Avancena vs. Liwanag, 406 SCRA 300

NOT A CASE DIGEST.

DOCTRINE: Disbarment - The Code of Professional Responsibility applies to lawyers in government service in the discharge of their official tasks; Code of Professional Responsibility forbids a lawyer to engage in unlawful, dishonest, immoral or deceitful conduct; The purpose of disbarment is not meant as a punishment depriving a lawyer of a source of livelihood but rather is intended to protect the administration of justice.

EN BANC

[A. M. No. MTJ-01-1383. March 5, 2003]

PERLITA AVANCENA, complainant, vs. JUDGE RICARDO P. LIWANAG, Municipal Trial Court, San Jose del Monte, Bulacan, respondent.

D E C I S I O N

PER CURIAM:

In a sworn Complaint dated August 23, 1999, Perlita Avancena charged Judge Ricardo P. Liwanag of the Municipal Trial Court (MTC) of San Jose del Monte, Bulacan with violation of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, in connection with Criminal Cases Nos. 7258-97 and 7259-97 being heard by respondent.

Complainant alleged that: she is the accused in Criminal Cases Nos. 7258-97 and 7259-97 for violation of Batas Pambansa Blg. 22; on May 5, 1999, her counsel filed a Motion to Postpone Promulgation and to Re-open Trial to Allow Accused to Present Further Evidence; following the opposition filed by the prosecution and her reply thereto, respondent denied the motion on the ground that she was ably represented by counsel during the trial of the case; prior to the dismissal of her motion, respondent summoned her to his chamber where he told her that she will be convicted on May 7, 1999 unless she pays him the amount of One Million Pesos (P1,000,000.00); respondent assured her that he will take care of the fiscal and the private complainant; she refused to pay the amount since her unpaid balance was only One Hundred Forty Thousand Pesos (P140,000.00) and so, there is no reason for her to pay the One Million Pesos (P1,000,000.00) demanded; through a court personnel, respondent summoned her again and told her to raise only Five Hundred Thousand Pesos (P500,000.00) if she could not afford the One Million Pesos (P1,000,000.00) and the cases will be archived; prior to the hearing on July 2, 1999, respondent sent Raymunda Flores, a close friend of the judge and offended party in the criminal case, to her (complainants) house; Flores told her that she was tasked by the respondent to bring her to his chamber but she refused; a certain Cora Espaola, Court Interpreter of the MTC, told her through the telephone that respondent would be waiting for her until 4:30 in the afternoon; when she called the respondent, the latter told her that if she did not give the amount of Five Hundred Thousand Pesos (P500,000.00), he would continue with the promulgation on July 12, 1999 and would not allow her to file any motion for bail unless she pays a fine of Four Hundred Thousand Pesos (P400,000.00).

In his Comment dated October 7, 1999, respondent claimed that: the presentation of the original copies of the check which was the subject of the earlier Motion to Postpone Promulgation and to Reopen Trial to Allow Accused to Present Further Evidence filed after the presentation and formal offer of evidence by the defense, was deemed by the court as a mere dilatory move; it was not necessary because the defense had previous opportunities to compare the originals with the xerox copies which were marked when the prosecution presented its evidence; the claim of the complainant that he demanded One Million Pesos (P1,000.000.00) from her is a lie and a fabrication; he could not offer to take care of the fiscal or public prosecutor because the case had already reached the stage when the evidence of both parties have long been offered and could no longer be altered or recalled, much less withdrawn; it is unthinkable that he would demand such staggering amount of One Million Pesos (P1,000,000.00) through a court personnel because availing of such a conduct would be the height of irresponsibility; his alleged close friendship with Raymunda Flores is not true; he could not have conspired with his court interpreter to call the accused-complainant because that would have generated suspicion as the case had long been set for promulgation; the allegation that he had warned her that after promulgation and in the event of conviction, she would immediately be imprisoned without bail unless she paid a fine of Four Hundred Thousand Pesos (P400,000.00) is false because the accused was assisted by a competent counsel and therefore knows that there is a period of appeal and as long as the decision had not become final and executory, the accused is allowed to temporarily enjoy his or her freedom.

In a Resolution dated November 26, 2001, the case was re-docketed as Administrative Matter No. MTJ-01-1383 and referred to Executive Judge Oscar C. Herrera, Jr. of the Regional Trial Court (RTC) Malolos, Bulacan for investigation, report and recommendation.

Judge Herrera conducted lengthy hearings on the case. Complainant Perlita Avancena testified in support of her complaint while respondent testified on his defense. Thereafter, the administrative case was deemed submitted for decision.

Upon motion of complainant to re-open trial and to allow complainant to present rebuttal evidence, Judge Herrera re-opened the hearing. Joselito Guillen of the National Bureau of Investigation (NBI) testified on the entrapment operation conducted on respondent on the basis of a complaint of alleged extortion by herein complainant. Atty. Salvador C. Quimpo, counsel of complainant in the criminal cases before the respondent, corroborated the testimony of complainant on the occasion when respondent told them ayusin na lang ang kasong ito and showed to him a draft decision convicting complainant in the two criminal cases.

Respondent testified on sur-rebuttal denouncing the allegations of the complainants additional witnesses as fabricated lies. Thereafter, the parties agreed to terminate the presentation of evidence.

In his Report, dated June 15, 2002, Judge Herrera gave more weight to the testimonies of complainant and her witnesses and concluded that the charges against respondent are true.

The following are the findings of fact and conclusions of Judge Herrera, quoted verbatim:

The undersigned closely observed the conduct and demeanor of the complainant during the investigation. She was forthright and testified in a spontaneous manner. Her declarations were clear, convincing and consistent with the averments in her verified complaint dated August 23, 1999 (Exh. A) filed with the Supreme Court. She claimed that the very first time she was summoned to the chamber of respondent judge prior to the initial date set for promulgation of judgment, she was shown by respondent judge himself with a draft of the decision convicting her in the two (2) criminal cases in question. At one point, complainant nearly shed tears as she narrated that she was practically harassed and coerced by respondent judge into giving in to his demand, and that she was affected emotionally and psychologically by the intimidations of the respondent. Nothing in her demeanor indicated that she was fabricating a lie against respondent judge.

The declarations of complainant find support in the testimonies of NBI Agent Joselito Guillen and Atty. Salvador Quimpo.

NBI Agent Guillen testified that he prepared the marked money for an entrapment operation against respondent judge because of the complaint for extortion lodged by complainant. The operation was actually carried out but it was unsuccessful because the judge had some visitors in his house when the pay-off was to be made by the complainant. The fact that a complaint for extortion was lodged against respondent judge and an actual entrapment operation was laid and carried out, albeit unsuccessful, lends credence to the charge made by complainant against respondent judge. There was no showing whatsoever that he was actuated by any improper motive in testifying against respondent judge.

Atty. Quimpo, on the other hand, insisted that he was with complainant when summoned at one instance by the respondent in his chamber. He himself was shown by respondent judge with a draft of the decision saying ayusin na lang ang kasong ito. Although it may be said that he is biased against respondent judge for the partially unfavorable decision rendered by the latter against Ms. Avancena, there is also no showing that he was actuated by any improper motive in testifying against the judge. A member of the bar in good standing, there was similarly nothing in his demeanor indicating that he was fabricating a lie against respondent judge.

Upon the other hand, the denial of respondent judge and his claim that he is being harassed by complainant do not appear to be credible. His denial cannot prevail over the clear, straightforward and positive assertions of complainant. Respondent judges contention that he could not have threatened to convict complainant in the two (2) criminal cases because his decision convicted her only in one case and acquitted her in the other, is specious and unacceptable.

By respondent judges own admission, the decision in Criminal Cases Nos. 7258-97 and 7259-98 was originally set for promulgation on May 7, 1999 but was eventually promulgated only on August 27, 1999, or almost four (4) months after the original schedule. While he attributes this to dilatory motions filed by complainant and counsel all of which he denied, the fact of the matter is that he could have proceeded with the promulgation on the original date set, unless he himself had wanted it to be delayed in anticipation of complainants heeding his demand for money. Also, the period of almost four (4) months was enough time to make changes in the text of the decision. In the light of the accusation against him now, it is self-serving for respondent judge to claim that the text of the decision he was supposed to promulgate on May 7, 1999 is exactly the same as that which was actually promulgated on August 27, 1999.

However, Judge Herrera did not recommend a specific penalty to be meted out to respondent.

In its Memorandum dated November 12, 2002, the Office of the Court Administrator (OCA) adopted the findings of the Investigating Judge that respondent be found guilty of violation of R.A. 3019 and recommended to the Court that respondent be fined in the amount of Forty Thousand Pesos (P40,000.00).

In administrative proceedings, the quantum of proof required to establish a respondents malfeasance is not proof beyond reasonable doubt but substantial evidence, i.e., that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion, is required. Faced with the conflicting versions of complainant and respondent, the Court gives more weight to the allegations and testimony of the complainant and her witnesses who testified clearly and consistently before the Investigating Judge.

Complainant remained steadfast throughout her testimony that respondent demanded from her a number of times prior to the promulgation of the decision the amount of One Million Pesos (P1,000,000.00) which was later reduced to Five Hundred Thousand Pesos (P500,000.00). She was courageous enough to move for respondents inhibition in the criminal cases being heard by him because of this, but the same proved futile.

NBI Agent Joselito Guillen testified that the NBI conducted an entrapment operation on respondent, albeit the same was unsuccessful. Nonetheless, his testimony bolsters complainants allegation of the extortion attempts of the respondent in exchange for a decision of acquittal is not a fabrication or an absurd concoction of complainant or her lawyer in retaliation for a verdict of conviction in the criminal cases.

Furthermore, the fact that respondent acquitted complainant in one of the criminal cases against her is not a valid defense to prove that he did not demand money from complainant.

The Court finds noteworthy the period of almost four (4) months which elapsed from May 7, 1999, the date originally set for promulgation of the decision in Criminal Cases Nos. 7258-97 and 7259-97, and August 27, 1999, the date it was actually promulgated. It indicates a deliberate effort on the part of the respondent to delay the promulgation of the decision in order to give complainant more time to raise the money demanded by him. Notably, respondent failed to satisfactorily explain the delay in the promulgation of the decision in complainants cases.

The Court agrees with the observation of the Investigating Judge that the period of almost four (4) months was enough time to make changes in the text of the decision, and therefore, it is self-serving for respondent judge to claim that the text of the decision he was supposed to promulgate on May 7, 1999 is exactly the same as that which was actually promulgated on August 27, 1999.

In addition, verification with the OCA discloses that aside from the instant complaint, respondent judge has other pending administrative complaints filed against him. In A.M. No. MTJ-02-1418, respondent judge stands charged with Grave Misconduct, Conduct Unbecoming of a Member of the Judiciary and Grave Abuse of Authority, while in A.M. No. MTJ-02-1460 he stands indicted for Graft and Corruption, Manifest Bias and Partiality. Respondent is presently under preventive suspension per Resolution dated July 17, 2002 in A.M. No. MTJ-02-1440 pending resolution of the judicial audit and physical inventory of the cases of MTC of San Jose Del Monte, Bulacan. Needless to state, these circumstances only further erode the peoples faith and confidence in the judiciary for it is the duty of all members of the bench to avoid any impression of impropriety to protect the image and integrity of the judiciary which in recent times has been the object of criticism and controversy.

Taking into account the established facts of this case and the above circumstances, the Court believes that the imposition of fine recommended by the OCA is not commensurate to the gravity of respondents malfeasance.

A judge should always be a symbol of rectitude and propriety, comporting himself in a manner that will raise no doubt whatsoever about his honesty. Integrity in a judicial office is more than a virtue; it is a necessity. In this case, it is not only improper for a judge to meet privately with the accused without the presence of the complainant but the conduct of respondent shows that his decisions are influenced by monetary considerations. His act alone of demanding money from a party-litigant in exchange for a favorable verdict constitutes serious misconduct in office. It is this kind of gross and flaunting misconduct in office, which erodes the respect for law and the courts. The fact that the complainant was not able to give him the money demanded does not make the offense of the respondent nor the penalty therefor, any lighter.

Under Section 3 of Rule 140 of the Rules of Court, violations of the Anti-Graft & Corrupt Practices Law (R.A. No. 3019) are considered serious charges. Section 10 of the same Rule provides the following sanctions that may be imposed for a serious charge: (a) dismissal from the service with forfeiture of benefits, except accrued leaves, and disqualification from reinstatement or appointment to any public office including a government-owned or controlled corporation; (b) suspension for three (3) to six (6) months without salary and benefits; or (c) a fine of not less than Twenty Thousand Pesos (P20,000.00) but not more than (P40,000.00).

Respondent tainted the image of the Judiciary to which he owes fealty and the obligation to keep it at all times unsullied and worthy of the peoples trust. Violation of R.A. 3019 affects the moral fiber and personal integrity of respondent. He becomes an ineffective tool in the administration of justice and the court over which he is called to preside will be a mockery, one devoid of respect. There is no place in the judiciary for those who cannot meet the exacting standards of judicial conduct and integrity. Respondent does not deserve to remain in the Judiciary, where integrity is an indispensable credential, and should accordingly be removed from the service.

The Court once again reminds all those who don judicial robes that no position exacts a greater demand on moral righteousness and uprightness of an individual than a seat in the judiciary.[18] While a judge should possess proficiency in law in order that he can competently construe and enforce the law, it is equally important that he must at all times maintain and preserve the trust and faith of parties litigants in court.

WHEREFORE, Judge Ricardo P. Liwanag is DISMISSED from service with prejudice to re-employment in any government agency and government-owned or controlled corporation and with forfeiture of all retirement benefits except accrued leave credits.

Further, pursuant to A.M. No. 02-9-02-SC, which took effect on October 1, 2002, respondent is required to show cause within ten (10) days from notice why he should not also be disbarred from the practice of law for conduct unbecoming of a member of the bar.

This decision shall take effect immediately.

SO ORDERED.

Tadlip vs. Borres, Jr. 474 SCRA 441

DOCTRINES:

• A lawyer assumes responsibilities well beyond the basic requirements of good citizenship – as a servant of the law, a lawyer should moreover make himself an examplar of others to emulate.
• A member of the bar who assumes public office does not shed his professional obligations – the Code of Professional Responsibility was not meant to govern the conduct of private practitioners alone, but of all lawyers including those in the government service. 

FACTS: 
This case involves a parcel land of land situated in Mambajao, Camiguin which was issued OCT No. P-106, Emancipation Patent No. A-028380 by the MAR to Eusebio Arce. The land was formerly owned by Angel Madarieta. 


Subsequently, a Deed of Transfer under PD 27 was executed by Angel Madarieta, as represented by his wife, Pelagia Madarieta and Eusebio Arce. 


Six years later Arce died and was succeeded by two minors and Tadlip, his nephew, assumed the responsibility of tilling the land. Tadlip caused the reallocation of the disputed land.


Respondent, as PARAD of DARAB issued an order dated 3 April 1998 granting the petition of complainant reallocating the land to him and heirs of Arce. However, the title was never transferred to the complainant and the heirs of Arce because unknown to them respondent rendered another Order dated 26 January 1999 cancelling the registration of the same OCT No. P-106 and ordering the issuance of a TCT ex parte in favor of Madarieta. He also approved the motion of execution filed by Madarieta. 


 ISSUE: Whether the respondent is guilty of gross ignorance of the law.


HELD: 

Respondent's non-observance of the DARAB Rules on notice and hearing and his grant to Madarieta of her motion for execution pending appeal in effect deprived complainant of the land he tills and the source of his income. Complainant woke up one day not knowing that the emancipated land which he thought was already reallocated to him was lost by order of respondent. He was not given the chance to defend his claim over the property. This is tantamount to deprivation of property without due process of law, a constitutional guarantee available to every individual.

The actual review of the subject issuance of the respondent should be undertaken in the proper judicial proceedings, and not by this Court at this time via an administrative action. Nevertheless, respondent's culpability under the Code of Professional Responsibility is indubitable. As a lawyer, the IBP determined, and we subscribe to such determination, that respondent violated Canon 1 of the Code of Professional Responsibility which states:

Canon 1A lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law and for legal processes.


While the duty to uphold the Constitution and obey the laws is an obligation imposed upon every citizen, a lawyer assumes responsibilities well beyond the basic requirements of good citizenship. As a servant of the law, a lawyer should moreover make himself an exemplar of others to emulate.


A member of the bar who assumes public office does not shed his professional obligations. Hence the Code of Professional Responsibility, promulgated on 21 June 1988, was not meant to govern the conduct of private practitioners alone, but of all lawyers including those in government service. This is clear from Canon 6 of the said Code. Lawyers in government service are public servants who owe the utmost fidelity to the public service. Thus they should be more sensitive in the performance of their professional obligations, as their conduct is subject to the ever-constant scrutiny of the public.

Respondent, as a Provincial Adjudicator of the DARAB, was reposed with a higher gravamen of responsibility than a lawyer in private practice. The recommended penalty of two months suspension is too light under the circumstances, and a penalty of six (6) months' suspension more appropriate.

As held in recent cases, the penalty for a judge found to be guilty of gross ignorance of the law is six (6) months. In the case at bar, after due consideration of the facts involved, the Court believes and so holds that the same penalty should be imposed upon respondent as he disregarded pertinent rules of procedure of the DARAB that led to the unjust deprivation of complainant of his property.

WHEREFORE, premises considered, respondent is hereby SUSPENDED from the practice of law for a period of six (6) months. 

In Re: Al C. Argosino 246 SCRA 14 (1995)

IN MATTER OF THE ADMISSION TO THE BAR AND OATH-TAKING OF SUCCESSFUL BAR APPLICANT AL C. ARGOSINO


DOCTRINES:

• The practice of law is a high personal privilege limited to citizens of good moral character, with special education qualifications, duly ascertained and certified.
• Requirement of good moral character is of greater importance so far as the general public and proper administration of justice is concerned. 
• All aspects of moral character and behavior may be inquired into in respect of those seeking admission to the Bar.
• Requirement of good moral character to be satisfied by those who would seek admission to the bar must be a necessity more stringent than the norm of conduct expected from members of the general public.
• Participation in the prolonged mindless physical beatings inflicted upon Raul Camaligan constituted evident rejection of that moral duty and was totally irresponsible behavior, which makes impossible a finding that the participant was possessed of good moral character. 
• Good moral character is a requirement possession of which must be demonstrated at the time of the application for permission to take the bar examinations and more importantly at the time of application for admission to the bar and to take the attorney's oath of office.

FACTS:

On February 4, 1992 ,Argosino, together with 13 others, was charged with the crime of homicide in connection with the death of one Raul Camaligan. The death of Camaligan stemmed from the affliction of severe physical injuries upon him in course of "hazing" conducted as part of the university fraternity initiation rites. On February 11, 1993, the accused were consequently sentenced to suffer imprisonment for a period ranging from two (2) years, four (4) months and one (1) day to four (4) years.

Eleven (11) days later, Mr. Argosino and his colleagues filed an application for probation with the lower court. The application was granted on June 18 1993. The period of probation was set at two (2) years, counted from the probationer's initial report to the probation officer assigned to supervise him. 

Less than a month later, Argosino filed a petition to take the bar exam. He was allowed and he passed the exam, but was not allowed to take the lawyer's oath of office.

On April 15, 1994, Argosino filed  a petition to allow him to take the attorney's oath and be admitted to the practice of law. He averred that his probation period had been terminated. It is noted that his probation period did not last for more than 10 months. 

ISSUE: Whether Argosino should be allowed to take the oath of attorney and be admitted to the practice of law

HELD:

Mr. Argosino must submit to this Court evidence that he may now be regarded as complying with the requirement of good moral character imposed upon those who are seeking admission to the bar. He should show to the Court how he has tried to make up for the senseless killing of a helpless student to the family of the deceased student and to the community at large. In short, he must show evidence that he is a different person now, that he has become morally fit for admission to the profession of law.

He is already directed to inform the Court, by appropriate written manifestation, of the names of the parents or brothers and sisters of Camaligan from notice. 

Tan vs. Sabandal, 206 SCRA 473 (1992)

DOCTRINES:

• The practice of law is not a matter of right.
• No moral qualification for bar membership is more important than truthfulness or candor. 

FACTS:

Respondent Sabandal passed the 1978 Bar Examinations but was denied to take his oath in view of the finding of the Court that he was guilty of unauthorized practice of law. Since then, he had filed numerous petitions for him to be allowed to take his lawyer's oath.

Acting to his 1989 petition, the Court directed the executive judge of the province where Sabandal is domiciled to submit a comment on respondent's moral fitness to be a member of the Bar. In compliance therewith, the executive judge stated in his comment that he is not aware of any acts committed by the respondent as would disqualify him to from admission to the Bar. However, he added that respondent has a pending civil case before his court for cancellation/reversion proceedings, in which respondent, then working as Land Investigator of the Bureau of Lands, is alleged to have secured a free patent and later a certificate of title to a parcel of land which, upon investigation, turned out to be a swampland and not susceptible of acquisition under a free patent, and which he later mortgaged to the bank. The mortgage was later foreclosed and the land subsequently sold at public auction and respondent has not redeemed the land since then.


The case was however been settled through amicable settlement. The said amicable settlement canceled the OCT under Free Patent in the name of Sabandal and his mortgage in the bank; provided for the surrender of the certificate of title to the RD for proper annotation; reverted to the mass of public domain the land covered by the aforesaid certificate of title with respondent refraining from exercising acts of possession or ownership over the said land. Respondent also paid the bank a certain sum for the loan and interest.


ISSUE: Whether the respondent may be admitted to the practice of law considering that he already submitted three (3) testimonials regarding his good moral character, and his pending civil case has been terminated.


HELD: 
His petition must be denied.


Time and again, it has been held that practice of law is not a matter of right. It is a privilege bestowed upon individuals who are not only learned in the law but who are also known to possess good moral character. 


It should be recalled that respondent worked as Land Investigator at the Bureau of Lands. Said employment facilitated his procurement of the free patent title over the property which he could not but have known was a public land. This was manipulative on his part and does not speak well of his moral character. It is a manifestation of gross dishonesty while in the public service, which cannot be erased by the termination of the case and where no determination of guilt or innocence was made because the suit has been compromised. This is a sad reflection of his sense of honor and fair dealings.


Moreover, his failure to reveal to the Court the pendency of the civil case for Reversion filed against him during the period that he was submitting several petitions and motions for reconsiderations reveal his lack of candor and truthfulness.


Although, the term "good moral character" admits of broad dimensions, it has been defined as "including at least common dishonesty." It has also been held that no moral qualification for membership is more important than truthfulness or candor.

Aguirre vs. Rana, 403 SCRA 342 (2003)

DOCTRINES: 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 acts which are usually performed by members of the legal profession

Having held himself out as ³counsel´ knowing that he had no authority to practice law, respondent has shown moral unfitness to be a member of the Philippine Bar.

The practice of law is a privilege that can be withheld even from one who has passed the bar examinations, if the person seeking admission had practiced law without a license.

Under Section 3 (e) of Rule 71 of the Rules of Court, a person who engages in the unauthorized practice of law is liable for indirect contempt of court.

It is the signing in the Roll of Attorneys that finally makes one a full-fledged lawyer. The fact that respondent passed the bar examinations is immaterial. 

THE CASE:

Before one is admitted to the Philippine Bar, he must possess the requisite moral integrity for membership in the legal profession. Possession of moral integrity is of greater importance than possession of legal learning. The practice of law is a privilege bestowed only on the morally fit. A bar candidate who is morally unfit cannot practice law even if he passes the bar examinations.

FACTS:

Respondent Rana was among those who passed the 2000 Bar Examinations.

On 21 May 2001, one day before the scheduled mass oath-taking of successful bar examinees as members of the Philippine Bar, complainant Donna Marie Aguirre filed against respondent a Petition for Denial of Admission to the Bar. Complainant charged respondent with unauthorized practice of law, grave misconduct, violation of law, and grave misrepresentation.

The Court allowed respondent to take his oath as a member of the Bar during the scheduled oath-taking. However, the Court ruled that respondent could not sign the Roll of Attorneys pending the resolution of the charge against him. Thus, respondent took the lawyer’s oath on the scheduled date but has not signed the Roll of Attorneys up to now.

Complainant charges respondent for unauthorized practice of law and grave misconduct. Complainant alleges that respondent, while not yet a lawyer, appeared as counsel for a candidate in the May 2001 elections before the Municipal Board of Election Canvassers (MBEC´) of Mandaon, Masbate and filed with the MBEC a pleading where he represented himself as counsel for and in behalf of Vice Mayoralty Candidate, George Bunan,and signed the pleading as counsel for George Bunan.

On the charge of violation of law, complainant claims that respondent is a municipal government employee, being a secretary of the Sangguniang Bayan of Mandaon, Masbate. As such, respondent is not allowed by law to act as counsel for a client in any court or administrative body.

On the charge of grave misconduct and misrepresentation, complainant accuses respondent of acting as counsel for vice mayoralty candidate George Bunan without the latter engaging respondent’s services. Complainant claims that respondent filed the pleading as a ploy to prevent the proclamation of the winning vice mayoralty candidate.

On 22 May 2001, the Court issued a resolution allowing respondent to take the lawyer’s oath but disallowed him from signing the Roll of Attorneys until he is cleared of the charges against him. In the same resolution, the Court required respondent to comment on the complaint against him.

In his Comment, respondent admits that Bunan sought his specific assistance´ to represent him before the MBEC. Respondent claims that he decided to assist and advice Bunan, not as a lawyer but as a person who knows the law.´ Respondent admits signing the 19 May 2001 pleading that objected to the inclusion of certain votes in the canvassing. He explains, however, that he did not sign the pleading as a lawyer or represented himself as an attorney´ in the pleading.

On his employment as secretary of the Sangguniang Bayan, respondent claims that he submitted his resignation on 11 May 2001 which was allegedly accepted on the same date. He submitted a copy of the Certification of Receipt of Revocable Resignation dated 28 May 2001 signed by Vice-Mayor Napoleon Relox. Respondent further claims that the complaint is politically motivated considering that complainant is the daughter of Silvestre Aguirre, the losing candidate for mayor of Mandaon, Masbate. Respondent prays that the complaint be dismissed for lack of merit and that he be allowed to sign the Roll of Attorneys.

On 22 June 2001, complainant filed her Reply to respondent’s Comment and refuted the claim of respondent that his appearance before the MBEC was only to extend specific assistance to Bunan. Complainant alleges that on 19 May 2001 Emily Estipona-Hao filed a petition for proclamation as the winning candidate for mayor. Respondent signed as counsel for Estipona-Hao in this petition. When respondent appeared as counsel before the MBEC, complainant questioned his appearance on two grounds: (1) respondent had not taken his oath as a lawyer; and (2) he was an employee of the government.

Respondent filed a Reply reiterating his claim that the instant administrative case is motivated mainly by political vendetta. On 17 July 2001, the Court referred the case to the Office of the Bar Confidant (OBC´) for evaluation, report and recommendation.

OBC’s Report and Recommendation

The OBC found that respondent indeed appeared before the MBEC as counsel for Bunan in the May 2001 elections. The minutes of the MBEC proceedings show that respondent actively participated in the proceedings. The OBC likewise found that respondent appeared in the MBEC proceedings even before he took the lawyer’s oath on 22 May 2001. The OBC believes that respondent’s misconduct casts a serious doubt on his moral fitness to be a member of the Bar. The OBC also believes that respondent’s unauthorized practice of law is a ground to deny his admission to the practice of law. The OBC therefore recommends that respondent be denied admission to the Philippine Bar.

On the other charges, OBC stated that complainant failed to cite a law which respondent allegedly violated when he appeared as counsel for Bunan while he was a government employee. Respondent resigned as secretary and his resignation was accepted. Likewise, respondent was authorized by Bunan to represent him before the MBEC.

HELD: 

We agree with the findings and conclusions of the OBC that respondent engaged in the unauthorized practice of law and thus does not deserve admission to the Philippine Bar.

Respondent took his oath as lawyer on 22 May 2001. However, the records show that respondent appeared as counsel for Bunan prior to 22 May 2001, before respondent took the lawyer’s oath. In the pleading entitled Formal Objection to the Inclusion in the Canvassing of Votes in Some Precincts for the Office of Vice-Mayor dated 19 May 2001, respondent signed as counsel for George Bunan.´ In the first paragraph of the same pleading respondent stated that he was the³(U)ndersigned Counsel for, and in behalf of Vice Mayoralty Candidate, GEORGE T . BUNAN.´ Bunan himself wrote the MBEC on 14 May 2001 that he had authorized Atty. Edwin L. Rana as his counsel to represent him´ before the MBEC and similar bodies.

On 14 May 2001, mayoralty candidate Emily Estipona-Hao also retained´ respondent as her counsel. On the same date, 14 May 2001, Erly D. Hao informed the MBEC that Atty. Edwin L. Rana has been authorized by REFORMA LM-PPC as the legal counsel of the party and the candidate of the said party.´ Respondent himself wrote the MBEC on 14 May 2001 that he was entering his appearance as counsel for Mayoralty Candidate Emily Estipona-Hao and for the REFORMA LM-PPC.´ On 19 May 2001, respondent signed as counsel for Estipona-Hao in the petition filed before the MBEC praying for the proclamation of Estipona-Hao as the winning candidate for mayor of Mandaon, Masbate.

All these happened even before respondent took the lawyer’s oath. Clearly, respondent engaged in the practice of law without being a member of the Philippine Bar.

In Philippine Lawyers Association v. Agrava, the Court elucidated that: 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, conveyancing. 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. Jur. p. 262, 263). (Italics supplied) x x x

In Cayetano v. Monsod, the Court held that ³practice 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 acts which are usually performed by members of the legal profession. Generally, to practice law is to render any kind of service which requires the use of legal knowledge or skill.

Verily, respondent was engaged in the practice of law when he appeared in the proceedings before the MBEC and filed various pleadings, without license to do so. Evidence clearly supports the charge of unauthorized practice of law. Respondent called himself ³counsel´ knowing fully well that he was not a member of the Bar. Having held himself out as ³counsel´ knowing that he had no authority to practice law, respondent has shown moral unfitness to be a member of the Philippine Bar.

The right to practice law is not a natural or constitutional right but is a privilege. It is limited to persons of good moral character with special qualifications duly ascertained and certified. The exercise of this privilege presupposes possession of integrity, legal knowledge, educational attainment, and even public trust since a lawyer is an officer of the court. A bar candidate does not acquire the right to practice law simply by passing the bar examinations. The practice of law is a privilege that can be withheld even from one who has passed the bar examinations, if the person seeking admission had practiced law without a license.

The regulation of the practice of law is unquestionably strict. In Beltran,Jr. v Abad, a candidate passed the bar examinations but had not taken his oath and signed the Roll of Attorneys. He was held in contempt of court for practicing law even before his admission to the Bar. Under Section 3 (e) of Rule 71 of the Rules of Court, a person who engages in the unauthorized practice of law is liable for indirect contempt of court.

True, respondent here passed the 2000 Bar Examinations and took the lawyer’s oath. However, it is the signing in the Roll of Attorneys that finally makes one a full-fledged lawyer. The fact that respondent passed the bar examinations is immaterial. Passing the bar is not the only qualification to become an attorney-at-law. Respondent should know that two essential requisites for becoming a lawyer still had to be performed, namely: his lawyer’s oath to be administered by this Court and his signature in the Roll of Attorneys.

On the charge of violation of law, complainant contends that the law does not allow respondent to act as counsel for a private client in any court or administrative body since respondent is the secretary of the Sangguniang Bayan.

Respondent tendered his resignation as secretary of the Sangguniang Bayan prior to the acts complained of as constituting unauthorized practice of law. In his letter dated 11 May 2001 addressed to Napoleon Relox, vice- mayor and presiding officer of the Sangguniang Bayan, respondent stated that he was resigning ³effective upon your acceptance.´ Vice-Mayor Relox accepted respondent's resignation effective 11 May 2001. Thus, the evidence does not support the charge that respondent acted as counsel for a client while serving as secretary of the Sangguniang Bayan.

On the charge of grave misconduct and misrepresentation, evidence shows that Bunan indeed authorized respondent to represent him as his counsel before the MBEC and similar bodies. While there was no misrepresentation, respondent nonetheless had no authority to practice law.

WHEREFORE, respondent Edwin L. Rana is DENIED admission to the Philippine Bar.

Borja, Sr. vs. Sulyap, Inc. 399 SCRA 601 (2003)

DOCTRINE: "Private practice" of a profession, specifically the law profession does not pertain to an isolated court appearance; rather, it contemplates a succession of acts of the same nature habitually or customarily holding ones self to the public as a lawyer.


FACTS: Basilio Borja, Sr. as lessor, and Sulyap, Inc., as lessee, entered into a contract of lease involving a one-storey office building owned by Borja located at New Manila, Quezon City. Pursuant to the lease, Sulyap, Inc. paid, among others, advance rentals, association dues and deposit for electrical and telephone expenses. Upon the expiration of their lease contract, Sulyap demanded the return of the said advance rentals, dues and deposit but Borja refused to do so. Thus, Sulyap filed with the RTC of QC a complaint for sum of money against Borja. Subsequently, the parties entered into and submitted to the trial court a “Compromise Agreement” stating that Borja is bound to pay the amounts P30,575 and P50,000 and in case any amount due is not paid within the period stated in this agreement shall earn 2% interest per month until fully paid plus 25% attorney’s fees of the amount collectible and that writ of execution shall be issued as a matter of right.

Petitioner, however, failed to pay the amounts stated in the judicial compromise. Sulyap filed a writ of execution against Borja. The Trial Court granted the writ. Borja motioned to quash the writ by stating that his failure to pay the amounts within the agreed period was due to Sulyap’s fault; therefore, the penalty clause should not be imposed.

Borja filed another motion praying for the quashal of the writ of execution and modification of the decision. This time, he contended that there was fraud in the execution of the compromise agreement. He claimed that 3 sets of compromise agreement were submitted for his approval. Among them, he allegedly chose and signed the compromise agreement which contained no stipulation as to the payment of 2% monthly interest and 25% attorney’s fees in case of default in payment. He alleged that his former counsel, Atty. Leonardo Cruz, who assisted him in entering into the said agreement, removed the page of the genuine compromise agreement where he affixed his signature and fraudulently attached the same to the compromise agreement submitted to the court in order to make it appear that he agreed to the penalty clause embodied therein.

Sulyap presented Atty. Cruz as witness, who declared that the petitioner gave his consent to the inclusion of the penalty clause of 2% monthly interest and 25% attorney’s fees in the compromise agreement. He added that the compromise agreement approved by the court was in fact signed by the petitioner inside the courtroom before the same was submitted for approval. Atty. Cruz stressed that the penalty clause of 2% interest per month until full payment of the amount due, plus 25% thereof as attorney’s fees, in case of default in payment, was actually chosen by the petitioner.

The trial court ruled in favour of Sulyap because it gave credence to the testimony of Atty. Cruz and even noted that it was more than one year from receipt of the judgment on compromise on October 25, 1995, when he questioned the inclusion of the penalty clause in the approved compromise agreement despite several opportunities to raise said objection.

ISSUE: Whether  Borja is bound by the penalty clause in the compromise agreement. 

HELD: YES. While a judicial compromise may be annulled or modified on the ground of vitiated consent or forgery, we find that the testimony of the petitioner failed to establish the attendance of fraud in the instant case. No evidence was presented by petitioner other than his bare allegation that his former counsel fraudulently attached the page of the genuine compromise agreement where he affixed his signature to the compromise agreement submitted to the court.

Petitioner cannot feign ignorance of the existence of the penalty clause in the compromise agreement approved by the court. When he received the judgment reproducing the full text of the compromise agreement, to February 19, 1997, he never raised the issue of the fraudulent inclusion of the penalty clause in their agreement. We note that petitioner is a doctor of medicine. He must have read and understood the contents of the judgment on compromise. In fact, on November 13, 1995, he filed, without the assistance of counsel, a motion praying that the amounts of P50,000.00 and 37,575.00 be withheld from his total obligation and instead be applied to the expenses for the repair of the leased premises which was allegedly vandalized by the private respondent

Even assuming that Atty. Leonardo Cruz exceeded his authority in inserting the penalty clause, the status of the said clause is not void but merely voidable, i.e., capable of being ratified.17 Indeed, petitioner’s failure to question the inclusion of the 2% monthly interest and 25% attorney’s fees in the judicial compromise despite several opportunities to do so was tantamount to ratification. Hence, he is estopped from assailing the validity thereof.

Finally, we find no merit in petitioner's contention that the compromise agreement should be annulled because Atty. Cruz, who assisted him in entering into such agreement, was then an employee of the Quezon City government, and is thus prohibited from engaging in the private practice of his profession. Suffice it to state that the isolated assistance provided by Atty. Cruz to the petitioner in entering into a compromise agreement does not constitute a prohibited "private practice" of law by a public official. "Private practice" of a profession, specifically the law profession does not pertain to an isolated court appearance; rather, it contemplates a succession of acts of the same nature habitually or customarily holding ones self to the public as a lawyer. Such was never established in the instant case.