover up respondent’s misrepresentation, Atty. Naldoza presented complainant a fake xerox copy of an alleged Supreme court receipt representing payment of U.S. $2,555.00.

“Subsequent verification from the Supreme Court made by the complainant corporation revealed that the said receipt issued by the treasurer’s office of the Supreme Court x x x [was] spurious, meaning a fake receipt.  The said verification revealed that what was only paid by the respondent to the Supreme court was the amount of P622.00 as shown by the enumerated legal fees of the Supreme Court Docket-Receiving Section showing the handwritten name of the respondent for purpose of showing that the said computation was requested by and addressed to the respondent.”[5] (citations omitted)

Meanwhile, a criminal case[6] for estafa based on the same facts was filed against herein respondent before the Regional Trial Court (RTC) of Makati City, Branch 141.  Although acquitted on reasonable doubt, he was declared civilly liable in the amount of US$ 2,555.

Thereafter, respondent filed before the IBP a Manifestation with Motion to Dismiss on July 22, 1996, on the ground that he had already been acquitted in the criminal case for estafa.  Complainant opposed the Motion.[7]

On February 16, 1998, this Court received the IBP Board of Governors’ Resolution, which approved the investigating commissioner’s report[8] and recommendation that respondent be suspended from the practice of law for one (1) year.  In his Report, Investigating Commissioner Plaridel Jose justified his recommendation in this manner:

“x x x [R]espondent fails to rebut the position of the complainant that the signature [on the receipt for the amount of $2,555.00] was his.  Hence, respondent anchors his position on a mere denial that it is not his signature.  Likewise, the respondent denies the check voucher dated December 15, 1992, and the encircled signature of the respondent, which x x x according to him is falsified and irregular.  No evidence, however, was presented by the respondent that his signature therein was falsified and irregular.  [As to the altered Supreme Court Official Receipt, the respondent denied] that he ha[d] anything to do with it because it was the complainant who signed the Petition for Review and tried to explain that his name appear[ed] to be the payee because he [was] the counsel of record of the petitioner.  But while it is true that the affiant in the said Petition for Review [was] Mr. Rogelio G. Gatchalian, president of the complainant company, the respondent does not deny that he signed the said petition as counsel of the petitioner corporation and that he was actually the one who prepared the same and the notary public before whom the affiant subscribed and [swore] as the one who ‘caused the preparation’ of the said petition.

“The legal form (Exh. “G”) of the legal fees for the Petition for Review re G.R. 107984 was denied by the respondent because according to him he was never given a chance to cross-examine the person who issued the [certification] x x x.  However, respondent does not deny that he is the person referred to by the handwritten name P.R. Naldoza who paid the legal fees of P622.00.

“In addition to the said respondent’s Formal Offer of Evidence, he submitted to this Commission as his most important piece of evidence the Decision of acquittal in Criminal Case No. 93-8748 entitled ‘People of the Philippines versus Primo R. Naldoza’, the copy of which Decision is appended to his Manifestation with Motion to Dismiss dated July 22, 1996 praying for the dismissal of the present administrative case in view of his being exonerated in the said criminal case based on the same facts and evidence.”[9] (citations omitted)

Commissioner Jose brushed aside respondent’s contention that his acquittal in the companion criminal case should result in the dismissal of this administrative complaint.  The commissioner emphasized that the criminal case for estafa [10] was completely different from the proceedings before him; acquittal in the former did not exonerate respondent in the latter. [11] He further noted that the RTC Decision itself hinted at the administrative liability of respondent, since it found him civilly liable to herein complainant for $2,555.[12]

We agree with the IBP Board of Governors that respondent should be sanctioned.  However, the recommended penalty is not commensurate to the gravity of the wrong perpetrated.

At the outset, the Court agrees with the IBP that respondent’s Motion to Dismiss should be denied.  In that Motion, he maintains that he should be cleared of administrative liability, because he has been acquitted of estafa which involved the same facts.  He argues that the issue involved there was “ the very same issue litigated in this case,” [13] and that his exoneration “was a result a full blown trial on the merits of this case.”[14]

In a similar case, we have said:

“x x x The acquittal of respondent Ramos [of] the criminal charge is not a bar to these [administrative] proceedings.  The standards of legal profession are not satisfied by conduct which merely enables one to escape the penalties of xxx criminal law.  Moreover, this Court in disbarment proceedings is acting in an entirely different capacity from that which courts assume in trying criminal cases.”[15]

Administrative cases against lawyers belong to a class of their own.[16] They are distinct from and they may proceed independently of civil and criminal cases.

The burden of proof for these types of cases differ.  In a criminal case, proof beyond reasonable doubt is necessary;[17] in an administrative case for disbarment or suspension, “clearly preponderant evidence” is all that is required. [18] Thus, a criminal prosecution will not constitute a prejudicial question even if the same facts and circumstances are attendant in the administrative proceedings.[19]

It should be emphasized that a finding of guilt in the criminal case will not necessarily result in a finding of liability in the administrative case. [20] Conversely, respondent’s acquittal does not necessarily exculpate him administratively.  In the same vein, the trial court’s finding of civil liability against the respondent will not inexorably lead to a similar finding in the administrative action before this Court.  Neither will a favorable disposition in the civil action absolve the administrative liability of the lawyer.[21] The basic premise is that criminal and civil cases are

altogether different from administrative matters, such that the disposition in the first two will not inevitably govern the third and vice versa.  For this reason, it would be well to remember the Court’s ruling in In re Almacen,[22] which we quote:

“x x x Disciplinary proceedings against lawyers are sui generis.  Neither purely civil nor purely criminal, they do not involve a trial of an action or a suit, but are rather investigations by the Court into the conduct of one of its officers.  Not being intended to inflict punishment, [they are] in no sense a criminal prosecution.  Accordingly, there is neither a plaintiff nor a prosecutor therein.  [They] may be initiated by the Court motu proprio.  Public interest is [their] primary objective, and the real question for determination is whether or not the attorney is still a fit person to be allowed the privileges as such.  Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to account for his actuations as an officer of the Court with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice by purging the profession of members who by their misconduct have prove[n] themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney.  x x x” (emphasis ours)

We shall now discuss seriatim the specific charges against respondent.

First.  Complainant alleges that respondent appealed the POEA Decision, despite knowing that it had already become final and executory.  The IBP investigating commissioner had no explicit finding on this point.  Rogelio G. Gatchalian testified that during the pendency of the appeal, his company had received from the POEA a Writ of Execution which led him to the conlcusion that “they [had] lost the case before the Supreme Court.” [23] This, however, does not substantiate the charge.

Complainant has failed to present proof regarding the status of the appeal.  Neither has there been any showing that the appeal was dismissed on the ground that the POEA Decision had become final and executory.  Worse, there has been no evidence that respondent knew that the case was unappealable.  Indeed, the records of this Court shows that the Petition for Review was dismissed for petitioner’s failure to submit an Affidavit of Service and a legible duplicate of the assailed Order. Clearly, this charge has no leg to stand on.

Second.  Be that as it may, we agree with the IBP that respondent obtained from complainant the amount of $2,555, on the false representation that it was needed for the appeal before this Court.  According to Gatchalian,[24] respondent explained that the amount would “cover all the expenses to be incurred in the Petition for Review with the Supreme Court and which amount also will answer for the payment as sort of deposit so that if our case is lost, the money will be given or paid to the complainant in that case so that our deposit with the bank would not be garnished.”[25] Corroborating Gatchalian’s testimony, Edna Deles declared that respondent received the amount on the representation that it “would be paid to the Supreme Court in connection with the Olano case.”[26]

The defense of denial proferred by respondent is not convincing.  Quite the contrary, when he paid P10,000 and issued a check to complainant as his “moral obligation,” he indirectly

admitted the charge.  Normally, this is not the actuation of one who is falsely accused of appropriating the money of another.  This is an admission of misconduct.[27] In his Answer submitted to this Court, he declared:

“(8).  That I have no knowledge, information or belief as to truthfulness of the allegation of the Petitioner, on his allegation no. 8 and no. 9, the truth being that in all the cases and assignments made by the Petitioner to me, I was made to report to him personally and to his Board of Directors the progress of the cases both orally and in writing.  I even [went] to the extent of paying him P10,000.00 as my moral obligation only to find after accounting that he still owes me P180,000.00 as attorney’s fee [to] which I am entitled under rule 130 of the rules of court sec. 24, and under sec. 37 of the above-cited rules, I have the right to apply the funds received from Gatchalian in satisfaction of my claim for Professional Services, otherwise known as Attorney’s Lien, as shown in my Service Billings and Statement of Accounts.”[28] (emphasis ours)

Contrary to respondent’s claim, the amount of $2,555 was not a part of his attorney’s lien.  He demanded the money from his client on the pretext that it was needed for the Petition before the Supreme Court, but he actually converted it to his personal gain.  This act clearly constitutes malpractice.[29] The claim that respondent merely applied his lien over the funds of his client is just an afterthought, the accounting being made after the fact.  It is settled that the conversion by a lawyer of funds entrusted to him is a gross violation of professional ethics and a betrayal of public confidence in the legal profession.[30]

Third.  In an effort to conceal his misappropriation of the money entrusted to him, respondent gave complainant a photocopy of a receipt purportedly showing that the Supreme Court had received the sum of $2,555 from him.  Again, the testimonies of Gatchalian[31] and Deles[32] were equally clear on this point.  After respondent had presented the false receipt, Gatchalian learned that no such payment was made.  Ms Araceli Bayuga of the Supreme Court Cash Collection and Disbursement Division issued a certification that respondent had paid the amount of P622 only, not $2,555.  In fact, the records of the said case[33] contain no indication at all the Court has required the payment of the latter sum, or that it has been paid at all.

juxtapose to the complainant’s evidence, the bare denials of respondent cannot overturn the IBP’s findings that he has indeed presented a false receipt to conceal his misappropriation of his client’s money.  We agree with the IBP that “it is unbelievable that the complainant in the person of Rogelio Gatchalian, being a layman as he is without any knowledge in the procedure of filing a case before the Supreme court, could spuriously weave such documents which are denied by the respondent.”[34]

In view of the foregoing, respondent has clearly failed the standards of his noble profession.  As we have stated in Resurrecion v. Sayson:[35]

“[L]awyers must at all times conduct themselves, especially in their dealings with their clients and the public at large, with honesty and integrity in a manner beyond reproach.”

Clearly reprehensible are the established facts that he demanded money from his client for a bogus reason, misappropriated the same, and then issued a fake receipt to hide his deed.  In Dumadag v. Lumaya,[36] the Court ordered the indefinite suspension of a lawyer for not remitting to his client the amount he had received pursuant to an execution, viz.:

“[E]ven as respondent consistently denied liability to Dumadag, his former client, the records abundantly point to his receipt of and failure to deliver the amount of P4,344.00 to his client, the herein complainant, a clear breach of the canons of professional responsibility.”

In Obia v. Catimbang,[37] we meted out the same penalty to a lawyer who had misappropriated the money entrusted to him:

“The acts committed by respondent definitely constitute malpractice and gross misconduct in his office as attorney.  These acts are noted with disapproval by the Court; they are in violation of his duty, as a lawyer, to uphold the integrity and dignity of the legal profession and to engage in no conduct that adversely reflects on his fitness to practice law.  Such misconduct discredits the legal profession."

Respondent’s acts are more despicable.  Not only did he misappropriate the money entrusted to him; he also faked a reason to cajole his client to part with his money.   Worse, he had the gall to falsify an official receipt of this Court to cover up his misdeeds.  Clearly, he does not deserve to continue being a member of the bar.

WHEREFORE, Primo R. Naldoza is hereby DISBARRED.  The Office of the Clerk of Court is directed to strike out his name from the Roll of Attorneys and to inform all courts of this Decision.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.

[1]  Petition, pp. 1-3; records, vol. 1, pp. 1-3.

[2]  Received on June 7, 1993.

[3]  Answer, pp. 3-4; records, vol. 1, pp. 29-30.

[4]  Ibid. pp. 5-6 & 31-32.

[5]  Report, pp. 1-2; records, vol. 1.

[6]  Criminal Case No. 93-8748, before Judge Manuel D. Victorio.

[7]  The Opposition to Motion to Dismiss was received by the IBP on September 26, 1996.

[8]  An Ex Parte Motion to Resolve was filed by complainant on September 19, 1997.  The commissioner’s Report was dated October 13, 1997.

[9]  Report, pp. 5-6.

[10] Citing Batacan, Legal and Judicial Ethics, 1973 ed.

[11]  Ibid., citing In re Terrel, 2 Phil 266 [1903]; In re Del Rosario, 52 Phil 399 [1928]; Piatt v. Abordo, 58 Phil 350 [1933].

[12]  We quote the following from the RTC decision:

“Under the evidence, it is shown by the testimonies of Rogelio Gatchalian and Edna Deles that indeed the accused [respondent herein] told them that the Supreme Court required him to deposit a cash bond in the appealed case.  In view of such representation of the accused, private complainant [delivered] to him this said sum of money.  Although the accused disavowed having received the money and disowned his signatures on the receipt and voucher, x x x his lone and uncorroborated testimony could not override the candid and positive declarations of the prosecution witnesses.

xxx           xxx           xxx

“There is however preponderance of evidence to hold the accused civilly liable to the private complainant in the amount of US$ 2,555.00 which he received from the private complainant and for which he should be ordered to refund.” (citations omitted, emphasis supplied)

[13] Manifestation with Motion to Dismiss; records, vol. 2, p. 310.

[14]  Ibid.

[15] Pangan v. Ramos, 107 SCRA 1 [1981]; citing In re Del Rosario, 52 Phil 399 [1928].

[16]  Sui generis.  See In re Almacen, 31 SCRA 562 [1970].

[17]  See Moreno v. Bragat, 293 SCRA 581 [1998].

[18] See Re:  Agrapino A. Brillantes, 76 SCRA 1 [1977]; Maderazo, v. Del Rosario, 73 SCRA 540 [1976]; Lim v. Antonio, 41 SCRA 44 [1971]; In re Tionko, 43 Phil 191 [1922].

[19] See Re: Brillantes, supra; Calo v. Degamo, 20 SCRA 447 [1967].

[20]  See Villanos v. Subido, 45 SCRA 299 [1972].

[21] See Esquivas v. CA, 272 SCRA 803 [1997].

[22] 31 SCRA 562, 600 [1970]; cited in Esquivas v. CA, supra, pp. 812-813.

[23]  TSN, July 26, 1994, pp. 31-32.

[24]  TSN, July 26, 1994, pp. 12, 17.

[25]  TSN, July 26, 1994, pp. 12-13.

[26]  TSN, January 13, 1995, pp. 9-10, 12-13.

[27] Obia v. Catimbang, supra.

[28]  Respondent’s Answer, p. 7; records, vol. 1, p. 33.

[29]  See Cabigao v. Rodrigo, 57 Phil 20 [1932].

[30]  See Obia v. Catimbang, 196 SCRA 23 [1991]; Quilban v. Robinol, 171 SCRA 768 [1989]; Manaloto v. Reyes, 15 SCRA 131, 134 [1965]; Daroy v. Legaspi, 65 SCRA 304 [1975].

[31]  TSN, July 26, 1994, pp. 39-44.

[32]  TSN, January 13, 1995, pp. 22-24.

[33] GR No. 107984, Gatchalian Promotions Talents Pool, Inc. v. NLRC, Teresita Olano, Secretary of Labor, POEA Administrator, et al..

[34] IBP Report, p. 10.

[35] Adm. Case No. 1037, December 14, 1998.

[36] 197 SCRA 303, 307 [1991].

[37]  196 SCRA 23, 27-28 [1991].

lawphil

Today is Monday, July 11, 2011

 

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

A.M. No. 2361 February 9, 1989

LEONILA J. LICUANAN, complainant, vs.ATTY. MANUEL L. MELO, respondent.

R E S O L U T I O N

 

PER CURIAM:

An affidavit-complaint, dated November 11, 1981, was filed by Leonila J. Licuanan with the Office of the Court Administrator on 5 February 1982 against respondent, Atty. Manuel L. Melo, for breach of professional ethics, alleging that respondent, who was her

Search

counsel in an ejectment case filed against her tenant, failed to remit to her the rentals collected by respondent on different dates over a twelve-month period, much less did he report to her the receipt of said amounts. It was only after approximately a year from actual receipt that respondent turned over his collections to complainant after the latter, through another counsel, acquired knowledge of the payment and had demanded the same.

In his Comment on the complaint, respondent admitted having received the payment of rentals from complainant's tenant, Aida Pineda, as alleged in the complaint, but explained that he kept this matter from the complainant for the purpose of surprising her with his success in collecting the rentals.

We forwarded the case to the Office of the Solicitor General, for investigation, report and recommendation. Hearings were conducted and the parties presented their respective evidence.

After investigation, the Solicitor General submitted the following Findings and Recommendation:

Findings:

The issue to be resolved is whether there was unreasonable delay on the part of the respondent in accounting for the funds collected by him for his former client, the complainant herein, for which unprofessional conduct respondent should be disciplined.

A lawyer, under his oath, pledges himself not to delay any man for money or malice and is bound to conduct himself with all good fidelity to his clients. Under paragraph 11 of the Canons of Legal Ethics, he is obligated to report promptly the money of client that has come to his possession and should not commingle it with his private property or use it for his personal purpose without his client's consent viz:

Money of the client or other trust property coming into the possession of the lawyer should be reported promptly, and except with the client's know and consent should not be commingled with his private or be used by him.

And paragraph 32 of the Canons of Legal Ethics further requires a lawyer to maintain a reputation for honesty and fidelity to private trust:

... But above all, a lawyer will find his highest honor in a deserved reputation for fidelity to private trust and to public duty, as an honest man and as a patriotic and loyal citizen.

In the instant case, respondent failed to observe his oath of office. It is undisputed that the relation of attorney and client existed between Licuanan and Melo at the time the incident in question took place. The records disclose that on August 8, 1979, respondent, as Licuanan's attorney, obtained judgment in Licuanan's favor against Aida Pineda whereby the latter was directed by the City Court of Manila to pay Licuanan all her monthly rentals from October, 1978 and succeeding months thereafter.

When several months had elapsed without them hearing a word from Pineda, respondent decided to send her a letter on February 4, 1980, demanding that she pay the monthly rental of her apartment otherwise he will be constrained to take the necessary legal action against her to protect the interest of his client (Exhibit "A", p. 8, record). On February 11, 1980, Pineda yielded to the demand of Melo. She went to respondent's office and paid him P3,060.00 for which respondent gave her a receipt for the said amount representing her rental payments for October, 1978 to February, 1980 at the rate of P180.00 per month (Exh. "B", p. 9, Ibid.) At the end of March 31,1980, Pineda again went back to respondent and paid the rentals of her apartment for the months of March and April, 1980 in the sum of P360.00 (Exh. "C" p. 10, Ibid.). Not only that, respondent again received from Pineda on June 30, 1980 rental payments covering

the months of May, June and July, 1980 in the total sum of P540.00 (Exh. "D" p. 11, Ibid.). And, on September 29, 1980, he received and issued Pineda a receipt for P540.00 covering rental payments for the months of August, September and October, 1980. (Exh. "E", Ibid.). After four months had elapsed, or on January 23, 1981, he collected again from Pineda the total sum of P720.00 covering the months of October, November, December, 1980 and January 1981 (Exh. "F", p. 12, Ibid.).

During the entire twelve-month period that respondent had been receiving the said rental payments of Pineda, he did not bother to inform or report to complainant about the said payments and instead unnecessarily retained the money. He allowed the money to accumulate for a year and kept complainant in the dark as to the progress of the case. He did not even attempt to tell her about the money that had come into his possession notwithstanding the fact that complainant used to call him and inquire regarding the case (pp. 14-15, tsn., Sept. 10, 1985).

It was only when Atty. Ponciano B. Jacinto, the new counsel retained by complainant, wrote respondent a letter on May 4, 1981, advising him to surrender the money to complainant that he accounted for it (Exh. "H", p. 15, Ibid.). But this was rather late because as early as April 27, 1981, complainant, not knowing that respondent had been receiving the rental payments of Pineda, instituted an administrative case against her (Aida Pineda) before the Chief of the Philippine Tuberculosis Society accusing her of "moral turpitude" arising from her alleged failure to pay the rent of her apartment as ordered by the City Court of Manila in Civil Case No. 037276 and claiming that she has ignored and refused to pay her just obligation (Exh. "G", p. 14, Ibid.).

This led therefore Pineda to bring an action against her (Licuanan) for damages before the then Court of First Instance of Manila, for she allegedly suffered mental anguish, besmirched reputation, wounded feelings and social humiliation arising from the unfounded administrative case Licuanan filed against her (Aida Pineda), since as borne out by the records, she had been paying her obligation religiously to the lawyer of Licuanan, herein respondent (pp. 48-52, record). Clearly, this unfortunate incident would not have happened had respondent been only true to his oath as a lawyer, i.e., to be honest and candid towards his client.

Thus, we find it hard to believe respondent's defense that he kept the money of complainant for a year merely because he wanted to surprise her with his success in collecting the rental payments from Pineda. On the contrary, it is very much discernible that he did not surrender immediately the money to complainant because he was using it for his own benefit. Common sense dictates that by unnecessarily withholding the money of complainant for such length of time, respondent deprived her of the use of the same. It is therefore too credulous to believe his explanation, which is flimsy and incredible Respondent's actuation casts doubt on his honesty and integrity. He must know that the "highly fiduciary" and "confidential relation" of attorney and client requires that the attorney should promptly account for all funds and property received or held by him for the client's benefit, and failure to do so constitutes professional misconduct, as succinctly held by the Honorable Supreme Court in the case of Fermina Legaspi Daroy, et al., vs. Atty. Ramon Chaves Legaspi, Adm. Case No. 936, July 25, 1975, 65 SCRA 304, to wit:

A lawyer, under his oath, pledges himself not to delay any man for money or malice and is bound to conduct himself with all good fidelity to his clients. He is obligated to report promptly the money of his clients that has come into his possession. He should not commingle it with his private property or use it for his personal purposes without his client's consent. He should maintain a reputation for honesty and fidelity to private trust (Pars. 11 and 32, Canons of Legal Ethics).

Money collected by a lawyer in pursuance of a judgment in favor of his clients is held in

trust and must be immediately turned over to them (Aya vs. Bigonia, 57 Phil. 8, 11).

xxx xxx xxx

A lawyer may be disbarred for any deceit, malpractice or other gross misconduct in his office as attorney or for any violation of the lawyer's oath (Ibid, sec. 27).

The relation between an attorney and his client is highly fiduciary in its nature and of a very delicate, exacting and confidential in character, requiring a high degree of fidelity and good faith (7 Am. Jur. 2d 105). In view of that special relationship, 'lawyers are bound to promptly account for money or property received by them on behalf of their clients and failure to do so constitutes professional misconduct. The fact that a lawyer has a lien for fees on money in his hands collected for his clients does not relieve him from the duty of promptly accounting for the funds received. (Emphasis supplied).

In fine, we are convinced that respondent is guilty of breach of trust reposed in him by his client. Not only has he degraded himself but as an unfaithful lawyer he has besmirched the fair name of an honorable profession (In re Paraiso, 41 Phil. 24, 25; In re David, 84 Phil. 627; Manaloto vs. Reyes, Adm. Case No. 503, October 29, 1965, 15 SCRA 131). By his deceitful conduct, he placed his client in jeopardy by becoming a defendant in a damage suit; thus, instead of being a help to his client, he became the cause of her misery. He, therefore, deserves a severe punishment for it. (Aya vs. Bigornia, 57 Phil. 8, 11; In re Bamberger, April 17, 1924, 49 Phil. 962; Daroy, et al., vs. Atty. Ramon Chaves Legaspi, supra.)

Clearly, respondent is guilty of professional misconduct in the discharge of his duty as a lawyer.

RECOMMENDATION

WHEREFORE, we respectfully recommend that respondent be suspended from the practice of law for a period of not less than one (1) year, and that he be strongly admonished to strictly and faithfully observe his duties to his clients. (pp. 78-85, Rollo)

We find the foregoing findings well considered and adopt the same but differ with the recommendation.

The actuations of respondent in retaining for his personal benefit over a one-year period, the amount of P5,220.00 received by him on behalf of his client, the complainant herein, depriving her of its use, and withholding information on the same despite inquiries made by her, is glaringly a breach of the Lawyer's Oath to which he swore observance, and an evident transgression of the Canons of Professional Ethics particularly:

11. DEALING WITH TRUST PROPERTY

The lawyer should refrain from any action whereby for his personal benefit or gain he abuses or takes advantage of the confidence reposed in him by his client.

Money of the client or collected for the client of other trust property coming into the possession of the lawyer should be reported and accounted for promptly, and should not under any circumstance be commingled with his own or be used by him. *

Indeed, by his professional misconduct, respondent has breached the trust reposed in him by his client. He has shown himself unfit for the confidence and trust which should characterize an attorney-client relationship and the practice of law. By reason thereof complainant was compelled to file a groundless suit against her tenant for non-payment of rentals thereby exposing her to jeopardy by becoming a defendant in a damage suit filed by said tenant against her By force of circumstances, complainant

was further compelled to engage the services of another counsel in order to recover the amount rightfully due her but which respondent had unjustifiedly withheld from her.

Respondent's unprofessional actuations considered, we are constrained to find him guilty of deceit, malpractice and gross misconduct in office. He has displayed lack of honesty and good moral character. He has violated his oath not to delay any man for money or malice, besmirched the name of an honorable profession and has proven himself unworthy of the trust reposed in him by law as an officer of the Court. He deserves the severest punishment.

WHEREFORE, consistent with the crying need to maintain the high traditions and standards of the legal profession and to preserve undiminished public faith in attorneys-at-law, the Court Resolved to DISBAR respondent, Atty. Manuel L. Melo, from the practice of law. His name is hereby ordered stricken from the Roll of Attorneys.

Copies of this Resolution shall be circulated to all Courts of the country and spread on the personal record of respondent Atty. Manuel L. Melo.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.

Gutierrez, Jr., J., took no part.

Footnotes

* Substantially reiterated in Rules 16.01. 16.02 and 16.03 of the (Code of Professional Responsibility promulgated by the Supreme Court on 21 June 1988.

The Lawphil Project - Arellano Law Foundation

EN BANC

[A.C. No. 3637.  January 24, 2001]

RURAL BANK OF SILAY, INC., complainant, vs. ATTY. ERNESTO H. PILLA, respondent.

D E C I S I O N

KAPUNAN, J.:

Rural Bank of Silay. Inc. (complainant) filed with this Court the instant complaint for disbarment against Atty. Ernesto H. Pilla (respondent) alleging deceit and gross misconduct on the part of the latter.  The complaint alleges as follows:

1.  That on July 23, 1975 the respondent executed a Real Estate Mortgage in favor of the complainant over a parcel of land located in the Municipality of Sagay, Negros Occidental, covered by Transfer Certificate of Title No. T-55380, purportedly as Attorney-in-Fact of the registered owners thereof, Pedro N. Torres and Oscar D. Granada.  A copy of this Real Estate Mortgage is herewith attached as Annex “A”.

2.  That together with the aforesaid Real Estate Mortgage the respondent submitted a Special Power of Attorney by virtue of which he was purportedly authorized and empowered by the registered owners Pedro Torres and Oscar D. Granada to mortgage the aforesaid parcel of land in favor of the complainant.  A copy of this Special Power of Attorney is herewith attached as Annex “B”.

3.  That on the security of, among others, the aforesaid parcel of land over which the respondent represented that he is authorized to mortgage, complainant extended and released a loan to the respondent in the amount of P91,427.00.

4.  That complainant subsequently and much later learned that the respondent was not at all authorized and empowered by the registered owner Oscar D. Granada to mortgage the aforesaid parcel of land when it was joined as a defendant in a complaint filed by the aforesaid Oscar D. Grananda for removal of cloud on title with preliminary injunction and damages.  A copy of this complaint is herewith attached as Annex “C”.

5.  That in the aforesaid complaint as well as in the hearing conducted in connection therewith Oscar D. Granada specifically and categorically denied having executed and signed the Special Power of Attorney, Annex B, submitted by the respondent to the complainant in support of his application for a loan.

6.  That the aforesaid civil case, Civil Case No. 1 of the Regional Trial Court of Negros Occidental, Branch 60, was subsequently decided against the respondent wherein the aforesaid Court found that the Special Power of Attorney, Annex B, was indeed forged and falsified because the spouses Oscar D. Grananda and Lolita L. Granada have not signed the same and wherein the Court also made the finding that the defendant, considering that he has benefited from the said falsified document, is presumed to have a hand in the preparation of the same.  A copy of this Decision is herewith attached as Annex “D”.

7.  That the respondent has not appealed from the aforesaid Decision thereby making the findings of fact made therein final as against him.

8.  That the foregoing acts of the respondent in presenting to the complainant Bank a forged and falsified Power of Attorney for the purpose of obtaining a loan is a betrayal of his oath as a lawyer to do falsehood to no man and by his conduct herein has forfeited his right to continue further in the practice of law.[1]

Upon the instance of the Court, respondent filed his comment refuting the charges of deceit and gross misconduct against him.  Respondent denied employing any deceit or misrepresentation in obtaining a loan from complainant rural bank.  According to respondent, he did not know that the signature of Oscar Granada on the special power of attorney appointing him (respondent) as attorney-in-fact was forged.  The special power of attorney purportedly authorized respondent to mortgaged the parcel of land in Sagay, Negros Occidental in favor of complainant rural bank.  Respondent also claimed that if indeed said document was forged, he was not a party to the forgery.  He cited the findings of the trial court in Civil Case No. 1-C, thus:

Although there is no showing that Atty. Ernesto H. Pilla has actually falsified the signatures of the spouses, Atty. Oscar D. Granada, yet considering that he actually benefited from the said falsified documents, he is presumed to have a hand on the same. (Decision, p. 20-annex “D”.)[2]

Respondent maintained that he obtained the loan from complainant rural bank without depriving it of the opportunity to investigate his financial capacity as well as to ascertain the genuineness of the special power of attorney under which he acted as the mortgagor.   Thus, respondent is of the view that, under the circumstances, it cannot be said that he employed deceit and gross misconduct against complainant rural bank.

After receipt of respondent’s comment, the Court referred the matter to the Integrated Bar of the Philippines (IBP) for investigation.  Both parties adduced their respective evidence before the Commission on Bar Discipline of the IBP.  Upon agreement of the parties, the matter was resolved on the basis of their respective pleadings and the annexes attached thereto.  From these pleadings, the IBP, through Commissioner Julio C. Elamparo, established the following uncontroverted facts:

Purportedly acting as attorney-in-fact of a certain Pedro Torres and  Oscar D. Granada, by virtue of a special power of attorney, respondent applied for a loan and concomitantly executed a Real Estate Mortgage in favor of the complainant bank covering the property of Pedro Torres and Oscar D. Granada.  With such security, complainant extended to the respondent his loan in the amount of P91,427.00.  In view of the failure of the respondent to pay the loan, the mortgaged property was foreclosed by the complainant bank.  Later, Oscar Granada, the real registered owner of the mortgaged property filed a complaint against the respondent and the complainant for the annulment of the Real Estate Mortgage and Special Power of

Attorney.  After the trial, the court declared null and void the said Special Power of Attorney as well as the Real Estate Mortgage for being products of forgery.  This decision was not appealed by the defendants.

There is no showing that respondent, despite the adverse decision, returned or offered to return the money he took from the complainant bank.  The bank then instituted this disbarment proceeding against the respondent.[3]

The IBP found from the above facts that respondent violated his oath as a lawyer to do no falsehood, thus:

This office believes that the actuation of the respondent constitutes a betrayal of his oath as a lawyer.  The findings of the Regional Trial Court of Negros Occidental has persuasive effect in this proceeding.

As found by the Regional Trial Court of Negros Occidental in its decision in Civil Case No. 1-C, entitled “Spouses Oscar D. Granada and Lolita L. Granada vs. Ernesto H. Pilla, et al”, the plaintiffs Granada spouses have not signed the questioned Special Power of Attorney in favor of the respondent and the said spouses’ signatures as appearing in the Special Power of Attorney are not their true and genuine signatures for actually they have not executed nor granted a Special Power of Attorney in favor of herein respondent authorizing him to mortgage the one-third (1/3) share of the said spouses in the mortgaged property.  The trial court stressed that:

“…Although there is no showing that Atty. Ernesto H. Pilla has actually falsified the signatures of the spouses, Atty.  Oscar D. Granada, yet considering that he actually benefited from the said falsified documents, he is presumed to have a hand on the same.

Defendant Antonio Pura testified and in fact he admitted that he notarized the said documents, Exhibit “A” and “B”, with the assurance of Atty. Pilla that the signatures appearing in the said documents were the signatures of Atty. Oscar D. Granada and of Pedro Torres, registered owners of the property in question.”

Antonio G. Pura, the notary public who notarized the questioned Special Power of Attorney in favor of the respondent, testified in said Civil Case as follows:

“Q Now, compañero, will you please relate to this Honorable Court the circumstances under which you notarized this Special Power of Attorney now marked as Exh. “A” on April 21, 1975?

“A Yes, sir.  I remember that on the same day, April 21, 1975, defendant Atty. Ernesto H. Pilla personally appeared before me and he brought along with him this Special Power of Attorney executed in his favor.  He told me to notarize it.  I asked him about the signature of

Atty. Oscar D. Granada if this is his signature and he said “Yes”.   I also asked him about the signature of the other principal and he said also “Yes”.  With that assurance and being a brother lawyer I accommodated him.  Knowing that he will not do anything that is illegal and I have confidence in him considering that he is a lawyer and he knows what he was doing, I accommodated him.”

(TSN, Hearing March 15, 1993, pp. 22-23, Civil Case No. 1, RTC, Branch LX, Cadiz City, Negros Occidental)

If indeed, respondent is not responsible for the falsification of the Special Power of Attorney, why did he not explain before the trial court or before this office the circumstances on how he obtained the same.  He did not even bother to identify his alleged client who provided him the forged Special Power of Attorney.  Instead, respondent is banking on his defense that the complainant bank has not introduced any evidence to prove that he forged the Special Power of Attorney.  He relied on the argument that his transaction with the complainant bank was purely commercial business and did not involve his capacity as a lawyer.  Further, if it is true  that the respondent maintains the highest degree of morality and integrity as he asserted, why did he represent before the notary public that the signatures appearing in the Special Power of Attorney were the signatures of the real owners if he was not actually aware that the signatures were that of the real owners.

The office is convinced that the actuation of the respondent is misrepresentation constituting gross misconduct at the very least.  This is a violation of  his oath as a lawyer to do falsehood to no man.[4]

In conclusion, Commissioner Elamparo recommended that respondent be suspended from the practice of law for five (5) years.  The IBP, through Resolution No. XIV-00-175, dated 7 April 2000, of its Board of Governors, substantially adopted and approved the report and recommendation of Commissioner Elamparo but modified the penalty.  The IBP RESOLVED as follows:

…to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution/Decision as annex “A”, and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, said recommendation is with modification that Respondent be SUSPENDED from the practice of law for THREE (3) years for misrepresentation.[5]

We fully agree with the findings of the Investigating Commissioner.

As correctly pointed out by the trial court in Civil Case No. 1-C, since respondent actually benefited from the falsified document, he is presumed to have a hand in the falsification of the

same.  Respondent miserably failed to rebut this presumption with his barefaced denial that he had no knowledge of the forgery.  The Court cannot give credence to respondent’s negative assertion that he did not know that the special power of attorney issued in his favor was falsified.  As a lawyer, respondent knows or ought to know that parties to a public document must personally appear before the notary public to attest that the same is their own free act and deed.  In utter disregard of this requirement, respondent caused the special power of attorney to be notarized without the parties appearing before the notary public. Thereafter, respondent presented the same to complainant rural bank in order to obtain a loan therefrom.  It is thus apparent that respondent had a hand in the falsification of the document especially considering that it was he who chiefly benefited from it.  Indeed, “the settled rule is that in the absence of satisfactory explanation, one found in possession of and who used a forged document is the forger and therefore guilty of falsification.”[6] Further, “if a person had in his possession a falsified document and he made use of it (uttered it), taking advantage of it and profiting thereby, the clear presumption is that he is the material author of the falsification.”[7]

Respondent’s acts clearly fall short of the standards set by the Code of Professional Responsibility, particularly Rule 1.01 thereof, which provides that “[a] lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.”  The fact that the conduct pertained to respondent’s private dealings with complainant rural bank is of no moment.  A lawyer may be suspended or disbarred for ANY misconduct, even if it pertains to his private activities, as long as it shows him to be wanting in moral character, honesty, probity, or good demeanor.[8] Possession of good moral character is not only a good condition precedent to the practice of law, but a continuing qualification for all members of the bar.[9]

Considering the foregoing, the recommendation of the IBP that respondent be suspended from the practice of law for a period of three (3) years is approved.

WHEREFORE, the Court hereby finds respondent Atty. Ernesto H. Pilla guilty of misconduct.  He is suspended from the practice of law for a period of three (3) years effective from receipt of this Resolution, with a warning that a repetition of the same or similar offense will be more severely dealt with.

Let a copy of this Resolution be furnished, upon its finality, to the Integrated Bar of the Philippines and all the courts in the Philippines, and spread on the personal record of respondent in the Office of the Bar Confidant, Supreme Court of the Philippines.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr.,and Sandoval-Gutierrez, JJ., concur.

[1] Records, Vol. I, pp. 1-2.

[2] Id., at 47.

[3] Id., at 61.

[4] Id., at 61-62.

[5] Id., at 56.

[6] Maliwat vs. Court of Appeals, 256 SCRA 718 (1996); Pecho vs. Sandiganbayan, 238 SCRA 116 (1994).

[7] Maliwat vs. CA, supra.

[8] Nakpil vs. Valdes, 286 SCRA 758, 774 (1998); Nadayag vs. Grageda, 237 SCRA 202 (1994).

[9] Nakpil vs. Valdes, supra.

FIRST DIVISION

[A C. No. 3919.  January 28, 1998]

SOCORRO T. CO, complainant, vs. ATTY. GODOFREDO N. BERNARDINO, respondent.

D E C I S I O N

BELLOSILLO, J.:

This is an administrative complaint for disbarment filed by complainant Socorro T. Co, a businesswoman, against Atty. Godofredo N. Bernardino charging him with unprofessional and unethical conduct indicating moral deficiency and unfitness to stay in the profession of law.

Socorro T. Co alleged that in October 1989, as she was following up the documents for her shipment at the Bureau of Customs, she was approached by respondent, Atty. Godofredo N. Bernardino, introducing himself as someone holding various positions in the Bureau of Customs such as Executive Assistant at the NAIA, Hearing Officer at the Law Division, and  OIC  of  the  Security  Warehouse.  Respondent offered to help complainant and promised to give her some business at the Bureau.  In no time, they became friends and a month after, or in November of the same year, respondent succeeded in borrowing from complainant P120,000.00 with the promise to pay the amount in full the following month, broadly hinting that he could use his influence at the Bureau of Customs to assist her.  To ensure payment of his obligation, respondent issued to complainant several postdated Boston Bank checks:  No. 092601 dated 1 December 1989 for P21,950.00, No. 092602 dated 4 December 1989 for P6,750.00, No. 092615 dated 15 January 1990 for P65,000.00 and No. 092622 dated 15 January 1990 for P10,000.00 (Exhs. "A-3," "B," "C," "D," respectively).  Respondent also issued a postdated Urban Development Bank check No. 051946 dated 9 January 1990 forP5,500.00 (Exh. "E").  However, the checks covering the total amount of P109,200.00 were dishonored for insufficiency of funds and closure of account. 

Pressed to make good his obligation, respondent told complainant that he would be able to pay her if she would lend him an additional amount of P75,000.00 to be paid a month after to be secured by a chattel mortgage on his Datsun car. [1] As complainant agreed respondent handed her three (3) copies of a deed of chattel mortgage which he himself drafted and six (6) copies of the deed of sale of his car with the assurance that

he would turn over its registration certificate and official receipt.  The agreement was not consummated as respondent later sold the same car to another.

Despite several chances given him to settle his obligation respondent chose to evade complainant altogether so that she was constrained to write  him  a  final  demand  letter  dated  22  September 1992[2] preceding the filing of several criminal complaints against him for violation of BP Blg. 22. [3] Complainant also filed a letter-complaint dated 5 October 1992 with the Office of the Ombudsman. [4]

It may be worth mentioning that a certain Emelinda Ortiz also filed several criminal and civil cases against respondent similarly involving money transactions.[5] Ms. Ortiz claimed that respondent had volunteered to sell to her a 20-footer container van filled with imported cotton fabric shirting raw materials from the Bureau of Customs warehouse for P600,000.00 in time for the holidays.  However, despite her successive payments to respondent totalling P410,000.00, the latter failed to deliver the goods as promised.  Worse, respondent's personal check forP410,000.00 representing reimbursement of the amount he received from Ms. Ortiz was returned dishonored for insufficiency of funds.

By way of defense, respondent averred that he gave the checks to complainant Co by way of rediscounting and that these were fully paid when he delivered five cellular phones to her.  He brushed aside the allegations of complainant and Ms. Ortiz as ill-motivated, vague, confusing, misleading and full of biases and prejudices.  Although he is married he insinuated a special relationship with the two (2) women which caused him to be careless in his dealings with them.

On 3 March 1993 the Court referred this administrative case to the Integrated Bar of the Philippines for investigation, report and recommendation. 

On 17 May 1997 the IBP issued a resolution recommending the suspension of respondent from the practice of law for six (6) months based on the following findings -

1.  No receipt has been produced by respondent showing that the face value of the subject checks has been paid or that the alleged five (5) units of cellular phones have been delivered to the complainant;

2.  The Decision in the criminal cases that were filed vis-a-vis the subject bouncing checks and wherein he was acquitted clearly shows that his acquittal was not due to payment of the obligation but rather that 'private complainant knew at the time the accused issued the checks that the latter did not have sufficient funds in the bank to cover the same.  No violation of BP Blg. 22 is committed where complainant was told by the drawer that he does not have sufficient funds in the bank; and

3.  Respondent subsequently paid the complainant as shown by a receipt dated 26 August 1995 x x x and the release of real estate mortgage x x x x If it

is true that he had already paid his obligation with five (5) cellular phones, why pay again?

The general rule is that a lawyer may not be suspended or disbarred, and the court may not ordinarily assume jurisdiction to discipline him for misconduct in his non-professional or private capacity (In Re Pelaez, 44 Phil. 5569 [1923]). Where, however, the misconduct outside of the lawyer's professional dealings is so gross a character as to show him morally unfit for the office and unworthy of the privilege which his licenses and the law confer on him, the court may be justified in suspending or removing him from the office of attorney (In Re Sotto,  38 Phil. 569 [1923]).

The evidence on record clearly shows respondent's propensity to issue bad checks.  This gross misconduct on his part, though not related to his professional duties as a member of the bar, puts his moral character in serious doubt.  The Commission, however, does not find him a hopeless case in the light of the fact that he eventually paid his obligation to the complainant, albeit very much delayed.[6]

While it is true that there was no attorney-client relationship between complainant and respondent as the transaction between them did not require the professional legal services of respondent, nevertheless respondent's abject conduct merits condemnation from this Court.  Thus we held in Lizaso v. Amante[7] where Atty. Amante enticed complainant to invest in the casino business with the proposition that her investment would yield her an interest of 10% profit  daily,  and Atty.  Amante  not  only  failed  to  deliver  the   promised return on the investment but also the principal thereof (P5,000.00) despite complainant's repeated demands -

As early as 1923, however, the Court laid down in In Re Vicente Pelaez  [44 Phil.567 (1923)] the principle that it can exercise its power to discipline lawyers for causes which do not involve the relationship of an attorney and client x x x x In disciplining the respondent, Mr. Justice Malcolm said:  x x x x As a general rule, a court will not assume jurisdiction to discipline one of its officers for misconduct alleged to have been committed in his private capacity.  But this is a general rule with many exceptions  x x x x  The nature of the office, the trust relation which exists between attorney and client, as well as between court and attorney, and the statutory rules prescribing the qualifications of attorneys, uniformly require that an attorney shall be a person of  good moral character.  If that qualification is a condition precedent to a license or privilege to enter upon the practice of the law, it would seem to be equally essential during the continuance of the practice and the exercise of the privilege.  So it is held that an attorney will be removed not only for

malpractice and dishonesty in his profession, but also for gross misconduct not connected with his professional duties, which shows him to be unfit for the office and unworthy of the privileges which his license and the law confer upon him  x x x x[8]

Ten years later, in Piatt v. Abordo [9] where the erring lawyer was suspended for one year from the practice of law for attempting to engage in an opium deal, Justice Malcolm reiterated that an attorney may be removed not only for malpractice and dishonesty in his profession, but also for gross misconduct not related to his professional duties which show him to be an unfit and unworthy lawyer.  "The courts are not curators of the morals of the bar.  At the same time the profession is not compelled to harbor all persons whatever their character, who are fortunate enough to keep out of prison.  As good character is an essential qualification for admission of an attorney to practice, when the attorney's character is bad in such respects as to show that he is unsafe and unfit to be entrusted with the powers of an attorney, the courts retain the power to discipline him x x x x Of all classes and professions, the lawyer is most sacredly bound to uphold the law x x x and to that doctrine we give our unqualified support."[10]

Finally, reference is made to Rule 1.01, Chapter 1, entitled The Lawyer and Society  of the Code of Professional Responsibility  which requires that "a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct."   "Conduct," as used in this Rule, is not limited to conduct exhibited in connection with the performance of professional duties.

In the case at bar, it is glaringly clear that the procurement of personal loans through insinuations of his power as an influence peddler in the Bureau of Customs, the issuance of a series of bad checks and the taking undue advantage of his position in the aforesaid government office constitute conduct in gross violation of Rule 1.01 of the Code of Professional Responsibility.

The recommended suspension of respondent for six (6) months is less than what he justly deserves.  His propinquity for employing deceit and misrepresentations as well  as  his  cavalier attitude towards incurring debts without the least intention of repaying them is reprehensible. This disturbing behavior cannot be tolerated most especially in a lawyer who is an officer of the court.

WHEREFORE, respondent ATTY. GODOFREDO N. BERNARDINO is SUSPENDED FOR ONE (1) YEAR from the practice of law with warning that repetition of the same or similar acts will merit a more severe penalty.  Let copies of this Decision be furnished all courts in the land, the Integrated Bar of the Philippines, the Office of the Bar Confidant and spread in respondent's personal records.

SO ORDERED.

Davide, Jr., (Chairman), Vitug, and Kapunan, JJ., concur.

[1] Exh. "F", complainant's Offer of Exhibits, p. 32

[2] Exh. "I,"  id., pp. 35-36.[3] Crim. Cases Nos. 99914-99918, Exhs. "M" to "Q,"  id., pp. 62-71.[4] Exh. "W," id., pp. 77-80.[5] Annex "J," IBP Records, Vol. III, pp. 37-38.[6] Report and Recommendation, Adm. Case No. 3919.[7] Adm. Case No. 2019, 3 June 1991, 198 SCRA 1.[8] Id., pp. 9-11.[9] 58 Phil. 350 (1933).[10] Id., pp. 351-352.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

A.C. No. 1512 January 29, 1993

VICTORIA BARRIENTOS, complainant, vs.TRANSFIGURACION DAAROL, respondent.

R E S O L U T I O N

 

PER CURIAM:

In a sworn complaint filed with this Court on August 20, 1975, complainant Victoria C. Barrientos seeks the disbarment of respondent Transfiguracion Daarol, ** a member of the Philippine Bar, on grounds of deceit and grossly immoral conduct.

After respondent filed his answer (Rollo, p. 12), the Court Resolved to refer the case to the Solicitor General for investigation, report and recommendation (Rollo, p. 18).

As per recommendation of the Solicitor General and for the convenience of the parties and their witnesses who were residing in the province of Zamboanga del Norte, the Provincial Fiscal of said province was authorized to conduct the investigation and to submit a report, together with transcripts of stenographic notes and exhibits submitted by the parties, if any (Rollo, p. 20).

On November 9, 1987, the Office of the Solicitor General submitted its Report and Recommendation, viz.:

Evidence of the complainant:

. . . complainant Victoria Barrientos was single and a resident of Bonifacio St., Dipolog City; that when she was still a teenager and first year in college she came to know respondent Transfiguracion Daarol in 1969 as he used to go to their house

being a friend of her sister Norma; that they also became friends, and she knew the respondent as being single and living alone in Galas, Dipolog City; that he was the General Manager of Zamboanga del Norte Electric Cooperative, Inc. (ZANECO) and subsequently transferred his residence to the ZANECO compound at Laguna Blvd. at Del Pilar St., Dipolog City (pp. 109-111, tsn, September 30, 1976).

That on June 27, 1973, respondent came to their house and asked her to be one of the usherettes in the Mason's convention in Sicayab, Dipolog City, from June 28 to 30, 1973 and, she told respondent to ask the permission of her parents, which respondent did, and her father consented; that for three whole days she served as usherette in the convention and respondent picked her up from her residence every morning and took her home from the convention site at the end of each day (pp. 112-114, tsn, id.).

That in the afternoon of July 1, 1973, respondent came to complainant's house and invited her for a joy ride with the permission of her mother who was a former classmate of respondent; that respondent took her to Sicayab in his jeep and then they strolled along the beach, and in the course of which respondent proposed his love to her; that respondent told her that if she would accept him, he would marry her within six (6) months from her acceptance; complainant told respondent that she would think it over first; that from then on respondent used to visit her in their house almost every night, and he kept on courting her and pressed her to make her decision on respondent's proposal; that on July 7, 1973, she finally accepted respondent's offer of love and respondent continued his usual visitations almost every night thereafter; they agreed to get married in December 1973 (pp. 115-119, tsn, id.).

That in the morning of August 20, 1973, respondent invited her, with the consent of her father, to a party at the Lopez Skyroom; that at 7:00 p.m. of that day respondent fetched her from her house and went to the Lopez Skyroom (pp. 119-121, tsn, id); that at about 10:00 p.m. of that evening they left the party at the Lopez Skyroom, but before taking her home respondent invited her for a joy ride and took her to the airport at Sicayab, Dipolog City; respondent parked the jeep by the beach where there were no houses around; that in the course of their conversation inside the jeep, respondent reiterated his promise to marry her and then started caressing her downward and his hand kept on moving to her panty and down to her private parts (pp. 121-122, tsn. id.); that she then said: "What is this Trans?", but he answered: "Day, do not be afraid of me. I will marry you" and reminded her also that "anyway, December is very near, the month we have been waiting for" ([p], 122, tsn, id.), then he pleaded, "Day, just give this to me, do not be afraid" (ibid), and again reiterated his promise and assurances, at the same time pulling down her panty; that she told him that she was afraid because they were not yet married, but because she loved him she finally agreed to have sexual intercourse with him at the back seat of the jeep; that after the intercourse she wept and respondent again reiterated his promises and assurances not to worry because anyway he would marry her; and at about 12:00 midnight they went home (pp.122-124, tsn, id.).

After August 20, 1973, respondent continued to invite her to eat outside usually at the Honeycomb Restaurant in Dipolog City about twice or three times a week, after which he would take her to the airport where they would have sexual intercourse; that they had this sexual intercourse from August to October 1973 at the frequency of

two or three times a week, and she consented to all these things because she loved him and believed in all his promises (pp. 125-127, tsn, id.).

Sometime in the middle part of September, 1973 complainant noticed that her menstruation which usually occurred during the second week of each month did not come; she waited until the end of the month and still there was no menstruation; she submitted to a pregnancy test and the result was positive; she informed respondent and respondent suggested to have the fetus aborted but she objected and respondent did not insist; respondent then told her not to worry because they would get married within one month and he would talk to her parents about their marriage (pp. 129-132, tsn,id.).

On October 20, 1973, respondent came to complainant's house and talked to her parents about their marriage; it was agreed that the marriage would be celebrated in Manila so as not to create a scandal as complainant was already pregnant; complainant and her mother left for Manila by boat on October 22, 1973 while respondent would follow by plane; and they agreed to meet in Singalong, Manila, in the house of complainant's sister Delia who is married to Ernesto Serrano (pp. 132-135, tsn, id.).

On October 26, 1973, when respondent came to see complainant and her mother at Singalong, Manila, respondent told them that he could not marry complainant because he was already married (p. 137, tsn, id.); complainant's mother got mad and said: "Trans, so you fooled my daughter and why did you let us come here in Manila?" (p. 138, tsn, id.). Later on, however, respondent reassured complainant not to worry because respondent had been separated from his wife for 16 years and he would work for the annulment of his marriage and, subsequently marry complainant (p. 139, tsn, id.); respondent told complainant to deliver their child in Manila and assured her of a monthly support of P250.00 (p. 140, tsn, id.); respondent returned to Dipolog City and actually sent the promised support; he came back to Manila in January 1974 and went to see complainant; when asked about the annulment of his previous marriage, he told complainant that it would soon be approved (pp. 141-142, tsn, id.); he came back in February and in March 1974 and told complainant the same thing (p. 142, tsn, id.); complainant wrote her mother to come to Manila when she delivers the child, but her mother answered her that she cannot come as nobody would be left in their house in Dipolog and instead suggested that complainant go to Cebu City which is nearer; complainant went to Cebu City in April 1974 and, her sister Norma took her to the Good Shepherd Convent at Banawa Hill; she delivered a baby girl on June 14, 1974 at the Perpetual Succor Hospital in Cebu City; and the child was registered as "Dureza Barrientos" (pp. 143-148, tsn, id.).

In the last week of June 1974 complainant came to Dipolog City and tried to contact respondent by phone and, thru her brother, but to no avail; as she was ashamed she just stayed in their house; she got sick and her father sent her to Zamboanga City for medical treatment; she came back after two weeks but still respondent did not come to see her (tsn. 48-150, tsn, id.); she consulted a lawyer and filed an administrative case against respondent with the National Electrification Administration; the case was referred to the Zamboanga del Norte Electric Cooperative (ZANECO) and it was dismissed and thus she filed the present administrative case (pp. 150-151, tsn, id.).

Evidence for the Respondent

The evidence of the respondent consists of his sole testimony and one exhibit, the birth certificate of the child (Exh. 1). Respondent declared substantially as follows: that he was born on August 6, 1932 in Liloy, Zamboanga del Norte; that he married Romualda Sumaylo in Liloy in 1955; that he had a son who is now 20 years old; that because of incompatibility he had been estranged from his wife for 16 years; that in 1953 he was baptized as a moslem and thereby embraced the Islam Religion (pp.173-180 tsn, Jan. 13, 1977); that he came to know complainant's father since 1952 because he was his teacher; likewise he knew complainant's mother because they were former classmates in high school; that he became acquainted with complainant when he used to visit her sister, Norma, in their house; they gradually became friends and often talked with each other, and even talked about their personal problems; that he mentioned to her his being estranged from his wife; that with the consent of her parents he invited her to be one of the usherettes in the Masonic Convention in Sicayab, Dipolog City held on June 28-30, 1973 (pp. 185-192, tsn, id.); that the arrangement was for him to fetch her from her residence and take her home from the convention site; that it was during this occasion that they became close to each other and after the convention, he proposed his love to her on July 7, 1973; that (sic) a week of courtship, she accepted his proposal and since then he used to invite her (pp. 193-194, tsn, id.).

That in the evening of August 20, 1973, respondent invited complainant to be his partner during the Chamber of Commerce affair at the Lopez Skyroom; that at about 10:00 p.m. of that evening after the affair, complainant complained to him of a headache, so he decided to take her home but once inside the jeep, she wanted to have a joy ride, so he drove around the city and proceeded to the airport; that when they were at the airport, only two of them, they started the usual kisses and they were carried by their passion; they forgot themselves and they made love; that before midnight he took her home; that thereafter they indulged in sexual intercourse many times whenever they went on joy riding in the evening and ended up in the airport which was the only place they could be alone(p. 195, tsn, id.).

That it was sometime in the later part of October 1973 that complainant told him of her pregnancy; that they agreed that the child be delivered in Manila to avoid scandal and respondent would take care of expenses; that during respondent's talk with the parents of complainant regarding the latter's pregnancy, he told him he was married but estranged from his wife; that when complainant was already in Manila, she asked him if he was willing to marry her, he answered he could not marry again, otherwise, he would be charged with bigamy but he promised to file an annulment of his marriage as he had been separated from his wife for 16 years; that complainant consented to have sexual intercourse with him because of her love to him and he did not resort to force, trickery, deceit or cajolery; and that the present case was filed against him by complainant because of his failure to give the money to support complainant while in Cebu waiting for the delivery of the child and, also to meet complainant's medical expenses when she went to Zamboanga City for medical check-up (pp. 198-207, tsn, id.).

FINDING OF FACTS

From the evidence adduced by the parties, the following facts are not disputed:

1. That the complainant, Victoria Barrientos, is single, a college student, and was about 20 years and 7 months old during the time (July-October 1975) of her relationship with respondent, having been born on December 23, 1952; while respondent Transfiguracion Daarol is married, General Manager of Zamboanga del Norte Electric Cooperative, and 41 years old at the time of the said relationship, having been born on August 6, 1932;

2. That respondent is married to Romualda A. Sumaylo with whom be has a son; that the marriage ceremony was solemnized on September 24, 1955 at Liloy, Zamboanga del Norte by a catholic priest, Rev. Fr. Anacleto Pellamo, Parish Priest thereat; and that said respondent had been separated from his wife for about 16 years at the time of his relationship with complainant;

3. That respondent had been known by the Barrientos family for quite sometime, having been a former student of complainant's father in 1952 and, a former classmate of complainant's mother at the Andres Bonifacio College in Dipolog City; that he became acquainted with complainant's sister, Norma in 1963 and eventually with her other sisters, Baby and Delia and, her brother, Boy, as he used to visit Norma at her residence; that he also befriended complainant and who became a close friend when he invited her, with her parents' consent, to be one of the usherettes during the Masonic Convention in Sicayab, Dipolog City from June 28 to 30, 1973, and he used to fetch her at her residence in the morning and took her home from the convention site after each day's activities;

4. That respondent courted complainant, and after a week of courtship, complainant accepted respondent's love on July 7, 1973; that in the evening of August 20, 1973, complainant with her parents' permission was respondent's partner during the Chamber of Commerce affair at the Lopez Skyroom in the Dipolog City, and at about 10:00 o'clock that evening, they left the place but before going home, they went to the airport at Sicayab, Dipolog City and parked the jeep at the beach, where there were no houses around; that after the usual preliminaries, they consummated the sexual act and at about midnight they went home; that after the first sexual act, respondent used to have joy ride with complainant which usually ended at the airport where they used to make love twice or three times a week; that as a result of her intimate relations, complainant became pregnant;

5. That after a conference among respondent, complainant and complainant's parents, it was agreed that complainant would deliver her child in Manila, where she went with her mother on October 22, 1973 by boat, arriving in Manila on the 25th and, stayed with her brother-in-law Ernesto Serrano in Singalong, Manila; that respondent visited her there on the 26th, 27th and 28th of October 1973, and again in February and March 1974; that later on complainant decided to deliver the child in Cebu City in order to be nearer to Dipolog City, and she went there in April 1974 and her sister took her to the Good Shepherd Convent at Banawa Hill, Cebu City; that on June 14, 1974, she delivered a baby girl at the Perpetual Succor Hospital in Cebu City and, named her "Dureza Barrientos"; that about the last week of June 1974 she went home to Dipolog City; that during her stay here in Manila and later in Cebu City, the respondent defrayed some of her expenses; that she filed an administrative case against respondent with the National Electrification Administration; which complaint, however, was dismissed; and then she instituted the present disbarment proceedings against respondent.

xxx xxx xxx

In view of the foregoing, the undersigned respectfully recommend that after hearing, respondent Transfiguracion Daarol be disbarred as a lawyer. (Rollo, pp. 28-51).

After a thorough review of the case, the Court finds itself in full accord with the findings and recommendation of the Solicitor General.

From the records, it appears indubitable that complainant was never informed by respondent attorney of his real status as a married individual. The fact of his previous marriage was disclosed by respondent only after the complainant became pregnant. Even then, respondent misrepresented himself as being eligible to re-marry for having been estranged from his wife for 16 years and dangled a marriage proposal on the assurance that he would work for the annulment of his first marriage. It was a deception after all as it turned out that respondent never bothered to annul said marriage. More importantly, respondent knew all along that the mere fact of separation alone is not a ground for annulment of marriage and does not vest him legal capacity to contract another marriage.

Interestingly enough. respondent lived alone in Dipolog City though his son, who was also studying in Dipolog City, lived separately from him. He never introduced his son and went around with friends as though he was never married much less had a child in the same locality. This circumstance alone belies respondent's claim that complainant and her family were aware of his previous marriage at the very start of his courtship. The Court is therefore inclined to believe that respondent resorted to deceit in the satisfaction of his sexual desires at the expense of the gullible complainant. It is not in accordance with the nature of the educated, cultured and respectable, which complainant's family is, her father being the Assistant Principal of the local public high school, to allow a daughter to have an affair with a married man.

But what surprises this Court even more is the perverted sense of respondent's moral values when he said that: "I see nothing wrong with this relationship despite my being married." (TSN, p. 209, January 13, 1977; Rollo, p. 47) Worse, he even suggested abortion. Truly, respondent's moral sense is so seriously impaired that we cannot maintain his membership in the Bar. In Pangan v. Ramos (107 SCRA 1 [1981]), we held that:

(E)ven his act in making love to another woman while his first wife is still alive and their marriage still valid and existing is contrary to honesty, justice, decency and morality. Respondent made a mockery of marriage which is a sacred institution demanding respect and dignity.

Finally, respondent even had the temerity to allege that he is a Moslem convert and as such, could enter into multiple marriages and has inquired into the possibility of marrying complainant (Rollo, p. 15). As records indicate, however, his claim of having embraced the Islam religion is not supported by any evidence save that of his self-serving testimony. In this regard, we need only to quote the finding of the Office of the Solicitor General, to wit:

When respondent was asked to marry complainant he said he could not because he was already married and would open him to a charge of bigamy (p. 200, tsn, January 13, 1977). If he were a moslem convert entitled to four (4) wives, as he is now claiming, why did he not marry complainant? The answer is supplied by respondent himself. He said while he was a moslem, but, having been married in a civil ceremony, he could no longer validly enter into another civil ceremony without committing bigamy because the complainant is a christian (p. 242, tsn, January 13, 1977). Consequently, if respondent knew, that notwithstanding his being a moslem

convert, he cannot marry complainant, then it was grossly immoral for him to have sexual intercourse with complainant because he knew the existence of a legal impediment. Respondent may not, therefore, escape responsibility thru his dubious claim that he has embraced the Islam religion. (Rollo,p. 49).

By his acts of deceit and immoral tendencies to appease his sexual desires, respondent Daarol has amply demonstrated his moral delinquency. Hence, his removal for conduct unbecoming a member of the Bar on the grounds of deceit and grossly immoral conduct (Sec. 27, Rule 138, Rules of Court) is in order. Good moral character is a condition which precedes admission to the Bar (Sec. 2, Rule 138, Rules of Court) and is not dispensed with upon admission thereto. It is a continuing qualification which all lawyers must possess (People v. Tuanda, 181 SCRA 682 [1990]; Delos Reyes v. Aznar, 179 SCRA 653 [1989]), otherwise, a lawyer may either be suspended or disbarred.

As we have held in Piatt v. Abordo (58 Phil. 350 [1933], cited in Leda v. Tabang, 206 SCRA 395 [1992]):

It cannot be overemphasized that the requirement of good character is not only a condition precedent to admission to the practice of law; its continued possession is also essential for remaining in the practice of law (People v. Tuanda, Adm. Case No. 3360, 30 January 1990, 181 SCRA 692). As aptly put by Mr. Justice George A. Malcolm: "As good character is an essential qualification for admission of an attorney to practice, when the attorney's character is bad in such respects as to show that he is unsafe and unfit to be entrusted with the powers of an attorney, the court retains the power to discipline him (Piatt v. Abordo, 58 Phil. 350 [1933]).

Only recently, another disbarment proceeding was resolved by this Court against a lawyer who convinced a woman that her prior marriage to another man was null and void ab initio and she was still legally single and free to marry him (the lawyer), married her, was supported by her in his studies, begot a child with her, abandoned her and the child, and married another woman (Terre vs. Terre, Adm. Case No. 2349, July 3, 1992).

Here, respondent, already a married man and about 41 years old, proposed love and marriage to complainant, then still a 20-year-old minor, knowing that he did not have the required legal capacity. Respondent then succeeded in having carnal relations with complainant by deception, made her pregnant, suggested abortion, breached his promise to marry her, and then deserted her and the child. Respondent is therefore guilty of deceit and grossly immoral conduct.

The practice of law is a privilege accorded only to those who measure up to the exacting standards of mental and moral fitness. Respondent having exhibited debased morality, the Court is constrained to impose upon him the most severe disciplinary action — disbarment.

The ancient and learned profession of law exacts from its members the highest standard of morality. The members are, in fact, enjoined to aid in guarding the Bar against the admission of candidates unfit or unqualified because deficient either moral character or education (In re Puno, 19 SCRA 439, [1967]; Pangan vs. Ramos, 107 SCRA 1 [1981]).

As officers of the court, lawyers must not only in fact be of good moral character but must also be seen to be of good moral character and must lead a life in accordance with the highest moral standards of the community. More specifically, a member of the Bar and an officer of the Court is not only required to refrain from adulterous relationships or the keeping of mistresses but must also behave himself in such a manner as to avoid scandalizing the public by creating the belief that he is

flouting those moral standards (Tolosa vs. Cargo, 171 SCRA 21, 26 [1989], citing Toledo vs. Toledo, 7 SCRA 757 [1963] and Royong vs. Oblena, 7 SCRA 859 [1963]).

In brief, We find respondent Daarol morally delinquent and as such, should not be allowed continued membership in the ancient and learned profession of law (Quingwa v. Puno, 19 SCRA 439 [1967]).

ACCORDINGLY, We find respondent Transfiguracion Daarol guilty of grossly immoral conduct unworthy of being a member of the Bar and is hereby ordered DISBARRED and his name stricken off from the Roll of Attorneys. Let copies of this Resolution be furnished to all courts of the land, the Integrated Bar of the Philippines, the Office of the Bar Confidant and spread on the personal record of respondent Daarol.

SO ORDERED.

Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo and Campos, Jr., JJ., concur.

The Lawphil Project - Arellano Law Foundation