LEGAL OPINION

Lacuesta-Bactol and Associates Law Firm

Baguio City, Philippines

December 4, 2019

Mrs. Linda Santos

Baguio City
Philippines

Re: Possible criminal charges on Rico and possible suspension or

disbarment of Atty. Hikos.

Dear Mrs. Santos

I have received your request for Legal Opinion regarding the

possible criminal charges to your husband and possible suspension
and worst disbarment against Atty. Hikos.

ISSUE
Whether or Not criminal charges can prosper under Article
334 of the Revised Penal Code or violation of RA 9262.
Whether or Not Atty. Hikos can be suspended or disbar from
practicing the legal profession. Situation

SHORT ANSWER
My answer is yes you can file a criminal action against
husband for his infidelity.
And, Atty. Hikos may be suspended or may be disbar.
FACTS
As stipulated from the facts you have sent, you said that your
husband was having an extra-marital affair with Atty. Hikos, even
when the latter knew that your husband was legally married. And,
that Atty. Hikos bought a 45 sq. meter condominium for their illicit
sexual activities. And, when you confronted her she did not
hesitate to tell you frankly that they have an illicit relationship.
DISCUSSION

For your information Mrs. Linda Santos, Atty. Hikos can be

liable for her immoral acts.

In the Code of Professional Responsibility, where practicing

lawyers adheres into, provides in Rule 1. 01 and Rule 7. 03 that:

“Rule 1.01 - A lawyer shall not engage in unlawful, dishonest,

immoral or deceitful conduct.”1

“Rule 7.03 - A lawyer shall not engage in conduct that

adversely reflects on his fitness to practice law, nor shall he
whether in public or private life, behave in a scandalous manner to
the discredit of the legal profession.”2

In the case of Arnobit v Atty. Arnobit (A.C. No. 1481, October

17, 2008) provides that:

"xxx lawyers must not only in fact be of good moral character

but must also be seen to be of good moral character and leading
lives in accordance with the highest moral standards of the
community. A member of the bar and an officer of the court is not
only required to refrain from adulterous relationships or keeping a
mistress but must also so behave himself as to avoid scandalizing

1
See Code of Professional Responsibility
Chapter I. The Lawyer and Society
Canon 1 – A Lawyer shall uphold the Constitution, obey the
laws of the land and promote respect for law of and legal
processes.
2
Chapter II. The Lawyer and the Legal Profession
Canon 7 – A Lawyer shall at all times uphold the integrity and
dignity of the legal profession and support the activities of the
integrated bar.
the public by creating the impression that he is flouting those moral
standards." Consequently, any errant behavior of the lawyer, be it
in his public or private activities, which tends to show deficiency in
moral character, honesty, probity or good demeanor, is sufficient
to warrant suspension or disbarment.”3

If Atty. Hikos continues to have an illicit relationship with your

husband, she may be reprimand or disbarred by the Court. 4

For the situation that addresses your husband’s infidelity,

Article 334 of the Revised Penal Code (RPC) would apply:

“Art. 334. Concubinage. — Any husband who shall keep a

mistress in the conjugal dwelling, or, shall have sexual
intercourse, under scandalous circumstances, with a woman
who is not his wife, or shall cohabit with her xxx.”

xxx

It can be gleaned from the foregoing provision that, in order

to obtain a judgment of conviction, it is necessary for you to
establish by proof beyond reasonable doubt that your husband is
either keeping a mistress in your conjugal dwelling; or having

3
In case of suspension, the period would range from one year to
indefinite suspension, as in the case of Cordova v. Cordova,31
where the lawyer was found to have maintained an adulterous
relationship for two years and refused to support his family. On the
other hand, there is a string of cases where the Court meted out
the extreme penalty of disbarment
4
In Obusan v. Obusan, Jr., a lawyer was disbarred after the
complainant proved that he had abandoned her and maintained an
adulterous relationship with a married woman. The Court declared
that the respondent failed to maintain the highest degree of
morality expected and required of a member of the Bar.
sexual intercourse, under scandalous circumstances, with another
woman; or cohabiting with another woman in any other place.

The statement by Atty. Hikos is not sufficient for you to file a

criminal charge on your husband. I deem it best to advise you to
only pursue the case if you have clear and convincing evidence.5

However, Republic Act No. 9262 or the Act defining Violence

Against Women and their Children (VAWC) provides for in Section
5 (c):

“Section 5 (c). "Psychological violence" refers to acts or

omissions causing or likely to cause mental or emotional suffering
of the victim such as but not limited to intimidation, harassment,
stalking, damage to property, public ridicule or humiliation,
repeated verbal abuse and mental infidelity. xxx”

In the case of AAA v. BBB (G.R No. 212448, January 11,

2018) states that:

“xxx the marital infidelity per se but the psychological

violence causing mental or emotional suffering on the wife.
Otherwise stated, it is the violence inflicted under the said
circumstances that the law seeks to outlaw. Marital infidelity

In addition, a complaint for concubinage can only be

prosecuted if both the erring husband and his concubine are
impleaded. This holds true even if the penalties imposed against
them, as stated under the law, are different. Pursuant to Article
344 of the Revised Penal Code:

“Prosecution of the crimes of adultery, concubinage, seduction,

abduction, rape and acts of lasciviousness. – The crimes of adultery
and concubinage shall not be prosecuted except upon a complaint
filed by the offended spouse.
 as cited in the law is only one of the various acts by which
psychological violence may be committed. xxx”

It can be gleaned that the marital infidelity your husband

committed as you were enraged and scorned causes psychological
violence causing mental and emotional suffering on your part.

Certainly, the act causing psychological violence which under

the information relates to your husband’s marital infidelity must be
proven by probable cause for the purpose of formally charging him,
and to establish the same beyond reasonable doubt for purposes
of conviction.

Submitted