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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

A.M. No. 1625 February 12, 1990

ANGEL L. BAUTISTA, complainant,


vs.
ATTY. RAMON A. GONZALES, respondent.

RESOLUTION

PER CURIAM:

In a verified complaint filed by Angel L. Bautista on May 19, 1976, respondent Ramon A.
Gonzales was charged with malpractice, deceit, gross misconduct and violation of lawyer's oath.
Required by this Court to answer the charges against him, respondent filed on June 19, 1976 a
motion for a bill of particulars asking this Court to order complainant to amend his complaint by
making his charges more definite. In a resolution dated June 28, 1976, the Court granted
respondent's motion and required complainant to file an amended complaint. On July 15, 1976,
complainant submitted an amended complaint for disbarment, alleging that respondent committed
the following acts:

1. Accepting a case wherein he agreed with his clients, namely, Alfaro Fortunado, Nestor
Fortunado and Editha Fortunado [hereinafter referred to as the Fortunados] to pay all expenses,
including court fees, for a contingent fee of fifty percent (50%) of the value of the property in
litigation.

2. Acting as counsel for the Fortunados in Civil Case No. Q-15143, wherein Eusebio Lopez, Jr. is
one of the defendants and, without said case being terminated, acting as counsel for Eusebio
Lopez, Jr. in Civil Case No. Q-15490;

3. Transferring to himself one-half of the properties of the Fortunados, which properties are the
subject of the litigation in Civil Case No. Q-15143, while the case was still pending;

4. Inducing complainant, who was his former client, to enter into a contract with him on August
30, 1971 for the development into a residential subdivision of the land involved in Civil Case No.
Q-15143, covered by TCT No. T-1929, claiming that he acquired fifty percent (50%) interest
thereof as attorney's fees from the Fortunados, while knowing fully well that the said property was
already sold at a public auction on June 30, 1971, by the Provincial Sheriff of Lanao del Norte
and registered with the Register of Deeds of Iligan City;

5. Submitting to the Court of First Instance of Quezon City falsified documents purporting to be
true copies of "Addendum to the Land Development Agreement dated August 30, 1971" and
submitting the same document to the Fiscal's Office of Quezon City, in connection with the
complaint for estafa filed by respondent against complainant designated as I.S. No. 7512936;
6. Committing acts of treachery and disloyalty to complainant who was his client;

7. Harassing the complainant by filing several complaints without legal basis before the Court of
First Instance and the Fiscal's Office of Quezon City;

8. Deliberately misleading the Court of First Instance and the Fiscal's Office by making false
assertion of facts in his pleadings;

9. Filing petitions "cleverly prepared (so) that while he does not intentionally tell a he, he does not
tell the truth either."

Respondent filed an answer on September 29, 1976 and an amended answer on November 18,
1976, denying the accusations against him. Complainant filed a reply to respondent's answer on
December 29, 1976 and on March 24, 1977 respondent filed a rejoinder.

In a resolution dated March 16, 1983, the Court referred the case to the Office of the Solicitor
General for investigation, report and recommendation. In the investigation conducted by the
Solicitor General, complainant presented himself as a witness and submitted Exhibits "A" to "PP",
while respondent appeared both as witness and counsel and submitted Exhibits "1" to "11". The
parties were required to submit their respective memoranda.

On May 16, 1988 respondent filed a motion to dismiss the complaint against him, claiming that
the long delay in the resolution of the complaint against him constitutes a violation of his
constitutional right to due process and speedy disposition of cases. Upon order of the Court, the
Solicitor General filed a comment to the motion to dismiss on August 8, 1988, explaining that the
delay in the investigation of the case was due to the numerous requests for postponement of
scheduled hearings filed by both parties and the motions for extension of time to file their
respective memoranda." [Comment of the Solicitor General, p. 2; Record, p. 365]. Respondent
filed a reply to the Solicitor General's comment on October 26, 1988. In a resolution dated
January 16, 1989 the Court required the Solicitor General to submit his report and
recommendation within thirty (30) days from notice.

On April 11, 1989, the Solicitor General submitted his report with the recommendation that Atty.
Ramon A. Gonzales be suspended for six (6) months. The Solicitor General found that
respondent committed the following acts of misconduct:

a. transferring to himself one-half of the properties of his clients during the


pendency of the case where the properties were involved;

b. concealing from complainant the fact that the property subject of their land
development agreement had already been sold at a public auction prior to the
execution of said agreement; and

c. misleading the court by submitting alleged true copies of a document where


two signatories who had not signed the original (or even the xerox copy) were
made to appear as having fixed their signatures [Report and Recommendation of
the Solicitor General, pp. 17-18; Rollo, pp. 403-404].

Respondent then filed on April 14, 1989 a motion to refer the case to the Integrated Bar of the
Philippines (IBP) for investigation and disposition pursuant to Rule 139-B of the Revised Rules of
Court. Respondent manifested that he intends to submit more evidence before the IBP. Finally,
on November 27, 1989, respondent filed a supplemental motion to refer this case to the IBP,
containing additional arguments to bolster his contentions in his previous pleadings.
I.

Preliminarily, the Court will dispose of the procedural issue raised by respondent. It is
respondent's contention that the preliminary investigation conducted by the Solicitor General was
limited to the determination of whether or not there is sufficient ground to proceed with the case
and that under Rule 139 the Solicitor General still has to file an administrative complaint against
him. Respondent claims that the case should be referred to the IBP since Section 20 of Rule 139-
B provides that:

This Rule shall take effect on June 1, 1988 and shall supersede the present Rule
139 entitled DISBARMENT OR SUSPENSION OF ATTORNEYS. All cases
pending investigation by the Office of the Solicitor General shall be transferred to
the Integrated Bar of the Philippines Board of Governors for investigation and
disposition as provided in this Rule except those cases where the investigation
has been substantially completed.

The above contention of respondent is untenable. In the first place, contrary to respondent's
claim, reference to the IBP of complaints against lawyers is not mandatory upon the Court
[Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707; Zaldivar v. Gonzales, G.R. No. 80578,
October 7, 1988]. Reference of complaints to the IBP is not an exclusive procedure under the
terms of Rule 139-B of the Revised Rules of Court [Ibid]. Under Sections 13 and 14 of Rule 139-
B, the Supreme Court may conduct disciplinary proceedings without the intervention of the IBP by
referring cases for investigation to the Solicitor General or to any officer of the Supreme Court or
judge of a lower court. In such a case, the report and recommendation of the investigating official
shall be reviewed directly by the Supreme Court. The Court shall base its final action on the case
on the report and recommendation submitted by the investigating official and the evidence
presented by the parties during the investigation.

Secondly, there is no need to refer the case to the IBP since at the time of the effectivity of Rule
139-B [June 1, 1988] the investigation conducted by the Office of the Solicitor General had been
substantially completed. Section 20 of Rule 139-B provides that only pending cases, the
investigation of which has not been substantially completed by the Office of the Solicitor General,
shall be transferred to the IBP. In this case the investigation by the Solicitor General was
terminated even before the effectivity of Rule 139-B. Respondent himself admitted in his motion
to dismiss that the Solicitor General terminated the investigation on November 26, 1986, the date
when respondent submitted his reply memorandum [Motion to Dismiss, p. 1; Record, p. 353].

Thirdly, there is no need for further investigation since the Office of the Solicitor General already
made a thorough and comprehensive investigation of the case. To refer the case to the IBP, as
prayed for by the respondent, will result not only in duplication of the proceedings conducted by
the Solicitor General but also to further delay in the disposition of the present case which has
lasted for more than thirteen (13) years.

Respondent's assertion that he still has some evidence to present does not warrant the referral of
the case to the IBP. Considering that in the investigation conducted by the Solicitor General
respondent was given ample opportunity to present evidence, his failure to adduce additional
evidence is entirely his own fault. There was therefore no denial of procedural due process. The
record shows that respondent appeared as witness for himself and presented no less than eleven
(11) documents to support his contentions. He was also allowed to cross-examine the
complainant who appeared as a witness against him.

II.
The Court will now address the substantive issue of whether or not respondent committed the
acts of misconduct alleged by complainant Bautista.

After a careful review of the record of the case and the report and recommendation of the
Solicitor General, the Court finds that respondent committed acts of misconduct which warrant
the exercise by this Court of its disciplinary power.

The record shows that respondent prepared a document entitled "Transfer of Rights" which was
signed by the Fortunados on August 31, 1971. The document assigned to respondent one-half
(1/2) of the properties of the Fortunados covered by TCT No. T-1929, with an area of 239.650 sq.
mm., and TCT No. T-3041, with an area of 72.907 sq. m., for and in consideration of his legal
services to the latter. At the time the document was executed, respondent knew that the
abovementioned properties were the subject of a civil case [Civil Case No. Q-15143] pending
before the Court of First Instance of Quezon City since he was acting as counsel for the
Fortunados in said case [See Annex "B" of Original Complaint, p. 12; Rollo, p. 16]. In executing
the document transferring one-half (1/2) of the subject properties to himself, respondent violated
the law expressly prohibiting a lawyer from acquiring his client's property or interest involved in
any litigation in which he may take part by virtue of his profession [Article 1491, New Civil Code].
This Court has held that the purchase by a lawyer of his client's property or interest in litigation is
a breach of professional ethics and constitutes malpractice [Hernandez v. Villanueva, 40 Phil. 774
(1920); Go Beltran v. Fernandez, 70 Phil. 248 (1940)].

However, respondent notes that Canon 10 of the old Canons of Professional Ethics, which states
that "[t]he lawyer should not purchase any interests in the subject matter of the litigation which he
is conducting," does not appear anymore in the new Code of Professional Responsibility. He
therefore concludes that while a purchase by a lawyer of property in litigation is void under Art.
1491 of the Civil Code, such purchase is no longer a ground for disciplinary action under the new
Code of Professional Responsibility.

This contention is without merit. The very first Canon of the new Code states that "a lawyer shall
uphold the Constitution, obey the laws of the land and promote respect for law and legal process"
(Emphasis supplied), Moreover, Rule 138, Sec. 3 of the Revised Rules of Court requires every
lawyer to take an oath to 44 obey the laws [of the Republic of the Philippines] as well as the legal
orders of the duly constituted authorities therein." And for any violation of this oath, a lawyer may
be suspended or disbarred by the Supreme Court [Rule 138, Sec. 27, Revised Rules of Court].
All of these underscore the role of the lawyer as the vanguard of our legal system. The
transgression of any provision of law by a lawyer is a repulsive and reprehensible act which the
Court will not countenance. In the instant case, respondent, having violated Art. 1491 of the Civil
Code, must be held accountable both to his client and to society.

Parenthetically, it should be noted that the persons mentioned in Art. 1491 of the Civil Code are
prohibited from purchasing the property mentioned therein because of their existing trust
relationship with the latter. A lawyer is disqualified from acquiring by purchase the property and
rights in litigation because of his fiduciary relationship with such property and rights, as well as
with the client. And it cannot be claimed that the new Code of Professional Responsibility has
failed to emphasize the nature and consequences of such relationship. Canon 17 states that "a
lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence
reposed in him." On the other hand, Canon 16 provides that "a lawyer shall hold in trust all
moneys and properties of his client that may come into his possession." Hence, notwithstanding
the absence of a specific provision on the matter in the new Code, the Court, considering the
abovequoted provisions of the new Code in relation to Art. 1491 of the Civil Code, as well as the
prevailing jurisprudence, holds that the purchase by a lawyer of his client's property in litigation
constitutes a breach of professional ethics for which a disciplinary action may be brought against
him.
Respondent's next contention that the transfer of the properties was not really implemented,
because the land development agreement on which the transfer depended was later rescinded, is
untenable. Nowhere is it provided in the Transfer of Rights that the assignment of the properties
of the Fortunados to respondent was subject to the implementation of the land development
agreement. The last paragraph of the Transfer of Rights provides that:

... for and in consideration of the legal services of ATTY. RAMON A.


GONZALES, Filipino, married to Lilia Yusay, and a resident of 23 Sunrise Hill,
New Manila, Quezon City, rendered to our entire satisfaction, we hereby, by
these presents, do transfer and convey to the said ATTY. RAMON A.
GONZALES, his heirs, successor, and assigns, one-half (1/2) of our rights and
interests in the abovedescribed property, together with all the improvements
found therein [Annex D of the Complaint, Record, p. 28; Emphasis supplied].

It is clear from the foregoing that the parties intended the transfer of the properties to respondent
to be absolute and unconditional, and irrespective of whether or not the land development
agreement was implemented.

Another misconduct committed by respondent was his failure to disclose to complainant, at the
time the land development agreement was entered into, that the land covered by TCT No. T-1929
had already been sold at a public auction. The land development agreement was executed on
August 31, 1977 while the public auction was held on June 30, 1971.

Respondent denies that complainant was his former client, claiming that his appearance for the
complainant in an anti-graft case filed by the latter against a certain Gilbert Teodoro was upon the
request of complainant and was understood to be only provisional. Respondent claims that since
complainant was not his client, he had no duty to warn complainant of the fact that the land
involved in their land development agreement had been sold at a public auction. Moreover, the
sale was duly annotated at the back of TCT No. T-1929 and this, respondent argues, serves as
constructive notice to complainant so that there was no concealment on his part.

The above contentions are unmeritorious. Even assuming that the certificate of sale was
annotated at the back of TCT No. T-1929, the fact remains that respondent failed to inform the
complainant of the sale of the land to Samauna during the negotiations for the land development
agreement. In so doing, respondent failed to live up to the rigorous standards of ethics of the law
profession which place a premium on honesty and condemn duplicitous conduct. The fact that
complainant was not a former client of respondent does not exempt respondent from his duty to
inform complainant of an important fact pertaining to the land which is subject of their negotiation.
Since he was a party to the land development agreement, respondent should have warned the
complainant of the sale of the land at a public auction so that the latter could make a proper
assessment of the viability of the project they were jointly undertaking. This Court has held that a
lawyer should observe honesty and fairness even in his private dealings and failure to do so is a
ground for disciplinary action against him [Custodio v. Esto, Adm. Case No. 1113, February 22,
1978, 81 SCRA 517].

Complainant also charges respondent with submitting to the court falsified documents purporting
to be true copies of an addendum to the land development agreement.

Based on evidence submitted by the parties, the Solicitor General found that in the document
filed by respondent with the Court of First Instance of Quezon City, the signatories to the
addendum to the land development agreement namely, Ramon A. Gonzales, Alfaro T. Fortunado,
Editha T. Fortunado, Nestor T. Fortunado, and Angel L. Bautistawere made to appear as
having signed the original document on December 9, 1972, as indicated by the letters (SGD.)
before each of their names. However, it was only respondent Alfaro Fortunado and complainant
who signed the original and duplicate original (Exh. 2) and the two other parties, Edith Fortunado
and Nestor Fortunado, never did. Even respondent himself admitted that Edith and Nestor
Fortunado only signed the xerox copy (Exh. 2-A) after respondent wrote them on May 24, 1973,
asking them to sign the said xerox copy attached to the letter and to send it back to him after
signing [Rejoinder to Complainant's Reply, pp. 4-6; Rollo, pp. 327-329]. Moreover, respondent
acknowledged that Edith and Nestor Fortunado had merely agreed by phone to sign, but had not
actually signed, the alleged true copy of the addendum as of May 23, 1973 [Respondent's
Supplemental Motion to Refer this Case to the Integrated Bar of the Philippines, p. 16]. Thus,
when respondent submitted the alleged true copy of the addendum on May 23, 1973 as Annex
"A" of his Manifestation filed with the Court of First Instance of Quezon City, he knowingly misled
the Court into believing that the original addendum was signed by Edith Fortunado and Nestor
Fortunado. Such conduct constitutes willful disregard of his solemn duty as a lawyer to act at all
times in a manner consistent with the truth. A lawyer should never seek to mislead the court by
an artifice or false statement of fact or law [Section 20 (d), Rule 138, Revised Rules of Court;
Canon 22, Canons of Professional Ethics; Canon 10, Rule 10.01, Code of Professional
Responsibility].

Anent the first charge of complainant, the Solicitor General found that no impropriety was
committed by respondent in entering into a contingent fee contract with the Fortunados [Report
and Recommendation, p. 8; Record, p. 394]. The Court, however, finds that the agreement
between the respondent and the Fortunados, which provides in part that:

We the [Fortunados] agree on the 50% contingent fee, provided, you [respondent
Ramon Gonzales] defray all expenses, for the suit, including court fees.

is contrary to Canon 42 of the Canons of Professional Ethics which provides that a lawyer may
not properly agree with a client to pay or bear the expenses of litigation. [See also Rule 16.04,
Code of Professional Responsibility]. Although a lawyer may in good faith, advance the expenses
of litigation, the same should be subject to reimbursement. The agreement between respondent
and the Fortunados, however, does not provide for reimbursement to respondent of litigation
expenses paid by him. An agreement whereby an attorney agrees to pay expenses of
proceedings to enforce the client's rights is champertous [JBP Holding Corp. v. U.S. 166 F. Supp.
324 (1958)]. Such agreements are against public policy especially where, as in this case, the
attorney has agreed to carry on the action at his own expense in consideration of some bargain to
have part of the thing in dispute [See Sampliner v. Motion Pictures Patents Co., et al., 255 F. 242
(1918)]. The execution of these contracts violates the fiduciary relationship between the lawyer
and his client, for which the former must incur administrative sanctions.

The Solicitor General next concludes that respondent cannot be held liable for acting as counsel
for Eusebio Lopez, Jr. in Civil Case No. Q-15490 while acting as counsel for the Fortunados
against the same Eusebio Lopez, Jr. in Civil Case No. Q-15143. The Court, after considering the
record, agrees with the Solicitor General's findings on the matter. The evidence presented by
respondent shows that his acceptance of Civil Case No. Q-15490 was with the knowledge and
consent of the Fortunados. The affidavit executed by the Fortunados on June 23, 1976 clearly
states that they gave their consent when respondent accepted the case of Eusebio Lopez, Jr.
[Affidavit of Fortunados, dated June 23, 1976; Rollo, p. 198]. One of the recognized exceptions to
the rule against representation of conflicting interests is where the clients knowingly consent to
the dual representation after full disclosure of the facts by counsel [Canon 6, Canons of
Professional Ethics; Canon 15, Rule 15.03, Code of Professional Responsibility].

Complainant also claims that respondent filed several complaints against him before the Court of
First Instance and the Fiscal's Office of Quezon City for the sole purpose of harassing him.

The record shows that at the time of the Solicitor General's investigation of this case, Civil Case
No. Q-18060 was still pending before the Court of First Instance of Quezon City, while the
complaints for libel (I.S. No. 76-5912) and perjury (I.S. No. 5913) were already dismissed by the
City Fiscal for insufficiency of evidence and lack of interest, respectively [Report and
Recommendation, pp. 16-17; Rollo, pp. 402-403]. The Solicitor General found no basis for
holding that the complaints for libel and perjury were used by respondent to harass complainant.
As to Civil Case No. Q-18060, considering that it was still pending resolution, the Solicitor
General made no finding on complainants claim that it was a mere ploy by respondent to harass
him. The determination of the validity of the complaint in Civil Case No. Q-18060 was left to the
Court of First Instance of Quezon City where the case was pending resolution.

The Court agrees with the above findings of the Solicitor General, and accordingly holds that
there is no basis for holding that the respondent's sole purpose in filing the aforementioned cases
was to harass complainant.

Grounds 6, 8 and 9 alleged in the complaint need not be discussed separately since the above
discussion on the other grounds sufficiently cover these remaining grounds.

The Court finds clearly established in this case that on four counts the respondent violated the
law and the rules governing the conduct of a member of the legal profession. Sworn to assist in
the administration of justice and to uphold the rule of law, he has "miserably failed to live up to the
standards expected of a member of the Bar." [Artiaga v. Villanueva, Adm. Matter No. 1892, July
29, 1988, 163 SCRA 638, 647]. The Court agrees with the Solicitor General that, considering the
nature of the offenses committed by respondent and the facts and circumstances of the case,
respondent lawyer should be suspended from the practice of law for a period of six (6) months.

WHEREFORE, finding that respondent Attorney Ramon A. Gonzales committed serious


misconduct, the Court Resolved to SUSPEND respondent from the practice of law for SIX (6)
months effective from the date of his receipt of this Resolution. Let copies of this Resolution be
circulated to all courts of the country for their information and guidance, and spread in the
personal record of Atty. Gonzales.

SO ORDERED

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. 79690-707 February 1, 1989

ENRIQUE A. ZALDIVAR, petitioner,


vs.
THE HONORABLE SANDIGANBAYAN and HONORABLE RAUL M. GONZALEZ, claiming to
be and acting as Tanodbayan-Ombudsman under the 1987 Constitution, respondents.

G.R. No. 80578 February 1, 1989

ENRIQUE A. ZALDIVAR, petitioner,


vs.
HON. RAUL M. GONZALES, claiming to be and acting as Tanodbayan-Ombudsman under
the 1987 Constitution, respondent.

RESOLUTION
PER CURIAM:

We have examined carefully the lengthy and vigorously written Motion for Reconsideration dated
October 18, 1988 filed by counsel for respondent Raul M. Gonzalez, relating to the per
curiam Resolution of the Court dated October 7, 1988. We have reviewed once more the Court's
extended per curiam Resolution, in the light of the argument adduced in the Motion for
Reconsideration, but must conclude that we find no sufficient basis for modifying the conclusions
and rulings embodied in that Resolution. The Motion for Reconsideration sets forth copious
quotations and references to foreign texts which, however, whatever else they may depict, do not
reflect the law in this jurisdiction.

Nonetheless, it might be useful to develop further, in some measure, some of the conclusions
reached in the per curiam Resolution, addressing in the process some of the "Ten (10) Legal
Points for Reconsideration," made in the Motion for Reconsideration.

1. In respondent's point A, it is claimed that it was error for this Court "to charge
respondent [with] indirect contempt and convict him of direct contempt."

In the per curiam Resolution (page 50), the Court concluded that "respondent Gonzalez is guilty
both of contempt of court in facie curiae and of gross misconduct as an officer of the court and
member of the bar." The Court did not use the phrase "in facie curiae" as a technical equivalent
of "direct contempt," though we are aware that courts in the United States have sometimes used
that phrase in speaking of "direct contempts' as "contempts in the face of the courts." Rather, the
court sought to convey that it regarded the contumacious acts or statements (which were made
both in a pleading filed before the Court and in statements given to the media) and the
misconduct of respondent Gonzalez as serious acts flaunted in the face of the Court and
constituting a frontal assault upon the integrity of the Court and, through the Court, the entire
judicial system. What the Court would stress is that it required respondent, in its Resolution dated
2 May 1988, to explain "why he should not be punished for contempt of court and/or subjected to
administrative sanctions" and in respect of which, respondent was heard and given the most
ample opportunity to present all defenses, arguments and evidence that he wanted to present for
the consideration of this Court. The Court did not summarily impose punishment upon the
respondent which it could have done under Section 1 of Rule 71 of the Revised Rules of Court
had it chosen to consider respondent's acts as constituting "direct contempt."

2. In his point C, respondent's counsel argues that it was "error for this Court to
charge respondent under Rule 139 (b) and not 139 of the Revised Rules of
Court."

In its per curiam Resolution, the Court referred to Rule 139 (b) of the Revised Rules of Court
pointing out that:

[R]eference of complaints against attorneys either to the Integrated Bar of the


Philippines or to the Solicitor General is not mandatory upon the Supreme Court
such reference to the Integrated Bar of the Philippines or to the Solicitor General
is certainly not an exclusive procedure under the terms of Rule 139 (b) of the
Revised Rules of Court, especially where the charge consists of acts done before
the Supreme Court.

The above statement was made by the Court in response to respondent's motion for referral of
this case either to the Solicitor General or to the Integrated Bar of the Philippines under Rule 139
(b). Otherwise, there would have been no need to refer to Rule 139 (b). It is thus only necessary
to point out that under the old rule, Rule 139, referral to the Solicitor General was similarly not an
exclusive procedure and was not the only course of action open to the Supreme Court. It is well
to recall that under Section 1 (entitled "Motion or complaint") of Rule 139, "Proceedings for the
removal or suspension of attorneys may be taken by the Supreme Court, (1) on its own motion, or
(2) upon the complaint under oath of another in writing" (Parentheses supplied). The procedure
described in Sections 2 et seq. of Rule 139 is the procedure provided for suspension or
disbarment proceedings initiated upon sworn complaint of another person, rather than a
procedure required for proceedings initiated by the Supreme Court on its own motion. It is
inconceivable that the Supreme Court would initiate motu proprio proceedings for which it did not
find probable cause to proceed against an attorney. Thus, there is no need to refer a case to the
Solicitor General, which referral is made "for investigation to determine if there is sufficient ground
to proceed with the prosecution of the respondent" (Section 3, Rule 139), where the Court itself
has initiated against the respondent. The Court may, of course, refer a case to the Solicitor
General if it feels that, in a particular case, further factual investigation is needed. In the present
case, as pointed out in the per curiam Resolution of the Court (page 18), there was "no need for
further investigation of facts in the present case for it [was] not substantially disputed by
respondent Gonzalez that he uttered or wrote certain statements attributed to him" and that "in
any case, respondent has had the amplest opportunity to present his defense: his defense is not
that he did not make the statements ascribed to him but that those statements give rise to no
liability on his part, having been made in the exercise of his freedom of speech. The issues which
thus need to be resolved here are issues of law and of basic policy and the Court, not any other
agency, is compelled to resolve such issues."

In this connection, we note that the quotation in page 7 of the Motion for Reconsideration is from
1
a dissentingopinion of Mr. Justice Black in Green v. United State. It may be pointed out that the
majority in Green v. United States,through Mr. Justice Harlan, held, among other things, that:
Federal courts do not lack power to impose sentences in excess of one year for criminal
contempt; that criminal contempts are not subject to jury trial as a matter of constitutional right;
nor does the (US) Constitution require that contempt subject to prison terms of more than one
year be based on grand jury indictments.

In his concurring opinion in the same case, Mr. Justice Frankfurter said:

Whatever the conflicting views of scholars in construing more or less dubious


manuscripts of the Fourteenth Century, what is indisputable is that from the
foundation of the United States the constitutionality of the power to punish for
contempt without the intervention of a jury has not been doubted. The First
Judiciary Act conferred such a power on the federal courts in the very act of their
establishment, 1 State 73, 83, and of the Judiciary Committee of eight that
reported the bill to the Senate, five member including the chairman, Senator,
later to be Chief Justice, Ellsworth, had been delegates to the Constitutional
Convention (Oliver Ellsworth, Chairman, William Paterson, Caleb Strong, Ricard
Basett, William Few. 1 Annals of Cong 17). In the First Congress itself no less
than nineteen member including Madison who contemporaneously introduced
the Bill of Rights, had been delegates to the Convention. And when an abuse
under this power manifested itself, and led Congress to define more explicitly the
summary power vested in the courts, it did not remotely deny the existence of the
power but merely defined the conditions for its exercise more clearly, in an Act
"declaratory of the law concerning contempts of court." Act of Mar. 2, 1831, 4
Stat 487.

xxxxxxxxx

Nor has the constitutionality of the power been doubted by this Court throughout
its existence . In at least two score cases in this Court, not to mention the vast
mass of decisions in the lower federal courts, the power to punish summarily has
2
been accepted without question. ...
To say that a judge who punishes a contemnor judges his own cause, is simplistic at best. The
judge who finds himself compelled to exercise the power to punish for contempt does so not
really to avenge a wrong inflicted upon his own person; rather he upholds and vindicates the
authority, dignity and integrity of the judicial institution and its claim to respectful behaviour on the
part of all persons who appears before it, and most especially from those who are officers of the
court.

3. In his point D, respondent counsel urges that it is error "for this Court to apply
the "visible tendency" rule rather than the "clear and present danger" rule in
disciplinary and contempt charges."

The Court did not purport to announce a new doctrine of "visible tendency," it was, more
modestly, simply paraphrasing Section 3 (d) of Rule 71 of the Revised Rules of Court which
penalizes a variety of contumacious conduct including: "any improper conduct tending, directly or
indirectly, to impede, obstruct or degrade the administration of justice."

The "clear and present danger" doctrine invoked by respondent's counsel is not a magic
incantation which dissolves all problems and dispenses with analysis and judgment in the testing
of the legitimacy of claims to free speech, and which compels a court to exonerate a defendant
the moment the doctrine is invoked, absent proof of impending apocalypse. The clear and
present danger" doctrine has been an accepted method for marking out the appropriate limits of
freedom of speech and of assembly in certain contexts. It is not, however, the only test which has
3
been recognized and applied by courts. In Logunzad v. Vda. de Gonzales, this Court, speaking
through Mme. Justice Melencio-Herrera said:

...The right of freedom of expression indeed, occupies a preferred position in the


"hierarchy of civil liberties" (Philippine Blooming Mills Employees Organization v.
Philippine Blooming Mills Co., Inc., 51 SCRA 191 [1963]. It is not, however,
without limitations. As held in Gonzales v. Commission on Elections, 27 SCRA
835, 858 [1960]:

"From the language of the specific constitutional provision, it would appear that
the right is not susceptible of any limitation. No law may be passed abridging the
freedom of speech and of the press. The realities of life in a complex society
preclude however, a literal interpretation. Freedom of expression is not an
absolute. It would be too much to insist that all times and under all circumstances
it should remain unfettered and unrestrained. There are other societal values that
press for recognition."

The prevailing doctrine is that the clear and present danger rule is such a
limitation. Another criterion for permissible limitation on freedom of speech and of
the press, which includes such vehicles of the mass media as radio, television
and the movies, is the "balancing-of-interests test" (Chief Justice Enrique M.
Fernando on the Bill of Rights, 1970 ed., p. 79). The principle "requires a court to
take conscious and detailed consideration of the interplay of interests observable
in a given situation or type of situation (Separate Opinion of the late Chief Justice
Castro in Gonzales v. Commission on Elections, supra, p. 899). (Emphasis
4
Supplied)

Under either the "clear and present danger" test or the "balancing-of-interest test," we believe that
the statements here made by respondent Gonzalez are of such a nature and were made in such
a manner and under such circumstances, as to transcend the permissible limits of free speech.
This conclusion was implicit in the per curiamResolution of October 7, 1988. It is important to
point out that the "substantive evil" which the Supreme Court has a right and a duty to prevent
does not, in the instant case, relate to threats of physical disorder or overt violence or similar
5
disruptions of public order. What is here at stake is the authority of the Supreme Court to
confront and prevent a "substantive evil" consisting not only of the obstruction of a free and fair
hearing of a particular case but also the avoidance of the broader evil of the degradation of the
judicial system of a country and the destruction of the standards of professional conduct required
from members of the bar and officers of the courts. The "substantive evil" here involved, in other
words, is not as palpable as a threat of public disorder or rioting but is certainly no less
deleterious and more far reaching in its implications for society.

4. In his point H, respondent's counsel argues that it is error "for this Court to
hold that intent is irrelevant in charges of misconduct." What the Court actually
said on this point was:

Respondent Gonzalez disclaims an intent to attack and denigrate the Court. The
subjectivities of the respondent are irrelevant so far as characterization of his
conduct or misconduct is concerned. He will not, however, be allowed to disclaim
the natural and plain import of his words and acts. It is, upon the other hand, not
irrelevant to point out that the respondent offered no apology in his two (2)
explanations and exhibited no repentance (Resolution, p. 7; footnotes omitted).

The actual subjectivities of the respondent are irrelevant because such subjectivities (understood
as pyschological phenomena) cannot be ascertained and reached by the processes of this Court.
Human intent can only be shown derivatively and implied from an examination of acts and
statements. Thus, what the Court was saying was that respondent's disclaimer of an intent to
attack and denigrate the Court, cannot prevail over the plain import of what he did say and do.
Respondent cannot negate the clear import of his acts and statements by simply pleading a
secret intent or state of mind incompatible with those acts or statements. It is scarcely open to
dispute that, e.g., one accused of homicide cannot successfully deny his criminal intent by simply
asserting that while he may have inserted a knife between the victim's ribs, he actually acted from
high motives and kind feelings for the latter.

5 In his point 1, respondent's counsel argues that it is error "for this Court to
punish respondent for contempt of court for out of court publications."

Respondent's counsel asks this Court to follow what he presents as alleged modern trends in the
United Kingdom and in the United States concerning the law of contempt. We are, however,
unable to regard the texts that he cites as binding or persuasive in our jurisdiction. The Court
went to some length to document the state of our case law on this matter in its per
curiam Resolution. There is nothing in the circumstances of this case that would suggest to this
Court that that case law, which has been followed for at least half a century or so, ought to be
reversed.

6. In his point J, respondent's counsel pleads that the imposition of indefinite


suspension from the practice of law constitutes "cruel, degrading or inhuman
punishment". The Court finds it difficult to consider this a substantial
constitutional argument. The indefiniteness of the respondent's suspension, far
from being "cruel" or "degrading" or "inhuman," has the effect of placing, as it
were, the key to the restoration of his rights and privileges as a lawyer in his own
hands. That sanction has the effect of giving respondent the chance to purge
himself in his own good time of his contempt and misconduct by acknowledging
such misconduct, exhibiting appropriate repentance and demonstrating his
willingness and capacity to live up to the exacting standards of conduct rightly
demanded from every member of the bar and officer of the courts.
ACCORDINGLY, the Court Resolved to DENY the Motion for Reconsideration for lack of merit.
The denial is FINAL.

The Court also NOTED the Ex-Parte Manifestation and Motion, dated October 25, 1988 and the
Supplemental Manifestation, dated October 27, 1988, filed by respondent

EN BANC

[SBC Case No. 519. July 31, 1997]

PATRICIA FIGUEROA, complainant, vs. SIMEON BARRANCO, JR., respondent.

RESOLUTION
ROMERO, J.:

In a complaint made way back in 1971, Patricia Figueroa petitioned that respondent Simeon
Barranco, Jr. be denied admission to the legal profession. Respondent had passed the 1970 bar
examinations on the fourth attempt, after unsuccessful attempts in 1966, 1967 and 1968. Before
he could take his oath, however, complainant filed the instant petition averring that respondent
and she had been sweethearts, that a child out of wedlock was born to them and that respondent
did not fulfill his repeated promises to marry her.
The facts were manifested in hearings held before Investigator Victor F. Sevilla in June and
July 1971. Respondent and complainant were townmates in Janiuay, Iloilo. Since 1953, when
they were both in their teens, they were steadies.Respondent even acted as escort to
complainant when she reigned as Queen at the 1953 town fiesta. Complainant first acceded to
sexual congress with respondent sometime in 1960. Their intimacy yielded a son, Rafael
[1]
Barranco, born on December 11, 1964. It was after the child was born, complainant
alleged, that respondent first promised he would marry her after he passes the bar
examinations. Their relationship continued and respondent allegedly made more than twenty or
thirty promises of marriage. He gave only P10.00 for the child on the latters birthdays. Her trust in
him and their relationship ended in 1971, when she learned that respondent married another
woman. Hence, this petition.
Upon complainants motion, the Court authorized the taking of testimonies of witnesses by
deposition in 1972. On February 18, 1974, respondent filed a Manifestation and Motion to
Dismiss the case citing complainants failure to comment on the motion of Judge Cuello seeking
to be relieved from the duty to take aforesaid testimonies by deposition. Complainant filed her
comment stating that she had justifiable reasons in failing to file the earlier comment required and
that she remains interested in the resolution of the present case. On June 18, 1974, the Court
denied respondents motion to dismiss.
On October 2, 1980, the Court once again denied a motion to dismiss on the ground of
[2]
abandonment filed by respondent on September 17, 1979. Respondents third motion to dismiss
[3]
was noted in the Courts Resolution dated September 15, 1982. In 1988, respondent repeated
his request, citing his election as a member of the Sangguniang Bayan of Janiuay, Iloilo from
1980-1986, his active participation in civic organizations and good standing in the community as
well as the length of time this case has been pending as reasons to allow him to take his oath as
[4]
a lawyer.
On September 29, 1988, the Court resolved to dismiss the complaint for failure of
complainant to prosecute the case for an unreasonable period of time and to allow Simeon
[5]
Barranco, Jr. to take the lawyers oath upon payment of the required fees.
Respondents hopes were again dashed on November 17, 1988 when the Court, in response
to complainants opposition, resolved to cancel his scheduled oath-taking. On June 1, 1993, the
Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.
The IBPs report dated May 17, 1997 recommended the dismissal of the case and that
respondent be allowed to take the lawyers oath.
We agree.
Respondent was prevented from taking the lawyers oath in 1971 because of the charges of
gross immorality made by complainant. To recapitulate, respondent bore an illegitimate child with
his sweetheart, Patricia Figueroa, who also claims that he did not fulfill his promise to marry her
after he passes the bar examinations.
We find that these facts do not constitute gross immorality warranting the permanent
exclusion of respondent from the legal profession. His engaging in premarital sexual relations
with complainant and promises to marry suggests a doubtful moral character on his part but the
same does not constitute grossly immoral conduct. The Court has held that to justify suspension
or disbarment the act complained of must not only be immoral, but grossly immoral. A grossly
immoral act is one that is so corrupt and false as to constitute a criminal act or so unprincipled or
[6]
disgraceful as to be reprehensible to a high degree. It is a willful, flagrant, or shameless act
[7]
which shows a moral indifference to the opinion of respectable members of the community.
[8]
We find the ruling in Arciga v. Maniwang quite relevant because mere intimacy between a
man and a woman, both of whom possess no impediment to marry, voluntarily carried on and
devoid of any deceit on the part of respondent, is neither so corrupt nor so unprincipled as to
warrant the imposition of disciplinary sanction against him, even if as a result of such relationship
[9]
a child was born out of wedlock.
Respondent and complainant were sweethearts whose sexual relations were evidently
consensual. We do not find complainants assertions that she had been forced into sexual
intercourse, credible. She continued to see and be respondents girlfriend even after she had
given birth to a son in 1964 and until 1971. All those years of amicable and intimate relations
refute her allegations that she was forced to have sexual congress with him. Complainant was
then an adult who voluntarily and actively pursued their relationship and was not an innocent
young girl who could be easily led astray. Unfortunately, respondent chose to marry and settle
permanently with another woman. We cannot castigate a man for seeking out the partner of his
dreams, for marriage is a sacred and perpetual bond which should be entered into because of
love, not for any other reason.
We cannot help viewing the instant complaint as an act of revenge of a woman scorned,
bitter and unforgiving to the end. It is also intended to make respondent suffer severely and it
seems, perpetually, sacrificing the profession he worked very hard to be admitted into. Even
assuming that his past indiscretions are ignoble, the twenty-six years that respondent has been
prevented from being a lawyer constitute sufficient punishment therefor. During this time there
[10]
appears to be no other indiscretion attributed to him. Respondent, who is now sixty-two years
of age, should thus be allowed, albeit belatedly, to take the lawyers oath.
WHEREFORE, the instant petition is hereby DISMISSED. Respondent Simeon Barranco, Jr.
is ALLOWED to take his oath as a lawyer upon payment of the proper fees.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

A. M. No. 2104 August 24, 1989

NARCISO MELENDREZ and ERLINDA DALMAN, complainants,


vs.
ATTY. REYNERIO I. DECENA, respondent.

PER CURIAM:

1
In a sworn complaint dated 25 September 1979, the spouses Erlinda Dalman and Narciso
Melendrez charged Reynerio I. Decena, a member of the Philippine Bar, with malpractice and
breach of trust. The complainant spouses alleged, among others, that respondent had, by means
of fraud and deceit, taken advantage of their precarious financial situation and his knowledge of
the law to their prejudice, succeeded in divesting them of their only residential lot in Pagadian
City; that respondent, who was their counsel in an estafa case against one Reynaldo Pineda, had
compromised that case without their authority.

In his answer dated 18 March 1980, respondent denied all the charges levelled against him and
prayed for the dismissal of the complaint.

By resolution dated 14 April 1980, the administrative complaint was referred to the Office of the
Solicitor General for investigation, report and recommendation.

Accordingly, the Solicitor General forthwith deputized the City Fiscal of Pagadian City, Jorge T.
Almonte, to conduct the necessary investigation, with instructions to submit thereafter this report
and recommendation thereon. Fiscal Almonte held several hearings on the administrative case
until 15 July 1982, when he requested the Solicitor General to release him from the duty of
investigating the case.

On 10 September 1982, the Solicitor General granted Fiscal Almonte's request and in his stead
appointed the Provincial Fiscal of Zamboanga del Sur, Pedro S. Jamero, who resumed hearings
on 15 June 1983.

Respondent filed with this Court on 9 June 1987, a motion seeking to inhibit Fiscal Jamero from
hearing the case followed by an urgent motion for indefinite postponement of the investigation.
Both motions were denied by the Court in a Resolution dated 21 September 1987 with
instructions to the Solicitor General to complete the investigation of the administrative case and to
render his report and recommendation thereon within thirty (30) days from notice.

2
On 19 July 1988, the Solicitor General submitted his Report and Recommendation dated 21
June 1988. In as Report, after setting out the facts and proceedings held in the present case, the
Solicitor General presented the following:

FINDINGS
Complainants allege that on August 5, 1975, they obtained from respondent a
loan of P 4,000.00. This loan was secured by a real estate mortgage (Annex C,
Complainants' Complaint, p. 16, records).lwph1.t In the said Real Estate
Mortgage document, however, it was made to appear that the amount borrowed
by complainants was P5,000.00. Confronted by this discrepancy, respondent
assured complainants that said document was a mere formality, and upon such
assurance, complainants signed the same. The document was brought by
complainant Narciso Melendres to a Notary Public for notarization. After the
same was notarized, he gave the document to respondent. Despite the
assurance, respondent exacted from complainants P500.00 a month as payment
for what is beyond dispute usurious interest on the P5,000.00 loan. Complainants
religiously paid the obviously usurious interest for three months: September,
October and November, 1975. Then they stopped paying due to financial
reverses. In view of their failure to pay said amounts as interest, respondent
prepared a new document on May 7, 1976, a Real Estate Mortgage (Annex D,
Complaint, p. 18, records) over the same lot 3125-C, replacing the former real
estate mortgage dated August 5, 1975, but this time the sum indicated in said
new contract of mortgage is P 10,000.00, purportedly with interest at 19% per
annum. In this new Real Estate Mortgage, a special power of attorney in favor of
respondent was inserted, authorizing him to sell the mortgaged property at public
auction in the event complainants fail to pay their obligation on or before May 30,
1976. Without explaining the provisions of the new contract to complainants,
respondent insisted that complainants sign the same, again upon the assurance
that the document was a mere formality. Unsuspecting of the motive of
respondent, complainants signed the document. Complainants Narciso
Melendres again brought the same document to a Notary Public for notarization.
After the document was notarized, he brought the same to respondent without
getting a copy of it.

Complainants, relying on the assurance of the respondent that the second Real
Estate Mortgage was but a formality, neither bothered to ask from respondent the
status of their lot nor tried to pay their obligation. For their failure to pay the
obligation, the respondent on October 12, 1976, applied for the extrajudicial
foreclosure of the second real estate mortgage (Exhibit 16, Respondent's
Position Paper). All the requirements of Act No. 3135, as amended, re
extrajudicial sale of mortgage were ostensibly complied with by respondent.
Hence, finally, title was transferred to him, and on June 20, 1979, respondent
sold the involved property to Trinidad Ylanan for P12,000.00.

When informed of the above by one Salud Australlado on the first week of March
1979 (see Sworn Statement of complainant Narciso Melendres, p. 6, Folder No.
2 of case), and not having known the legal implications of the provisions of the
second Real Estate Mortgage which they had executed, complainants could not
believe that title to their lot had already been transferred to respondent and that
respondent had already sold the same to a third person.

Upon learning of the sale in March, 1979, complainants tried to raise the amount
of P10,000.00 and went to respondent's house on May 30, 1979 to pay their
obligation, hoping that they could redeem their property, although three years
had already lapsed from the date of the mortgage.

Respondent did not accept the proffered P10,000.00, but instead gave
complainants a sheet of paper (Annex B, Complainants' Position Paper), which
indicated that the total indebtedness had soared to P20,400.00. The computation
was made in respondent's own handwriting. Complainants went home with
shattered hopes and with grief in their hearts. Hence, the instant competent for
disbarment against respondent filed on October 5, 1979.

Respondent DENIES all the allegations of complainants. He maintains that what


appears on the two documents allegedly executed by complainants, i.e., that
they obtained a loan of P5,000.00 on August 5, 1975 and another P10,000.00 on
May 7,1976, is allegedly the truth, and claims that he in truth delivered the
alleged amount of P5,000.00 to complainants and not P4,000.00. With respect to
the second loan, respondent claims that he delivered to complainants P8,000.00,
plus the P2,000.00 loan previously extended [to] complainants [by] one Regino
Villanueva, which loan had been indorsed to respondent for collection, thus
making a total of P10,000.00, as appearing on said document. Respondent
denies that he exacted usurious interest of 10% a month or P500.00 from
complainants. He asserts that the fact that complainants were able to secure a
loan from the Insular Bank of Asia and America (IBAA) only proves the truth of
his allegation that the title of the property, at the time complainants obtained a
loan from IBAA on April 1976, was clear of any encumbrance, since
complainants had already paid the original loan of P5,000.00 obtained from
respondent; that complainants knew fully well all the conditions of said mortgage;
and that his acquisition of the property in question was in accordance with their
contract and the law on the matter. Thus, he denies that he has violated any right
of the complainants.

After weighing the evidence of both complainants and respondent, we find


against respondent.

While complainants are correct in their claim that they actually obtained an actual
cash of P4,000.00, they are only partly correct in the claim that out of the
P10,000.00 appearing in the second Real Estate Mortgage, P6,000.00 was
applied to interest considering that not all the P6,000.00 but only P4,000.00 was
applied to interest, computed as follows: the first loan of P5,000.00 was
supposedly due on August 31, 1975. Complainants paid 10% monthly interest or
P500.00 on September 30, 1975, October 31, 1975 and November 30, 1975.
Consequently, beginning December 31, 1975 up to May 31, 1976 (the date of the
execution of the second Real Estate Mortgage) a total of six (6) months lapsed.
Six (6) months at P500.00 equals P 3,000.00, which amount plus the P2,000.00
complainants' loan to one Engr. Villanueva (indorsed to respondent for collection)
totals P5,000.00. Adding this amount to the previous P5,000.00 indicated loan
secured by the first mortgage results in P10,000.00, the amount appearing in the
second Real Estate Mortgage. Section 7, Rule 130 of the Rules of Court
provides:

SEC. 7. Evidence of written agreements. When the terms of an agreement


have been reduced to writing, it is to be considered as complaining all such
terms, and, therefore, there can be, as between the parties and their successors
in interest, no evidence of the terms of the agreement other than the contents of
the writing, except in the following cases:

(a) Where a mistake or imperfection of the writing, or its failure to express the
true intent and agreement of the parties, or the validity of the agreement is put in
issue by the pleadings;

(b) Where there is an intrinsic ambiguity in the writing. The term "agreement"
includes wills.
There is no dispute that the two documents denominated Real Estate Mortgages
covering the supposed original loan of P5,000.00 and the inflated P10,000.00,
respectively, were voluntarily signed by the complainants. The general rule is that
when the parties have reduced their agreement to writing, it is presumed that
they have made the writing the only repository and memorial of the truth, and
whatever is not found in the writing must be understood to have been waived and
abandoned.

However, the rule is not absolute as it admits of some exceptions, as


aforequoted. One of the exceptions, that is, failure to express the true intent and
agreement of the parties, applies in this case. From the facts obtaining in the
case, it is clear that the complainants were induced to sign the Real Estate
Mortgage documents by the false and fraudulent representations of respondent
that each of the successive documents was a are formality.

While it may be true that complainants are not at all illiterate, respondent, being a
lawyer, should have at least explained to complainants the legal implications of
the provisions of the real estate mortgage, particularly the provision appointing
him as the complainants' attorney-in-fact in the event of default in payments on
the part of complainants. While it may be conceded that it is presumed that in
practice the notary public apprises complainants of the legal implications of the
contract, it is of common knowledge that most notaries public do not go through
the desired practice. Respondent at least could have informed the complainants
by sending a demand letter to them to pay their obligation as otherwise he would
proceed to sell the lot at public auction as per their contract. This respondent
failed to do, despite the fact that he knew fully wen that complainants were trying
their best to raise money to be able to pay their obligation to him, as shown by
the loan obtained by complainants from the IBAA on April 8, 1976. In this
connection, it may be stated that complainants, per advice of respondent himself,
returned the proceeds of the IBAA loan to the bank immediately on April 30,
1976, considering that the net proceeds of the loan from said bank was only
P4,300.00 and not enough to pay the indicated loan from respondent of
P5,000.00, which per computation of respondent would already have earned
interest of P2,500.00 for five (5) months (December 1975 to April, 1976).

Respondent claims that complainants had paid him the original loan of
P5,000.00, and that this was the reason why complainants were able to
mortgage the lot to the bank free from any encumbrance. This claim is incorrect.
The reason why the title (T-2684) was free from any encumbrance was simply
because of the fact that the first Real Estate Mortgage for the indicated loan of
P5,000.00 (the actual amount was only P 4,000.00) had not been annotated at
the back of the title (see Annex B, p. 14, rec.).

Respondent also denies that complainants offered to him the amount of Pl0,000.
00 as payment of the loan, alleging that if the offer were true, he could have
readily accepted the same since he sold the lot for almost the same amount, for
only P12,000.00, a difference of a few thousand pesos. Respondent's denial is
spacious.

Indeed, complainants made the offer, but respondent refused the same for the
simple reason that the offer was made on May 30,1979, three (3) years after the
execution of the mortgage on May 31, 1976. With its lapse of time, respondent
demanded obviously the payment of the accumulated substantial interest for
three years, as shown by his own computation in as own handwriting on a sheet
of paper (Annex C, Complainants' Position Paper, Folder No. 2).lwph1.t
In view of all the foregoing, the observation made by the Hearing Officer is worth
quoting:

In the humble opinion of the undersigned the pivotal question with respect to this
particular charge is whose version is to be believed. Is it the version of the
complainants or the version of the respondent.

In resolving this issue the possible motive on the part of the complainants in filing
the present complaint against the respondent must be carefully examined and
considered. At the beginning there was a harmonious relationship between the
complainants and the respondent so much so that respondent was even
engaged as counsel of the complainants and it is but human nature that when
respondent extended a loan to the complainants the latter would be grateful to
the former. However, in the case at bar, complainants filed a complaint against
the respondent in spite of the great disparity between the status of the
complainants and the respondent. Admittedly, respondent is in a better position
financially, socially and intellectually. To the mind of the undersigned,
complainants were only compelled to file the above entitled complaint against the
respondent because they felt that they are so aggrieved of what the respondent
has done to them. It is for this reason therefore that the undersigned is inclined to
believe the version of the complainants rather than of the respondent. In addition
thereto, the respondent as a lawyer could really see to it that the transaction
between the complainants and himself on papers appear legal and in order.
Besides, there is ample evidence in the records of its case that respondent is
actually engaged in lending money at least in a limited way and that the interest
at the rate of ten per cent a month is but common among money lenders during
the time of the transactions in question'

Going now into the second charge, complainants alleged that respondent, who
was their counsel (private prosecutor) in Criminal Case No. 734, for estafa,
against accused Reynaldo Pineda, compromised the case with the accused
without their consent and received the amount of P500.00 as advance payment
for the amicable settlement, without however, giving to the complainants the Id
amount nor informing them of said settlement and payment.

Again, respondent denies the allegation and claims that the amicable settlement
was with the consent of complainant wife Erlinda Dalman Melendre[z].

We are inclined to believe the version of the complainants.

It is admitted that complainants were not interested in putting the accused


Reynaldo Pineda to jail but rather in merely recovering their money of P2,000.00.
At this stage, relationship between complainants and respondent was not yet
strained, and respondent, as counsel of the complainants in this case, knew that
complainants were merely interested in said recovery. Knowing this, respondent
on his own volition talked to accused and tried to settle the case amicably for
P2,000.00. He accepted the amount of P500.00 as advance payment, being then
the only amount carried by the accused Pineda. A receipt was signed by both
respondent and accused Pineda (Annex M, p. 34, record). However, respondent
did not inform complainants about this advance payment, perhaps because he
was still waiting for the completion of the payment of P2,000.00 before turning
over the whole amount to complainants.
At any rate, complainants saw accused Pineda give the abovementioned
P500.00 to respondent, but they were ashamed then to ask directly of
respondent what the money was all about.

On June 27, 1979, barely a month after May 30, 1979, when the complainants
had already lost their trust and respect and/or confidence in respondent upon
knowing what happened to their lot and, more so, upon respondent's refusal to
accept the Pl0,000.00 offered by complainants to redeem the same, Narciso
Melendre[z] saw the accused Pineda on his way home and confronted him on
the P500.00 that had been given to respondent. Accused then showed
complainant Melendres the receipt (Annex M, Id.) showing that the P500.00 was
an advance payment for the supposed settlement/dismissal of the case filed by
complainants against him.

Sensing or feeling that respondent was fooling them, complainants then filed a
motion before the court which was trying the criminal case and relieved
respondent as their counsel.

The Investigating Fiscal, who heard the case and saw the demeanor of the
witnesses in testifying, had this to say:

With respect to the second charge, the fact that respondent received P500.00
from Reynaldo Pineda is duly established. Both the complainants and the
respondent agreed that the said amount was given to the respondent in
connection with a criminal case wherein the complainants were the private
offended parties: that Reynaldo Pineda is the accused and that the respondent is
the private prosecutor of the said case. The pivotal issue in this particular charge
is whether the respondent received the amount of P500.00 from Reynaldo
Pineda as an advance payment of an amicable settlement entered into by the
complainants and the accused or the respondent received said amount from the
accused without the knowledge and consent of the complainants. If it is true as
alleged by the respondent that he only received it for and in behalf of the
complainants as advance payment of an amicable settlement why is it that the
same was questioned by the complainants? Why is it that it was not the
complainants who signed the receipt for the said amount? How come that as
soon as complainants knew that the said amount was given to the respondent,
the former filed a motion in court to relieve respondent as their counsel on the
ground that they have lost faith and confidence on him? If it is really true that
complainants have knowledge and have consented to this amicable settlement
they should be grateful to the efforts of their private prosecutor yet the fact is that
they resented the same and went to the extent of disqualifying the respondent as
their private prosecutor. Reynaldo Pineda himself executed an affidavit belying
the claim of the respondent.'

Clearly, the complained acts as described and levelled against respondent


Decena are contrary to justice, honesty, modesty, or good morals for which he
may be suspended. The moral turpitude for which an attorney may be disbarred
may consist of misconduct in either his professional or non- professional attitude
(Royong v. Oblena, 7 SCRA 859). The complained acts of respondent imply
something immoral in themselves, regardless of the fact whether they are
punishable by law. The doing of the act itself, and not its prohibition by statute,
fixes the moral turpitude (Bartos vs. U.S. Dist. Court for District of Nebraska
C.C.C. Neb] 19 F [2d] 722).

A parting comment.
All the above is not to say that complainants themselves are faultless.

Complainants should likewise be blamed for trusting the respondent too much.
They did not bother to keep a copy of the documents they executed and
considering that they admitted they did not understand the contents of the
documents, they did not bother to have them explained by another lawyer or by
any knowledgeable person in their locality. Likewise, for a period of three years,
they did not bother to ask for respondent the status of their lot and/or their
obligation to him. Their complacency or apathy amounting almost to negligence
contributed to the expedient loss of their property thru the legal manuevers
employed by respondent. Hence, respondent's liability merits mitigation.
(Emphasis supplied)

and made the following recommendation:

WHEREFORE, it is respectfully recommended that Atty. Reynerio I. Decena be


3
suspended from the practice of law for a period of five (5) years.

The Office of the Solicitor General, through Fiscals Almonte and Jamero, held several hearings
during the investigation of the present administrative case: City Fiscal Jorge T. Almonte was able
4
to hold six (6) actual hearings out of twenty-five (25) resettings While only five (5) actual
5
hearings, out of forty (40) resettings were held under Provincial Fiscal Pedro S. Jamero. In
those hearings, the complainants presented a number of witnesses who, after their direct
testimony, were cross-examined by the counsel for respondent; complainant Narciso Melendrez
also testified and was accordingly cross-examined. Considering the long delay incurred in the
investigation of the administrative case and having been pressed by the Solicitor General
immediately to complete the investigation, Fiscal Jamero posed a change of procedure, from trial
type proceedings to requiring the parties to submit their respective position papers. The
complainants immediately filed their position paper which consisted of their separate sworn
statements, (that of Narciso Melendrez was in a question and answer form), their documentary
exhibits and an affidavit of one Jeorge G. Santos. Respondent also filed his counter-affidavit and
affidavits of his witnesses, with several annexes in support thereof In the healing of 28 October
1987, which had been set for the cross examination of the complainants and their witnesses by
respondent, the complainants refused to submit themselves to cross-examination on the ground
that the order of the hearing officer dated 17 December 1986 declaring respondent's right of
cross examination as having been waived, had become final and executory. Respondent
questions now the evidentiary value of the complainants' position paper, not having passed
through any cross-examination and argues that the non-submission of the complainants and their
witnesses to cross-examination constitutes a denial of his right to due process.

We do not think respondent's right to confront the complainants and their witnesses against him
has been violated, Respondent in fact cross-examined complainant Narciso Melendrez and some
of the witnesses which complainants had presented earlier. As pointed out by the Solicitor
General, the record of the proceedings shows that respondent had all the opportunity to cross-
examine the other witnesses of the complainants (those whose affidavits were attached to
complainants' position paper) had he wanted to, but had forfeited such opportunity by asking for
numerous continuances which indicated a clear attempt on his part to delay the investigation
proceedings. Respondent had in fact requested a total of twenty three (23) resettings during the
investigation proceedings: he had eight (8) under Fiscal Almonte and fifteen (15) under Fiscal
Jamero. There were also instances where respondent asked for postponement and at the same
time reset the hearing to a specific date of his choice on which neither he nor as counsel would
appear. That attitude of respondent eventually led the hearing officer to declare his (respondent's)
right to cross-examine the complainants and their witnesses as having been waived in his order
of 17 December 1986. Respondent can not now claim that he had been deprived below of the
opportunity to confront the complainants and their witnesses.
After carefully going through the record of the proceedings as well as the evidence presented by
both parties, we agree with the findings and conclusions of the Solicitor General.

The following acts of respondent:

1. making it appear on the 5 August 1975 real estate mortgage that the amount
loaned to complainants was P5,000.00 instead of P4,000.00;

2. exacting grossly unreasonable and usurious interest;

3. making it appear in the second real estate mortgage of 7 May 1976 that the
loan extended to complainants had escalated to P10,000.00;

4. failing to inform complainants of the import of the real mortgage documents


and inducing them to sign those documents with assurances that they were
merely for purposes of "formality";

5. failing to demand or refraining from demanding payment from complainants


before effecting extrajudicial foreclosure of the mortgaged property; and

6. failing to inform or refraining from informing complainants that the real estate
mortgage had already been foreclosed and that complainants had a right to
redeem the foreclosed property within a certain period of time.

constitute deception and dishonesty and conduct unbecoming a member of the Bar. We agree
with the Solicitor General that the acts of respondent "imply something immoral in themselves
regardless of whether they are punishable by law" and that these acts constitute moral turpitude,
being "contrary to justice, honesty, modesty or good morals." The standard required from
members of the Bar is not, of course, satisfied by conduct which merely avoids collision with our
criminal law. Even so, respondent's conduct, in fact, may be penalizable under at least one penal
statute the anti-usury law.

The second charge against respondent relates to acts done in his professional capacity, that is,
done at a time when he was counsel for the complainants in a criminal case for estafa against
accused Reynaldo Pineda. There are two (2) aspects to this charge: the first is that respondent
Decena effected a compromise agreement concerning the civil liability of accused Reynaldo
Pineda without the consent and approval of the complainants; the second is that, having received
the amount of P500.00 as an advance payment on this "settlement," he failed to inform
complainants of that advance payment and moreover, did not turn over the P500.00 to the
complainants. The facts show that respondent "settled" the estafa case amicably for P2,000.00
without the knowledge and consent of complainants. Respondent informed complainants of the
amicable "settlement" and of the P500.00 advance payment only after petitioner Narciso
Melendrez had confronted him about these matters. And respondent never did turn over to
complainants the P500.00. Respondent is presumed to be aware of the rule that lawyers cannot
"without special authority, compromise their clients' litigation or receive anything in discharge of a
6
client's claim, but the full amount in cash. Respondent's failure to turn over to complainants the
amount given by accused Pineda as partial "settlement" of the estafa case underscores his lack
of honesty and candor in dealing with his clients.

Generally, a lawyer should not be suspended or disbarred for misconduct committed in his
personal or non-professional capacity. Where however, misconduct outside his professional
dealings becomes so patent and so gross as to demonstrate moral unfitness to remain in the
legal profession, the Court must suspend or strike out the lawyer's name from the Rollo of
7
Attorneys. The nature of the office of an attorney at law requires that he shall be a person of
good moral character. This qualification 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, in
the exercise of privileges of members of the Bar. Gross misconduct on the part of a lawyer,
although not related to the discharge of professional duties as a member of the Bar, which puts
8
his moral character in serious doubt, renders him unfit to continue in the practice of law.

In the instant case, the exploitative deception exercised by respondent attorney upon the
complainants in his private transactions with them, and the exacting of unconscionable rates of
interest, considered together with the acts of professional misconduct committed by respondent
attorney, compel this Court to the conviction that he has lost that good moral character which is
indispensable for continued membership in the Bar.

WHEREFORE, respondent Reynerio I. Decena is hereby DISBARRED and his name shall be
stricken from the Rollo of Attorneys. Let a copy of this Resolution be FURNISHED each to the
Bar Confidant and spread on the personal records of respondent attorney, and to the Integrated
Bar of the Philippines.

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

A.M. No. 1334 November 28, 1989

ROSARIO DELOS REYES, complainant,


vs.
ATTY. JOSE B. AZNAR, respondent.

Federico A. Blay for complainant.

Luciano Babiera for respondent.

RESOLUTION

PER CURIAM:

This is a complaint for disbarment filed against respondent on the ground of gross immorality.

Complainant, a second year medical student of the Southwestern University (Cebu), alleged in
her verified complaint that respondent Atty. Jose B. Aznar, then chairman of said university, had
carnal knowledge of her for several times under threat that she would fail in her Pathology subject
if she would not submit to respondent's lustful desires. Complainant further alleged that when she
became pregnant, respondent, through a certain Dr. Gil Ramas, had her undergo forced abortion.

In compliance with the Resolution of the Court dated July 9, 1974, respondent filed his Answer
denying any personal knowledge of complainant as well as all the allegations contained in the
complaint and by way of special defense, averred that complainant is a woman of loose morality.

On September 2, 1974, the Court Resolved to refer the case to the Solicitor General for
investigation, report and recommendation.
The findings of the Solicitor General is summarized as follows:

EVIDENCE FOR THE COMPLAINANT

Complainant Rosario delos Reyes testified that:

1) she was a second year medical student of the Southwestern


University, the Chairman of the Board of which was respondent
Jose B. Aznar (pp. 11, 15, tsn, June 6, 1975);

2) she however failed in her Pathology subject which prompted


her to approach respondent in the latter's house who assured
her that she would pass the said subject (pp. 15,16, 26, 33, tsn,
June 6, 1975);

3) despite this assurance, however, she failed (p. 33, tsn, June
6, 1975);

4) sometime in February, 1973, respondent told her that she


should go with him to Manila, otherwise, she would flunk in all
her subjects (pp. 42, 50, tsn, June 6, 1975); ... ... ... ;

5) on February 12, 1973, both respondent and complainant


boarded the same plane (Exh. "A") for Manila; from the Manila
Domestic Airport, they proceeded to Room 905, 9th Floor of the
Ambassador Hotel where they stayed for three days (Exhs. "K",
"K-1" to "K-6"; p. 55, tsn, June 6, 1 975);

6) after arriving at the Ambassador Hotel, they dined at a


Spanish restaurant at San Marcelino, Malate, Manila for around
three hours (pp 56-57, tsn, June 6, 1975);

7) they returned to the hotel at around twelve o'clock midnight,


where respondent had carnal knowledge of her twice and then
thrice the next morning (p. 59, tsn, June 6, 1975; pp. 154, 155 &
157, tsn, July 18, 1975);

8) complainant consented to the sexual desires of respondent


because for her, she would sacrifice her personal honor rather
than fail in her subjects (p.6l, tsn, June 6, 1975); ... ... ...;

9) sometime in March, 1973, complainant told respondent that


she was suspecting pregnancy because she missed her
menstruation (p. 76, tsn, July 17, 1975); ... ... ...;

10) later, she was informed by Dr. Monsanto (an instructor in the
college of medicine) that respondent wanted that an abortion be
performed upon her (p.82, tsn, July l7, 1975); ... ... ... ;

11) thereafter, Ruben Cruz, a confidant of respondent, and Dr.


Monsato fetched her at her boarding house on the pretext that
she would be examined by Dr. Gil Ramas (pp. 87-88, tsn, July
17, 1975);
12) upon reaching the clinic of Dr. Ramas she was given an
injection and an inhalation mask was placed on her mouth and
nose (pp. 88-90, tsn, July 17, 1 975);

13) as a result, she lost consciousness and when she woke up,
an abortion had already been performed upon her and she was
weak, bleeding and felt pain all over her body (pp. 90-91, tsn,
July 17, 1975); ... ... ... (Rollo, pp. 38-40)

Monica Gutierrez Tan testified that she met complainant and a man whom
complainant introduced as Atty. Aznar in front of the Ambassador Hotel (pp. 183-
184, tsn, Sept. 10, 1975; Rollo, p. 41).

Dr. Rebecca Gucor and Dr. Artemio Ingco, witnesses for the complainant, testified that abdominal
examinations and x-ray examination of the lumbro-sacral region of complainant showed no signs
of abnormality (Rollo, p. 42).

The evidence for the respondent as reported by the Solicitor General is summarized as follows:

Edilberto Caban testified that:

1. In December, 1972, respondent Atty. Aznar stayed at


Ambassador Hotel with his wife and children; respondent never
came to Manila except in December, 1972; (pp. 8-9,. tsn, Nov.
24, 1977);

2. He usually slept with respondent everytime the latter comes to


Manila (p. 13, tsn, Nov. 24, 1977; Rollo, pp. 42-43).

Oscar Salangsang, another witness for the respondent stated that:

1. In February, 1973, he went to Ambassador Hotel to meet


respondent; the latter had male companions at the hotel but he
did not see any woman companion of respondent Aznar;

2. He usually slept with respondent at the Ambassador Hotel and


ate with him outside the hotel together with Caban (pp. 8-9, 13-
15, tsn, Jan. 13, 1978; Rollo, p. 43).

The Court notes that throughout the period of the investigation conducted by the Solicitor
General, respondent Aznar was never presented to refute the allegations made against him.

In his Answer, respondent Aznar alleges that he does not have any knowledge of the allegations
in the complaint. As special defense, respondent further alleged that the charge levelled against
him is in furtherance of complainant's vow to wreck vengeance against respondent by reason of
the latter's approval of the recommendation of the Board of Trustees barring complainant from
enrollment for the school year 1973-1974 because she failed in most of her subjects. It is likewise
contended that the defense did not bother to present respondent in the investigation conducted
by the Solicitor General because nothing has been shown in the hearing to prove that respondent
had carnal knowledge of the complainant.

Contrary to respondent's averments, the Solicitor General made a categorical finding to the effect
that respondent had carnal knowledge of complainant, to wit:
From the foregoing, it is clear that complainant was compelled to go to Manila
with respondent upon the threat of respondent that if she failed to do so, she
would flunk in all her subjects and she would never become a medical intern (pp.
42, 50, tsn, June 6, 1975). As respondent was Chairman of the College of
Medicine, complainant had every reason to believe him.

It has been established also that complainant was brought by respondent to


Ambassador Hotel in Manila for three days where he repeatedly had carnal
knowledge of her upon the threat that if she would not give in to his lustful
desires, she would fail in her Pathology subject (Exhs. "A", "K", "K-1" to "K-6" pp.
51, 52, 55-59, tsn, June 6, 1975);

xxx xxx xxx

On the other hand, respondent did not bother to appear during the hearing. It is
true that he presented Edilberto Caban and Oscar Salangsang who testified that
respondent usually slept with them every time the latter came to Manila, but their
testimony (sic) is not much of help. None of them mentioned during the hearing
that they stayed and slept with respondent on February 12 to February 14, 1973
at Ambassador Hotel. ... ... ... Besides, Edilberto Caban testified that respondent
stayed at Ambassador Hotel with his wife and children in December, 1972. The
dates in question, however, are February 12 to 14, 1973, inclusive. His (Caban's)
testimony, therefore, is immaterial to the present case" (Rollo, pp. 43-44).

In effect, the Solicitor General found that the charge of immorality against respondent Aznar has
been substantiated by sufficient evidence both testimonial and documentary; while finding
insufficient and uncorroborated the accusation of intentional abortion. The Solicitor General then
recommends the suspension of respondent from the practice of law for a period of not less than
three (3) years.

On March 16, 1989, the Court Resolved to require the parties to Move in the premises to
determine whether any intervening event occurred which would render the case moot and
academic (Rollo, p. 69).

On April 12, 1989, the Solicitor General filed a manifestation and motion praying that the case at
bar be considered submitted for decision on the bases of the report and recommendation
previously submitted together with the record of the case and the evidence adduced (Rollo, p.
75).

After a thorough review of the records, the Court agrees with the finding of the Solicitor General
that respondent Aznar, under the facts as stated in the Report of the investigation conducted in
the case, is guilty of "grossly immoral conduct" and may therefore be removed or suspended by
the Supreme Court for conduct unbecoming a member of the Bar (Sec. 27, Rule 138, Rules of
Court).

Respondent failed to adduce evidence sufficient to engender doubt as to his culpability of the
offense imputed upon him. With the exception of the self-serving testimonies of two witnesses
presented on respondent's behalf, the records are bereft of evidence to exonerate respondent of
the act complained of, much less contradict, on material points, the testimonies of complainant
herself.

While respondent denied having taken complainant to the Ambassador Hotel and there had
sexual intercourse with the latter, he did not present any evidence to show where he was at that
date. While this is not a criminal proceeding, respondent would have done more than keep his
silence if he really felt unjustly traduced.

It is the duty of a lawyer, whenever his moral character is put in issue, to satisfy this Court that he
is a fit and proper person to enjoy continued membership in the Bar. He cannot dispense with nor
downgrade the high and exacting moral standards of the law profession (Go v. Candoy, 21 SCRA
439 [1967]). As once pronounced by the Court:

When his integrity is challenged by evidence, it is not enough that he denies the
charges against him; he must meet the issue and overcome the evidence for the
relator (Legal and Judicial Ethics, by Malcolm, p. 93) and show proofs that he still
maintains the highest degree of morality and integrity, which at all times is
expected of him. ... In the case of United States v. Tria, 17 Phil. 303, Justice
Moreland, speaking for the Court, said:

An accused person sometimes owes a duty to himself if not to the State. If he


does not perform that duty, he may not always expect the State to perform it for
him. If he fails to meet the obligation which he owes to himself, when to meet it is
the easiest of easy things, he is hardy indeed if he demand and expect that same
full and wide consideration which the State voluntarily gives to those who by
reasonable effort seek to help themselves. This is particularly so when he not
only declines to help himself but actively conceals from the State the very means
by which it may assist him (Quingwa SCRA 439 [1967]).

The Solicitor General recommends that since the complainant is partly to blame for having gone
with respondent to Manila knowing fully well that respondent is a married man ,with children,
respondent should merely be suspended from the practice of law for not less than three (3) years
(Rollo, p. 47).

On the other hand, respondent in his manifestation and motion dated April 18, 1989 alleges that
since a period of about ten (10) years had already elapsed from the time the Solicitor General
made his recommendation for a three (3) years suspension and respondent is not practicing his
profession as a lawyer, the court may now consider the respondent as having been suspended
during the said period and the case dismissed for being moot and academic.

We disagree.

Complainant filed the instant case for disbarment not because respondent reneged on a promise
to marry (Quingwa v. Puno, supra). More importantly. complainant's knowledge of of respondent's
marital status is not at issue in the case at bar. Complainant submitted to respondent's solicitation
for sexual intercourse not because of a desire for sexual gratification but because of respondent's
moral ascendancy over her and fear that if she would not accede, she would flunk in her subjects.
As chairman of the college of medicine where complainant was enrolled, the latter had every
reason to believe that respondent could make good his threats. Moreover, as counsel for
respondent would deem it "worthwhile to inform the the Court that the respondent is a scion of a
rich family and a very rich man in his own right and in fact is not practicing his profession before
the court" (Rollo, p. 70), mere suspension for a limited period, per se, would therefore serve no
redeeming purpose. The fact that he is a rich man and does not practice his profession as a
lawyer, does not render respondent a person of good moral character. Evidence of good moral
character precedes admission to bar (Sec.2, Rule 138, Rules of Court) and such requirement is
not dispensed with upon admission thereto. Good moral character is a continuing qualification
necessary to entitle one to continue in the practice of law. The ancient and learned profession of
law exacts from its members the highest standard of morality (Quingwa v. Puno, supra).
Under Section 27, Rule 138, "(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 admission to practice,
... " In Arciga v. Maniwang (106 SCRA 591, [1981]), this Court had occasion to define the concept
of immoral conduct, as follows:

A lawyer may be disbarred for grossly immoral conduct, or by reason of his


conviction of a crime involving moral turpitude. A member of the bar should have
moral integrity in addition to professional probity.

It is difficult to state with precision and to fix an inflexible standard as to what is


grossly immoral conduct or to specify the moral delinquency and obliquity which
render a lawyer unworthy of continuing as a member of the bar. The rule implies
that what appears to be unconventional behavior to the straight-laced may not be
the immoral conduct that warrants disbarment.

Immoral conduct has been defined as 'that which is willful, flagrant, or


shameless, and which shows a moral indifference to the opinion of the good and
respectable members of the community' (7 C.J.S. 959).

Where an unmarried female dwarf possessing the intellect of a child became


pregnant by reason of intimacy with a married lawyer who was the father of six
children, disbarment of the attorney on the ground of immoral conduct was
justified (In re Hicks 20 Pac. 2nd 896).

In the present case, it was highly immoral of respondent, a married man with children, to have
taken advantage of his position as chairman of the college of medicine in asking complainant, a
student in said college, to go with him to Manila where he had carnal knowledge of her under the
threat that she would flunk in all her subjects in case she refused.

WHEREFORE, respondent Jose B. Aznar is hereby DISBARRED and his name is ordered
stricken off from the Roll of Attorneys.

Republic of the Philippines


SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-28546 July 30, 1975

VENANCIO CASTANEDA and NICETAS HENSON, petitioners,


vs.
PASTOR D. AGO, LOURDES YU AGO and THE COURT OF APPEALS, respondents.

Quijano and Arroyo for petitioners.

Jose M. Luison for respondents.


CASTRO, J.:

The parties in this case, except Lourdes Yu Ago, have been commuting to this Court for more
than a decade.

In 1955 the petitioners Venancio Castaeda and Nicetas Henson filed a replevin suit against
Pastor Ago in the Court of First Instance of Manila to recover certain machineries (civil case
27251). In 1957 judgment was rendered in favor of the plaintiffs, ordering Ago to return the
machineries or pay definite sums of money. Ago appealed, and on June 30, 1961 this Court,
in Ago vs. Castaeda, L-14066, affirmed the judgment. After remand, the trial court issued on
August 25, 1961 a writ of execution for the sum of P172,923.87. Ago moved for a stay of
execution but his motion was denied, and levy was made on Ago's house and lots located in
Quezon City. The sheriff then advertised them for auction sale on October 25, 1961. Ago moved
to stop the auction sale, failing in which he filed a petition for certiorari with the Court of Appeals.
The appellate court dismissed the petition and Ago appealed. On January 31,1966 this Court,
in Ago vs. Court of Appeals, et al., L-19718, affirmed the dismissal. Ago thrice attempted to obtain
a writ of preliminary injunction to restrain the sheriff from enforcing the writ of execution "to save
his family house and lot;" his motions were denied, and the sheriff sold the house and lots on
March 9, 1963 to the highest bidders, the petitioners Castaeda and Henson. Ago failed to
redeem, and on April 17, 1964 the sheriff executed the final deed of sale in favor of the vendees
Castaeda and Henson. Upon their petition, the Court of First Instance of Manila issued a writ of
possession to the properties.

However, on May 2, 1964 Pastor Ago, now joined by his wife, Lourdes Yu Ago, as his co-plaintiff,
filed a complaint in the Court of First Instance of Quezon City (civil case Q-7986) to annul the
sheriff's sale on the ground that the obligation of Pastor Ago upon which judgment was rendered
against him in the replevin suit was his personal obligation, and that Lourdes Yu Ago's one-half
share in their conjugal residential house and lots which were levied upon and sold by the sheriff
could not legally be reached for the satisfaction of the judgment. They alleged in their complaint
that wife Lourdes was not a party in the replevin suit, that the judgment was rendered and the writ
of execution was issued only against husband Pastor, and that wife Lourdes was not a party to
her husband's venture in the logging business which failed and resulted in the replevin suit and
which did not benefit the conjugal partnership.

The Court of First Instance of Quezon City issued an ex parte writ of preliminary injunction
restraining the petitioners, the Register of Deeds and the sheriff of Quezon City, from registering
the latter's final deed of sale, from cancelling the respondents' certificates of title and issuing new
ones to the petitioners and from carrying out any writ of possession. A situation thus arose where
what the Manila court had ordered to be done, the Quezon City court countermanded. On
November 1, 1965, however, the latter court lifted the preliminary injunction it had previously
issued, and the Register of deeds of Quezon City cancelled the respondents' certificates of title
and issued new ones in favor of the petitioners. But enforcement of the writ of possession was
again thwarted as the Quezon City court again issued a temporary restraining order which it later
lifted but then re-restored. On May 3, 1967 the court finally, and for the third time, lifted the
restraining order.

While the battle on the matter of the lifting and restoring of the restraining order was being fought
in the Quezon City court, the Agos filed a petition for certiorari and prohibition with this Court
under date of May 26, 1966, docketed as L-26116, praying for a writ of preliminary injunction to
enjoin the sheriff from enforcing the writ of possession. This Court found no merit in the petition
and dismissed it in a minute resolution on June 3, 1966; reconsideration was denied on July 18,
1966. The respondents then filed on August 2, 1966 a similar petition for certiorari and prohibition
with the Court of Appeals (CA-G.R. 37830-R), praying for the same preliminary injunction. The
Court of Appeals also dismissed the petition. The respondents then appealed to this Court (L-
27140).1wph1.t We dismissed the petition in a minute resolution on February 8, 1967.
The Ago spouses repaired once more to the Court of Appeals where they filed another petition
for certiorari and prohibition with preliminary injunction (CA-G.R. 39438-R). The said court gave
due course to the petition and granted preliminary injunction. After hearing, it rendered decision,
the dispositive portion of which reads:

WHEREFORE, writ of preliminary injunction from enforcement of the writ of


possession on and ejectment from the one-half share in the properties involved
belonging to Lourdes Yu Ago dated June 15, 1967 is made permanent pending
decision on the merits in Civil Case No. Q-7986 and ordering respondent Court
to proceed with the trial of Civil Case No. Q-7986 on the merits without
unnecessary delay. No pronouncement as to costs.

Failing to obtain reconsideration, the petitioners Castaeda and Henson filed the present petition
for review of the aforesaid decision.

1. We do not see how the doctrine that a court may not interfere with the orders of a co-equal
court can apply in the case at bar. The Court of First Instance of Manila, which issued the writ of
possession, ultimately was not interfered with by its co-equal court, the Court of First Instance of
Quezon City as the latter lifted the restraining order it had previously issued against the
enforcement of the Manila court's writ of possession; it is the Court of Appeals that enjoined, in
part, the enforcement of the writ.

1
2. Invoking Comilang vs. Buendia, et al., where the wife was a party in one case and the
husband was a party in another case and a levy on their conjugal properties was upheld, the
petitioners would have Lourdes Yu Ago similarly bound by the replevin judgment against her
husband for which their conjugal properties would be answerable. The case invoked is not at par
with the present case. In Comilang the actions were admittedly instituted for the protection of the
common interest of the spouses; in the present case, the Agos deny that their conjugal
partnership benefited from the husband's business venture.

3. Relying upon Omnas vs. Rivera, 67 Phil. 419, the Court of Appeals held that a writ of
possession may not issue until the claim of a third person to half-interest in the property is
adversely determined, the said appellate court assuming that Lourdes Yu Ago was a "stranger" or
a "third-party" to her husband. The assumption is of course obviously wrong, for, besides living
with her husband Pastor, she does not claim ignorance of his business that failed, of the relevant
cases in which he got embroiled, and of the auction sale made by the sheriff of their conjugal
properties. Even then, the ruling in Omnas is not that a writ of possession may not issue until the
claim of a third person is adversely determined, but that the writ of possession being a
complement of the writ of execution, a judge with jurisdiction to issue the latter also has
jurisdiction to issue the former, unless in the interval between the judicial sale and the issuance of
the writ of possession, the rights of third parties to the property sold have supervened. The ruling
in Omnas is clearly inapplicable in the present case, for, here, there has been no change in the
ownership of the properties or of any interest therein from the time the writ of execution was
issued up to the time writ of possession was issued, and even up to the present.

4. We agree with the trial court (then presided by Judge Lourdes P. San Diego) that it is much too
late in the day for the respondents Agos to raise the question that part of the property is
unleviable because it belongs to Lourdes Yu Ago, considering that (1) a wife is normally privy to
her husband's activities; (2) the levy was made and the properties advertised for auction sale in
1961; (3) she lives in the very properties in question; (4) her husband had moved to stop the
auction sale; (5) the properties were sold at auction in 1963; (6) her husband had thrice
attempted to obtain a preliminary injunction to restrain the sheriff from enforcing the writ of
execution; (7) the sheriff executed the deed of final sale on April 17, 1964 when Pastor failed to
redeem; (8) Pastor had impliedly admitted that the conjugal properties could be levied upon by
his pleas "to save his family house and lot" in his efforts to prevent execution; and (9) it was only
on May 2, 1964 when he and his wife filed the complaint for annulment of the sheriff's sale upon
the issue that the wife's share in the properties cannot be levied upon on the ground that she was
not a party to the logging business and not a party to the replevin suit. The spouses Ago had
every opportunity to raise the issue in the various proceedings hereinbefore discussed but did
not; laches now effectively bars them from raising it.

Laches, in a general sense, is failure or neglect, for an unreasonable and


unexplained length of time, to do that which, by exercising due diligence, could or
should have been done earlier; it is negligence or omission to assert a right
within a reasonable time, warranting a presumption that the party entitled to
2
assert it either has abandoned it or declined to assert it.

5. The decision of the appellate court under review suffers from two fatal infirmities.

(a) It enjoined the enforcement of the writ of possession to and ejectment from the one-half share
in the properties involved belonging to Lourdes Yu Ago. This half-share is not in esse, but is
merely an inchoate interest, a mere expectancy, constituting neither legal nor equitable estate,
and will ripen into title when only upon liquidation and settlement there appears to be assets of
3
the community. The decision sets at naught the well-settled rule that injunction does not issue to
4
protect a right not in esse and which may never arise.

(b) The decision did not foresee the absurdity, or even the impossibility, of its enforcement. The
5
Ago spouses admittedly live together in the same house which is conjugal property. By the
Manila court's writ of possession Pastor could be ousted from the house, but the decision under
review would prevent the ejectment of Lourdes. Now, which part of the house would be vacated
by Pastor and which part would Lourdes continue to stay in? The absurdity does not stop here;
the decision would actually separate husband and wife, prevent them from living together, and in
effect divide their conjugal properties during coverture and before the dissolution of the conjugal
union.

6. Despite the pendency in the trial court of the complaint for the annulment of the sheriff's sale
(civil case Q-7986), elementary justice demands that the petitioners, long denied the fruits of their
victory in the replevin suit, must now enjoy them, for, the respondents Agos, abetted by their
lawyer Jose M. Luison, have misused legal remedies and prostituted the judicial process to thwart
the satisfaction of the judgment, to the extended prejudice of the petitioners. The respondents,
with the assistance of counsel, maneuvered for fourteen (14) years to doggedly resist execution
of the judgment thru manifold tactics in and from one court to another (5 times in the Supreme
Court).

We condemn the attitude of the respondents and their counsel who,

far from viewing courts as sanctuaries for those who seek justice, have tried to
6
use them to subvert the very ends of justice.

Forgetting his sacred mission as a sworn public servant and his exalted position as an officer of
the court, Atty. Luison has allowed himself to become an instigator of controversy and a predator
of conflict instead of a mediator for concord and a conciliator for compromise, a virtuoso of
technicality in the conduct of litigation instead of a true exponent of the primacy of truth and moral
justice.

A counsel's assertiveness in espousing with candour and honesty his client's


cause must be encouraged and is to be commended; what we do not and cannot
countenance is a lawyer's insistence despite the patent futility of his client's
position, as in the case at bar.
It is the duty of a counsel to advise his client, ordinarily a layman to the intricacies
and vagaries of the law, on the merit or lack of merit of his case. If he finds that
his client's cause is defenseless, then it is his bounden duty to advise the latter to
acquiesce and submit, rather than traverse the incontrovertible. A lawyer must
resist the whims and caprices of his client, and temper his clients propensity to
litigate. A lawyer's oath to uphold the cause of justice is superior to his duty to his
7
client; its primacy is indisputable.

7. In view of the private respondents' propensity to use the courts for purposes other than to seek
justice, and in order to obviate further delay in the disposition of the case below which might
again come up to the appellate courts but only to fail in the end, we have motu proprio examined
the record of civil case Q-7986 (the mother case of the present case). We find that

(a) the complaint was filed on May 2, 1964 (more than 11 years ago) but trial on the merits has
not even started;

(b) after the defendants Castaedas had filed their answer with a counterclaim, the plaintiffs Agos
filed a supplemental complaint where they impleaded new parties-defendants;

(c) after the admission of the supplemental complaint, the Agos filed a motion to admit an
amended supplemental complaint, which impleads an additional new party-defendant (no action
has yet been taken on this motion);

(d) the defendants have not filed an answer to the admitted supplemental complaint; and

(e) the last order of the Court of First Instance, dated April 20, 1974, grants an extension to the
suspension of time to file answer. (Expediente, p. 815)

We also find that the alleged causes of action in the complaint, supplemental complaint and
amended supplemental complaint are all untenable, for the reasons hereunder stated. The
Complaint

Upon the first cause of action, it is alleged that the sheriff levied upon conjugal properties of the
spouses Ago despite the fact that the judgment to be satisfied was personal only to Pastor Ago,
and the business venture that he entered into, which resulted in the replevin suit, did not redound
to the benefit of the conjugal partnership. The issue here, which is whether or not the wife's
inchoate share in the conjugal property is leviable, is the same issue that we have already
resolved, as barred by laches, in striking down the decision of the Court of Appeals granting
preliminary injunction, the dispositive portion of which was herein-before quoted. This ruling
applies as well to the first cause of action of the complaint.

Upon the second cause of action, the Agos allege that on January 5, 1959 the Castaedas and
the sheriff, pursuant to an alias writ of seizure, seized and took possession of certain
machineries, depriving the Agos of the use thereof, to their damage in the sum of P256,000 up to
May 5, 1964. This second cause of action fails to state a valid cause of action for it fails to allege
that the order of seizure is invalid or illegal.

It is averred as a third cause of action that the sheriff's sale of the conjugal properties was
irregular, illegal and unlawful because the sheriff did not require the Castaeda spouses to pay or
liquidate the sum of P141,750 (the amount for which they bought the properties at the auction
sale) despite the fact that there was annotated at the back of the certificates of title a mortgage of
P75,000 in favor of the Philippine National Bank; moreover, the sheriff sold the properties for
P141,750 despite the pendency of L-19718 where Pastor Ago contested the amount of
P99,877.08 out of the judgment value of P172,923.37 in civil case 27251; and because of said
acts, the Agos suffered P174,877.08 in damages.

Anent this third cause of action, the sheriff was under no obligation to require payment of the
purchase price in the auction sale because "when the purchaser is the judgment creditor, and no
third-party claim has been filed, he need not pay the amount of the bid if it does not exceed the
amount of his judgment." (Sec. 23, Rule 39, Rules of Court)

The annotated mortgage in favor of the PNB is the concern of the vendees Castaedas but did
not affect the sheriff's sale; the cancellation of the annotation is of no moment to the Agoo.

Case L-19718 where Pastor Ago contested the sum of P99,877.08 out of the amount of the
judgment was dismissed by this Court on January 31, 1966.

This third cause of action, therefore, actually states no valid cause of action and is moreover
barred by prior judgment.

The fourth cause of action pertains to moral damages allegedly suffered by the Agos on account
of the acts complained of in the preceding causes of action. As the fourth cause of action derives
its life from the preceding causes of action, which, as shown, are baseless, the said fourth cause
of action must necessarily fail.

The Counterclaim

As a counterclaim against the Agos, the Castaedas aver that the action was unfounded and as a
consequence of its filing they were compelled to retain the services of counsel for not less than
P7,500; that because the Agos obtained a preliminary injunction enjoining the transfer of titles
and possession of the properties to the Castaedas, they were unlawfully deprived of the use of
the properties from April 17, 1964, the value of such deprived use being 20% annually of their
actual value; and that the filing of the unfounded action besmirched their feelings, the pecuniary
worth of which is for the court to assess.

The Supplemental Complaint

Upon the first cause of action, it is alleged that after the filing of the complaint, the defendants,
taking advantage of the dissolution of the preliminary injunction, in conspiracy and with gross bad
faith and evident intent to cause damage to the plaintiffs, caused the registration of the sheriff's
final deed of sale; that, to cause more damage, the defendants sold to their lawyer and his wife
two of the parcels of land in question; that the purchasers acquired the properties in bad faith;
that the defendants mortgaged the two other parcels to the Rizal Commercial Banking
Corporation while the defendants' lawyer and his wife also mortgaged the parcels bought by them
to the Rizal Commercial Bank; and that the bank also acted in bad faith.

The second cause of action consists of an allegation of additional damages caused by the
defendants' bad faith in entering into the aforesaid agreements and transactions.

The Amended Supplemental Complaint

The amendment made pertains to the first cause of action of the supplemental complaint, which
is, the inclusion of a paragraph averring that, still to cause damage and prejudice to the plaintiffs,
Atty. & Mrs. Juan Quijano, in bad faith sold the two parcels of land they had previously bought to
Eloy Ocampo who acquired them also in bad faith, while Venancio Castaeda and Nicetas
Henson in bad faith sold the two other parcels to Juan Quijano (60%) and Eloy Ocampo (40%)
who acquired them in bad faith and with knowledge that the properties are the subject of a
pending litigation.

Discussion on The Causes of Action


of The Supplemental Complaint And
The Amended Supplemental Complaint

Assuming hypothetically as true the allegations in the first cause of action of the supplemental
complaint and the amended supplemental complaint, the validity of the cause of action would
depend upon the validity of the first cause of action of the original complaint, for, the Agos would
suffer no transgression upon their rights of ownership and possession of the properties by reason
of the agreements subsequently entered into by the Castaedas and their lawyer if the sheriff's
levy and sale are valid. The reverse is also true: if the sheriff's levy and sale are invalid on the
ground that the conjugal properties could not be levied upon, then the transactions would perhaps
prejudice the Agos, but, we have already indicated that the issue in the first cause of action of the
original complaint is barred by laches, and it must therefore follow that the first cause of action of
the supplemental complaint and the amended supplemental complaint is also barred.

For the same reason, the same holding applies to the remaining cause of action in the
supplemental complaint and the amended supplemental complaint.

ACCORDINGLY, the decision of the Court of Appeals under review is set aside. Civil case Q-
7986 of the Court of First Instance of Rizal is ordered dismissed, without prejudice to the re-filing
of the petitioners' counterclaim in a new and independent action. Treble costs are assessed
against the spouses Pastor Ago and Lourdes Yu Ago, which shall be paid by their lawyer, Atty.
Jose M. Luison. Let a copy of this decision be made a part of the personal file of Atty. Luison in
the custody of the Clerk of Court.

Republic of the Philippines


SUPREME COURT
Manila

SECOND DIVISION

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
1
filed by petitioner to be allowed to withdraw as counsel de oficio. 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 the defense of the two accused. The
denial by respondent Judge of such a plea, notwithstanding the conformity of the defendants, was
2
due "its principal effect [being] to delay this case." 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 oficiocounsel 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 counsel de 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
3
instituted this certiorari proceeding.

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 oficiospeaks 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
4
11, 1964, March 9, 1964, June 8, 1964 July 26, 1964, and September 7, 1964." 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
5
from Manapala." 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
6
prosecution has already rested its case."
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
7
designated. A recent statement of the doctrine is found in People v. Daban: "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
8
be fulfilled."

9
So it has been from the 1905 decision of In re Robles Lahesa, 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
10 11
prosecution of criminal cases ...." Justice Sanchez in People v. Estebia 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
12
social conscience and a little less of self-interest."

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
13 14
own." So it was under the previous Organic Acts. The present Constitution is even more
emphatic. For, in addition to reiterating that the accused "shall enjoy the right to be heard by
15
himself and counsel," 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
16
inadmissible in evidence."

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.

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

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; People vs. 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.

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

July 30, 1979

PETITION FOR AUTHORITY TO CONTINUE USE OF THE FIRM NAME "SYCIP, SALAZAR,
FELICIANO, HERNANDEZ & CASTILLO." LUCIANO E. SALAZAR, FLORENTINO P.
FELICIANO, BENILDO G. HERNANDEZ. GREGORIO R. CASTILLO. ALBERTO P. SAN
JUAN, JUAN C. REYES. JR., ANDRES G. GATMAITAN, JUSTINO H. CACANINDIN, NOEL A.
LAMAN, ETHELWOLDO E. FERNANDEZ, ANGELITO C. IMPERIO, EDUARDO R. CENIZA,
TRISTAN A. CATINDIG, ANCHETA K. TAN, and ALICE V. PESIGAN,petitioners.

IN THE MATTER OF THE PETITION FOR AUTHORITY TO CONTINUE USE OF THE FIRM
NAME "OZAETA, ROMULO, DE LEON, MABANTA & REYES." RICARDO J. ROMULO,
BENJAMIN M. DE LEON, ROMAN MABANTA, JR., JOSE MA, REYES, JESUS S. J. SAYOC,
EDUARDO DE LOS ANGELES, and JOSE F. BUENAVENTURA, petitioners.

RESOLUTION

MELENCIO-HERRERA, J.:+.wph!1

Two separate Petitions were filed before this Court 1) by the surviving partners of Atty. Alexander
Sycip, who died on May 5, 1975, and 2) by the surviving partners of Atty. Herminio Ozaeta, who
died on February 14, 1976, praying that they be allowed to continue using, in the names of their
firms, the names of partners who had passed away. In the Court's Resolution of September 2,
1976, both Petitions were ordered consolidated.

Petitioners base their petitions on the following arguments:

1. Under the law, a partnership is not prohibited from continuing its business under a firm name
which includes the name of a deceased partner; in fact, Article 1840 of the Civil Code explicitly
sanctions the practice when it provides in the last paragraph that: t.hqw

The use by the person or partnership continuing the business of the partnership
name, or the name of a deceased partner as part thereof, shall not of itself make
the individual property of the deceased partner liable for any debts contracted by
1
such person or partnership.

2. In regulating other professions, such as accountancy and engineering, the legislature has
authorized the adoption of firm names without any restriction as to the use, in such firm name, of
2
the name of a deceased partner; the legislative authorization given to those engaged in the
practice of accountancy a profession requiring the same degree of trust and confidence in
respect of clients as that implicit in the relationship of attorney and client to acquire and use a
trade name, strongly indicates that there is no fundamental policy that is offended by the
continued use by a firm of professionals of a firm name which includes the name of a deceased
3
partner, at least where such firm name has acquired the characteristics of a "trade name."

3. The Canons of Professional Ethics are not transgressed by the continued use of the name of a
deceased partner in the firm name of a law partnership because Canon 33 of the Canons of
Professional Ethics adopted by the American Bar Association declares that: t.hqw

... The continued use of the name of a deceased or former partner when
permissible by local custom, is not unethical but care should be taken that no
4
imposition or deception is practiced through this use. ...

4. There is no possibility of imposition or deception because the deaths of their respective


deceased partners were well-publicized in all newspapers of general circulation for several days;
the stationeries now being used by them carry new letterheads indicating the years when their
respective deceased partners were connected with the firm; petitioners will notify all leading
national and international law directories of the fact of their respective deceased partners'
5
deaths.

5. No local custom prohibits the continued use of a deceased partner's name in a professional
6
firm's name; there is no custom or usage in the Philippines, or at least in the Greater Manila
Area, which recognizes that the name of a law firm necessarily Identifies the individual members
7
of the firm.

6. The continued use of a deceased partner's name in the firm name of law partnerships has
been consistently allowed by U.S. Courts and is an accepted practice in the legal profession of
8
most countries in the world.

The question involved in these Petitions first came under consideration by this Court in 1953
when a law firm in Cebu (the Deen case) continued its practice of including in its firm name that of
a deceased partner, C.D. Johnston. The matter was resolved with this Court advising the firm to
desist from including in their firm designation the name of C. D. Johnston, who has long been
dead."
The same issue was raised before this Court in 1958 as an incident in G. R. No. L-11964, entitled
Register of Deeds of Manila vs. China Banking Corporation. The law firm of Perkins & Ponce
Enrile moved to intervene as amicus curiae. Before acting thereon, the Court, in a Resolution of
April 15, 1957, stated that it "would like to be informed why the name of Perkins is still being used
although Atty. E. A. Perkins is already dead." In a Manifestation dated May 21, 1957, the law firm
of Perkins and Ponce Enrile, raising substantially the same arguments as those now being raised
by petitioners, prayed that the continued use of the firm name "Perkins & Ponce Enrile" be held
proper.

On June 16, 1958, this Court resolved: t.hqw

After carefully considering the reasons given by Attorneys Alfonso Ponce Enrile
and Associates for their continued use of the name of the deceased E. G.
Perkins, the Court found no reason to depart from the policy it adopted in June
1953 when it required Attorneys Alfred P. Deen and Eddy A. Deen of Cebu City
to desist from including in their firm designation, the name of C. D. Johnston,
deceased. The Court believes that, in view of the personal and confidential
nature of the relations between attorney and client, and the high standards
demanded in the canons of professional ethics, no practice should be allowed
which even in a remote degree could give rise to the possibility of deception.
Said attorneys are accordingly advised to drop the name "PERKINS" from their
firm name.

Petitioners herein now seek a re-examination of the policy thus far enunciated by the Court.

The Court finds no sufficient reason to depart from the rulings thus laid down.

A. Inasmuch as "Sycip, Salazar, Feliciano, Hernandez and Castillo" and "Ozaeta, Romulo, De
Leon, Mabanta and Reyes" are partnerships, the use in their partnership names of the names of
deceased partners will run counter to Article 1815 of the Civil Code which provides: t.hqw

Art. 1815. Every partnership shall operate under a firm name, which may or may
not include the name of one or more of the partners.

Those who, not being members of the partnership, include their names in the firm
name, shall be subject to the liability, of a partner.

It is clearly tacit in the above provision that names in a firm name of a partnership must either be
those of living partners and. in the case of non-partners, should be living persons who can be
subjected to liability. In fact, Article 1825 of the Civil Code prohibits a third person from including
his name in the firm name under pain of assuming the liability of a partner. The heirs of a
deceased partner in a law firm cannot be held liable as the old members to the creditors of a firm
particularly where they are non-lawyers. Thus, Canon 34 of the Canons of Professional Ethics
"prohibits an agreement for the payment to the widow and heirs of a deceased lawyer of a
percentage, either gross or net, of the fees received from the future business of the deceased
lawyer's clients, both because the recipients of such division are not lawyers and because such
payments will not represent service or responsibility on the part of the recipient. " Accordingly,
neither the widow nor the heirs can be held liable for transactions entered into after the death of
their lawyer-predecessor. There being no benefits accruing, there ran be no corresponding
liability.

Prescinding the law, there could be practical objections to allowing the use by law firms of the
names of deceased partners. The public relations value of the use of an old firm name can tend
to create undue advantages and disadvantages in the practice of the profession. An able lawyer
without connections will have to make a name for himself starting from scratch. Another able
lawyer, who can join an old firm, can initially ride on that old firm's reputation established by
deceased partners.

B. In regards to the last paragraph of Article 1840 of the Civil Code cited by petitioners, supra, the
first factor to consider is that it is within Chapter 3 of Title IX of the Code entitled "Dissolution and
Winding Up." The Article primarily deals with the exemption from liability in cases of a dissolved
partnership, of the individual property of the deceased partner for debts contracted by the person
or partnership which continues the business using the partnership name or the name of the
deceased partner as part thereof. What the law contemplates therein is a hold-over situation
preparatory to formal reorganization.

Secondly, Article 1840 treats more of a commercial partnership with a good will to protect rather
than of a professional partnership, with no saleable good will but whose reputation depends on
the personal qualifications of its individual members. Thus, it has been held that a saleable
goodwill can exist only in a commercial partnership and cannot arise in a professional partnership
9
consisting of lawyers. t.hqw

As a general rule, upon the dissolution of a commercial partnership the


succeeding partners or parties have the right to carry on the business under the
old name, in the absence of a stipulation forbidding it, (s)ince the name of a
commercial partnership is a partnership asset inseparable from the good will of
the firm. ... (60 Am Jur 2d, s 204, p. 115) (Emphasis supplied)

On the other hand, t.hqw

... a professional partnership the reputation of which depends or; the individual
skill of the members, such as partnerships of attorneys or physicians, has no
good win to be distributed as a firm asset on its dissolution, however intrinsically
valuable such skill and reputation may be, especially where there is no provision
in the partnership agreement relating to good will as an asset. ... (ibid, s 203, p.
115) (Emphasis supplied)

C. A partnership for the practice of law cannot be likened to partnerships formed by other
professionals or for business. For one thing, the law on accountancy specifically allows the use of
10
a trade name in connection with the practice of accountancy. t.hqw

A partnership for the practice of law is not a legal entity. It is a mere relationship
or association for a particular purpose. ... It is not a partnership formed for the
11
purpose of carrying on trade or business or of holding property." Thus, it has
been stated that "the use of a nom de plume, assumed or trade name in law
12
practice is improper.

The usual reason given for different standards of conduct being applicable to the
practice of law from those pertaining to business is that the law is a profession.

Dean Pound, in his recently published contribution to the Survey of the Legal
Profession, (The Lawyer from Antiquity to Modern Times, p. 5) defines a
profession as "a group of men pursuing a learned art as a common calling in the
spirit of public service, no less a public service because it may incidentally be
a means of livelihood."

xxx xxx xxx


Primary characteristics which distinguish the legal profession from business are:

1. A duty of public service, of which the emolument is a byproduct, and in which


one may attain the highest eminence without making much money.

2. A relation as an "officer of court" to the administration of justice involving


thorough sincerity, integrity, and reliability.

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

4. A relation to colleagues at the bar characterized by candor, fairness, and


unwillingness to resort to current business methods of advertising and
13
encroachment on their practice, or dealing directly with their clients.

"The right to practice law is not a natural or constitutional right but is in the nature of a privilege or
14
franchise. It is limited to persons of good moral character with special qualifications duly
15
ascertained and certified. The right does not only presuppose in its possessor integrity, legal
standing and attainment, but also the exercise of a special privilege, highly personal and
16
partaking of the nature of a public trust."

D. Petitioners cited Canon 33 of the Canons of Professional Ethics of the American Bar
Association" in support of their petitions.

It is true that Canon 33 does not consider as unethical the continued use of the name of a
deceased or former partner in the firm name of a law partnership when such a practice
is permissible by local custom but the Canon warns that care should be taken that no imposition
or deception is practiced through this use.

It must be conceded that in the Philippines, no local custom permits or allows the continued use
of a deceased or former partner's name in the firm names of law partnerships. Firm names, under
our custom, Identify the more active and/or more senior members or partners of the law firm. A
glimpse at the history of the firms of petitioners and of other law firms in this country would show
how their firm names have evolved and changed from time to time as the composition of the
partnership changed. t.hqw

The continued use of a firm name after the death of one or more of the partners
designated by it is proper only where sustained by local custom and not where by
custom this purports to Identify the active members. ...

There would seem to be a question, under the working of the Canon, as to the
propriety of adding the name of a new partner and at the same time retaining that
of a deceased partner who was never a partner with the new one. (H.S. Drinker,
op. cit., supra, at pp. 207208) (Emphasis supplied).

The possibility of deception upon the public, real or consequential, where the name of a
deceased partner continues to be used cannot be ruled out. A person in search of legal counsel
might be guided by the familiar ring of a distinguished name appearing in a firm title.

E. Petitioners argue that U.S. Courts have consistently allowed the continued use of a deceased
partner's name in the firm name of law partnerships. But that is so because it is sanctioned by
custom.
In the case of Mendelsohn v. Equitable Life Assurance Society (33 N.Y.S. 2d 733) which
petitioners Salazar, et al. quoted in their memorandum, the New York Supreme Court sustained
the use of the firm name Alexander & Green even if none of the present ten partners of the firm
bears either name because the practice was sanctioned by custom and did not offend any
statutory provision or legislative policy and was adopted by agreement of the parties. The Court
stated therein: t.hqw

The practice sought to be proscribed has the sanction of custom and offends no
statutory provision or legislative policy. Canon 33 of the Canons of Professional
Ethics of both the American Bar Association and the New York State Bar
Association provides in part as follows: "The continued use of the name of a
deceased or former partner, when permissible by local custom is not unethical,
but care should be taken that no imposition or deception is practiced through this
use." There is no question as to local custom. Many firms in the city use the
names of deceased members with the approval of other attorneys, bar
associations and the courts. The Appellate Division of the First Department has
considered the matter and reached The conclusion that such practice should not
be prohibited. (Emphasis supplied)

xxx xxx xxx

Neither the Partnership Law nor the Penal Law prohibits the practice in question.
The use of the firm name herein is also sustainable by reason of agreement
18
between the partners.

Not so in this jurisdiction where there is no local custom that sanctions the practice. Custom has
been defined as a rule of conduct formed by repetition of acts, uniformly observed (practiced) as
19
a social rule, legally binding and obligatory. Courts take no judicial notice of custom. A custom
20
must be proved as a fact, according to the rules of evidence. A local custom as a source of
right cannot be considered by a court of justice unless such custom is properly established by
21
competent evidence like any other fact. We find such proof of the existence of a local custom,
and of the elements requisite to constitute the same, wanting herein. Merely because something
is done as a matter of practice does not mean that Courts can rely on the same for purposes of
adjudication as a juridical custom. Juridical custom must be differentiated from social custom. The
former can supplement statutory law or be applied in the absence of such statute. Not so with the
latter.

Moreover, judicial decisions applying or interpreting the laws form part of the legal
22
system. When the Supreme Court in the Deen and Perkins cases issued its Resolutions
directing lawyers to desist from including the names of deceased partners in their firm
designation, it laid down a legal rule against which no custom or practice to the contrary, even if
proven, can prevail. This is not to speak of our civil law which clearly ordains that a partnership is
23
dissolved by the death of any partner. Custom which are contrary to law, public order or public
24
policy shall not be countenanced.

The practice of law is intimately and peculiarly related to the administration of justice and should
not be considered like an ordinary "money-making trade." t.hqw

... It is of the essence of a profession that it is practiced in a spirit of public


service. A trade ... aims primarily at personal gain; a profession at the exercise of
powers beneficial to mankind. If, as in the era of wide free opportunity, we think
of free competitive self assertion as the highest good, lawyer and grocer and
farmer may seem to be freely competing with their fellows in their calling in order
each to acquire as much of the world's good as he may within the allowed him by
law. But the member of a profession does not regard himself as in competition
with his professional brethren. He is not bartering his services as is the artisan
nor exchanging the products of his skill and learning as the farmer sells wheat or
corn. There should be no such thing as a lawyers' or physicians' strike. The best
service of the professional man is often rendered for no equivalent or for a trifling
equivalent and it is his pride to do what he does in a way worthy of his profession
even if done with no expectation of reward, This spirit of public service in which
the profession of law is and ought to be exercised is a prerequisite of sound
administration of justice according to law. The other two elements of a
profession, namely, organization and pursuit of a learned art have their
25
justification in that they secure and maintain that spirit.

In fine, petitioners' desire to preserve the Identity of their firms in the eyes of the public must bow
to legal and ethical impediment.

ACCORDINGLY, the petitions filed herein are denied and petitioners advised to drop the names
"SYCIP" and "OZAETA" from their respective firm names. Those names may, however, be
included in the listing of individuals who have been partners in their firms indicating the years
during which they served as such.

SO ORDERED.

Teehankee, Concepcion, Jr., Santos, Fernandez, Guerrero and De Castro, JJ., concur

Fernando, C.J. and Abad Santos, J., took no part.

Separate Opinions

FERNANDO, C.J., concurring:

The petitions are denied, as there are only four votes for granting them, seven of the Justices
being of the contrary view, as explained in the plurality opinion of Justice Ameurfina Melencio-
Herrera. It is out of delicadeza that the undersigned did not participate in the disposition of these
petitions, as the law office of Sycip, Salazar, Feliciano, Hernandez and Castillo started with the
partnership of Quisumbing, Sycip, and Quisumbing, the senior partner, the late Ramon
Quisumbing, being the father-in-law of the undersigned, and the most junior partner then,
Norberto J. Quisumbing, being his brother- in-law. For the record, the undersigned wishes to
invite the attention of all concerned, and not only of petitioners, to the last sentence of the opinion
of Justice Ameurfina Melencio-Herrera: 'Those names [Sycip and Ozaeta] may, however, be
included in the listing of individuals wtes

AQUINO, J., dissenting:

I dissent. The fourteen members of the law firm, Sycip, Salazar, Feliciano, Hernandez & Castillo,
in their petition of June 10, 1975, prayed for authority to continue the use of that firm name,
notwithstanding the death of Attorney Alexander Sycip on May 5, 1975 (May he rest in peace).
He was the founder of the firm which was originally known as the Sycip Law Office.
On the other hand, the seven surviving partners of the law firm, Ozaeta, Romulo, De Leon,
Mabanta & Reyes, in their petition of August 13, 1976, prayed that they be allowed to continue
using the said firm name notwithstanding the death of two partners, former Justice Roman
Ozaeta and his son, Herminio, on May 1, 1972 and February 14, 1976, respectively.

They alleged that the said law firm was a continuation of the Ozaeta Law Office which was
established in 1957 by Justice Ozaeta and his son and that, as to the said law firm, the name
Ozaeta has acquired an institutional and secondary connotation.

Article 1840 of the Civil Code, which speaks of the use by the partnership of the name of a
deceased partner as part of the partnership name, is cited to justify the petitions. Also invoked is
the canon that the continued use by a law firm of the name of a deceased partner, "when
permissible by local custom, is not unethical" as long as "no imposition or deception is practised
through this use" (Canon 33 of the Canons of Legal Ethics).

I am of the opinion that the petition may be granted with the condition that it be indicated in the
letterheads of the two firms (as the case may be) that Alexander Sycip, former Justice Ozaeta
and Herminio Ozaeta are dead or the period when they served as partners should be stated
therein.

Obviously, the purpose of the two firms in continuing the use of the names of their deceased
founders is to retain the clients who had customarily sought the legal services of Attorneys Sycip
and Ozaeta and to benefit from the goodwill attached to the names of those respected and
esteemed law practitioners. That is a legitimate motivation.

The retention of their names is not illegal per se. That practice was followed before the war by the
law firm of James Ross. Notwithstanding the death of Judge Ross the founder of the law firm of
Ross, Lawrence, Selph and Carrascoso, his name was retained in the firm name with an
indication of the year when he died. No one complained that the retention of the name of Judge
Ross in the firm name was illegal or unethical.

# Separate Opinions

FERNANDO, C.J., concurring:

The petitions are denied, as there are only four votes for granting them, seven of the Justices
being of the contrary view, as explained in the plurality opinion of Justice Ameurfina Melencio-
Herrera. It is out of delicadeza that the undersigned did not participate in the disposition of these
petitions, as the law office of Sycip, Salazar, Feliciano, Hernandez and Castillo started with the
partnership of Quisumbing, Sycip, and Quisumbing, the senior partner, the late Ramon
Quisumbing, being the father-in-law of the undersigned, and the most junior partner then,
Norberto J. Quisumbing, being his brother- in-law. For the record, the undersigned wishes to
invite the attention of all concerned, and not only of petitioners, to the last sentence of the opinion
of Justice Ameurfina Melencio-Herrera: 'Those names [Sycip and Ozaeta] may, however, be
included in the listing of individuals wtes

AQUINO, J., dissenting:

I dissent. The fourteen members of the law firm, Sycip, Salazar, Feliciano, Hernandez & Castillo,
in their petition of June 10, 1975, prayed for authority to continue the use of that firm name,
notwithstanding the death of Attorney Alexander Sycip on May 5, 1975 (May he rest in peace).
He was the founder of the firm which was originally known as the Sycip Law Office.

On the other hand, the seven surviving partners of the law firm, Ozaeta, Romulo, De Leon,
Mabanta & Reyes, in their petition of August 13, 1976, prayed that they be allowed to continue
using the said firm name notwithstanding the death of two partners, former Justice Roman
Ozaeta and his son, Herminio, on May 1, 1972 and February 14, 1976, respectively.

They alleged that the said law firm was a continuation of the Ozaeta Law Office which was
established in 1957 by Justice Ozaeta and his son and that, as to the said law firm, the name
Ozaeta has acquired an institutional and secondary connotation.

Article 1840 of the Civil Code, which speaks of the use by the partnership of the name of a
deceased partner as part of the partnership name, is cited to justify the petitions. Also invoked is
the canon that the continued use by a law firm of the name of a deceased partner, "when
permissible by local custom, is not unethical" as long as "no imposition or deception is practised
through this use" (Canon 33 of the Canons of Legal Ethics).

I am of the opinion that the petition may be granted with the condition that it be indicated in the
letterheads of the two firms (as the case may be) that Alexander Sycip, former Justice Ozaeta
and Herminio Ozaeta are dead or the period when they served as partners should be stated
therein.

Obviously, the purpose of the two firms in continuing the use of the names of their deceased
founders is to retain the clients who had customarily sought the legal services of Attorneys Sycip
and Ozaeta and to benefit from the goodwill attached to the names of those respected and
esteemed law practitioners. That is a legitimate motivation.

The retention of their names is not illegal per se. That practice was followed before the war by the
law firm of James Ross. Notwithstanding the death of Judge Ross the founder of the law firm of
Ross, Lawrence, Selph and Carrascoso, his name was retained in the firm name with an
indication of the year when he died. No one complained that the retention of the name of Judge
Ross in the firm name was illegal or unethical.

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

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 Cathay Products 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.

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

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.