CASE NUMBER 1 Despite this penalty, respondent still continued to cohabit with Elena, giving rise to another
charge of immorality and other administrative cases, such as: conduct unbecoming an officer
A.C. No. 4148 July 30, 1998
REMEDIOS RAMIREZ TAPUCAR, complainant,
vs.
Atty. LAURO L. TAPUCAR, respondent.
PER CURIAM:
In a letter-complaint dated November 22, 1993, complainant Remedios Ramirez Tapucar
sought the disbarment of her husband, Atty. Lauro L. Tapucar, on the ground of continuing
grossly immoral conduct for cohabiting with a certain Elena (Helen) Peña under scandalous
circumstances. 1
Prior to this complaint, respondent was already administratively charged four times for
conduct unbecoming an officer of the court. In Administrative Matter No. 1740, resolved on
April 11, 1980, respondent, at that time the Judge of Butuan City, was meted the penalty of
six months suspension without pay, 2 while in Administrative Matters Nos. 1720, 1911 and
2300-CFI, which were consolidated, 3 this Court on January 31, 1981 ordered the separation
from the service of respondent. 4
Now he faces disbarment.
The records reveal the following facts:
From the Report and Recommendation of the Commission on Bar Discipline, it appears that
complainant and respondent married on October 29, 1953 at the Sacred Heart Roman
Catholic Church in Quezon City. They established their residence in Antipolo, Rizal, where
eight of their eleven children were born. In 1962 respondent relocated his family to
Dadiangas, Cotabato (now Gen. Santos City), where his last three children were born and
where he practiced his profession until his appointment as a CFI Judge in Butuan City on
January 30, 1976.
In August, 1976, shortly after being appointed as CFI Judge, respondent began cohabiting
with a certain Elena (Helen) Peña, in Nasipit, Agusan del Norte. On December 28, 1977, Elena
gave birth to their first child, named Ofelia Sembrano Peña.
In view of this cohabitation, a certain Atty. Tranquilino Calo filed an administrative complaint
against respondent for immorality. After investigation, the penalty of suspension from office
for a period of six months without pay was meted by this Court upon respondent. 5
of the court, and grossly immoral conduct. These cases were consolidated and after
investigation, this Court ordered his dismissal and separation from the service. 6
But his dismissal as a judge did not impel respondent to mend his ways. He continued living
with Elena, which resulted in the birth on September 20, 1989, of their second child named
Laella Peña Tapucar. Moreover, he completely abandoned complainant and his children by
her.
Respondent later moved from Nasipit, Agusan del Norte back to Antipolo, Rizal, bringing
along Elena and their two children. And on March 5, 1992, respondent contracted marriage
with Elena in a ceremony solemnized by MTC Judge Isagani A. Geronimo of Antipolo, Rizal.
This was done while the respondent's marriage to complainant subsists, as nothing on record
shows the dissolution thereof.
Complainant, in the meanwhile, had migrated to United States of America upon her
retirement from the government service in 1990. However, her children, who remained in
Antipolo, kept her posted of the misery they allegedly suffered because of their father's acts,
including deception and intrigues against them. Thus, despite having previously withdrawn a
similar case which she filed in 1976, complainant was forced to file the present petition for
disbarment under the compulsion of the maternal impulse to shield and protect her children
from the despotic and cruel acts of their own father. Complainant secured the assistance of
her eldest daughter, Atty. Ma. Susana Tapucar-Baua, to represent her in this case.
Consistent with Section 20, Rule 139-B of the Rules of Court, the matter was referred to the
Commission on Bar Discipline of the Integrated Bar of the Philippines for investigation, report
and recommendation. After conducting a thorough investigation, the Commission through
Commissioner Victor C. Fernandez recommended that respondent be disbarred, and his
name be stricken off the roll of attorneys. Mainly, this was premised on the ground that,
notwithstanding sanctions previously imposed upon him by the Honorable Supreme Court,
respondent continued the illicit liaison with Elena. 7
In his report Commissioner Fernandez noted that, instead of contradicting the charges
against him, respondent displayed arrogance, and even made a mockery of the law and the
Court, as when he said:
I have been ordered suspended by Supreme Court for two months without pay in 1980
for having a mistress, the same girl Ms. Elena (Helen) Peña, now my wife. Being
ordered separated in later administrative case constitute double jeopardy. If now
 disbarred for marrying Ms. Elena Peña will constitute triple jeopardy. If that's the law so
be it. 8
Based on said report, the Board of Governors of the Integrated Bar of the Philippines, passed
on May 17, 1997, a Resolution adopting the Commissioner's recommendation, as follows:
RESOLUTION NO. XII-97-97
Adm. Case No. 4148
Remedios Ramirez Tapucar vs.
Atty. Lauro L. Tapucar
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 the Resolution/Decision as Annex "A"; and, finding the
recommendation therein to be fully supported by the evidence on record and the
applicable laws and rules, Respondent Atty. Lauro L. Tapucar is hereby DISBARRED and
that his name be stricken off the roll of attorneys.
We find the Report and Recommendation of Commissioner Fernandez, as approved and
adopted by the Board of Governors of IBP, more than sufficient to justify and support the
foregoing Resolution, herein considered as the recommendation to this Court by said Board
pursuant to Rule 139-B, Sec. 12 (b), of the Rules of Court. * We are in agreement that
respondent's actuations merit the penalty of disbarment.
Well settled is the rule that good moral character is not only a condition precedent for
admission to the legal profession, but it must also remain intact in order to maintain one's
good standing in that exclusive and honored fraternity.9 There is perhaps no profession after
that of the sacred ministry in which a high-toned morality is more imperative than that of
law. 10 The Code of Professional Responsibility mandates that:
Rule 1.01. A lawyer shall not engage in unlawful, dishonest, immoral or deceitful
conduct.
Rule 7.03. A lawyer shall not engage in conduct that adversely reflects on his fitness to
practice law, nor should he, whether in public or private life, behave in a scandalous
manner to the discredit of the legal profession. (Emphasis supplied.)
As this Court often reminds members of the Bar, they must live up to the standards and
norms expected of the legal profession, by upholding the ideals and tenets embodied in the
Code of Professional Responsibility always. Lawyers must maintain a high standard of legal
proficiency, as well as morality including honesty, integrity and fair dealing. For they are at all
times subject to the scrutinizing eye of public opinion and community approbation. Needless
to state, those whose conduct — both public and private — fails this scrutiny would have to
be disciplined and, after appropriate proceedings, penalized accordingly.
Moreover, it should be recalled that respondent here was once a member of the judiciary, a
fact that aggravates his professional infractions. For having occupied that place of honor in
the Bench, he knew a judge's actuations ought to be free from any appearance of
impropriety. 11 For a judge is the visible representation of the law and, more importantly, of
justice. Ordinary citizens consider him as a source of strength that fortifies their will to obey
the law. 12 Indeed, a judge should avoid the slightest infraction of the law in all of his
actuations, lest it be a demoralizing example to others. 13 Surely, respondent could not have
forgotten the Code of Judicial Conduct entirely as to lose its moral imperatives. 14
Like a judge who is held to a high standard of integrity and ethical conduct, 15 an attorney-at-
law is also invested with public trust. Judges and lawyers serve in the administration of
justice. Admittedly, as officers of the court, lawyers must ensure the faith and confidence of
the public that justice is administered with dignity and civility. A high degree of moral
integrity is expected of a lawyer in the community where he resides. He must maintain due
regard for public decency in an orderly society.
A lawyer is expected at all times to uphold the integrity and dignity of the legal profession by
faithfully performing his duties to society, to the bar, to the courts and to his
clients. 16 Exacted from him, as a member of the profession charged with the responsibility
to stand as a shield in the defense of what is right, are such positive qualities of decency,
truthfulness and responsibility that have been compendiously described as "moral
character." To achieve such end, every lawyer needs to strive at all times to honor and
maintain the dignity of his profession, and thus improve not only the public regard for the
Bar but also the administration of justice.
On these considerations, the Court may disbar or suspend a lawyer for misconduct, whether
in his professional or private capacity, which shows him to be wanting in moral character, in
honesty, probity, and good demeanor, thus proving unworthy to continue as an officer of the
court. 17
The power to disbar, however, is one to be exercised with great caution, and only in a clear
case of misconduct which seriously affects the standing and character of the lawyer as an
officer of the Court and member of the bar. 18 For disbarment proceedings are intended to
afford the parties thereto full opportunity to vindicate their cause before disciplinary action
is taken, to assure the general public that those who are tasked with the duty of G.R. No. 156643 June 27, 2006
administering justice are competent, honorable, trustworthy men and women in whom the
Courts and the clients may repose full confidence. FRANCISCO SALVADOR B. ACEJAS III, Petitioner,
vs.
In the case of Obusan vs. Obusan, Jr., 19 a complaint for disbarment was filed against a PEOPLE OF THE PHILIPPINES, Respondent.
member of the bar by his wife. She was able to prove that he had abandoned his wife and
their son; and that he had adulterous relations with a married but separated woman. x--------------------------------x
Respondent was not able to overcome the evidence presented by his wife that he was guilty
of grossly immoral conduct. In another case, 20 a lawyer was disbarred when he abandoned G.R. No. 156891 June 27, 2006
his lawful wife and cohabited with another woman who had borne him a child. The Court
held that respondent failed to maintain the highest degree of morality expected and
VLADIMIR S. HERNANDEZ, Petitioner,
required of a member of the bar.
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
In the present case, the record shows that despite previous sanctions imposed upon him by
this Court, respondent continued his illicit liaison with a woman other than his lawfully-
DECISION
wedded wife. The report of the Commissioner assigned to investigate thoroughly the
complaint found respondent far from contrite; on the contrary, he exhibited a cavalier
PANGANIBAN, CJ:
attitude, even arrogance, in the face of charges against him. The IBP Board of Governors,
tasked to determine whether he still merited the privileges extended to a member of the
legal profession, resolved the matter against him. For indeed, evidence of grossly immoral This Court defers to the Sandiganbayan’s evaluation of the factual issues. Not having heard
conduct abounds against him and could not be explained away. Keeping a mistress, entering any cogent reasons to justify an exception to this rule, the Court adopts the anti-graft court’s
into another marriage while a prior one still subsists, as well as abandoning and/or findings. In any event, after meticulously reviewing the records, we find no ground to reverse
mistreating complainant and their children, show his disregard of family obligations, morality the Sandiganbayan.
and decency, the law and the lawyer's oath. Such gross misbehavior over a long period of
time clearly shows a serious flaw in respondent's character, his moral indifference to scandal The Case
in the community, and his outright defiance of established norms. All these could not but put
the legal profession in disrepute and place the integrity of the administration of justice in Before us are consolidated Petitions for Review1 assailing the March 8, 2002 Decision,2 and
peril, hence the need for strict but appropriate disciplinary action. the January 33 and 14, 20034 Resolutions of the Sandiganbayan in Criminal Case No. 20194.
Francisco SB. Acejas III and Vladimir S. Hernandez were found guilty beyond reasonable
IN VIEW THEREOF, respondent Atty. Lauro L. Tapucar is hereby DISBARRED. The Clerk of doubt of direct bribery penalized under Article 210 of the Revised Penal Code.
Court is directed to strike out his name from the Roll of Attorneys.
Vladimir S. Hernandez, Victor D. Conanan, SPO3 Expedito S. Perlas, Francisco SB. Acejas III
SO ORDERED. and Jose P. Victoriano were charged on February 8, 1994, in an Information that reads thus:

Narvasa, C.J., Regalado, Davide, Jr., Romero, Melo, Puno Vitug, Kapunan, Mendoza, "That on or about January 12, 1994, or sometime prior thereto in the City of Manila,
Panganiban, Martinez and Quisumbing, JJ., concur. Philippines, and within the jurisdiction of this Honorable Court, the above-named accused
VLADIMIR S. HERNANDEZ and VICTOR CONANAN, being then employed both as Immigration
Bellosillo and Purisima, JJ., took no part. officers of the Bureau of Immigration and Deportation, Intramuros, Manila, hence are public
officers, taking advantage of their official positions and committing the offense in relation to
office, conspiring and confederating with Senior Police Officer 3 EXPEDITO S. PERLAS of the
CASE NUMBER 2 Western Police District Command, Manila, together with co-accused Atty. FRANCISCO SB.
ACEJAS III, of the LUCENARIO, MARGATE, MOGPO, TIONGCO & ACEJAS LAW OFFICES, and
co-accused JOSE P. VICTORIANO, a private individual, did then and there, willfully, unlawfully
and feloniously demand, ask, and/or extort One Million (P1,000,000.00) PESOS from the
spouses BETHEL GRACE PELINGON and Japanese TAKAO AOYAGI and FILOMENO PELINGON,
JR., in exchange for the return of the passport of said Japanese Takao Aoyagi confiscated
earlier by co-accused Vladimir S. Hernandez and out of said demand, the complainants
Bethel Grace Pelingon, Takao Aoyagi and Filomeno Pelingon, Jr. produced, gave and
delivered the sum of Twenty Five Thousand (P25,000.00) Pesos in marked money to the
above-named accused at a designated place at the Coffee Shop, Ground Floor, Diamond
Hotel, Ermita, Manila, causing damage to the said complainants in the aforesaid amount of
P25,000.00, and to the prejudice of government service."5
After trial, all the accused -- except Victoriano -- were convicted. The challenged Decision
disposed as follows:
"WHEREFORE, premises considered, accused Vladimir S. Hernandez, Victor D. Conanan,
Expedito S. Perlas and Francisco SB. Acejas III are hereby found GUILTY beyond reasonable
doubt of the crime of Direct Bribery, and are sentenced to suffer the indeterminate penalty
of four (4) years, nine (9) months and ten (10) days of prision correccional, as minimum, to
seven (7) years and four (4) months of prision mayor, as maximum, and to pay a fine of three
million pesos (P3,000,000.00). Accused Vladimir S. Hernandez and Victor D. Conanan shall
also suffer the penalty of special temporary disqualification. Costs against the accused.
"On ground of reasonable doubt, accused Jose P. Victoriano is hereby ACQUITTED of the
crime charged. The surety bond he posted for his provisional liberty is cancelled. The Hold
Departure Order against him embodied in this Court’s Order dated July 24, 2000 is
recalled."6
The first Resolution acquitted Conanan and denied reconsideration of the other accused. The
second Resolution denied Petitioner Acejas’ Motion for New Trial.
Hence, petitioners now seek recourse in this Court.7
The Facts
8
The facts are narrated by the Sandiganbayan as follows:
"At around 4:00 to 5:00 p.m. of December 17, 1993, accused Bureau of Immigration and
Deportation (BID) Intelligence Agent Vladimir Hernandez, together with a reporter, went to
the house of Takao Aoyagi and Bethel Grace Pelingon-Aoyagi at 27 Pacific Drive, Grand Villa,
Sto. Niño, Parañaque, Metro Manila. His purpose was to serve Mission Order No. 93-04-12
dated December 13, 1993, issued by BID Commissioner Zafiro Respicio against Takao Aoyagi,
a Japanese national. Hernandez told Takao Aoyagi, through his wife, Bethel Grace, that there
were complaints against him in Japan and that he was suspected to be a Yakuza big boss, a
drug dependent and an overstaying alien.
"To prove that he had done nothing wrong, Takao Aoyagi showed his passport to Hernandez
who issued an undertaking (Exh. ‘B’) which Aoyagi signed. The undertaking stated that Takao
Aoyagi promised to appear in an investigation at the BID on December 20, 1993, and that as
a guarantee for his appearance, he was entrusting his passport to Hernandez. Hernandez
acknowledged receipt of the passport.
"On December 18, 1993, Bethel Grace Aoyagi called accused Expedito ‘Dick’ Perlas9 and
informed him about the taking of her husband’s passport by Hernandez. Perlas told her he
would refer their problem to his brother-in-law, Atty. Danton Lucenario of the Lucenario,
Margate, Mogpo, Tiongco and Acejas III Law Firm. It was at the Sheraton Hotel that Perlas
introduced the Aoyagis to Atty. Lucenario. They discussed the problem and Atty. Lucenario
told the Aoyagis not to appear before the BID on December 20, 1993.
"As advised by Atty. Lucenario, Takao Aoyagi did not appear before the BID. Instead, Atty.
Rufino M. Margate of the Lucenario Law Firm filed with the BID an Entry of Appearance (Exh.
‘6’ – Acejas). Atty. Margate requested for copies of any complaint-affidavit against Takao
Aoyagi and asked what the ground was for the confiscation of x x x Aoyagi’s passport.
"Hernandez prepared a Progress Report (Exh. ‘5’ – Hernandez) which was submitted to
Ponciano M. Ortiz, the Chief of Operations and Intelligence Division of the BID. Ortiz
recommended that Takao Aoyagi, who was reportedly a Yakuza and a drug dependent, be
placed under custodial investigation.
"In the evening of December 22, 1993 at the Diamond Hotel, the Aoyagis met accused Atty.
Francisco Acejas III who was then accompanied by Perlas. Atty. Acejas informed them that it
would be he who would handle their case. A Contract for Legal Services (Exh. ‘D’) dated
December 22, 1993 was entered into by Takao Aoyagi and Atty. Acejas, who represented the
Lucenario Law Firm.
"In the morning of December 23, 1993, Perlas and Atty. Acejas accompanied the Aoyagis to
the Domestic Airport as the latter were going to Davao. It was here that Takao Aoyagi paid
Atty. Acejas P40,000.00, P25,000 of which is 50% of the acceptance fee, and the P15,000.00
is for filing/docket fee (Exh. ‘O’). The Aoyagis were able to leave only in the afternoon as the
morning flight was postponed.
"On December 24, 1993, while attending a family reunion, Bethel Grace Pelingon-Aoyagi
informed her brother, Filomeno ‘Jun’ Pelingon, Jr., about her husband’s passport.
"On January 2, 1994, Jun Pelingon talked to BID Commissioner Zafiro Respicio in Davao and
told the latter of Takao Aoyagi’s problem with the BID. Respicio gave Pelingon his calling card
and told Pelingon to call him up in his office. That same day, Jun Pelingon and Mr. and Mrs.
Aoyagi flew back to Manila.
"On January 5, 1994, Jun Pelingon, Dick Perlas, Atty. Acejas, Vladimir Hernandez, Vic
Conanan and Akira Nemoto met at the Aristocrat Restaurant in Roxas Boulevard.
"Another meeting was arranged at the Manila Nikko Hotel in Makati on January 8, 1994 with
Jun Pelingon, Perlas, Atty. Acejas and Hernandez attending.
"On January 11, 1994, on account of the alleged demand of P1 million for the return of
Takao Aoyagi’s passport, Jun Pelingon called up Commissioner Respicio. The latter referred
him to Atty. Angelica Somera, an NBI Agent detailed at the BID. It was Atty. Carlos Saunar,
also of the NBI, and Atty. Somera who arranged the entrapment operation.
"On January 12, 1994, Vladimir Hernandez returned the passport to Takao Aoyagi at the
Coffee Shop of the Diamond Hotel. The NBI Team headed by Attorneys Saunar and Somera
arrested Dick Perlas, Atty. Acejas and Jose Victoriano after the latter picked up the brown
envelope containing marked money representing the amount being allegedly demanded.
Only Perlas, Acejas and Victoriano were brought to the NBI Headquarters."10
Version of the Prosecution
Testifying for the prosecution were Bethel Grace Pelingon Aoyagi, Filomeno "Jun" Basaca
Pelingon, Jr., and Carlos Romero Saunar.11
The prosecution evidence showed that it was during a meeting on January 5, 1994, when P1
million as consideration for the passport was demanded. Conanan averred that Aoyagi was a
drug trafficker and Yakuza member. The money was to be used to settle the alleged
"problem" and to facilitate the processing of a permanent visa. When Pelingon negotiated to
lower the amount demanded, Conanan stated that there were many of them in the Bureau
of Immigration and Deportation (BID).12
During the second meeting held at Hotel Nikko, Pelingon was informed that the press and
government enforcers were after Aoyagi. Hernandez asked for a partial payment of
P300,000, but Pelingon said that the whole amount would be given at just one time to avoid
another meeting.13
14
After talking to Commissioner Respicio on January 11, 1994, Pelingon called up Dick Perlas
to schedule the exchange.
Regarding the involvement of Petitioner Acejas, the Office of the Solicitor General (OSG)
adds the following facts:
"1.2. On 5 January 1994, [Acejas] and Perlas met Pelingon at the Aristocrat
Restaurant. [Acejas] informed Pelingon that he would file a P1 million lawsuit
against the BID agents who confiscated the passport of Takao Aoyagi. [Acejas]
showed Pelingon several papers, which allegedly were in connection with the
intended lawsuit. However, when Hernandez and Conanan arrived at the Aristocrat
Restaurant, [Acejas] never mentioned to the BID agents the P1 million lawsuit.
[Acejas] just hid the papers he earlier showed to Pelingon inside his [Acejas’] bag.
"1.3. [Acejas] was present when Hernandez proposed that Takao Aoyagi pay the
amount of P1 million in exchange for the help he would extend to him (Takao) in
securing a permanent visa in the Philippines. [Acejas], who was Aoyagi’s lawyer, did
nothing.
"1.4. On 10 January 1994, [Acejas], Pelingon, Perlas and Hernandez met at the Hotel
Nikko. Thereat, Hernandez informed the group that certain government officials
and even the press were after Takao Aoyagi. Hernandez said that Takao Aoyagi can
make a partial payment of P300,000.00. Pelingon however, assured the group that
Takao Aoyagi would pay in full the amount of P1 million so as not to set another
meeting date. [Acejas] kept quiet throughout the negotiations.
xxx xxx xxx
"1.5.a. [Acejas] was present during the entrapment that took place at the Diamond
Hotel. Hernandez handed the passport to [Acejas], who handed it then to Perlas
and thereafter to Takao Aoyagi. After Takao Aoyagi went over his confiscated
passport, Bethel Grace handed to Hernandez the envelope15 containing the
supposed P1 million. Hernandez refused and motioned that [Acejas] be the one to
receive it. [Acejas] willingly got the envelope and placed it beside him and Perlas.
x x x before Hernandez handed out Aoyagi’s pass- port, he reminded the group of their
earlier agreement of ‘kaliwaan’, i.e., that after the passport is released, the Aoyagis should
give the P1 million."16
Version of the Defense
Vladimir S. Hernandez, Expedito S. Perlas, Francisco SB. Acejas III, Victor D. Conanan and
Ponciano M. Ortiz testified for the defense.17
To the Sandiganbayan’s narration, Hernandez adds:
"6. x x x [Hernandez], an intelligence agent of the Bureau of Immigration and Deportation
(BID), went to the house of Private Respondents Takao and Bethel Grace Aoyagi to enforce
and serve a Mission Order issued and assigned to him by BID Commissioner Zafiro Respicio
on December 13, 1993, for the arrest of Takao Aoyagi.
"7. When Bethel Grace showed [Hernandez] her husband’s passport, [Hernandez] found out
that the latter’s [authority] to stay had already been duly extended. He invited private
respondents to go with him to the BID office. They declined, but made a written undertaking
to appear at the BID office for investigation on December 20, 1993. As security for said
undertaking, Bethel Grace Aoyagi entrusted to [Hernandez] her husband’s passport, receipt
of which [Hernandez], in return, acknowledge[d] in the same instrument.
"8. On January 19, 1994, [Hernandez] signified that the record of Aoyagi has been cleared
and that he can pick up his passport at the BID office. In connection therewith, [Hernandez]
was invited by Perlas to make the return at a lunchtime meeting to be held at the Diamond
Hotel Coffee Shop. Upon arrival thereat, [Hernandez] gave the passport to Atty. Acejas,
Aoyagi’s counsel, and within less than ten minutes, he left the coffee shop."18
In his Petition, Acejas narrates some more occurrences as follows:
"1. 18th December 1993 – The law firm of Lucenario Margate Mogpo Tiongco &
Acejas was engaged by the spouses Takao Aoyagi and Bethel Grace Pelingon Aoyagi.
x x x.
xxx xxx xxx
"3. 22nd December 1993 –
"a) The managing partner of the law firm, Atty. Lucenario, briefed [Acejas] about
the facts regarding the confiscation by agents of the BID of the passport
belonging to a Japanese client. x x x.
"b) Thereafter, [Acejas] was tasked by Atty. Lucenario to ‘meet his brother-in-
law Mr. Expedito Perlas, who happened to be a policeman and a friend of Mr.
Takao Aoyagi.’ Thus, [Acejas] ‘met Mr. Perlas for the first time in the afternoon’
of this date.
"c) Also, for the first time, [Acejas] met the clients, spouses Aoyagis, at the
Diamond Hotel, where they were staying. x x x [Acejas] advised them that the
law firm decided that the clients ‘can file an action for Replevin plus Damages
for the recovery of the Japanese passport.’
"d) The CONTRACT FOR LEGAL SERVICES was signed between the client and the
law firm, thru [Acejas] as partner thereof. x x x The amount of Fifty Thousand
Pesos (Php.50,000.00) was agreed to be paid by way of ‘Case
Retainer’s/Acceptance Fees’, which was supposed to be payable ‘upon (the)
signing (t)hereof’, and the sum of Php.2,000.00 by way of appearance fee.
However, the client proposed to pay half only of the acceptance fee
(Php.25,000.00), plus the estimated judicial expenses for the filing or docket
fees (Php.15,000.00). x x x It was then further agreed that the ‘balance of
Php.25,000.00 was supposed to be given upon the successful recovery of the
Japanese passport’.
"e) The clients informed [Acejas] that ‘they are supposed to leave for Davao the
following day on the 23rd because they will spend their Christmas in Davao City;
but they promised that they will be back on the 26th, which is a Sunday, so that
on the 27th, which is a Monday, the complaint against the BID officers will have
to be filed in Court’.
xxx xxx xxx
"6. 27th December 1993 – ‘(T)he law office received word from Mr. Perlas that the
Japanese did not come back on the 26th (December), x x x so that the case cannot
be filed on the 27th instead (it has) to wait for client’s instruction.’
"7. 4th January 1994 – ‘In the late afternoon, the law firm received a telephone call
from Mr. Perlas informing (it) that the Japanese is already in Manila and he was
requesting for an appointment with any of the lawyer of the law firm on January 5,
1994’.
"8. 5th January 1994 – [Acejas] ‘met for the first time Mr. Filomeno Pelingon Jr.’
including a certain Nimoto Akira.
x x x.
"b) [Acejas] ‘told Mr. Pelingon Jr. that all the pleadings are ready for filing but, of
course, the Japanese client and the wife should first read the complaint and sign
if they want to pursue the filing of the complaint against the BID agents’.
 "c) For the first time, ‘Mr. Pelingon advised against the intended filing of the
case’. x x x He ‘instead suggested that he wants to directly negotiate with the
BID agents.’
"d) Thereafter, ‘Mr. Pelingon instructed Mr. Dick Perlas to contact the BID agent
who confiscated the Japanese passport.’ ‘Mr. Perlas and Mr. Pelingon were able
to contact the BID agent’.
"e) For the ‘first time [Acejas] saw Mr. Hernandez’, when the latter arrived and
also accused Victor Conanan. In the course of the meeting, a confrontation
ensued between [Acejas] and [Hernandez] concerning the legal basis for the
confiscation of the passport. [Acejas] demanded for the return of the Japanese
passport x x x. Mr. Hernandez ‘said that if there are no further derogatory report
concerning the Japanese client, then in a matter of week (from January 5 to 12),
he will return the passport’.
"f) [Acejas] ‘gave an ultimatum to Mr. Hernandez that if the Japanese passport
will not be returned in one (1) week’s time, then (the law firm) will pursue the
filing of the replevin case plus the damage suit against him including the other
BID agents’.
"g) ‘x x x Mr. Pelingon Jr. for the second time advised against the filing thereof
saying that his Japanese brother-in-law would like to negotiate or in his own
words ‘magbibigay naman [i.e. will give money anyway].’
"9. 8th January 1994 –
"a) Again, ‘Mr. Perlas called the law office and informed x x x that the
Japanese client is now in Manila.’ Petitioner attended the meeting they
arranged in ‘(Makati) and meet Dick Perlas, Vladimir Hernandez and
Pelingon Jr. x x x.
"b) x x x according to Pelingon Jr., the Japanese does not want to meet
with anybody because anyway they are willing to pay or negotiate.
"c) [Hernandez was also] present at the meeting and [Acejas] ‘met him for
the second time. x x x [Acejas] said that if [Hernandez] will not be able to
return the passport on or before January 12, 1994, then the law firm will
have no choice but to file the case against him x x x. Again, for the third
time Mr. Pelingon warned against the filing of the case because he said
that he would directly negotiate with the BID agents.’
"d) The Makati meeting ended up ‘with the understanding that Mr.
Hernandez will have to undertake the return [of] the Japanese passport on
or before January 12, 1994.’
"10. 12th January 1994 –
"a) Mr. Perlas called up the law office informing that the Japanese client
was already in Manila and was requesting for an appointment with the
lawyers at lunchtime of January 12 at the Diamond Hotel where he was
billeted.
xxx xxx xxx
"c) x x x x x x x x x
"At this meeting, ‘the Japanese was inquiring on the status of the case and
he was wondering why the Japanese passport is not yet recovered when
according to him he has already paid for the attorney fees. And so,
[Acejas] explained to him that the case has to be filed and they still have to
sign the complaint, the Special Power of Attorney and the affidavit relative
to the filing of replevin case. But the Japanese would not fully understand.
So, Pelingon Jr. again advised against the filing of the case saying that since
there is no derogatory record of Mr. Aoyagi at the BID office, then the BID
agents should return the Japanese passport.’
xxx xxx xxx
"e) Thereafter, ‘Pelingon, Jr. and Dick Perlas x x x tried to contact Mr.
Hernandez.’ Since, they were able to contact the latter, ‘we waited until
around 2:00 p.m.’. ‘When Mr. Hernandez came, he said that the Japanese
client is cleared at the BID office and so, he can return the Japanese
passport and he gave it to [Acejas]. x x x ‘When [Acejas] received the
Japanese passport, (he) checked the authenticity of the documents and
finding that it was in good order, (he) attempted to give it to the Japanese
client.’
"‘Very strangely when [Acejas] tried to hand-over the Japanese passport to the Japanese
across the table, the Japanese was motioning and wanted to get the passport under the
table. x x x [Acejas] found it strange. (He) x x x thought that it was a Japanese custom to
receive things like that under the table. But nonetheless, [Acejas] did not give it under the
table and instead passed it on to Mr. Dick Perlas who was seated at (his) right. And so, it was
Mr. Dick Perlas who took the passport from [Acejas] and finally handed it over to Mr.
Aoyagi.’ x x x. ‘After that, there was a little chat between Mr. Hernandez and the client, and
Mr. Hernandez did not stay for so long and left.’
"Still, thereafter, ‘(w)hen the Japanese passport was received, Bethel Grace Aoyagi and
[Acejas] were talking and she said since the Japanese passport had been recovered, they are
now willing to pay the Php.25,000.00 balance of the acceptance fee.’
"‘Mrs. Aoyagi was giving [Acejas] a brown envelope but she want[ed] Mr. Hernandez to
receive it while Mr. Hernandez was still around standing. But Mr. Hernandez did not receive
it.
"Since, the payment is due to the law firm, [Acejas] received the brown envelope.
xxx xxx xxx
"Not long after, [Acejas] saw his companion, accused Mr. Victoriano, who was ‘signaling
something’ as if there was a sense of urgency. [Acejas] immediately stood up and left
hurriedly. When [Acejas] approached Mr. Victoriano, he ‘said that the car which [Acejas]
parked in front of the Diamond Hotel gate, somebody took the car’. [Acejas] ‘went out and
checked and realized that it was valet parking so it was the parking attendant who took the
car and transferred the car to the parking area’. [Acejas] requested ‘Mr. Victoriano to get
(the) envelope and the coat’, at the table.
"g) ‘When [Acejas] went out, [Acejas] already looked for the parking attendant to get the car.
When the car arrived, [Acejas] just saw from the doors of the Diamond Hotel Mr. Jose
Victoriano and Mr. Dick Perlas coming out already in handcuffs and collared by the NBI
agents." They then ‘were taken to the NBI’, except the accused Vladimir Hernandez."19
Ruling of the Sandiganbayan
The Sandiganbayan ruled that the elements of direct bribery,20 as well as conspiracy in the
commission of the crime,21 had been proven. Hernandez and Conanan demanded
money;22 Perlas negotiated and dealt with the complainants;23 and Acejas accepted the
payoff and gave it to Perlas.24
Victoriano was acquitted on reasonable doubt.25 Although he had picked up the envelope
containing the payoff, this act did not sufficiently show that he had conspired with the other
accused.26
The Sandiganbayan did not give credence to the alleged belief of Acejas that the money was
the balance of the law firm’s legal fees.27 If he had indeed believed that the money was
payable to him, he should have kept and retained it. The court then inferred that he had
merely been pretending to protect his client’s rights when he threatened to file a suit against
Hernandez.28
The January 3, 2003 Resolution acquitted Conanan and denied the Motions for
Reconsideration of Hernandez, Acejas and Perlas. According to the Sandiganbayan, Conanan
was not shown to be present during the meetings on January 8 and 12, 1994.29 His presence
during one of those meetings, on January 5, 1994, did not conclusively show his participation
as a co-conspirator.
The January 14, 2003 Resolution denied Acejas’ Supplemental Motion, which prayed for a
new trial.
The Issues
Petitioner Hernandez raises the following issues:
"I. Whether or not respondent court erred in ruling that [Hernandez] was part of the
conspiracy to extort money from private respondents, despite lack of clear and
convincing evidence.
"II. Whether or not the Honorable Sandiganbayan gravely abused its discretion when it
overlooked the fact that the legal requisites of the crime are not completely present as to
warrant [Hernandez’] complicity in the crime charged.
"III. Whether or not respondent Sandiganbayan, 5th Division, ruled erroneously when it
relied solely on the naked and uncorroborated testimonies of the late Filomeno ‘Jun’
Pelingon, Jr. in order to declare the existence of a conspiracy to commit bribery, as well
as the guilt of the accused.
"IV. Whether or not [respondent] court’s acquittal of co-accused Victor Conanan and its
conviction of [Hernandez] for the offense as charged effectively belies the existence of a
conspiracy.
"V. Whether or not the respondent Sandiganbayan committed grave abuse of discretion
amounting to lack of, or in excess of jurisdiction when it found [Hernandez] guilty beyond
reasonable doubt of the crime of direct bribery."30
On the other hand, Petitioner Acejas simply enumerates the following points:
 "1. The Conspiracy Theory Hernandez claims that the prosecution failed to show his involvement in the crime.
Allegedly, he was merely implementing Mission Order No. 93-04-12, which required him to
2. The presence of lawyer-client relationship; duty to client’s cause; lawful investigate Takao Aoyagi.34 The passport was supposed to have been voluntarily given to him
performance of duties as a guarantee to appear at the BID office, but he returned it upon the instruction of his
superior.35
3. ‘Instigation’ not ‘entrapment’
The chain of circumstances, however, contradicts the contention of Hernandez. It was he
4. Credibility of witness and testimony who had taken the passport of Takao Aoyagi.36 On various dates,37 he met with Takao and
Bethel Grace Aoyagi, and also Pelingon, regarding the return of the passport. Hernandez
then asked for a down payment on the payoff,38 during which he directed Bethel Grace to
5. Affidavit of desistance; effect: creates serious doubts as to the liability of the
deliver the money to Acejas.39
accused

Bethel Grace Aoyagi’s testimony, which was confirmed by the other witnesses, proceeded as
6. Elements of ‘bad faith’
follows:
7. Elements of the crime (direct bribery)
"PROSECUTOR MONTEMAYOR:
8. Non-presentation of complaining victim tantamount to suppression of
"Q: When Vlademir Hernandez arrived, what happened?
evidence"31

"A: He got the passport from his pocket and passed it on to Atty. Acejas, sir.
In the main, petitioners are challenging the finding of guilt against them. The points they
raised are therefore intertwined and will be discussed jointly.
"Q: What happened after he gave the passport to Atty. Acejas?
The Court’s Ruling
"A: [Acejas] gave the passport to Mr. Expedito Perlas, sir.
The Petitions have no merit.
"Q: After that, what happened?
Main Issue:
"A: Then, [Perlas] gave it to Mr. Aoyagi, sir.
Finding of Guilt
"Q: The passport?
The crime of direct bribery exists when a public officer 1)
"A: Yes, sir.
agrees to perform an act that constitutes a crime in consideration of any offer, promise, gift
or present; 2) accepts the gift in consideration of the execution of an act that does not "Q: And when Mr. Aoyagi received the passport, what did you do or what did Mr. Aoyagi do?
constitute a crime; or 3) abstains from the performance of official duties.32
"A: He checked all the pages and he kept it, sir.
Petitioners were convicted under the second kind of direct bribery, which contained the
following elements: 1) the offender was a public officer, 2) who received the gifts or presents xxxxxxxxx
personally or through another, 3) in consideration of an act that did not constitute a crime,
and 4) that act related to the exercise of official duties.33 "Q: What did you do with that money after Mr. Aoyagi received the passport?
"A: Because our agreement is that after giving the passport we would give the money so
when Mr. Perlas handed to my husband the passport, I gave the money placed on my lap to
my husband and he passed it to Mr. Hernandez who refused the same.
"ATTY. ACEJAS:
"Your Honor, please, may I just make a clarification that when the witness referred to the
money it pertains to the brown envelope which allegedly contains the money x x x .
"AJ ESCAREAL:
"Noted.
"PROSECUTOR MONTEMAYOR:
"Q: Did Mr. Hernandez got hold or touched the envelope?
"A: No, sir.
"Q: When he [did] not want to receive the envelope, what did your husband do?
"A: When Mr. Vlademir Hernandez refused to receive the money, he pointed to Atty. Acejas
so my husband handed it to Atty. Acejas who received the same and later on passed it to Mr.
Perlas.
"Q: When Mr. Hernandez pointed to Atty. Acejas, did he say anything?
"A: None, sir, he just motioned like this.
"INTERPRETER:
"Witness motioning by [waving] her two (2) hands, left and right.
"PROSECUTOR MONTEMAYOR:
"Q: And at the same time pointed to Atty. Acejas?
"A: Yes, sir.
"Q: And your husband gave the envelope to Atty. Acejas?
"A: Yes, sir.
"Q: And Atty. Acejas, in turn, handed the said envelope to whom?
"A: Expedito Perlas, sir.
"Q: Did Expedito Perlas [receive] that envelope?
"A: Yes, sir.
"Q: After that, what happened?
"A: Mr. Perlas put the money on his side in between him and Atty. Acejas, sir.
"Q: And then, what happened?
"A: After the money was placed where it was, we were surprised, I think, it happened in just
seconds[.] Mr. Vlademir Hernandez immediately left and then all of a sudden somebody
came and picked up the envelope, sir."40
Significantly, Hernandez does not address the lingering questions about why Takao Aoyagi or
his representatives had to negotiate for the retrieval of the passport during the meetings
held outside the BID. Ponciano Ortiz, chief of the Operation and Intelligence Division of the
BID, testified that it was not a standard operating procedure to officially return withheld
passports in such locations.41 It can readily be inferred that Hernandez had an ulterior motive
for withholding the passport for some time despite the absence of any legal purpose.
Also, Hernandez cannot claim innocence based on Conanan’s acquittal.42 While the
testimony of Pelingon was the only evidence linking Conanan to the conspiracy,43 there was
an abundance of evidence showing Hernandez’s involvement.
Acejas, on the other hand, belies his involvement in the conspiracy. He attacks the
prosecution’s version that he was silent during the negotiations for the return of the
passport.44 According to him, he kept giving Hernandez an ultimatum to return the passport,
with threats to file a court case.
Acejas testified that he had wanted to file a case against Hernandez, but was prevented by
Spouses Aoyagi. His supposed preparedness to file a case against Hernandez might have just
been a charade and was in fact belied by Pelingon’s testimony regarding the January 5, 1994
meeting:
"ATTY. VALMONTE: "Witness motioning by [waving] her two (2) hands, left and right.

"Q: Who arrived first at Aristocrat Restaurant, you or Acejas? "Prosecutor Montemayor:

"A: Acejas arrived together with Dick Perlas[. T]hey arrived ahead of me, sir. "Q: And at the same time pointed to Atty. Acejas?

xxxxxxxxx "A: Yes, sir.

"Q: When the three (3) of you were talking that was the time that Atty. Acejas was showing "Q: And your husband gave the envelope to Atty. Acejas?
you documents that he was going to file [a] P1 million damage suit against Hernandez?
"A: Yes, sir.
"A: Yes, sir.
"Q: And Atty. Acejas, in turn, handed the said envelope to whom?
"Q: Now, is it not that when Hernandez and Cunanan arrived and you were talking with each
other, Atty. Acejas also threatened, reiterated his threat to Hernandez that he would file [a] "A: Expedito Perlas, sir.
P1 million damage suit should Hernandez [fails] to return the passport?
"x x x x x x x x x
"A: When the group [was] already there, the P1 million [damage suit] was not [anymore]
mentioned, sir."45 "Q: After that, what happened?

Even assuming that Acejas negotiated for the return of the passport on his client’s behalf, he "A: Mr. Perlas put the money on his side in between him and Atty. Acejas, sir.
still failed to justify his actions during the entrapment operation. The witnesses all testified
that he had received the purported payoff. On this point, we recount the testimony of Bethel
"Q: And then, what happened?
Grace Aoyagi:
"WITNESS:
"Prosecutor Montemayor:
"A: After the money was placed where it was, we were surprised, I think, it happened in just
xxxxxxxxx
seconds[.] Mr. Vladimir Hernandez immediately left and then all of a sudden somebody
came and picked up the envelope, sir.
"Q: When he [did] not want to receive the envelope, what did your husband do?
"Prosecutor Montemayor:
"A: When Mr. Vlademir Hernandez refused to receive the money, he pointed to Atty. Acejas
so my husband handed it to Atty. Acejas who received the same and later on passed it to Mr.
"Q: Do you know the identity of that somebody who picked up the envelope?
Perlas.
xxxxxxxxx
"Q: When Mr. Hernandez pointed to Atty. Acejas, did he say anything?
"A: Victoriano, sir."46
"A: None, sir, he just motioned like this.
Acejas failed to justify why he received the payoff money. It would be illogical to sustain his
"Interpreter:
contention that the envelope represented the balance of his firm’s legal fees. That it was
given to Hernandez immediately after the return of the passport leads to the inescapable Moreover, they must report it to the authorities, without having to violate the attorney-
conclusion that the money was a consideration for the return. Moreover, Acejas should have client privilege.52 Naturally, they must not participate in the illegal act.53
kept the amount if he believed it to be his. The Court agrees with the Sandiganbayan’s
pronouncement on this point: Acejas did not follow these guidelines. Worse, he conspired with the extortionists.

"x x x. If he believed that the brown envelope contained the balance of the acceptance fee,
how come he passed it to Perlas? His passing the brown envelope to Perlas only proves that
the same did not contain the balance of the acceptance fee; otherwise, he should have kept
and retained it. Moreover, the three prosecution witnesses testified that the brown
envelope was being given to Hernandez who refused to accept the same. This further shows
that the brown envelope was not for the balance of the acceptance fee because, if it were,
why was it given to Hernandez.
xxxxxxxxx
"Acejas’ defense was further weakened by the fact that his testimony as to why he left
immediately after the brown envelope was given to him was uncorroborated. He should
have presented accused Victoriano to corroborate his testimony since it was the latter who
allegedly called him and caused him to leave their table. This, he did not do. The ineluctable
conclusion is that he was, indeed, in cahoots with his co-accused."47
Instigation
Also futile is the contention of petitioners that Pelingon instigated the situation to frame
them into accepting the payoff.54 Instigation is the employment of ways and means to lure
persons into the commission of an offense in order to prosecute them.55 As opposed to
entrapment, criminal intent originates in the mind of the instigator.56
There was no instigation in the present case, because the chain of circumstances showed an
extortion attempt. In other words, the criminal intent originated from petitioners, who had
arranged for the payoff.
During the cross-examination of Bethel Grace Aoyagi, pertinent was Associate Justice
Escareal clarifying question as follows:
"AJ ESCAREAL:

Lawyer’s Duty
"[Q:] Did Mr. Hernandez say anything when he returned the passport to your husband?

Acejas alleges that the Sandiganbayan failed to appreciate his lawyer-client relationship with
"A: He did not say anything except that he instructed [the] group to abide with the
the complainants. He was supposedly only acting in their best interest48 and had the right to
agreement that upon handing of the passport, the money would also be given immediately
be present when the passport was to be returned.49
(‘magkaliwaan’)."57

True, as a lawyer, it was his duty to represent his clients in dealing with other people. His
Alleged Discrepancies
presence at Diamond Hotel for the scheduled return of the passport was justified. This fact,
however, does not support his innocence
According to Acejas, Pelingon’s testimonies given in his Complaint-Affidavit, Supplemental-
Affidavit, inquest testimony, testimony in court, and two Affidavits of Desistance were
Acejas, however, failed to act for or represent the interests of his clients. He knew of the
contradictory.58 He cites these particular portions of Pelingon’s Affidavit:
payoff, but did nothing to assist or protect their rights, a fact that strongly indicated that he
was to get a share. Thus, he received the money purporting to be the payoff,
"5. That having been enlightened of the case, and conscious that I might be prosecuting
innocent men, I have decided on my own disposition, not to further testify against any of the
even if he was not involved in the entrapment operation. The facts revealed that he was a
accused in the Sandiganbayan or in any court or tribunal, regarding the same cause of action.
conspirator.
"6. That this affidavit of desistance to further prosecute is voluntarily executed, and that no
The Court reminds lawyers to follow legal ethics50 when confronted by public officers who
reward, promise, consideration, influence, force or threat was executed to secure this
extort money. Lawyers must decline and report the matter to the authorities.51 If the
affidavit."59
extortion is directed at the client, they must advise the client not to perform any illegal act.
Pelingon testified that he had executed the Affidavit of Desistance because of a threat to his
life.60 He did not prepare the Affidavit; neither was it explained to him. Allegedly, his true
testimony was in the first Complaint-Affidavit that he had executed.61
By appearing and testifying during the trial, he effectively repudiated his Affidavit of
Desistance. An affidavit of desistance must be ignored when pitted against positive evidence
given on the witness stand.62
Acejas has failed to identify the other material points that were allegedly inconsistent. The
Court therefore adopts the Sandiganbayan’s finding that these were minor details that were
not indicative of the lack of credibility of the prosecution witnesses.63 People v. Eligino64 is in
point:
"x x x. While witnesses may differ in their recollections of an incident, it does not necessarily
follow from their disagreement that all of them should be disbelieved as liars and their
testimony completely discarded as worthless. As long as the mass of testimony jibes on
material points, the slight clashing statements neither dilute the witnesses’ credibility nor
the veracity of their testimony. Thus, inconsistencies and contradictions referring to minor
details do not, in any way, destroy the credibility of witnesses, for indeed, such
inconsistencies are but natural and even enhance credibility as these discrepancies indicate
that the responses are honest and unrehearsed."65
Suppression of Evidence
Acejas further raises the issue of suppression of evidence. Aoyagi, from whom the money
was supposedly demanded, should have been presented by the prosecution as a witness.66
The discretion on whom to present as prosecution witnesses falls on the People.67 The
freedom to devise a strategy to convict the accused belongs to the
prosecution.68 Necessarily, its decision on which evidence, including which witnesses, to
present cannot be dictated by the accused or even by the trial court.69 If petitioners believed
that Takao Aoyagi’s testimony was important to their case, they should have presented him
as their witness.70
Finally, Acejas claims that his Comment/Objection to the prosecution’s Formal Offer of
Evidence was not resolved by the Sandiganbayan.71 In that Comment/Objection, he had
noted the lateness in the filing of the Formal Offer of Evidence.
It may readily be assumed that the Sandiganbayan admitted the prosecution’s Formal Offer
of Evidence upon the promulgation of its Decision. In effect, Acejas’ Comment/Objection was
deemed immaterial. It could not overrule the finding of guilt. Further, it showed no prayer
that the Sandiganbayan needed to act upon.72
Finally we reiterate that, as a rule, factual findings of the Sandiganbayan are conclusive upon
this Court.73 We are convinced that these were clearly based on the evidence adduced in this
case.
In sum, we find that the prosecution proved the elements of direct bribery. First, there is no
question that the offense was committed by a public officer. BID Agent Hernandez extorted
money from the Aoyagi spouses for the return of the passport and the promise of assistance
in procuring a visa. Petitioner Acejas was his co-conspirator. Second, the offenders received
the money as payoff, which Acejas received for the group and then gave to Perlas. Third, the
money was given in consideration of the return of the passport, an act that did not
constitute a crime. Fourth, both the confiscation and the return of the passport were made
in the exercise of official duties.
For taking direct part in the execution of the crime, Hernandez and Acejas are liable as
principals.74 The evidence shows that the
parties conspired to extort money from Spouses Aoyagi. A conspiracy exists even if all the
parties did not commit the same act, if the participants performed specific acts that
indicated unity of purpose in accomplishing a criminal design.75 The act of one is the act of
all.
WHEREFORE, the Petitions are DENIED, and the assailed Decision and Resolutions AFFIRMED.
Costs against petitioners.
SO ORDERED.
ARTEMIO V. PANGANIBAN
Chief Justice
Chairman, First Division
WE CONCUR:
CONSUELO YNARES-SANTIAGO MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice Asscociate Justice
 Gregorio M. Abreu, clients of Atty. Paguia; 2) Mr. And Mrs. Wilson Lim, clients of
(No part. Ponente of assailed respondent Molina; 3) Dr. and Mrs. Eduardo Yap; and Dr. Belinda San Juan.
Resolutions)
ROMEO J. CALLEJO, SR.
MINITA V. CHICO-NAZARIO
Associate Justice The clients of Atty. Molina entered into a contract with the other unit owners save for
Asscociate Justice
Mr. Abreu. The agreement, covered by a document titled "Times Square Preamble,"
establishes a set of internal rules for the neighbors on matters such as the use of the
CERTIFICATION common right of way to the exit gate, assignment of parking areas, and security. Mr.
Abreu, the client of complainant, Atty. Paguia, was not a party to the contract since the
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the
former did not agree with the terms concerning the parking arrangements.
above Decision were reached in consultation before the case was assigned to the writer of
the opinion of the Court’s Division. On 4 February 2010, Atty. Paguia filed a Complaint for Dishonesty1 with the IBP
Commission on Bar Discipline against Atty. Molina2 for allegedly giving legal advice to
ARTEMIO V. PANGANIBAN the latter’s clients to the effect that the Times Square Preamble was binding on Mr.
Chief Justice Abreu, who was never a party to the contract.

In his Answer,3 Atty. Molina downplayed the case as a petty quarrel among neighbors.
He maintained that the Times Square Preamble4 was entered into for purposes of
CASE NUMBER 3 maintaining order in the residential compound. All homeowners, except Mr. Abreu,
signed the document.5

A.C. No. 9881 June 4, 2014 Respondent further stated in his Answer that Mr. and Mrs. Gregorio Abreu filed two
(Formerly CBD 10-2607) cases against his clients, Mr. And Mrs. William Lim, on the belief that Mr. Abreu was
not bound by the Times Square Preamble. The first case, was filed with the Housing
ATTY. ALAN F. PAGUIA, Petitioner, and Land Use Regulatory Board (HLURB), which was an action to declare the Times
vs. Square Preamble invalid. The second suit was an action for declaratory relief. Both
ATTY. MANUEL T. MOLINA, Respondent. cases, according to respondent, were dismissed.6

RESOLUTION
SERENO, CJ:
For resolution by this Court is the dismissal by the Integrated Bar of the Philippines
(IBP) Board of Governors of the administrative Complaint for DISHONESTY against
respondent, Atty. Manuel Molina. Atty. Molina allegedly advised his clients to enforce
a contract on the complainant's client who had never been a party to the agreement.
The facts are as follows:
The case involves a conflict between neighbors in a four-unit compound named "Times
Square" at Times Street, Quezon City. The neighbors are the following: 1) Mr. And Mrs.
Respondent further claimed that another case had been filed in court, this time by his
client, the Lims. They were prompted to file a suit since Mr. Abreu had allegedly taken
matters into his own hands by placing two vehicles directly in front of the gate of the
Lims, thus blocking the latter’s egress to Times Street. The Lims filed with the Regional
Trial Court, Branch 96, Quezon City, a Complaint for Injunction and Damages, coupled
with a prayer for the immediate issuance of a Temporary Restraining Order and/or
Preliminary Injunction, which was docketed as Civil Case No. Q-08-63579. According to
respondent, the RTC granted the relief prayed for in an Order dated 12 December
2008.7
Atty. Molina concluded that the above facts sufficiently served as his answer to the
Complaint.
On 3 August 2010, Investigating Commissioner Victor C. Fernandez rendered a Report
and Recommendation. He recommended dismissal for lack of merit, based on the
following grounds: 1) the complaint consisted only of bare allegations; and 2) even
assuming that respondent Molina gave an erroneous legal advice, he could not be held
accountable in the absence of proof of malice or bad faith.8
On 14 May 2011, the IBP Board of Governors passed Resolution No. XIX-2011-210,
adopting and approving the Report and Recommendation of the Investigating
Commissioner.9
Atty. Paguia filed a Motion for Reconsideration dated 2 August 2011, but was denied
by the IBP Board of Governors on 29 December 2012.10 Notices of the denial were
received by the parties on 21 March 2013.11
No petition for review has been filed with this Court.
It is worth noting that a case is deemed terminated if the complainant does not file a
petition with the Supreme Court within fifteen (15) days from notice of the Board’s
resolution. This rule is derived from Section 12(c) of Rule 139-B, which states:
(c) If the respondent is exonerated by the Board or the disciplinary sanction imposed
by it is less than suspension or disbarment (such as admonition, reprimand, or fine) it
shall issue a decision exonerating respondent or imposing such sanction. The case shall
be deemed terminated unless upon petition of the complainant or other interested
party filed with the Supreme Court within fifteen (15) days from notice of the Board’s
resolution, the Supreme Court orders otherwise. (Underscoring supplied)
In this case, Atty. Paguia received notice of the Board’s resolution on 21 March 2013,
as evidenced by a registry return receipt. To this date, this Court has yet to receive a
petition for review from Atty. Paguia. Thus, for his failure to file a petition for review
with the Court within 15 days, this case is deemed terminated pursuant to the above
mentioned Section 12(c).
Nevertheless, we have gone over the records but we have no reason to deviate from
the findings of the IBP Board of Governors.
When it comes to administrative cases against lawyers, two things are to be
considered: quantum of proof, which requires clearly preponderant evidence; and
burden of proof, which is on the complainant.12
In the present case, we find that the Complaint is without factual basis. Complainant
Atty. Paguia charges Atty. Molina with providing legal advice to the latter’s clients to
the effect that the Times Square Preamble is binding on complainant’s client, Mr.
Abreu, who was not a signatory to the agreement. The allegation of giving legal advice,
however, was not substantiated in this case, either in the complaint or in the
corresponding hearings. Nowhere do the records state that Atty. Paguia saw
respondent giving the legal advice to the clients of the latter. Bare allegations are not
proof.13
Even if we assume that Atty. Molina did provide his clients legal advice, he still cannot
be held administratively liable without any showing that his act was attended with bad
faith or malice. The rule on mistakes committed by lawyers in the exercise of their
profession is as follows:
An attorney-at-law is not expected to know all the law. For an honest mistake or error,
an attorney is not liable. Chief Justice Abbott said that, no attorney is bound to know
all the law; God forbid that it should be imagined that an attorney or a counsel, or
even a judge, is bound to know all the law. x x x.14
The default rule is presumption of good faith. On the other hand, bad faith is never
presumed. It is a conclusion to be drawn from facts. Its determination is thus a
1âwphi1
question of fact and is evidentiary.15 There is no evidence, though, to show that the
legal advice, assuming it was indeed given, was coupled with bad faith, malice, or ill-
will. The presumption of good faith, therefore, stands in this case.
The foregoing considered, complainant failed to prove his case by clear preponderance
of evidence.
WHEREFORE, the Resolution of the IBP Board of Governors adopting and approving
the Decision of the Investigating Commissioner is hereby AFFIRMED.
SO ORDERED.
MARIA LOURDES P. A. SERENO
Chief Justice, Chairperson
CASE NUMBER 4
A.C. No. 6057 June 27, 2006
PETER T. DONTON, Complainant,
vs.
ATTY. EMMANUEL O. TANSINGCO, Respondent.
DECISION
CARPIO, J.:
The Case
This is a disbarment complaint against respondent Atty. Emmanuel O. Tansingco
("respondent") for serious misconduct and deliberate violation of Canon 1,1 Rules
1.012 and 1.023 of the Code of Professional Responsibility ("Code").
The Facts
In his Complaint dated 20 May 2003, Peter T. Donton ("complainant") stated that he
filed a criminal complaint for estafa thru falsification of a public document4 against
Duane O. Stier ("Stier"), Emelyn A. Maggay ("Maggay") and respondent, as the notary
public who notarized the Occupancy Agreement.
The disbarment complaint arose when respondent filed a counter-charge for
perjury5 against complainant. Respondent, in his affidavit-complaint, stated that:
5. The OCCUPANCY AGREEMENT dated September 11, 1995 was prepared and
notarized by me under the following circumstances:
A. Mr. Duane O. Stier is the owner and long-time resident of a real property
located at No. 33 Don Jose Street, Bgy. San Roque, Murphy, Cubao, Quezon
City.
B. Sometime in September 1995, Mr. Stier – a U.S. citizen and thereby
disqualified to own real property in his name – agreed that the property be
transferred in the name of Mr. Donton, a Filipino.
C. Mr. Stier, in the presence of Mr. Donton, requested me to prepare several
documents that would guarantee recognition of him being the actual owner
of the property despite the transfer of title in the name of Mr. Donton.
D. For this purpose, I prepared, among others, the OCCUPANCY AGREEMENT,
recognizing Mr. Stier’s free and undisturbed use of the property for his
residence and business operations. The OCCUPANCY AGREEMENT was tied up
with a loan which Mr. Stier had extended to Mr. Donton.6
Complainant averred that respondent’s act of preparing the Occupancy Agreement,
despite knowledge that Stier, being a foreign national, is disqualified to own real
property in his name, constitutes serious misconduct and is a deliberate violation of
the Code. Complainant prayed that respondent be disbarred for advising Stier to do
something in violation of law and assisting Stier in carrying out a dishonest scheme.
In his Comment dated 19 August 2003, respondent claimed that complainant filed the
disbarment case against him upon the instigation of complainant’s counsel, Atty.
Bonifacio A. Alentajan,7 because respondent refused to act as complainant’s witness in
the criminal case against Stier and Maggay. Respondent admitted that he "prepared
and notarized" the Occupancy Agreement and asserted its genuineness and due
execution.
In a Resolution dated 1 October 2003, the Court referred the matter to the Integrated
Bar of the Philippines (IBP) for investigation, report and recommendation.
The IBP’s Report and Recommendation
In her Report dated 26 February 2004 ("Report"), Commissioner Milagros V. San Juan
("Commissioner San Juan") of the IBP Commission on Bar Discipline found respondent
liable for taking part in a "scheme to circumvent the constitutional prohibition against
foreign ownership of land in the Philippines." Commissioner San Juan recommended
respondent’s suspension from the practice of law for two years and the cancellation of
his commission as Notary Public.
In Resolution No. XVI-2004-222 dated 16 April 2004, the IBP Board of Governors
adopted, with modification, the Report and recommended respondent’s suspension
from the practice of law for six months.
On 28 June 2004, the IBP Board of Governors forwarded the Report to the Court as
provided under Section 12(b), Rule 139-B8 of the Rules of Court.
On 28 July 2004, respondent filed a motion for reconsideration before the IBP.
Respondent stated that he was already 76 years old and would already retire by 2005
after the termination of his pending cases. He also said that his practice of law is his
only means of support for his family and his six minor children.
In a Resolution dated 7 October 2004, the IBP denied the motion for reconsideration
because the IBP had no more jurisdiction on the case as the matter had already been
referred to the Court.
The Ruling of the Court
The Court finds respondent liable for violation of Canon 1 and Rule 1.02 of the Code.
single again after nine years of separation and allowed them to contract separately
subsequent marriages.
WHEREFORE, we find respondent Atty. Emmanuel O. Tansingco GUILTY of violation of
Canon 1 and Rule 1.02 of the Code of Professional Responsibility. Accordingly,
we SUSPEND respondent Atty. Emmanuel O. Tansingco from the practice of law for SIX
MONTHS effective upon finality of this Decision.
Let copies of this Decision be furnished the Office of the Bar Confidant to be appended
to respondent’s personal record as an attorney, the Integrated Bar of the Philippines,
the Department of Justice, and all courts in the country for their information and
guidance.

A lawyer should not render any service or give advice to any client which will involve SO ORDERED.
defiance of the laws which he is bound to uphold and obey.9 A lawyer who assists a
client in a dishonest scheme or who connives in violating the law commits an act which ANTONIO T. CARPIO
justifies disciplinary action against the lawyer.10 Associate Justice

By his own admission, respondent admitted that Stier, a U.S. citizen, was disqualified
from owning real property.11Yet, in his motion for reconsideration,12 respondent CASE NUMBER 5
admitted that he caused the transfer of ownership to the parcel of land to Stier.
Respondent, however, aware of the prohibition, quickly rectified his act and
transferred the title in complainant’s name. But respondent provided "some
A.C. No. 6697 July 25, 2006
safeguards" by preparing several documents,13 including the Occupancy Agreement,
that would guarantee Stier’s recognition as the actual owner of the property despite
its transfer in complainant’s name. In effect, respondent advised and aided Stier in ZOILO ANTONIO VELEZ, complainant,
circumventing the constitutional prohibition against foreign ownership of lands14 by vs.
preparing said documents. ATTY. LEONARD S. DE VERA, respondent.

Respondent had sworn to uphold the Constitution. Thus, he violated his oath and the x-------------------------x
Code when he prepared and notarized the Occupancy Agreement to evade the law
against foreign ownership of lands. Respondent used his knowledge of the law to Bar Matter No. 1227 July 25, 2006
achieve an unlawful end. Such an act amounts to malpractice in his office, for which he
may be suspended.15 RE: OATH-TAKING OF ATTY. LEONARD S. DE VERA, INCOMING PRESIDENT OF THE
INTEGRATED BAR OF THE PHILIPPINES.
In Balinon v. De Leon,16 respondent Atty. De Leon was suspended from the practice of
law for three years for preparing an affidavit that virtually permitted him to commit x-------------------------x
concubinage. In In re: Santiago,17 respondent Atty. Santiago was suspended from the
practice of law for one year for preparing a contract which declared the spouses to be A.M. No. 05-5-15-SC July 25, 2006
IN THE MATTER OF THE REMOVAL OF ATTY. LEONARD S. DE VERA FROM THE IBP BOARD
OF GOVERNORS AS EXECUTIVE VICE PRESIDENT AND GOVERNOR.
IN THE MATTER OF THE LETTER-COMPLAINT OF ATTY. LEONARD S. DE VERA DATED MAY
18, 2005 TO FORTHWITH DENY/DISAPPROVE THE IBP RESOLUTION UNJUSTLY,
ILLEGALLY, ARBITRARILY, AND ABRUPTLY REMOVING HIM FROM THE BOARD OF
GOVERNORS OF THE IBP FOR ABSOLUTE LACK OF BASIS AND FOR FLAGRANT DENIAL OF
DUE PROCESS.
DECISION
Per Curiam:
Before Us are three consolidated cases revolving around Integrated Bar of the
Philippines (IBP) Governor and Executive Vice-President (EVP) Atty. Leonard de Vera.
The first pertains to a disbarment case questioning Atty. de Vera's moral fitness to
remain as a member of the Philippine Bar, the second refers to Atty. de Vera's letter-
request to schedule his oath taking as IBP National President, and the third case
concerns the validity of his removal as Governor and EVP of the IBP by the IBP Board.
The resolution of these cases will determine the national presidency of the IBP for the
term 2005-2007.
A.C. No. 6697
The Office of the Bar Confidant, which this Court tasked to make an investigation,
report and recommendation on subject case,1 summarized the antecedents thereof as
follows:
In a Complaint dated 11 April 2005, complainant Zoilo Antonio Velez moved
for the suspension and/or disbarment of respondent Atty. Leonard de Vera
based on the following grounds:
1) respondent's alleged misrepresentation in concealing the
suspension order rendered against him by the State Bar of California;
and
2) respondent's alleged violation of the so-called "rotation rule"
enunciated in Administrative Matter No. 491 dated 06 October 1989
(in the Matter: 1989 IBP Elections).
Complainant averred that the respondent, in appropriating for his own benefit
funds due his client, was found to have performed an act constituting moral
turpitude by the Hearing Referee Bill Dozier, Hearing Department – San
Francisco, State Bar of California in Administrative Case No. 86-0-18429.
Complainant alleged that the respondent was then forced to resign or
surrender his license to practice law in the said state in order to evade the
recommended three (3) year suspension. Complainant asserted that the
respondent lacks the moral competence necessary to lead the country's most
noble profession.
Complainant, likewise, contended that the respondent violated the so-called
"rotation rule" provided for in Administrative Matter No. 491 when he
transferred to IBP Agusan del Sur Chapter. He claimed that the respondent
failed to meet the requirements outlined in the IBP By-Laws pertaining to
transfer of Chapter Membership. He surmised that the respondent's transfer
was intended only for the purpose of becoming the next IBP National
President. Complainant prayed that the respondent be enjoined from
assuming office as IBP National President.
Meanwhile, in his Comment dated 2 May 2005, respondent stated that the
issues raised in above-mentioned Complaint were the very issues raised in an
earlier administrative case filed by the same complainant against him. In fact,
according to him, the said issues were already extensively discussed and
categorically ruled upon by this Court in its Decision dated 11 December 2005
in Administrative Case No. 6052 (In Re: Petition to Disqualify Atty. Leonard De
Vera). Respondent prayed that the instant administrative complaint be
dismissed following the principle of res judicata.
On 15 June 2005, both parties appeared before the Office of the Bar
Confidant for presentation of evidence in support of their respective
allegations.
Subsequently, in a Memorandum dated 20 June 2005, complainant
maintained that there is substantial evidence showing respondent's moral
baseness, vileness and depravity, which could be used as a basis for his
disbarment. Complainant stressed that the respondent never denied that he
used his client's money. Complainant argued that the respondent failed to
present evidence that the Supreme Court of California accepted the latter's
resignation and even if such was accepted, complainant posited that this
should not absolve the respondent from liability.
 Moreover, complainant added that the principle of res judicata would not
apply in the case at bar. He asserted that the first administrative case filed
against the respondent was one for his disqualification. x x x.
Bar Matter No. 1227
A.M. No. 05-5-15-SC
As earlier adverted to, Bar Matter No. 1227 refers to Atty. de Vera's letter-request to
this Court to schedule his oath taking as IBP National President. A.M. No. 05-5-15-SC,
on the other hand, is a letter-report dated 19 May 2005 of IBP National President Jose
Anselmo I. Cadiz (IBP President Cadiz) furnishing this Court with the IBP's Resolution,
dated 13 May 2005, removing Atty. De Vera as member of the IBP Board and as IBP
EVP, for committing acts inimical to the IBP Board and the IBP in general.2
The controversy in Bar Matter No. 1227 and A.M. No. 05-5-15-SC arose from the
regular meeting of the IBP Board of Governors held on 14 January 2005. In said
meeting, by 2/3 vote (6 voting in favor and 2 against), the IBP Board approved the
withdrawal of the Petition filed before this Court docketed as "Integrated Bar of the
Philippines, Jose Anselmo I. Cadiz, et al. vs. Senate of the Philippines, et al. – Petition for
Certiorari and Prohibition with Prayer for the Issuance of Temporary Restraining Order
or Writ of Preliminary Injunction, SC-R165108." The Petition was intended to question
the legality and/or constitutionality of Republic Act No. 9227, authorizing the increase
in the salaries of judges and justices, and to increase filing fees.3
The two IBP Governors who opposed the said Resolution approving the withdrawal of
the above-described Petition were herein respondent Governor and EVP de Vera and
Governor Carlos L. Valdez.4
On 19 January 2005, IBP President Cadiz informed this Court of the decision taken by
the IBP Board to withdraw the afore-mentioned Petition. Attached to his letter was a
copy of the IBP Board's 14 January 2005 Resolution.5
On 15 April 2005, Bar Matter No. 1227, pertaining to Atty. de Vera's request for
oathtaking as National President, was filed. The same was subsequently consolidated
with A.C. No. 6697, the disbarment case filed against Atty. de Vera.6
On 22 April 2005, a plenary session was held at the 10th National IBP Convention at
the CAP-Camp John Hay Convention Center, Baguio City. It was at this forum where
Atty. de Vera allegedly made some untruthful statements, innuendos and blatant lies
in connection with the IBP Board's Resolution to withdraw the Petition questioning the
legality of Republic Act No. 9227.7
On 10 May 2005, this Court issued a Temporary Restraining Order (TRO) enjoining
Atty. de Vera from assuming office as IBP National President.8
On 12 May 2005, IBP Gov. Romulo A. Rivera wrote IBP National President Cadiz a letter
wherein he prayed for the removal of Atty. de Vera as member of the IBP Board for
having committed acts which were inimical to the IBP Board and the IBP.9
On 13 May 2005, in the 20th Regular Meeting of the Board held at the Waterfront
Hotel, Cebu City, the IBP Board, by 2/3 vote, resolved to remove Atty. de Vera as
member of the IBP Board of Governors and as IBP Executive Vice President.10 Quoted
hereunder is the dispositive portion of said Resolution:
NOW THEREFORE, BE IT RESOLVED, AS IT IS HEREBY RESOLVED, that Governor
Leonard S. de Vera is REMOVED as a member of the IBP Board of Governors
and Executive Vice President for committing acts inimical to the IBP Board of
Governors and the IBP, to wit:
1. For making untruthful statements, innuendos and blatant lies in
public about the Supreme Court and members of the IBP Board of
Governors, during the Plenary Session of the IBP 10th National
Convention of Lawyers, held at CAP-Camp John Hay Convention
Center on 22 April 2005, making it appear that the decision of the IBP
Board of Governors to withdraw the PETITION docketed as
"Integrated Bar of the Philippines, Jose Anselmo I. Cadiz, et al. vs. The
Senate of the Philippines, et al., Petition for Certiorari and Prohibition
With Prayer for the Issuance of A Temporary Restraining Order or
Writ of Preliminary Injunction, S.C.-R. 165108", was due to influence
and pressure from the Supreme Court of the Philippines;
2. For making said untruthful statements, innuendos and blatant lies
that brought the IBP Board of Governors and the IBP as a whole in
public contempt and disrepute;
3. For violating Canon 11 of the Code of Professional Responsibility
for Lawyers which mandates that "A lawyer shall observe and
maintain the respect due to the courts and to judicial officers and
should insist on similar conduct by others", by making untruthful
 statements, innuendos and blatant lies during the Plenary Session of
the IBP 10th National Convention of Lawyers in Baguio City;
4. For instigating and provoking some IBP chapters to embarrass and
humiliate the IBP Board of Governors in order to coerce and compel
the latter to pursue the aforesaid PETITION;
5. For falsely accusing the IBP National President, Jose Anselmo I.
Cadiz, during the Plenary Session of the 10th National Convention in
Baguio City of withholding from him a copy of Supreme Court
Resolution, dated 25 January 2005, granting the withdrawal of
the PETITION, thereby creating the wrong impression that the IBP
National President deliberately prevented him from taking the
appropriate remedies with respect thereto, thus compromising the
reputation and integrity of the IBP National President and the IBP as a
whole.11
On 18 May 2005, Atty. de Vera aired his sentiments to this Court by writing the then
Hon. Chief Justice Hilario G. Davide, Jr. a letter captioned as "Urgent Plea to Correct a
Glaring Injustice of the IBP Board of Governors; Vehement Protest to the Board
Resolution Abruptly Removing Atty. Leonard de Vera from the Board of Governors in
Patent Violation of Due Process; Petition to Deny/Disapprove the Completely
Unjustified and Highly Arbitrary Resolution Precipitately Ousting Atty. de Vera from the
Board of Governors in Less Than Twenty Four (24) Hours from Notice and Judgment
Without Formal Investigation."12
In the said letter, Atty. de Vera strongly and categorically denied having committed
acts inimical to the IBP and its Board. He alleged that on the basis of an unverified
letter-complaint filed by IBP Governor Rivera, the IBP Board voted to expel him
posthaste, without just cause and in complete disregard of even the minimum
standards of due process. Pertinent portions of his letter read:
It is evident that the Board of Governors has committed a grave and serious
injustice against me especially when, as the incumbent Executive Vice
President of the IBP, I am scheduled to assume my position as National
President of the IBP on July 1, 2005. x x x
I was denied the very basic rights of due process recognized by the Supreme
Court even in administrative cases:
1. The denial of the right to answer the charges formally or in writing.
The complaint against me was in writing.
2. The denial of the right to answer the charges within a reasonable
period of time after receipt of the complaint.
3. The denial of the right to a fair hearing.
4. The denial of the right to confront the accuser and the witnesses
against me. I challenged Gov. Rivera to testify under oath so I could
question him. He refused. I offered to testify under oath so I could be
questioned. My request was denied.
5. The denial of my right to present witnesses on my behalf.
6. The denial of my right to an impartial judge. Governor Rivera was
my accuser, prosecutor, and judge all at the same time.
7. Gov. Rivera's prejudgment of my case becomes even more evident
because when his motion to expel me was lost in a 5-3 votes (due to
his inhibition to vote), Gov. Rivera asked for another round of
voting so he can vote to support his own complaint and motion to
expel me.13 (Emphasis and underscoring in original.)
On 27 May 2005, the IBP Board responded to the 18 May 2005 letter of Atty. de
Vera.14 In their Reply, the IBP Board explained to this Court that their decision to
remove Atty. de Vera was based on valid grounds and was intended to protect itself
from a recalcitrant member. Among the grounds cited and elucidated by the IBP Board
were the following:
(i) Atty. de Vera engaged himself in a negative media campaign and solicited
resolutions from IBP Chapters to condemn the IBP Board of Governors for its
decision to withdraw the Petition, all with the end in view of compelling or
coercing the IBP Board of Governors to reconsider the decision to withdraw the
Petition.
(ii) Atty. de Vera embarrassed, humiliated and maligned the IBP Board of
Governors and the IBP National President in public or during the Plenary
Session at the 10th National Convention of Lawyers.
 (iii) Rather than pacify the already agitated 'solicited' speakers (at the plenary
session), Atty. de Vera "fanned the fire", so to speak, and went to the extent
of making untruthful statements, innuendos and blatant lies about the
Supreme Court and some members of the IBP Board of Governors. He
deliberately and intentionally did so to provoke the members of the IBP Board
of Governors to engage him in an acrimonious public debate and expose the
IBP Board of Governors to public ridicule.
(iv) Atty. de Vera uttered untruthful statements, innuendos and blatant lies,
e.g., that some of the members of the IBP Board of Governors voted in favor
of the withdrawal of the petition (without mentioning names) because
"nakakahiya kasi sa Supreme Court, nakakaawa kasi ang Supreme Court, kasi
may mga kaibigan tayo sa Court." He made it appear that the IBP Board of
Governors approved the resolution, withdrawing the petition, due to
"influence" or "pressure" from the Supreme Court.15
The IBP Board explained that Atty. de Vera's actuation during the Plenary Session was
"the last straw that broke the camel's back." He committed acts inimical to the interest
of the IBP Board and the IBP; hence, the IBP Board decided to remove him.
On 3 June 2005, Atty. de Vera furnished the Court with copies of resolutions and a
position paper coming from various IBP Chapters all condemning his expulsion from
the IBP Board and as IBP EVP.16
On 15 June 2005, IBP President Cadiz informed Chief Justice Davide that in a special
meeting of the IBP Board held at the EDSA Shangri-la Plaza on 13 June 2005, the IBP
Board took note of the vacancy in the position of the IBP EVP brought about by Atty.
de Vera's removal. In his stead, IBP Governor Pura Angelica Y. Santiago was formally
elected and declared as IBP EVP.17
On 17 June 2005, Atty. de Vera protested against the election of Atty. Santiago.18 On
20 June 2005, Atty. Santiago voluntarily relinquished the EVP position through a letter
addressed to the IBP Board.19 Thus, on 25 June 2005, during its last regular meeting,
the IBP Board elected a new EVP in the person of IBP Governor Jose Vicente B. Salazar
to replace Atty. Santiago.
On 28 June 2005, IBP National President Cadiz, through a letter addressed to Chief
Justice Davide, reported to this Court Atty. Salazar's election.20 IBP National President
Cadiz also requested, among other things, that Atty. Salazar's election be approved
and that he be allowed to assume as National President in the event that Atty. de Vera
is disbarred or suspended from the practice of law or should his removal from the
2003-2005 Board of Governors and as EVP is approved by this Court.21 Also on 28 June
2005, Atty. de Vera protested the election of Atty. Salazar.22
In his Extended Comment23 dated 25 July 2005, Atty. de Vera maintained that there
was absolutely no factual or legal basis to sustain the motion to remove him from the
IBP Board because he violated no law. He argued that if the basis for his removal as
EVP was based on the same grounds as his removal from the IBP Board, then his
removal as EVP was likewise executed without due notice and without the least
compliance with the minimum standards of due process of law.
Atty. de Vera strongly averred that, contrary to the utterly false and malicious charges
filed against him, the speakers at the Plenary Session of the Baguio Convention,
although undeniably impassioned and articulate, were respectful in their language and
exhortations, not once undermining the stature of the IBP in general and the IBP Board
of Governors in particular. He posited that speaking in disagreement with the
Resolution of the Board during the Convention's Plenary Session is not a valid cause to
remove or expel a duly-elected member of the IBP Board of Governors; and the
decision to remove him only shows that the right to freedom of speech or the right to
dissent is not recognized by the incumbent IBP Board.
Anent the charges that he accused the National President of withholding a copy of this
Court's Resolution granting the withdrawal of the Petition questioning the legality of
Republic Act No. 9227, Atty. de Vera avowed that he made no such remarks. As
regards the election of a new IBP EVP, Atty. de Vera contended that the said election
was illegal as it was contrary to the provisions of the IBP By-Laws concerning national
officers, to wit:
Section. 49. Term of office. - The President and the Executive Vice President
shall hold office for a term of two years from July 1 following their election
until 30 June of their second year in office and until their successors shall have
been duly chosen and qualified.
In the event the President is absent or unable to act, his functions and duties
shall be performed by the Executive Vice President, and in the event of death,
resignation, or removal of the President, the Executive Vice President shall
serve as Acting President for the unexpired portion of the term. In the event
of death, resignation, removal or disability of both the President and the
Executive Vice President, the Board of Governors shall elect an Acting
 President to hold office for the unexpired portion of the term or during the
period of disability.
Unless otherwise provided in these By-Laws, all other officers and employees
appointed by the President with the consent of the Board shall hold office at
the pleasure of the Board or for such term as the Board may fix.24
To bolster his position, Atty. de Vera stressed that when both the President and the
EVP die, resign, are removed, or are disabled, the IBP By-Laws only provides for the
election of an Acting President and that no mention for an election for EVP was made.
Thus, when such election for EVP occurs, such is contrary to the express provision of
the IBP By-Laws.
Atty. de Vera also argued that even if he were validly removed as IBP EVP, his
replacement should come from Eastern Mindanao and not from any other region, due
to the Rotation Rule embodied in par. 2, Section 47, Article VII of the IBP By-Laws.
In response to Atty. de Vera's averments, the 2003-2005 IBP Board, through its
counsel, submitted a Reply dated 27 January 2006 and clarified as follows:
(i) The IBP Board of Governors is vested with sufficient power and authority to
protect itself from an intractable member by virtue of Article VI, Section 44 of
the IBP By-Laws;
(ii) Atty. de Vera was removed as a member of the IBP Board and as IBP EVP
not because of his disagreement with the IBP Board's position but because of
the various acts that he committed which the IBP Board determined to be
inimical to the IBP Board and the IBP as a whole;
(iii) Atty. de Vera cannot exculpate himself from liability by invoking his
constitutional right to Free Speech because, as a member of the Bar, it is his
sworn duty to observe and maintain the respect due to the courts and to
judicial officers and to insist on similar conduct by others;
(iv) The IBP Board, in effecting the removal of Atty. de Vera, observed the
fundamental principles of due process. As the records would bear, Atty. de
Vera was duly notified of the Regular Meeting of the IBP Board held on 13
May 2004; was furnished a copy of Governor Rivera's Letter-Complaint the
day before the said meeting; was furnished a copy of the said Meeting's
Agenda; and was allowed to personally defend himself and his accuser, Gov.
Rivera;
(v) Atty. de Vera was validly removed because the required number of votes
under Section 44 of the IBP By-Laws to remove Atty. de Vera as a member of
the IBP Board and as IBP EVP was duly complied with;
(vi) Atty. de Vera's replacement as IBP EVP need not come from Eastern
Mindanao Region because: (a) the rotation rule under Article VII, Section 47,
par. 2 of the IBP By-Laws had already been complied with when Atty. de Vera,
who hails from Eastern Mindanao, was elected IBP EVP; and (b) the rotation
rule need not be enforced if the same will not be practicable, possible,
feasible, doable or viable; and, finally, that –
(vii) Atty. Salazar was validly elected as IBP EVP and, thus, should now be
allowed to take his oath as IBP National President.25
The Court's Ruling
AC No. 6697
In his Memorandum26 dated 20 June 2005, complainant tendered the following issues
for the consideration of the Court:
I.
WHETHER OR NOT RESPONDENT ATTORNEY LEONARD S. DEVERA (sic)
COMMITED MALPRACTICE WHICH AMOUNTED TO MORAL T[U]RPITUDE IN
THE STATE BAR OF CALIFORNIA AND IN THE PHILIPPINES, IN THE COURSE OF
HIS PRACTICE OF LAW.
II.
WHETHER OR NOT THE OATH OF OFFICE AS LAWYER IS ATTACHED TO THE
PERSON OF ATTORNEY LEONARD S. DEVERA (sic) WHEREVER HE MAY GO AND
NOT NECESSARILY BOUND BY THE TERRITORIAL JURISDICTION OF THE
PHILIPPINES.
III.
 WHETHER OR NOT THERE IS SUBSTANTIAL EVIDENCE TO PROVE THE MORAL
T[U]RPITUDE, AS BASIS FOR DISBARMENT OF RESPONDENT IN AN
ADMINISTRATIVE PROCEEDING.
IV.
WHETHER OR NOT RES JUDICATA APPLIES IN THIS CASE, DUE TO ADMIN. CASE
NO. [6052]27
The disposition of the first three related issues hinges on the resolution of the fourth
issue. Consequently, we will start with the last issue.
A.C. No. 6052 is not a bar to the filing of the present administrative case.
In disposing of the question of res judicata, the Bar Confidant opined:
To reiterate, the instant case for suspension and/or disbarment against
respondent Leonard De Vera is grounded on the following:
1) respondent's alleged misrepresentation in concealing the
suspension order rendered against him by the State Bar in California;
and
2) respondent's alleged violation of the so-called "rotation rule"
On the other hand, as regards the second issue:
enunciated in Administrative Matter No. 491 dated 06 October 1989
(In the Matter: 1989 IBP Elections).
It appears that the complainant already raised the said issues in an earlier
administrative case against the respondent. Verily, these issues were already
argued upon by the parties in their respective pleadings, and discussed and
ruled upon by this Court in its Decision dated 11 December 2003 in
Administrative Matter No. 6052 (In Re: Petition to Disqualify Atty. Leonard de
Vera).
As such, with respect to the first issue, this Court held that:
"As for the administrative complaint filed against him by one of his
clients when he was practicing law in California, which in turn
compelled him to surrender his California license to practice law, he
maintains that it cannot serve as basis for determining his moral
qualification (or lack of it) to run for the position he is aspiring for. He
explains that there is as yet no final judgment finding him guilty of the
administrative charge, as the records relied upon by the petitioners
are mere preliminary findings of a hearing referee which are
recommendatory findings of an IBP Commissioner on Bar Discipline
which are subject to the review of and the final decision of the
Supreme Court. He also stresses that the complainant in the California
administrative case has retracted the accusation that he
misappropriated the complainant's money, but unfortunately the
retraction was not considered by the investigating officer. xxx"
"On the administrative complaint that was filed against respondent
De Vera while he was still practicing law in California, he explained
that no final judgment was rendered by the California Supreme Court
finding him guilty of the charge. He surrendered his license to protest
the discrimination he suffered at the hands of the investigator and he
found it impractical to pursue the case to the end. We find these
explanations satisfactory in the absence of contrary proof. It is a basic
rule on evidence that he who alleges a fact has the burden to prove
the same. In this case, the petitioners have not shown how the
administrative complaint affects respondent De Vera's moral fitness
to run for governor.
"Petitioners contend that respondent de Vera is disqualified for the
post because he is not really from Eastern Mindanao. His place of
residence is in Parañaque and he was originally a member of the
PPLM IBP Chapter. He only changed his IBP Chapter membership to
pave the way for his ultimate goal of attaining the highest IBP post,
which is the national presidency. Petitioners aver that in changing his
IBP membership, respondent De Vera violated the domicile rule.
The contention has no merit. Under the last paragraph of Section 19,
Article II, a lawyer included in the Roll of Attorneys of the Supreme
Court can register with the particular IBP Chapter of his preference or
choice, thus:
xxx
It is clearly stated in the aforequoted section of the By-Laws that it is
not automatic that a lawyer will become a member of the chapter
where his place of residence or work is located. He has the discretion
to choose the particular chapter where he wishes to gain membership.
Only when he does not register his preference that he will become a
member of the Chapter of the place where he resides or maintains
office. The only proscription in registering one's preference is that a
lawyer cannot be a member of more than one chapter at the same
time.
The same is provided in Section 29-2 of the IBP By-Laws. In fact, under
this Section, transfer of IBP membership is allowed as long as the
lawyer complies with the conditions set forth therein, thus:
xxx
The only condition required under the foregoing rule is that the
transfer must be made not less than three months prior to the election
of officers in the chapter to which the lawyer wishes to transfer.
In the case at bar, respondent De Vera requested the transfer of his
IBP membership to Agusan del Sur on 1 August 2001. One month
thereafter, IBP National Secretary Jaime M. Vibar wrote a letter
addressed to Atty. Amador Z. Tolentino, Jr., Secretary of IBP PPLM
Chapter and Atty. Lyndon J. Romero, Secretary of IBP Agusan del Sur
Chapter, informing them of respondent de Vera's transfer and
advising them to make the necessary notation in their respective
records. This letter is a substantial compliance with the certification
mentioned in Section 29-2 as aforequoted. Note that de Vera's
transfer was made effective sometime between 1 August 2001 and 3
September 2001. On 27 February 2003, the elections of the IBP
Chapter Officers were simultaneously held all over the Philippines, as
mandated by Section 29.a of the IBP By-Laws which provides that
elections of Chapter Officers and Directors shall be held on the last
Saturday of February of every other year. Between 3 September 2001
and 27 February 2003, seventeen months had elapsed. This makes
respondent de Vera's transfer valid as it was done more than three
months ahead of the chapter elections held on 27 February 2003.
In the case of Romulo G. Dinsay vs. Atty. Leopoldo D. Cioco (Administrative
Case No. 2995, 27 November 1996), this Court declared that:
"The doctrine of res judicata applies only to judicial or quasi-judicial
proceedings and not to the exercise of the [Court's] administrative
powers."
In the said case, respondent Clerk of Court Cioco was dismissed from service
for grave misconduct highly prejudicial to the service for surreptitiously
substituting the bid price in a Certificate of Sale from P3,263,182.67 to only
P730,000.00. Thereafter a complaint for disbarment was filed against the
respondent on the basis of the same incident. Respondent, interposing res
judicata, argued that he may no longer be charged on the basis of the same
incident. This Court held that while the respondent is in effect being indicted
twice for the same misconduct, this does not amount to double jeopardy as
both proceedings are admittedly administrative in nature. This Court qualified
that, in the first case, the respondent was proceeded against as an erring
court personnel under the Court's supervisory power over courts while, in the
second case, he was disciplined as a lawyer under the Court's plenary
authority over membersof the legal profession.
In subsequent decisions of this Court, however, it appears that res judicata
still applies in administrative cases. Thus, in the case of Atty. Eduardo C. De
Vera vs. Judge William Layague (Administrastive Matter No. RTJ-93-986), this
Court ruled that:
"While double jeopardy does not lie in administrative cases, it would
be contrary to equity and substantial justice to penalize respondent
judge a second time for an act which he had already answered for.";
Likewise, in the recent case of Executive Judge Henry B. Basilia vs. Judge
Amado L. Becamon, Lolita Delos Reyes and Eddie Delos Reyes (Administrative
Matter No. MTJ-02-1404, 14 December 2004), this Court held that:
"Applying the principle of res judicata or bar by prior judgment, the
present administrative case becomes dismissible.
xxx
 Under the said doctrine, a matter that has been adjudicated by a
court of competent jurisdiction must be deemed to have been finally
and conclusively settled if it arises in any subsequent litigation
between the same parties and for the same cause. It provides that
[a] final judgment on the merits rendered by a court of competent
jurisdiction is conclusive as to the rights of the parties and their
privies; and constitutes an absolute bar to subsequent actions
involving the same claim, demand, or cause of action. Res judicata is
based on the ground that the party to be affected, or some other with
whom he is in privity, has litigated the same matter in the former
action in a court of competent jurisdiction, and should not be
permitted to litigate it again.
This principle frees the parties from undergoing all over again the
rigors of unnecessary suits and repetitious trials. At the same time, it
prevents the clogging of court dockets. Equally important, res judicata
stabilizes rights and promotes the rule of law."
In the instant administrative case, it is clear that the issues raised by the
complainant had already been resolved by this Court in an earlier
administrative case. The complainant's contention that the principle of res
judicata would not apply in the case at bar as the first administrative case was
one for disqualification while the instant administrative complaint is one for
suspension and/or disbarment should be given least credence. It is worthy to
note that while the instant administrative complaint is denominated as one
for suspension and/or disbarment, it prayed neither the suspension nor the
disbarment of the respondent but instead merely sought to enjoin the
respondent from assuming office as IBP National President.28
Contrary to the findings of the Bar Confidant, Adm. Case No. 6052 entitled, "In Re:
Petition to Disqualify Atty. Leonard de Vera, on Legal and Moral Grounds, From Being
Elected IBP Governor for Eastern Mindanao in the May 31 IBP Election" and
promulgated on 11 December 2003 does not constitute a bar to the filing of Adm.
Case No. 6697. Although the parties in the present administrative case and in Adm.
Case No. 6052 are identical, their capacities in these cases and the issues presented
therein are not the same, thereby barring the application of res judicata.
In order that the principle of res judicata may be made to apply, four essential
conditions must concur, namely: (1) the judgment sought to bar the new action must
be final; (2) the decision must have been rendered by a court having jurisdiction over
the subject matter and the parties; (3) the disposition of the case must be a judgment
or order on the merits, and (4) there must be between the first and second action
identity of parties, identity of subject matter, and identity of causes of action.29 In the
absence of any one of these elements, Atty. de Vera cannot argue res judicata in his
favor.
It is noteworthy that the two administrative cases involve different subject matters
and causes of action. In Adm. Case No. 6052, the subject matter was the qualification
of Atty. de Vera to run as a candidate for the position of IBP Governor for Eastern
Mindanao. In the present administrative complaint, the subject matter is his privilege
to practice law. In the first administrative case, complainants' cause of action was Atty.
de Vera's alleged violation or circumvention of the IBP By-laws. In the present
administrative case, the primary cause of action is Atty. de Vera's alleged violation of
lawyer's oath and the Code of Professional Responsibility.
Finally, the two administrative cases do not seek the same relief. In the first case, the
complainants sought to prevent Atty. de Vera from assuming his post as IBP Governor
for Eastern Mindanao. In the present case, as clarified by complainant in his
Memorandum, what is being principally sought is Atty. de Vera's suspension or
disbarment.
The distinctions between the two cases are far from trivial. The previous case was
resolved on the basis of the parties' rights and obligations under the IBP By-laws. We
held therein that Atty. de Vera cannot be disqualified from running as Regional
Governor as there is nothing in the present IBP By-laws that sanctions the
disqualification of candidates for IBP governors. Consequently, we stressed that the
petition had no firm ground to stand on. Likewise, we held that the complainants
therein were not the proper parties to bring the suit as the IBP By-laws prescribes that
only nominees - which the complainants were not - can file with the IBP President a
written protest against the candidate. The Court's statement, therefore, that Atty. de
Vera cannot be disqualified on the ground that he was not morally fit was mere obiter
dictum. Precisely, the IBP By-laws do not allow for pre-election disqualification
proceedings; hence, Atty. de Vera cannot be disqualified on the basis of the
administrative findings of a hearing officer of the State Bar of California suspending
him from the practice of law for three years. We held in that case that –
There is nothing in the By-Laws which explicitly provides that one must be
morally fit before he can run for IBP governorship. For one, this is so because
the determination of moral fitness of a candidate lies in the individual
 judgment of the members of the House of Delegates. Indeed, based on each
member's standard of morality, he is free to nominate and elect any member,
so long as the latter possesses the basic requirements under the law. For
another, basically the disqualification of a candidate involving lack of moral
fitness should emanate from his disbarment or suspension from the practice
of law by this Court, or conviction by final judgment of an offense which
involves moral turpitude.30
What this simply means is that absent a final judgment by the Supreme Court in a
proper case declaring otherwise, every lawyer aspiring to hold the position of IBP
Regional Director is presumed morally fit. Any person who begs to disagree will not be
able to find a receptive audience in the IBP through a petition for disqualification but
must first file the necessary disbarment or suspension proceeding against the lawyer
concerned.
And this is precisely what complainant has chosen to do in the instant case. As his
petition is sufficient in form and substance, we have given it due course pursuant to
Rule 138 of the Rules of Court. And, considering that this case is not barred by the
prior judgment in Adm. Case No. 6052, the only issue left for consideration is whether
or not Atty. de Vera can be suspended or disbarred under the facts of the case and the
evidence submitted by complainant.
The recommendation of the hearing officer of the State Bar of California, standing alone,
is not proof of malpractice.
In the case of the Suspension From The Practice of Law In The Territory of Guam of
Atty. Leon G. Maquera,31 we were confronted with the question of whether or not a
member of the Philippine Bar, who is concomitantly an attorney in a foreign
jurisdiction and who was suspended from the practice of law in said foreign
jurisdiction, can be sanctioned as member of the Philippine Bar for the same infraction
committed in the foreign jurisdiction.
We take the issue in Atty. Maquera one notch higher in the case of Atty. de Vera who
was admitted to the practice of law in a foreign jurisdiction (State Bar of California,
U.S.A.) and against whom charges were filed in connection with his practice in said
jurisdiction. However, unlike the case of Atty. Maquera, no final judgment for
suspension or disbarment was meted against Atty. de Vera despite a recommendation
of suspension of three years as he surrendered his license to practice law before his
case could be taken up by the Supreme Court of California.
In Maquera, we emphasized that the judgment of suspension against a Filipino lawyer
in a foreign jurisdiction does not automatically result in his suspension or disbarment
in the Philippines as the acts giving rise to his suspension are not grounds for
disbarment and suspension in this jurisdiction. Judgment of suspension against a
Filipino lawyer may transmute into a similar judgment of suspension in the Philippines
only if the basis of the foreign court's action includes any of the grounds for
disbarment or suspension in this jurisdiction. We likewise held that the judgment of
the foreign court merely constitutes prima facie evidence of unethical acts as lawyer.
The Maquera ruling is consistent with Rule 39, Section 48, of the Rules of Court which
provides:
Sec. 48. Effect of foreign judgments or final orders. - The effect of a judgment
or final order of a tribunal of a foreign country, having jurisdiction to render
the judgment or final order is as follows:
xxxx
(b) In case of a judgment or final order against a person, the judgment or final
order is presumptive evidence of a right as between the parties and their
successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled by evidence of a
want of jurisdiction, want of notice to the party, collusion, fraud, or clear
mistake of law or fact.
In Philippine Aluminum Wheels, Inc. v. Fasgi Enterprises, Inc.,32 we explained that "[a]
foreign judgment is presumed to be valid and binding in the country from which it
comes, until a contrary showing, on the basis of a presumption of regularity of
proceedings and the giving of due notice in the foreign forum."
In herein case, considering that there is technically no foreign judgment to speak of,
the recommendation by the hearing officer of the State Bar of California does not
constitute prima facie evidence of unethical behavior by Atty. de Vera. Complainant
must prove by substantial evidence the facts upon which the recommendation by the
hearing officer was based. If he is successful in this, he must then prove that these acts
are likewise unethical under Philippine law.
There is substantial evidence of malpractice on the part of Atty. de Vera independent of
the recommendation of suspension by the hearing officer of the State Bar of California
Section 27 of Rule 138 of our Rules of Court states:
SEC. 27. Disbarment or suspension of attorneys by Supreme Court; grounds
therefor. – A member of the bar may be disbarred or suspended from his
office as attorney by the Supreme Court for any deceit, malpractice, or other
gross misconduct in such office, grossly immoral conduct, or by reason of his
conviction of a crime involving moral turpitude, or for any violation of the oath
which he is required to take before admission to practice, or for a wilful
disobedience of any lawful order of a superior court, or for corruptly or
wilfully appearing as an attorney for a party to a case without authority so to
do. The practice of soliciting cases at law for the purpose of gain, either
personally or through paid agents or brokers, constitutes malpractice.
The disbarment or suspension of a member of the Philippine Bar by a
competent court or other disciplinary agency in a foreign jurisdiction where
he has also been admitted as an attorney is a ground for his disbarment or
suspension if the basis of such action includes any of the acts hereinabove
enumerated.
The judgment, resolution or order of the foreign court or disciplinary agency
shall be prima facie evidence of the ground for disbarment or suspension.33
Disciplinary action against a lawyer is intended to protect the court and the public
from the misconduct of officers of the court and to protect the administration of
justice by requiring that those who exercise this important function shall be
competent, honorable and reliable men in whom courts and clients may repose
confidence.34 The statutory enunciation of the grounds for disbarment on suspension
is not to be taken as a limitation on the general power of courts to suspend or disbar a
lawyer. The inherent power of the court over its officers cannot be restricted.35
Malpractice ordinarily refers to any malfeasance or dereliction of duty committed by a
lawyer. Section 27 gives a special and technical meaning to the term
"Malpractice."36 That meaning is in consonance with the elementary notion that the
practice of law is a profession, not a business.37
Unprofessional conduct in an attorney is that which violates the rules on ethical code
of his profession or which is unbecoming a member of that profession.38
Now, the undisputed facts:
1. An administrative case against Atty. de Vera was filed before the State Bar of
California, docketed then as Adm. Case No. 86-0-18429. It arose from an insurance
case Atty. de Vera handled involving Julius Willis, III who figured in an automobile
accident in 1986. Atty. de Vera was authorized by the elder Willis (father of Julius who
was given authority by the son to control the case because the latter was then
studying in San Diego California) for the release of the funds in settlement of the case.
Atty. de Vera received a check in settlement of the case which he then deposited to his
personal account;39
2. The Hearing referee in the said administrative case recommended that Atty. de Vera
be suspended from the practice of law for three years;40 and
3. Atty. de Vera resigned from the California Bar which resignation was accepted by
the Supreme Court of California.41
Atty. de Vera vehemently insists that the foregoing facts do not prove that he
misappropriated his client's funds as the latter's father (the elder Willis) gave him
authority to use the same and that, unfortunately, the hearing officer did not consider
this explanation notwithstanding the fact that the elder Willis testified under oath that
he "expected de Vera might use the money for a few days."
By insisting that he was authorized by his client's father and attorney-in-fact to use the
funds, Atty. de Vera has impliedly admitted the use of the Willis funds for his own
personal use.
In fact, Atty. de Vera did not deny complainant's allegation in the latter's
memorandum that he (de Vera) received US$12,000.00 intended for his client and that
he deposited said amount in his personal account and not in a separate trust account
and that, finally, he spent the amount for personal purposes.42
At this point, it bears stressing that in cases filed before administrative and quasi-
judicial bodies, a fact may be deemed established if it is supported by substantial
evidence or that amount of relevant evidence which a reasonable mind might accept
as adequate to justify a conclusion.43 It means such evidence which affords a
substantial basis from which the fact in issue can be reasonably inferred.44
Beyond doubt, the unauthorized use by a lawyer of his client's funds is highly
unethical. Canon 16 of the Code of Professional Responsibility is emphatic about this,
thus:
 CANON 16. A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND PROPERTIES
OF HIS CLIENT THAT MAY COME TO HIS POSSESSION.
Rule 16.01. A lawyer shall account for all money or property collected or
received for or from the client.
Rule 16.02. A lawyer shall keep the funds of each client separate and apart
from his own and those of others kept by him.
In Espiritu v. Ulep we held that –
45
The relation between attorney and client is highly fiduciary in nature. Being
such, it requires utmost good faith, loyalty, fidelity and disinterestedness on
the part of the attorney. Its fiduciary nature is intended for the protection of
the client.
The Code of Professional Responsibility mandates every lawyer to hold in trust
all money and properties of his client that may come into his possession.
Accordingly, he shall account for all money or property collected or received
for or from the client. Even more specific is the Canon of Professional Ethics:
The lawyer should refrain from any action whereby for his personal
benefit or gain he abuses or takes advantage of the confidence
reposed in him by his client.
Money of the client or collected for the client or other trust property
coming into the possession of the lawyer should be reported and
accounted for promptly and should not under any circumstances be
commingled with his own or be used by him.
Consequently, a lawyer's failure to return upon demand the funds or property
held by him on behalf of his client gives rise to the presumption that he has
appropriated the same for his own use to the prejudice of, and in violation of
the trust reposed in him by, his client. It is a gross violation of general morality
as well as of professional ethics; it impairs the public confidence in the legal
profession and deserves punishment.
Lawyers who misappropriate the funds entrusted to them are in gross
violation of professional ethics and are guilty of betrayal of public confidence
in the legal profession. Those who are guilty of such infraction may be
disbarred or suspended indefinitely from the practice of law. (Emphases
supplied.)
In herein case, as it is admitted by Atty. de Vera himself that he used his client's money
for personal use, he has unwittingly sealed his own fate since this admission
constitutes more than substantial evidence of malpractice. Consequently, Atty. de
Vera now has the burden of rebutting the evidence which he himself supplied.
In his defense, Atty. de Vera claims that he was duly authorized by the elder Willis to
use the funds intended for the latter's son. Atty. de Vera also points out that he had
restituted the full amount of US$12,000.00 even before the filing of the administrative
case against him in the State Bar of California.46
Aside from these self-serving statements, however, we cannot find anywhere in the
records of this case proof that indeed Atty. de Vera was duly authorized to use the
funds of his client. In Radjaie v. Atty. Alovera47 we declared that –
When the integrity of a member of the bar is challenged, it is not enough that
he denies the charges against him; he must meet the issue and overcome the
evidence against him. He must show proof that he still maintains that degree
of morality and integrity which at all times is expected of him.
Atty. de Vera cannot rely on the statement made by the hearing officer that the elder
Willis had indeed testified that he "expected de Vera might use the money for a few
days." As Atty. de Vera had vigorously objected to the admissibility of the document
containing this statement, he is now estopped from relying thereon. Besides, that the
elder Willis "expected de Vera might use the money for a few days" was not so much
an acknowledgment of consent to the use by Atty. de Vera of his client's funds as it
was an acceptance of the probability that Atty. de Vera might, indeed, use his client's
funds, which by itself did not speak well of the character of Atty. de Vera or the way
such character was perceived.
In the instant case, the act of Atty. de Vera in holding on to his client's money without
the latter's acquiescence is conduct indicative of lack of integrity and propriety. It is
clear that Atty. de Vera, by depositing the check in his own account and using the
same for his own benefit is guilty of deceit, malpractice, gross misconduct and
unethical behavior. He caused dishonor, not only to himself but to the noble
profession to which he belongs. For, it cannot be denied that the respect of litigants to
the profession is inexorably diminished whenever a member of the profession betrays
their trust and confidence.48 Respondent violated his oath to conduct himself with all
good fidelity to his client.
Nevertheless, 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.49 Where any
lesser penalty can accomplish the end desired, disbarment should not be decreed.
In Mortera v. Pagatpatan,50 we imposed upon Atty. Pagatpatan two years suspension
from his practice of law for depositing the funds meant for his client to his personal
account without the latter's knowledge. In Reyes v. Maglaya;51 Castillo v.
Taguines;52 Espiritu v. Atty. Cabredo IV,53 the respondents were meted one year
suspension each for failing to remit to their clients monies in the amounts of
P1,500.00; P500.00, and P51,161.00, respectively, received by them for their clients
without the latter's permission. In Dumadag v. Atty. Lumaya,54 we indefinitely
suspended respondent for failure to remit to his client the amount of the measly sum
of P4,344.00 representing the amount received pursuant to a writ of execution.
Considering the amount involved here – US$12,000.00, we believe that the penalty of
suspension for two (2) years is appropriate.
Transferring IBP membership to a chapter where the lawyer is not a resident of is not a
ground for his suspension or disbarment
Complainant insists that Atty. de Vera's transfer of membership from the Pasay,
Parañaque, Las Piñas and Muntinlupa (PPLM) Chapter to the Agusan del Sur IBP
Chapter is a circumvention of the rotation rule as it was made for the sole purpose of
becoming IBP National President. Complainant stresses that Atty. de Vera is not a
resident of Agusan del Sur nor does he hold office therein.
In Adm. Case No. 6052, we held that Atty. de Vera's act of transferring to another IBP
Chapter is not a ground for his disqualification for the post of IBP Governor as the
same is allowed under Section 19 of the IBP By-Laws with the qualification only that
the transfer be made not less than three months immediately preceding any chapter
election.
As it was perfectly within Atty. de Vera's right to transfer his membership, it cannot be
said that he is guilty of unethical conduct or behavior. And while one may incessantly
argue that a legal act may not necessarily be ethical, in herein case, we do not see
anything wrong in transferring to an IBP chapter that -- based on the rotation rule –
will produce the next IBP EVP who will automatically succeed to the National
Presidency for the next term. Our Code of Professional Responsibility as well as the
Lawyer's Oath do not prohibit nor punish lawyers from aspiring to be IBP National
President and from doing perfectly legal acts in accomplishing such goal.
Bar Matter No. 1227
Administrative Matter No. 05-5-15-SC
To resolve Bar Matter No. 1227 and Administrative Matter No. 05-5- 15-SC, the
following issues must be addressed:
I. Whether the IBP Board of Governors acted with grave abuse of discretion in
removing Atty. de Vera as Governor and EVP of the IBP on 13 May 2005.
i. Whether the IBP Board of Governors complied with administrative
due process in removing Atty. de Vera.
ii. Whether the IBP removed Atty. De Vera for just and valid cause.
II. Whether Governor Salazar was validly elected as EVP of the IBP on 25 June
2005, and can consequently assume the Presidency of the IBP for the term
2005-2007.
The IBP Board observed due process in its removal of Atty. de Vera as IBP Governor
We start the discussion with the veritable fact that the IBP Board is vested with the
power to remove any of its members pursuant to Section 44, Article VI of the IBP By-
Laws, which states:
Sec. 44. Removal of members. – If the Board of Governors should determine
after proper inquiry that any of its members, elective or otherwise, has for any
reason become unable to perform his duties, the Board, by resolution of the
Majority of the remaining members, may declare his position vacant, subject
to the approval of the Supreme Court.
Any member of the Board, elective or otherwise, may be removed for cause,
including three consecutive absences from Board meetings without justifiable
excuse, by resolution adopted by two-thirds of the remaining members of the
Board, subject to the approval of the Supreme Court.
 In case of any vacancy in the office of Governor for whatever cause, the
delegates from the region shall by majority vote, elect a successor from
among the members of the Chapter to which the resigned governor is a
member to serve as governor for the unexpired portion of the term.
(Emphasis supplied)
Under the aforementioned section, a member of the IBP Board may be removed for
cause by resolution adopted by two-thirds (2/3) of the remaining members of the
Board, subject to the approval of this Court.
In the main, Atty. de Vera questions his removal from the Board of Governors on
procedural and substantive grounds. He argues that he was denied "very basic rights of
due process recognized by the Honorable Court even in administrative cases" like the
right to answer formally or in writing and within reasonable time, the right to present
witnesses in his behalf, the right to a fair hearing. Atty. de Vera protests the fact that
he was not able to cross-examine the complainant, IBP Gov. Romulo H. Rivera (Atty.
Rivera) and that Atty. Rivera voted as well for his expulsion which made him accuser,
prosecutor and judge at the same time. Atty. de Vera emphasized the fact that Atty.
Rivera initially inhibited himself from voting on his own motion. However, when his
inhibition resulted in the defeat of his motion as the necessary 2/3 votes could not be
mustered, Atty. Rivera asked for another round of voting so he could vote to support
his own motion.
The IBP Board counters that since its members were present during the plenary
session, and personally witnessed and heard Atty. de Vera's actuations, an evidentiary
or formal hearing was no longer necessary. Since they all witnessed and heard Atty. de
Vera, it was enough that he was given an opportunity to refute and answer all the
charges imputed against him. They emphasized that Atty. de Vera was given a copy of
the complaint and that he was present at the Board Meeting on 13 May 2005 wherein
the letter-complaint against him was part of the agenda. Therein, he was given the
opportunity to be heard and that, in fact, Atty. de Vera did argue his case.
We are in agreement with the IBP Board.
First, it needs stressing that the constitutional provision on due process safeguards life,
liberty and property.55 It cannot be said that the position of EVP of the IBP is property
within the constitutional sense especially since there is no right to security of tenure
over said position as, in fact, all that is required to remove any member of the board of
governors for cause is a resolution adopted by 2/3 of the remaining members of the
board.
Secondly, even if the right of due process could be rightfully invoked, still, in
administrative proceedings, the essence of due process is simply the opportunity to
explain one's side.56 At the outset, it is here emphasized that the term "due process of
law" as used in the Constitution has no fixed meaning for all purposes due "to the very
nature of the doctrine which, asserting a fundamental principle of justice rather than a
specific rule of law, is not susceptible of more than one general statement."57 The
phrase is so elusive of exact apprehension,58 because it depends on circumstances and
varies with the subject matter and the necessities of the situation.59
Due process of law in administrative cases is not identical with "judicial process" for a
trial in court is not always essential to due process. While a day in court is a matter of
right in judicial proceedings, it is otherwise in administrative proceedings since they
rest upon different principles. The due process clause guarantees no particular form of
procedure and its requirements are not technical. Thus, in certain proceedings of
administrative character, the right to a notice or hearing are not essential to due
process of law. The constitutional requirement of due process is met by a fair hearing
before a regularly established administrative agency or tribunal. It is not essential that
hearings be had before the making of a determination if thereafter, there is available
trial and tribunal before which all objections and defenses to the making of such
determination may be raised and considered. One adequate hearing is all that due
process requires. What is required for "hearing" may differ as the functions of the
administrative bodies differ.60
The right to cross-examine is not an indispensable aspect of due process.61 Nor is an
actual hearing always essential62 especially under the factual milieu of this case where
the members of the IBP Board -- upon whose shoulders the determination of the cause
for removal of an IBP governor is placed subject to the approval of the Supreme Court
– all witnessed Atty. de Vera's actuations in the IBP National Convention in question.
It is undisputed that Atty. de Vera received a copy of the complaint against him and
that he was present when the matter was taken up. From the transcript of the
stenographic notes of the 13 May 2005 meeting wherein Atty. de Vera was removed, it
is patent that Atty. de Vera was given fair opportunity to defend himself against the
accusations made by Atty. Rivera.
Atty. de Vera, however, additionally questions the fact that Atty. Rivera, who authored
the complaint against him, also voted for his expulsion making him accuser, prosecutor
and judge at the same time. Atty. de Vera likewise laments the fact that Atty. Rivera
initially inhibited himself from voting but when this resulted in the defeat of his motion
for lack of the necessary 2/3 vote, he agreed to another round of voting and that, this
time, he voted in favor of his motion.
For the record, of the nine governors comprising the IBP Board, six voted for Atty. de
Vera's expulsion (including Atty. Rivera) while 3 voted against it (including Atty. de
Vera).
Section 44 (second paragraph) of the IBP By-Laws provides:
Any member of the Board, elective or otherwise, may be removed for cause,
including three consecutive absences from Board meetings without justifiable
excuse, by resolution adopted by two-thirds of the remaining members of the
Board, subject to the approval of the Supreme Court. (Emphasis supplied.)
Under the rules, a resolution for expulsion of an IBP Governor is done via a resolution
adopted by 2/3 of the remaining members. The phrase "remaining members" refers to
the members exclusive of the complainant member and the respondent member. The
reason therefore is that such members are interested parties and are thus presumed
to be unable to resolve said motion impartially. This being the case, the votes of Attys.
Rivera and de Vera should be stricken-off which means that only the votes of the seven
remaining members are to be counted. Of the seven remaining members, five voted
for expulsion while two voted against it which still adds up to the 2/3 vote requirement
for expulsion.
The IBP Board removed Atty. de Vera as IBP Governor for just and valid cause
All the concerned parties to this case agree that what constitutes cause for the
removal of an IBP Governor has not been defined by Section 44 of the IBP By-Laws
albeit it includes three consecutive absences from Board meetings without justifiable
excuse. Thus, the IBP Board argues that it is vested with sufficient power and authority
to protect itself from an intractable member whose removal was caused not by his
disagreement with the IBP Board but due to various acts committed by him which the
IBP Board considered as inimical to the IBP Board in particular and the IBP in general.
Atty. de Vera, on the other hand, insists that speaking in disagreement with the
Resolution of the Board during the Convention's Plenary Session is not a valid cause to
remove or expel a duly-elected member of the IBP Board of Governors and the
decision to remove him only shows that the right to freedom of speech or the right to
dissent is not recognized by the IBP Board.
After weighing the arguments of the parties and in keeping with the fundamental
objective of the IBP to discharge its public responsibility more effectively, we hereby
find that Atty. de Vera's removal from the IBP Board was not capricious or arbitrary.
Indubitably, conflicts and disagreements of varying degrees of intensity, if not
animosity, are inherent in the internal life of an organization, but especially of the IBP
since lawyers are said to disagree before they agree.
However, the effectiveness of the IBP, like any other organization, is diluted if the
conflicts are brought outside its governing body for then there would be the
impression that the IBP, which speaks through the Board of Governors, does not and
cannot speak for its members in an authoritative fashion. It would accordingly diminish
the IBP's prestige and repute with the lawyers as well as with the general public.
As a means of self-preservation, internecine conflicts must thus be adjusted within the
governing board itself so as to free it from the stresses that invariably arise when
internal cleavages are made public.
The doctrine of majority rule is almost universally used as a mechanism for adjusting
and resolving conflicts and disagreements within the group after the members have
been given an opportunity to be heard. While it does not efface conflicts, nonetheless,
once a decision on a contentious matter is reached by a majority vote, the dissenting
minority is bound thereby so that the board can speak with one voice, for those
elected to the governing board are deemed to implicitly contract that the will of the
majority shall govern in matters within the authority of the board.63
The IBP Board, therefore, was well within its right in removing Atty. de Vera as the
latter's actuations during the 10th National IBP Convention were detrimental to the
role of the IBP Board as the governing body of the IBP. When the IBP Board is not seen
by the bar and the public as a cohesive unit, it cannot effectively perform its duty of
helping the Supreme Court enforce the code of legal ethics and the standards of legal
practice as well as improve the administration of justice.
In view of the importance of retaining group cohesiveness and unity, the expulsion of a
member of the board who insists on bringing to the public his disagreement with a
policy/resolution approved by the majority after due discussion, cannot be faulted. The
effectiveness of the board as a governing body will be negated if its pronouncements
are resisted in public by a board member.
Indeed, when a member of a governing body cannot accept the voice of the majority,
he should resign therefrom so that he could criticize in public the majority
opinion/decision to his heart's content; otherwise, he subjects himself to disciplinary
action by the body.
The removal of Atty. de Vera as member of the Board of Governors ipso facto meant his
removal as EVP as well
The removal of Atty. de Vera as member of the Board of Governors ipso facto meant
his removal as EVP as well. Section 47, Article VII of the By-Laws of the IBP provides:
SEC. 47. National Officers. – The Integrated Bar of the Philippines shall have a
President and Executive Vice President to be chosen by the Board of
Governors from among nine (9) regional governors, as much as practicable, on
a rotation basis. x x x
Thus, to be EVP of the IBP, one must necessarily be a member of IBP Board of
Governors. Atty. de Vera's removal from the Board of Governors, automatically
disqualified him from acting as IBP EVP. To insist otherwise would be contrary to
Section 47 of the IBP By-Laws.
The Court will not interfere with the Resolution of the IBP Board to remove Atty. de Vera
since it was rendered without grave abuse of discretion
While it is true that the Supreme Court has been granted an extensive power of
supervision over the IBP,64 it is axiomatic that such power should be exercised
prudently. The power of supervision of the Supreme Court over the IBP should not
preclude the IBP from exercising its reasonable discretion especially in the
administration of its internal affairs governed by the provisions of its By-Laws. The IBP
By-Laws were precisely drafted and promulgated so as to define the powers and
functions of the IBP and its officers, establish its organizational structure, and govern
relations and transactions among its officers and members. With these By-Laws in
place, the Supreme Court could be assured that the IBP shall be able to carry on its
day-to-day affairs, without the Court's interference.
It should be noted that the general charge of the affairs and activities of the IBP has
been vested in the Board of Governors. The members of the Board are elective and
representative of each of the nine regions of the IBP as delineated in its By-Laws.65 The
Board acts as a collegiate body and decides in accordance with the will of the majority.
The foregoing rules serve to negate the possibility of the IBP Board acting on the basis
of personal interest or malice of its individual members. Hence, the actions and
resolutions of the IBP Board deserve to be accorded the disputable presumption66 of
validity, which shall continue, until and unless it is overcome by substantial evidence
and actually declared invalid by the Supreme Court. In the absence of any allegation
and substantial proof that the IBP Board has acted without or in excess of its authority
or with grave abuse of discretion, we shall not be persuaded to overturn and set aside
the Board's action or resolution.
There is no question that the IBP Board has the authority to remove its members as
provided in Article VI, Section 4467 of the IBP By-Laws. Issue arises only as to whether
the IBP Board abused its authority and discretion in resolving to remove Atty. de Vera
from his post as an IBP Governor and EVP. As has been previously established herein,
Atty. de Vera's removal from the IBP Board was in accordance with due process and
the IBP Board acted well within the authority and discretion granted to it by its By-
Laws. There being no grave abuse of discretion on the part of the IBP Board, we find
no reason to interfere in the Board's resolution to remove Atty. de Vera.
The election of Atty. Salazar by the IBP Board as IBP EVP in replacement of Atty. De Vera
was conducted in accordance with the authority granted to the Board by the IBP By-Laws
In the same manner, we find no reason to disturb the action taken by the 2003-2005
IBP Board of Governors in holding a special election to fill-in the vacant post resulting
from the removal of Atty. de Vera as EVP of the IBP since the same is a purely internal
matter, done without grave abuse of discretion, and implemented without violating
the Rules and By-Laws of the IBP.
With the removal of Atty. de Vera from the Board, by virtue of the IBP Board
Resolution dated 13 May 2005, he was also removed from his post as EVP; thus, there
was a resultant vacancy in the position of IBP EVP.
Article VI, Section 41(g) of the IBP By-Laws expressly grants to the Board the authority
to fill vacancies, however arising, in the IBP positions, subject to the provisions of
Section 8 of the Integration Rule,68 and Section 11 (Vacancies),69 Section 44 (Removal
of members),70 Section 47 (National officers),71 Section 48 (other officers),72and Section
49 (Terms of Office)73 of the By-Laws. The IBP Board has specific and sufficient
guidelines in its Rules and By-Laws on how to fill-in the vacancies after the removal of
Atty. de Vera. We have faith and confidence in the intellectual, emotional and ethical
competencies of the remaining members of the 2005-2007 Board in dealing with the
situation within the bounds of the IBP Rules and By-Laws.
The election by the 2003-2005 IBP Board of Governors of a new EVP, who will assume
the Presidency for the term 2005-2007, was well within the authority and prerogative
granted to the Board by the IBP By-Laws, particularly Article VII, Section 47, which
provides that "[t]he EVP shall automatically become President for the next succeeding
term." The phrase "for the next succeeding term" necessarily implies that the EVP that
should succeed Atty. Cadiz as IBP President for the next succeeding term (i.e., 2005-
2007) should come from the members of the 2003-2005 IBP Board of Governors.
Hence, in A.M. No. 05-7-19-SC, we restrained now IBP EVP Feliciano Bautista from
assuming the position of Acting President because we have yet to resolve the question
as to who shall succeed Atty. Cadiz from the 2003-2005 IBP Board of Governors.
Accordingly, the elections of Governor Santiago on 13 June 2005 as IBP EVP, and
thereafter, Governor Salazar on 25 June 2005, as the new IBP EVP, upon the
relinquishment of Gov. Santiago of the position, were valid.
Neither can this Court give credence to the argument of Atty. De Vera that, assuming
his removal as IBP Governor and EVP was valid, his replacement as IBP EVP should
come from Eastern Mindanao Region pursuant to the rotation rule set forth in Article
VII, Section 47, of the IBP By-Laws.
According to Article VII, Section 47, of the IBP By-Laws, the EVP shall be chosen by the
Board of Governors from among the nine Regional Governors, as much as practicable,
on a rotation basis. This is based on our pronouncements in Bar Matter 491, wherein
we ruled:
"ORDER
xxxx
3. The former system of having the IBP President and Executive Vice-President
elected by the Board of Governors (composed of the governors of the nine [9] IBP
regions) from among themselves (as provided in Sec. 47, Art. VII, Original IBP By-
Laws) should be restored. The right of automatic succession by the Executive Vice-
President to the presidency upon the expiration of their two-year term (which was
abolished by this Court's resolution dated July 9, 1985 in Bar Matter No. 287)
should be as it is hereby restored.
4. At the end of the President's two-year term, the Executive Vice-President shall
automatically succeed to the office of president. The incoming board of governors
shall then elect an Executive Vice-President from among themselves. The position
of Executive Vice-President shall be rotated among the nine (9) IBP regions. One who
has served as president may not run for election as Executive Vice-President in a
succeeding election until after the rotation of the presidency among the nine (9)
regions shall have been completed; whereupon, the rotation shall begin anew.
xxxx
(Emphasis Supplied)"
In Bar Matter 491, it is clear that it is the position of IBP EVP which is actually rotated
among the nine Regional Governors. The rotation with respect to the Presidency is
merely a result of the automatic succession rule of the IBP EVP to the Presidency.
Thus, the rotation rule pertains in particular to the position of IBP EVP, while the
automatic succession rule pertains to the Presidency. The rotation with respect to the
Presidency is but a consequence of the automatic succession rule provided in Section
47 of the IBP By-Laws.
In the case at bar, the rotation rule was duly complied with since upon the election of
Atty. De Vera as IBP EVP, each of the nine IBP regions had already produced an EVP
and, thus, the rotation was completed. It is only unfortunate that the supervening
event of Atty. de Vera's removal as IBP Governor and EVP rendered it impossible for
him to assume the IBP Presidency. The fact remains, however, that the rotation rule
had been completed despite the non-assumption by Atty. de Vera to the IBP
Presidency.
Moreover, the application of the rotation rule is not a license to disregard the spirit
and purpose of the automatic succession rule, but should be applied in harmony with
the latter. The automatic succession rule affords the IBP leadership transition seamless
and enables the new IBP National President to attend to pressing and urgent matters
without having to expend valuable time for the usual adjustment and leadership
consolidation period. The time that an IBP EVP spends assisting a sitting IBP President
on matters national in scope is in fact a valuable and indispensable preparation for the
eventual succession. It should also be pointed out that this wisdom is further
underscored by the fact that an IBP EVP is elected from among the members of the IBP
Board of Governors, who are serving in a national capacity, and not from the members
at large. It is intrinsic in the IBP By-Laws that one who is to assume the highest position
in the IBP must have been exposed to the demands and responsibilities of national
leadership.
It would therefore be consistent with the purpose and spirit of the automatic
succession rule for Governor Salazar to assume the post of IBP President. By electing
the replacement EVP from among the members of the 2003-2005 Board of Governors,
the IBP benefits from the experience of the IBP EVP of 2003-2005 – in this case,
Governor Salazar – who would have served in a national capacity prior to his
assumption of the highest position.
It will also be inconsistent with the purpose and spirit of the automatic succession rule
if the EVP for the term 2003-2005 will be elected exclusively by the members of the
House of Delegates of the Eastern Mindanao region. This Court notes that the removal
of Atty. De Vera in 13 May 2005 was about a month before the expiration of the term
of office of the 2003-2005 Board of Governors. Hence, the replacement Governor
would not have been able to serve in a national capacity for two years prior to
assuming the IBP Presidency.
In any case, Section 47 of the IBP Rules uses the phrase "as much as practicable" to
clearly indicate that the rotation rule is not a rigid and inflexible rule as to bar
exceptions in compelling and exceptional circumstances.
It is in view of the foregoing that the argument advanced by Atty. De Vera that the IBP
national presidency should be assumed by a nominee from Eastern Mindanao region
from where he comes, can not hold water. It would go against the intent of the IBP By-
Laws for such a nominee would be bereft of the wealth of experience and the
perspective that only one who is honed in service while serving in a national post in
the IBP would have.
We therefore rule that the IBP Board of Governors acted in accordance with the IBP
By-Laws, in electing Atty. Salazar as IBP EVP and in ensuring a succession in the
leadership of the IBP. Had the Board of Governors not done so, there would have been
no one qualified to assume the Presidency of the IBP on 1 July 2005, pursuant to
Section 47 of the IBP By-Laws.
WHEREFORE, in view of the foregoing, we rule as follows:
1) SUSPEND Atty. Leonard de Vera in A.C. No. 6697 from the practice of law for
TWO (2) YEARS, effective from the finality of this Resolution. Let a copy of this
Resolution be attached to the personal record of Atty. Leonard de Vera and copies
furnished the Integrated Bar of the Philippines and the Office of the Court
Administrator for dissemination to all courts;
2) DISMISS the letter-complaint of Atty. Leonard de Vera, dated 18 May 2005, in
A.M. No. 05-5-15-SC, praying for the disapproval of the Resolution, dated 13 May
2005, of the Board of Governors of the Integrated Bar of the Philippines removing
him from his posts as Governor and Executive Vice President of the Integrated Bar
of the Philippines, the said Resolution having been rendered without grave abuse
of discretion;
3) AFFIRM the election by the Board of Governors of Atty. Jose Vicente B. Salazar as
Executive Vice President of the Integrated Bar of the Philippines for the remainder
of the term 2003-2005, such having been conducted in accordance with its By-Laws
and absent any showing of grave abuse of discretion; and
4) DIRECT Atty. Jose Vicente B. Salazar to immediately take his oath of office and
assume the Presidency of the Integrated Bar of the Philippines for the term 2005-
2007 in accordance with the automatic succession rule in Article VII, Section 47 of
the IBP By-Laws, upon receipt of this Resolution.
SO ORDERED.
Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario,
Garcia, Velasco, Jr., J.J., concur.
CASE NUMBER 6
A.C. No. 6672 September 4, 2009
PEDRO L. LINSANGAN, Complainant,
vs.
ATTY. NICOMEDES TOLENTINO, Respondent.
RESOLUTION
CORONA, J.:
This is a complaint for disbarment1 filed by Pedro Linsangan of the Linsangan Linsangan
& Linsangan Law Office against Atty. Nicomedes Tolentino for solicitation of clients and
encroachment of professional services.
Complainant alleged that respondent, with the help of paralegal Fe Marie Labiano, CONSULTATION AND ASSISTANCE
convinced his clients2 to transfer legal representation. Respondent promised them TO OVERSEAS SEAMEN
financial assistance3 and expeditious collection on their claims.4To induce them to hire REPATRIATED DUE TO ACCIDENT,
his services, he persistently called them and sent them text messages. INJURY, ILLNESS, SICKNESS, DEATH
AND INSURANCE BENEFIT CLAIMS
To support his allegations, complainant presented the sworn affidavit5 of James ABROAD.
Gregorio attesting that Labiano tried to prevail upon him to sever his lawyer-client
relations with complainant and utilize respondent’s services instead, in exchange for a
1avvphi1

loan of ₱50,000. Complainant also attached "respondent’s" calling card:6

Front
(emphasis supplied)

Hence, this complaint.

NICOMEDES TOLENTINO
Respondent, in his defense, denied knowing Labiano and authorizing the printing and
LAW OFFFICE circulation of the said calling card.7

CONSULTANCY & MARITIME SERVICES The complaint was referred to the Commission on Bar Discipline (CBD) of the
W/ FINANCIAL ASSISTANCE Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.8

Fe Marie L. Labiano Based on testimonial and documentary evidence, the CBD, in its report and
Paralegal recommendation,9 found that respondent had encroached on the professional practice
of complainant, violating Rule 8.0210 and other canons11of the Code of Professional
Responsibility (CPR). Moreover, he contravened the rule against soliciting cases for
Tel: 362-7820
1st MIJI Mansion, 2nd Flr. gain, personally or through paid agents or brokers as stated in Section 27, Rule 13812 of
Fax: (632)
Rm. M-01 the Rules of Court. Hence, the CBD recommended that respondent be reprimanded
362-7821
6th Ave., cor M.H. Del Pilar with a stern warning that any repetition would merit a heavier penalty.
Cel.: (0926)
Grace Park, Caloocan City
2701719
We adopt the findings of the IBP on the unethical conduct of respondent but we
modify the recommended penalty.
Back
The complaint before us is rooted on the alleged intrusion by respondent into
complainant’s professional practice in violation of Rule 8.02 of the CPR. And the means
employed by respondent in furtherance of the said misconduct themselves constituted
distinct violations of ethical rules.
SERVICES OFFERED:
Canons of the CPR are rules of conduct all lawyers must adhere to, including the
manner by which a lawyer’s services are to be made known. Thus, Canon 3 of the CPR
provides:
CANON 3 - A lawyer in making known his legal services shall use only true, honest, fair,
dignified and objective information or statement of facts.
Time and time again, lawyers are reminded that the practice of law is a profession and
not a business; lawyers should not advertise their talents as merchants advertise their
wares.13 To allow a lawyer to advertise his talent or skill is to commercialize the
practice of law, degrade the profession in the public’s estimation and impair its ability
to efficiently render that high character of service to which every member of the bar is
called.14
Rule 2.03 of the CPR provides:
RULE 2.03. A lawyer shall not do or permit to be done any act designed primarily to
solicit legal business.
Hence, lawyers are prohibited from soliciting cases for the purpose of gain, either
personally or through paid agents or brokers.15 Such actuation constitutes malpractice,
a ground for disbarment.16
Rule 2.03 should be read in connection with Rule 1.03 of the CPR which provides:
RULE 1.03. A lawyer shall not, for any corrupt motive or interest, encourage any suit or
proceeding or delay any man’s cause.
This rule proscribes "ambulance chasing" (the solicitation of almost any kind of legal
business by an attorney, personally or through an agent in order to gain
employment)17 as a measure to protect the community from barratry and champerty.18
Complainant presented substantial evidence19 (consisting of the sworn statements of
the very same persons coaxed by Labiano and referred to respondent’s office) to prove
that respondent indeed solicited legal business as well as profited from referrals’ suits.
Although respondent initially denied knowing Labiano in his answer, he later admitted
it during the mandatory hearing.
Through Labiano’s actions, respondent’s law practice was benefited. Hapless seamen
were enticed to transfer representation on the strength of Labiano’s word that
respondent could produce a more favorable result.
Based on the foregoing, respondent clearly solicited employment violating Rule 2.03,
and Rule 1.03 and Canon 3 of the CPR and Section 27, Rule 138 of the Rules of Court. 1avvphi1
With regard to respondent’s violation of Rule 8.02 of the CPR, settled is the rule that a
lawyer should not steal another lawyer’s client nor induce the latter to retain him by a
promise of better service, good result or reduced fees for his services.20 Again the
Court notes that respondent never denied having these seafarers in his client list nor
receiving benefits from Labiano’s "referrals." Furthermore, he never denied Labiano’s
connection to his office.21Respondent committed an unethical, predatory overstep into
another’s legal practice. He cannot escape liability under Rule 8.02 of the CPR.
Moreover, by engaging in a money-lending venture with his clients as borrowers,
respondent violated Rule 16.04:
Rule 16.04 – A lawyer shall not borrow money from his client unless the client’s
interests are fully protected by the nature of the case or by independent advice.
Neither shall a lawyer lend money to a client except, when in the interest of justice, he
has to advance necessary expenses in a legal matter he is handling for the client.
The rule is that a lawyer shall not lend money to his client. The only exception is, when
in the interest of justice, he has to advance necessary expenses (such as filing fees,
stenographer’s fees for transcript of stenographic notes, cash bond or premium for
surety bond, etc.) for a matter that he is handling for the client.
The rule is intended to safeguard the lawyer’s independence of mind so that the free
exercise of his judgment may not be adversely affected.22 It seeks to ensure his
undivided attention to the case he is handling as well as his entire devotion and fidelity
to the client’s cause. If the lawyer lends money to the client in connection with the
client’s case, the lawyer in effect acquires an interest in the subject matter of the case
or an additional stake in its outcome.23Either of these circumstances may lead the
lawyer to consider his own recovery rather than that of his client, or to accept a
settlement which may take care of his interest in the verdict to the prejudice of the
client in violation of his duty of undivided fidelity to the client’s cause.24
As previously mentioned, any act of solicitation constitutes malpractice25 which calls
for the exercise of the Court’s disciplinary powers. Violation of anti-solicitation statutes
warrants serious sanctions for initiating contact with a prospective client for the
purpose of obtaining employment.26 Thus, in this jurisdiction, we adhere to the rule to
protect the public from the Machiavellian machinations of unscrupulous lawyers and
to uphold the nobility of the legal profession.
Considering the myriad infractions of respondent (including violation of the prohibition
on lending money to clients), the sanction recommended by the IBP, a mere
reprimand, is a wimpy slap on the wrist. The proposed penalty is grossly
incommensurate to its findings.
A final word regarding the calling card presented in evidence by petitioner. A lawyer’s
best advertisement is a well-merited reputation for professional capacity and fidelity
to trust based on his character and conduct.27 For this reason, lawyers are only allowed
to announce their services by publication in reputable law lists or use of simple
professional cards.
Professional calling cards may only contain the following details:
(a) lawyer’s name;
(b) name of the law firm with which he is connected;
(c) address;
(d) telephone number and
(e) special branch of law practiced.28
Labiano’s calling card contained the phrase "with financial assistance." The phrase was
clearly used to entice clients (who already had representation) to change counsels with
a promise of loans to finance their legal actions. Money was dangled to lure clients
away from their original lawyers, thereby taking advantage of their financial distress
and emotional vulnerability. This crass commercialism degraded the integrity of the
bar and deserved no place in the legal profession. However, in the absence of
substantial evidence to prove his culpability, the Court is not prepared to rule that
respondent was personally and directly responsible for the printing and distribution of
Labiano’s calling cards.
WHEREFORE, respondent Atty. Nicomedes Tolentino for violating Rules 1.03, 2.03, 8.02
and 16.04 and Canon 3 of the Code of Professional Responsibility and Section 27, Rule
138 of the Rules of Court is hereby SUSPENDEDfrom the practice of law for a period of
one year effective immediately from receipt of this resolution. He is STERNLY
WARNED that a repetition of the same or similar acts in the future shall be dealt with
more severely.
Let a copy of this Resolution be made part of his records in the Office of the Bar
Confidant, Supreme Court of the Philippines, and be furnished to the Integrated Bar of
the Philippines and the Office of the Court Administrator to be circulated to all courts.
SO ORDERED.
RENATO C. CORONA
Associate Justice
CASE NUMBER 7
A.C. No. 4984 April 1, 2003
ATTY. JULITO D. VITRIOLO, PRECILLANA J. HONORICA, ARLEEN J. RAMOS, DR. ROGER
PEREZ, DR. IMELDA DARAUG, DR. REMIGIA NATHANIELZ, CELEDONIA CORONACION, and
JOSE RABALO,complainants,
vs.
ATTY. FELINA DASIG, respondent.
RESOLUTION
PER CURIAM:
This is an administrative case for disbarment filed against Atty. Felina S. Dasig,1 an
official of the Commission on Higher Education (CHED). The charge involves gross
misconduct of respondent in violation of the Attorney’s Oath for having used her
public office to secure financial spoils to the detriment of the dignity and reputation of
the CHED.
Almost all complainants in the instant case are high-ranking officers of the CHED. In
their sworn Complaint-Affidavit filed with this Court on December 4, 1998,
complainants allege that respondent, while she was OIC of Legal Affairs Service, CHED,
committed acts that are grounds for disbarment under Section 27,2 Rule 138 of the
Rules of Court, to wit:
a) Sometime in August 1998 and during the effectivity of Respondent’s
designation as Officer-in-Charge of Legal Affairs Service, CHED, she demanded
from Betty C. Mangohon, a teacher of Our Lady of Mariazel Educational
Center in Novaliches, Quezon City, the amount of P20,000.00 and later
reduced to P5,000.00 for the facilitation of her application for correction of
name then pending before the Legal Affairs Service, CHED...
b) Likewise, sometime in July to August 1998 and during the effectivity of
Respondent’s designation as Officer-in-Charge of Legal Affairs Service, CHED,
she demanded from Rosalie B. Dela Torre, a student, the amount of
P18,000.00 to P20,000.00 for facilitation of her application for correction of
name then pending before the Legal Affairs Service, CHED…
c) Likewise, sometime in September 1998 and during the effectivity of
Respondent’s designation as Officer-in-Charge of Legal Affairs Service, CHED,
she demanded from Rocella G. Eje, a student, the amount of P5,000.00 for
facilitation of her application for correction of name then pending before the
Legal Affairs Service, CHED. . . In addition, Respondent even suggested to Ms.
Eje to register her birth anew with full knowledge of the existence of a prior
registration…
d) Likewise, sometime in August to September 1998 and during the effectivity
of Respondent’s designation as Officer-in-Charge of Legal Affairs Service,
CHED, she demanded from Jacqueline N. Ng, a student, a considerable
amount which was subsequently confirmed to be P15,000.00 and initial fee of
P5,000.00 more or less for facilitation of her application for correction of
name then pending before the Legal Affairs Service, CHED... In addition, the
Respondent even suggested to Ms. Ng to hire a lawyer who shall be chosen by
Respondent Dasig to facilitate the application for correction of name.3
Complainants likewise aver that respondent violated her oath as attorney-at-law by
filing eleven (11) baseless, groundless, and unfounded suits before the Office of the
City Prosecutor of Quezon City, which were subsequently dismissed.4
Further, complainants charge respondent of transgressing subparagraph b (22),
Section 365 of Presidential Decree No. 807, for her willful failure to pay just debts
owing to "Borela Tire Supply" and "Nova’s Lining Brake & Clutch" as evidenced by the
dishonored checks she issued,6 the complaint sheet, and the subpoena issued to
respondent.7
Complainants also allege that respondent instigated the commission of a crime against
complainant Celedonia R. Coronacion and Rodrigo Coronacion, Jr., when she
encouraged and ordered her son, Jonathan Dasig, a guard of the Bureau of Jail
Management and Penology, to draw his gun and shoot the Coronacions on the evening
of May 14, 1997. As a result of this incident, a complaint for grave threats against the
respondent and her son, docketed as Criminal Case No. 86052, was lodged with the
Metropolitan Trial Court of Quezon City, Branch 36.8
Finally, complainants allege that respondent authored and sent to then President
Joseph Estrada a libelous and unfair report, which maligned the good names and
reputation of no less than eleven (11) CHED Directors calculated to justify her ill
motive of preventing their re-appointment and with the end view of securing an
appointment for herself.9
In our resolution of February 3, 1999, we required respondent to file a Comment on
the charges.10 A copy of said resolution was sent to the respondent at her address at
Blk. 4, Lot 12, Hobart II Subdivision, Novaliches, Quezon City, only to be returned to
this Court with the notation "Unclaimed."11
On July 5, 1999, we directed that a copy of the resolution of February 3, 1999, be
served by registered mail to respondent at her office address in CHED.
In a letter dated August 28, 2000, the Postmaster of the Ortigas Center Post Office
informed the Court that the said mail matter had been delivered to, received by, and
signed for by one Antonio Molon, an authorized agent of respondent on August 27,
1999.12
On November 22, 2000, we granted complainant’s motion to refer the complaint to
the Commission on Bar Discipline, Integrated Bar of the Philippines (IBP) for
investigation, report, and recommendation.
In its order dated February 6, 2001, the IBP Commission on Bar Discipline directed
respondent to submit her Answer to the Complaint, failing which she would be
considered in default and the case heard ex parte. Respondent failed to heed said
order and on January 8, 2002, the Commission directed her anew to file her Answer,
but again she failed to comply with the directive. As a result, the Commission ruled
that she had waived her right to file her Comment or Answer to the Complaint and the
case was mainly resolved on the basis of the documents submitted and on record.
In its report and recommendation, dated April 5, 2002, the IBP Commission on Bar
Discipline stated as follows:
From the foregoing evidence on record, it can be concluded that respondent
in violation of her oath as a government official and as a member of the Bar,
indeed made unlawful demands or attempted to extort money from certain
people who had pending applications/requests before her office in exchange
for her promise to act favorably on said applications/requests. Clearly,
respondent unlawfully used her public office in order to secure financial spoils
to the detriment of the dignity and reputation of the Commission on Higher
Education.
For the foregoing reasons, it is recommended that respondent be suspended
from the practice of law for the maximum period allowable of three (3) years
with a further warning that similar action in the future will be a ground for
disbarment of respondent.
On August 3, 2002, the IBP Board of Governors passed Resolution No. XV-2002-393,
the full text of which reads as follows:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED,
the Report and Recommendation of the Investigating Commissioner of the
above-entitled case, herein made part of this Resolution/Decision as Annex
"A:; and, finding the recommendation fully supported by the evidence on
record and the applicable laws and rules; and considering that respondent
unlawfully used her public office in order to secure financial spoils to the
detriment of the dignity and reputation of the Commission on Higher
Education, Respondent is hereby SUSPENDED from the practice of law for
three (3) years.13
At the threshold is the query of whether respondent attorney-at-law, as Officer-in-
Charge (OIC) of Legal Services, CHED, may be disciplined by this Court for her
malfeasance, considering that her position, at the time of filing of the complaint, was
"Chief Education Program Specialist, Standards Development Division, Office of
Programs and Standards, CHED."
Generally speaking, a lawyer who holds a government office may not be disciplined as
a member of the Bar for misconduct in the discharge of his duties as a government
official.14 However, if said misconduct as a government official also constitutes a
violation of his oath as a lawyer, then he may be disciplined by this Court as a member
of the Bar.15
In this case, the record shows that the respondent, on various occasions, during her
tenure as OIC, Legal Services, CHED, attempted to extort from Betty C. Mangohon,
Rosalie B. Dela Torre, Rocella G. Eje, and Jacqueline N. Ng sums of money as
consideration for her favorable action on their pending applications or requests before
her office. The evidence remains unrefuted, given the respondent’s failure, despite the
opportunities afforded her by this Court and the IBP Commission on Bar Discipline to
comment on the charges. We find that respondent’s misconduct as a lawyer of the
CHED is of such a character as to affect her qualification as a member of the Bar, for as
a lawyer, she ought to have known that it was patently unethical and illegal for her to
demand sums of money as consideration for the approval of applications and requests
awaiting action by her office.
The Attorney’s Oath is the source of the obligations and duties of every lawyer and any
violation thereof is a ground for disbarment, suspension, or other disciplinary action.
The Attorney’s Oath imposes upon every member of the bar the duty to delay no man
for money or malice. Said duty is further stressed in Rule 1.03 of the Code of
Professional Responsibility.16 Respondent’s demands for sums of money to facilitate
the processing of pending applications or requests before her office violates such duty,
and runs afoul of the oath she took when admitted to the Bar. Such actions likewise
run contrary to Rule 1.03 of the Code of Professional Responsibility.
A member of the Bar who assumes public office does not shed his professional
obligations. Hence, the Code of Professional Responsibility, promulgated on June 21,
1988, was not meant to govern the conduct of private practitioners alone, but of all
lawyers including those in government service. This is clear from Canon 617 of said
Code. Lawyers in government are public servants who owe the utmost fidelity to the
public service. Thus, they should be more sensitive in the performance of their
professional obligations, as their conduct is subject to the ever-constant scrutiny of the
public.
Respondent’s attempts to extort money from persons with applications or requests
pending before her office are violative of Rule 1.0118 of the Code of Professional
Responsibility, which prohibits members of the Bar from engaging or participating in
any unlawful, dishonest, or deceitful acts. Moreover, said acts constitute a breach of
Rule 6.0219 of the Code which bars lawyers in government service from promoting
their private interests. Promotion of private interests includes soliciting gifts or
anything of monetary value in any transaction requiring the approval of his office or
which may be affected by the functions of his office. Respondent’s conduct in office
falls short of the integrity and good moral character required from all lawyers, specially
from one occupying a high public office. For a lawyer in public office is expected not
only to refrain from any act or omission which might tend to lessen the trust and
confidence of the citizenry in government, she must also uphold the dignity of the
legal profession at all times and observe a high standard of honesty and fair dealing.
Otherwise said, a lawyer in government service is a keeper of the public faith and is
burdened with high degree of social responsibility, perhaps higher than her brethren in
private practice.
For her violation of the Attorney’s Oath as well as of Rule 1.01 and Rule 1.03 of Canon
120 and Rule 6.02 of Canon 6 of the Code of Professional Responsibility, particularly for
acts of dishonesty as well as gross misconduct as OIC, Legal Services, CHED, we find
that respondent deserves not just the penalty of three years’ suspension from
membership in the Bar as well as the practice of law, as recommended by the IBP
Board of Governors, but outright disbarment. Her name shall be stricken off the list of
attorneys upon finality of this decision.
WHEREFORE, respondent Arty. Felina S. Dasig is found liable for gross misconduct and
dishonesty in violation of the Attorney’s Oath as well as the Code of Professional
Responsibility, and is hereby ordered DISBARRED.
Let copies of this Resolution be furnished to the Bar Confidant to be spread on the
records of the respondent, as well as to the Integrated Bar of the Philippines for
distribution to all its chapters, and the Office of the Court Administrator for
dissemination to all courts throughout the country.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-
Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales,
Callejo, Sr., and Azcuna, JJ., concur.
CASE NUMBER 8
G.R. No. 104599 March 11, 1994
JON DE YSASI III, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION (FOURTH DIVISION), CEBU CITY, and JON DE
YSASI, respondents.
F.B. Santiago, Nalus & Associates for petitioner.
Ismael A. Serfino for private respondent.
REGALADO, J.:
The adage that blood is thicker than water obviously stood for naught in this case,
notwithstanding the vinculum of paternity and filiation between the parties. It would
indeed have been the better part of reason if herein petitioner and private respondent
had reconciled their differences in an extrajudicial atmosphere of familial amity and
with the grace of reciprocal concessions. Father and son opted instead for judicial
intervention despite the inevitable acrimony and negative publicity. Albeit with
distaste, the Court cannot proceed elsewise but to resolve their dispute with the same
reasoned detachment accorded any judicial proceeding before it.
The records of this case reveal that petitioner was employed by his father, herein
private respondent, as farm administrator of Hacienda Manucao in Hinigaran, Negros
Occidental sometime in April, 1980. Prior thereto, he was successively employed as
sales manager of Triumph International (Phil.), Inc. and later as operations manager of
Top Form Manufacturing (Phil.), Inc. His employment as farm administrator was on a
fixed salary, with other allowances covering housing, food, light, power, telephone,
gasoline, medical and dental expenses.
As farm administrator, petitioner was responsible for the supervision of daily activities
and operations of the sugarcane farm such as land preparation, planting, weeding,
fertilizing, harvesting, dealing with third persons in all matters relating to
the hacienda and attending to such other tasks as may be assigned to him by private
respondent. For this purpose, he lived on the farm, occupying the upper floor of the
house there.
Following his marriage on June 6, 1982, petitioner moved to Bacolod City with his wife
and commuted to work daily. He suffered various ailments and was hospitalized on
two separate occasions in June and August, 1982. In November, 1982, he underwent
fistulectomy, or the surgical removal of the fistula, a deep sinuous ulcer. During his
recuperation which lasted over four months, he was under the care of Dr. Patricio Tan.
In June, 1983, he was confined for acute gastroenteritis and, thereafter, for infectious
hepatitis from December, 1983 to January, 1984.
During the entire periods of petitioner's illnesses, private respondent took care of his
medical expenses and petitioner continued to receive compensation. However, in
April, 1984, without due notice, private respondent ceased to pay the latter's salary.
Petitioner made oral and written demands for an explanation for the sudden
withholding of his salary from Atty. Apolonio Sumbingco, private respondent's auditor
and legal adviser, as well as for the remittance of his salary. Both demands, however,
were not acted upon.
Petitioner then filed an action with the National Labor Relations Commission (NLRC,
for brevity), Regional Arbitration Branch No. VI, Bacolod City, on October 17, 1984,
docketed therein as RAB Case No. 0452-84, against private respondent for illegal
dismissal with prayer for reinstatement without loss of seniority rights and payment of
full back wages, thirteenth month pay for 1983, consequential, moral and exemplary
damages, as well as attorney's fees.
On July 31, 1991, said complaint for illegal dismissal was dismissed by the
NLRC,1 holding that petitioner abandoned his work and that the termination of his
employment was for a valid cause, but ordering private respondent to pay petitioner
the amount of P5,000.00 as penalty for his failure to serve notice of said termination of
employment to the Department of Labor and Employment as required by Batas
Pambansa Blg. 130 and consonant with this Court's ruling in Wenphil Corporation
vs. National Labor Relations Commission, et al.2 On appeal to the Fourth Division of the
NLRC, Cebu City, said decision was affirmed in toto.3
His motion for reconsideration4 of said decision having been denied for lack of
merit,5 petitioner filed this petition presenting the following issues for resolution: (1)
whether or not the petitioner was illegally dismissed; (2) whether or not he is entitled
to reinstatement, payment of back wages, thirteenth month pay and other benefits;
and (3) whether or not he is entitled to payment of moral and exemplary damages and
attorney's fees because of illegal dismissal. The discussion of these issues will
necessarily subsume the corollary questions presented by private respondent, such as
the exact date when petitioner ceased to function as farm administrator, the character
of the pecuniary amounts received by petitioner from private respondent, that is,
whether the same are in the nature of salaries or pensions, and whether or not there
was abandonment by petitioner of his functions as farm administrator.
In his manifestation dated September 14, 1992, the Solicitor General recommended a
modification of the decision of herein public respondent sustaining the findings and
conclusions of the Executive Labor Arbiter in RAB Case No. 0452-84,6 for which reason
the NLRC was required to submit its own comment on the petition. In compliance with
the Court's resolution of November 16, 1992,7 NLRC filed its comment on February 12,
1992 largely reiterating its earlier position in support of the findings of the Executive
Labor Arbiter.8
Before proceeding with a discussion of the issues, the observation of the labor arbiter
is worth noting:
This case is truly unique. What makes this case unique is the fact that because of
the special relationship of the parties and the nature of the action involved, this
case could very well go down (in) the annals of the Commission as perhaps the
first of its kind. For this case is an action filed by an only son, his father's
namesake, the only child and therefore the only heir against his own father.9
Additionally, the Solicitor General remarked:
. . . After an exhaustive reading of the records, two (2) observations were noted
that may justify why this labor case deserves special considerations. First, most of
the complaints that petitioner and private respondent had with each other, were
personal matters affecting father and son relationship. And secondly, if any of the
complaints pertain to their work, they allow their personal relationship to come in
the way.10
I. Petitioner maintains that his dismissal from employment was illegal because of want
of just cause therefor and non-observance of the requirements of due process. He also
charges the NLRC with grave abuse of discretion in relying upon the findings of the
executive labor arbiter who decided the case but did not conduct the hearings thereof.
Private respondent, in refutation, avers that there was abandonment by petitioner of
his functions as farm administrator, thereby arming private respondent with a ground
to terminate his employment at Hacienda Manucao. It is also contended that it is
wrong for petitioner to question the factual findings of the executive labor arbiter and
the NLRC as only questions of law may be appealed for resolution by this Court.
Furthermore, in seeking the dismissal of the instant petition, private respondent faults
herein petitioner for failure to refer to the corresponding pages of the transcripts of
stenographic notes, erroneously citing Sections 15(d) and 16(d), Rule 44 (should be
Section 16[c] and [d],
Rule 46 and Section 1[g], Rule 50) of the Rules of Court, which provide that want of
page references to the records is a ground for dismissal of an appeal.
Prefatorily, we take advertence of the provisions of Article 221 of the Labor Code that
technical rules of evidence prevailing in courts of law and equity shall not be
controlling, and that every and all reasonable means to speedily and objectively
ascertain the facts in each case shall be availed of, without regard to technicalities of
law or procedure in the interest of due process.
It is settled that it is not procedurally objectionable for the decision in a case to be
rendered by a judge, or a labor arbiter for that matter, other than the one who
conducted the hearing. The fact that the judge who heard the case was not the judge
who penned the decision does not impair the validity of the judgment,11 provided that
he draws up his decision and resolution with due care and makes certain that they
truly and accurately reflect conclusions and final dispositions on the bases of the facts
of and evidence submitted in the case.12
Thus, the mere fact that the case was initially assigned to Labor Arbiter Ricardo T.
Octavio, who conducted the hearings therein from December 5, 1984 to July 11, 1985,
and was later transferred to Executive Labor Arbiter Oscar S. Uy, who eventually
decided the case, presents no procedural infirmity, especially considering that there is
a presumption of regularity in the performance of a public officer's functions,13 which
petitioner has not successfully rebutted.
We are constrained to heed the underlying policy in the Labor Code relaxing the
application of technical rules of procedure in labor cases in the interest of due process,
ever mindful of the long-standing legal precept that rules of procedure must be
interpreted to help secure, not defeat, justice. For this reason, we cannot indulge
private respondent in his tendency to nitpick on trivial technicalities to boost his
arguments. The strength of one's position cannot be hinged on mere procedural
niceties but on solid bases in law and jurisprudence.
The fundamental guarantees of security of tenure and due process dictate that no
worker shall be dismissed except for just and authorized cause provided by law and
after due process.14 Article 282 of the Labor Code enumerates the causes for which an
employer may validly terminate an employment, to wit:
(a) serious misconduct or willful disobedience by the employee of the lawful orders of
his employer or representative in connection with his work; (b) gross and habitual
neglect by the employee of his duties; (c) fraud or willful breach by the employee of
the trust reposed in him by his employer or duly authorized representative; (d)
commission of a crime or offense by the employee against the person of his employer
or any immediate member of his family or his duly authorized representative; and (e)
other causes analogous to the foregoing.
The employer may also terminate the services of any employee due to the installation
of labor saving devices, redundancy, retrenchment to prevent losses or the closing or
cessation of operation of the establishment or undertaking, unless the closing is for
the purpose of circumventing the pertinent provisions of the Labor Code, by serving a
written notice on the workers and the Department of Labor and Employment at least
one (1) month before the intended date thereof, with due entitlement to the
corresponding separation pay rates provided by law.15Suffering from a disease by
reason whereof the continued employment of the employee is prohibited by law or is
prejudicial to his and his co-employee's health, is also a ground for termination of his
services provided he receives the prescribed separation pay.16 On the other hand, it is
well-settled that abandonment by an employee of his work authorizes the employer to
effect the former's dismissal from employment.17
After a careful review of the records of this case, we find that public respondent
gravely erred in affirming the decision of the executive labor arbiter holding that
petitioner abandoned his employment and was not illegally dismissed from such
employment. For want of substantial bases, in fact or
in law, we cannot give the stamp of finality and conclusiveness normally accorded to
the factual findings of an administrative agency, such as herein public respondent
NLRC,18 as even decisions of administrative agencies which are declared "final" by law
are not exempt from judicial review when so warranted. 19
The following perceptive disquisitions of the Solicitor General on this point deserve
acceptance:
It is submitted that the absences of petitioner in his work from October 1982 to
December 1982, cannot be construed as abandonment of work because he has a
justifiable excuse. Petitioner was suffering from perennial abscess in the peri-anal
around the anus and fistula under the medical attention of Dr. Patricio Tan of
Riverside Medical Center, Inc., Bacolod City (Tsn, Vol. III, Dr. Tan, February 19, 1986
at 20-44).
This fact (was) duly communicated to private respondent by medical bills sent to
Hacienda Manucao (Tsn, Vol. III, Dr. Tan, January 22, 1987 at 49-50).
During the period of his illness and recovery, petitioner stayed in Bacolod City upon
the instruction(s) of private respondent to recuperate thereat and to handle only
administrative matters of the hacienda in that city. As a manager, petitioner is not
really obliged to live and stay 24 hours a day inside Hacienda Manucao.
xxx xxx xxx
After evaluating the evidence within the context of the special circumstances
involved and basic human experience, petitioner's illness and strained family
relation with respondent Jon de Ysasi II may be considered as justifiable reason for
petitioner Jon de Ysasi III's absence from work during the period of October 1982 to
December 1982. In any event, such absence does not warrant outright dismissal
without notice and hearing.
xxx xxx xxx
The elements of abandonment as a ground for dismissal of an employee are as
follows:
(1) failure to report for work or absence without valid or justifiable reason;
and (2) clear intention to sever the employer-employee tie (Samson
Alcantara, Reviewer in Labor and Social Legislation, 1989 edition, p. 133).
This Honorable Court, in several cases, illustrates what constitute
abandonment. In Dagupan Bus Company v. NLRC (191 SCRA 328), the Court
rules that for abandonment to arise, there must be a concurrence of the
intention to abandon and some overt act from which it may be inferred that the
employee has no more interest to work. Similarly, in Nueva Ecija I Electric
Cooperative, Inc. v. NLRC (184 SCRA 25), for abandonment to constitute a valid
cause for termination of employment, there must be a deliberate, unjustified
refusal of the employee to resume his employment. . . Mere absence is not
sufficient; it must be accompanied by overt acts unerringly pointing to the fact
that the employee simply does not want to work anymore.
There are significant indications in this case, that there is no abandonment.
First, petitioner's absence and his decision to leave his residence inside
Hacienda Manucao, is justified by his illness and strained family relations.
Second he has some medical certificates to show his frail health. Third, once
able to work, petitioner wrote a letter (Annex "J") informing private respondent
of his intention to assume again his employment. Last, but not the least, he at
once instituted a complaint for illegal dismissal when he realized he was unjustly
dismissed. All these are indications that petitioner had no intention to abandon
his employment.20
The records show that the parties herein do not dispute the fact of petitioner's
confinement in the hospital for his various afflictions which required medical
treatment. Neither can it be denied that private respondent was well aware of
petitioner's state of health as the former admittedly shouldered part of the medical
and hospital bills and even advised the latter to stay in Bacolod City until he was fit to
work again. The disagreement as to whether or not petitioner's ailments were so
serious as to necessitate hospitalization and corresponding periods for recuperation is
beside the point. The fact remains that on account of said illnesses, the details of
which were amply substantiated by the attending physician,21 and as the records are
bereft of any suggestion of malingering on the part of petitioner, there was justifiable
cause for petitioner's absence from work. We repeat, it is clear, deliberate and
unjustified refusal to resume employment and not mere absence that is required to
constitute abandonment as a valid ground for termination of employment.22
With his position as farm administrator of Hacienda Manucao, petitioner unmistakably
may be classified as a managerial employee23 to whom the law grants an amount of
discretion in the discharge of his duties. This is why when petitioner stated that "I
assigned myself where I want to go,"24 he was simply being candid about what he could
do within the sphere of his authority. His duties as farm administrator did not strictly
require him to keep regular hours or to be at the office premises at all times, or to be
subjected to specific control from his employer in every aspect of his work. What is
essential only is that he runs the farm as efficiently and effectively as possible and,
while petitioner may definitely not qualify as a model employee, in this regard he
proved to be quite successful, as there was at least a showing of increased production
during the time that petitioner was in charge of farm operations.
If, as private respondent contends, he had no control over petitioner during the years
1983 to 1984, this is because that was the period when petitioner was recuperating
from illness and on account of which his attendance and direct involvement in farm
operations were irregular and minimal, hence the supervision and control exercisable
by private respondent as employer was necessarily limited. It goes without saying that
the control contemplated refers only to matters relating to his functions as farm
administrator and could not extend to petitioner's personal affairs and activities.
While it was taken for granted that for purposes of discharging his duties as farm
administrator, petitioner would be staying at the house in the farm, there really was
no explicit contractual stipulation (as there was no formal employment contract to
begin with) requiring him to stay therein for the duration of his employment or that
any transfer of residence would justify the termination of his employment. That
petitioner changed his residence should not be taken against him, as this is undeniably
among his basic rights, nor can such fact of transfer of residence per se be a valid
ground to terminate an employer-employee relationship.
Private respondent, in his pleadings, asserted that as he was yet uncertain of his son's
intention of returning to work after his confinement in the hospital, he kept petitioner
on the payroll, reported him as an employee of the haciendafor social security
purposes, and paid his salaries and benefits with the mandated deductions therefrom
until the end of December, 1982. It was only in January, 1983 when he became
convinced that petitioner would no longer return to work that he considered the latter
to have abandoned his work and, for this reason, no longer listed him as an employee.
According to private respondent, whatever amount of money was given to petitioner
from that time until
April, 1984 was in the nature of a pension or an allowance or mere gratuitous doles
from a father to a son, and not salaries as, in fact, none of the usual deductions were
made therefrom. It was only in April, 1984 that private respondent completely stopped
giving said pension or allowance when he was angered by what he heard petitioner
had been saying about sending him to jail.
Private respondent capitalizes on the testimony of one Manolo Gomez taken on oral
deposition regarding petitioner's alleged statement to him, "(h)e quemado los
(p)ue(n)tes de Manucao" ("I have burned my bridges with Manucao") as expressive of
petitioner's intention to abandon his job. In addition to insinuations of sinister motives
on the part of petitioner in working at the farm and thereafter abandoning the job
upon accomplishment of his objectives, private respondent takes the novel position
that the agreement to support his son after the latter abandoned the administration of
the farm legally converts the initial abandonment to implied voluntary resignation.25
As earlier mentioned, petitioner ripostes that private respondent undoubtedly knew
about petitioner's illness and even paid for his hospital and other medical bills. The
assertion regarding abandonment of work, petitioner argues, is further belied by his
continued performance of various services related to the operations of the farm from
May to the last quarter of 1983, his persistent inquiries from his father's accountant
and legal adviser about the reason why his pension or allowance was discontinued
since April, 1984, and his indication of having recovered and his willingness and
capability to resume his work at the farm as expressed in a letter dated September 14,
1984.26 With these, petitioner contends that it is immaterial how the monthly
pecuniary amounts are designated, whether as salary, pension or allowance, with or
without deductions, as he was entitled thereto in view of his continued service as farm
administrator.27
To stress what was earlier mentioned, in order that a finding of abandonment may
justly be made there must be a concurrence of two elements, viz.: (1) the failure to
report for work or absence without valid or justifiable reason, and (2) a clear intention
to sever the employer-employee relationship, with the second element as the more
determinative factor and being manifested by some overt acts. Such intent we find
dismally wanting in this case.
It will be recalled that private respondent himself admitted being unsure of his son's
plans of returning to work. The absence of petitioner from work since mid-1982,
prolonged though it may have been, was not without valid causes of which private
respondent had full knowledge. As to what convinced or led him to believe that
petitioner was no longer returning to work, private respondent neither explains nor
substantiates by any reasonable basis how he arrived at such a conclusion.
Moreover, private respondent's claim of abandonment cannot be given credence as
even after January, 1983, when private respondent supposedly "became convinced"
that petitioner would no longer work at the farm, the latter continued to perform
services directly required by his position as farm administrator. These are duly and
correspondingly evidenced by such acts as picking up some farm
machinery/equipment from G.A. Machineries, Inc.,28 claiming and paying for additional
farm equipment and machinery shipped by said firm from Manila to Bacolod through
Zip Forwarders,29 getting the payment of the additional cash advances for molasses for
crop year 1983-1984 from Agrotex Commodities, Inc.,30 and remitting to private
respondent through
Atty. Sumbingco the sums collected along with receipts for medicine and oil.31
It will be observed that all of these chores, which petitioner took care of, relate to the
normal activities and operations of the farm. True, it is a father's prerogative to
request or even command his child to run errands for him. In the present case,
however, considering the nature of these transactions, as well as the property values
and monetary sums involved, it is unlikely that private respondent would leave the
matter to just anyone. Prudence dictates that these matters be handled by someone
who can be trusted or at least be held accountable therefor, and who is familiar with
the terms, specifications and other details relative thereto, such as an employee. If
indeed petitioner had abandoned his job or was considered to have done so by private
respondent, it would be awkward, or even out of place, to expect or to oblige
petitioner to concern himself with matters relating to or expected of him with respect
to what would then be his past and terminated employment. It is hard to imagine what
further authority an employer can have over a dismissed employee so as to compel
him to continue to perform work-related tasks:
It is also significant that the special power of attorney32 executed
by private respondent on June 26, 1980 in favor of petitioner, specifically stating —
xxx xxx xxx
That I, JON de YSASI, Filipino, of legal age, married, and a resident of Hda.
Manucao, hereinafter called and referred to as PRINCIPAL, am a sugarcane planter,
BISCOM Mill District, and a duly accredited planter-member of the BINALBAGAN-
ISABELA PLANTERS' ASSOCIATION, INC.;
That as such planter-member of BIPA, I have check/checks with BIPA representing
payment for all checks and papers to which I am entitled to (sic) as such planter-
member;
That I have named, appointed and constituted as by these presents
I HEREBY NAME, APPOINT AND CONSTITUTE as my true and lawful ATTORNEY-IN-
FACT
JON de YSASI III
whose specimen signature is hereunder affixed, TO GET FOR ME and in my name,
place and stead, my check/checks aforementioned, said ATTORNEY-IN-FACT being
herein given the power and authority to sign for me and in my name, place and
stead, the receipt or receipts or payroll for the said check/checks. PROVIDED,
HOWEVER, that my said ATTORNEY-IN-FACT cannot cash the said check/checks, but
to turn the same over to me for my proper disposition.
That I HEREBY RATIFY AND CONFIRM the acts of my
Attorney-in-Fact in getting the said check/checks and signing the receipts therefor.
That I further request that my said check/checks be made a "CROSSED CHECK".
xxx xxx xxx
remained in force even after petitioner's employment was supposed to have been
terminated by reason of abandonment. Furthermore, petitioner's numerous requests
for an explanation regarding the stoppage of his salaries and benefits,33 the issuance of
withholding tax reports,34 as well as correspondence reporting his full recovery and
readiness to go back to work,35 and, specifically, his filing of the complaint for illegal
dismissal are hardly the acts of one who has abandoned his work.
We are likewise not impressed by the deposition of Manolo Gomez, as witness for
private respondent, ascribing statements to petitioner supposedly indicative of the
latter's intention to abandon his work. We perceive the irregularity in the taking of
such deposition without the presence of petitioner's counsel, and the failure of private
respondent to serve reasonably advance notice of its taking to said counsel, thereby
foreclosing his opportunity to
cross-examine the deponent. Private respondent also failed to serve notice thereof on
the Regional Arbitration Branch No. VI of the NLRC, as certified to by Administrative
Assistant Celestina G. Ovejera of said office.36 Fair play dictates that at such an
important stage of the proceedings, which involves the taking of testimony, both
parties must be afforded equal opportunity to examine and cross-examine a witness.
As to the monthly monetary amounts given to petitioner, whether denominated as
salary, pension, allowance or ex gratia handout, there is no question as to petitioner's
entitlement thereto inasmuch as he continued to perform services in his capacity as
farm administrator. The change in description of said amounts contained in the pay
slips or in the receipts prepared by private respondent cannot be deemed to be
determinative of petitioner's employment status in view of the peculiar circumstances
above set out. Besides, if such amounts were truly in the nature of allowances given by
a parent out of concern for his child's welfare, it is rather unusual that receipts
therefor37 should be necessary and required as if they were ordinary business
expenditures.
Neither can we subscribe to private respondent's theory that petitioner's alleged
abandonment was converted into an implied voluntary resignation on account of the
father's agreement to support his son after the latter abandoned his work. As we have
determined that no abandonment took place in this case, the monthly sums received
by petitioner, regardless of designation, were in consideration for services rendered
emanating from an employer-employee relationship and were not of a character that
can qualify them as mere civil support given out of parental duty and solicitude. We
are also hard put to imagine how abandonment can be impliedly converted into a
voluntary resignation without any positive act on the part of the employee conveying a
desire to terminate his employment. The very concept of resignation as a ground for
termination by the employee of his employment38 does not square with the elements
constitutive of abandonment.
On procedural considerations, petitioner posits that there was a violation by private
respondent of the due process requirements under the Labor Code for want of notice
and hearing.39 Private respondent, in opposition, argues that Section 2, Rule XIV, Book
V of the Omnibus Rules Implementing the Labor Code applies only to cases where the
employer seeks to terminate the services of an employee on any of the grounds
enumerated under Article 282 of the Labor Code, but not to the situation obtaining in
this case where private respondent did not dismiss petitioner on any ground since it
was petitioner who allegedly abandoned his employment.40
The due process requirements of notice and hearing applicable to labor cases are set
out in Rule XIV, Book V of the Omnibus Rules Implementing the Labor Code in this
wise:
Sec. 2. Notice of Dismissal. — Any employer who seeks to dismiss a worker shall
furnish him a written notice stating the particular acts or omission(s)
constituting the grounds for his dismissal. In cases of abandonment of work,
notice shall be served at the worker's last known address.
xxx xxx xxx
Sec. 5. Answer and hearing. — The worker may answer the allegations as stated
against him in the notice of dismissal within a reasonable period from receipt of
such notice. The employer shall afford the worker ample opportunity to be
heard and to defend himself with the assistance of his representative, if he so
desires.
Sec. 6. Decision to dismiss. — The employer shall immediately notify a worker in
writing of a decision to dismiss him stating clearly the reasons therefor.
Sec. 7. Right to contest dismissal. — Any decision taken by the employer shall be
without prejudice to the right of the worker to contest the validity or legality of
his dismissal by filing a complaint with the Regional Branch of the Commission.
xxx xxx xxx
Sec. 11. Report of dismissal. — The employer shall submit a monthly report to the
Regional Office having jurisdiction over the place of work at all dismissals effected
by him during the month, specifying therein the names of the dismissed workers,
the reasons for their dismissal, the dates of commencement and termination of
employment, the positions last held by them and such other information as may be
required by the Ministry for policy guidance and statistical purposes.
Private respondent's argument is without merit as there can be no question that
petitioner was denied his right to due process since he was never given any notice
about his impending dismissal and the grounds therefor, much less a chance to be
heard. Even as private respondent controverts the applicability of the mandatory twin
requirements of procedural due process in this particular case, he in effect admits that
no notice was served by him on petitioner. This fact is corroborated by the certification
issued on September 5, 1984 by the Regional Director for Region VI of the Department
of Labor that no notice of termination of the employment of petitioner was submitted
thereto.41
Granting arguendo that there was abandonment in this case, it nonetheless cannot be
denied that notice still had to be served upon the employee sought to be dismissed, as
the second sentence of Section 2 of the pertinent implementing rules explicitly
requires service thereof at the employee's last known address, by way of substantial
compliance. While it is conceded that it is the employer's prerogative to terminate an
employee, especially when there is just cause therefor, the requirements of due
process cannot be lightly taken. The law does not countenance the arbitrary exercise
of such a power or prerogative when it has the effect of undermining the fundamental
guarantee of security of tenure in favor of the employee.42
On the executive labor arbiter's misplaced reliance on the Wenphil case, the Solicitor
General rejoins as follows:
The Labor Arbiter held thus:
While we are in full agreement with the respondent as to his defense of implied
resignation and/or abandonment, records somehow showed that he failed to
notify the Department of
Labor and Employment for his sons' (sic)/complainants' (sic) aba(n)donment as
required by BP 130. And for this failure, the other requisite for a valid
termination by an employer was not complied with. This however, would not
work to invalidate the otherwise (sic) existence of a valid cause for dismissal.
The validity of the cause of dismissal must be upheld at all times provided
 however that sanctions must be imposed on the respondent for his failure to
observe the notice on due process requirement. (Wenphil Corp. v. NLRC, G.R.
No. 80587). (Decision Labor Arbiter, at 11-12, Annex "C" Petition), . . .
This is thus a very different case from Wenphil Corporation v. NLRC, 170 SCRA
69. In Wenphil, the rule applied to the facts is: once an employee is dismissed
for just cause, he must not be rewarded
re-employment and backwages for failure of his employer to observe
procedural due process. The public policy behind this is that, it may encourage
the employee to do even worse and render a mockery of the rules of discipline
required to be observed. However, the employer must be penalized for his
infraction of due process. In the present case, however, not only was petitioner
dismissed without due process, but his dismissal is without just cause. Petitioner
did not abandon his employment because he has a justifiable excuse.43
II. Petitioner avers that the executive labor arbiter erred in disregarding the mandatory
provisions of Article 279 of the Labor Code which entitles an illegally dismissed
employee to reinstatement and back wages and, instead, affirmed the imposition of
the penalty of P5,000.00 on private respondent for violation of the due process
requirements. Private respondent, for his part, maintains that there was error in
imposing the fine because that penalty contemplates the failure to submit the
employer's report on dismissed employees to the DOLE regional office, as required
under Section 5 (now, Section 11), Rule XIV of the implementing rules, and not the
failure to serve notice upon the employee sought to be dismissed by the employer.
Both the Constitution and the Labor Code enunciate in no uncertain terms the right of
every worker to security of tenure.44 To give teeth to this constitutional and statutory
mandates, the Labor Code spells out the relief available to an employee in case of its
denial:
Art. 279. Security of Tenure. — In cases of regular employment, the employer shall
not terminate the services of an employee except for a just cause or when
authorized by this Title. An employee who is unjustly dismissed from work shall be
entitled to reinstatement without loss of seniority rights and other privileges and to
his full backwages, inclusive of allowances, and to his other benefits of their
monetary equivalent computed from the time his compensation was withheld from
him up to the time of actual reinstatement.
Clearly, therefore, an employee is entitled to reinstatement with full back wages in the
absence of just cause for dismissal.45 The Court, however, on numerous occasions has
tempered the rigid application of said provision of the Labor Code, recognizing that in
some cases certain events may have transpired as would militate against the
practicability of granting the relief thereunder provided, and declares that where there
are strained relations between the employer and the employee, payment of back
wages and severance pay may be awarded instead of reinstatement,46 and more
particularly when managerial employees are concerned.47 Thus, where reinstatement is
no longer possible, it is therefore appropriate that the dismissed employee be given
his fair and just share of what the law accords him.48
We note with favor and give our imprimatur to the Solicitor General's ratiocination, to
wit:
As a general rule, an employee who is unjustly dismissed from work shall be
entitled to reinstatement without loss of seniority rights and to his backwages
computed from the time his compensation was withheld up to the time of his
reinstatement. (Morales vs. NLRC, 188 SCRA 295). But in Pacific Cement Company,
Inc. vs. NLRC, 173 SCRA 192, this Honorable Court held that when it comes to
reinstatement, differences should be made between managers and the ordinary
workingmen. The Court concluded that a company which no longer trusts its
managers cannot operate freely in a competitive and profitable manner. The NLRC
should know the difference between managers and ordinary workingmen. It cannot
imprudently order the reinstatement of managers with the same ease and liberality
as that of rank and file workers who had been terminated. Similarly, a
reinstatement may not be appropriate or feasible in case of antipathy or
antagonism between the parties (Morales, vs. NLRC, 188 SCRA 295).
In the present case, it is submitted that petitioner should not be reinstated as farm
administrator of Hacienda Manucao. The present relationship of petitioner and
private respondent (is) so strained that a harmonious and peaceful employee-
employer relationship is hardly possible.49
III. Finally, petitioner insists on an award of moral damages, arguing that his dismissal
from employment was attended by bad faith or fraud, or constituted oppression, or
was contrary to morals, good customs or public policy. He further prays for exemplary
damages to serve as a deterrent against similar acts of unjust dismissal by other
employers.
Moral damages, under Article 2217 of the Civil Code, may be awarded to compensate
one for diverse injuries such as mental anguish, besmirched reputation, wounded
feelings, and social humiliation, provided that such injuries spring from a wrongful act
or omission of the defendant which was the proximate cause thereof.50 Exemplary
damages, under Article 2229, are imposed by way of example or correction for the
public good, in addition to moral, temperate, liquidated or compensatory damages.
They are not recoverable as a matter of right, it being left to the court to decide
whether or not they should be adjudicated.51
We are well aware of the Court's rulings in a number of cases in the past allowing
recovery of moral damages where the dismissal of the employee was attended by bad
faith or fraud, or constituted an act oppressive to labor, or was done in a manner
contrary to morals, good customs or public policy,52 and of exemplary damages if the
dismissal was effected in a wanton, oppressive or malevolent manner.53 We do not
feel, however, that an award of the damages prayed for in this petition would be
proper even if, seemingly, the facts of the case justify their allowance. In the
aforestated cases of illegal dismissal where moral and exemplary damages were
awarded, the dismissed employees were genuinely without fault and were
undoubtedly victims of the erring employers' capricious exercise of power.
In the present case, we find that both petitioner and private respondent can equally be
faulted for fanning the flames which gave rise to and ultimately aggravated this
controversy, instead of sincerely negotiating a peaceful settlement of their disparate
claims. The records reveal how their actuations seethed with mutual antagonism and
the undeniable enmity between them negates the likelihood that either of them acted
in good faith. It is apparent that each one has a cause for damages against the other.
For this reason, we hold that no moral or exemplary damages can rightfully be
awarded to petitioner.
On this score, we are once again persuaded by the validity of the following
recommendation of the Solicitor General:
The Labor Arbiter's decision in RAB Case No. 0452-84 should be modified. There
was no voluntary abandonment in this case because petitioner has a justifiable
excuse for his absence, or such absence does not warrant outright dismissal
without notice and hearing. Private respondent, therefore, is guilty of illegal
dismissal. He should be ordered to pay backwages for a period not exceeding
three years from date of dismissal. And in lieu of reinstatement, petitioner may
be paid separation pay equivalent to one (1) month('s) salary for every year of
service, a fraction of six months being considered as one (1) year in accordance
with recent jurisprudence (Tan, Jr. vs. NLRC, 183 SCRA 651). But all claims for
damages should be dismissed, for both parties are equally at fault.54
The conduct of the respective counsel of the parties, as revealed by the records, sorely
disappoints the Court and invites reproof. Both counsel may well be reminded that
their ethical duty as lawyers to represent their clients with
zeal55 goes beyond merely presenting their clients' respective causes in court. It is just
as much their responsibility, if not more importantly, to exert all reasonable efforts to
smooth over legal conflicts, preferably out of court and especially in consideration of
the direct and immediate consanguineous ties between their clients. Once again, we
reiterate that the useful function of a lawyer is not only to conduct litigation but to
avoid it whenever possible by advising settlement or withholding suit. He is often
called upon less for dramatic forensic exploits than for wise counsel in every phase of
life. He should be a mediator for concord and a conciliator for compromise, rather
than a virtuoso of technicality in the conduct of litigation.56
Rule 1.04 of the Code of Professional Responsibility explicitly provides that "(a) lawyer
shall encourage his client to avoid, end or settle the controversy if it will admit of a fair
settlement." On this point, we find that both counsel herein fell short of what was
expected of them, despite their avowed duties as officers of the court. The records do
not show that they took pains to initiate steps geared toward effecting a
rapprochement between their clients. On the contrary, their acerbic and protracted
exchanges could not but have exacerbated the situation even as they may have found
favor in the equally hostile eyes of their respective clients.
In the same manner, we find that the labor arbiter who handled this regrettable case
has been less than faithful to the letter and spirit of the Labor Code mandating that a
labor arbiter "shall exert all efforts towards the amicable settlement of a labor dispute
within his jurisdiction."57 If he ever did so, or at least entertained the thought, the
copious records of the proceedings in this controversy are barren of any reflection of
the same.
One final word. This is one decision we do not particularly relish having been obliged
to make. The task of resolving cases involving disputes among members of a family
leaves a bad taste in the mouth and an aversion in the mind, for no truly meaningful
and enduring resolution is really achieved in such situations. While we are convinced
that we have adjudicated the legal issues herein squarely on the bases of law and
jurisprudence, sans sentimentality, we are saddened by the thought that we may have
failed to bring about the reconciliation of the father and son who figured as parties to
this dispute, and that our adherence here to law and duty may unwittingly contribute
to the breaking, instead of the strengthening, of familial bonds. In fine, neither of the
parties herein actually emerges victorious. It is the Court's earnest hope, therefore,
that with the impartial exposition and extended explanation of their respective rights
in this decision, the parties may eventually see their way clear to an ultimate
resolution of their differences on more convivial terms.

WHEREFORE, the decision of respondent National Labor Relations Commission is

hereby SET ASIDE. Private respondent is ORDERED to pay petitioner back wages for a
period not exceeding three (3) years, without qualification or deduction,58 and, in lieu
of reinstatement, separation pay equivalent to one (1) month for every year of service,
a fraction of six (6) months being considered as one (1) whole year.

SO ORDERED.

Narvasa, C.J., Padilla, Nocon and Puno, JJ., concur.