Republic of the Philippines

SUPREME COURT
Manila
EN BANC

A.C. No. 5118 September 9, 1999

(A.C. CBD No. 97-485)
MARILOU SEBASTIAN, complainant,
vs.
ATTY. DOROTHEO CALIS, respondent.

PER CURIAM:
For unlawful, dishonest, immoral or deceitful conduct as well as violation of his oath as lawyer, respondent Atty.
Dorotheo Calis faces disbarment.
The facts of this administrative case, as found by the Commission on Bar Discipline of the Integrated Bar of the
Philippines (IBP), 1 in its Report, are as follows:
Complainant (Marilou Sebastian) alleged that sometime in November, 1992, she was referred
to the respondent who promised to process all necessary documents required for
complainant's trip to the USA for a fee of One Hundred Fifty Thousand Pesos (P150,000.00).
On December 1, 1992 the complainant made a partial payment of the required fee in the
amount of Twenty Thousand Pesos (P20,000.00), which was received by Ester Calis, wife of
the respondent for which a receipt was issued.
From the period of January 1993 to May 1994 complainant had several conferences with the
respondent regarding the processing of her travel documents. To facilitate the processing,
respondent demanded an additional amount of Sixty Five Thousand Pesos (P65,000.00) and
prevailed upon complainant to resign from her job as stenographer with the Commission on
Human Rights.
On June 20, 1994, to expedite the processing of her travel documents complainant issued
Planters Development Bank Check No. 12026524 in the amount of Sixty Five Thousand
Pesos (P65,000.00) in favor of Atty. D. Calis who issued a receipt. After receipt of said
amount, respondent furnished the complainant copies of Supplemental to U.S. Nonimmigrant
Visa Application (Of. 156) and a list of questions which would be asked during interviews.
When complainant inquired about her passport, Atty. Calis informed the former that she will
be assuming the name Lizette P. Ferrer married to Roberto Ferrer, employed as sales
manager of Matiao Marketing, Inc. The complainant was furnished documents to support her
assumed identity.
1w phi1.nt

Realizing that she will be travelling with spurious documents, the complainant demanded the
return of her money, however she was assured by respondent that there was nothing to worry
about for he has been engaged in the business for quite sometime; with the promise that her
money will be refunded if something goes wrong.

Weeks before her departure respondent demanded for the payment of the required fee which
was paid by complainant, but the corresponding receipt was not given to her.
When complainant demanded for her passport, respondent assured the complainant that it
will be given to her on her departure which was scheduled on September 6, 1994. On said
date complainant was given her passport and visa issued in the name of Lizette P. Ferrer.
Complainant left together with Jennyfer Belo and a certain Maribel who were also recruits of
the respondent.
Upon arrival at the Singapore International Airport, complainant together with Jennyfer Belo
and Maribel were apprehended by the Singapore Airport Officials for carrying spurious travel
documents; Complainant contacted the respondent through overseas telephone call and
informed him of by her predicament. From September 6 to 9, 1994, complainant was detained
at Changi Prisons in Singapore.
On September 9, 1994 the complainant was deported back to the Philippines and respondent
fetched her from the airport and brought her to his residence at 872-A Tres Marias Street,
Sampaloc, Manila. Respondent took complainant's passport with a promise that he will secure
new travel documents for complainant. Since complainant opted not to pursue with her travel,
she demanded for the return of her money in the amount of One Hundred Fifty Thousand
Pesos (P150,000.00).
On June 4, 1996, June 18 and July 5, 1996 respondent made partial refunds of P15,000.00;
P6,000.00; and P5,000.00.
On December 19, 1996 the complainant through counsel, sent a demand letter to respondent
for the refund of a remaining balance of One Hundred Fourteen Thousand Pesos
(P114,000.00) which was ignored by the respondent.
Sometime in March 1997 the complainant went to see the respondent, however his wife
informed her that the respondent was in Cebu attending to business matters.
In May 1997 the complainant again tried to see the respondent however she found out that
the respondent had transferred to an unknown residence apparently with intentions to evade
responsibility.
Attached to the complaint are the photocopies of receipts for the amount paid by complainant,
applications for U.S.A. Visa, questions and answers asked during interviews; receipts
acknowledging partial refunds of fees paid by the complainant together with demand letter for
the remaining balance of One Hundred Fourteen Thousand Pesos (P114,000.00); which was
received by the respondent. 2
Despite several notices sent to the respondent requiring an answer to or comment on the complaint, there was
no response. Respondent likewise failed to attend the scheduled hearings of the case. No appearance
whatsoever was made by the respondent. 3 As a result of the inexplicable failure, if not obdurate refusal of

the respondent to comply with the orders of the Commission, the investigation against him proceeded ex
parte.
On September 24, 1998, the Commission on Bar Discipline issued its Report on the case, finding that:
It appears that the services of the respondent was engaged for the purpose of securing a visa
for a U.S.A. travel of complainant. There was no mention of job placement or employment
abroad, hence it is not correct to say that the respondent engaged in illegal recruitment.

The alleged proposal of the respondent to secure the U.S.A. visa for the complainant under
an assumed name was accepted by the complainant which negates deceit on the part of the
respondent. Noted likewise is the partial refunds made by the respondent of the fees paid by
the complainant. However, the transfer of residence without a forwarding address indicates
his attempt to escape responsibility.
In the light of the foregoing, we find that the respondent is guilty of gross misconduct for
violating

Canon
1 Rule 1.01 of the Code of Professional Responsibility which provides that a lawyer shall
not engage in unlawful, dishonest, immoral or deceitful conduct.
WHEREFORE, it is respectfully recommended that ATTY. DOROTHEO CALIS be
SUSPENDED as a member of the bar until he fully refunds the fees paid to him by
complainant and comply with the order of the Commission on Bar Discipline pursuant to Rule
139-B, Sec. 6, of the Rules of Court. 4
Pursuant to Section 12, Rule 139-B of the Rules of Court, this administrative case was elevated to the IBP
Board of Governors for review. The Board in a Resolution 5 dated December 4, 1998 resolved to adopt and

approve with amendment the recommendation of the Commission. The Resolution of the Board states:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the
Report and Recommendation of the Investigating Commissioner in the above-entitled case,
herein made part of this Resolution/Decision as Annex "A"; and, finding the recommendation
fully supported by the evidence on record and the applicable laws and rules, with an
amendment that Respondent Atty. Dorotheo Calis be DISBARRED for having been found
guilty of Gross Misconduct for engaging in unlawful, dishonest, immoral or deceitful conduct.
We are now called upon to evaluate, for final action, the IBP recommendation contained in its Resolution dated
December 4, 1998, with its supporting report.
After examination and careful consideration of the records in this case, we find the Resolution passed by the
Board of Governors of the IBP in order. We agree with the finding of the Commission that the charge of illegal
recruitment was not established because complainant failed to substantiate her allegation on the matter. In fact
she did not mention any particular job or employment promised to her by the respondent. The only service of
the respondent mentioned by the complainant was that of securing a visa for the United States.
We likewise concur with the IBP Board of Governors in its Resolution, that herein respondent is guilty of gross
misconduct by engaging in unlawful, dishonest, immoral or deceitful conduct contrary to Canon I, Rule 101 of
the Code of Professional Responsibility. Respondent deceived the complainant by assuring her that he could
give her visa and travel documents; that despite spurious documents nothing untoward would happen; that he
guarantees her arrival in the USA and even promised to refund her the fees and expenses already paid, in
case something went wrong. All for material gain.
Deception and other fraudulent acts by a lawyer are disgraceful and dishonorable. They reveal moral flaws in a
lawyer. They are unacceptable practices. A lawyer's relationship with others should be characterized by the
highest degree of good faith, fairness and candor. This is the essence of the lawyer's oath. The lawyer's oath is
not mere facile words, drift and hollow, but a sacred trust that must be upheld and keep inviolable. 6 The nature

of the office of an attorney requires that he should be a person of good moral character. 7 This requisite is
not only a condition precedent to admission to the practice of law, its continued possession is also
essential for remaining in the practice of law.8 We have sternly warned that any gross misconduct of a
lawyer, whether in his professional or private capacity, puts his moral character in serious doubt as a
member of the Bar, and renders him unfit to continue in the practice of law. 9

It is dismaying to note how respondent so cavalierly jeopardized the life and liberty of complainant when he
made her travel with spurious documents. How often have victims of unscrupulous travel agents and illegal
recruiters been imprisoned in foreign lands because they were provided fake travel documents? Respondent
totally disregarded the personal safety of the complainant when he sent her abroad on false assurances. Not
only are respondent's acts illegal, they are also detestable from the moral point of view. His utter lack of moral
qualms and scruples is a real threat to the Bar and the administration of justice.
The practice of law is not a right but a privilege bestowed by the State on those who show that they possess,
and continue to possess, the qualifications required by law for the conferment of such privilege. 10 We must

stress that membership in the bar is a privilege burdened with conditions. A lawyer has the privilege to
practice law only during good behavior. He can be deprived of his license for misconduct ascertained and
declared by judgment of the court after giving him the opportunity to be heard. 11
Here, it is worth noting that the adamant refusal of respondent to comply with the orders of the IBP and his total
disregard of the summons issued by the IBP are contemptuous acts reflective of unprofessional conduct. Thus,
we find no hesitation in removing respondent Dorotheo Calis from the Roll of Attorneys for his unethical,
unscrupulous and unconscionable conduct toward complainant.
Lastly, the grant in favor of the complainant for the recovery of the P114,000.00 she paid the respondent is in
order. 12 Respondent not only unjustifiably refused to return the complainant's money upon demand, but

he stubbornly persisted in holding on to it, unmindful of the hardship and humiliation suffered by the
complainant.
WHEREFORE, respondent Dorotheo Calis is hereby DISBARRED and his name is ordered stricken from the
Roll of Attorneys. Let a copy of this Decision be FURNISHED to the IBP and the Bar Confidant to be spread on
the personal records of respondent. Respondent is likewise ordered to pay to the complainant immediately the
amount of One Hundred Fourteen Thousand (P114,000.00) Pesos representing the amount he collected from
her.
1wphi1.nt

SO ORDERED.
Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes and
Ynares-Santiago, JJ., concur.
Davide, Jr., C.J. and Panganiban, J., on official leave.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

A.M. No. 1048 July 14, 1995

WELLINGTON REYES, complainant,
vs.
ATTY. SALVADOR M. GAA, respondent.

PER CURIAM:

This administrative complaint for disbarment charges respondent, a former Assistant City Fiscal of manila,
withmalpractice and willful violation of his oath as an attorney.
I
On March 30, 1971, at around 9:00 A.M. complainant reported to the National Bureau of Investigation (NBI)
that he had been the victim of extortion by respondent, an Assistant City Fiscal of Manila, who was
investigating a complaint for estafa filed by complainant's business rival. According to complainant, he had
given respondent P500.00 on March 1, 1971 and a total of P500.00 on three other occasions. He said that
another "payoff" was scheduled at 11:00 A.M. that day in respondent's office at the City Hall.
An entrapment was set up by the NBI.
Complainant furnished the NBI agents several peso bills totalling P150.00 for marking. The paper bills were
sent to the Forensic and Chemistry Division of the NBI and subsequently returned to complainant for the use in
the entrapment.
When complainant went to respondent's office, he was told that the latter would not return until around 2:30
P.M. So complainant and the NBI agents went back at around 2:30 P.M. As there were other persons doing
businesswith respondent, complainant had to wait for thirty minutes. When finally complainant was able to see
respondent, the latter greeted him in Tagalog "Ano ba ang sa iyo?" Complainant answered "Hindi tayo nagkita
kaninang umaga." To which respondent replied "Oo, kanina pa kita hinihintay." Complainant then handed to
respondent the marked money which he placed inside his right pocket. The NBI agents then apprehended
respondent and brought him to the NBI Forensic and Chemistry Division for examination. Respondent's hands
were found positive of the yellow florescent powder applied earlier to the marked money. Respondent was
thereafter taken to the Office of the Anti-Organized Crime Division of the NBI where he was photographed,
fingerprinted and record checked. Respondent declined to give a sworn statement to explain his side of the
case, invoking his right against self-incrimination.
On the same date, the NBI recommended the prosecution of respondent for violation of Section 3(b) of R.A.
No. 3019.
On April 13, 1971, the NBI recommended to the Secretary of Justice the filing of administrative charges and the
institution of disbarment proceedings against him.
On April 21, 1971, President Marcos suspended respondent from office pending investigation and disposition of
his administrative case (Case No. 74).
Aside from the criminal complaint and Administrative Case No. 74, two other cases were earlier filed against
respondent: namely, Administrative Case No. 10 for Grave Misconduct filed by one Angel Alora on October 13,
1969, wherein respondent was found guilty as charged and was recommended for suspension; and
Administrative Case No. 10-A. for partiality filed by Fabiola Fajardo on April 26, 1970, which was pending
resolution.
In his answer to the complaint for disbarment, respondent asserted that complainant surreptitiously planted the
marked money in his pocket without his knowledge and consent.
He further said that the criminal case (IS No. 71-6558) filed against him by the NBI at the instance of
complainant was still pending preliminary investigation by the City Fiscal of Manila. In connection with the
incident of March 30, 1971, he said that he had filed a criminal complaint for incriminatory machination, perjury
and attempted corruption of a public official against complainant with the City Fiscal of Manila.
In reply to the answer, complainant denied that the several cases against respondent were motivated by
revenge, malice or personal ill will. He said that the investigating fiscal had recommended the dismissal of the
charges filed by respondent against him.

In a resolution dated December 23, 1971, this Court resolved to refer the disbarment case to the Solicitor
General for investigation, report and recommendation. However, upon the adoption of Rule 139-B of the
Revised Rules of Court., the case was transferred to the IBP Board of Governors for investigation and
disposition.
On March 15, 1993, Commissioner Vicente Q. Roxas of the Commission on Bar Discipline of the Integrated
Bar of the Philippines (IBP) recommended that respondent be disbarred. Said recommendation was approved
by the IBP Board of Governors in its resolution dated March 26, 1994.
II
We agree with the recommendation of the IBP Board of Governors.
In the case at bench, respondent was caught in flagrante delicto in the act of receiving the marked money from
complainant during the entrapment conducted by the NBI agents, which resulted in his arrest and the
subsequent filing of administrative and criminal cases against him. In his defense, respondent merely denied
the charge of extortion and retorted that the marked money was planted by complainant.
It is settled that affirmative testimony is given greater weight than negative testimony (Delos Reyes v. Aznar,
179 SCRA 653 [1989]). 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 (Malcolm, Legal and
Judicial Ethics 93 [1949]). He must show proof that he still maintains that degree of morality and integrity which
at all times is expected of him (Bayasen v. Court of Appeals, 103 SCRA 197 [1981]; Vda. de Ramos v. Court of
Appeals, 81 SCRA 393 [1978]).
Where the misconduct of a lawyer as a government official is of such a character as to affect his qualification
as a lawyer or to show moral delinquency, then he may be disciplined as a member of the bar on such grounds
(Gonzales-Austria v. Abaya, 176 SCRA 634 [1989]).
The extortion committed by respondent constitutes misconduct as a public official, which also constitutes a
violation of his oath as a lawyer. The lawyer's oath (Revised Rules of Court, Rule 138, Section 18; People v.
De Luna, 102 Phil. 968 [1958]), imposes upon every lawyer the duty to delay no man for money or malice. The
lawyer's oath is a source of his obligations and its violation is a ground for his suspension, disbarment or other
disciplinary action (Agpalo, Legal Ethics 66-67 [1983]).
WHEREFORE, respondent is DISBARRED and his name is ordered STRICKEN OFF from the Roll of
Attorneys. Let a copy of this resolution be furnished the Bar Confidant and the Integrated Bar of the Philippines
and spread on the personal records of respondent.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Quiason, Puno, Vitug, Kapunan, Mendoza
and Francisco, JJ., concur.
Melo, J., took no part.
Bellosillo, J., is on leave.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 1203

May 15, 1903

In the matter of the suspension of HOWARD D. TERRELL from the practice of law.
Solicitor-General Araneta for Government.
W. A. Kincaid for defendant.
PER CURIAM:
Howard D. Terrell, an attorney-at-law, was ordered to show cause in the Court of First Instance, in the city of
Manila, on the 5th day of February, 1903, why he should not be suspended as a member of the bar of the city
of Manila for the reasons:
First, that he had assisted in the organization of the "Centro Bellas Artes" Club, after he had been notified that
the said organization was made for the purpose of evading the law then in force in said city; and,
Secondly, for acting as attorney for said "Centro Bellas Artes" during the time of and after its organization,
which organization was known to him to be created for the purpose of evading the law.
The accused appeared on the return day, and by his counsel, W. A. Kincaid, made answer to these charges,
denying the same, and filed affidavits in answer thereto. After reading testimony given by said Howard D.
Terrell, in the case of the United States vs. H. D. Terrell,1 wherein he was charged with estafa, and after
reading the said affidavits in his behalf, and hearing his counsel, the court below found, and decided as a fact,
that the charges aforesaid made against Howard D. Terrell were true, and thereupon made an order
suspending him from his office as a lawyer in the Philippine Islands, and directed the clerk of the court to
transmit to this court a certified copy of the order of suspension, as well as a full statement of the facts upon
which the same was based.
We have carefully considered these facts, and have reached the conclusion that they were such as to justify
the court below in arriving at the conclusion that the knowledge and acts of the accused in connection with the
organization of the "Centro Bellas Artes" Club were of such a nature and character as to warrant his
suspension from practice.
The promoting of organizations, with knowledge of their objects, for the purpose of violating or evading the laws
against crime constitutes such misconduct on the part of an attorney, an officer of the court, as amounts to
malpractice or gross misconduct in his office, and for which he may be removed or suspended. (Code of Civil
Procedure, sec. 21.) The assisting of a client in a scheme which the attorney knows to be dishonest, or the
conniving at a violation of law, are acts which justify disbarment.
In this case, however, inasmuch as the defendant in the case of the United States, vs. Terrell was acquitted on
the charge of estafa, and has not, therefore, been convicted of crime, and as the acts with which he is charged
in this proceeding, while unprofessional and hence to be condemned, are not criminal in their nature, we are of
opinion that the ends of justice will be served by the suspension of said Howard D. Terrell from the practice of
law in the Philippine Islands for the term of one year from the 7th day of February, 1903.
It is therefore directed that the said Howard D. Terrell be suspended from the practice of law for a term of one
year from February 7, 1903. It is so ordered.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
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. Stiers 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 respondents 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 complainants counsel, Atty. Bonifacio A. Alentajan,7 because respondent refused to
act as complainants 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 IBPs 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 respondents 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 respondents 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.
A lawyer should not render any service or give advice to any client which will involve 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 justifies disciplinary action against the lawyer.10
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 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 complainants name. But respondent provided "some safeguards" by preparing several
documents,13including the Occupancy Agreement, that would guarantee Stiers recognition as the actual owner
of the property despite its transfer in complainants name. In effect, respondent advised and aided Stier in
circumventing the constitutional prohibition against foreign ownership of lands 14 by preparing said documents.
Respondent had sworn to uphold the Constitution. Thus, he violated his oath and the 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 achieve an unlawful end. Such an act amounts to malpractice in his office, for
which he may be suspended.15
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 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 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 respondents
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.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
CONCHITA CARPIO MORALES
Associate Justice

DANTE O. TINGA
Asscociate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice
G.R. No. 125766 October 19, 1998
FELICIDAD L. ORONCE and ROSITA L. FLAMINIANO, petitioners,
vs.
HON. COURT OF APPEALS and PRICILIANO B. GONZALES DEVELOPMENT
CORPORATION, respondent.

ROMERO, J.:
The issue of whether or not a Metropolitan or Municipal Trial Court may resolve the issue of ownership of the
property involved in an unlawful detainer case has been discussed by this Court in a number of cases,
the morerecent of which is that of Hilario v. Court of Appeals. 1 Jurisprudence on the matter has in fact been

reflected in the 1997 Rules of Civil Procedure under Rule 70, to wit:
Sec. 16. Resolving defense of ownership. When the defendant raises the defense of
ownership in his pleadings and the question of possession cannot be resolved without
deciding the issue of ownership, the issue of ownership shall be resolved only to determine
the issue of possession. (4a)
These developments in the law notwithstanding, there remains some misconceptions on the issue of
jurisdiction of inferior courts in ejectment cases where ownership is raised as a defense that the Court
deems proper to clarify in this petition.
Private respondent Priciliano B. Gonzales Development Corporation was the registered owner of a parcel of
land with an area of 2,000 square meters. The land with improvements, covered by Transfer Certificate of Title
No. RT-54556 (383917), is situated at No. 52 Gilmore Street, New Manila, Quezon City.
In June 1988, private respondent obtained a four million peso -(P4,000,000.00) loan from the China Banking
Corporation. To guarantee payment of the loan, private respondent mortgaged the Gilmore property and all its
improvements to said bank. Due to irregular payment of amortization, interests and penalties on the loan
accumulated through the years.

On April 13, 1992, private respondent, through its president, Antonio B. Gonzales, signed and executed a Deed
of Sale with Assumption of Mortgage covering the Gilmore property and its improvements, in favor of
petitioners Rosita Flaminiano and Felicidad L. Oronce. 2 The deed, which states that the sale was in

consideration of the sum of P5,400,000.00, 3 provided inter alia that

. . . the VENDOR (PBGDC) also guarantees the right of the VENDEES (petitioners) to the
possession of the property subject of this contract without the need of judicial action; and
possession of said premises shall be delivered to the VENDEES by the VENDOR at the
expiration of one (1) year from the date of the signing and execution of this Deed of Sale with
Assumption of Mortgage.
On the other hand, petitioners bound themselves to pay private respondent's indebtedness with China
Banking Corporation.
In fulfillment of the terms and conditions embodied in the Deed of Sale with Assumption of Mortgage,
petitioners paid private respondent's indebtedness with the bank. However, private respondent reneged on its
obligation to deliver possession of the premises to petitioners upon the expiration of the one-year period from
April 13, 1992. Almost six months later since the execution of the instrument or on October 2, 1992, petitioners
caused the registration of the Deed of Sale with Assumption of Mortgage with the Register of Deeds.
Simultaneously, they obtained a new title, TCT No. 67990, consistent with the fact that they are the new
owners of the property. 4Sometime in July 1993, they paid the real estate taxes on the property for which

they were issued Tax Declarations Nos. C-061-02815 and C-061-02816. 5

On November 12, 1993, petitioners sent private respondent a demand letter asking it to vacate the premises.
Said letter, just like three other consecutive notices sent through the Quezon City post office, was unclaimed.
Hence, on April 11, 1994, petitioners filed before the Metropolitan Trial Court of Quezon City, a complaint for
unlawful detainer against private respondent. The complaint, docketed as Civil Case No. 8638 was raffled to
Branch 41. Petitioners alleged that by virtue of the Deed of Sale with Assumption of Mortgage, they acquired
from private respondent the Gilmore property and its improvements, for which reason they were issued TCT
No. 67990. However, they added, in violation of the terms of that document, specifically Sec. 3 (c) thereof,
private respondent refused to surrender possession of the premises. Consequently, they demanded that
private respondent vacate the premises through notices sent by registered mail that were, however, returned to
them unclaimed.
In its answer to the complaint, private respondent raised the issue of ownership over the property. It impugned
petitioners' right to eject, alleging that petitioners had no cause of action against it because it was merely a
mortgagee of the property. It argued that when the parties executed the Deed of Sale with Assumption of
Mortgage, its real intention was to forge an equitable mortgage and not a sale. It pointed out three
circumstances indicative of an equitable mortgage, namely: inadequacy of the purchase price, continued
possession by private respondent of the premises, and petitioners' retention of a portion of the purchase price.
During the preliminary conference on the case, the parties agreed to stipulate on the following: (a) the
existence and due execution of the Deed of Sale with Assumption of Mortgage, and (b) the issue of
whether or not the premises in litis are being unlawfully detained by private respondent. 6
On March 24, 1995, the MTC 7 decided the case in favor of petitioners. It ruled that petitioners are the

owners of the Gilmore property on account of the following pieces of evidence: (a) TCT No. 67990; (b)
petitioners' payment to the China Banking Corporation of P8,500,000.00, the amount of the mortgage
entered into between private respondent and said bank; (c) payment of real estate taxes for 1993, and (d)
Tax Declaration No. 02816 in petitioners' names. The MTC further held that private respondent's
possession of the premises was merely tolerated by petitioners and because it refused to vacate the
premises despite demand to do so, then its possession of the same premises had become illegal. Thus,
the MTC decreed as follows:
WHEREFORE, premises considered, judgment is hereby rendered ordering defendant and all persons claiming
rights under it to vacate the premises-in-litis located at No. 52 Gilmore St., New Manila, Quezon City, and to

peacefully surrender possession thereof to the plaintiffs; to pay plaintiffs the sum of P20,000.00 a month as
compensation for the unjust occupation of the same from April 11, 1994 (the date of filing of this case) until
defendant fully vacates the said premises; to pay plaintiffs the amount of P20,000.00 as and for attorney's fees
plus costs of suit.
Counterclaim is dismissed for lack of merit.
SO ORDERED. 8
On April 25, 1995, private respondent interposed an appeal to the Regional Trial Court, Branch 219, of Quezon
City that docketed it as Civil Case No. Q-95-23697. Private respondent stressed in its appeal that it was not
unlawfully withholding possession of the premises from petitioners because the latter's basis for evicting it was
the Deed of Sale with Assumption of Mortgage that did not reflect the true intention of the parties to enter into
an equitable mortgage. Clearly in pursuance of that allegation, private respondent filed a motion questioning
the jurisdiction of the RTC to entertain its appeal. On the other hand, petitioners filed a motion for the
immediate execution of the appealed decision. The RTC granted the motion on September 21, 1995 and the
corresponding writ of execution was issued on September 25, 1995. The following day, the sheriff served upon
private respondent the writ of execution and a notice to vacate the premises within five (5) days from receipt
thereof.
Meanwhile, during the pendency of its appeal, private respondent filed an action for reformation of instrument
with the RTC. It was docketed as Civil Case No. Q-95-24927 and assigned to Branch 227.
In a resolution dated December 7, 1995, RTC Branch 219 asserted jurisdiction over the appeal. It ruled that the
issue of whether or not an action for reformation of a deed of sale and an unlawful detainer case can proceed
independently of each other has been resolved by this Court in Judith v. Abragan. 9 In said case, this Court

held that the fact that defendants had previously filed a separate action for the reformation of a deed of
absolute sale into one ofpacto de retro sale or equitable mortgage in the same Court of First Instance is
not a valid reason to frustrate the summary remedy of ejectment afforded by law to the plaintiff.
On December 12, 1995, private respondent filed in the Court of Appeals a petition for certiorari with prayer for a
temporary restraining order and writ of preliminary injunction against petitioners and RTC Branch 219. It
assailed the September 21, 1995 order granting the issuance of a writ of execution pending appeal, the writ of
execution and the notice to vacate served upon private respondent (CA-G.R. SP-39227).
On December 13, 1995, RTC Branch 219 10 rendered the decision affirming in toto that of the Metropolitan

Trial Court. Stating that in ejectment proceedings, the only issue for resolution is who is entitled to
physical or material possession of the premises involved, RTC Branch 219 held that
. . . the plaintiffs (petitioners herein) are vendees of the defendant (PBGDC) by virtue of a
deed of sale where the extent of its right to continue holding possession was stipulated. In the
agreement, the existence and due execution of which the defendant had admitted (Order,
December 16, 1994, Rollo, p. 111), it was clearly stated that the defendant shall deliver the
possession of the subject premises to the plaintiffs at the expiration of one (1) year from the
execution thereof, April 12, 1992. The defendant failed to do so. From then on, it could be said
that the defendant has been unlawfully withholding possession of the premises from the
plaintiffs.
In any case, this ruling on the matter of possession de facto is without prejudice to the action
for reformation. This is because "the judgment rendered in an action for forcible entry or
detainer shall be effective with respect to the possession only and in no wise bind the title or
effect the ownership of the land or building nor shall it be held conclusive of the facts therein
found in case between the same parties upon a different cause of action not involving
possession" (Ang Ping v. Regional Trial Court, 154 SCRA 153; Section 7, Rule 70, Rules of
Court). 11

On that same date, December 13, 1995, the Court of Appeals issued a temporary restraining order enjoining
RTC Branch 219 from enforcing the writ of execution and the notice to vacate the premises and on January 15,
1996, the same court granted private respondent's application for a writ of preliminary injunction enjoining the
implementation of both the writ of execution pending appeal and the decision of RTC Branch 219.
Around six months later or on July 2, 1996, RTC Branch 227 12 issued an order declaring private respondent

non-suited for failure to appear at the pre-trial and, therefore, dismissing the action for reformation of
instrument in Civil Case No. Q-95-24927. Private respondent, not having sought reconsideration of said
order, the same court issued a resolution on August 15, 1996 directing the entry of judgment in the
case. 13 The Clerk of Court accordingly issued the final entry of judgment thereon. 14
In the meantime, on July 24, 1996, the Court of Appeals rendered the herein questioned Decision. 15 It set

aside the December 13, 1995 decision of RTC Branch 219 and declared as null and void for want of
jurisdiction, the March 24, 1995 decision of the Metropolitan Trial Court of Quezon City, Branch 41. It
made permanent the writ of preliminary injunction enjoining petitioners from implementing the decision of
RTC Branch 219, the writ of execution and the notice to vacate. In so holding, the Court of Appeals said:
It is quite evident that, upon the pleadings, the dispute between the parties extended beyond
the ordinary issues in ejectment cases. The resolution of the dispute hinged on the question of
ownership and for that reason was not cognizable by the MTC. (See: General Insurance and
Surety Corporation v. Castelo, 13 SCRA 652 (1965).
Respondent judge was not unaware of the pendency of the action for reformation. However,
despite such knowledge, he proceeded to discuss the merits of the appeal and rendered
judgment in favor of respondents on the basis of the deed of sale with assumption of
mortgage which was precisely the subject of the action for reformation pending before another
branch of the court. Prudence dictated that respondent judge should have refused to be
drawn into a discussion as to the merits of the respective contentions of the parties and
deferred to the action of the court before whom the issue was directly raised for resolution.
On whether or not private respondent was in estoppel from questioning the jurisdiction of the MTC since it
voluntarily submitted thereto the question of the validity of its title to the property, the Court of Appeals said:
This is not so. As earlier pointed out, petitioner (private respondent here) had, in its answer to
the complaint for unlawful detainer, promptly raised the issue of jurisdiction by alleging that
what was entered into by the parties was just an equitable mortgage and not a sale. Assuming
the truth of this allegation, it is fairly evident that respondents would not have had a cause of
action for ejectment. In other words, petitioner, since the start of the case, presented a serious
challenge to the MTC's jurisdiction but, unfortunately, the court ignored such challenge and
proceeded to decide the case simply on the basis of possession.
The operation of the principle of estoppel on the question of jurisdiction
seemingly depends upon whether the lower court actually had jurisdiction or
not, if it had no jurisdiction, but the case was tried and decided upon the
theory that it had jurisdiction, the parties are not barred, on appeal, from
assailing such jurisdiction, for the same must exist as a matter of law, and
may not be conferred by consent of the parties or by estoppel (5 C.J.S., 861863). (La Naval Drug Corporation v. Court of Appeals, 236 SCRA 78
[19941]).
Contrary to respondents' pretense, the filing by petitioner of an action for the reformation of
contract may not really be an afterthought. As we understand it, petitioner, to support its
allegation that the contract was a mere equitable mortgage, cites the fact that the price was
inadequate; it remained in possession of the premises; it has retained a part of the purchase
price; and, in any case, the real intention of the parties was that the transaction shall secure
the payment by petitioner of its loan, adverting to Article 1602 of the Civil Code. Under Article

1604 of the same code, it is provided that the presence of only one circumstance defined in
Article 1602, such as those cited above, is sufficient for a contract of sale with right to
repurchase to be presumed an equitable mortgage. Without in any way preempting the
decision of the court in the action for reformation, it is our considered view that, under the
factual milieu, the action was initiated for the proper determination of the rights of the parties
under the contract, and not just an afterthought.
No derogatory inference can arise from petitioner's admission of the existence of the deed of
sale with assumption of mortgage. The admission does not necessarily dilute its claim that the
same does not express the true intent of the parties.
Verily, since the case at bench involves a controverted right, the parties are required to
preserve thestatus quo and await the decision of the proper court on the true nature of the
contract. It is but just that the person who has first acquired possession should remain in
possession pending decision on said case, and the parties cannot be permitted meanwhile to
engage in petty warfare over possession of property which is the subject of dispute. To permit
this will be highly dangerous to individual security and disturbing to the social order.
(Manlapaz v. Court of Appeals, 191 SCRA 795 [199]). 16
Hence, the present petition for review on certiorari where petitioners raise the following assigned errors
allegedly committed by respondent Court of Appeals:
I.
THE DECISION OF THE RESPONDENT COURT OF APPEALS IS CONTRARY TO THE
PROVISIONS OF SEC. 33 (2) OF THE JUDICIARY REORGANIZATION ACT OF 1980
CONFERRING EXCLUSIVE ORIGINAL JURISDICTION ON THE METROPOLITAN TRIAL
COURT IN EJECTMENT CASES AND VESTING IT WITH AUTHORITY, INDEED
MANDATORILY, TO RESOLVE ISSUES OF OWNERSHIP TO DETERMINE ISSUES OF
POSSESSION.
II.
THE DECISION OF THE RESPONDENT COURT IS CONTRARY TO CURRENT AND
PREVAILINGDOCTRINE AS ENUNCIATED IN WILMON AUTO SUPPLY CORP. VS.
COURT OF APPEALS, 208 SCRA 108; SY VS. COURT OF APPEALS, 200 SCRA 117; AND
ASSET PRIVATIZATION TRUST VS. COURT OF APPEALS, 229 SCRA 627.
III.
THE FILING OF THE REFORMATION CASE CONFIRMS THE JURISDICTION OF THE
METROPOLITAN TRIAL COURT OVER THE EJECTMENT CASE; THE DISMISSAL OF THE
REFORMATION CASE CONFIRMS THE FACT THAT IT WAS FILED MERELY AS A PLOY
TO DELAY DISPOSITION OF EJECTMENT PROCEEDINGS, AND BARES NOT JUST THE
ERROR BUT THE UTTER INEQUITY OF THE RESPONDENT COURT'S DECISION
ANNULLING THE EJECTMENT DECREE AND SETTING ASIDE THE REGIONAL TRIAL
COURT DECISION OF AFFIRMANCE.
Petitioners argue that the precedent laid down in Ching v. Malaya 17 relied upon by the Court of Appeals, was

based on the old law, Republic Act No. 296 (Judiciary Act of 1948), as amended, which vested in the city
courts original jurisdiction over forcible entry and unlawful detainer proceedings and the corresponding
power to receive evidence upon the question of ownership for the only purpose of determining the
character and extent of possession. 18 They claim that since the original complaint for unlawful detainer
was filed on April 13, 1992, then the applicable law should have been Section 33 (2) of the Judiciary
Reorganization Act of 1980 (Batas Pambansa Blg. 129). That law vests in the city courts exclusive
original jurisdiction over forcible entry and unlawful detainer cases and the corresponding power to

receive evidence upon questions of ownership and to resolve the issue of ownership to determine the
issue of possession. 19
The history of the law vesting Municipal and Metropolitan Trial Courts with jurisdiction over ejectment cases
has invariably revolved upon the assumption that the question of ownership may be considered only if
necessary for the determination of the issue as to who of the parties shall have the right to possess the
property in litigation. 20Thus, under the Judiciary Act of 1948, as amended, Section 88 vested municipal

and city courts with authority to "receive evidence upon the question of title therein, whatever may be the
value of the property, solely for the purpose of determining the character and extent of possession and
damages for detention." Section 3 of Republic Act No. 5967 that was enacted on June 21, 1969, provided
that city courts shall have concurrent jurisdiction with Courts of First Instance over "ejection cases where
the question of ownership is brought in issue in the pleadings" and that the issue of ownership shall be
"resolved in conjunction with the issue of possession." Expounding on that provision of law, in Pelaez v.
Reyes, 21 this Court said:
. . . We are of the considered opinion that the evident import of Section 3 above is to precisely
grant to the city courts concurrent original jurisdiction with the courts of first instance over the
cases enumerated therein, which include "ejection cases where the question of ownership is
brought in issue in the pleadings." To sustain petitioner's contention about the meaning of the
last phrase of paragraph (c) of said section regarding the resolution of the issue of ownership
"in conjunction with the issue of possession" is to disregard the very language of the main part
of the section which denotes unmistakably a conferment upon the city courts of concurrent
jurisdiction with the courts of first instance over ejection cases in which ownership is brought
in issue in the pleadings. It is to Us quite clear that the fact that the issue of ownership is to be
resolved "in conjunction with the issue of possession" simply means that both the issues of
possession and ownership are to be resolved by the city courts. And the jurisdiction is
concurrent with the Courts of First Instance precisely because usually questions of title are
supposed to be resolved by superior courts. In other words, this grant of special jurisdiction to
city courts is to be distinguished from the power ordinarily accorded to municipal courts to
receive evidence of title only for the purpose of determining the extent of the possession in
dispute.
Upon the approval on August 14, 1981 of Batas Pambansa Blg. 129 or the Judiciary Reorganization Act of
1980, however, the power of inferior courts, including city courts, to resolve the issue of ownership in forcible
entry and unlawful detainer cases was modified. Resolution of the issue of ownership became subject to the
qualification that it shall be only for the purpose of determining the issue of possession. In effect, therefore, the
city courts lost the jurisdiction to determine the issue of ownership per se that was theretofore concurrent with
the then Courts of First Instance. Thus, Section 33 of B.P. Blg. 129 provides that Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial Courts shall exercise:
Exclusive original jurisdiction over cases of forcible entry and unlawful detainer: Provided,
That when in such cases, the defendant raises the question of ownership in his pleadings and
the question of possession cannot be resolved without deciding the issue of ownership, the
issue of ownership shall be resolved only to determine the issue of possession.
Accordingly, the Interim Rules and Guidelines in the implementation of Batas Pambansa Blg. 129
provides as follows:
10. Jurisdiction in ejectment cases. Metropolitan trial courts, municipal trial courts, and
municipal circuit trial courts, without distinction, may try cases of forcible entry and detainer
even if the question of ownership is raised in the pleadings and the question of possession
could not be resolved without deciding the issue of ownership, but the question of ownership
shall be resolved only to determine the issue of possession.
Explaining these provisions of law, in Sps. Refugia v. Court of
Appeals, 22 the Court said:

These issuances changed the former rule under Republic Act No. 296 which merely allowed
inferior courts to receive evidence upon the question of title solely for the purpose of
determining the extentand character of possession and damages for detention, which thereby
resulted in previous rulings of this Court to the effect that if it appears during the trial that the
principal issue relates to the ownership of the property in dispute and any question of
possession which may be involved necessarily depends upon the result of the inquiry into the
title, then the jurisdiction of the municipal or city courts is lost and the action should be
dismissed. With the enactment of Batas Pambansa Blg. 129, the inferior courts now retain
jurisdiction over an ejectment case even if the question of possession cannot be resolved
without passing upon the issue of ownership, with the express qualification that such issue of
ownership shall be resolved only for the purpose of determining the issue of possession. In
other words, the fact that the issues of ownership and possession de factoare intricately
interwoven will not cause the dismissal of the case for forcible entry and unlawful detainer on
jurisdictional grounds.
Another development in the law has emphasized the fact that inferior courts shall not lose jurisdiction over
ejectment cases solely because the issue of ownership is interwoven with the issue of possession. Under the
1983 Rules on Summary Procedure, as amended by a resolution of this Court that took effect on November 15,
1991, all forcible entry and unlawful detainer cases shall be tried pursuant to the Revised Rules on Summary
Procedure, regardless of whether or not the issue of ownership of the subject property is alleged by a
party. 23 In other words, even if there is a need to resolve the issue of ownership, such fact will not deprive

the inferior courts of jurisdiction over ejectment

cases 24 that shall be tried summarily.
When the jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts
was expanded, thereby amending Batas Pambansa Blg. 129, by virtue of Republic Act No. 7691 that took
effect on April 15, 1994, the jurisdiction of said courts over ejectment cases was retained. Thus, in Hilario v.
Court of Appeals this Court said:
. . . . As the law now stands, inferior courts retain jurisdiction over ejectment cases even if the
question of possession cannot be resolved without passing upon the issue of ownership; but
this is subject to the same caveat that the issue posed as to ownership could be resolved by
the court for the sole purpose of determining the issue of possession.
Thus, an adjudication made therein regarding the issue of ownership should be regarded as
merely provisional and, therefore, would not bar or prejudice an action between the same
parties involving title to the land. The foregoing doctrine is a necessary consequence of the
nature of forcible entry and unlawful detainer cases where the only issue to be settled is the
physical or material possession over the real property, that is, possession de facto and not
possession de jure.
In other words, inferior courts are now "conditionally vested with adjudicatory power over the issue of title or
ownership raised by the parties in an ejectment suit." 25 These courts shall resolve the question of ownership

raised as an incident in an ejectment case where a determination thereof is necessary for a proper and
complete adjudication of the issue of possession. Considering the difficulties that are usually encountered
by inferior courts as regards the extent of their power in determining the issue of ownership, in Sps.
Refugia v. Court of Appeals, the Court set out guidelines to be observed in the implementation of the law
which, as stated at the outset, has recently been restated in the 1997 Rules of Civil Procedure. The
guidelines pertinent to this case state:
1. The primal rule is that the principal issue must be that of possession, and that ownership is
merely ancillary thereto, in which case the issue of ownership may be resolved but only for the
purpose of determining the issue of possession. Thus, . . ., the legal provision under
consideration applies only where the inferior court believes and the preponderance of
evidence shows that a resolution of the issue of possession is dependent upon the resolution
of the question of ownership.

2. It must sufficiently appear from the allegations in the complaint that what the plaintiff really
and primarily seeks is the restoration of possession. Consequently, where the allegations of
the complaint as well as the reliefs prayed for clearly establish a case for the recovery of
ownership, and not merely one for the recovery of possession de facto, or where the
averments plead the claim of material possession as a mere elemental attribute of such claim
for ownership, or where the issue of ownership is the principal question to be resolved, the
action is not one for forcible entry but one for title to real property.
xxx xxx xxx
5. Where the question of who has the prior possession hinges on the question of who the real
owner of the disputed portion is, the inferior court may resolve the issue of ownership and
make a declaration as to who among the contending parties is the real owner. In the same
vein, where the resolution of the issue of possession hinges on a determination of the validity
and interpretation of the document of title or any other contract on which the claim of
possession is premised, the inferior court may likewise pass upon these issues. This is
because, and it must be so understood, that any such pronouncement made affecting
ownership of the disputed portion is to be regarded merely asprovisional, hence, does not bar
nor prejudice an action between the same parties involving title to the land. Moreover, Section
7, Rule 70 of the Rules of Court expressly provides that the judgment rendered in an action
for forcible entry or unlawful detainer shall be effective with respect to the possession only and
in no wise bind the title or affect the ownership of the land or building. 26(Emphasis supplied.)
In the case at bar, petitioners clearly intended recovery of possession over the Gilmore property. They alleged
in their complaint for unlawful detainer that their claim for possession is buttressed by the execution of the
Deed of Sale with Assumption of Mortgage, a copy of which was attached as Annex "A" to the complaint and
by the issuance of TCT No. 67990 that evidenced the transfer of ownership over the property. 27 Because

metropolitan trial courts are authorized to look into the ownership of the property in controversy in
ejectment cases, it behooved MTC Branch 41 to examine the bases for petitioners' claim of ownership
that entailed interpretation of the Deed of Sale with Assumption of Mortgage.
However, while it quoted paragraph (c) of the Deed of Sale with Assumption of Mortgage that embodies the
agreement of the parties that possession of the Gilmore property and its improvements shall remain with the
vendor that was obliged to transfer possession only after the expiration of one year, 28 MTC Branch 41

apparently did not examine the terms of the deed of sale. Instead, it erroneously held that the issue of
whether or not the document was in fact an equitable mortgage "should not be properly raised in this
case." Had it examined the terms of the deed of sale, which, after all is considered part of the allegations
of the complaint having been annexed thereto, that court would have found that, even on its face, the
document was actually one of equitable mortgage and not of sale. The inferior court appears to have
forgotten that all documents attached to a complaint, the due execution and genuineness of which are not
denied under oath by the defendant, must be considered as part of the complaint without need of
introducing evidence thereon. 29
Art. 1602 of the Civil Code provides that a contract shall be presumed to be an equitable mortgage by the
presence of any of the following:
(1) When the price of a sale with right to repurchase is unusually inadequate;
(2) When the vendor remains in possession as lessee or otherwise;
(3) When upon or after the expiration of the right to repurchase another instrument extending
the period of redemption or granting a new period is executed;
(4) When the purchaser retains for himself a part of the purchase price;

(5) When the vendor binds himself to pay the taxes on the thing sold;
(6) In any other case where it may be fairly inferred that the real intention of the parties is that
the transaction shall secure the payment of a debt or the performance of any other obligation.
Art. 1604 of the same Code provides that the provisions of Article 1602 "shall also apply to a contract
purporting to be an absolute sale." The presence of even one of the circumstances in Article 1602 is sufficient
basis to declare a contract as one of equitable mortgage. 30 The explicit provision of Article 1602 that "any" of

those circumstances would suffice to construe a contract of sale to be one of equitable mortgage is in
consonance with the rule that the law favors the least transmission of property rights.
The Deed of Sale with Assumption of Mortgage covering the 2,000-square-meter lot located at No. 52 Gilmore
Street, New Manila, Quezon City provides as follows:
3. That the total consideration for the sale of the above-described property
by the VENDOR to the VENDEES is FOURTEEN MILLION
(P14,000,000.00) PESOS, in Philippine currency, payable as follows:
a) The VENDOR shall be paid by the VENDEE the sum of FIVE MILLION
FOUR HUNDRED THOUSAND (P5,400,000.00) PESOS upon the signing
and execution of this Deed of Sale With Assumption of Mortgage after
computation of the mortgage obligation of the VENDOR with CHINA
BANKING CORPORATION in the amount of _____________ which the
VENDEES agree to assume as part of the consideration of this sale. The
VENDEES hereby assume the mortgage obligation of the VENDOR with the
CHINA BANKING CORPORATION in the total amount of ______________.
b) The VENDOR hereby undertakes and agrees with the VENDEES that the
first-named party shall warrant and defend the title of said real property
hereby conveyed in favor of the VENDEES, their heirs, successors or
assigns, against all just claims of all persons or entities; that the VENDOR
also guarantees the right of the VENDEES to the possession of the property
subject of this contract without the need of judicial action; and furthermore,
the VENDOR binds itself to execute any additional documents to complete
the title of the VENDEES to the above-described property so that it may be
registered in the name of the VENDEES in accordance with the provisions of
the Land Registration Act.
c) It is hereby expressly agreed and understood by and between the
VENDOR and the VENDEES that the house and other improvements found
in the premises are included in this sale and that possession of said
premises shall be delivered to the VENDEES by the VENDOR at the
expiration of one (1) year from the date of the signing and execution of this
Deed of Sale with Assumption of Mortgage.
d) It is furthermore expressly provided and agreed by and between the
VENDOR and the VENDEES that the capital gains tax shall be paid by the
VENDOR while any and all fees and expenses incident to the registration
and transfer of the title to the aforementioned property shall be defrayed and
borne by the VENDEES.
e) Attached to this Deed of Sale with Assumption of Mortgage as Annex "A"
thereof is the Certificate of ROSANA FLORES, Corporate Secretary of
PRICILIANO B. DEVELOPMENT CORPORATION, a corporation duly
organized and existing under Philippine Laws who certified that at a special
meeting of the Board of Directors of said corporation held on December 3,

1991 at which meeting a quorum was present, the following resolution was
adopted and passed, to wit:
RESOLVED, AS IT IS HEREBY RESOLVED, that the
company, PRICILIANO B. GONZALES DEVELOPMENT is
(sic) hereby authorized the President, Mr. Antonio B.
Gonzales to enter into and/or negotiate for the sale of a
property described as Transfer Certificate of Title No.
383917 with an area of TWO THOUSAND (2,000)
SQUARE METERS under the Registry of Deeds of Quezon
City;
RESOLVED FURTHER, that Mr. ANTONIO B. GONZALES,
is hereby authorized to sign, execute any and all
documents relative thereto.
That aforesaid resolution is in full force and effect.
(sgd.)
ROSAN
A
FLORE
S
Corpora
te
Secretar
y
(
S
G
D
.
)
f) Full title and possession over the above-described property shall vest upon
the VENDEES upon the full compliance by the with all the terms and
conditions herein set forth. 31 (Emphasis supplied.)
That under the agreement the private respondent as vendor shall remain in possession of the property for only
one year, did not detract from the fact that possession of the property, an indicium of ownership, was retained
by private respondent as the alleged vendor. That period of time may be deemed as actually the time allotted to
private respondent for fulfilling its part of the agreement by paying its indebtedness to petitioners. This may be
gleaned from paragraph (f) that states that "full title and possession" of the property "shall vest upon the
VENDEES upon the full compliance by them with all the terms and conditions herein set forth.
Paragraph (f) of the contract also evidences the fact that the agreed "purchase price" of fourteen million pesos
(P14,000,000.00) was not handed over by petitioners to private respondent upon the execution of the
agreement. Only P5,400,000.00 was given by petitioners to private respondent, as the balance thereof was to
be dependent upon the private respondent's satisfaction of its mortgage obligation to China Banking
Corporation. Notably, the MTC found that petitioners gave private respondent the amount of P8,500,000.00
that should be paid to the bank to cover the latter's obligation, thereby leaving the amount of P100,000.00
(P5,400,000.00 + P8,500,000.00 = P13,900,000.00) of the "purchase price" still unpaid and in the hands of
petitioners, the alleged "vendees."

Hence, two of the circumstances enumerated in Article 1602 are manifest in the Deed of Sale with Assumption
of Mortgage, namely: (a) the vendor would remain in possession of the property (no. 2), and (b) the vendees
retained a part of the purchase price (no. 4). On its face, therefore, the document subject of controversy, is
actually a contract of equitable mortgage.
The denomination of the contract as a deed of sale is not binding as to its nature. The decisive factor in
evaluating such an agreement is the intention of the parties, as shown, not necessarily by the terminology used
in the contract, but by their conduct, words, actions and deeds prior to, during and immediately after executing
the agreement. 32 Private respondent's possession over the property was not denied by petitioners as in

fact it was the basis for their complaint for unlawful detainer.
Neither does the issuance of a new transfer certificate of title in petitioners' favor import conclusive evidence of
ownership or that the agreement between the parties was one of sale. 33 In Macapinlac v. Gutierrez Repide,

this Court said:

. . . it must be borne in mind that the equitable doctrine . . . to the effect that any conveyance
intended as security for a debt will be held in effect to be a mortgage, whether so actually
expressed in the instrument or not, operates regardless of the form of the agreement chosen
by the contracting parties as the repository of their will. Equity looks through the form and
considers the substance; and no kind of engagement can be adopted which will enable the
parties to escape from the equitable doctrine to which reference is made. In other words, a
conveyance of land, accompanied by registration in the name of the transferee and the
issuance of a new certificate, is no more secured from the operation of the equitable doctrine
than the most informal conveyance that could be devised. 34
A closer look into the allegations of the complaint would therefore show that petitioners failed to make out a
case for unlawful detainer. By the allegations in the complaint, private respondent as a mortgagor had the right
to posses the property. A mortgage is a real right constituted to secure an obligation upon real property or
rights therein to satisfy with the proceeds of the sale thereof such obligation when the same becomes due and
has not been paid or fulfilled. 35 The mortgagor generally retains possession of the mortgaged

property 36 because by mortgaging a piece of property, a debtor merely subjects it to a lien but ownership
thereof is not parted with. 37 In case of the debtor's nonpayment of the debt secured by the mortgage, the
only right of the mortgagee is to foreclose the mortgage and have the encumbered property sold to satisfy
the outstanding indebtedness. The mortgagor's default does not operate to vest in the mortgagee the
ownership of the encumbered property, for any such effect is against public policy. 38 Even if the property
is sold at a foreclosure sale, only upon expiration of the redemption period, without the judgment debtor
having made use of his right of redemption, does ownership of the land sold become consolidated in the
purchaser. 39
Petitioners' tenuous claim for possession of the Gilmore property was emasculated further by private
respondent's answer to their complaint. The latter claimed ownership of the property, alleging that the
agreement was one of mortgage and not of sale. Private respondent alleged therein that in March 1993 (sic), it
borrowed money from petitioner Felicidad Oronce alone to redeem the subject property from China Banking
Corporation. She agreed to lend it the amount on condition that the Gilmore property should be mortgaged to
her to guarantee payment of the loan. However, petitioner Flaminiano took the money from petitioner Oronce
and paid the mortgage obligation of private respondent to the China Banking Corporation while claiming that
50% of the amount was hers. Petitioner Flaminiano's husband, Atty. Eduardo Flaminiano, forthwith prepared
the Deed of Sale with Assumption of Mortgage and, without private respondent's knowledge, had it registered
for which reason a new certificate of title was issued to petitioners. In claiming that the agreement was one of
mortgage, private respondent alleged in its answer, inter alia, that the actual total value of the property was
thirty million pesos (P30,000,000.00); that while it had possession of the property, petitioners did not then
attempt to repossess the same, notwithstanding the lapse of one year from the execution of the document; that
petitioners did not pay the real estate taxes even after the transfer of title in their favor, and that petitioners did
not deliver to private respondent the alleged purchase price.

Considering these claims of private respondent, MTC Branch 41 should have passed upon the issues raised on
the ownership of the Gilmore property for the purpose of determining who had the right to possess the same.
As it turned out, it simply accepted the allegations of petitioners without examining the supporting documents.
Had it closely analyzed the documents, it would have concluded that petitioners could not have validly ousted
private respondent from the property since the basis for its claim of ownership, the Deed of Sale with
Assumption of Mortgage, was actually a document evidencing an equitable mortgage. It would have
accordingly dismissed the complaint for lack of cause of action.
In fine, had the MTC exercised its bounden duty to study the complaint, it would have dismissed the same for
lack of cause of action upon a provisional ruling on the issue of ownership based on the allegations and
annexes of the complaint. Or, exercising caution in handling the case, considering petitioners' bare allegations
of ownership, it should have required the filing of an answer to the complaint and, having been alerted by the
adverse claim of ownership over the same property, summarily looked into the issue of ownership over the
property. As this Court declared in Hilario v. Court of Appeals:
It is underscored, however, that the allegations in the complaint for ejectment should
sufficiently make out a case for forcible entry or unlawful detainer, as the case may be;
otherwise, jurisdiction would not vest in the inferior court. Jurisdiction over the subject matter
is, after all, determined by the nature of the action as alleged or pleaded in the complaint.
Thus, even where the defendant alleges ownership or title to the property in his or her answer,
the inferior court will not be divested of its jurisdiction. A contrary rule would pave the way for
the defendant to trifle with the ejectment suit, which is summary in nature, as he could easily
defeat the same through the simple expedient of asserting ownership. 40
As discussed above, even a perusal of the complaint without going over the claims of private respondent in his
answer would have sufficed to arrive at a provisional determination of the issue of ownership. The importance
of such provisional ruling on the issue of ownership is demanded by the fact that, in the event that the claim of
the plaintiff in an ejectment case is controverted as in this case, any ruling on the right of possession would be
shaky, meaningless and fraught with unsettling consequences on the property rights of the parties. After all, the
right of possession must stand on a firm claim of ownership. Had the MTC made a provisional ruling on the
issue of ownership, the parties would have availed of other remedies in law early on to thresh out their
conflicting claims.
Private respondent's action for reformation of instrument was in fact a step in the right direction. However, its
failure to pursue that action 41 did not imply that private respondent had no other remedy under the law as

regards the issue of ownership over the Gilmore property. There are other legal remedies that either party
could have availed of. Some of these remedies, such as an action for quieting of title, have been held to
coexist with actions for unlawful detainer. 42There is a policy against multiplicity of suits but under the
circumstances, only the institution of proper proceedings could settle the controversy between the parties
in a definitive manner.
Hence, although the Court of Appeals resolved the appeal under the misconception that the action for
reformation of instrument was still viable, it correctly held that the controversy between the parties was beyond
the ordinary issues in an ejectment case. Because of the opposing claims of the parties as to the true
agreement between them, the issue of ownership was in a sense a prejudicial question that needed
determination before the ejectment case should have been filed. To reiterate, a decision reached in the
ejectment case in favor of any of the parties would have nonetheless spawned litigation on the issue of
ownership. At any rate, proceedings would have been facilitated had the inferior courts made even a
provisional ruling on such issue.
The contentious circumstances surrounding the case were demonstrated by an occurrence during the
pendency of this petition that cries out for the resolution of the issue of ownership over the Gilmore property.
After the parties had filed their respective memoranda before this Court, private respondent filed an urgent
motion to cite petitioner Rosita L. Flaminiano and her husband, Atty. Eduardo B. Flaminiano, in contempt of
court. 43 The motion was founded on an affidavit of Dr. Tadeo Gonzales who resided at the contested

property, deriving his right to do so from private respondent corporation that is owned by his family.
Gonzales alleged that on September 20, 1997, petitioner Flaminiano and her husband entered the
property through craftiness and intimidation. At around 5:30 p.m. on that day, two (2) men knocked at the
gate. When the houseboy, Luis R. Fernandez, opened the gate for pedestrians tentatively, the two men
told him that they would like to visit Gonzales' mother who was ailing.
Once inside, the two men identified themselves as policemen and opened the gate for twenty (20) men, two (2)
trucks and an L-300 van to enter. When Gonzales went outside the house, he saw thirty (30) to forty (40) men
and two (2) trucks entering the driveway. The person he asked regarding the presence of those people inside
the property turned out to be the brother of petitioner Flaminiano. That person said, "Kami ang may-ari dito.
Matagal na kaming nagtitiis, kayo ang dapat sa labas." After Gonzales had told him that the property was still
under litigation before this Court, the man said, "Walang Supreme Court Supreme Court." When Gonzales
asked petitioner Flaminiano, who was inside the premises, to order the people to leave, she said,
"Papapasukin namin ito dahil sa amin ito. Maglalagay ako ng tao diyan sa loob, sa harap, sa likod. Wala ng
pakiusap." When a power generator was brought inside the property and Gonzales pleaded that it be taken out
because the noise it would create would disturb his ailing mother, Emiliana Gonzales, petitioner Flaminiano
said, "Walang awa-awa sa akin." Atty. Flaminiano butted in and, referring to Gonzales' mother, said, "Ialis mo
na, matanda na pala." When Gonzales prevented the switching on of some lights in the house due to faulty
wiring, Atty. Flaminiano suggested, "Bakit hindi mo ipasunog ito? May insurance pa kayo 5 million, madali lang
'yan. Short circuit." Since the Flaminianos and their crew were not about to leave the property, Gonzales called
up his brother, Atty. Antonio Gonzales, and informed him of what happened. However, instead of confining
themselves in the driveway, the Flaminianos and their group entered the terrace, bringing in food.
Gonzales was all the while concerned about his 81-year-old mother who had just been discharged from the
hospital. However, the Flaminianos stayed until the next day, September 22, 1997, using the kitchen, furniture
and other fixtures in the house. Gonzales took pictures of Flaminiano and his companions. When Atty.
Flaminiano arrived, he confronted Gonzales and told him, "Hindi ako natatakot kahit kanino ka pa mag-report,
kahit pa sa Supreme Court, gusto ko nga mag-reklamo kayo para matapos ang kaso. Sa September 25, may
shooting dito, gagawin ko ang gusto ko dito." 44
The affidavits of Renato C. Mola, driver of Atty. Antonio Gonzales, and that of Luis R. Fernandez, houseboy of
Dr. Tadeo Gonzales, as well as the xerox copy of the sworn statement dated September 21, 1997 of Pria B.
Gonzales before the Philippine National Police in Camp Crame where she filed a complaint against Atty.
Flaminiano for the illegal entry into teir house, support the affidavit of Dr. Gonzales.
In its supplemental motion 45 to cite petitioner Flaminiano and her husband, Atty. Flaminiano, in contempt of

court, private respondent alleged that the Flaminianos committed additional contumacious acts in
preventing another member of the family, Mrs. Cipriana Gonzales, from entering the property. In her
affidavit, Mrs. Gonzales said that the Flaminianos and their people used "the whole house, except the
bedrooms, for their filming activities." 46
Thereafter, private respondent filed an urgent motion for the issuance of a temporary restraining order and/or
writ of preliminary injunction with this Court to enjoin petitioners, Atty. Flaminiano and their representatives and
agents from preventing private respondent, its agents and representatives from entering the property and to
cease and desist from occupying the property or from committing further acts of dispossession of the
property. 47 On October 13, 1997, this Court issued the temporary restraining order prayed for. 48 In the

motion it filed on October 21, 1997, 49private respondent informed the Court that the TRO could not be
served upon petitioners immediately because, Atty. Flaminiano, their counsel of record, had changed
address without informing the Court. It was served upon said counsel only on October 15, 1997.
However, instead of complying with this Court's order, petitioners continued occupying the property. On
October 16, 1997, after receiving a copy of the TRO, petitioners put up a huge billboard in front of the
property stating that it is the national headquarters of the People's Alliance for National Reconciliation and
Unity for Peace and Progress (PANRUPP).
In their comment on the motion for contempt, petitioners noticeably did not controvert the facts set forth by
private respondent in said motion. Instead, it reasserted its claim of ownership over the property as evidenced

by TCT No. 67990. They alleged that they had mortgaged the property to the Far East Bank and Trust
Company in the amount of thirty million pesos (P30,000,000.00) for which they are paying a monthly interest of
around P675,000.00 "without enjoying the material possession of the subject property which has been
unlawfully and unjustly detained by private respondent for the last four (4) years as it was used as the
residence of the members of the family of its President ANTONIO B. GONZALES without the said private
respondent paying rentals thereon for the period from January 1995 up to October 5, 1997 when the said
property was voluntarily vacated by the members of the President (sic) of respondent corporation, ANTONIO B.
GONZALES, who has since then been a fugitive from justice having been convicted by final judgment of the
crime of estafa through falsification of public document and has succeeded in evading his sentence."
They averred that Tadeo Gonzales erroneously claimed that the rights of ownership and possession over the
property are still under litigation because "the issue of ownership is no longer involved in this litigation when the
complaint for reformation of instrument with annulment of sale and title filed by private respondent" was
dismissed with finality by reason of non-suit. Hence, they claimed that they "now stand to be the
unquestionable registered and lawful owners of the property subject of controversy" and that the July 24, 1996
Decision of the Court of Appeals "has already lost its virtuality and legal efficacy with the occurrence of a
'supervening event' which is a superior cause superseding the basis of the judgment" in CA-G.R. No. 39227 of
respondent court.
They informed the Court that they are now leasing the property to PANRUPP from October 1, 1997 to
September 30, 1998. They alleged, however, that the property is in a "deplorable state of decay and
deterioration" that they saw the need "to act swiftly and decisively to prevent further destruction" of the property
where they "invested millions of pesos of their life-time savings to acquire the same." Hence, they sought the
assistance of barangay officials in Barangay Mariana, New Manila who helped them effect "the peaceful entry
into the property of the petitioners without the use of strategy, force and intimidation contrary to what was
alleged" in the motion for contempt. They "peacefully took over" possession of the property on September 20,
1997 but allowed the immediate members of the family of private respondent's president to stay on. The family
finally agreed to vacate the premises on October 5, 1997 "upon the offer of the petitioners to shoulder partially
the expenses for the hospitalization of the ailing mother at the St. Luke General Hospital where she was
brought by an ambulance accompanied by a doctor" at petitioners' expense.
Petitioners questioned the issuance by this Court of the TRO on October 13, 1997, asserting that when it was
issued, there were "no more acts to restrain the illegal occupants of the subject property (as they) had already
peacefully vacated the premises on October 5, 1997 or more than a week after the said TRO was issued by the
Third Division" of this Court. They prayed that the motion for contempt be denied for lack of merit and that the
TRO issued be lifted and set aside "for the act or acts sought to be restrained have already been done and
have become a fait accompli before the issuance of the TEMPORARY RESTRAINING ORDER on October 13,
1997."50
As earlier discussed, petitioners' claim that the dismissal of the action for reformation of instrument for non-suit
had written finis to the issue of ownership over the Gilmore property is totally unfounded in law. Petitioners
should be reminded that the instant petition stemmed from an unlawful detainer case, the issue of which is
merely possession of the property in question. The issue of ownership has not been definitively resolved for the
provisional determination of that issue that should have been done by the MTC at the earliest possible time,
would only be for the purpose of determining who has the superior right to possess the property. Inasmuch as
this Court has resolved that the rightful possessor should have been private respondent and its representatives
and agents, the TRO issued by this Court on October 13, 1997 should not be lifted. That the TRO was issued
days before private respondent left the property is immaterial. What is in question here is lawful possession of
the property, not possession on the basis of self-proclaimed ownership of the property. For their part,
petitioners should cease and desist from further exercising possession of the same property which possession,
in the first place, does not legally belong to them.
The conduct of petitioner Flaminiano in taking possession over the property as alleged by private respondent
through Tadeo Gonzales is deplorably high-handed. On an erroneous assumption that she had been legally
vested with ownership of the properly, she took steps prior to the present proceedings by illegally taking control
and possession of the same property in litigation. Her act of entering the property in defiance of the writ of

preliminary injunction issued by the Court of Appeals constituted indirect contempt under Section 3, Rule 71 of
the Rules of Court that should be dealt with accordingly.
Be that as it may, what is disturbing to the Court is the conduct of her husband, Eduardo Flaminiano, a
lawyer 51whose actuations as an officer of the court should be beyond reproach. His contumacious acts of

entering the Gilmore property without the consent of its occupants and in contravention of the existing writ
or preliminary injunction issued by the Court of Appeals and making utterances showing disrespect for the
law and this Court, are certainly unbecoming of a member of the Philippine Bar. To be sure, he asserted
in his comment on the motion for contempt that petitioners "peacefully" took over the property.
Nonetheless, such "peaceful" take-over cannot justify defiance of the writ of preliminary injunction that he
knew was still in force. Notably, he did not comment on nor categorically deny that he committed the
contumacious acts alleged by private respondent. Through his acts, Atty. Flaminiano has flouted his
duties as a member of the legal profession. Under the Code of Professional Responsibility, he is
prohibited from counseling or abetting "activities aimed at defiance of the law or at lessening confidence
in the legal system." 52
WHEREFORE, the instant petition for review on certiorari is hereby DENIED and the questioned Decision of
the Court of Appeals AFFIRMED without prejudice to the filing by either party of an action regarding the
ownership of the property involved. The temporary restraining order issued on October 13, 1997 is hereby
made permanent. Petitioners and their agents are directed to turn over possession of the property to private
respondent.
Petitioner Rosita Flaminiano is hereby held guilty of contempt of court for disobeying the writ of injunction
issued by the Court of Appeals and accordingly fined P20,000.00 therefor. Her counsel and husband, Atty.
Eduardo B. Flaminiano, is ordered to pay a fine of P25,000.00 for committing contumacious acts unbecoming
of a member of the Philippine Bar with a stern warning that a repetition of the same acts shall be dealt with
more severely. Let a copy of this Decision be attached to his record at the Office of the Bar Confidant.
This Decision is immediately executory. Costs against petitioners.
SO ORDERED.
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 reconsideration 4 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.15 Suffering 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 employee 23 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
thehacienda for 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 attorney 32 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-INFACT 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
orex 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 therefor 37 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. 50Exemplary 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
zeal 55 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, sanssentimentality, 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.
G.R. No. L-23815 June 28, 1974
ADELINO H. LEDESMA, petitioner,
vs.
HON. RAFAEL C. CLIMACO, Presiding Judge of the Court of First Instance of Negros Occidental,
Branch I, Silay City, respondent.
Adelino H. Ledesma in his own behalf.
Hon. Rafael C. Climaco in his own behalf.

FERNANDO, J.:p
What is assailed in this certiorari proceeding is an order of respondent Judge denying a motion filed by
petitioner to be allowed to withdraw as counsel de oficio. 1 One of the grounds for such a motion was his

allegation that with his appointment as Election Registrar by the Commission on Elections, he was not in
a position to devote full time to thedefense of the two accused. The denial by respondent Judge of such a
plea, notwithstanding the conformity of the defendants, was due "its principal effect [being] to delay this
case." 2 It was likewise noted that the prosecution had already rested and that petitioner was previously
counsel de parte, his designation in the former category being precisely to protect him in his new
position without prejudicing the accused. It cannot be plausibly asserted that such failure to allow
withdrawal of de oficio counsel could ordinarily be characterized as a grave abuse of discretion correctible
by certiorari. There is, however, the overriding concern for the right to counsel of the accused that must
be taken seriously into consideration. In appropriate cases, it should tilt the balance. This is not one of
them. What is easily discernible was the obvious reluctance of petitioner to comply with the
responsibilities incumbent on the counsel de oficio. Then, too, even on the assumption that he continues
in his position, his volume of work is likely to be very much less at present. There is not now the slightest
pretext for him to shirk an obligation a member of the bar, who expects to remain in good standing,
should fulfill. The petition is clearly without merit.
According to the undisputed facts, petitioner, on October 13, 1964, was appointed Election Registrar for the
Municipality of Cadiz, Province of Negros Occidental. Then and there, he commenced to discharge its duties.
As he was counsel de parte for one of the accused in a case pending in the sala of respondent Judge, he filed
a motion to withdraw as such. Not only did respondent Judge deny such motion, but he also appointed him
counselde oficio for the two defendants. Subsequently, on November 3, 1964, petitioner filed an urgent motion
to be allowed to withdraw as counsel de oficio, premised on the policy of the Commission on Elections to
require full time service as well as on the volume or pressure of work of petitioner, which could prevent him

from handling adequately the defense. Respondent Judge, in the challenged order of November 6, 1964,
denied said motion. A motion for reconsideration having proved futile, he instituted this certiorari proceeding. 3
As noted at the outset, the petition must fail.
1. The assailed order of November 6, 1964 denying the urgent motion of petitioner to withdraw as counsel de
oficio speaks for itself. It began with a reminder that a crime was allegedly committed on February 17, 1962,
with the proceedings having started in the municipal court of Cadiz on July 11, 1962. Then respondent Judge
spoke of his order of October 16, 1964 which reads thus: "In view of the objection of the prosecution to the
motion for postponement of October 15, 1964 (alleging that counsel for the accused cannot continue appearing
in this case without the express authority of the Commission on Elections); and since according to the
prosecution there are two witnesses who are ready to take the stand, after which the government would rest,
the motion for postponement is denied. When counsel for the accused assumed office as Election Registrar on
October 13, 1964, he knew since October 2, 1964 that the trial would be resumed today. Nevertheless, in order
not to prejudice the civil service status of counsel for the accused, he is hereby designated counsel de oficio for
the accused. The defense obtained postponements on May 17, 1963, June 13, 1963, June 14, 1963, October
28, 1963, November 27, 1963, February 11, 1964, March 9, 1964, June 8, 1964 July 26, 1964, and September
7, 1964." 4 Reference was then made to another order of February 11, 1964: "Upon petition of Atty.

Adelino H. Ledesma, alleging indisposition, the continuation of the trial of this case is hereby transferred
to March 9, 1964 at 8:30 in the morning. The defense is reminded that at its instance, this case has been
postponed at least eight (8) times, and that the government witnesses have to come all the way from
Manapala." 5 After which, it was noted in such order that there was no incompatibility between the duty of
petitioner to the accused and to the court and the performance of his task as an election registrar of the
Commission on Elections and that the ends of justice "would be served by allowing and requiring Mr.
Ledesma to continue as counsel de oficio, since the prosecution has already rested its case." 6
2. What is readily apparent therefore, is that petitioner was less than duly mindful of his obligation as
counsel de oficio. He ought to have known that membership in the bar is a privilege burdened with conditions. It
could be that for some lawyers, especially the neophytes in the profession, being appointed counsel de oficio is
an irksome chore. For those holding such belief, it may come as a surprise that counsel of repute and of
eminence welcome such an opportunity. It makes even more manifest that law is indeed a profession
dedicated to the ideal of service and not a mere trade. It is understandable then why a high degree of fidelity to
duty is required of one so designated. A recent statement of the doctrine is found in People v. Daban: 7 "There

is need anew in this disciplinary proceeding to lay stress on the fundamental postulate that membership
in the bar carries with it a responsibility to live up to its exacting standard. The law is a profession, not a
trade or a craft. Those enrolled in its ranks are called upon to aid in the performance of one of the basic
purposes of the State, the administration of justice. To avoid any frustration thereof, especially in the case
of an indigent defendant, a lawyer may be required to act as counsel de oficio. The fact that his services
are rendered without remuneration should not occasion a diminution in his zeal. Rather the contrary. This
is not, of course, to ignore that other pressing matters do compete for his attention. After all, he has his
practice to attend to. That circumstance possesses a high degree of relevance since a lawyer has to live;
certainly he cannot afford either to neglect his paying cases. Nonetheless, what is incumbent upon him as
counsel de oficio must be fulfilled." 8
So it has been from the 1905 decision of In re Robles Lahesa, 9 where respondent was de oficio counsel, the

opinion penned by Justice Carson making clear: "This Court should exact from its officers and
subordinates the most scrupulous performance of their official duties, especially when negligence in the
performance of those duties necessarily results in delays in the prosecution of criminal cases
...." 10 Justice Sanchez in People v. Estebia 11 reiterated such a view in these words: "It is true that he is a
court-appointed counsel. But we do say that as such counsel de oficio, he has as high a duty to the
accused as one employed and paid by defendant himself. Because, as in the case of the latter, he must
exercise his best efforts and professional ability in behalf of the person assigned to his care. He is to
render effective assistance. The accused-defendant expects of him due diligence, not mere perfunctory
representation. For, indeed a lawyer who is a vanguard in the bastion of justice is expected to have a
bigger dose of social conscience and a little less of self-interest." 12

The weakness of the petition is thus quite evident.

3. If respondent Judge were required to answer the petition, it was only due to the apprehension that
considering the frame of mind of a counsel loath and reluctant to fulfill his obligation, the welfare of the accused
could be prejudiced. His right to counsel could in effect be rendered nugatory. Its importance was rightfully
stressed by Chief Justice Moran in People v. Holgado in these words: "In criminal cases there can be no fair
hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of
little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may
have no skill in the science of law, particularly in the rules of procedure, and; without counsel, he may be
convicted not because he is guilty but because he does not know how to establish his innocence. And this can
happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted
by counsel is deemed so important that it has become a constitutional right and it is so implemented that under
rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not
enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign
one de oficio for him if he so desires and he is poor or grant him a reasonable time to procure an attorney of
his
own." 13 So it was under the previous Organic Acts. 14 The present Constitution is even more emphatic.

For, in addition to reiterating that the accused "shall enjoy the right to be heard by himself and
counsel," 15 there is this new provision: "Any person under investigation for the commission of an offense
shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence,
threat, intimidation, or any other means which vitiates the free will shall be used against him. Any
confession obtained in violation of this section shall be inadmissible in evidence." 16
Thus is made manifest the indispensable role of a member of the Bar in the defense of an accused. Such a
consideration could have sufficed for petitioner not being allowed to withdraw as counsel de oficio. For he did
betray by his moves his lack of enthusiasm for the task entrusted to him, to put matters mildly. He did point
though to his responsibility as an election registrar. Assuming his good faith, no such excuse could be availed
now. There is not likely at present, and in the immediate future, an exorbitant demand on his time. It may
likewise be assumed, considering what has been set forth above, that petitioner would exert himself sufficiently
to perform his task as defense counsel with competence, if not with zeal, if only to erase doubts as to his
fitness to remain a member of the profession in good standing. The admonition is ever timely for those enrolled
in the ranks of legal practitioners that there are times, and this is one of them, when duty to court and to client
takes precedence over the promptings of self-interest.
WHEREFORE, the petition for certiorari is dismissed. Costs against petitioner.
Zaldivar (Chairman), Antonio, Fernandez and Aquino, JJ., concur.
Barredo, J., took no p
A.M. No. 08-11-7-SC

August 28, 2009

RE: REQUEST OF NATIONAL COMMITTEE ON LEGAL AID1 TO EXEMPT LEGAL AID CLIENTS FROM
PAYING FILING, DOCKET AND OTHER FEES.
RESOLUTION
CORONA, J.:
On September 23, 2008 the Misamis Oriental Chapter of the Integrated Bar of the Philippines (IBP)
promulgated Resolution No. 24, series of 2008.2 The resolution requested the IBPs National Committee on
Legal Aid3 (NCLA) to ask for the exemption from the payment of filing, docket and other fees of clients of
the legal aid offices in the various IBP chapters. Resolution No. 24, series of 2008 provided:
RESOLUTION NO. 24, SERIES OF 2008

RESOLUTION OF THE IBPMISAMIS ORIENTAL CHAPTER FOR THE IBP NATIONAL LEGAL AID
OFFICE TO REQUEST THE COURTS AND OTHER QUASI-JUDICIAL BODIES, THE PHILIPPINE
MEDIATION CENTER AND PROSECUTORS OFFICES TO EXEMPT LEGAL AID CLIENTS FROM PAYING
FILING, DOCKET AND OTHER FEES INCIDENTAL TO THE FILING AND LITIGATION OF ACTIONS, AS
ORIGINAL PROCEEDINGS OR ON APPEAL.
WHEREAS, Section 1, Article I of the Guidelines Governing the Establishment and Operation of Legal Aid
Offices in All Chapters of the Integrated Bar of the Philippines (otherwise known as ["]Guideline[s] on Legal
Aid["]) provides: Legal aid is not a matter of charity. It is a means for the correction of social imbalances that
may often lead to injustice, for which reason, it is a public responsibility of the Bar. The spirit of public
service should therefore unde[r]ly all legal aid offices. The same should be so administered as to give
maximum possible assistance to indigent and deserving members of the community in all cases, matters and
situations in which legal aid may be necessary to forestall injustice.
WHEREAS, Section 2 of the same provides: In order to attain the objectives of legal aid, legal aidoffice should
be as close as possible to those who are in need thereof the masses. Hence, every chapter of the IBP must
establish and operate an adequate legal aid office.
WHEREAS, the Legal Aid Office of the IBPMisamis Oriental Chapter has long been operational, providing free
legal services to numerous indigent clients, through the chapters members who render volunteer services in
the spirit of public service;
WHEREAS, the courts, quasi-judicial bodies, the various mediation centers and prosecutors offices are
collecting fees, be they filing, docket, motion, mediation or other fees in cases, be they original proceedings or
on appeal;
WHEREAS, IBP Legal Aid clients are qualified under the same indigency and merit tests used by the Public
Attorneys Office (PAO), and would have qualified for PAO assistance, but for reasons other than indigency,
are disqualified from availing of the services of the PAO, like the existence of a conflict of interests or conflicting
defenses, and other similar causes;
WHEREAS, PAO clients are automatically exempt from the payment of docket and other fees for cases, be
they original proceedings or on appeal, by virtue of the provisions of Section 16D of R.A. 9406 (PAO Law),
without the need for the filing of any petition or motion to declare them as pauper litigants;
WHEREAS, there is no similar provision in any substantive law or procedural law giving IBP Legal Aid clients
the same benefits or privileges enjoyed by PAO clients with respect to the payment of docket and other fees
before the courts, quasi-judicial bodies and prosecutors offices;
WHEREAS, the collection of docket and other fees from the IBP Legal Aid clients poses an additional strain to
their next to non-existent finances;
WHEREAS, the quarterly allowance given by the National Legal Aid Office to the IBP Misamis Oriental Chapter
is insufficient to even cover the incidental expenses of volunteer legal aid lawyers, much less answer for the
payment of docket and other fees collected by the courts, quasi-judicial bodies and prosecutors offices and
mediation fees collected by the Philippine Mediation Center;
NOW THEREFORE, on motion of the Board of Officers of the IBPMisamis Oriental Chapter, be it resolved as
it is hereby resolved, to move the IBP National Legal Aid Office to make the necessary requests or
representations with the Supreme Court, the Philippine Mediation Center, the Department of Justice and the
National Prosecution Service and other quasi-judicial agencies to effect the grant of a like exemption from the
payment of filing, docket and other fees to the IBP Legal Aid clients as that enjoyed by PAO clients, towards
the end that IBP Legal Aid clients be automatically exempted from the filing of the abovementioned fees;
RESOLVED FURTHER, that copies of this Resolution be furnished to Supreme Court Chief Justice Honorable
Reynato S. Puno, IBP National President Feliciano M. Bautista, the IBP Board of Governors, Secretary of

Justice Hon. Raul M. Gonzalez, the National Supervisor of the Philippine Mediation Center, the National Labor
Relations Commission, the Civil Service Commission and other quasi-judicial bodies and their local offices;
RESOLVED FINALLY to move the IBP Board of Governors and National Officers to make the necessary
representations with the National Legislature and its members to effect the filing of a bill before the House of
Representatives and the Senate granting exemption to IBP Legal Aid clients from the payment of docket, filing
and or other fees in cases before the courts, quasi-judicial agencies and prosecutors offices and the mediation
centers.
Done this 23rd day of September 2008, Cagayan De Oro City.
Unanimously approved upon motion severally seconded.4
The Court noted Resolution No. 24, series of 2008 and required the IBP, through the NCLA, to comment
thereon.5
In a comment dated December 18, 2008,6 the IBP, through the NCLA, made the following comments:
(a) Under Section 16-D of RA7 9406, clients of the Public Attorneys Office (PAO) are exempt from the
payment of docket and other fees incidental to the institution of action in court and other quasi-judicial
bodies. On the other hand, clients of legal aid offices in the various IBP chapters do not enjoy the
same exemption. IBPs indigent clients are advised to litigate as pauper litigants under Section 21,
Rule 3 of the Rules of Court;
(b) They are further advised to submit documentary evidence to prove compliance with the
requirements under Section 21, Rule 3 of the Rules of Court, i.e., certifications from the barangay and
the Department of Social Welfare and Development. However, not only does the process involve some
expense which indigent clients could ill-afford, clients also lack knowledge on how to go about the
tedious process of obtaining these documents;
(c) Although the IBP is given an annual legal aid subsidy, the amount it receives from the government
is barely enough to cover various operating expenses;8
(d) While each IBP local chapter is given a quarterly allocation (from the legal aid subsidy), 9 said
allocation covers neither the incidental expenses defrayed by legal aid lawyers in handling legal aid
cases nor the payment of docket and other fees collected by the courts, quasi-judicial bodies and the
prosecutors office, as well as mediation fees and
(e) Considering the aforementioned factors, a directive may be issued by the Supreme Court granting
IBPs indigent clients an exemption from the payment of docket and other fees similar to that given to
PAO clients under Section 16-D of RA 9406. In this connection, the Supreme Court previously issued
a circular exempting IBP clients from the payment of transcript of stenographic notes. 10
At the outset, we laud the Misamis Oriental Chapter of the IBP for its effort to help improve the administration of
justice, particularly, the access to justice by the poor. Its Resolution No. 24, series of 2008 in fact echoes one of
the noteworthy recommendations during the Forum on Increasing Access to Justice spearheaded by the Court
last year. In promulgating Resolution No. 24, the Misamis Oriental Chapter of the IBP has effectively performed
its duty to "participate in the development of the legal system by initiating or supporting efforts in law reform
and in the administration of justice."11
We now move on to determine the merits of the request.
Access to Justice:
Making an Ideal a Reality

Access to justice by all, especially by the poor, is not simply an ideal in our society. Its existence is essential in
a democracy and in the rule of law. As such, it is guaranteed by no less than the fundamental law:
Sec. 11. Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be
denied to any person by reason of poverty.12 (emphasis supplied)
The Court recognizes the right of access to justice as the most important pillar of legal empowerment of the
marginalized sectors of our society.13 Among others, it has exercised its power to "promulgate rules concerning
the protection and enforcement of constitutional rights"14 to open the doors of justice to the underprivileged and
to allow them to step inside the courts to be heard of their plaints. In particular, indigent litigants are permitted
under Section 21, Rule 315 and Section 19, Rule 14116 of the Rules of Court to bring suits in forma pauperis.
The IBP, pursuant to its general objectives to "improve the administration of justice and enable the Bar to
discharge its public responsibility more effectively,"17 assists the Court in providing the poor access to justice. In
particular, it renders free legal aid under the supervision of the NCLA.
A New Rule, a New Tool
for Access to Justice
Under the IBPs Guidelines Governing the Establishment and Operation of Legal Aid Offices in All Chapters of
the IBP (Guidelines on Legal Aid), the combined "means and merit tests" shall be used to determine the
eligibility of an applicant for legal aid:
ARTICLE VIII
TESTS
SEC. 19. Combined tests. The Chapter Legal Aid Committee or the [NCLA], as the case may be, shall pass
upon the request for legal aid by the combined application of the means test and merit test, and the
consideration of other factors adverted to in the following sections.
SEC. 20. Means test. The means test aims at determining whether the applicant has no visible means of
support or his income is otherwise insufficient to provide the financial resources necessary to engage
competent private counsel owing to the demands for subsistence of his family, considering the number of his
dependents and the conditions prevailing in the locality.
The means test shall not be applicable to applicants who fall under the Developmental Legal Aid Program such
as Overseas Filipino Workers, fishermen, farmers, women and children and other disadvantaged groups.
SEC. 21. Merit test. The merit test seeks to ascertain whether or not the applicants cause of action or his
defense is valid and chances of establishing the same appear reasonable.
SEC. 22. Other factors. The effect of the Legal Aid Service or of the failure to render the same upon the Rule
of Law, the proper administration of justice, the public interest involved in given cases and the practice of law in
the locality shall likewise be considered.
SEC. 23. Private practice. Care shall be taken that the Legal aid is not availed of to the detriment of the
private practice of law, or taken advantage of by anyone for personal ends.
SEC. 24. Denial. Legal aid may be denied to an applicant already receiving adequate assistance from any
source other than the Integrated Bar.
The "means and merit tests" appear to be reasonable determinants of eligibility for coverage under the legal aid
program of the IBP. Nonetheless, they may be improved to ensure that any exemption from the payment of
legal fees that may be granted to clients of the NCLA and the legal aid offices of the various IBP chapters will
really further the right of access to justice by the poor. This will guarantee that the exemption will neither be

abused nor trivialized. Towards this end, the following shall be observed by the NCLA and the legal aid offices
in IBP chapters nationwide in accepting clients and handling cases for the said clients:
A.M. No. 08-11-7-SC (IRR): Re: Rule on the Exemption From the Payment of Legal Fees of the Clients of
the National Committee on Legal Aid and of the Legal Aid Offices in the Local Chapters of the
Integrated Bar of the Philippines
Rule on the Exemption From the Payment of Legal Fees of the Clients of the National Committee on
Legal Aid (NCLA) and of the Legal Aid Offices in the Local Chapters of the Integrated Bar of the
Philippines (IBP)
ARTICLE I
Purpose
Section 1. Purpose. This Rule is issued for the purpose of enforcing the right of free access to courts by the
poor guaranteed under Section 11, Article III of the Constitution. It is intended to increase the access to justice
by the poor by exempting from the payment of legal fees incidental to instituting an action in court, as an
original proceeding or on appeal, qualified indigent clients of the NCLA and of the legal aid offices in local IBP
chapters nationwide.
ARTICLE II
Definition of Terms
Section 1. Definition of important terms. For purposes of this Rule and as used herein, the following terms
shall be understood to be how they are defined under this Section:
(a) "Developmental legal aid" means the rendition of legal services in public interest causes involving
overseas workers, fisherfolk, farmers, laborers, indigenous cultural communities, women, children and
other disadvantaged groups and marginalized sectors;
(b) "Disinterested person" refers to the punong barangay having jurisdiction over the place where an
applicant for legal aid or client of the NCLA or chapter legal aid office resides;
(c) "Falsity" refers to any material misrepresentation of fact or any fraudulent, deceitful, false, wrong or
misleading statement in the application or affidavits submitted to support it or the affidavit of a
disinterested person required to be submitted annually under this Rule which may substantially affect
the determination of the qualifications of the applicant or the client under the means and merit tests;
(d) "Legal fees" refers to the legal fees imposed under Rule 141 of the Rules of Court as a necessary
incident of instituting an action in court either as an original proceeding or on appeal. In particular, it
includes filing or docket fees, appeal fees, fees for issuance of provisional remedies, mediation fees,
sheriffs fees, stenographers fees (that is fees for transcript of stenographic notes) and
commissioners fees;
(e) "Means test" refers to the set of criteria used to determine whether the applicant is one who has no
money or property sufficient and available for food, shelter and basic necessities for himself and his
family;
(f) "Merit test" refers to the ascertainment of whether the applicants cause of action or his defense is
valid and whether the chances of establishing the same appear reasonable and
(g) "Representative" refers to the person authorized to file an application for legal aid in behalf of the
applicant when the said applicant is prevented by a compelling reason from personally filing his
application. As a rule, it refers to the immediate family members of the applicant. However, it may
include any of the applicants relatives or any person or concerned citizen of sufficient discretion who

has first-hand knowledge of the personal circumstances of the applicant as well as of the facts of the
applicants case.
ARTICLE III
Coverage
Section 1. Persons qualified for exemption from payment of legal fees. Persons who shall enjoy the benefit of
exemption from the payment of legal fees incidental to instituting an action in court, as an original proceeding or
on appeal, granted under this Rule shall be limited only to clients of the NCLA and the chapter legal aid offices.
The said clients shall refer to those indigents qualified to receive free legal aid service from the NCLA and the
chapter legal aid offices. Their qualifications shall be determined based on the tests provided in this Rule.
Section 2. Persons not covered by the Rule. The following shall be disqualified from the coverage of this
Rule. Nor may they be accepted as clients by the NCLA and the chapter legal aid offices.
(a) Juridical persons; except in cases covered by developmental legal aid or public interest causes
involving juridical entities which are non-stock, non-profit organizations, non-governmental
organizations and peoples organizations whose individual members will pass the means test provided
in this Rule;
(b) Persons who do not pass the means and merit tests;
(c) Parties already represented by a counsel de parte;
(d) Owners or lessors of residential lands or buildings with respect to the filing of collection or unlawful
detainer suits against their tenants and
(e) Persons who have been clients of the NCLA or chapter legal aid office previously in a case where
the NCLA or chapter legal aid office withdrew its representation because of a falsity in the application
or in any of the affidavits supporting the said application.
Section 3. Cases not covered by the Rule. The NCLA and the chapter legal aid offices shall not handle the
following:
(a) Cases where conflicting interests will be represented by the NCLA and the chapter legal aid offices
and
(b) Prosecution of criminal cases in court.
ARTICLE IV
Tests of Indigency
Section 1. Tests for determining who may be clients of the NCLA and the legal aid offices in local IBP chapters.
The NCLA or the chapter legal aid committee, as the case may be, shall pass upon requests for legal aid by
the combined application of the means and merit tests and the consideration of other relevant factors provided
for in the following sections.
Section 2. Means test; exception. (a) This test shall be based on the following criteria: (i) the applicant and
that of his immediate family must have a gross monthly income that does not exceed an amount double the
monthly minimum wage of an employee in the place where the applicant resides and (ii) he does not own real
property with a fair market value as stated in the current tax declaration of more than Three Hundred Thousand
(P300,000.00) Pesos.

In this connection, the applicant shall execute an affidavit of indigency (printed at the back of the application
form) stating that he and his immediate family do not earn a gross income abovementioned, nor own any real
property with the fair value aforementioned, supported by an affidavit of a disinterested person attesting to the
truth of the applicants affidavit. The latest income tax return and/or current tax declaration, if any, shall be
attached to the applicants affidavit.
(b) The means test shall not be applicable to applicants who fall under the developmental legal aid program
such as overseas workers, fisherfolk, farmers, laborers, indigenous cultural communities, women, children and
other disadvantaged groups.
Section 3. Merit test. A case shall be considered meritorious if an assessment of the law and evidence at
hand discloses that the legal service will be in aid of justice or in the furtherance thereof, taking into
consideration the interests of the party and those of society. A case fails this test if, after consideration of the
law and evidence presented by the applicant, it appears that it is intended merely to harass or injure the
opposite party or to work oppression or wrong.
Section 4. Other relevant factors that may be considered. The effect of legal aid or of the failure to render the
same upon the rule of law, the proper administration of justice, the public interest involved in a given case and
the practice of law in the locality shall likewise be considered.
ARTICLE V
Acceptance and Handling of Cases
Section 1. Procedure in accepting cases. The following procedure shall be observed in the acceptance of
cases for purposes of this Rule:
(a) Filing of application An application shall be made personally by the applicant, unless there is a
compelling reason which prevents him from doing so, in which case his representative may apply for
him. It shall adhere substantially to the form made for that purpose. It shall be prepared and signed by
the applicant or, in proper cases, his duly authorized representative in at least three copies.
Applications for legal aid shall be filed with the NCLA or with the chapter legal aid committee.
The NCLA shall, as much as possible, concentrate on cases of paramount importance or national
impact.
Requests received by the IBP National Office shall be referred by the NCLA to the proper chapter legal
aid committee of the locality where the cases have to be filed or are pending. The chapter president
and the chairman of the chapters legal aid committee shall be advised of such referral.
(b) Interview The applicant shall be interviewed by a member of the chapter legal aid committee or
any chapter member authorized by the chapter legal aid committee to determine the applicants
qualifications based on the means and merit tests and other relevant factors. He shall also be required
to submit copies of his latest income tax returns and/or current tax declaration, if available, and
execute an affidavit of indigency printed at the back of the application form with the supporting affidavit
of a disinterested person attesting to the truth of the applicants affidavit.
lawph!l

After the interview, the applicant shall be informed that he can follow up the action on his application
after five (5) working days.
(c) Action on the application The chapter legal aid committee shall pass upon every request for legal
aid and submit its recommendation to the chapter board of officers within three (3) working days after
the interview of the applicant. The basis of the recommendation shall be stated.

The chapter board of officers shall review and act on the recommendation of the chapter legal aid
committee within two (2) working days from receipt thereof; Provided, however, that in urgent matters
requiring prompt or immediate action, the chapters executive director of legal aid or whoever performs
his functions may provisionally act on the application, subject to review by the chapter legal aid
committee and, thereafter, by the chapter board of officers.
The action of the chapter board of officers on the application shall be final.
(d) Cases which may be provisionally accepted. In the following cases, the NCLA or the chapter
legal aid office, through the chapters executive director of legal aid or whoever performs his functions
may accept cases provisionally pending verification of the applicants indigency and an evaluation of
the merit of his case.
(i) Where a warrant for the arrest of the applicant has been issued;
(ii) Where a pleading has to be filed immediately to avoid adverse effects to the applicant;
(iii) Where an appeal has to be urgently perfected or a petition for certiorari, prohibition or mandamus
filed has to be filed immediately; and
(iv) Other similar urgent cases.
(e) Assignment of control number Upon approval of the chapter board of officers of a persons
application and the applicant is found to be qualified for legal assistance, the case shall be assigned a
control number. The numbering shall be consecutive starting from January to December of every year.
The control number shall also indicate the region and the chapter handling the case.
Example:
Region18

Chapter

Year

Month

Number

GM -

Manila -

2009 -

03 -

099

(f) Issuance of a certification After an application is approved and a control number duly assigned,
the chapter board of officers shall issue a certification that the person (that is, the successful applicant)
is a client of the NCLA or of the chapter legal aid office. The certification shall bear the control number
of the case and shall state the name of the client and the nature of the judicial action subject of the
legal aid of the NCLA or the legal aid office of a local IBP chapter.
The certification shall be issued to the successful applicant free of charge.
Section 2. Assignment of cases. After a case is given a control number, the chapter board of officers shall
refer it back to the chapter legal aid committee. The chapter legal aid committee shall assign the case to any
chapter member who is willing to handle the case.
In case no chapter member has signified an intention to handle the case voluntarily, the chapter legal aid
committee shall refer the matter to the chapter board of officers together with the names of at least three
members who, in the chapter legal aid committees discretion, may competently render legal aid on the matter.
The chapter board of officers shall appoint one chapter member from among the list of names submitted by the
chapter legal aid committee. The chapter member chosen may not refuse the appointment except on the
ground of conflict of interest or other equally compelling grounds as provided in the Code of Professional
Responsibility,19in which case the chapter board of officers shall appoint his replacement from among the
remaining names in the list previously submitted by the chapter legal aid committee.

The chapter legal aid committee and the chapter board of officers shall take the necessary measures to ensure
that cases are well-distributed to chapter members.
Section 3. Policies and guidelines in the acceptance and handling of cases. The following policies and
guidelines shall be observed in the acceptance and handling of cases:
(a) First come, first served Where both the complainant/plaintiff/petitioner and defendant/ respondent
apply for legal aid and both are qualified, the first to seek assistance shall be given preference.
(b) Avoidance of conflict of interest Where acceptance of a case will give rise to a conflict of interest
on the part of the chapter legal aid office, the applicant shall be duly informed and advised to seek the
services of a private counsel or another legal aid organization.
Where handling of the case will give rise to a conflict of interest on the part of the chapter member
assigned to the case, the client shall be duly informed and advised about it. The handling lawyer shall
also inform the chapter legal aid committee so that another chapter member may be assigned to
handle the case. For purposes of choosing the substitute handling lawyer, the rule in the immediately
preceding section shall be observed.
(c) Legal aid is purely gratuitous and honorary No member of the chapter or member of the staff of
the NCLA or chapter legal aid office shall directly or indirectly demand or request from an applicant or
client any compensation, gift or present for legal aid services being applied for or rendered.
(d) Same standard of conduct and equal treatment A chapter member who is tasked to handle a
case accepted by the NCLA or by the chapter legal aid office shall observe the same standard of
conduct governing his relations with paying clients. He shall treat the client of the NCLA or of the
chapter legal aid office and the said clients case in a manner that is equal and similar to his treatment
of a paying client and his case.
(e) Falsity in the application or in the affidavits Any falsity in the application or in the affidavit of
indigency or in the affidavit of a disinterested person shall be sufficient cause for the NCLA or chapter
legal aid office to withdraw or terminate the legal aid. For this purpose, the chapter board of officers
shall authorize the handling lawyer to file the proper manifestation of withdrawal of appearance of the
chapter legal aid office in the case with a motion for the dismissal of the complaint or action of the
erring client. The court, after hearing, shall approve the withdrawal of appearance and grant the
motion, without prejudice to whatever criminal liability may have been incurred.
Violation of this policy shall disqualify the erring client from availing of the benefits of this Rule in the
future.
(f) Statement in the initiatory pleading To avail of the benefits of the Rule, the initiatory pleading shall
state as an essential preliminary allegation that (i) the party initiating the action is a client of the NCLA
or of the chapter legal aid office and therefore entitled to exemption from the payment of legal fees
under this Rule and (ii) a certified true copy of the certification issued pursuant to Section 1(e), of this
Article is attached or annexed to the pleading.
Failure to make the statement shall be a ground for the dismissal of the action without prejudice to its
refiling.
The same rule shall apply in case the client, through the NCLA or chapter legal aid office, files an
appeal.
(g) Attachment of certification in initiatory pleading A certified true copy of the certification issued
pursuant to Section 1(e), of this Article shall be attached as an annex to the initiatory pleading.

Failure to attach a certified true copy of the said certification shall be a ground for the dismissal of the
action without prejudice to its refiling.
The same rule shall apply in case the client, through the NCLA or chapter legal aid office, files an
appeal.
(h) Signing of pleadings All complaints, petitions, answers, replies, memoranda and other important
pleadings or motions to be filed in courts shall be signed by the handling lawyer and co-signed by the
chairperson or a member of the chapter legal aid committee, or in urgent cases, by the executive
director of legal aid or whoever performs his functions.
Ordinary motions such as motions for extension of time to file a pleading or for postponement of
hearing and manifestations may be signed by the handling lawyer alone.
(i) Motions for extension of time or for postponement The filing of motions for extension of time to file
a pleading or for postponement of hearing shall be avoided as much as possible as they cause delay
to the case and prolong the proceedings.
(j) Transfer of cases Transfer of cases from one handling lawyer to another shall be affected only
upon approval of the chapter legal aid committee.
Section 4. Decision to appeal. (a) All appeals must be made on the request of the client himself. For this
purpose, the client shall be made to fill up a request to appeal.
(b) Only meritorious cases shall be appealed. If the handling lawyer, in consultation with the chapter legal aid
committee, finds that there is no merit to the appeal, the client should be immediately informed thereof in
writing and the record of the case turned over to him, under proper receipt. If the client insists on appealing the
case, the lawyer handling the case should perfect the appeal before turning over the records of the case to him.
Section 5. Protection of private practice. Utmost care shall be taken to ensure that legal aid is neither availed
of to the detriment of the private practice of law nor taken advantage of by anyone for purely personal ends.
ARTICLE VI
Withdrawal of Legal Aid and Termination of Exemption
Section 1. Withdrawal of legal aid. The NCLA or the chapter legal aid committee may, in justifiable instances
as provided in the next Section, direct the handling lawyer to withdraw representation of a clients cause upon
approval of the IBP Board of Governors (in the case of the NCLA) or of the chapter board of officers (in the
case of the chapter legal aid committee) and through a proper motion filed in Court.
Section 2. Grounds for withdrawal of legal aid. Withdrawal may be warranted in the following situations:
(a) In a case that has been provisionally accepted, where it is subsequently ascertained that the client
is not qualified for legal aid;
(b) Where the clients income or resources improve and he no longer qualifies for continued assistance
based on the means test. For this purpose, on or before January 15 every year, the client shall submit
an affidavit of a disinterested person stating that the client and his immediate family do not earn a
gross income mentioned in Section 2, Article V, nor own any real property with the fair market value
mentioned in the same Section;
(c) When it is shown or found that the client committed a falsity in the application or in the affidavits
submitted to support the application;
(d) When the client subsequently engages a de parte counsel or is provided with a de oficio counsel;

(e) When, despite proper advice from the handling lawyer, the client cannot be refrained from doing
things which the lawyer himself ought not do under the ethics of the legal profession, particularly with
reference to their conduct towards courts, judicial officers, witnesses and litigants, or the client insists
on having control of the trial, theory of the case, or strategy in procedure which would tend to result in
incalculable harm to the interests of the client;
(f) When, despite notice from the handling lawyer, the client does not cooperate or coordinate with the
handling lawyer to the prejudice of the proper and effective rendition of legal aid such as when the
client fails to provide documents necessary to support his case or unreasonably fails to attend
hearings when his presence thereat is required; and
(g) When it becomes apparent that the representation of the clients cause will result in a
representation of conflicting interests, as where the adverse party had previously engaged the services
of the NCLA or of the chapter legal aid office and the subject matter of the litigation is directly related to
the services previously rendered to the adverse party.
Section 3. Effect of withdrawal. The court, after hearing, shall allow the NCLA or the chapter legal aid office to
withdraw if it is satisfied that the ground for such withdrawal exists.
Except when the withdrawal is based on paragraphs (b), (d) and (g) of the immediately preceding Section, the
court shall also order the dismissal of the case. Such dismissal is without prejudice to whatever criminal liability
may have been incurred if the withdrawal is based on paragraph (c) of the immediately preceding Section.
ARTICLE VII
Miscellaneous Provisions
Section 1. Lien on favorable judgment. The amount of the docket and other lawful fees which the client was
exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless
the court otherwise provides.
In case, attorneys fees have been awarded to the client, the same shall belong to the NCLA or to the chapter
legal aid office that rendered the legal aid, as the case may be. It shall form part of a special fund which shall
be exclusively used to support the legal aid program of the NCLA or the chapter legal aid office. In this
connection, the chapter board of officers shall report the receipt of attorneys fees pursuant to this Section to
the NCLA within ten (10) days from receipt thereof. The NCLA shall, in turn, include the data on attorneys fees
received by IBP chapters pursuant to this Section in its liquidation report for the annual subsidy for legal aid.
1awphi 1

Section 2. Duty of NCLA to prepare forms. The NCLA shall prepare the standard forms to be used in
connection with this Rule. In particular, the NCLA shall prepare the following standard forms: the application
form, the affidavit of indigency, the supporting affidavit of a disinterested person, the affidavit of a disinterested
person required to be submitted annually under Section 2(b), Article VI, the certification issued by the NCLA or
the chapter board of officers under Section 1(f), Article V and the request to appeal.
The said forms, except the certification, shall be in Filipino. Within sixty (60) days from receipt of the forms from
the NCLA, the chapter legal aid offices shall make translations of the said forms in the dominant dialect used in
their respective localities.
Section 3. Effect of Rule on right to bring suits in forma pauperis. Nothing in this Rule shall be considered to
preclude those persons not covered either by this Rule or by the exemption from the payment of legal fees
granted to clients of the Public Attorneys Office under Section 16-D of RA 9406 to litigate in forma
pauperis under Section 21, Rule 3 and Section 19 Rule 141 of the Rules of Court.
Section 4. Compliance with Rule on Mandatory Legal Aid Service. Legal aid service rendered by a lawyer
under this Rule either as a handling lawyer or as an interviewer of applicants under Section 1(b), Article IV
hereof shall be credited for purposes of compliance with the Rule on Mandatory Legal Aid Service.

The chairperson of the chapter legal aid office shall issue the certificate similar to that issued by the Clerk of
Court in Section 5(b) of the Rule on Mandatory Legal Aid Service.
ARTICLE VIII
Effectivity
Section 1. Effectivity. This Rule shall become effective after fifteen days following its publication in a
newspaper of general circulation.
The above rule, in conjunction with Section 21, Rule 3 and Section 19, Rule 141 of the Rules of Court, the Rule
on Mandatory Legal Aid Service and the Rule of Procedure for Small Claims Cases, shall form a solid base of
rules upon which the right of access to courts by the poor shall be implemented. With these rules, we equip the
poor with the tools to effectively, efficiently and easily enforce their rights in the judicial system.
A Final Word
Equity will not suffer a wrong to be without a remedy. Ubi jus ibi remedium. Where there is a right, there must
be a remedy. The remedy must not only be effective and efficient, but also readily accessible. For a remedy
that is inaccessible is no remedy at all.
The Constitution guarantees the rights of the poor to free access to the courts and to adequate legal
assistance. The legal aid service rendered by the NCLA and legal aid offices of IBP chapters nationwide
addresses only the right to adequate legal assistance. Recipients of the service of the NCLA and legal aid
offices of IBP chapters may enjoy free access to courts by exempting them from the payment of fees assessed
in connection with the filing of a complaint or action in court. With these twin initiatives, the guarantee of
Section 11, Article III of Constitution is advanced and access to justice is increased by bridging a significant
gap and removing a major roadblock.
WHEREFORE, the Misamis Oriental Chapter of the Integrated Bar of the Philippines is
hereby COMMENDED for helping increase the access to justice by the poor. The request of the Misamis
Oriental Chapter for the exemption from the payment of filing, docket and other fees of the clients of the legal
aid offices of the various IBP chapters is GRANTED. The Rule on the Exemption From the Payment of Legal
Fees of the Clients of the National Committee on Legal Aid (NCLA) and of the Legal Aid Offices in the Local
Chapters of the Integrated Bar of the Philippines (IBP) (which shall be assigned the docket number A.M. No.
08-11-7-SC [IRR] provided in this resolution is hereby APPROVED. In this connection, the Clerk of Court
is DIRECTED to cause the publication of the said rule in a newspaper of general circulation within five days
from the promulgation of this resolution.
The Office of the Court Administrator is hereby directed to promptly issue a circular to inform all courts in the
Philippines of the import of this resolution.
SO ORDERED.
March 23, 1929
In re LUIS B. TAGORDA,
Duran & Lim for respondent.
Attorney-General Jaranilla and Provincial Fiscal Jose for the Government.
MALCOLM, J.:
The respondent, Luis B. Tagorda, a practising attorney and a member of the provincial board of Isabela, admits
that previous to the last general elections he made use of a card written in Spanish and Ilocano, which, in
translation, reads as follows:

LUIS B. TAGORDA
Attorney
Notary Public
CANDIDATE FOR THIRD MEMBER
Province of Isabela
(NOTE. As notary public, he can execute for you a deed of sale for the purchase of land as
required by the cadastral office; can renew lost documents of your animals; can make your
application and final requisites for your homestead; and can execute any kind of affidavit. As a
lawyer, he can help you collect your loans although long overdue, as well as any complaint for
or against you. Come or write to him in his town, Echague, Isabela. He offers free
consultation, and is willing to help and serve the poor.)
The respondent further admits that he is the author of a letter addressed to a lieutenant of barrio in his home
municipality written in Ilocano, which letter, in translation, reads as follows:
ECHAGUE, ISABELA, September 18, 1928
MY DEAR LIEUTENANT: I would like to inform you of the approaching date for our induction
into office as member of the Provincial Board, that is on the 16th of next month. Before my
induction into office I should be very glad to hear your suggestions or recommendations for
the good of the province in general and for your barrio in particular. You can come to my
house at any time here in Echague, to submit to me any kind of suggestion or
recommendation as you may desire.
I also inform you that despite my membership in the Board I will have my residence here in
Echague. I will attend the session of the Board of Ilagan, but will come back home on the
following day here in Echague to live and serve with you as a lawyer and notary public.
Despite my election as member of the Provincial Board, I will exercise my legal profession as
a lawyer and notary public. In case you cannot see me at home on any week day, I assure
you that you can always find me there on every Sunday. I also inform you that I will receive
any work regarding preparations of documents of contract of sales and affidavits to be sworn
to before me as notary public even on Sundays.
I would like you all to be informed of this matter for the reason that some people are in the
belief that my residence as member of the Board will be in Ilagan and that I would then be
disqualified to exercise my profession as lawyer and as notary public. Such is not the case
and I would make it clear that I am free to exercise my profession as formerly and that I will
have my residence here in Echague.
I would request you kind favor to transmit this information to your barrio people in any of your
meetings or social gatherings so that they may be informed of my desire to live and to serve
with you in my capacity as lawyer and notary public. If the people in your locality have not as
yet contracted the services of other lawyers in connection with the registration of their land
titles, I would be willing to handle the work in court and would charge only three pesos for
every registration.
Yours respectfully,
(Sgd.) LUIS TAGORDA
Attorney
Notary Public.
The facts being conceded, it is next in order to write down the applicable legal provisions. Section 21 of the
Code of Civil Procedure as originally conceived related to disbarments of members of the bar. In 1919 at the
instigation of the Philippine Bar Association, said codal section was amended by Act No. 2828 by adding at the

end thereof the following: "The practice of soliciting cases at law for the purpose of gain, either personally or
through paid agents or brokers, constitutes malpractice."
The statute as amended conforms in principle to the Canons of Professionals Ethics adopted by the American
Bar Association in 1908 and by the Philippine Bar Association in 1917. Canons 27 and 28 of the Code of Ethics
provide:
27. ADVERTISING, DIRECT OR INDIRECT. The most worthy and effective advertisement possible,
even for a young lawyer, and especially with his brother lawyers, is the establishment of a well-merited
reputation for professional capacity and fidelity to trust. This cannot be forced, but must be the
outcome of character and conduct. The publication or circulation of ordinary simple business cards,
being a matter of personal taste or local custom, and sometimes of convenience, is not per
se improper. But solicitation of business by circulars or advertisements, or by personal
communications or interview not warranted by personal relations, is unprofessional. It is equally
unprofessional to procure business by indirection through touters of any kind, whether allied real estate
firms or trust companies advertising to secure the drawing of deeds or wills or offering retainers in
exchange for executorships or trusteeships to be influenced by the lawyer. Indirect advertisement for
business by furnishing or
inspiring
newspaper comments concerning the manner of their conduct, the magnitude of the interest involved,
the importance of the lawyer's position, and all other like self-laudation, defy the traditions and lower
the tone of our high calling, and are intolerable.
28. STIRRING UP LITIGATION, DIRECTLY OR THROUGH AGENTS. It is unprofessional for a
lawyer to volunteer advice to bring a lawsuit, except in rare cases where ties of blood, relationship or
trust make it his duty to do so. Stirring up strife and litigation is not only unprofessional, but it is
indictable at common law. It is disreputable to hunt up defects in titles or other causes of action and
inform thereof in order to the employed to bring suit, or to breed litigation by seeking out those with
claims for personal injuries or those having any other grounds of action in order to secure them as
clients, or to employ agents or runners for like purposes, or to pay or reward directly or indirectly, those
who bring or influence the bringing of such cases to his office, or to remunerate policemen, court or
prison officials, physicians, hospital attaches or others who may succeed, under the guise of giving
disinterested friendly advice, in influencing the criminal, the sick and the injured, the ignorant or others,
to seek his professional services. A duty to the public and to the profession devolves upon every
member of the bar having knowledge of such practices upon the part of any practitioner immediately to
inform thereof to the end that the offender may be disbarred.
Common barratry consisting of frequently stirring up suits and quarrels between individuals was a crime at the
common law, and one of the penalties for this offense when committed by an attorney was disbarment.
Statutes intended to reach the same evil have been provided in a number of jurisdictions usually at the instance
of the bar itself, and have been upheld as constitutional. The reason behind statutes of this type is not difficult
to discover. The law is a profession and not a business. The lawyer may not seek or obtain employment by
himself or through others for to do so would be unprofessional. (State vs. Rossman [1909], 53 Wash., 1; 17
Ann. Cas., 625; Peoplevs. Mac Cabe [1893], 19 L. R. A., 231; 2 R. C. L., 1097.)
It becomes our duty to condemn in no uncertain terms the ugly practice of solicitation of cases by lawyers. It is
destructive of the honor of a great profession. It lowers the standards of that profession. It works against the
confidence of the community in the integrity of the members of the bar. It results in needless litigation and in
incenting to strife otherwise peacefully inclined citizens.
The solicitation of employment by an attorney is a ground for disbarment or suspension. That should be
distinctly understood.
Giving application of the law and the Canons of Ethics to the admitted facts, the respondent stands convicted of
having solicited cases in defiance of the law and those canons. Accordingly, the only remaining duty of the
court is to fix upon the action which should here be taken. The provincial fiscal of Isabela, with whom joined the

representative of the Attorney-General in the oral presentation of the case, suggests that the respondent be
only reprimanded. We think that our action should go further than this if only to reflect our attitude toward cases
of this character of which unfortunately the respondent's is only one. The commission of offenses of this nature
would amply justify permanent elimination from the bar. But as mitigating, circumstances working in favor of the
respondent there are, first, his intimation that he was unaware of the impropriety of his acts, second, his youth
and inexperience at the bar, and, third, his promise not to commit a similar mistake in the future. A modest
period of suspension would seem to fit the case of the erring attorney. But it should be distinctly understood
that this result is reached in view of the considerations which have influenced the court to the relatively lenient
in this particular instance and should, therefore, not be taken as indicating that future convictions of practice of
this kind will not be dealt with by disbarment.
In view of all the circumstances of this case, the judgment of the court is that the respondent Luis B. Tagorda
be and is hereby suspended from the practice as an attorney-at-law for the period of one month from April 1,
1929,
Street, Johns, Romualdez, and Villa-Real, JJ., concur.
Johnson, J., reserves his vote.

Separate Opinions
OSTRAND, J., dissenting:
I dissent. Under the circumstances of the case a reprimand would have been sufficient punishment.
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
Officeagainst Atty. Nicomedes Tolentino for solicitation of clients and encroachment of professional services.
Complainant alleged that respondent, with the help of paralegal Fe Marie Labiano, convinced his clients2 to
transfer legal representation. Respondent promised them financial assistance3 and expeditious collection on
their claims.4 To induce them to hire his services, he persistently called them and sent them text messages.
To support his allegations, complainant presented the sworn affidavit5 of James Gregorio attesting that Labiano
tried to prevail upon him to sever his lawyer-client relations with complainant and utilize respondents services
instead, in exchange for a loan of P50,000. Complainant also attached "respondents" calling card:6
Front

NICOMEDES TOLENTINO
LAW OFFFICE
CONSULTANCY & MARITIME SERVICES
W/ FINANCIAL ASSISTANCE
Fe Marie L. Labiano
Paralegal

1st MIJI Mansion, 2nd Flr. Rm. M-01

6th Ave., cor M.H. Del Pilar
Grace Park, Caloocan City

Tel: 362-7820
Fax: (632) 3627821
Cel.: (0926)
2701719

Back

SERVICES OFFERED:
CONSULTATION AND ASSISTANCE
TO OVERSEAS SEAMEN
REPATRIATED DUE TO ACCIDENT,
INJURY, ILLNESS, SICKNESS, DEATH
AND INSURANCE BENEFIT CLAIMS
ABROAD.
1av vphi1

(emphasis supplied)
Hence, this complaint.
Respondent, in his defense, denied knowing Labiano and authorizing the printing and circulation of the said
calling card.7
The complaint was referred to the Commission on Bar Discipline (CBD) of the Integrated Bar of the Philippines
(IBP) for investigation, report and recommendation.8
Based on testimonial and documentary evidence, the CBD, in its report and recommendation, 9 found that
respondent had encroached on the professional practice of complainant, violating Rule 8.02 10 and other
canons11 of the Code of Professional Responsibility (CPR). Moreover, he contravened the rule against soliciting
cases for gain, personally or through paid agents or brokers as stated in Section 27, Rule 13812 of the Rules of
Court. Hence, the CBD recommended that respondent be reprimanded with a stern warning that any repetition
would merit a heavier penalty.

We adopt the findings of the IBP on the unethical conduct of respondent but we modify the recommended
penalty.
The complaint before us is rooted on the alleged intrusion by respondent into complainants 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.

Canons
of the CPR are rules of conduct all lawyers must adhere to, including the manner by which a
lawyers 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 publics 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 mans 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 respondents 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 Labianos actions, respondents law practice was benefited. Hapless seamen were enticed to transfer
representation on the strength of Labianos 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.
1avv phi 1

With regard to respondents violation of Rule 8.02 of the CPR, settled is the rule that a lawyer should not steal
another lawyers 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 Labianos "referrals." Furthermore, he never denied Labianos connection to his
office.21 Respondent committed an unethical, predatory overstep into anothers 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 clients 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, stenographers 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 lawyers 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 clients cause. If the lawyer lends money to the client in connection with
the clients case, the lawyer in effect acquires an interest in the subject matter of the case or an additional stake
in its outcome.23 Either 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 clients cause.24
As previously mentioned, any act of solicitation constitutes malpractice25 which calls for the exercise of the
Courts 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 lawyers 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) lawyers 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
Labianos 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 Labianos 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 isSTERNLY 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.
A.C. No. 5299

August 19, 2003

ATTY. ISMAEL G. KHAN, JR., Assistant Court Administrator and Chief, Public Information
Office,Complainant,
vs.
ATTY. RIZALINO T. SIMBILLO, Respondent.
x-----------------------x
G.R. No. 157053

August 19, 2003

ATTY. RIZALINO T. SIMBILLO, Petitioner,

vs.
IBP COMMISSION ON BAR DISCIPLINE and ATTY. ISMAEL G. KHAN, JR., in his capacity as Assistant
Court Administrator and Chief, Public Information Office, Respondents.
RESOLUTION
YNARES-SANTIAGO, J.:
This administrative complaint arose from a paid advertisement that appeared in the July 5, 2000 issue of the
newspaper, Philippine Daily Inquirer, which reads: "ANNULMENT OF MARRIAGE Specialist 532-4333/5212667."1
Ms. Ma. Theresa B. Espeleta, a staff member of the Public Information Office of the Supreme Court, called up
the published telephone number and pretended to be an interested party. She spoke to Mrs. Simbillo, who
claimed that her husband, Atty. Rizalino Simbillo, was an expert in handling annulment cases and can
guarantee a court decree within four to six months, provided the case will not involve separation of property or
custody of children. Mrs. Simbillo also said that her husband charges a fee of P48,000.00, half of which is
payable at the time of filing of the case and the other half after a decision thereon has been rendered.
Further research by the Office of the Court Administrator and the Public Information Office revealed that similar
advertisements were published in the August 2 and 6, 2000 issues of the Manila Bulletin and August 5, 2000
issue of The Philippine Star.2
On September 1, 2000, Atty. Ismael G. Khan, Jr., in his capacity as Assistant Court Administrator and Chief of
the Public Information Office, filed an administrative complaint against Atty. Rizalino T. Simbillo for
improperadvertising and solicitation of his legal services, in violation of Rule 2.03 and Rule 3.01 of the Code of
Professional Responsibility and Rule 138, Section 27 of the Rules of Court.3
In his answer, respondent admitted the acts imputed to him, but argued that advertising and solicitation per se
are not prohibited acts; that the time has come to change our views about the prohibition on advertising and
solicitation; that the interest of the public is not served by the absolute prohibition on lawyer advertising; that the

Court can lift the ban on lawyer advertising; and that the rationale behind the decades-old prohibition should be
abandoned. Thus, he prayed that he be exonerated from all the charges against him and that the Court
promulgate a ruling that advertisement of legal services offered by a lawyer is not contrary to law, public policy
and public order as long as it is dignified.4
The case was referred to the Integrated Bar of the Philippines for investigation, report and
recommendation.5 On June 29, 2002, the IBP Commission on Bar Discipline passed Resolution No. XV-2002306,6 finding respondent guilty of violation of Rules 2.03 and 3.01 of the Code of Professional Responsibility
and Rule 138, Section 27 of the Rules of Court, and suspended him from the practice of law for one (1) year
with the warning that a repetition of similar acts would be dealt with more severely. The IBP Resolution was
noted by this Court on November 11, 2002.7
In the meantime, respondent filed an Urgent Motion for Reconsideration,8 which was denied by the IBP in
Resolution No. XV-2002-606 dated October 19, 20029
Hence, the instant petition for certiorari, which was docketed as G.R. No. 157053 entitled, "Atty. Rizalino T.
Simbillo, Petitioner versus IBP Commission on Bar Discipline, Atty. Ismael G. Khan, Jr., Asst. Court
Administrator and Chief, Public Information Office, Respondents." This petition was consolidated with A.C. No.
5299 per the Courts Resolution dated March 4, 2003.
In a Resolution dated March 26, 2003, the parties were required to manifest whether or not they were willing to
submit the case for resolution on the basis of the pleadings.10 Complainant filed his Manifestation on April 25,
2003, stating that he is not submitting any additional pleading or evidence and is submitting the case for its
early resolution on the basis of pleadings and records thereof. 11 Respondent, on the other hand, filed a
Supplemental Memorandum on June 20, 2003.
We agree with the IBPs Resolutions Nos. XV-2002-306 and XV-2002-606.
Rules 2.03 and 3.01 of the Code of Professional Responsibility read:
Rule 2.03. A lawyer shall not do or permit to be done any act designed primarily to solicit legal business.
Rule 3.01. A lawyer shall not use or permit the use of any false, fraudulent, misleading, deceptive,
undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services.
Rule 138, Section 27 of the Rules of Court states:
SEC. 27. Disbarment and 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 the admission to
practice, or for a willful disobedience appearing as attorney for a party without authority to do so.
It has been repeatedly stressed that the practice of law is not a business.12 It is a profession in which duty to
public service, not money, is the primary consideration. Lawyering is not primarily meant to be a money-making
venture, and law advocacy is not a capital that necessarily yields profits.13 The gaining of a livelihood should be
a secondary consideration.14 The duty to public service and to the administration of justice should be the
primary consideration of lawyers, who must subordinate their personal interests or what they owe to
themselves.15 The following elements distinguish the legal profession from a business:
1. A duty of public service, of which the emolument is a by-product, and in which one may attain the
highest eminence without making much money;
2. A relation as an "officer of the court" to the administration of justice involving thorough sincerity,
integrity and reliability;

3. A relation to clients in the highest degree of fiduciary;

4. A relation to colleagues at the bar characterized by candor, fairness, and unwillingness to resort to
current business methods of advertising and encroachment on their practice, or dealing directly with
their clients.16
There is no question that respondent committed the acts complained of. He himself admits that he caused the
publication of the advertisements. While he professes repentance and begs for the Courts indulgence, his
contrition rings hollow considering the fact that he advertised his legal services again after he pleaded for
compassion and after claiming that he had no intention to violate the rules. Eight months after filing his answer,
he again advertised his legal services in the August 14, 2001 issue of the Buy & Sell Free Ads
Newspaper.17 Ten months later, he caused the same advertisement to be published in the October 5, 2001
issue of Buy & Sell.18Such acts of respondent are a deliberate and contemptuous affront on the Courts
authority.
What adds to the gravity of respondents acts is that in advertising himself as a self-styled "Annulment of
Marriage Specialist," he wittingly or unwittingly erodes and undermines not only the stability but also the
sanctity of an institution still considered sacrosanct despite the contemporary climate of permissiveness in our
society. Indeed, in assuring prospective clients that an annulment may be obtained in four to six months from
the time of the filing of the case,19 he in fact encourages people, who might have otherwise been disinclined
and would have refrained from dissolving their marriage bonds, to do so.
Nonetheless, the solicitation of legal business is not altogether proscribed. However, for solicitation to be
proper, it must be compatible with the dignity of the legal profession. If it is made in a modest and decorous
manner, it would bring no injury to the lawyer and to the bar.20 Thus, the use of simple signs stating the name
or names of the lawyers, the office and residence address and fields of practice, as well as advertisement in
legal periodicals bearing the same brief data, are permissible. Even the use of calling cards is now
acceptable.21 Publication in reputable law lists, in a manner consistent with the standards of conduct imposed
by the

canon
, of brief biographical and informative data is likewise allowable. As explicitly stated in Ulep v.
Legal Clinic, Inc.:22
Such data must not be misleading and may include only a statement of the lawyers name and the names of his
professional associates; addresses, telephone numbers, cable addresses; branches of law practiced; date and
place of birth and admission to the bar; schools attended with dates of graduation, degrees and other
educational distinctions; public or quasi-public offices; posts of honor; legal authorships; legal teaching
positions; membership and offices in bar associations and committees thereof, in legal and scientific societies
and legal fraternities; the fact of listings in other reputable law lists; the names and addresses of references;
and, with their written consent, the names of clients regularly represented.
The law list must be a reputable law list published primarily for that purpose; it cannot be a mere supplemental
feature of a paper, magazine, trade journal or periodical which is published principally for other purposes. For
that reason, a lawyer may not properly publish his brief biographical and informative data in a daily paper,
magazine, trade journal or society program. Nor may a lawyer permit his name to be published in a law list the
conduct, management, or contents of which are calculated or likely to deceive or injure the public or the bar, or
to lower dignity or standing of the profession.
The use of an ordinary simple professional card is also permitted. The card may contain only a statement of his
name, the name of the law firm which he is connected with, address, telephone number and special branch of
law practiced. The publication of a simple announcement of the opening of a law firm or of changes in the
partnership, associates, firm name or office address, being for the convenience of the profession, is not
objectionable. He may likewise have his name listed in a telephone directory but not under a designation of
special branch of law. (emphasis and italics supplied)

WHEREFORE, in view of the foregoing, respondent RIZALINO T. SIMBILLO is found GUILTY of violation of
Rules 2.03 and 3.01 of the Code of Professional Responsibility and Rule 138, Section 27 of the Rules of Court.
He is SUSPENDED from the practice of law for ONE (1) YEAR effective upon receipt of this Resolution. He is
likewise STERNLY WARNED that a repetition of the same or similar offense will be dealt with more severely.
Let copies of this Resolution be entered in his record as attorney and be furnished the Integrated Bar of the
Philippines and all courts in the country for their information and guidance.
SO ORDERED.
Vitug, (Acting Chairman),Carpio, and Azcuna, JJ., concur.
Davide, Jr., C.J., (Chairman ), abroad, on official business.
A.C. No. L-1117

March 20, 1944

THE DIRECTOR OF RELIGIOUS AFFAIRS, complainant,

vs.
ESTANISLAO R. BAYOT, respondent.
Office of the Solicitor General De la Costa and Solicitor Feria for complainant.
Francisco Claravall for respondent.
OZAETA, J.:
The respondent, who is an attorney-at-law, is charged with malpractice for having published an advertisement
in the Sunday Tribune of June 13, 1943, which reads as follows:
Marriage
license promptly secured thru our assistance & the annoyance of delay or publicity avoided if desired,
and marriage arranged to wishes of parties. Consultation on any matter free for the poor. Everything
confidential.
Legal assistance service
12 Escolta, Manila, Room, 105
Tel. 2-41-60.
Appearing in his own behalf, respondent at first denied having published the said advertisement; but
subsequently, thru his attorney, he admitted having caused its publication and prayed for "the indulgence and
mercy" of the Court, promising "not to repeat such professional misconduct in the future and to abide himself to
the strict ethical rules of the law profession." In further mitigation he alleged that the said advertisement was
published only once in the Tribune and that he never had any case at law by reason thereof.
Upon that plea the case was submitted to the Court for decision.
It is undeniable that the advertisement in question was a flagrant violation by the respondent of the ethics of his
profession, it being a brazen solicitation of business from the public. Section 25 of Rule 127 expressly provides
among other things that "the practice of soliciting cases at law for the purpose of gain, either personally or thru
paid agents or brokers, constitutes malpractice." It is highly unethical for an attorney to advertise his talents or
skill as a merchant advertises his wares. Law is a profession and not a trade. The lawyer degrades himself and
his profession who stoops to and adopts the practices of mercantilism by advertising his services or offering
them to the public. As a member of the bar, he defiles the temple of justice with mercenary activities as the
money-changers of old defiled the temple of Jehovah. "The most worth and effective advertisement possible,
even for a young lawyer, . . . is the establishment of a well-merited reputation for professional capacity and

fidelity to trust. This cannot be forced but must be the outcome of character and conduct." (Canon 27, Code of
Ethics.)
In In re Tagorda, 53 Phil., the respondent attorney was suspended from the practice of law for the period of one
month for advertising his services and soliciting work from the public by writing circular letters. That case,
however, was more serious than this because there the solicitations were repeatedly made and were more
elaborate and insistent.
Considering his plea for leniency and his promise not to repeat the misconduct, the Court is of the opinion and
so decided that the respondent should be, as he hereby is, reprimanded.
Yulo, C.J., Moran, Horrilleno, Paras and Bocobo, JJ., concur.
Adm. Case No. 2131 May 10, 1985
ADRIANO E. DACANAY, complainant
vs.
BAKER & MCKENZIE and JUAN G. COLLAS JR., LUIS MA. GUERRERO, VICENTE A. TORRES, RAFAEL
E. EVANGELISTA, JR., ROMEO L. SALONGA, JOSE R. SANDEJAS, LUCAS M. NUNAG, J. CLARO
TESORO, NATIVIDAD B. KWAN and JOSE A. CURAMMENG, JR., respondents.
Adriano E. Dacanay for and his own behalf.
Madrid, Cacho, Angeles, Dominguez & Pecson Law Office for respondents.

AQUINO, J.:
Lawyer Adriano E. Dacanay, admitted to the bar in 1954, in his 1980 verified complaint, sought to enjoin Juan
G. Collas, Jr. and nine other lawyers from practising law under the name of Baker & McKenzie, a law
firm organized in Illinois.
In a letter dated November 16, 1979 respondent Vicente A. Torres, using the letterhead of Baker & McKenzie,
which contains the names of the ten lawyers, asked Rosie Clurman for the release of 87 shares of
CathayProducts International, Inc. to H.E. Gabriel, a client.
Attorney Dacanay, in his reply dated December 7, 1979, denied any liability of Clurman to Gabriel. He
requested that he be informed whether the lawyer of Gabriel is Baker & McKenzie "and if not, what is your
purpose in using the letterhead of another law office." Not having received any reply, he filed the instant
complaint.
We hold that Baker & McKenzie, being an alien law firm, cannot practice law in the Philippines (Sec. 1, Rule
138, Rules of Court). As admitted by the respondents in their memorandum, Baker & McKenzie is a
professional partnership organized in 1949 in Chicago, Illinois with members and associates in 30 cities around
the world. Respondents, aside from being members of the Philippine bar, practising under the firm name of
Guerrero & Torres, are members or associates of Baker & Mckenzie.
As pointed out by the Solicitor General, respondents' use of the firm name Baker & McKenzie constitutes a
representation that being associated with the firm they could "render legal services of the highest quality to
multinational business enterprises and others engaged in foreign trade and investment" (p. 3, respondents'
memo). This is unethical because Baker & McKenzie is not authorized to practise law here. (See Ruben E.
Agpalo, Legal Ethics, 1983 Ed., p. 115.)
WHEREFORE, the respondents are enjoined from practising law under the firm name Baker & McKenzie.

SO ORDERED.
Teehankee, Acting CJ., Makasiar, Abad Santos, Melencio-Herrera, Escolin, Relova, Gutierrez, Jr., De la
Fuente, Cuevas and Alampay, JJ., concur.
Plana, J., took no part.
Fernando, C.J., and Concepcion, Jr., J., are on leave.
A.M. No. P-99-1292 February 26, 1999
JULIETA BORROMEO SAMONTE, complainant,
vs.
ATTY. ROLANDO R. GATDULA, Branch Clerk of Court, respondent.
RESOLUTION

GONZAGA-REYES, J.:
The complaint filed by Julieta Borremeo Samonte charges Rolando R. Gatdula, RTC, Branch 220, Quezon
Citywith grave misconduct consisting in the alleged engaging in the private practice of law which is in conflict
with his official functions as Branch Clerk of Court.
Complainant alleges that she is the authorized representative of her sister Flor Borromeo de Leon, the plaintiff,
in Civil Case No. 37-14552 for ejectment, filed with the Metropolitan Trial Court of Quezon City, Branch 37. A
typographical error was committed in the complaint which stated that the address of defendant is No. 63-C
instead of 63-B, P. Tuazon Blvd., Cubao, Quezon City. The mistake was rectified by the filing of an amended
complaint which was admitted by the Court. A decision was rendered in favor of the plaintiff who subsequently
filed a motion for execution. Complainant, however, was surprised to receive a temporary restraining
order signed by Judge Prudencio Castillo of Branch 220, RTC, Quezon City, where Atty. Rolando Gatdula is
the Branch Clerk Court, enjoining the execution of the decision of the Metropolitan Trial Court. Complainant
alleges that the issuance of the temporary restraining order was hasty and irregular as she was never notified
of the application for preliminary injunction.
Complainant further alleges that when she went to Branch 220, RTC, Quezon City, to inquire about the reason
for the issuance of the temporary restraining order, respondent Atty. Rolando Gatdula, blamed her lawyer for
writing the wrong address in the complaint for ejectment, and told her that if she wanted the execution to
proceed, she should change her lawyer and retain the law office of respondent, at the same time giving
his calling card with the name "Baligod, Gatdula, Tacardon, Dimailig and Celera" with office at Rm. 220
Mariwasa Bldg., 717 Aurora Blvd., Cubao, Quezon City; otherwise she will not be able to eject the defendant
Dave Knope. Complainant told respondent that she could not decide because she was only representing her
sister. To her consternation, the RTC Branch 220 issued an order granting the preliminary injunction as
threatened by the respondent despite the fact that the MTC, Brach 37 had issued an Order directing the
execution of the Decision in Civil Case No. 37-14552.
Asked to comment, respondent Atty. Gatdula recited the antecedents in the ejectment case and the issuance of
the restraining order by the Regional Trial Court, and claimed that contrary to complainant Samonte's allegation
that she was not notified of the raffle and the hearing, the Notice of Hearing on the motion for the issuance of a
Temporary Retraining Order was duly served upon the parties, and that the application for injunctive relief was
heard before the temporary restraining order was issued. The preliminary injunction was also set for hearing on
August 7, 1996.

The respondent's version of the incident is that sometime before the hearing of the motion for the issuance of
the temporary restraining order, complainant Samonte went to court "very mad" because of the issuance of the
order stopping the execution of the decision in the ejectment case. Respondent tried to calm her down, and
assured her that the restraining order was only temporary and that the application for preliminary injunction
would still be heard. Later the Regional Trial Court granted the application for a writ of preliminary injunction.
The complainant went back to court "fuming mad" because of the alleged unreasonableness of the court in
issuing the injunction.
Respondent Gatdula claims that thereafter complainant returned to his office, and informed him that she
wanted to change counsel and that a friend of hers recommended the Law Firm of "Baligod, Gatdula,
Tacardon, Dimailig and Celera," at the same time showing a calling card, and asking if he could handle her
case. Respondent refused as he was not connected with the law firm, although he was invited to join but he
choose to remain in the judiciary. Complainant returned to court a few days later and told him that if he cannot
convince the judge to recall the writ of preliminary injunction, she will file an administrative case against
respondent and the judge. The threat was repeated but the respondent refused to be pressured. Meanwhile,
the Complainant's Motion to Dissolve the Writ of Preliminary Injunction was denied. Respondent Gatdula
claims that the complainant must have filed this administrative charge because of her frustration in procuring
the ejectment of the defendant lessee from the premises. Respondent prays for the dismissal of the
complainant against him.
The case was referred to Executive Judge Estrella Estrada, RTC, Quezon City, for investigation, report and
recommendation.
In her report, Judge Estrada states that the case was set for hearing three times, on September 7, 1997, on
September 17, and on September 24, 1997, but neither complainant nor her counsel appeared, despite due
notice. The return of service of the Order setting the last hearing stated that complainant is still abroad. There
being no definite time conveyed to the court for the return of the complainant, the investigating Judge
proceeded with the investigation by "conducting searching question" upon respondent based on the allegations
in the complaint, and asked for the record of Civil Case No. Q-96-28187 for evaluation. The case was set for
hearing for the last time on October 22, 1997, to give complainant a last chance to appear, but there was again
no appearance despite notice.
The respondent testified in his own behalf to affirm the statements in his Comment, and submitted
documentary evidence consisting mainly of the pleadings in MTC Civil Case No. 37-14552, and in RTC Civil
Case No. Q-9628187 to show that the questioned orders of the court were not improperly issued.
The investigating judge made the following findings:
For failure of the complainant to appear at the several hearings despite notice, she failed to
substantiate her allegations in the complaint, particularly that herein respondent gave her his
calling card and tried to convince her to change her lawyer. This being the case, it cannot be
established with certainty that respondent indeed gave her his calling card even convinced
her to change her lawyer. Moreover, as borne by the records of the Civil Case No. Q-9628187, complainant was duly notified of all the proceedings leading to the issuance of the
TRO and the subsequent orders of Judge Prudencio Altre Castillo, Jr. of RTC, Branch 220.
Complainant's lack of interest in prosecuting this administrative case could be an indication
that her filing of the charge against the respondent is only intended to harass the respondent
for her failure to obtain a favorable decision from the Court.
However, based on the record of this administrative case, the calling card attached as Annex
"B" of the complainant's affidavit dated September 25, 1996 allegedly given by respondent to
complainant would show that the name of herein respondent was indeed include in the
BALIGOD, GATDULA, TACARDON, DIMAILIG & CELERA LAW OFFICES. While respondent
denied having assumed any position in said office, the fact remains that his name is included
therein which may therefore tend to show that he has dealings with said office. Thus, while he
may not be actually and directly employed with the firm, the fact that his name appears on the
calling card as partner in the Baligod, Gatdula, Tacardon, Dimailig & Celera Law Offices give

the impression that he is connected therein and may constitute an act of solicitation and
private practice which is declared unlawful under Republic Act. No. 6713. It is to be noted,
however, that complainant failed to establish by convincing evidence that respondent actually
offered to her the services of their law office. Thus, the violation committed by respondent in
having his name included/retained in the calling card may only be considered as a minor
infraction for which he must also be administratively sanctioned.
and recommended that Atty. Gatdula be admonished and censured for the minor infraction he has
committed.
Finding: We agree with the investigating judge that the respondent is guilty of an infraction. The complainant by
her failure to appear at the hearings, failed to substantiate her allegation that it was the respondent who gave
her calling card "Baligod, Gatdula, Tacardon, Dimailig and Celera Law Offices" and that he tried to convince
her to change counsels. We find however, that while the respondent vehemently denies the complainant's
allegations, he does not deny that his name appears on the calling card attached to the complaint, which
admittedly came into the hands of the complainant. The respondent testified before the Investigating Judge as
follows:
Q: How about your statement that you even gave her a calling card of the
"Baligod, Gatdula, Pardo, Dimailig and Celera law Offices at Room 220
Mariwasa building?
A: I vehemently deny the allegation of the complainant that I gave her a
calling card. I was surprised when she presented (it) to me during one of her
follow-ups of the case before the court. She told me that a friend of hers
recommended such firm and she found out that my name is included in that
firm. I told her that I have not assumed any position in the law firm. And I am
with the Judiciary since I passed the bar. It is impossible for me to enter an
appearance as her counsel in the very same court where I am the Branch
Clerk of Court.
The above explanation tendered by the Respondent is an admission that it is his name appears on the
calling card, a permissible form of advertising or solicitation of legal services. 1 Respondent does not

claim that the calling card was printed without his knowledge or consent, and the calling
card 2 carries his name primarily and the name "Baligod, Gatdula, Tacardon, Dimailig and Celera
with address at 220 Mariwasa Bldg., 717 Aurora Blvd., Cubao, Quezon City" in the left corner.
The card clearly gives the impression that he is connected with the said law firm. The
inclusion/retention of his name in the professional card constitutes an act of solicitation which
violates Section 7 sub-par. (b)(2) of Republic Act No. 6713, otherwise known as "Code of
Conduct and Ethical Standards for the Public Officials and Employees" which declares it unlawful
for a public official or employee to, among others:
(2) Engage in the private practice of their profession unless
authorized by the Constitution or law, provided that such
practice will not conflict or tend to conflict with official
functions.
Time and again this Court has said that the conduct and behavior of every one connected with an office
charged with the dispensation of justice, from the presiding judge to the lowliest clerk, should be circumscribed
with the heavy burden of responsibility. His conduct, at all times must only be characterized by propriety and
decorum but above all else must be above suspicion. 3
WHEREFORE, respondent Rolando R. Gatdula. Branch Clerk of Court, RTC, Branch 220, Quezon City is
hereby reprimanded for engaging in the private practice of law with the warning that a repetition of the same
offense will be dealt with more severely. He is further ordered to cause the exclusion of his name in the firm
name of any office engaged in the private practice of law.

SO ORDERED.
Romero, Vitug, Panganiban and Purisima, JJ., concur.
A.C. No. 3944

July 27, 2007

LEA P. PAYOD, Petitioner,

vs.
ATTY. ROMEO P. METILA, Respondent.
RESOLUTION
CARPIO MORALES, J.:
Lea P. Payod (Lea) charges Atty. Romeo P. Metila (respondent) with "willful neglect and gross misconduct" in
connection with this Courts dismissal of her petition in G.R. No. 102764, "Lea P. Payod v. Court of Appeals,"
by Resolution dated February 3, 1992, reading:
Acting on the pleadings filed in this case, the Court resolved: to DENY: (a) petitioners second motion for
extension of time to file petition for review on certiorari, as petitioners first motion for extension was denied in
the resolution of December 16, 1991 for failure to comply with the requirement of No. two (2) of Revised
Circular 1-88. Moreover, the said second motion for extension still fails to comply with the same requirement of
Revised Circular 1-88, and (b) the petition itself, for having been filed late and for failure to comply with
requirement No. four (4) of Revised Circular 1-88, and for failure to submit the certification required under
Circular 28-91 on forum shopping.1
Petitioner submits that:
It is difficult to believe that practicing lawyers cannot submit very important documents considered regular
pieces of information in their practice of law leading to default with serious consequences prejudicial to the
client if the said counsel is not ill motivated or not due to gross misconduct and willful negligence inimical to the
best interest of the client.
Together with my mother Mrs. Restituta Pelio and my sister Mrs. Portia P. Velasco, I have found difficulty
making follow-up with Atty. Romeo P. Metila for him to comply with the submission of required documents to
the Supreme Court because of his unreasonable excuses for non-performance despite our persistent followups, payments of expenses and attorneys fees, and willingness to supply him with materials and needed facts.
More often, we got lame excuse[s] and had his no-shows in appointed meetings at the Supreme Court.2
Respondent denies the charges and gives his side of the case as follows:
The case was referred to him by Leas mother on November 29, 1991, six days before the period to perfect an
appeal to this Court expired, without supplying him with any document bearing on the case other than the Court
of Appeals resolution denying Leas motion for reconsideration.3
He thus told Leas mother that he would only file a motion to stay the running of the prescriptive period of
appeal and advised her to look for another lawyer who could assist her in getting the complete certified records
of the case from the Court of Appeals and in filing a petition for review with this Court.
Neither Lea nor her mother communicated with him, however, until January 21, 1992, forcing him to finance
and defray all the expenses for the initiation of the appeal.
He concludes there was no attorney-client relationship between him and Lea, there being no Special Power of
Attorney authorizing her mother to hire him as a lawyer in her behalf.4

After investigation, the Integrated Bar of the Philippines (IBP) Committee on Bar Discipline, to which the
complaint was referred, found respondent guilty of simple negligence and recommended that he be seriously
admonished and required to undergo three units of Mandatory Continuing Legal Education in Remedial law for
his failure to update himself with the developments in the legal profession and for the cavalier manner by which
he denied the existence of an attorney-client relationship when one in fact existed.5
The IBP Board of Directors adopted the Report and Recommendation of the Investigating Commissioner that
respondent be seriously admonished.
This Court upholds the finding and recommendation of the IBP.
In failing to comply with the requirements in initiating complainants appeal before this Court in G.R. No.
102764 even after his attention to it was called by this Court, respondent fell short of the standards required in
the

Canon
of Professional Responsibility for a lawyer to "keep abreast of legal developments"6 and "serve
his client with competence and diligence."7
That Leas mother did not have a Special Power of Attorney to hire respondent on Leas behalf is immaterial,
given that he actually initiated the appeal, albeit unsuccessfully.
It need not be underlined that a lawyer who accepts a case must give it his full attention, diligence, skill, and
competence,8 and his negligence in connection therewith renders him liable.9
The circumstances attendant to respondents initial handle of Leas case do not warrant a finding of gross
negligence, or sheer absence of real effort on his part to defend her cause.10
1avvphi1

Respondent accepted Leas case upon her mothers insistence, with only six days for him to file a petition for
review before this Court, and without her furnishing him with complete records, not to mention money, for the
reproduction of the needed documents. Despite these constraints, respondent exerted efforts, albeit lacking in
care, to defend his clients cause by filing two motions for extension of time to file petition. And he in fact filed
the petition within the time he requested,11 thus complying with the guideline of this Court that lawyers should at
least file their pleadings within the extended period requested should their motions for extension of time to file a
pleading be unacted upon.12
Neither do the circumstances warrant a finding that respondent was motivated by ill-will. In the absence of
proof to the contrary, a lawyer enjoys a presumption of good faith in his favor.13
WHEREFORE, respondent, Atty. Romeo Metila, is SERIOUSLY ADMONISHED with WARNING that similar
charges will be severely dealt with.
SO ORDERED.
Adm. Case No. 4680

August 29, 2000

AQUILINO Q. PIMENTEL, JR., complainant,

vs.
ATTYS. ANTONIO M. LLORENTE and LIGAYA P. SALAYON, respondents.
MENDOZA, J.:
This is a complaint for disbarment against respondents Antonio M. Llorente and Ligaya P. Salayon for gross
misconduct, serious breach of trust, and violation of the lawyer's oath in connection with the discharge of their

duties as members of the Pasig City Board of Canvassers in the May 8, 1995 elections. Salayon, then election
officer of the Commission on Elections (COMELEC), was designated chairman of said Board, while Llorente,
who was then City Prosecutor of Pasig City, served as its ex oficio vice-chairman as provided by
law.1 Complainant, now a senator, was also a candidate for the Senate in that election.
Complainant alleges that, in violation of R.A. No. 6646, 27(b),2 respondents tampered with the votes received
by him, with the result that, as shown in the Statements of Votes (SoVs) and Certificate of Canvass (CoC)
pertaining to 1,263 precincts of Pasig City, (1) senatorial candidates Juan Ponce Enrile, Anna Dominique
Coseteng, Gregorio Honasan, Marcelo Fernan, Ramon Mitra, and Rodolfo Biazon were credited with votes
which were above the number of votes they actually received while, on the other hand, petitioner's votes were
reduced; (2) in 101 precincts, Enrile's votes were in excess of the total number of voters who actually voted
therein; and (3) the votes from 22 precincts were twice recorded in 18 SoVs. Complainant maintains that, by
signing the SoVs and CoC despite respondents' knowledge that some of the entries therein were false, the
latter committed a serious breach of public trust and of their lawyers' oath.
Respondents denied the allegations against them. They alleged that the preparation of the SoVs was made by
the 12 canvassing committees which the Board had constituted to assist in the canvassing. They claimed that
the errors pointed out by complainant could be attributed to honest mistake, oversight, and/or fatigue.
In his Consolidated Reply, complainant counters that respondents should be held responsible for the illegal
padding of the votes considering the nature and extent of the irregularities and the fact that the canvassing of
the election returns was done under their control and supervision.
On December 4, 1998, the Integrated Bar of the Philippines, to which this matter had been referred pursuant to
Rule 139-B, 13, in relation to 20 of the Rules of Court, recommended the dismissal of the complaint for lack
of merit.3 Petitioner filed a motion for reconsideration on March 11, 1999, but his motion was denied in a
resolution of the IBP Board of Governors dated April 22, 1999. On June 4, 1999, he filed this petition pursuant
to Rule 139-B, 12(c).
It appears that complainant likewise filed criminal charges against respondents before the COMELEC (E.O.
Case No. 96-1132) for violation of R.A. No. 6646, 27(b). In its resolution dated January 8, 1998, the
COMELEC dismissed complainant's charges for insufficiency of evidence. However, on a petition for certiorari
filed by complainant,4 this Court set aside the resolution and directed the COMELEC to file appropriate criminal
charges against respondents. Reconsideration was denied on August 15, 2000.
Considering the foregoing facts, we hold that respondents are guilty of misconduct.
First. Respondent Llorente seeks the dismissal of the present petition on the ground that it was filed late. He
contends that a motion for reconsideration is a prohibited pleading under Rule 139-B, 12(c)5 and, therefore,
the filing of such motion before the IBP Board of Governors did not toll the running of the period of appeal.
Respondent further contends that, assuming such motion can be filed, petitioner nevertheless failed to indicate
the date of his receipt of the April 22, 1999 resolution of the IBP denying his motion for reconsideration so that
it cannot be ascertained whether his petition was filed within the 15-day period under Rule 139-B, 12(c).
The contention has no merit. The question of whether a motion for reconsideration is a prohibited pleading or
not under Rule 139-B, 12(c) has been settled in Halimao v. Villanueva,6 in which this Court held:
Although Rule 139-B, 12(C) makes no mention of a motion for reconsideration, nothing in its text or in
its history suggests that such motion is prohibited. It may therefore be filed within 15 days from notice
to a party. Indeed, the filing of such motion should be encouraged before resort is made to this Court
as a matter of exhaustion of administrative remedies, to afford the agency rendering the judgment an
opportunity to correct any error it may have committed through a misapprehension of facts or
misappreciation of the evidenced.7
On the question whether petitioner's present petition was filed within the 15-day period provided under Rule
139-B, 12(c), although the records show that it was filed on June 4, 1999, respondent has not shown when

petitioner received a copy of the resolution of the IBP Board of Governors denying his motion for
reconsideration. It would appear, however, that the petition was filed on time because a copy of the resolution
personally served on the Office of the Bar Confidant of this Court was received by it on May 18, 1999. Since
copies of IBP resolutions are sent to the parties by mail, it is possible that the copy sent to petitioner was
received by him later than May 18, 1999. Hence, it may be assumed that his present petition was filed within 15
days from his receipt of the IBP resolution. In any event, the burden was on respondent, as the moving party, to
show that the petition in this case was filed beyond the 15-day period for filing it.
Even assuming that petitioner received the IBP resolution in question on May 18, 1999, i.e., on the same date a
copy of the same was received by the Office of the Bar Confidant, the delay would only be two days.8 The
delay may be overlooked, considering the merit of this case. Disbarment proceedings are undertaken solely for
public welfare. The sole question for determination is whether a member of the bar is fit to be allowed the
privileges as such or not. The complainant or the person who called the attention of the Court to the attorney's
alleged misconduct is in no sense a party, and generally has no interest in the outcome except as all good
citizens may have in the proper administration of justice.9 For this reason, laws dealing with double
jeopardy10 or prescription11 or with procedure like verification of pleadings12 and prejudicial questions13 have no
application to disbarment proceedings.
Even in ordinary civil actions, the period for perfecting appeals is relaxed in the interest of justice and equity
where the appealed case is clearly meritorious. Thus, we have given due course to appeals even though filed
six,14 four,15 and three16 days late. In this case, the petition is clearly meritorious.
Second. The IBP recommends the dismissal of petitioner's complaint on the basis of the following: (1)
respondents had no involvement in the tabulation of the election returns, because when the Statements of
Votes (SoVs) were given to them, such had already been accomplished and only needed their respective
signatures; (2) the canvassing was done in the presence of watchers, representatives of the political parties,
the media, and the general public so that respondents would not have risked the commission of any irregularity;
and (3) the acts dealt with in R.A. No. 6646, 27(b) are mala in se and not mala prohibita, and petitioner failed
to establish criminal intent on the part of respondents.17
The recommendation is unacceptable. In disciplinary proceedings against members of the bar, only clear
preponderance of evidence is required to establish liability.18 As long as the evidence presented by complainant
or that taken judicial notice of by the Court1 9 is more convincing and worthy of belief than that which is offered
in opposition thereto,20 the imposition of disciplinary sanction is justified..
In this case, respondents do not dispute the fact that massive irregularities attended the canvassing of the
Pasig City election returns. The only explanation they could offer for such irregularities is that the same could
be due to honest mistake, human error, and/or fatigue on the part of the members of the canvassing
committees who prepared the SoVs.
This is the same allegation made in Pimentel v. Commission on Elections.21 In rejecting this allegation and
ordering respondents prosecuted for violation of R.A. No. 6646, 27(b), this Court said:
There is a limit, we believe, to what can be construed as an honest mistake or oversight due to fatigue,
in the performance of official duty. The sheer magnitude of she error, not only in the total number of
votes garnered by the aforementioned candidates as reflected in the CoC and the SoVs, which did not
tally with that reflected in the election returns, but also in the total number of votes credited for
senatorial candidate Enrile which exceeded the total number of voters who actually voted in those
precincts during the May 8, 1995 elections, renders the defense of honest mistake or oversight due to
fatigue, as incredible and simply unacceptable.22
Indeed, what is involved here is not just a case of mathematical error in the tabulation of votes per precinct as
reflected in the election returns and the subsequent entry of the erroneous figures in one or two SoVs 23 but a
systematic scheme to pad the votes of certain senatorial candidates at the expense of petitioner in complete
disregard of the tabulation in the election returns. A cursory look at the evidence submitted by petitioner reveals
that, in at least 24 SoVs involving 101 precincts, the votes for candidate Enrile exceeded the number of voters
who actually voted in the said precincts and, in 18 SoVs, returns from 22 precincts were-tabulated twice. In

addition, as the Court noted in Pimentel, the total number of votes credited to each of the seven senatorial
candidates in question, as reflected in the CoC, markedly differ from those indicated in the SoVs. 24
Despite the fact that these discrepancies, especially the double recording of the returns from 22 precincts and
the variation in the tabulation of votes as reflected in the SoVs and CoC, were apparent on the face of these
documents and that the variation involves substantial number of votes, respondents nevertheless certified the
SoVs as true and correct. Their acts constitute misconduct.
Respondent Llorente's contention that he merely certified the genuineness and due execution of the SoVs but
not their correctness is belied by the certification which reads:
WE HEREBY CERTIFY that the foregoing Statement of Votes by . . . [p]recinct is true and correct. IN
WITNESS WHEREOF, we sign these presents at the City/Municipality of ___________ Province of
________ this _______ day of May, 1995. (Emphasis added)
Nor does the fact that the canvassing was open to the public and observed by numerous individuals preclude
the commission of acts for which respondents are liable. The fact is that only they had access to the SoVs and
CoC and thus had the opportunity to compare them and detect the discrepancies therein.
Now, a lawyer who holds a government position may not be disciplined as a member of the bar for misconduct
in the discharge of his duties as a government official.25 However, if the misconduct also constitutes a violation
of the Code of Professional Responsibility or the lawyer's oath or is of such character as to affect his
qualification as a lawyer or shows moral delinquency on his part, such individual may be disciplined as a
member of the bar for such misconduct.26
Here, by certifying as true and correct the SoVs in question, respondents committed a breach of Rule 1.01 of
the Code which stipulates that a lawyer shall not engage in "unlawful, dishonest, immoral or deceitful conduct."
By express provision of

Canon
6, this is made applicable to lawyers in the government service. In addition, they likewise
violated their oath of office as lawyers to "do no falsehood."
Nowhere is the-need for lawyers to observe honesty both in their private and in their public dealings better
expressed in Sabayle v. Tandayag27 in which this Court said:
There is a strong public interest involved in requiring lawyers to behave at all times in a manner
consistent with truth and honor it is important that the common caricature that lawyers by and large do
not feel compelled to speak the truth and to act honestly, should not become a common reality . . . 28
It may be added that, as lawyers in the government service, respondents were under greater obligation to
observe this basic tenet of the profession because a public office is a public trust.
Third. Respondents' participation in the irregularities herein reflects on the legal profession, in general, and on
lawyers in government in particular. Such conduct in the performance of their official duties, involving no less
than the ascertainment of the popular will as expressed through the ballot, would have merited for them
suspension were it not for the fact that this is their first administrative transgression and, in the case of Salayon,
after a long public service.29 Under the circumstances, a penalty of fine in the amount of P10,000.00 for each of
the respondents should be sufficient.
WHEREFORE, the Court finds respondents Antonio M. Llorente and Ligaya P. Salayon GUILTY of misconduct
and imposes on each of them a FINE in the amount of P10,000.00 with a WARNING that commission of similar
acts will be dealt with more severely.
1wphi1.nt

SO ORDERED.
Bellosillo, Quisumbing, Buena and De Leon, Jr., JJ ., concur.
A.C. No. 5119

April 17, 2013

ROSARIO BERENGUER-LANDERS and PABLO BERENGUER, Complainants,

vs.
ATTY. ISABEL E. FLORIN, ATTY. MARCELINO JORNALES and ATTY. PEDRO VEGA, Respondents.
DECISION
REYES, J.:
This is a complaint1 for disbarment filed by Rosario Berenguer-Landers and Pablo Berenguer (complainants)
against herein respondents Isabel E. Florin (Florin), Marcelino Jomales (Jomales) and Pedro Vega (Vega).
The factual antecedents are as follows:
Remedios Berenguer-Lintag, Carlo Berenguer and Belinda Berenguer-Aguirre, Rosario Berenguer-Landers
and Pablo Berenguer (Berenguers) are the registered owners of a 58.0649-hectare land in Bibingcahan,
Sorsogon, Sorsogon. Sometime in April 1998, a notice of coverage was issued by the Department of Agrarian
Reform (DAR) regarding the acquisition of their landholding pursuant to Republic Act No. 6657 or the
Comprehensive Agrarian Reform Program (CARP). The Berenguers protested and applied for the exclusion of
their land with the DAR and for a notice to lift coverage based on the ground that their landholdings have been
used exclusively for livestock pursuant to DAR Administrative Order No. 09.2
On October and November 1998, the DAR Secretary, without acting on the application for exclusion, cancelled
the Berenguers certificates of title on the land and issued Certificates of Land Ownership Award3 (CLOAs) in
favor of the members of the Baribag Agrarian Reform Beneficiaries Development Cooperative (BARIBAG).
Eventually, DAR Regional Director Percival Dalugdug (Dalugdug) denied their application for exclusion from
the CARPs coverage in the Order4 dated February 15, 1999 based on the Investigation Report dated February
9, 1999 submitted by the DAR Region V Investigation that said area sought to be excluded is principally
devoted to coconuts and not the raising of livestock.5
Aggrieved, the Berenguers filed a notice of appeal6 with the Secretary of DAR.
While the case was pending appeal, BARIBAG filed a petition7 for the implementation of the Order dated
February 15, 1999 before the Regional Agrarian Reform Adjudicator (RARAD). This was granted by Florin, as
RARAD, in an Order8 dated March 15, 1999. Accordingly, Florin directed the issuance and implementation of
the Writ of Possession.9
On March 19, 1999, the Berenguers filed a motion for reconsideration,10 claiming that they were denied due
process as they were not furnished with a copy of BARIBAGs petition for implementation. Florin denied the
motion for reconsideration for lack of merit in an Order11 dated March 22, 1999.
On March 25, 1999, the Berenguers appealed12 to the DAR Adjudication Board (DARAB). BARIBAG, on other
hand, filed a Motion for the Issuance of a Writ of Possession.13 The Berenguers opposed14 the motion saying
that the execution would be premature in view of their pending appeal before the DARAB. Nevertheless,
BARIBAG still filed a Motion for the Appointment of a Special Sheriff.15
In his Order16 dated April 6, 1999, DAR Acting Secretary Conrado S. Navarro denied the Berenguers appeal.

On April 8, 1999, Florin issued a Resolution,17 which granted BARIBAGs Motion for the Appointment of a
Special Sheriff and ordered the issuance of the writ of possession prayed for.
On April 13, 1999, the Berenguers filed a motion to set aside18 the Resolution dated April 8, 1999, arguing that:
the DARAB already acquired jurisdiction over case when they seasonably filed an appeal before it; and that
Florin should have waited until the DARAB has decided the appeal. In an Order19 dated April 21, 1999, Florin
denied the said motion prompting the Berenguers to move for her inhibition20 on ground of partiality.
The Berenguers elevated the matter via petition for certiorari to the Court of Appeals (CA), docketed as CAG.R. SP No. 51858, which was denied outright on procedural grounds, to wit: (1) copy of the assailed order
bears the words "certified true copy" but the name and authority of the person certifying is not indicated as
required in SC Circular No. 3-96, and the signature therein is illegible; (2) only one of the petitioners signed the
certification on non-forum shopping which is an insufficient compliance of Section 1, Rule 65 of the 1997 Rules
of Court; and (3) there is non-exhaustion of administrative remedies as the assailed order of the Regional
Director is not directly reviewable by the CA.21
Undaunted, the Berenguers filed a second petition for certiorari with the CA, docketed as CA-G.R. SP No.
53174, which questioned the Orders dated March 15, 1999 and March 22, 1999 issued by Florin. The petition
was also denied on grounds of lack of jurisdiction and wrong mode of appeal.22
Thus, Florin issued on April 21, 1999 a Writ of Possession23 in favor of BARIBAG.
Florin subsequently directed the full implementation of the writ of possession pursuant to Rule 71 of the Rules
of Court in spite of the Berenguers protestations.24
On June 3, 1999, the Berenguers moved to quash25 the Writ of Possession, to no avail.
On August 4, 1999, the complainants filed the instant Complaint26 for the disbarment of respondents Florin,
Jornales, in his capacity as Assistant Regional Director for DAR, and Vega, in his capacity as DAR Legal
Officer V, for allegedly conspiring and confederating in the commission of the following acts:
A. ATTY. ISABEL E. FLORIN AS REGIONAL ADJUDICATOR KNOWINGLY RENDERING AN
UNJUST JUDGEMENT, ORDERS AND RESOLUTIONS ADVERSE AND PREJUDICIAL TO THE
INTEREST OF PETITIONERS;
B. ISSUING AN ORDER AND GRANTING A WRIT OF EXECUTION EX-PARTE AND
SUBSEQUENTLY ISSUING AND SIGNING THE WRIT OF POSSESSION WITHOUT
CERTIFICATION OF FINALITY ISSUED BY THE PROPER OFFICER FULLY KNOWING THAT SHE
HAS NO AUTHORITY AND TOTALLY DISREGARDING THE APPLICABLE RULES AND IN
CONTRAVENTION WITH THE NEW RULES OF PROCEDURE OF THE DEPARTMENT OF
AGRARIAN REFORM ADJUDICATION BOARD; FURTHER, HIDING THE WRIT OF POSSESSION
FROM PETITIONERS INSPITE OF REQUEST FOR A COPY;
C. REFUSING TO TAKE ACTION ON PLEADINGS FILED BY PETITIONERS THRU COUNSEL AND
FAILING AND REFUSING TO CONDUCT A HEARING AS PRAYED FOR BY COUNSEL; FAILING
AND REFUSING TO FORWARD THE APPEAL TO THE PROPER APPELLATE BOARD;
D. UNWARRANTED INTERFERENCE IN LAWYER-CLIENT RELATIONSHIPS TO THE PREJUDICE
OF PETITIONERS AND LAWYER; ABUSE OF AUTHORITY TO CITE COUNSEL FOR PETITIONER
IN CONTEMPT AND ISSUING AN ORDER OF ARREST WITHOUT HEARING CONTRARY TO THE
RULES OF COURT;
E. ATTY. MARCELINO JORNALES AND ATTY. PEDRO VEGA, INSPITE OF THEIR KNOWLEDGE
OF THE ILLEGALITY OF THE WRIT OF POSSESSION, PERSISTED AND ASSISTED IN THE

ILLEGAL IMPLEMENTATION OF THE WRIT OF POSSESSION TO THE PREJUDICE OF

LEGITIMATE FARMERS AND PETITIONERS.27
Florin filed her Comment28 stating, among others, that: (1) the writ of possession is anchored on the CLOAs
issued by the Register of Deeds, and not on a final and executory decision that would require a certification of
finality as prescribed by the DARAB rules; (2) Atty. Federico De Jesus (De Jesus), as Berenguers counsel,
was not furnished with a copy of the writ because it was not yet issued at the time when it was requested; (3)
there was no intent to hide the writ; (4) when the writ of possession was finally signed, it was delivered to the
sheriff for service and enforcement; (4) it was unfair to impute illegal acts against Vega and Jornales as DAR
lawyers in view of the DARs denial of the motion for a cease and desist order and because of the legal
presumption of regularity in the performance of their duty; (5) the petitions for certiorari filed with the CA were
both dismissed; and (6) the findings of DAR and the issuance of the CLOAs remain undisturbed. Florin also
claimed that it is Atty. De Jesus who wants her disbarred and not the Berenguers.
In a separate Comment,29 Vega denied the allegations against him arguing that: (1) the writ of possession is
not illegal in the absence of a court order stating its invalidity; (2) he did not participate in the issuance of the
writ of possession because he did not appear as the farmers counsel; (3) the Legal Division he heads has no
control or influence over the DARAB; and (4) his presence in the execution of the writ of possession was to
ascertain that no violations against any law are committed by the person/s executing the writ.30
Jornales Comment,31 for his part, stated that: (1) the writ has no prima facie infirmity; (2) he is not privy to the
issuance thereof; (3) he has no supervision and control over the DAR which issued the writ; and (4) he has no
authority to determine the writs validity or invalidity. Jornales admitted, however, that he was in the meeting
presided by the PNP Provincial Director of Sorsogon prior to the writs implementation in his capacity as
Regional Assistant Director for Operations of DAR Region V and not as a lawyer. He added that the disbarment
complaint against him is not only malicious for lack of legal basis but is also meant to harass and intimidate
DAR employees in implementing the CARP.32
After the complainants filed their Consolidated Reply,33 the case was referred to the Integrated Bar of the
Philippines (IBP) for investigation, report and recommendation.
IBP Commissioner Milagros San Juan (Commissioner San Juan) Recommended34 that Florin be "suspended
from the practice of law for three (3) years for knowingly rendering an unjust judgment, Orders and Resolutions
adverse and prejudicial to the interests of the Complainants."
Commissioner San Juan, meanwhile, recommended that the charges against Jornales and Vega be dismissed
for failure of the complainants to substantiate the charges against them.35
Commissioner San Juans recommendation against Florin is based on the findings36 of the CA in its Decision
dated December 26, 2000 in CA-G.R. SP No. 53174,37 which reads:
The Petition for Certiorari filed by the complainants before the Court of Appeals was treated as a petition for
review and the court found the following errors:
"1) Respondent DAR Secretary has no jurisdiction over the subject properties being devoted to pasture and
livestock and already classified as residential and industrial land, hence, outside the coverage of Republic Act
6657. (Comprehensive Agrarian Reform Law) The generation and issuance of Certificate of Landownership
Award (CLOA) was therefore void;"
2) Being outside the coverage of CARL (Republic Act 6657), respondent Hon. Isabel E. Florin who is exercising
delegated jurisdiction from the DARAB has no jurisdiction over Petitioners Properties as held in Krus na Ligas
Farmers Coop vs. University of the Philippines; G.R. No. 107022, 8 December 1992, which is squarely in point
with the case at bar."

Anent the issue regarding the qualified beneficiaries of the subject land, the Court ruled thus "Assuming that
the lands are indeed agricultural, we cannot understand why the DAR awarded them to members of
respondent Baribag and not to the farmers in the area, in violation of Sec. 22 of the CARL x x x."
The court further stated "We cannot xxx close this discussion without mentioning our observation on the
actuations of Regional Agrarian Reform Adjudicator Isabel Florin. Just why she issued a writ of execution and
eventually a Writ of Possession in favor of respondent Baribag puzzles us no end. She knew that Baribag is not
a party in petitioners application for exclusion filed with the Office of DAR Regional Director Percival Dalugdug.
Obviously, she never acquired jurisdiction over Baribag. She also knew that petitioners appealed to the DAR
Secretary from the Order of Regional Director Dalugdug dismissing petitioners application for exclusion.
Clearly, such order was not yet final and executory when she issued the assailed writs of execution and
possession. Thus, the writ are [sic] void and would be set aside."38
On May 26, 2006, the IBP Board of Governors adopted Resolution No. XVII-2006-282 modifying the
recommended penalty, viz:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the
Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part
of this Resolution as Annex "A"; and, finding the recommendation fully supported by the evidence on record
and the applicable laws and rules, and for knowingly rendering an unjust Judgment, Orders and Resolutions,
adverse and prejudicial to the interest of the complainants, Atty. Isabel F. Florin is hereby SUSPENDED from
the practice of law for one (1) year. The charges against Atty. Marcelino Jornales and Atty. Peter Vega are
DISMISSED for failure of the complainants to substantiate the charges against Respondents. 39
In her opposition,40 Florin averred that: (1) jurisdiction was acquired over BARIBAG at the time it filed a petition
for the implementation of the Order dated February 15, 1999; (2) the DARAB has jurisdiction to issue the
CLOAs; (3) as RARAD, she has concurrent jurisdiction with DARAB; (4) the Berenguers were not denied due
process; and (5) the Berenguers never questioned the regularity of the DARs acquisition of their landholding
nor did they file a petition for the cancellation of the CLOAs issued to BARIBAG.
This Court agrees with the findings of the IBP Board of Governors but modifies the penalty to be imposed.
Rule 138, Section 27 of the Rules of Court provides:
SEC. 27. Disbarment or suspension of attorneys by Supreme Court, grounds therefore.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 the admission to
practice, or for a wilful disobedience appearing as an attorney for a party without authority so to do. x x x.
In Lahm III v. Mayor, Jr.,41 the Court ruled that:
A lawyer may be suspended or disbarred for any misconduct showing any fault or deficiency in his moral
character, honesty, probity or good demeanor. Gross misconduct is any inexcusable, shameful or flagrant
unlawful conduct on the part of a person concerned with the administration of justice; i.e., conduct prejudicial to
the rights of the parties or to the right determination of the cause. The motive behind this conduct is generally a
premeditated, obstinate or intentional purpose.42 (Citations omitted)
In the instant case, the Berenguers want this Court to impose disciplinary sanction against the three (3)
respondents as members of the bar. The grounds asserted by the complainants in support of the charges
against the respondents, however, are intrinsically connected with the discharge of their quasi-judicial
functions. Nevertheless, in Atty. Vitriolo v. Atty. Dasig,43 the Court already ruled that if a misconduct as a
government official also constitutes a violation of his oath as a lawyer, then a lawyer may be disciplined by this
Court as a member of the Bar, viz:

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. 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.
xxxx
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
644 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.
x x x 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.45 (Citations omitted and emphasis ours)
1wphi 1

Thus, in Tadlip v. Atty. Borres, Jr.,46 the Court ruled that an administrative case against a lawyer for acts
committed in his capacity as provincial adjudicator of the DARAB may be likened to administrative cases
against judges considering that he is part of the quasi-judicial system of our government.47
Similarly in this case, Florin, being part of the quasi-judicial system of our government, performs official
functions of a RARAD that are akin to those of judges. Accordingly, the present controversy may be likened
that of a judge whose decision, including the manner of rendition, is made subject of an administrative
complaint.
Going now to the acts complained of, Section 29 of DAR Administrative Order No. 06-00 provides:
SEC. 29. Effect of Appeal.Appeal to the Secretary, the Office of the President, or the Court of Appeals shall
have the following effects:
(a) Appeal from the Regional Director or Undersecretary to the Secretary.The appeal shall stay the order
appealed from unless the Secretary directs execution pending appeal, as he may deem just, considering the
nature and circumstances of the case (Executive Order No. 292 [1987], Book VII, Chapter 4, Sec. 21).
xxxx
Based on the foregoing provision, the appeal of the Berenguers to the DAR Secretary clearly stayed the
implementation of Regional Director Dalugdugs Order dated February 15, 1999. Moreover, it is the DAR
Secretary who has jurisdiction to order execution pending appeal. Records reveal that there was no order by
the DAR Secretary directing execution of the Order dated February 15, 1999 during the pendency of the
Berenguers appeal.
Corollarily, Rule 39 of the 1997 Rules of Court provides for the instances when execution may be had, namely:
(1) after a decision or order has become final and executory;48 (2) pending appeal, only upon good reasons to
be stated in a special order after due hearing;49 and (3) execution of several, separate or partial judgments.50
Moreover, Rule XX of the 2009 Rules of the DARAB reads:

Sec. 1. Execution Upon Final Order or Decision.Execution shall issue upon an order, resolution or decision
that finally disposes of the action or proceeding. Such execution shall issue as a matter of course and upon the
expiration of the period to appeal therefrom if no appeal has been duly perfected.
The Adjudicator concerned may, upon certification by the proper officer that a resolution, order or decision has
been served to the counsel or representative on record and to the party himself, and has become final and
executory, and, upon motion or motu proprio, issue a writ of execution ordering the DAR Sheriff or any DAR
officer to enforce the same. In appropriate cases, the Board or any of its Members or its Adjudicator shall
deputize and direct the Philippine National Police, Armed Forces of the Philippines or any of their component
units or other law enforcement agencies in the enforcement of any final order, resolution or decision.
Sec. 2. Execution Pending Appeal. Any motion for execution of the decision of the Adjudicator pending
appeal shall be filed before the Board which may grant the same upon meritorious grounds, upon the posting of
a sufficient bond in the amount conditioned for the payment of damages which the aggrieved party may suffer,
in the event that the final order or decision is reversed on appeal, provided that the bond requirement shall not
apply if the movant is a farmer-beneficiary/pauper litigant. (Emphasis ours)
In this case, the Order dated February 15, 1999 of DAR Regional Director Dalugdug denying the Berenguers
application for exclusion from CARP is yet to become final and executory as it was seasonably appealed to the
DAR Secretary. There is also nothing in the records that will show whether BARIBAG posted a bond pursuant
to the Rules.
While a judge may not be disciplined for error of judgment absent proof that such error was made with a
conscious and deliberate intent to cause an injustice,51 the facts on hand prove otherwise. Florins issuance of
the writ of execution and writ of possession in order to fully implement Regional Director Dalugdugs Order
dated February 15, 1999 clearly constitutes ignorance of the law for as a rule, a writ of execution is issued only
after the subject judgment or order has already become final and executory.52 As aptly stated by IBP
Commissioner San Juan, Florin ordered the issuance of such writs despite the pendency of the appeal with the
DARAB.53Consequently, the Court finds merit in the recommendation of suspension.
As to the penalty
Judicial errors tainted with fraud, dishonesty, gross ignorance, bad faith or deliberate intent to do injustice will
be administratively sanctioned.54 In this case, it appears, however, that this is the first time that Florin has been
made administratively liable. Although there is no showing that malice or bad faith attended the commission of
the acts complained of, the same does not negate the fact that Florin executed an act that would cause an
injustice to the Berenguers. To our mind, the act of issuing the writ of execution and writ of possession is not
simply an honest error in judgment but an obstinate disregard of the applicable laws and jurisprudence.
With all these, the Court deems it reasonable to reconsider the penalty recommended and instead impose the
penalty of suspension for three (3) months55 without pay. As also held in Rallos v. Judge Gako, Jr.,56 three (3)
months suspension without pay was imposed against a judge after finding out that the ignorance of the law he
committed was not tainted with bad faith.
With respect to the complaint against Jornales and Vega, the Court agrees and adopts the finding of the IBP
that no sufficient evidence was adduced to substantiate the charges against them. Hence, the complaint
against them should be dismissed.
WHEREFORE, in view of the foregoing, respondent ATTY. ISABEL E. FLORIN is found guilty of violating the
Code of Professional Responsibility. Accordingly, she is penalized with SUSPENSION from the practice of law
for three (3) months effective upon notice hereof. The complaint against Atty. Marcelino Jornales and Atty.
Pedro Vega is DISMISSED for lack of sufficient evidence.
Let copies of this Decision be entered in her record as attorney and be furnished the Integrated Bar of the
Philippines and all courts in the country for their information and guidance.

SO ORDERED.
BIENVENIDO L. REYES
Associate Justice
A.M. No. 1418 August 31, 1976
JOSE MISAMIN, complainant,
vs.
ATTORNEY MIGUEL A. SAN JUAN, respondent.
RESOLUTION

FERNANDO, J.:
It certainly fails to reflect credit on a captain in the Metro Manila Police Force and a member of the bar,
respondent Miguel A. San Juan, to be charged with being the legal representative of certain establishments
allegedly owned by Filipinos of Chinese descent and, what is worse, with coercing an employee, complainant
Jose Misamin, to agree to drop the charges filed by him against his employer Tan Hua, owner of New Cesar's
Bakery, for the violation of the Minimum Wage Law. There was a denial on the part of respondent. The matter
was referred to the Office of the Solicitor-General for investigation, report and recommendation. Thereafter, it
would seem there was a change of heart on the part of complainant. That could very well be the explanation for
the non- appearance of the lawyer employed by him at the scheduled hearings. The efforts of the Solicitor
General to get at the bottom of things were thus set at naught. Under the circumstances, the outcome of such
referral was to be expected. For the law is rather exacting in its requirement that there be competent and
adequate proof to make out a case for malpractice. Necessarily, the recommendation was one of the
complaints being dismissed, This is one of those instances then where this Court is left with hardly any choice.
Respondent cannot be found guilty of malpractice.
Respondent, as noted in the Report of the Solicitor-General, "admits having appeared as counsel for the New
Cesar's Bakery in the proceeding before the NLRC while he held office as captain in the Manila Metropolitan
Police. However, he contends that the law did not prohibit him from such isolated exercise of his profession. He
contends that his appearance as counsel, while holding a government position, is not among the grounds
provided by the Rules of Court for the suspension or removal of attorneys. The respondent also denies having
conspired with the complainant Misamin's attorney in the NLRC proceeding in order to trick the complainant
into signing an admission that he had been paid his separation pay. Likewise, the respondent denies giving
illegal protection to members of the Chinese community in Sta. Cruz, Manila." 1
Then came a detailed account in such Report of the proceedings: "Pursuant to the resolution of this Honorable
Court of March 21, 1975, the Solicitor General's Office set the case for investigation on July 2 and 3, 1975. The
counsel for the complainant failed to appear, and the investigation was reset to August 15, 1975. At the latter
date, the same counsel for complainant was absent. In both instances, the said counsel did not file written
motion for postponement but merely sent the complainant to explain the reason for his absence. When the
case was again called for hearing on October 16, 1975, counsel for complainant failed once more to appear.
The complainant who was present explained that his lawyer was busy "preparing an affidavit in the Court of
First Instance of Manila." When asked if he was willing to proceed with the hearing' in the absence of his
counsel, the complainant declared, apparently without any prodding, that he wished his complaint withdrawn.
He explained that he brought the present action in an outburst of anger believing that the respondent San Juan
took active part in the unjust dismissal of his complaint with the NLRC. The complainant added that after
reexamining his case, he believed the respondent to be without fault and a truly good person." 2
The Report of the Solicitor-General did not take into account respondent's practice of his profession
notwithstanding his being a police official, as "this is not embraced in Section 27, Rule 138 of the Revised
Rules of Court which provides the grounds for the suspension or removal of an attorney. The respondent's

appearance at the labor proceeding notwithstanding that he was an incumbent police officer of the City of
Manila may appropriately be referred to the National Police Commission and the Civil Service
Commission." 3 As a matter of fact, separate complaints on this ground have been filed and are under

investigation by the Office of the Mayor of Manila and the National Police Commission." As for the
charges that respondent conspired with complainant's counsel to mislead complainant to admitting
having' received his separation pay and for giving illegal protection to aliens, it is understandable why the
Report of the Solicitor-General recommended that they be dismissed for lack of evidence.
The conclusion arrived at by the Solicitor-General that the complaint cannot prosper is in accordance with the
settled law. As far back as in re Tionko, 4 decided in 1922, the authoritative doctrine was set forth by Justice

Malcolm in this wise: "The serious consequences of disbarment or suspension should follow only where
there is a clear preponderance of evidence against the respondent. The presumption is that the attorney
is innocent of the charges preferred and has performed his duty as an officer of the court in accordance
with his oath." 5 The Tionko doctrine has been subsequently adhered to. 6
This resolution does not in any wise take into consideration whatever violations there might have been of the
Civil Service Law in view of respondent practicing his profession while holding his position of Captain in the
Metro Manila police force. That is a matter to be decided in the administrative proceeding as noted in the
recommendation of the Solicitor-General. Nonetheless, while the charges have to be dismissed, still it would
not be inappropriate for respondent member of the bar to avoid all appearances of impropriety. Certainly, the
fact that the suspicion could be entertained that far from living true to the concept of a public office being a
public trust, he did make use, not so much of whatever legal knowledge he possessed, but the influence that
laymen could assume was inherent in the office held not only to frustrate the beneficent statutory scheme that
labor be justly compensated but also to be at the beck and call of what the complainant called alien interest, is
a matter that should not pass unnoticed. Respondent, in his future actuations as a member of the bar. should
refrain from laying himself open to such doubts and misgivings as to his fitness not only for the position
occupied by him but also for membership in the bar. He is not worthy of membership in an honorable
profession who does not even take care that his honor remains unsullied
WHEREFORE, this administrative complaint against respondent Miguel A. San Juan is dismissed for not
having been duly proved. Let a copy of this resolution be spread on his record.
Barredo, Antonio, Aquino and Concepcion, Jr., JJ., concur.
A.C. No. 7430

February 15, 2012

MARTIN LAHM III and JAMES P. CONCEPCION, Complainants,

vs.
LABOR ARBITER JOVENCIO Ll. MAYOR, JR., Respondent.
RESOLUTION
REYES, J.:
Before us is a verified complaint1 filed by Martin Lahm III and James P. Concepcion (complainants) praying for
the disbarment of Labor Arbiter Jovencio Ll. Mayor, Jr. (respondent) for alleged gross misconduct and violation
of lawyers oath.
On June 27, 2007, the respondent filed his Comment2 to the complaint.
In a Resolution3 dated July 18, 2007, the Court referred the case to the Integrated Bar of the Philippines (IBP)
for investigation, report and recommendation.
The antecedent facts, as summarized in the Report and Recommendation4 dated September 19, 2008 of
Commissioner Romualdo A. Din, Jr. of the IBP Commission on Bar Discipline, are as follows:

On September 5, 2006 a certain David Edward Toze filed a complaint for illegal dismissal before the Labor
Arbitration Branch of the National Labor Relations Commission against the members of the Board of Trustees
of the International School, Manila. The same was docketed as NLRC-NCR Case No. 00-07381-06 and raffled
to the sala of the respondent. Impleaded as among the party-respondents are the complainants in the instant
case.
On September 7, 2006, David Edward Toze filed a Verified Motion for the Issuance of a Temporary Restraining
Order and/or Preliminary Injunction Against the Respondents. The said Motion was set for hearing on
September 12, 2006 at 10:00 in the morning. A day after, on September 8, 2006, the counsel for the
complainants herein entered its appearance and asked for additional time to oppose and make a comment to
the Verified Motion for the Issuance of a Temporary Restraining Order and/or Preliminary Injunction Against the
Respondents of David Edward Toze.
Thereafter, the respondent issued an Order dated September 14, 2006 that directs the parties in the said case
to maintain the status quo ante. The complainants herein sought the reconsideration of the Order dated
September 14, 200[6] x x x.
xxxx
On account of the Order dated September 14, 2006, David Edward Toze was immediately reinstated and
assumed his former position as superintendent of the International School Manila.
The pending incidents with the above-mentioned illegal dismissal case were not resolved, however, the
scheduled hearing for the issuance of a preliminary injunction on September 20, 2006 and September 27, 2006
was postponed.
On January 19, 2007, the co-respondents of the complainants herein in the said illegal dismissal case filed a
motion for an early resolution of their motion to dismiss the said case, but the respondent instead issued an
Order dated February 6, 2007 requiring the parties to appear in his Office on February 27, 2007 at 10:00 in the
morning in order to thresh out David Edward Toze claim of moral and exemplary damages.
xxxx
The respondent on the other maintains that the Order dated September 14, 2006 was issued by him on
account of [the] Verified Motion for the Issuance of a Temporary Restraining Order and/or Preliminary
Injunction Against the Respondents that was filed by David Edward Toze, and of the Entry of Appearance with
Motion for Additional Time to File Comment that was thereafter filed by the counsel for the herein complainants
in the illegal dismissal case pending before the respondent.
The respondent maintains that in order to prevent irreparable damage on the person of David Edward Toze,
and on account of the urgency of [the] Verified Motion for the Issuance of a Temporary Restraining Order
and/or Preliminary Injunction Against the Respondents of David Edward Toze, and that the counsel for
respondents in the illegal dismissal case have asked for a relatively long period of fifteen days for a resetting,
he (respondent) found merit in issuing the Order dated September 14, 2006 that requires the parties to
maintain the status quo ante.
xxx
The respondent argues that [the] instant case should be dismissed for being premature since the
aforementioned illegal dismissal case is still pending before the Labor Arbitration Branch of the National Labor
Relations Commission, that the instant case is a subterfuge in order to compel the respondent to inhibit himself
in resolving the said illegal dismissal case because the complainants did not assail the Order dated September
14, 2006 before the Court of Appeals under Rule 65 of the Rules of Court.5

Based on the foregoing, the Investigating Commissioner concluded that: (1) the grounds cited by the
respondent to justify his issuance of the status quo ante order lacks factual basis and is speculative; (2) the
respondent does not have the authority to issue a temporary restraining order and/or a preliminary injunction;
and (3) the inordinate delay in the resolution of the motion for reconsideration directed against the September
14, 2006 Order showed an orchestrated effort to keep the status quo ante until the expiration of David Edward
Tozes employment contract.
Accordingly, the Investigating Commissioner recommended that:
WHEREFORE, it is respectfully recommended that the respondent be SUSPENDED for a period of six (6)
months with a warning that a repetition of the same or similar incident will be dealt with more severe penalty. 6
On December 11, 2008, the IBP Board of Governors issued Resolution No. XVIII-2008-6447 which adopted and
approved the recommendation of the Investigating Commissioner. The said resolution further pointed out that
the Board of Governors had previously recommended the respondents suspension from the practice of law for
three years in Administrative Case (A.C.) No. 7314 entitled "Mary Ann T. Flores v. Atty. Jovencio Ll. Mayor,
Jr.".
The respondent sought to reconsider the foregoing disposition,8 but it was denied by the IBP Board of
Governors in its Resolution No. XIX-2011-476 dated June 26, 2011.
The case is now before us for confirmation. We agree with the IBP Board of Governors that the respondent
should be sanctioned.
Section 27, Rule 138 of the Rules of Court provides that a lawyer may be removed or suspended from the
practice of law, inter alia, for gross misconduct and violation of the lawyers oath. Thus:
Section 27. Attorneys removed or suspended by Supreme Court on what grounds. A member of the bar may
be removed 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 the admission to
practice, or for a wilful disobedience of any lawful order of a superior court, or for corruptly or wilful 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. (emphasis
supplied)
A lawyer may be suspended or disbarred for any misconduct showing any fault or deficiency in his moral
character, honesty, probity or good demeanor.9 Gross misconduct is any inexcusable, shameful or flagrant
unlawful conduct on the part of a person concerned with the administration of justice; i.e., conduct prejudicial to
the rights of the parties or to the right determination of the cause. The motive behind this conduct is generally a
premeditated, obstinate or intentional purpose.10
Intrinsically, the instant petition wants this Court to impose disciplinary sanction against the respondent as a
member of the bar. However, the grounds asserted by the complainants in support of the administrative
charges against the respondent are intrinsically connected with the discharge of the respondents quasi-judicial
functions.
Nonetheless, it cannot be discounted that the respondent, as a labor arbiter, is a public officer entrusted to
resolve labor controversies. It is well settled that the Court may suspend or disbar a lawyer for any conduct on
his part showing his unfitness for the confidence and trust which characterize the attorney and client relations,
and the practice of law before the courts, or showing such a lack of personal honesty or of good moral
character as to render him unworthy of public confidence.11
Thus, the fact that the charges against the respondent were based on his acts committed in the discharge of
his functions as a labor arbiter would not hinder this Court from imposing disciplinary sanctions against him.

The Code of Professional Responsibility does not cease to apply to a lawyer simply because he has joined the
government service. In fact, by the express provision of

Canon
6 thereof, the rules governing the conduct of lawyers "shall apply to lawyers in government
service in the discharge of their official tasks." Thus, where a lawyers misconduct as a
government official is of such nature as to affect his qualification as a lawyer or to show moral
delinquency, then he may be disciplined as a member of the bar on such grounds.12
In Atty. Vitriolo v. Atty. Dasig,13 we stressed that:
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. 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.
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 respondents failure, despite the
opportunities afforded her by this Court and the IBP Commission on Bar Discipline to comment on the charges.
We find that respondents 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.
xxx
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 6 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.
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.14 (emphasis supplied and citations omitted)
In Tadlip v. Atty. Borres, Jr.,15 we ruled that an administrative case against a lawyer for acts committed in his
capacity as provincial adjudicator of the Department of Agrarian Reform Regional Arbitration Board may be
likened to administrative cases against judges considering that he is part of the quasi-judicial system of our
government.
This Court made a similar pronouncement in Buehs v. Bacatan16 where the respondent-lawyer was suspended
from the practice of law for acts he committed in his capacity as an accredited Voluntary Arbitrator of the
National Conciliation and Mediation Board.
Here, the respondent, being part of the quasi-judicial system of our government, performs official functions that
are akin to those of judges. Accordingly, the present controversy may be approximated to administrative cases
of judges whose decisions, including the manner of rendering the same, were made subject of administrative
cases.

As a matter of public policy, not every error or mistake of a judge in the performance of his official duties
renders him liable. In the absence of fraud, dishonesty or corruption, the acts of a judge in his official capacity
do not always constitute misconduct although the same acts may be erroneous. True, a judge may not be
disciplined for error of judgment absent proof that such error was made with a conscious and deliberate intent
to cause an injustice.17
While a judge may not always be held liable for ignorance of the law for every erroneous order that he renders,
it is also axiomatic that when the legal principle involved is sufficiently basic, lack of conversance with it
constitutes gross ignorance of the law. Indeed, even though a judge may not always be subjected to
disciplinary action for every erroneous order or decision he renders, that relative immunity is not a license to be
negligent or abusive and arbitrary in performing his adjudicatory prerogatives.18
When the law is sufficiently basic, a judge owes it to his office to know and to simply apply it. Anything less
would be constitutive of gross ignorance of the law.19
In the case at bench, we find the respondent guilty of gross ignorance of the law.
Acting on the motion for the issuance of a temporary restraining order and/or writ of preliminary injunction, the
respondent issued the September 14, 2006 Order requiring the parties to maintain the status quo ante until the
said motion had been resolved. It should be stressed, however, that at the time the said motion was filed, the
2005 Rules of Procedure of the National Labor Relations Commission (NLRC) is already in effect.
Admittedly, under the 1990 Rules of Procedure of the NLRC, the labor arbiter has, in proper cases, the
authority to issue writs of preliminary injunction and/or restraining orders. Section 1, Rule XI of the 1990 Rules
of Procedure of the NLRC provides that:
Section 1. Injunction in Ordinary Labor Disputes. A preliminary injunction or restraining order may be granted
by the Commission through its Divisions pursuant to the provisions of paragraph (e) of Article 218 of the Labor
Code, as amended, when it is established on the basis of the sworn allegations in the petition that the acts
complained of involving or arising from any labor dispute before the Commission, which, if not restrained or
performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in
favor of such party.
If necessary, the Commission may require the petitioner to post a bond and writ of preliminary injunction or
restraining order shall become effective only upon the approval of the bond which shall answer for any damage
that may be suffered by the party enjoined, if it is finally determined that the petitioner is not entitled thereto.
The foregoing ancillary power may be exercised by the Labor Arbiters only as an incident to the cases pending
before them in order to preserve the rights of the parties during the pendency of the case, but excluding labor
disputes involving strike or lockout. (emphasis supplied)
Nevertheless, under the 2005 Rules of Procedure of the NLRC, the labor arbiters no longer has the authority to
issue writs of preliminary injunction and/or temporary restraining orders. Under Section 1, Rule X of the 2005
Rules of Procedure of the NLRC, only the NLRC, through its Divisions, may issue writs of preliminary injunction
and temporary restraining orders. Thus:
Section 1. Injunction in Ordinary Labor Disputes. - A preliminary injunction or restraining order may be granted
by the Commission through its Divisions pursuant to the provisions of paragraph (e) of Article 218 of the Labor
Code, as amended, when it is established on the basis of the sworn allegations in the petition that the acts
complained of involving or arising from any labor dispute before the Commission, which, if not restrained or
performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in
favor of such party. (emphasis supplied)
The role of the labor arbiters, with regard to the issuance of writs of preliminary injunctions and/or writ of
preliminary injunction, at present, is limited to reception of evidence as may be delegated by the NLRC. Thus,
Section 4, Rule X of the 2005 Rules of Procedure of the NLRC provides that:

Section 4. Reception of Evidence; Delegation. - The reception of evidence for the application of a writ of
injunction may be delegated by the Commission to any of its Labor Arbiters who shall conduct such hearings in
such places as he may determine to be accessible to the parties and their witnesses, and shall thereafter
submit his report and recommendation to the Commission within fifteen (15) days from such delegation.
(emphasis supplied)
The foregoing rule is clear and leaves no room for interpretation. However, the respondent, in violation of the
said rule, vehemently insist that he has the authority to issue writs of preliminary injunction and/or temporary
restraining order. On this point, the Investigating Commissioner aptly ruled that:
The respondent should, in the first place, not entertained Edward Tozes Verified Motion for the Issuance of a
Temporary Restraining Order and/or Preliminary Injunction Against the Respondents. He should have denied it
outright on the basis of Section 1, Rule X of the 2005 Revised Rules of Procedure of the National Labor
Relations Commission.
xxxx
The respondent, being a Labor Arbiter of the Arbitration Branch of the National Labor Relations Commission,
should have been familiar with Sections 1 and 4 of the 2005 Revised Rules of procedure of the National Labor
Relations Commission. The first, states that it is the Commission of the [NLRC] that may grant a preliminary
injunction or restraining order. While the second, states [that] Labor Arbiters [may] conduct hearings on the
application of preliminary injunction or restraining order only in a delegated capacity.20
What made matters worse is the unnecessary delay on the part of the respondent in resolving the motion for
reconsideration of the September 14, 2006 Order. The unfounded insistence of the respondent on his
supposed authority to issue writs of preliminary injunction and/or temporary restraining order, taken together
with the delay in the resolution of the said motion for reconsideration, would clearly show that the respondent
deliberately intended to cause prejudice to the complainants.
On this score, the Investigating Commissioner keenly observed that:
The Commission is very much disturbed with the effect of the Order dated September 14, 2006 and the delay
in the resolution of the pending incidents in the illegal dismissal case before the respondent.
Conspicuously, Section 3 (Term of Contract) of the Employment Contract between David Edward Toze and
International School Manila provides that David Edward Toze will render work as a superintendent for the
school years August 2005-July 2006 and August 2006-July 2007.
The Order dated September 14, 2006 in effect reinstates David Edward Toze as superintendent of International
School of Manila until the resolution of the formers Verified Motion for the Issuance of a Temporary Restraining
Order and/or Preliminary Injunction Against the Respondents.
Since the Employment Contract between David Edward Toze and International School Manila is about to
expire or end on August 2007, prudence dictates that the respondent expediently resolved [sic] the merits of
David Edward Tozes Verified Motion for the Issuance of a Temporary Restraining Order and/or Preliminary
Injunction Against the Respondents because any delay in the resolution thereof would result to undue benefit in
favor of David Edward Toze and unwarranted prejudice to International School Manila.
xxxx
At the time the respondent inhibited himself from resolving the illegal dismissal case before him, there are
barely four (4) months left with the Employment Contract between David Edward Toze and International School
Manila.

From the foregoing, there is an inordinate delay in the resolution of the reconsideration of the Order dated
September 14, 2006 that does not escape the attention of this Commission. There appears an orchestrated
effort to delay the resolution of the reconsideration of the Order dated September 14, 2006 and keep status quo
ante until expiration of David Edward Tozes Employment Contract with International School Manila come
August 2007, thereby rendering the illegal dismissal case moot and academic.
xxxx
Furthermore, the procrastination exhibited by the respondent in the resolution of [the] assailed Order x x x
should not be countenanced, specially, under the circumstance that is attendant with the term of the
Employment Contract between David Edward Toze and International School Manila. The respondents
lackadaisical attitude in sitting over the pending incident before him for more than five (5) months only to
thereafter inhibit himself therefrom, shows the respondents disregard to settled rules and
jurisprudence. Failure to decide a case or resolve a motion within the reglementary period constitutes gross
inefficiency and warrants the imposition of administrative sanction against the erring magistrate x x x. The
respondent, being a Labor Arbiter, is akin to judges, and enjoined to decide a case with dispatch. Any delay, no
matter how short, in the disposition of cases undermine the peoples faith and confidence in the judiciary x x
x. 21
1wphi1

Indubitably, the respondent failed to live up to his duties as a lawyer in consonance with the strictures of the
lawyers oath and the Code of Professional Responsibility, thereby occasioning sanction from this Court.
In stubbornly insisting that he has the authority to issue writs of preliminary injunction and/or temporary
restraining order contrary to the clear import of the 2005 Rules of Procedure of the NLRC, the respondent
violated Canon 1 of the Code of Professional Responsibility which mandates lawyers to "obey the laws of the
land and promote respect for law and legal processes".
All told, we find the respondent to have committed gross ignorance of the law, his acts as a labor arbiter in the
case below being inexcusable thus unquestionably resulting into prejudice to the rights of the parties therein.
Having established the foregoing, we now proceed to determine the appropriate penalty to be imposed.
Under Rule 14022 of the Rules of Court, as amended by A.M. No. 01-8-10-SC, gross ignorance of the law is a
serious charge,23 punishable by a fine of more than P20,000.00, but not exceeding P40,000.00, suspension
from office without salary and other benefits for more than three but not exceeding six months, or dismissal
from the service.24
In Tadlip v. Atty. Borres, Jr., the respondent-lawyer and provincial adjudicator, found guilty of gross ignorance
of the law, was suspended from the practice of law for six months. Additionally, in parallel cases,25 a judge
found guilty of gross ignorance of the law was meted the penalty of suspension for six months.
Here, the IBP Board of Governors recommended that the respondent be suspended from the practice of law for
six months with a warning that a repetition of the same or similar incident would be dealt with more severe
penalty. We adopt the foregoing recommendation.
This Court notes that the IBP Board of Governors had previously recommended the respondents suspension
from the practice of law for three years in A.C. No. 7314, entitled "Mary Ann T. Flores v. Atty. Jovencio Ll.
Mayor, Jr.". This case, however, is still pending.
It cannot be gainsaid that since public office is a public trust, the ethical conduct demanded upon lawyers in the
government service is more exacting than the standards for those in private practice. Lawyers in the
government service are subject to constant public scrutiny under norms of public accountability. They also bear
the heavy burden of having to put aside their private interest in favor of the interest of the public; their private
activities should not interfere with the discharge of their official functions. 26

At this point, the respondent should be reminded of our exhortation in Republic of the Philippines v. Judge
Caguioa,27 thus:
Ignorance of the law is the mainspring of injustice. Judges are called upon to exhibit more than just a cursory
acquaintance with statutes and procedural rules. Basic rules should be at the palm of their hands. Their
inexcusable failure to observe basic laws and rules will render them administratively liable. Where the law
involved is simple and elementary, lack of conversance with it constitutes gross ignorance of the law. "Verily,
for transgressing the elementary jurisdictional limits of his court, respondent should be administratively liable for
gross ignorance of the law."
1w phi 1

"When the inefficiency springs from a failure to consider so basic and elemental a rule, a law or a principle in
the discharge of his functions, a judge is either too incompetent and undeserving of the position and title he
holds or he is too vicious that the oversight or omission was deliberately done in bad faith and in grave abuse
of judicial authority."28 (citations omitted)
WHEREFORE, finding respondent Atty. Jovencio Ll. Mayor, Jr. guilty of gross ignorance of the law in violation
of his lawyers oath and of the Code of Professional Responsibility, the Court resolved to SUSPEND
respondent from the practice of law for a period of six (6) months, with a WARNING that commission of the
same or similar offense in the future will result in the imposition of a more severe penalty.
Let copies of this Resolution be furnished the IBP, as well as the Office of the Bar Confidant and the Court
Administrator who shall circulate it to all courts for their information and guidance and likewise be entered in the
record of the respondent as attorney.
SO ORDERED.
BIENVENIDO L. REYES
Associate Justice
G.R. Nos. 151809-12. April 12, 2005
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), Petitioners,
vs.
SANDIGANBAYAN (Fifth Division), LUCIO C. TAN, CARMEN KHAO TAN, FLORENCIO T. SANTOS,
NATIVIDAD P. SANTOS, DOMINGO CHUA, TAN HUI NEE, MARIANO TAN ENG LIAN, ESTATE OF
BENITO TAN KEE HIONG (represented by TARCIANA C. TAN), FLORENCIO N. SANTOS, JR., HARRY C.
TAN, TAN ENG CHAN, CHUNG POE KEE, MARIANO KHOO, MANUEL KHOO, MIGUEL KHOO, JAIME
KHOO, ELIZABETH KHOO, CELSO RANOLA, WILLIAM T. WONG, ERNESTO B. LIM, BENJAMIN T.
ALBACITA, WILLY CO, ALLIED BANKING CORP., ALLIED LEASING AND FINANCE CORPORATION,
ASIA BREWERY, INC., BASIC HOLDINGS CORP., FOREMOST FARMS, INC., FORTUNE TOBACCO
CORP., GRANDSPAN DEVELOPMENT CORP., HIMMEL INDUSTRIES, IRIS HOLDINGS AND
DEVELOPMENT CORP., JEWEL HOLDINGS, INC., MANUFACTURING SERVICES AND TRADE CORP.,
MARANAW HOTELS AND RESORT CORP., NORTHERN TOBACCO REDRYING PLANT, PROGRESSIVE
FARMS, INC., SHAREHOLDINGS, INC., SIPALAY TRADING CORP., VIRGO HOLDINGS &
DEVELOPMENT CORP., and ATTY. ESTELITO P. MENDOZA, Respondents.
DECISION
PUNO, J.:
This case is prima impressiones and it is weighted with significance for it concerns on one hand, the efforts of
the Bar to upgrade the ethics of lawyers in government service and on the other, its effect on the right of
government to recruit competent counsel to defend its interests.

In 1976, General Bank and Trust Company (GENBANK) encountered financial difficulties. GENBANK had
extended considerable financial support to Filcapital Development Corporation causing it to incur daily
overdrawings on its current account with the Central Bank.1 It was later found by the Central Bank that
GENBANK had approved various loans to directors, officers, stockholders and related interests totaling P172.3
million, of which 59% was classified as doubtful and P0.505 million as uncollectible.2 As a bailout, the Central
Bank extended emergency loans to GENBANK which reached a total of P310 million.3 Despite the mega
loans, GENBANK failed to recover from its financial woes. On March 25, 1977, the Central Bank issued a
resolution declaring GENBANK insolvent and unable to resume business with safety to its depositors,
creditors and thegeneral public, and ordering its liquidation.4 A public bidding of GENBANKs assets was
held from March 26 to 28, 1977, wherein the Lucio Tan group submitted the
winning bid.5 Subsequently, former Solicitor General Estelito P. Mendoza filed a petition with the
then Court of First Instance praying for the assistance and supervision of the court in GENBANKs liquidation
as mandated by Section 29 of Republic Act No. 265.
In February 1986, the EDSA I revolution toppled the Marcos government. One of the first acts of President
Corazon C. Aquino was to establish the Presidential Commission on Good Government (PCGG) to recover the
alleged ill-gotten wealth of former President Ferdinand Marcos, his family and his cronies. Pursuant to this
mandate, the PCGG, on July 17, 1987, filed with the Sandiganbayan a complaint for "reversion,
reconveyance, restitution, accounting and damages" against respondents Lucio Tan, Carmen Khao Tan,
Florencio T. Santos, Natividad P. Santos, Domingo Chua, Tan Hui Nee, Mariano Tan Eng Lian, Estate of
Benito Tan Kee Hiong, Florencio N. Santos, Jr., Harry C. Tan, Tan Eng Chan, Chung Poe Kee, Mariano Khoo,
Manuel Khoo, Miguel Khoo, Jaime Khoo, Elizabeth Khoo, Celso Ranola, William T. Wong, Ernesto B. Lim,
Benjamin T. Albacita, Willy Co, Allied Banking Corporation (Allied Bank), Allied Leasing and Finance
Corporation, Asia Brewery, Inc., Basic Holdings Corp., Foremost Farms, Inc., Fortune Tobacco Corporation,
Grandspan Development Corp., Himmel Industries, Iris Holdings and Development Corp., Jewel Holdings, Inc.,
Manufacturing Services and Trade Corp., Maranaw Hotels and Resort Corp., Northern Tobacco Redrying
Plant, Progressive Farms, Inc., Shareholdings, Inc., Sipalay Trading Corp., Virgo Holdings & Development
Corp., (collectively referred to herein as respondents Tan, et al.), then President Ferdinand E. Marcos, Imelda
R. Marcos, Panfilo O. Domingo, Cesar Zalamea, Don Ferry and Gregorio Licaros. The case was docketed as
Civil Case No. 0005 of the Second Division of the Sandiganbayan.6 In connection therewith, the PCGG
issued several writs of sequestration on properties allegedly acquired by the above-named persons by taking
advantage of their close relationship and influence with former President Marcos.
Respondents Tan, et al. repaired to this Court and filed petitions for certiorari, prohibition and injunction to
nullify, among others, the writs of sequestration issued by the PCGG.7 After the filing of the parties comments,
this Court referred the cases to the Sandiganbayan for proper disposition. These cases were docketed
as Civil Case Nos. 0096-0099. In all these cases, respondents Tan, et al. were represented by their counsel,
former Solicitor General Estelito P. Mendoza, who has then resumed his private practice of law.
On February 5, 1991, the PCGG filed motions to disqualify respondent Mendoza as counsel for respondents
Tan, et al. with the Second Division of the Sandiganbayan in Civil Case Nos. 00058 and 0096-0099.9 The
motions alleged that respondent Mendoza, as then Solicitor General10 and counsel to Central Bank, "actively
intervened" in the liquidation of GENBANK, which was subsequently acquired by respondents Tan, et al. and
became Allied Banking Corporation. Respondent Mendoza allegedly "intervened" in the acquisition of
GENBANK by respondents Tan, et al. when, in his capacity as then Solicitor General, he advised the Central
Banks officials on the procedure to bring about GENBANKs liquidation and appeared as counsel for the
Central Bank in connection with its petition for assistance in the liquidation of GENBANK which he filed with the
Court of First Instance (now Regional Trial Court) of Manila and was docketed as Special Proceeding No.
107812. The motions to disqualify invoked Rule 6.03 of the Code of Professional Responsibility. Rule
6.03 prohibits former government lawyers from accepting "engagement or employment in connection with
any matter in which he had intervened while in said service."
On April 22, 1991 the Second Division of the Sandiganbayan issued a resolution denying PCGGs motion to
disqualify respondent Mendoza in Civil Case No. 0005.11 It found that the PCGG failed to prove the existence of
an inconsistency between respondent Mendozas former function as Solicitor General and his present
employment as counsel of the Lucio Tan group. It noted that respondent Mendoza did not take a position
adverse to that taken on behalf of the Central Bank during his term as Solicitor General.12 It further ruled that
respondent Mendozas appearance as counsel for respondents Tan, et al. was beyond the one-year prohibited

period under Section 7(b) of Republic Act No. 6713 since he ceased to be Solicitor General in the year 1986.
The said section prohibits a former public official or employee from practicing his profession in connection with
any matter before the office he used to be with within one year from his resignation, retirement or separation
from public office.13The PCGG did not seek any reconsideration of the ruling.14
It appears that Civil Case Nos. 0096-0099 were transferred from the Sandiganbayans Second Division to the
Fifth Division.15 In its resolution dated July 11, 2001, the Fifth Division of the Sandiganbayan denied the other
PCGGs motion to disqualify respondent Mendoza.16 It adopted the resolution of its Second Division dated
April 22, 1991, and observed that the arguments were the same in substance as the motion to disqualify filed in
Civil Case No. 0005. The PCGG sought reconsideration of the ruling but its motion was denied in its resolution
dated December 5, 2001.17
Hence, the recourse to this Court by the PCGG assailing the resolutions dated July 11, 2001 and December 5,
2001 of the Fifth Division of the Sandiganbayan via a petition for certiorari and prohibition under Rule 65 of
the 1997 Rules of Civil Procedure.18 The PCGG alleged that the Fifth Division acted with grave abuse of
discretion amounting to lack or excess of jurisdiction in issuing the assailed resolutions contending that: 1) Rule
6.03 of the Code of Professional Responsibility prohibits a former government lawyer from accepting
employment in connection with any matter in which he intervened; 2) the prohibition in the Rule is not timebound; 3) that Central Bank could not waive the objection to respondent Mendozas appearance on behalf of
the PCGG; and 4) the resolution in Civil Case No. 0005 was interlocutory, thus res judicata does not apply.19
The petition at bar raises procedural and substantive issues of law. In view, however, of the import and impact
of Rule 6.03 of the Code of Professional Responsibility to the legal profession and the government, we shall cut
our way and forthwith resolve the substantive issue.
I
Substantive Issue
The key issue is whether Rule 6.03 of the Code of Professional Responsibility applies to respondent Mendoza.
Again, the prohibition states: "A lawyer shall not, after leaving government service, accept engagement or
employment in connection with any matter in which he had intervened while in the said service."
I.A. The history of Rule 6.03
A proper resolution of this case necessitates that we trace the historical lineage of Rule 6.03 of the Code of
Professional Responsibility.
In the seventeenth and eighteenth centuries, ethical standards for lawyers were pervasive in England and
other parts of Europe. The early statements of standards did not resemble modern codes of conduct. They
were not detailed or collected in one source but surprisingly were comprehensive for their time. The principal
thrust of the standards was directed towards the litigation conduct of lawyers. It underscored the central duty of
truth and fairness in litigation as superior to any obligation to the client. The formulations of the litigation duties
were at times intricate, including specific pleading standards, an obligation to inform the court of falsehoods
and a duty to explore settlement alternatives. Most of the lawyer's other basic duties -- competency, diligence,
loyalty, confidentiality, reasonable fees and service to the poor -- originated in the litigation context, but
ultimately had broader application to all aspects of a lawyer's practice.
The forms of lawyer regulation in colonial and early post-revolutionary America did not differ markedly from
those in England. The colonies and early states used oaths, statutes, judicial oversight, and procedural rules to
govern attorney behavior. The difference from England was in the pervasiveness and continuity of such
regulation. The standards set in England varied over time, but the variation in early America was far greater.
The American regulation fluctuated within a single colony and differed from colony to colony. Many regulations
had the effect of setting some standards of conduct, but the regulation was sporadic, leaving gaps in the
substantive standards. Only three of the traditional core duties can be fairly characterized as pervasive in the

formal, positive law of the colonial and post-revolutionary period: the duties of litigation fairness, competency
and reasonable fees.20
The nineteenth century has been termed the "dark ages" of legal ethics in the United States. By midcentury, American legal reformers were filling the void in two ways. First, David Dudley Field, the drafter of the
highly influential New York "Field Code," introduced a new set of uniform standards of conduct for lawyers. This
concise statement of eight statutory duties became law in several states in the second half of the nineteenth
century. At the same time, legal educators, such as David Hoffman and George Sharswood, and many other
lawyers were working to flesh out the broad outline of a lawyer's duties. These reformers wrote about legal
ethics in unprecedented detail and thus brought a new level of understanding to a lawyer's duties. A number of
mid-nineteenth century laws and statutes, other than the Field Code, governed lawyer behavior. A few forms of
colonial regulations e.g., the "do no falsehood" oath and the deceit prohibitions -- persisted in some states.
Procedural law continued to directly, or indirectly, limit an attorney's litigation behavior. The developing law of
agency recognized basic duties of competence, loyalty and safeguarding of client property. Evidence law
started to recognize with less equivocation the attorney-client privilege and its underlying theory of
confidentiality. Thus, all of the core duties, with the likely exception of service to the poor, had some basis in
formal law. Yet, as in the colonial and early post-revolutionary periods, these standards were isolated and did
not provide a comprehensive statement of a lawyer's duties. The reformers, by contrast, were more
comprehensive in their discussion of a lawyer's duties, and they actually ushered a new era in American legal
ethics.21
Toward the end of the nineteenth century, a new form of ethical standards began to guide lawyers in their
practice the bar association code of legal ethics. The bar codes were detailed ethical standards formulated
by lawyers for lawyers. They combined the two primary sources of ethical guidance from the nineteenth
century. Like the academic discourses, the bar association codes gave detail to the statutory statements of
duty and the oaths of office. Unlike the academic lectures, however, the bar association codes retained some
of the official imprimatur of the statutes and oaths. Over time, the bar association codes became extremely
popular that states adopted them as binding rules of law. Critical to the development of the new codes was the
re-emergence of bar associations themselves. Local bar associations formed sporadically during the colonial
period, but they disbanded by the early nineteenth century. In the late nineteenth century, bar associations
began to form again, picking up where their colonial predecessors had left off. Many of the new bar
associations, most notably the Alabama State Bar Association and the American Bar Association, assumed on
the task of drafting substantive standards of conduct for their members.22
In 1887, Alabama became the first state with a comprehensive bar association code of ethics. The 1887
Alabama Code of Ethics was the model for several states codes, and it was the foundation for the American
Bar Association's (ABA) 1908 Canons of Ethics.23
In 1917, the Philippine Bar found that the oath and duties of a lawyer were insufficient to attain the full
measure of public respect to which the legal profession was entitled. In that year, the Philippine Bar Association
adopted as its own, Canons 1 to 32 of the ABA Canons of Professional Ethics.24
As early as 1924, some ABA members have questioned the form and function of the canons. Among their
concerns was the "revolving door" or "the process by which lawyers and others temporarily enter government
service from private life and then leave it for large fees in private practice, where they can exploit information,
contacts, and influence garnered in government service."25 These concerns were classified as adverseinterest conflicts" and "congruent-interest conflicts." "Adverse-interest conflicts" exist where the matter
in which the former government lawyer represents a client in private practice is substantially related to a matter
that the lawyer dealt with while employed by the government and the interests of the current and former are
adverse.26On the other hand, "congruent-interest representation conflicts" are unique to government
lawyers and apply primarily to former government lawyers.27 For several years, the ABA attempted to correct
and update the

canons
through new canons, individual amendments and interpretative opinions. In 1928, the ABA
amended one canon and added thirteen new canons.28 To deal with problems peculiar to former

government lawyers, Canon 36 was minted which disqualified them both for "adverse-interest
conflicts" and "congruent-interest representation conflicts."29 The rationale for disqualification is
rooted in a concern that the government lawyers largely discretionary actions would be
influenced by the temptation to take action on behalf of the government client that later could be
to the advantage of parties who might later become private practice clients.30 Canon
36 provides,viz.:
36. Retirement from judicial position or public employment
A lawyer should not accept employment as an advocate in any matter upon the merits of which he has
previously acted in a judicial capacity.
A lawyer, having once held public office or having been in the public employ should not, after his
retirement, accept employment in connection with any matter he has investigated or passed upon while
in such office or employ.
Over the next thirty years, the ABA continued to amend many of the canons and added Canons 46 and 47 in
1933 and 1937, respectively.31
In 1946, the Philippine Bar Association again adopted as its own Canons 33 to 47 of the ABA Canons of
Professional Ethics.32
By the middle of the twentieth century, there was growing consensus that the ABA Canons needed more
meaningful revision. In 1964, the ABA President-elect Lewis Powell asked for the creation of a committee to
study the "adequacy and effectiveness" of the ABA Canons. The committee recommended that the canons
needed substantial revision, in part because the ABA Canons failed to distinguish between "the

inspirational
and the proscriptive" and were thus unsuccessful in enforcement. The legal profession in the
United States likewise observed that Canon 36 of the ABA Canons of Professional Ethics
resulted in unnecessary disqualification of lawyers for negligible participation in matters during
their employment with the government.
The unfairness of Canon 36 compelled ABA to replace it in the 1969 ABA Model Code of Professional
Responsibility.33 The basic ethical principles in the Code of Professional Responsibility were supplemented by
Disciplinary Rules that defined minimum rules of conduct to which the lawyer must adhere.34 In the case of
Canon 9, DR 9-101(b)35 became the applicable supplementary norm. The drafting committee reformulated the
canons into the Model Code of Professional Responsibility, and, in August of 1969, the ABA House of
Delegates approved the Model Code.36
Despite these amendments, legal practitioners remained unsatisfied with the results and indefinite standards
set forth by DR 9-101(b) and the Model Code of Professional Responsibility as a whole. Thus, in August
1983, the ABA adopted new Model Rules of Professional Responsibility. The Model Rules used the
"restatement format," where the conduct standards were set-out in rules, with comments following each rule.
The new format was intended to give better guidance and clarity for enforcement "because the only
enforceable standards were the black letter Rules." The Model Rules eliminated the broad canons altogether
and reduced the emphasis on narrative discussion, by placing comments after the rules and limiting comment
discussion to the content of the black letter rules. The Model Rules made a number of substantive
improvements particularly with regard to conflicts of interests.37 In particular, the ABA did away with Canon
9, citing the hopeless dependence of the concept of impropriety on the subjective views of anxious
clients as well as the norms indefinite nature.38

In cadence with these changes, the Integrated Bar of the Philippines (IBP) adopted a proposed Code of
Professional Responsibility in 1980 which it submitted to this Court for approval. The Code was drafted
to reflect the local customs, traditions, and practices of the bar and to conform with new realities. On June 21,
1988, this Court promulgated the Code of Professional Responsibility.39 Rule 6.03 of the Code of
Professional Responsibility deals particularly with former government lawyers, and provides, viz.:
Rule 6.03 A lawyer shall not, after leaving government service, accept engagement or employment in
connection with any matter in which he had intervened while in said service.
Rule 6.03 of the Code of Professional Responsibility retained the general structure of paragraph 2, Canon 36 of
the Canons of Professional Ethics but replaced the expansive phrase "investigated and passed upon" with
the word "intervened." It is, therefore, properly applicable to both "adverse-interest
conflicts" and "congruent-interest conflicts."
The case at bar does not involve the "adverse interest" aspect of Rule 6.03. Respondent Mendoza, it is
conceded, has no adverse interest problem when he acted as Solicitor General in Sp. Proc. No. 107812 and
later as counsel of respondents Tan, et al. in Civil Case No. 0005 and Civil Case Nos. 0096-0099 before
theSandiganbayan. Nonetheless, there remains the issue of whether there exists a "congruent-interest
conflict" sufficient to disqualify respondent Mendoza from representing respondents Tan, et al.
I.B. The "congruent interest" aspect of Rule 6.03
The key to unlock Rule 6.03 lies in comprehending first, the meaning of "matter" referred to in the rule and,
second, the metes and bounds of the "intervention" made by the former government lawyer on the "matter."
The American Bar Association in its Formal Opinion 342, defined "matter" as any discrete, isolatable act as
well as identifiable transaction or conduct involving a particular situation and specific party, and not merely an
act of drafting, enforcing or interpreting government or agency procedures, regulations or laws, or briefing
abstract principles of law.
Firstly, it is critical that we pinpoint the "matter" which was the subject of intervention by respondent Mendoza
while he was the Solicitor General. The PCGG relates the following acts of respondent Mendoza as constituting
the "matter" where he intervened as a Solicitor General, viz:40
The PCGGs Case for Atty. Mendozas Disqualification
The PCGG imputes grave abuse of discretion on the part of the Sandiganbayan (Fifth Division) in issuing the
assailed Resolutions dated July 11, 2001 and December 5, 2001 denying the motion to disqualify Atty.
Mendoza as counsel for respondents Tan, et al. The PCGG insists that Atty. Mendoza, as then Solicitor
General, actively intervened in the closure of GENBANK by advising the Central Bank on how to proceed with
the said banks liquidation and even filing the petition for its liquidation with the CFI of Manila.
As proof thereof, the PCGG cites the Memorandum dated March 29, 1977 prepared by certain key officials of
the Central Bank, namely, then Senior Deputy Governor Amado R. Brinas, then Deputy Governor Jaime C.
Laya, then Deputy Governor and General Counsel Gabriel C. Singson, then Special Assistant to the Governor
Carlota P. Valenzuela, then Asistant to the Governor Arnulfo B. Aurellano and then Director of Department of
Commercial and Savings Bank Antonio T. Castro, Jr., where they averred that on March 28, 1977, they had a
conference with the Solicitor General (Atty. Mendoza), who advised them on how to proceed with the
liquidation of GENBANK. The pertinent portion of the said memorandum states:
Immediately after said meeting, we had a conference with the Solicitor General and he advised that the
following procedure should be taken:
1. Management should submit a memorandum to the Monetary Board reporting that studies and evaluation had
been made since the last examination of the bank as of August 31, 1976 and it is believed that the bank can
not be reorganized or placed in a condition so that it may be permitted to resume business with safety to its
depositors and creditors and the general public.

2. If the said report is confirmed by the Monetary Board, it shall order the liquidation of the bank and indicate
the manner of its liquidation and approve a liquidation plan.
3. The Central Bank shall inform the principal stockholders of Genbank of the foregoing decision to liquidate the
bank and the liquidation plan approved by the Monetary Board.
4. The Solicitor General shall then file a petition in the Court of First Instance reciting the proceedings which
had been taken and praying the assistance of the Court in the liquidation of Genbank.
The PCGG further cites the Minutes No. 13 dated March 29, 1977 of the Monetary Board where it was shown
that Atty. Mendoza was furnished copies of pertinent documents relating to GENBANK in order to aid him in
filing with the court the petition for assistance in the banks liquidation. The pertinent portion of the said minutes
reads:
The Board decided as follows:
...
E. To authorize Management to furnish the Solicitor General with a copy of the subject memorandum of the
Director, Department of Commercial and Savings Bank dated March 29, 1977, together with copies of:
1. Memorandum of the Deputy Governor, Supervision and Examination Sector, to the Monetary Board, dated
March 25, 1977, containing a report on the current situation of Genbank;
2. Aide Memoire on the Antecedent Facts Re: General Bank and Trust Co., dated March 23, 1977;
3. Memorandum of the Director, Department of Commercial and Savings Bank, to the Monetary Board, dated
March 24, 1977, submitting, pursuant to Section 29 of R.A. No. 265, as amended by P.D. No. 1007, a repot on
the state of insolvency of Genbank, together with its attachments; and
4. Such other documents as may be necessary or needed by the Solicitor General for his use in then CFIpraying the assistance of the Court in the liquidation of Genbank.
Beyond doubt, therefore, the "matter" or the act of respondent Mendoza as Solicitor General involved in the
case at bar is "advising the Central Bank, on how to proceed with the said banks liquidation and even filing
the petition for its liquidation with the CFI of Manila." In fine, the Court should resolve whether his act of
advising the Central Bank on the legal procedure to liquidate GENBANK is included within the concept
of "matter" under Rule 6.03. The procedure of liquidation is given in black and white in Republic Act No.
265, section 29, viz:
The provision reads in part:
SEC. 29. Proceedings upon insolvency. Whenever, upon examination by the head of the appropriate
supervising or examining department or his examiners or agents into the condition of any bank or non-bank
financial intermediary performing quasi-banking functions, it shall be disclosed that the condition of the same is
one of insolvency, or that its continuance in business would involve probable loss to its depositors or creditors,
it shall be the duty of the department head concerned forthwith, in writing, to inform the Monetary Board of the
facts, and the Board may, upon finding the statements of the department head to be true, forbid the institution
to do business in the Philippines and shall designate an official of the Central Bank or a person of recognized
competence in banking or finance, as receiver to immediately take charge of its assets and liabilities, as
expeditiously as possible collect and gather all the assets and administer the same for the benefit of its
creditors, exercising all the powers necessary for these purposes including, but not limited to, bringing suits and
foreclosing mortgages in the name of the bank or non-bank financial intermediary performing quasi-banking
functions.

...
If the Monetary Board shall determine and confirm within the said period that the bank or non-bank financial
intermediary performing quasi-banking functions is insolvent or cannot resume business with safety to its
depositors, creditors and the general public, it shall, if the public interest requires, order its liquidation, indicate
the manner of its liquidation and approve a liquidation plan. The Central Bank shall, by the Solicitor General,
file a petition in the Court of First Instance reciting the proceedings which have been taken and praying the
assistance of the court in the liquidation of such institution. The court shall have jurisdiction in the same
proceedings to adjudicate disputed claims against the bank or non-bank financial intermediary performing
quasi-banking functions and enforce individual liabilities of the stockholders and do all that is necessary to
preserve the assets of such institution and to implement the liquidation plan approved by the Monetary Board.
The Monetary Board shall designate an official of the Central Bank, or a person of recognized competence in
banking or finance, as liquidator who shall take over the functions of the receiver previously appointed by the
Monetary Board under this Section. The liquidator shall, with all convenient speed, convert the assets of the
banking institution or non-bank financial intermediary performing quasi-banking functions to money or sell,
assign or otherwise dispose of the same to creditors and other parties for the purpose of paying the debts of
such institution and he may, in the name of the bank or non-bank financial intermediary performing quasibanking functions, institute such actions as may be necessary in the appropriate court to collect and recover
accounts and assets of such institution.
The provisions of any law to the contrary notwithstanding, the actions of the Monetary Board under this Section
and the second paragraph of Section 34 of this Act shall be final and executory, and can be set aside by the
court only if there is convincing proof that the action is plainly arbitrary and made in bad faith. No restraining
order or injunction shall be issued by the court enjoining the Central Bank from implementing its actions under
this Section and the second paragraph of Section 34 of this Act, unless there is convincing proof that the action
of the Monetary Board is plainly arbitrary and made in bad faith and the petitioner or plaintiff files with the clerk
or judge of the court in which the action is pending a bond executed in favor of the Central Bank, in an amount
to be fixed by the court. The restraining order or injunction shall be refused or, if granted, shall be dissolved
upon filing by the Central Bank of a bond, which shall be in the form of cash or Central Bank cashier(s) check,
in an amount twice the amount of the bond of the petitioner or plaintiff conditioned that it will pay the damages
which the petitioner or plaintiff may suffer by the refusal or the dissolution of the injunction. The provisions of
Rule 58 of the New Rules of Court insofar as they are applicable and not inconsistent with the provisions of this
Section shall govern the issuance and dissolution of the restraining order or injunction contemplated in this
Section.
Insolvency, under this Act, shall be understood to mean the inability of a bank or non-bank financial
intermediary performing quasi-banking functions to pay its liabilities as they fall due in the usual and ordinary
course of business. Provided, however, That this shall not include the inability to pay of an otherwise noninsolvent bank or non-bank financial intermediary performing quasi-banking functions caused by extraordinary
demands induced by financial panic commonly evidenced by a run on the bank or non-bank financial
intermediary performing quasi-banking functions in the banking or financial community.
The appointment of a conservator under Section 28-A of this Act or the appointment of a receiver under this
Section shall be vested exclusively with the Monetary Board, the provision of any law, general or special, to the
contrary notwithstanding. (As amended by PD Nos. 72, 1007, 1771 & 1827, Jan. 16, 1981)
We hold that this advice given by respondent Mendoza on the procedure to liquidate GENBANK is not the
"matter" contemplated by Rule 6.03 of the Code of Professional Responsibility. ABA Formal Opinion No. 342
is clear as daylight in stressing that the "drafting, enforcing or interpreting government or agency
procedures, regulations or laws, or briefing abstract principles of law" are acts which do not fall within the
scope of the term"matter" and cannot disqualify.
Secondly, it can even be conceded for the sake of argument that the above act of respondent Mendoza falls
within the definition of matter per ABA Formal Opinion No. 342. Be that as it may, the said act of respondent
Mendoza which is the "matter" involved in Sp. Proc. No. 107812 is entirely different from
the "matter" involved in Civil Case No. 0096. Again, the plain facts speak for themselves. It is given that
respondent Mendoza had nothing to do with the decision of the Central Bank to liquidate GENBANK. It is also

given that he did not participate in the sale of GENBANK to Allied Bank. The "matter" where he got himself
involved was in informing Central Bank on the procedure provided by law to liquidate GENBANK thru the
courts and in filing the necessary petition in Sp. Proc. No. 107812 in the then Court of First Instance. The
subject "matter" of Sp. Proc. No. 107812, therefore, is not the same nor is related to but is different
from the subject "matter" in Civil Case No. 0096. Civil Case No. 0096 involves the sequestration of the
stocks owned by respondents Tan, et al., in Allied Bank on the alleged ground that they are ill-gotten. The
case does not involve the liquidation of GENBANK. Nor does it involve the sale of GENBANK to Allied Bank.
Whether the shares of stock of the reorganized Allied Bank are ill-gotten is far removed from the issue of the
dissolution and liquidation of GENBANK. GENBANK was liquidated by the Central Bank due, among others, to
the alleged banking malpractices of its owners and officers. In other words, the legality of the liquidation of
GENBANK is not an issue in the sequestration cases. Indeed, the jurisdiction of the PCGG does not include the
dissolution and liquidation of banks. It goes without saying that Code 6.03 of the Code of Professional
Responsibility cannot apply to respondent Mendoza because his alleged intervention while a Solicitor
General in Sp. Proc. No. 107812 is an intervention on a matter different from the matter involved in Civil
Case No. 0096.
Thirdly, we now slide to the metes and bounds of the "intervention" contemplated by Rule 6.03. "Intervene"
means, viz.:
1: to enter or appear as an irrelevant or extraneous feature or circumstance . . . 2: to occur, fall, or come in
between points of time or events . . . 3: to come in or between by way of hindrance or modification:
INTERPOSE . . . 4: to occur or lie between two things (Paris, where the same city lay on both sides of an
intervening river . . .)41
On the other hand, "intervention" is defined as:
1: the act or fact of intervening: INTERPOSITION; 2: interference that may affect the interests of others.42
There are, therefore, two possible interpretations of the word "intervene." Under the first interpretation,
"intervene" includes participation in a proceeding even if the intervention is irrelevant or has no effect or little
influence.43 Under the second interpretation, "intervene" only includes an act of a person who has the power
to influence the subject proceedings.44 We hold that this second meaning is more appropriate to give to the
word "intervention" under Rule 6.03 of the Code of Professional Responsibility in light of its history. The evils
sought to be remedied by the Rule do not exist where the government lawyer does an act which can be
considered as innocuous such as "x x x drafting, enforcing or interpreting government or agency procedures,
regulations or laws, or briefing abstract principles of law."
In fine, the intervention cannot be insubstantial and insignificant. Originally, Canon 36 provided that a
former government lawyer "should not, after his retirement, accept employment in connection with any
matter which he has investigated or passed upon while in such office or employ." As aforediscussed, the
broad sweep of the phrase "which he has investigated or passed upon" resulted in unjust disqualification of
former government lawyers. The 1969 Code restricted its latitude, hence, in DR 9-101(b), the prohibition
extended only to a matter in which the lawyer, while in the government service, had "substantial
responsibility." The 1983 Model Rules further constricted the reach of the rule. MR 1.11(a) provides that "a
lawyer shall not represent a private client in connection with a matter in which the lawyer participated
personally and substantially as a public officer or employee."
It is, however, alleged that the intervention of respondent Mendoza in Sp. Proc. No. 107812 is significant and
substantial. We disagree. For one, the petition in the special proceedings is an initiatory pleading, hence, it
has to be signed by respondent Mendoza as the then sitting Solicitor General. For another, the record is
arid as to the actual participation of respondent Mendoza in the subsequent proceedings. Indeed, the case
was in slumberville for a long number of years. None of the parties pushed for its early termination. Moreover,
we note that the petition filed merely seeks the assistance of the court in the liquidation of GENBANK. The
principal role of the court in this type of proceedings is to assist the Central Bank in determining claims of
creditors against the GENBANK. The role of the court is not strictly as a court of justice but as an agent to
assist the Central Bank in determining the claims of creditors. In such a proceeding, the participation of the
Office of the Solicitor General is not that of the usual court litigator protecting the interest of government.

II
Balancing Policy Considerations
To be sure, Rule 6.03 of our Code of Professional Responsibility represents a commendable effort on the part
of the IBP to upgrade the ethics of lawyers in the government service. As aforestressed, it is a take-off from
similar efforts especially by the ABA which have not been without difficulties. To date, the legal profession in
the United States is still fine tuning its DR 9-101(b) rule.
In fathoming the depth and breadth of Rule 6.03 of our Code of Professional Responsibility, the Court took
account of various policy considerations to assure that its interpretation and application to the case at bar
will achieve its end without necessarily prejudicing other values of equal importance. Thus, the rule was not
interpreted to cause a chilling effect on government recruitment of able legal talent. At present, it is
already difficult for government to match compensation offered by the private sector and it is unlikely that
government will be able to reverse that situation. The observation is not inaccurate that the only card that the
government may play to recruit lawyers is have them defer present income in return for the experience and
contacts that can later be exchanged for higher income in private practice.45 Rightly, Judge Kaufman warned
that the sacrifice of entering government service would be too great for most men to endure should ethical rules
prevent them from engaging in the practice of a technical specialty which they devoted years in acquiring and
cause the firm with which they become associated to be disqualified.46 Indeed, "to make government service
more difficult to exit can only make it less appealing to enter."47
In interpreting Rule 6.03, the Court also cast a harsh eye on its use as a litigation tactic to harass opposing
counsel as well as deprive his client of competent legal representation. The danger that the rule will be
misused to bludgeon an opposing counsel is not a mere guesswork. The Court of Appeals for the District of
Columbia has noted "the tactical use of motions to disqualify counsel in order to delay proceedings, deprive the
opposing party of counsel of its choice, and harass and embarrass the opponent," and observed that the tactic
was "so prevalent in large civil cases in recent years as to prompt frequent judicial and academic
commentary."48 Even the United States Supreme Court found no quarrel with the Court of Appeals description
of disqualification motions as "a dangerous game."49 In the case at bar, the new attempt to disqualify
respondent Mendoza is difficult to divine. The disqualification of respondent Mendoza has long been a dead
issue. It was resuscitated after the lapse of many years and only after PCGG has lost many legal incidents in
the hands of respondent Mendoza. For a fact, the recycled motion for disqualification in the case at bar was
filed more than four years after the filing of the petitions for certiorari, prohibition and injunction with the
Supreme Court which were subsequently remanded to the Sandiganbayan and docketed as Civil Case Nos.
0096-0099.50 At the very least, the circumstances under which the motion to disqualify in the case at bar were
refiled put petitioners motive as highly suspect.
Similarly, the Court in interpreting Rule 6.03 was not unconcerned with the prejudice to the client which
will be caused by its misapplication. It cannot be doubted that granting a disqualification motion causes the
client to lose not only the law firm of choice, but probably an individual lawyer in whom the client has
confidence.51 The client with a disqualified lawyer must start again often without the benefit of the work done by
the latter.52 The effects of this prejudice to the right to choose an effective counsel cannot be overstated for it
can result in denial of due process.
The Court has to consider also the possible adverse effect of a truncated reading of the rule on the
official independence of lawyers in the government service. According to Prof. Morgan: "An individual who
has the security of knowing he or she can find private employment upon leaving the government is free to work
vigorously, challenge official positions when he or she believes them to be in error, and resist illegal demands
by superiors. An employee who lacks this assurance of private employment does not enjoy such
freedom."53 He adds: "Any system that affects the right to take a new job affects the ability to quit the old job
and any limit on the ability to quit inhibits official independence."54 The case at bar involves the position of
Solicitor General, the office once occupied by respondent Mendoza. It cannot be overly stressed
that the position of Solicitor General should be endowed with a great degree of independence. It is this
independence that allows the Solicitor General to recommend acquittal of the innocent; it is this independence
that gives him the right to refuse to defend officials who violate the trust of their office. Any undue dimunition of
the independence of the Solicitor General will have a corrosive effect on the rule of law.

No less significant a consideration is the deprivation of the former government lawyer of the freedom
to exercise his profession. Given the current state of our law, the disqualification of a former government
lawyer may extend to all members of his law firm.55 Former government lawyers stand in danger of becoming
the lepers of the legal profession.
It is, however, proffered that the mischief sought to be remedied by Rule 6.03 of the Code of Professional
Responsibility is the possible appearance of impropriety and loss of public confidence in government. But as
well observed, the accuracy of gauging public perceptions is a highly speculative exercise at best56 which can
lead to untoward results.57 No less than Judge Kaufman doubts that the lessening of restrictions as to former
government attorneys will have any detrimental effect on that free flow of information between the governmentclient and its attorneys which the canons seek to protect.58 Notably, the appearance of impropriety theory
has been rejected in the 1983 ABA Model Rules of Professional Conduct59 and some courts have
abandonedper se disqualification based on Canons 4 and 9 when an actual conflict of interest exists, and
demand an evaluation of the interests of the defendant, government, the witnesses in the case, and the
public.60
It is also submitted that the Court should apply Rule 6.03 in all its strictness for it correctly disfavors lawyers
who"switch sides." It is claimed that "switching sides" carries the danger that former government employee
maycompromise confidential official information in the process. But this concern does not cast a shadow in
the case at bar. As afore-discussed, the act of respondent Mendoza in informing the Central Bank on the
procedure how to liquidate GENBANK is a different matter from the subject matter of Civil Case No. 0005
which is about the sequestration of the shares of respondents Tan, et al., in Allied Bank. Consequently, the
danger that confidential official information might be divulged is nil, if not inexistent. To be sure, there are no
inconsistent "sides" to be bothered about in the case at bar. For there is no question that in lawyering for
respondents Tan, et al., respondent Mendoza is not working against the interest of Central Bank. On the
contrary, he is indirectly defending the validity of the action of Central Bank in liquidating GENBANK and selling
it later to Allied Bank. Their interests coincide instead of colliding. It is for this reason that Central Bank
offered no objection to the lawyering of respondent Mendoza in Civil Case No. 0005 in defense of respondents
Tan, et al. There is no switching of sides for no two sides are involved.
It is also urged that the Court should consider that Rule 6.03 is intended to avoid conflict of loyalties, i.e., that
a government employee might be subject to a conflict of loyalties while still in government service. 61 The
example given by the proponents of this argument is that a lawyer who plans to work for the company that he
or she is currently charged with prosecuting might be tempted to prosecute less vigorously.62 In the cautionary
words of the Association of the Bar Committee in 1960: "The greatest public risks arising from post
employment conduct may well occur during the period of employment through the dampening of aggressive
administration of government policies."63 Prof. Morgan, however, considers this concern as "probably
excessive."64 He opines "x x x it is hard to imagine that a private firm would feel secure hiding someone who
had just been disloyal to his or her last client the government. Interviews with lawyers consistently confirm
that law firms want the best government lawyers the ones who were hardest to beat not the least qualified
or least vigorous advocates."65But again, this particular concern is a non factor in the case at bar. There is
no charge against respondent Mendoza that he advised Central Bank on how to liquidate GENBANK with an
eye in later defending respondents Tan, et al. of Allied Bank. Indeed, he continues defending both the interests
of Central Bank and respondents Tan, et al. in the above cases.
Likewise, the Court is nudged to consider the need to curtail what is perceived as the "excessive influence of
former officials" or their "clout."66 Prof. Morgan again warns against extending this concern too far. He
explains the rationale for his warning, viz: "Much of what appears to be an employees influence may actually
be the power or authority of his or her position, power that evaporates quickly upon departure from government
x x x."67 More, he contends that the concern can be demeaning to those sitting in government. To quote him
further: "x x x The idea that, present officials make significant decisions based on friendship rather than on the
merit says more about the present officials than about their former co-worker friends. It implies a lack of will or
talent, or both, in federal officials that does not seem justified or intended, and it ignores the possibility that the
officials will tend to disfavor their friends in order to avoid even the appearance of favoritism." 68
III

The question of fairness

Mr. Justices Panganiban and Carpio are of the view, among others, that the congruent interest prong of Rule
6.03 of the Code of Professional Responsibility should be subject to a prescriptive period. Mr. Justice Tinga
opines that the rule cannot apply retroactively to respondent Mendoza. Obviously, and rightly so, they are
disquieted by the fact that (1) when respondent Mendoza was the Solicitor General, Rule 6.03 has not yet
adopted by the IBP and approved by this Court, and (2) the bid to disqualify respondent Mendoza was made
after the lapse of time whose length cannot, by any standard, qualify as reasonable. At bottom, the point they
make relates to the unfairness of the rule if applied without any prescriptive period and retroactively, at that.
Their concern is legitimate and deserves to be initially addressed by the IBP and our Committee on Revision of
the Rules of Court.
IN VIEW WHEREOF, the petition assailing the resolutions dated July 11, 2001 and December 5, 2001 of the
Fifth Division of the Sandiganbayan in Civil Case Nos. 0096-0099 is denied.
No cost.
SO ORDERED.