A Law Student's Corner: Cases on Legal Profession

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-961 September 21, 1949

BLANDINA GAMBOA HILADO, petitioner,
vs.
JOSE GUTIERREZ DAVID, VICENTE J. FRANCISCO, JACOB ASSAD and SELIM JACOB ASSAD, respondents.

Delgado, Dizon and Flores for petitioner.
Vicente J. Francisco for respondents.

TUASON, J.:

It appears that on April 23, 1945, Blandina Gamboa Hilado brought an action against Selim Jacob Assad to annul the sale of several houses and lot executed during the Japanese occupation by Mrs. Hilado's now deceased husband.

On May 14, Attorneys Ohnick, Velilla and Balonkita filed an answer on behalf of the defendant; and on June 15, Attorneys Delgado, Dizon, Flores and Rodrigo registered their appearance as counsel for the plaintiff. On October 5, these attorneys filed an amended complaint by including Jacob Assad as party defendant.

On January 28, 1946, Attorney Francisco entered his appearance as attorney of record for the defendant in substitution for Attorney Ohnick, Velilla and Balonkita who had withdrawn from the case.

On May 29, Attorney Dizon, in the name of his firm, wrote Attorney Francisco urging him to discontinue representing the defendants on the ground that their client had consulted with him about her case, on which occasion, it was alleged, "she turned over the papers" to Attorney Francisco, and the latter sent her a written opinion. Not receiving any answer to this suggestion, Attorney Delgado, Dizon, Flores and Rodrigo on June 3, 1946, filed a formal motion with the court, wherein the case was and is pending, to disqualify Attorney Francisco.

Attorney Francisco's letter to plaintiff, mentioned above and identified as Exhibit A, is in full as follows:

VICENTE J. FRANCISCO
Attorney-at-Law
1462 Estrada, Manila

July 13, 1945.

Mrs. Blandina Gamboa Hilado
Manila, Philippines

My dear Mrs. Hilado:

From the papers you submitted to me in connection with civil case No. 70075 of the Court of First Instance of Manila, entitled "Blandina Gamboa Hilado vs. S. J. Assad," I find that the basic facts which brought about the controversy between you and the defendant therein are as follows:

(a) That you were the equitable owner of the property described in the complaint, as the same was purchased and/or built with funds exclusively belonging to you, that is to say, the houses and lot pertained to your paraphernal estate;

(b) That on May 3, 1943, the legal title to the property was with your husband, Mr. Serafin P. Hilado; and

Upon the foregoing facts, I am of the opinion that your action against Mr. Assad will not ordinarily prosper. Mr. Assad had the right to presume that your husband had the legal right to dispose of the property as the transfer certificate of title was in his name. Moreover, the price of P110,000 in Japanese military notes, as of May 3, 1943, does not quite strike me as so grossly inadequate as to warrant the annulment of the sale. I believe, lastly, that the transaction cannot be avoided merely because it was made during the Japanese occupation, nor on the simple allegation that the real purchaser was not a citizen of the Philippines. On his last point, furthermore, I expect that you will have great difficulty in proving that the real purchaser was other than Mr. Assad, considering that death has already sealed your husband's lips and he cannot now testify as to the circumstances of the sale.

For the foregoing reasons, I regret to advise you that I cannot appear in the proceedings in your behalf. The records of the case you loaned to me are herewith returned.

Yours very truly,

(Sgd.) VICENTE J. FRANCISCO

VJF/Rag.

In his answer to plaintiff's attorneys' complaint, Attorney Francisco alleged that about May, 1945, a real estate broker came to his office in connection with the legal separation of a woman who had been deserted by her husband, and also told him (Francisco) that there was a pending suit brought by Mrs. Hilado against a certain Syrian to annul the sale of a real estate which the deceased Serafin Hilado had made to the Syrian during the Japanese occupation; that this woman asked him if he was willing to accept the case if the Syrian should give it to him; that he told the woman that the sales of real property during the Japanese regime were valid even though it was paid for in Japanese military notes; that this being his opinion, he told his visitor he would have no objection to defending the Syrian;

That one month afterwards, Mrs. Hilado came to see him about a suit she had instituted against a certain Syrian to annul the conveyance of a real estate which her husband had made; that according to her the case was in the hands of Attorneys Delgado and Dizon, but she wanted to take it away from them; that as he had known the plaintiff's deceased husband he did not hesitate to tell her frankly that hers was a lost case for the same reason he had told the broker; that Mrs. Hilado retorted that the basis of her action was not that the money paid her husband was Japanese military notes, but that the premises were her private and exclusive property; that she requested him to read the complaint to be convinced that this was the theory of her suit; that he then asked Mrs. Hilado if there was a Torrens title to the property and she answered yes, in the name of her husband; that he told Mrs. Hilado that if the property was registered in her husband's favor, her case would not prosper either;

That some days afterward, upon arrival at his law office on Estrada street, he was informed by Attorney Federico Agrava, his assistant, that Mrs. Hilado had dropped in looking for him and that when he, Agrava, learned that Mrs. Hilado's visit concerned legal matters he attended to her and requested her to leave the "expediente" which she was carrying, and she did; that he told Attorney Agrava that the firm should not handle Mrs. Hilado's case and he should return the papers, calling Agrava's attention to what he (Francisco) already had said to Mrs. Hilado;

That several days later, the stenographer in his law office, Teofilo Ragodon, showed him a letter which had been dictated in English by Mr. Agrava, returning the "expedients" to Mrs. Hilado; that Ragodon told him (Attorney Francisco) upon Attorney Agrava's request that Agrava thought it more proper to explain to Mrs. Hilado the reasons why her case was rejected; that he forthwith signed the letter without reading it and without keeping it for a minute in his possession; that he never saw Mrs. Hilado since their last meeting until she talked to him at the Manila Hotel about a proposed extrajudicial settlement of the case;

That in January, 1946, Assad was in his office to request him to handle his case stating that his American lawyer had gone to the States and left the case in the hands of other attorneys; that he accepted the retainer and on January 28, 1946, entered his appearance.

Attorney Francisco filed an affidavit of stenographer Ragodon in corroboration of his answer.

The judge trying the case, Honorable Jose Gutierrez David, later promoted to the Court of Appeals, dismissed the complaint. His Honor believed that no information other than that already alleged in plaintiff's complaint in the main cause was conveyed to Attorney Francisco, and concluded that the intercourse between the plaintiff and the respondent did not attain the point of creating the relation of attorney and client.

Stripped of disputed details and collateral matters, this much is undoubted: That Attorney Francisco's law firm mailed to the plaintiff a written opinion over his signature on the merits of her case; that this opinion was reached on the basis of papers she had submitted at his office; that Mrs. Hilado's purpose in submitting those papers was to secure Attorney Francisco's professional services. Granting the facts to be no more than these, we agree with petitioner's counsel that the relation of attorney and client between Attorney Francisco and Mrs. Hilado ensued. The following rules accord with the ethics of the legal profession and meet with our approval:

In order to constitute the relation (of attorney and client) a professional one and not merely one of principal and agent, the attorneys must be employed either to give advice upon a legal point, to prosecute or defend an action in court of justice, or to prepare and draft, in legal form such papers as deeds, bills, contracts and the like. (Atkinson vs. Howlett, 11 Ky. Law Rep. (abstract), 364; cited in Vol. 88, A. L. R., p. 6.)

To constitute professional employment it is not essential that the client should have employed the attorney professionally on any previous occasion. . . . It is not necessary that any retainer should have been paid, promised, or charged for; neither is it material that the attorney consulted did not afterward undertake the case about which the consultation was had. If a person, in respect to his business affairs or troubles of any kind, consults with his attorney in his professional capacity with the view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces in such consultation, then the professional employment must be regarded as established. . . . (5 Jones Commentaries on Evidence, pp. 4118-4119.)

An attorney is employed-that is, he is engaged in his professional capacity as a lawyer or counselor-when he is listening to his client's preliminary statement of his case, or when he is giving advice thereon, just as truly as when he is drawing his client's pleadings, or advocating his client's cause in open court. (Denver Tramway Co. vs. Owens, 20 Colo., 107; 36 P., 848.)

Formality is not an essential element of the employment of an attorney. The contract may be express or implied and it is sufficient that the advice and assistance of the attorney is sought and received, in matters pertinent to his profession. An acceptance of the relation is implied on the part of the attorney from his acting in behalf of his client in pursuance of a request by the latter. (7 C. J. S., 848-849; see Hirach Bros. and Co. vs. R. E. Kennington Co., 88 A. L. R., 1.)

Section 26 (e), Rule 123 of the Rules of Court provides that "an attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment;" and section 19 (e) of Rule 127 imposes upon an attorney the duty "to maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client." There is no law or provision in the Rules of Court prohibiting attorneys in express terms from acting on behalf of both parties to a controversy whose interests are opposed to each other, but such prohibition is necessarily implied in the injunctions above quoted. (In re De la Rosa, 27 Phil., 258.) In fact the prohibition derives validity from sources higher than written laws and rules. As has been aptly said in In re Merron, 22 N. M., 252, L.R.A., 1917B, 378, "information so received is sacred to the employment to which it pertains," and "to permit it to be used in the interest of another, or, worse still, in the interest of the adverse party, is to strike at the element of confidence which lies at the basis of, and affords the essential security in, the relation of attorney and client."

That only copies of pleadings already filed in court were furnished to Attorney Agrava and that, this being so, no secret communication was transmitted to him by the plaintiff, would not vary the situation even if we should discard Mrs. Hilado's statement that other papers, personal and private in character, were turned in by her. Precedents are at hand to support the doctrine that the mere relation of attorney and client ought to preclude the attorney from accepting the opposite party's retainer in the same litigation regardless of what information was received by him from his first client.

The principle which forbids an attorney who has been engaged to represent a client from thereafter appearing on behalf of the client's opponent applies equally even though during the continuance of the employment nothing of a confidential nature was revealed to the attorney by the client. (Christian vs. Waialua Agricultural Co., 30 Hawaii, 553, Footnote 7, C. J. S., 828.)

Where it appeared that an attorney, representing one party in litigation, had formerly represented the adverse party with respect to the same matter involved in the litigation, the court need not inquire as to how much knowledge the attorney acquired from his former during that relationship, before refusing to permit the attorney to represent the adverse party. (Brown vs. Miller, 52 App. D. C. 330; 286, F. 994.)

In order that a court may prevent an attorney from appearing against a former client, it is unnecessary that the ascertain in detail the extent to which the former client's affairs might have a bearing on the matters involved in the subsequent litigation on the attorney's knowledge thereof. (Boyd vs. Second Judicial Dist. Court, 274 P., 7; 51 Nev., 264.)

This rule has been so strictly that it has been held an attorney, on terminating his employment, cannot thereafter act as counsel against his client in the same general matter, even though, while acting for his former client, he acquired no knowledge which could operate to his client's disadvantage in the subsequent adverse employment. (Pierce vs. Palmer [1910], 31 R. I., 432; 77 Atl., 201, Ann. Cas., 1912S, 181.)

Communications between attorney and client are, in a great number of litigations, a complicated affair, consisting of entangled relevant and irrelevant, secret and well known facts. In the complexity of what is said in the course of the dealings between an attorney and a client, inquiry of the nature suggested would lead to the revelation, in advance of the trial, of other matters that might only further prejudice the complainant's cause. And the theory would be productive of other un salutary results. To make the passing of confidential communication a condition precedent; i.e., to make the employment conditioned on the scope and character of the knowledge acquired by an attorney in determining his right to change sides, would not enhance the freedom of litigants, which is to be sedulously fostered, to consult with lawyers upon what they believe are their rights in litigation. The condition would of necessity call for an investigation of what information the attorney has received and in what way it is or it is not in conflict with his new position. Litigants would in consequence be wary in going to an attorney, lest by an unfortunate turn of the proceedings, if an investigation be held, the court should accept the attorney's inaccurate version of the facts that came to him. "Now the abstinence from seeking legal advice in a good cause is by hypothesis an evil which is fatal to the administration of justice." (John H. Wigmore's Evidence, 1923, Section 2285, 2290, 2291.)

Hence the necessity of setting down the existence of the bare relationship of attorney and client as the yardstick for testing incompatibility of interests. This stern rule is designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to protect the honest lawyer from unfounded suspicion of unprofessional practice. (Strong vs. Int. Bldg., etc.; Ass'n, 183 Ill., 97; 47 L.R.A., 792.) It is founded on principles of public policy, on good taste. As has been said in another case, the question is not necessarily one of the rights of the parties, but as to whether the attorney has adhered to proper professional standard. With these thoughts in mind, it behooves attorneys, like Caesar's wife, not only to keep inviolate the client's confidence, but also to avoid the appearance of treachery and double-dealing. Only thus can litigants be encouraged to entrust their secrets to their attorneys which is of paramount importance in the administration of justice.

So without impugning respondent's good faith, we nevertheless can not sanction his taking up the cause of the adversary of the party who had sought and obtained legal advice from his firm; this, not necessarily to prevent any injustice to the plaintiff but to keep above reproach the honor and integrity of the courts and of the bar. Without condemning the respondents conduct as dishonest, corrupt, or fraudulent, we do believe that upon the admitted facts it is highly in expedient. It had the tendency to bring the profession, of which he is a distinguished member, "into public disrepute and suspicion and undermine the integrity of justice."

There is in legal practice what called "retaining fee," the purpose of which stems from the realization that the attorney is disabled from acting as counsel for the other side after he has given professional advice to the opposite party, even if he should decline to perform the contemplated services on behalf of the latter. It is to prevent undue hardship on the attorney resulting from the rigid observance of the rule that a separate and independent fee for consultation and advice was conceived and authorized. "A retaining fee is a preliminary fee given to an attorney or counsel to insure and secure his future services, and induce him to act for the client. It is intended to remunerate counsel for being deprived, by being retained by one party, of the opportunity of rendering services to the other and of receiving pay from him, and the payment of such fee, in the absence of an express understanding to the contrary, is neither made nor received in payment of the services contemplated; its payment has no relation to the obligation of the client to pay his attorney for the services which he has retained him to perform." (7 C.J.S., 1019.)

The defense that Attorney Agrava wrote the letter Exhibit A and that Attorney Francisco did not take the trouble of reading it, would not take the case out of the interdiction. If this letter was written under the circumstances explained by Attorney Francisco and he was unaware of its contents, the fact remains that his firm did give Mrs. Hilado a formal professional advice from which, as heretofore demonstrated, emerged the relation of attorney and client. This letter binds and estop him in the same manner and to the same degree as if he personally had written it. An information obtained from a client by a member or assistant of a law firm is information imparted to the firm. (6 C. J., 628; 7 C. J. S., 986.) This is not a mere fiction or an arbitrary rule; for such member or assistant, as in our case, not only acts in the name and interest of the firm, but his information, by the nature of his connection with the firm is available to his associates or employers. The rule is all the more to be adhered to where, as in the present instance, the opinion was actually signed by the head of the firm and carries his initials intended to convey the impression that it was dictated by him personally. No progress could be hoped for in "the public policy that the client in consulting his legal adviser ought to be free from apprehension of disclosure of his confidence," if the prohibition were not extended to the attorney's partners, employers or assistants.

The fact that petitioner did not object until after four months had passed from the date Attorney Francisco first appeared for the defendants does not operate as a waiver of her right to ask for his disqualification. In one case, objection to the appearance of an attorney was allowed even on appeal as a ground for reversal of the judgment. In that case, in which throughout the conduct of the cause in the court below the attorney had been suffered so to act without objection, the court said: "We are all of the one mind, that the right of the appellee to make his objection has not lapsed by reason of failure to make it sooner; that professional confidence once reposed can never be divested by expiration of professional employment." (Nickels vs. Griffin, 1 Wash. Terr., 374, 321 A. L. R. 1316.)

The complaint that petitioner's remedy is by appeal and not by certiorari deserves scant attention. The courts have summary jurisdiction to protect the rights of the parties and the public from any conduct of attorneys prejudicial to the administration of the justice. The summary jurisdiction of the courts over attorneys is not confined to requiring them to pay over money collected by them but embraces authority to compel them to do whatever specific acts may be incumbent upon them in their capacity of attorneys to perform. The courts from the general principles of equity and policy, will always look into the dealings between attorneys and clients and guard the latter from any undue consequences resulting from a situation in which they may stand unequal. The courts acts on the same principles whether the undertaking is to appear, or, for that matter, not to appear, to answer declaration, etc. (6 C.J., 718 C.J.S., 1005.) This summary remedy against attorneys flows from the facts that they are officers of the court where they practice, forming a part of the machinery of the law for the administration of justice and as such subject to the disciplinary authority of the courts and to its orders and directions with respect to their relations to the court as well as to their clients. (Charest vs. Bishop, 137 Minn., 102; 162, N.W., 1062, Note 26, 7 C. J. S., 1007.) Attorney stand on the same footing as sheriffs and other court officers in respect of matters just mentioned.

We conclude therefore that the motion for disqualification should be allowed. It is so ordered, without costs.

Moran, C.J., Ozaeta, Paras, Feria, Bengzon, Padilla, Montemayor, Reyes and Torres, JJ., concur.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

DECISION

August 8, 1935

G.R. No. L-42992
FELIPE SALCEDO, petitioner-appellant,
vs.
FRANCISCO HERNANDEZ, respondent-appellee. In re contempt proceedings against Attorney VICENTE J.
In re contempt proceedings against Attorney VICENTE J. FRANCISCO.

Vicente J. Francisco in his own behalf.

Diaz, J.:

In a motion filed in this case, which is pending resolution because the second motion for reconsideration of Attorney Vicente J. Francisco, who represents the herein petitioner, has not been acted upon to date, for the reason that the question whether or not the decision which has already been promulgated should be reconsidered by virtue of the first assignment of error relied upon in said petitioner's brief, has not yet been determined, for which purpose the case was set for hearing on August 5, 1935, said attorney inserted a paragraph the translation of which reads as follows:

We should like frankly and respectfully to make it of record that the resolution of this court, denying our motion for reconsideration, is absolutely erroneous and constitutes an outrage to the rights of the petitioner Felipe Salcedo and a mockery of the popular will expressed at the polls in the municipality of Tiaong, Tayabas. We wish to exhaust all the means within out power in order that this error may be corrected by the very court which has committed it, because we should not want that some citizen, particularly some voter of the municipality of Tiaong, Tayabas, resort to the press publicly to denounce, as he has a right to do, the judicial outrage of which the herein petitioner has been the victim, and because it is our utmost desire to safeguard the prestige of this honorable court and of each and every member thereof in the eyes of the public. But, at the same time we wish to state sincerely that erroneous decisions like these, which the affected party and his thousands of voters will necessarily consider unjust, increase the proselytes of "sakdalism" and make the public lose confidence in the administration of justice.

When the court's attention was called to said paragraph, it required Attorney Vicente J. Francisco to show cause, if any, why he should not be found guilty of contempt, giving him a period of ten days for that purpose. In this answer attorney Vicente J. Francisco, far from regretting having employed the phrases contained in said paragraph in his motion, reiterated them several times contending that they did not constitute contempt because, according to him it is not contempt to tell the truth.

The phrases:

. . . and constitutes an outrage to the rights of the petitioner Felipe Salcedo and a mockery of the popular will expressed at the polls . . . .

. . . because we should not want that some citizen, particularly some voter of the municipality of Tiaong, Tayabas, resort to the press publicly to denounce, as he has a right to do, the judicial outrage . . . .

and ... we wish to state sincerely that erroneous decisions like these, which the affected party and his thousands of voters will necessarily consider unjust, increase the proselytes of "sakdalism" and make the public lose confidence in the administration of justice", disclose, in the opinion of this court, an inexcusable disrespect of the authority of the court and an intentional contempt of its dignity, because the court is thereby charged with no less than having proceed in utter disregard of the laws, the rights of the parties, and of the untoward consequences, or with having abused its power and mocked and flouted the rights of Attorney Vicente J. Francisco's client, because the acts of outraging and mocking from which the words "outrage" and "mockery" used therein are derived, mean exactly the same as all these, according to the Dictionary of the Spanish Language published by the Spanish Academy (Dictionary of the Spanish Language, 15th ed., pages 132 and 513).

The insertion of the phrases in question in said motion of Attorney Vicente J. Francisco, for many years a member of the Philippine bar, was neither justified nor in the least necessary, because in order to call the attention of the court in a special way to the essential points relied upon in his argument and to emphasize the force thereof, the many reasons stated in his said motion were sufficient and the phrases in question were superfluous. In order to appeal to reason and justice, it is highly improper and amiss to make trouble and resort to threats, as Attorney Vicente J. Francisco has done, because both means are annoying and good practice can never sanction them by reason of their natural tendency to disturb and hinder the free exercise of a serene and impartial judgment, particularly in judicial matters, in the consideration of questions submitted for resolution.

There is no question that said paragraph of Attorney Vicente J. Francisco's motion contains a more or less veiled threat to the court because it is insinuated therein, after the author shows the course which the voters of Tiaong should follow in case he fails in his attempt, that they will resort to the press for the purpose of denouncing, what he claims to be a judicial outrage of which his client has been the victim; and because he states in a threatening manner with the intention of predisposing the mind of the reader against the court, thus creating an atmosphere of prejudices against it in order to make it odious in the public eye, that decisions of the nature of that referred to in his motion promote distrust in the administration of justice and increase the proselytes of sakdalism, a movement with seditious and revolutionary tendencies the activities of which, as is of public knowledge, occurred in this country a few days ago. This cannot mean otherwise than contempt of the dignity of the court and disrespect of the authority thereof on the part of Attorney Vicente J. Francisco, because he presumes that the court is so devoid of the sense of justice that, if he did not resort to intimidation, it would maintain its error notwithstanding the fact that it may be proven, with good reasons, that it has acted erroneously.

As a member of the bar and an officer of this court, Attorney Vicente J. Francisco, as any attorney, is in duty bound to uphold its dignity and authority and to defend its integrity, not only because it has conferred upon him the high privilege, not á right (Malcolm, Legal Ethics, 158 and 160), of being what he now is : a priest of justice (In re Thatcher, 80 Ohio St. Rep., 492, 669), but also because in so doing, he neither creates nor promotes distrust in the administration of justice, and prevents anybody from harboring and encouraging discontent which, in many cases, is the source of disorder, thus undermining the foundation upon which rests that bulwark called judicial power to which those who are aggrieved turn for protection and relief.

It is right and plausible that an attorney, in defending the cause and rights of his client, should do so with all the fervor and energy of which he is capable, but it is not, and never will be so for him to exercise said right by resorting to intimidation or proceeding without the propriety and respect which the dignity of the courts require. The reason for this is that respect of the courts guarantees the stability of their institution. Without such guaranty, said institution would be resting on a very shaky foundation.

At this juncture, it is not amiss to invite attention to the provisions of rule 1 of Chapter 2 of Legal Ethics, which reads as follows:

It is the duty of the lawyer to maintain towards the courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its importance. Judges, not being wholly free to defend themselves, are peculiarly entitled to receive the support of the bar against unjust criticism and clamor. Whenever there is proper ground for serious complaint of a judicial officer, it is the right and duty of the lawyer to submit his grievances to the proper authorities. In such cases but not otherwise, such charges should be encouraged and the person making them should be protected.

In his defense, Attorney Vicente J. Francisco states that it was not his intention to offend the court or to be recreant to the respect thereto but, unfortunately, there are his phrases which need no further comment. Furthermore, it is a well settled rule in all places where the same conditions and practice as those in this jurisdiction obtain, that want of intention is no excuse from liability (13 C.J., 45). Neither is the fact that the phrases employed are justified by the facts a valid defense:

"Where the matter is abusive or insulting, evidence that the language used was justified by the facts is not admissible as a defense. Respect for the judicial office should always be observed and enforced." (In re Stewart, 118 La., 827; 43 S., 455.) Said lack or want of intention constitutes at most an extenuation of liability in this case, taking into consideration Attorney Vicente J. Francisco's state of mind, according to him when he prepared said motion. This court is disposed to make such concession. However, in order to avoid a recurrence thereof and to prevent others by following the bad example, from taking the same course, this court considers it imperative to treat the case of said attorney with the justice it deserves.

Briefly, this court is of the opinion and so holds that the act committed by Attorney Vicente J. Francisco constitutes a contempt in the face of the court (in facie curiae) and, reiterating what this court said on another occasion that the power to punish for contempt is inherent in the courts in order that there be due administration of justice (In re Kelly, 35 Phil. 944), and so that the institution of the courts of justice may be stable and said courts may not fail in their mission, said attorney is ordered to pay a fine of P200 within the period of ten days, and to be reprimanded, and he is hereby reprimanded; and it is ordered that the entire paragraph of his motion containing the phrases which as has been stated, constitute contempt of court be stricken from the record de oficio. So ordered.

Avanceña, C.J., Villa-Real, Abad Santos, Hull Imperial, Butte, and Goddard, JJ., concur.
Malcolm, J., dissents. .

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-18727 August 31, 1964

JESUS MA. CUI, plaintiff-appellee,
vs.
ANTONIO MA. CUI, defendant-appellant,
ROMULO CUI, Intervenor-appellant.

Jose W. Diokno for plaintiff-appellee.
Jaime R. Nuevas and Hector L. Hofileña for defendant-appellant.
Romulo Cui in his own behalf as intervenor-appellants.

MAKALINTAL, J.:

This is a proving in quo warranto originally filed in the Court of First Instance of Cebu. The office in contention is that of Administrator of the Hospicio de San Jose de Barili. Judgment was rendered on 27 April 1961 in favor of the plaintiff, Jesus Ma. Cui, and appealed to us by the defendant, Antonio Ma. Cui, and by the intervenor, Romulo Cui.

The Hospicio is a charitable institution established by the spouses Don Pedro Cui and Doña Benigna Cui, now deceased, "for the care and support, free of charge, of indigent invalids, and incapacitated and helpless persons." It acquired corporate existence by legislation (Act No. 3239 of the Philippine Legislature passed 27 November 1925) and endowed with extensive properties by the said spouses through a series of donations, principally the deed of donation executed on 2 January 1926.

Section 2 of Act No. 3239 gave the initial management to the founders jointly and, in case of their incapacity or death, to "such persons as they may nominate or designate, in the order prescribed to them." Section 2 of the deed of donation provides as follows:

Que en caso de nuestro fallecimiento o incapacidad para administrar, nos sustituyan nuestro legitime sobrino Mariano Cui, si al tiempo de nuestra muerte o incapacidad se hallare residiendo en la caudad de Cebu, y nuestro sobrino politico Dionisio Jakosalem. Si nuestro dicho sobrino Mariano Cui no estuviese residiendo entonces en la caudad de Cebu, designamos en su lugar a nuestro otro sobrino legitime Mauricio Cui. Ambos sobrinos administraran conjuntamente el HOSPICIO DE SAN JOSE DE BARILI. A la muerte o incapacidad de estos dos administradores, la administracion del HOSPICIO DE SAN JOSE DE BARILI pasara a una sola persona que sera el varon, mayor de edad, que descienda legitimainente de cualquiera de nuestros sobrinos legitimos Mariano Cui, Mauricio Cui, Vicente Cui y Victor Cui, y que posea titulo de abogado, o medico, o ingeniero civil, o farmaceutico, o a falta de estos titulos, el que pague al Estado mayor impuesto o contribution. En igualdad de circumstancias, sera preferida el varon de mas edad descendiente de quien tenia ultimamente la administracion. Cuando absolutamente faltare persona de estas cualificaciones, la administracion del HOSPICIO DE SAN JOSE DE BARILI pasara al senor Obispo de Cebu o quien sea el mayor dignatario de la Iglesia Catolica, apostolica, Romana, que tuviere asiento en la cabecera de esta Provincia de Cebu, y en su defecto, al Gobierno Provincial de Cebu.

Don Pedro Cui died in 1926, and his widow continued to administer the Hospicio until her death in 1929. Thereupon the administration passed to Mauricio Cui and Dionisio Jakosalem. The first died on 8 May 1931 and the second on 1 July 1931. On 2 July 1931 Dr. Teodoro Cui, only son of Mauricio Cui, became the administrator. Thereafter, beginning in 1932, a series of controversies and court litigations ensued concerning the position of administrator, to which, in so far as they are pertinent to the present case, reference will be made later in this decision.

Plaintiff Jesus Ma. Cui and defendant Antonio Ma. Cui are brothers, being the sons of Mariano Cui, one of the nephews of the spouses Don Pedro Cui and Doña Benigna Cui. On 27 February 1960 the then incumbent administrator, Dr. Teodoro Cui, resigned in favor of Antonio Ma. Cui pursuant to a "convenio" entered into between them and embodied in a notarial document. The next day, 28 February, Antonio Ma. Cui took his oath of office. Jesus Ma. Cui, however, had no prior notice of either the "convenio" or of his brother's assumption of the position.

Dr. Teodoro Cui died on 27 August 1960; on 5 September 1960 the plaintiff wrote a letter to the defendant demanding that the office be turned over to him; and on 13 September 1960, the demand not having been complied with the plaintiff filed the complaint in this case. Romulo Cui later on intervened, claiming a right to the same office, being a grandson of Vicente Cui, another one of the nephews mentioned by the founders of the Hospicio in their deed of donation.

As between Jesus and Antonio the main issue turns upon their respective qualifications to the position of administrator. Jesus is the older of the two and therefore under equal circumstances would be preferred pursuant to section 2 of the deed of donation. However, before the test of age may be, applied the deed gives preference to the one, among the legitimate descendants of the nephews therein named, "que posea titulo de abogado, o medico, o ingeniero civil, o farmaceutico, o a falta de estos titulos el que pague al estado mayor impuesto o contribucion."

The specific point in dispute is the mealing of the term "titulo de abogado." Jesus Ma. Cui holds the degree of Bachelor of Laws from the University of Santo Tomas (Class 1926) but is not a member of the Bar, not having passed the examinations to qualify him as one. Antonio Ma. Cui, on the other hand, is a member of the Bar and although disbarred by this Court on 29 March 1957 (administrative case No. 141), was reinstated by resolution promulgated on 10 February 1960, about two weeks before he assumed the position of administrator of the Hospicio de Barili.

The Court a quo, in deciding this point in favor of the plaintiff, said that the phrase "titulo de abogado," taken alone, means that of a full-fledged lawyer, but that has used in the deed of donation and considering the function or purpose of the administrator, it should not be given a strict interpretation but a liberal one," and therefore means a law degree or diploma of Bachelor of Laws. This ruling is assailed as erroneous both by the defendant and by the intervenor.

We are of the opinion, that whether taken alone or in context the term "titulo de abogado" means not mere possession of the academic degree of Bachelor of Laws but membership in the Bar after due admission thereto, qualifying one for the practice of law. In Spanish the word "titulo" is defined as "testimonies o instrumento dado para ejercer un empleo, dignidad o profesion" (Diccionario de la Lengua Española, Real Academia Espanola, 1947 ed., p. 1224) and the word "abogado," as follows: "Perito en el derecho positivo que se dedica a defender en juicio, por escrito o de palabra, los derechos o intereses de los litigantes, y tambien a dar dictmen sobre las cuestiones o puntos legales que se le consultan (Id., p.5) A Bachelor's degree alone, conferred by a law school upon completion of certain academic requirements, does not entitle its holder to exercise the legal profession. The English equivalent of "abogado" is lawyer or attorney-at-law. This term has a fixed and general signification, and has reference to that class of persons who are by license officers of the courts, empowered to appear, prosecute and defend, and upon whom peculiar duties, responsibilities and liabilities are devolved by law as a consequence.

In this jurisdiction admission to the Bar and to the practice of law is under the authority of the Supreme Court. According to Rule 138 such admission requires passing the Bar examinations, taking the lawyer's oath and receiving a certificate from the Clerk of Court, this certificate being his license to practice the profession. The academic degree of Bachelor of Laws in itself has little to do with admission to the Bar, except as evidence of compliance with the requirements that an applicant to the examinations has "successfully completed all the prescribed courses, in a law school or university, officially approved by the Secretary of Education." For this purpose, however, possession of the degree itself is not indispensable: completion of the prescribed courses may be shown in some other way. Indeed there are instances, particularly under the former Code of Civil Procedure, where persons who had not gone through any formal legal education in college were allowed to take the Bar examinations and to qualify as lawyers. (Section 14 of that code required possession of "the necessary qualifications of learning ability.") Yet certainly it would be incorrect to say that such persons do not possess the "titulo de abogado" because they lack the academic degree of Bachelor of Laws from some law school or university.

The founders of the Hospicio de San Jose de Barili must have established the foregoing test advisely, and provided in the deed of donation that if not a lawyer, the administrator should be a doctor or a civil engineer or a pharmacist, in that order; or failing all these, should be the one who pays the highest taxes among those otherwise qualified. A lawyer, first of all, because under Act No. 3239 the managers or trustees of the Hospicio shall "make regulations for the government of said institution (Sec. 3, b); shall "prescribe the conditions subject to which invalids and incapacitated and destitute persons may be admitted to the institute" (Sec. 3, d); shall see to it that the rules and conditions promulgated for admission are not in conflict with the provisions of the Act; and shall administer properties of considerable value — for all of which work, it is to be presumed, a working knowledge of the law and a license to practice the profession would be a distinct asset.

Under this particular criterion we hold that the plaintiff is not entitled, as against the defendant, to the office of administrator. But it is argued that although the latter is a member of the Bar he is nevertheless disqualified by virtue of paragraph 3 of the deed of donation, which provides that the administrator may be removed on the ground, among others, of ineptitude in the discharge of his office or lack of evident sound moral character. Reference is made to the fact that the defendant was disbarred by this Court on 29 March 1957 for immorality and unprofessional conduct. It is also a fact, however, that he was reinstated on 10 February 1960, before he assumed the office of administrator. His reinstatement is a recognition of his moral rehabilitation, upon proof no less than that required for his admission to the Bar in the first place.

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts. 1äwphï1.ñët

Whether or not the applicant shall be reinstated rests to a great extent in the sound discretion of the court. The court action will depend, generally speaking, on whether or not it decides that the public interest in the orderly and impartial administration of justice will be conserved by the applicant's participation therein in the capacity of an attorney and counselor at law. The applicant must, like a candidate for admission to the bar, satisfy the court that he is a person of good moral character — a fit and proper person to practice law. The court will take into consideration the applicant's character and standing prior to the disbarment, the nature and character of the charge for which he was disbarred, his conduct subsequent to the disbarment, and the time that has elapsed between the disbarment and the application for reinstatement. (5 Am. Jur., Sec. 301, p. 443)

Evidence of reformation is required before applicant is entitled to reinstatement, notwithstanding the attorney has received a pardon following his conviction, and the requirements for reinstatement have been held to be the same as for original admission to the bar, except that the court may require a greater degree of proof than in an original admission. (7 C.J.S., Attorney & Client, Sec. 41, p. 815.)

The decisive questions on an application for reinstatement are whether applicant is "of good moral character" in the sense in which that phrase is used when applied to attorneys-at-law and is a fit and proper person to be entrusted with the privileges of the office of an attorney, and whether his mental qualifications are such as to enable him to discharge efficiently his duty to the public, and the moral attributes are to be regarded as a separate and distinct from his mental qualifications. (7 C.J.S., Attorney & Client, Sec. 41, p. 816).

As far as moral character is concerned, the standard required of one seeking reinstatement to the office of attorney cannot be less exacting than that implied in paragraph 3 of the deed of donation as a requisite for the office which is disputed in this case. When the defendant was restored to the roll of lawyers the restrictions and disabilities resulting from his previous disbarment were wiped out.

This action must fail on one other ground: it is already barred by lapse of time amounting the prescription or laches. Under Section 16 of Rule 66 (formerly sec. 16, Rule 68, taken from section 216 of Act 190), this kind of action must be filed within one (1) year after the right of plaintiff to hold the office arose.

Plaintiff Jesus Ma. Cui believed himself entitled to the office in question as long ago as 1932. On January 26 of that year he filed a complaint in quo warranto against Dr. Teodoro Cui, who assumed the administration of the Hospicio on 2 July 1931. Mariano Cui, the plaintiff's father and Antonio Ma. Cui came in as intervenors. The case was dismissed by the Court of First Instance upon a demurrer by the defendant there to the complaint and complaint in intervention. Upon appeal to the Supreme Court from the order of dismissal, the case was remanded for further proceedings (Cui v. Cui, 60 Phil. 37, 48). The plaintiff, however, did not prosecute the case as indicated in the decision of this Court, but acceded to an arrangement whereby Teodoro Cui continued as administrator, Mariano Cui was named "legal adviser" and plaintiff Jesus Ma. Cui accepted a position as assistant administrator.

Subsequently the plaintiff tried to get the position by a series of extra-judicial maneuvers. First he informed the Social Welfare Commissioner, by letter dated 1 February 1950, that as of the previous 1 January he had "made clear" his intention of occupying the office of administrator of the Hospicio." He followed that up with another letter dated 4 February, announcing that he had taken over the administration as of 1 January 1950. Actually, however, he took his oath of office before a notary public only on 4 March 1950, after receiving a reply of acknowledgment, dated 2 March, from the Social Welfare Commissioner, who thought that he had already assumed the position as stated in his communication of 4 February 1950. The rather muddled situation was referred by the Commissioner to the Secretary of Justice, who, in an opinion dated 3 April 1950 (op. No. 45, S. 1950), correcting another opinion previously given, in effect ruled that the plaintiff, not beings lawyer, was not entitled to the administration of the Hospicio.

Meanwhile, the question again became the subject of a court controversy. On 4 March 1950, the Hospicio commenced an action against the Philippine National Bank in the Court of First Instance of Cebu (Civ. No. R-1216) because the Bank had frozen the Hospicio's deposits therein. The Bank then filed a third-party complaint against herein plaintiff-appellee, Jesus Ma. Cui, who had, as stated above, taken oath as administrator. On 19 October 1950, having been deprived of recognition by the opinion of the Secretary of Justice he moved to dismiss the third-party complaint on the ground that he was relinquishing "temporarily" his claim to the administration of the Hospicio. The motion was denied in an order dated 2 October 1953. On 6 February 1954 he was able to take another oath of office as administrator before President Magsaysay, and soon afterward filed a second motion to dismiss in Civil case No. R-1216. President Magsaysay, be it said, upon learning that a case was pending in Court, stated in a telegram to his Executive Secretary that "as far as (he) was concerned the court may disregard the oath" thus taken. The motion to dismiss was granted nevertheless and the other parties in the case filed their notice of appeal from the order of dismissal. The plaintiff then filed an ex-parte motion to be excluded as party in the appeal and the trial Court again granted the motion. This was on 24 November 1954. Appellants thereupon instituted a mandamus proceeding in the Supreme Court (G.R. No. L-8540), which was decided on 28 May 1956, to the effect that Jesus Ma. Cui should be included in the appeal. That appeal, however, after it reached this Court was dismiss upon motion of the parties, who agreed that "the office of administrator and trustee of the Hospicio ... should be ventilated in quo warranto proceedings to be initiated against the incumbent by whomsoever is not occupying the office but believes he has a right to it" (G.R. No. L-9103). The resolution of dismissal was issued 31 July 1956. At that time the incumbent administrator was Dr. Teodoro Cui, but no action in quo warranto was filed against him by plaintiff Jesus Ma. Cui as indicated in the aforesaid motion for dismissal.

On 10 February 1960, defendant Antonio Ma. Cui was reinstated by this Court as member of the Bar, and on the following 27 February Dr. Teodoro Cui resigned as administrator in his favor, pursuant to the "convenio" between them executed on the same date. The next day Antonio Ma. Cui took his oath of office.

The failure of the plaintiff to prosecute his claim judicially after this Court decided the first case of Cui v. Cui in 1934 (60 Phil. 3769), remanding it to the trial court for further proceedings; his acceptance instead of the position of assistant administrator, allowing Dr. Teodoro Cui to continue as administrator and his failure to file an action in quo warranto against said Dr. Cui after 31 July 1956, when the appeal in Civil Case No. R-1216 of the Cebu Court was dismissed upon motion of the parties precisely so that the conflicting claims of the parties could be ventilated in such an action — all these circumstances militate against the plaintiff's present claim in view of the rule that an action in quo warranto must be filed within one year after the right of the plaintiff to hold the office arose. The excuse that the plaintiff did not file an action against Dr. Teodoro Cui after 31 July 1956 because of the latter's illness did not interrupt the running of the statutory period. And the fact that this action was filed within one year of the defendant's assumption of office in September 1960 does not make the plaintiff's position any better, for the basis of the action is his own right to the office and it is from the time such right arose that the one-year limitation must be counted, not from the date the incumbent began to discharge the duties of said office. Bautista v. Fajardo, 38 Phil. 624; Lim vs. Yulo, 62 Phil. 161.

Now for the claim of intervenor and appellant Romulo Cui. This party is also a lawyer, grandson of Vicente Cui, one of the nephews of the founders of the Hospicio mentioned by them in the deed of donation. He is further, in the line of succession, than defendant Antonio Ma. Cui, who is a son of Mariano Cui, another one of the said nephews. The deed of donation provides: "a la muerte o incapacidad de estos administradores (those appointed in the deed itself) pasara a una sola persona que sera el varon, mayor de edad, que descienda legitimamente de cualquiera de nuestros sobrinos legitimos Mariano Cui, Mauricio Cui, Vicente Cui, Victor Cui, y que posea titulo de abogado ... En igualdad de circumstancias, sera preferido el varon de mas edad descendiente de quien tenia ultimamente la administration." Besides being a nearer descendant than Romulo Cui, Antonio Ma. Cui is older than he and therefore is preferred when the circumstances are otherwise equal. The intervenor contends that the intention of the founders was to confer the administration by line and successively to the descendants of the nephews named in the deed, in the order they are named. Thus, he argues, since the last administrator was Dr. Teodoro Cui, who belonged to the Mauricio Cui line, the next administrator must come from the line of Vicente Cui, to whom the intervenor belongs. This interpretation, however, is not justified by the terms of the deed of donation.

IN VIEW OF THE FOREGOING CONSIDERATIONS, the judgment appealed from is reversed and set aside, and the complaint as well as the complaint in intervention are dismissed, with costs equally against plaintiff-appellee and intervenor-appellant.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Paredes and Regala, JJ., concur.

The Lawphil Project - Arellano Law Foundation

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 filed by petitioner to be allowed to withdraw as counsel de oficio.¹ One of the grounds for such a motion was his allegation that with his appointment as Election Registrar by the Commission on Elections, he was not in a position to devote full time to the defense of the two accused. The denial by respondent Judge of such a plea, notwithstanding the conformity of the defendants, was due "its principal effect [being] to delay this case."² It was likewise noted that the prosecution had already rested and that petitioner was previously counsel de parte, his designation in the former category being precisely to protect him in his new position without prejudicing the accused. It cannot be plausibly asserted that such failure to allow withdrawal of de oficio counsel could ordinarily be characterized as a grave abuse of discretion correctible by certiorari. There is, however, the overriding concern for the right to counsel of the accused that must be taken seriously into consideration. In appropriate cases, it should tilt the balance. This is not one of them. What is easily discernible was the obvious reluctance of petitioner to comply with the responsibilities incumbent on the counsel de oficio. Then, too, even on the assumption that he continues in his position, his volume of work is likely to be very much less at present. There is not now the slightest pretext for him to shirk an obligation a member of the bar, who expects to remain in good standing, should fulfill. The petition is clearly without merit.

According to the undisputed facts, petitioner, on October 13, 1964, was appointed Election Registrar for the Municipality of Cadiz, Province of Negros Occidental. Then and there, he commenced to discharge its duties. As he was counsel de parte for one of the accused in a case pending in the sala of respondent Judge, he filed a motion to withdraw as such. Not only did respondent Judge deny such motion, but he also appointed him 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 instituted this certiorari proceeding.³

As noted at the outset, the petition must fail.

1. The assailed order of November 6, 1964 denying the urgent motion of petitioner to withdraw as counsel de oficio speaks for itself. It began with a reminder that a crime was allegedly committed on February 17, 1962, with the proceedings having started in the municipal court of Cadiz on July 11, 1962. Then respondent Judge spoke of his order of October 16, 1964 which reads thus: "In view of the objection of the prosecution to the motion for postponement of October 15, 1964 (alleging that counsel for the accused cannot continue appearing in this case without the express authority of the Commission on Elections); and since according to the prosecution there are two witnesses who are ready to take the stand, after which the government would rest, the motion for postponement is denied. When counsel for the accused assumed office as Election Registrar on October 13, 1964, he knew since October 2, 1964 that the trial would be resumed today. Nevertheless, in order not to prejudice the civil service status of counsel for the accused, he is hereby designated counsel de oficio for the accused. The defense obtained postponements on May 17, 1963, June 13, 1963, June 14, 1963, October 28, 1963, November 27, 1963, February 11, 1964, March 9, 1964, June 8, 1964 July 26, 1964, and September 7, 1964."⁴ Reference was then made to another order of February 11, 1964: "Upon petition of Atty. Adelino H. Ledesma, alleging indisposition, the continuation of the trial of this case is hereby transferred to March 9, 1964 at 8:30 in the morning. The defense is reminded that at its instance, this case has been postponed at least eight (8) times, and that the government witnesses have to come all the way from Manapala."⁵ After which, it was noted in such order that there was no incompatibility between the duty of petitioner to the accused and to the court and the performance of his task as an election registrar of the Commission on Elections and that the ends of justice "would be served by allowing and requiring Mr. Ledesma to continue as counsel de oficio, since the prosecution has already rested its case."⁶

2. What is readily apparent therefore, is that petitioner was less than duly mindful of his obligation as counsel de oficio. He ought to have known that membership in the bar is a privilege burdened with conditions. It could be that for some lawyers, especially the neophytes in the profession, being appointed counsel de oficio is an irksome chore. For those holding such belief, it may come as a surprise that counsel of repute and of eminence welcome such an opportunity. It makes even more manifest that law is indeed a profession dedicated to the ideal of service and not a mere trade. It is understandable then why a high degree of fidelity to duty is required of one so designated. A recent statement of the doctrine is found in People v. Daban:⁷ "There is need anew in this disciplinary proceeding to lay stress on the fundamental postulate that membership in the bar carries with it a responsibility to live up to its exacting standard. The law is a profession, not a trade or a craft. Those enrolled in its ranks are called upon to aid in the performance of one of the basic purposes of the State, the administration of justice. To avoid any frustration thereof, especially in the case of an indigent defendant, a lawyer may be required to act as counsel de oficio. The fact that his services are rendered without remuneration should not occasion a diminution in his zeal. Rather the contrary. This is not, of course, to ignore that other pressing matters do compete for his attention. After all, he has his practice to attend to. That circumstance possesses a high degree of relevance since a lawyer has to live; certainly he cannot afford either to neglect his paying cases. Nonetheless, what is incumbent upon him as counsel de oficio must be fulfilled."⁸

So it has been from the 1905 decision of In re Robles Lahesa,⁹ where respondent was de oficio counsel, the opinion penned by Justice Carson making clear: "This Court should exact from its officers and subordinates the most scrupulous performance of their official duties, especially when negligence in the performance of those duties necessarily results in delays in the prosecution of criminal cases ...."¹⁰ Justice Sanchez in People v. Estebia¹¹ reiterated such a view in these words: "It is true that he is a court-appointed counsel. But we do say that as such counsel de oficio, he has as high a duty to the accused as one employed and paid by defendant himself. Because, as in the case of the latter, he must exercise his best efforts and professional ability in behalf of the person assigned to his care. He is to render effective assistance. The accused-defendant expects of him due diligence, not mere perfunctory representation. For, indeed a lawyer who is a vanguard in the bastion of justice is expected to have a bigger dose of social conscience and a little less of self-interest."¹²

The weakness of the petition is thus quite evident.

3. If respondent Judge were required to answer the petition, it was only due to the apprehension that considering the frame of mind of a counsel loath and reluctant to fulfill his obligation, the welfare of the accused could be prejudiced. His right to counsel could in effect be rendered nugatory. Its importance was rightfully stressed by Chief Justice Moran in People v. Holgado in these words: "In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of law, particularly in the rules of procedure, and; without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. And this can happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign one de oficio for him if he so desires and he is poor or grant him a reasonable time to procure an attorney of his
own."¹³ So it was under the previous Organic Acts.¹⁴ The present Constitution is even more emphatic. For, in addition to reiterating that the accused "shall enjoy the right to be heard by himself and counsel,"¹⁵ there is this new provision: "Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence."¹⁶

Thus is made manifest the indispensable role of a member of the Bar in the defense of an accused. Such a consideration could have sufficed for petitioner not being allowed to withdraw as counsel de oficio. For he did betray by his moves his lack of enthusiasm for the task entrusted to him, to put matters mildly. He did point though to his responsibility as an election registrar. Assuming his good faith, no such excuse could be availed now. There is not likely at present, and in the immediate future, an exorbitant demand on his time. It may likewise be assumed, considering what has been set forth above, that petitioner would exert himself sufficiently to perform his task as defense counsel with competence, if not with zeal, if only to erase doubts as to his fitness to remain a member of the profession in good standing. The admonition is ever timely for those enrolled in the ranks of legal practitioners that there are times, and this is one of them, when duty to court and to client takes precedence over the promptings of self-interest.

WHEREFORE, the petition for certiorari is dismissed. Costs against petitioner.

Zaldivar (Chairman), Antonio, Fernandez and Aquino, JJ., concur.

Barredo, J., took no part.

Footnotes

1 Petition, Annex B.

2 Ibid, Annex C.

3 Petition, pars. 3-9.

4 Petition, Annex C.

5 Ibid.

6 Ibid..

7 L-31429, January 31, 1972, 43 SCRA 185.

8 Ibid, 186. Cf. People v. Apduhan, L-19491, Aug. 30, 1968, 24 SCRA 798; People v. Solacito, L-29209, Aug. 25, 1969, 29 SCRA 61; People v. Serafica, L-29092-93, Aug. 28, 1969, 29 SCRA 123; People v. Englatera, L-30820, July 31, 1970, 34 SCRA 245; People v. Aguilar, L-30932, Jan. 29, 1971, 37 SCRA 115; People v. Estebia, L-26868, July 29, 1971, 40 SCRA 90; People v. Flores, L-32692, July 30, 1971, 40 SCRA 230; People v. Alincastre, L-29891, Aug. 30, 1971, 40 SCRA 391; People v. Valera, L-30039; Feb. 8, 1972, 43 SCRA 207; People v. Francisco, L-30763, June 29, 1972, 45 SCRA 451; People v. Espiña, L-33028, June 30, 1972, 45 SCRA 614; People v. Esteves, L-34811, Aug. 18, 1972, 46 SCRA 680; People v. Simeon, L-33730, Sept. 28, 1972, 47 SCRA 129; People v. Daeng, L-34091, Jan. 30, 1973, 49 SCRA 221; People v. Ricalde, L-34673, Jan. 30, 1973, 49 SCRA 228; People v. Martinez, L-35353, April 30, 1973, 50 SCRA 509; People v. Silvestre, L-33821, June 22, 1973, 51 SCRA 286; People v. Busa, L-32047, June 25, 1973, 51 SCRA 317; People v. Alamada, L-34594, July 13, 1973, 52 SCRA 103; People v. Andaya, L-29644, July 25, 1973, 52 SCRA 137; People v. Duque, L-33267, Sept. 27, 1973, 53 SCRA 132; People v. Saligan, L-35792, Nov. 29, 1973, 54 SCRA 190; People v. Bacong, L-36161, Dec. 19, 1973, 54 SCRA 288.

9 4 Phil. 298.

10 Ibid, 300.

11 L-26868, February 27, 1969, 27 SCRA 106.

12 Ibid, 109-110, Cf. Javellana v. Lutero, L-23956, July 21, 1967, 20 SCRA 717; Blanza v. Arcangel, Adm. Case No. 492, Sept. 5, 1967, 21 SCRA 1.

13 85 Phil. 752, 756-757 (1950).

14 Cf. United States v. Gimeno, 1 Phil. 236 (1902); United States v. Palisoc, 4 Phil. 207 (1905); United States v. Go-Leng, 21 Phil. 426 (1912); United States v. Laranja, 21 Phil. 500 (1912); United States v. Ramirez, 26 Phil. 616 (1914); United States v. Labial, 27 Phil. 82 (1914); United States v. Custan, 28 Phil. 19 (1914); United States v. Kilayco, 31 Phil. 371 (1915); United States v. Escalante, 36 Phil. 743 (1917); People v. Abuyen, 52 Phil. 722 (1929).

15 Cf. Article IV, Section 19.

16 Section 20.

The Lawphil Project - Arellano Law Foundation

EN BANC

[A.C. No. 1037. December 14, 1998]

VICTORIANO P. RESURRECCION, complainant, vs. ATTY. CIRIACO C. SAYSON, respondent.

D E C I S I O N

PER CURIAM:

To say that lawyers must at all times uphold and respect the law is to state the obvious, but such statement can never be overemphasized. Considering that, "of all classes and professions, [lawyers are] most sacredly bound to uphold the law,"[i][1] it is imperative that they live by the law. Accordingly, lawyers who violate their oath and engage in deceitful conduct have no place in the legal profession.

In a Complaint-Affidavit, Victoriano P. Resurrecion charged Respondent Atty. Ciriaco C. Sayson with acts constituting "malpractice, deceit and gross misconduct in his office and a violation of his duties and oath as a lawyer." The Complaint arose from a homicide through reckless imprudence case, in which Complainant Resurrecion was the defendant and Respondent Sayson was the counsel for the offended party, Mr. Armando Basto Sr. The complainant alleged that, pursuant to the amicable settlement previously reached by the parties, he gave P2,500 to the respondent who, however, never gave the money to his client. Thus, the complainant was compelled to give another P2,500 to Mr. Basto as settlement of the case. The complainant then demanded the return of the money from respondent, to no avail. Thus, the Complaint for Disbarment.

The records show that the Office of the Solicitor General (OSG) conducted several hearings on the matter; during which the complainant was represented by Atty. Ronaldo Lopez. Although respondent had been notified, he failed to attend a number of such hearings. He eventually appeared through his new counsel, Atty. Wenceslao Fajardo. Because respondent once again failed to attend the next hearing, the OSG, in its September 4, 1973 Order,[ii][2] deemed the investigation of the case terminated. But upon the motion of the respondent, the OSG on October 31, 1973, set aside its earlier Order and once again set the case for a hearing of the former's evidence. Since then, however, it appears that the OSG has not been able to submit its report and recommendation on the case.

In 1990, the Integrated Bar of the Philippines (IBP) took cognizance of the case[iii][3] and tasked Commissioner Jesulito A. Manalo with the investigation, of which both the complainant and the respondent were duly notified. Complainant Resurreccion manifested his assent to the pursuit of the matter, but Respondent Sayson could not be found.[iv][4] In his Report, Commissioner Manalo presented the following facts:

"Respondent, a member of the Philippine Bar was accused of having converted and appropriated [for] his own personal benefit the amount of P2,500.00 representing the amount which was delivered by the complainant to the respondent as compensation or settlement money of a case for homicide thru reckless imprudence.

xxx xxx xxx

"Complainant alleged that on 13 May 1970, he was involved in a vehicular accident which occurred at Epifanio delos Santos Avenue, Quezon City which involved a boy [named] the name of Armando Basto resulting [in] the death of the latter. By reason of the said incident, complainant was accused of homicide thru reckless imprudence before the City Fiscal's Office at Quezon City. In the preliminary investigation, the father of the victim Mr. Armando Basto, Sr., was represented by respondent. Complainant was however, represented by Atty. Ramon Umali. The case for homicide thru reckless imprudence was amicably settled on 8 August 1970 and respondent received from the complainant the amount of P2,500.00. Respondent allegedly assured complainant that the sum [would] be delivered to his client Mr. Armando Basto, Sr. Respondent acknowledged in writing having received the amount of P2,500.00.

"Contrary however, to the assurances of the respondent, he had not delivered the said amount of P2,500.00 and the case was not dismissed for which reason complainant was compelled to pay anew the heirs of the victim the amount of P2,500.00. Demands were made for the respondent to return the said amount of P2,500.00 but the latter failed. By reason thereof, complainant filed a complaint for estafa against the respondent before the City Court of Quezon City which was docketed as Criminal Case No. III-149358 entitled 'People of the Philippines vs. Ciriaco C. Sayson'.

"In the hearing held on 22 May 1973, complainant Victoriano P. Resurreccion appeared assisted by his counsel. There was however, no appearance for the respondent Ciriaco C. Sayson. The investigator declared his failure to appear as a waiver of his presence and Mr. Armando Basto, Sr. was presented as witness. He testified that he [was] the father of Armando Basto, Jr. who was ran over by a motor vehicle then driven by the respondent. By reason of such death a case was filed in court and he was represented by Atty. Ciriaco Sayson, respondent in this case. A settlement arrangement was arrived at and complainant entrusted the amount of P2,500.00 to the respondent for the latter to turn over the same to his client. Atty. Ciriaco Sayson, however, failed to turn over the said amount of P2,500.00 to his client for which reason the case was not immediately dismissed. To effect dismissal of the case, complainant was forced to pay anew the sum of P2,500.00.

"Complainant was next presented as witness and he testified that on 30 May 1970, he was involved in a vehicular accident which resulted in the death of one Armando Basto, Jr. By reason thereof, he was accused of homicide thru reckless imprudence[,] and to effect settlement of that case he agreed to pay the amount of P2,500.00.

"On 8 August 1970, complainant together with his counsel conferred with [the] respondent in the latter's office at May Building, Rizal Avenue, Manila and in a conference, a settlement was arrived at whereby complainant [would] pay the amount of P2,500.00. This was done and payment was delivered to the respondent who acknowledged having received the said amount.

"Subsequently, complainant learned that the said amount of P2,500.00 was not delivered by respondent to Mr. Armando Basto, Sr., the father of the victim for which reason he was compelled to pay another amount of P2,500.00 to the heirs of the victim.

"Thereafter, he demanded [the] return of the said amount of P2,500.00 from the respondent. Despite visiting the latter fifteen or sixteen times, Atty. Ciriaco C. Sayson still failed to return the money. Thus, complainant filed a complaint for estafa which was elevated in Court and docketed as Criminal Case No. 49358.

"A Decision finding the respondent guilty of [the] crime of estafa was promulgated by the City Court of Quezon City."[v][5]

Commissioner Manalo then rendered his evaluation and recommendation in this wise:

"Complainant was able to establish by more than convincing evidence that the misappropriation was in fact committed by the respondent. This fact [is] eloquently proven by Exhibits "A" to "E", all of which were not controverted by the respondent.

xxx xxx xxx

"In view of the foregoing, undersigned Commissioner respectfully recommends that the above-entitled case be endorsed by the Honorable Board Governors to the Supreme Court with the recommendation that the complain[ant be] disbarred and his name be stricken off xxx the roll of attorneys.

xxx xxx xxx"[vi][6]

On February 28, 1998, the IBP Board of Governors issued a Resolution adopting and approving the report and recommendation of Commissioner Manalo. The Resolution, signed by IBP National Secretary Roland B. Inting and forwarded to this Court on March 28, 1998, is worded as follows:

"RESOLUTION NO. XIII-97-202

Adm. Case No. 1037

Victoriano P. Resurreccion vs. Atty. Ciriaco C. Sayson

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED AND APPROVED, the Report and Recommendation of the Investigating Commissioner in the above-entitled case, herein made part of this Resolution/Decision as Annex "A" and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, respondent Atty. Ciriaco C. Sayson is DISBARRED and xxx his name xxx stricken from the Roll of Attorneys for having been found guilty of Estafa promulgated by the City Court of Quezon City and [which] complainant was able to establish by more convincing evidences that misappropriation was in fact committed by the respondent, all of which were not controverted by the respondent."[vii][7]

The Court agrees with Commissioner Manalo's findings and conclusion, as approved and adopted by the IBP Board of Governors. Atty. Ciriaco C. Sayson must be disbarred.

Respondent Sayson was convicted of estafa by the Regional Trial Court of Quezon City on September 20, 1973.[viii][8] Such conviction was affirmed by the Court of Appeals[ix][9] and upheld by this Court.[x][10]

In In re Vinzon,[xi][11] the Court disbarred a lawyer who had been convicted of estafa and held that "moral turpitude includes everything which is done contrary to justice, honesty or good morals. In essence and in all respects, estafa, no doubt, is a crime involving moral turpitude because the act is unquestionably against justice, honesty and good morals."

In a more recent case,[xii][12] the Court upheld the recommendation of the IBP Board of Governors to disbar a lawyer who had been convicted of estafa through falsification of public documents, because she was "totally unfit to be a member of the legal profession." In adopting the recommendation, we held that "good moral character is not only a condition precedent to admission to the legal profession, but it must also remain extant in order to maintain one's good standing in that exclusive and honored fraternity."

True, the power to disbar must be exercised with great caution and only in a clear case of misconduct that seriously affects the standing and character of the lawyer as an officer of the Court and member of the bar.[xiii][13] Disbarment should never be decreed where any lesser penalty, such as temporary suspension, would accomplish the end desired.[xiv][14] However, in the present case, the Court notes that even if respondent's culpability for estafa has been indubitably established, there is no indication that he has served sentence, returned to complainant what was due him or showed any remorse for what he did. The 27-year delay in the resolution of this case was, to a large extent, caused by his failure to appear before the Office of the Solicitor General and to inform the IBP of his change of address, a failure that also indicated his lack of regard for the very serious charges brought against him. Respondent Sayson, by his conduct, has shown that he is not worthy to remain a member of the bar.

Law is a noble profession, and the privilege to practice it is bestowed only upon individuals who are competent intellectually, academically and, equally important, morally. Because they are vanguards of the law and the legal system, lawyers must at all times conduct themselves, especially in their dealings with their clients and the public at large, with honesty and integrity in a manner beyond reproach.

WHEREFORE, Respondent Ciriaco C. Sayson is hereby DISBARRED. The Clerk of Court is directed to strike out his name from the Roll of Attorneys.

SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Martinez, Quisumbing, Purisima, and Pardo, JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-19450 May 27, 1965

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SIMPLICIO VILLANUEVA, defendant-appellant.

Office of the Solicitor General for plaintiff-appellee.
Magno T. Buese for defendant-appellant.

PAREDES, J.:

On September 4, 1959, the Chief of Police of Alaminos, Laguna, charged Simplicio Villanueva with the Crime of Malicious Mischief before the Justice of the Peace Court of said municipality. Said accused was represented by counsel de officio but later on replaced by counsel de parte. The complainant in the same case was represented by City Attorney Ariston Fule of San Pablo City, having entered his appearance as private prosecutor, after securing the permission of the Secretary of Justice. The condition of his appearance as such, was that every time he would appear at the trial of the case, he would be considered on official leave of absence, and that he would not receive any payment for his services. The appearance of City Attorney Fule as private prosecutor was questioned by the counsel for the accused, invoking the case of Aquino, et al. vs. Blanco, et al.,
L-1532, Nov. 28, 1947, wherein it was ruled that "when an attorney had been appointed to the position of Assistant Provincial Fiscal or City Fiscal and therein qualified, by operation of law, he ceased to engage in private law practice." Counsel then argued that the JP Court in entertaining the appearance of City Attorney Fule in the case is a violation of the above ruling. On December 17, 1960 the JP issued an order sustaining the legality of the appearance of City Attorney Fule.

Under date of January 4, 1961, counsel for the accused presented a "Motion to Inhibit Fiscal Fule from Acting as Private Prosecutor in this Case," this time invoking Section 32, Rule 27, now Sec. 35, Rule 138, Revised Rules of Court, which bars certain attorneys from practicing. Counsel claims that City Attorney Fule falls under this limitation. The JP Court ruled on the motion by upholding the right of Fule to appear and further stating that he (Fule) was not actually enagaged in private law practice. This Order was appealed to the CFI of Laguna, presided by the Hon. Hilarion U. Jarencio, which rendered judgment on December 20, 1961, the pertinent portions of which read:

The present case is one for malicious mischief. There being no reservation by the offended party of the civil liability, the civil action was deemed impliedly instituted with the criminal action. The offended party had, therefore, the right to intervene in the case and be represented by a legal counsel because of her interest in the civil liability of the accused.

Sec. 31, Rule 127 of the Rules of Court provides that in the court of a justice of the peace a party may conduct his litigation in person, with the aid of an agent or friend appointed by him for that purpose, or with the aid of an attorney. Assistant City Attorney Fule appeared in the Justice of the Peace Court as an agent or friend of the offended party. It does not appear that he was being paid for his services or that his appearance was in a professional capacity. As Assistant City Attorney of San Pablo he had no control or intervention whatsoever in the prosecution of crimes committed in the municipality of Alaminos, Laguna, because the prosecution of criminal cases coming from Alaminos are handled by the Office of the Provincial Fiscal and not by the City Attornev of San Pablo. There could be no possible conflict in the duties of Assistant City Attorney Fule as Assistant City Attorney of San Pablo and as private prosecutor in this criminal case. On the other hand, as already pointed out, the offended party in this criminal case had a right to be represented by an agent or a friend to protect her rights in the civil action which was impliedly instituted together with the criminal action.

In view of the foregoing, this Court holds that Asst. City Attorney Ariston D. Fule may appear before the Justice of the Peace Court of Alaminos, Laguna as private prosecutor in this criminal case as an agent or a friend of the offended party.

WHEREFORE, the appeal from the order of the Justice of the Peace Court of Alaminos, Laguna, allowing the apprearance of Ariston D. Fule as private prosecutor is dismissed, without costs.

The above decision is the subject of the instant proceeding.

The appeal should be dismissed, for patently being without merits.1äwphï1.ñët

Aside from the considerations advanced by the learned trial judge, heretofore reproduced, and which we consider plausible, the fallacy of the theory of defense counsel lies in his confused interpretation of Section 32 of Rule 127 (now Sec. 35, Rule 138, Revised Rules), which provides that "no judge or other official or employee of the superior courts or of the office of the Solicitor General, shall engage in private practice as a member of the bar or give professional advice to clients." He claims that City Attorney Fule, in appearing as private prosecutor in the case was engaging in private practice. We believe that the isolated appearance of City Attorney Fule did not constitute private practice within the meaning and contemplation of the Rules. Practice is more than an isolated appearance, for it consists in frequent or customary actions, a succession of acts of the same kind. In other words, it is frequent habitual exercise (State vs. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public, as customarily and demanding payment for such services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644, 647). The appearance as counsel on one occasion is not conclusive as determinative of engagement in the private practice of law. The following observation of the Solicitor General is noteworthy:

Essentially, the word private practice of law implies that one must have presented himself to be in the active and continued practice of the legal profession and that his professional services are available to the public for a compensation, as a source of his livelihood or in consideration of his said services.

For one thing, it has never been refuted that City Attorney Fule had been given permission by his immediate superior, the Secretary of Justice, to represent the complainant in the case at bar, who is a relative.

CONFORMABLY WITH ALL THE FOREGOING, the decision appealed from should be, as it is hereby affirmed, in all respects, with costs against appellant..

Bengzon, C.J., Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.
Bautista Angelo, J., took no part.

The Lawphil Project - Arellano Law Foundation

FIRST DIVISION

[A.C. No. 5486. August 15, 2001]

In Re: Atty. David Briones

D E C I S I O N

PUNO, J.:

This matter arose from the continued failure of Atty. David P. Briones, counsel for accused-appellant in G.R. No. 130965 (People of the Philippines vs. Restituto Cabacan) pending before the Second Division of this Court, to file the required appellant's brief.

The notice to file appellant's brief was mailed to Atty. Briones on July 30, 1998. The registry return card shows that it was received by the addressee on August 6, 1998. Counsel was given thirty (30) days from receipt of the notice within which to file the brief. Atty. Briones failed to file the required brief within the period which expired on September 5, 1998.

On April 28, 1999, the Court ordered Atty. Briones to show cause why he should not be disciplinarily dealt with or held in contempt for such failure and to submit the required brief within ten (10) days from notice. Atty. Briones failed to comply with the Court's directive within the specified period. Copy of said resolution was returned to the Court unserved without specific reason.

On August 9, 1999, the Court issued a resolution stating among others that the resolution of April 28, 1999 is considered served on Atty. Briones by substituted service pursuant to Section 8, Rule 13 of the 1997 Rules of Civil Procedure. The Court also referred the matter of the repeated failure of Atty. Briones to file appellant's brief to the Integrated Bar of the Philippines (IBP) for evaluation, report and recommendation. The administrative case was docketed as CBD Case No. 00-690.

In a letter dated September 27, 1999, IBP Commissioner Victoria Gonzales-De Los Reyes informed Atty. Briones of the Court's referral of the matter to the IBP and required him to file his Comment within five (5) days from receipt of the letter. The registry return card shows that the letter was received by the agent of Atty. Briones on October 7, 1999. Atty. Briones, however, did not file any Comment.

Commissioner De Los Reyes submitted her Report dated January 25, 2000 with the following observation and recommendation:

“Unfortunately, despite the lapse of the required period of time within which to submit his Comment, respondent failed to do so despite due notice as evidenced by the registry return card.

As can be gleaned from the files, G.R. No. 130965 has remained pending in view of the negligence of Atty. Briones to file the required appellant's brief. It is therefore evident that respondent violated Rule 18.03 of Canon 18 of the Code of Professional Responsibility to wit:

A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable.

Likewise, respondent's repeated failure to file the appellant's brief and his Comment to the Commission in connection with the Supreme Court Resolution dated August 9, 1999 are apparently tantamount to wilfull disobedience to the lawful orders of the Honorable Supreme Court which could not be tolerated, and respondent should not be allowed to go scot-free.

IN VIEW OF THE FOREGOING, the undersigned Commissioner finds that Atty. David P. Briones had the propensity of defying lawful orders, and recommends that for his violation of Rule 18.03 of the Canon 18 of the Code of Professional Responsibility, he be SUSPENDED from the practice of law profession for a period of six (6) months.”

On March 18, 2000, the Board of Governors of the IBP passed Resolution No. XIV-2000-56 stating:

“RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution/Decision as annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, Respondent is SUSPENDED/or BARRED from the practice of law for six (6) months for violation of Rule 18.03 of the Canon 18 of the Code of Professional Responsibility.”

On May 26, 2000, Atty. Briones filed with the IBP a Motion for Reconsideration/Reinvestigation. The motion was grounded on the alleged denial of due process in the course of the investigation. Atty. Briones claimed that he filed a Comment on the administrative case but the same was not considered by the investigating commissioner. Neither did the IBP conduct a formal investigation.

On July 29, 2000, the Board of Governors of the IBP issued Resolution No. XIV-2000-439 denying the motion for reconsideration, thus:

“RESOLVED to DENY Respondent’s Motion for Reconsideration of the Board’s Decision in the above-entitled case there being no substantive reason to reverse the finding therein, moreover, the pleading is improper as the remedy of the respondent is to file the appropriate Motion with the Supreme Court within fifteen (15) days from receipt of notice of said Decision pursuant to Section 12 (c) of Rule 139-B.”

On October 5, 2000, Atty. Briones filed with the Court a Manifestation praying that his Comment submitted to the IBP on October 13, 2000 be considered by the Court. He attached a copy of the Comment to the Manifestation.

Atty. Briones explained both in his Manifestation and his Comment that he failed to file an appellant’s brief in G.R. No. 130965 because he never received a copy of the resolution requiring him to file said brief. If ever a copy was received by his secretary, the latter was not able to give it to him because he had already ceased practicing law. He further explained that the case was assigned to him as member of the IBP Tarlac Legal Aid Office. After filing the Notice of Appeal, he resigned from the Legal Aid Office because of his failing health. Hence, he presumed that the relatives of the accused would engage the services of a new counsel, or would go directly to the IBP Legal Aid Office. He admitted that he forgot to notify the Legal Aid Office about the case.

We adopt the recommendation of the IBP.

The failure of the counsel to submit the required brief within the reglementary period is an offense that entails disciplinary action.[xv][1] The pernicious effect of Atty. Briones’ omission cannot be gainsaid. His failure to file an appellant’s brief in G.R. No. 130965 has caused the appeal to remain inactive for more than a year, to the prejudice of his client, the accused himself, who continues to languish in jail pending the resolution of his case. The accused in a criminal case has the right to a swift and just disposition of his case. Lawyers are obliged to protect, not defeat, such right.

We have considered the explanation of Atty. Briones for his failure to comply with the Court’s directive and we find the same unsatisfactory. Such omission can be attributed to pure negligence on the part of Atty. Briones which we deem inexcusable. He cannot deny that his office received a copy of the Court’s resolution ordering him to submit an appellant’s brief. The registry return card shows that the notice to file appellant’s brief was received by the addressee on August 6, 1998. To exonerate himself from liability, Atty. Briones claims that his secretary did not forward to him the mail matters received in his office. He, however, cannot pass the blame to his secretary as he is personally responsible for his own communications. As a member of the Bar, he is expected to exercise due diligence in the practice of his profession. He should not have passively waited for his secretary to inform him about the letters and communications received in his law office, especially those coming from the courts. He should have taken the initiative to check with her if there are important matters requiring his action or attention. Neither is the cessation of his law practice an excuse for his failure to file the required brief. Even if it were true that Atty. Briones has stopped practicing law, he still could not ignore the directives coming from the Court. It does not appear from the records of G.R. No. 130965 that Atty. Briones has withdrawn his appearance. Unless he has withdrawn his appearance in the case, the Court would still consider him as counsel for the accused-appellant and he is expected to comply with all its orders and directives.

It should be stressed that every case a lawyer accepts deserves his full attention, diligence, skill and competence, regardless of its importance and whether he accepts it for a fee or for free.[xvi][2] A lawyer’s fidelity to the cause of his client requires him to be ever mindful of the responsibilities that should be expected of him. He is mandated to exert his best efforts to protect within the bounds of the law the interest of his client. The Code of Professional Responsibility dictates that a lawyer shall serve his client with competence and diligence and he should never neglect a legal matter entrusted to him.[xvii][3]

IN VIEW WHEREOF, Atty. David P. Briones is SUSPENDED from the practice of law for six (6) months effective immediately. Let a copy of this Decision be furnished to the Office of the Bar Confidant, the Integrated Bar of the Philippines, and to all the courts.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Kapunan, Pardo, and Ynares-Santiago, JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-12426 February 16, 1959

PHILIPPINE LAWYER'S ASSOCIATION, petitioner,
vs.
CELEDONIO AGRAVA, in his capacity as Director of the Philippines Patent Office, respondent.

Arturo A. Alafriz for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent.

MONTEMAYOR, J.:

This is the petition filed by the Philippine Lawyer's Association for prohibition and injunction against Celedonio Agrava, in his capacity as Director of the Philippines Patent Office.

On may 27, 1957, respondent Director issued a circular announcing that he had scheduled for June 27, 1957 an examination for the purpose of determining who are qualified to practice as patent attorneys before the Philippines Patent Office, the said examination to cover patent law and jurisprudence and the rules of practice before said office. According to the circular, members of the Philippine Bar, engineers and other persons with sufficient scientific and technical training are qualified to take the said examination. It would appear that heretofore, respondent Director has been holding similar examinations.

It is the contention of the petitioner Philippine Lawyer's Association that one who has passed the bar examinations and is licensed by the Supreme Court to practice law in the Philippines and who is in good standing, is duly qualified to practice before the Philippines Patent Office, and that consequently, the cat of the respondent Director requiring members of the Philippine Bar in good standing to take and pass an examination given by the Patent Office as a condition precedent to their being allowed to practice before said office, such as representing applicants in the preparation and prosecution of applications for patent, is in excess of his jurisdiction and is in violation of the law.

In his answer, respondent Director, through the Solicitor General, maintains that the prosecution of patent cases "does not involve entirely or purely the practice of law but includes the application of scientific and technical knowledge and training, so much so that, as a matter of actual practice, the prosecution of patent cases may be handled not only by lawyers, but also engineers and other persons with sufficient scientific and technical training who pass the prescribed examinations as given by the Patent Office; . . . that the Rules of Court do not prohibit the Patent Office, or any other quasi-judicial body from requiring further condition or qualification from those who would wish to handle cases before the Patent Office which, as stated in the preceding paragraph, requires more of an application of scientific and technical knowledge than the mere application of provisions of law; . . . that the action taken by the respondent is in accordance with Republic Act No. 165, otherwise known as the Patent Law of the Philippines, which similar to the United States Patent Law, in accordance with which the United States Patent Office has also prescribed a similar examination as that prescribed by respondent. . . .

Respondent further contends that just as the Patent law of the United States of America authorizes the Commissioner of Patents to prescribe examinations to determine as to who practice before the United States Patent Office, the respondent, is similarly authorized to do so by our Patent Law, Republic Act No. 165.

Although as already stated, the Director of Patents, in the past, would appear to have been holding tests or examinations the passing of which was imposed as a required qualification to practice before the Patent Office, to our knowledge, this is the first time that the right of the Director of Patents to do so, specially as regards members of the bar, has been questioned formally, or otherwise put in issue. And we have given it careful thought and consideration.

The Supreme Court has the exclusive and constitutional power with respect to admission to the practice of law in the Philippines¹ and to any member of the Philippine Bar in good standing may practice law anywhere and before any entity, whether judicial or quasi-judicial or administrative, in the Philippines. Naturally, the question arises as to whether or not appearance before the patent Office and the preparation and the prosecution of patent applications, etc., constitutes or is included in the practice of law.

The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings and other papers incident to actions and social proceedings, the management of such actions and proceedings on behalf of clients before judges and courts, and in addition, conveying. In general, all advice to clients, and all action taken for them in matters connected with the law corporation services, assessment and condemnation services contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy and insolvency proceedings, and conducting proceedings in attachment, and in matters of estate and guardianship have been held to constitute law practice as do the preparation and drafting of legal instruments, where the work done involves the determination by the trained legal mind of the legal effect of facts and conditions. (5 Am. Jur. p. 262, 263). (Emphasis supplied).

Practice of law under modern conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety of subjects, and the preparation and execution of legal instruments covering an extensive field of business and trust relations and other affairs. Although these transactions may have no direct connection with court proceedings, they are always subject to become involved in litigation. They require in many aspects a high degree of legal skill, a wide experience with men and affairs, and great capacity for adaptation to difficult and complex situations. These customary functions of an attorney or counselor at law bear an intimate relation to the administration of justice by the courts. No valid distinction, so far as concerns the question set forth in the order, can be drawn between that part which involves advice and drafting of instruments in his office. It is of importance to the welfare of the public that these manifold customary functions be performed by persons possessed of adequate learning and skill, of sound moral character, and acting at all times under the heavy trust obligations to clients which rests upon all attorneys. (Moran, Comments on the Rules of Court, Vol. 3 (1953 ed.), p. 665-666, citing In re Opinion of the Justices (Mass.), 194 N.E. 313, quoted in Rhode Is. Bar Assoc. vs. Automobile Service Assoc. (R. I. ) 179 A. 139, 144). (Emphasis ours).

In our opinion, the practice of law includes such appearance before the Patent Office, the representation of applicants, oppositors, and other persons, and the prosecution of their applications for patent, their oppositions thereto, or the enforcement of their rights in patent cases. In the first place, although the transaction of business in the Patent Office involves the use and application of technical and scientific knowledge and training, still, all such business has to be rendered in accordance with the Patent Law, as well as other laws, including the Rules and Regulations promulgated by the Patent Office in accordance with law. Not only this, but practice before the Patent Office involves the interpretation and application of other laws and legal principles, as well as the existence of facts to be established in accordance with the law of evidence and procedure. For instance: Section 8 of our Patent Law provides that an invention shall not be patentable if it is contrary to public order or morals, or to public health or welfare. Section 9 says that an invention shall not be considered new or patentable if it was known or used by others in the Philippines before the invention thereof by the inventor named in any printed publication in the Philippines or any foreign country more than one year before the application for a patent therefor, or if it had been in public use or on sale in the Philippines for more than one year before the application for the patent therefor. Section 10 provides that the right to patent belongs to the true and actual inventor, his heirs, legal representatives or assigns. Section 25 and 26 refer to connection of any mistake in a patent. Section 28 enumerates the grounds for cancellation of a patent; that although any person may apply for such cancellation, under Section 29, the Solicitor General is authorized to petition for the cancellation of a patent. Section 30 mentions the requirements of a petition for cancellation. Section 31 and 32 provide for a notice of hearing of the petition for cancellation of the patent by the Director of Patents in case the said cancellation is warranted. Under Section 34, at any time after the expiration of three years from the day the patent was granted, any person patent on several grounds, such as, if the patented invention is not being worked in the Philippines on a commercial scale, or if the demand for the patented article in the Philippines on a commercial scale, or if the demand for the patented article in the Philippines is not being met to an adequate extent and reasonable terms, or if by reason of the patentee's refusal to grant a license on reasonable terms or by reason of the condition attached by him to the license, purchase or use of the patented article or working of the patented process or machine of production, the establishment of a new trade or industry in the Philippines is prevented; or if the patent or invention relates to food or medicine or is necessary to public health or public safety. All these things involve the applications of laws, legal principles, practice and procedure. They call for legal knowledge, training and experience for which a member of the bar has been prepared.

In support of the proposition that much of the business and many of the act, orders and decisions of the Patent Director involve questions of law or a reasonable and correct evaluation of facts, the very Patent Law, Republic Act No. 165, Section 61, provides that:

. . . . The applicant for a patent or for the registration of a design, any party to a proceeding to cancel a patent or to obtain a compulsory license, and any party to any other proceeding in the Office may appeal to the Supreme Court from any final order or decision of the director.

In other words, the appeal is taken to this Tribunal. If the transaction of business in the Patent Office and the acts, orders and decisions of the Patent Director involved exclusively or mostly technical and scientific knowledge and training, then logically, the appeal should be taken not to a court or judicial body, but rather to a board of scientists, engineers or technical men, which is not the case.

Another aspect of the question involves the consideration of the nature of the functions and acts of the Head of the Patent Office.

. . . . The Commissioner, in issuing or withholding patents, in reissues, interferences, and extensions, exercises quasi-judicial functions. Patents are public records, and it is the duty of the Commissioner to give authenticated copies to any person, on payment of the legal fees. (40 Am. Jur. 537). (Emphasis supplied).

. . . . The Commissioner has the only original initiatory jurisdiction that exists up to the granting and delivering of a patent, and it is his duty to decide whether the patent is new and whether it is the proper subject of a patent; and his action in awarding or refusing a patent is a judicial function. In passing on an application the commissioner should decide not only questions of law, but also questions of fact, as whether there has been a prior public use or sale of the article invented. . . . (60 C.J.S. 460). (Emphasis supplied).

The Director of Patents, exercising as he does judicial or quasi-judicial functions, it is reasonable to hold that a member of the bar, because of his legal knowledge and training, should be allowed to practice before the Patent Office, without further examination or other qualification. Of course, the Director of Patents, if he deems it advisable or necessary, may require that members of the bar practising before him enlist the assistance of technical men and scientist in the preparation of papers and documents, such as, the drawing or technical description of an invention or machine sought to be patented, in the same way that a lawyer filing an application for the registration of a parcel of land on behalf of his clients, is required to submit a plan and technical description of said land, prepared by a licensed surveyor.

But respondent Director claims that he is expressly authorized by the law to require persons desiring to practice or to do business before him to submit an examination, even if they are already members of the bar. He contends that our Patent Law, Republic Act No. 165, is patterned after the United States Patent Law; and of the United States Patent Office in Patent Cases prescribes an examination similar to that which he (respondent) has prescribed and scheduled. He invites our attention to the following provisions of said Rules of Practice:

Registration of attorneys and agents. — A register of an attorneys and a register agents are kept in the Patent Office on which are entered the names of all persons recognized as entitled to represent applicants before the Patent Office in the preparation and prosecution of applicants for patent. Registration in the Patent Office under the provisions of these rules shall only entitle the person registered to practice before the Patent Office.

(a) Attorney at law. — Any attorney at law in good standing admitted to practice before any United States Court or the highest court of any State or Territory of the United States who fulfills the requirements and complied with the provisions of these rules may be admitted to practice before the Patent Office and have his name entered on the register of attorneys.

x x x x x x x x x

(c) Requirement for registration. — No person will be admitted to practice and register unless he shall apply to the Commissioner of Patents in writing on a prescribed form supplied by the Commissioner and furnish all requested information and material; and shall establish to the satisfaction of the Commissioner that he is of good moral character and of good repute and possessed of the legal and scientific and technical qualifications necessary to enable him to render applicants for patent valuable service, and is otherwise competent to advise and assist him in the presentation and prosecution of their application before the Patent Office. In order that the Commissioner may determine whether a person seeking to have his name placed upon either of the registers has the qualifications specified, satisfactory proof of good moral character and repute, and of sufficient basic training in scientific and technical matters must be submitted and an examination which is held from time to time must be taken and passed. The taking of an examination may be waived in the case of any person who has served for three years in the examining corps of the Patent Office.

Respondent states that the promulgation of the Rules of Practice of the United States Patent Office in Patent Cases is authorized by the United States Patent Law itself, which reads as follows:

The Commissioner of Patents, subject to the approval of the Secretary of Commerce may prescribe rules and regulations governing the recognition of agents, attorneys, or other persons representing applicants or other parties before his office, and may require of such persons, agents, or attorneys, before being recognized as representatives of applicants or other persons, that they shall show they are of good moral character and in good repute, are possessed of the necessary qualifications to enable them to render to applicants or other persons valuable service, and are likewise to competent to advise and assist applicants or other persons in the presentation or prosecution of their applications or other business before the Office. The Commissioner of Patents may, after notice and opportunity for a hearing, suspend or exclude, either generally or in any particular case from further practice before his office any person, agent or attorney shown to be incompetent or disreputable, or guilty of gross misconduct, or who refuses to comply with the said rules and regulations, or who shall, with intent to defraud in any matter, deceive, mislead, or threaten any applicant or prospective applicant, or other person having immediate or prospective applicant, or other person having immediate or prospective business before the office, by word, circular, letter, or by advertising. The reasons for any such suspension or exclusion shall be duly recorded. The action of the Commissioner may be reviewed upon the petition of the person so refused recognition or so suspended by the district court of the United States for the District of Columbia under such conditions and upon such proceedings as the said court may by its rules determine. (Emphasis supplied)

Respondent Director concludes that Section 78 of Republic Act No. 165 being similar to the provisions of law just reproduced, then he is authorized to prescribe the rules and regulations requiring that persons desiring to practice before him should submit to and pass an examination. We reproduce said Section 78, Republic Act No. 165, for purposes of comparison:

SEC. 78. Rules and regulations. — The Director subject to the approval of the Secretary of Justice, shall promulgate the necessary rules and regulations, not inconsistent with law, for the conduct of all business in the Patent Office.

The above provisions of Section 78 certainly and by far, are different from the provisions of the United States Patent Law as regards authority to hold examinations to determine the qualifications of those allowed to practice before the Patent Office. While the U.S. Patent Law authorizes the Commissioner of Patents to require attorneys to show that they possess the necessary qualifications and competence to render valuable service to and advise and assist their clients in patent cases, which showing may take the form of a test or examination to be held by the Commissioner, our Patent Law, Section 78, is silent on this important point. Our attention has not been called to any express provision of our Patent Law, giving such authority to determine the qualifications of persons allowed to practice before the Patent Office.

Section 551 of the Revised Administrative Code authorizes every chief of bureau to prescribe forms and make regulations or general orders not inconsistent with law, to secure the harmonious and efficient administration of his branch of the service and to carry into full effect the laws relating to matters within the jurisdiction of his bureau. Section 608 of Republic Act 1937, known as the Tariff and Customs Code of the Philippines, provides that the Commissioner of Customs shall, subject to the approval of the Department Head, makes all rules and regulations necessary to enforce the provisions of said code. Section 338 of the National Internal Revenue Code, Commonwealth Act No. 466 as amended, states that the Secretary of Finance, upon recommendation of the Collector of Internal Revenue, shall promulgate all needful rules and regulations for the effective enforcement of the provisions of the code. We understand that rules and regulations have been promulgated not only for the Bureau of Customs and Internal Revenue, but also for other bureaus of the Government, to govern the transaction of business in and to enforce the law for said bureaus.

Were we to allow the Patent Office, in the absence of an express and clear provision of law giving the necessary sanction, to require lawyers to submit to and pass on examination prescribed by it before they are allowed to practice before said Patent Office, then there would be no reason why other bureaus specially the Bureau of Internal Revenue and Customs, where the business in the same area are more or less complicated, such as the presentation of books of accounts, balance sheets, etc., assessments exemptions, depreciation, these as regards the Bureau of Internal Revenue, and the classification of goods, imposition of customs duties, seizures, confiscation, etc., as regards the Bureau of Customs, may not also require that any lawyer practising before them or otherwise transacting business with them on behalf of clients, shall first pass an examination to qualify.

In conclusion, we hold that under the present law, members of the Philippine Bar authorized by this Tribunal to practice law, and in good standing, may practice their profession before the Patent Office, for the reason that much of the business in said office involves the interpretation and determination of the scope and application of the Patent Law and other laws applicable, as well as the presentation of evidence to establish facts involved; that part of the functions of the Patent director are judicial or quasi-judicial, so much so that appeals from his orders and decisions are, under the law, taken to the Supreme Court.

For the foregoing reasons, the petition for prohibition is granted and the respondent Director is hereby prohibited from requiring members of the Philippine Bar to submit to an examination or tests and pass the same before being permitted to appear and practice before the Patent Office. No costs.

Paras, C.J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L. and Endencia, JJ., concur.

Footnotes

¹ In re: Albino Cunanan, 50 Off. Gaz. m, 1617, prom. March 18, 1954.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 100113 September 3, 1991

RENATO CAYETANO, petitioner,
vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacity as Secretary of Budget and Management, respondents.

Renato L. Cayetano for and in his own behalf.

Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.

PARAS, J.:p

We are faced here with a controversy of far-reaching proportions. While ostensibly only legal issues are involved, the Court's decision in this case would indubitably have a profound effect on the political aspect of our national existence.

The 1987 Constitution provides in Section 1 (1), Article IX-C:

There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elective position in the immediately preceding -elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (Emphasis supplied)

The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution which similarly provides:

There shall be an independent Commission on Elections composed of a Chairman and eight Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age and holders of a college degree. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years.' (Emphasis supplied)

Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as a legal qualification to an appointive office.

Black defines "practice of law" as:

The rendition of services requiring the knowledge and the application of legal principles and technique to serve the interest of another with his consent. It is not limited to appearing in court, or advising and assisting in the conduct of litigation, but embraces the preparation of pleadings, and other papers incident to actions and special proceedings, conveyancing, the preparation of legal instruments of all kinds, and the giving of all legal advice to clients. It embraces all advice to clients and all actions taken for them in matters connected with the law. An attorney engages in the practice of law by maintaining an office where he is held out to be-an attorney, using a letterhead describing himself as an attorney, counseling clients in legal matters, negotiating with opposing counsel about pending litigation, and fixing and collecting fees for services rendered by his associate. (Black's Law Dictionary, 3rd ed.)

The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in the practice of law when he:

... for valuable consideration engages in the business of advising person, firms, associations or corporations as to their rights under the law, or appears in a representative capacity as an advocate in proceedings pending or prospective, before any court, commissioner, referee, board, body, committee, or commission constituted by law or authorized to settle controversies and there, in such representative capacity performs any act or acts for the purpose of obtaining or defending the rights of their clients under the law. Otherwise stated, one who, in a representative capacity, engages in the business of advising clients as to their rights under the law, or while so engaged performs any act or acts either in court or outside of court for that purpose, is engaged in the practice of law. (State ex. rel. Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)

This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177) stated:

The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings and other papers incident to actions and special proceedings, the management of such actions and proceedings on behalf of clients before judges and courts, and in addition, conveying. In general, all advice to clients, and all action taken for them in matters connected with the law incorporation services, assessment and condemnation services contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy and insolvency proceedings, and conducting proceedings in attachment, and in matters of estate and guardianship have been held to constitute law practice, as do the preparation and drafting of legal instruments, where the work done involves the determination by the trained legal mind of the legal effect of facts and conditions. (5 Am. Jr. p. 262, 263). (Emphasis supplied)

Practice of law under modem conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety of subjects, and the preparation and execution of legal instruments covering an extensive field of business and trust relations and other affairs. Although these transactions may have no direct connection with court proceedings, they are always subject to become involved in litigation. They require in many aspects a high degree of legal skill, a wide experience with men and affairs, and great capacity for adaptation to difficult and complex situations. These customary functions of an attorney or counselor at law bear an intimate relation to the administration of justice by the courts. No valid distinction, so far as concerns the question set forth in the order, can be drawn between that part of the work of the lawyer which involves appearance in court and that part which involves advice and drafting of instruments in his office. It is of importance to the welfare of the public that these manifold customary functions be performed by persons possessed of adequate learning and skill, of sound moral character, and acting at all times under the heavy trust obligations to clients which rests upon all attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] , p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139,144). (Emphasis ours)

The University of the Philippines Law Center in conducting orientation briefing for new lawyers (1974-1975) listed the dimensions of the practice of law in even broader terms as advocacy, counselling and public service.

One may be a practicing attorney in following any line of employment in the profession. If what he does exacts knowledge of the law and is of a kind usual for attorneys engaging in the active practice of their profession, and he follows some one or more lines of employment such as this he is a practicing attorney at law within the meaning of the statute. (Barr v. Cardell, 155 NW 312)

Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. "To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill." (111 ALR 23)

The following records of the 1986 Constitutional Commission show that it has adopted a liberal interpretation of the term "practice of law."

MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do during our review of the provisions on the Commission on Audit. May I be allowed to make a very brief statement?

THE PRESIDING OFFICER (Mr. Jamir).

The Commissioner will please proceed.

MR. FOZ. This has to do with the qualifications of the members of the Commission on Audit. Among others, the qualifications provided for by Section I is that "They must be Members of the Philippine Bar" — I am quoting from the provision — "who have been engaged in the practice of law for at least ten years".

To avoid any misunderstanding which would result in excluding members of the Bar who are now employed in the COA or Commission on Audit, we would like to make the clarification that this provision on qualifications regarding members of the Bar does not necessarily refer or involve actual practice of law outside the COA We have to interpret this to mean that as long as the lawyers who are employed in the COA are using their legal knowledge or legal talent in their respective work within COA, then they are qualified to be considered for appointment as members or commissioners, even chairman, of the Commission on Audit.

This has been discussed by the Committee on Constitutional Commissions and Agencies and we deem it important to take it up on the floor so that this interpretation may be made available whenever this provision on the qualifications as regards members of the Philippine Bar engaging in the practice of law for at least ten years is taken up.

MR. OPLE. Will Commissioner Foz yield to just one question.

MR. FOZ. Yes, Mr. Presiding Officer.

MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to the requirement of a law practice that is set forth in the Article on the Commission on Audit?

MR. FOZ. We must consider the fact that the work of COA, although it is auditing, will necessarily involve legal work; it will involve legal work. And, therefore, lawyers who are employed in COA now would have the necessary qualifications in accordance with the Provision on qualifications under our provisions on the Commission on Audit. And, therefore, the answer is yes.

MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the practice of law.

MR. FOZ. Yes, Mr. Presiding Officer.

MR. OPLE. Thank you.

... ( Emphasis supplied)

Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman and two Commissioners of the Commission on Audit (COA) should either be certified public accountants with not less than ten years of auditing practice, or members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (emphasis supplied)

Corollary to this is the term "private practitioner" and which is in many ways synonymous with the word "lawyer." Today, although many lawyers do not engage in private practice, it is still a fact that the majority of lawyers are private practitioners. (Gary Munneke, Opportunities in Law Careers [VGM Career Horizons: Illinois], [1986], p. 15).

At this point, it might be helpful to define private practice. The term, as commonly understood, means "an individual or organization engaged in the business of delivering legal services." (Ibid.). Lawyers who practice alone are often called "sole practitioners." Groups of lawyers are called "firms." The firm is usually a partnership and members of the firm are the partners. Some firms may be organized as professional corporations and the members called shareholders. In either case, the members of the firm are the experienced attorneys. In most firms, there are younger or more inexperienced salaried attorneyscalled "associates." (Ibid.).

The test that defines law practice by looking to traditional areas of law practice is essentially tautologous, unhelpful defining the practice of law as that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. 593). The practice of law is defined as the performance of any acts . . . in or out of court, commonly understood to be the practice of law. (State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers perform almost every function known in the commercial and governmental realm, such a definition would obviously be too global to be workable.(Wolfram, op. cit.).

The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar role for lawyers as well as an uncommon role for the average lawyer. Most lawyers spend little time in courtrooms, and a large percentage spend their entire practice without litigating a case. (Ibid., p. 593). Nonetheless, many lawyers do continue to litigate and the litigating lawyer's role colors much of both the public image and the self perception of the legal profession. (Ibid.).

In this regard thus, the dominance of litigation in the public mind reflects history, not reality. (Ibid.). Why is this so? Recall that the late Alexander SyCip, a corporate lawyer, once articulated on the importance of a lawyer as a business counselor in this wise: "Even today, there are still uninformed laymen whose concept of an attorney is one who principally tries cases before the courts. The members of the bench and bar and the informed laymen such as businessmen, know that in most developed societies today, substantially more legal work is transacted in law offices than in the courtrooms. General practitioners of law who do both litigation and non-litigation work also know that in most cases they find themselves spending more time doing what [is] loosely desccribe[d] as business counseling than in trying cases. The business lawyer has been described as the planner, the diagnostician and the trial lawyer, the surgeon. I[t] need not [be] stress[ed] that in law, as in medicine, surgery should be avoided where internal medicine can be effective." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

In the course of a working day the average general practitioner wig engage in a number of legal tasks, each involving different legal doctrines, legal skills, legal processes, legal institutions, clients, and other interested parties. Even the increasing numbers of lawyers in specialized practice wig usually perform at least some legal services outside their specialty. And even within a narrow specialty such as tax practice, a lawyer will shift from one legal task or role such as advice-giving to an importantly different one such as representing a client before an administrative agency. (Wolfram, supra, p. 687).

By no means will most of this work involve litigation, unless the lawyer is one of the relatively rare types — a litigator who specializes in this work to the exclusion of much else. Instead, the work will require the lawyer to have mastered the full range of traditional lawyer skills of client counselling, advice-giving, document drafting, and negotiation. And increasingly lawyers find that the new skills of evaluation and mediation are both effective for many clients and a source of employment. (Ibid.).

Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very important ways, at least theoretically, so as to remove from it some of the salient features of adversarial litigation. Of these special roles, the most prominent is that of prosecutor. In some lawyers' work the constraints are imposed both by the nature of the client and by the way in which the lawyer is organized into a social unit to perform that work. The most common of these roles are those of corporate practice and government legal service. (Ibid.).

In several issues of the Business Star, a business daily, herein below quoted are emerging trends in corporate law practice, a departure from the traditional concept of practice of law.

We are experiencing today what truly may be called a revolutionary transformation in corporate law practice. Lawyers and other professional groups, in particular those members participating in various legal-policy decisional contexts, are finding that understanding the major emerging trends in corporation law is indispensable to intelligent decision-making.

Constructive adjustment to major corporate problems of today requires an accurate understanding of the nature and implications of the corporate law research function accompanied by an accelerating rate of information accumulation. The recognition of the need for such improved corporate legal policy formulation, particularly "model-making" and "contingency planning," has impressed upon us the inadequacy of traditional procedures in many decisional contexts.

In a complex legal problem the mass of information to be processed, the sorting and weighing of significant conditional factors, the appraisal of major trends, the necessity of estimating the consequences of given courses of action, and the need for fast decision and response in situations of acute danger have prompted the use of sophisticated concepts of information flow theory, operational analysis, automatic data processing, and electronic computing equipment. Understandably, an improved decisional structure must stress the predictive component of the policy-making process, wherein a "model", of the decisional context or a segment thereof is developed to test projected alternative courses of action in terms of futuristic effects flowing therefrom.

Although members of the legal profession are regularly engaged in predicting and projecting the trends of the law, the subject of corporate finance law has received relatively little organized and formalized attention in the philosophy of advancing corporate legal education. Nonetheless, a cross-disciplinary approach to legal research has become a vital necessity.

Certainly, the general orientation for productive contributions by those trained primarily in the law can be improved through an early introduction to multi-variable decisional context and the various approaches for handling such problems. Lawyers, particularly with either a master's or doctorate degree in business administration or management, functioning at the legal policy level of decision-making now have some appreciation for the concepts and analytical techniques of other professions which are currently engaged in similar types of complex decision-making.

Truth to tell, many situations involving corporate finance problems would require the services of an astute attorney because of the complex legal implications that arise from each and every necessary step in securing and maintaining the business issue raised. (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

In our litigation-prone country, a corporate lawyer is assiduously referred to as the "abogado de campanilla." He is the "big-time" lawyer, earning big money and with a clientele composed of the tycoons and magnates of business and industry.

Despite the growing number of corporate lawyers, many people could not explain what it is that a corporate lawyer does. For one, the number of attorneys employed by a single corporation will vary with the size and type of the corporation. Many smaller and some large corporations farm out all their legal problems to private law firms. Many others have in-house counsel only for certain matters. Other corporation have a staff large enough to handle most legal problems in-house.

A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal affairs of a corporation. His areas of concern or jurisdiction may include, inter alia: corporate legal research, tax laws research, acting out as corporate secretary (in board meetings), appearances in both courts and other adjudicatory agencies (including the Securities and Exchange Commission), and in other capacities which require an ability to deal with the law.

At any rate, a corporate lawyer may assume responsibilities other than the legal affairs of the business of the corporation he is representing. These include such matters as determining policy and becoming involved in management. ( Emphasis supplied.)

In a big company, for example, one may have a feeling of being isolated from the action, or not understanding how one's work actually fits into the work of the orgarnization. This can be frustrating to someone who needs to see the results of his work first hand. In short, a corporate lawyer is sometimes offered this fortune to be more closely involved in the running of the business.

Moreover, a corporate lawyer's services may sometimes be engaged by a multinational corporation (MNC). Some large MNCs provide one of the few opportunities available to corporate lawyers to enter the international law field. After all, international law is practiced in a relatively small number of companies and law firms. Because working in a foreign country is perceived by many as glamorous, tills is an area coveted by corporate lawyers. In most cases, however, the overseas jobs go to experienced attorneys while the younger attorneys do their "international practice" in law libraries. (Business Star, "Corporate Law Practice," May 25,1990, p. 4).

This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To borrow the lines of Harvard-educated lawyer Bruce Wassertein, to wit: "A bad lawyer is one who fails to spot problems, a good lawyer is one who perceives the difficulties, and the excellent lawyer is one who surmounts them." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

Today, the study of corporate law practice direly needs a "shot in the arm," so to speak. No longer are we talking of the traditional law teaching method of confining the subject study to the Corporation Code and the Securities Code but an incursion as well into the intertwining modern management issues.

Such corporate legal management issues deal primarily with three (3) types of learning: (1) acquisition of insights into current advances which are of particular significance to the corporate counsel; (2) an introduction to usable disciplinary skins applicable to a corporate counsel's management responsibilities; and (3) a devotion to the organization and management of the legal function itself.

These three subject areas may be thought of as intersecting circles, with a shared area linking them. Otherwise known as "intersecting managerial jurisprudence," it forms a unifying theme for the corporate counsel's total learning.

Some current advances in behavior and policy sciences affect the counsel's role. For that matter, the corporate lawyer reviews the globalization process, including the resulting strategic repositioning that the firms he provides counsel for are required to make, and the need to think about a corporation's; strategy at multiple levels. The salience of the nation-state is being reduced as firms deal both with global multinational entities and simultaneously with sub-national governmental units. Firms increasingly collaborate not only with public entities but with each other — often with those who are competitors in other arenas.

Also, the nature of the lawyer's participation in decision-making within the corporation is rapidly changing. The modem corporate lawyer has gained a new role as a stakeholder — in some cases participating in the organization and operations of governance through participation on boards and other decision-making roles. Often these new patterns develop alongside existing legal institutions and laws are perceived as barriers. These trends are complicated as corporations organize for global operations. ( Emphasis supplied)

The practising lawyer of today is familiar as well with governmental policies toward the promotion and management of technology. New collaborative arrangements for promoting specific technologies or competitiveness more generally require approaches from industry that differ from older, more adversarial relationships and traditional forms of seeking to influence governmental policies. And there are lessons to be learned from other countries. In Europe, Esprit, Eureka and Race are examples of collaborative efforts between governmental and business Japan's MITI is world famous. (Emphasis supplied)

Following the concept of boundary spanning, the office of the Corporate Counsel comprises a distinct group within the managerial structure of all kinds of organizations. Effectiveness of both long-term and temporary groups within organizations has been found to be related to indentifiable factors in the group-context interaction such as the groups actively revising their knowledge of the environment coordinating work with outsiders, promoting team achievements within the organization. In general, such external activities are better predictors of team performance than internal group processes.

In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-vis the managerial mettle of corporations are challenged. Current research is seeking ways both to anticipate effective managerial procedures and to understand relationships of financial liability and insurance considerations. (Emphasis supplied)

Regarding the skills to apply by the corporate counsel, three factors are apropos:

First System Dynamics. The field of systems dynamics has been found an effective tool for new managerial thinking regarding both planning and pressing immediate problems. An understanding of the role of feedback loops, inventory levels, and rates of flow, enable users to simulate all sorts of systematic problems — physical, economic, managerial, social, and psychological. New programming techniques now make the system dynamics principles more accessible to managers — including corporate counsels. (Emphasis supplied)

Second Decision Analysis. This enables users to make better decisions involving complexity and uncertainty. In the context of a law department, it can be used to appraise the settlement value of litigation, aid in negotiation settlement, and minimize the cost and risk involved in managing a portfolio of cases. (Emphasis supplied)

Third Modeling for Negotiation Management. Computer-based models can be used directly by parties and mediators in all lands of negotiations. All integrated set of such tools provide coherent and effective negotiation support, including hands-on on instruction in these techniques. A simulation case of an international joint venture may be used to illustrate the point.

[Be this as it may,] the organization and management of the legal function, concern three pointed areas of consideration, thus:

Preventive Lawyering. Planning by lawyers requires special skills that comprise a major part of the general counsel's responsibilities. They differ from those of remedial law. Preventive lawyering is concerned with minimizing the risks of legal trouble and maximizing legal rights for such legal entities at that time when transactional or similar facts are being considered and made.

Managerial Jurisprudence. This is the framework within which are undertaken those activities of the firm to which legal consequences attach. It needs to be directly supportive of this nation's evolving economic and organizational fabric as firms change to stay competitive in a global, interdependent environment. The practice and theory of "law" is not adequate today to facilitate the relationships needed in trying to make a global economy work.

Organization and Functioning of the Corporate Counsel's Office. The general counsel has emerged in the last decade as one of the most vibrant subsets of the legal profession. The corporate counsel hear responsibility for key aspects of the firm's strategic issues, including structuring its global operations, managing improved relationships with an increasingly diversified body of employees, managing expanded liability exposure, creating new and varied interactions with public decision-makers, coping internally with more complex make or by decisions.

This whole exercise drives home the thesis that knowing corporate law is not enough to make one a good general corporate counsel nor to give him a full sense of how the legal system shapes corporate activities. And even if the corporate lawyer's aim is not the understand all of the law's effects on corporate activities, he must, at the very least, also gain a working knowledge of the management issues if only to be able to grasp not only the basic legal "constitution' or makeup of the modem corporation. "Business Star", "The Corporate Counsel," April 10, 1991, p. 4).

The challenge for lawyers (both of the bar and the bench) is to have more than a passing knowledge of financial law affecting each aspect of their work. Yet, many would admit to ignorance of vast tracts of the financial law territory. What transpires next is a dilemma of professional security: Will the lawyer admit ignorance and risk opprobrium?; or will he feign understanding and risk exposure? (Business Star, "Corporate Finance law," Jan. 11, 1989, p. 4).

Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of Chairman of the COMELEC in a letter received by the Secretariat of the Commission on Appointments on April 25, 1991. Petitioner opposed the nomination because allegedly Monsod does not possess the required qualification of having been engaged in the practice of law for at least ten years.

On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as Chairman of the COMELEC. On June 18, 1991, he took his oath of office. On the same day, he assumed office as Chairman of the COMELEC.

Challenging the validity of the confirmation by the Commission on Appointments of Monsod's nomination, petitioner as a citizen and taxpayer, filed the instant petition for certiorari and Prohibition praying that said confirmation and the consequent appointment of Monsod as Chairman of the Commission on Elections be declared null and void.

Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of 1960 with a grade of 86-55%. He has been a dues paying member of the Integrated Bar of the Philippines since its inception in 1972-73. He has also been paying his professional license fees as lawyer for more than ten years. (p. 124, Rollo)

After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod worked in the law office of his father. During his stint in the World Bank Group (1963-1970), Monsod worked as an operations officer for about two years in Costa Rica and Panama, which involved getting acquainted with the laws of member-countries negotiating loans and coordinating legal, economic, and project work of the Bank. Upon returning to the Philippines in 1970, he worked with the Meralco Group, served as chief executive officer of an investment bank and subsequently of a business conglomerate, and since 1986, has rendered services to various companies as a legal and economic consultant or chief executive officer. As former Secretary-General (1986) and National Chairman (1987) of NAMFREL. Monsod's work involved being knowledgeable in election law. He appeared for NAMFREL in its accreditation hearings before the Comelec. In the field of advocacy, Monsod, in his personal capacity and as former Co-Chairman of the Bishops Businessmen's Conference for Human Development, has worked with the under privileged sectors, such as the farmer and urban poor groups, in initiating, lobbying for and engaging in affirmative action for the agrarian reform law and lately the urban land reform bill. Monsod also made use of his legal knowledge as a member of the Davide Commission, a quast judicial body, which conducted numerous hearings (1990) and as a member of the Constitutional Commission (1986-1987), and Chairman of its Committee on Accountability of Public Officers, for which he was cited by the President of the Commission, Justice Cecilia Muñoz-Palma for "innumerable amendments to reconcile government functions with individual freedoms and public accountability and the party-list system for the House of Representative. (pp. 128-129 Rollo) ( Emphasis supplied)

Just a word about the work of a negotiating team of which Atty. Monsod used to be a member.

In a loan agreement, for instance, a negotiating panel acts as a team, and which is adequately constituted to meet the various contingencies that arise during a negotiation. Besides top officials of the Borrower concerned, there are the legal officer (such as the legal counsel), the finance manager, and an operations officer (such as an official involved in negotiating the contracts) who comprise the members of the team. (Guillermo V. Soliven, "Loan Negotiating Strategies for Developing Country Borrowers," Staff Paper No. 2, Central Bank of the Philippines, Manila, 1982, p. 11). (Emphasis supplied)

After a fashion, the loan agreement is like a country's Constitution; it lays down the law as far as the loan transaction is concerned. Thus, the meat of any Loan Agreement can be compartmentalized into five (5) fundamental parts: (1) business terms; (2) borrower's representation; (3) conditions of closing; (4) covenants; and (5) events of default. (Ibid., p. 13).

In the same vein, lawyers play an important role in any debt restructuring program. For aside from performing the tasks of legislative drafting and legal advising, they score national development policies as key factors in maintaining their countries' sovereignty. (Condensed from the work paper, entitled "Wanted: Development Lawyers for Developing Nations," submitted by L. Michael Hager, regional legal adviser of the United States Agency for International Development, during the Session on Law for the Development of Nations at the Abidjan World Conference in Ivory Coast, sponsored by the World Peace Through Law Center on August 26-31, 1973). ( Emphasis supplied)

Loan concessions and compromises, perhaps even more so than purely renegotiation policies, demand expertise in the law of contracts, in legislation and agreement drafting and in renegotiation. Necessarily, a sovereign lawyer may work with an international business specialist or an economist in the formulation of a model loan agreement. Debt restructuring contract agreements contain such a mixture of technical language that they should be carefully drafted and signed only with the advise of competent counsel in conjunction with the guidance of adequate technical support personnel. (See International Law Aspects of the Philippine External Debts, an unpublished dissertation, U.S.T. Graduate School of Law, 1987, p. 321). ( Emphasis supplied)

A critical aspect of sovereign debt restructuring/contract construction is the set of terms and conditions which determines the contractual remedies for a failure to perform one or more elements of the contract. A good agreement must not only define the responsibilities of both parties, but must also state the recourse open to either party when the other fails to discharge an obligation. For a compleat debt restructuring represents a devotion to that principle which in the ultimate analysis is sine qua non for foreign loan agreements-an adherence to the rule of law in domestic and international affairs of whose kind U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. once said: "They carry no banners, they beat no drums; but where they are, men learn that bustle and bush are not the equal of quiet genius and serene mastery." (See Ricardo J. Romulo, "The Role of Lawyers in Foreign Investments," Integrated Bar of the Philippine Journal, Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265).

Interpreted in the light of the various definitions of the term Practice of law". particularly the modern concept of law practice, and taking into consideration the liberal construction intended by the framers of the Constitution, Atty. Monsod's past work experiences as a lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both the rich and the poor — verily more than satisfy the constitutional requirement — that he has been engaged in the practice of law for at least ten years.

Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court said:

Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide. (emphasis supplied)

No less emphatic was the Court in the case of (Central Bank v. Civil Service Commission, 171 SCRA 744) where it stated:

It is well-settled that when the appointee is qualified, as in this case, and all the other legal requirements are satisfied, the Commission has no alternative but to attest to the appointment in accordance with the Civil Service Law. The Commission has no authority to revoke an appointment on the ground that another person is more qualified for a particular position. It also has no authority to direct the appointment of a substitute of its choice. To do so would be an encroachment on the discretion vested upon the appointing authority. An appointment is essentially within the discretionary power of whomsoever it is vested, subject to the only condition that the appointee should possess the qualifications required by law. ( Emphasis supplied)

The appointing process in a regular appointment as in the case at bar, consists of four (4) stages: (1) nomination; (2) confirmation by the Commission on Appointments; (3) issuance of a commission (in the Philippines, upon submission by the Commission on Appointments of its certificate of confirmation, the President issues the permanent appointment; and (4) acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson v. Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers, p. 200)

The power of the Commission on Appointments to give its consent to the nomination of Monsod as Chairman of the Commission on Elections is mandated by Section 1(2) Sub-Article C, Article IX of the Constitution which provides:

The Chairman and the Commisioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity.

Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition of the practice of law is the traditional or stereotyped notion of law practice, as distinguished from the modern concept of the practice of law, which modern connotation is exactly what was intended by the eminent framers of the 1987 Constitution. Moreover, Justice Padilla's definition would require generally a habitual law practice, perhaps practised two or three times a week and would outlaw say, law practice once or twice a year for ten consecutive years. Clearly, this is far from the constitutional intent.

Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written opinion, I made use of a definition of law practice which really means nothing because the definition says that law practice " . . . is what people ordinarily mean by the practice of law." True I cited the definition but only by way of sarcasm as evident from my statement that the definition of law practice by "traditional areas of law practice is essentially tautologous" or defining a phrase by means of the phrase itself that is being defined.

Justice Cruz goes on to say in substance that since the law covers almost all situations, most individuals, in making use of the law, or in advising others on what the law means, are actually practicing law. In that sense, perhaps, but we should not lose sight of the fact that Mr. Monsod is a lawyer, a member of the Philippine Bar, who has been practising law for over ten years. This is different from the acts of persons practising law, without first becoming lawyers.

Justice Cruz also says that the Supreme Court can even disqualify an elected President of the Philippines, say, on the ground that he lacks one or more qualifications. This matter, I greatly doubt. For one thing, how can an action or petition be brought against the President? And even assuming that he is indeed disqualified, how can the action be entertained since he is the incumbent President?

We now proceed:

The Commission on the basis of evidence submitted doling the public hearings on Monsod's confirmation, implicitly determined that he possessed the necessary qualifications as required by law. The judgment rendered by the Commission in the exercise of such an acknowledged power is beyond judicial interference except only upon a clear showing of a grave abuse of discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of discretion is clearly shown shall the Court interfere with the Commission's judgment. In the instant case, there is no occasion for the exercise of the Court's corrective power, since no abuse, much less a grave abuse of discretion, that would amount to lack or excess of jurisdiction and would warrant the issuance of the writs prayed, for has been clearly shown.

Additionally, consider the following:

(1) If the Commission on Appointments rejects a nominee by the President, may the Supreme Court reverse the Commission, and thus in effect confirm the appointment? Clearly, the answer is in the negative.

(2) In the same vein, may the Court reject the nominee, whom the Commission has confirmed? The answer is likewise clear.

(3) If the United States Senate (which is the confirming body in the U.S. Congress) decides to confirm a Presidential nominee, it would be incredible that the U.S. Supreme Court would still reverse the U.S. Senate.

Finally, one significant legal maxim is:

We must interpret not by the letter that killeth, but by the spirit that giveth life.

Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah (who was Samson's beloved) for help in capturing Samson. Delilah agreed on condition that —

No blade shall touch his skin;

No blood shall flow from his veins.

When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod burning white-hot two or three inches away from in front of Samson's eyes. This blinded the man. Upon hearing of what had happened to her beloved, Delilah was beside herself with anger, and fuming with righteous fury, accused the procurator of reneging on his word. The procurator calmly replied: "Did any blade touch his skin? Did any blood flow from his veins?" The procurator was clearly relying on the letter, not the spirit of the agreement.

In view of the foregoing, this petition is hereby DISMISSED.

SO ORDERED.

Fernan, C.J., Griño-Aquino and Medialdea, JJ., concur.

Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.)

Sarmiento, J., is on leave.

Regalado, and Davide, Jr., J., took no part.

Separate Opinions

NARVASA, J., concurring:

I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it does not appear to me that there has been an adequate showing that the challenged determination by the Commission on Appointments-that the appointment of respondent Monsod as Chairman of the Commission on Elections should, on the basis of his stated qualifications and after due assessment thereof, be confirmed-was attended by error so gross as to amount to grave abuse of discretion and consequently merits nullification by this Court in accordance with the second paragraph of Section 1, Article VIII of the Constitution. I therefore vote to DENY the petition.

PADILLA, J., dissenting:

The records of this case will show that when the Court first deliberated on the Petition at bar, I voted not only to require the respondents to comment on the Petition, but I was the sole vote for the issuance of a temporary restraining order to enjoin respondent Monsod from assuming the position of COMELEC Chairman, while the Court deliberated on his constitutional qualification for the office. My purpose in voting for a TRO was to prevent the inconvenience and even embarrassment to all parties concerned were the Court to finally decide for respondent Monsod's disqualification. Moreover, a reading of the Petition then in relation to established jurisprudence already showed prima facie that respondent Monsod did not possess the needed qualification, that is, he had not engaged in the practice of law for at least ten (10) years prior to his appointment as COMELEC Chairman.

After considering carefully respondent Monsod's comment, I am even more convinced that the constitutional requirement of "practice of law for at least ten (10) years" has not been met.

The procedural barriers interposed by respondents deserve scant consideration because, ultimately, the core issue to be resolved in this petition is the proper construal of the constitutional provision requiring a majority of the membership of COMELEC, including the Chairman thereof to "have been engaged in the practice of law for at least ten (10) years." (Art. IX(C), Section 1(1), 1987 Constitution). Questions involving the construction of constitutional provisions are best left to judicial resolution. As declared in Angara v. Electoral Commission, (63 Phil. 139) "upon the judicial department is thrown the solemn and inescapable obligation of interpreting the Constitution and defining constitutional boundaries."

The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among these are that he must have been "engaged in the practice of law for at least ten (10) years." It is the bounden duty of this Court to ensure that such standard is met and complied with.

What constitutes practice of law? As commonly understood, "practice" refers to the actual performance or application of knowledge as distinguished from mere possession of knowledge; it connotes an active, habitual, repeated or customary action. ¹ To "practice" law, or any profession for that matter, means, to exercise or pursue an employment or profession actively, habitually, repeatedly or customarily.

Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a nursing aide, cannot be said to be in the "practice of medicine." A certified public accountant who works as a clerk, cannot be said to practice his profession as an accountant. In the same way, a lawyer who is employed as a business executive or a corporate manager, other than as head or attorney of a Legal Department of a corporation or a governmental agency, cannot be said to be in the practice of law.

As aptly held by this Court in the case of People vs. Villanueva: ²

Practice is more than an isolated appearance for it consists in frequent or customary actions, a succession of acts of the same kind. In other words, it is frequent habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public as a lawyer and demanding payment for such services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis supplied).

It is worth mentioning that the respondent Commission on Appointments in a Memorandum it prepared, enumerated several factors determinative of whether a particular activity constitutes "practice of law." It states:

1. Habituality. The term "practice of law" implies customarily or habitually holding one's self out to the public as a lawyer (People vs. Villanueva, 14 SCRA 109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the establishment of a law office for the general practice of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a notary public, and files a manifestation with the Supreme Court informing it of his intention to practice law in all courts in the country (People v. De Luna, 102 Phil. 968).

Practice is more than an isolated appearance for it consists in frequent or customary action, a succession of acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 109 citing State v. Cotner, 127, p. 1, 87 Kan, 864).

2. Compensation. Practice of law implies that one must have presented himself to be in the active and continued practice of the legal profession and that his professional services are available to the public for compensation, as a service of his livelihood or in consideration of his said services. (People v. Villanueva, supra). Hence, charging for services such as preparation of documents involving the use of legal knowledge and skill is within the term "practice of law" (Ernani Paño, Bar Reviewer in Legal and Judicial Ethics, 1988 ed., p. 8 citing People v. People's Stockyards State Bank, 176 N.B. 901) and, one who renders an opinion as to the proper interpretation of a statute, and receives pay for it, is to that extent, practicing law (Martin, supra, p. 806 citing Mendelaun v. Gilbert and Barket Mfg. Co., 290 N.Y.S. 462) If compensation is expected, all advice to clients and all action taken for them in matters connected with the law; are practicing law. (Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-359)

3. Application of law legal principle practice or procedure which calls for legal knowledge, training and experience is within the term "practice of law". (Martin supra)

4. Attorney-client relationship. Engaging in the practice of law presupposes the existence of lawyer-client relationship. Hence, where a lawyer undertakes an activity which requires knowledge of law but involves no attorney-client relationship, such as teaching law or writing law books or articles, he cannot be said to be engaged in the practice of his profession or a lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30). ³

The above-enumerated factors would, I believe, be useful aids in determining whether or not respondent Monsod meets the constitutional qualification of practice of law for at least ten (10) years at the time of his appointment as COMELEC Chairman.

The following relevant questions may be asked:

1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law?

2. Did respondent perform such tasks customarily or habitually?

3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his appointment as COMELEC Chairman?

Given the employment or job history of respondent Monsod as appears from the records, I am persuaded that if ever he did perform any of the tasks which constitute the practice of law, he did not do so HABITUALLY for at least ten (10) years prior to his appointment as COMELEC Chairman.

While it may be granted that he performed tasks and activities which could be latitudinarianly considered activities peculiar to the practice of law, like the drafting of legal documents and the rendering of legal opinion or advice, such were isolated transactions or activities which do not qualify his past endeavors as "practice of law." To become engaged in the practice of law, there must be a continuity, or a succession of acts. As observed by the Solicitor General in People vs. Villanueva: ⁴

Essentially, the word private practice of law implies that one must have presented himself to be in the active and continued practice of the legal profession and that his professional services are available to the public for a compensation, as a source of his livelihood or in consideration of his said services.

ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not qualified for the position of COMELEC Chairman for not having engaged in the practice of law for at least ten (10) years prior to his appointment to such position.

CRUZ, J., dissenting:

I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same. There are certain points on which I must differ with him while of course respecting hisviewpoint.

To begin with, I do not think we are inhibited from examining the qualifications of the respondent simply because his nomination has been confirmed by the Commission on Appointments. In my view, this is not a political question that we are barred from resolving. Determination of the appointee's credentials is made on the basis of the established facts, not the discretion of that body. Even if it were, the exercise of that discretion would still be subject to our review.

In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing authority to choose between two claimants to the same office who both possessed the required qualifications. It was that kind of discretion that we said could not be reviewed.

If a person elected by no less than the sovereign people may be ousted by this Court for lack of the required qualifications, I see no reason why we cannot disqualified an appointee simply because he has passed the Commission on Appointments.

Even the President of the Philippines may be declared ineligible by this Court in an appropriate proceeding notwithstanding that he has been found acceptable by no less than the enfranchised citizenry. The reason is that what we would be examining is not the wisdom of his election but whether or not he was qualified to be elected in the first place.

Coming now to the qualifications of the private respondent, I fear that the ponencia may have been too sweeping in its definition of the phrase "practice of law" as to render the qualification practically toothless. From the numerous activities accepted as embraced in the term, I have the uncomfortable feeling that one does not even have to be a lawyer to be engaged in the practice of law as long as his activities involve the application of some law, however peripherally. The stock broker and the insurance adjuster and the realtor could come under the definition as they deal with or give advice on matters that are likely "to become involved in litigation."

The lawyer is considered engaged in the practice of law even if his main occupation is another business and he interprets and applies some law only as an incident of such business. That covers every company organized under the Corporation Code and regulated by the SEC under P.D. 902-A. Considering the ramifications of the modern society, there is hardly any activity that is not affected by some law or government regulation the businessman must know about and observe. In fact, again going by the definition, a lawyer does not even have to be part of a business concern to be considered a practitioner. He can be so deemed when, on his own, he rents a house or buys a car or consults a doctor as these acts involve his knowledge and application of the laws regulating such transactions. If he operates a public utility vehicle as his main source of livelihood, he would still be deemed engaged in the practice of law because he must obey the Public Service Act and the rules and regulations of the Energy Regulatory Board.

The ponencia quotes an American decision defining the practice of law as the "performance of any acts ... in or out of court, commonly understood to be the practice of law," which tells us absolutely nothing. The decision goes on to say that "because lawyers perform almost every function known in the commercial and governmental realm, such a definition would obviously be too global to be workable."

The effect of the definition given in the ponencia is to consider virtually every lawyer to be engaged in the practice of law even if he does not earn his living, or at least part of it, as a lawyer. It is enough that his activities are incidentally (even if only remotely) connected with some law, ordinance, or regulation. The possible exception is the lawyer whose income is derived from teaching ballroom dancing or escorting wrinkled ladies with pubescent pretensions.

The respondent's credentials are impressive, to be sure, but they do not persuade me that he has been engaged in the practice of law for ten years as required by the Constitution. It is conceded that he has been engaged in business and finance, in which areas he has distinguished himself, but as an executive and economist and not as a practicing lawyer. The plain fact is that he has occupied the various positions listed in his resume by virtue of his experience and prestige as a businessman and not as an attorney-at-law whose principal attention is focused on the law. Even if it be argued that he was acting as a lawyer when he lobbied in Congress for agrarian and urban reform, served in the NAMFREL and the Constitutional Commission (together with non-lawyers like farmers and priests) and was a member of the Davide Commission, he has not proved that his activities in these capacities extended over the prescribed 10-year period of actual practice of the law. He is doubtless eminently qualified for many other positions worthy of his abundant talents but not as Chairman of the Commission on Elections.

I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must regretfully vote to grant the petition.

GUTIERREZ, JR., J., dissenting:

When this petition was filed, there was hope that engaging in the practice of law as a qualification for public office would be settled one way or another in fairly definitive terms. Unfortunately, this was not the result.

Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the practice of law (with one of these 5 leaving his vote behind while on official leave but not expressing his clear stand on the matter); 4 categorically stating that he did not practice law; 2 voting in the result because there was no error so gross as to amount to grave abuse of discretion; one of official leave with no instructions left behind on how he viewed the issue; and 2 not taking part in the deliberations and the decision.

There are two key factors that make our task difficult. First is our reviewing the work of a constitutional Commission on Appointments whose duty is precisely to look into the qualifications of persons appointed to high office. Even if the Commission errs, we have no power to set aside error. We can look only into grave abuse of discretion or whimsically and arbitrariness. Second is our belief that Mr. Monsod possesses superior qualifications in terms of executive ability, proficiency in management, educational background, experience in international banking and finance, and instant recognition by the public. His integrity and competence are not questioned by the petitioner. What is before us is compliance with a specific requirement written into the Constitution.

Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never engaged in the practice of law for even one year. He is a member of the bar but to say that he has practiced law is stretching the term beyond rational limits.

A person may have passed the bar examinations. But if he has not dedicated his life to the law, if he has not engaged in an activity where membership in the bar is a requirement I fail to see how he can claim to have been engaged in the practice of law.

Engaging in the practice of law is a qualification not only for COMELEC chairman but also for appointment to the Supreme Court and all lower courts. What kind of Judges or Justices will we have if there main occupation is selling real estate, managing a business corporation, serving in fact-finding committee, working in media, or operating a farm with no active involvement in the law, whether in Government or private practice, except that in one joyful moment in the distant past, they happened to pass the bar examinations?

The Constitution uses the phrase "engaged in the practice of law for at least ten years." The deliberate choice of words shows that the practice envisioned is active and regular, not isolated, occasional, accidental, intermittent, incidental, seasonal, or extemporaneous. To be "engaged" in an activity for ten years requires committed participation in something which is the result of one's decisive choice. It means that one is occupied and involved in the enterprise; one is obliged or pledged to carry it out with intent and attention during the ten-year period.

I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the Commission on Appointments, the latter has not been engaged in the practice of law for at least ten years. In fact, if appears that Mr. Monsod has never practiced law except for an alleged one year period after passing the bar examinations when he worked in his father's law firm. Even then his law practice must have been extremely limited because he was also working for M.A. and Ph. D. degrees in Economics at the University of Pennsylvania during that period. How could he practice law in the United States while not a member of the Bar there?

The professional life of the respondent follows:

1.15.1. Respondent Monsod's activities since his passing the Bar examinations in 1961 consist of the following:

1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania

2. 1963-1970: World Bank Group — Economist, Industry Department; Operations, Latin American Department; Division Chief, South Asia and Middle East, International Finance Corporation

3. 1970-1973: Meralco Group — Executive of various companies, i.e., Meralco Securities Corporation, Philippine Petroleum Corporation, Philippine Electric Corporation

4. 1973-1976: Yujuico Group — President, Fil-Capital Development Corporation and affiliated companies

5. 1976-1978: Finaciera Manila — Chief Executive Officer

6. 1978-1986: Guevent Group of Companies — Chief Executive Officer

7. 1986-1987: Philippine Constitutional Commission — Member

8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt — Member

9. Presently: Chairman of the Board and Chief Executive Officer of the following companies:

a. ACE Container Philippines, Inc.

b. Dataprep, Philippines

c. Philippine SUNsystems Products, Inc.

d. Semirara Coal Corporation

e. CBL Timber Corporation

Member of the Board of the Following:

a. Engineering Construction Corporation of the Philippines

b. First Philippine Energy Corporation

c. First Philippine Holdings Corporation

d. First Philippine Industrial Corporation

e. Graphic Atelier

f. Manila Electric Company

g. Philippine Commercial Capital, Inc.

h. Philippine Electric Corporation

i. Tarlac Reforestation and Environment Enterprises

j. Tolong Aquaculture Corporation

k. Visayan Aquaculture Corporation

l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)

There is nothing in the above bio-data which even remotely indicates that respondent Monsod has given the law enough attention or a certain degree of commitment and participation as would support in all sincerity and candor the claim of having engaged in its practice for at least ten years. Instead of working as a lawyer, he has lawyers working for him. Instead of giving receiving that legal advice of legal services, he was the oneadvice and those services as an executive but not as a lawyer.

The deliberations before the Commission on Appointments show an effort to equate "engaged in the practice of law" with the use of legal knowledge in various fields of endeavor such as commerce, industry, civic work, blue ribbon investigations, agrarian reform, etc. where such knowledge would be helpful.

I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman accepts as having a familiar and customary well-defined meaning. Every resident of this country who has reached the age of discernment has to know, follow, or apply the law at various times in his life. Legal knowledge is useful if not necessary for the business executive, legislator, mayor, barangay captain, teacher, policeman, farmer, fisherman, market vendor, and student to name only a few. And yet, can these people honestly assert that as such, they are engaged in the practice of law?

The Constitution requires having been "engaged in the practice of law for at least ten years." It is not satisfied with having been "a member of the Philippine bar for at least ten years."

Some American courts have defined the practice of law, as follows:

The practice of law involves not only appearance in court in connection with litigation but also services rendered out of court, and it includes the giving of advice or the rendering of any services requiring the use of legal skill or knowledge, such as preparing a will, contract or other instrument, the legal effect of which, under the facts and conditions involved, must be carefully determined. People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d 693; People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901, and cases cited.

It would be difficult, if not impossible to lay down a formula or definition of what constitutes the practice of law. "Practicing law" has been defined as "Practicing as an attorney or counselor at law according to the laws and customs of our courts, is the giving of advice or rendition of any sort of service by any person, firm or corporation when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill." Without adopting that definition, we referred to it as being substantially correct in People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901. (People v. Schafer, 87 N.E. 2d 773, 776)

For one's actions to come within the purview of practice of law they should not only be activities peculiar to the work of a lawyer, they should also be performed, habitually, frequently or customarily, to wit:

xxx xxx xxx

Respondent's answers to questions propounded to him were rather evasive. He was asked whether or not he ever prepared contracts for the parties in real-estate transactions where he was not the procuring agent. He answered: "Very seldom." In answer to the question as to how many times he had prepared contracts for the parties during the twenty-one years of his business, he said: "I have no Idea." When asked if it would be more than half a dozen times his answer was I suppose. Asked if he did not recall making the statement to several parties that he had prepared contracts in a large number of instances, he answered: "I don't recall exactly what was said." When asked if he did not remember saying that he had made a practice of preparing deeds, mortgages and contracts and charging a fee to the parties therefor in instances where he was not the broker in the deal, he answered: "Well, I don't believe so, that is not a practice." Pressed further for an answer as to his practice in preparing contracts and deeds for parties where he was not the broker, he finally answered: "I have done about everything that is on the books as far as real estate is concerned."

xxx xxx xxx

Respondent takes the position that because he is a real-estate broker he has a lawful right to do any legal work in connection with real-estate transactions, especially in drawing of real-estate contracts, deeds, mortgages, notes and the like. There is no doubt but that he has engaged in these practices over the years and has charged for his services in that connection. ... (People v. Schafer, 87 N.E. 2d 773)

xxx xxx xxx

... An attorney, in the most general sense, is a person designated or employed by another to act in his stead; an agent; more especially, one of a class of persons authorized to appear and act for suitors or defendants in legal proceedings. Strictly, these professional persons are attorneys at law, and non-professional agents are properly styled "attorney's in fact;" but the single word is much used as meaning an attorney at law. A person may be an attorney in facto for another, without being an attorney at law. Abb. Law Dict. "Attorney." A public attorney, or attorney at law, says Webster, is an officer of a court of law, legally qualified to prosecute and defend actions in such court on the retainer of clients. "The principal duties of an attorney are (1) to be true to the court and to his client; (2) to manage the business of his client with care, skill, and integrity; (3) to keep his client informed as to the state of his business; (4) to keep his secrets confided to him as such. ... His rights are to be justly compensated for his services." Bouv. Law Dict. tit. "Attorney." The transitive verb "practice," as defined by Webster, means 'to do or perform frequently, customarily, or habitually; to perform by a succession of acts, as, to practice gaming, ... to carry on in practice, or repeated action; to apply, as a theory, to real life; to exercise, as a profession, trade, art. etc.; as, to practice law or medicine,' etc...." (State v. Bryan, S.E. 522, 523; Emphasis supplied)

In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of acts. Thus, we stated in the case of People v. Villanueva (14 SCRA 109 [1965]):

xxx xxx xxx

... Practice is more than an isolated appearance, for it consists in frequent or customary actions, a succession of acts of the same kind. In other words, it is frequent habitual exercise (State v. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public, as a lawyer and demanding payment for such services. ... . (at p. 112)

It is to be noted that the Commission on Appointment itself recognizes habituality as a required component of the meaning of practice of law in a Memorandum prepared and issued by it, to wit:

l. Habituality. The term 'practice of law' implies customarilyor habitually holding one's self out to the public as a lawyer (People v. Villanueva, 14 SCRA 109 citing State v. Bryan, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the establishment of a law office for the general practice of law (U.S. v. Noy Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a notary public, and files a manifestation with the Supreme Court informing it of his intention to practice law in all courts in the country (People v. De Luna, 102 Phil. 968).

Practice is more than an isolated appearance, for it consists in frequent or customary action, a succession of acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 1 09 citing State v. Cotner, 1 27, p. 1, 87 Kan, 864)." (Rollo, p. 115)

xxx xxx xxx

While the career as a businessman of respondent Monsod may have profited from his legal knowledge, the use of such legal knowledge is incidental and consists of isolated activities which do not fall under the denomination of practice of law. Admission to the practice of law was not required for membership in the Constitutional Commission or in the Fact-Finding Commission on the 1989 Coup Attempt. Any specific legal activities which may have been assigned to Mr. Monsod while a member may be likened to isolated transactions of foreign corporations in the Philippines which do not categorize the foreign corporations as doing business in the Philippines. As in the practice of law, doing business also should be active and continuous. Isolated business transactions or occasional, incidental and casual transactions are not within the context of doing business. This was our ruling in the case of Antam Consolidated, Inc. v. Court of appeals, 143 SCRA 288 [1986]).

Respondent Monsod, corporate executive, civic leader, and member of the Constitutional Commission may possess the background, competence, integrity, and dedication, to qualify for such high offices as President, Vice-President, Senator, Congressman or Governor but the Constitution in prescribing the specific qualification of having engaged in the practice of law for at least ten (10) years for the position of COMELEC Chairman has ordered that he may not be confirmed for that office. The Constitution charges the public respondents no less than this Court to obey its mandate.

I, therefore, believe that the Commission on Appointments committed grave abuse of discretion in confirming the nomination of respondent Monsod as Chairman of the COMELEC.

I vote to GRANT the petition.

Bidin, J., dissent

Separate Opinions

NARVASA, J., concurring:

Melencio-Herrera, J., concur.

PADILLA, J., dissenting:

After considering carefully respondent Monsod's comment, I am even more convinced that the constitutional requirement of "practice of law for at least ten (10) years" has not been met.

As aptly held by this Court in the case of People vs. Villanueva: ²

3. Application of law legal principle practice or procedure which calls for legal knowledge, training and experience is within the term "practice of law". (Martin supra)

The following relevant questions may be asked:

1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law?

2. Did respondent perform such tasks customarily or habitually?

3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his appointment as COMELEC Chairman?

CRUZ, J., dissenting:

I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same. There are certain points on which I must differ with him while of course respecting hisviewpoint.

The ponencia quotes an American decision defining the practice of law as the "performance of any acts . . . in or out of court, commonly understood to be the practice of law," which tells us absolutely nothing. The decision goes on to say that "because lawyers perform almost every function known in the commercial and governmental realm, such a definition would obviously be too global to be workable."

I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must regretfully vote to grant the petition.

GUTIERREZ, JR., J., dissenting:

The professional life of the respondent follows:

1.15.1. Respondent Monsod's activities since his passing the Bar examinations in 1961 consist of the following:

1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania

2. 1963-1970: World Bank Group — Economist, Industry Department; Operations, Latin American Department; Division Chief, South Asia and Middle East, International Finance Corporation

3. 1970-1973: Meralco Group — Executive of various companies, i.e., Meralco Securities Corporation, Philippine Petroleum Corporation, Philippine Electric Corporation

4. 1973-1976: Yujuico Group — President, Fil-Capital Development Corporation and affiliated companies

5. 1976-1978: Finaciera Manila — Chief Executive Officer

6. 1978-1986: Guevent Group of Companies — Chief Executive Officer

7. 1986-1987: Philippine Constitutional Commission — Member

8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt — Member

9. Presently: Chairman of the Board and Chief Executive Officer of the following companies:

a. ACE Container Philippines, Inc.

b. Dataprep, Philippines

c. Philippine SUNsystems Products, Inc.

d. Semirara Coal Corporation

e. CBL Timber Corporation

Member of the Board of the Following:

a. Engineering Construction Corporation of the Philippines

b. First Philippine Energy Corporation

c. First Philippine Holdings Corporation

d. First Philippine Industrial Corporation

e. Graphic Atelier

f. Manila Electric Company

g. Philippine Commercial Capital, Inc.

h. Philippine Electric Corporation

i. Tarlac Reforestation and Environment Enterprises

j. Tolong Aquaculture Corporation

k. Visayan Aquaculture Corporation

l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)

The Constitution requires having been "engaged in the practice of law for at least ten years." It is not satisfied with having been "a member of the Philippine bar for at least ten years."

Some American courts have defined the practice of law, as follows:

xxx xxx xxx

In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of acts. Thus, we stated in the case of People v. Villanueva (14 SCRA 109 [1965]):

xxx xxx xxx

It is to be noted that the Commission on Appointment itself recognizes habituality as a required component of the meaning of practice of law in a Memorandum prepared and issued by it, to wit:

xxx xxx xxx

I, therefore, believe that the Commission on Appointments committed grave abuse of discretion in confirming the nomination of respondent Monsod as Chairman of the COMELEC.

I vote to GRANT the petition.

Bidin, J., dissent

Footnotes

1 Webster's 3rd New International Dictionary.

2 14 SCRA 109

3 Commission on Appointments' Memorandum dated 25 June 1991 RE: WHAT CONSTITUTES PRACTICE OF LAW, pp. 6-7.

4 14 SCRA 109.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

DECISION

November 28, 1947

G.R. No. L-1532
SANTIAGO AQUIÑO and DIONISIA AGUIRRE, petitioners,
vs.
MANUEL BLANCO, Judge of First Instance of Iloilo, and DOMINGA SALVERON, respondents.

Simplicio A. Buyco for petitioners.
Manuel A. Akol for respondents.

Hilado, J.:

On February 5, 1947, the Court of First Instance of Iloilo in an action brought therein by the petitioners Santiago Aquiño and Dionisia Aguirre, as plaintiffs, against respondent Dominga Salveron, as defendant, rendered judgment of which the following was the dispositive part:

Por tanto, se dicta sentencia declarando que la demandada Dominga Salveron es la dueña de la parcela de terreno No. 1 de la demanda; y que los esposos demandantes Dionisia Aguirre y Santiago Aquiño son los dueños de la parcela de terreno No. 2 de la demanda. Sin especial pronunciamento en cuanto a la costas. (Petition, p. 1.)

At the trail of that case the therein defendant Dominga Salveron was represented by Atty. Basilio Sorioso. Later said attorney was appointed, and qualified, as Assistant Provincial Fiscal of Iloilo, which position he was occupying on February 11, 1947. On this last date notice of the aforementioned judgment was served on him. For reasons which do not appear in the record, service of sad judgment was served on Mr. Sorioso despite the fact that he was no longer in private practice and was already discharging the official duties of assistant provincial fiscal. The verified answer of respondent Dominga Salveron in the present proceedings alleges these last facts, and further avers that she only knew that a decision had been rendered in the case after the 21st of March, 1947, when the writ of execution in the meantime issued was served on her. This case having been submitted to this Court without the production of evidence but merely upon the verified petition and verified answer, under the doctrine laid down by this Court in Evangelista vs. De la Rosa, 76 Phil. 115, as well as in the case of Bauermann vs. Casas, 10 Phil. 386, 390, the petitioners must be understood to admit the truth of all material and relevant allegations of the adverse party, and to rest their petition upon those allegations taken together with such of their own as are admitted in the pleadings. Under this rule, the allegations of respondent Dominga Salveron above referred to must be accepted. But this is not all; there exists in the record of the instant case the affidavit of Mr. Basilio Sorioso dated April 1, 1947, which was attached to the defendant's (Dominga Salveron's) motion of April 2,1947 (Annex A of answer) testifying to the following facts, among others: that he was the attorney of said defendant in the said case; that he received a copy of the decision of the court on February 11, 1947, when he was already in the discharge of the duties of assistant provincial fiscal; that being very busy in the performance of said duties when he received said copy, he left said decision on his table, and due to the many tenancy cases he was then attending to, and even up to the date of his affidavit, aside from attending to the trial of the cases assigned to him, he failed to notify said defendant, who was then living in Anilao, which is 45 kilometers from the City of Iloilo, of the same; that his failure to notify said defendant was due to inadvertence or excusable negligence on his part as at the time the copy of the decision was served on him he was no longer practicing law but was discharging his official duties as assistant provincial fiscal and there was at the time when he received said copy so many tenancy cases he was attending to and there were so many papers on his table that the said decision "just slipped out of my mind"; that a few days after the issuance of the writ of execution on March 21, the same was served on the defendant and the decision came to her knowledge; and that had the defendant been notified of the decision she would have taken steps to appeal therefrom because she believes she has a good case.

When Attorney Sorioso was appointed to the position of assistant provincial fiscal and therein qualified, by operation of law he ceased to engage in private law practice, and as a consequence he became simultaneously disqualified to continue representing his former client, the herein respondent Dominga Salveron, in the above-mentioned case. So that in contemplation of law the notice of the decision upon him on February 11, 1947, was not a notice upon said respondent, and the period for perfecting an appeal on the part of the latter in reality did not then commence to run but only, if at all, when she acquired knowledge of said decision upon the service on her of the writ of execution on March 26, 1947. But even if the above facts had not intervened, there is in the record a clear showing that the case is wholly covered by Rule 38, section 2.

The writ of execution thus issued under date of March 21, 1947, was served on respondent Dominga Salveron, as defendant, on March 26, 1947, according to paragraph 3 of the petition. But as alleged in paragraph 4 of the same petition and also in paragraph 4 of the answer, said respondent under date of April 2, 1947, filed a petition to vacate said writ of execution. And although said petition was first denied by vacation Judge Villalobos, it was later granted by respondent Judge Blanco through the latter's order of May 24, 1947, quoted in paragraph 5 of the petition herein. That writ of execution was an "order" or "proceeding" entered or taken against said respondent, as defendant, within the meaning of Rule 38, section 2, providing:

SEC. 2. Petition to Court of First Instance for relief from judgment or other proceeding thereof. — When a judgment or ordered is entered, or any other proceeding is taken, against a party in a Court of First Instance through fraud, accident, mistake, or excusable negligence, he may file a petition in such court and in the same cause prying that the judgment, order, or proceeding be set aside.

Under these facts and circumstances, we are satisfied that a good case for equitable relief has been made out under Rule 38, section 2, and that Judge Blanco did not abuse his discretion in entering his order of May 24, 1947, quoted on page 3 of the instant petition, setting aside the order dated April 29, 1947, entered by vacation Judge Villalobos, and permitting the therein defendant to present a record on appeal.

Petition dismissed, with costs.

Paras, Perfecto, Briones, and Tuason, JJ., concur. .

Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

A.M. No. 202 July 22, 1975

RENE P. RAMOS, complainant,
vs.
MOISES R. RADA, respondent.

CASTRO, J.:

Moises R. Rada a messenger in the Court of First Instance of Camarines Norte, Branch II, is charged with a violation of Section 12 of Civil Service Rule XVIII, which provides as follows:

Sec. 12. No officer or employee shall engage directly in any private business, vocation, or profession or be connected with any commercial, credit, agricultural or industrial undertaking without a written permission from the head of Department: Provided, That this prohibition will be absolute in the case of those officers and employees whose duties and responsibilities require that their entire time be at the disposal of the Government:....

From the respondent Rada's letters of explanation and their annexes, dated December 16, 1973 and June 27, 1974, respectively, and the letter and its annexes, dated August 12, 1974, filed by the complainant Rene P. Ramos, by way of rejoinder to Rada's explanation, undisputed fundamental facts emerge that justify us in dispensing with a full-blown investigation of this administrative case.

The respondent Rada receives a monthly salary of P267.75. On December 15, 1972 he was extended an appointment by the Avesco Marketing Corporation, thru its president, Jimmy Tang, as representative to manage and supervise real properties situated in Camarines Norte which were foreclosed by the corporation. Rada accepted the appointment and discharged his duties as administrator. The administrative complaint against Rada was filed with the Department of Justice on October 3, 1973. He requested permission to accept the appointment on October 27, 1973. It is not indicated that his acceptance and discharge of the duties of the position of administrator has at all impaired his efficiency as messenger; nor has it been shown that he did not observe regular office hours.

Indubitably, therefore, Rada has violated the civil service rule prohibiting government employees from engaging directly in a private business, vocation or profession or being connected with any commercial, credit, agricultural or industrial undertaking without a written permission from the head of the Department. But, indubitably, also, his private business connection has not resulted in any prejudice to the Government service. Thus, his violation of the rule — the lack of prior permission is a technical one, and he should be meted no more than the minimum imposable penalty, which is reprimand.

The duties of messenger Rada are generally ministerial which do not require that his entire day of 24 hours be at the disposal of the Government. Such being his situation, it would be to stifle his willingness to apply himself to a productive endeavor to augment his income, and to award a premium for slothfulness if he were to be banned from engaging in or being connected with a private undertaking outside of office hours and without foreseeable detriment to the Government service. His connection with Avesco Marketing Corporation need not be terminated, but he must secure a written permission from the Executive Judge of the Court of First Instance of Camarines Norte, who is hereby authorized to grant or revoke such permission, under such terms and conditions as will safeguard the best interests of the service, in general, and the court, in particular.

ACCORDINGLY, the respondent Moises R. Rada is adjudged guilty of a technical violation of Section 12 of Civil Service Rule XVIII, for which he is hereby reprimanded. He may however apply, if he so desires, for permission to resume his business connection with the corporation, in the manner above indicated.

Makasiar, Esguerra, Muñoz Palma and Martin, JJ., concur.

Teehankee, J., is on leave.

The Lawphil Project - Arellano Law Foundation

[Syllabus]

EN BANC

[G.R. No. 105938. September 20, 1996]

TEODORO R. REGALA, EDGARDO J. ANGARA, AVELINO V. CRUZ, JOSE C. CONCEPCION, ROGELIO A. VINLUAN, VICTOR P. LAZATIN, and EDUARDO U. ESCUETA, petitioners, vs. THE HONORABLE SANDIGANBAYAN, First Division, REPUBLIC OF THE PHILIPPINES, ACTING THROUGH THE PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, and RAUL S. ROCO, respondents.

[G.R. No. 108113. September 20, 1996]

PARAJA G. HAYUDINI, petitioner, vs. THE SANDIGANBAYAN and THE REPUBLIC OF THE PHILIPPINES, respondents.

D E C I S I O N

KAPUNAN, J.:

These cases touch the very cornerstone of every State's judicial system, upon which the workings of the contentious and adversarial system in the Philippine legal process are based - the sanctity of fiduciary duty in the client-lawyer relationship. The fiduciary duty of a counsel and advocate is also what makes the law profession a unique position of trust and confidence, which distinguishes it from any other calling. In this instance, we have no recourse but to uphold and strengthen the mantle of protection accorded to the confidentiality that proceeds from the performance of the lawyer's duty to his client.

The facts of the case are undisputed.

The matters raised herein are an offshoot of the institution of the Complaint on July 31, 1987 before the Sandiganbayan by the Republic of the Philippines, through the Presidential Commission on Good Government against Eduardo M. Cojuangco, Jr., as one of the principal defendants, for the recovery of alleged ill-gotten wealth, which includes shares of stocks in the named corporations in PCGG Case No. 33 (Civil Case No. 0033), entitled "Republic of the Philippines versus Eduardo Cojuangco, et al."[xviii][1]

Among the defendants named in the case are herein petitioners Teodoro Regala, Edgardo J. Angara, Avelino V. Cruz, Jose C. Concepcion, Rogelio A. Vinluan, Victor P. Lazatin, Eduardo U. Escueta and Paraja G. Hayudini, and herein private respondent Raul S. Roco, who all were then partners of the law firm Angara, Abello, Concepcion, Regala and Cruz Law Offices (hereinafter referred to as the ACCRA Law Firm). ACCRA Law Firm performed legal services for its clients, which included, among others, the organization and acquisition of business associations and/or organizations, with the correlative and incidental services where its members acted as incorporators, or simply, as stockholders. More specifically, in the performance of these services, the members of the law firm delivered to its client documents which substantiate the client's equity holdings, i.e., stock certificates endorsed in blank representing the shares registered in the client's name, and a blank deed of trust or assignment covering said shares. In the course of their dealings with their clients, the members of the law firm acquire information relative to the assets of clients as well as their personal and business circumstances. As members of the ACCRA Law Firm, petitioners and private respondent Raul Roco admit that they assisted in the organization and acquisition of the companies included in Civil Case No. 0033, and in keeping with the office practice, ACCRA lawyers acted as nominees-stockholders of the said corporations involved in sequestration proceedings.[xix][2]

On August 20, 1991, respondent Presidential Commission on Good Government (hereinafter referred to as respondent PCGG) filed a "Motion to Admit Third Amended Complaint" and "Third Amended Complaint" which excluded private respondent Raul S. Roco from the complaint in PCGG Case No. 33 as party-defendant.[xx][3] Respondent PCGG based its exclusion of private respondent Roco as party-defendant on his undertaking that he will reveal the identity of the principal/s for whom he acted as nominee/stockholder in the companies involved in PCGG Case No. 33.[xxi][4]

Petitioners were included in the Third Amended Complaint on the strength of the following allegations:

14. Defendants Eduardo Cojuangco, Jr., Edgardo J. Angara, Jose C. Concepcion, Teodoro Regala, Avelino V. Cruz, Rogelio A. Vinluan, Eduardo U. Escueta, Paraja G. Hayudini and Raul Roco of the Angara Concepcion Cruz Regala and Abello law offices (ACCRA) plotted, devised, schemed. conspired and confederated with each other in setting up, through the use of the coconut levy funds, the financial and corporate framework and structures that led to the establishment of UCPB, UNICOM, COCOLIFE, COCOMARK, CIC, and more than twenty other coconut levy funded corporations, including the acquisition of San Miguel Corporation shares and its institutionalization through presidential directives of the coconut monopoly. Through insidious means and machinations, ACCRA, being the wholly-owned investment arm, ACCRA Investments Corporation, became the holder of approximately fifteen million shares representing roughly 3.3% of the total outstanding capital stock of UCPB as of 31 March 1987. This ranks ACCRA Investments Corporation number 44 among the top 100 biggest stockholders of UCPB which has approximately 1,400,000 shareholders. On the other hand, corporate books show the name Edgardo J. Angara as holding approximately 3,744 shares as of February, 1984.[xxii][5]

In their answer to the Expanded Amended Complaint, petitioners ACCRA lawyers alleged that:

4.4. Defendants-ACCRA lawyers’ participation in the acts with which their co-defendants are charged, was in furtherance of legitimate lawyering.

4.4.1. In the course of rendering professional and legal services to clients, defendants-ACCRA lawyers, Jose C. Concepcion, Teodoro D. Regala, Rogelio A. Vinluan and Eduardo U. Escueta, became holders of shares of stock in the corporations listed under their respective names in Annex ‘A’ of the expanded Amended Complaint as incorporating or acquiring stockholders only and, as such, they do not claim any proprietary interest in the said shares of stock.

4.5. Defendant ACCRA-lawyer Avelino V. Cruz was one of the incorporators in 1976 of Mermaid Marketing Corporation, which was organized for legitimate business purposes not related to the allegations of the expanded Amended Complaint. However, he has long ago transferred any material interest therein and therefore denies that the ‘shares’ appearing in his name in Annex ‘A’ of the expanded Amended Complaint are his assets.[xxiii][6]

Petitioner Paraja Hayudini, who had separated from ACCRA law firm, filed a separate answer denying the allegations in the complaint implicating him in the alleged ill-gotten wealth.[xxiv][7]

Petitioners ACCRA lawyers subsequently filed their "COMMENT AND/OR OPPOSITION" dated October 8, 1991 with Counter-Motion that respondent PCGG similarly grant the same treatment to them (exclusion as parties-defendants) as accorded private respondent Roco.[xxv][8] The Counter-Motion for dropping petitioners from the complaint was duly set for hearing on October 18, 1991 in accordance with the requirements of Rule 15 of the Rules of Court.

In its "Comment," respondent PCGG set the following conditions precedent for the exclusion of petitioners, namely: (a) the disclosure of the identity of its clients; (b) submission of documents substantiating the lawyer-client relationship; and (c) the submission of the deeds of assignments petitioners executed in favor of its clients covering their respective shareholdings.[xxvi][9]

Consequently, respondent PCGG presented supposed proof to substantiate compliance by private respondent Roco of the conditions precedent to warrant the latter's exclusion as party-defendant in PCGG Case No. 33, to wit: (a) Letter to respondent PCGG of the counsel of respondent Roco dated May 24, 1989 reiterating a previous request for reinvestigation by the PCGG in PCGG Case No. 33; (b) Affidavit dated March 8, 1989 executed by private respondent Roco as Attachment to the letter aforestated in (a); and (c) Letter of the Roco, Bunag, and Kapunan Law Offices dated September 21, 1988 to the respondent PCGG in behalf of private respondent Roco originally requesting the reinvestigation and/or re-examination of the evidence of the PCGG against Roco in its Complaint in PCGG Case No. 33.[xxvii][10]

It is noteworthy that during said proceedings, private respondent Roco did not refute petitioners' contention that he did actually not reveal the identity of the client involved in PCGG Case No. 33, nor had he undertaken to reveal the identity of the client for whom he acted as nominee-stockholder.[xxviii][11]

On March 18, 1992, respondent Sandiganbayan promulgated the Resolution, herein questioned, denying the exclusion of petitioners in PCGG Case No. 33, for their refusal to comply with the conditions required by respondent PCGG. It held:

x x x.

ACCRA lawyers may take the heroic stance of not revealing the identity of the client for whom they have acted, i.e. their principal, and that will be their choice. But until they do identify their clients, considerations of whether or not the privilege claimed by the ACCRA lawyers exists cannot even begin to be debated. The ACCRA lawyers cannot excuse themselves from the consequences of their acts until they have begun to establish the basis for recognizing the privilege; the existence and identity of the client.

This is what appears to be the cause for which they have been impleaded by the PCGG as defendants herein.

5. The PCGG is satisfied that defendant Roco has demonstrated his agency and that Roco has apparently identified his principal, which revelation could show the lack of cause against him. This in turn has allowed the PCGG to exercise its power both under the rules of Agency and under Section 5 of E.O. No. 14-A in relation to the Supreme Court's ruling in Republic v. Sandiganbayan (173 SCRA 72).

The PCGG has apparently offered to the ACCRA lawyers the same conditions availed of by Roco; full disclosure in exchange for exclusion from these proceedings (par. 7, PCGG's COMMENT dated November 4, 1991). The ACCRA lawyers have preferred not to make the disclosures required by the PCGG.

The ACCRA lawyers cannot, therefore, begrudge the PCGG for keeping them as party defendants. In the same vein, they cannot compel the PCGG to be accorded the same treatment accorded to Roco.

Neither can this Court.

WHEREFORE, the Counter Motion dated October 8, 1991 filed by the ACCRA lawyers and joined in by Atty. Paraja G. Hayudini for the same treatment by the PCGG as accorded to Raul S. Roco is DENIED for lack of merit.[xxix][12]

ACCRA lawyers moved for a reconsideration of the above resolution but the same was denied by the respondent Sandiganbayan. Hence, the ACCRA lawyers filed the petition for certiorari, docketed as G.R. No. 105938, invoking the following grounds:

The Honorable Sandiganbayan gravely abused its discretion in subjecting petitioners ACCRA lawyers who undisputably acted as lawyers in serving as nominee-stockholders, to the strict application of the law of agency.

The Honorable Sandiganbayan committed grave abuse of discretion in not considering petitioners ACCRA lawyers and Mr. Roco as similarly situated and, therefore, deserving of equal treatment.

1. There is absolutely no evidence that Mr. Roco had revealed, or had undertaken to reveal, the identities of the client(s) for whom he acted as nominee-stockholder.

2. Even assuming that Mr. Roco had revealed, or had undertaken to reveal, the identities of the client(s), the disclosure does not constitute a substantial distinction as would make the classification reasonable under the equal protection clause.

3. Respondent Sandiganbayan sanctioned favoritism and undue preference in favor of Mr. Roco in violation of the equal protection clause.

III

The Honorable Sandiganbayan committed grave abuse of discretion in not holding that, under the facts of this case, the attorney-client privilege prohibits petitioners ACCRA lawyers from revealing the identity of their client(s) and the other information requested by the PCGG.

1. Under the peculiar facts of this case, the attorney-client privilege includes the identity of the client(s).

2. The factual disclosures required by the PCGG are not limited to the identity of petitioners ACCRA lawyers' alleged client(s) but extend to other privileged matters.

The Honorable Sandiganbayan committed grave abuse of discretion in not requiring that the dropping of party-defendants by the PCGG must be based on reasonable and just grounds and with due consideration to the constitutional right of petitioners ACCRA lawyers to the equal protection of the law.

Petitioner Paraja G. Hayudini, likewise, filed his own motion for reconsideration of the March 18, 1991 resolution which was denied by respondent Sandiganbayan. Thus, he filed a separate petition for certiorari, docketed as G.R. No. 108113, assailing respondent Sandiganbayan's resolution on essentially the same grounds averred by petitioners in G.R. No. 105938.

Petitioners contend that the exclusion of respondent Roco as party-defendant in PCGG Case No. 33 grants him a favorable treatment, on the pretext of his alleged undertaking to divulge the identity of his client, giving him an advantage over them who are in the same footing as partners in the ACCRA law firm. Petitioners further argue that even granting that such an undertaking has been assumed by private respondent Roco, they are prohibited from revealing the identity of their principal under their sworn mandate and fiduciary duty as lawyers to uphold at all times the confidentiality of information obtained during such lawyer-client relationship.

Respondent PCGG, through its counsel, refutes petitioners' contention, alleging that the revelation of the identity of the client is not within the ambit of the lawyer-client confidentiality privilege, nor are the documents it required (deeds of assignment) protected, because they are evidence of nominee status.[xxx][13]

In his comment, respondent Roco asseverates that respondent PCGG acted correctly in excluding him as party-defendant because he "(Roco) has not filed an Answer. PCGG had therefore the right to dismiss Civil Case No. 0033 as to Roco `without an order of court by filing a notice of dismissal,'"[xxxi][14] and he has undertaken to identify his principal.[xxxii][15]

Petitioners' contentions are impressed with merit.

It is quite apparent that petitioners were impleaded by the PCGG as co-defendants to force them to disclose the identity of their clients. Clearly, respondent PCGG is not after petitioners but the “bigger fish” as they say in street parlance. This ploy is quite clear from the PCGG’s willingness to cut a deal with petitioners -- the names of their clients in exchange for exclusion from the complaint. The statement of the Sandiganbayan in its questioned resolution dated March 18, 1992 is explicit:

ACCRA lawyers may take the heroic stance of not revealing the identity of the client for whom they have acted, i.e., their principal, and that will be their choice. But until they do identify their clients, considerations of whether or not the privilege claimed by the ACCRA lawyers exists cannot even begin to be debated. The ACCRA lawyers cannot excuse themselves from the consequences of their acts until they have begun to establish the basis for recognizing the privilege; the existence and identity of the client.

This is what appears to be the cause for which they have been impleaded by the PCGG as defendants herein. (Underscoring ours)

In a closely related case, Civil Case No. 0110 of the Sandiganbayan, Third Division, entitled “Primavera Farms, Inc., et al. vs. Presidential Commission on Good Government” respondent PCGG, through counsel Mario Ongkiko, manifested at the hearing on December 5, 1991 that the PCGG wanted to establish through the ACCRA that their “so called client is Mr. Eduardo Cojuangco”; that “it was Mr. Eduardo Cojuangco who furnished all the monies to those subscription payments in corporations included in Annex “A” of the Third Amended Complaint; that the ACCRA lawyers executed deeds of trust and deeds of assignment, some in the name of particular persons, some in blank.

We quote Atty. Ongkiko:

ATTY. ONGKIKO:

With the permission of this Hon. Court. I propose to establish through these ACCRA lawyers that, one, their so-called client is Mr. Eduardo Cojuangco. Second, it was Mr. Eduardo Cojuangco who furnished all the monies to these subscription payments of these corporations who are now the petitioners in this case. Third, that these lawyers executed deeds of trust, some in the name of a particular person, some in blank. Now, these blank deeds are important to our claim that some of the shares are actually being held by the nominees for the late President Marcos. Fourth, they also executed deeds of assignment and some of these assignments have also blank assignees. Again, this is important to our claim that some of the shares are for Mr. Cojuangco and some are for Mr. Marcos. Fifth, that most of these corporations are really just paper corporations. Why do we say that? One: There are no really fixed sets of officers, no fixed sets of directors at the time of incorporation and even up to 1986, which is the crucial year. And not only that, they have no permits from the municipal authorities in Makati. Next, actually all their addresses now are care of Villareal Law Office. They really have no address on records. These are some of the principal things that we would ask of these nominees stockholders, as they called themselves.[xxxiii][16]

It would seem that petitioners are merely standing in for their clients as defendants in the complaint. Petitioners are being prosecuted solely on the basis of activities and services performed in the course of their duties as lawyers. Quite obviously, petitioners’ inclusion as co-defendants in the complaint is merely being used as leverage to compel them to name their clients and consequently to enable the PCGG to nail these clients. Such being the case, respondent PCGG has no valid cause of action as against petitioners and should exclude them from the Third Amended Complaint.

The nature of lawyer-client relationship is premised on the Roman Law concepts of locatio conductio operarum (contract of lease of services) where one person lets his services and another hires them without reference to the object of which the services are to be performed, wherein lawyers' services may be compensated by honorarium or for hire,[xxxiv][17] and mandato (contract of agency) wherein a friend on whom reliance could be placed makes a contract in his name, but gives up all that he gained by the contract to the person who requested him.[xxxv][18] But the lawyer-client relationship is more than that of the principal-agent and lessor-lessee.

In modern day perception of the lawyer-client relationship, an attorney is more than a mere agent or servant, because he possesses special powers of trust and confidence reposed on him by his client.[xxxvi][19] A lawyer is also as independent as the judge of the court, thus his powers are entirely different from and superior to those of an ordinary agent.[xxxvii][20] Moreover, an attorney also occupies what may be considered as a "quasi-judicial office" since he is in fact an officer of the Court[xxxviii][21] and exercises his judgment in the choice of courses of action to be taken favorable to his client.

Thus, in the creation of lawyer-client relationship, there are rules, ethical conduct and duties that breathe life into it, among those, the fiduciary duty to his client which is of a very delicate, exacting and confidential character, requiring a very high degree of fidelity and good faith,[xxxix][22] that is required by reason of necessity and public interest[xl][23] based on the hypothesis that abstinence from seeking legal advice in a good cause is an evil which is fatal to the administration of justice.[xli][24]

It is also the strict sense of fidelity of a lawyer to his client that distinguishes him from any other professional in society. This conception is entrenched and embodies centuries of established and stable tradition.[xlii][25] In Stockton v. Ford,[xliii][26] the U.S. Supreme Court held:

There are few of the business relations of life involving a higher trust and confidence than that of attorney and client, or generally speaking, one more honorably and faithfully discharged; few more anxiously guarded by the law, or governed by the sterner principles of morality and justice; and it is the duty of the court to administer them in a corresponding spirit, and to be watchful and industrious, to see that confidence thus reposed shall not be used to the detriment or prejudice of the rights of the party bestowing it.[xliv][27]

In our jurisdiction, this privilege takes off from the old Code of Civil Procedure enacted by the Philippine Commission on August 7, 1901. Section 383 of the Code specifically “forbids counsel, without authority of his client to reveal any communication made by the client to him or his advice given thereon in the course of professional employment.”[xlv][28] Passed on into various provisions of the Rules of Court, the attorney-client privilege, as currently worded provides:

Sec. 24. Disqualification by reason of privileged communication. - The following persons cannot testify as to matters learned in confidence in the following cases:

x x x

An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, can an attorney’s secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity.[xlvi][29]

Further, Rule 138 of the Rules of Court states:

Sec. 20. It is the duty of an attorney:

(e) to maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his client’s business except from him or with his knowledge and approval.

This duty is explicitly mandated in Canon 17 of the Code of Professional Responsibility which provides that:

Canon 17. A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him.

Canon 15 of the Canons of Professional Ethics also demands a lawyer's fidelity to client:

The lawyer owes "entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability," to the end that nothing be taken or be withheld from him, save by the rules of law, legally applied. No fear of judicial disfavor or public popularity should restrain him from the full discharge of his duty. In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. But it is steadfastly to be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of attorney does not permit, much less does it demand of him for any client, violation of law or any manner of fraud or chicanery. He must obey his own conscience and not that of his client.

Considerations favoring confidentiality in lawyer-client relationships are many and serve several constitutional and policy concerns. In the constitutional sphere, the privilege gives flesh to one of the most sacrosanct rights available to the accused, the right to counsel. If a client were made to choose between legal representation without effective communication and disclosure and legal representation with all his secrets revealed then he might be compelled, in some instances, to either opt to stay away from the judicial system or to lose the right to counsel. If the price of disclosure is too high, or if it amounts to self incrimination, then the flow of information would be curtailed thereby rendering the right practically nugatory. The threat this represents against another sacrosanct individual right, the right to be presumed innocent is at once self-evident.

Encouraging full disclosure to a lawyer by one seeking legal services opens the door to a whole spectrum of legal options which would otherwise be circumscribed by limited information engendered by a fear of disclosure. An effective lawyer-client relationship is largely dependent upon the degree of confidence which exists between lawyer and client which in turn requires a situation which encourages a dynamic and fruitful exchange and flow of information. It necessarily follows that in order to attain effective representation, the lawyer must invoke the privilege not as a matter of option but as a matter of duty and professional responsibility.

The question now arises whether or not this duty may be asserted in refusing to disclose the name of petitioners' client(s) in the case at bar. Under the facts and circumstances obtaining in the instant case, the answer must be in the affirmative.

As a matter of public policy, a client’s identity should not be shrouded in mystery.[xlvii][30] Under this premise, the general rule in our jurisdiction as well as in the United States is that a lawyer may not invoke the privilege and refuse to divulge the name or identity of his client.[xlviii][31]

The reasons advanced for the general rule are well established.

First, the court has a right to know that the client whose privileged information is sought to be protected is flesh and blood.

Second, the privilege begins to exist only after the attorney-client relationship has been established. The attorney-client privilege does not attach until there is a client.

Third, the privilege generally pertains to the subject matter of the relationship.

Finally, due process considerations require that the opposing party should, as a general rule, know his adversary. “A party suing or sued is entitled to know who his opponent is.”[xlix][32] He cannot be obliged to grope in the dark against unknown forces.[l][33]

Notwithstanding these considerations, the general rule is however qualified by some important exceptions.

1) Client identity is privileged where a strong probability exists that revealing the client’s name would implicate that client in the very activity for which he sought the lawyer’s advice.

In Ex-Parte Enzor,[li][34] a state supreme court reversed a lower court order requiring a lawyer to divulge the name of her client on the ground that the subject matter of the relationship was so closely related to the issue of the client’s identity that the privilege actually attached to both. In Enzor, the unidentified client, an election official, informed his attorney in confidence that he had been offered a bribe to violate election laws or that he had accepted a bribe to that end. In her testimony, the attorney revealed that she had advised her client to count the votes correctly, but averred that she could not remember whether her client had been, in fact, bribed. The lawyer was cited for contempt for her refusal to reveal his client’s identity before a grand jury. Reversing the lower court’s contempt orders, the state supreme court held that under the circumstances of the case, and under the exceptions described above, even the name of the client was privileged.

U.S. v. Hodge and Zweig,[lii][35] involved the same exception, i.e. that client identity is privileged in those instances where a strong probability exists that the disclosure of the client's identity would implicate the client in the very criminal activity for which the lawyer’s legal advice was obtained.

The Hodge case involved federal grand jury proceedings inquiring into the activities of the “Sandino Gang,” a gang involved in the illegal importation of drugs in the United States. The respondents, law partners, represented key witnesses and suspects including the leader of the gang, Joe Sandino.

In connection with a tax investigation in November of 1973, the IRS issued summons to Hodge and Zweig, requiring them to produce documents and information regarding payment received by Sandino on behalf of any other person, and vice versa. The lawyers refused to divulge the names. The Ninth Circuit of the United States Court of Appeals, upholding non-disclosure under the facts and circumstances of the case, held:

A client’s identity and the nature of that client’s fee arrangements may be privileged where the person invoking the privilege can show that a strong probability exists that disclosure of such information would implicate that client in the very criminal activity for which legal advice was sought Baird v. Koerner, 279 F.2d at 680. While in Baird Owe enunciated this rule as a matter of California law, the rule also reflects federal law. Appellants contend that the Baird exception applies to this case.

The Baird exception is entirely consonant with the principal policy behind the attorney-client privilege. “In order to promote freedom of consultation of legal advisors by clients, the apprehension of compelled disclosure from the legal advisors must be removed; hence, the law must prohibit such disclosure except on the client’s consent.” 8 J. Wigmore, supra sec. 2291, at 545. In furtherance of this policy, the client’s identity and the nature of his fee arrangements are, in exceptional cases, protected as confidential communications.[liii][36]

2) Where disclosure would open the client to civil liability, his identity is privileged. For instance, the peculiar facts and circumstances of Neugass v. Terminal Cab Corporation,[liv][37] prompted the New York Supreme Court to allow a lawyer’s claim to the effect that he could not reveal the name of his client because this would expose the latter to civil litigation.

In the said case, Neugass, the plaintiff, suffered injury when the taxicab she was riding, owned by respondent corporation, collided with a second taxicab, whose owner was unknown. Plaintiff brought action both against defendant corporation and the owner of the second cab, identified in the information only as John Doe. It turned out that when the attorney of defendant corporation appeared on preliminary examination, the fact was somehow revealed that the lawyer came to know the name of the owner of the second cab when a man, a client of the insurance company, prior to the institution of legal action, came to him and reported that he was involved in a car accident. It was apparent under the circumstances that the man was the owner of the second cab. The state supreme court held that the reports were clearly made to the lawyer in his professional capacity. The court said:

That his employment came about through the fact that the insurance company had hired him to defend its policyholders seems immaterial. The attorney in such cases is clearly the attorney for the policyholder when the policyholder goes to him to report an occurrence contemplating that it would be used in an action or claim against him.[lv][38]

x x x xxx xxx.

All communications made by a client to his counsel, for the purpose of professional advice or assistance, are privileged, whether they relate to a suit pending or contemplated, or to any other matter proper for such advice or aid; x x x And whenever the communication made, relates to a matter so connected with the employment as attorney or counsel as to afford presumption that it was the ground of the address by the client, then it is privileged from disclosure. xxx.

It appears... that the name and address of the owner of the second cab came to the attorney in this case as a confidential communication. His client is not seeking to use the courts, and his address cannot be disclosed on that theory, nor is the present action pending against him as service of the summons on him has not been effected. The objections on which the court reserved decision are sustained.[lvi][39]

In the case of Matter of Shawmut Mining Company,[lvii][40] the lawyer involved was required by a lower court to disclose whether he represented certain clients in a certain transaction. The purpose of the court’s request was to determine whether the unnamed persons as interested parties were connected with the purchase of properties involved in the action. The lawyer refused and brought the question to the State Supreme Court. Upholding the lawyer’s refusal to divulge the names of his clients the court held:

If it can compel the witness to state, as directed by the order appealed from, that he represented certain persons in the purchase or sale of these mines, it has made progress in establishing by such evidence their version of the litigation. As already suggested, such testimony by the witness would compel him to disclose not only that he was attorney for certain people, but that, as the result of communications made to him in the course of such employment as such attorney, he knew that they were interested in certain transactions. We feel sure that under such conditions no case has ever gone to the length of compelling an attorney, at the instance of a hostile litigant, to disclose not only his retainer, but the nature of the transactions to which it related, when such information could be made the basis of a suit against his client.[lviii][41]

3) Where the government’s lawyers have no case against an attorney’s client unless, by revealing the client’s name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individual of a crime, the client’s name is privileged.

In Baird vs Korner,[lix][42] a lawyer was consulted by the accountants and the lawyer of certain undisclosed taxpayers regarding steps to be taken to place the undisclosed taxpayers in a favorable position in case criminal charges were brought against them by the U.S. Internal Revenue Service (IRS).

It appeared that the taxpayers’ returns of previous years were probably incorrect and the taxes understated. The clients themselves were unsure about whether or not they violated tax laws and sought advice from Baird on the hypothetical possibility that they had. No investigation was then being undertaken by the IRS of the taxpayers. Subsequently, the attorney of the taxpayers delivered to Baird the sum of $12,706.85, which had been previously assessed as the tax due, and another amount of money representing his fee for the advice given. Baird then sent a check for $12,706.85 to the IRS in Baltimore, Maryland, with a note explaining the payment, but without naming his clients. The IRS demanded that Baird identify the lawyers, accountants, and other clients involved. Baird refused on the ground that he did not know their names, and declined to name the attorney and accountants because this constituted privileged communication. A petition was filed for the enforcement of the IRS summons. For Baird’s repeated refusal to name his clients he was found guilty of civil contempt. The Ninth Circuit Court of Appeals held that, a lawyer could not be forced to reveal the names of clients who employed him to pay sums of money to the government voluntarily in settlement of undetermined income taxes, unsued on, and with no government audit or investigation into that client’s income tax liability pending. The court emphasized the exception that a client’s name is privileged when so much has been revealed concerning the legal services rendered that the disclosure of the client’s identity exposes him to possible investigation and sanction by government agencies. The Court held:

The facts of the instant case bring it squarely within that exception to the general rule. Here money was received by the government, paid by persons who thereby admitted they had not paid a sufficient amount in income taxes some one or more years in the past. The names of the clients are useful to the government for but one purpose - to ascertain which taxpayers think they were delinquent, so that it may check the records for that one year or several years. The voluntary nature of the payment indicates a belief by the taxpayers that more taxes or interest or penalties are due than the sum previously paid, if any. It indicates a feeling of guilt for nonpayment of taxes, though whether it is criminal guilt is undisclosed. But it may well be the link that could form the chain of testimony necessary to convict an individual of a federal crime. Certainly the payment and the feeling of guilt are the reasons the attorney here involved was employed - to advise his clients what, under the circumstances, should be done.[lx][43]

Apart from these principal exceptions, there exist other situations which could qualify as exceptions to the general rule.

For example, the content of any client communication to a lawyer lies within the privilege if it is relevant to the subject matter of the legal problem on which the client seeks legal assistance.[lxi][44] Moreover, where the nature of the attorney-client relationship has been previously disclosed and it is the identity which is intended to be confidential, the identity of the client has been held to be privileged, since such revelation would otherwise result in disclosure of the entire transaction.[lxii][45]

Summarizing these exceptions, information relating to the identity of a client may fall within the ambit of the privilege when the client’s name itself has an independent significance, such that disclosure would then reveal client confidences.[lxiii][46]

The circumstances involving the engagement of lawyers in the case at bench, therefore, clearly reveal that the instant case falls under at least two exceptions to the general rule. First, disclosure of the alleged client's name would lead to establish said client's connection with the very fact in issue of the case, which is privileged information, because the privilege, as stated earlier, protects the subject matter or the substance (without which there would be no attorney-client relationship).

The link between the alleged criminal offense and the legal advice or legal service sought was duly established in the case at bar, by no less than the PCGG itself. The key lies in the three specific conditions laid down by the PCGG which constitutes petitioners’ ticket to non-prosecution should they accede thereto:

(a) the disclosure of the identity of its clients;

(b) submission of documents substantiating the lawyer-client relationship; and

(c) the submission of the deeds of assignment petitioners executed in favor of their clients covering their respective shareholdings.

From these conditions, particularly the third, we can readily deduce that the clients indeed consulted the petitioners, in their capacity as lawyers, regarding the financial and corporate structure, framework and set-up of the corporations in question. In turn, petitioners gave their professional advice in the form of, among others, the aforementioned deeds of assignment covering their clients’ shareholdings.

There is no question that the preparation of the aforestated documents was part and parcel of petitioners’ legal service to their clients. More important, it constituted an integral part of their duties as lawyers. Petitioners, therefore, have a legitimate fear that identifying their clients would implicate them in the very activity for which legal advice had been sought, i.e., the alleged accumulation of ill-gotten wealth in the aforementioned corporations.

Furthermore, under the third main exception, revelation of the client's name would obviously provide the necessary link for the prosecution to build its case, where none otherwise exists. It is the link, in the words of Baird, “that would inevitably form the chain of testimony necessary to convict the (client) of a... crime."[lxiv][47]

An important distinction must be made between a case where a client takes on the services of an attorney for illicit purposes, seeking advice about how to go around the law for the purpose of committing illegal activities and a case where a client thinks he might have previously committed something illegal and consults his attorney about it. The first case clearly does not fall within the privilege because the same cannot be invoked for purposes illegal. The second case falls within the exception because whether or not the act for which the advice turns out to be illegal, his name cannot be used or disclosed if the disclosure leads to evidence, not yet in the hands of the prosecution, which might lead to possible action against him.

These cases may be readily distinguished, because the privilege cannot be invoked or used as a shield for an illegal act, as in the first example; while the prosecution may not have a case against the client in the second example and cannot use the attorney client relationship to build up a case against the latter. The reason for the first rule is that it is not within the professional character of a lawyer to give advice on the commission of a crime.[lxv][48] The reason for the second has been stated in the cases above discussed and are founded on the same policy grounds for which the attorney-client privilege, in general, exists.

In Matter of Shawmut Mining Co., supra, the appellate court therein stated that "under such conditions no case has ever yet gone to the length of compelling an attorney, at the instance of a hostile litigant, to disclose not only his retainer, but the nature of the transactions to which it related, when such information could be made the basis of a suit against his client.”[lxvi][49] "Communications made to an attorney in the course of any personal employment, relating to the subject thereof, and which may be supposed to be drawn out in consequence of the relation in which the parties stand to each other, are under the seal of confidence and entitled to protection as privileged communications."[lxvii][50] Where the communicated information, which clearly falls within the privilege, would suggest possible criminal activity but there would be not much in the information known to the prosecution which would sustain a charge except that revealing the name of the client would open up other privileged information which would substantiate the prosecution’s suspicions, then the client’s identity is so inextricably linked to the subject matter itself that it falls within the protection. The Baird exception, applicable to the instant case, is consonant with the principal policy behind the privilege, i.e., that for the purpose of promoting freedom of consultation of legal advisors by clients, apprehension of compelled disclosure from attorneys must be eliminated. This exception has likewise been sustained in In re Grand Jury Proceedings[lxviii][51] and Tillotson v. Boughner.[lxix][52] What these cases unanimously seek to avoid is the exploitation of the general rule in what may amount to a fishing expedition by the prosecution.

There are, after all, alternative sources of information available to the prosecutor which do not depend on utilizing a defendant's counsel as a convenient and readily available source of information in the building of a case against the latter. Compelling disclosure of the client's name in circumstances such as the one which exists in the case at bench amounts to sanctioning fishing expeditions by lazy prosecutors and litigants which we cannot and will not countenance. When the nature of the transaction would be revealed by disclosure of an attorney's retainer, such retainer is obviously protected by the privilege.[lxx][53] It follows that petitioner attorneys in the instant case owe their client(s) a duty and an obligation not to disclose the latter's identity which in turn requires them to invoke the privilege.

In fine, the crux of petitioners' objections ultimately hinges on their expectation that if the prosecution has a case against their clients, the latter's case should be built upon evidence painstakingly gathered by them from their own sources and not from compelled testimony requiring them to reveal the name of their clients, information which unavoidably reveals much about the nature of the transaction which may or may not be illegal. The logical nexus between name and nature of transaction is so intimate in this case that it would be difficult to simply dissociate one from the other. In this sense, the name is as much "communication" as information revealed directly about the transaction in question itself, a communication which is clearly and distinctly privileged. A lawyer cannot reveal such communication without exposing himself to charges of violating a principle which forms the bulwark of the entire attorney-client relationship.

The uberrimei fidei relationship between a lawyer and his client therefore imposes a strict liability for negligence on the former. The ethical duties owing to the client, including confidentiality, loyalty, competence, diligence as well as the responsibility to keep clients informed and protect their rights to make decisions have been zealously sustained. In Milbank, Tweed, Hadley and McCloy v. Boon,[lxxi][54] the US Second District Court rejected the plea of the petitioner law firm that it breached its fiduciary duty to its client by helping the latter's former agent in closing a deal for the agent's benefit only after its client hesitated in proceeding with the transaction, thus causing no harm to its client. The Court instead ruled that breaches of a fiduciary relationship in any context comprise a special breed of cases that often loosen normally stringent requirements of causation and damages, and found in favor of the client.

To the same effect is the ruling in Searcy, Denney, Scarola, Barnhart, and Shipley P.A. v. Scheller[lxxii][55] requiring strict obligation of lawyers vis-a-vis clients. In this case, a contingent fee lawyer was fired shortly before the end of completion of his work, and sought payment quantum meruit of work done. The court, however, found that the lawyer was fired for cause after he sought to pressure his client into signing a new fee agreement while settlement negotiations were at a critical stage. While the client found a new lawyer during the interregnum, events forced the client to settle for less than what was originally offered. Reiterating the principle of fiduciary duty of lawyers to clients in Meinhard v. Salmon[lxxiii][56] famously attributed to Justice Benjamin Cardozo that "Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior," the US Court found that the lawyer involved was fired for cause, thus deserved no attorney's fees at all.

The utmost zeal given by Courts to the protection of the lawyer-client confidentiality privilege and lawyer's loyalty to his client is evident in the duration of the protection, which exists not only during the relationship, but extends even after the termination of the relationship.[lxxiv][57]

Such are the unrelenting duties required of lawyers vis-a-vis their clients because the law, which the lawyers are sworn to uphold, in the words of Oliver Wendell Holmes,[lxxv][58] "xxx is an exacting goddess, demanding of her votaries in intellectual and moral discipline." The Court, no less, is not prepared to accept respondents’ position without denigrating the noble profession that is lawyering, so extolled by Justice Holmes in this wise:

Every calling is great when greatly pursued. But what other gives such scope to realize the spontaneous energy of one's soul? In what other does one plunge so deep in the stream of life - so share its passions its battles, its despair, its triumphs, both as witness and actor? x x x But that is not all. What a subject is this in which we are united - this abstraction called the Law, wherein as in a magic mirror, we see reflected, not only in our lives, but the lives of all men that have been. When I think on this majestic theme my eyes dazzle. If we are to speak of the law as our mistress, we who are here know that she is a mistress only to be won with sustained and lonely passion - only to be won by straining all the faculties by which man is likened to God.

We have no choice but to uphold petitioners' right not to reveal the identity of their clients under pain of the breach of fiduciary duty owing to their clients, because the facts of the instant case clearly fall within recognized exceptions to the rule that the client’s name is not privileged information.

If we were to sustain respondent PCGG that the lawyer-client confidential privilege under the circumstances obtaining here does not cover the identity of the client, then it would expose the lawyers themselves to possible litigation by their clients in view of the strict fiduciary responsibility imposed on them in the exercise of their duties.

The complaint in Civil Case No. 0033 alleged that the defendants therein, including herein petitioners and Eduardo Cojuangco, Jr. conspired with each other in setting up through the use of coconut levy funds the financial and corporate framework and structures that led to the establishment of UCPB, UNICOM and others and that through insidious means and machinations, ACCRA, using its wholly-owned investment arm, ACCRA Investments Corporation, became the holder of approximately fifteen million shares representing roughly 3.3% of the total capital stock of UCPB as of 31 March 1987. The PCGG wanted to establish through the ACCRA lawyers that Mr. Cojuangco is their client and it was Cojuangco who furnished all the monies to the subscription payment; hence, petitioners acted as dummies, nominees and/or agents by allowing themselves, among others, to be used as instrument in accumulating ill-gotten wealth through government concessions, etc., which acts constitute gross abuse of official position and authority, flagrant breach of public trust, unjust enrichment, violation of the Constitution and laws of the Republic of the Philippines.

By compelling petitioners, not only to reveal the identity of their clients, but worse, to submit to the PCGG documents substantiating the client-lawyer relationship, as well as deeds of assignment petitioners executed in favor of its clients covering their respective shareholdings, the PCGG would exact from petitioners a link “that would inevitably form the chain of testimony necessary to convict the (client) of a crime.”

III

In response to petitioners' last assignment of error, respondents allege that the private respondent was dropped as party defendant not only because of his admission that he acted merely as a nominee but also because of his undertaking to testify to such facts and circumstances "as the interest of truth may require, which includes... the identity of the principal."[lxxvi][59]

First, as to the bare statement that private respondent merely acted as a lawyer and nominee, a statement made in his out-of-court settlement with the PCGG, it is sufficient to state that petitioners have likewise made the same claim not merely out-of- court but also in their Answer to plaintiff's Expanded Amended Complaint, signed by counsel, claiming that their acts were made in furtherance of "legitimate lawyering.”[lxxvii][60] Being "similarly situated" in this regard, public respondents must show that there exist other conditions and circumstances which would warrant their treating the private respondent differently from petitioners in the case at bench in order to evade a violation of the equal protection clause of the Constitution.

To this end, public respondents contend that the primary consideration behind their decision to sustain the PCGG's dropping of private respondent as a defendant was his promise to disclose the identities of the clients in question. However, respondents failed to show - and absolutely nothing exists in the records of the case at bar - that private respondent actually revealed the identity of his client(s) to the PCGG. Since the undertaking happens to be the leitmotif of the entire arrangement between Mr. Roco and the PCGG, an undertaking which is so material as to have justified PCGG's special treatment exempting the private respondent from prosecution, respondent Sandiganbayan should have required proof of the undertaking more substantial than a "bare assertion" that private respondent did indeed comply with the undertaking. Instead, as manifested by the PCGG, only three documents were submitted for the purpose, two of which were mere requests for re-investigation and one simply disclosed certain clients which petitioners (ACCRA lawyers) were themselves willing to reveal. These were clients to whom both petitioners and private respondent rendered legal services while all of them were partners at ACCRA, and were not the clients which the PCGG wanted disclosed for the alleged questioned transactions.[lxxviii][61]

To justify the dropping of the private respondent from the case or the filing of the suit in the respondent court without him, therefore, the PCGG should conclusively show that Mr. Roco was treated as a species apart from the rest of the ACCRA lawyers on the basis of a classification which made substantial distinctions based on real differences. No such substantial distinctions exist from the records of the case at bench, in violation of the equal protection clause.

The equal protection clause is a guarantee which provides a wall of protection against uneven application of statutes and regulations. In the broader sense, the guarantee operates against uneven application of legal norms so that all persons under similar circumstances would be accorded the same treatment.[lxxix][62] Those who fall within a particular class ought to be treated alike not only as to privileges granted but also as to the liabilities imposed.

x x x. What is required under this constitutional guarantee is the uniform operation of legal norms so that all persons under similar circumstances would be accorded the same treatment both in the privileges conferred and the liabilities imposed. As was noted in a recent decision: ‘Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which if not identical are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding the rest.[lxxx][63]

We find that the condition precedent required by the respondent PCGG of the petitioners for their exclusion as parties-defendants in PCGG Case No. 33 violates the lawyer-client confidentiality privilege. The condition also constitutes a transgression by respondents Sandiganbayan and PCGG of the equal protection clause of the Constitution.[lxxxi][64] It is grossly unfair to exempt one similarly situated litigant from prosecution without allowing the same exemption to the others. Moreover, the PCGG’s demand not only touches upon the question of the identity of their clients but also on documents related to the suspected transactions, not only in violation of the attorney-client privilege but also of the constitutional right against self-incrimination. Whichever way one looks at it, this is a fishing expedition, a free ride at the expense of such rights.

An argument is advanced that the invocation by petitioners of the privilege of attorney-client confidentiality at this stage of the proceedings is premature and that they should wait until they are called to testify and examine as witnesses as to matters learned in confidence before they can raise their objections. But petitioners are not mere witnesses. They are co-principals in the case for recovery of alleged ill-gotten wealth. They have made their position clear from the very beginning that they are not willing to testify and they cannot be compelled to testify in view of their constitutional right against self-incrimination and of their fundamental legal right to maintain inviolate the privilege of attorney-client confidentiality.

It is clear then that the case against petitioners should never be allowed to take its full course in the Sandiganbayan. Petitioners should not be made to suffer the effects of further litigation when it is obvious that their inclusion in the complaint arose from a privileged attorney-client relationship and as a means of coercing them to disclose the identities of their clients. To allow the case to continue with respect to them when this Court could nip the problem in the bud at this early opportunity would be to sanction an unjust situation which we should not here countenance. The case hangs as a real and palpable threat, a proverbial Sword of Damocles over petitioners' heads. It should not be allowed to continue a day longer.

While we are aware of respondent PCGG’s legal mandate to recover ill-gotten wealth, we will not sanction acts which violate the equal protection guarantee and the right against self-incrimination and subvert the lawyer-client confidentiality privilege.

WHEREFORE, IN VIEW OF THE FOREGOING, the Resolutions of respondent Sandiganbayan (First Division) promulgated on March 18, 1992 and May 21, 1992 are hereby ANNULLED and SET ASIDE. Respondent Sandiganbayan is further ordered to exclude petitioners Teodoro D. Regala, Edgardo J. Angara, Avelino V. Cruz, Jose C. Concepcion, *Rogelio A. Vinluan, Victor P. Lazatin, Eduardo U. Escueta and Paraja G. Hayuduni as parties-defendants in SB Civil Case No. 0033 entitled "Republic of the Philippines v. Eduardo Cojuangco, Jr., et al.".

SO ORDERED.

Bellosillo, Melo, and Francisco, JJ., concur.

Vitug, J., see separate opinion.

Padilla, Panganiban, and Torres, Jr., JJ., concur in the result.

Davide, Jr. and Puno, JJ., see dissenting opinion.

Narvasa, C.J., and Regalado, J., joins Justice Davide in his dissent.

Romero, J., no part. Related to PCGG Commissioner when Civil Case No. 0033 was filed.

Hermosisima, Jr., J., no part. Participated in Sandiganbayan deliberations thereon.

Mendoza, J., on leave.

FIRST DIVISION

A.C. No. 6711 : July 3, 2007

MA. LUISA HADJULA, Complainant, v. ATTY. ROCELES F. MADIANDA, Respondent.

D E C I S I O N

GARCIA, J.:

Under consideration is Resolution No. XVI-2004-472 of the Board of Governors, Integrated Bar of the Philippines (IBP), relative to the complaint for disbarment filed by herein complainant Ma. Luisa Hadjula against respondent Atty. Roceles F. Madianda.

The case started when, in an AFFIDAVIT-COMPLAINT¹ bearing date September 7, 2002 and filed with the IBP Commission on Bar Discipline, complainant charged Atty. Roceles F. Madianda with violation of Article 209 ² of the Revised Penal Code and Canon Nos. 15.02 and 21.02 of the Code of Professional Responsibility.

In said affidavit-complaint, complainant alleged that she and respondent used to be friends as they both worked at the Bureau of Fire Protection (BFP) whereat respondent was the Chief Legal Officer while she was the Chief Nurse of the Medical, Dental and Nursing Services. Complainant claimed that, sometime in 1998, she approached respondent for some legal advice. Complainant further alleged that, in the course of their conversation which was supposed to be kept confidential, she disclosed personal secrets and produced copies of a marriage contract, a birth certificate and a baptismal certificate, only to be informed later by the respondent that she (respondent) would refer the matter to a lawyer friend. It was malicious, so complainant states, of respondent to have refused handling her case only after she had already heard her secrets.

Continuing, complainant averred that her friendship with respondent soured after her filing, in the later part of 2000, of criminal and disciplinary actions against the latter. What, per complainant's account, precipitated the filing was when respondent, then a member of the BFP promotion board, demanded a cellular phone in exchange for the complainant's promotion.

According to complainant, respondent, in retaliation to the filing of the aforesaid actions, filed a COUNTER COMPLAINT ³ with the Ombudsman charging her (complainant) with violation of Section 3(a) of Republic Act No. 3019,⁴ falsification of public documents and immorality, the last two charges being based on the disclosures complainant earlier made to respondent. And also on the basis of the same disclosures, complainant further stated, a disciplinary case was also instituted against her before the Professional Regulation Commission.

Complainant seeks the suspension and/or disbarment of respondent for the latter's act of disclosing personal secrets and confidential information she revealed in the course of seeking respondent's legal advice.

In an order dated October 2, 2002, the IBP Commission on Bar Discipline required respondent to file her answer to the complaint.

In her answer, styled as COUNTER-AFFIDAVIT,⁵ respondent denied giving legal advice to the complainant and dismissed any suggestion about the existence of a lawyer-client relationship between them. Respondent also stated the observation that the supposed confidential data and sensitive documents adverted to are in fact matters of common knowledge in the BFP. The relevant portions of the answer read:

5. I specifically deny the allegation of F/SUPT. MA. LUISA C. HADJULA in paragraph 4 of her AFFIDAVIT-COMPLAINT for reason that she never WAS MY CLIENT nor we ever had any LAWYER-CLIENT RELATIONSHIP that ever existed ever since and that never obtained any legal advice from me regarding her PERSONAL PROBLEMS or PERSONAL SECRETS. She likewise never delivered to me legal documents much more told me some confidential information or secrets. That is because I never entertain LEGAL QUERIES or CONSULTATION regarding PERSONAL MATTERS since I know as a LAWYER of the Bureau of Fire Protection that I am not allowed to privately practice law and it might also result to CONFLICT OF INTEREST. As a matter of fact, whenever there will be PERSONAL MATTERS referred to me, I just referred them to private law practitioners and never entertain the same, NOR listen to their stories or examine or accept any document.

9. I specifically deny the allegation of F/SUPT. MA. LUISA C. HADJULA in paragraph 8 of her AFFIDAVIT-COMPLAINT, the truth of the matter is that her ILLICIT RELATIONSHIP and her illegal and unlawful activities are known in the Bureau of Fire Protection since she also filed CHILD SUPPORT case against her lover . where she has a child ..

Moreover, the alleged DOCUMENTS she purportedly have shown to me sometime in 1998, are all part of public records ..

Furthermore, F/SUPT. MA. LUISA C. HADJULA, is filing the instant case just to get even with me or to force me to settle and withdraw the CASES I FILED AGAINST HER since she knows that she will certainly be DISMISSED FROM SERVICE, REMOVED FROM THE PRC ROLL and CRIMINALLY CONVICTED of her ILLICIT, IMMORAL, ILLEGAL and UNLAWFUL ACTS.

On October 7, 2004, the Investigating Commissioner of the IBP Commission on Bar Discipline came out with a Report and Recommendation, stating that the information related by complainant to the respondent is "protected under the attorney-client privilege communication." Prescinding from this postulate, the Investigating Commissioner found the respondent to have violated legal ethics when she "[revealed] information given to her during a legal consultation," and accordingly recommended that respondent be reprimanded therefor, thus:

WHEREFORE, premises considered, it is respectfully recommended that respondent Atty. Roceles Madianda be reprimanded for revealing the secrets of the complainant.

On November 4, 2004, the IBP Board of Governors issued Resolution No. XVI-2004-472 reading as follows:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A"; and , finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering the actuation of revealing information given to respondent during a legal consultation, Atty. Roceles Madianda is hereby REPRIMANDED.

We AGREE with the recommendation and the premises holding it together.

As it were, complainant went to respondent, a lawyer who incidentally was also then a friend, to bare what she considered personal secrets and sensitive documents for the purpose of obtaining legal advice and assistance. The moment complainant approached the then receptive respondent to seek legal advice, a veritable lawyer-client relationship evolved between the two. Such relationship imposes upon the lawyer certain restrictions circumscribed by the ethics of the profession. Among the burdens of the relationship is that which enjoins the lawyer, respondent in this instance, to keep inviolate confidential information acquired or revealed during legal consultations. The fact that one is, at the end of the day, not inclined to handle the client's case is hardly of consequence. Of little moment, too, is the fact that no formal professional engagement follows the consultation. Nor will it make any difference that no contract whatsoever was executed by the parties to memorialize the relationship. As we said in Burbe v. Magulta,⁶ -

A lawyer-client relationship was established from the very first moment complainant asked respondent for legal advise regarding the former's business. To constitute professional employment, it is not essential that the client employed the attorney professionally on any previous occasion.

It is not necessary that any retainer be paid, promised, or charged; neither is it material that the attorney consulted did not afterward handle the case for which his service had been sought.

It a person, in respect to business affairs or troubles of any kind, consults a lawyer with a view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces with the consultation, then the professional employments is established.

Likewise, a lawyer-client relationship exists notwithstanding the close personal relationship between the lawyer and the complainant or the non-payment of the former's fees.

Dean Wigmore lists the essential factors to establish the existence of the attorney-client privilege communication, viz:

(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived.⁷

With the view we take of this case, respondent indeed breached his duty of preserving the confidence of a client. As found by the IBP Investigating Commissioner, the documents shown and the information revealed in confidence to the respondent in the course of the legal consultation in question, were used as bases in the criminal and administrative complaints lodged against the complainant.

The purpose of the rule of confidentiality is actually to protect the client from possible breach of confidence as a result of a consultation with a lawyer.

The seriousness of the respondent's offense notwithstanding, the Court feels that there is room for compassion, absent compelling evidence that the respondent acted with ill-will. Without meaning to condone the error of respondent's ways, what at bottom is before the Court is two former friends becoming bitter enemies and filing charges and counter-charges against each other using whatever convenient tools and data were readily available. Unfortunately, the personal information respondent gathered from her conversation with complainant became handy in her quest to even the score. At the end of the day, it appears clear to us that respondent was actuated by the urge to retaliate without perhaps realizing that, in the process of giving vent to a negative sentiment, she was violating the rule on confidentiality.

IN VIEW WHEREOF, respondent Atty. Roceles F. Madianda is hereby REPRIMANDED and admonished to be circumspect in her handling of information acquired as a result of a lawyer-client relationship. She is also STERNLY WARNED against a repetition of the same or similar act complained of.

SO ORDERED.

Puno, (Chief Justice), Corona, Azcuna, Garcia, JJ., concur.
Sandoval-Gutierrez,J., on leave.

Endnotes:

¹ Rollo, pp. 1-3.chanroblesvirtualawlibary

² Betrayal of Trust by an Attorney/Revelation of Secrets.chanroblesvirtualawlibary

³ Rollo, pp. 22-24.chanroblesvirtualawlibary

⁴ Anti-Graft and Corrupt Practices Act.chanroblesvirtualawlibary

⁵ Rollo, pp. 54-60.chanroblesvirtualawlibary

⁶ 432 Phil. 840 (2002).chanroblesvirtualawlibary

⁷ 8 J. Wigmore, Evidence §2292 (McNaughton rev. 1961).

SECOND DIVISION

[A.C. No. 5280. March 30, 2004]

WILLIAM S. UY, complainant, vs. ATTY. FERMIN L. GONZALES, respondent.

R E S O L U T I O N

AUSTRIA-MARTINEZ, J.:

William S. Uy filed before this Court an administrative case against Atty. Fermin L. Gonzales for violation of the confidentiality of their lawyer-client relationship. The complainant alleges:

Sometime in April 1999, he engaged the services of respondent lawyer to prepare and file a petition for the issuance of a new certificate of title. After confiding with respondent the circumstances surrounding the lost title and discussing the fees and costs, respondent prepared, finalized and submitted to him a petition to be filed before the Regional Trial Court of Tayug, Pangasinan. When the petition was about to be filed, respondent went to his (complainant’s) office at Virra Mall, Greenhills and demanded a certain amount from him other than what they had previously agreed upon. Respondent left his office after reasoning with him. Expecting that said petition would be filed, he was shocked to find out later that instead of filing the petition for the issuance of a new certificate of title, respondent filed a letter-complaint dated July 26, 1999 against him with the Office of the Provincial Prosecutor of Tayug, Pangasinan for “Falsification of Public Documents.”[1][1] The letter-complaint contained facts and circumstances pertaining to the transfer certificate of title that was the subject matter of the petition which respondent was supposed to have filed. Portions of said letter-complaint read:

The undersigned complainant accuses WILLIAM S. UY, of legal age, Filipino, married and a resident of 132-A Gilmore Street corner 9^th Street, New Manila, Quezon City, Michael Angelo T. UY, CRISTINA EARL T. UY, minors and residents of the aforesaid address, Luviminda G. Tomagos, of legal age, married, Filipino and a resident of Carmay East, Rosales, Pangasinan, and F. Madayag, with office address at A12, 2/F Vira Mall Shopping Complex, Greenhills, San Juan, Metro Manila, for ESTAFA THRU FALSIFICATION OF PUBLIC DOCUMENTS, committed as follows:

That on March 15, 1996, William S. Uy acquired by purchase a parcel of land consisting of 4.001 ha. for the amount of P100,000.00, Philippine Currency, situated at Brgy. Gonzales, Umingan, Pangasinan, from FERMIN C. GONZALES, as evidenced by a Deed of Sale executed by the latter in favor of the former…; that in the said date, William S. Uy received the Transfer Certificate of Title No. T-33122, covering the said land;

That instead of registering said Deed of Sale and Transfer Certificate of Title (TCT) No. T-33122, in the Register of Deeds for the purpose of transferring the same in his name, William S. Uy executed a Deed of Voluntary Land Transfer of the aforesaid land in favor of his children, namely, Michael Angelo T. Uy and Cristina Earl T. Uy, wherein William S. Uy made it appear that his said children are of legal age, and residents of Brgy. Gonzales, Umingan, Pangasinan, when in fact and in truth, they are minors and residents of Metro Manila, to qualify them as farmers/beneficiaries, thus placing the said property within the coverage of the Land Reform Program;

That the above-named accused, conspiring together and helping one another procured the falsified documents which they used as supporting papers so that they can secure from the Office of the Register of Deeds of Tayug, Pangasinan, TCT No. T-5165 (Certificate of Land Ownership Award No. 004 32930) in favor of his above-named children. Some of these Falsified documents are purported Affidavit of Seller/Transferor and Affidavit of Non-Tenancy, both dated August 20, 1996, without the signature of affiant, Fermin C. Gonzales, and that on that said date, Fermin C. Gonzales was already dead… ;

That on December 17, 1998, William S. Uy with deceit and evident intent to defraud undersigned, still accepted the amount of P340,000.00, from Atty. Fermin L. Gonzales, P300,000.00, in PNB Check No. 0000606, and P40,000.00, in cash, as full payment of the redemption of TCT No. 33122…knowing fully well that at that time the said TCT cannot be redeemed anymore because the same was already transferred in the name of his children;

That William S. Uy has appropriated the amount covered by the aforesaid check, as evidenced by the said check which was encashed by him…;

That inspite of repeated demands, both oral and in writing, William S. Uy refused and continue to refuse to deliver to him a TCT in the name of the undersigned or to return and repay the said P340,000.00, to the damage and prejudice of the undersigned.[2][2]

With the execution of the letter-complaint, respondent violated his oath as a lawyer and grossly disregarded his duty to preserve the secrets of his client. Respondent unceremoniously turned against him just because he refused to grant respondent’s request for additional compensation. Respondent’s act tarnished his reputation and social standing.[3][3]

In compliance with this Court’s Resolution dated July 31, 2000,[4][4] respondent filed his Comment narrating his version, as follows:

On December 17, 1998, he offered to redeem from complainant a 4.9 hectare-property situated in Brgy. Gonzales, Umingan, Pangasinan covered by TCT No. T-33122 which the latter acquired by purchase from his (respondent’s) son, the late Fermin C. Gonzales, Jr.. On the same date, he paid complainant P340,000.00 and demanded the delivery of TCT No. T-33122 as well as the execution of the Deed of Redemption. Upon request, he gave complainant additional time to locate said title or until after Christmas to deliver the same and execute the Deed of Redemption. After the said period, he went to complainant’s office and demanded the delivery of the title and the execution of the Deed of Redemption. Instead, complainant gave him photocopies of TCT No. T-33122 and TCT No. T-5165. Complainant explained that he had already transferred the title of the property, covered by TCT No.T-5165 to his children Michael and Cristina Uy and that TCT No. T-5165 was misplaced and cannot be located despite efforts to locate it. Wanting to protect his interest over the property coupled with his desire to get hold of TCT No. T-5165 the earliest possible time, he offered his assistance pro bono to prepare a petition for lost title provided that all necessary expenses incident thereto including expenses for transportation and others, estimated at P20,000.00, will be shouldered by complainant. To these, complainant agreed.

On April 9, 1999, he submitted to complainant a draft of the petition for the lost title ready for signing and notarization. On April 14, 1999, he went to complainant’s office informing him that the petition is ready for filing and needs funds for expenses. Complainant who was with a client asked him to wait at the anteroom where he waited for almost two hours until he found out that complainant had already left without leaving any instructions nor funds for the filing of the petition. Complainant’s conduct infuriated him which prompted him to give a handwritten letter telling complainant that he is withdrawing the petition he prepared and that complainant should get another lawyer to file the petition.

Respondent maintains that the lawyer-client relationship between him and complainant was terminated when he gave the handwritten letter to complainant; that there was no longer any professional relationship between the two of them when he filed the letter-complaint for falsification of public document; that the facts and allegations contained in the letter-complaint for falsification were culled from public documents procured from the Office of the Register of Deeds in Tayug, Pangasinan.[5][5]

In a Resolution dated October 18, 2000, the Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.[6][6]

Commissioner Rebecca Villanueva-Maala ordered both parties to appear on April 2, 2003 before the IBP.[7][7] On said date, complainant did not appear despite due notice. There was no showing that respondent received the notice for that day’s hearing and so the hearing was reset to May 28, 2003.[8][8]

On April 29, 2003, Commissioner Villanueva-Maala received a letter from one Atty. Augusto M. Macam dated April 24, 2003, stating that his client, William S. Uy, had lost interest in pursuing the complaint he filed against Atty. Gonzales and requesting that the case against Atty. Gonzales be dismissed.[9][9]

On June 2, 2003, Commissioner Villanueva-Maala submitted her report and recommendation, portions of which read as follows:

The facts and evidence presented show that when respondent agreed to handle the filing of the Verified Petition for the loss of TCT No. T-5165, complainant had confided to respondent the fact of the loss and the circumstances attendant thereto. When respondent filed the Letter-Complaint to the Office of the Special Prosecutor in Tayug, Pangasinan, he violated Canon 21 of the Code of Professional Responsibility which expressly provides that “A lawyer shall preserve the confidences and secrets of his client even after the attorney-client relation is terminated.” Respondent cannot argue that there was no lawyer-client relationship between them when he filed the Letter-Complaint on 26 July 1999 considering that as early as 14 April 1999, or three (3) months after, respondent had already terminated complainant’s perceived lawyer-client relationship between them. The duty to maintain inviolate the client’s confidences and secrets is not temporary but permanent. It is in effect perpetual for “it outlasts the lawyer’s employment” (Canon 37, Code of Professional Responsibility) which means even after the relationship has been terminated, the duty to preserve the client’s confidences and secrets remains effective. Likewise Rule 21.02, Canon 21 of the Rules of Professional Responsibility provides that “A lawyer shall not, to the disadvantage of his client, use information acquired in the course of employment, nor shall he use the same to his own advantage or that of a third person, unless the client with the full knowledge of the circumstances consents thereto.”

On 29 April 2003, the Commission received a letter dated 24 April 2003 from Atty. Augusto M. Macam, who claims to represent complainant, William S. Uy, alleging that complainant is no longer interested in pursuing this case and requested that the same be dismissed. The aforesaid letter hardly deserves consideration as proceedings of this nature cannot be “interrupted by reason of desistance, settlement, compromise, restitution, withdrawal of the charges, or failure of the complainant to prosecute the same. (Section 5, Rule 139-B, Rules of Court). Moreover, in Boliver vs. Simbol, 16 SCRA 623, the Court ruled that “any person may bring to this Court’s attention the misconduct of any lawyer, and action will usually be taken regardless of the interest or lack of interest of the complainant, if the facts proven so warrant.”

IN VIEW OF THE FOREGOING, we find respondent Atty. Fermin L. Gonzales to have violated the Code of Professional Responsibility and it is hereby recommended that he be SUSPENDED for a period of SIX (6) MONTHS from receipt hereof, from the practice of his profession as a lawyer and member of the Bar.[10][10]

On June 21, 2003, the Board of Governors of the Integrated Bar of the Philippines issued Resolution No. XV-2003-365, thus:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution/Decision as Annex “A”; and finding the recommendation fully supported by the evidence on record and applicable laws and rules, and considering that respondent violated Rule 21.02, Canon 21 of the Canons of Professional Responsibility, Atty. Fermin L. Gonzales is hereby SUSPENDED from the practice of law for six (6) months.[11][11]

Preliminarily, we agree with Commissioner Villanueva-Maala that the manifestation of complainant Uy expressing his desire to dismiss the administrative complaint he filed against respondent, has no persuasive bearing in the present case.

Sec. 5, Rule 139-B of the Rules of Court states that:

….

No investigation shall be interrupted or terminated by reason of the desistance, settlement, compromise, restitution, withdrawal of the charges, or failure of the complainant to prosecute the same.

This is because:

A proceeding for suspension or disbarment is not in any sense a civil action where the complainant is a plaintiff and the respondent lawyer is a defendant. Disciplinary proceedings involve no private interest and afford no redress for private grievance. They are undertaken and prosecuted solely for the public welfare. They are undertaken for the purpose of preserving courts of justice from the official ministration of persons unfit to practice in them. The attorney is called to answer to the court for his conduct as an officer of the court. The complainant or the person who called the attention of the court to the attorney's alleged misconduct is in no sense a party, and has generally no interest in the outcome except as all good citizens may have in the proper administration of justice. Hence, if the evidence on record warrants, the respondent may be suspended or disbarred despite the desistance of complainant or his withdrawal of the charges.[12][12]

Now to the merits of the complaint against the respondent.

Practice of law embraces any activity, in or out of court, which requires the application of law, as well as legal principles, practice or procedure and calls for legal knowledge, training and experience.[13][13] While it is true that a lawyer may be disbarred or suspended for any misconduct, whether in his professional or private capacity, which shows him to be wanting in moral character, in honesty, probity and good demeanor or unworthy to continue as an officer of the court,[14][14] complainant failed to prove any of the circumstances enumerated above that would warrant the disbarment or suspension of herein respondent.

Notwithstanding respondent’s own perception on the matter, a scrutiny of the records reveals that the relationship between complainant and respondent stemmed from a personal transaction or dealings between them rather than the practice of law by respondent. Respondent dealt with complainant only because he redeemed a property which complainant had earlier purchased from his (complainant’s) son. It is not refuted that respondent paid complainant P340,000.00 and gave him ample time to produce its title and execute the Deed of Redemption. However, despite the period given to him, complainant failed to fulfill his end of the bargain because of the alleged loss of the title which he had admitted to respondent as having prematurely transferred to his children, thus prompting respondent to offer his assistance so as to secure the issuance of a new title to the property, in lieu of the lost one, with complainant assuming the expenses therefor.

As a rule, an attorney-client relationship is said to exist when a lawyer voluntarily permits or acquiesces with the consultation of a person, who in respect to a business or trouble of any kind, consults a lawyer with a view of obtaining professional advice or assistance. It is not essential that the client should have employed the attorney on any previous occasion or that any retainer should have been paid, promised or charged for, neither is it material that the attorney consulted did not afterward undertake the case about which the consultation was had, for as long as the advice and assistance of the attorney is sought and received, in matters pertinent to his profession.[15][15]

Considering the attendant peculiar circumstances, said rule cannot apply to the present case. Evidently, the facts alleged in the complaint for “Estafa Through Falsification of Public Documents” filed by respondent against complainant were obtained by respondent due to his personal dealings with complainant. Respondent volunteered his service to hasten the issuance of the certificate of title of the land he has redeemed from complainant. Respondent’s immediate objective was to secure the title of the property that complainant had earlier bought from his son. Clearly, there was no attorney-client relationship between respondent and complainant. The preparation and the proposed filing of the petition was only incidental to their personal transaction.

Canon 21 of the Code of Professional Responsibility reads:

Canon 21 – A LAWYER SHALL PRESERVE THE CONFIDENCE AND SECRETS OF HIS CLIENT EVEN AFTER THE ATTORNEY-CLIENT RELATION IS TERMINATED.

Rule 21.01 – A lawyer shall not reveal the confidences or secrets of his client except:

a) When authorized by the client after acquainting him of the consequences of the disclosure;

b) When required by law;

c) When necessary to collect his fees or to defend himself, his employees or associates or by judicial action.

The alleged “secrets” of complainant were not specified by him in his affidavit-complaint. Whatever facts alleged by respondent against complainant were not obtained by respondent in his professional capacity but as a redemptioner of a property originally owned by his deceased son and therefore, when respondent filed the complaint for estafa against herein complainant, which necessarily involved alleging facts that would constitute estafa, respondent was not, in any way, violating Canon 21. There is no way we can equate the filing of the affidavit-complaint against herein complainant to a misconduct that is wanting in moral character, in honesty, probity and good demeanor or that renders him unworthy to continue as an officer of the court. To hold otherwise would be precluding any lawyer from instituting a case against anyone to protect his personal or proprietary interests.

WHEREFORE, Resolution No. XV-2003-365 dated June 21, 2003 of the Integrated Bar of the Philippines is REVERSED and SET ASIDE and the administrative case filed against Atty. Fermin L. Gonzales, docketed as A.C. No. 5280, is DISMISSED for lack of merit.

SO ORDERED.

Puno, (Chairman), Quisumbing, Callejo, Sr., and Tinga, JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

January 9, 1973

IN THE MATTER OF THE INTEGRATION OF THE BAR OF THE PHILIPPINES.

R E S O L U T I O N

PER CURIAM:

On December 1, 1972, the Commission on Bar Integration¹ submitted its Report dated November 30, 1972, with the "earnest recommendation" — on the basis of the said Report and the proceedings had in Administrative Case No. 526² of the Court, and "consistently with the views and counsel received from its [the Commission's] Board of Consultants, as well as the overwhelming nationwide sentiment of the Philippine Bench and Bar" — that "this Honorable Court ordain the integration of the Philippine Bar as soon as possible through the adoption and promulgation of an appropriate Court Rule."

The petition in Adm. Case No. 526 formally prays the Court to order the integration of the Philippine Bar, after due hearing, giving recognition as far as possible and practicable to existing provincial and other local Bar associations. On August 16, 1962, arguments in favor of as well as in opposition to the petition were orally expounded before the Court. Written oppositions were admitted,³ and all parties were thereafter granted leave to file written memoranda.⁴

Since then, the Court has closely observed and followed significant developments relative to the matter of the integration of the Bar in this jurisdiction.

In 1970, convinced from preliminary surveys that there had grown a strong nationwide sentiment in favor of Bar integration, the Court created the Commission on Bar Integration for the purpose of ascertaining the advisability of unifying the Philippine Bar.

In September, 1971, Congress passed House Bill No. 3277 entitled "An Act Providing for the Integration of the Philippine Bar, and Appropriating Funds Therefor." The measure was signed by President Ferdinand E. Marcos on September 17, 1971 and took effect on the same day as Rep. Act 6397. This law provides as follows:

SECTION 1. Within two years from the approval of this Act, the Supreme Court may adopt rules of court to effect the integration of the Philippine Bar under such conditions as it shall see fit in order to raise the standards of the legal profession, improve the administration of justice, and enable the Bar to discharge its public responsibility more effectively.

SEC. 2. The sum of five hundred thousand pesos is hereby appropriated, out of any funds in the National Treasury not otherwise appropriated, to carry out the purposes of this Act. Thereafter, such sums as may be necessary for the same purpose shall be included in the annual appropriations for the Supreme Court.

SEC. 3. This Act shall take effect upon its approval.

The Report of the Commission abounds with argument on the constitutionality of Bar integration and contains all necessary factual data bearing on the advisability (practicability and necessity) of Bar integration. Also embodied therein are the views, opinions, sentiments, comments and observations of the rank and file of the Philippine lawyer population relative to Bar integration, as well as a proposed integration Court Rule drafted by the Commission and presented to them by that body in a national Bar plebiscite. There is thus sufficient basis as well as ample material upon which the Court may decide whether or not to integrate the Philippine Bar at this time.

The following are the pertinent issues:

(1) Does the Court have the power to integrate the Philippine Bar?

(2) Would the integration of the Bar be constitutional?

(3) Should the Court ordain the integration of the Bar at this time?

A resolution of these issues requires, at the outset, a statement of the meaning of Bar integration. It will suffice, for this purpose, to adopt the concept given by the Commission on Bar Integration on pages 3 to 5 of its Report, thus:

Integration of the Philippine Bar means the official unification of the entire lawyer population of the Philippines. This requires membership and financial support (in reasonable amount) of every attorney as conditions sine qua non to the practice of law and the retention of his name in the Roll of Attorneys of the Supreme Court.

The term "Bar" refers to the collectivity of all persons whose names appear in the Roll of Attorneys. An Integrated Bar (or Unified Bar) perforce must include all lawyers.

Complete unification is not possible unless it is decreed by an entity with power to do so: the State. Bar integration, therefore, signifies the setting up by Government authority of a national organization of the legal profession based on the recognition of the lawyer as an officer of the court.

Designed to improve the position of the Bar as an instrumentality of justice and the Rule of Law, integration fosters cohesion among lawyers, and ensures, through their own organized action and participation, the promotion of the objectives of the legal profession, pursuant to the principle of maximum Bar autonomy with minimum supervision and regulation by the Supreme Court.

The purposes of an integrated Bar, in general, are:

(1) Assist in the administration of justice;

(2) Foster and maintain on the part of its members high ideals of integrity, learning, professional competence, public service and conduct;

(3) Safeguard the professional interests of its members;

(4) Cultivate among its members a spirit of cordiality and brotherhood;

(5) Provide a forum for the discussion of law, jurisprudence, law reform, pleading, practice and procedure, and the relations of the Bar to the Bench and to the public, and publish information relating thereto;

(6) Encourage and foster legal education;

(7) Promote a continuing program of legal research in substantive and adjective law, and make reports and recommendations thereon; and

(8) Enable the Bar to discharge its public responsibility effectively.

Integration of the Bar will, among other things, make it possible for the legal profession to:

(1) Render more effective assistance in maintaining the Rule of Law;

(2) Protect lawyers and litigants against the abuse of tyrannical judges and prosecuting officers;

(3) Discharge, fully and properly, its responsibility in the disciplining and/or removal of incompetent and unworthy judges and prosecuting officers;

(4) Shield the judiciary, which traditionally cannot defend itself except within its own forum, from the assaults that politics and self-interest may level at it, and assist it to maintain its integrity, impartiality and independence;

(5) Have an effective voice in the selection of judges and prosecuting officers;

(6) Prevent the unauthorized practice of law, and break up any monopoly of local practice maintained through influence or position;

(7) Establish welfare funds for families of disabled and deceased lawyers;

(8) Provide placement services, and establish legal aid offices and set up lawyer reference services throughout the country so that the poor may not lack competent legal service;

(9) Distribute educational and informational materials that are difficult to obtain in many of our provinces;

(10) Devise and maintain a program of continuing legal education for practising attorneys in order to elevate the standards of the profession throughout the country;

(11) Enforce rigid ethical standards, and promulgate minimum fees schedules;

(12) Create law centers and establish law libraries for legal research;

(13) Conduct campaigns to educate the people on their legal rights and obligations, on the importance of preventive legal advice, and on the functions and duties of the Filipino lawyer; and

(14) Generate and maintain pervasive and meaningful country-wide involvement of the lawyer population in the solution of the multifarious problems that afflict the nation.

Anent the first issue, the Court is of the view that it may integrate the Philippine Bar in the exercise of its power, under Article VIII, Sec. 13 of the Constitution, "to promulgate rules concerning pleading, practice, and procedure in all courts, and the admission to the practice of law." Indeed, the power to integrate is an inherent part of the Court's constitutional authority over the Bar. In providing that "the Supreme Court may adopt rules of court to effect the integration of the Philippine Bar," Republic Act 6397 neither confers a new power nor restricts the Court's inherent power, but is a mere legislative declaration that the integration of the Bar will promote public interest or, more specifically, will "raise the standards of the legal profession, improve the administration of justice, and enable the Bar to discharge its public responsibility more effectively."

Resolution of the second issue — whether the unification of the Bar would be constitutional — hinges on the effects of Bar integration on the lawyer's constitutional rights of freedom of association and freedom of speech, and on the nature of the dues exacted from him.

The Court approvingly quotes the following pertinent discussion made by the Commission on Bar Integration pages 44 to 49 of its Report:

Constitutionality of Bar Integration

Judicial Pronouncements.

In all cases where the validity of Bar integration measures has been put in issue, the Courts have upheld their constitutionality.

The judicial pronouncements support this reasoning:

— Courts have inherent power to supervise and regulate the practice of law.

— The practice of law is not a vested right but a privilege; a privilege, moreover, clothed with public interest, because a lawyer owes duties not only to his client, but also to his brethren in the profession, to the courts, and to the nation; and takes part in one of the most important functions of the State, the administration of justice, as an officer of the court.

— Because the practice of law is privilege clothed with public interest, it is far and just that the exercise of that privilege be regulated to assure compliance with the lawyer's public responsibilities.

— These public responsibilities can best be discharged through collective action; but there can be no collective action without an organized body; no organized body can operate effectively without incurring expenses; therefore, it is fair and just that all attorneys be required to contribute to the support of such organized body; and, given existing Bar conditions, the most efficient means of doing so is by integrating the Bar through a rule of court that requires all lawyers to pay annual dues to the Integrated Bar.

1. Freedom of Association.

To compel a lawyer to be a member of an integrated Bar is not violative of his constitutional freedom to associate (or the corollary right not to associate).

Integration does not make a lawyer a member of any group of which he is not already a member. He became a member of the Bar when he passed the Bar examinations. All that integration actually does is to provide an official national organization for the well-defined but unorganized and incohesive group of which every lawyer is already a member.

Bar integration does not compel the lawyer to associate with anyone. He is free to attend or not attend the meetings of his Integrated Bar Chapter or vote or refuse to vote in its elections as he chooses. The body compulsion to which he is subjected is the payment of annual dues.

Otherwise stated, membership in the Unified Bar imposes only the duty to pay dues in reasonable amount. The issue therefore, is a question of compelled financial support of group activities, not involuntary membership in any other aspect.

The greater part of Unified Bar activities serves the function of elevating the educational and ethical standards of the Bar to the end of improving the quality of the legal service available to the people. The Supreme Court, in order to further the State's legitimate interest in elevating the quality of professional services, may require that the cost of improving the profession in this fashion be shared by the subjects and beneficiaries of the regulatory program — the lawyers.

Assuming that Bar integration does compel a lawyer to be a member of the Integrated Bar, such compulsion is justified as an exercise of the police power of the State. The legal profession has long been regarded as a proper subject of legislative regulation and control. Moreover, the inherent power of the Supreme Court to regulate the Bar includes the authority to integrate the Bar.

2. Regulatory Fee.

For the Court to prescribe dues to be paid by the members does not mean that the Court levies a tax.

A membership fee in the Integrated Bar is an exaction for regulation, while the purpose of a tax is revenue. If the Court has inherent power to regulate the Bar, it follows that as an incident to regulation, it may impose a membership fee for that purpose. It would not be possible to push through an Integrated Bar program without means to defray the concomitant expenses. The doctrine of implied powers necessarily includes the power to impose such an exaction.

The only limitation upon the State's power to regulate the Bar is that the regulation does not impose an unconstitutional burden. The public interest promoted by the integration of the Bar far outweighs the inconsequential inconvenience to a member that might result from his required payment of annual dues.

3. Freedom of Speech.

A lawyer is free, as he has always been, to voice his views on any subject in any manner he wishes, even though such views be opposed to positions taken by the Unified Bar.

For the Integrated Bar to use a member's due to promote measures to which said member is opposed, would not nullify or adversely affect his freedom of speech.

Since a State may constitutionally condition the right to practice law upon membership in the Integrated Bar, it is difficult to understand why it should become unconstitutional for the Bar to use the member's dues to fulfill the very purposes for which it was established.

The objection would make every Governmental exaction the material of a "free speech" issue. Even the income tax would be suspect. The objection would carry us to lengths that have never been dreamed of. The conscientious objector, if his liberties were to be thus extended, might refuse to contribute taxes in furtherance of war or of any other end condemned by his conscience as irreligious or immoral. The right of private judgment has never yet been exalted above the powers and the compulsion of the agencies of Government.

4. Fair to All Lawyers.

Bar integration is not unfair to lawyers already practising because although the requirement to pay annual dues is a new regulation, it will give the members of the Bar a new system which they hitherto have not had and through which, by proper work, they will receive benefits they have not heretofore enjoyed, and discharge their public responsibilities in a more effective manner than they have been able to do in the past. Because the requirement to pay dues is a valid exercise of regulatory power by the Court, because it will apply equally to all lawyers, young and old, at the time Bar integration takes effect, and because it is a new regulation in exchange for new benefits, it is not retroactive, it is not unequal, it is not unfair.

To resolve the third and final issue — whether the Court should ordain the integration of the Bar at this time — requires a careful overview of the practicability and necessity as well as the advantages and disadvantages of Bar integration.

In many other jurisdictions, notably in England, Canada and the United States, Bar integration has yielded the following benefits: (1) improved discipline among the members of the Bar; (2) greater influence and ascendancy of the Bar; (3) better and more meaningful participation of the individual lawyer in the activities of the Integrated Bar; (4) greater Bar facilities and services; (5) elimination of unauthorized practice; (6) avoidance of costly membership campaigns; (7) establishment of an official status for the Bar; (8) more cohesive profession; and (9) better and more effective discharge by the Bar of its obligations and responsibilities to its members, to the courts, and to the public. No less than these salutary consequences are envisioned and in fact expected from the unification of the Philippine Bar.

Upon the other hand, it has been variously argued that in the event of integration, Government authority will dominate the Bar; local Bar associations will be weakened; cliquism will be the inevitable result; effective lobbying will not be possible; the Bar will become an impersonal Bar; and politics will intrude into its affairs.

It is noteworthy, however, that these and other evils prophesied by opponents of Bar integration have failed to materialize in over fifty years of Bar integration experience in England, Canada and the United States. In all the jurisdictions where the Integrated Bar has been tried, none of the abuses or evils feared has arisen; on the other hand, it has restored public confidence in the Bar, enlarged professional consciousness, energized the Bar's responsibilities to the public, and vastly improved the administration of justice.

How do the Filipino lawyers themselves regard Bar integration? The official statistics compiled by the Commission on Bar integration show that in the national poll recently conducted by the Commission in the matter of the integration of the Philippine Bar, of a total of 15,090 lawyers from all over the archipelago who have turned in their individual responses, 14,555 (or 96.45 per cent) voted in favor of Bar integration, while only 378 (or 2.51 per cent) voted against it, and 157 (or 1.04 per cent) are non-commital. In addition, a total of eighty (80) local Bar association and lawyers' groups all over the Philippines have submitted resolutions and other expressions of unqualified endorsement and/or support for Bar integration, while not a single local Bar association or lawyers' group has expressed opposed position thereto. Finally, of the 13,802 individual lawyers who cast their plebiscite ballots on the proposed integration Court Rule drafted by the Commission, 12,855 (or 93.14 per cent) voted in favor thereof, 662 (or 4.80 per cent) vote against it, and 285 (or 2.06 per cent) are non-committal.⁵ All these clearly indicate an overwhelming nationwide demand for Bar integration at this time.

The Court is fully convinced, after a thoroughgoing conscientious study of all the arguments adduced in Adm. Case No. 526 and the authoritative materials and the mass of factual data contained in the exhaustive Report of the Commission on Bar Integration, that the integration of the Philippine Bar is "perfectly constitutional and legally unobjectionable," within the context of contemporary conditions in the Philippines, has become an imperative means to raise the standards of the legal profession, improve the administration of justice, and enable the Bar to discharge its public responsibility fully and effectively.

ACCORDINGLY, the Court, by virtue of the power vested in it by Section 13 of Article VIII of the Constitution, hereby ordains the integration of the Bar of the Philippines in accordance with the attached COURT RULE, effective on January 16, 1973.

Concepcion, C.J., Makalintal, Zaldivar, Castillo, Fernando, Teehankee, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.

Footnotes

1 Created by Supreme Court Resolution of October 5, 1970 "for the purpose of ascertaining the advisability of the integration of the Bar in this jurisdiction," the Commission is composed of Supreme Court Associate Justice Fred Ruiz Castro (Chairman), Senator Jose J. Roy, retired Supreme Court Associate Justice Conrado V. Sanchez, Supreme Court Associate Justice (then Court of Appeals Presiding Justice) Salvador V. Esguerra, U. P. Law Center Director Crisolito Pascual, Ex-Senator Tecla San Andres Ziga, and San Beda Law Dean and Constitutional Convention Delegate Feliciano Jover Ledesma (Members).

2 Filed on July 11, 1962 (by a Committee composed of Jose W. Diokno, Roman Ozaeta, Jose P. Carag, Eugenio Villanueva, Jr. and Leo A. Panuncialman), the petition represented the unanimous consensus of 53 Bar Associations (from all over the Philippines) reached in convention at the Far Eastern University Auditorium in Manila on June 23, 1962.

3 Written oppositions were submitted by Attys. Cesar Fajardo and Vicente L. Arcega, the Camarines Norte Lawyers League, Atty. Fructuoso S. Villarin, the Camarines Sur Bar Association and the Manila Bar Association.

4 The Petitioners and the Negros Occidental Bar Association submitted memoranda in favor of Bar integration, while the Manila Bar Association submitted a memoranda opposing Bar integration.

5 All figures are as of January 8, 1973.

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Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-56532 September 21, 1981

CUSTODIO O. PARLADE, petitioner,
vs.
THE BOARD OF GOVERNORS OF THE INTEGRATED BAR OF THE PHILIPPINES and PONCIANO M. MORTERA, respondents.

AQUINO, J.:

In the election of the officers of the Quezon City chapter of the Integrated Bar of the Philippines, held in the City Hall on February 28, 1981, the two candidates for president, Custodio O. Parlade and Ponciano M. Mortera, each obtained 327 votes.

To break the tie the chapter's electron committee resolved to require Parlade and Mortera to draw lots as prescribed in section 12(k) of the IBP by-laws.

At that juncture, Mortera called the committee's attention to the ballot of Eduardo E. Arroyo, Sr. who vote for Mortera was not counted because it was prepared by Pedro R. Acierto. Arroyo's ballot was placed in the envelope for spoiled and invalid ballots. Mortera moved that Arroyo's vote be counted in his favor.

The election committee held a hearing on Mortera's motion. The committee heard the testimonies of Acierto and Manuel C. Cortes, who explained why the ballot of Arroyo was confiscated by Cesar P. Javier, the chairman of the board of canvassers for Precinct No. 2, Arroyo's precinct.

The committee upheld the invalidation of Arroyo's ballot by the board of canvassers. Mortera asked for the reconsideration of that ruling. The committee denied his motion.

Before the lots were drawn, Mortera manifested in writing to the election committee that his assent to the drawing of lots was without prejudice to his recourse to any appropriate legal remedy.

Parlade drew tile winning lot. The election committee proclaimed him as the duly elected president. Diosdado P. Peralta, the incumbent chapter president in his letter dated March 3, 1981 apprised the president of the IBP that Parlade and others were elected officers of the Quezon City chapter. Parlade took his oath of office on March 5.

But before that oath-taking, or on March 3, Mortera filed with the IBP Board of Governors a protest wherein he prayed that Arroyo's vote be counted in his favor, that Parlade's proclamation be set aside and that he, Mortera, be adjudged the duly elected president. Parlade answered the protest.

After hearing and consideration of the evidence of the parties, the Board declared Mortera the duly elected president. The Board's resolution dated March 26, 1981 reads:

... Finding that witness Eduardo Arroyo, Sr, did in fact vote for candidate Ponciano Mortera because he actually authorized and directed Pedro Acierto to write 'Mortera' in his ballot and that Arroyo's subsequent disclaimer of this authority and instruction was a mere afterthought which is not entitled to credence, and on motion duly seconded, the Board after agreeing to accept the written votes of absent Governors.

Resolved (Res. No. 4-81-47) to reverse and set aside the ruling of the Board of Canvassers of Precinct No. I I and of the Committee on Elections in the 28 February 1981 Quezon City Chapter elections declaring invalid the contested ballot and to count this ballot in favor of petitioner Ponciano M. Mortera, and further resolved that petitioner Mortera be, as he hereby is, declared the duly elected President of the Quezon City Chapter for the term 1981-1983.

On March 27, Mortera took his oath of office. On March 30, Parlade filed in this Court the instant special civil actions of certiorari and prohibition wherein he assailed the Board's resolution. In this Court's resolution of April 9, 1981, Leovillo C. Agustin, the duly elected vice-president, was directed to administer the affairs of the Quezon City chapter in an acting capacity.

Annexed to Parlade's petition is an affidavit of Arroyo dated March 2, 1981, or two days after the election, wherein he alleged that he asked Acierto to hold his blank ballot while he (Arroyo) familiarized himself with the election materials and made up his mind as to the candidates for whom he would vote. He averred that he intended later on to request Acierto to write in the ballot the names of his (Arroyo's) candidates.

After some interval, Arroyo asked Acierto for his ballot. He was informed that Acierto had already filled it up by writing the name of Mortera in the space for president and that the ballot was confiscated by a member of the board of canvassers as a void ballot because voting by proxy is not allowed and its preparation violated the secrecy of the ballot.

Arroyo further alleged that Acierto was not authorized to fill up his ballot because he had not as yet apprised Acierto of his (Arroyo's) choices among the candidates for the different elective positions (p. 35, Rollo).

The crucial fact in this case is that Arroyo freely voted for Mortera with the assistance of Acierto. His vote was decisive. It gave Mortera a majority of one over Parlade.

There is no question that Arroyo, 69 (admitted to the bar in 1939), was afflicted with a physical infirmity brought about by a cerebral stroke. It may be true, as contended by Parlade, that Arroyo could sign his name as shown in his signature in the voter's list and in his aforementioned affidavit (Exh. 1 and 4-A but then that is a habitual act on his part amounting to a reflex action.

Writing the names of other persons would be a different thing and that would explain why he had to seek Acierto's assistance. Arroyo even protested against the confiscation of his ballot by Javier by saying: "Wala namang violation doon. Mababali wala naman ang pagpunta ko rito (p. 25, Rollo). Arroyo did not complain that he did not authorize Acierto to fill up his (Arroyo's) ballot.

We hold that the Board of Governors did not act with grave abuse of discretion in regarding Arroyo's ballot as a valid vote for Mortera. Hence, certiorari does not lie to annul its resolution.

As correctly observed by the respondents, the decision of the Board of Governors in election contests is final (Sec. 13, IBP By-Laws). And one of the governing principles in the integration of the bar is "maximum Bar autonomy with minimum supervision and regulation by the Supreme Court" (Report of the Commission on Bar Integration, quoted in the Resolution of this Court on Bar Integration, 69 0. G. 593, 49 SCRA 22, 25).

WHEREFORE, the petition is dismissed. The resolution of the IBP Board of Governors is affirmed. No costs.

SO ORDERED.

Fernando, C.J., Concepcion, Jr., Fernandez, Guerrero, Abad Santos, De Castro and Melencio-Herrera, JJ., concur.

Makasiar, J., reserves his vote.

Barredo and Teehankee, JJ., are on leave.

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