G.R. No. 100113 September 3, 1991
RENATO
CAYETANO, petitioner,
vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON
APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacity as
Secretary of Budget and Management, respondents.
members of the Philippine Bar who have been engaged in the
practice of law for at least ten years.' (Emphasis supplied)
Regrettably, however, there seems to be no jurisprudence as to what
constitutes practice of law as a legal qualification to an appointive
office.
Black defines "practice of law" as:
We are faced here with a controversy of far-reaching proportions.
While ostensibly only legal issues are involved, the Court's decision in
this case would indubitably have a profound effect on the political
aspect of our national existence.
The 1987 Constitution provides in Section 1 (1), Article IX-C:
There shall be a Commission on Elections composed of a
Chairman and six Commissioners who shall be natural-born
citizens of the Philippines and, at the time of their
appointment, at least thirty-five years of age, holders of a
college degree, and must not have been candidates for any
elective position in the immediately preceding -elections.
However, a majority thereof, including the Chairman, shall be
members of the Philippine Bar who have been engaged in the
practice of law for at least ten years. (Emphasis supplied)
The aforequoted provision is patterned after Section l(l), Article XII-C
of the 1973 Constitution which similarly provides:
There shall be an independent Commission on Elections composed of
a Chairman and eight Commissioners who shall be natural-born
citizens of the Philippines and, at the time of their appointment, at
least thirty-five years of age and holders of a college degree.
However, a majority thereof, including the Chairman, shall be
The rendition of services requiring the knowledge and the
application of legal principles and technique to serve the
interest of another with his consent. It is not limited to
appearing in court, or advising and assisting in the conduct of
litigation, but embraces the preparation of pleadings, and
other papers incident to actions and special proceedings,
conveyancing, the preparation of legal instruments of all
kinds, and the giving of all legal advice to clients. It embraces
all advice to clients and all actions taken for them in matters
connected with the law. An attorney engages in the practice
of law by maintaining an office where he is held out to be-an
attorney, using a letterhead describing himself as an
attorney, counseling clients in legal matters, negotiating with
opposing counsel about pending litigation, and fixing and
collecting fees for services rendered by his associate. (Black's
Law Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of cases in court.
(Land Title Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193
N.E. 650) A person is also considered to be in the practice of law when
he:
... for valuable consideration engages in the business of
advising person, firms, associations or corporations as to
their rights under the law, or appears in a representative
capacity as an advocate in proceedings pending or
prospective, before any court, commissioner, referee, board,
body, committee, or commission constituted by law or
authorized to settle controversies and there, in such
representative capacity performs any act or acts for the
purpose of obtaining or defending the rights of their clients
under the law. Otherwise stated, one who, in a
representative capacity, engages in the business of advising
clients as to their rights under the law, or while so engaged
performs any act or acts either in court or outside of court
for that purpose, is engaged in the practice of law. (State ex.
rel. Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d 895, 340
Mo. 852)
This Court in the case of Philippine Lawyers
v.Agrava, (105 Phil. 173,176-177) stated:
Association
The practice of law is not limited to the conduct of cases
or litigation in court; it embraces the preparation of
pleadings and other papers incident to actions and special
proceedings, the management of such actions and
proceedings on behalf of clients before judges and courts,
and in addition, conveying. In general, all advice to clients,
and all action taken for them in matters connected with the
law incorporation services, assessment and condemnation
services contemplating an appearance before a judicial body,
the foreclosure of a mortgage, enforcement of a creditor's
claim in bankruptcy and insolvency proceedings, and
conducting proceedings in attachment, and in matters of
estate and guardianship have been held to constitute law
practice, as do the preparation and drafting of legal
instruments, where the work done involves the
determination by the trained legal mind of the legal effect of
facts and conditions. (5 Am. Jr. p. 262, 263). (Emphasis
supplied)
Practice of law under modem conditions consists in no small
part of work performed outside of any court and having no
immediate relation to proceedings in court. It embraces
conveyancing, the giving of legal advice on a large variety of
subjects, and the preparation and execution of legal
instruments covering an extensive field of business and trust
relations and other affairs. Although these transactions may
have no direct connection with court proceedings, they are
always subject to become involved in litigation. They require
in many aspects a high degree of legal skill, a wide experience
with men and affairs, and great capacity for adaptation to
difficult and complex situations. These customary functions
of an attorney or counselor at law bear an intimate relation
to the administration of justice by the courts. No valid
distinction, so far as concerns the question set forth in the
order, can be drawn between that part of the work of the
lawyer which involves appearance in court and that part
which involves advice and drafting of instruments in his
office. It is of importance to the welfare of the public that
these manifold customary functions be performed by
persons possessed of adequate learning and skill, of sound
moral character, and acting at all times under the heavy trust
obligations to clients which rests upon all attorneys.
(Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] ,
p. 665-666, citing In re Opinion of the Justices [Mass.], 194
N.E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service
Assoc. [R.I.] 179 A. 139,144). (Emphasis ours)
The University of the Philippines Law Center in conducting
orientation briefing for new lawyers (1974-1975) listed the
dimensions of the practice of law in even broader terms as advocacy,
counselling and public service.
One may be a practicing attorney in following any line of
employment in the profession. If what he does exacts
knowledge of the law and is of a kind usual for attorneys
engaging in the active practice of their profession, and he
follows some one or more lines of employment such as this
he is a practicing attorney at law within the meaning of the
statute. (Barr v. Cardell, 155 NW 312)
Practice of law means any activity, in or out of court, which requires
the application of law, legal procedure, knowledge, training and
experience. "To engage in the practice of law is to perform those acts
which are characteristics of the profession. Generally, to practice law
is to give notice or render any kind of service, which device or service
requires the use in any degree of legal knowledge or skill." (111 ALR
23)
The following records of the 1986 Constitutional Commission show
that it has adopted a liberal interpretation of the term "practice of
law."
MR. FOZ. Before we suspend the session, may I make a
manifestation which I forgot to do during our review of the
provisions on the Commission on Audit. May I be allowed to
make a very brief statement?
THE PRESIDING OFFICER (Mr. Jamir).
qualifications provided for by Section I is that "They must be
Members of the Philippine Bar" — I am quoting from the
provision — "who have been engaged in the practice of law
for at least ten years".
To avoid any misunderstanding which would result in excluding
members of the Bar who are now employed in the COA or
Commission on Audit, we would like to make the clarification that this
provision on qualifications regarding members of the Bar does not
necessarily refer or involve actual practice of law outside the COA We
have to interpret this to mean that as long as the lawyers who are
employed in the COA are using their legal knowledge or legal talent
in their respective work within COA, then they are qualified to be
considered for appointment as members or commissioners, even
chairman, of the Commission on Audit.
This has been discussed by the Committee on Constitutional
Commissions and Agencies and we deem it important to take it up on
the floor so that this interpretation may be made available whenever
this provision on the qualifications as regards members of the
Philippine Bar engaging in the practice of law for at least ten years is
taken up.
MR. OPLE. Will Commissioner Foz yield to just one question.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Is he, in effect, saying that service in the COA by a
lawyer is equivalent to the requirement of a law practice that
is set forth in the Article on the Commission on Audit?
The Commissioner will please proceed.
MR. FOZ. This has to do with the qualifications of the
members of the Commission on Audit. Among others, the
MR. FOZ. We must consider the fact that the work of COA,
although it is auditing, will necessarily involve legal work; it
will involve legal work. And, therefore, lawyers who are
employed in COA now would have the necessary
qualifications in accordance with the Provision on
qualifications under our provisions on the Commission on
Audit. And, therefore, the answer is yes.
as professional corporations and the members called shareholders.
In either case, the members of the firm are the experienced
attorneys. In most firms, there are younger or more inexperienced
salaried attorneyscalled "associates." (Ibid.).
MR. OPLE. Yes. So that the construction given to this is that
this is equivalent to the practice of law.
The test that defines law practice by looking to traditional areas of
law practice is essentially tautologous, unhelpful defining the
practice of law as that which lawyers do. (Charles W.
Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota,
1986], p. 593). The practice of law is defined as the performance of
any acts . . . in or out of court, commonly understood to be the
practice of law. (State Bar Ass'n v. Connecticut Bank & Trust Co., 145
Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v.
Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers
perform almost every function known in the commercial and
governmental realm, such a definition would obviously be too global
to be workable.(Wolfram, op. cit.).
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Thank you.
... ( Emphasis supplied)
Section 1(1), Article IX-D of the 1987 Constitution, provides, among
others, that the Chairman and two Commissioners of the Commission
on Audit (COA) should either be certified public accountants with not
less than ten years of auditing practice, or members of the Philippine
Bar who have been engaged in the practice of law for at least ten
years. (emphasis supplied)
Corollary to this is the term "private practitioner" and which is in
many ways synonymous with the word "lawyer." Today, although
many lawyers do not engage in private practice, it is still a fact that
the majority of lawyers are private practitioners. (Gary
Munneke, Opportunities in Law Careers [VGM Career Horizons:
Illinois], [1986], p. 15).
At this point, it might be helpful to define private practice. The term,
as commonly understood, means "an individual or organization
engaged in the business of delivering legal services." (Ibid.). Lawyers
who practice alone are often called "sole practitioners." Groups of
lawyers are called "firms." The firm is usually a partnership and
members of the firm are the partners. Some firms may be organized
The appearance of a lawyer in litigation in behalf of a client is at once
the most publicly familiar role for lawyers as well as an uncommon
role for the average lawyer. Most lawyers spend little time in
courtrooms, and a large percentage spend their entire practice
without litigating a case. (Ibid., p. 593). Nonetheless, many lawyers
do continue to litigate and the litigating lawyer's role colors much of
both the public image and the self perception of the legal profession.
(Ibid.).
In this regard thus, the dominance of litigation in the public mind
reflects history, not reality. (Ibid.). Why is this so? Recall that the late
Alexander SyCip, a corporate lawyer, once articulated on the
importance of a lawyer as a business counselor in this wise: "Even
today, there are still uninformed laymen whose concept of an
attorney is one who principally tries cases before the courts. The
members of the bench and bar and the informed laymen such as
businessmen, know that in most developed societies today,
substantially more legal work is transacted in law offices than in the
courtrooms. General practitioners of law who do both litigation and
non-litigation work also know that in most cases they find themselves
spending more time doing what [is] loosely desccribe[d] as business
counseling than in trying cases. The business lawyer has been
described as the planner, the diagnostician and the trial lawyer, the
surgeon. I[t] need not [be] stress[ed] that in law, as in medicine,
surgery should be avoided where internal medicine can be effective."
(Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).
In the course of a working day the average general practitioner wig
engage in a number of legal tasks, each involving different legal
doctrines, legal skills, legal processes, legal institutions, clients, and
other interested parties. Even the increasing numbers of lawyers in
specialized practice wig usually perform at least some legal services
outside their specialty. And even within a narrow specialty such as
tax practice, a lawyer will shift from one legal task or role such as
advice-giving to an importantly different one such as representing a
client before an administrative agency. (Wolfram, supra, p. 687).
By no means will most of this work involve litigation, unless the
lawyer is one of the relatively rare types — a litigator who specializes
in this work to the exclusion of much else. Instead, the work will
require the lawyer to have mastered the full range of traditional
lawyer skills of client counselling, advice-giving, document drafting,
and negotiation. And increasingly lawyers find that the new skills of
evaluation and mediation are both effective for many clients and a
source of employment. (Ibid.).
Most lawyers will engage in non-litigation legal work or in litigation
work that is constrained in very important ways, at least theoretically,
so as to remove from it some of the salient features of adversarial
litigation. Of these special roles, the most prominent is that of
prosecutor. In some lawyers' work the constraints are imposed both
by the nature of the client and by the way in which the lawyer is
organized into a social unit to perform that work. The most common
of these roles are those of corporate practice and government legal
service. (Ibid.).
In several issues of the Business Star, a business daily, herein below
quoted are emerging trends in corporate law practice, a departure
from the traditional concept of practice of law.
We are experiencing today what truly may be called a
revolutionary transformation in corporate law practice.
Lawyers and other professional groups, in particular those
members participating in various legal-policy decisional
contexts, are finding that understanding the major emerging
trends in corporation law is indispensable to intelligent
decision-making.
Constructive adjustment to major corporate problems of
today requires an accurate understanding of the nature and
implications of the corporate law research function
accompanied by an accelerating rate of information
accumulation. The recognition of the need for such improved
corporate legal policy formulation, particularly "modelmaking" and "contingency planning," has impressed upon us
the inadequacy of traditional procedures in many decisional
contexts.
In a complex legal problem the mass of information to be
processed, the sorting and weighing of significant conditional
factors, the appraisal of major trends, the necessity of
estimating the consequences of given courses of action, and
the need for fast decision and response in situations of acute
danger have prompted the use of sophisticated concepts of
information flow theory, operational analysis, automatic
data processing, and electronic computing equipment.
Understandably, an improved decisional structure must
stress the predictive component of the policy-making
process, wherein a "model", of the decisional context or a
segment thereof is developed to test projected alternative
courses of action in terms of futuristic effects flowing
therefrom.
the business issue raised. (Business Star, "Corporate Finance
Law," Jan. 11, 1989, p. 4).
Although members of the legal profession are regularly
engaged in predicting and projecting the trends of the law,
the subject of corporate finance law has received relatively
little organized and formalized attention in the philosophy of
advancing corporate legal education. Nonetheless, a crossdisciplinary approach to legal research has become a vital
necessity.
Despite the growing number of corporate lawyers, many
people could not explain what it is that a corporate lawyer
does. For one, the number of attorneys employed by a single
corporation will vary with the size and type of the
corporation. Many smaller and some large corporations farm
out all their legal problems to private law firms. Many others
have in-house counsel only for certain matters. Other
corporation have a staff large enough to handle most legal
problems in-house.
Certainly, the general orientation for productive
contributions by those trained primarily in the law can be
improved through an early introduction to multi-variable
decisional context and the various approaches for handling
such problems. Lawyers, particularly with either a master's
or doctorate degree in business administration or
management, functioning at the legal policy level of decisionmaking now have some appreciation for the concepts and
analytical techniques of other professions which are
currently engaged in similar types of complex decisionmaking.
Truth to tell, many situations involving corporate finance
problems would require the services of an astute attorney
because of the complex legal implications that arise from
each and every necessary step in securing and maintaining
In our litigation-prone country, a corporate lawyer is
assiduously referred to as the "abogado de campanilla." He
is the "big-time" lawyer, earning big money and with a
clientele composed of the tycoons and magnates of business
and industry.
A corporate lawyer, for all intents and purposes, is a lawyer
who handles the legal affairs of a corporation. His areas of
concern or jurisdiction may include, inter alia: corporate
legal research, tax laws research, acting out as corporate
secretary (in board meetings), appearances in both courts
and other adjudicatory agencies (including the Securities and
Exchange Commission), and in other capacities which require
an ability to deal with the law.
At any rate, a corporate lawyer may assume responsibilities
other than the legal affairs of the business of the corporation
he is representing. These include such matters as
determining policy and becoming involved in management. (
Emphasis supplied.)
In a big company, for example, one may have a feeling of
being isolated from the action, or not understanding how
one's work actually fits into the work of the orgarnization.
This can be frustrating to someone who needs to see the
results of his work first hand. In short, a corporate lawyer is
sometimes offered this fortune to be more closely involved
in the running of the business.
Such corporate legal management issues deal primarily with
three (3) types of learning: (1) acquisition of insights into
current advances which are of particular significance to the
corporate counsel; (2) an introduction to usable disciplinary
skins applicable to a corporate counsel's management
responsibilities; and (3) a devotion to the organization and
management of the legal function itself.
Moreover, a corporate lawyer's services may sometimes be
engaged by a multinational corporation (MNC). Some large
MNCs provide one of the few opportunities available to
corporate lawyers to enter the international law field. After
all, international law is practiced in a relatively small number
of companies and law firms. Because working in a foreign
country is perceived by many as glamorous, tills is an area
coveted by corporate lawyers. In most cases, however, the
overseas jobs go to experienced attorneys while the younger
attorneys do their "international practice" in law libraries.
(Business Star, "Corporate Law Practice," May 25,1990, p. 4).
These three subject areas may be thought of as intersecting
circles, with a shared area linking them. Otherwise known as
"intersecting managerial jurisprudence," it forms a unifying
theme for the corporate counsel's total learning.
This brings us to the inevitable, i.e., the role of the lawyer in
the realm of finance. To borrow the lines of Harvardeducated lawyer Bruce Wassertein, to wit: "A bad lawyer is
one who fails to spot problems, a good lawyer is one who
perceives the difficulties, and the excellent lawyer is one who
surmounts them." (Business Star, "Corporate Finance Law,"
Jan. 11, 1989, p. 4).
Today, the study of corporate law practice direly needs a
"shot in the arm," so to speak. No longer are we talking of the
traditional law teaching method of confining the subject
study to the Corporation Code and the Securities Code but an
incursion as well into the intertwining modern management
issues.
Some current advances in behavior and policy sciences affect
the counsel's role. For that matter, the corporate lawyer
reviews the globalization process, including the resulting
strategic repositioning that the firms he provides counsel for
are required to make, and the need to think about a
corporation's; strategy at multiple levels. The salience of the
nation-state is being reduced as firms deal both with global
multinational entities and simultaneously with sub-national
governmental units. Firms increasingly collaborate not only
with public entities but with each other — often with those
who are competitors in other arenas.
Also, the nature of the lawyer's participation in decisionmaking within the corporation is rapidly changing. The
modem corporate lawyer has gained a new role as a
stakeholder — in some cases participating in the organization
and operations of governance through participation on
boards and other decision-making roles. Often these new
patterns develop alongside existing legal institutions and
laws are perceived as barriers. These trends are complicated
as corporations organize for global operations. ( Emphasis
supplied)
Regarding the skills to apply by the corporate counsel, three
factors are apropos:
The practising lawyer of today is familiar as well with
governmental policies toward the promotion and
management
of
technology.
New
collaborative
arrangements for promoting specific technologies or
competitiveness more generally require approaches from
industry that differ from older, more adversarial relationships
and traditional forms of seeking to influence governmental
policies. And there are lessons to be learned from other
countries. In Europe, Esprit, Eureka and Race are examples
of collaborative efforts between governmental and business
Japan's MITI is world famous. (Emphasis supplied)
First System Dynamics. The field of systems dynamics has
been found an effective tool for new managerial thinking
regarding both planning and pressing immediate problems.
An understanding of the role of feedback loops, inventory
levels, and rates of flow, enable users to simulate all sorts of
systematic problems — physical, economic, managerial,
social, and psychological. New programming techniques now
make the system dynamics principles more accessible to
managers — including corporate counsels. (Emphasis
supplied)
Following the concept of boundary spanning, the office of the
Corporate Counsel comprises a distinct group within the
managerial structure of all kinds of organizations.
Effectiveness of both long-term and temporary groups within
organizations has been found to be related to indentifiable
factors in the group-context interaction such as the groups
actively revising their knowledge of the environment
coordinating work with outsiders, promoting team
achievements within the organization. In general, such
external activities are better predictors of team performance
than internal group processes.
In a crisis situation, the legal managerial capabilities of the
corporate lawyer vis-a-vis the managerial mettle of
corporations are challenged. Current research is seeking
ways both to anticipate effective managerial procedures and
to understand relationships of financial liability and
insurance considerations. (Emphasis supplied)
Second Decision Analysis. This enables users to make better
decisions involving complexity and uncertainty. In the context
of a law department, it can be used to appraise the
settlement value of litigation, aid in negotiation settlement,
and minimize the cost and risk involved in managing a
portfolio of cases. (Emphasis supplied)
Third Modeling for Negotiation Management. Computerbased models can be used directly by parties and mediators
in all lands of negotiations. All integrated set of such tools
provide coherent and effective negotiation support,
including hands-on on instruction in these techniques. A
simulation case of an international joint venture may be used
to illustrate the point.
[Be this as it may,] the organization and management of the
legal function, concern three pointed areas of consideration,
thus:
Preventive Lawyering. Planning by lawyers requires special
skills that comprise a major part of the general counsel's
responsibilities. They differ from those of remedial law.
Preventive lawyering is concerned with minimizing the risks
of legal trouble and maximizing legal rights for such legal
entities at that time when transactional or similar facts are
being considered and made.
Managerial Jurisprudence. This is the framework within
which are undertaken those activities of the firm to which
legal consequences attach. It needs to be directly supportive
of this nation's evolving economic and organizational fabric
as firms change to stay competitive in a global,
interdependent environment. The practice and theory of
"law" is not adequate today to facilitate the relationships
needed in trying to make a global economy work.
Organization and Functioning of the Corporate Counsel's
Office. The general counsel has emerged in the last decade
as one of the most vibrant subsets of the legal profession.
The corporate counsel hear responsibility for key aspects of
the firm's strategic issues, including structuring its global
operations, managing improved relationships with an
increasingly diversified body of employees, managing
expanded liability exposure, creating new and varied
interactions with public decision-makers, coping internally
with more complex make or by decisions.
This whole exercise drives home the thesis that knowing
corporate law is not enough to make one a good general
corporate counsel nor to give him a full sense of how the legal
system shapes corporate activities. And even if the corporate
lawyer's aim is not the understand all of the law's effects on
corporate activities, he must, at the very least, also gain a
working knowledge of the management issues if only to be
able to grasp not only the basic legal "constitution' or
makeup of the modem corporation. "Business Star", "The
Corporate Counsel," April 10, 1991, p. 4).
The challenge for lawyers (both of the bar and the bench) is
to have more than a passing knowledge of financial law
affecting each aspect of their work. Yet, many would admit
to ignorance of vast tracts of the financial law territory. What
transpires next is a dilemma of professional security: Will the
lawyer admit ignorance and risk opprobrium?; or will he feign
understanding and risk exposure? (Business Star, "Corporate
Finance law," Jan. 11, 1989, p. 4).
Respondent Christian Monsod was nominated by President Corazon
C. Aquino to the position of Chairman of the COMELEC in a letter
received by the Secretariat of the Commission on Appointments on
April 25, 1991. Petitioner opposed the nomination because allegedly
Monsod does not possess the required qualification of having been
engaged in the practice of law for at least ten years.
On June 5, 1991, the Commission on Appointments confirmed the
nomination of Monsod as Chairman of the COMELEC. On June 18,
1991, he took his oath of office. On the same day, he assumed office
as Chairman of the COMELEC.
Challenging the validity of the confirmation by the Commission on
Appointments of Monsod's nomination, petitioner as a citizen and
taxpayer, filed the instant petition for certiorari and Prohibition
praying that said confirmation and the consequent appointment of
Monsod as Chairman of the Commission on Elections be declared null
and void.
Atty. Christian Monsod is a member of the Philippine Bar, having
passed the bar examinations of 1960 with a grade of 86-55%. He has
been a dues paying member of the Integrated Bar of the Philippines
since its inception in 1972-73. He has also been paying his
professional license fees as lawyer for more than ten years. (p. 124,
Rollo)
After graduating from the College of Law (U.P.) and having hurdled
the bar, Atty. Monsod worked in the law office of his father. During
his stint in the World Bank Group (1963-1970), Monsod worked as an
operations officer for about two years in Costa Rica and Panama,
which involved getting acquainted with the laws of member-countries
negotiating loans and coordinating legal, economic, and project work
of the Bank. Upon returning to the Philippines in 1970, he worked with
the Meralco Group, served as chief executive officer of an investment
bank and subsequently of a business conglomerate, and since 1986,
has rendered services to various companies as a legal and economic
consultant or chief executive officer. As former Secretary-General
(1986) and National Chairman (1987) of NAMFREL. Monsod's work
involved being knowledgeable in election law. He appeared for
NAMFREL in its accreditation hearings before the Comelec. In the field
of advocacy, Monsod, in his personal capacity and as former CoChairman of the Bishops Businessmen's Conference for Human
Development, has worked with the under privileged sectors, such as
the farmer and urban poor groups, in initiating, lobbying for and
engaging in affirmative action for the agrarian reform law and lately
the urban land reform bill. Monsod also made use of his legal
knowledge as a member of the Davide Commission, a quast judicial
body, which conducted numerous hearings (1990) and as a member
of the Constitutional Commission (1986-1987), and Chairman of its
Committee on Accountability of Public Officers, for which he was cited
by the President of the Commission, Justice Cecilia Muñoz-Palma for
"innumerable amendments to reconcile government functions with
individual freedoms and public accountability and the party-list
system for the House of Representative. (pp. 128-129 Rollo) (
Emphasis supplied)
Just a word about the work of a negotiating team of which Atty.
Monsod used to be a member.
In a loan agreement, for instance, a negotiating panel acts as
a team, and which is adequately constituted to meet the
various contingencies that arise during a negotiation. Besides
top officials of the Borrower concerned, there are the legal
officer (such as the legal counsel), the finance manager, and
an operations officer (such as an official involved in
negotiating the contracts) who comprise the members of the
team. (Guillermo V. Soliven, "Loan Negotiating Strategies for
Developing Country Borrowers," Staff Paper No. 2, Central
Bank of the Philippines, Manila, 1982, p. 11). (Emphasis
supplied)
After a fashion, the loan agreement is like a country's
Constitution; it lays down the law as far as the loan
transaction is concerned. Thus, the meat of any Loan
Agreement can be compartmentalized into five (5)
fundamental parts: (1) business terms; (2) borrower's
representation; (3) conditions of closing; (4) covenants; and
(5) events of default. (Ibid., p. 13).
In the same vein, lawyers play an important role in any debt
restructuring program. For aside from performing the tasks
of legislative drafting and legal advising, they score national
development policies as key factors in maintaining their
countries' sovereignty. (Condensed from the work paper,
entitled "Wanted: Development Lawyers for Developing
Nations," submitted by L. Michael Hager, regional legal
adviser of the United States Agency for International
Development, during the Session on Law for the
Development of Nations at the Abidjan World Conference in
Ivory Coast, sponsored by the World Peace Through Law
Center on August 26-31, 1973). ( Emphasis supplied)
Loan concessions and compromises, perhaps even more so
than purely renegotiation policies, demand expertise in the
law of contracts, in legislation and agreement drafting and in
renegotiation. Necessarily, a sovereign lawyer may work with
an international business specialist or an economist in the
formulation of a model loan agreement. Debt restructuring
contract agreements contain such a mixture of technical
language that they should be carefully drafted and signed
only with the advise of competent counsel in conjunction
with the guidance of adequate technical support personnel.
(See International Law Aspects of the Philippine External
Debts, an unpublished dissertation, U.S.T. Graduate School of
Law, 1987, p. 321). ( Emphasis supplied)
A critical aspect of sovereign debt restructuring/contract
construction is the set of terms and conditions which
determines the contractual remedies for a failure to perform
one or more elements of the contract. A good agreement
must not only define the responsibilities of both parties, but
must also state the recourse open to either party when the
other fails to discharge an obligation. For a compleat debt
restructuring represents a devotion to that principle which in
the ultimate analysis is sine qua non for foreign loan
agreements-an adherence to the rule of law in domestic and
international affairs of whose kind U.S. Supreme Court
Justice Oliver Wendell Holmes, Jr. once said: "They carry no
banners, they beat no drums; but where they are, men learn
that bustle and bush are not the equal of quiet genius and
serene mastery." (See Ricardo J. Romulo, "The Role of
Lawyers in Foreign Investments," Integrated Bar of the
Philippine Journal, Vol. 15, Nos. 3 and 4, Third and Fourth
Quarters, 1977, p. 265).
Interpreted in the light of the various definitions of the term Practice
of law". particularly the modern concept of law practice, and taking
into consideration the liberal construction intended by the framers of
the Constitution, Atty. Monsod's past work experiences as a lawyereconomist, a lawyer-manager, a lawyer-entrepreneur of industry, a
lawyer-negotiator of contracts, and a lawyer-legislator of both the
rich and the poor — verily more than satisfy the constitutional
requirement — that he has been engaged in the practice of law for at
least ten years.
Besides in the leading case of Luego v. Civil Service Commission, 143
SCRA 327, the Court said:
Appointment is an essentially discretionary power and must
be performed by the officer in which it is vested according to
his best lights, the only condition being that the appointee
should possess the qualifications required by law. If he does,
then the appointment cannot be faulted on the ground that
there are others better qualified who should have been
preferred. This is a political question involving considerations
of wisdom which only the appointing authority can decide.
(emphasis supplied)
No less emphatic was the Court in the case of (Central Bank v. Civil
Service Commission, 171 SCRA 744) where it stated:
It is well-settled that when the appointee is qualified, as in
this case, and all the other legal requirements are satisfied,
the Commission has no alternative but to attest to the
appointment in accordance with the Civil Service Law. The
Commission has no authority to revoke an appointment on
the ground that another person is more qualified for a
particular position. It also has no authority to direct the
appointment of a substitute of its choice. To do so would
be an encroachment on the discretion vested upon the
appointing authority. An appointment is essentially within
the discretionary power of whomsoever it is vested, subject
to the only condition that the appointee should possess the
qualifications required by law. ( Emphasis supplied)
The appointing process in a regular appointment as in the case at bar,
consists of four (4) stages: (1) nomination; (2) confirmation by the
Commission on Appointments; (3) issuance of a commission (in the
Philippines, upon submission by the Commission on Appointments of
its certificate of confirmation, the President issues the permanent
appointment; and (4) acceptance e.g., oath-taking, posting of bond,
etc. . . . (Lacson v. Romero, No. L-3081, October 14, 1949; Gonzales,
Law on Public Officers, p. 200)
The power of the Commission on Appointments to give its consent to
the nomination of Monsod as Chairman of the Commission on
Elections is mandated by Section 1(2) Sub-Article C, Article IX of the
Constitution which provides:
The Chairman and the Commisioners shall be appointed by
the President with the consent of the Commission on
Appointments for a term of seven years without
reappointment. Of those first appointed, three Members
shall hold office for seven years, two Members for five years,
and the last Members for three years, without
reappointment. Appointment to any vacancy shall be only for
the unexpired term of the predecessor. In no case shall any
Member be appointed or designated in a temporary or acting
capacity.
Anent Justice Teodoro Padilla's separate opinion, suffice it to
say that his definition of the practice of law is the traditional
or stereotyped notion of law practice, as distinguished
from the modern concept of the practice of law, which
modern connotation is exactly what was intended by the
eminent framers of the 1987 Constitution. Moreover, Justice
Padilla's definition would require generally a habitual law
practice, perhaps practised two or three times a week
and would outlaw say, law practice once or twice a year for
ten consecutive years. Clearly, this is far from the
constitutional intent.
Upon the other hand, the separate opinion of Justice Isagani Cruz
states that in my written opinion, I made use of a definition of law
practice which really means nothing because the definition says that
law practice " . . . is what people ordinarily mean by the practice of
law." True I cited the definition but only by way of sarcasm as evident
from my statement that the definition of law practice by "traditional
areas of law practice is essentially tautologous" or defining a phrase
by means of the phrase itself that is being defined.
Justice Cruz goes on to say in substance that since the law covers
almost all situations, most individuals, in making use of the law, or in
advising others on what the law means, are actually practicing law. In
that sense, perhaps, but we should not lose sight of the fact that Mr.
Monsod is a lawyer, a member of the Philippine Bar, who has been
practising law for over ten years. This is different from the acts of
persons practising law, without first becoming lawyers.
Justice Cruz also says that the Supreme Court can even disqualify an
elected President of the Philippines, say, on the ground that he lacks
one or more qualifications. This matter, I greatly doubt. For one thing,
how can an action or petition be brought against the President? And
even assuming that he is indeed disqualified, how can the action be
entertained since he is the incumbent President?
We now proceed:
The Commission on the basis of evidence submitted doling the public
hearings on Monsod's confirmation, implicitly determined that he
possessed the necessary qualifications as required by law. The
judgment rendered by the Commission in the exercise of such an
acknowledged power is beyond judicial interference except only
upon a clear showing of a grave abuse of discretion amounting to lack
or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only
where such grave abuse of discretion is clearly shown shall the Court
interfere with the Commission's judgment. In the instant case, there
is no occasion for the exercise of the Court's corrective power, since
no abuse, much less a grave abuse of discretion, that would amount
to lack or excess of jurisdiction and would warrant the issuance of the
writs prayed, for has been clearly shown.
Additionally, consider the following:
(1) If the Commission on Appointments rejects a nominee by
the President, may the Supreme Court reverse the
Commission, and thus in effect confirm the appointment?
Clearly, the answer is in the negative.
Finally, one significant legal maxim is:
We must interpret not by the letter that killeth, but by the
spirit that giveth life.
Take this hypothetical case of Samson and Delilah. Once, the
procurator of Judea asked Delilah (who was Samson's beloved) for
help in capturing Samson. Delilah agreed on condition that —
No blade shall touch his skin;
No blood shall flow from his veins.
When Samson (his long hair cut by Delilah) was captured, the
procurator placed an iron rod burning white-hot two or three inches
away from in front of Samson's eyes. This blinded the man. Upon
hearing of what had happened to her beloved, Delilah was beside
herself with anger, and fuming with righteous fury, accused the
procurator of reneging on his word. The procurator calmly replied:
"Did any blade touch his skin? Did any blood flow from his veins?"
The procurator was clearly relying on the letter, not the spirit of the
agreement.
In view of the foregoing, this petition is hereby DISMISSED.
SO ORDERED.
(2) In the same vein, may the Court reject the nominee,
whom the Commission has confirmed? The answer is
likewise clear.
(3) If the United States Senate (which is the confirming body
in the U.S. Congress) decides to confirm a Presidential
nominee, it would be incredible that the U.S. Supreme Court
would still reverse the U.S. Senate.
B.M. No. 2540
September 24, 2013
Roll of Attorneys lost its urgency and compulsion, and was
subsequently forgotten."9
IN RE: PETITION TO SIGN IN THE ROLL OF ATTORNEYS
MICHAEL A. MEDADO, Petitioner.
We resolve the instant Petition to Sign in the Roll of Attorneys filed
by petitioner Michael A. Medado (Medado).
Medado graduated from the University of the Philippines with the
degree of Bachelor of Laws in 19791 and passed the same year's bar
examinations with a general weighted average of 82.7.2
On 7 May 1980, he took the Attorney’s Oath at the Philippine
International Convention Center (PICC) together with the successful
bar examinees.3 He was scheduled to sign in the Roll of Attorneys on
13 May 1980,4 but he failed to do so on his scheduled date, allegedly
because he had misplaced the Notice to Sign the Roll of
Attorneys5 given by the Bar Office when he went home to his
province for a vacation.6
Several years later, while rummaging through his old college files,
Medado found the Notice to Sign the Roll of Attorneys. It was then
that he realized that he had not signed in the roll, and that what he
had signed at the entrance of the PICC was probably just an
attendance record.7
By the time Medado found the notice, he was already working. He
stated that he was mainly doing corporate and taxation work, and
that he was not actively involved in litigation practice. Thus, he
operated "under the mistaken belief that since he had already taken
the oath, the signing of the Roll of Attorneys was not as urgent, nor
as crucial to his status as a lawyer";8 and "the matter of signing in the
In 2005, when Medado attended Mandatory Continuing Legal
Education (MCLE) seminars, he was required to provide his roll
number in order for his MCLE compliances to be credited.10
Not having signed in the Roll of Attorneys, he was unable to provide
his roll number.
About seven years later, or on 6 February 2012, Medado filed the
instant Petition, praying that he be allowed to sign in the Roll of
Attorneys.11
The Office of the Bar Confidant (OBC) conducted a clarificatory
conference on the matter on 21 September 201212and submitted a
Report and Recommendation to this Court on 4 February 2013.13 The
OBC recommended that the instant petition be denied for
petitioner’s gross negligence, gross misconduct and utter lack of
merit.14 It explained that, based on his answers during the
clarificatory conference, petitioner could offer no valid justification
for his negligence in signing in the Roll of Attorneys.15
After a judicious review of the records, we grant Medado’s prayer in
the instant petition, subject to the payment of a fine and the
imposition of a penalty equivalent to suspension from the practice of
law.
At the outset, we note that not allowing Medado to sign in the Roll
of Attorneys would be akin to imposing upon him the ultimate
penalty of disbarment, a penalty that we have reserved for the most
serious ethical transgressions of members of the Bar.
In this case, the records do not show that this action is warranted.
For one, petitioner demonstrated good faith and good moral
character when he finally filed the instant Petition to Sign in the Roll
of Attorneys. We note that it was not a third party who called this
Court’s attention to petitioner’s omission; rather, it was Medado
himself who acknowledged his own lapse, albeit after the passage of
more than 30 years. When asked by the Bar Confidant why it took
him this long to file the instant petition, Medado very candidly
replied:
Mahirap hong i-explain yan pero, yun bang at the time, what can you
say? Takot ka kung anong mangyayari sa ‘yo, you don’t know what’s
gonna happen. At the same time, it’s a combination of apprehension
and anxiety of what’s gonna happen. And, finally it’s the right thing
to do. I have to come here … sign the roll and take the oath as
necessary.16
For another, petitioner has not been subject to any action for
disqualification from the practice of law,17 which is more than what
we can say of other individuals who were successfully admitted as
members of the Philippine Bar. For this Court, this fact demonstrates
that petitioner strove to adhere to the strict requirements of the
ethics of the profession, and that he has prima facie shown that he
possesses the character required to be a member of the Philippine
Bar.
Finally, Medado appears to have been a competent and able legal
practitioner, having held various positions at the Laurel Law
Office,18 Petron, Petrophil Corporation, the Philippine National Oil
Company, and the Energy Development Corporation.19
All these demonstrate Medado’s worth to become a full-fledged
member of the Philippine Bar.1âwphi1 While the practice of law is
not a right but a privilege,20 this Court will not unwarrantedly
withhold this privilege from individuals who have shown mental
fitness and moral fiber to withstand the rigors of the profession.
That said, however, we cannot fully exculpate petitioner Medado
from all liability for his years of inaction.
Petitioner has been engaged in the practice of law since 1980, a
period spanning more than 30 years, without having signed in the Roll
of Attorneys.21 He justifies this behavior by characterizing his acts as
"neither willful nor intentional but based on a mistaken belief and an
honest error of judgment."22
We disagree.
While an honest mistake of fact could be used to excuse a person
from the legal consequences of his acts23 as it negates malice or evil
motive,24 a mistake of law cannot be utilized as a lawful justification,
because everyone is presumed to know the law and its
consequences.25 Ignorantia factiexcusat; ignorantia legis neminem
excusat.
Applying these principles to the case at bar, Medado may have at first
operated under an honest mistake of fact when he thought that what
he had signed at the PICC entrance before the oath-taking was
already the Roll of Attorneys. However, the moment he realized that
what he had signed was merely an attendance record, he could no
longer claim an honest mistake of fact as a valid justification. At that
point, Medado should have known that he was not a full-fledged
member of the Philippine Bar because of his failure to sign in the Roll
of Attorneys, as it was the act of signing therein that would have
made him so.26 When, in spite of this knowledge, he chose to
continue practicing law without taking the necessary steps to
complete all the requirements for admission to the Bar, he willfully
engaged in the unauthorized practice of law.
Under the Rules of Court, the unauthorized practice of law by one’s
assuming to be an attorney or officer of the court, and acting as such
without authority, may constitute indirect contempt of
court,27 which is punishable by fine or imprisonment or both.28 Such
a finding, however, is in the nature of criminal contempt29 and must
be reached after the filing of charges and the conduct of hearings.30 In
this case, while it appears quite clearly that petitioner committed
indirect contempt of court by knowingly engaging in unauthorized
practice of law, we refrain from making any finding of liability for
indirect contempt, as no formal charge pertaining thereto has been
filed against him.
transgression of the prohibition against the unauthorized practice of
law, we likewise see it fit to fine him in the amount of ₱32,000. During
the one year period, petitioner is warned that he is not allowed to
engage in the practice of law, and is sternly warned that doing any
act that constitutes practice of law before he has signed in the Roll of
Attorneys will be dealt with severely by this Court.
Knowingly engaging in unauthorized practice of law likewise
transgresses Canon 9 of 'the Code of Professional Responsibility,
which provides:
WHEREFORE, the instant Petition to Sign in the Roll of Attorneys is
hereby GRANTED. Petitioner Michael A. Medado is ALLOWED to sign
in the Roll of Attorneys ONE (1) YEAR after receipt of this Resolution.
Petitioner is likewise ORDERED to pay a FINE of ₱32,000 for his
unauthorized practice of law. During the one year period, petitioner
is NOT ALLOWED to practice law, and is STERNLY WARNED that doing
any act that constitutes practice of law before he has signed in the
Roll of Attorneys will be dealt will be severely by this Court.
CANON 9 -A lawyer shall not, directly or indirectly, assist in the
unauthorized practice of law.
Let a copy of this Resolution be furnished the Office of the Bar
Confidant, the Integrated Bar
While a reading of Canon 9 appears to merely prohibit lawyers from
assisting in the unauthorized practice of law, the unauthorized
practice of law by the lawyer himself is subsumed under this
provision, because at the heart of Canon 9 is the lawyer's duty to
prevent the unauthorized practice of law. This duty likewise applies
to law students and Bar candidates. As aspiring members of the Bar,
they are bound to comport themselves in accordance with the ethical
standards of the legal profession.
of the Philippines, and the Office of the Court Administrator for
circulation to all courts in the country.
Turning now to the applicable penalty, previous violations of Canon
9have warranted the penalty of suspension from the practice of
law.31 As Medado is not yet a full-fledged lawyer, we cannot suspend
him from the practice of law. However, we see it fit to impose upon
him a penalty akin to suspension by allowing him to sign in the Roll of
Attorneys one (1) year after receipt of this Resolution. For his
SO ORDERED.
A.C. No. 5118 September 9, 1999
(A.C. CBD No. 97-485)
MARILOU
vs.
ATTY. DOROTHEO CALIS, respondent.
SEBASTIAN, complainant,
For unlawful, dishonest, immoral or deceitful conduct as well as
violation of his oath as lawyer, respondent Atty. Dorotheo Calis faces
disbarment.
The facts of this administrative case, as found by the Commission on
Bar Discipline of the Integrated Bar of the Philippines (IBP), 1 in its
Report, are as follows:
Complainant (Marilou Sebastian) alleged that sometime in
November, 1992, she was referred to the respondent who promised
to process all necessary documents required for complainant's trip to
the USA for a fee of One Hundred Fifty Thousand Pesos
(P150,000.00).
On December 1, 1992 the complainant made a partial payment of the
required fee in the amount of Twenty Thousand Pesos (P20,000.00),
which was received by Ester Calis, wife of the respondent for which a
receipt was issued.
From the period of January 1993 to May 1994 complainant had
several conferences with the respondent regarding the processing of
her travel documents. To facilitate the processing, respondent
demanded an additional amount of Sixty Five Thousand Pesos
(P65,000.00) and prevailed upon complainant to resign from her job
as stenographer with the Commission on Human Rights.
On June 20, 1994, to expedite the processing of her travel documents
complainant issued Planters Development Bank Check No. 12026524
in the amount of Sixty Five Thousand Pesos (P65,000.00) in favor of
Atty. D. Calis who issued a receipt. After receipt of said amount,
respondent furnished the complainant copies of Supplemental to
U.S. Nonimmigrant Visa Application (Of. 156) and a list of questions
which would be asked during interviews.
When complainant inquired about her passport, Atty. Calis informed
the former that she will be assuming the name Lizette P. Ferrer
married to Roberto Ferrer, employed as sales manager of Matiao
Marketing, Inc. The complainant was furnished documents to
support her assumed identity.1âwphi1.nêt
Realizing that she will be travelling with spurious documents, the
complainant demanded the return of her money, however she was
assured by respondent that there was nothing to worry about for he
has been engaged in the business for quite sometime; with the
promise that her money will be refunded if something goes wrong.
Weeks before her departure respondent demanded for the payment
of the required fee which was paid by complainant, but the
corresponding receipt was not given to her.
When complainant demanded for her passport, respondent assured
the complainant that it will be given to her on her departure which
was scheduled on September 6, 1994. On said date complainant was
given her passport and visa issued in the name of Lizette P. Ferrer.
Complainant left together with Jennyfer Belo and a certain Maribel
who were also recruits of the respondent.
Upon arrival at the Singapore International Airport, complainant
together with Jennyfer Belo and Maribel were apprehended by the
Singapore Airport Officials for carrying spurious travel documents;
Complainant contacted the respondent through overseas telephone
call and informed him of by her predicament. From September 6 to
9, 1994, complainant was detained at Changi Prisons in Singapore.
On September 9, 1994 the complainant was deported back to the
Philippines and respondent fetched her from the airport and brought
her to his residence at 872-A Tres Marias Street, Sampaloc, Manila.
Respondent took complainant's passport with a promise that he will
secure new travel documents for complainant. Since complainant
opted not to pursue with her travel, she demanded for the return of
her money in the amount of One Hundred Fifty Thousand Pesos
(P150,000.00).
On June 4, 1996, June 18 and July 5, 1996 respondent made partial
refunds of P15,000.00; P6,000.00; and P5,000.00.
On December 19, 1996 the complainant through counsel, sent a
demand letter to respondent for the refund of a remaining balance
of One Hundred Fourteen Thousand Pesos (P114,000.00) which was
ignored by the respondent.
Sometime in March 1997 the complainant went to see the
respondent, however his wife informed her that the respondent was
in Cebu attending to business matters.
In May 1997 the complainant again tried to see the respondent
however she found out that the respondent had transferred to an
unknown residence apparently with intentions to evade
responsibility.
Attached to the complaint are the photocopies of receipts for the
amount paid by complainant, applications for U.S.A. Visa, questions
and answers asked during interviews; receipts acknowledging partial
refunds of fees paid by the complainant together with demand letter
for the remaining balance of One Hundred Fourteen Thousand Pesos
(P114,000.00); which was received by the respondent. 2
Despite several notices sent to the respondent requiring an answer
to or comment on the complaint, there was no response. Respondent
likewise failed to attend the scheduled hearings of the case. No
appearance whatsoever was made by the respondent. 3 As a result of
the inexplicable failure, if not obdurate refusal of the respondent to
comply with the orders of the Commission, the investigation against
him proceeded ex parte.
On September 24, 1998, the Commission on Bar Discipline issued its
Report on the case, finding that:
It appears that the services of the respondent was engaged for the
purpose of securing a visa for a U.S.A. travel of complainant. There
was no mention of job placement or employment abroad, hence it is
not correct to say that the respondent engaged in illegal recruitment.
The alleged proposal of the respondent to secure the U.S.A. visa for
the complainant under an assumed name was accepted by the
complainant which negates deceit on the part of the respondent.
Noted likewise is the partial refunds made by the respondent of the
fees paid by the complainant. However, the transfer of residence
without a forwarding address indicates his attempt to escape
responsibility.
In the light of the foregoing, we find that the respondent is guilty of
gross misconduct for violating Canon 1 Rule 1.01 of the Code of
Professional Responsibility which provides that a lawyer shall not
engage in unlawful, dishonest, immoral or deceitful conduct.
WHEREFORE, it is respectfully recommended that ATTY. DOROTHEO
CALIS be SUSPENDED as a member of the bar until he fully refunds
the fees paid to him by complainant and comply with the order of the
Commission on Bar Discipline pursuant to Rule 139-B, Sec. 6, of the
Rules of Court. 4
Pursuant to Section 12, Rule 139-B of the Rules of Court, this
administrative case was elevated to the IBP Board of Governors for
review. The Board in a Resolution 5 dated December 4, 1998 resolved
to adopt and approve with amendment the recommendation of the
Commission. The Resolution of the Board states:
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, with an amendment that Respondent Atty. Dorotheo Calis
be DISBARRED for having been found guilty of Gross Misconduct for
engaging in unlawful, dishonest, immoral or deceitful conduct.
We are now called upon to evaluate, for final action, the IBP
recommendation contained in its Resolution dated December 4,
1998, with its supporting report.
After examination and careful consideration of the records in this
case, we find the Resolution passed by the Board of Governors of the
IBP in order. We agree with the finding of the Commission that the
charge of illegal recruitment was not established because
complainant failed to substantiate her allegation on the matter. In
fact she did not mention any particular job or employment promised
to her by the respondent. The only service of the respondent
mentioned by the complainant was that of securing a visa for the
United States.
We likewise concur with the IBP Board of Governors in its Resolution,
that herein respondent is guilty of gross misconduct by engaging in
unlawful, dishonest, immoral or deceitful conduct contrary to Canon
I, Rule 101 of the Code of Professional Responsibility. Respondent
deceived the complainant by assuring her that he could give her visa
and travel documents; that despite spurious documents nothing
untoward would happen; that he guarantees her arrival in the USA
and even promised to refund her the fees and expenses already paid,
in case something went wrong. All for material gain.
Deception and other fraudulent acts by a lawyer are disgraceful and
dishonorable. They reveal moral flaws in a lawyer. They are
unacceptable practices. A lawyer's relationship with others should be
characterized by the highest degree of good faith, fairness and
candor. This is the essence of the lawyer's oath. The lawyer's oath is
not mere facile words, drift and hollow, but a sacred trust that must
be upheld and keep inviolable. 6 The nature of the office of an
attorney requires that he should be a person of good moral
character. 7 This requisite 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. 8 We have sternly
warned that any gross misconduct of a lawyer, whether in his
professional or private capacity, puts his moral character in serious
doubt as a member of the Bar, and renders him unfit to continue in
the practice of law. 9
It is dismaying to note how respondent so cavalierly jeopardized the
life and liberty of complainant when he made her travel with spurious
documents. How often have victims of unscrupulous travel agents
and illegal recruiters been imprisoned in foreign lands because they
were provided fake travel documents? Respondent totally
disregarded the personal safety of the complainant when he sent her
abroad on false assurances. Not only are respondent's acts illegal,
they are also detestable from the moral point of view. His utter lack
of moral qualms and scruples is a real threat to the Bar and the
administration of justice.
The practice of law is not a right but a privilege bestowed by the State
on those who show that they possess, and continue to possess, the
qualifications required by law for the conferment of such
privilege. 10 We must stress that membership in the bar is a privilege
burdened with conditions. A lawyer has the privilege to practice law
only during good behavior. He can be deprived of his license for
misconduct ascertained and declared by judgment of the court after
giving him the opportunity to be heard. 11
Here, it is worth noting that the adamant refusal of respondent to
comply with the orders of the IBP and his total disregard of the
summons issued by the IBP are contemptuous acts reflective of
unprofessional conduct. Thus, we find no hesitation in removing
respondent Dorotheo Calis from the Roll of Attorneys for his
unethical, unscrupulous and unconscionable conduct toward
complainant.
Lastly, the grant in favor of the complainant for the recovery of the
P114,000.00 she paid the respondent is in order. 12 Respondent not
only unjustifiably refused to return the complainant's money upon
demand, but he stubbornly persisted in holding on to it, unmindful of
the hardship and humiliation suffered by the complainant.
WHEREFORE, respondent Dorotheo Calis is hereby DISBARRED and
his name is ordered stricken from the Roll of Attorneys. Let a copy of
this Decision be FURNISHED to the IBP and the Bar Confidant to be
spread on the personal records of respondent. Respondent is likewise
ordered to pay to the complainant immediately the amount of One
Hundred Fourteen Thousand (P114,000.00) Pesos representing the
amount he collected from her.1âwphi1.nêt
SO ORDERED.
AC No. 99-634
June 10, 2002
DOMINADOR
P.
vs.
ATTY. ALBERTO C. MAGULTA, respondent.
Alberto C. Magulta, copy of the Receipt attached as Annex B, upon
the instruction that I needed the case filed immediately;
BURBE, complainant,
"That a week later, I was informed by Atty. Alberto C. Magulta that
the complaint had already been filed in court, and that I should
receive notice of its progress;
The Case
Before us is a Complaint for the disbarment or suspension or any
other disciplinary action against Atty. Alberto C. Magulta. Filed by
Dominador P. Burbe with the Commission on Bar Discipline of the
Integrated Bar of the Philippines (IBP) on June 14, 1999, the
Complaint is accompanied by a Sworn Statement alleging the
following:
"x x x
xxx
xxx
"That in connection with my business, I was introduced to Atty.
Alberto C. Magulta, sometime in September, 1998, in his office at the
Respicio, Magulta and Adan Law Offices at 21-B Otero Building, Juan
de la Cruz St., Davao City, who agreed to legally represent me in a
money claim and possible civil case against certain parties for breach
of contract;
"That consequent to such agreement, Atty. Alberto C. Magulta
prepared for me the demand letter and some other legal papers, for
which services I have accordingly paid; inasmuch, however, that I
failed to secure a settlement of the dispute, Atty. Magulta suggested
that I file the necessary complaint, which he subsequently drafted,
copy of which is attached as Annex A, the filing fee whereof will
require the amount of Twenty Five Thousand Pesos (P25,000.00);
"That having the need to legally recover from the parties to be sued
I, on January 4, 1999, deposited the amount of P25,000.00 to Atty.
"That in the months that followed, I waited for such notice from the
court or from Atty. Magulta but there seemed to be no progress in
my case, such that I frequented his office to inquire, and he would
repeatedly tell me just to wait;
"That I had grown impatient on the case, considering that I am told
to wait [every time] I asked; and in my last visit to Atty. Magulta last
May 25, 1999, he said that the court personnel had not yet acted on
my case and, for my satisfaction, he even brought me to the Hall of
Justice Building at Ecoland, Davao City, at about 4:00 p.m., where he
left me at the Office of the City Prosecutor at the ground floor of the
building and told to wait while he personally follows up the processes
with the Clerk of Court; whereupon, within the hour, he came back
and told me that the Clerk of Court was absent on that day;
"That sensing I was being given the run-around by Atty. Magulta, I
decided to go to the Office of the Clerk of Court with my draft of Atty.
Magulta's complaint to personally verify the progress of my case, and
there told that there was no record at all of a case filed by Atty.
Alberto C. Magulta on my behalf, copy of the Certification dated May
27, 1999, attached as Annex C;
"That feeling disgusted by the way I was lied to and treated, I
confronted Atty. Alberto C. Magulta at his office the following day,
May 28, 1999, where he continued to lie to with the excuse that the
delay was being caused by the court personnel, and only when shown
the certification did he admit that he has not at all filed the complaint
because he had spent the money for the filing fee for his own
purpose; and to appease my feelings, he offered to reimburse me by
issuing two (2) checks, postdated June 1 and June 5, 1999, in the
amounts of P12,000.00 and P8,000.00, respectively, copies of which
are attached as Annexes D and E;
"That for the inconvenience, treatment and deception I was
made to suffer, I wish to complain Atty. Alberto C. Magulta
for misrepresentation, dishonesty and oppressive conduct;"
xxx
xxx
x x x.1
On August 6, 1999, pursuant to the July 22, 1999 Order of the IBP
Commission
on
Bar
Discipline,2 respondent
filed
his
3
Answer vehemently denying the allegations of complainant "for
being totally outrageous and baseless." The latter had allegedly been
introduced as a kumpadre of one of the former's law partners. After
their meeting, complainant requested him to draft a demand letter
against Regwill Industries, Inc. -- a service for which the former never
paid. After Mr. Said Sayre, one of the business partners of
complainant, replied to this letter, the latter requested that another
demand letter -- this time addressed to the former -- be drafted by
respondent, who reluctantly agreed to do so. Without informing the
lawyer, complainant asked the process server of the former's law
office to deliver the letter to the addressee.
Aside from attending to the Regwill case which had required a threehour meeting, respondent drafted a complaint (which was only for
the purpose of compelling the owner to settle the case) and prepared
a compromise agreement. He was also requested by complainant to
do the following:
1. Write a demand letter addressed to Mr. Nelson Tan
2. Write a demand letter addressed to ALC Corporation
3. Draft a complaint against ALC Corporation
4. Research on the Mandaue City property claimed by
complainant's wife
All of these respondent did, but he was never paid for his services by
complainant.
Respondent likewise said that without telling him why, complainant
later on withdrew all the files pertinent to the Regwill case. However,
when no settlement was reached, the latter instructed him to draft a
complaint for breach of contract. Respondent, whose services had
never been paid by complainant until this time, told the latter about
his acceptance and legal fees. When told that these fees amounted
to P187,742 because the Regwill claim was almost P4 million,
complainant promised to pay on installment basis.
On January 4, 1999, complainant gave the amount of P25,000 to
respondent's secretary and told her that it was for the filing fee of the
Regwill case. When informed of the payment, the lawyer
immediately called the attention of complainant, informing the latter
of the need to pay the acceptance and filing fees before the
complaint could be filed. Complainant was told that the amount he
had paid was a deposit for the acceptance fee, and that he should
give the filing fee later.
Sometime in February 1999, complainant told respondent to suspend
for the meantime the filing of the complaint because the former
might be paid by another company, the First Oriental Property
Ventures, Inc., which had offered to buy a parcel of land owned by
Regwill Industries. The negotiations went on for two months, but the
parties never arrived at any agreement.
Sometime in May 1999, complainant again relayed to respondent his
interest in filing the complaint. Respondent reminded him once more
of the acceptance fee. In response, complainant proposed that the
complaint be filed first before payment of respondent's acceptance
and legal fees. When respondent refused, complainant demanded
the return of the P25,000. The lawyer returned the amount using his
own personal checks because their law office was undergoing
extensive renovation at the time, and their office personnel were not
reporting regularly. Respondent's checks were accepted and
encashed by complainant.
Respondent averred that he never inconvenienced, mistreated or
deceived complainant, and if anyone had been shortchanged by the
undesirable events, it was he.
The IBP's Recommendation
In its Report and Recommendation dated March 8, 2000, the
Commission on Bar Discipline of the Integrated Bar of the Philippines
(IBP) opined as follows:
"x x x [I]t is evident that the P25,000 deposited by
complainant with the Respicio Law Office was for the filing
fees of the Regwill complaint. With complainant's deposit of
the filing fees for the Regwill complaint, a corresponding
obligation on the part of respondent was created and that
was to file the Regwill complaint within the time frame
contemplated by his client, the complainant. The failure of
respondent to fulfill this obligation due to his misuse of the
filing fees deposited by complainant, and his attempts to
cover up this misuse of funds of the client, which caused
complainant additional damage and prejudice, constitutes
highly dishonest conduct on his part, unbecoming a member
of the law profession. The subsequent reimbursement by the
respondent of part of the money deposited by complainant
for filing fees, does not exculpate the respondent for his
misappropriation of said funds. Thus, to impress upon the
respondent the gravity of his offense, it is recommended that
respondent be suspended from the practice of law for a
period of one (1) year."4
The Court's Ruling
We agree with the Commission's recommendation.
Main
Misappropriation of Client's Funds
Issue:
Central to this case are the following alleged acts of respondent
lawyer: (a) his non-filing of the Complaint on behalf of his client and
(b) his appropriation for himself of the money given for the filing fee.
Respondent claims that complainant did not give him the filing fee
for the Regwill complaint; hence, the former's failure to file the
complaint in court. Also, respondent alleges that the amount
delivered by complainant to his office on January 4, 1999 was for
attorney's fees and not for the filing fee.
We are not persuaded. Lawyers must exert their best efforts and
ability in the prosecution or the defense of the client's cause. They
who perform that duty with diligence and candor not only protect the
interests of the client, but also serve the ends of justice. They do
honor to the bar and help maintain the respect of the community for
the legal profession.5 Members of the bar must do nothing that may
tend to lessen in any degree the confidence of the public in the
fidelity, the honesty, and integrity of the profession.6
Respondent wants this Court to believe that no lawyer-client
relationship existed between him and complainant, because the
latter never paid him for services rendered. The former adds that he
only drafted the said documents as a personal favor for
the kumpadre of one of his partners.
owe entire devotion to the interest of the client, warm zeal in the
maintenance and the defense of the client's rights, and the exertion
of their utmost learning and abilities to the end that nothing be taken
or withheld from the client, save by the rules of law legally applied.10
We disagree. A lawyer-client relationship was established from the
very first moment complainant asked respondent for legal advice
regarding the former's business. To constitute professional
employment, it is not essential that the client employed the attorney
professionally on any previous occasion. It is not necessary that any
retainer be paid, promised, or charged; neither is it material that the
attorney consulted did not afterward handle the case for which his
service had been sought.
Similarly unconvincing is the explanation of respondent that the
receipt issued by his office to complainant on January 4, 1999 was
erroneous. The IBP Report correctly noted that it was quite incredible
for the office personnel of a law firm to be prevailed upon by a client
to issue a receipt erroneously indicating payment for something else.
Moreover, upon discovering the "mistake" -- if indeed it was one -respondent should have immediately taken steps to correct the
error. He should have lost no time in calling complainant's attention
to the matter and should have issued another receipt indicating the
correct purpose of the payment.
If a person, in respect to business affairs or troubles of any kind,
consults a lawyer with a view to obtaining professional advice or
assistance, and the attorney voluntarily permits or acquiesces with
the consultation, then the professional employment is established.7
The
Practice
Profession, Not a Business
Likewise, a lawyer-client relationship exists notwithstanding the close
personal relationship between the lawyer and the complainant or the
nonpayment of the former's fees.8 Hence, despite the fact that
complainant was kumpadre of a law partner of respondent, and that
respondent dispensed legal advice to complainant as a personal favor
to the kumpadre, the lawyer was duty-bound to file the complaint he
had agreed to prepare -- and had actually prepared -- at the soonest
possible time, in order to protect the client's interest. Rule 18.03 of
the Code of Professional Responsibility provides that lawyers should
not neglect legal matters entrusted to them.
This Court has likewise constantly held that once lawyers agree to
take up the cause of a client, they owe fidelity to such cause and must
always be mindful of the trust and confidence reposed in them.9 They
of
Law
--
a
In this day and age, members of the bar often forget that the practice
of law is a profession and not a business.11Lawyering is not primarily
meant to be a money-making venture, and law advocacy is not a
capital that necessarily yields profits.12 The gaining of a livelihood is
not a professional but a secondary consideration.13 Duty to public
service and to the administration of justice should be the primary
consideration of lawyers, who must subordinate their personal
interests or what they owe to themselves. The practice of law is a
noble calling in which emolument is a byproduct, and the highest
eminence may be attained without making much money.14
In failing to apply to the filing fee the amount given by complainant - as evidenced by the receipt issued by the law office of respondent - the latter also violated the rule that lawyers must be scrupulously
careful in handling money entrusted to them in their professional
capacity.15 Rule 16.01 of the Code of Professional Responsibility
states that lawyers shall hold in trust all moneys of their clients and
properties that may come into their possession.
year, effective upon his receipt of this Decision. Let copies be
furnished all courts as well as the Office of the Bar Confidant, which
is instructed to include a copy in respondent's file.
Lawyers who convert the funds entrusted to them are in gross
violation of professional ethics and are guilty of betrayal of public
confidence in the legal profession.16 It may be true that they have a
lien upon the client's funds, documents and other papers that have
lawfully come into their possession; that they may retain them until
their lawful fees and disbursements have been paid; and that they
may apply such funds to the satisfaction of such fees and
disbursements. However, these considerations do not relieve them
of their duty to promptly account for the moneys they received. Their
failure to do so constitutes professional misconduct.17 In any event,
they must still exert all effort to protect their client's interest within
the bounds of law.
SO ORDERED.
If much is demanded from an attorney, it is because the entrusted
privilege to practice law carries with it correlative duties not only to
the client but also to the court, to the bar, and to the
public.18 Respondent fell short of this standard when he converted
into his legal fees the filing fee entrusted to him by his client and thus
failed to file the complaint promptly. The fact that the former
returned the amount does not exculpate him from his breach of duty.
On the other hand, we do not agree with complainant's plea to disbar
respondent from the practice of law. The power to disbar must be
exercised with great caution. Only in a clear case of misconduct that
seriously affects the standing and the character of the bar will
disbarment be imposed as a penalty.19
WHEREFORE, Atty. Alberto C. Magulta is found guilty of violating
Rules 16.01 and 18.03 of the Code of Professional Responsibility and
is hereby SUSPENDED from the practice of law for a period of one (1)
A.C. No. 6387
GABINO
V.
TOLENTINO
and
FLORDELIZA
C.
TOLENTINO, Complainants
vs.
ATTY. HENRY B. SO and ATTY. FERDINAND L.ANCHETA, Respondents
This resolves a disbarment case against respondent Atty. Henry B. So
for neglect in handling a case, and respondent Atty. Ferdinand L.
Ancheta for extorting ₱200,000.00 from a client.
Complainant Flordeliza C. Tolentino was the defendant in Civil Case
No. SC-2267 entitled "Benjamin Caballes v. Flordeliza Caballes," a
case involving recovery of possession of a parcel of land.1 On June 24,
1991, Branch 26 of the Regional Trial Court of Sta. Cruz, Laguna,
rendered the Decision2 against complainant Flordeliza ordering her
to vacate the land.
The case was appealed3 to the Court of Appeals through complainant
Flordeliza's counsel, Atty. Edilberto U. Coronado (Atty. Coronado).
While the appeal was pending, Atty. Coronado was replaced by Atty.
Henry B. So (Atty. So), a lawyer of the Bureau of Agrarian Legal
Assistance of the Department of Agrarian Reform.4
Complainants Flordeliza and Gabino V. Tolentino, her husband,
afterwards learned that the Court of Appeals affirmed5 the Regional
Trial Court Decision against complainant Flordeliza. Complainants
contend that Atty. So did not inform them nor take the necessary
action to elevate the case to this Court.6 Thus, they were compelled
to secure the legal services of Atty. Ferdinand L. Ancheta (Atty.
Ancheta), whom they paid ₱30,000.00 as acceptance fee.7
Atty. Ancheta allegedly promised them that there was still a remedy
against the adverse Court of Appeals Decision, and that he would file
a "motion to reopen appeal case."8 Atty. Ancheta also inveigled them
to part with the amount of ₱200,000.00 purportedly to be used for
making arrangements with tlie Justices of the Court of Appeals before
whom their case was pending.9
Initially, complainants did not agree to Atty. Ancheta's proposal
because they did not have the money and it was against the
law.10 However, they eventually acceded when Atty. Ancheta told
them that it was the only recourse they had to obtain a favorable
judgment.11
Hence, in January 2003, they deposited ₱200,000.00 to Atty.
Ancheta's Bank Account No. 1221275656 with the United Coconut
Planters Bank.12
Complainants were surprised to learn that no "motion to reopen
case" had been filed,13 and the Court of Appeals Decision had become
final and executory.14
Hence, complainants sought to recover the amount of ₱200,000.00
from Atty. Ancheta. Through a letter dated September 10, 200315 by
their new counsel, complainants demanded for the return of the
₱200,000.00. However, Atty. Ancheta did not heed their demand
despite receipt of the letter.
On May 17, 2004, complainants filed their Sinumpaang
Sakdal16 praying for the disbarment of Atty. So for neglect in handling
complainant Flordeliza's case, and Atty. Ancheta for defrauding them
of the amount of ₱200,000.00.
Atty. So counters that he was no longer connected with the Bureau
of Agrarian Legal Assistance of the Department of Agrarian Reform
when the Court of Appeals Decision was promulgated on July 16,
2001.17 He alleges that he worked at the Bureau from 1989 to 1997,
and that he resigned to prepare for the elections in his hometown in
Western Samar.18 It was a procedure in the Bureau that once a
handling lawyer resigns or retires, his or her cases are reassigned to
other lawyers of the Bureau.19
Atty. Ancheta did not file a comment despite due notice. Hence, in
this Court's Resolution dated February 23, 2011,20 he was deemed to
have waived his right to file a comment. This Court referred the case
to the Integrated Bar of the Philippines for investigation, report, and
recommendation.21
On June 8, 2011, the Commission on Bar Discipline of the Integrated
Bar of the Philippines directed the parties to appear for mandatory
conference at 10:00 a.m. on July 6, 2011.22 However, on July 6, 2011,
only Atty. So appeared.23 Since there was no showing on record that
complainants and Atty. Ancheta were notified, the mandatory
conference was reset to August 10, 2011 at 10:00 a.m.24
In the August 10, 2011 mandatory conference, complainant
Flordeliza was represented by her daughter, Arlyn Tolentino,
together with counsel, Atty. Restituto Mendoza.25 Arlyn Tolentino
informed the Commission that complainant Gabino V. Tolentino had
already died.26 Respondents did not appear despite due notice.27
Hence, the mandatory conference was terminated, and the parties
were directed to submit their respective verified position papers
within a non-extendible period of 10 days from notice. After, the case
would be submitted for report and recommendation.28
On September 19, 2011, complainant Flordeliza filed as her position
paper, a Motion for Adoption of the Pleadings and their Annexes in
this Case,29 including the relevant documents30 in Criminal Case No.
SC-1191 (for estafa) against Atty. Ancheta, which she filed.
Atty. So filed his Position Paper31 on September 15, 2011. Atty.
Ancheta did not file any position paper.32
The Commission on Bar Discipline recommended33 that Atty. So be
absolved of the charge against him for insufficiency of evidence.34 As
to Atty. Ancheta, the Commission found him guilty of serious
misconduct and deceit and recommended his disbarment.35
In the Resolution36 dated December 14, 2014, the Integrated Bar of
the Philippines Board of Governors adopted and approved the
findings and recommendations of the Investigating Commissioner.
On January 11, 2016, the Board of Governors transmitted its
Resolution to this Court for final action, pursuant to Rule 139-B of the
Rules of Court.37
This Court accepts and adopts the findings of the Integrated Bar of
the Philippines Board of Governors.
I
The Integrated Bar of the Philippines correctly absolved Atty. So of
the charge of negligence in the performance of his duties as counsel
of complainant Flordeliza.
Complainants fault Atty. So for failing to inform them about the Court
of Appeals Decision and for not taking the necessary steps to elevate
their case to this Court.38 However, it is undisputed that Atty. So was
no longer employed at the Bureau of Agrarian Legal Assistance when
the Court of Appeals Decision was rendered on July 16, 2001. Atty. So
had resigned in 1997, four (4) years before the Decision was
promulgated.39
Atty. So handled the appeal of complainant Flordeliza in his capacity
as a government-employed legal officer of the Bureau of Agrarian
Legal Assistance of the Department of Agrarian Reform. In his Notice
of Appearance40 dated August 11, 1993 and Motion to Admit
Additional Evidence41 dated November 22, 1993 filed before the
Court of Appeals, Atty. So affixed his signature under the
representation of the Bureau of Agrarian Legal Assistance.
Atty. So's appearance for complainant Flordeliza may be likened to
that of a lawyer assigned to handle a case for a private law firm's
client. If the counsel resigns, _the firm is simply bound to provide a
replacement.42 Similarly, upon Atty. So's resignation, the Director of
the Bureau merely reassigned his case assignment to other lawyers
in the Bureau even without complainants' consent.
It would have been prudent for Atty. So to have informed
complainants about his resignation and the eventual reassignment of
their case to another lawyer, although this was not required. Still,
Atty. So's omission is not of such gravity that would warrant his
disbarment or suspension. The serious consequences of disbarment
or suspension should follow only where there is a clear
preponderance of evidence of the respondent's misconduct affecting
his standing and moral character as an officer of the court and
member of the bar.43
On the other hand, complainants were not entirely blameless. Had
complainants been indeed vigilant in protecting their rights, they
should have followed up on the status of their appeal; thus, they
would have been informed of Atty. So's resignation. Atty. So resigned
four (4) years before the Court of Appeals Decision was
promulgated.44 Thus, complainants had ample time to engage the
services of a new lawyer to safeguard their interests if they chose to
do so. A party cannot blame his or her counsel for negligence when
he or she is guilty of neglect.45
II
The same conclusion cannot be made with regards Atty. Ancheta. We
agree with the Integrated Bar of the Philippines' recommendation
that he should be disbarred.
Atty. Ancheta's repeated failure to comply with several of this Court's
Resolutions requiring him to comment on the complaint lends
credence to complainants' allegations. It manifests his tacit
admission. Hence, we resolve this case on the basis of
complainants' Sinumpaang Sakdal and its Annexes.
It was established by the evidence on record that (1) Atty. Ancheta
received the acceptance fee of ₱30,000.00 on December 9,
2002;46 and (2) complainants deposited on January 17, 200347 the
amount of ₱200,000.00 to Atty. Ancheta's bank account. Atty.
Ancheta made false promises to complainants that something could
still be done with complainant Flordeliza's case despite the Court of
Appeals Decision having already attained finality on September 22,
2001.48 Worse, he proposed bribing the Justices of the Court of
Appeals in order to solve their legal dilemma.
Atty. Ancheta should have very well known that a decision that has
attained finality is no longer open for reversal and should be
respected.49 A lawyer's duty to assist in the speedy administration of
justice50 demands recognition that at a definite time, issues must be
laid to rest and litigation ended.51 As such, Ancheta should have
advised complainants to accept the judgment of the Court of Appeals
and accord respect to the just claim of the opposite party. He should
have tempered his clients' propensity to litigate and save them from
additional expense in pursuing their contemplated action. Instead, he
gave them confident assurances that the case could still be reopened
and even furnished them a copy of his prepared "motion to reopen
case." Despite his representation that he would file the motion,
however, he did not do so.52
Atty. Ancheta's deceit and evasion of duty is manifest. He accepted
the case though he knew the futility of an appeal. Despite receipt of
the ₱30,000.00 acceptance fee, he did not act on his client's case.
Moreover, he prevailed upon complainants to give him ₱200,000.00
purportedly to be used to bribe the Justices of the Court of Appeals
in order to secure a favorable ruling, palpably showing that he himself
was unconvinced of the merits of the case. "A lawyer shall not, for
any corrupt motive or interest, encourage any suit or proceeding or
delay any man's cause."53Atty. Ancheta's misconduct betrays his lack
of appreciation that the practice of law is a profession, not a moneymaking trade.54
As a servant of the law, Atty. Ancheta's primary duty was to obey the
laws and promote respect for the law and legal processes.55Corollary
to this duty is his obligation to abstain from dishonest or deceitful
conduct,56 as well as from "activities aimed at defiance of the law or
at lessening confidence in the legal system."57 Atty. Ancheta's advice
involving corruption of judicial officers tramps the integrity and
dignity of the legal profession and the judicial system and adversely
reflects on his fitness to practice law.
Complainants eventually found out about his duplicity and
demanded for the return of their money.58 Still, Atty. Ancheta did not
return the ₱200,000.00 and the ₱30,000.00 despite his failure to
render any legal service to his clients..59
Atty. Ancheta breached the following duties embodied in the Code of
Professional Responsibility:
CANON 7 - A LA WYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY
AND DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE
ACTIVITIES OF THE INTEGRATED BAR.
....
CANON 15 -A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND
LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS
CLIENTS.
....
Rule 15.05. - A lawyer, when advising his client, shall give a candid
and honest opinion on the merits and probable results of the client's
case, neither overstating nor understating the prospects of the case.
Rule 15.06. - A lawyer shall not state or imply that he is able to
influence any public official, tribunal or legislative body.
Rule 15.07. - A lawyer shall impress upon his client compliance with
the laws and the principles of fairness.
....
CANON 16 -A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND
PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS POSSESSION.
Rule 16.01. - A lawyer shall account for all money or property
collected or received for or from the client.
....
Rule 16.03. - A lawyer shall deliver the funds and property of his client
when due or upon demand ....
....
CANON 17 - A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT
AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE
REPOSED IN HIM.
CANON 18 - A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE
AND DILIGENCE.
....
Rule 18.03. - A lawyer shall not neglect a legal matter entrusted to
him, and his negligence in connection therewith shall render him
liable.
A lawyer "must at no time be wanting in probity and moral fiber,
which are not only conditions precedent to his entrance to the Bar
but are likewise essential demands for his continued membership
therein."60 Atty. Ancheta's deceit in dealing with his clients
constitutes gross professional misconduct61 and violates his oath,
thus justifying his disbarment under Rule 138, Section 2762 of the
Rules of Court.
Furthermore, his failure to heed the following Resolutions of the
Court despite notice aggravates his misconduct:
(1) Resolution63 dated June 21, 2004, requiring him to
comment on the complaint;
64
(2) Resolution dated October 16, 2006, directing him to
show cause why he should not be disciplinarily dealt with or
held in contempt for failure to comply with the June 21, 2004
Resolution;
(3) Resolution65 dated January 21, 2009, imposing upon him
the penalty of ₱l,000.00 for failure to comply with the June
21, 2004 and October 16, 2006 Resolutions;
(4) Resolution66 dated January 27, 2010, imposing an
additional fine of ₱2,000.00 or a penalty of imprisonment of
10 days for failure to comply with the January 21, 2009
Resolution; and
(5) Resolution67 dated January 12, 2011, ordering his arrest
and directing the National Bureau of Investigation to arrest
and detain him for five (5) days and until he complied with
the previous Resolutions.
Atty. Ancheta's cavalier attitude in repeatedly ignoring the orders of
this Court constitutes utter disrespect of the judicial institution. His
conduct shows a high degree of irresponsibility and betrays a
recalcitrant flaw in his character. Indeed, his continued indifference
to this Court's orders constitutes willful disobedience of the lawful
orders of this Court, which, under Rule 138, Section 2768 of the Rules
of Court, is in itself a sufficient cause for suspension or disbarment.
The maintenance of a high standard of legal proficiency, honesty, and
fair dealing69 is a prerequisite to making the bar an effective
instrument in the proper administration of justice.70 Any member,
therefore, who fails to live up to the exacting standards of integrity
and morality exposes himself or herself to administrative liability.71
Atty. Ancheta's violations show that he is unfit to discharge the duties
of a member of the legal profession.1âwphi1 Hence, he should be
disbarred.72
WHEREFORE, the complaint against respondent Atty. Henry B. So
is DISMISSED for insufficiency of evidence. On the other hand, this
Court finds respondent Atty. Ferdinand L. Ancheta GUILTY of gross
misconduct in violation of the Lawyer's Oath and the Code of
Professional Responsibility and hereby DISBARS him from the
practice of law. The Office of the Bar Confidant is DIRECTED to
remove the name of Ferdinand L. Ancheta from the Roll of Attorneys.
Respondent Ancheta is ORDERED to return to complainants Gabino
V. Tolentino and Flordeliza C. Tolentino, within 30 days from receipt
of this Resolution, the total amount of ₱230,000.00, with legal
interest at 12% per annum from the date of demand on September
10, 2003 to June 30, 2013, and at 6% per annum from July 1, 2013
until full payment. Respondent Ancheta is further DIRECTED to
submit to this Court proof of payment of the amount within 10 days
from payment.
Let copies of this Resolution be furnished to the Office of the Bar
Confidant, the Integrated Bar of the Philippines, and the Office of the
Court Administrator for dissemination to all courts in the country.
This Resolution takes effect immediately.
SO ORDERED.
A.C. No. 11316
PATRICK
A.
CARONAN, Complainant
vs.
RICHARD A. CARONAN a.k.a. "ATTY. PATRICK A. CARONAN,"
Respondent
The Facts
Complainant and respondent are siblings born to Porferio2 R.
Caronan, Jr. and Norma A. Caronan. Respondent is the older of the
two, having been born on February 7, 1975, while complainant was
born on August 5, 1976.3 Both of them completed their secondary
education at the Makati High School where complainant graduated
in 19934 and respondent in 1991.5 Upon his graduation, complainant
enrolled at the University of Makati where he obtained a degree in
Business Administration in 1997.6 He started working thereafter as a
Sales Associate for Philippine Seven Corporation (PSC), the operator
of 7-11 Convenience Stores.7 In 2001, he married Myrna G. Tagpis
with whom he has two (2) daughters.8 Through the years,
complainant rose from the ranks until, in 2009, he was promoted as
a Store Manager of the 7-11 Store in Muntinlupa.9
Meanwhile, upon graduating from high school, respondent enrolled
at the Pamantasan ng Lungsod ng Maynila (PLM), where he stayed
for one (1) year before transferring to the Philippine Military
Academy (PMA) in 1992.10 In 1993, he was discharged from the PMA
and focused on helping their father in the family's car rental business.
In 1997, he moved to Nueva Vizcaya with his wife, Rosana, and their
three (3) children.11 Since then, respondent never went back to
school to earn a college degree.12
In 1999, during a visit to his family in Metro Manila, respondent told
complainant that the former had enrolled in a law school in Nueva
Vizcaya.13
Subsequently, in 2004, their mother informed complainant that
respondent passed the Bar Examinations and that he used
complainant's name and college records from the University of
Makati to enroll at St. Mary's University's College of Law in
Bayombong,
Nueva
Vizcaya
and
take
the
Bar
Examinations.14 Complainant brushed these aside as he did not
anticipate any adverse consequences to him.15
In 2006, complainant was able to confirm respondent's use of his
name and identity when he saw the name "Patrick A. Caronan" on
the Certificate of Admission to the Bar displayed at the latter's office
in Taguig City.16 Nevertheless, complainant did not confront
respondent about it since he was pre-occupied with his job and had
a family to support.17
Sometime in May 2009, however, after his promotion as Store
Manager, complainant was ordered to report to the head office of
PSC in Mandaluyong City where, upon arrival, he was informed that
the National Bureau of Investigation (NBI) was requesting his
presence at its office in Taft Avenue, Manila, in relation to an
investigation involving respondent who, at that point, was using the
name "Atty. Patrick A. Caronan."18 Accordingly, on May 18, 2009,
complainant appeared before the Anti-Fraud and Computer Crimes
Division of the NBI where he was interviewed and asked to identify
documents including: (1) his and respondent's high school records;
(2) his transcript of records from the University of Makati; (3) Land
Transportation Office's records showing his and respondent's driver's
licenses; (4) records from St. Mary's University showing that
complainant's transcript of records from the University of Makati and
his Birth Certificate were submitted to St. Mary's University's College
of Law; and (5) Alumni Book of St. Mary's University showing
respondent's photograph under the name "Patrick A.
Caronan."19 Complainant later learned that the reason why he was
invited by the NBI was because of respondent's involvement in a case
for qualified theft and estafa filed by Mr. Joseph G. Agtarap
(Agtarap), who was one of the principal sponsors at respondent's
wedding.20
Realizing that respondent had been using his name to perpetrate
crimes and commit unlawful activities, complainant took it upon
himself to inform other people that he is the real "Patrick A. Caronan"
and that respondent's real name is Richard A. Caronan.21 However,
problems relating to respondent's use of the name "Atty. Patrick A.
Caronan" continued to hound him. In July 2013, PSC received a letter
from Quasha Ancheta Peña & Nolasco Law Offices requesting that
they be furnished with complainant's contact details or, in the
alternative, schedule a meeting with him to discuss certain matters
concerning respondent.22 On the other hand, a fellow churchmember had also told him that respondent who, using the name
"Atty. Patrick A. Caronan," almost victimized his (church-member's)
relatives.23 Complainant also received a phone call from a certain
Mrs. Loyda L. Reyes (Reyes), who narrated how respondent tricked
her into believing that he was authorized to sell a parcel of land in
Taguig City when in fact, he was not.24 Further, he learned that
respondent was arrested for gun-running activities, illegal possession
of explosives, and violation of Batas Pambansa Bilang (BP) 22.25
Due to the controversies involving respondent's use of the name
"Patrick A. Caronan," complainant developed a fear for his own safety
and security.26 He also became the subject of conversations among
his colleagues, which eventually forced him to resign from his job at
PSC.27 Hence, complainant filed the present Complaint-Affidavit to
stop respondent's alleged use of the former's name and identity, and
illegal practice of law.28
In his Answer,29 respondent denied all the allegations against him and
invoked res judicata as a defense. He maintained that his identity can
no longer be raised as an issue as it had already been resolved in CBD
Case No. 09-2362 where the IBP Board of Governors dismissed30 the
administrative case31 filed by Agtarap against him, and which case
had already been declared closed and terminated by this Court in A.C.
No. 10074.32 Moreover, according to him, complainant is being used
by Reyes and her spouse, Brigadier General Joselito M. Reyes, to
humiliate, disgrace, malign, discredit, and harass him because he filed
several administrative and criminal complaints against them before
the Ombudsman.33
On March 9, 2015, the IBP-CBD conducted the scheduled mandatory
conference where both parties failed to appear.34 Instead,
respondent moved to reset the same on April 20, 2015.35 On such
date, however, both paiiies again failed to appear, thereby prompting
the IBP-CBD to issue an Order36 directing them to file their respective
position papers. However, neither of the parties submitted any.37
The IBP's Report and Recommendation
On June 15, 2015, IBP Investigating Commissioner Jose Villanueva
Cabrera (Investigating Commissioner) issued his Report and
Recommendation,38 finding respondent guilty of illegally and falsely
assuming complainant's name, identity, and academic records.39 He
observed that respondent failed to controvert all the allegations
against him and did not present any proof to prove his identity.40 On
the other hand, complainant presented clear and overwhelming
evidence that he is the real "Patrick A. Caronan."41
Further, he noted that respondent admitted that he and complainant
are siblings when he disclosed upon his arrest on August 31, 2012
that: (a) his parents are Porferio Ramos Caronan and Norma Atillo;
and (b) he is married to Rosana Halili-Caronan.42 However, based on
the Marriage Certificate issued by the National Statistics Office (NSO),
"Patrick A. Caronan" is married to a certain "Myrna G. Tagpis," not to
Rosana Halili-Caronan.43
The Investigating Commissioner also drew attention to the fact that
the photograph taken of respondent when he was arrested as
"Richard A. Caronan" on August 16, 2012 shows the same person as
the one in the photograph in the IBP records of "Atty. Patrick A.
Caronan."44 These, according to the Investigating Commissioner,
show that respondent indeed assumed complainant's identity to
study law and take the Bar Examinations.45 Since respondent falsely
assumed the name, identity, and academic records of complainant
and the real "Patrick A. Caronan" neither obtained the bachelor of
laws degree nor took the Bar Exams, the Investigating Commissioner
recommended that the name "Patrick A. Caronan" with Roll of
Attorneys No. 49069 be dropped and stricken off the Roll of
Attorneys.46He also recommended that respondent and the name
"Richard A. Caronan" be barred from being admitted as a member of
the Bar; and finally, for making a mockery of the judicial institution,
the IBP was directed to institute appropriate actions against
respondent.47
On June 30, 2015, the IBP Board of Governors issued Resolution No.
XXI-2015-607,48 adopting
the
Investigating
Commissioner's
recommendation.
After a thorough evaluation of the records, the Court finds no cogent
reason to disturb the findings and recommendations of the IBP.
As correctly observed by the IBP, complainant has established by
clear and overwhelming evidence that he is the real "Patrick A.
Caronan" and that respondent, whose real name is Richard A.
Caronan, merely assumed the latter's name, identity, and academic
records to enroll at the St. Mary's University's College of Law, obtain
a law degree, and take the Bar Examinations.
As pointed out by the IBP, respondent admitted that he and
complainant are siblings when he disclosed upon his arrest on August
31, 2012 that his parents are Porferio Ramos Caronan and Norma
Atillo.49 Respondent himself also stated that he is married to Rosana
Halili-Caronan.50 This diverges from the official NSO records showing
that "Patrick A. Caronan" is married to Myrna G. Tagpis, not to Rosana
Halili-Caronan.51 Moreover, the photograph taken of respondent
when he was arrested as "Richard A. Caronan" on August 16, 2012
shows the same person as the one in the photograph in the IBP
records of "Atty. Patrick A. Caronan."52 Meanwhile, complainant
submitted numerous documents showing that he is the real "Patrick
A. Caronan," among which are: (a) his transcript of records from the
University of Makati bearing his photograph;53 (b) a copy of his high
school yearbook with his photograph and the name "Patrick A.
Caronan" under it;54 and (c) NBI clearances obtained in 2010 and
2013.55
The Issues Before the Court
The issues in this case are whether or not the IBP erred in ordering
that: (a) the name "Patrick A. Caronan" be stricken off the Roll of
Attorneys; and (b) the name "Richard A. Caronan" be barred from
being admitted to the Bar.
The Court's Ruling
To the Court's mind, the foregoing indubitably confirm that
respondent falsely used complainant's name, identity, and school
records to gain admission to the Bar. Since complainant - the real
"Patrick A. Caronan" - never took the Bar Examinations, the IBP
correctly recommended that the name "Patrick A. Caronan" be
stricken off the Roll of Attorneys.
The IBP was also correct in ordering that respondent, whose real
name is "Richard A. Caronan," be barred from admission to the Bar.
Under Section 6, Rule 138 of the Rules of Court, no applicant for
admission to the Bar Examination shall be admitted unless he had
pursued and satisfactorily completed a pre-law course, VIZ.:
Section 6. Pre-Law. - No applicant for admission to the bar
examination shall be admitted unless he presents a certificate that
he has satisfied the Secretary of Education that, before he began the
study of law, he had pursued and satisfactorily completed in an
authorized and recognized university or college, requiring for
admission thereto the completion of a four-year high school
course, the course of study prescribed therein for a bachelor's
degree in arts or sciences with any of the following subject as major
or field of concentration: political science, logic, english, spanish,
history, and economics. (Emphases supplied)
In the case at hand, respondent never completed his college degree.
While he enrolled at the PLM in 1991, he left a year later and entered
the PMA where he was discharged in 1993 without
graduating.56 Clearly, respondent has not completed the requisite
pre-law degree.
The Court does not discount the possibility that respondent may later
on complete his college education and earn a law degree under his
real name.1âwphi1 However, his false assumption of his brother's
name, identity, and educational records renders him unfit for
admission to the Bar. The practice of law, after all, is not a natural,
absolute or constitutional right to be granted to everyone who
demands it.57 Rather, it is a privilege limited to citizens of good moral
character.58 In In the Matter of the Disqualification of Bar Examinee
Haron S. Meling in the 2002 Bar Examinations and for Disciplinary
Action as Member of the Philippine Shari 'a Bar, Atty. Froilan R.
Melendrez,59the Court explained the essence of good moral
character:
Good moral character is what a person really is, as distinguished from
good reputation or from the opinion generally entertained of him,
the estimate in which he is held by the public in the place where he
is known. Moral character is not a subjective term but one which
corresponds to objective reality. The standard of personal and
professional integrity is not satisfied by such conduct as it merely
enables a person to escape the penalty of criminal law. Good moral
character includes at least common honesty.60 (Emphasis supplied)
Here, respondent exhibited his dishonesty and utter lack of moral
fitness to be a member of the Bar when he assumed the name,
identity, and school records of his own brother and dragged the latter
into controversies which eventually caused him to fear for his safety
and to resign from PSC where he had been working for years. Good
moral character is essential in those who would be lawyers.61 This is
imperative in the nature of the office of a lawyer, the trust relation
which exists between him and his client, as well as between him and
the court.62
Finally, respondent made a mockery of the legal profession by
pretending to have the necessary qualifications to be a lawyer. He
also tarnished the image of lawyers with his alleged unscrupulous
activities, which resulted in the filing of several criminal cases against
him. Certainly, respondent and his acts do not have a place in the
legal profession where one of the primary duties of its members is to
uphold its integrity and dignity.63
WHEREFORE, respondent Richard A. Caronan a.k.a. "Atty. Patrick A.
Caronan" (respondent) is found GUILTY of falsely assuming the
name, identity, and academic records of complainant Patrick A.
Caronan (complainant) to obtain a law degree and take the Bar
Examinations. Accordingly, without prejudice to the filing of
appropriate civil and/or criminal cases, the Court hereby resolves
that:
(1) the name "Patrick A. Caronan" with Roll of Attorneys No. 49069 is
ordered DROPPED and STRICKEN OFF the Roll of Attorneys;
(2) respondent is PROHIBITED from engaging in the practice of law or
making any representations as a lawyer;
(3) respondent is BARRED from being admitted as a member of the
Philippine Bar in the future;
(4) the Identification Cards issued by the Integrated Bar of the
Philippines to respondent under the name "Atty. Patrick A. Caronan"
and the Mandatory Continuing Legal Education Certificates issued in
such name are CANCELLED and/or REVOKED; and
(5) the Office of the Court Administrator is ordered
to CIRCULATE notices and POST in the bulletin boards of all courts of
the country a photograph of respondent with his real name, " Richard
A. Caronan," with a warning that he is not a member of the Philippine
Bar and a statement of his false assumption of the name and identity
of "Patrick A. Caronan."
Let a copy of this Decision be furnished the Office of the Bar
Confidant, the Integrated Bar of the Philippines, and the Office of the
Court Administrator.
SO ORDERED.