Before leaving them, she promised to inform them as soon as the documents for
[A.C. No. 11078. July 19, 2016.]
VERLITA V. MERCULLO and RAYMOND
VEDANO, complainants, vs. ATTY. MARIE FRANCES E.
RAMON, respondent.
DECISION
BERSAMIN, J p:
This case concerns the complaint for the disbarment of Atty. Marie Frances E.
Ramon for violating Rule 1.01, Canon 1 of the Code of Professional Responsibility and the
Lawyer's Oath for deceiving the complainants in order to obtain the substantial amount
of P350,000.00 on the pretext of having the foreclosed asset of the latter's mother
redeemed.
Antecedents
In the period from 2002 to 2011, the National Home Mortgage Finance
Corporation (NHMFC) sent several demand letters to Carmelita T. Vedaño 1 regarding
her unpaid obligations secured by the mortgage covering her residential property in
Novaliches, Caloocan City. 2 To avoid the foreclosure of the mortgage, Carmelita
authorized her children, Verlita Mercullo and Raymond Vedaño (complainants herein),
to inquire from the NHMFC about the status of the obligations. Verlita and Raymond
learned that their mother's arrears had amounted to P350,000.00, and that the matter
of the mortgage was under the charge of respondent Atty. Ramon, but who was not
around at that time.
On June 20, 2012, Carmelita received a letter from the sheriff of the Regional
Trial Court (RTC) in Caloocan City, stating that her property would be put up for auction
in July 2013. Verlita and Raymond thus went to the NHMFC to see the respondent, who
advised them about their right to redeem the property within one year from the
foreclosure. 3
In August 2013, Verlita and Raymond called up the respondent, and expressed
their intention to redeem the property by paying the redemption price. The latter
agreed and scheduled an appointment with them on August 30, 2013.
On August 30, 2013, the respondent arrived at the designated meeting place
at around 1:30 p.m., carrying the folder that Verlita and Raymond had seen at the
NHFMC when they inquired on the status of their mother's property. After the
respondent had oriented them on the procedure for redemption, the complainants
handed P350,000.00 to the respondent, who signed an acknowledgment receipt. 4 The
respondent issued two acknowledgment receipts for the redemption price and for
litigation expenses, 5 presenting to the complainants her NHMFC identification card.
1
redemption were ready for their mother's signature. 6
On September 4, 2013, the respondent met with Verlita and handed a
letter 7 that she had signed, along with the special power of attorney (SPA) for
Carmelita's signature. 8 The letter reads:
Office of the Clerk of Court and Ex Officio Sheriff
Regional Trial Court
Caloocan City
Re: Redemption of the property covered by EJF No. 7484-2013
Dear Atty. Dabalos,
Please assist Ms. Carmelita Vedano, through her Attorney-in-Fact in
redeeming the property covered by EJF No. 7484-2013. Please
provide the necessary computation as to the full redemption
amount in order for Ms. Vedano to redeem the same.
Thank you.
Truly yours,
(Sgd.)
Atty. Marie Frances E. Ramon
Verlita and Raymond went to the NHMFC on September 9, 2013 to follow up
on the redemption, but discovered that the respondent had already ceased to be
connected with the NHMFC. On September 20, 2013, they met with her at Branch 145
of the Regional Trial Court in Makati City where she was attending a hearing. She
informed them that the redemption was under process, and that the certificate of
redemption would be issued in two to three weeks time. 9 CAIHTE
After communicating through text messages with the respondent, Verlita and
Raymond finally went to see the Clerk of Court of the Regional Trial Court in Caloocan
City on November 27, 2013 to inquire on the status of the redemption. There, they
discovered that the respondent had not deposited the redemption price and had not
filed the letter of intent for redeeming the property. 10
On December 5, 2013, Verlita and Raymond again went to Branch 145 of the
Regional Trial Court in Makati City where the respondent had a hearing, and handed to
her their demand letter requiring her to return the amount she had received for the
redemption. 11 She acknowledged the letter and promised to return the money on
December 16, 2013 by depositing the amount in Verlita's bank account. However, she
did not fulfill her promise and did not show up for her subsequent scheduled hearings in
Branch 145. 12
With their attempts to reach the respondent being in vain, Verlita and
Raymond brought their disbarment complaint in the Integrated Bar of the Philippines
(IBP).
Findings and Recommendation of the IBP
 The respondent did not submit her answer when required to do so. She also As a lawyer, the respondent was proscribed from engaging in unlawful,
did not attend the mandatory conference set by the IBP despite notice. Hence, the dishonest, immoral or deceitful conduct in her dealings with others, especially clients
investigation proceeded ex parte. 13 whom she should serve with competence and diligence. 18 Her duty required her to
maintain fealty to them, binding her not to neglect the legal matter entrusted to her.
IBP Commissioner Arsenio P. Adriano submitted his Report and
Thus, her neglect in connection therewith rendered her liable. 19 Moreover, the
Recommendation, 14 whereby he found the respondent to have violated Rule 1.01 of
unfulfilled promise of returning the money and her refusal to communicate with the
the Code of Professional Responsibility for engaging in deceitful conduct, and
complainants on the matter of her engagement aggravated the neglect and dishonesty
recommended her suspension from the practice of law for two years, and her return to
attending her dealings with the complainants.
the complainants of P350,000.00. with legal interest from December 2, 2013.
The respondent's conduct patently breached Rule 1.01, Canon 1 of the Code of
The IBP Board of Governors adopted Commissioner Adriano's
Professional Responsibility, which provides:
recommendation as stated in its Resolution No. XXI-2014-929, 15 viz.:
CANON 1 — A lawyer shall uphold the constitution, obey the laws of
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED
the land and promote respect for law and for legal processes.
AND APPROVED, the Report and Recommendation of the
Investigating Commissioner in the above-entitled case, herein made Rule 1.01 A lawyer shall not engage in unlawful, dishonest, immoral,
part of this Resolution as Annex "A", and finding the or deceitful conduct. DETACa
recommendation to be fully supported by the evidence on record
Evil intent was not essential in order to bring the unlawful act or omission of
and applicable laws, and for violation of Rule 1.01 of the Code of
the respondent within the coverage of Rule 1.01 of the Code of Professional
Professional Responsibility, Atty. Marie Frances E. Ramon is
Responsibility. 20 The Code exacted from her not only a firm respect for the law and
hereby SUSPENDED from the practice of law for two (2) years
legal processes but also the utmost degree of fidelity and good faith in dealing with
and Ordered to Return the amount of Three Hundred Fifty
clients and the moneys entrusted by them pursuant to their fiduciary relationship. 21
Thousand (P350,000.00) Pesos to Complainant.
Yet another dereliction of the respondent was her wanton disregard of the
Ruling of the Court
several notices sent to her by the IBP in this case. Such disregard could only be wrong
The Court declares the respondent guilty of dishonesty and deceit. because it reflected her undisguised contempt of the proceedings of the IBP, a body
that the Court has invested with the authority to investigate the disbarment complaint
The Lawyer's Oath is a source of the obligations and duties of every lawyer.
against her. She thus exhibited her irresponsibility as well as her utter disrespect for the
Any violation of the oath may be punished with either disbarment, or suspension from
Court and the rest of the Judiciary. It cannot be understated that a lawyer in her shoes
the practice of law, or other commensurate disciplinary action. 16 Every lawyer must at
should comply with the orders of the Court and of the Court's duly constituted
no time be wanting in probity and moral fiber which are not only conditions precedent
authorities, like the IBP, the office that the Court has particularly tasked to carry out the
to his admission to the Bar, but are also essential for his continued membership in the
specific function of investigating attorney misconduct. 22
Law Profession. 17 Any conduct unbecoming of a lawyer constitutes a violation of his
oath. The respondent deserves severe chastisement and appropriate sanctions. In
this regard, the IBP Board of Governors recommended her suspension for two years
The respondent certainly transgressed the Lawyer's Oath by receiving money
from the practice of law, and her return of the amount of P350,000.00 to the
from the complainants after having made them believe that she could assist them in
complainants. The recommended penalty is not commensurate to the gravity of the
ensuring the redemption in their mother's behalf. She was convincing about her ability
misconduct committed. She merited a heavier sanction of suspension from the practice
to work on the redemption because she had worked in the NHFMC. She did not inform
of law for five years. Her professional misconduct warranted a longer suspension from
them soon enough, however, that she had meanwhile ceased to be connected with the
the practice of law because she had caused material prejudice to the clients'
agency. It was her duty to have so informed them. She further misled them about her
interest. 23 She should somehow be taught to be more ethical and professional in
ability to realize the redemption by falsely informing them about having started the
dealing with trusting clients like the complainants and their mother, who were
redemption process. She concealed from them the real story that she had not even
innocently too willing to repose their utmost trust in her abilities as a lawyer and in her
initiated the redemption proceedings that she had assured them she would do.
trustworthiness as a legal professional. In this connection, we state that the usual
Everything she did was dishonest and deceitful in order to have them part with the
mitigation of the recommended penalty by virtue of the misconduct being her first
substantial sum of P350,000.00. She took advantage of the complainants who had
offense cannot be carried out in her favor considering that she had disregarded the
reposed their full trust and confidence in her ability to perform the task by virtue of her
several notices sent to her by the IBP in this case. As to the return of the P350,000.00 to
being a lawyer. Surely, the totality of her actuations inevitably eroded public trust in the
the complainant, requiring her to restitute with legal interest is only fair and just
Legal Profession.
because she did not comply in the least with her ethical undertaking to work on the

2
 redemption of the property of the mother of the complainants. In addition, she is
sternly warned against a similar infraction in the future; otherwise, the Court will have
her suffer a more severe penalty.
WHEREFORE, the Court FINDS and HOLDS ATTY. MARIE FRANCES E.
RAMON guilty of violating Canon 1, Rule 1.01 of the Code of Professional
Responsibility and the Lawyer's Oath; SUSPENDS HER FROM THE PRACTICE OF LAW
FOR A PERIOD OF FIVE YEARS EFFECTIVE FROM NOTICE, with the STERN
WARNING that any similar infraction in the future will be dealt with more
severely; ORDERS her to return to the complainants the sum of P350,000.00 within 30
days from notice, plus legal interest of 6% per annum reckoned from the finality of this
decision until full payment; and DIRECTS her to promptly submit to this Court written
proof of her compliance within the same period of 30 days from notice of this decision.
Let copies of this decision be furnished to the Office of the Bar Confidant, to
be appended to Atty. Marie Frances E. Ramon's personal record as an attorney; to the
Integrated Bar of the Philippines; and to the Office of the Court Administrator for
dissemination to all courts throughout the country for their information and guidance.
SO ORDERED.
||| (Mercullo v. Ramon, A.C. No. 11078, [July 19, 2016])
[A.C. No. 8172. April 12, 2016.]
ALEX NULADA, complainant, vs. ATTY. ORLANDO S.
PAULMA, respondent.
RESOLUTION
PERLAS-BERNABE, J p:
The instant administrative case arose from a verified complaint 1 for
disbarment by reason of dishonesty and conviction of a crime involving moral turpitude
filed by complainant Alex Nulada (complainant) against respondent Atty. Orlando S.
Paulma (respondent).
The Facts
Complainant alleged that on September 30, 2005, respondent issued in his
favor a check in the amount of P650,000.00 as payment for the latter's debt. Because of
respondent's standing as a respected member of the community and his being a
member of the Sangguniang Bayan of the Municipality of Miagao, 2 Province of Iloilo,
complainant accepted the check without question. 3
3
Unfortunately, when he presented the check for payment, it was dishonored
due to insufficient funds. Respondent failed to make good the amount of the check
despite notice of dishonor and repeated demands, prompting complainant to file a
criminal complaint for violation ofBatas Pambansa Bilang (BP) 22 4 against
respondent, 5 before the Office of the Provincial Prosecutor, Province of Iloilo,
docketed as I.S. No. 2006-637, 6 which issued a Resolution 7 dated May 26, 2006
recommending the filing of the appropriate information against respondent before the
Municipal Trial Court of Miagao, Province of Iloilo (MTC). 8 Subsequently, said
information was docketed as Criminal Case No. 2604. 9
After due proceedings, the MTC rendered a Decision 10 dated October 30,
2008 finding respondent guilty of violation of BP 22 and ordering him to pay the
amount of P150,000.00 as fine, with subsidiary imprisonment in case of failure to pay.
Furthermore, he was ordered to pay: (1) the sum of P650,000.00 representing the
amount of the check with interest pegged at the rate of twelve percent (12%) per
annum computed from the time of the filing of the complaint; (2) filing fees in the
amount of P10,000.00; and (3) attorney's fees in the amount of P20,000.00 plus
appearance fees of P1,500.00 per hearing. 11
Records show that respondent appealed his conviction to the Regional Trial
Court of Guimbal, Iloilo, Branch 67 (RTC), docketed as Criminal Case No. 346. 12 In a
Decision 13 dated March 13, 2009, the RTC affirmed in toto the MTC ruling. On April 16,
2009, the RTC Decision became final and executory. 14
Prior to the promulgation of the RTC Decision, or on February 12, 2009,
complainant filed this administrative complaint before the Court, through the Office of
the Bar Confidant.
In his defense, 15 respondent denied that he committed dishonesty against
complainant, as prior to September 30, 2005, he informed the latter that there were
insufficient funds to cover the amount of the check. Respondent claimed that he
merely issued the check in order to accommodate a friend in whose favor he obtained
the loan, stressing that he did not personally benefit from the proceeds
thereof. 16Unfortunately, said friend had died and respondent had no means by which
to pay for the amount of the check. 17 He also claimed that complainant threatened
him and used his unfunded check to the latter's personal advantage. 18
Thereafter, the Court, in its Resolution dated November 14, 2011, 19 referred
this administrative case to the Integrated Bar of the Philippines (IBP) for its
investigation, report, and recommendation.
The IBP's Report and Recommendation
After conducting mandatory conferences, the Commission on Bar Discipline
(CBD) of the IBP issued a Report and Recommendation 20dated June 26, 2013,
recommending that respondent be suspended from the practice of law for a period of
six (6) months for violation of the lawyer's oath and the Code of Professional
Responsibility (CPR), as well as for having been found guilty of a crime involving moral
turpitude. 21
 It found that the offense for which respondent was found guilty of, i.e.,
violation of BP 22, involved moral turpitude, and that he violated his lawyer's oath and
the CPR when he committed the said offense. Stressing the importance of the lawyer's
oath, the IBP held that by his conviction of the said crime, respondent has shown that
he is "unfit to protect the administration of justice or that he is no longer of good moral
character" 22 which justifies either his suspension or disbarment. 23 CAIHTE
Subsequently, or on October 10, 2014, the IBP Board of Governors issued a
Notice of Resolution 24 adopting and approving with modification the IBP's Report and
Recommendation dated June 26, 2013, suspending respondent from the practice of law
for a period of two (2) years for having violated the lawyer's oath and the CPR, as well
as for having been found guilty of a crime involving moral turpitude. 25
The Issue Before the Court
The issue advanced for the Court's resolution is whether or not respondent
should be administratively disciplined for having been found guilty of a crime involving
moral turpitude.
The Court's Ruling
The Court sustains the findings and conclusions of the CBD of the IBP, as
approved, adopted, and modified by the IBP Board of Governors.
Section 27, Rule 138 of the Rules of Court provides:
Section 27. Disbarment or suspension of attorneys by
Supreme Court; grounds therefor. — A member of the bar may be
disbarred or suspended from his office as attorney by the Supreme
Court for any deceit, malpractice, or other gross misconduct in such
office, grossly immoral conduct, or by reason of his conviction of a
crime involving moral turpitude, or for any violation of the oath
which he is required to take before admission to practice, or for a
willful disobedience of any lawful order of a superior court, or for
corruptly or willfully appearing as an attorney for a party to a case
without authority to do so. The practice of soliciting cases at law for
the purpose of gain, either personally or through paid agents or
brokers, constitutes malpractice.
Canon 1 of the CPR mandates all members of the bar "to obey the laws of the
land and promote respect for law . . . ." Rule 1.01 thereof specifically provides that "[a]
lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct." By taking
the lawyer's oath, a lawyer becomes a guardian of the law and an indispensable
instrument for the orderly administration of justice. 26 As such, he can be disciplined
for any conduct, in his professional or private capacity, which renders him unfit to
continue to be an officer of the court. 27
In Enriquez v. De Vera, 28 the Court discussed the purpose and nature of a
violation of BP 22 in relation to an administrative case against a lawyer, as in this case,
to wit:
4
[BP] 22 has been enacted in order to safeguard the
interest of the banking system and the legitimate public checking
account users. The gravamen of the offense defined and punished
by [BP] 22 [. . .] is the act of making and issuing a worthless check,
or any check that is dishonored upon its presentment for payment
and putting it in circulation; the law is designed to prohibit and
altogether eliminate the deleterious and pernicious practice of
issuing checks with insufficient funds, or with no credit, because the
practice is deemed a public nuisance, a crime against public order to
be abated.
xxx xxx xxx
Being a lawyer, respondent was well aware of the
objectives and coverage of [BP] 22. If he did not, he was
nonetheless presumed to know them, for the law was penal in
character and application. His issuance of the unfunded check
involved herein knowingly violated [BP] 22, and exhibited his
indifference towards the pernicious effect of his illegal act to public
interest and public order. He thereby swept aside his Lawyer's Oath
that enjoined him to support the Constitution and obey the laws. 29
Clearly, the issuance of worthless checks in violation of BP Blg. 22 indicates a
lawyer's unfitness for the trust and confidence reposed on him, shows such lack of
personal honesty and good moral character as to render him unworthy of public
confidence, and constitutes a ground for disciplinary action. 30
In this case, respondent's conviction for violation of BP 22, a crime involving
moral turpitude, had been indubitably established. Such conviction has, in fact, already
become final. Consequently, respondent violated the lawyer's oath, as well as Rule 1.01,
Canon 1 of the CPR, as aptly found by the IBP and, thus, must be subjected to
disciplinary action.
In Heenan v. Espejo, 31 the Court suspended therein respondent from the
practice of law for a period of two (2) years when the latter issued checks which were
dishonored due to insufficiency of funds. In A-1 Financial Services, Inc. v. Valerio, 32 the
same penalty was imposed by the Court to respondent who issued worthless checks to
pay off her loan. Likewise, in Dizon v. De Taza, 33 the Court meted the penalty of
suspension for a period of two (2) years to respondent for having issued bouncing
checks, among other infractions. Finally, in Wong v. Moya II,34 respondent was ordered
suspended from the practice of law for a period of two (2) years, because aside from
issuing worthless checks and failure to pay his debts, respondent also breached his
client's trust and confidence to his personal advantage and had shown a wanton
disregard of the IBP's Orders in the course of its proceedings. Accordingly, and in view
of the foregoing instances when the erring lawyer was suspended for a period of two (2)
years for the same violation, the Court finds it appropriate to mete the same penalty to
respondent in this case.
As a final word, it should be emphasized that membership in the legal
profession is a privilege burdened with conditions. 35 A lawyer is required to observe
 the law and be mindful of his or her actions whether acting in a public or private Complainant and her husband filed their Notice of Appeal with the RTC. Thereafter, the
capacity. 36 Any transgression of this duty on his part would not only diminish his Court of Appeals (CA) ordered them to file their Appellants' Brief. They chose respondent to
reputation as a lawyer but would also erode the public's faith in the legal profession as a represent them in the case. On their behalf, he filed a Memorandum on Appeal instead of an
whole. 37 In this case, respondent's conduct fell short of the exacting standards Appellants' Brief. Thus, Duigan filed a Motion to Dismiss the Appeal. The CA granted the
expected of him as a member of the bar, for which he must suffer the necessary Motion in a Resolution 2 dated 16 December 2003.
consequences. DETACa
No Motion for Reconsideration (MR) of the Resolution dismissing the appeal was filed by the
WHEREFORE, respondent Atty. Orlando S. Paulma is couple. Complainant claims that because respondent ignored the Resolution, he acted with
hereby SUSPENDED from the practice of law for a period of two (2) years, effective "deceit, unfaithfulness amounting to malpractice of law." 3 Complainant and her husband
upon his receipt of this Resolution. He is warned that a repetition of the same or similar failed to file an appeal, because respondent never informed them of the adverse decision.
act will be dealt with more severely. Complainant further claims that she asked respondent "several times" about the status of
the appeal, but "despite inquiries he deliberately withheld response [sic]," to the damage
Let a copy of this Resolution be entered in Atty. Paulma's personal record
with the Office of the Bar Confidant, and copies be served to the Integrated Bar of the and prejudice of the spouses. 4
Philippines and the Office of the Court Administrator for circulation to all the courts in The Resolution became final and executory on 8 January 2004. Complainant was informed
the land. of the Resolution sometime in July 2005, when the Sheriff of the RTC came to her house and
SO ORDERED. informed her of the Resolution.

||| (Nulada v. Paulma, A.C. No. 8172 (Resolution), [April 12, 2016]) On 9 September 2005, complainant filed an Affidavit of Complaint 5 with the Committee on
Bar Discipline of the Integrated Bar of the Philippines (IBP), seeking the disbarment of
respondent on the following grounds: deceit, malpractice, and grave misconduct.
Complainant prays for moral damages in the amount of P350,000.
[A.C. No. 9387. June 20, 2012.]
Through an Order 6 dated 12 September 2005, Director of Bar Discipline Rogelio A. Vinluan
(Formerly CBD Case No. 05-1562)
ordered respondent to submit an answer to the Complaint. In his Counter-
Affidavit/Answer, 7 respondent prayed for the outright dismissal of the Complaint.
EMILIA R. HERNANDEZ, complainant, vs. ATTY. VENANCIO B.
Respondent explained that he was not the lawyer of complainant. He averred that prior to
PADILLA, respondent.
the mandatory conference set by the IBP on 13 December 2005, he had never met
complainant, because it was her husband who had personally transacted with him.
According to respondent, the husband "despondently pleaded to me to prepare a
RESOLUTION Memorandum on Appeal because according to him the period given by the CA was to lapse
within two or three days." 8 Thus, respondent claims that he filed a Memorandum on Appeal
because he honestly believed that "it is this pleading which was required." 9

Before filing the Memorandum, respondent advised complainant's husband to settle the
SERENO, J p: case. The latter allegedly "gestured approval of the advice." 10 aACEID

This is a disbarment case filed by Emilia Hernandez (complainant) against her lawyer, Atty.
Venancio B. Padilla (respondent) of Padilla Padilla Bautista Law Offices, for his alleged
negligence in the handling of her case.
The records disclose that complainant and her husband were the respondents in an
ejectment case filed against them with the Regional Trial Court of Manila (RTC). HDAECI
In a Decision 1 dated 28 June 2002, penned by Judge Rosmari D. Carandang (Judge
Carandang), the RTC ordered that the Deed of Sale executed in favor of complainant be
cancelled; and that the latter pay the complainant therein, Elisa Duigan (Duigan), attorney's
fees and moral damages.
After the husband of complainant picked up the Memorandum for filing, respondent never
saw or heard from him again and thus assumed that the husband heeded his advice and
settled the case. When respondent received an Order from the CA requiring him to file a
comment on the Motion to Dismiss filed by Duigan, he "instructed his office staff to contact
Mr. Hernandez thru available means of communication, but to no avail." 11 Thus, when
complainant's husband went to the office of respondent to tell the latter that the Sheriff of
the RTC had informed complainant of the CA's Resolution dismissing the case, respondent
was just as surprised. The lawyer exclaimed, "KALA KO BA NAKIPAG AREGLO NA
KAYO." 12
In his 5 January 2009 Report, 13 IBP Investigating Commissioner Leland R. Villadolid, Jr.
found that respondent violated Canons 5, 17, and 18 of the Code of Professional

5
Responsibility (the Code). He recommended that respondent be suspended from practicing
law from 3 to 6 months.
The board of governors of the IBP issued Resolution No. XIX-2010-452 on 28 August 2010.
Therein, they resolved to adopt and approve the Report and Recommendation of the
Investigating Commissioner. Respondent was suspended from the practice of law for six
months.
Respondent filed a Motion for Reconsideration. 14 He prayed for the relaxation of the
application of the Canons of the Code. On 14 January 2012, the IBP board of governors
passed Resolution No. XX-2012-17 15 partly granting his Motion and reducing the penalty
imposed to one-month suspension from the practice of law.
Pursuant to Rule 139-B of the Rules of Court, acting Director for Bar Discipline Dennis A.B.
Funa, through a letter 16 addressed to then Chief Justice Renato C. Corona, transmitted the
documents pertaining to the disbarment Complaint against respondent.
We adopt the factual findings of the board of governors of the IBP. This Court, however,
disagrees with its Decision to reduce the penalty to one-month suspension. We thus affirm
the six-month suspension the Board originally imposed in its 28 August 2010 Resolution.
Respondent insists that he had never met complainant prior to the mandatory conference
set for the disbarment Complaint she filed against him. However, a perusal of the
Memorandum of Appeal filed in the appellate court revealed that he had signed as counsel
for the defendant-appellants therein, including complainant and her husband. 17 The
pleading starts with the following sentence: "DEFENDANT[S]-APPELLANTS, by counsel,
unto this Honorable Court submit the Memorandum and further allege that: . . .
." 18 Nowhere does the document say that it was filed only on behalf of complainant's
husband. ScTaEA
It is further claimed by respondent that the relation created between him and complainant's
husband cannot be treated as a "client-lawyer" relationship, viz.:
It is no more than a client needing a legal document and had it
prepared by a lawyer for a fee. Under the factual milieu and
circumstances, it could not be said that a client entrusted to a lawyer
handling and prosecution of his case that calls for the strict application
of the Code; . . . 19
As proof that none of them ever intended to enter into a lawyer-client relationship, he also
alleges that complainant's husband never contacted him after the filing of the Memorandum
of Appeal. According to respondent, this behavior was "very unusual if he really believed
that he engaged" the former's services. 20
Complainant pointed out in her Reply 21 that respondent was her lawyer, because he
accepted her case and an acceptance fee in the amount of P7,000.
According to respondent, however, "[C]ontrary to the complainant's claim that he charged
P7,000 as acceptance fee," "the fee was only for the preparation of the pleading which is
even low for a Memorandum of Appeal: . . . ." 22
6
Acceptance of money from a client establishes an attorney-client relationship and gives rise
to the duty of fidelity to the client's cause. 23 Once a lawyer agrees to handle a case, it is
that lawyer's duty to serve the client with competence and diligence. 24 Respondent has
failed to fulfill this duty.
According to respondent, he merely drafted the pleading that complainant's husband asked
from him. Respondent also claims that he filed a Memorandum of Appeal, because he
"honestly believed" that this was the pleading required, based on what complainant's
husband said.
The IBP Investigating Commissioner's observation on this matter, in the 5 January 2009
Report, is correct. Regardless of the particular pleading his client may have believed to be
necessary, it was respondent's duty to know the proper pleading to be filed in appeals from
RTC decisions, viz.:
Having seen the Decision dated 18 June 2002 of the trial court,
respondent should have known that the mode of appeal to the Court
of Appeals for said Decision is by ordinary appeal under Section 2(a)
Rule 41 of the 1997 Revised Rules of Civil Procedure. In all such cases,
Rule 44 of the said Rules applies. 25
When the RTC ruled against complainant and her husband, they filed a Notice of Appeal.
Consequently, what should apply is the rule on ordinary appealed cases or Rule 44 of the
Rules on Civil Procedure. Rule 44 requires that the appellant's brief be filed after the records
of the case have been elevated to the CA. Respondent, as a litigator, was expected to know
this procedure. Canon 5 of the Code reads: cdrep
CANON 5 — A lawyer shall keep abreast of legal developments,
participate in continuing legal education programs, support efforts to
achieve high standards in law schools as well as in the practical
training of law students and assist in disseminating information
regarding the law and jurisprudence.
The obligations of lawyers as a consequence of their Canon 5 duty have been
expounded in Dulalia, Jr. v. Cruz, 26 to wit:
It must be emphasized that the primary duty of lawyers is to obey the
laws of the land and promote respect for the law and legal processes.
They are expected to be in the forefront in the observance and
maintenance of the rule of law. This duty carries with it the obligation
to be well-informed of the existing laws and to keep abreast with legal
developments, recent enactments and jurisprudence. It is imperative
that they be conversant with basic legal principles. Unless they
faithfully comply with such duty, they may not be able to discharge
competently and diligently their obligations as members of the bar.
Worse, they may become susceptible to committing mistakes.
In his MR, respondent begged for the consideration of the IBP, claiming that the reason for
his failure to file the proper pleading was that he "did not have enough time to acquaint
himself thoroughly with the factual milieu of the case." The IBP reconsidered and thereafter Lawyers should not neglect legal matters entrusted to them, otherwise their negligence in
significantly reduced the penalty originally imposed. fulfilling their duty would render them liable for disciplinary action. 29

Respondent's plea for leniency should not have been granted.
The supposed lack of time given to respondent to acquaint himself with the facts of the case
does not excuse his negligence.
Rule 18.02 of the Code provides that a lawyer shall not handle any legal matter without
adequate preparation. While it is true that respondent was not complainant's lawyer from
the trial to the appellate court stage, this fact did not excuse him from his duty to diligently
study a case he had agreed to handle. If he felt he did not have enough time to study the
pertinent matters involved, as he was approached by complainant's husband only two days
before the expiration of the period for filing the Appellant's Brief, respondent should have
filed a motion for extension of time to file the proper pleading instead of whatever pleading
he could come up with, just to "beat the deadline set by the Court of Appeals." 27
Respondent has failed to live up to his duties as a lawyer. When a lawyer violates his duties
to his client, he engages in unethical and unprofessional conduct for which he should be held
accountable. 30
WHEREFORE, respondent Atty. Venancio Padilla is found guilty of violating Rules 18.02,
18.03, 18.04, as well as Canon 5 of the Code of Professional Responsibility. Hence, he
is SUSPENDED from the practice of law for SIX (6) MONTHS and STERNLY WARNED that
a repetition of the same or a similar offense will be dealt with more severely.
Let copies of this Resolution be entered into the personal records of respondent as a
member of the bar and furnished to the Bar Confidant, the Integrated Bar of the Philippines,
and the Court Administrator for circulation to all courts of the country for their information
and guidance. AIDcTE

Moreover, respondent does not deny that he was given notice of the fact that he filed the No costs.
wrong pleading. However, instead of explaining his side by filing a comment, as ordered by
the appellate court, he chose to ignore the CA's Order. He claims that he was under the SO ORDERED.
presumption that complainant and her husband had already settled the case, because he ||| (Hernandez v. Padilla, A.C. No. 9387 (Resolution), [June 20, 2012], 688 PHIL 329-338)
had not heard from the husband since the filing of the latter's Memorandum of
Appeal. ADaSET

This explanation does not excuse respondent's actions. [A.C. No. 6368. June 13, 2012.]

First of all, there were several remedies that respondent could have availed himself of, from
FIDELA BENGCO AND TERESITA BENGCO, complainants, vs. ATTY.
the moment he received the Notice from the CA to the moment he received the disbarment
PABLO S. BERNARDO, respondent.
Complaint filed against him. But because of his negligence, he chose to sit on the case and
do nothing.

Second, respondent, as counsel, had the duty to inform his clients of the status of their case.
His failure to do so amounted to a violation of Rule 18.04 of the Code, which reads: DECISION

18.04 — A lawyer shall keep the client informed of the status of his
case and shall respond within a reasonable time to the client's request
for information. REYES, J p:

If it were true that all attempts to contact his client proved futile, the least respondent could
This is a complaint 1 for disbarment filed by complainants Fidela G. Bengco (Fidela) and
have done was to inform the CA by filing a Notice of Withdrawal of Appearance as counsel.
Teresita N. Bengco (Teresita) against respondent Atty. Pablo Bernardo (Atty. Bernardo) for
He could have thus explained why he was no longer the counsel of complainant and her
deceit, malpractice, conduct unbecoming a member of the Bar and violation of his duties
husband in the case and informed the court that he could no longer contact them. 28 His
and oath as a lawyer.
failure to take this measure proves his negligence.
The acts of the respondent which gave rise to the instant complaint are as follows:
Lastly, the failure of respondent to file the proper pleading and a comment on Duigan's
Motion to Dismiss is negligence on his part. Under 18.03 of the Code, a lawyer is liable for That sometime on or about the period from April 15, 1997 to July 22,
negligence in handling the client's case, viz.: 1997, Atty. Pablo Bernardo with the help and in connivance and
collusion with a certain Andres Magat [wilfully] and illegally
Rule 18.03 — A lawyer shall not neglect a legal matter entrusted to
committed fraudulent act with intent to defraud herein complainants
him, and his negligence in connection therewith shall render him
Fidela G. Bengco and Teresita N. Bengco by using false pretenses,
liable.

7
 deceitful words to the effect that he would expedite the titling of the
land belonging to the Miranda family of Tagaytay City who are the
acquaintance of complainants herein and they convinced herein
complainant[s] that if they will finance and deliver to him the amount
of [P]495,000.00 as advance money he would expedite the titling of
the subject land and further by means of other similar deceit like
misrepresenting himself as lawyer of William Gatchalian, the
prospective buyer of the subject land, who is the owner of Plastic City
at Canomay Street, Valenzuela, Metro Manila and he is the one
handling William Gatchalian's business transaction and that he has
contracts at NAMREA, DENR, CENRO and REGISTER OF DEEDS
which representation he well knew were false, fraudulent and were
only made to induce the complainant[s] to give and deliver the said
amount ([P]495,000.00) and once in possession of said amount, far
from complying with his obligation to expedite and cause the titling of
the subject land, [wilfully], unlawfully and illegally misappropriated,
misapplied and converted the said amount to his personal use and
benefit and despite demand upon him to return the said amount, he
failed and refused to do so, which acts constitute deceit, malpractice,
conduct unbecoming a member of the Bar and Violation of Duties and
Oath as a lawyer. 2 CIAcSa
In support of their complaint, the complainants attached thereto Resolutions dated
December 7, 1998 3 and June 22, 1999 4 of the Third Municipal Circuit Trial Court (MCTC) of
Sto. Tomas and Minalin, Sto. Tomas, Pampanga and the Office of the Provincial Prosecutor
of San Fernando, Pampanga, respectively, finding probable cause for the filing of the
criminal information 5 against both Atty. Bernardo and Andres Magat (Magat) before the
Regional Trial Court (RTC) of San Fernando, Pampanga, Branch 48, charging them with the
crime of Estafa punishable under Article 315, par. 2 (a) of the Revised Penal Code.
The respondent was required to file his Comment. 6 On September 24, 2004, the
respondent filed an undated Comment, 7 wherein he denied the allegations against him and
averred the following:
2. He had not deceived both complainants between the period from
April 15, 1997 to July 22, 1997 for purposes of getting from them the
amount of [P]495,000.00. It was Andy Magat whom they contacted
and who in turn sought the legal services of the respondent. It was
Andy Magat who received the said money from them.
3. There was no connivance made and entered into by Andy Magat
and respondent. The arrangement for titling of the land was made by
Teresita N. Bengco and Andy Magat with no participation of
respondent.
4. The acceptance of the respondent to render his legal service is legal
and allowed in law practice. 8
8
The case was referred to the Integrated Bar of the Philippines (IBP) for investigation, report
and recommendation. ACaDTH
On February 16, 2005, the IBP ordered the respondent to submit a verified comment
pursuant to Rule 139-B, Section 6 of the Rules of Court as it appeared that the respondent's
undated comment filed with the Court was not verified. 9
On March 15, 2005, respondent through counsel requested for an additional fifteen (15) days
from March 17, 2005, or until April 1, 2005, within which to comply due to his medical
confinement. 10
Thereafter, on April 4, 2005, the respondent filed a second motion 11 for extension praying
for another 20 days, or until April 22, 2005, alleging that he was still recovering from his
illness.
On August 3, 2005, the case was set for mandatory conference. 12 The respondent failed to
appear; thus, the IBP considered the respondent in default for his failure to appear and for
not filing an answer despite extensions granted. The case was then submitted for report and
recommendation. 13
Based on the records of the case, Investigating Commissioner Rebecca Villanueva-Maala
made the following findings:
[O]n or before the period from 15 April 1997 to 22 July 1997,
respondent with the help and in connivance and collusion with a
certain Andres Magat ("Magat"), by using false pretenses and deceitful
words, [wilfully] and illegally committed fraudulent acts to the effect
that respondent would expedite the titling of the land belonging to
the Miranda family of Tagaytay City, who were the acquaintance of
complainants.
Respondent and Magat convinced complainants that if they finance
and deliver to them the amount of [P]495,000.00 as advance money,
they would expedite the titling of the subject land. Respondent
represented himself to be the lawyer of William Gatchalian, the owner
of Plastic City located at Canomay Street, Valenzuela, Metro Manila,
who was allegedly the buyer of the subject land once it has been titled.
Respondent and Magat also represented that they have contacts at
NAMREA, DENR, CENRO and the Register of Deeds which
representation they knew to be false, fraudulent and were only made
to induce complainants to give and deliver to them the amount of
[P]495,000.00. Once in possession of the said amount, far from
complying with their obligation to expedite and cause the titling of the
subject land, respondent and Magat [wilfully], unlawfully and illegally
misappropriated, misapplied and converted the said amount to their
personal use and benefit and despite demand upon them to return the
said amount, they failed and refused to do so. TaISEH
In view of the deceit committed by respondent and Magat,
complainants filed a complaint for Estafa against the former before
 the Third Municipal Circuit Trial Court, of Sto. Tomas and Minalin, Sto.
Tomas, Pampanga. In the preliminary investigation conducted by the
said court, it finds sufficient grounds to hold respondent and Magat for
trial for the crime of Estafa defined under par. 2(a) of Art. 315 of the
Revised Penal Code, as amended. The case was transmitted to the
Office of the Provincial Prosecutor of Pampanga for appropriate
action as per Order dated 7 December 1998.
The Assistant Provincial Prosecutor of the Office of the Provincial
Prosecutor of Pampanga conducted a re-investigation of the case.
During the re-investigation thereof, Magat was willing to reimburse to
complainants the amount of [P]200,000.00 because according to him
the amount of [P]295,000.00 should be reimbursed by respondent
considering that the said amount was turned over to respondent for
expenses incurred in the documentation prior to the titling of the
subject land. Both respondent and Magat requested for several
extensions for time to pay back their obligations to the complainants.
However, despite extensions of time granted to them, respondent and
Magat failed to fulfil their promise to pay back their obligation. Hence,
it was resolved that the offer of compromise was construed to be an
implied admission of guilt. The Asst. Provincial Prosecutor believes
that there was no reason to disturb the findings of the investigating
judge and an Information for Estafa was filed against respondent and
Magat on 8 July 1999 before the Regional Trial Court, San Fernando,
Pampanga.
The failure of the lawyer to answer the complaint for disbarment
despite due notice on several occasions and appear on the scheduled
hearings set, shows his flouting resistance to lawful orders of the court
and illustrates his despiciency for his oath of office as a lawyer which
deserves disciplinary sanction . . . .
From the facts and evidence presented, it could not be denied that
respondent committed a crime that import deceit and violation of his
attorney's oath and the Code of Professional Responsibility under
both of which he was bound to 'obey the laws of the land.' The
commission of unlawful acts, specially crimes involving moral
turpitude, acts of dishonesty in violation of the attorney's oath, grossly
immoral conduct and deceit are grounds for suspension or disbarment
of lawyers (Rule 138, Section 27, RRC). ATHCac
The misconduct complained of took place in 1997 and complainants
filed the case only on 16 April 2004. As provided for by the Rules of
Procedure of the Commission of Bar Discipline, as amended, dated 24
March 2004, "A complaint for disbarment, suspension or discipline of
attorneys prescribes in two (2) years from the date of the professional
misconduct" (Section 1, Rule VIII). 14
The Investigating Commissioner recommended that:
9
. . . [R]espondent ATTY. PABLO A. BERNARDO be SUSPENDED for
a period of TWO YEARS from receipt hereof from the practice of his
profession as a lawyer and as a member of the Bar. 15
On February 1, 2007, the IBP Board of Governors issued Resolution No. XVII-2007-065, viz.:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED with modification, the Report and Recommendation of
the Investigating Commissioner of the above-entitled case, herein
made part of this Resolution as Annex "A"; and, finding the
recommendation fully supported by the evidence on record and the
applicable laws and rules, Atty. Pablo S. Bernardo is hereby
ordered, the restitution of the amount of [P]200,000.00 within sixty
(60) days from receipt of notice with Warning that if he does not
return the amount with in sixty days from receipt of this Order then he
will be meted the penalty of Suspension from the practice of law for
one (1) year. 16
On May 16, 2007, the respondent promptly filed a Motion for Reconsideration 17 of the
aforesaid Resolution of the IBP. The respondent averred that: (1) the IBP resolution is not in
accord with the rules considering that the complaint was filed more than two (2) years from
the alleged misconduct and therefore, must have been dismissed outright; (2) he did not
commit any misrepresentation in convincing Fidela to give him money to finance the titling
of the land; (3) he was hired as a lawyer through Magat who transacted with Teresita as
evidenced by a Memorandum of Agreement 18 signed by the latter; (4) he was denied due
process when the Investigating Commissioner considered him as in default after having
ignored the representative he sent during the hearing on August 3, 2005; and (5) he long
restituted the amount of P225,000.00 not as an offer of compromise but based on his moral
obligation as a lawyer due to Teresita's declaration that he had to stop acting as her legal
counsel sometime in the third quarter of 1997. The respondent pointed out the admission
made by Fidela in her direct testimony before the RTC that she received the amount, as
evidenced by photocopies of receipts.
In an Order 19 dated May 17, 2007 issued by the IBP, the complainant was required to
comment within fifteen (15) days from receipt thereof. HAEIac
In her Comment, 20 Fidela explained that it took them quite some time in filing the
administrative case because they took into consideration the possibility of an amicable
settlement instead of a judicial proceeding since it would stain the respondent's reputation
as a lawyer; that the respondent went into hiding which prompted them to seek the
assistance of CIDG agents from Camp Olivas in order to trace the respondent's
whereabouts; that the respondent was duly accorded the opportunity to be heard; and
finally, that no restitution of the P200,000.00 plus corresponding interest has yet been made
by the respondent.
On June 21, 2008, Fidela filed a Manifestation 21 stating that the RTC rendered a decision in
the criminal case for Estafa finding the accused, Atty. Bernardo and Magat "guilty of
conspiracy in the commission of Estafa under Article 315 par. 2 (a) of the Revised Penal Code
and both are sentenced to suffer six (6) years and one (1) day of Prision Mayor as minimum to
twelve (12) years and one (1) day of Reclusion Temporal as maximum." 22
In a Letter 23 dated March 23, 2009, addressed to the IBP, Fidela sought the resolution of
the present action as she was already 86 years of age. Later, an Ex-parte Motion to Resolve
the Case 24 dated September 1, 2010 was filed by the complainants. In another Letter dated
October 26, 2011, Fidela, being 88 years old, sought for Atty. Bernardo's restitution of the
amount of P200,000.00 so she can use the money to buy her medicine and other needs.
The Court adopts and agrees with the findings and conclusions of the IBP.
It is first worth mentioning that the respondent's defense of prescription is untenable. The
Court has held that administrative cases against lawyers do not prescribe. The lapse of
considerable time from the commission of the offending act to the institution of the
administrative complaint will not erase the administrative culpability of a lawyer. Otherwise,
members of the bar would only be emboldened to disregard the very oath they took as
lawyers, prescinding from the fact that as long as no private complainant would immediately
come forward, they stand a chance of being completely exonerated from whatever
administrative liability they ought to answer for. 25 CITcSH
Further, consistent with his failure to file his answer after he himself pleaded for several
extensions of time to file the same, the respondent failed to appear during the mandatory
conference, as ordered by the IBP. As a lawyer, the respondent is considered as an officer of
the court who is called upon to obey and respect court processes. Such acts of the
respondent are a deliberate and contemptuous affront on the court's authority which can
not be countenanced.
It can not be overstressed that lawyers are instruments in the administration of justice. As
vanguards of our legal system, they are expected to maintain not only legal proficiency but
also a high standard of morality, honesty, integrity and fair dealing. In so doing, the people's
faith and confidence in the judicial system is ensured. Lawyers may be disciplined —
whether in their professional or in their private capacity — for any conduct that is wanting in
morality, honesty, probity and good demeanor. 26
Rules 2.03 and 3.01 of the Code of Professional Responsibility read:
Rule 2.03. — A lawyer shall not do or permit to be done any act
designed primarily to solicit legal business.
Rule 3.01. — A lawyer shall not use or permit the use of any false,
fraudulent, misleading, deceptive, undignified, self-laudatory or unfair
statement or claim regarding his qualifications or legal services.
There is no question that the respondent committed the acts complained of. He himself
admitted in his answer that his legal services were hired by the complainants through Magat
regarding the purported titling of land supposedly purchased. While he begs for the Court's
indulgence, his contrition is shallow considering the fact that he used his position as a lawyer
in order to deceive the complainants into believing that he can expedite the titling of the
subject properties. He never denied that he did not benefit from the money given by the
complainants in the amount of P495,000.00. IcCDAS
10
The practice of law is not a business. It is a profession in which duty to public service, not
money, is the primary consideration. Lawyering is not primarily meant to be a money-
making venture, and law advocacy is not a capital that necessarily yields profits. The gaining
of a livelihood should be a secondary consideration. The duty to public service and to the
administration of justice should be the primary consideration of lawyers, who must
subordinate their personal interests or what they owe to themselves. 27
It is likewise settled that a disbarment proceeding is separate and distinct from a criminal
action filed against a lawyer despite having involved the same set of facts. Jurisprudence has
it "that a finding of guilt in the criminal case will not necessarily result in a finding of liability
in the administrative case. Conversely, the respondent's acquittal does not necessarily
exculpate him administratively." 28
In Yu v. Palaña, 29 the Court held that:
Respondent, being a member of the bar, should note that
administrative cases against lawyers belong to a class of their own.
They are distinct from and they may proceed independently of
criminal cases. A criminal prosecution will not constitute a prejudicial
question even if the same facts and circumstances are attendant in the
administrative proceedings. Besides, it is not sound judicial policy to
await the final resolution of a criminal case before a complaint against
a lawyer may be acted upon; otherwise, this Court will be rendered
helpless to apply the rules on admission to, and continuing
membership in, the legal profession during the whole period that the
criminal case is pending final disposition, when the objectives of the
two proceedings are vastly disparate. Disciplinary proceedings involve
no private interest and afford no redress for private grievance. They
are undertaken and prosecuted solely for the public welfare and for
preserving courts of justice from the official ministration of persons
unfit to practice law. The attorney is called to answer to the court for
his conduct as an officer of the court. 30 (Citations omitted) ETDAaC
As the records reveal, the RTC eventually convicted the respondent for the crime of Estafa
for which he was meted the penalty of sentenced * to suffer six (6) years and one (1) day
of Prision Mayor as minimum to twelve (12) years and one (1) day of Reclusion Temporal as
maximum. Such criminal conviction clearly undermines the respondent's moral fitness to be
a member of the Bar. Rule 138, Section 27 provides that:
SEC. 27. Disbarment and suspension of attorneys by Supreme Court,
grounds therefor. — A member of the bar may be disbarred or
suspended from his office as attorney by the Supreme Court for any
deceit, malpractice or other gross misconduct in such office, grossly
immoral conduct or by reason of his conviction of a crime involving
moral turpitude, or for any violation of the oath which he is required to
take before the admission to practice, or for a wilful disobedience
appearing as attorney for a party without authority to do so.
In view of the foregoing, this Court has no option but to accord him the punishment
commensurate to all his acts and to accord the complainants, especially the 88-year-old
Fidela, with the justice they utmost deserve. acAESC
WHEREFORE, in view of the foregoing, respondent Atty. Pablo S. Bernardo is found guilty
of violating the Code of Professional Responsibility. Accordingly, he is SUSPENDED from
the practice of law for ONE (1) YEAR effective upon notice hereof.
Further, the Court ORDERS Atty. Pablo S. Bernardo (1) to RETURN the amount of
P200,000.00 to Fidela Bengco and Teresita Bengco within TEN (10) DAYS from receipt of
this Decision and (2) to SUBMIT his proof of compliance thereof to the Court, through the
Office of the Bar Confidant within TEN (10) DAYS therefrom; with a STERN WARNING that
failure to do so shall merit him the additional penalty of suspension from the practice of law
for one (1) year.
Let copies of this Decision be entered in his record as attorney and be furnished the
Integrated Bar of the Philippines and all courts in the country for their information and
guidance.
SO ORDERED.
||| (Bengco v. Bernardo, A.C. No. 6368, [June 13, 2012], 687 PHIL 7-18)
[A.C. No. 4973. March 15, 2010.]
SPOUSES MANUEL C. RAFOLS, JR. and LOLITA B.
RAFOLS, complainants, vs. ATTY. RICARDO G. BARRIOS,
JR., respondent.
DECISION
PER CURIAM p:
The primary objective of administrative cases against lawyers is not
only to punish and discipline the erring individual lawyers but also to
safeguard the administration of justice by protecting the courts and
the public from the misconduct of lawyers, and to remove from the
legal profession persons whose utter disregard of their lawyer's oath
has proven them unfit to continue discharging the trust reposed in
them as members of the bar. A lawyer may be disbarred or suspended
for misconduct, whether in his professional or private capacity, which
shows him to be wanting in moral character, honesty, probity and
good demeanor or unworthy to continue as an officer of the court.
11
— Rivera v. Corral, A.C. No. 3548, July 4, 2002, 384 SCRA 1.
By its Board Resolution No. 1 dated March 7, 1998, the South Cotabato-
Sarangani-General Santos City (SOCSARGEN) Chapter of the Integrated Bar of the
Philippines (IBP) resolved to refer to the IBP Board of Governors in Manila, for
appropriate action and investigation, the purported anomaly involving Judge Teodoro
Dizon, Jr. and Atty. Ricardo G. Barrios, Jr. 1 Thus, on March 24, 1998, Atty. Joeffrey L.
Montefrio, the SOCSARGEN IBP Chapter President, transmitted the referral to the
Office of the Court Administrator (OCA).
The matter involving Judge Dizon, Jr., which was docketed as Administrative
Matter (AM) No. RTJ-98-1426 entitled Manuel C. Rafols and Lolita C. Rafols v. Judge
Teodoro Dizon, Jr., RTC, General Santos City, Branch 37, 2 was resolved in a per
curiam decision promulgated on January 31, 2006, 3 whereby the Court dismissed Judge
Dizon, Jr. from the service, with forfeiture of all benefits, except accrued leave credits,
and with prejudice to re-employment in the government or any of its subdivisions,
instrumentalities or agencies, including government-owned and government-
controlled corporations.
In the same per curiam decision, the Court reiterated its resolution of October
21, 1998 for the Office of the Bar Confidant (OBC) to conduct an investigation of the
actuations of Atty. Barrios, Jr. (respondent), and to render its report and
recommendation. cdphil
Hence, this decision.
Antecedents
The anomaly denounced by the SOCSARGEN IBP Chapter was narrated in the
joint affidavit dated March 3, 1998 of Spouses Manuel C. Rafols, Jr. and Lolita B. Rafols
(complainants), 4 whose narrative was corroborated by the affidavit dated March 11,
1998 of Larry Sevilla; 5 the affidavit dated March 16, 1998 of Allan Rafols; 6 and the
affidavit dated March 16, 1998 of Daisy Rafols, 7 all of which were attached to the letter
of the IBP Chapter President. Atty. Erlinda C. Verzosa, then Deputy Clerk of Court and
Bar Confidant, referred for appropriate action a copy of the letter and affidavits to then
Court Administrator Alfredo L. Benipayo.
In turn, then Senior Deputy Court Administrator Reynaldo L. Suarez filed with
the Court an Administrative Matter for Agenda, recommending in relation to Atty.
Barrios, Jr., as follows:
xxx xxx xxx
5. The Office of the Bar Confidant be FURNISHED with a copy of the
letter-note and its attachments so that it may conduct its own
investigation in the matter with respect to the actuations of Atty.
Ricardo Barrios, Jr. 8
xxx xxx xxx
 In the resolution dated October 21, 1998, the Court approved the
recommendations, 9 and directed the Office of the Bar Confidant to investigate the
actuations of the respondent, and to render its report and recommendation thereon.
Proceedings of the OBC
Only the respondent appeared during the hearing before the OBC. Denying
the charges against him, he sought the dismissal of the complaint and re-affirmed the
contents of his comment. Despite notice, the complainants did not appear before the
OBC. However, the complainants and the respondent had testified during the
administrative hearing involving Judge Dizon, Jr. before Court of Appeals Associate
Justice Jose Sabio, Jr. as the Investigating Justice. Also testifying thereat were the
complainants' witnesses, namely: Allan Rafols, Daisy Rafols and Larry Sevilla.
A. Evidence for the Complainants
The complainants were the plaintiffs in Civil Case No. 6209 of the Regional
Trial Court (RTC) in General Santos City, wherein they sought the cancellation of a deed
of sale. Civil Case No. 6209 was assigned to Branch 37 of the RTC, presided by Judge
Dizon, Jr. The complainants were represented by the respondent, paying to him
P15,000.00 as acceptance fee. ADCIca
On December 22, 1997, at 9:30 a.m., the respondent visited the complainants
at their residence and informed complainant Manuel that the judge handling their case
wanted to talk to him. The respondent and Manuel thus went to the East Royal Hotel's
coffee shop where Judge Dizon, Jr. was already waiting. The respondent introduced
Manuel to the judge, who informed Manuel that their case was pending in his sala.The
judge likewise said that he would resolve the case in their favor, assuring their success
up to the Court of Appeals, if they could deliver P150,000.00 to him. As he had no
money at that time, Manuel told the judge that he would try to produce the amount.
The judge then stated that he would wait for the money until noon of that day. Thus,
Manuel left the coffee shop together with the respondent, who instructed Manuel to
come up with the money before noon because the judge badly needed it. The two of
them went to a lending institution, accompanied by Allan Rafols, but Manuel was told
there that only P50,000.00 could be released the next day. From the lending institution,
they went to the complainants' shop to look for Ditas Rafols, Allan's wife, who offered
to withdraw P20,000.00 from her savings account.
On their way to the bank, Manuel, Allan and Ditas dropped off the respondent
at the hotel for the latter to assure Judge Dizon, Jr. that the money was forthcoming.
Afterwards, Ditas and Manuel withdrew P20,000.00 and P30,000.00 from their
respective bank accounts, and went back to the hotel with the cash. There, they saw
the judge and his driver, who beckoned to them to go towards the judge's Nissan pick-
up then parked along the highway in front of the hotel. Manuel alighted from his car
and approached the judge. Manuel personally handed the money to the judge, who
told Manuel after asking about the amount that it was not enough. Thereafter, Manuel
entered the hotel's coffee shop and informed the respondent that he had already
handed the money to the judge.
On December 24, 1997, at about 6:00 a.m., the respondent again visited the
complainants. He was on board the judge's Nissan pick-up driven by the judge's driver.
12
The respondent relayed to the complainants the message that the judge needed the
balance of P100,000.00 in order to complete the construction of his new house in time
for the reception of his daughter's wedding. However, the complainants managed to
raise only P80,000.00, which they delivered to the respondent on that same day.
On January 20, 1998, Judge Dizon, Jr. called up the complainants' residence
and instructed their son to request his parents to return his call, leaving his cell phone
number. When Manuel returned the call the next day, the judge instructed Manuel to
see him in his office. During their meeting in his chambers, the judge demanded the
balance of P30,000.00. Manuel clarified to the judge that his balance was only
P20,000.00 due to the previous amount given being already P80,000.00. The judge
informed him that the amount that the respondent handed was short. Saying that he
badly needed the money, the judge insisted on P30,000.00, and even suggested that
the complainants should borrow in order to raise that amount.
On January 22, 1998, Judge Dizon, Jr. called the complainants to inquire
whether the P30,000.00 was ready for pick up. After Manuel replied that he was ready
with the amount, the judge asked him to wait for 20 minutes. The judge and his driver
later arrived on board his Nissan pick-up. Upon instructions of the judge's driver, the
complainants followed the Nissan pick-up until somewhere inside the Doña Soledad
Estate, Espina, General Santos City. There, the judge alighted and approached the
complainants and shook their hands. At that point, Manuel handed P30,000.00 to the
judge. The judge then told Manuel that the RTC judge in Iloilo City before whom the
perpetuation of the testimony of Soledad Elevencionado-Provido was made should still
testify as a witness during the trial in his sala in order for the complainants to win. The
judge persuaded the complainants to give money also to that judge; otherwise, they
should not blame him for the outcome of the case. ETCcSa
The complainants were forced to give money to the judge, because they
feared that the judge would be biased against them unless they gave in to his demands.
But when they ultimately sensed that they were being fooled about their case, they
consulted Larry Sevilla, their mediamen friend, and narrated to Sevilla all the facts and
circumstances surrounding the case. They agreed that the details should be released to
the media. The expose was published in the Newsmaker, a local newspaper.
Thereafter, the respondent and Judge Dizon, Jr. made several attempts to
appease the complainants by sending gifts and offering to return a portion of the
money, but the complainants declined the offers.
According to the complainants, the respondent demanded P25,000.00 as his
expenses in securing the testimony of Soledad Elevencionado-Provido in Iloilo City to
be used as evidence in their civil case. In addition, the respondent requested the
complainants to borrow P60,000.00 from the bank because he wanted to redeem his
foreclosed Isuzu Elf, and because he needed to give P11,000.00 to his nephew who was
due to leave for work abroad.
B. Evidence for the Respondent
In his verified comment dated March 22, 2006, 10 the respondent confirmed
that the complainants engaged him as their counsel in Civil Case No. 6209. His version
follows.
 On December 22, 1997, the respondent introduced Manuel to Judge Dizon, Jr.
inside the East Royal Hotel's coffee shop. The respondent stayed at a distance, because
he did not want to hear their conversation. Later, Manuel approached the respondent
and gave him P2,000.00. When the respondent asked what the money was for, Manuel
replied that it was in appreciation of the former's introducing the latter to the judge.
The respondent stated that Manuel did not mention what transpired between the latter
and the judge; and that the judge did not tell him (respondent) what transpired in that
conversation.
Two days later, the respondent again visited the complainants at their house
in General Santos City on board the judge's Nissan pick-up driven by the judge's driver,
in order to receive the P80,000.00 from the complainants. The amount was being
borrowed by the judge for his swimming pool. Later on, the judge told the respondent
to keep P30,000.00 as a token of their friendship. After Manuel handed the P80,000.00,
the respondent and the judge's driver headed towards Davao City, where, according to
the judge's instruction, they redeemed the judge's wristwatch for P15,000.00 from a
pawnshop. The driver brought the remaining amount of P35,000.00 to the judge in his
home.
On January 27, 1998, Judge Dizon, Jr. visited the respondent at the latter's
house to ask him to execute an affidavit. Declining the request at first, the respondent
relented only because the judge became physically weak in his presence and was on the
verge of collapsing. Nonetheless, the respondent refused to notarize the
document. IDcHCS
In that affidavit dated January 27, 1998, 11 the respondent denied that Judge
Dizon, Jr. asked money from the complainants; and stated that he did not see the
complainants handing the money to the judge. He admitted that he was the one who
had requested the judge to personally collect his unpaid attorney's fees from the
complainants with respect to their previous and terminated case; and that the judge did
not ask money from the complainants in exchange for a favorable decision in their case.
On January 28, 1998, the respondent returned to the complainants'
residence, but was surprised to find complainant Lolita crying aloud. She informed him
that the judge was again asking an additional P30,000.00 although they had given him
P30,000.00 only the week before. She divulged that the judge had told her that their
case would surely lose because: (a) they had engaged a counsel who was mahinang
klase; (b) the judge hearing Civil Case No. 5645 in Iloilo and the woman who had
testified in Civil Case No. 6029 had not been presented; and (c) they would have to
spend at least P10,000.00 for said judge's accommodations in General Santos City. 12
On January 31, 1998, Judge Dizon, Jr. went to the house of the respondent,
but the latter was not home. The judge left a note addressed to the complainants, and
instructed the respondent's secretary to deliver the note to the complainants along
with a gift (imported table clock).13 According to the respondent, the complainants
consistently refused to accept the gift several times; it was later stolen from his house
in Cebu City.
On February 1, 1998, the respondent delivered the note and gift to the
complainants, but the latter refused to receive it, telling him that they were no longer
13
interested to continue with the case. At the same time, the complainants assured him
that they bore no personal grudge against him, because they had a problem only with
Judge Dizon, Jr.
On February 24, 1998, the respondent went to the National Bureau of
Investigation Regional Office, Region XI, and the Philippine National Police Regional
Office, Region XI, both in Davao City, to request the investigation of the matter. 14
On March 2, 1998, the respondent paid Judge Dizon, Jr. a visit upon the
latter's request. In that meeting, the respondent told the judge about the refusal of the
complainants to accept the judge's gift and about their decision not to continue with
the case. 15
On the next day, Judge Dizon, Jr. sent a note to the respondent to inform him
that the judge had raised the amount that he had borrowed from the
complainants. 16 The judge requested the respondent to tell the complainants that he
(Judge Dizon, Jr.) was going to return whatever he had borrowed from them. However,
the complainants informed the respondent that he should tell the judge that they were
no longer interested in getting back the money.
The respondent made a follow-up at the NBI and PNP Regional Offices in
Davao City of his request for assistance after Manuel mentioned to him that he
(Manuel) knew of many armed men ready at any time to help him in his problem with
the judge. ECAaTS
Report and Recommendation of the OBC
In its Report and Recommendation dated May 15, 2008, 17 the OBC opined
that the administrative case against the respondent could not be dismissed on the
ground of failure to prosecute due to the complainants' failure to appear in the
scheduled hearing despite due notice.
Based on the facts already established and identified, as rendered in the
decision dated January 21, 2006 in Manuel Rafols and Lolita B. Rafols v. Judge Teodoro
A. Dizon, 18 the OBC rejected the respondent's denial of any knowledge of the
transaction between his clients and the judge.
The OBC recommended:
"WHEREFORE, in the light of the foregoing premises, it is respectfully
recommended that respondent ATTY. RICARDO BARRIOS, Jr. be
SUSPENDED from the practice of law for three (3) years with a stern
warning that a repetition of similar act in the future will be dealt more
severely."
Ruling of the Court
We approve and adopt the report and recommendations of the OBC, which
we find to be fully and competently supported by the evidence adduced by the
complainants and their witnesses, but we impose the supreme penalty of disbarment,
which we believe is the proper penalty.
I
Section 27, Rule 138 of the Rules of Court, which governs the disbarment and suspension of
attorneys, provides:
Section 27. Disbarment and suspension of attorneys by the Supreme
Court; grounds therefor. — A member of the bar may be disbarred or
suspended from his office as attorney by the Supreme Court for any
deceit, malpractice, or other gross misconduct in such office, grossly
immoral conduct, or by reason of his conviction for a crime involving
moral turpitude, or for any violation of the oath which he is required to
take before admission to practice, or for a willful disobedience of any
lawful order of a superior court, or for corruptly or willfully appearing
as an attorney for a party to a case without authority to do so. The
practice of soliciting cases at law for the purpose of gain, either
personally or through paid agents or brokers constitute malpractice.
The burden of proof in disbarment and suspension proceedings always rests
on the shoulders of the complainant. The Court exercises its disciplinary power only if
the complainant establishes the complaint by clearly preponderant evidence that
warrants the imposition of the harsh penalty. 19 As a rule, an attorney enjoys the legal
presumption that he is innocent of the charges made against him until the contrary is
proved. An attorney is further presumed as an officer of the Court to have performed
his duties in accordance with his oath. 20 cDHAES
Here, the complainants successfully overcame the respondent's presumed
innocence and the presumed regularity in the performance of his duties as an attorney
of the complainants. The evidence against him was substantial, and was not
contradicted.
To begin with, the respondent's denial of knowledge of the transaction
between the complainants and Judge Dizon, Jr. was not only implausible, but also
unsubstantiated. It was the respondent himself who had introduced the complainants
to the judge. His act of introducing the complainants to the judge strongly implied that
the respondent was aware of the illegal purpose of the judge in wanting to talk with the
respondent's clients. Thus, we unqualifiedly accept the aptness of the following
evaluation made in the OBC's Report and Recommendation,viz.:
. . . Being the Officer of the Court, he must have known that meeting
litigants outside the court is something beyond the bounds of the rule
and that it can never be justified by any reason. He must have known
the purpose of Judge Dizon in requesting him to meet the
complainants-litigants outside the chamber of Judge Dizon. By his
overt act in arranging the meeting between Judge Dizon and
complainants-litigants in the Coffee Shop of the East Royal Hotel, it is
crystal clear that he must have allowed himself and consented to
Judge Dizon's desire to ask money from the complainants-litigants for
a favorable decision of their case which was pending before the sala of
Judge Dizon. 21
Secondly, the respondent's insistence that he did not see the complainants'
act of handing the money to the judge is unbelievable. In his comment, the respondent
14
even admitted having himself received the P80,000.00 from the complainants, and
having kept P30,000.00 of that amount pursuant to the instruction of the judge as a
token of the friendship between him and the judge. 22 The admission proved that the
respondent had known all along of the illegal transaction between the judge and the
complainants, and belied his feigned lack of knowledge of the delivery of the money to
the judge.
Thirdly, his attempt to explain that the complainants had given the money to
the judge as a loan, far from softening our strong impression of the respondent's
liability, confirmed his awareness of the gross impropriety of the transaction. Being the
complainants' attorney in the civil case being heard before the judge, the respondent
could not but know that for the judge to borrow money from his clients was highly
irregular and outrightly unethical. If he was innocent of wrongdoing, as he claimed, he
should have desisted from having any part in the transaction. Yet, he did not, which
rendered his explanation unbelievable. Compounding the unworthiness of his
explanation was his admission of having retained P30,000.00 of the "borrowed" money
upon the judge's instruction.
And, lastly, the OBC has pointed out that the respondent's act of requesting
the NBI Regional Office in Davao City to investigate was an afterthought on his part.
We agree with the OBC, for the respondent obviously acted in order to anticipate the
complainants' moves againsthim and the judge. To be sure, the respondent sensed that
the complainants would not simply forgive and forget the mulcting they had suffered at
the hands of the judge and their own attorney from the time that the complainants
assured him that they were no longer interested to get back their money despite their
being very angry at the judge's greed. HScCEa
Overall, the respondent' denials were worthless and unavailing in the face of
the uncontradicted evidence showing that he had not only personally arranged the
meeting between Manuel and Judge Dizon, Jr., but had also communicated to the
complainants the judge's illegal reason for the meeting. It is axiomatic that any denial,
to be accepted as a viable defense in any proceeding, must be substantiated by clear
and convincing evidence. This need derives from the nature of a denial as evidence of a
negative and self-serving character, weightless in law and insufficient to overcome the
testimony of credible witnesses on affirmative matters. 23
II
The practice of law is a privilege heavily burdened with conditions. 24 The
attorney is a vanguard of our legal system, and, as such, is expected to maintain not
only legal proficiency but also a very high standard of morality, honesty, integrity, and
fair dealing in order that the people's faith and confidence in the legal system are
ensured. 25 Thus, he must conduct himself, whether in dealing with his clients or with
the public at large, as to be beyond reproach at all times. 26 Any violation of the high
moral standards of the legal profession justifies the imposition on the attorney of the
appropriate penalty, including suspension and disbarment. 27
Specifically, the Code of Professional Responsibility enjoins an attorney from
engaging in unlawful, dishonest, or deceitful conduct. 28Corollary to this injunction is
 the rule that an attorney shall at all times uphold the integrity and dignity of the Legal
Profession and support the activities of the Integrated Bar. 29
The respondent did not measure up to the exacting standards of the Law
Profession, which demanded of him as an attorney the absolute abdication of any
personal advantage that conflicted in any way, directly or indirectly, with the interest of
his clients. For monetary gain, he disregarded the vow to "delay no man for money or
malice" and to "conduct myself as a lawyer according to the best of my knowledge and
discretion, with all good fidelity as well to the courts as to my clients" that he made
when he took the Lawyer's Oath. 30 He also disobeyed the explicit command to him as
an attorney "to accept no compensation in connection with his client's business except
from him or with his knowledge and approval." 31 He conveniently ignored that the
relation between him and his clients was highly fiduciary in nature and of a very
delicate, exacting, and confidential character. 32
Verily, the respondent was guilty of gross misconduct, which is "improper or
wrong conduct, the transgression of some established and definite rule of action, a
forbidden act, a dereliction of duty, willful in character, and implies a wrongful intent
and not mere error of judgment."33 Any gross misconduct of an attorney in his
professional or private capacity shows him unfit to manage the affairs of others, and is
a ground for the imposition of the penalty of suspension or disbarment, because good
moral character is an essential qualification for the admission of an attorney and for the
continuance of such privilege. 34
The conclusion that the respondent and the disgraced Judge Dizon, Jr.
were conspirators against the former's own clients, whom he was sworn to protect and
to serve with utmost fidelity and morality, is inevitable for the Court to make in this
administrative case. And, being conspirators, they both deserve the highest penalty.
The disbarment of the respondent is in order, because such sanction is on par with the
dismissal of Judge Dizon, Jr. DISEaC
WHEREFORE, Atty. Ricardo G. Barrios, Jr. is disbarred.
This decision shall be entered in the records of Atty. Barrios, Jr. as a member
of the Philippine Bar.
Copies of the decision shall be furnished to the Bar Confidant and the
Integrated Bar of the Philippines for record purposes; and to the Court Administrator,
for circulation to all courts nationwide.
SO ORDERED.
||| (Spouses Rafols v. Barrios, Jr., A.C. No. 4973, [March 15, 2010], 629 PHIL 213-229)
[G.R. Nos. 151809-12. April 12, 2005.]
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT
(PCGG), petitioner, vs. SANDIGANBAYAN (Fifth Division), LUCIO C.
TAN, CARMEN KHAO TAN, FLORENCIO T. SANTOS, NATIVIDAD
15
P. SANTOS, DOMINGO CHUA, TAN HUI NEE, MARIANO TAN ENG
LIAN, ESTATE OF BENITO TAN KEE HIONG (represented by
TARCIANA C. TAN), FLORENCIO N. SANTOS, JR., HARRY C. TAN,
TAN ENG CHAN, CHUNG POE KEE, MARIANO KHOO, MANUEL
KHOO, MIGUEL KHOO, JAIME KHOO, ELIZABETH KHOO, CELSO
RANOLA, WILLIAM T. WONG, ERNESTO B. LIM, BENJAMIN T.
ALBACITA, WILLY CO, ALLIED BANKING CORP., ALLIED LEASING
AND FINANCE CORPORATION, ASIA BREWERY, INC., BASIC
HOLDINGS CORP., FOREMOST FARMS, INC., FORTUNE
TOBACCO CORP., GRANSPAN DEVELOPMENT CORP., HIMMEL
INDUSTRIES, IRIS HOLDINGS AND DEVELOPMENT CORP.,
JEWEL HOLDINGS, INC., MANUFACTURING SERVICES AND
TRADE CORP., MARANAW HOTELS & RESORT CORP.,
NORTHERN TOBACCO REDRYING PLANT, PROGRESSIVE
FARMS, INC., SHAREHOLDINGS, INC., SIPALAY TRADING CORP.,
VIRGO HOLDINGS & DEVELOPMENT CORP., and ATTY. ESTELITO
P. MENDOZA, respondents.
DECISION
PUNO, J p:
This case is prima impressiones and it is weighted with significance for it concerns on one
hand, the efforts of the Bar to upgrade the ethics of lawyers in government service and on
the other, its effect on the right of government to recruit competent counsel to defend its
interests.
In 1976, General Bank and Trust Company (GENBANK) encountered financial difficulties.
GENBANK had extended considerable financial support to Filcapital Development
Corporation causing it to incur daily overdrawings on its current account with the Central
Bank. 1 It was later found by the Central Bank that GENBANK had approved various loans to
directors, officers, stockholders and related interests totaling P172.3 million, of which 59%
was classified as doubtful and P0.505 million as uncollectible. 2 As a bailout, the Central Bank
extended emergency loans to GENBANK which reached a total of P310 million. 3 Despite the
mega loans, GENBANK failed to recover from its financial woes. On March 25, 1977,
theCentral Bank issued a resolution declaring GENBANK insolvent and unable to resume
business with safety to its depositors, creditors and the general public, and ordering its
liquidation. 4 A public bidding of GENBANK's assets was held from March 26 to 28, 1977,
wherein the Lucio Tan group submitted the winning bid. 5 Subsequently, former Solicitor
General Estelito P. Mendoza filed a petition with the then Court of First Instancepraying for
the assistance and supervision of the court in GENBANK's liquidation as mandated by
Section 29 of Republic Act No. 265.
In February 1986, the EDSA I revolution toppled the Marcos government. One of the first
acts of President Corazon C. Aquino was to establish the Presidential Commission on Good
Government (PCGG) to recover the alleged ill-gotten wealth of former President Ferdinand
Marcos, his family and his cronies. Pursuant to this mandate, the PCGG, on July 17, 1987,
filed with the Sandiganbayan a complaint for "reversion, reconveyance, restitution, accounting
and damages" against respondents Lucio Tan, Carmen Khao Tan, Florencio T. Santos,
Natividad P. Santos, Domingo Chua, Tan Hui Nee, Mariano Tan Eng Lian, Estate of Benito
Tan Kee Hiong, Florencio N. Santos, Jr., Harry C. Tan, Tan Eng Chan, Chung Poe Kee,
Mariano Khoo, Manuel Khoo, Miguel Khoo, Jaime Khoo, Elizabeth Khoo, Celso Ranola,
William T. Wong, Ernesto B. Lim, Benjamin T. Albacita, Willy Co, Allied Banking Corporation
(Allied Bank), Allied Leasing and Finance Corporation, Asia Brewery, Inc., Basic Holdings
Corp., Foremost Farms, Inc., Fortune Tobacco Corporation, Grandspan Development Corp.,
Himmel Industries, Iris Holdings and Development Corp., Jewel Holdings, Inc.,
Manufacturing Services and Trade Corp., Maranaw Hotels and Resort Corp., Northern
Tobacco Redrying Plant, Progressive Farms, Inc., Shareholdings, Inc., Sipalay Trading Corp.,
Virgo Holdings & Development Corp., (collectively referred to herein as respondents Tan, et
al.), then President Ferdinand E. Marcos, Imelda R. Marcos, Panfilo O. Domingo, Cesar
Zalamea, Don Ferry and Gregorio Licaros. The case was docketed as Civil Case No. 0005 of
the Second Division of the Sandiganbayan. 6 In connection therewith, the PCGG issued
several writs of sequestration on properties allegedly acquired by the above-named persons
by taking advantage of their close relationship and influence with former President
Marcos. HaIESC
Respondents Tan, et al. repaired to this Court and filed petitions for certiorari, prohibition
and injunction to nullify, among others, the writs of sequestration issued by the
PCGG. 7 After the filing of the parties' comments, this Court referred the cases to
the Sandiganbayan for proper disposition. These cases were docketed as Civil Case Nos.
0096-0099. In all these cases, respondents Tan, et al. were represented by their counsel,
former Solicitor General Estelito P. Mendoza, who has then resumed his private practice of
law.
On February 5, 1991, the PCGG filed motions to disqualify respondent Mendoza as counsel for
respondents Tan, et al. with the Second Division of the Sandiganbayan in Civil Case Nos.
0005 8 and 0096-0099. 9 The motions alleged that respondent Mendoza, as then Solicitor
General 10 and counsel to Central Bank, "actively intervened" in the liquidation of
GENBANK, which was subsequently acquired by respondents Tan, et al. and became Allied
Banking Corporation. Respondent Mendoza allegedly "intervened" in the acquisition of
GENBANK by respondents Tan, et al. when, in his capacity as then Solicitor General,
he advised the Central Bank's officials on the procedure to bring about GENBANK's
liquidation and appeared as counsel for the Central Bank in connection with its petition for
assistance in the liquidation of GENBANK which he filed with the Court of First Instance
(now Regional Trial Court) of Manila and was docketed as Special Proceeding No. 107812.
The motions to disqualify invoked Rule 6.03 of the Code of Professional Responsibility. Rule
6.03 prohibits former government lawyers from accepting "engagement or employment in
connection with any matter in which he had intervened while in said service."
On April 22, 1991, the Second Division of the Sandiganbayan issued a
resolution denying PCGG's motion to disqualify respondent Mendoza in Civil Case No.
16
0005. 11 It found that the PCGG failed to prove the existence of an inconsistency between
respondent Mendoza's former function as Solicitor General and his present employment as
counsel of the Lucio Tan group. It noted that respondent Mendoza did not take a position
adverse to that taken on behalf of the Central Bank during his term as Solicitor General. 12 It
further ruled that respondent Mendoza's appearance as counsel for respondents Tan, et
al. was beyond the one-year prohibited period under Section 7(b) of Republic Act No.
6713 since he ceased to be Solicitor General in the year 1986. The said section prohibits a
former public official or employee from practicing his profession in connection with any
matter before the office he used to be with within one year from his resignation, retirement
or separation from public office. 13 The PCGG did not seek any reconsideration of the
ruling. 14
It appears that Civil Case Nos. 0096-0099 were transferred from the Sandiganbayan's Second
Division to the Fifth Division. 15 In its resolution dated July 11, 2001, the Fifth Division of
the Sandiganbayan denied the other PCGG's motion to disqualify respondent
Mendoza. 16 It adopted the resolution of its Second Division dated April 22, 1991, and
observed that the arguments were the same in substance as the motion to disqualify filed in
Civil Case No. 0005. The PCGG sought reconsideration of the ruling but its motion was
denied in its resolution dated December 5, 2001. 17
Hence, the recourse to this Court by the PCGG assailing the resolutions dated July 11, 2001
and December 5, 2001 of the Fifth Division of the Sandiganbayan via a petition
for certiorari and prohibition under Rule 65 of the 1997 Rules of Civil Procedure. 18 The
PCGG alleged that the Fifth Division acted with grave abuse of discretion amounting to lack
or excess of jurisdiction in issuing the assailed resolutions contending that: 1) Rule 6.03 of
the Code of Professional Responsibility prohibits a former government lawyer from
accepting employment in connection with any matter in which he intervened; 2) the
prohibition in the Rule is not time-bound; 3) that Central Bank could not waive the objection
to respondent Mendoza's appearance on behalf of the PCGG; and 4) the resolution in Civil
Case No. 0005 was interlocutory, thus res judicata does not apply. 19
The petition at bar raises procedural and substantive issues of law. In view, however, of the
import and impact of Rule 6.03 of the Code of Professional Responsibility to the legal
profession and the government, we shall cut our way and forthwith resolve the substantive
issue.
I
Substantive Issue
The key issue is whether Rule 6.03 of the Code of Professional Responsibility applies to
respondent Mendoza. Again, the prohibition states: "A lawyer shall not, after leaving
government service, accept engagement or employment in connection with any matter in
which he had intervenedwhile in the said service."
I.A.
The history of Rule 6.03
A proper resolution of this case necessitates that we trace the historical lineage of Rule 6.03
of the Code of Professional Responsibility.
In the seventeenth and eighteenth centuries, ethical standards for lawyers were pervasive
in England and other parts of Europe. The early statements of standards did not resemble
modern codes of conduct. They were not detailed or collected in one source but surprisingly
were comprehensive for their time. The principal thrust of the standards was directed
towards the litigation conduct of lawyers. It underscored the central duty of truth and
fairness in litigation as superior to any obligation to the client. The formulations of the
litigation duties were at times intricate, including specific pleading standards, an obligation
to inform the court of falsehoods and a duty to explore settlement alternatives. Most of the
lawyer's other basic duties — competency, diligence, loyalty, confidentiality, reasonable fees
and service to the poor — originated in the litigation context, but ultimately had broader
application to all aspects of a lawyer's practice.
The forms of lawyer regulation in colonial and early post-revolutionary America did not differ
markedly from those in England. The colonies and early states used oaths, statutes, judicial
oversight, and procedural rules to govern attorney behavior. The difference from England
was in the pervasiveness and continuity of such regulation. The standards set in England
varied over time, but the variation in early America was far greater. The American regulation
fluctuated within a single colony and differed from colony to colony. Many regulations had
the effect of setting some standards of conduct, but the regulation was sporadic, leaving
gaps in the substantive standards. Only three of the traditional core duties can be fairly
characterized as pervasive in the formal, positive law of the colonial and post-revolutionary
period: the duties of litigation fairness, competency and reasonable fees. 20
The nineteenth century has been termed the "dark ages" of legal ethics in the United States.
By mid-century, American legal reformers were filling the void in two ways. First, David
Dudley Field, the drafter of the highly influential New York "Field Code," introduced a new
set of uniform standards of conduct for lawyers. This concise statement of eight statutory
duties became law in several states in the second half of the nineteenth century. At the
same time, legal educators, such as David Hoffman and George Sharswood, and many other
lawyers were working to flesh out the broad outline of a lawyer's duties. These reformers
wrote about legal ethics in unprecedented detail and thus brought a new level of
understanding to a lawyer's duties. A number of mid-nineteenth century laws and statutes,
other than the Field Code, governed lawyer behavior. A few forms of colonial regulations —
e.g., the "do no falsehood" oath and the deceit prohibitions — persisted in some states.
Procedural law continued to directly, or indirectly, limit an attorney's litigation behavior. The
developing law of agency recognized basic duties of competence, loyalty and safeguarding
of client property. Evidence law started to recognize with less equivocation the attorney-
client privilege and its underlying theory of confidentiality. Thus, all of the core duties, with
the likely exception of service to the poor, had some basis in formal law. Yet, as in the
colonial and early post-revolutionary periods, these standards were isolated and did not
provide a comprehensive statement of a lawyer's duties. The reformers, by contrast, were
more comprehensive in their discussion of a lawyer's duties, and they actually ushered a new
era in American legal ethics. 21
Toward the end of the nineteenth century, a new form of ethical standards began to guide
lawyers in their practice — the bar association code of legal ethics. The bar codes were
detailed ethical standards formulated by lawyers for lawyers. They combined the two
17
primary sources of ethical guidance from the nineteenth century. Like the academic
discourses, the bar association codes gave detail to the statutory statements of duty and the
oaths of office. Unlike the academic lectures, however, the bar association codes retained
some of the official imprimatur of the statutes and oaths. Over time, the bar association
codes became extremely popular that states adopted them as binding rules of law. Critical
to the development of the new codes was the re-emergence of bar associations themselves.
Local bar associations formed sporadically during the colonial period, but they disbanded by
the early nineteenth century. In the late nineteenth century, bar associations began to form
again, picking up where their colonial predecessors had left off. Many of the new bar
associations, most notably the Alabama State Bar Association and the American Bar
Association, assumed on the task of drafting substantive standards of conduct for their
members. 22
In 1887, Alabama became the first state with a comprehensive bar association code of ethics.
The 1887 Alabama Code of Ethics was the model for several states' codes, and it was the
foundation for the American Bar Association's (ABA) 1908 Canons of Ethics. 23
In 1917, the Philippine Bar found that the oath and duties of a lawyer were insufficient to
attain the full measure of public respect to which the legal profession was entitled. In that
year, the Philippine Bar Association adopted as its own, Canons 1 to 32 of the ABA Canons of
Professional Ethics. 24
As early as 1924, some ABA members have questioned the form and function of the canons.
Among their concerns was the "revolving door" or "the process by which lawyers and others
temporarily enter government service from private life and then leave it for large fees in
private practice, where they can exploit information, contacts, and influence garnered in
government service." 25 These concerns were classified as "adverse-interest conflicts" and
"congruent-interest conflicts." "Adverse-interest conflicts" exist where the matter in which the
former government lawyer represents a client in private practice is substantially related to a
matter that the lawyer dealt with while employed by the government and the interests of
the current and former are adverse. 26 On the other hand, "congruent-interest representation
conflicts" are unique to government lawyers and apply primarily to former government
lawyers. 27 For several years, the ABA attempted to correct and update the canons through
new canons, individual amendments and interpretative opinions. In 1928, the ABA amended
one canon and added thirteen new canons. 28 To deal with problems peculiar to former
government lawyers, Canon 36 was minted which disqualified them both for "adverse-
interest conflicts" and "congruent-interest representation conflicts." 29 The rationale for
disqualification is rooted in a concern that the government lawyer's largely discretionary
actions would be influenced by the temptation to take action on behalf of the government
client that later could be to the advantage of parties who might later become private
practice clients. 30 Canon 36 provides, viz.:
36. Retirement from judicial position or public employment
A lawyer should not accept employment as an advocate in any matter
upon the merits of which he has previously acted in a judicial
capacity.TDcAaH
 A lawyer, having once held public office or having been in the public
employ should not, after his retirement, accept employment in
connection with any matter he has investigated or passed upon while in
such office or employ.
Over the next thirty years, the ABA continued to amend many of the canons and added
Canons 46 and 47 in 1933 and 1937, respectively. 31
In 1946, the Philippine Bar Association again adopted as its own Canons 33 to 47 of the ABA
Canons of Professional Ethics. 32
By the middle of the twentieth century, there was growing consensus that the ABA Canons
needed more meaningful revision. In 1964, the ABA President-elect Lewis Powell asked for
the creation of a committee to study the "adequacy and effectiveness" of the ABA Canons.
The committee recommended that the canons needed substantial revision, in part because
the ABA Canons failed to distinguish between "the inspirational and the proscriptive" and
were thus unsuccessful in enforcement. The legal profession in the United States likewise
observed that Canon 36 of the ABA Canons of Professional Ethics resulted in unnecessary
disqualification of lawyers for negligible participation in matters during their employment
with the government.
The unfairness of Canon 36 compelled ABA to replace it in the 1969 ABA Model Code of
Professional Responsibility. 33 The basic ethical principles in the Code of Professional
Responsibility were supplemented by Disciplinary Rules that defined minimum rules of
conduct to which the lawyer must adhere. 34 In the case of Canon 9, DR 9-101(b) 35 became
the applicable supplementary norm. The drafting committee reformulated the canons into
the Model Code of Professional Responsibility, and, in August of 1969, the ABA House of
Delegates approved the Model Code. 36
Despite these amendments, legal practitioners remained unsatisfied with the results and
indefinite standards set forth by DR 9-101(b) and the Model Code of Professional
Responsibility as a whole. Thus, in August 1983, the ABA adopted new Model Rules of
Professional Responsibility. The Model Rules used the "restatement format," where the
conduct standards were set-out in rules, with comments following each rule. The new
format was intended to give better guidance and clarity for enforcement "because the only
enforceable standards were the black letter Rules." The Model Rules eliminated the broad
canons altogether and reduced the emphasis on narrative discussion, by placing comments
after the rules and limiting comment discussion to the content of the black letter rules. The
Model Rules made a number of substantive improvements particularly with regard to
conflicts of interests. 37 In particular, the ABA did away with Canon 9, citing the hopeless
dependence of the concept of impropriety on the subjective views of anxious clients as well as
the norm's indefinite nature. 38
In cadence with these changes, the Integrated Bar of the Philippines (IBP) adopted a proposed
Code of Professional Responsibility in 1980 which it submitted to this Court for approval. The
Code was drafted to reflect the local customs, traditions, and practices of the bar and to
conform with new realities. On June 21, 1988, this Court promulgated the Code of Professional
Responsibility. 39 Rule 6.03 of the Code of Professional Responsibility deals particularly with
former government lawyers, and provides, viz.:
18
Rule 6.03 — A lawyer shall not, after leaving government service,
accept engagement or employment in connection with any matter in
which he had intervened while in said service.
Rule 6.03 of the Code of Professional Responsibility retained the general structure of
paragraph 2, Canon 36 of the Canons of Professional Ethics but replaced the expansive
phrase "investigated and passed upon" with the word "intervened." It is, therefore, properly
applicable to both "adverse-interest conflicts" and "congruent-interest conflicts."
The case at bar does not involve the “adverse interest” aspect of Rule 6.03. Respondent
Mendoza, it is conceded, has no adverse interest problem when he acted as Solicitor General
in Sp. Proc. No. 107812 and later as counsel of respondents Tan, et al. in Civil Case No. 0005
and Civil Case Nos. 0096-0099 before the Sandiganbayan. Nonetheless, there remains the
issue of whether there exists a "congruent-interest conflict" sufficient to disqualify
respondent Mendoza from representing respondents Tan, et al.
I.B.
The "congruent interest" aspect of Rule 6.03
The key to unlock Rule 6.03 lies in comprehending first, the meaning of "matter" referred to
in the rule and, second, the metes and bounds of the "intervention" made by the former
government lawyer on the "matter." The American Bar Association in its Formal Opinion
342, defined "matter" as any discrete, isolatable act as well as identifiable transaction or
conduct involving a particular situation and specific party, and not merely an act of drafting,
enforcing or interpreting government or agency procedures, regulations or laws, or briefing
abstract principles of law.
Firstly, it is critical that we pinpoint the "matter" which was the subject of intervention by
respondent Mendoza while he was the Solicitor General. The PCGG relates the following
acts of respondent Mendoza as constituting the "matter" where he intervened as a Solicitor
General, viz: 40
The PCGG's Case for Atty. Mendoza's Disqualification
The PCGG imputes grave abuse of discretion on the part of
the Sandiganbayan (Fifth Division) in issuing the assailed Resolutions
dated July 11, 2001 and December 5, 2001 denying the motion to
disqualify Atty. Mendoza as counsel for respondents Tan, et al. The
PCGG insists that Atty. Mendoza, as then Solicitor General, actively
intervened in the closure of GENBANK by advising the Central Bank
on how to proceed with the said bank's liquidation and even filing the
petition for its liquidation with the CFI of Manila. TaCDAH
As proof thereof, the PCGG cites the Memorandum dated March 29,
1977 prepared by certain key officials of the Central Bank, namely,
then Senior Deputy Governor Amado R. Brinas, then Deputy Governor
Jaime C. Laya, then Deputy Governor and General Counsel Gabriel C.
Singson, then Special Assistant to the Governor Carlota P. Valenzuela,
then Assistant to the Governor Arnulfo B. Aurellano and then Director
of Department of Commercial and Savings Bank Antonio T. Castro, Jr.,
where they averred that on March 28, 1977, they had a conference
with the Solicitor General (Atty. Mendoza), who advised them on how
to proceed with the liquidation of GENBANK. The pertinent portion of
the said memorandum states:
Immediately after said meeting, we had a conference with
the Solicitor General and he advised that the following
procedure should be taken:
1) Management should submit a memorandum to the
Monetary Board reporting that studies and
evaluation had been made since the last
examination of the bank as of August 31, 1976 and
it is believed that the bank can not be reorganized
or placed in a condition so that it may be permitted
to resume business with safety to its depositors
and creditors and the general public.
2) If the said report is confirmed by the Monetary Board, it
shall order the liquidation of the bank and indicate
the manner of its liquidation and approve a
liquidation plan.
3) The Central Bank shall inform the principal stockholders of
Genbank of the foregoing decision to liquidate the
bank and the liquidation plan approved by the
Monetary Board.
4) The Solicitor General shall then file a petition in the Court
of First Instance reciting the proceedings which
had been taken and praying the assistance of the
Court in the liquidation of Genbank.
The PCGG further cites the Minutes No. 13 dated March 29, 1977 of the
Monetary Board where it was shown that Atty. Mendoza was
furnished copies of pertinent documents relating to GENBANK in
order to aid him in filing with the court the petition for assistance in
the bank's liquidation. The pertinent portion of the said minutes reads:
The Board decided as follows:
xxx xxx xxx
E. To authorize Management to furnish the Solicitor General
with a copy of the subject memorandum of the
Director, Department of Commercial and Savings
Bank dated March 29, 1977, together with copies
of:
19
1. Memorandum of the Deputy Governor,
Supervision and Examination Sector, to
the Monetary Board, dated March 25,
1977, containing a report on the current
situation of Genbank;
2. Aide Memoire on the Antecedent Facts Re:
General Bank and Trust Co., dated March
23, 1977;
3. Memorandum of the Director, Department of
Commercial and Savings Bank, to the
Monetary Board, dated March 24, 1977,
submitting, pursuant to Section 29
of R.A. No. 265, as amended by P.D. No.
1007, a report on the state of insolvency
of Genbank, together with its
attachments; and
4. Such other documents as may be necessary or
needed by the Solicitor General for his
use in then CFI-praying the assistance of
the Court in the liquidation of Genbank.
Beyond doubt, therefore, the "matter" or the act of respondent Mendoza as Solicitor
General involved in the case at bar is "advising the Central Bank, on how to proceed with the
said bank's liquidation and even filing the petition for its liquidation with the CFI of Manila."
In fine, the Court should resolve whether his act of advising the Central Bank on the legal
procedure to liquidate GENBANK is included within the concept of "matter" under Rule
6.03. The procedure of liquidation is given in black and white in Republic Act No. 265, section
29, viz:
The provision reads in part:
SEC. 29. Proceedings upon insolvency. — Whenever, upon examination
by the head of the appropriate supervising or examining department
or his examiners or agents into the condition of any bank or non-bank
financial intermediary performing quasi-banking functions, it shall be
disclosed that the condition of the same is one of insolvency, or that
its continuance in business would involve probable loss to its
depositors or creditors, it shall be the duty of the department head
concerned forthwith, in writing, to inform the Monetary Board of the
facts, and the Board may, upon finding the statements of the
department head to be true, forbid the institution to do business in the
Philippines and shall designate an official of the Central Bank or a
person of recognized competence in banking or finance, as receiver to
immediately take charge of its assets and liabilities, as expeditiously as
possible collect and gather all the assets and administer the same for
the benefit of its creditors, exercising all the powers necessary for
these purposes including, but not limited to, bringing suits and
foreclosing mortgages in the name of the bank or non-bank financial
intermediary performing quasi-banking functions.
xxx xxx xxx
If the Monetary Board shall determine and confirm within the said
period that the bank or non-bank financial intermediary performing
quasi-banking functions is insolvent or cannot resume business with
safety to its depositors, creditors and the general public, it shall, if the
public interest requires, order its liquidation, indicate the manner of its
liquidation and approve a liquidation plan. The Central Bank shall, by
the Solicitor General, file a petition in the Court of First Instance
reciting the proceedings which have been taken and praying the
assistance of the court in the liquidation of such institution. The court
shall have jurisdiction in the same proceedings to adjudicate disputed
claims against the bank or non-bank financial intermediary performing
quasi-banking functions and enforce individual liabilities of the
stockholders and do all that is necessary to preserve the assets of such
institution and to implement the liquidation plan approved by the
Monetary Board. The Monetary Board shall designate an official of the
Central Bank, or a person of recognized competence in banking or
finance, as liquidator who shall take over the functions of the receiver
previously appointed by the Monetary Board under this Section. The
liquidator shall, with all convenient speed, convert the assets of the
banking institution or non-bank financial intermediary performing
quasi-banking functions to money or sell, assign or otherwise dispose
of the same to creditors and other parties for the purpose of paying
the debts of such institution and he may, in the name of the bank or
non-bank financial intermediary performing quasi-banking functions,
institute such actions as may be necessary in the appropriate court to
collect and recover accounts and assets of such institution. ICTDEa
The provisions of any law to the contrary notwithstanding, the actions
of the Monetary Board under this Section and the second paragraph of
Section 34 of this Act shall be final and executory, and can be set aside
by the court only if there is convincing proof that the action is plainly
arbitrary and made in bad faith. No restraining order or injunction shall
be issued by the court enjoining the Central Bank from implementing
its actions under this Section and the second paragraph of Section 34
of this Act, unless there is convincing proof that the action of the
Monetary Board is plainly arbitrary and made in bad faith and the
petitioner or plaintiff files with the clerk or judge of the court in which
the action is pending a bond executed in favor of the Central Bank, in
an amount to be fixed by the court. The restraining order or injunction
shall be refused or, if granted, shall be dissolved upon filing by the
Central Bank of a bond, which shall be in the form of cash or Central
Bank cashier(s) check, in an amount twice the amount of the bond of
20
the petitioner or plaintiff conditioned that it will pay the damages
which the petitioner or plaintiff may suffer by the refusal or the
dissolution of the injunction. The provisions of Rule 58 of the New
Rules of Court insofar as they are applicable and not inconsistent with
the provisions of this Section shall govern the issuance and dissolution
of the restraining order or injunction contemplated in this Section.
Insolvency, under this Act, shall be understood to mean the inability of
a bank or non-bank financial intermediary performing quasi-banking
functions to pay its liabilities as they fall due in the usual and ordinary
course of business. Provided, however, That this shall not include the
inability to pay of an otherwise non-insolvent bank or non-bank
financial intermediary performing quasi-banking functions caused by
extraordinary demands induced by financial panic commonly
evidenced by a run on the bank or non-bank financial intermediary
performing quasi-banking functions in the banking or financial
community.
The appointment of a conservator under Section 28-A of this Act or
the appointment of a receiver under this Section shall be vested
exclusively with the Monetary Board, the provision of any law, general
or special, to the contrary notwithstanding. (As amended by PD Nos.
72, 1007, 1771 & 1827, Jan. 16, 1981)
We hold that this advice given by respondent Mendoza on the procedure to liquidate
GENBANK is not the "matter" contemplated by Rule 6.03 of the Code of Professional
Responsibility. ABA Formal Opinion No. 342 is clear as daylight in stressing that the
"drafting, enforcing or interpretinggovernment or agency procedures, regulations or laws, or
briefing abstract principles of law" are acts which do not fall within the scope of the term
"matter" and cannot disqualify.
Secondly, it can even be conceded for the sake of argument that the above act of
respondent Mendoza falls within the definition of matter per ABA Formal Opinion No. 342.
Be that as it may, the said act of respondent Mendoza which is the "matter" involved in Sp.
Proc. No. 107812 isentirely different from the "matter" involved in Civil Case No. 0096. Again,
the plain facts speak for themselves. It is given that respondent Mendoza had nothing to do
with the decision of the Central Bank to liquidate GENBANK. It is also given that he did not
participate in the sale of GENBANK to Allied Bank. The "matter" where he got himself
involved was in informing Central Bank on the procedure provided by law to liquidate
GENBANK thru the courts and in filing the necessary petition in Sp. Proc. No. 107812 in the
then Court of First Instance. The subject "matter" of Sp. Proc. No. 107812, therefore, is not the
same nor is related to but is different from the subject “matter” in Civil Case No. 0096. Civil
Case No. 0096 involves the sequestration of the stocks owned by respondents Tan, et al., in
Allied Bank on the alleged ground that they are ill-gotten. The case does not involve the
liquidation of GENBANK. Nor does it involve the sale of GENBANK to Allied Bank. Whether
the shares of stock of the reorganized Allied Bank are ill-gotten is far removed from the issue
of the dissolution and liquidation of GENBANK. GENBANK was liquidated by the Central
Bank due, among others, to the alleged banking malpractices of its owners and officers. In
other words, the legality of the liquidation of GENBANK is not an issue in the sequestration
cases. Indeed, the jurisdiction of the PCGG does not include the dissolution and liquidation
of banks. It goes without saying that Code 6.03 of the Code of Professional
Responsibility cannot apply to respondent Mendoza because his alleged intervention while a
Solicitor General in Sp. Proc. No. 107812 is an intervention on a matter different from the
matter involved in Civil Case No. 0096.
Thirdly, we now slide to the metes and bounds of the "intervention" contemplated by Rule
6.03. "Intervene" means, viz.:
1: to enter or appear as an irrelevant or extraneous feature or
circumstance . . . 2: to occur, fall, or come in between points of time or
events . . . 3: to come in or between by way of hindrance or
modification: INTERPOSE . . . 4: to occur or lie between two things
(Paris, where the same city lay on both sides of an intervening river . .
.) 41
On the other hand, "intervention" is defined as:
1: the act or fact of intervening: INTERPOSITION; 2: interference that
may affect the interests of others. 42
There are, therefore, two possible interpretations of the word "intervene." Under the first
interpretation, "intervene" includes participation in a proceeding even if the intervention is
irrelevant or has no effect or little influence. 43 Under the second interpretation, "intervene"
only includes an act of a person who has the power to influence the subject
proceedings. 44 We hold that this second meaning is more appropriate to give to the word
"intervention" under Rule 6.03 of the Code of Professional Responsibility in light of its
history. The evils sought to be remedied by the Rule do not exist where the government
lawyer does an act which can be considered as innocuous such as ". . . drafting, enforcing or
interpreting government or agency procedures, regulations or laws, or briefing abstract
principles of law." HTCAED
In fine, the intervention cannot be insubstantial and insignificant. Originally, Canon 36
provided that a former government lawyer "should not, after his retirement, accept
employment in connection with any matter which he has investigated or passed upon while in
such office or employ." As aforediscussed, the broad sweep of the phrase "which he has
investigated or passed upon" resulted in unjust disqualification of former government
lawyers. The 1969 Code restricted its latitude, hence, in DR 9-101(b), the prohibition
extended only to a matter in which the lawyer, while in the government service, had
"substantial responsibility." The 1983 Model Rules further constricted the reach of the rule.
MR 1.11(a) provides that "a lawyer shall not represent a private client in connection with a
matter in which the lawyer participated personally and substantially as a public officer or
employee."
It is, however, alleged that the intervention of respondent Mendoza in Sp. Proc. No. 107812
is significant and substantial. We disagree. For one, the petition in the special proceedings is
an initiatory pleading, hence, it has to be signed by respondent Mendoza as the then sitting
Solicitor General. For another, the record is arid as to the actual participation of respondent
21
Mendoza in the subsequent proceedings. Indeed, the case was in slumberville for a long
number of years. None of the parties pushed for its early termination. Moreover, we note
that the petition filed merely seeks the assistance of the court in the liquidation of
GENBANK. The principal role of the court in this type of proceedings is to assist the Central
Bank in determining claims of creditors against the GENBANK. The role of the court is not
strictly as a court of justice but as an agent to assist the Central Bank in determining the
claims of creditors. In such a proceeding, the participation of the Office of the Solicitor
General is not that of the usual court litigator protecting the interest of government.
II
Balancing Policy Considerations
To be sure, Rule 6.03 of our Code of Professional Responsibility represents a commendable
effort on the part of the IBP to upgrade the ethics of lawyers in the government service. As
aforestressed, it is a take-off from similar efforts especially by the ABA which have not been
without difficulties. To date, the legal profession in the United States is still fine tuning its
DR 9-101(b) rule.
In fathoming the depth and breadth of Rule 6.03 of our Code of Professional Responsibility,
the Court took account of various policy considerations to assure that its interpretation and
application to the case at bar will achieve its end without necessarily prejudicing other values
of equal importance. Thus, the rule was not interpreted to cause a chilling effect on
government recruitment of able legal talent. At present, it is already difficult for government
to match compensation offered by the private sector and it is unlikely that government will
be able to reverse that situation. The observation is not inaccurate that the only card that
the government may play to recruit lawyers is have them defer present income in return for
the experience and contacts that can later be exchanged for higher income in private
practice. 45 Rightly, Judge Kaufman warned that the sacrifice of entering government
service would be too great for most men to endure should ethical rules prevent them from
engaging in the practice of a technical specialty which they devoted years in acquiring and
cause the firm with which they become associated to be disqualified. 46 Indeed, "to make
government service more difficult to exit can only make it less appealing to enter." 47
In interpreting Rule 6.03, the Court also cast a harsh eye on its use as a litigation tactic to
harass opposing counsel as well as deprive his client of competent legal representation. The
danger that the rule will be misused to bludgeon an opposing counsel is not a mere
guesswork. The Court of Appeals for the District of Columbia has noted "the tactical use of
motions to disqualify counsel in order to delay proceedings, deprive the opposing party of
counsel of its choice, and harass and embarrass the opponent," and observed that the tactic
was "so prevalent in large civil cases in recent years as to prompt frequent judicial and
academic commentary." 48 Even the United States Supreme Court found no quarrel with
the Court of Appeals' description of disqualification motions as "a dangerous game." 49 In
the case at bar, the new attempt to disqualify respondent Mendoza is difficult to divine. The
disqualification of respondent Mendoza has long been a dead issue. It was resuscitated after
the lapse of many years and only after PCGG has lost many legal incidents in the hands of
respondent Mendoza. For a fact, the recycled motion for disqualification in the case at bar
was filed more than four years after the filing of the petitions for certiorari, prohibition and
injunction with the Supreme Court which were subsequently remanded to
the Sandiganbayan and docketed as Civil Case Nos. 0096-0099. 50 At the very least, the
circumstances under which the motion to disqualify in the case at bar were refiled put
petitioner's motive as highly suspect.
Similarly, the Court in interpreting Rule 6.03 was not unconcerned with the prejudice to the
client which will be caused by its misapplication. It cannot be doubted that granting a
disqualification motion causes the client to lose not only the law firm of choice, but probably
an individual lawyer in whom the client has confidence. 51 The client with a disqualified
lawyer must start again often without the benefit of the work done by the latter. 52 The
effects of this prejudice to the right to choose an effective counsel cannot be overstated for
it can result in denial of due process.SIHCDA
The Court has to consider also the possible adverse effect of a truncated reading of the rule on
the official independence of lawyers in the government service. According to Prof. Morgan:
"An individual who has the security of knowing he or she can find private employment upon
leaving the government is free to work vigorously, challenge official positions when he or
she believes them to be in error, and resist illegal demands by superiors. An employee who
lacks this assurance of private employment does not enjoy such freedom." 53 He adds: "Any
system that affects the right to take a new job affects the ability to quit the old job and any
limit on the ability to quit inhibits official independence." 54 The case at bar involves the
position of Solicitor General, the office once occupied by respondent Mendoza. It cannot be
overly stressed that the position of Solicitor General should be endowed with a great degree of
independence. It is this independence that allows the Solicitor General to recommend
acquittal of the innocent; it is this independence that gives him the right to refuse to defend
officials who violate the trust of their office. Any undue diminution of the independence of
the Solicitor General will have a corrosive effect on the rule of law.
No less significant a consideration is the deprivation of the former government lawyer of the
freedom to exercise his profession. Given the current state of our law, the disqualification of a
former government lawyer may extend to all members of his law firm. 55 Former
government lawyers stand in danger of becoming the lepers of the legal profession.
It is, however, proffered that the mischief sought to be remedied by Rule 6.03 of the Code of
Professional Responsibility is the possible appearance of impropriety and loss of public
confidence in government. But as well observed, the accuracy of gauging public perceptions
is a highly speculative exercise at best 56 which can lead to untoward results. 57 No less than
Judge Kaufman doubts that the lessening of restrictions as to former government attorneys
will have any detrimental effect on that free flow of information between the government-
client and its attorneys which the canons seek to protect. 58 Notably, the appearance of
impropriety theory has been rejected in the 1983 ABA Model Rules of Professional
Conduct 59 and some courts have abandoned per se disqualification based on Canons 4 and
9 when an actual conflict of interest exists, and demand an evaluation of the interests of the
defendant, government, the witnesses in the case, and the public. 60
It is also submitted that the Court should apply Rule 6.03 in all its strictness for it correctly
disfavors lawyers who "switch sides." It is claimed that "switching sides" carries the danger
that former government employee may compromise confidential official information in the
22
process. But this concern does not cast a shadow in the case at bar. As afore-discussed, the
act of respondent Mendoza in informing the Central Bank on the procedure how to liquidate
GENBANK is a different matter from the subject matter of Civil Case No. 0005 which is about
the sequestration of the shares of respondents Tan, et al., in Allied Bank. Consequently, the
danger that confidential official information might be divulged is nil, if not inexistent. To be
sure, there are no inconsistent "sides" to be bothered about in the case at bar. For there is no
question that in lawyering for respondents Tan, et al., respondent Mendoza is not working
against the interest of Central Bank. On the contrary, he is indirectly defending the validity
of the action of Central Bank in liquidating GENBANK and selling it later to Allied Bank. Their
interests coincide instead of colliding. It is for this reason that Central Bank offered no
objection to the lawyering of respondent Mendoza in Civil Case No. 0005 in defense of
respondents Tan,et al. There is no switching of sides for no two sides are involved.
It is also urged that the Court should consider that Rule 6.03 is intended to avoid conflict of
loyalties, i.e., that a government employee might be subject to a conflict of loyalties while
still in government service. 61 The example given by the proponents of this argument is that
a lawyer who plans to work for the company that he or she is currently charged with
prosecuting might be tempted to prosecute less vigorously. 62 In the cautionary words of
the Association of the Bar Committee in 1960: "The greatest public risks arising from post
employment conduct may well occur during the period of employment through the
dampening of aggressive administration of government policies." 63 Prof. Morgan,
however, considers this concern as "probably excessive." 64 He opines ". . . it is hard to
imagine that a private firm would feel secure hiding someone who had just been disloyal to
his or her last client — the government. Interviews with lawyers consistently confirm that
law firms want the 'best' government lawyers — the ones who were hardest to beat — not
the least qualified or least vigorous advocates." 65 But again, this particular concern is a non
factor in the case at bar. There is no charge against respondent Mendoza that he advised
Central Bank on how to liquidate GENBANK with an eye in later defending respondents
Tan, et al. of Allied Bank. Indeed, he continues defending both the interests of Central Bank
and respondents Tan, et al. in the above cases.
Likewise, the Court is nudged to consider the need to curtail what is perceived as
the "excessive influence of former officials" or their "clout." 66Prof. Morgan again warns
against extending this concern too far. He explains the rationale for his warning, viz: "Much
of what appears to be an employee's influence may actually be the power or authority of his
or her position, power that evaporates quickly upon departure from government . .
." 67 More, he contends that the concern can be demeaning to those sitting in government.
To quote him further: ". . . The idea that, present officials make significant decisions based
on friendship rather than on the merit says more about the present officials than about their
former co-worker friends. It implies a lack of will or talent, or both, in federal officials that
does not seem justified or intended, and it ignores the possibility that the officials will tend
to disfavor their friends in order to avoid even the appearance of favoritism." 68
III
The question of fairness
Mr. Justices Panganiban and Carpio are of the view, among others, that the congruent
interest prong of Rule 6.03 of the Code of Professional Responsibility should be subject to a
prescriptive period. Mr. Justice Tinga opines that the rule cannot apply retroactively to
respondent Mendoza. Obviously, and rightly so, they are disquieted by the fact that (1)
when respondent Mendoza was the Solicitor General, Rule 6.03 has not yet adopted by the
IBP and approved by this Court, and (2) the bid to disqualify respondent Mendoza was made
after the lapse of time whose length cannot, by any standard, qualify as reasonable. At
bottom, the point they make relates to the unfairness of the rule if applied without any
prescriptive period and retroactively, at that. Their concern is legitimate and deserves to be
initially addressed by the IBP and our Committee on Revision of the Rules of Court. TaEIAS
IN VIEW WHEREOF, the petition assailing the resolutions dated July 11, 2001 and December
5, 2001 of the Fifth Division of the Sandiganbayan in Civil Case Nos. 0096-0099 is denied.
No cost.
SO ORDERED.
Davide, Jr., C.J., Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez,
Corona and Garcia, JJ., concur.
Panganiban, J., please see separate opinion.
Carpio Morales, J., please see dissenting opinion.
Callejo, Sr., J., please see my dissenting opinion.
Azcuna, J., took no part. I was former PCGG chairman.
Tinga, J., please see separate opinion.
Chico-Nazario, J., took no part.
Separate Opinions
Separate Opinions
PANGANIBAN, J.:
The Petition in this case should be DISMISSED on two grounds: (1) res judicata, specifically,
conclusiveness of judgment; and (2) prescription.
In his Dissent, the esteemed Justice Romeo J. Callejo Sr. argues that Atty. Estelito P.
Mendoza violated Rule 6.03 of the Code of Professional Responsibility, 1 because after
leaving his post as solicitor general, he appeared as counsel in a "matter in which he had
intervened while he was in said service" (as solicitor general). He postulates that the Code of
Professional Responsibility should be a beacon to assist good lawyers "in navigating an
ethical course through the sometimes murky waters of professional conduct," in order "to
avoid any appearance of impropriety." He adds that the Code should be strictly construed
and stringently enforced.
23
On the other hand, the distinguished Justice Reynato S. Puno contends in his ponencia that
Rule 6.03 of the Code has been incorrectly applied by Justice Callejo, because the
"procedural advice" given by Atty. Mendoza is not the "matter" contemplated by the said
Rule. The ponencia explains that an "ultra restrictive reading of the Rule" would have "ill-
effects in our jurisdiction."
With due respect to both Justices Puno and Callejo, I respectfully submit that there is no
need to delve into the question of whether Rule 6.03 has been transgressed; there is no need
to discuss the merits of the questioned Sandiganbayan Resolutions allowing Atty. Mendoza
to represent private respondents in Civil Case Nos. 0096-0099. After all, a Resolution issued
by the same court resolving the very same issue on the "disqualification" of Atty. Mendoza in
a case involving the same parties and the same subject matter has already become final and
immutable. It can no longer be altered or changed.
I believe that the material issue in the present controversy is whether Atty. Mendoza may
still be barred from representing these respondents despite (1) a final Order in another case
resolving the very same ground for disqualification involving the same parties and the same
subject matter as the present case; and (2) the passage of a sufficient period of time from
the date he ceased to be solicitor general to the date when the supposed disqualification (for
violation of the Code) was raised. caAICE
Conclusiveness
of Judgment
The doctrine of res judicata is set forth in Section 47 of Rule 39 of the Rules of Court, the
relevant part of which I quote as follows:
"Sec. 47. Effect of judgments or final orders. — The effect of a judgment
or final order rendered by a court of the Philippines, having jurisdiction
to pronounce the judgment or final order, may be as follows:
xxx xxx xxx
|"(b) In other cases, the judgment or final order is, with respect to the
matter directly adjudged or as to any other matter that could have
been raised in relation thereto, conclusive between the parties and
their successors in interest by title subsequent to the commencement
of the action or special proceeding, litigating for the same thing and
under the same title and in the same capacity; and
"(c) In any other litigation between the same parties or their
successors in interest, that only is deemed to have been adjudged in a
former judgment or final order which appears upon its face to have
been so adjudged, or which was actually and necessarily included
therein or necessary thereto."
The above provision comprehends two distinct concepts of res judicata: (1) bar by former
judgment and (2) conclusiveness of judgment. Under the first concept, res judicata serves as
an absolute proscription of a subsequent action when the following requisites concur: (1) the
former judgment or order was final; (2) it adjudged the pertinent issue or issues on their
merits; (3) it was rendered by a court that had jurisdiction over the subject matter and the
parties; and (4) between the first and the second actions, there was identity of parties, of
subject matter, and of causes of action. 2
In regard to the fourth requirement, if there is no identity of causes of action but only
an identity of issues, res judicataexists under the second concept; that is,
under conclusiveness of judgment. In the latter concept, the rule bars the re-litigation of
particular facts or issues involving the same parties but on different claims or causes of
action. 3 Such rule, however, does not have the same effect as a bar by former judgment,
which prohibits the prosecution of a second action upon the same claim, demand or cause of
action.
In other words, conclusiveness of judgment finds application when a fact or question has
been squarely put in issue, judicially passed upon, and adjudged in a former suit by a court of
competent jurisdiction; it has thus been conclusively settled by a judgment or final order
issued therein. Insofar as the parties to that action (and persons in privity with them) are
concerned, and while the judgment or order remains unreversed or un-vacated by a proper
authority upon a timely motion or petition, such conclusively settled fact or question cannot
again be litigated in any future or other action between the same parties or their privies, in
the same or in any other court of concurrent jurisdiction, either for the same or for a
different cause of action. Thus, the only identities required for the operation of the principle
of conclusiveness of judgment is that betweenparties and issues. 4
While it does not have the same effect as a bar by former judgment, which proscribes
subsequent actions, conclusiveness of judgment nonetheless operates as an estoppel to
issues or points controverted, on which the determination of the earlier finding or judgment
has been anchored. 5 The dictum laid down in such a finding or judgment becomes
conclusive and continues to be binding between the same parties, as long as the facts on
which that judgment was predicated continue to be the facts of the case or incident before
the court. The binding effect and enforceability of that dictum can no longer be re-litigated,
since the said issue or matter has already been resolved and finally laid to rest in the earlier
case. 6
Relevant Antecedents
Showing the Application of the
Conclusiveness Doctrine
Let me now discuss some relevant antecedents to show the application to this case of res
judicata, specifically the principle of conclusiveness of judgment. AIaHES
Pursuant to Executive Order No. 1 of then President Corazon C. Aquino, the Presidential
Commission on Good Government (PCGG) issued sometime in June to August 1986 several
Writs of Sequestration over certain properties of Respondents Lucio Tan et al., properties
they had supposedly acquired by taking advantage of their close relationship with former
President Ferdinand E. Marcos.
On August 17, 1987, the PCGG instituted before the Sandiganbayan a Complaint against the
same respondents for "reversion, reconveyance, restitution, accounting and damages" vis-à-
24
vis their sequestered properties. The Complaint was docketed as Civil Case No. 0005 and
raffled to the Second Division of the Sandiganbayan (SBN).
Meanwhile, in separate Petitions before this Court, the validity of the sequestration Writs
was questioned by herein respondents, but said Petitions were referred by the Court to the
Sandiganbayan for proper disposition. These cases were raffled to the SBN Fifth Division
and docketed as Civil Case Nos. 0096, 0097, 0098 and 0099. Civil Case No. 0096, in
particular, involved the validity of the Writ of Sequestration issued by the PCGG over herein
private respondents' shares of stock in Allied Banking Corporation (formerly General Bank
and Trust Company or "GenBank").
In all the above-mentioned cases, Atty. Estelito P. Mendoza was the counsel of Tan et al.
On February 5, 1991, the PCGG filed in Civil Case No. 0005 a Motion 7 to disqualify Atty.
Mendoza as counsel for therein Respondents Tan et al. In a Resolution 8 dated April 22,
1991, the Sandiganbayan (Second Division) denied that Motion. The anti-graft court likewise
denied the Motion for Reconsideration filed by the PCGG. 9 Because the latter did not
appeal the denial, the Resolution became final and executory.
Similarly, in Civil Case Nos. 0096-0099, PCGG filed a Motion 10 to disqualify Atty. Mendoza
as counsel for Respondents Lucio Tan et al. According to respondent court, "the motion is
exactly the same in substance as that motion filed in Civil Case No. 0005"; in fact, both
incidents were taken up jointly by the Second and the Fifth Divisions of the
Sandiganbayan. 11 Indeed, a perusal of both Motions reveals that, except as to their
respective captions, the contents of the Motions are identically worded. Both Motions were
anchored essentially on the same ground: that by virtue of Rule 6.03 of the Code of
Professional Responsibility, Atty. Mendoza was prohibited from acting as counsel of Tan et
al. in the pending cases. During his tenure as solicitor general, Atty. Mendoza had allegedly
"intervened" in the dissolution of GenBank, Allied Bank's predecessor.
Thus, in its herein assailed July 11, 2001 Resolution, respondent court resolved to reiterate
and adopt "the Resolution dated April 22, 1991 in Civil Case No. 0005 of the Second Division
. . . denying the motion."
Resolution in Civil Case
No. 0005 a Final Order
As distinguished from an interlocutory order, a final judgment or order decisively puts an
end to (or disposes of) a case or a disputed issue; in respect thereto, nothing else — except its
execution — is left for the court to do. Once that judgment or order is rendered, the
adjudicative task of the court on the particular matter involved is likewise ended. 12 Such an
order may refer to the entire controversy or to some defined and separate branch
thereof. 13 On the other hand, an order is interlocutory if its effects are merely provisional in
character and still leave substantial proceedings to be further conducted by the issuing court
in order to put the issue or controversy to rest. 14
I have no quarrel with the general test — expounded, with acknowledged authorities, in the
Dissenting Opinions of Justices Conchita Carpio Morales and Callejo — for determining
whether an order is interlocutory. Such test, however, applies to orders that dispose of
incidents or issues that are intimately related to the very cause of action or merits of the
case. The exception lies when the order refers to a "definite and separate branch" of the
main controversy, as held by the Court in Republic v. Tacloban City Ice Plant. 15
Under the present factual milieu, the matter of disqualification of Atty. Mendoza as counsel
for respondents is a "defined and separate branch" of the main case for "reversion,
reconveyance, and restitution" of the sequestered properties. This matter has no direct
bearing on the adjudication of the substantive issues in the principal controversy. The final
judgment resolving the main case does not depend on the determination of the particular
question raised in the Motion. The April 22, 1991 Resolution of the Sandiganbayan (Second
Division) in Civil Case No. 0005 had finally and definitively determined the issue of Atty.
Mendoza's disqualification to act as counsel for Tan et al. Since that Resolution was not
appealed, it became final and executory. It became a conclusive judgment insofar as that
particular question was concerned. CEASaT
Applying the Doctrine of
Conclusiveness of Judgment
There is no question as regards the identity of the parties involved in Civil Case Nos. 0005
and 0096. Neither has the jurisdiction of the Second and the Fifth Divisions of the
Sandiganbayan been placed at issue. Clearly, the matter raised in the two Motions to
Disqualify, though separately filed at different times in those two cases, are likewise the
same or identical. Also undisputed is the fact that no appeal or certiorari petition was taken
from the April 22, 1991 Resolution of the Second Division in Civil Case No. 0005, which had
denied PCGG's Motion.
To counter the application of res judicata, Justices Morales and Callejo opine that the said
April 22, 1991 Resolution was merely interlocutory. It "merely settled an incidental or
collateral matter . . .; it cannot operate to bar the filing of another motion to disqualify Atty.
Mendoza in the other cases . . .," Justice Callejo explains. I beg to disagree.
True, there is, as yet, no final adjudication of the merits of the main issues of "reversion,
reconveyance and restitution." However, I submit that the question with respect to the
disqualification of Atty. Mendoza had nonetheless been conclusively settled. Indeed, the
April 22, 1991 SBN Resolution had definitively disposed of the Motion to Disqualify on its
merits. Since no appeal was taken therefrom, it became final and executory after the lapse
of the reglementary period. 16
While it merely disposed of a question that was collateral to the main controversy, the
Resolution should be differentiated from an ordinary interlocutory order that resolves an
incident arising from the very subject matter or cause of action, or one that is related to the
disposition of the main substantive issues of the case itself. Such an order is not appealable,
but may still be modified or rescinded upon sufficient grounds adduced before final
judgment. Verily, res judicata would not apply therein. 17
But, as illustrated earlier, the issue of the disqualification of Atty. Mendoza is separate from
and independent of the substantive issues in the main case for "reversion, reconveyance and
restitution." This particular question, in relation to Rule 6.03 of the Code of Professional
Responsibility, was finally settled in the Resolution of April 22, 1991, issued by the SBN
25
Second Division. In fact, I submit that this question had to be squarely resolved before trial
proceeded, so as not to prejudice the movant in case its arguments were found to be
meritorious. Otherwise, the Motion would be rendered naught.
In 2001, ten years after its filing, the identical Motion to Disqualify Atty. Mendoza in Civil
Case Nos. 0096-0099 finally came up for deliberation before the Fifth Division of the
Sandiganbayan. The Fifth Division correctly noted that the pending Motion was "exactly the
same in substance as that Motion filed in Civil Case No. 0005." Thus, it resolved to reiterate
and adopt the Second Division's April 22, 1991 Resolution denying the Motion. Interestingly
and understandably, the Fifth Division of the anti-graft court no longer separately reviewed
the merits of the Motion before it, because the Second Division's Resolution disposing of
exactly the same Motion and involving the same parties and subject matter had long
attained finality. That Resolution became a conclusive judgment between the parties with
respect to the subject matter involved therein.
Exception to Application of
Conclusiveness of Judgment
Justice Morales further cites Kilosbayan v. Morato, 18 in which the Court 19 said that "the
rule on conclusiveness of judgment or preclusion of issues or collateral estoppel does not
apply to issues of law, at least when substantially unrelated claims are involved." Explaining
further, the Court cited therein the "authoritative formulation" of the exception
in Restatement of the Law 2d, on Judgments, thus:
"§28. Although an issue is actually litigated and determined by a valid
and final judgment, and the determination is essential to the
judgment, relitigation of the issue in a subsequent action between the
parties is not precluded in the following circumstances:
xxx xxx xxx
(2) The issue is one of law and (a) the two actions involve claims that are
substantially unrelated, or (b) a new determination is warranted in
order to take account or an intervening change in the applicable legal
context or otherwise to avoid inequitable administration of the laws; . .
. [Emphasis and omissions in the original.]"
In accordance with the above exception to the rule, Justice Morales believes that the
doctrine of conclusiveness of judgment does not apply to this case, because the issue at bar
— disqualification of counsel — "is undoubtedly a legal question" and "Civil Case No. 005 and
Civil Case No. 0096 involve two different substantially unrelated claims."
I respectfully disagree with respect to her second point, which actually qualifies the
exception. I believe that the two cases involve substantiallyrelated claims. Civil Case No.
0005 seeks to recover alleged ill-gotten shares of stock of respondents Tan et al. in Allied
Bank. Civil Case No. 0096 questions the validity of the Sequestration Writ over the same
shares of stock involved in Civil Case No. 0005. In the ultimate analysis, both cases refer to
the determination of who has a valid ownership claim over said stockholdings.
In any event and as earlier discussed, in our jurisdiction, the only identities required for the
principle of conclusiveness of judgment to operate as an estoppel are those
of parties and issues. 20
Similar Motions in
Other PCGG Cases
Parenthetically, it is worth mentioning that in their Memorandum, 21 Respondents Tan et al.
aver that similar Motions to Disqualify Atty. Mendoza were likewise filed in Sandiganbayan
Civil Case Nos. 0095 and 0100. The former case, Sipalay Trading v. PCGG, involved shares of
stock of Lucio Tan in Maranaw Hotels and Resort Corporation; the latter case, Allied Banking
Corporation v. PCGG, sought the invalidation of an Order for the search and seizure of
certain documents of Allied Bank.
In both cases, the Sandiganbayan denied the separate Motions to Disqualify, as well as the
Motions for Reconsideration. No further actions were taken by the PCGG on such denials,
which thus became executory. Consequently, Atty. Mendoza was allowed to represent Lucio
Tan in those cases.
On the merits of the said cases, which were consolidated, the Sandiganbayan granted both
Petitions on August 23, 1993, by nullifying the Writ of Sequestration questioned in Civil Case
No. 0095, as well as the Search and Seizure Order assailed in Civil Case No. 0100. On March
29, 1996, the Supreme Court affirmed the SBN's Decision in the aforementioned
consolidated cases. 22 Consequently, now deemed res judicata are all issues raised in Civil
Case Nos. 0095 and 0100 — principal, incidental and corollary issues, including the matter of
the alleged disqualification of Atty. Mendoza.
Presence of Identities of
Parties and Issues
As earlier discussed, the only identities required for the principle of conclusiveness of
judgment to operate as an estoppel are those of partiesand issues. In the case before us,
both identities are clearly present. Hence, the principle of conclusiveness of judgment
applies and bars the present Petition.
From the foregoing, I submit that this Petition should be dismissed on the ground of
conclusiveness of judgment. Parenthetically, the proper recourse to assail the July 11, 2001
and the December 5, 2001 Resolutions of the Sandiganbayan (Fifth Division) should have
been a Petition for Review under Rule 45 of the Rules of Court. The certiorari proceeding
before this Court is apparently a substitute for a lost appeal, deserving only of outright
dismissal. 23 In any event, contrary to the allegations of petitioner, respondent court did not
commit grave abuse of discretion amounting to lack or excess of jurisdiction when it issued
the assailed Resolutions. HECTaA
Proscription
Time-Barred
True, Rule 6.03 of the Code of Professional Responsibility does not expressly specify the
period of its applicability or enforceability. However, I submit that one cannot infer
that, ergo, the prohibition is absolute, perpetual and permanent.
26
All civil actions have a prescriptive period. 24 Unless a law makes an action imprescriptible or
lays down no other period, the action is subject to a bar by prescription five (5) years after the
right of action accrued. 25 Criminal offenses — even the most heinous ones — as well as the
penalties therefor, likewise prescribe. 26 Relatedly, even so-called perpetual penalties and
multiple sentences have maximum periods. 27
Relevantly, it is worth pointing out that Republic Act No. 6713 prohibits public officers and
employees from practicing their profession for only one year after their resignation,
retirement or separation from public office, in connection with any matter before their
former office. 28
Prescription is intended to suppress stale and fraudulent claims arising from transactions or
facts that have been obscured by defective memory or the lapse of time. 29 It was designed
to promote justice by preventing surprises through the revival of claims that have been
allowed to slumber until relevant proofs are lost, memories faded, and witnesses no longer
available. 30 Consistent with law and jurisprudence and the purpose of statutes of
limitations, the prohibition on former government attorneys from involvement in matters in
which they took part long ago, pursuant to their official functions while in public service,
should likewise have an expiry or duration.
In the present case, the liquidation of GenBank, in which Atty. Mendoza purportedly
participated as then solicitor general, took place in 1977 or more than a quarter of a century
ago. Since early 1986, he has ceased to be solicitor general and has since engaged in the
private practice of law. In 1987, he became counsel for Respondents Tan et al. in Civil Case
No. 0005 and, since 1990, in Civil Case Nos. 0095 to 0100. 31 At the time, at least ten (10)
years had passed since his alleged involvement in the GenBank liquidation. Moreover, in
1991 when the separate Motions to Disqualify were filed by PCGG in these aforementioned
cases, he had been outside government service for about five (5) years, and fifteen years had
gone by since the said liquidation.
Now it is already 2005. If we go by the rationale behind prescription, the extent of the
individual participation of government officials in the GenBank liquidation may indeed "have
become so obscure from the lapse of time," if not from "defective memory."
It is undeniable that government lawyers usually handle a multitude of cases simultaneously
or within overlapping periods of time. This is in fact a common remonstration, especially
among prosecutors, public attorneys, solicitors, government corporate counsels, labor
arbiters, even trial and appellate judges. Yet, as dutiful public servants, they cannot reject or
shrink from assignments even if they are already overloaded with work. Similarly, lawyers in
private practice, whether by themselves or employed in law firms, are in a comparative
plight.
It would not be strange or uncommon that, in a period of five years, an attorney in
government service would have handled or interfered in hundreds of legal matters involving
varied parties. 32 Thousands of attorneys who have chosen to dedicate their service to the
government for some years are in such a situation. Hence, to perpetually and absolutely ban
them from taking part in all cases involving some matter in which they have taken part in
some distant past, pursuant to their official functions then, would be unduly harsh,
unreasonable and unfair. It would be tantamount to an unwarranted deprivation of the
exercise of their profession. Be it remembered that a profession, trade or calling partakes of
the nature of a property right within the meaning of our constitutional guarantees. 33
Moreover, to attribute to a former government lawyer a violation of some ethical rule
because of participation in a matter that has been forgotten in good faith due to the lapse of
a long period of time and does not involve interest adverse to the government would
likewise be harsh, unreasonable and unfair.
Similarly, there are many competent private practitioners who, at some point in their long
careers, would wish to serve the government. Would their fine and wide-ranging practice
and experience, which would otherwise be beneficial to the government, likewise forever bar
them from getting involved in matters that concern a party with whom they have had
dealings several years ago and whose interests are not adversely affected? In the case of
acknowledged experts in specific fields of law, of what use would their needed expertise be
to the government if they have to inhibit themselves from every case involving a party they
have served in the distant past, considering the limited number of parties that may actually
be involved in a specific field (for instance, intellectual property or bioethics law)?
I submit that the restraint on the exercise of one's profession, or right of employment
including that of attorneys formerly in government service, must survive the test of fairness
and reasonableness. The restriction should not be as pervasive and longer than is necessary
to afford a fair and reasonable protection to the interests of the government. After all, the
disqualification of government attorneys is a drastic measure, and courts should hesitate to
impose it except when necessary. 34
Thus, I submit that the restriction on government lawyers — specifically with respect to
subsequent engagement or employment in connection with matters falling under the
"congruent-interest representation conflict" — should be allowed to expire after a
reasonable period when no further prejudice to the public may be contemplated. The
duration of this prohibition should be no more than five (5) years from retirement or
separation from government service. Five years is the prescriptive period for suits for which
no period is prescribed by law. 35
It would be reasonable to assume that five years after separation from the service, one
would most likely have lost the loyalty of one's former personal contacts, if not the loyal
associates themselves, who may be able to facilitate the acquisition of important
information from the former office. In all probability, the lapse of the said period would also
naturally obscure to a reasonable extent a lawyer's memory of details of a specific case
despite active participation in the proceedings therein. This principle holds if, in the interval,
one has handled countless other legal matters as is so common among lawyers in
government offices.
Consequently, after the said period, former government attorneys should be allowed to take
up cases involving matters that were brought before them during their incumbency in public
office, so long as such matters do not come within the "adverse-interest conflict" doctrine
and the conflict-of-interest rule 36 applicable to all lawyers in general.
For the same reasons, the disqualification of members of the judiciary under Section 5(b)
and (d) 37 of Canon 3 of the New Code of Judicial Conduct 38 should also prescribe in five (5)
27
years from the time they assumed their judicial position; or from the time they retire from or
otherwise end their government service.
I realize that the application of Rule 6.03 of the Code of Professional Responsibility and
Section 5 of Canon 3 of the New Code of Judicial Conductis quite important to many
members of the bar who have served, or who aspire to serve, the government.
On the one hand, our rules of discipline should protect the interest of the public by
discouraging attorneys in government from so shaping their practice as to give unfair
advantage to their future private clients, or from jeopardizing confidential information
learned while in government service. On the other hand, government service should not be
discouraged by overly strict ethical rules that perpetually prohibit government lawyers from
later making reasonable and appropriate use in private practice of the expertise or
experience they have gained. 39
The reality is that the best lawyers will want to join the more lucrative private sector sooner
or later, and the government will hardly be able to attract them if they would later be
unreasonably restricted from putting their government experience to some use. 40 After all,
government service should afford lawyers the opportunity to improve their subsequent
private employment. The nature of the job brings such lawyers into inevitable contact with
clients interested in their fields of expertise. Because the practice of law is becoming
increasingly specialized, the likely consequence of a wholesale approach to disqualification
would be encouragement of a two-track professional structure: government lawyer, private
lawyer. The suspicion, and the reality, of ethical improprieties unrelated to particular
government cases would be eliminated — but at the cost of creating an insular, static legal
bureaucracy. 41
Such a pervasive, perpetual ban would deter too many competent attorneys from entering
government service, to the detriment of the public. 42The Court must strike a balance. I
believe that the adoption of the aforementioned period of limitation would achieve the
purpose behind Rule 6.03 of the Code of Professional Responsibility, as well as Section 5 of
Canon 3 of the New Code of Judicial Conduct.
To summarize, the present Petition is barred by the principle of conclusiveness of judgment,
because the April 22, 1991 Resolution of the SBN Second Division in Civil Case No. 0005 —
which resolved on the merits the very same ground for the disqualification of Atty.
Mendoza, and which involved essentially the same parties and the same subject matter as
the present case — constituted a final and executory order, no timely appeal having been
taken therefrom.
Furthermore, the disqualification of former government lawyers from congruent-interest
representation under Rule 6.03 of the Code of Professional Responsibility should be effective
only for a period of five (5) years from the retirement or the separation from government
service of the official concerned. The purpose of such prescriptive period is to prevent undue
restraint on former government lawyers from the private practice of their profession,
especially in the field of expertise that they may have gained while in public office. Similarly,
the disqualification of members of the judiciary, under Section 5 (b) and (d) of Canon 3 of the
New Code of Judicial Conduct should end five (5) years after they assumed their judicial
position.
 Implications of the
Dissenting Opinions
Endless re-litigations of the same question, as well as forum shopping, are invited by the
opinion of the dissenters that the April 22, 1991 Resolution of the Sandiganbayan's Second
Division in Civil Case No. 0005 does not bar the filing of another motion to disqualify Atty.
Mendoza from other cases between the same parties. Such a holding would effectively allow
herein petitioner to file exactly the same Motion in each of other and future cases involving
the same parties or their privies and the same subject matters, even after the first Motion
involving the same question or issue will have already been finally resolved in one of like
cases.
Further, it would also allow petitioner to let a contrary resolution of the incident in one case
become final through petitioner's withholding recourse to a higher court in order to await a
possible favorable ruling in one of the other cases. As it is, absurdity already surrounds the
handling of Civil Case No. 0005 and No. 0096, both of which involve the same parties and
the same subject matter.
In Civil Case No. 0005, which seeks to recover allegedly unlawfully acquired properties
consisting of shares of stock of Respondent Tan et al. in Allied Bank, Atty. Mendoza is
allowed to serve as their counsel. However, in Civil Case No. 0096, which merely questions
the validity of the Writ of Sequestration issued against the shares of stock in Allied Bank of
the same respondents, he is prohibited, per the dissenters, from acting as their counsel. This
is preposterous.
Moreover, treating the first Resolution as not yet final and executory, even if no appeal
or certiorari has timely been taken therefrom, would allow the questioned counsel to act as
such throughout the trial period until final judgment by the court a quo. Thereafter, on
appeal, his alleged "disqualification" may still be raised by the other party as an issue. If the
appeals court or this Tribunal ultimately finds that the said counsel is indeed disqualified on
the ground of conflict of interest or "congruent-interest representation conflict" and thus
reverses the trial court's ruling, the case would necessarily be remanded for new trial. As a
result, the entire proceedings would become naught and thereby unnecessarily waste the
precious time, effort and resources of the courts as well as the parties. Worse, the evidence
(or defense) adduced by the "disqualified" counsel through his prior connections with the
government (or the adverse party) could have already created bias in the court or in the
public mind.
These are precisely the procedural absurdities abhorred by the doctrine of res judicata, the
fundamental principle of due process and of the rule proscribing forum shopping.
Having already shown that Atty. Mendoza can no longer be disqualified at this point for his
alleged violation of Rule 6.03 of the Code of Professional Responsibility, due to res
judicata and prescription, I submit that there is no more need to discuss on the merits
whether indeed there was in fact such violation. Such discussion would be merely academic
and moot.
28
May I close this Opinion with this oft-quoted ruling of former Chief Justice Pedro L. Yap, who
was himself a former PCGG commissioner, on the soundness of upholding final judgments
even "at the risk of occasional errors":
"It is a general rule common to all civilized system of jurisprudence,
that the solemn and deliberate sentence of the law, pronounced by its
appointed organs, upon a disputed fact or a state of facts, should be
regarded as a final and conclusive determination of the question
litigated, and should forever set the controversy at rest. Indeed, it has
been well said that this maxim is more than a mere rule of law, more
than an important principle of public policy: and that it is not too much
to say that it is a fundamental concept in the organization of the jural
system. Public policy and sound practice demand that, at the risk of
occasional errors, judgments of courts should become final at some
definite date fixed by law. The very object for which courts were
constituted was to put an end to controversies." 43
WHEREFORE, I vote to DISMISS the Petition.
SANDOVAL-GUTIERREZ, J., concurring:
I join Mr. Justice Reynato S. Puno in his ponencia. Motions to disqualify counsel from
representing their clients must be viewed with jaundiced eyes, for oftentimes they pose the
very threat to the integrity of the judicial process. 1 Such motions are filed to harass a
particular counsel, to delay the litigation, to intimidate adversary, or for other strategic
purposes. It therefore behooves the courts to always look for the parties' inner motivations
in filing such motions.
This case illustrates the sad reality that the filing of motions for disqualification may be
motivated, not by a fine sense of ethics or sincere desire to remove from litigation an
unethical practitioner, but to achieve a tactical advantage.
The facts are undisputed.
Subsequent to the downfall of President Ferdinand E. Marcos in 1986, came the first
edict 2 of President Corazon C. Aquino creating the Presidential Commission on Good
Government (PCGG) to recover the ill-gotten wealth of the Marcoses, their subordinates,
and associates. acCTIS
PCGG's initial target was Lucio Tan and the above-named private respondents (Tan et al., for
brevity). It issued several writs of sequestration on their properties and business enterprises.
To nullify such writs, Tan et al. filed with this Court petitions for certiorari, prohibition and
injunction. On February 15, 1990, after comments thereon were submitted, this Court
referred the cases to the Sandiganbayan for proper disposition. These cases were raffled to
it Fifth Division, docketed as follows:
(a) Civil Case No. 0095 — Sipalay Trading Corp. vs. PCGG, which seeks
to nullify the PCGG's Order dated July 24, 1986 sequestering Lucio
 Tan's shares of stocks in Maranaw Hotels and Resort Corporation
(Century Park Sheraton Hotel);
(b) Civil Case No. 0096 — Lucio Tan, Mariano Tanenglian, Allied Banking
Corp., Iris Holding and Development Corp., Virgo Holdings Development
Corp. and Jewel Holdings, Inc. v. PCGG, which seeks to nullify the
PCGG's Order dated June 19, 1986 sequestering the shares of stocks in
Allied Banking Corporation held by and/or in the name of respondents
Lucio Tan, Mariano Tanenglian, Iris Holding and Development Corp.,
Virgo Holdings Development Corp. and Jewel Holdings, Inc.;
(c) Civil Case No. 0097 — Lucio Tan, Carmen Khao Tan, Florencio T.
Santos, Natividad Santos, Florencio N. Santos, Jr. and Foremost Farms,
Inc. v. PCGG, which seeks to nullify the PCGG's Order dated August 12,
1986 sequestering the shares of stocks in Foremost Farms, Inc. held by
and/or in the name of Lucio Tan, Carmen Khao Tan, Florencio T.
Santos, Natividad Santos and Florencio N. Santos, Jr.;
(d) Civil Case No. 0098 — Lucio Tan, Carmen Khao Tan, Mariano
Tanenglian, Florencio T. Santos, Natividad Santos, Florencio N. Santos,
Jr., Shareholdings, Inc. and Fortune Tabacco Corp. v. PCGG, which seeks
to nullify the PCGG's Order dated July 24, 1986 sequestering the shares
of stocks in Fortune Tobacco Corp. held by and/or in the name of Lucio
Tan, Carmen Khao Tan, Mariano Tanenglian, Florencio T. Santos,
Natividad Santos, Florencio N. Santos, Jr., Shareholdings, Inc.; and
(e) Civil Case No. 0099 — Lucio Tan, Carmen Khao Tan, Mariano
Tanenglian, Florencio T. Santos, Natividad Santos and Shareholdings,
Inc. v. PCGG, which seeks to nullify the PCGG's Order dated July 24,
1986 sequestering the shares of stocks in Shareholdings, Inc. held by
and/or in the name of Lucio Tan, Carmen Khao Tan, Mariano
Tanenglian, Florencio T. Santos and Natividad Santos.
(f) Civil Case No. 0100 — Allied Banking Corp. vs. PCGG, which seeks to
nullify the PCGG's Search and Seizure Order dated August 13, 1986,
issued on bank documents of Allied Banking Corp. 3
Civil Cases Nos. 0096 and 0100 involve Tan, et al.'s shares of stocks in the Allied Banking
Corporation (Allied Bank).
Meanwhile, on July 17, 1987, the PCGG and the Office of the Solicitor General (OSG) filed
with the Sandiganbayan a complaint for "reversion, reconveyance, restitution, accounting and
damages" against Tan et al. This time, the case was raffled to the Second Division, docketed
therein asCivil Case No. 0005. Among the properties sought to be reconveyed were Tan et
al.'s shares of stocks in the Allied Bank.
Since 1987, Atty. Estelito P. Mendoza has been the counsel for Tan et al. in all the above cases.
But it was not until February 5, 1991, or after four years, that the PCGG filed three (3) identical
motions to disqualify Atty. Mendoza. In Civil Cases Nos. 0096-0099, PCGG filed a motion to
disqualify him. It filed another similar motion in Civil Case No. 0100. The last motion was
29
filed in Civil Case No. 0005. His disqualification was sought under Rule 6.03 of the Code of
Professional Responsibility which reads:
Rule 6.03. — A lawyer shall not, after leaving government service,
accept engagement or employment in connection with any matter in
which he had intervened while in said service.
In each motion, PCGG alleged that Atty. Mendoza, then Solicitor General of the Marcos
Administration, "actively intervened" in the liquidation of General Bank and Trust Company
(GENBANK), subsequently acquired by Tan et al. and became Allied Bank. PCGG's
allegations are similar in every aspect, thus:
"(1) He was the former Solicitor General of the Republic of the
Philippines for almost 14 years appearing on behalf of the Republic in
multitudes of cases.
(2) The records show that, as then Solicitor General, Atty. Estelito P.
Mendoza appeared as counsel for the Central Bank of the Philippines in
Special Proceedings No. 107812, pending before the Regional Trial Court
of Manila, in connection with the Central Bank's Petition for assistance
in the Liquidation of General bank and Trust Company (herein called
"Genbank", for brevity). The records also show that Defendant Lucio Tan
and his group were the same persons who acquired Genbank's assets,
liabilities and interest.
(3) Consequently, Atty. Mendoza's appearance as counsel for the
Defendant herein runs counter to the long-cherished ethical canon of the
legal profession which prohibits a counsel to appear in litigation adverse
to the interests of his former client. Interpreting this sanction,
jurisprudence has held, that:
'The lawyer's obligation to represent the client with undivided
fidelity and to keep his confidences, also forbid the lawyer
from accepting retainers or employment from others in
matters adversely affecting any interest of the client with
respect to which confidence has been reposed in him. (Canon
of Professional Ethics, 6). The prohibition stands even if the
adverse interest is very slight; neither is it material that the
intention and motive of the attorney may have been honest. (5
Am. Jur. 296).'
(4) The reason for the prohibition is obvious. Apart from the obligation to
keep inviolate the prior relationship between counsel and his former
client, such counsel obtains material information in confidence.
Consequently, he should not be allowed to represent a party with
adverse interest to his former client, arising out of the very transaction
subject of the former relationship.
(5) In the case at bar, it should be stressed that Defendant Lucio Tan and
his group acquired the assets and liabilities of Genbank. This manner of
acquisition has been alleged to have been fraudulent, arbitrary and a
product of collusion between them and the Central Bank officials. (Refer
to Criminal Case No. 005 pending before this Honorable Court.) Atty.
Mendoza's appearance as counsel for Defendants, clearly violates the
Code of Professional Responsibility, which provides that:
'A lawyer shall not after leaving the government service accept
engagement or employment in connection with any matter in
which he had intervened while in said service. (Code of
Professional Responsibility, Canon 6, Rule 6.03)'
(6) In the liquidation of Genbank and its eventual acquisition by Lucio
Tan and his group, Atty. Mendoza, as Solicitor-General, personally
advised the Central Bank officials on the procedure to bring about
Genbank's liquidation. In the Memorandum for the Governor of the
Central Bank dated March 29, 1977 (signed by the following subordinates
of then CB Governor Gregorio Licaros, namely: Senior Deputy Governor
Amado R. Brinas (deceased), Deputy Governor Jaime C. Laya, Deputy
Governor & General Counsel Gabriel C. Singson, Special Asst. to the
Governor Carlota P. Valenzuela, Asst. to the Governor Arnulfo B.
Aurellano and Director Antonio T. Castro, Jr.), the following portion
disclosed Atty. Mendoza's participation:
'Immediately after said meeting, we had a conference with
the Solicitor General (atty. Mendoza) and he advised that the
following procedure should be taken:
'(1) Management should submit a memorandum to the
Monetary Board reporting that studies and evaluation had
been made since the last examination of the bank as of
August 31, 1976 and it is believed that the bank cannot be
reorganized or placed in a condition so that it may be
permitted to resume business with safety to its depositors
and creditors and the general public.
'(2) If the said report is confirmed by the Monetary Board, it
shall order the liquidation of the bank and indicate the
manner of its liquidation and approve a liquidation plan.
(3) The Central Bank shall inform the principal stockholders
of Genbank of the foregoing decision to liquidate the bank
and the liquidation plan approved by the Monetary Board.
(4) The Solicitor General shall then file a petition in the Court
of First Instance reciting the proceedings which had been
taken and praying the assistance of the Court in the
liquidation of Genbank."
30
Plainly stated, it was Atty. Mendoza who was the legal author of the
closure of Genbank and the eventual sale to Mr. Lucio Tan and his
Group. Clearly, Atty. Mendoza should be disqualified in this case."
On April 22, 1991, the Sandiganbayan issued a Resolution 4 in Civil Case No. 0005 denying
PCGG's motion to disqualify Atty. Mendoza.
On May 7, 1991, the Sandiganbayan issued a Resolution 5 in Civil Case No. 0100 also denying
PCGG's similar motion.
Motions for reconsideration were filed but to no avail. The PCGG took no further action.
These Resolutions, therefore, became final and executory.
Subsequently, in a Decision dated August 23, 1996, the Sandiganbayan jointly granted
Tan et al.'s petitions in Civil Cases Nos. 0095 and 0100. On March 29, 1996, this Court, in G.R.
Nos. 112708-09 6 affirmed the said Decision. The PCGG neither assigned as error nor
mentioned the Sandiganbayan's denial of its motion to disqualify Atty. Mendoza in Civil
Case No. 0100.
In the interim, the PCGG’s motion to disqualify Atty. Mendoza in Civil Cases Nos. 0096-
0099 remained pending with the Sandiganbayan. It was only on July 11, 2001, or after ten
(10) years, that it denied the PCGG's motion by merely adopting its Resolution dated April 22,
1991 in Civil Case No. 0005 denying a similar motion, thus:
"Acting on the PCGG's "MOTION TO DISQUALIFY ATTY. ESTELITO P.
MENDOZA AS COUNSEL FOR PETITIONER" dated February 5, 1991
which appears not to have been resolved by then Second Division of
this Court, and it appearing that (1) the motion is exactly the same in
substance as that motion filed in Civil Case No. 0005 as in fact, Atty.
Mendoza in his 'OPPOSITION' dated March 5, 1991 manifested that he
was just adopting his opposition to the same motion filed by PCGG in
Civil Case No. 0005 and (2) in the Court's Order dated March 7, 1991,
the herein incident was taken-up jointly with the said same incident in
Civil Case No. 0005 (pp. 134-135, Vol. I, Record of Civil Case No. 0096),
this Division hereby reiterates and adopts the Resolution dated April 22,
1991 in Civil Case No. 0005 of the Second Division (pp. 1418-1424, Vol.
III, Record of Civil Case No. 0005) denying the said motion as its
Resolution in the case at bar." 7
The PCGG moved for the reconsideration of the foregoing Resolution, but was denied. In the
Resolution dated December 5, 2001, the Sandiganbayan ruled:
"Acting on respondent PCGG's 'MOTION FOR
RECONSIDERATION' dated August 1, 2001 praying for the
reconsideration of the Court's Resolution dated July 12, 2001 denying
its motion to disqualify Atty. Estelito P. Mendoza as counsel for
petitioners, to which petitioners have filed an 'OPPOSITION TO
MOTION FOR RECONSIDERATION DATED AUGUST 1, 2001' dated
August 29, 2001, as well as the respondent's 'REPLY (To Opposition to
Motion for Reconsideration)' dated November 16, 2001, it appearing
 that the main motion to disqualify Atty. Mendoza as counsel in these entirely different subject matter. Thus, insofar as these cases are concerned, the motions to
cases was exactly the same in substance as that motion to disqualify disqualify lack substantive merit. Why then would the PCGG file identical motions to
Atty. Mendoza filed by the PCGG in Civil Case No. 0005 (re: Republic vs. disqualify Atty. Mendoza in these unrelated cases? Its intention is suspect. To subject Tan et
Lucio Tan, et al.) and the resolutions of this Court (Second Division) in al. to numerous and baseless motions to disqualify their lawyer is, no doubt, a form of
Civil Case No. 0005 denying the main motion as well as of the motion for harassment.
reconsideration thereof had become final and executory when PCGG
failed to elevate the said resolutions to the Supreme Court, the instant As this juncture, it is important to emphasize that in evaluating motions to disqualify a
motion is hereby DENIED. 8 lawyer, our minds are not bound by stringent rules. There is room for consideration of the
combined effect of a party's right to counsel of his own choice, an attorney's interest in
Hence, the PCGG's present petition for certiorari and prohibition alleging that the representing a client, the financial burden on a client of replacing disqualified counsel, and
Sandiganbayan committed grave abuse of discretion in denying its motion to disqualify any tactical abuse underlying a disqualification proceeding. 9
Atty. Mendoza in Civil Cases Nos. 0096-0099.
I. Whether the PCGG's proper
Mr. Justice Romeo J. Callejo, Sr., in his Dissent, granted the petition. On the procedural remedy to assail the Sandiganbayan
issues, he ruled that the assailed Resolutions dated July 11 and December 5, 2001 denying Resolutions dated July 11 and
PCGG's motion to disqualify Atty. Mendoza are interlocutory orders, hence, in challenging December 5, 2001 is appeal, not
such Resolutions,certiorari is the proper remedy, not appeal, as invoked by Tan et al. Based certiorari.
on the same premise, he likewise rejected Tan et al.'s claim that the Resolution dated April
The bottom line of this issue lies on how we categorize an order denying a motion to
22, 1991 in Civil Case No. 0005 constitutes a bar to similar motions to disqualify Atty.
disqualify an opposing party's counsel. Is it interlocutory or final?
Mendoza under the doctrine of res judicata. HEDCAS
An order is deemed final when it finally disposes of the pending action so that nothing more
On the substantive aspect, Mr. Justice Callejo's Dissent states that Atty. Mendoza violated
can be done with it in the lower court. 10 On the other hand, an interlocutory order is one
Rule 6.03 of the Code of Professional Responsibility. According to him, Atty. Mendoza's acts
made during the pendency of an action, which does not dispose of the case, but leaves it for
of (a) advising the Central Bank on how to proceed with the liquidation of GENBANK, and (b)
further action by the trial court in order to settle and determine the entire controversy. 11
filing Special Proceedings No. 107812, a petition by the Central Bank for assistance in the
liquidation of GENBANK, with the then Court of First Instance (CFI) of Manila, constitute In Antonio vs. Samonte, 12 this Court defined a final judgment, order or decree as "one
"intervention." And that while it may be true that his posture in Civil Cases Nos. 0096-0099 is that finally disposes of, adjudicates, or determines the rights, or some rights or rights of
not adverse to the interest of the Central Bank, still, he violated the proscription under the the parties,either on the entire controversy or on some definite and separate branch, thereof
"congruent-interest representation conflict" doctrine. and which concludes them until it is reversed or set aside . . ." In De la Cruz v. Paras, 13 it was
held that a court order is final in character if "it puts an end to the particular matter resolved or
Crucial to the resolution of the present controversy are the following queries:
settles definitely the matter therein disposed of," such that no further questions can come
(1) Is certiorari the proper remedy to assail the Sandiganbayan before the court except the execution of the order. In Day v. Regional Trial Court of
Resolutions dated July 11 and December 5, 2001 denying the PCGG's Zamboanga City, 14 this Court ruled that an order which decides an issue or issues in a
motion to disqualify Atty. Mendoza in Civil Cases Nos. 0096-0099? complaint is final and appealable, although the other issue or issues have not been
resolved, if the latter issues are distinct and separate from others.
(2) May Sandiganbayan Resolution dated April 22, 1991 in Civil Case
No. 0005 be considered a bar to similar motions to disqualify Atty. With the foregoing disquisition as basis, it is my view that an order denying a motion to
Mendoza under the doctrine of res judicata? disqualify counsel is final and, therefore, appealable. The issue of whether or not Atty.
Mendoza should be disqualified from representing Tan et al. is separable from, independent
(3) Does Atty. Mendoza's participation in the liquidation of GENBANK of and collateral to the main issues in Civil Cases Nos. 0096-0099. In short, it is separable from
constitute intervention? the merits. Clearly, the present petition for certiorari, to my mind, is dismissible. ECTAHc
There are some important points I wish to stress at this incipient stage. I believe they should
be considered if we are to arrive at a fair resolution of this case. The scattershot manner in
which the PCGG filed the various motions to disqualify Atty. Mendoza shows its intent to II. Whether the Resolution dated April
harass him and Tan et al. It may be recalled that the PCGG filed three (3) identical motions, 22, 1991 in Civil Case No. 0005
one in Civil Cases Nos. 0096-0099, another in Civil Case No. 0100 and the last one in Civil constitutes a bar to similar motions to
Case No. 0005. Of these cases, only Civil Cases Nos. 0096, 0100 and 0005 actually involve disqualify Atty. Mendoza under the
Tan et al.'s shares of stocks in the Allied Bank. Civil Cases Nos. 0097, 0098 and 0099 have doctrine of res judicata.

31
I am convinced that the factual circumstances of this case justify the application of res
judicata.
The ponente refuses to apply res judicata on the ground that the Sandiganbayan Resolution
dated April 22, 1991 in Civil Case No. 0005 is just an interlocutory order.
Assuming arguendo that an order denying a motion to disqualify Atty. Mendoza is indeed an
interlocutory order, still, I believe that res judicataapplies.
It will be recalled that on August 23, 1996, the Sandiganbayan rendered a Decision granting
Tan et al.'s petitions in Civil Cases Nos. 0095 and0100. Such Decision reached this Court
in G.R. Nos. 112708-09. 15 On March 29, 1996, we affirmed it. The PCGG could have assigned
or raised as error in G.R. Nos. 112708-09 the Sandiganbayan Resolution dated May 7, 1991 in
Civil Case No. 0100 denying its motion to disqualify Atty. Mendoza but it did not. The fact that
a final Decision therein has been promulgated by this Court renders the Resolution dated
May 7, 1991 beyond review. The PCGG may not relitigate such issue of disqualification as it
was actually litigated and finally decided in G.R. Nos. 112707-09. 16To rule otherwise is to
encourage the risk of inconsistent judicial rulings on the basis of the same set of facts. This
should not be countenanced. Public policy, judicial orderliness, economy of judicial time and
the interest of litigants, as well as the peace and order of society, all require that stability
should be accorded judicial rulings and that controversies once decided shall remain in
repose, and that there be an end to litigation. 17
III. Whether Atty. Mendoza's
participation in the liquidation of
GENBANK constitutes intervention.
As stated earlier, Atty. Mendoza is sought to be disqualified under Rule 6.03 of the Code of
Professional Responsibility which states:
Rule 6.03. — A lawyer shall not, after leaving government service,
accept engagement or employment in connection with any matter in
which he had intervened while in said service.
In determining whether Atty. Mendoza committed a breach of this Rule, certain factual
predicates should be established, thus: (a) in connection with what "matter" has Atty.
Mendoza accepted an engagement or employment after leaving the government service?;
(b) in connection with what "matter" did he intervene while in government service?; and (c)
what acts did he particularly perform in "intervening" in connection with such "matter"?
The PCGG insists that Atty. Mendoza, as Solicitor General, "actively intervened" in the
closure and liquidation of GENBANK. As primary evidence of such intervention, it cited his
act of filing Special Proceedings No. 107812 with the then Court of First Instance (CFI) of
Manila; and the Memorandum dated March 29, 1977 of certain key officials of the Central
Bank stating that he (Atty. Mendoza) advised them of the procedure to be taken in the
liquidation of GENBANK and that he was furnished copies of pertinent documents relating
to such liquidation.
Tan et al. denied Atty. Mendoza's alleged "intervention," claiming that when he filed Special
Proceedings No. 107812 with the CFI of Manila, the decision to prohibit GENBANK from
doing business had already been made by the Central Bank Monetary Board. Also, Atty.
32
Mendoza, in appearing as their counsel in Civil Cases Nos. 0096-0099, does not take a
position adverse to his former client, the Central Bank.
The first concern in assessing the applicability of the Rule is the definition of "matter." The
American Bar Association Committee on Ethics and Professional Responsibility stated in its
Formal Opinion 342 that:
"Although a precise definition of "matter" as used in the Disciplinary
Rule is difficult to formulate, the term seems to contemplate a discrete
and isolatable transaction or set of transactions between identifiable
parties. Perhaps the scope of the term "matter" may be indicated by
examples. The same lawsuit or litigation is the same matter. The same
issue of fact involving the same parties and the same situation or
conduct is the same matter. By contrast, work as a government
employee in drafting, enforcing or interpreting government or agency
procedures, regulations, or laws, or in briefing abstract principles of law,
does not disqualify the lawyer under DR 9-101 (B) from subsequent
private employment involving the same regulations, procedures, or
points of law; the same "matter" is not involved because there is lacking
the discrete, identifiable transaction or conduct involving a particular
situation and specific parties.
In the case at bar, the Court's task is to determine whether Special Proceedings No. 107812
falls within the concept of "matter." This must be analyzed in relation with Civil Case No.
0096. Anent Civil Cases Nos. 0097, 0098 and 0099, there is no doubt that they do not involve
the shares of stocks of Tan et al. in Allied Bank. Thus, only Special Proceedings No. 107812
and Civil Case No. 0096 must be considered.
Special Proceedings No. 107812 is a "petition by the Central Bank for Assistance in the
Liquidation of General Bank and Trust Company" filed by Atty. Mendoza as Solicitor
General. The parties therein are the Central Bank of the Philippines and Arnulfo B.
Aurellano, on the one hand, and the Worldwide Insurance & Surety Company, Midland
Insurance Corporation, Standard Insurance Co., Inc. and General Bank & Trust Company, on
the other. The issues, among others, are whether or not the Central Bank acted in good faith
in ordering the liquidation of GENBANK; and, whether the bidding for GENBANK is a sham.
Civil Case No. 0096 is for the annulment of various sequestration orders issued by the PCGG
over Tan et al.'s properties. The parties therein are Lucio Tan, Mariano Tanenglian, Allied
Banking Corporation, Iris Holdings & Development Corp., Virgo Holdings & Development
Corp., and Jewel Holdings, Inc., as petitioners, and the PCGG, as respondent. The issues here
are "whether the Sequestration Order issued by the PCGG on June 19, 1986 over the shares
of stocks in Allied Bank of Lucio C. Tan and his co-petitioners in Civil Case No. 0096 was
issued without notice, hearing and evidence."
A careful perusal of the above distinctions shows that the two cases are different in all
aspects, such as the parties, issues, facts and relief sought. Special Proceedings No. 107812
cannot therefore be considered a "matter" in connection with which Atty. Mendoza
accepted his engagement as counsel in Civil Case No. 0096. The connection between the
two cases, if there be, is very minimal as to give rise to the application of the proscription.
As aptly stated by Justice Puno:
"But more important, the 'matter' involved in Sp. Proc. No. 107812 is
entirely different from the 'matter' involved in Civil Case No. 0096.
Again the bald facts speak for themselves. It is given that Atty.
Mendoza had nothing to do with the decision of the Central Bank to
liquidate GENBANK. It is also given that he did not participate in the
sale of GENBANK to Allied Bank. The 'matter' where he got himself
involved was in informing Central Bank on the procedure provided by
law to liquidate GENBANK through the courts and in filing the
necessary petition in Sp. Proc. No. 107812 in the then Court of First
Instance. The subject 'matter' Sp. Proc. No. 107812, however, is not the
same nor related to but different from the subject 'matter' in Civil Case
No. 0096. Civil Case No. 0096 involves the sequestration of the
stocks owned by Tan, et al., in Allied Bank on the alleged ground that
they are ill-gotten. The case does not involve the liquidation of
GENBANK. Nor does it involve the sale of GENBANK to Allied Bank.
Whether the shares of stocks of the reorganized Allied Bank are ill-
gotten is far removed from the issue of the dissolution and liquidation
of GENBANK. GENBANK was liquidated by the Central Bank due,
among others, to the banking malpractices of its owners and officers.
In other words, the legality of the liquidation of GENBANK is not an
issue in the sequestration cases. Indeed, the jurisdiction of the PCGG
does not include the dissolution and liquidation of banks. It goes
without saying that Code 6.03 of the Code of Professional
Responsibility cannot apply to Atty. Mendoza because his alleged
intervention while a Solicitor General in Sp. Proc. No. 107812 is an
intervention on a matter different from the matter involved in Civil Case
No. 0096."
As Solicitor General, Atty. Mendoza represented the Republic of the Philippines in every
case where it was involved. As a matter of practice and procedure, he signed every pleading
prepared by his Associates. Taking this into consideration, will it be just to disqualify him in
all the cases containing pleadings bearing his signature? The answer must be in the
negative. His disqualification might be too harsh a penalty for one who had served the
government during the best years of his life and with all his legal expertise.
Webster Dictionary 18 defines "intervene" as "to come or happen between two points of
time or events;" "to come or be in between as something unnecessary or irrelevant;" or "to
come between as an influencing force. The ponencia defines "to intervene" as "to enter or
appear as an irrelevant or extraneous feature or circumstance." "Intervention" is interference
that may affect the interest of others. Corollarily, the counterpart of Rule 6.03 is the
Disciplinary Rule (DR) 9-101 (B) of the American Bar Association (ABA), thus:
A lawyer shall not accept private employment in a manner in which he
had "substantial responsibility" while he was a public employee.
Substantial responsibility envisages a lawyer having such a heavy responsibility for the
matter in question that it is likely he becomes personally and substantially involve in the
33
investigative or deliberative processes regarding the matter. 19 Since the word "intervene"
has two connotations, one affecting interest of others and one done merely in influencing
others, Rule 6.03 should be read in the context of the former. To interpret it otherwise is to
enlarge the coverage of Rule 6.03. Surely, this could not have been the intention of the
drafters of our Code of Professional Responsibility.
Further, that Atty. Mendoza was furnished copies of pertinent papers relative to the
liquidation of GENBANK is not sufficient to disqualify him in Civil Case No. 0096. In Laker
Airway Limited v. Pan American World Airways, 20 it was held that:
"Like the case law, policy considerations do not support the
disqualification of a government attorney merely because during his
government service he had access to information about a corporation
which subsequently turned out to become an opponent in a private
lawsuit. If the law were otherwise, the limiting language of the
Disciplinary Rule could be bypassed altogether by the simple claim
that an attorney may have viewed confidential information while
employed by the government, and government lawyers would face
perpetual disqualification in their subsequent practices."
In fine, I fully concur in Justice Puno's Dissent that Rule 6.03 of the Code of Professional
Responsibility cannot apply to Atty. Mendoza because his alleged intervention while a
Solicitor General in Special Proceedings No. 107812 is an intervention in a matter different
from the matter involved in Civil Case No. 0096."
WHEREFORE, I vote to dismiss the instant petition for certiorari.
CARPIO MORALES, J., dissenting:
While I concur in the scholarly and ably-written dissent of Justice Romeo J. Callejo, Sr., I feel
compelled to write a separate dissenting opinion to reflect the additional reasons behind my
position.
Justices Artemio V. Panganiban and Angelina Sandoval-Gutierrez are of the opinion that the
petition can be dismissed on procedural grounds, they contending that the Presidential
Commission on Government (PCGG) is precluded from filing a motion to disqualify Atty.
Estelito P. Mendoza as counsel in Civil Case Nos. 0096 since the Sandiganbayan (Second
Division) had already denied PCGG's motion to disqualify Atty. Mendoza as counsel in Civil
Case No. 0005. In short, they are invoking the doctrines of conclusiveness of judgment and
law of the case.
I believe Kilosbayan, Incorporated v. Morato 1 penned by the distinguished Justice Vicente V.
Mendoza is instructive.
To recall, Kilosbayan, Incorporated (Kilosbayan, Inc.), et al. filed on January 28, 1994 a
petition with this Court challenging the validity of the Contract of Lease between the
Philippine Charity Sweepstakes Office (PCSO) and the Philippine Gaming Management
Corporation (PGMC) on the ground that the same was made in violation of the charter of the
PCSO. This Court in Kilosbayan, Incorporated v. Guingona, Jr. 2 invalidated the contract.
One of the issues raised before this Court in Kilosbayan, Incorporated v. Guingona, Jr. was the
standing of petitioners to maintain the suit. On that score, this Court held through Associate
Justice (now Chief Justice) Hilario G. Davide, Jr. that petitioners had standing to sue.
As a result of the decision in Kilosbayan, Incorporated v. Guingona, Jr., PCSO and PGMC
entered into negotiations for a new agreement which would conform to the Court's decision.
On January 25, 1995, PCSO and PGMC signed an Equipment Lease Agreement (ELA).
On February 21, 1995, Kilosbayan, Inc, et al. filed a petition against then PCSO Chair Manuel
Morato seeking to declare the ELA invalid on the ground that it was substantially the same
as the Contract of Lease nullified in Kilosbayan, Incorporated v. Guingona, Jr.
Its ruling in Kilosbayan, Incorporated v. Guingona, Jr. notwithstanding, this Court
in Kilosbayan, Incorporated v. Morato ruled that the therein petitioners did not have standing
to sue.
It explained that the doctrines of law of the case and conclusiveness of judgment do not
pose a barrier to the determination of petitioners' right to maintain the suit:
Petitioners argue that inquiry into their right to bring this suit is barred
by the doctrine of "law of the case." We do not think this doctrine is
applicable considering the fact that while this case is a sequel to G.R.
No. 113375, it is not its continuation: The doctrine applies only when a
case is before a court a second time after a ruling by an appellate
court. Thus in People v. Pinuila, 103 Phil. 992 999 (1958), it was stated:
"'Law of the case' has been defined as the opinion delivered on a
former appeal. More specifically, it means that whatever is once
irrevocably established as the controlling legal rule of decision
between the same parties in the same case continues to be the law
of these case, whether correct on general principles or not, so long as
the facts on which such decision was predicated continue to be facts
of the case before the court." (21 C.J.S. 330)
"It may be stated as a rule of general application that, where the
evidence on a second or succeeding appeal is substantially the same
as that on the first or preceding appeal, all matters, questions, points,
or issues adjudicated on the prior appeal are the law of the case on all
subsequent appeals and will not be considered or re-adjudicated
therein. (5 C.J.S. 1267)
"In accordance with the general rule stated in Section 1821, where
after a definite determination, the court has remanded the cause for
further action below, it will refuse to examine question other than
those arising subsequently to such determination and remand, or
other than the propriety of the compliance with its mandate; and if the
court below has proceeded in substantial conformity to the directions
34
of the appellate court, its action will not be questioned on a second
appeal. . . .
"As a general rule a decision on a prior appeal of the same is held to be
the law of the case whether that decision is right or wrong, the remedy
of the party deeming himself aggrieved to seek a rehearing. (5 C.J.S.
1276-77)
"Questions necessarily involved in the decision on a former appeal will
be regarded as the law of the case on a subsequent appeal, although
the questions are not expressly treated in the opinion of the court, as
the presumption is that all the facts in the case bearing on the point
decided have received due consideration whether all or none of them
are mentioned in the opinion. (5 C.J.S. 1286-87)"
As this Court explained in another case. "The law of the case, as
applied to a former decision of an appellate court, merely expresses
the practice of the courts in refusing to reopen what has been decided.
It differs from res judicata in that the conclusive of the first judgment is
not dependent upon its finality. The first judgment is generally, if not
universally, not final, It relates entirely to questions of law, and is
confined in its questions of law, and is confined in its operation to
subsequent proceedings in the same case . . . ." (Municipality of Daet v.
Court of Appeals, 93 SCRA 503, 521 (1979))
It follows that since the present case is not the same one litigated by
he parties before in G.R. No. 113375, the ruling there cannot in any
sense be regarded as "the law of this case." The parties are the same
but the cases are not. HIEASa
Nor is inquiry into petitioners; right to maintain this suit foreclosed by
the related doctrine of "conclusiveness of judgment." 3 According to
the doctrine, an issue actually and directly passed upon and
determined in a former suit cannot again be drawn in question in any
future action between the same parties involving a different of action.
(Peñalosa v. Tuason, 22 Phil. 303, 313 (1912); Heirs of Roxas v. Galido,
108. 582 [1960])
It has been held that the rule on conclusiveness of judgment or
preclusion of issues or collateral estoppel does not apply to issues
of law, at least when substantially unrelated claims are involved.
(Montana v. United States, 440 U.S. 147, 162, 59 L. Ed. 2d 210, 222
(1979); BATOR, MELTZER, MISHKIN AND SHAPIRO, THE FEDERAL
COURTS AND THE FEDERAL SYSTEM 1058, n. 2 (3rd Ed., 1988))
Following this ruling it was held in Commissioner v. Sunnen, 333 U.S.
591, 92 L. Ed. 898 (1947) that where a taxpayer assigned to his wife
interest in a patent in 1928 and in a suit it was determined that the
money paid to his wife for the years 1929-1931 under the 1928
assignment was not part of his taxable income, this determination is
not preclusive in a second action for collection of taxes on amounts to
his wife under another deed of assignment for other years (1937 to
1941). For income tax purposes what is decided with respect to one
contract is not conclusive as to any other contract which was not then
in issue, however similar or identical it may be. The rule on collateral
estoppel it was held, "must be confined to situations where the matter
raised in the second suit is identical in all respects with that decided in
the first preceding and where the controlling facts and applicable legal
rules remain unchanged." (333 U.S. at 599-600, 92 L. Ed. at 907)
Consequently, "if the relevant facts in the two cases are separate even
though they may be similar or identical, collateral estoppel does not
govern the legal issues which occur in the second case. Thus the
second proceeding may involve an instrument or transaction identical
with but in a form separable form, the one dealt with in the first
proceeding. In that situation a court is free in the second proceeding
to make an independent examination of the legal matters at issue. . . ."
(333 U.S. at 601, 92 L. Ed. at 908)
This exception to the General Rule of the Issue Preclusion is
authoritatively formulated in Restatement of the Law 2d, on
Judgments, as follows:
§28. Although an issue is actually litigated and determined by a valid
and final judgment, and the determination is essential to the
judgment, relitigation of the issue in a subsequent action between the
parties is not precluded in the following circumstances:
xxx xxx xxx
(2) The issue is one of law and (a) the two actions involve claims that are
substantially unrelated, or (b) a new determination is warranted in
order to take account of an intervening change in the applicable legal
context or otherwise to avoid inequitable administration of the laws; . .
. granted is undoubtedly a legal question. Moreover, Civil Case No. 005 and Civil Case No.
Illustration:
xxx xxx xxx
2. A brings an action against the municipality of B for tortious
injury. The court sustain B's defense of sovereign immunity and
dismisses the action. Several years later A brings the second action
against B for an unrelated tortious injury occurring after the
dismissal. The judgment in the first action is not conclusive on the
question whether the defense immunity is available to B. Note: The
doctrine of stare decisis may lead the court to refuse to reconsider the
question of sovereign immunity. See §29, Comment i.
35
The question whether the petitioners have standing to question the
Equipment or ELA is a legal question. As will presently be shown, the
ELA, which the petitioners seek to declare invalid in this proceeding, is
essentially different from the 1993 Contract of lease entered into by
the PCSO with the PGMC. Hence the determination in the prior case
(G.R. No. 113375) that the petitioner had standing to challenge the
validity of the 1993 Contract of Lease of the parties does not preclude
determination of their standing in the present suit. (Emphasis and
underscoring supplied; italics in the original)
The doctrine of law of the case does not, I believe, apply to the present case for this is the
first time that the issue to disqualify Atty. Mendoza has been elevated before this Court. It is
the decision in this case which will be the law of the case. A reading of Republic v.
Sandiganbayan 4 cited by Justice Sandoval-Gutierrez shows that the issue currently before
this Court was not passed upon. Thus, this Court in Republic v. Sandiganbayanstated:
The key issues, in query form, are:
(1) Was the SANDIGANBAYAN's denial of the PCGG's motion to
dismiss proper?
(2) Should the SANDIGANBAYAN have disposed first such motion to
dismiss rather than resolving it as part of the judgment?
(3) Was the nullification of the sequestration order issued against
SIPALAY and of the search and seizure order issued against ALLIED
correct? SITCEA
(4) Were the sequestration and search and seizure orders deemed
automatically lifted for failure to bring an action in court against
SIPALAY and ALLIED within the constitutionally prescribed period? 5
I also believe that the doctrine of conclusiveness of judgment does not apply since in the
case at bar, the question of whether the motion to disqualify Atty. Mendoza should be
0096 involve two different substantially unrelated claims.
Justices Panganiban and Sandoval-Gutierrez further opine that the order of the
Sandiganbayan in Civil Case No. 0005 denying PCGG's motion to disqualify Atty. Mendoza is
not an interlocutory order but a final order, and that as a result, the principle of res
judicata applies.
With all due respect, I believe that we cannot characterize the denial of PCGG's motion to
disqualify Atty. Mendoza as a final order. Black's Law Dictionary defines interlocutory in the
following manner:
Provisional; interim; temporary; not final. Something intervening
between the commencement and the end of a suit which decides
some point or matter, but is not a final decision of the whole
controversy. An interlocutory order or decree is one which does not
finally determine a cause of action but only decides some
 intervening matter pertaining to the cause, and which requires
further steps to be taken in order to enable the court to adjudicate
the cause on the merits. 6 (Emphasis and underscoring supplied)
Justice Oscar M. Herrera, an authority in remedial law, distinguishes between a final
judgment and interlocutory order in this wise:
The concept of final judgment, as distinguished from one which has
become final or executory as of right (final and executory), is definite
and settled. A final judgment or order is one that finally disposes of
a case, leaving nothing more to be done by the Court in respect
thereto, e.g., an adjudication on the merits which, on the basis of
the evidence presented at the trial, declares categorically what the
rights and obligations of the parties are and which party is in the
right; or a judgment or order that dismisses an action on the
ground, for instance, of res judicata or prescription. Once rendered,
the task of the Court is ended, as far as deciding the controversy or
determining the rights and liabilities of the litigants is concerned.
Nothing more remains to be done by the Court except to await the
parties' next move (which among others, may consist of the filing of a
motion for new trial or reconsideration, or the taking of an appeal) and
ultimately, of course, to cause the execution of the judgment once it
becomes final, or to use the established and more distinctive term,
final and executory. (Investment, Inc. v. Court of Appeals cited in Denso
[Phils.], Inc. v. Intermediate Appellate Court, 148 SCRA 280; see
also Bank of America NT & SA, G.R. No. 78017, June 8, 1990 186 SCRA
417)
An interlocutory order refers to something between the
commencement and end of the suit which decides some point or
matter but it is not the final decision of the whole
controversy. 7 (Bitong v. Court of Appeals, G.R. No. 123553, July 13,
1998, 96 SCAD 205) (Emphasis and underscoring supplied)
Justice Florenz D. Regalado is of the same view:
An order is considered interlocutory if it does not dispose of the
case but leaves something else to be done by the trial court on the
merits of the case. An order is final, for purposes of appeal, if it
disposes of the entire case.
Where the order is interlocutory, the movant has to wait for the
judgment and then appeal from the judgment, in the course of
which appeal he can assign as error the said interlocutory order.
The interlocutory order cannot be appealed from separately from the
judgment. The general rule is that where the interlocutory order
was rendered without or in excess of jurisdiction or with grave
abuse of discretion, the remedy is certiorari, prohibition or
mandamus depending on the facts of the case.
36
Where the order appealed from is interlocutory, the appellate court
can dismiss the appeal even if no objection thereto was filed by the
appellee in either the trial or appellate court. 8 (Emphasis and
underscoring supplied)
Another respected scholar of remedial law, Justice Jose Y. Feria, has formulated this
guideline in determining whether an order is final or interlocutory:
The test to ascertain whether or not an order or a judgment is
interlocutory or final: Does it leave something to be done in the trial
courtwith respect to the merits of the case? If it does, it is
interlocutory; if it does not, it is final. The key test to what is
interlocutory is when there is something more to be done on the
merits of the case. 9 (Emphasis and underscoring)
In fact, this same test was used in Tambaoan v. Court of Appeals, 10 cited by Justice
Panganiban to determine whether the trial court's order was interlocutory or final:
In this particular instance, the test to determine whether the order of
06 January 1995 is interlocutory or final would be: Does it leave
something else to be done by the trial court on the case? If it does,
it is interlocutory, if it does not, it is final. Evidently, the trial court
would still have to hear the parties on the merits of the case. .
. SDTIaE
xxx xxx xxx
Indeed, the word "interlocutory" refers to "something intervening
between the commencement and the end of a suit which decides
some point or matter, but is not a final decision of the whole
controversy." An interlocutory order does not terminate nor does it
finally dispose of the is (sic) case; it does not end the task of the court
in adjudicating the parties' contentions and determining their rights
and liabilities as against each other but leaves something yet to be
done by the court before the case is finally decided on its merits.
(Emphasis and underscoring supplied)
Applying the foregoing test, it is clear that the order denying PCGG's motion to disqualify
Atty. Mendoza is interlocutory because it does not finally dispose of the case.
Interestingly enough, the U.S. Supreme Court is in agreement with Justice Callejo's
conclusion that the Sandiganbayan's denial of PCGG's motion to disqualify Atty. Mendoza is
an interlocutory order. In Firestone Tire & Rubber Company v. Risjord, 11 the American Court
ruled that an order denying motions to disqualify the opposing party's counsel in a civil case are
not appealable prior to final judgment in underlying litigation since such an order does not fall
within the collateral order exception of Cohen v. Beneficial Industrial Loan
Corporation, 12 which is cited by Justice Sandoval-Gutierrez.
Under § 1291, the courts of appeals are vested with "jurisdiction of
appeals from all final decisions of the district courts . . . except where a
direct review may be had in the Supreme Court." We have consistently
interpreted this language as indicating that a party may not take an
appeal under this section until there has been "a decision by the
District Court that 'ends the litigation on the merits and leaves nothing
for the court to do but execute the judgment.'" Coopers s & Lybrand v.
Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978),
quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89
L.Ed. 911 (1945). This rule, that a party must ordinarily raise all claims of
error in a single appeal following final judgment on the merits, serves a
number of important purposes. It emphasizes the deference that
appellate courts owe to the trial judge as the individual initially called
upon to decide the many questions of law and fact that occur in the
course of a trial. Permitting piecemeal appeals would undermine the
independence of the district judge, as well as the special role that
individual plays in our judicial system. In addition, the rule is in
accordance with the sensible policy of "avoid[ing] the obstruction to just
claims that would come from permitting the harassment and cost of a
succession of separate appeals from the various rulings to which a
litigation may give rise, from its initiation to entry of
judgment." Cobbledick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540,
541, 84 L.Ed. 783 (1940). See DiBella v. United States, 369 U.S. 121, 124,
82 S.Ct. 654, 656, 7 L.Ed.2d 614 (1962). The rule also serves the
important purpose of promoting efficient judicial administration. Eisen v.
Carlisle & Jacquelin, 417 U.S. 156, 170, 94 S.Ct. 2140, 2149, 40 L.Ed.2d
732 (1974).
Our decisions have recognized, however, a narrow exception to the
requirement that all appeals under § 1291 await final judgment on the
merits. In Cohen v. Beneficial Industrial Loan Corp., supra, we held that
a "small class" of orders that did not end the main litigation were
nevertheless final and appealable pursuant to § 1291. Cohen was a
shareholder's derivative action in which the Federal District Court
refused to apply a state statute requiring a plaintiff in such a suit to
post security for costs. The defendant appealed the ruling without
awaiting final judgment on the merits, and the Court of Appeals
ordered the trial court to require that costs be posted. We held that
the Court of Appeals properly assumed jurisdiction of the appeal
pursuant to § 1291 because the District Court's order constituted a
final determination of a claim "separable from, and collateral to," the
merits of the main proceeding, because it was "too important to be
denied review," and because it was "too independent of the cause
itself to require that appellate consideration be deferred until the
whole case is adjudicated." Id., at 546, 69 S.Ct. at 1225. Cohen did not
establish new law; rather, it continued a tradition of giving § 1291 a
"practical rather than a technical construction." Ibid. See, e.g., United
States v. River Rouge Improvement Co., 269 U.S. 411, 413-414, 46 S.Ct.
37
144, 70 L.Ed. 339 (1926); Bronson v. LaCrosse & Milwaukee R. Co., 67
U.S. 524-531, 2 Black 524, 530-531, 17 L.Ed. 347 (1863); Forgay v.
Conrad, 47 U.S. 201, 203, 6 How. 201, 203, 12 L.Ed.2d 404
(1848); Whiting v. Bank of the United States, 38 U.S. 6, 15, 13 Pet. 6, 15,
10 L.Ed. 33 (1839). We have recently defined this limited class of final
"collateral orders" in these terms: "[T]he order must conclusively
determine the disputed question, resolve an important issue
completely separate from the merits of the action, and be effectively
unreviewable on appeal from a final judgment." Coopers & Lybrand v.
Livesay, supra, 437 U.S. at 468, 98 S.Ct. at 2457 (footnote omitted).
See Abney v. United States, 431 U.S. 651, 658, 97 S.Ct. 2034, 2039, 52
L.Ed.2d 651 (1977). HCTEDa
[1] Because the litigation from which the instant petition arises had
not reached final judgment at the time the notice of appeal was
filed, [FN11] the order denying petitioner's motion to disqualify
respondent is appealable under § 1291 only if it falls within
theCohen doctrine. The Court of Appeals held that it does not, and 5
of the other 10 Circuits have also reached the conclusion that denials
of disqualification motions are not immediately appealable "collateral
orders." [FN12] We agree with these courts that under Cohen such
an order is not subject to appeal prior to resolution of the merits.
FN11. Counsel for respondent represented at oral argument in this
Court that the case was, at that time, in the discovery stage. Tr. of
Oral Arg. 35-36.
FN12. See n. 10, supra.
An order denying a disqualification motion meets the first part of the
"collateral order" test. It "conclusively determine[s] the disputed
question," because the only issue is whether challenged counsel will be
permitted to continue his representation. In addition, we will assume,
although we do not decide, that the disqualification question "resolve
[s] an important issue completely separate from the merits of the
action," the second part of the test. Nevertheless, petitioner
is unable to demonstrate that an order denying disqualification is
"effectively unreviewable on appeal from a final judgment" within
the meaning of our cases.
In attempting to show why the challenged order will be effectively
unreviewable on final appeal, petitioner alleges that denying
immediate review will cause it irreparable harm. It is true that the
finality requirement should "be construed so as not to cause crucial
collateral claims to be lost and potentially irreparable injuries to be
suffered," Mathews v. Eldridge, 424 U.S. 319, 331, n. 11, 96 S.Ct. 893,
901, n. 11, 47 L.Ed.2d 18 (1976). In support of its assertion that it will be
irreparably harmed, petitioner hints at "the possibility that the course
of the proceedings may be indelibly stamped or shaped with the fruits
of a breach of confidence or by acts or omissions prompted by a
divided loyalty," Brief for Petitioner 15, and at "the effect of such a
tainted proceeding in frustrating public policy," id., at 16. But
petitioner fails to supply a single concrete example of the indelible
stamp or taint of which it warns. The only ground that petitioner urged
in the District Court was that respondent might shape the products-
liability plaintiffs' claims for relief in such a way as to increase the
burden on petitioner. Our cases, however, require much more before a
ruling may be considered "effectively unreviewable" absent
immediate appeal
[2] To be appealable as a final collateral order, the challenged order
must constitute "a complete, formal and, in the trial court, final
rejection," Abney v. United States, supra, 431 U.S. at 659, 97 S.Ct. at
2040, of a claimed right "where denial of immediate review would
render impossible any review whatsoever," United States v. Ryan,
402 U.S. 530, 533, 91 S.Ct. 1580, 1582, 29 L.Ed.2d 85 (1971). Thus we
have permitted appeals prior to criminal trials when a defendant has
claimed that he is about to be subjected to forbidden double
jeopardy, Abney v. United States, supra, or a violation of his
constitutional right to bail, Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96
L.Ed. 3 (1951) because those situations, like the posting of security for
costs involved in Cohen, "each involved an asserted right the legal and
practical value of which would be destroyed if it were not vindicated
before trial." United States v. MacDonald, 435 U.S. 850, 860, 98 S.Ct.
1547, 1552, 56 L.Ed.2d 18 (1978). By way of contrast, we have generally
denied review of pretrial discovery orders, see, e. g., United States v.
Ryan, supra; Cobbledick v. United States, supra. Our rationale has been
that in the rare case when appeal after final judgment will not cure an
erroneous discovery order, a party may defy the order, permit a
contempt citation to be entered against him, and challenge the order
on direct appeal of the contempt ruling. See Cobbledick v. United
States, supra, at 327, 60 S.Ct. at 542. We have also rejected immediate
appealability under § 1291 of claims that "may fairly be assessed" only
after trial, United States v. MacDonald, supra, at 860, and those
involving "considerations that are `enmeshed in the factual and legal
issues comprising the plaintiff's cause of action.'" Coopers & Lybrand v.
Livesay, 437 U.S., at 469, 98 S.Ct., at 2458, quoting Mercantile National
Bank v. Langdeau, 371 U.S. 555, 558, 83 S.Ct. 520, 522, 9 L.Ed.2d 523
(1963).
An order refusing to disqualify counsel plainly falls within the large
class of orders that are indeed reviewable on appeal after final
judgment, and not within the much smaller class of those that are
not. The propriety of the district court's denial of a disqualification
motion will often be difficult to assess until its impact on the
underlying litigation may be evaluated, which is normally only after
final judgment. The decision whether to disqualify an attorney
38
ordinarily turns on the peculiar factual situation of the case then at
hand, and the order embodying such a decision will rarely, if ever,
represent a final rejection of a claim of fundamental right that cannot
effectively be reviewed following judgment on the merits. In the case
before us, petitioner has made no showing that its opportunity for
meaningful review will perish unless immediate appeal is permitted.
On the contrary, should the Court of Appeals conclude after the trial
has ended that permitting continuing representation was prejudicial
error, it would retain its usual authority to vacate the judgment
appealed from and order a new trial. That remedy seems plainly
adequate should petitioner's concerns of possible injury ultimately
prove well founded. As the Second Circuit has recently observed, the
potential harm that might be caused by requiring that a party await
final judgment before it may appeal even when the denial of its
disqualification motion was erroneous does not "diffe[r] in any
significant way from the harm resulting from other interlocutory
orders that may be erroneous, such as orders requiring discovery over
a work-product objection or orders denying motions for recusal of the
trial judge." Armstrong v. McAlpin, 625 F.2d 433, 438 (1980), cert.
pending, No. 80-431. But interlocutory orders are not appealable
"on the mere ground that they may be erroneous." Will v. United
States, 389 U.S. 90, 98, n. 6, 88 S.Ct. 269, 275, n. 6, 19 L.Ed.2d 305
(1967). Permitting wholesale appeals on that ground not only would
constitute an unjustified waste of scarce judicial resources, but also
would transform the limited exception carved out in Cohen into a
license for broad disregard of the finality rule imposed by Congress in §
1291. This we decline to do. [FN13]
FN13. Although there may be situations in which a party will be
irreparably damaged if forced to wait until final resolution of the
underlying litigation before securing review of an order denying its
motion to disqualify opposing counsel, it is not necessary, in order to
resolve those situations, to create a general rule permitting the appeal
of all such orders. In the proper circumstances, the moving party may
seek sanctions short of disqualification, such as a protective order
limiting counsel's ability to disclose or to act on purportedly
confidential information. If additional facts in support of the motion
develop in the course of the litigation, the moving party might ask the
trial court to reconsider its decision. Ultimately, if dissatisfied with the
result in the District Court and absolutely determined that it will be
harmed irreparably, a party may seek to have the question certified for
interlocutory appellate review pursuant to 28 U.S.C. § 1292(b), see n.
7, supra, and, in the exceptional circumstances for which it was
designed, a writ of mandamus from the court of appeals might be
available. See In re Continental Investment Corp., supra, 637 F.2d, at
7; Community Broadcasting of Boston, Inc. v. FCC, 178 U.S.App.D.C., at
262, 546 F.2d, at 1028. See generally Comment, The Appealability of
Orders Denying Motions for Disqualification of Counsel in the Federal
 Courts, 45 U.Chi.L.Rev. 450, 468-480 (1978). We need not be
concerned with the availability of such extraordinary procedures in the
case before us, because petitioner has made no colorable claim that
the harm it might suffer if forced to await the final outcome of the
litigation before appealing the denial of its disqualification motion is
any greater than the harm suffered by any litigant forced to wait until
the termination of the trial before challenging interlocutory orders it
considers erroneous. EICSTa
III
[3][4][5] We hold that a district court's order denying a motion to
disqualify counsel is not appealable under § 1291 prior to final
judgment in the underlying litigation. [FN14]
FN14. The United States in its brief amicus curiae, has challenged
petitioner's standing to attack the order permitting respondent to
continue his representation of the plaintiffs. In light of our conclusion
that the Eighth Circuit was without jurisdiction to hear petitioner's
appeal, we have no occasion to address the standing
issue. 13 (Emphasis and underscoring supplied; italics in the original)
The ruling in Firestone was subsequently reiterated in Flanagan v. United
States 14 and Richardson-Merrell, Inc. v. Koller. 15
Justice Panganiban further suggests that the prohibition in Rule 6.03 of the Code of
Professional Responsibility is not perpetual but merely lasts for five years primarily relying
on the Civil Code provisions on prescription and the doctrine that the right to practice law is
a property right protected by the Constitution.
I do not agree with this framework of analysis. Carried to its logical conclusion, Justice
Panganiban's proposal would mean that after five years from the termination of the
attorney-client relationship, all lawyers would be able to represent an interest in conflict
with that of the former client and that they would no longer be bound by the rule on
privileged communication.
It bears emphasis that the law is not trade nor a craft but a profession, a noble profession at
that.
The practice of law is a profession, a form of public trust, the
performance of which is entrusted only to those who are qualified and
who possess good moral character. If the respect of the people in the
honor and integrity of the legal profession is to be retained, both
lawyers and laymen must recognize and realize that the legal
profession is a profession and not a trade, and that the basic ideal of
that profession is to render public service and secure justice for those
who seek its aid. It is not a business, using bargain counter methods to
reap large profits for those who conduct it. From the professional
39
standpoint, it is expressive of three ideals — organization, learning and
public service. The gaining of a livelihood is not a professional but a
secondary consideration. The professional spirit — the spirit of public
service — constantly curbs the urge of that instinct.
The law as a profession proceeds from the basic premise that
membership in the bar is a privilege burdened with conditions and
carries with it the responsibility to live up to its exacting standards and
honored traditions. A person enrolled in its ranks is called upon to aid
in the performance of one of the basic purposes of the state — the
administration of justice. That the practice of law is a profession
explains why lawyers repute and of eminence welcome their
designation as counsel de oficio, as an opportunity to manifest fidelity
to the concept that law is a profession.
The law must be thought of as ignoring commercial standards of
success. The lawyer's conduct is to be measured not by the standards
of trade and counting house but by those of his profession. The Code
of Professional Responsibility, particularly the ethical rule against
advertising or solicitation of professional employment, rests on the
fundamental postulate that the practice of law is a profession.
In the matter of fixing his fees, an attorney should never forget that
"the profession is a branch of the administration of justice and not a
mere money-making trade" and that his standing as a member of the
bar "is not enhanced by quibbling relative to just fees, equivalent to
the bargaining between a prospective purchaser and a merchant in the
market before a sale is made." Law advocacy is not capital that yields
profits. The returns are simple rewards for a job done or service
rendered. It is a calling that, unlike mercantile pursuits which enjoy a
greater deal of freedom from government interference, is impressed
with public interest, for which it is subject to State regulation.
However, while the practice of law is a profession and an attorney is
primarily an officer of the court, he is as much entitled to protection
from the against any attempt by his client to escape payment of his
just fees, as the client against exaction by his counsel of excessive
fees.
To summarize, the primary characteristics which distinguish the legal
profession from business are: (a) "a duty of public service, of which
emolument is a by-product, and in which one may attain the highest
eminence without making much money;" (b) "a relation as officer of
the court to the administration of justice involving thorough sincerity,
integrity, and reliability;" (c) "a relation to client in the highest degree
fiduciary;" and (d) "a relation to colleagues at the bar characterized by
candor, fairness, and unwillingness to resort to current business
methods of advertising and encroachment on their practice, or dealing
directly with their clients. aDcHIS
 These characteristics make the law a noble profession, and the
privilege to practice it is bestowed only upon individuals who are
competent intellectually, academically and morally. Its basic ideal is to
render service and to secure justice for those who seek its aid. If it has
to remain a noble and honorable profession and attain its ideal, those
enrolled in its ranks should not only master its tenets and principles
but should also, by their lives, accord continuing fidelity to them. And
because they are the vanguards of the law and the legal systems,
lawyers must at all times conduct themselves in their professional and
private dealings with honesty and integrity in a manner beyond
reproach. 16
Moreover, the relation of attorney and client is, however, one of trust and confidence of the
highest order. It is highly fiduciary in nature and demands utmost fidelity and good faith.
. . . A lawyer becomes familiar with all the facts connected with his
client's case. He learns from his client the weak points of the action
as well as the strong ones. Such knowledge must be considered
sacred and guarded with care. No opportunity must be given him to
take advantage of the client's secrets.
The rule is a rigid one designed not alone to prevent the dishonest
practitioner from fraudulent conduct but as well to preclude the
honest practitioner from putting himself in a position where he may
be required to choose between conflicting duties, and to protect him
from unfounded suspicion of professional misconduct. The question
is not necessarily one of right of the parties but of adhere to proper
professional standards. An attorney should not only keep inviolate
his client's confidence but should likewise avoid the appearance of
treachery and double-dealing. 17 (Emphasis and underscoring
supplied; citations omitted)
Thus, in Nakpil v. Valdes, 18 this Court through Justice Reynato S. Puno held that the
test to determine whether there is a conflict of interest in the representation
is probability, not certainty of conflict. 19
Justice Panganiban justifies his theory on the ground that in 5 years time, the lawyer will
develop a mild case of amnesia such that in all probability, the lapse of the said period would
also naturally obscure to a reasonable extent a lawyer's memory of details of a specific case
despite active participation in the proceedings therein." He thus cites his own personal
experience as a member of this Court:
Modesty aside, in my nearly ten (10) years in this Court, I have
disposed of about a thousand cases in full-length ponencias and
countless cases by way of unsigned minute or extended Resolutions.
This does not include the thousands of other cases, assigned to other
members of the Court, in which I actively took part during their
deliberations. In all honesty, I must admit that I cannot with certainty
recall the details of the facts and issues in each of these cases,
especially in their earlier ones.
40
While it is true that over time memory does fade, the ravages of time have been mitigated
with the invention of the paper and pen and its modern offspring — the computer. It is not
uncommon for lawyers to resort to note taking in the course of handling legal matters.
The proposition that "a profession, trade or calling is a property right within the meaning of
our constitutional guarantees" is not unqualified. InJMM Promotion and Management, Inc. v.
Court of Appeals 20 which Justice Panganiban relies on, this Court held:
A profession, trade or calling is a property within the meaning of our constitutional
guarantees. One cannot be deprived of the right to work and the right to make a living
because these rights are property rights, the arbitrary and unwarranted deprivation of which
normally constitutes an actionable wrong.
Nevertheless, no right is absolute, and the proper regulation of a
profession, calling, business or trade has always been upheld as a
legitimate subject of a valid exercise of the police power by the
state particularly when their conduct affects either the execution of
legitimate governmental functions, the preservation of the State,
the public health and welfare and public morals. According to the
maxim, sic utere tuo ut alienum non laedas, it must of course be within
the legitimate range of legislative action to define the mode and
manner in which every one may so use his own property so as not to
pose injury to himself or others.
In any case, where the liberty curtailed affects at most the rights of
property, the permissible scope of regulatory measures is certainly
much wider. (Emphasis and underscoring supplied; italics in the
original; citations omitted)
Under the foregoing, the perpetual application of Rule 6.03 is clearly a valid and proper
regulation.
In his ponencia, Justice Reynato S. Puno labels as insignificant the role of then Solicitor
General in the liquidation of General Bank and Trust Company (GENBANK), saying that "it is
indubitable from the facts that Atty. Mendoza had no iota of participation in the decision of
the Central Bank to liquidate GENBANK" and that his only involvement was "advising the
Central Bank on how to proceed with the said bank's liquidation and even filing the petition
for its liquidation with the CFI of Manila." Justice Puno observes that "the procedure of
liquidation is simple and is given in black and white in Republic Act No. 265, section 29."
Atty. Mendoza's lack of participation in the decision of the Central Bank to liquidate
GENBANK is to me not material. What is material is his role in facilitating the liquidation of
GENBANK through his legal expertise. In advising the Central Bank, Atty. Mendoza did not
just mechanically point to section 29 of Republic 265. As then Solicitor General, and as a
lawyer known for his keen legal acumen, Atty. Mendoza synthesized facts, which by reason
of his position he was privy to, and law with a view to successfully liquidate the
bank. DEHaAS
Ultimately, Justice Puno advocates for a liberal interpretation of Rule 6.03 since a strict
interpretation would cause "a chilling effect on government recruitment of able legal talent."
With all due respect, I cannot subscribe to this position which is grounded on the premise
that this is "the only card that the government may play to recruit lawyers." Effectively, this
is likely to result in the compromising of ethical standards which this Court must never allow.
While it is desirable to recruit competent lawyers into government service, this does not
justify the disturbance of our mores.
The canons and rules of the Code of Professional Responsibility must be strictly construed.
Admittedly the salary for serving in government often pales in comparison to that of the
private sector. I submit, however, that while financial considerations are important, they are
not the sole factor affecting recruitment of lawyers to the government sector. I would like to
think that serving in government is its own reward. One needs only to look at all of us
members of this Court to know that money is not everything. All of us have, at one point in
our legal careers, been tempted by the promise of financial success that private practice
usually brings. But in the end, we decided to take the road less traveled and serve in
government. And I would like to believe that each and everyone of us has made a difference.
There is more to this mortal coil than the pursuit of material wealth. As Winston Churchill
puts it: "What is the use of living if it be not to strive for noble causes and make this muddled
world a better place for those who will live in it after we are gone?"
ACCORDINGLY, concurring in the dissenting opinion of Justice Romeo J. Callejo, Sr., I vote
to grant the petition insofar as Civil Case No. 0096 is concerned, thus granting the motion to
disqualify Atty. Estelito P. Mendoza in the said case.
CALLEJO, SR., J., dissenting:
The Code of Professional Responsibility is not designed for Holmes'
proverbial "bad man" who wants to know just how many corners he
may cut, how close to the line he may play, without running into
trouble with the law. Rather, it is drawn for the "good man" as a
beacon to assist him in navigating an ethical course through the
sometimes murky waters of professional conduct. 1
With due respect, I dissent from the majority opinion. I believe that the present case
behooves the Court to strictly apply the Code of Professional Responsibility and provide an
ethical compass to lawyers who, in the pursuit of the profession, often find themselves in the
unchartered sea of conflicting ideas and interests. There is certainly, without exception, no
profession in which so many temptations beset the path to swerve from the line of strict
integrity; in which so many delicate and difficult questions of duty are continually
arising. 2 The Code of Professional Responsibility establishes the norms of conduct and
ethical standards in the legal profession and the Court must not shirk from its duty to ensure
that all lawyers live up to its provisions. Moreover, the Court must not tolerate any departure
from the "straight and narrow" path demanded by the ethics of the legal profession and
enjoin all lawyers to be like Caesar's wife — to be pure and appear to be so. 3
Factual and Procedural Antecedents
41
On July 17, 1987, pursuant to its mandate under Executive Order No. 1 4 of then President
Corazon C. Aquino, the PCGG, on behalf of the Republic of the Philippines, filed with the
Sandiganbayan a complaint for "reversion, reconveyance, restitution, accounting and
damages" against respondents Lucio Tan, Carmen Khao Tan, Florencio T. Santos, Natividad
P. Santos, Domingo Chua, Tan Hui Nee, Mariano Tanenglian, 5 Estate of Benito Tan Kee
Hiong (represented by Tarciana C. Tan), Florencio N. Santos, Jr., Harry C. Tan, Tan Eng
Chan, Chung Poe Kee, Mariano Khoo, Manuel Khoo, Miguel Khoo, Jaime Khoo, Elizabeth
Khoo, Celso Ranola, William T. Wong, Ernesto B. Lim, Benjamin T. Albacita, Willy Co, Allied
Banking Corporation, Allied Leasing and Finance Corporation, Asia Brewery, Inc., Basic
Holdings Corp., Foremost Farms, Inc., Fortune Tobacco Corporation, Grandspan
Development Corp., Himmel Industries, Iris Holdings and Development Corp., Jewel
Holdings, Inc., Manufacturing Services and Trade Corp., Maranaw Hotels and Resort Corp.,
Northern Tobacco Redrying Plant, Progressive Farms, Inc., Shareholdings, Inc., Sipalay
Trading Corp., Virgo Holdings and Development Corp. (collectively referred to herein as
respondents Tan, et al., for brevity), then President Ferdinand E. Marcos and Imelda R.
Marcos, Panfilo O. Domingo, Cesar Zalamea, Don Ferry and Gregorio Licaros. The case was
docketed as Civil Case No. 0005 of the Sandiganbayan (Second Division). In connection
therewith, the PCGG issued several writs of sequestration on properties allegedly acquired
by the above-named persons by means of taking advantage of their close relationship and
influence with former President Marcos.
Shortly thereafter, respondents Tan, et al. filed with this Court petitions for certiorari,
prohibition and injunction seeking to, among others, nullify the writs of sequestration issued
by the PCGG. After the filing of the comments thereon, this Court referred the cases to the
Sandiganbayan (Fifth Division) for proper disposition, docketed therein as follows:
a. Civil Case No. 0096 — Lucio Tan, Mariano Tanenglian, Allied Banking
Corp., Iris Holding and Development Corp., Virgo Holdings
Development Corp. and Jewel Holdings, Inc. v. PCGG, which
seeks to nullify the PCGG's Order dated June 19, 1986
sequestering the shares of stock in Allied Banking
Corporation held by and/or in the name of respondents
Lucio Tan, Mariano Tanenglian, Iris Holding and
Development Corp., Virgo Holdings Development Corp. and
Jewel Holdings, Inc.;
b. Civil Case No. 0097 — Lucio Tan, Carmen Khao Tan, Florencio T.
Santos, Natividad Santos, Florencio N. Santos, Jr., and
Foremost Farms, Inc. v. PCGG, which seeks to nullify the
PCGG's Order dated August 12, 1986 sequestering the
shares of stock in Foremost Farms, Inc. held by and/or in the
name of Lucio Tan, Carmen Khao Tan, Florencio T. Santos,
Natividad Santos and Florencio N. Santos, Jr.;
c. Civil Case No. 0098 — Lucio Tan, Carmen Khao Tan, Mariano
Tanenglian, Florencio T. Santos, Natividad Santos, Florencio
N. Santos, Jr., Shareholdings, Inc. and Fortune Tobacco Corp.
v. PCGG, which seeks to nullify the PCGG's Order dated July
24, 1986 sequestering the shares of stock in Fortune
 Tobacco Corp. held by and/or in the name of Lucio Tan,
Carmen Khao Tan, Mariano Tanenglian, Florencio T. Santos,
Natividad Santos, Florencio N. Santos, Jr., Shareholdings,
Inc.; and
d. Civil Case No. 0099 — Lucio Tan, Carmen Khao Tan, Mariano
Tanenglian, Florencio T. Santos, Natividad Santos and
Shareholdings, Inc. v. PCGG, which seeks to nullify the
PCGG's Order dated July 24, 1986 sequestering the shares of
stock in Shareholdings, Inc. held by and/or in the name of
Lucio Tan, Carmen Khao Tan, Mariano Tanenglian, Florencio
T. Santos and Natividad Santos.
In all these cases, respondents Tan, et al. are represented by their counsel Atty. Estelito P.
Mendoza, who served as the Solicitor General from 1972 to 1986 during the administration
of former President Marcos.
The PCGG filed with the Sandiganbayan (Fifth Division) a motion to disqualify Atty.
Mendoza as counsel for respondents Tan, et al. The PCGG alleged that Atty. Mendoza, as
then Solicitor General and counsel to the Central Bank, "actively intervened" in the
liquidation of General Bank and Trust Company (GENBANK), which was subsequently
acquired by respondents Tan, et al. and became Allied Banking Corporation. As shown
above, among the litigated properties are the sequestered shares of stocks in Allied Banking
Corp. (Civil Case No. 0096). HEcSDa
The acquisition of GENBANK by respondents Tan, et al. is outlined by the PCGG as follows:
1. In 1976, General Bank and Trust Company (GENBANK) got into
financial difficulties. The Central Bank then extended an emergency
loan to GENBANK reaching a total of P310 million. In extending this
loan, the Central Bank, however, took control of GENBANK with the
execution of an irrevocable proxy by 2/3 of GENBANK's outstanding
shares in favor of the Central Bank and the election of seven (7)
Central Bank nominees to the 11-member Board of Directors of
GENBANK. Subsequently, on March 25, 1977, the Monetary Board of
the Central Bank issued a Resolution declaring GENBANK insolvent,
forbidding it to do business and placing it under receivership.
2. In the meantime, a public bidding for the sale of GENBANK assets
and liabilities was scheduled at 7:00 P.M. on March 28, 1977. Among
the conditions for the bidding were: (a) submission by the bidder of a
letter of credit issued by a bank acceptable to Central Bank to
guaranty payment or as collateral of the Central Bank emergency
loan; and (b) a 2-year period to repay the said Central Bank emergency
loan. On March 29, 1977, the Central Bank, through a Monetary Board
Resolution, approved the bid of the group of respondents Lucio Tan
and Willy Co. This bid, among other things, offered to pay only
P500,000.00 for GENBANK assets estimated at P688,201,301.45;
Capital Accounts of P103,984,477.55; Cash of P25,698,473.00; and the
42
takeover of the GENBANK Head Office and branch offices. The
required letter of credit was also not attached to the bid. What was
attached to the bid was a letter of Panfilo O. Domingo, as PNB
President, promising to open an irrevocable letter of credit to secure
the advances of the Central Bank in the amount of P310 million.
Without this letter of commitment, the Lucio Tan bid would not have
been approved. But such letter of commitment was a fraud because it
was not meant to be fulfilled. Ferdinand E. Marcos, Gregorio Licaros
and Panfilo O. Domingo conspired together in giving the Lucio Tan
group undue favors such as the doing away with the required
irrevocable letter of credit, the extension of the term of payment from
two years to five years, the approval of second mortgage as collateral
for the Central Bank advances which was deficient by more than P90
Million, and many other concessions to the great prejudice of the
government and of the GENBANK stockholders.
3. GENBANK eventually became the Allied Banking Corporation in
April 1977. Respondents Lucio Tan, Willy S. Co and Florencio T. Santos
are not only incorporators and directors but they are also the major
shareholders of this new bank. 6
Atty. Mendoza allegedly "intervened" in the acquisition of GENBANK by respondents Tan, et
al. since Atty. Mendoza, in his capacity as the Solicitor General, advised the Central Bank's
officials on the procedure to bring about GENBANK's liquidation. Further, he appeared as
counsel for the Central Bank in connection with its petition for assistance in the liquidation
of GENBANK. He filed the said petition with the Court of First Instance (now Regional Trial
Court) of Manila and docketed therein as Special Proceeding No. 107812. 7
The PCGG opined that Atty. Mendoza's present appearance as counsel for respondents
Tan, et al. in the case involving the sequestered shares of stock in Allied Banking Corp. runs
afoul of Rule 6.03 of the Code of Professional Responsibility proscribing former government
lawyers from accepting "engagement or employment in connection with any matter in
which he had intervened while in said service."
Acting on the said motion, the Sandiganbayan (Fifth Division) issued the assailed Resolution
dated July 11, 2001 stating:
Acting on the PCGG's "MOTION TO DISQUALIFY ATTY. ESTELITO P.
MENDOZA AS COUNSEL FOR PETITIONER" dated February 5, 1991
which appears not to have been resolved by then Second Division of
this Court, and it appearing that (1) the motion is exactly the same in
substance as that motion filed in Civil Case No. 0005 as in fact, Atty.
Mendoza in his "OPPOSITION" dated March 5, 1991 manifested that
he was just adopting his opposition to the same motion filed by PCGG
in Civil Case No. 0005 and (2) in the Court's Order dated March 7, 1991,
the herein incident was taken-up jointly with the said same incident in
Civil Case No. 0005 (pp. 134-135, Vol. I, Record of Civil Case No. 0096),
 this Division hereby reiterates and adopts the Resolution dated April
22, 1991 in Civil Case No. 0005 of the Second Division (pp. 1418-1424,
Vol. III, Record of Civil Case No. 0005) denying the said motion as its
Resolution in the case at bar. 8
The PCGG sought the reconsideration thereof but its motion was denied in the assailed
Resolution dated December 5, 2001, which reads:
Acting on respondent PCGG's "MOTION FOR RECONSIDERATION"
dated August 1, 2001 praying for the reconsideration of the Court's
Resolution dated July 12, 2001 denying its motion to disqualify Atty.
Estelito P. Mendoza as counsel for petitioners, to which petitioners
have filed an "OPPOSITION TO MOTION FOR RECONSIDERATION
DATED AUGUST 1, 2001" dated August 29, 2001, as well as the
respondent's "REPLY (To Opposition to Motion for Reconsideration)
dated November 16, 2001, it appearing that the main motion to
disqualify Atty. Mendoza as counsel in these cases was exactly the
same in substance as that motion to disqualify Atty. Mendoza filed by
the PCGG in Civil Case No. 0005 (re: Republic vs. Lucio Tan, et al.) and
the resolutions of this Court (Second Division) in Civil Case No. 0005
denying the main motion as well as of the motion for reconsideration
thereof had become final and executory when PCGG failed to elevate
the said resolutions to the Supreme Court, the instant motion is
hereby DENIED. 9
The Resolution 10 dated April 22, 1991 of the Sandiganbayan (Second Division) in Civil Case
No. 0005, which was adopted by the Fifth Division in Civil Cases Nos. 0096-0099, denied the
similar motion to disqualify Atty. Mendoza as counsel for respondents Tan, et al. holding, in
essence, that the PCGG "has failed to prove that there exists an inconsistency between Atty.
Mendoza's former function as Solicitor General and his present employment as counsel of
the Lucio Tan group." 11 The Sandiganbayan (Second Division) explained, thus:
. . . It has been said that the test of inconsistency in cases of the
character under consideration is not whether the attorney has ever
appeared for the party against whom he proposes to appear, but
whether his accepting the new retainer will require him, in forwarding
the interests of his new client, to do anything which will injuriously
affect his former client in any matter in which he formerly represented
against him, and whether he will be called upon, in his new relation, to
use against his former client any knowledge or information acquired
through their former connection. Nor does the rule imposing disability
on the attorney mean that he, having once been employed by a client,
shall never thereafter appear in any matter against him but merely
forbids the attorney's appearance or acting against the client where
the attorney can use, to the detriment of such client, the information
and confidences acquired during the existence of their relation as
attorney and client (7 C.J.S., Pp. 828-829, cited in Primavera Farms,
Inc., et al. vs. PCGG, supra). Significantly, PCGG's "Reply" does not
controvert Atty. Mendoza's claim that in appearing in the instant case,
43
he does not take a position adverse to that he had taken in behalf of
the Central Bank of the Philippines in SP No. 107812. Neither did it
challenge Atty. Mendoza's claim that the position he took as Solicitor
General in behalf of the Central Bank in 1977 when he filed the said
case (SP No. 107812) has been maintained by his successors in office.
In fact, even incumbent Central Bank Governor Jose Cuisia had
interposed no objection to Atty. Mendoza's appearance as counsel for
the Lucio Tan group for as long as he maintains the same position he
has taken on behalf of the Central Bank of the Philippines as Solicitor
General, which position refers to the various resolutions of the
Monetary Board and actions of the Central Bank in regard General
Bank and Trust Co. as being regular and in accordance with law (Annex
"A", Rejoinder, Records, Pp. 1404-1405). 12
The Sandiganbayan (Second Division) further observed that Atty. Mendoza's appearance as
counsel for respondents Tan, et al. was well beyond the one-year prohibited period under
Section 7(b) of Republic Act No. 6713 since he ceased to be the Solicitor General in the year
1986. The said provision prohibits a former public official or employee from practicing his
profession in connection with any matter before the office he used to be with within one
year from his resignation, retirement or separation from public office.
As earlier stated, the April 22, 1991 Resolution of the Sandiganbayan (Second Division) was
adopted by the Fifth Division in the resolutions now being assailed by the PCGG. Hence, the
recourse to this Court by the PCGG.
Procedural Issues
The following procedural issues are raised by respondents Tan, et al.: (1) whether the
assailed Sandiganbayan (Fifth Division) Resolutions dated July 11, 2001 and December 5,
2001 are final and executory; hence, the PCGG should have filed a petition for review
on certiorari under Rule 45 of the Rules of Court and not the instant petition
for certiorari under Rule 65 thereof; and (2) whether the instant petition is already barred by
the Sandiganbayan (Second Division) Resolution dated April 22, 1991 under the doctrine
of res judicata.
In contending that the PCGG availed itself of the wrong remedy in filing the instant petition
for certiorari, respondents Tan, et al. rely on Section 1, Rule 45 of the Rules of Court which
reads:
Section 1. Filing of petition with Supreme Court. — A party desiring to
appeal by certiorari from a judgment or final order or resolution of the
Court of Appeals, the Sandiganbayan, the Regional Trial Court or
other courts whenever authorized by law, may file with the Supreme
Court a verified petition for review on certiorari. The petition shall raise
only questions of law which must be distinctly set forth.
Section 7 of Presidential Decree No. 1606, as amended by Section 3 of Rep. Act No. 7975,
likewise, states:
Sec. 7. Form, Finality and Enforcement of Decisions. —
 xxx xxx xxx
Decisions and final orders of the Sandiganbayan shall be appealable to
the Supreme Court.
I am not persuaded by the arguments proffered by respondents Tan, et al. The above-
mentioned rules do not preclude the resort to this Court by way of a petition
for certiorari under Rule 65 of the Rules of Court of orders or resolutions of the
Sandiganbayan. The special civil action ofcertiorari may be availed of where there is no
appeal or any plain, speedy and adequate remedy in the ordinary course of law. 13
In this case, the remedy of appeal is not available to the PCGG because the denial of its
motion to disqualify Atty. Mendoza as counsel for respondents Tan, et al. is an interlocutory
order; hence, not appealable. The word "interlocutory" refers to "something intervening
between the commencement and the end of a suit which decides some point or matter, but
is not a final decision of the whole controversy." 14 An interlocutory order does not
terminate nor does it finally dispose of the case; it does not end the task of the court in
adjudicating the parties' contentions and determining their rights and liabilities as against
each other but leaves something yet to be done by the court before the case is finally
decided on the merits. 15
Accordingly, this Court, in not a few cases, had taken cognizance of petitions for certiorari of
resolutions of the Sandiganbayan which were in the nature of interlocutory orders. For
example, in Serapio v. Sandiganbayan, 16 we took cognizance of, albeit dismissed, the
petition for certiorariwhich assailed the resolutions of the Sandiganbayan denying the
petition for bail, motion for a reinvestigation and motion to quash filed by accused Edward
Serapio. Also, in San Miguel Corporation v. Sandiganbayan, 17 we took cognizance of, albeit
dismissed, the petitions for certiorariof several resolutions of the Sandiganbayan involving
the sequestered shares of stock in the San Miguel Corp.
To my mind, the PCGG properly filed the instant petition for certiorari under Rule 65 to assail
the resolutions of the Sandiganbayan (Fifth Division) denying its motion to disqualify Atty.
Mendoza as counsel for respondents Tan, et al. in Civil Cases Nos. 0096-0099. DHESca
With respect to the second procedural issue raised by respondents Tan, et al., i.e., the
instant petition is already barred by the Sandiganbayan (Second Division) Resolution dated
April 22, 1991 in Civil Case No. 0005 under the doctrine of res judicata, I submit that the
doctrine of res judicata finds no application in this case.
Section 47, Rule 39 of the Revised Rules of Court reads in part:
Sec. 47. Effect of judgments or final orders. — The effect of a judgment
or final order rendered by a court of the Philippines, having jurisdiction
to pronounce the judgment or final order, may be as follows:
xxx xxx xxx
(b) In other cases, the judgment or final order is, with respect to the
matter directly adjudged or as to any other matter that could have
44
been raised in relation thereto, conclusive between the parties and
their successors-in-interest by title subsequent to the commencement
of the action or special proceeding, litigating for the same thing and
under the same title and in the same capacity; and
(c) In any other litigation between the same parties or their
successors-in-interest, that only is deemed to have been adjudged in a
former judgment or final order which appears upon its face to have
been so adjudged, or which was actually and necessarily included
therein or necessary thereto.
The doctrine of res judicata comprehends two distinct concepts — (1) bar by former
judgment and (2) conclusiveness of judgment. 18 Paragraph (b) embodies the doctrine of res
judicata or res adjudicata or bar by prior judgment, while paragraph (c) estoppel by judgment
or conclusiveness of judgment. 19 In Macahilig v. Heirs of Grace M. Magalit, 20 Justice
Artemio Panganiban explained that the term "final" in the phrase judgments or final orders in
the above section has two accepted interpretations. In the first sense, it is an order that one
can no longer appeal because the period to do so has expired, or because the order has been
affirmed by the highest possible tribunal involved. 21 The second sense connotes that it is an
order that leaves nothing else to be done, as distinguished from one that is
interlocutory. 22 The phrase refers to a final determination as opposed to a judgment or an
order that settles only some incidental, subsidiary or collateral matter arising in an action;
for example, an order postponing a trial, denying a motion to dismiss or allowing
intervention. Orders that give rise to res judicata or conclusiveness of judgment apply only to
those falling under the second category. 23
For res judicata to serve as an absolute bar to a subsequent action, the following elements
must concur: (1) there is a final judgment or order; (2) the court rendering it has jurisdiction
over the subject matter and the parties; (3) the judgment is one on the merits; and (4) there
is, between the two cases, identity of parties, subject matter and cause of action. 24 When
there is no identity of causes of action, but only an identity of issues, there exists res
judicata in the concept of conclusiveness of judgment. 25
In any case, whether as a bar by prior judgment or in the concept of conclusiveness of
judgment, the doctrine of res judicata applies only when there is a judgment or final order
which, as earlier discussed, leaves nothing else to be done. As explained by Justice
Panganiban, a judgment or an order on the merits is one rendered after a determination of
which party is upheld, as distinguished from an order rendered upon some preliminary or
formal or merely technical point. 26 To reiterate, the said judgment or order is not
interlocutory and does not settle only some incidental, subsidiary or collateral matter arising
in an action.
The Resolution dated April 22, 1991 of the Sandiganbayan (Second Division) in Civil Case No.
0005 denying the PCGG's similar motion to disqualify Atty. Mendoza as counsel for
respondents Tan, et al. therein was evidently an interlocutory order as it did not terminate or
finally dispose of the said case. It merely settled an incidental or collateral matter arising
therein. As such, it cannot operate to bar the filing of another motion to disqualify Atty.
Mendoza in the other cases because, strictly speaking, the doctrine of res judicata, whether
to serve as a bar by prior judgment or in the concept of conclusiveness of judgment, does
not apply to decisions or orders adjudicating interlocutory motions. 27
Substantive Issue
The substantive issue in this case is whether the present engagement of Atty. Mendoza as
counsel for respondents Tan, et al. in Civil Cases Nos. 0096-0099 violates the interdiction
embodied in Rule 6.03 of the Code of Professional Responsibility.
In the United States, an area of concern involving ethical considerations applicable to former
government lawyers is called the "revolving door" — the process by which lawyers
temporarily enter government service from private life then leave it for large fees in private
practice, where they can exploit information, contacts, and influence garnered in
government service. 30 To address this, the disqualification of a former government lawyer
who has entered private practice may be sought based either on "adverse-interest conflict"
or "congruent-interest representation conflict."

Canon 6 of our Code of Professional Responsibility reads:
CANON 6 — THESE CANONS SHALL APPLY TO LAWYERS IN
GOVERNMENT SERVICE IN THE DISCHARGE OF THEIR OFFICIAL
DUTIES.
Rule 6.01 — The primary duty of a lawyer in public prosecution is not
to convict but to see that justice is done. The suppression of facts or
the concealment of witnesses capable of establishing the innocence of
the accused is highly reprehensible and is cause for disciplinary action.
Rule 6.02 — A lawyer in government service shall not use his public
position to promote or advance his private interests, nor allow the
latter to interfere with his public duties.
Rule 6.03 — A lawyer shall not, after leaving government service, accept
engagement or employment in connection with any matter in which he
had intervened while in said service.
In the "adverse-interest conflict," a former government lawyer is enjoined from representing
a client in private practice if the matter is substantially related to a matter that the lawyer
dealt with while employed by the government and if the interests of the current and former
clients are adverse. 31 It must be observed that the "adverse-interest conflict" applies to all
lawyers in that they are generally disqualified from accepting employment in a subsequent
representation if the interests of the former client and the present client are adverse and the
matters involved are the same or substantially related. 32 On the other hand, in "congruent-
interest representation conflict," the disqualification does not really involve a conflict at all,
because it prohibits the lawyer from representing a private practice client even if the
interests of the former government client and the new client are entirely parallel. 33 The
"congruent-interest representation conflict," unlike the "adverse-interest conflict," is unique
to former government lawyers. TAEcSC
I believe that Atty. Mendoza's present engagement as counsel for respondents Tan, et al. in
Civil Case No. 0096, which involves the sequestered shares of stocks in Allied Banking Corp.,
violates the ethical precept embodied in Rule 6.03 of our Code of Professional
Responsibility, which is akin to the doctrine of "congruent-interest representation conflict."

A good number of the Canons in our present Code of Professional Responsibility were Contrary to the majority opinion, the subject
adopted from the Canons of Professional Ethics of the American Bar Association matter in Civil Case No. 0096 is connected with
(ABA). 28 Rule 6.03, in particular, is a restatement of Canon 36 of the Canons of Professional or related to a "matter," i.e. the liquidation
Ethics which provided: of GENBANK, in which Atty. Mendoza had
intervened as the Solicitor General
36. RETIREMENT FROM JUDICIAL POSITION OR PUBLIC
EMPLOYMENT. The qualifying words or phrases that define the prohibition in Rule 6.03 are (1) "any matter"
and (2) "he had intervened" thereon while he was in the government service. 34
A lawyer should not accept employment as an advocate in any matter
The United States' ABA Formal Opinion No. 324 recognized that it is difficult to formulate a
upon the merits of which he has previously acted in a judicial capacity.
precise definition of "matter" as used in their Disciplinary Rule (DR), nonetheless, it
A lawyer, having once held public office or having been in the public suggested that the term "contemplates a discrete and isolatable transaction or set of
employ, should not after his retirement accept employment in transaction between identifiable parties." 35
connection with any matter which he has investigated or passed upon
There is no dispute that Atty. Mendoza, as the Solicitor General, advised the Central Bank
while in such office or employ.
on the procedure to bring about the liquidation of GENBANK. It is, likewise, admitted by
Indeed, the restriction against a public official from using his public position as a vehicle to respondents Tan, et al. that Atty. Mendoza filed with the then CFI of Manila, the petition for
promote or advance his private interests extends beyond his tenure on certain matters in assistance in the liquidation of GENBANK (Special Proceeding No. 107812). 36 GENBANK
which he intervened as a public official. 29 Rule 6.03 makes this restriction specifically was subsequently acquired by respondents Tan, et al. and became Allied Banking Corp.,
applicable to lawyers who once held public office. A plain reading of the rule shows that the whose shares of stocks have been sequestered by the PCGG and presently subject of Civil
interdiction (1) applies to a lawyer who once served in the government, and (2) relates to his Case No. 0096.
accepting "engagement or employment in connection with any matter in which he had
intervened while in said service."

45
The majority opinion downplays the role of Atty. Mendoza by stating that he "merely
advised the Central Bank on the legal procedure to liquidate GENBANK" which procedure is
"given in black and white in R.A. No. 265, section 29." This procedural advice, according to
the majority opinion, "is not the matter contemplated by Rule 6.03 of the Code of
Professional Responsibility."
On the contrary, the acts of Atty. Mendoza may be rightfully considered as falling within the
contemplation of the term "matter" within the meaning of Rule 6.03. Specifically, Atty.
Mendoza's giving counsel to the Central Bank on the procedure to go about GENBANK's
liquidation and the filing of the petition therefor in Special Proceedings No. 107812 did not
merely involve the drafting, enforcing or interpreting government or agency procedures,
regulations or laws, or briefing abstract principles of law. 37 These acts were discrete,
isolatable as well as identifiable transactions or conduct involving a particular situation and
specific party, i.e., the procedure for the liquidation of GENBANK. Consequently, the same
can be properly considered "matter" within the contemplation of Rule 6.03.
Moreover, contrary to the contention of respondents Tan, et al., the interdiction in Rule 6.03
does not only apply if precisely the same legal issues are involved in each
representation. 38 The Comments of the Integrated Bar of the Philippines (IBP) that drafted
our Code of Professional Responsibility explained that the restriction covers "engagement or
employment, which means that he cannot accept any work or employment from anyone
that will involve or relate to the matter in which he intervened as a public official." 39 The
sequestration of the shares of stock in Allied Banking Corp. in the names of respondents
Tan, et al., which is subject of Civil Case No. 0096, necessarily involves or relates to their
acquisition of GENBANK upon its liquidation, in which Atty. Mendoza had intervened as the
Solicitor General.
It should be emphasized that Atty. Mendoza's participation in GENBANK's liquidation is
sufficient to place his present engagement as counsel for respondents Tan, et al. in Civil Case
No. 0096 within the ambit of Rule 6.03. His role was significant and substantial. The
Memorandum dated March 29, 1977 prepared by certain key officials 40 of the Central Bank,
is revealing:
Immediately after said meeting, we had a conference with the Solicitor
General and he advised that the following procedure should be taken:
1) Management should submit a memorandum to the Monetary Board
reporting that studies and evaluation had been made since
the last examination of the bank as of August 31, 1976 and it
is believed that the bank can not be reorganized or placed in
a condition so that it may be permitted to resume business
with safety to its depositors and creditors and the general
public.
2) If the said report is confirmed by the Monetary Board, it shall order
the liquidation of the bank and indicate the manner of its
liquidation and approve a liquidation plan.
46
3) The Central Bank shall inform the principal stockholders of Genbank
of the foregoing decision to liquidate the bank and the
liquidation plan approved by the Monetary Board.
4) The Solicitor General shall then file a petition in the Court of First
Instance reciting the proceedings which had been taken and
praying the assistance of the Court in the liquidation of
Genbank. 41
The Minutes No. 13 dated March 29, 1977 of the Monetary Board likewise shows that Atty.
Mendoza was furnished copies of pertinent documents relating to GENBANK in order to aid
him in filing with the court the petition for assistance in the bank's liquidation. The pertinent
portion of the said minutes reads:
The Board decided as follows:
xxx xxx xxx
E. To authorize Management to furnish the Solicitor General with a
copy of the subject memorandum of the Director, Department
of Commercial and Savings Bank dated March 29, 1977,
together with copies of:
1. Memorandum of the Deputy Governor, Supervision and
Examination Sector, to the Monetary Board, dated
March 25, 1977, containing a report on the current
situation of Genbank;
2. Aide Memoire on the Antecedent Facts Re: General Bank
and Trust Co., dated March 23, 1977;
3. Memorandum of the Director, Department of Commercial
and Savings Bank, to the Monetary Board, dated
March 24, 1977, submitting, pursuant to Section 29
of R.A. No. 265, as amended by P.D. No. 1007, a
report on the state of insolvency of Genbank,
together with its attachments; and
4. Such other documents as may be necessary or needed by
the Solicitor General.
for his use in filing a petition in the Court of First Instance praying the
assistance of the Court in the liquidation of Genbank." 42
By advising the Central Bank on the procedure to bring about the liquidation of GENBANK
and, more significantly, by filing the petition for assistance in its liquidation, Atty. Mendoza
had clearly intervened in the liquidation of GENBANK and its subsequent acquisition by
respondents Tan, et al. ACDTcE
I disagree with the ponencia's holding that Atty. Mendoza could not be considered as having
intervened as it describes the participation of Atty. Mendoza by stating that he "had no iota
of participation in the decision of the Central Bank to liquidate GENBANK."
That the decision to declare GENBANK insolvent was made wholly by the Central Bank,
without the participation of Atty. Mendoza, is not in question. Rather, it was his
participation in the proceedings taken subsequent to such declaration, i.e., his giving advise
to the Central Bank on how to proceed with GENBANK's liquidation and his filing of the
petition in Special Proceeding No. 107812 pursuant to Section 29 43 of Rep. Act No. 265,
that constitutes "intervention" as to place him within the contemplation of Rule 6.03. To
intervene means —
1: to enter or appear as an irrelevant or extraneous feature or
circumstance; 2: to occur, fall or come between points of time or events;
3: to come in or between by way of hindrance or modification:
INTERPOSE; 4: to occur or lie between two things . . . 44
"[to avoid] the manifest possibility that . . . [a former Government
lawyer's] action as a public legal official might be influenced (or open
to the charge that it had been influenced) by the hope of later being
employed privately to uphold or upset what he had done. 46
The old Canon 36, as well as the present Canon 9 and DR9-101(B), rest on the policy
consideration that an attorney must seek to avoid even the appearance of evil. 47
Being undoubtedly of American origin, the interpretation adopted by the American courts
and the ABA has persuasive effect on the interpretation of Rule 6.03. 48 Accordingly, I find
the case of General Motors Corporation v. City of New York, 49 where the pertinent ethical
precepts were applied by the United States Court of Appeals (2nd Circuit), particularly
instructive. The said US court disqualified the privately retained counsel of the City of New
York in the antitrust case it filed against the General Motors Corp. because the said counsel,
a former lawyer of the US Department of Justice, had not only participated in the latter's
case against General Motors Corp. but signed the complaint in that action.

Further, "intervention" is defined as — George D. Reycraft, the counsel whose disqualification was sought in that case, served as a
trial attorney assigned at the General Litigation Services of the Antitrust Division of the US
1: the act or fact of intervening: INTERPOSITION; 2: interference that Department of Justice from 1952 to 1962. Sometime in 1954, he participated in the
may affect the interests of others . . . 45 investigation of the alleged monopolization by General Motors Corp. of the city and intercity
With the foregoing definitions, it is not difficult to see that by giving counsel to the Central bus business. The investigation culminated with the filing of the antitrust complaint against
Bank on how to proceed with GENBANK's liquidation and filing the necessary petition General Motors Corp. in 1956. Reycraft signed the said complaint but alleged that after 1958
therefor with the court, Atty. Mendoza "had intervened," "had come in," or "had interfered," through the time that he left the Department of Justice in 1962, he no longer had any
in the liquidation of GENBANK and the subsequent acquisition by respondents Tan, et al. of participation in that case.
the said banking institution. Moreover, his acts clearly affected the interests of GENBANK as In disqualifying Reycraft, the US Court gave short shrift to the argument that Reycraft "has
well as its stockholders. not changed sides" — i.e. "there is nothing antithetical in the postures of the two
Contrary to the majority opinion, Rule 6.03 applies governments in question,” stating that, per Opinion No. 37 of the ABA Commission on
even if Atty. Mendoza did not "switch sides" or did not Professional Ethics, the ethical precepts of Canon 9 and DR9-101(B) apply irrespective of the
take inconsistent sides. Rule 6.03 applies even if side chosen in private practice. The said court believed that it "is as it should be for there
no conflict of interest exists between Atty. Mendoza's lurks great potential for lucrative returns in following into private practice the course already
former government client (Central Bank) and charted with the aid of governmental resources." 50
his present private practice clients (respondents Tan, et al.)
As earlier intimated, Rule 6.03 is a restatement of Canon 36 of the ABA's Canons of
The US Court stressed that Reycraft not only participated in the investigation, but
Professional Ethics, now superseded by the ABA's Code of Professional Responsibility. In
he signed the complaint in that action and admittedly had "substantial responsibility" in its
lieu of the old Canon 36, Canon 9 of the ABA's Code of Professional Responsibility mandates
investigatory and preparatory stages. It thus concluded that "where the overlap of issues is
that:
so plain and the involvement while in Government employ is so direct, the appearance of
A lawyer should avoid even the appearance of professional impropriety must be avoided through disqualification." 51
impropriety.
The General Motors case is illustrative of the "congruent-interest representation conflict"
Providing specificity to this general caveat, Disciplinary Rule (DR) 9–101(B) commands, thus: doctrine. It bears stressing that this doctrine applies uniquely to former government lawyers
and has been distinguished from the normal rule applicable for non-government lawyers in
A lawyer shall not accept private employment in a matter in which he this wise —
had substantial responsibility while he was a public employee.
To illustrate the normal rule for non-government lawyers, imagine
The purpose of the interdiction, as stated in the ABA Committee on Professional Ethics, that the lawyer has represented passenger A and has recovered
Opinion No. 37, is — substantial damages in a suit against a driver. No conflict of interest

47
 principle or rule restricts the lawyer from later representing passenger
B against the driver with respect to exactly the same accident. B may
obtain the benefits of the lawyer's help regardless of the fact that the
lawyer might be able to employ to B's advantage information and
strategies developed in the representation of A. The critical element is
that the interest of A and B do not conflict.
The analysis does not change if we move from an area that is entirely
private into one that is arguably more connected with the public
interest. Suppose a lawyer in private practice represents Small Soap
Company in its suit for damages under the federal antitrust laws
against Giant Soap Company. The lawyer would not be disqualified
from representing Medium Soap Company against Giant Soap in a
succeeding suit for damages based on precisely the same conspiracy.
The congruence of interests between Small Soap and Medium Soap
would almost certainly mean that the lawyer could represent both
clients. In the absence of a conflict — an opposing interest between
the two clients — the existence of a substantial relationship between
the matters involved in both cases is irrelevant.
Now, suppose the lawyer has filed suit in behalf of the government
against Giant Soap Company to force divestiture of an acquired
company on a theory that, because of the acquisition, Giant Soap has
monopolized an industry in conflict with antitrust laws. May the
lawyer, after leaving government service and while in private practice,
represent Medium Soap Company against Giant Soap in a suit for
damages based on the same antitrust conspiracy? Does the absence
of opposing interests between Medium Soap and the lawyer's former
government client similarly mean that there should be no
disqualification?
At this point, the rules for the former government lawyer diverge sharply
from the normal former-client conflict rules: the lawyer is disqualified
from representing the successive client in private practice, despite the
fact that the interests of the client and the lawyer's former government
client are apparently aligned. All that is required for disqualification is
the relationship between the former and the succeeding
representations.52
The rationale for the "congruent-interest representation conflict" doctrine has been
explained, thus:
The rationale for disqualification is rooted in a concern with the impact
that any other rule would have upon the decisions and actions taken
by the government lawyer during the course of the earlier
representation of the government. Both courts and commentators
have expressed the fear that permitting a lawyer to take action in
behalf of a government client that later could be to the advantage of
private practice client would present grave dangers that a government
48
lawyer's largely discretionary actions would be wrongly influenced by
the temptation to secure private practice employment or to favor
parties who might later become private practice clients . . .
The fear that government lawyers will misuse government power in
that way is not idle. Lawyers who represent the government often
exercise enormous discretion unchecked by an actual client who
oversees the lawyer's work. For that reason a special rule is needed to
remove the incentive for government lawyers to take discretionary
decisions with an eye cast toward advantages in future,
nongovernmental employment. The broad disqualification
accomplishes that and, particularly under rubrics that do not invariably
require disqualification of the entire firm with which the former
government lawyer practices, does it without unnecessarily
discouraging lawyers from entering temporary public service. 53
The foregoing disquisition applies to the case of Atty. Mendoza. Indeed, a textual reading of
Rule 6.03 of our Code of Professional Responsibility reveals that no conflict of interests or
adverse interests is required for the interdiction to apply. If it were so, or if conflict of
interests were an element, then the general conflict of interests rule (Rule 15.03) 54 would
apply. Rather, the interdiction in Rule 6.03 broadly covers "engagement or employment in
connection with any matter in which he had intervened while in the said service." To
reiterate, the drafters of our Code of Professional Responsibility had construed this to mean
that a lawyer "cannot accept any work or employment from anyone that will involve or
relate to the matter in which he intervened as a public official, except on behalf of the body
or authority which he served during his public employment." 55
In Civil Case No. 0096, Atty. Mendoza is certainly not representing the Central Bank but
respondents Tan, et al. Granting arguendo that the interests of his present private practice
clients (respondents Tan, et al.) and former government client (Central Bank) are apparently
aligned, the interdiction in Rule 6.03 applies. CaDEAT
Rule 6.03 purposely does not contain an explicit
temporal limitation because cases have to be
resolved based on their peculiar circumstances
Unless the Code itself provides, the Court cannot set a prescriptive period for any of the
provisions therein. That Rule 6.03, in particular, contains no explicit temporal limitation is
deliberate. It recognizes that while passage of time is a factor to consider in determining its
applicability, the peculiarities of each case have to be considered. For example, in Control
Data Corp. v. International Business Mach. Corp., 56 the US District Court of Minnesota held
that the lawyer who, 15 years earlier, while an employee of the Department of Justice had
been in charge of negotiations in antitrust case against a corporation, was not disqualified
from acting as counsel for the plaintiffs suing such corporation. On the other hand, the
lawyer whose conduct was the subject of the ABA Opinion No. 37, earlier cited, was himself
10 years removed from the matter over which he had substantial responsibility while in
public employ at the time he accepted the private engagement relating to the same
matter. 57 Clearly, it is the degree of involvement or participation in the matter while in
government service, not the passage of time, which is the crucial element in Rule 6.03.
The Code of Professional Responsibility is a codification of legal ethics, that "body of
principles by which the conduct of members of the legal profession is controlled. More
specifically and practically considered, legal ethics may be defined as that branch of moral
science which treats of the duties which the attorney-at-law owes to his clients, to the
courts, to the bar, and to the public." 58 In this connection, the Court has consistently
characterized disciplinary proceedings, including disqualification cases, against lawyers
as sui generis, neither purely civil nor purely criminal, thus:
[D]isciplinary proceedings against lawyers are sui generis. Neither purely
civil nor pure criminal, they do not involve a trial of an action or a suit,
but are rather investigations by the Court into the conduct of one of its
officers. Not being intended to inflict punishment, [they are] in no
sense a criminal prosecution. Accordingly, there is neither a plaintiff
nor a prosecutor therein. [They] may be initiated by the Court motu
propio. Public interest is [their] primary objective, and the real
question for determination is whether or not the attorney is still a fit
person be allowed the privileges as such. Hence, in the exercise of its
disciplinary powers, the Court merely calls upon a member of the Bar to
account for his actuations as an officer of the Court with the end view of
preserving the purity of the legal profession and the proper and honest
administration of justice. . . 59
For this reason, the civil law concept of prescription of actions finds no application in
disqualification cases against lawyers.
In this case, while the liquidation of GENBANK took place in 1977, the period that had lapsed
is not sufficient to consider it far removed from the present engagement of Atty. Mendoza
as counsel for respondents Tan, et al. in Civil Case No. 0096. In fact, the validity of the said
liquidation is still pending with the Court. 60 The validity of the sequestration of the shares
in Allied Banking Corp., which is the subject matter of Civil Case No. 0096, is necessarily
intertwined with Special Proceeding No. 107812 involving the liquidation of GENBANK and
the acquisition thereof by respondents Tan, et al. The issues presented in the two
proceedings are so overlapping and the involvement of Atty. Mendoza while in government
employ is so plain, direct and substantial, his disqualification as counsel for respondents
Tan, et al. in Civil Case No. 0095 is warranted under Rule 6.03.
Contrary to the majority opinion, the peculiar
circumstances of this case justify the strict application
of Rule 6.03
The ponencia cautions against the strict application of Rule 6.03 because it would have a
"chilling effect on the right of government to recruit competent counsel to defend its
interests." This concern is similar to that raised by the City of New York in the General
Motors case where it argued that if Reycraft was disqualified, the US court would "chill the
ardor for Government service by rendering worthless the experience gained in Government
employ." 61 It appeared that the City of New York relied on the pronouncement in the
earlier case of United States v. Standard Oil Co, 62 known as the Esso Export Case, thus:
49
If the government service will tend to sterilize an attorney in too large
an area of law for too long a time, or will prevent him from engaging in
the practice of a technical specialty which he has devoted years in
acquiring, and if that sterilization will spread to the firm which he
becomes associated, the sacrifice of entering government service will
be too great for most men to make. 63
Addressing this argument in General Motors, the same US court, through Justice Irving F.
Kaufman, also the ponente of the Esso Export Case,distinguished the two cases. It noted that
the said court denied the motion to disqualify the former government lawyer in Esso Export
Casebecause the lawyer therein "never investigated or passed upon the subject matter of
the pending case . . . never rendered or had any specific duty to render any legal advice in
relation to the regulations involved in the litigation." 64 Hence, the accommodation
between maintaining high ethical standards for former Government employees, on the one
hand, and encouraging entry into Government service, on the other, was struck under far
different circumstances of the Esso Export Case.
In General Motors, the admonition voiced by Justice Kaufman in his article The Former
Government Attorney and the Canons of Professional Ethics 65 was considered more to the
point:
If there was a likelihood that information pertaining to the pending
matter reached the attorney, although he did not "investigate" or
"pass upon" it, . . ., there would undoubtedly be an appearance of evil
if he were not disqualified. 66
Thus, it was concluded that the Esso Export Case unquestionably presented a case for the
cautious application of the "appearance-of-evil doctrine" because the former Government
lawyer's connection with the matter at issue was the tenuous one of mere employment in
the same Government agency.
In contrast, in General Motors, Reycraft, not only participated in the investigatory and
preparatory stages, but also signedthe complaint in the action. Thus, according to the US
court, where the overlap of issues is so plain, and the involvement while in Government
employ so direct, the resulting appearance of impropriety must be avoided through
disqualification.
From the foregoing disquisition, it can be gleaned that disqualification cases involving
former government lawyers will have to be resolved on the basis of peculiar circumstances
attending each case. A balance between the two seemingly conflicting policy considerations
of maintaining high ethical standards for former Government employees, on the one hand,
and encouraging entry into Government service, on the other, must be struck based on, inter
alia, the relationship between the former and the succeeding representations of the former
government lawyer. Likewise, as already discussed, the degree of his involvement in the
matter while in Government employ is a crucial element in determining if his present
representation is within the purview of Rule 6.03.
In this case, not unlike in General Motors, the involvement of Atty. Mendoza in the
liquidation of GENBANK while he was the Solicitor General is so direct that the appearance
of impropriety must be avoided through disqualification.
 Conclusion
Let me just clarify that the record is free from any intimation that Atty. Mendoza was
improperly influenced while in government service or that he is guilty of any impropriety in
agreeing to represent respondents Tan, et al. However, I am constrained to vote for his
disqualification in Civil Case No. 0096 in order to avoid any appearance of impropriety lest it
taint both the public and private segments of the legal profession.
ACCORDINGLY, I vote to PARTIALLY GRANT the petition. The Motion to Disqualify Atty.
Estelito P. Mendoza is GRANTED insofar as Civil Case No. 0096 is concerned. ISTDAH
TINGA, J.:
My vote to grant the petition hinges on the reasons stated hereunder. They pertain to a
significant and material dimension to this case which deserves greater illumination.
To sustain the view that Atty. Estelito Mendoza (Atty. Mendoza) should be disqualified as
counsel in Civil Case No. 0096, as the dissenters are wont to hold, there should be a clear
legal basis that would mandate such disqualification. The dissenters would hold Atty.
Mendoza liable for violating Section 6.03 of the Code of Professional Responsibility, while
the ponencia disputes the assertion that the provision was indeed transgressed. I maintain
that Section 6.03 cannot be made applicable in the present case to Atty. Mendoza, as to do
so would be violative of his right to due process.
I have qualms in holding any member of the Bar liable for violating Section 6.03 of the Code
of Professional Responsibility, in connection with acts that they may have engaged in as
government officials before the enactment of the said Code. In this case, at the time Atty.
Mendoza entered the government service he had no idea of the kind of inhibition proposed
to be foisted on him currently. Indeed, he is being faulted for representing the respondents
in Civil Case No. 0096 notwithstanding the fact that as Solicitor General and in the discharge
of his official functions, he had advised the Central Bank on the procedure to bring about the
liquidation of General Bank and Trust Company, which was subsequently acquired by the
respondents. However, whether it be at the time then Solicitor General Mendoza
participated in the process of the dissolution of General Bank in 1977, or at sometime in 1987
when he agreed to represent the respondents, the Code of Professional Responsibility had
not yet been promulgated. aDcEIH
The Code of Professional Responsibility was promulgated by the Supreme Court on 21 June
1988. 1 Prior to its official adoption, there was no similar official body of rules or guidelines
enacted by the Supreme Court other than the provisions on Legal Ethics in the Rules of
Court.
I fear it would set a dangerous precedent to hinge Atty. Mendoza's culpability on the Code of
Professional Responsibility, as it would effectively imply that the Code of Professional
Responsibility has application even as to acts performed prior to its enactment. Our laws
frown upon the prospectivity of statutes. Article 4 of the Civil Code declares that "Laws shall
have no retroactive effect, unless the contrary is provided." There is no declaration in the
Code of Professional Responsibility that gives retroactive effect to its canons and rules. It is
settled that the presumption is that all laws operate prospectively absent clear contrary
50
language in the text, 2 and that in every case of doubt, the doubt will be resolved against the
retroactive operation of laws. 3
The Court in Co v. Court of Appeals provided an exhaustive disquisition on the scope of the
rule on the prospective application of statutes:
The principle of prospectivity of statutes, original or amendatory, has
been applied in many cases. These include: Buyco v. PNB, 961) 2 SCRA
682 (June 30, 1961), holding that Republic Act No. 1576 which divested
the Philippine National Bank of authority to accept back pay
certificates in payment of loans, does not apply to an offer of payment
made before effectivity of the act; Largado v. Masaganda, et al., 5
SCRA 522 (June 30, 1962), ruling that RA 2613, as amended by RA
3090 on June, 1961, granting to inferior courts jurisdiction over
guardianship cases, could not be given retroactive effect, in the
absence of a saving clause; Larga v. Ranada, Jr., 64 SCRA 18, to the
effect that Sections 9 and 10 of Executive Order No. 90, amending
Section 4 of PD 1752, could have no retroactive application; People v.
Que Po Lay, 94 Phil. 640, holding that a person cannot be convicted of
violating Circular No. 20 of the Central Bank, when the alleged
violation occurred before publication of the Circular in the Official
Gazette; Baltazar v. C.A., 104 SCRA 619, denying retroactive
application to P.D. No. 27 decreeing the emancipation of tenants from
the bondage of the soil, and P.D. No. 316 prohibiting ejectment of
tenants from rice and corn farmholdings, pending the promulgation of
rules and regulations implementing P.D. No. 27; Nilo v. Court of
Appeals, 128 SCRA 519, adjudging that RA 6389 which removed
"personal cultivation" as a ground for the ejectment of a tenant cannot
be given retroactive effect in the absence of a statutory statement for
retroactivity; Tac-An v. CA, 129 SCRA 319, ruling that the repeal of the
old Administrative Code by RA 4252 could not be accorded retroactive
effect; Ballardo v. Borromeo, 161 SCRA 500, holding that RA
6389 should have only prospective application; (See also Bonifacio v.
Dizon, 177 SCRA 294 and Balatbat v. CA, 205 SCRA 419). ScAIaT
The prospectivity principle has also been made to apply to administrative
rulings and circulars, to wit: ABS-CBN Broadcasting Corporation v. CTA,
Oct. 12, 1981, 108 SCRA 142, holding that a circular or ruling of the
Commissioner of Internal Revenue may not be given retroactive effect
adversely to a taxpayer; Sanchez v. COMELEC, 193 SCRA 317, ruling
that Resolution No. 90-0590 of the Commission on Elections, which
directed the holding of recall proceedings, had no retroactive
application; Romualdez v. CSC, 197 SCRA 168, where it was ruled that
CSC Memorandum Circular No. 29, s. 1989 cannot be given
retrospective effect so as to entitle to permanent appointment an
employee whose temporary appointment had expired before the
Circular was issued.
 The principle of prospectivity has also been applied to judicial
decisions which, "although in themselves not laws, are nevertheless
evidence of what the laws mean, . . . (this being) the reason why under
Article 8 of the New Civil Code, 'Judicial decisions applying or
interpreting the laws or the Constitution shall form a part of the legal
system . . .'" 4
I believe that there is a greater demand to ward off the retroactive application of the Code of
Professional Responsibility for the Code is the source of penal liabilities against its infringers.
It is well entrenched that generally, penal laws or those laws which define offenses and
prescribe penalties for their violation operate prospectively. 5 The Constitution itself bars
the enactment of ex-post facto laws. 6 I do not think it necessary to flirt with the
constitutional issue whether the Code of Professional Responsibility operates as a penal
statute within the definition of an ex-post facto law, but I am satisfied with the general rules,
affirmed by jurisprudence, that abhor the retroactivity of statutes and regulations such as
the Code of Professional Responsibility.
Hence, to impute culpability on the part of Atty. Mendoza, it would be necessary to
ascertain whether his accession to represent the respondents violated any binding law or
regulation at the time of the engagement. It is but proper to frame the question in such
manner, for only then could it be ascertained whether Atty. Mendoza knew or should have
known that his professional representation of the respondents was illegal. It would also be
unfair to ascribe liability to any lawyer whom, at the time he/she was in government service,
was not guided by any definitive rule prescribing the possible subsequent restrictions on the
lawyer's professional activity as a consequence of the exercise of public office.
Ostensibly, Atty. Mendoza's actions violated Canon 36 of the Canons of Professional Ethics,
which some authorities deemed as a source of legal ethics prior to the Code of Professional
Responsibility. 7 Canon 36 states:
36. Retirement from judicial position or public employment
A lawyer should not accept employment as an advocate in any matter
upon the merits of which he has previously acted in a judicial
capacity.DcHSEa
A lawyer, having once held public office or having been in the public
employ should not, after his retirement, accept employment in
connection with any matter he has investigated or passed upon while
in such office or employ.
Canon 36 would apparently cover the allegations imputed to Atty. Mendoza. However, a
thorough review should first be examined on whether Canon 36 of the Canons of
Professional Ethics may be used as legal basis in resolving this case.
The Canons of Professional Ethics originated from the American Bar Association. 8 They
were adopted by the Philippine Bar Association as its own in 1917 and in 1946. 9 There is no
denying the high regard enjoyed by the Philippine Bar Association in the legal community in
51
its nearly one hundred years of existence. However, there is also no denying that the
Philippine Bar Association, a civic non-profit association, 10 is a private entity of limited
membership within the Philippine bar. The rules or canons it has adopted are per se binding
only on its members, and the penalties for violation of the same could affect only the status
or rights of the infringers as members of the association.
At the same time, reference has been had by this Court to the Canons of Professional Ethics
in deciding administrative cases against lawyers, especially prior to the adoption of the Code
of Professional Ethics. Hence, the belief by some commentators that the said Canons may
serve as a source of legal ethics in this country. However, I think it would be grave error to
declare that the Canons of Professional Ethics, on their own, serves as an indisputable
source of obligations and basis of penalties imposable upon members of the Philippine legal
profession. This would violate the long-established constitutional principle that it is the
Supreme Court which is tasked with the promulgation of rules governing the admission to
the practice of law, as well as the pleading, practice and procedure in all courts. 11 The task
of formulating ethical rules governing the practice of law in the Philippines could not have
been delegated to the Philippine Bar Association by the Supreme Court. Neither could such
rules as adopted by the private body be binding on the Supreme Court or the members of
the bar.
If provisions of the Canons of Professional Ethics of the Philippine Bar Association have
jurisprudentially been enforced, or acknowledged as basis for legal liability by the Supreme
Court, they may be recognized as a binding standard imposable upon members of the
bar, but not because said Canons or the Philippine Bar Association itself said so, but because
the Supreme Court said so. This is keeping in line with the entrenched rule, as evinced by
Article 8 of the Civil Code, which states that "judicial decisions applying or interpreting the
laws or the Constitution shall form a part of the legal system." HcTIDC
Thus, I would be willing to consider Canon 36 as binding on Atty. Mendoza when he deigned
to represent the respondents if at such time, this Court had expressly acknowledged Canon
36 as a rule or standard which deserves obeisance by members of the bar. After all, it would
only be through such process of judicial recognition that these guidelines adopted by a
private entity could be considered as a normative rule compulsory on all practitioners.
Unfortunately, no such case exists in Philippine jurisprudence.
It might be possible to concede that this principle embodied under Canon 36 or even as
stated in American case law, subsisted within that penumbra of ethical standards from
which the Court could have derived a jurisprudential rule had one been called for by a
particular case. However, it remains that none such was pronounced by this Court in
jurisprudence, and indeed the prohibition under Canon 36 was not prescribed by this Court
or by statute as a norm until the enactment of the Code of Professional Responsibility in 21
June 1988. Accordingly, when Atty. Mendoza agreed to represent the respondents, there
was no definitive binding rule proscribing him from such engagement or penalizing him for
such representation.
I am mindful that what the Court is called upon to decide is whether the Sandiganbayan
committed grave abuse of discretion, and not just mere error in fact or law, in denying the
motion to disqualify Atty. Mendoza. The absence of a definitive disqualificatory rule that
would have guided Atty. Mendoza when he undertook the questioned acts sufficiently
justifies the Sandiganbayan's denial of the motion.
We should not render insensate the concerns raised by the minority, arising as they do from
an understandable concern that the line dividing the professional activities and the
government services rendered by lawyers should remain distinct. Yet the majority likewise
demonstrates that there is no unanimity on prevalent legal thought on the matter, and a
healthy debate on the issue will result in no harm. Still, the due process dimension, as
highlighted by the absence of a definitive rule for which Atty. Mendoza could have been held
accountable, proves determinative to my mind. The Court is the enforcer of the
constitutional guarantees of due process to all persons, and my vote is but a consequence of
this primordial duty. IS
||| (Presidential Commission on Good Government v. Sandiganbayan, G.R. Nos. 151809-12,
[April 12, 2005], 495 PHIL 485-619)
[A.C. No. 4018. March 8, 2005.]
OMAR P. ALI, complainant, vs. ATTY. MOSIB A.
BUBONG, respondent.
DECISION
PER CURIAM p:
This is a verified petition for disbarment 1 filed against Atty. Mosib Ali Bubong for having
been found guilty of grave misconduct while holding the position of Register of Deeds of
Marawi City.
It appears that this disbarment proceeding is an off-shoot of the administrative case earlier
filed by complainant against respondent. In said case, which was initially investigated by the
Land Registration Authority (LRA), complainant charged respondent with illegal exaction;
indiscriminate issuance of Transfer Certificate of Title (TCT) No. T-2821 in the names of
Lawan Bauduli Datu, Mona Abdullah, 2 Ambobae Bauduli Datu, Matabae Bauduli Datu,
Mooamadali Bauduli Datu, and Amenola Bauduli Datu; and manipulating the criminal
complaint filed against Hadji Serad Bauduli Datu and others for violation of the Anti-
Squatting Law. It appears from the records that the Baudali Datus are relatives of
respondent. 3
The initial inquiry by the LRA was resolved in favor of respondent. The investigating officer,
Enrique Basa, absolved respondent of all the charges brought against him, thus: HaEcAC
It is crystal clear from the foregoing that complainant not only failed
to prove his case but that he has no case at all against respondent
52
Mosib Ali Bubong. Wherefore, premises considered, it is respectfully
recommended that the complaint against respondent be dismissed for
lack of merit and evidence. 4
The case was then forwarded to the Department of Justice for review and in a report dated
08 September 1992, then Secretary of Justice Franklin Drilon exonerated respondent of the
charges of illegal exaction and infidelity in the custody of documents. He, however, found
respondent guilty of grave misconduct for his imprudent issuance of TCT No. T-2821 and
manipulating the criminal case for violation of the Anti-Squatting Law instituted against
Hadji Serad Bauduli Datu and the latter's co-accused. As a result of this finding, Secretary
Drilon recommended respondent's dismissal from service.
On 26 February 1993, former President Fidel V. Ramos issued Administrative Order No.
41 adopting in toto the conclusion reached by Secretary Drilon and ordering respondent's
dismissal from government service. Respondent subsequently questioned said
administrative order before this Court through a petition for certiorari, mandamus, and
prohibition 5 claiming that the Office of the President did not have the authority and
jurisdiction to remove him from office. He also insisted that respondents 6 in that petition
violated the laws on security of tenure and that respondent Reynaldo V. Maulit, then the
administrator of the LRA committed a breach of Civil Service Rules when he abdicated his
authority to resolve the administrative complaint against him (herein respondent).
In a Resolution dated 15 September 1994, we dismissed the petition "for failure on the part
of petitioner to sufficiently show that public respondent committed grave abuse of
discretion in issuing the questioned order." 7 Respondent thereafter filed a motion for
reconsideration which was denied with finality in our Resolution of 15 November
1994. AcCTaD
On the basis of the outcome of the administrative case, complainant is now before us,
seeking the disbarment of respondent. Complainant claims that it has become obvious that
respondent had "proven himself unfit to be further entrusted with the duties of an
attorney" 8 and that he poses a "serious threat to the integrity of the legal profession." 9
In his Comment, respondent maintains that there was nothing irregular with his issuance of
TCT No. T-2821 in the name of the Bauduli Datus.According to him, both law 10 and
jurisprudence support his stance that it was his ministerial duty, as the Register of Deeds of
Marawi City, to act on applications for land registration on the basis only of the documents
presented by the applicants. In the case of the Bauduli Datus, nothing in the documents they
presented to his office warranted suspicion, hence, he was duty-bound to issue TCT No. T-
2821 in their favor.
Respondent also insists that he had nothing to do with the dismissal of criminal complaint
for violation of the Anti-Squatting Law allegedly committed by Hadji Serad Abdullah and
the latter's co-defendants. Respondent explains that his participation in said case was a
result of the two subpoenas duces tecum issued by the investigating prosecutor who
required him to produce the various land titles involved in said dispute. He further claims
that the dismissal of said criminal case by the Secretary of Justice was based solely on the
evidence presented by the parties. Complainant's allegation, therefore, that he influenced
the outcome of the case is totally unjustified.
Through a resolution dated 26 June 1995, 11 this Court referred this matter to the Integrated
Bar of the Philippines (IBP) for investigation, report, and recommendation. Acting on this
resolution, the IBP commenced the investigation of this disbarment suit. On 23 February
1996, Commissioner Victor C. Fernandez issued the following order relative to the transfer
of venue of this case. The pertinent portion of this order provides: HScAEC
ORDER
When this case was called for hearing, both complainant and
respondent appeared.
The undersigned Commissioner asked them if they are willing to have
the reception of evidence vis-à-vis this case be done in Marawi City,
Lanao del Sur before the president of the local IBP Chapter. Both
parties agreed. Accordingly, transmit the records of this case to the
Director for Bar Discipline for appropriate action. 12
On 30 March 1996, the IBP Board of Governors passed a resolution approving Commissioner
Fernandez's recommendation for the transfer of venue of this administrative case and
directed the Western Mindanao Region governor to designate the local IBP chapter
concerned to conduct the investigation, report, and recommendation. 13 The IBP Resolution
states:
Resolution No. XII-96-153
Adm. Case No. 4018
Omar P. Ali vs. Atty. Mosib A. Bubong
RESOLVED TO APPROVE the recommendation of Commissioner
Victor C. Fernandez for the Transfer of Venue of the above-entitled
case and direct the Western Mindanao Region Governor George C.
Jabido to designate the local IBP Chapter concerned to conduct the
investigation, report and recommendation.
Pursuant to this resolution, Atty. Benjamin B. Bernardino, Director for Bar Discipline, wrote
a letter dated 23 October 1996 addressed to Governor George C. Jabido, President of IBP
Cotabato Chapter requesting the latter to receive the evidence in this case and to submit his
recommendation and recommendation as directed by the IBP Board of Governors. 14
In an undated Report and Recommendation, the IBP Cotabato Chapter 15 informed the IBP
Commission on Bar Discipline (CBD) that the investigating panel 16 had sent notices to both
complainant and respondent for a series of hearings but respondent consistently ignored
said notices. The IBP Cotabato Chapter concluded its report by recommending that
respondent be suspended from the practice of law for five years.DTSIEc
On 01 July 1998, respondent filed a motion dated 30 June 1998 praying for the transmittal of
the records of this case to the Marawi City-Lanao del Sur Chapter of the IBP pursuant to
Resolution No. XII-96-153 as well as Commissioner Fernandez's Order dated 23 February
1996.
53
Commissioner Fernandez thereafter ordered the investigating panel of IBP Cotabato
Chapter to comment on respondent's motion. 17 Complying with this directive, the panel
expressed no opposition to respondent's motion for the transmittal of the records of this
case to IBP Marawi City. 18On 25 September 1998, Commissioner Fernandez ordered the
referral of this case to IBP Marawi City for the reception of respondent's evidence.19 This
order of referral, however, was set aside by the IBP Board of Governors in its Resolution No.
XIII-98-268 issued on 4 December 1998. Said resolution provides:
RESOLVED to DENY the ORDER of Commissioner Victor C. Fernandez
for the transmittal of the case records of the above-entitled case to
Marawi City, rather he is directed to re-evaluate the recommendation
submitted by Cotabato Chapter and report the same to the Board of
Governors. 20
Prior to the issuance of Resolution No. XIII-98-268, respondent filed on 08 October 1998 a
motion praying that the recommendation of the IBP Cotabato Chapter be stricken from the
records. 21 Respondent insists that the investigating panel constituted by said IBP chapter
did not have the authority to conduct the investigation of this case since IBP Resolution XII-
96-153 and Commissioner Fernandez's Order of 23 February 1996 clearly vested IBP Marawi
City with the power to investigate this case. Moreover, he claims that he was never notified
of any hearing by the investigating panel of IBP Cotabato Chapter thereby depriving him of
his right to due process.
Complainant opposed 22 this motion arguing that respondent is guilty of laches. According
to complainant, the report and recommendation submitted by IBP Cotabato Chapter
expressly states that respondent was duly notified of the hearings conducted by the
investigating panel yet despite these, respondent did nothing to defend himself. He also
claims that respondent did not even bother to submit his position paper when he was
directed to do so. Further, as respondent is a member of IBP Marawi City Chapter,
complainant maintains that the presence of bias in favor of respondent is possible. Finally,
complainant contends that to refer the matter to IBP Marawi City would only entail a
duplication of the process which had already been completed by IBP Cotabato
Chapter. iatdcjur
In an Order dated 15 October 1999, 23 Commissioner Fernandez directed IBP Cotabato
Chapter to submit proofs that notices for the hearings conducted by the investigating panel
as well as for the submission of the position paper were duly received by respondent. On 21
February 2000, Atty. Jabido, a member of the IBP Cotabato Chapter investigating panel,
furnished Commissioner Fernandez with a copy of the panel's order dated 4 August
1997. 24 Attached to said order was Registry Receipt No. 3663 issued by the local post office.
On the lower portion of the registry receipt was a handwritten notation reading "Atty. Mosib
A. Bubong." SHIcDT
On 20 April 2001, Commissioner Fernandez ordered Atty. Pedro S. Castillo, Chairman of the
Commission on Bar Discipline for Mindanao, to reevaluate the report and recommendation
submitted by IBP Cotabato Chapter. This directive had the approval of the IBP Board of
Governors through its Resolution No. XIV-2001-271 issued on 30 June 2001, to wit:
 RESOLVED to APPROVE the recommendation of Director Victor C.
Fernandez for the Transfer of Venue of the above-entitled case and
direct the CBD Mindanao to conduct an investigation, re-evaluation,
report and recommendation within sixty (60) days from receipt of
notice. 25
Meanwhile, Bainar A. Ali, informed the CBD Mindanao of the death of her father, Omar P.
Ali, complainant in this case. According to her, her father passed away on 12 June 2002 and
that in interest of peace and Islamic brotherhood, she was requesting the withdrawal of this
case. 26
Subsequently, respondent filed another motion, this time, asking the IBP CBD to direct the
chairman of the Commission on Bar Discipline for Mindanao to designate and authorize the
IBP Marawi City-Lanao del Sur Chapter to conduct an investigation of this case. 27 This
motion was effectively denied by Atty. Pedro S. Castillo in an Order dated 19 July
2002. 28 According to Atty. Castillo —
After going over the voluminous records of the case, with special
attention made on the report of the IBP Cotabato City Chapter, the
Complaint and the Counter-Affidavit of respondent, the undersigned
sees no need for any further investigation, to be able to make a re-
evaluation and recommendation on the Report of the IBP Chapter of
Cotabato City.
WHEREFORE, the Motion to authorize the IBP-Chapter of Marawi
City, Zamboanga del Norte is hereby denied. The undersigned will
submit his Report to the Commission on Bar Discipline, IBP National
Office within ten (10) days from date hereof.
In his Report and Recommendation, Atty. Castillo adopted in toto the findings and
conclusion of IBP Cotabato Chapter ratiocinating as follows:
The Complaint for Disbarment is primarily based on the Decision by
the Office of the President in Administrative Case No. 41 dated
February 26, 1993, wherein herein respondent was found guilty of
Grave Misconduct in:
a) The imprudent issuance of T.C.T. No. T-2821; and,
b) Manipulating the criminal complaint for violation
of the anti-squatting law. EaHIDC
And penalized with dismissal from the service, as Register of Deeds of
Marawi City. In the Comment filed by respondent in the instant
Administrative Case, his defense is good faith in the issuance of T.C.T.
No. T-2821 and a denial of the charge of manipulating the criminal
complaint for violation of the anti-squatting law, which by the way,
was filed against respondent's relatives. Going over the Decision of
the Office of the President in Administrative Case No. 41, the
54
undersigned finds substantial evidence were taken into account and
fully explained, before the Decision therein was rendered. In other
words, the finding of Grave Misconduct on the part of respondent by
the Office of the President was fully supported by evidence and as
such carries a very strong weight in considering the professional
misconduct of respondent in the present case.
In the light of the foregoing, the undersigned sees no reason for
amending or disturbing the Report and Recommendation of the IBP
Chapter of South Cotabato. 29
In a resolution passed on 19 October 2002, the IBP Board of Governors adopted and
approved, with modification, the afore-quoted Report and Recommendation of Atty.
Castillo. The modification pertained solely to the period of suspension from the practice of
law which should be imposed on respondent — whereas Atty. Castillo concurred in the
earlier recommendation of IBP Cotabato Chapter for a five-year suspension, the IBP Board
of Governors found a two-year suspension to be proper.
On 17 January 2003, respondent filed a Motion for Reconsideration with the IBP which the
latter denied as by that time, the matter had already been endorsed to this Court. 30
The issue thus posed for this Court's resolution is whether respondent may be disbarred for
grave misconduct committed while he was in the employ of the government. We resolve
this question in the affirmative.
The Code of Professional Responsibility does not cease to apply to a lawyer simply because
he has joined the government service. In fact, by the express provision of Canon 6 thereof,
the rules governing the conduct of lawyers "shall apply to lawyers in government service in
the discharge of their official tasks." Thus, where a lawyer's misconduct as a government
official is of such nature as to affect his qualification as a lawyer or to show moral
delinquency, then he may be disciplined as a member of the bar on such
grounds. 31 Although the general rule is that a lawyer who holds a government office may
not be disciplined as a member of the bar for infractions he committed as a government
official, he may, however, be disciplined as a lawyer if his misconduct constitutes a violation
of his oath as a member of the legal profession. 32
Indeed, in the case of Collantes v. Atty. Vicente C. Renomeron, 33 we ordered the disbarment
of respondent on the ground of his dismissal from government service because of grave
misconduct. Quoting the late Chief Justice Fred Ruiz Castro, we declared —
[A] person takes an oath when he is admitted to the bar which is
designed to impress upon him his responsibilities. He thereby
becomes an "officer of the court" on whose shoulders rests the grave
responsibility of assisting the courts in the proper, fair, speedy and
efficient administration of justice. As an officer of the court he is
subject to a rigid discipline that demands that in his every exertion the
only criterion be that truth and justice triumph. This discipline is what
has given the law profession its nobility, its prestige, its exalted place.
From a lawyer, to paraphrase Justice Felix Frankfurter, are expected
those qualities of truth-speaking, a high sense of honor, full candor,
 intellectual honesty, and the strictest observance of fiduciary
responsibility — all of which, throughout the centuries, have been
compendiously described as moral character. 34
Similarly, in Atty. Julito D. Vitriolo, et al. v. Atty. Felina Dasig, 35 this Court found sufficient
basis to disbar respondent therein for gross misconduct perpetrated while she was the
Officer-in-Charge of Legal Services of the Commission on Higher Education. As we had
explained in that case —
. . . [A] lawyer in public office is expected not only to refrain from any
act or omission which might tend to lessen the trust and confidence of
the citizenry in government, she must also uphold the dignity of the
legal profession at all times and observe a high standard of honesty
and fair dealing. Otherwise said, a lawyer in government service is a
keeper of the public faith and is burdened with high degree of social
responsibility, perhaps higher than her brethren in private
practice. 36 (Emphasis supplied) DAHCaI
In the case at bar, respondent's grave misconduct, as established by the Office of the
President and subsequently affirmed by this Court, deals with his qualification as a lawyer.
By taking advantage of his office as the Register of Deeds of Marawi City and employing his
knowledge of the rules governing land registration for the benefit of his relatives,
respondent had clearly demonstrated his unfitness not only to perform the functions of a
civil servant but also to retain his membership in the bar. Rule 6.02 of the Code of
Professional Responsibility is explicit on this matter. It reads:
Rule 6.02 — A lawyer in the government service shall not use his public
position to promote or advance his private interests, nor allow the
latter to interfere with his public duties.
Respondent's conduct manifestly undermined the people's confidence in the public
office he used to occupy and cast doubt on the integrity of the legal profession. The ill-
conceived use of his knowledge of the intricacies of the law calls for nothing less than
the withdrawal of his privilege to practice law.
As for the letter sent by Bainar Ali, the deceased complainant's daughter, requesting for the
withdrawal of this case, we cannot possibly favorably act on the same as proceedings of this
nature cannot be "interrupted or terminated by reason of desistance, settlement,
compromise, restitution, withdrawal of the charges or failure of the complainant to
prosecute the same." 37 As we have previously explained in the case of Irene Rayos-Ombac v.
Atty. Orlando A. Rayos: 38
. . . A case of suspension or disbarment may proceed regardless of
interest or lack of interest of the complainant. What matters is
whether, on the basis of the facts borne out by the record, the charge
of deceit and grossly immoral conduct has been duly proven. This rule
is premised on the nature of disciplinary proceedings. 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
55
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
administrative of justice. 39
WHEREFORE, respondent Atty. Mosib A. Bubong is hereby DISBARRED and his name is
ORDERED STRICKEN from the Roll of Attorneys. Let a copy of this Decision be entered in
the respondent's record as a member of the Bar, and notice of the same be served on the
Integrated Bar of the Philippines, and on the Office of the Court Administrator for circulation
to all courts in the country. TcSAaH
SO ORDERED.
||| (Ali v. Bubong, A.C. No. 4018, [March 8, 2005], 493 PHIL 172-185)
[A.C. No. 7332. June 18, 2013.]
EDUARDO A. ABELLA, complainant, vs. RICARDO G. BARRIOS,
JR., respondent.
DECISION
PERLAS-BERNABE, J p:
For the Court's resolution is an administrative complaint 1 for disbarment filed by Eduardo
A. Abella (complainant) against Ricardo G. Barrios, Jr. (respondent) based on the latter's
violation of Rules 1.01 and 1.03, Canon 1, and Rule 6.02, Canon 6 of the Code of Professional
Responsibility(Code).
The Facts
On January 21, 1999, complainant filed an illegal dismissal case against Philippine Telegraph
and Telephone Corporation (PT&T) before the Cebu City Regional Arbitration Branch (RAB)
of the National Labor Relations Commission (NLRC), docketed as RAB-VII-01-0128-99.
Finding merit in the complaint, Labor Arbiter (LA) Ernesto F. Carreon, through a Decision
dated May 13, 1999, 2 ordered PT&T to pay complainant P113,100.00 as separation pay and
P73,608.00 as backwages. Dissatisfied, PT&T appealed the LA's Decision to the NLRC.
In a Decision dated September 12, 2001, 3 the NLRC set aside LA Carreon's ruling and
instead ordered PT&T to reinstate complainant to his former position and pay him
backwages, as well as 13th month pay and service incentive leave pay, including moral
damages and attorney's fees. On reconsideration, it modified the amounts of the aforesaid
monetary awards but still maintained that complainant was illegally
dismissed. 4Consequently, PT&T filed a petition for certiorari before the Court of Appeals
(CA).
In a Decision dated September 18, 2003 (CA Decision), 5 the CA affirmed the NLRC's ruling
with modification, ordering PT&T to pay complainant separation pay in lieu of
reinstatement. Complainant moved for partial reconsideration, claiming that all his years of
service were not taken into account in the computation of his separation pay and
backwages. The CA granted the motion and thus, remanded the case to the LA for the same
purpose. 6 On July 19, 2004, the CA Decision became final and executory. 7
Complainant alleged that he filed a Motion for Issuance of a Writ of Execution before the
Cebu City RAB on October 25, 2004. At this point, the case had already been assigned to the
new LA, herein respondent. After the lapse of five (5) months, complainant's motion
remained unacted, prompting him to file a Second Motion for Execution on March 3, 2005.
Eight (8) months thereafter, still, there was no action on complainant's motion. Thus, on
November 4, 2005, complainant proceeded to respondent's office to personally follow-up
the matter. In the process, complainant and respondent exchanged notes on how much the
former's monetary awards should be; however, their computations differed. To
complainant's surprise, respondent told him that the matter could be "easily fixed" and
thereafter, asked "how much is mine?" Despite his shock, complainant offered the amount of
P20,000.00, but respondent replied: "make it P30,000.00." By force of circumstance,
complainant acceded on the condition that respondent would have to wait until he had
already collected from PT&T. Before complainant could leave, respondent asked him for
some cash, compelling him to give the latter P1,500.00. 8
On November 7, 2005, respondent issued a writ of execution, 9 directing the sheriff to
proceed to the premises of PT&T and collect the amount of P1,470,082.60, inclusive of
execution and deposit fees. PT&T moved to quash 10 the said writ which was, however,
denied through an Order dated November 22, 2005. 11 Unfazed, PT&T filed a Supplemental
Motion to Quash dated December 2, 2005, 12 the contents of which were virtually identical
to the one respondent earlier denied. During the hearing of the said supplemental motion on
December 9, 2005, respondent rendered an Order 13 in open court, recalling the first writ of
execution he issued on November 7, 2005. He confirmed the December 9, 2005 Order
through a Certification dated December 14, 2005 14 and eventually, issued a new writ of
execution 15 wherein complainant's monetary awards were reduced from P1,470,082.60 to
P114,585.00, inclusive of execution and deposit fees.
Aggrieved, complainant filed on December 16, 2005 a Petition for Injunction before the
NLRC. In a Resolution dated March 14, 2006, 16 the NLRC annulled respondent's December
9, 2005 Order, stating that respondent had no authority to modify the CA Decision which
was already final and executory. 17
Aside from instituting a criminal case before the Office of the Ombudsman, 18 complainant
filed the instant disbarment complaint 19 before the Integrated Bar of the Philippines (IBP),
56
averring that respondent violated the Code of Professional Responsibility for (a) soliciting
money from complainant in exchange for a favorable resolution; and (b) issuing a wrong
decision to give benefit and advantage to PT&T.
In his Comment, 20 respondent denied the abovementioned accusations, maintaining that
he merely implemented the CA Decision which did not provide for the payment of
backwages. He also claimed that he never demanded a single centavo from complainant as
it was in fact the latter who offered him the amount of P50,000.00.
The Recommendation and Action of the IBP
In the Report and Recommendation dated May 30, 2008, 21 IBP Investigating Commissioner
Rico A. Limpingco (Commissioner Limpingco) found that respondent tried to twist the
meaning of the CA Decision out of all logical, reasonable and grammatical context in order
to favor PT&T. 22 He further observed that the confluence of events in this case shows that
respondent deliberately left complainant's efforts to execute the CA Decision unacted upon
until the latter agreed to give him a portion of the monetary award thereof.
Notwithstanding their agreement, immoral and illegal as it was, respondent later went as far
as turning the proceedings into some bidding war which eventually resulted into a resolution
in favor of PT&T. In this regard, respondent was found to be guilty of gross immorality and
therefore, Commissioner Limpingco recommended that he be disbarred. 23
On July 17, 2008, the IBP Board of Governors passed Resolution No. XVIII-2008-345 (IBP
Resolution), 24 adopting and approving Commissioner Limpingco's recommendation, to
wit:
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 for Respondent's violation of the provisions of the Code of
Professional Responsibility, the Anti-Graft and Corrupt Practices Act
and the Code of Ethical Standards for Public Officials and Employees,
Atty. Ricardo G. Barrios, Jr. is hereby DISBARRED. 25
Issue
The sole issue in this case is whether respondent is guilty of gross immorality for his violation
of Rules 1.01 and 1.03, Canon 1, and Rule 6.02, Canon 6 of the Code.
The Court's Ruling
The Court concurs with the findings and recommendation of Commissioner Limpingco as
adopted by the IBP Board of Governors.
The pertinent provisions of the Code provide:
CANON 1 — A LAWYER SHALL UPHOLD THE CONSTITUTION,
OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR
LAW AND LEGAL PROCESSES.
 Rule 1.01 — A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct.
xxx xxx xxx
Rule 1.03 — A lawyer shall not, for any corrupt motive or interest,
encourage any suit or proceeding or delay any man's cause.
CANON 6 — THESE CANONS SHALL APPLY TO LAWYERS IN
GOVERNMENT SERVICE IN THE DISCHARGE OF THEIR OFFICIAL
TASKS.
xxx xxx xxx
Rule 6.02 — A lawyer in the government service shall not use his
public position to promote or advance his private interests, nor
allow the latter to interfere with his public duties.
The above-cited rules, which are contained under Chapter 1 of the Code, delineate the
lawyer's responsibility to society: Rule 1.01 engraves the overriding prohibition against
lawyers from engaging in any unlawful, dishonest, immoral and deceitful conduct; Rule 1.03
proscribes lawyers from encouraging any suit or proceeding or delaying any man's cause for
any corrupt motive or interest; meanwhile, Rule 6.02 is particularly directed to lawyers in
government service, enjoining them from using one's public position to: (1) promote private
interests; (2) advance private interests; or (3) allow private interests to interfere with public
duties. 26 It is well to note that a lawyer who holds a government office may be disciplined
as a member of the Bar only when his misconduct also constitutes a violation of his oath as a
lawyer. 27
In this light, a lawyer's compliance with and observance of the above-mentioned rules
should be taken into consideration in determining his moral fitness to continue in the
practice of law.
To note, "the possession of good moral character is both a condition precedent and a
continuing requirement to warrant admission to the Bar and to retain membership in the
legal profession." 28 This proceeds from the lawyer's duty to observe the highest degree of
morality in order to safeguard the Bar's integrity. 29 Consequently, any errant behavior on
the part of a lawyer, be it in the lawyer's public or private activities, which tends to show
deficiency in moral character, honesty, probity or good demeanor, is sufficient to warrant
suspension or disbarment. 30
In this case, records show that respondent was merely tasked to re-compute the monetary
awards due to the complainant who sought to execute the CA Decision which had already
been final and executory. When complainant moved for execution — twice at that —
respondent slept on the same for more than a year. It was only when complainant paid
respondent a personal visit on November 4, 2005 that the latter speedily issued a writ of
execution three (3) days after, or on November 7, 2005. Based on these incidents, the Court
observes that the sudden dispatch in respondent's action soon after the aforesaid visit casts
serious doubt on the legitimacy of his denial, i.e., that he did not extort money from the
complainant.
57
The incredulity of respondent's claims is further bolstered by his complete turnaround on
the quashal of the November 7, 2005 writ of execution.
To elucidate, records disclose that respondent denied PT&T's initial motion to quash
through an Order dated November 22, 2005 but later reversed such order in open court on
the basis of PT&T's supplemental motion to quash which was a mere rehash of the first
motion that was earlier denied. As a result, respondent recalled his earlier orders and issued
a new writ of execution, reducing complainant's monetary awards from P1,470,082.60 to
P114,585.00, inclusive of execution and deposit fees.
To justify the same, respondent contends that he was merely implementing the CA Decision
which did not provide for the payment of backwages. A plain and cursory reading, however,
of the said decision belies the truthfulness of the foregoing assertion. On point, the
dispositive portion of the CA Decision reads:
WHEREFORE, the petition is PARTIALLY GRANTED. The decision of
public respondent National Labor Relations Commission dated
September 12, 2001 and October 8, 2002 are AFFIRMED with
the MODIFICATION, ordering petitioner PT&T to pay private
respondent Eduardo A. Abella separation pay (as computed by the
Labor Arbiter) in lieu of reinstatement. 31
Noticeably, the CA affirmed with modification the NLRC's rulings dated September 12, 2001
and October 8, 2002 which both explicitly awarded backwages and other unpaid
monetary benefits to complainant. 32 The only modification was with respect to the order
of reinstatement as pronounced in both NLRC's rulings which was changed by the CA to
separation pay in view of the strained relations between the parties as well as the
supervening removal of complainant's previous position. 33 In other words, the portion of
the NLRC's rulings which awarded backwages and other monetary benefits subsisted and
the modification pertained only to the CA's award of separation pay in lieu of the NLRC's
previous order of reinstatement. This conclusion, palpable as it is, can be easily deduced
from the records.
Lamentably, respondent tried to distort the findings of the CA by quoting portions of its
decision, propounding that the CA's award of separation pay denied complainant's
entitlement to any backwages and other consequential benefits altogether. In his Verified
Motion for Reconsideration of the IBP Resolution, 34 respondent stated:
From the above quoted final conclusions, the Court is very clear and
categorical in directing PT&T to pay complainant his separation pay
ONLY in lieu of reinstatement. Clearly, the Court did not direct the
PT&T to pay him his backwages, and other consequential benefits that
were directed by the NLRC because he could no longer be reinstated
to his previous position on the ground of strained relationship and his
previous position had already gone, and no equivalent position that
the PT&T could offer. . . . .
Fundamental in the realm of labor law is the rule that backwages are separate and distinct
from separation pay in lieu of reinstatement and are awarded conjunctively to an employee
who has been illegally dismissed. 35 There is nothing in the records that could confound the
finding that complainant was illegally dismissed as LA Carreon, the NLRC, and the CA were
all unanimous in decreeing the same. Being a labor arbiter, it is hardly believable that
respondent could overlook the fact that complainant was entitled to backwages in view of
the standing pronouncement of illegal dismissal. In this regard, respondent's defense
deserves scant consideration.
Therefore, absent any cogent basis to rule otherwise, the Court gives credence and upholds
Commissioner Limpingco's and the IBP Board of Governor's pronouncement of respondent's
gross immorality. Likewise, the Court observes that his infractions constitute gross
misconduct.
Jurisprudence illumines that immoral conduct involves acts that are willful, flagrant, or
shameless, and that show a moral indifference to the opinion of the upright and respectable
members of the community. 36 It treads the line of grossness when it is so corrupt as to
constitute a criminal act, or so unprincipled as to be reprehensible to a high degree, or when
committed under such scandalous or revolting circumstances as to shock the community's
sense of decency. 37 On the other hand, gross misconduct constitutes "improper or wrong
conduct, the transgression of some established and definite rule of action, a forbidden act, a
dereliction of duty, willful in character, and implies a wrongful intent and not mere error of
judgment." 38
In this relation, Section 27, Rule 138 of the Rules of Court states that when a lawyer is found
guilty of gross immoral conduct or gross misconduct, he may be suspended or disbarred:
SEC. 27. Attorneys removed or suspended by Supreme Court on what
grounds. — A member of the bar may be removed or suspended
from his office as attorney by the Supreme Court for any deceit,
malpractice, or other gross misconduct in such office,grossly
immoral conduct, or by reason of his conviction of a crime involving
moral turpitude, or for any violation of the oath which he is required
to take before the admission to practice, or for a willfull
disobedience of any lawful order of a superior court, or for corruptly
or willful appearing as an attorney for a party to a case without
authority so to do. The practice of soliciting cases at law for the
purpose of gain, either personally or through paid agents or brokers,
constitutes malpractice. (Emphasis and underscoring supplied)
Thus, as respondent's violations clearly constitute gross immoral conduct and gross
misconduct, his disbarment should come as a matter of course. However, the Court takes
judicial notice of the fact that he had already been disbarred in a previous administrative
case, entitled Sps. Rafols, Jr. v. Ricardo G. Barrios, Jr., 39 which therefore precludes the Court
from duplicitously decreeing the same. In view of the foregoing, the Court deems it proper
to, instead, impose a fine in the amount of P40,000.00 40 in order to penalize respondent's
transgressions as discussed herein and to equally deter the commission of the same or
similar acts in the future.
As a final word, the Court staunchly reiterates the principle that the practice of law is a
privilege 41 accorded only to those who continue to meet its exacting qualifications. Verily,
for all the prestige and opportunity which the profession brings lies the greater responsibility
58
to uphold its integrity and honor. Towards this purpose, it is quintessential that its members
continuously and unwaveringly exhibit, preserve and protect moral uprightness in their
activities, both in their legal practice as well as in their personal lives. Truth be told, the Bar
holds no place for the deceitful, immoral and corrupt.
WHEREFORE, respondent Ricardo G. Barrios, Jr. is hereby found GUILTY of gross immoral
conduct and gross misconduct in violation of Rules 1.01 and 1.03, Canon 1, and Rule 6.02,
Canon 6 of the Code of Professional Responsibility. Accordingly, he is ordered to pay
a FINE of P40,000.00.
Let a copy of this Decision be furnished the Office of the Bar Confidant, the Integrated Bar of
the Philippines, and the Office of the Court Administrator for circulation to all the courts.
SO ORDERED.
||| (Abella v. Barrios, Jr., A.C. No. 7332, [June 18, 2013])
[A.C. No. 6622. July 10, 2012.]
MANUEL G. VILLATUYA, complainant, vs. ATTY. BEDE S.
TABALINGCOS, respondent.
DECISION
PER CURIAM p:
In this Complaint for disbarment filed on 06 December 2004 with the Office of the Bar
Confidant, complainant Manuel G. Villatuya (complainant) charges Atty. Bede S.
Tabalingcos (respondent) with unlawful solicitation of cases, violation of the Code of
Professional Responsibility for nonpayment of fees to complainant, and gross immorality for
marrying two other women while respondent's first marriage was subsisting. 1
In a Resolution 2 dated 26 January 2005, the Second Division of this Court required
respondent to file a Comment, which he did on 21 March 2005. 3 The Complaint was
referred to the Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation within sixty (60) days from receipt of the record. 4
On 23 June 2005, the Commission on Bar Discipline of the IBP (Commission) issued a
Notice 5 setting the mandatory conference of the administrative case on 05 July 2005.
During the conference, complainant appeared, accompanied by his counsel and respondent.
They submitted for resolution three issues to be resolved by the Commission as follows:
1. Whether respondent violated the Code of Professional
Responsibility by nonpayment of fees to complainant,
 2. Whether respondent violated the rule against unlawful solicitation,
and
3. Whether respondent is guilty of gross immoral conduct for having
married thrice. 6 IcaEDC
The Commission ordered the parties to submit their respective verified Position Papers.
Respondent filed his verified Position Paper, 7 on 15 July 2005 while complainant submitted
his on 01 August 2005. 8
Complainant's Accusations
Complainant averred that on February 2002, he was employed by respondent as a financial
consultant to assist the latter on technical and financial matters in the latter's numerous
petitions for corporate rehabilitation filed with different courts. Complainant claimed that
they had a verbal agreement whereby he would be entitled to P50,000 for every Stay Order
issued by the court in the cases they would handle, in addition to ten percent (10%) of the
fees paid by their clients. He alleged that, from February to December 2002, respondent was
able to rake in millions of pesos from the corporate rehabilitation cases they were working
on together. Complainant also claimed that he was entitled to the amount of P900,000 for
the 18 Stay Orders issued by the courts as a result of his work with respondent, and a total of
P4,539,000 from the fees paid by their clients. 9 Complainant appended to his Complaint
several annexes supporting the computation of the fees he believes are due him.
Complainant alleged that respondent engaged in unlawful solicitation of cases in violation of
Section 27 of the Code of Professional Responsibility. Allegedly respondent set up two
financial consultancy firms, Jesi and Jane Management, Inc. and Christmel Business Link,
Inc., and used them as fronts to advertise his legal services and solicit cases. Complainant
supported his allegations by attaching to his Position Paper the Articles of Incorporation of
Jesi and Jane, 10 letter-proposals to clients signed by respondent on various dates 11 and
proofs of payment made to the latter by their clients. 12
On the third charge of gross immorality, complainant accused respondent of committing
two counts of bigamy for having married two other women while his first marriage was
subsisting. He submitted a Certification dated 13 July 2005 issued by the Office of the Civil
Registrar General-National Statistics Office (NSO) certifying that Bede S. Tabalingcos,
herein respondent, contracted marriage thrice: first, on 15 July 1980 with Pilar M. Lozano,
which took place in Dasmariñas, Cavite; the second time on 28 September 1987 with Ma.
Rowena Garcia Piñon in the City of Manila; and the third on 07 September 1989 with Mary
Jane Elgincolin Paraiso in Ermita, Manila. 13 cHDEaC
Respondent's Defense
In his defense, respondent denied the charges against him. He asserted that complainant
was not an employee of his law firm — Tabalingcos and Associates Law Office 14 — but of
Jesi and Jane Management, Inc., where the former is a major stockholder. 15 Respondent
alleged that complainant was unprofessional and incompetent in performing his job as a
financial consultant, resulting in the latter's dismissal of many rehabilitation plans they
presented in their court cases. 16 Respondent also alleged that there was no verbal
agreement between them regarding the payment of fees and the sharing of professional
59
fees paid by his clients. He proffered documents showing that the salary of complainant had
been paid. 17
As to the charge of unlawful solicitation, respondent denied committing any. He contended
that his law firm had an agreement with Jesi and Jane Management, Inc., whereby the firm
would handle the legal aspect of the corporate rehabilitation case; and that the latter would
attend to the financial aspect of the case' such as the preparation of the rehabilitation plans
to be presented in court. To support this contention, respondent attached to his Position
Paper a Joint Venture Agreement dated 10 December 2005 entered into by Tabalingcos and
Associates Law Offices and Jesi and Jane Management, Inc.; 18 and an Affidavit executed by
Leoncio Balena, Vice-President for Operations of the said company. 19
On the charge of gross immorality, respondent assailed the Affidavit submitted by William
Genesis, a dismissed messenger of Jesi and Jane Management, Inc., as having no probative
value, since it had been retracted by the affiant himself. 20 Respondent did not specifically
address the allegations regarding his alleged bigamous marriages with two other women.
On 09 January 2006, complainant filed a Motion to Admit Copies of 3 Marriage
Contracts. 21 To the said Motion, he attached the certified true copies of the Marriage
Contracts referred to in the Certification issued by the NSO. 22 The appended Marriage
Contracts matched the dates, places and names of the contracting parties indicated in the
earlier submitted NSO Certification of the three marriages entered into by respondent. The
first marriage contract submitted was a marriage that took place between respondent and
Pilar M. Lozano in Dasmariñas, Cavite, on 15 July 1980. 23 The second marriage contract was
between respondent and Ma. Rowena G. Piñon, and it took place at the Metropolitan Trial
Court Compound of Manila on 28 September 1987. 24 The third Marriage Contract referred
to a marriage between respondent and Mary Jane E. Paraiso, and it took place on 7
September 1989 in Ermita, Manila. In the second and third Marriage Contracts, respondent
was described as single under the entry for civil status. TcHEaI
On 16 January 2006, respondent submitted his Opposition to the Motion to Admit filed by
complainant, claiming that the document was not marked during the mandatory conference
or submitted during the hearing of the case. 25 Thus, respondent was supposedly deprived
of the opportunity to controvert those documents. 26 He disclosed that criminal cases for
bigamy were filed against him by the complainant before the Office of the City Prosecutor
of Manila. Respondent further informed the Commission that he had filed a Petition to
Declare Null and Void the Marriage Contract with Rowena Piñon at the Regional Trial Court
(RTC) of Biñan, Laguna, where it was docketed as Civil Case No. B-3270. 27 He also filed
another Petition for Declaration of Nullity of Marriage Contract with Pilar Lozano at the
RTC-Calamba, where it was docketed as Civil Case No. B-3271. 28 In both petitions, he
claimed that he had recently discovered that there were Marriage Contracts in the records of
the NSO bearing his name and allegedly executed with Rowena Piñon and Pilar Lozano on
different occasions. He prayed for their annulment, because they were purportedly null and
void.
On 17 September 2007, in view of its reorganization, the Commission scheduled a
clarificatory hearing on 20 November 2007. 29 While complainant manifested to the
Commission that he would not attend the hearing, 30 respondent manifested his willingness
to attend and moved for the suspension of the resolution of the administrative case against
the latter. Respondent cited two Petitions he had filed with the RTC, Laguna, seeking the
nullification of the Marriage Contracts he discovered to be bearing his name. 31
On 10 November 2007, complainant submitted to the Commission duplicate original copies
of two (2) Informations filed with the RTC of Manila against respondent, entitled "People of
the Philippines vs. Atty. Bede S. Tabalingcos." 32 The first criminal case, docketed as Criminal
Case No. 07-257125, was for bigamy for the marriage contracted by respondent with Ma.
Rowena Garcia Piñon while his marriage with Pilar Lozano was still valid. 33 The other one,
docketed as Criminal Case No. 07-257126, charged respondent with having committed
bigamy for contracting marriage with Mary Jane Elgincolin Paraiso while his marriage with
Pilar Lozano was still subsisting. 34 Each of the Informations recommended bail in the
amount of P24,000 for his provisional liberty as accused in the criminal cases. 35 cCaEDA
On 20 November 2007, only respondent attended the clarificatory hearing. In the same
proceeding, the Commission denied his Motion to suspend the proceedings pending the
outcome of the petitions for nullification he had filed with the RTC-Laguna. Thus, the
Commission resolved that the administrative case against him be submitted for
resolution. 36
IBP's Report and Recommendation
On 27 February 2008, the Commission promulgated its Report and Recommendation
addressing the specific charges against respondent. 37 The first charge, for dishonesty for
the nonpayment of certain shares in the fees, was dismissed for lack of merit. The
Commission ruled that the charge should have been filed with the proper courts since it was
only empowered to determine respondent's administrative liability. On this matter,
complainant failed to prove dishonesty on the part of respondent. 38 On the second charge,
the Commission found respondent to have violated the rule on the solicitation of client for
having advertised his legal services and unlawfully solicited cases. It recommended that he
be reprimanded for the violation. It failed, though, to point out exactly the specific provision
he violated. 39
As for the third charge, the Commission found respondent to be guilty of gross immorality
for violating Rules 1.01 and 7.03 of the Code of Professional Responsibility and Section 27 of
Rule 138 of the Rules of Court. It found that complainant was able to prove through
documentary evidence that respondent committed bigamy twice by marrying two other
women while the latter's first marriage was subsisting. 40 Due to the gravity of the acts of
respondent, the Commission recommended that he be disbarred, and that his name be
stricken off the roll of attorneys. 41
On 15 April 2008, the IBP Board of Governors, through its Resolution No. XVIII-2008-154,
adopted and approved the Report and Recommendation of the Investigating
Commissioner. 42 On 01 August 2008, respondent filed a Motion for Reconsideration,
arguing that the recommendation to disbar him was premature. He contends that the
Commission should have suspended the disbarment proceedings pending the resolution of
the separate cases he had filed for the annulment of the marriage contracts bearing his
name as having entered into those contracts with other women. He further contends that
the evidence proffered by complainant to establish that the latter committed bigamy was
not substantial to merit the punishment of disbarment. Thus, respondent moved for the
reconsideration of the resolution to disbar him and likewise moved to archive the
60
administrative proceedings pending the outcome of the Petitions he separately filed with
the RTC of Laguna for the annulment of Marriage Contracts. 43 SEAHcT
On 26 June 2011, the IBP Board of Governors denied the Motions for Reconsideration and
affirmed their Resolution dated 15 April 2008 recommending respondent's disbarment. 44
The Court's Ruling
The Court affirms the recommendations of the IBP.
First Charge:
Dishonesty for nonpayment of share in the fees
While we affirm the IBP's dismissal of the first charge against respondent, we do not concur
with the rationale behind it.
The first charge of complainant against respondent for the nonpayment of the former's
share in the fees, if proven to be true is based on an agreement that is violative of Rule
9.02 45 of the Code of Professional Responsibility. A lawyer is proscribed by the Code to
divide or agree to divide the fees for legal services rendered with a person not licensed to
practice law. Based on the allegations, respondent had agreed to share with complainant
the legal fees paid by clients that complainant solicited for the respondent. Complainant,
however, failed to proffer convincing evidence to prove the existence of that agreement.
We ruled in Tan Tek Beng v. David 46 that an agreement between a lawyer and a layperson
to share the fees collected from clients secured by the layperson is null and void, and that
the lawyer involved may be disciplined for unethical conduct. Considering that
complainant's allegations in this case had not been proven, the IBP correctly dismissed the
charge against respondent on this matter.
Second Charge:
Unlawful solicitation of clients
Complainant charged respondent with unlawfully soliciting clients and advertising legal
services through various business entities. Complainant submitted documentary evidence to
prove that Jesi & Jane Management, Inc. and Christmel Business Link, Inc. were owned and
used as fronts by respondent to advertise the latter's legal services and to solicit clients. In its
Report, the IBP established the truth of these allegations and ruled that respondent had
violated the rule on the solicitation of clients, but it failed to point out the specific provision
that was breached. aADSIc
A review of the records reveals that respondent indeed used the business entities mentioned
in the report to solicit clients and to advertise his legal services, purporting to be specialized
in corporate rehabilitation cases. Based on the facts of the case, he violated Rule 2.03 47 of
the Code, which prohibits lawyers from soliciting cases for the purpose of profit.
A lawyer is not prohibited from engaging in business or other lawful occupation. Impropriety
arises, though, when the business is of such a nature or is conducted in such a manner as to
be inconsistent with the lawyer's duties as a member of the bar. This inconsistency arises
when the business is one that can readily lend itself to the procurement of professional
employment for the lawyer; or that can be used as a cloak for indirect solicitation on the
lawyer's behalf; or is of a nature that, if handled by a lawyer, would be regarded as the
practice of law. 48
It is clear from the documentary evidence submitted by complainant that Jesi & Jane
Management, Inc., which purports to be a financial and legal consultant, was indeed a
vehicle used by respondent as a means to procure professional employment; specifically for
corporate rehabilitation cases. Annex "C" 49 of the Complaint is a letterhead of Jesi & Jane
Management, Inc., which proposed an agreement for the engagement of legal services. The
letter clearly states that, should the prospective client agree to the proposed fees,
respondent would render legal services related to the former's loan obligation with a bank.
This circumvention is considered objectionable and violates the Code, because the letter is
signed by respondent as President of Jesi & Jane Management, Inc., and not as partner or
associate of a law firm.
Rule 15.08 50 of the Code mandates that the lawyer is mandated to inform the client
whether the former is acting as a lawyer or in another capacity. This duty is a must in those
occupations related to the practice of law. The reason is that certain ethical considerations
governing the attorney-client relationship may be operative in one and not in the
other. 51 In this case, it is confusing for the client if it is not clear whether respondent is
offering consultancy or legal services.
Considering, however, that complainant has not proven the degree of prevalence of this
practice by respondent, we affirm the recommendation to reprimand the latter for violating
Rules 2.03 and 15.08 of the Code.
Third Charge:
Bigamy
The third charge that respondent committed bigamy twice is a serious accusation. To
substantiate this allegation, complainant submitted NSO-certified copies of the Marriage
Contracts entered into by respondent with three (3) different women. The latter objected to
the introduction of these documents, claiming that they were submitted after the
administrative case had been submitted for resolution, thus giving him no opportunity to
controvert them. 52 We are not persuaded by his argument. TEcCHD
We have consistently held that a disbarment case is sui generis. Its focus is on the
qualification and fitness of a lawyer to continue membership in the bar and not the
procedural technicalities in filing the case. Thus, we explained in Garrido v. Garrido: 53
Laws dealing with double jeopardy or with procedure — such as the
verification of pleadings and prejudicial questions, or in this case,
prescription of offenses or the filing of affidavits of desistance by the
complainant — do not apply in the determination of a lawyer's
qualifications and fitness for membership in the Bar. We have so ruled
in the past and we see no reason to depart from this
ruling. First,admission to the practice of law is a component of the
administration of justice and is a matter of public interest because it
involves service to the public. The admission qualifications are also
qualifications for the continued enjoyment of the privilege to practice
law. Second, lack of qualifications or the violation of the standards for
61
the practice of law, like criminal cases, is a matter of public concern
that the State may inquire into through this Court.
In disbarment proceedings, the burden of proof rests upon the complainant. For the court to
exercise its disciplinary powers, the case against the respondent must be established by
convincing and satisfactory proof. 54 In this case, complainant submitted NSO-certified true
copies to prove that respondent entered into two marriages while the latter's first marriage
was still subsisting. While respondent denied entering into the second and the third
marriages, he resorted to vague assertions tantamount to a negative pregnant. He did not
dispute the authenticity of the NSO documents, but denied that he contracted those two
other marriages. He submitted copies of the two Petitions he had filed separately with the
RTC of Laguna — one in Biñan and the other in Calamba — to declare the second and the
third Marriage Contracts null and void. 55
We find him guilty of gross immorality under the Code.
We cannot give credence to the defense proffered by respondent. He has not disputed the
authenticity or impugned the genuineness of the NSO-certified copies of the Marriage
Contracts presented by complainant to prove the former's marriages to two other women
aside from his wife. For purposes of this disbarment proceeding, these Marriage Contracts
bearing the name of respondent are competent and convincing evidence proving that he
committed bigamy, which renders him unfit to continue as a member of the bar. The
documents were certified by the NSO, which is the official repository of civil registry records
pertaining to the birth, marriage and death of a person. Having been issued by a
government agency, the NSO certification is accorded much evidentiary weight and carries
with it a presumption of regularity. In this case, respondent has not presented any
competent evidence to rebut those documents. cTCaEA
According to the respondent, after the discovery of the second and the third marriages, he
filed civil actions to annul the Marriage Contracts. We perused the attached Petitions for
Annulment and found that his allegations therein treated the second and the third marriage
contracts as ordinary agreements, rather than as special contracts contemplated under the
then Civil Code provisions on marriage. He did not invoke any grounds in the Civil
Code provisions on marriage, prior to its amendment by the Family Code. Respondent's
regard for marriage contracts as ordinary agreements indicates either his wanton disregard
of the sanctity of marriage or his gross ignorance of the law on what course of action to take
to annul a marriage under the old Civil Code provisions.
What has been clearly established here is the fact that respondent entered into marriage
twice while his first marriage was still subsisting. InBustamante-Alejandro v. Alejandro, 56 we
held thus:
[W]e have in a number of cases disciplined members of the Bar whom
we found guilty of misconduct which demonstrated a lack of that good
moral character required of them not only as a condition precedent for
their admission to the Bar but, likewise, for their continued
membership therein. No distinction has been made as to whether the
misconduct was committed in the lawyer's professional capacity or in
his private life. This is because a lawyer may not divide his personality
 so as to be an attorney at one time and a mere citizen at another. He is
expected to be competent, honorable and reliable at all times since he
who cannot apply and abide by the laws in his private affairs, can
hardly be expected to do so in his professional dealings nor lead others
in doing so. Professional honesty and honor are not to be expected as
the accompaniment of dishonesty and dishonor in other relations. The
administration of justice, in which the lawyer plays an important role
being an officer of the court, demands a high degree of intellectual
and moral competency on his part so that the courts and clients may
rightly repose confidence in him.
Respondent exhibited a deplorable lack of that degree of morality required of him as a
member of the bar. He made a mockery of marriage, a sacred institution demanding respect
and dignity. 57 His acts of committing bigamy twice constituted grossly immoral conduct
and are grounds for disbarment under Section 27, Rule 138 of the Revised Rules of Court. 58
Thus, we adopt the recommendation of the IBP to disbar respondent and order that his
name be stricken from the Roll of Attorneys.
WHEREFORE, this Court resolves the following charges against Atty. Bede S. Tabalingcos
as follows:
1. The charge of dishonesty is DISMISSED for lack of merit.
2. Respondent is REPRIMANDED for acts of illegal advertisement and
solicitation.
3. Atty. Bede S. Tabalingcos is DISBARRED for engaging in bigamy, a
grossly immoral conduct.
Let a copy of this Decision be attached to the personal records of Atty. Bede S. Tabalingcos
in the Office of the Bar Confidant, and another copy furnished to the Integrated Bar of the
Philippines. aHTEIA
The Clerk of Court is directed to strike out the name of Bede S. Tabalingcos from the Roll of
Attorneys.
SO ORDERED.
||| (Villatuya v. Tabalingcos, A.C. No. 6622, [July 10, 2012], 690 PHIL 381-399)
[A.C. No. 9226. June 14, 2016.]
(Formerly CBD 06-1749)
MA. CECILIA CLARISSA C. ADVINCULA, complainant, vs. ATTY.
LEONARDO C. ADVINCULA, respondent.
62
DECISION
BERSAMIN, J p:
This administrative case stemmed from the complaint for disbarment dated
June 16, 2006 brought to the Integrated Bar of the Philippines (IBP) against Atty.
Leonardo C. Advincula (Atty. Advincula) by no less than his wife, Dr. Ma. Cecilia Clarissa
C. Advincula (Dr. Advincula).
In her complaint, 1 Dr. Advincula has averred that Atty. Advincula committed
unlawful and immoral acts; 2 that while Atty. Advincula was still married to her, he had
extra-marital sexual relations with Ma. Judith Ortiz Gonzaga (Ms. Gonzaga); 3 that the
extra-marital relations bore a child in the name of Ma. Alexandria Gonzaga Advincula
(Alexandria); n 4 that Atty. Advincula failed to give financial support to their own
children, namely: Ma. Samantha Paulina, Ma. Andrea Lana, and Jose Leandro, despite
his having sufficient financial resources; 5 that he admitted in the affidavit of late
registration of birth of Alexandria that he had contracted another marriage with Ms.
Gonzaga; 6 that even should Atty. Advincula prove that his declaration in the affidavit
of late registration of birth was motivated by some reason other than the fact that he
truly entered into a subsequent marriage with Ms. Gonzaga, then making such a
declaration was in itself still unlawful; 7 that siring a child with a woman other than his
lawful wife was conduct way below the standards of morality required of every
lawyer; 8 that contracting a subsequent marriage while the first marriage had not been
dissolved was also an unlawful conduct; 9 that making a false declaration before a
notary public was an unlawful conduct punishable under the Revised Penal Code; 10 and
that the failure of Atty. Advincula to provide proper support to his children showed his
moral character to be below the standards set by law for every lawyer. 11 Dr. Advincula
prayed that Atty. Advincula be disbarred. 12
In his answer, 13 Atty. Advincula denied the accusations. He asserted that
during the subsistence of his marriage with Dr. Advincula but prior to the birth of their
youngest Jose Leandro, their marital relationship had deteriorated; that they could not
agree on various matters concerning their family, religion, friends, and respective
careers; that Dr. Advincula abandoned the rented family home with the two children to
live with her parents; that despite their separation, he regularly gave financial support
to Dr. Advincula and their children; that during their separation, he got into a brief
relationship with Ms. Gonzaga; and that he did not contract a second marriage with Ms.
Gonzaga. 14
Atty. Advincula further acknowledged that as a result of the relationship with
Ms. Gonzaga, a child was born and named Alexandra; 15that in consideration of his
moral obligation as a father, he gave support to Alexandra; 16 that he only learned that
the birth of Alexandra had been subsequently registered after the child was already
enrolled in school; 17 that it was Ms. Gonzaga who informed him that she had the birth
certificate of Alexandria altered by a fixer in order to enroll the child; 18 that he strived
to reunite his legitimate family, resulting in a reconciliation that begot their third child,
Jose Leandro; that Dr. Advincula once again decided to live with her parents, bringing
all of their children along; that nevertheless, he continued to provide financial support
to his family and visited the children regularly; that Dr. Advincula intimated to him that
she had planned to take up nursing in order to work as a nurse abroad because her
medical practice here was not lucrative; that he supported his wife's nursing school
expenses; 19 that Dr. Advincula left for the United States of America (USA) to work as a
nurse; 20 that the custody of their children was not entrusted to him but he agreed to
such arrangement to avoid further division of the family;21 that during the same period
he was also busy with his law studies; 22 that Dr. Advincula proposed that he and their
children migrate to the USA but he opposed the proposal because he would not be able
to practice his profession there; 23 that Dr. Advincula stated that if he did not want to
join her, then she would just get the children to live with her; 24 that when Dr.
Advincula came home for a vacation he was not able to accompany her due to his
extremely busy schedule as Chief Legal Staff of the General Prosecution Division of the
National Bureau of Investigation; 25 and that when they finally met arguments flared
out, during which she threatened to file a disbarment suit against him in order to force
him to allow her to bring their children to the USA. 26 Atty. Advincula prayed that the
disbarment case be dismissed for utter lack of merit. 27 CAIHTE
Findings and Recommendations of the IBP-CBD
After exhaustive hearings, Commissioner Angelito C. Inocencio of the IBP
Commission on Bar Discipline (CBD) rendered the following findings and observations,
and recommended the following sanctions, to wit:
FINDINGS AND CONCLUSIONS
Based on Rule 1.01, Canon 1, Code of Professional
Responsibility for Lawyers comes this provisions (sic): "A lawyer
shall not engage in unlawful, dishonest, immoral or deceitful
conduct."
This means that members of the bar ought to
possess good moral character. Remember we must (sic) that the
practice of law is a mere privilege. The moment that a lawyer no
longer has the required qualifications foremost of which is the
presence of that character earlier mentioned, the Honorable
Supreme Court may revoke the said practice.
No doubt, Respondent Leanardo (sic) C. Advincula,
probably due to the weakness of the flesh, had a romance outside of
marriage (sic)with Ma. Judith Ortiz Gonzaga. This he admitted.
From such affair came a child named Ma. Alexandria. He
supported her as a moral obligation.
How, then, must we categorize his acts? It cannot be
denied that he had committed an adulterous and immoral act.
Was his conduct grossly immoral?
Before answering that, let us recall what the highest Court
of the Land defined as immoral conduct: "that conduct which is
63
willful, flagrant or shameless and which shows a moral indifference
to the opinion of the good and respectable members of the
community." 28
xxx xxx xxx
It is the Commissioner's view that what he did pales when
compared to Respondent Leo Palma's case earlier cited.
In that case, the Honorable Supreme Court stressed that
Atty. Palma had made a mockery of marriage, a sacred
institution demanding respect and dignity.
The highest Court of the Land intoned in the same case:
"But what respondent forgot is that he has also duties to his wife. As
a husband, he is obliged to live with her; observe mutual love,
respect and fidelity; and render help and support."
Deemed favorable to Respondent's cause were the
various exhibits he presented evidencing the fact that he supported
their children financially. Such conduct could not illustrate him as
having championed a grossly immoral conduct.
Another factor to consider is this: Complainant should
share part of the blame why their marriage soured. Their constant
quarrels while together would indicate that harmony between them
was out of the question.
The possibility appears great that she might have
displayed a temper that ignited the flame of discord between them.
Just the same, however, while this Commissioner would
not recommend the supreme penalty of disbarment for to deprive
him of such honored station in life would result in irreparable injury
and must require proof of the highest degree pursuant to the
Honorable Supreme Court's ruling in Angeles vs. Figueroa, 470 SCRA
186 (2005), he must be sanctioned.
And the proof adduced is not of the highest degree.
VI. RECOMMENDATION
In the light of the foregoing disquisition, having, in effect,
Respondent's own admission of having committed an extra-marital
affair and fathering a child, it is respectfully recommended that he
be suspended from the practice of law for at least one month with
the additional admonition that should he repeat the same, a more
severe penalty would be imposed.
It would be unjust to impose upon him the extreme
penalty of disbarment. What he did was not grossly immoral. 29
 The IBP Board of Governors unanimously adopted the findings and
recommendations of the Investigating Commissioner with slight modification of the
penalty, thus:
RESOLVED to ADOPT and APPROVE, as it is hereby
unanimously ADOPTED and APPROVED, with modification, the
Report and Recommendation of the Investigating Commissioner in
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 respondent's admission of engaging in a simple
immorality and also taking into account the condonation of his
extra-marital affair by his wife, Atty. Leonardo C. Advincula is
hereby SUSPENDED from the practice of law for two (2)
months. 30
Atty. Advincula accepted the Resolution of the IBP Board of Governors as
final and executory, and manifested in his compliance dated February 26, 2013, as
follows: DETACa
1. That on 28 November 2011 this Honorable Court issued a resolution
suspending the undersigned Attorney from the practice of
law for two (2) months under "A.C. No. 9226 (formerly CBD
Case No. 06-1749) (Ma. Cecilia Clarissa C. Advincula vs. Atty.
Leonardo C. Advincula) . . .
2. That on 30 October 2012 in faithful compliance with the above
order, the undersigned attorney applied for Leave for two (2)
months starting November up to December thereby
refraining himself from the practice of law as Legal Officer
on the National Bureau of Investigation (NBI) . . .
3. That the undersigned Attorney would like to notify this Honorable
Court of his compliance with the above resolution/order so
that he may be able to practice his law profession again. 31
Ruling of the Court
The good moral conduct or character must be possessed by lawyers at the
time of their application for admission to the Bar, and must be maintained until
retirement from the practice of law. In this regard, the Code of Professional
Responsibility states:
Rule 1.01 — A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct.
xxx xxx xxx
CANON 7 — A lawyer shall at all times uphold the integrity and
dignity of the legal profession, and support the activities of the
Integrated Bar.
xxx xxx xxx
64
Rule 7.03 — A lawyer shall not engage in conduct that adversely
reflects on his fitness to practice law, nor should he, whether in
public or private life, behave in a scandalous manner to the discredit
of the legal profession.
Accordingly, it is expected that every lawyer, being an officer of the Court,
must not only be in fact of good moral character, but must also be seen to be of good
moral character and leading lives in accordance with the highest moral standards of the
community. More specifically, a member of the Bar and officer of the Court is required
not only to refrain from adulterous relationships or keeping mistresses but also to
conduct himself as to avoid scandalizing the public by creating the belief that he is
flouting those moral standards. If the practice of law is to remain an honorable
profession and attain its basic ideals, whoever is enrolled in its ranks should not only
master its tenets and principles but should also, in their lives, accord continuing fidelity
to them. The requirement of good moral character is of much greater import, as far as
the general public is concerned, than the possession of legal learning. 32
Immoral conduct has been described as conduct that is so willful, flagrant, or
shameless as to show indifference to the opinion of good and respectable members of
the community. To be the basis of disciplinary action, such conduct must not only be
immoral, but grossly immoral, that is, it must be so corrupt as to virtually constitute a
criminal act or so unprincipled as to be reprehensible to a high degree or committed
under such scandalous or revolting circumstances as to shock the common sense of
decency. 33
On different occasions, we have disbarred or suspended lawyers for
immorality based on the surrounding circumstances of each case. In Bustamante-
Alejandro v. Alejandro, 34 the extreme penalty of disbarment was imposed on the
respondent who had abandoned his wife and maintained an illicit affair with another
woman. Likewise, disbarment was the penalty for a lawyer who carried on an extra-
marital affair with a married woman prior to the judicial declaration that her marriage
was null and void, while he himself was also married. 35 In another case we have
suspended for two years, a married attorney who had sired a child with a former
client. 36 In Samaniego v. Ferrer, 37 suspension of six months from the practice of law
was meted on the philandering lawyer.
Yet, we cannot sanction Atty. Advincula with the same gravity. Although his
siring the child with a woman other than his legitimate wife constituted immorality, he
committed the immoral conduct when he was not yet a lawyer. The degree of his
immoral conduct was not as grave than if he had committed the immorality when
already a member of the Philippine Bar. Even so, he cannot escape administrative
liability. Taking all the circumstances of this case into proper context, the Court
considers suspension from the practice of law for three months to be condign and
appropriate.
As a last note, Atty. Advincula manifested in his compliance dated February
26, 2013 that he had immediately accepted the resolution of the IBP Board of
Governors suspending him from the practice of law for two months as final and
executory; that he had then gone on leave from work in the NBI for two months
 starting in November and lasting until the end of December, 2012; and that such leave
from work involved refraining from performing his duties as a Legal Officer of the NBI.
The manifestation of compliance is unacceptable. A lawyer like him ought to
know that it is only the Court that wields the power to discipline lawyers. The IBP Board
of Governors did not possess such power, rendering its recommendation against him
incapable of finality. It is the Court's final determination of his liability as a lawyer that is
the reckoning point for the service of sanctions and penalties. As such, his supposed
compliance with the recommended two-month suspension could not be satisfied by his
going on leave from his work at the NBI. Moreover, his being a government employee
necessitates that his suspension from the practice of law should include his suspension
from office. A leave of absence will not suffice. This is so considering that his position
mandated him to be a member of the Philippine Bar in good standing. The suspension
from the practice of law will not be a penalty if it does not negate his continuance in
office for the period of the suspension. If the rule is different, this exercise of
reprobation of an erring lawyer by the Court is rendered inutile and becomes a mockery
because he can continue to receive his salaries and other benefits by simply going on
leave for the duration of his suspension from the practice of law. aDSIHc
WHEREFORE, the Court FINDS AND DECLARES ATTY. LEONARDO C.
ADVINCULA GUILTY of immorality; and SUSPENDS him from the practice of law for a
period of THREE MONTHS EFFECTIVE UPON NOTICE HEREOF, with a STERN
WARNING that a more severe penalty shall be imposed should he commit the same
offense or a similar offense; DIRECTS ATTY. ADVINCULA to report the date of his
receipt of the Decision to this Court; and ORDERS the Chief of the Personnel Division
of the National Bureau of Investigation to implement the suspension from office
of ATTY. ADVINCULA and to report on his compliance in order to determine the date
of commencement of his suspension from the practice of law.
Let a copy of this Decision be made part of the records of the respondent in
the Office of the Bar Confidant; and furnished to the Integrated Bar of the Philippines
and the Civil Service Commission for their information and guidance.
SO ORDERED.
||| (Advincula v. Advincula, A.C. No. 9226, [June 14, 2016])
[A.C. No. 4738. June 10, 2003.]
VIOLETA FLORES ALITAGTAG, complainant, vs. ATTY. VIRGILIO R.
GARCIA, respondent.
The Law Firm of Ingles Laurel Salinas for complainant.
Malaya Sanchez Francisco Anover & Anover for respondent.
SYNOPSIS
65
For alleged participation in the falsification of the subject deed of donation, the Supreme
Court in its resolution dated February 6, 2002 found respondent guilty of grave misconduct
and was ordered disbarred from the practice of law. Hence, this motion for reconsideration
of the said resolution.
The Supreme Court reconsidered the penalty imposed on respondent and reinstated him as
a member of the bar, ruling: that in disbarment proceedings, the burden of proof rests upon
the complainant, and for the Court to exercise its disciplinary powers, the case against
respondent must be established by clear, convincing and satisfactory proof; that the record
showed that there was no clear and convincing evidence to prove that respondent is the
author of the forged signature of the donor or that he actively participated with any party in
forging the said signature as it appears in the deed of donation; that the only proven link
respondent has to the falsified deed is the fact that he notarized it; that the failure of the
respondent to submit to the proper authorities a copy of the deed of donation which he
notarized does not directly prove that he tried to cover up the falsification committed; that
since complainant failed to discharge her burden of proving the liability of respondent, his
disbarment was unwarranted. The Court, however, suspended respondent from the practice
of law and from his commission as a notary public for a period of three (3) years effective
immediately.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; BURDEN OF PROOF; PROOF REQUIRED IN DISBARMENT
PROCEEDINGS. — As early as the case of Santos vs. Dichoso and reiterated in the case
of Martin vs. Felix Jr., this Court held: "In disbarment proceedings, the burden of proof rests
upon the complainant, and for the court to exercise its disciplinary powers, the case against
the respondent must be established by clear, convincing and satisfactory proof. Considering
the serious consequence of the disbarment or suspension of a member of the Bar, this Court
has consistently held that clear preponderant evidence is necessary to justify the imposition
of the administrative penalty."
2. LEGAL ETHICS; ATTORNEYS; CODE OF PROFESSIONAL RESPONSIBILITY; A LAWYER
SHOULD NOT BEHAVE IN A SCANDALOUS MANNER TO THE DISCREDIT OF THE LEGAL
PROFESSION. — Respondent is likewise found guilty of harassing the occupants of the
property subject of the donation by asking Meralco to disconnect its services to the property
and by posting security guards to intimidate the said occupants. These acts do not speak
well of his standing as a member of the bar. Rule 7.03, Canon 7 of the Code of Professional
Responsibility provides that a lawyer shall not engage in conduct that adversely reflects on
his fitness to practice law, nor should he, whether in public or private life, behave in a
scandalous manner to the discredit of the legal profession. By engaging in acts that
undermine recognition of and respect for legal processes, respondent has clearly committed
conduct that adversely reflects on his fitness to be a member of the legal profession. IDSETA
3. ID.; ID.; DISBARMENT; TO BE IMPOSED ONLY IN A CLEAR CASE OF MISCONDUCT
THAT SERIOUSLY AFFECTS THE STANDING AND CHARACTER OF LAWYER. — In sum,
complainant failed to discharge her burden of proving the liability of respondent with
respect to the falsification of the questioned deed of donation. Suspicion, no matter how
strong, is not enough to warrant the disbarment of respondent. Indeed, the power to disbar
must be exercised with great caution, and may be imposed only in a clear case of
misconduct that seriously affects the standing and the character of the lawyer as an officer
of the Court and as a member of the bar. Disbarment should never be decreed where any
lesser penalty could accomplish the end desired. Without doubt, a violation of the high
moral standards of the legal profession justifies the imposition of the appropriate penalty,
including suspension and disbarment. However, the said penalties are imposed with great
caution, because they are the most severe forms of disciplinary action and their
consequences are beyond repair.
RESOLUTION
PER CURIAM p:
This refers to the motion for reconsideration of the Resolution of this Court, dated February
6, 2002, finding respondent "guilty of grave misconduct rendering him unworthy of
continuing membership in the legal profession" and ordering his disbarment "from the
practice of law and his name stricken off the Roll of Attorneys."
In essence, respondent reiterates his innocence by denying authorship and participation in
the falsification of the subject deed of donation. However, he admits his negligence and
expresses remorse for his failure to diligently perform his duties as notary public with
respect to the notarization of the said deed of donation. Respondent pleads for compassion
and mercy and asks that the Court be more lenient in imposing penalty for the infractions he
has committed.
As early as the case of Santos vs. Dichoso 1 and reiterated in the case of Martin vs. Felix
Jr., 2 this Court held:
"In disbarment proceedings, the burden of proof rests upon the
complainant, and for the court to exercise its disciplinary powers, the
case against the respondent must be established by clear, convincing
and satisfactory proof. Considering the serious consequence of the
disbarment or suspension of a member of the Bar, this Court has
consistently held that clear preponderant evidence is necessary to
justify the imposition of the administrative penalty."
There is no question that respondent was remiss in the performance of his duties as a notary
public. In fact, there is preponderance of evidence showing that he subverted the clear
provisions of Section 1 3 of Public Act 2103, otherwise known as "An Act Providing for the
Acknowledgement and Authentication of Instruments and Documents within the Philippine
Islands" and Section 246 4 of Act 2711, otherwise known as the Revised Administrative Code
of 1917.
66
Respondent is likewise found guilty of harassing the occupants of the property subject of the
donation by asking Meralco to disconnect its services to the property and by posting security
guards to intimidate the said occupants. These acts do not speak well of his standing as a
member of the bar. Rule 7.03, Canon 7 of the Code of Professional Responsibility provides
that a lawyer shall not engage in conduct that adversely reflects on his fitness to practice
law, nor should he, whether in public or private life, behave in a scandalous manner to the
discredit of the legal profession. By engaging in acts that undermine recognition of and
respect for legal processes, respondent has clearly committed conduct that adversely
reflects on his fitness to be a member of the legal profession.
However, as to the issue of falsification of the subject deed of donation, a review of the
records at hand shows that there is no clear and convincing evidence to prove that
respondent is the author of the forged signature of the donor or that he actively participated
or conspired with any party in forging the said signature as it appears in the questioned deed
of donation. The only proven link respondent has to the falsified deed is the fact that he
notarized it. The Court agrees with the observation of the Investigating Commissioner of the
IBP that there is no proof that respondent knew that the signature of Cesar Flores appearing
on the deed of donation was falsified. Complainant never disputed respondent's claim that
the deed of donation was already signed when personally handed to him by Cesar Flores, Sr.
There is no reason shown why respondent should have doubted that the donor's signature
was forged. Moreover, the fact that respondent was later on given a special power of
attorney to administer and sell the property covered by the forged deed of donation does
not prove his participation in the falsification of the said deed. Records reveal that there is a
gap of more than five years between the date of notarization of the subject deed of
donation on September 19, 1991 5 and the execution of the special power of attorney in
favor of respondent on November 7, 1996. 6 If respondent was indeed part of a scheme to
defraud the other children of Cesar Flores, we find it illogical that he and his cohorts would
wait that long for him to be given the power of attorney to dispose of the subject property.
Likewise, the failure of the respondent to submit to the proper authorities a copy of the
subject deed of donation which he notarized does not directly prove that he tried to cover up
the falsification committed.
It must also be noted that in the criminal case for falsification filed by complainant against
several accused including herein respondent, the city prosecutor of Pasig found no sufficient
evidence to indict respondent. 7 Even the decision of the lower court in Civil Case No.
65883 8 which was filed for the nullification of the subject deed of donation did not contain
any specific finding as to the alleged participation of respondent in the falsification of the
subject deed. 9
In sum, complainant failed to discharge her burden of proving the liability of respondent
with respect to the falsification of the questioned deed of donation. Suspicion, no matter
how strong, is not enough to warrant the disbarment of respondent. TCIDSa
Indeed, the power to disbar must be exercised with great caution, and may be imposed only
in a clear case of misconduct that seriously affects the standing and the character of the
lawyer as an officer of the Court and as a member of the bar. 10 Disbarment should never be
decreed where any lesser penalty could accomplish the end desired. 11 Without doubt, a
violation of the high moral standards of the legal profession justifies the imposition of the
appropriate penalty, including suspension and disbarment. 12 However, the said penalties
are imposed with great caution, because they are the most severe forms of disciplinary
action and their consequences are beyond repair. 13
A review of pertinent and relevant jurisprudence convinces the Court to reconsider the
penalty imposed on herein respondent.
In Maligsa vs. Cabanting, 14 the respondent lawyer was disbarred after this Court found out
that he notarized a forged deed of quitclaim. However, the penalty of disbarment was
imposed after considering that he was previously suspended from the practice of law for six
months on the ground that he purchased his client's property while it was still the subject of
a pending certiorari proceeding.
In Flores vs. Chua, 15 the respondent lawyer was disbarred after he was found guilty of
notarizing a forged deed of sale. But again, the penalty of disbarment was imposed because
in a previous administrative case, respondent was found guilty of violating Rule 1.01 16 of
the Code of Professional Responsibility and had been sternly warned that a repetition of a
similar act or acts or violation committed by him in the future will be dealt with more
severely. The Court also took into consideration the other infractions or acts of misconduct
committed by the respondent such as forum shopping, committing falsehood, injurious,
willful and unprofessional conduct of publishing, or causing the publication, in a newspaper
of general circulation of a pending case, causing undue delay in the court proceedings and
for notarizing a document without the party being present. aETDIc
In Roces vs. Aportadera, 17 the Court suspended the respondent lawyer from the practice of
law for a period of two years after it was found out that he has dubious involvement in the
preparation and notarization of the falsified sale of his client's property.
Thus, taking into consideration the foregoing jurisprudence, the totality of the acts of
misconduct proven to have been committed by herein respondent, his admission of
negligence, plea for compassion and the fact that this is his first offense, the Court finds it
proper to reconsider the penalty imposed. Nonetheless, the Court reiterates the principle
that where the notary public is a lawyer, a graver responsibility is placed upon his shoulder
by reason of his solemn oath to obey the laws and to do no falsehood or consent to the
doing of any. 18 The penalty of suspension, both from respondent's practice of law and from
his commission as a notary public is apropos to the offenses he committed.
WHEREFORE, the motion for reconsideration is GRANTED. Respondent is REINSTATED as
a member of the Bar but he is SUSPENDED from the practice of law and from his
commission as a notary public for a period of three (3) years, effective immediately, with a
warning that a commission of the same or similar acts in the future shall be dealt with more
severely.
The Clerk of Court of this Court is DIRECTED to immediately circularize this Resolution for
the proper guidance of all concerned.
Let copies of this Resolution be furnished the Office of the Bar Confidant and the Integrated
Bar of the Philippines.
67
SO ORDERED.
||| (Alitagtag v. Garcia, A.C. No. 4738, [June 10, 2003], 451 PHIL 420-428)
[A.C. No. 5910. September 21, 2005.]
ATTY. IRENEO L. TORRES and MRS. NATIVIDAD
CELESTINO, complainants, vs. ATTY. JOSE CONCEPCION
JAVIER, respondent.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; ADMISSIBILITY; TESTIMONIAL EVIDENCE; PRIVILEGED
COMMUNICATION; UTTERANCES MADE IN THE COURSE OF JUDICIAL PROCEEDINGS,
INCLUDING ALL KINDS OF PLEADINGS, PETITIONS AND MOTIONS, ARE ABSOLUTELY
PRIVILEGED SO LONG AS THEY ARE PERTINENT AND RELEVANT TO THE SUBJECT
INQUIRY. — It is well entrenched in Philippine jurisprudence that for reasons of public policy,
utterances made in the course of judicial proceedings, including all kinds of pleadings,
petitions and motions, are absolutely privileged so long as they are pertinent and relevant to
the subject inquiry, however false or malicious they may be. The requirements of materiality
and relevancy are imposed so that the protection given to individuals in the interest of an
efficient administration of justice may not be abused as a cloak from beneath which private
malice may be gratified. If the pleader goes beyond the requirements of the statute and
alleges an irrelevant matter which is libelous, he loses his privilege. A matter, however, to
which the privilege does not extend must be so palpably wanting in relation to the subject
matter of the controversy that no reasonable man can doubt its irrelevancy or impropriety.
That matter alleged in a pleading need not be in every case material to the issues presented
by the pleadings. It must, however, be legitimately related thereto, or so pertinent to the
subject of the controversy that it may become the subject of inquiry in the course of the trial.
2. LEGAL ETHICS; ATTORNEYS; IN KEEPING WITH THE DIGNITY OF THE LEGAL
PROFESSION, A LAWYER'S LANGUAGE MUST BE DIGNIFIED. — In keeping with the
dignity of the legal profession, a lawyer's language must be dignified and choice of language
is important in the preparation of pleadings. In the assertion of his client's rights, a lawyer —
even one gifted with superior intellect — is enjoined to rein up his temper.
3. ID.; ID.; A LAWYER'S ARGUMENTS IN HIS PLEADINGS SHOULD BE GRACIOUS TO
BOTH THE COURT AND OPPOSING COUNSEL. — Canon 8 of the Code of Professional
Responsibility which provides: "CANON 8 — A LAWYER SHALL CONDUCT HIMSELF WITH
COURTESY, FAIRNESS AND CANDOR TOWARD HIS PROFESSIONAL COLLEAGUES, AND
SHALL AVOID HARASSING TACTICS AGAINST OPPOSING COUNSEL. — Rule 8.01. A
lawyer shall not, in professional dealings, use language which is abusive, offensive or
otherwise improper." instructs that respondent's arguments in his pleadings should be
gracious to both the court and opposing counsel and be of such words as may be properly
addressed by one gentleman to another. The language vehicle does not run short of
expressions which are emphatic but respectful, convincing but not derogatory, illuminating
but not offensive.
DECISION
CARPIO MORALES, J p:
By complaint 1 dated November 26, 2002, Atty. Ireneo L. Torres and Mrs. Natividad
Celestino (complainants) charge Atty. Jose Concepcion Javier (respondent) for malpractice,
gross misconduct in office as an attorney and/or violation of the lawyer's oath.
The charges stemmed from the statements/remarks made by respondent in the pleadings
he filed in a petition for audit of all funds of the University of the East Faculty Association
(UEFA), as counsel for the therein petitioners UEFA then Treasurer Rosamarie Laman, and
his wife-former UEFA President Eleonor Javier, before the Bureau of Labor Relations (BLR),
Department of Labor and Employment (DOLE) against herein complainants, docketed as
NCR-OD-0105-004-LRD (audit case), 2 and from the pleadings filed by respondent in
another labor case as counsel for the one hundred seventy six (176) faculty members of the
University of the East complainants against herein complainant Atty. Ireneo L. Torres, et
al., 3 docketed as NCR-0D-0201-0005-LRD (attorney's fees case). 4
The complaint sets forth three (3) causes of action against respondent.
The first cause of action is based on respondent's "Urgent Motion to Expedite with
Manifestation and Reiteration of Position" (Motion to Expedite) filed in the audit case which
complainants allege contained statements which are absolutely false, unsubstantiated, and
with malicious imputation of crimes of robbery, theft of UEFFA's funds, destruction or
concealment of UEFA's documents and some other acts tending to cause dishonor, discredit
or contempt upon their persons. 5 Portions of the questioned motion read:
Undersigned attorney would like to manifest — just so it can not be
said later on that he kept mum on the matter — that when individual
respondents-appellants realized that an audit of Union funds was
looming, it appears that they decided to destroy or conceal
documents as demonstrated by an "Incident Report Re Robbery"
dated May 6, 2002 (a copy just recently secured by the undersigned),
attached hereto as Annex "A", where the police investigator stated
that "no forcible entry" was noted by him but "that air condition on the
respective rooms were (sic) slightly move (sic) to mislead that suspect
as the same as their point of entry.["] The police officers stated that
"no cash of (sic) money were stolen but instead claimed that still
undetermined documents/important papers were stolen by the
suspects."
68
This brings to mind the United States case against Andersen officials
who shredded documents related to the Enron scandal when they
thought nobody was looking. As in the Andersen/Enron case,
the individual respondents-appellants in the instant case knew that
the law was going to come knocking at their door, asking a lot [of]
questions about financial matters.
From the undersigned's standpoint, the alleged "robbery" of "still
undetermined documents/papers" was an inside job as investigation
has shown that there is no evidence of forced entry. Besides, it would
be a cinch to establish a motive by individual respondents-appellants
Torres and Celestino to destroy documents related to the audit
ordered by Regional Director Alex E. Maraan. In any event, the
undersigned thinks that the legal process should go on. Lumang
gimmick na 'yang "robbery' ng mga evidensya. They may try to cover up
the "looting" of union funds, but there is such a thing as secondary
evidence, not to mention the power of this Honorable Office to
issue subpoenas even to the union's depositary banks. 6 (Underscoring
supplied)
Complainants aver that respondent violated the attorney's oath that he "obey the laws" and
"do no falsehood," the Code of Professional Responsibility particularly Rule 10.01 thereof,
and Rule 138, specifically paragraph 20 (f) of the Rules of Court for directly pointing to them
as the persons who intentionally committed the robbery at the UEFA office, and for citing
the Andersen/Enron case which is irrelevant, impertinent, and immaterial to the subject of
quasi-judicial inquiry. 7
As second cause of action, complainants allege that in the attorney's fees case, respondent,
in his "Reply to Respondents (Torres and Marquez) Answer/Comment" filed before the
DOLE, used language that was clearly abusive, offensive, and improper, 8 inconsistent with
the character of an attorney as a quasi-judicial officer. 9
As third/last cause of action, complainants quote respondent's statement in the aforesaid
Reply, to wit: aHcACI
It is not uncommon for us trial lawyers to hear notaries public asking
their sons, wives, girlfriends, nephews, etc. to operate a notarial office
and sign for them. These girlfriends, nephews, etc. take affidavits,
administer oaths and certify documents. . . ., 10
and allege that the statement is demeaning to the integrity of the legal profession,
"uncalled for and deserve[s] censure, [as] the same might shrink the degree of
confidence and trust reposed by the public in the fidelity, honesty and integrity of the
legal profession and the solemnity of a notarial document." 11
By his Comment, respondent candidly professes that he was angry 12 while he was
preparing his "Motion to Expedite" in the audit case, it having come to his knowledge that
the UEFA office had been burglarized and complainant Atty. Torres had been spreading
reports and rumors implicating his clients including his wife to the burglary. 13
Respondent stresses that he felt that it was his duty to inform the BLR of the loss of the vital
documents so that the resolution of the pending motion for reconsideration filed by
complainants would be expedited; 14 and that the information regarding the burglary and
his use of theAndersen/Enron case as a figure of speech were relevant in drawing a link
between the burglary and the audit — the burglary having rendered the complete
implementation of the audit unattainable. 15
With respect to the attorney's fees case, respondent claims that Atty. Torres did not in his
Answer confront the issues thereof but instead "mock[ed] his wife and fabricat[ed] and
distort[ed] realities" 16 by including malicious, libelous and impertinent statements and
accusations against his wife which exasperated him. 17 A portion of Atty. Torres' Answer in
the attorney's fees case reads:
. . . in her incumbency as President of the UEFA for 12 years (1987-
1999) she got only about P2.00/hr CBA increase which took effect only
[in] 1994, with no other substantial improvements of the teacher's
benefits, and yet she spent for more than half a million negotiation
expenses from the UEFA's funds. Her 1994-1999 CBA was only a
carbon copy of her old 1989-1994 CBA with no substantial
improvements, with uncertain amount of her expenses, because she
removed/concealed all the financial records of the UEFA during her
term. . . I and the other lawyers/teachers denounced her unlawful
deduction of 10% attorney's fees from the small backwages received
by the teachers on April 28, 1993 although there was actually no
lawyer who worked for it . . . and there was no Board nor General
Membership Assembly Resolutions passed . . . the assembly [Nov. 24,
2001] was apparently irked to Mrs. Eleanor Javier when she was booed
while talking on the floor, like a confused gabble (sic). . . 18
Not wanting to allow his wife to be maligned by Atty. Torres, respondent admits having
responded with a counter-attack in his "Reply to Respondents (Torres and Marquez)
Answer/Comment" 19 wherein he stated:
What kind of a lawyer is this Atty. Torres? The undersigned feels that
Atty. Torres just cannot kick the habit of injecting immaterial,
irrelevant, and impertinent matters in his pleadings. More than that,
he lies through his teeth. The undersigned thinks that if he has any
common sense at all he should shut up about his accusation that Prof.
Javier spent more than half a million pesos for negotiation expenses . .
. she obtained only P2-increase in union members salary, etc. because
of the pendency of the damage suit against him on this score. He
easily forgets the sad chapter of his life as a practitioner when he lost
out to Prof. Javier in the petition for audit (Case No. NCR-OD-M-9401-
004) which he filed to gain "pogi" points prior to the UEFA election in
1994. 20
xxx xxx xxx
69
To repeat, if respondent Atty. Torres has any common sense at all, he
should stop making irrelevant, libelous and impertinent allegations in
his pleadings. This means changing his "standard tactic" of skirting the
main issues by injecting a web or a maze of sham, immaterial,
impertinent or scandalous matters. 21 (Underscoring supplied)
Respondent adds that he merely wanted to bring to the BLR's attention that Atty. Torres
had the habit of hurling baseless accusations against his wife to embarrass her, including
one for unjust vexation and another for collection and damages both of which were
dismissed after trial on the merits, thus prompting him to state that "these dismissed cases
indubitably indicate Atty. Torres' pattern of mental dishonesty." 22
Respondent further claims that in his Answer in the same attorney's fees case, Atty. Torres
accused his client, Prof. Maguigad, of forging the signature of a notary public and of
"deliberately us[ing] a falsified/expired Community Tax Certificate" in order to justify the
dismissal of the case against him (Atty. Torres); 23 and that Atty. Torres continued harassing
his clients including his wife by filing baseless complaints for falsification of public
document. 24 Hence, in defense of his clients, the following statements in his Reply:
Respondent further concluded that lead petitioner Prof. Maguigad
"falsified the said petition by causing it to appear that he participated"
in the falsification "when he did not in truth and in fact participate
thereat" . . . obviously oblivious of the obvious that it is highly
improbable for Prof. Maguigad to have forged the signature of the
notary public. If he intended to forge it, what was the big idea of doing
so? To save Fifty Pesos (P50.00) for notarial fee? Needless to say, the
allegation that lead (sic) petitioner Maguigad used a falsified Com. Tax
Cert. is patently unfounded and malicious.
But that is not all. Respondents went further and charged Profs.
Mendoza, Espiritu, Ramirez and Javier with the same crime of
falsification of public document . . . "by causing it to appear that
Rogelio Maguigad had indeed participated in the act of
verifying/subscribing and swearing the subject petition before notary
public Atty. Jorge M. Ventayen, when in truth and in fact he did not
participate thereat."
To the mind of the undersigned, this is the height of irresponsibility,
coming as it does from a member of the Philippine Bar. There is no
evidence to charge them with falsification of public document, i.e. the
"verification" appended to the present petition. They did not even sign
it. The crime imputed is clearly bereft of merit. Frankly, the
undersigned thinks that even a dim-witted first-year law student
would not oblige with such a very serious charge.
It is not uncommon for us trial lawyer[s] to hear notaries public asking
their sons, wives, girlfriends, nephews, etc. to "operate" a notarial
office and sign for them. These girlfriends, nephews, etc. take
 affidavits, administer oaths, and certify documents. Believing that the
said "verification" was signed by an impostor-relative of the notary
public [Atty. Jorge M. Ventayan] through no fault of his client, Prof.
Maguigad, the undersigned sought the assistance of the National
Bureau of Investigation (NBI). On May 2, 2002, an NBI agent called up
the undersigned to inform him that he arrested in the area near UE
one Tancredo E. Ventayen whom he caught in flagrante delicto
notarizing an affidavit of loss and feigning to be Atty. Jorge M.
Ventayen, supposedly his uncle. 25
xxx xxx xxx
Petitioners devoted so much space in their answer/comment vainly
trying to prove that Profs. Maguigad, Mendoza, Espiritu, Ramirez, and
Javier committed the crime of falsification of public document
reasoning out that they made "untruthful statements in the narration
of facts" in the basic petition.
Respondent Torres is a member of the Philippine Bar. But what law
books is he reading?
He should know or ought to know that the allegations in petitioners'
pleading are absolutely privileged because the said allegations or
statements are relevant to the issues. 26 (Underscoring supplied)
The Investigating Commissioner of the Integrated Bar of the Philippines (IBP) found
respondent guilty of violating the Code of Professional Responsibility for using inappropriate
and offensive remarks in his pleadings.
The pertinent portions of the Investigating Commissioner's Report and Recommendation
read:
Respondent admits that he was angry when he wrote the
Manifestation . . . and alleges that Complainant implicated his wife in a
burglary. Moreover, Respondent alleges that Complainant has been
"engaged in intimidating and harassing" his wife.
It appears that herein Complainant and herein Respondent's wife have
had a series of charges and counter-charges filed against each other.
Both parties being protagonists in the intramurals within the
University of the East Faculty Association (UEFA). Herein Complainant
is the President of the UEFA whereas Respondent's wife was the
former President of UEFA. Nevertheless, we shall treat this matter of
charges and counter-charges filed, which involved the UEFA, as
extraneous, peripheral, if not outright irrelevant to the issue at hand.
xxx xxx xxx
Clearly, [r]espondent's primordial reason for the offensive remark
stated in his pleadings was his emotional reaction in view of the fact
that herein Complainant was in a legal dispute with his wife. This
70
excuse cannot be sustained. Indeed, the remarks quoted above are
offensive and inappropriate. That the Respondent is representing his
wife is not at all an excuse. 27 (Underscoring supplied)
Accordingly, the Investigating Commissioner recommended that respondent be
reprimanded.
The Board of Governors of the Integrated Bar of the Philippines (IBP), by Resolution 28 of
October 7, 2004, adopted and approved the Report and Recommendation of the
Investigating Commissioner.
The Report of the IBP faulting respondent is well-taken but not its recommendation to
reprimand him.
It is well entrenched in Philippine jurisprudence that for reasons of public policy, utterances
made in the course of judicial proceedings, including all kinds of pleadings, petitions and
motions, are absolutely privileged so long as they are pertinent and relevant to the subject
inquiry, however false or malicious they may be. 29
The requirements of materiality and relevancy are imposed so that the protection given to
individuals in the interest of an efficient administration of justice may not be abused as a
cloak from beneath which private malice may be gratified. 30 If the pleader goes beyond the
requirements of the statute and alleges an irrelevant matter which is libelous, he loses his
privilege. 31
A matter, however, to which the privilege does not extend must be so palpably wanting in
relation to the subject matter of the controversy that no reasonable man can doubt its
irrelevancy or impropriety. 32 That matter alleged in a pleading need not be in every case
material to the issues presented by the pleadings. It must, however,
be legitimately related thereto, or so pertinent to the subject of the controversy that it may
become the subject of inquiry in the course of the trial. 33
The first cause of action of complainants is based on respondent's allegation in his "Motion
to Expedite" that a burglary of the UEFA office took place, and his imputation to
complainants of a plausible motive for carrying out the burglary — the concealment and
destruction of vital documents relating to the audit. The imputation may be false but it could
indeed possibly prompt the BLR to speed up the resolution of the audit case. In that light,
this Court finds that the first cause of action may not lie.
As regards the second cause of action, it appears that respondent was irked by Atty. Torres'
Answer to the complaint in the attorney's fees case wherein he criticized his (respondent's)
wife's performance as past President of UEFA.
This Court does not countenance Atty. Torres' incorporating in his Answer in the attorney's
fees case statements such as "the assembly . . . was apparently irked by Mrs. Eleonor Javier
when she was booed while talking on the floor like a confused gabble (sic)." But neither does
it countenance respondent's retaliating statements like "what kind of lawyer is Atty.
Torres?," "he lies through his teeth," "if he has any common sense at all he should shut up,"
and "Atty. Torres forgets the sad chapter of his life as a practitioner when he lost out to Prof.
Javier in the petition for audit which he filed to gain pogi points." Nor respondent's emphasis
that Atty. Torres is of the habit of hurling baseless accusations against his wife by stating
that the dismissal of the cases against his wife, of which Atty. Torres was the complainant,
"indubitably indicate Atty. Torres' pattern of mental dishonesty."
The issue in the attorney's fees case was whether the 10% attorney's fees "checked off" from
the initial backwages/salaries of UEFA members is legal. Clearly, the above-quoted
statements of respondent in the immediately preceding paragraph cannot be said to be
relevant or pertinent to the issue. That Atty. Torres may have conducted himself improperly
is not a justification for respondent to be relieved from observing professional conduct in his
relations with Atty. Torres.
Clients, not lawyers, are the litigants, so whatever may be the ill-feeling existing between
clients should not be allowed to influence counsel in their conduct toward each other or
toward suitors in the case. 34
In the attorney's fees case, Atty. Torres was acting as counsel for himself as respondent and
complainant was acting as counsel for his wife as complainant. Although it is
understandable, if not justifiable, that in the defense of one's clients — especially of one's
wife or of one's self, the zeal in so doing may be carried out to the point of undue skepticism
and doubts as to the motives of opposing counsel, the spectacle presented by two members
of the bar engaged in bickering and recrimination is far from edifying, and detract from the
dignity of the legal profession. 35
Moreover, in arguing against the dismissal of the attorney's fees case on the basis of the
alleged forgery of the notary public's signature, respondent did not only endeavor to point
out that Atty. Torres erred in advancing such an argument, but personally attacked Atty.
Torres' mental fitness by stating that "the undersigned thinks that even a dim-witted first-
year law student would not oblige with such a very serious charge," and "[r]espondent
Torres is a member of the bar [b]ut what law books is he reading." DACTSH
In keeping with the dignity of the legal profession, a lawyer's language must be dignified and
choice of language is important in the preparation of pleadings. 36 In the assertion of his
client's rights, a lawyer — even one gifted with superior intellect — is enjoined to rein up his
temper. 37
As reflected above, the inclusion of the derogatory statements by respondent was actuated
by his giving vent to his ill-feelings towards Atty. Torres, a purpose to which the mantle of
absolute immunity does not extend. Personal colloquies between counsel which cause delay
and promote unseemly wrangling should be carefully avoided. 38
If indeed Atty. Torres filed criminal complaints for falsification of public documents against
respondent's clients as a scheme to harass them, they are not without adequate recourse in
law, for if they plead for a righteous cause, the course of justice will surely tilt in their favor,
the courts being ever vigilant in the protection of a party's rights. 39
Canon 8 of the Code of Professional Responsibility which provides:
CANON 8 — A LAWYER SHALL CONDUCT HIMSELF WITH
COURTESY, FAIRNESS AND CANDOR TOWARD HIS PROFESSIONAL
71
COLLEAGUES, AND SHALL AVOID HARASSING TACTICS AGAINST
OPPOSING COUNSEL.
Rule 8.01. A lawyer shall not, in professional dealings, use language
which is abusive, offensive or otherwise improper.
instructs that respondent's arguments in his pleadings should be gracious to both the
court and opposing counsel and be of such words as may be properly addressed by one
gentleman to another. 40 The language vehicle does not run short of expressions which
are emphatic but respectful, convincing but not derogatory, illuminating but not
offensive. 41
As to the reference by respondent to the unfortunate and contemptible practice of notaries
public — basis of the last cause of action, while it may detract from the dignity that should
characterize the legal profession and the solemnity of a notarial document, respondent, who
justifies the same as legitimate defense of his client who was being accused by Atty. Torres
of forgery, may, given the relevance of the statement to the subject matter of the pleading,
be given the benefit of the doubt.
Respecting the verified complaint — Annex "EJ-A" 42 to the Comment of respondent filed by
his wife, Prof. Eleonor R. Javier, against complainant Atty. Torres, the same cannot be
consolidated with the present administrative case since the parties and causes of action of
such complaint are completely different from those of the present complaint.
WHEREFORE, for employing offensive and improper language in his pleadings, respondent
Atty. Jose C. Javier is hereby SUSPENDED from the practice of law for One (1) Month,
effective upon receipt of this Decision, and is STERNLY WARNED that any future infraction
of a similar nature shall be dealt with more severely.
Let copies of this Decision be furnished the Office of the Bar Confidant, the Integrated Bar of
the Philippines, and all courts in the country for their information and guidance. CSHcDT
SO ORDERED.
||| (Torres v. Javier, A.C. No. 5910, [September 21, 2005], 507 PHIL 397-409)
[A.C. No. 3149. August 17, 1994.]
CERINA B. LIKONG, petitioner, vs. ATTY. ALEXANDER H.
LIM, respondent.
DECISION
PADILLA, J p:
Cerina B. Likong filed this administrative case against Atty. Alexander H. Lim, seeking the
latter's disbarment for alleged malpractice and grave misconduct.
The circumstances which led to the filing of this complaint are as follows:
Sometime in September 1984, complainant obtained a loan of P92,100.00 from a certain
Geesnell L. Yap. Complainant executed a promissory note in favor of Yap and a deed of
assignment, assigning to Yap pension checks which she regularly received from the United
States government as a widow of a US pensioner. The aforementioned deed of assignment
states that the same shall be irrevocable until the loan is fully paid. Complainant likewise
executed a special power of attorney authorizing Yap to get, demand, collect and receive
her pension checks from the post office at Tagbilaran City. The above documents were
apparently prepared and notarized by respondent Alexander H. Lim, Yap's counsel.
On 11 December 1984, about three (3) months after the execution of the aforementioned
special power of attorney, complainant informed the Tagbilaran City post office that she
was revoking the special power of attorney. As a consequence, Geesnell Yap filed a
complainant for injunction with damages against complainant. Respondent Alexander H.
Lim appeared as counsel for Yap while Attys. Roland B. Inting and Erico B. Aumentado
appeared for complainant (as defendant).
A writ of preliminary injunction was issued by the trial court on 23 January 1985, preventing
complainant from getting her pension checks from the Tagbilaran City post office. Yap later
filed an urgent omnibus motion to cite complainant in contempt of court for attempting to
circumvent the preliminary injunction by changing her address to Mandaue city. Upon
motion by Yap, the court also issued an order dated 21 May 1985 expanding all post offices
in the Philippines from releasing pension checks to complainant.
On 26 July 1985, complainant and Yap filed a joint motion to allow the latter to withdraw the
pension checks. This motion does not bear the signatures of complainants' counsel of record
but only the signatures of both parties, "assisted by" respondent Attorney Alexander H. Lim.
On 2 August 1985, complainant and Yap entered into a compromise agreement again
without the participation of the former's counsel. In the compromise agreement, it was
stated that complainant Cerino B. Likong admitted an obligation to Yap of P150,000.00. It
was likewise stated therein that complainant and Yap agreed that the amount would be paid
in monthly installments over a period of 54 months at an interest of 40% per annum
discounted every six (6) months. The compromise agreement was approved by the trial court
on 15 August 1985.
On 24 November 1987, Cerina B. Likong filed the present complaint for disbarment, based
on the following allegations:
"7. In all these motions, complainant was prevented from seeking
assistance, advise and signature of any of her two (2) lawyers; no copy
thereof was furnished to either of them or at least to complainant
herself despite the latter's pleas to be furnished copies of the same;
8. Complainant was even advised by respondent that it was not
necessary for her to consult her lawyers under the pretense that: (a)
72
this could only jeopardize the settlement; (b) she would only be
incurring enormous expense if she consulted a new lawyer; (c)
respondent was assisting her anyway; (d) she had nothing to worry
about the documents foisted upon her to sign; (e) complainant need
not come to court afterwards to save her time; and in any event
respondent already took care of everything;
9. Complainant had been prevented from exhibiting fully her case by
means of fraud, deception and some other form of mendacity
practiced on her respondent;
10. Finally, respondent fraudulently or without authority assumed to
represent complainant and connived in her defeat; . . ." 1
Respondent filed his Answer stating that counsel for complainant, Atty. Roland B. Inting had
abandoned his client. Atty. Lim further stated that the other counsel, Atty. Enrico
Aumentado, did not actively participate in the case and it was upon the request of
complainant and another debtor of Yap, Crispina Acuna, that he (respondent) made the
compromise agreement.
Respondent states that he first instructed complainant to notify her lawyers but was
informed that her lawyer had abandoned her since she could not pay his attorney's fees.
Complainant filed a reply denying that she had been abandoned by her lawyers.
Complainant stated that respondent never furnished her lawyers with copies of the
compromise agreement and a motion to withdraw the injunction cash bond deposited by
Yap.
At the outset, it is worth noting that the terms of the compromise agreement are indeed
grossly loaded in favor of Geesnell L. Yap, respondent's client.
Complainant's original obligation was to pay P92,100.00 within one (1) year from 4 October
1984. There is no provision in the promissory note signed by her with respect to any interest
to be paid. The only additional amount which Yap could collect based on the promissory
note was 25% of the principal as attorney's fees in case a lawyer was hired by him to collect
the loan.
In the compromise agreement prepared by respondent, dated 2 August 1985, complainant's
debt to Yap was increased to P150,000.00 (from 92,100.00) after the lapse of only ten (10)
months. This translates to an interest in excess of seventy-five percent (75%) per annum. In
addition, the compromise agreement provides that the P150,000.00 debt would be payable
in fifty-four (54) monthly installments at an interest of forty percent (40%) per annum. No
great amount of mathematical prowess is required to see that the terms of the compromise
agreement are grossly prejudicial to complainant.
With respect to respondent's failure to notify complainant's counsel of the compromise
agreement, it is of record that complainant was represented by two (2) lawyers, Attys. Inting
and Aumentado. Complainant states that respondent prevented her from informing her
lawyers by giving her the reasons enumerated in the complaint and earlier quoted in this
decision.
There is no showing that respondent even tried to inform opposing counsel of the SO ORDERED.
compromise agreement. Neither is there any showing that respondent informed the trial
court of the alleged abandonment of the complainant by her counsel. ||| (Likong v. Lim, A.C. No. 3149, [August 17, 1994])

Instead, even assuming that complainant was really abandoned by her counsel, respondent
saw an opportunity to take advantage of the situation, and the result was the execution of I, do solemnly swear that I will maintain allegiance to the
the compromise agreement which, as previously discussed, is grossly and patently Republic of the Philippines,
disadvantageous and prejudicial to complainant.
I will support the Constitution and
Undoubtedly, respondent's conduct is unbecoming a member of the legal profession. obey the laws
Canon 9 of the Code of Professional Ethics states: as well as the legal orders
of the duly constituted authorities therein;
"9. Negotiations with opposite party.
I will do no falsehood,
A lawyer should not in any way communicate upon the subject of nor consent to the doing of any in court;
controversy with a party represented by counsel; much less should he
I will not wittingly or willingly promote or sue any
undertake to negotiate or compromise the matter with him, but
should deal only with his counsel. It is incumbent upon the lawyer groundless, false or unlawful suit, or give aid nor consent
most particularly to avoid everything that may tend to mislead a party to the same;
not represented by counsel and he should not undertake to advise him I will delay no man for money or malice, and will conduct
as to the law."
myself as a lawyer according to the best of my knowledge
The Code of Professional Responsibility states: and discretion, with all good fidelity as well to the courts as
"Rule 1.01 — A lawyer shall not engage in unlawful, dishonest, to my clients;
immoral, or deceitful conduct. and I impose upon myself these voluntary obligations
Rule 8.02 — A lawyer shall not, directly or indirectly, encroach upon without any mental reservation or purpose of evasion.
the professional employment of another lawyer; however, it is the So help me God.
right of any lawyer, without fear or favor, to give proper advice and
assistance to those seeking relief against unfaithful or neglectful
counsel.

Rule 15.03 — A lawyer shall not represent conflicting interest except

by written consent of all concerned given after a full disclosure of the
facts."

The violation of the aforementioned rules of professional conduct by respondent Atty.

Alexander H. Lim, warrants the imposition upon him of the proper sanction from this Court.
Such acts constituting malpractice and grave misconduct cannot be left unpunished for not
only do they erode confidence and trust in the legal profession, they likewise prevent justice
from being attained.

ACCORDINGLY, respondent Atty. Alexander H. Lim is hereby imposed the penalty

SUSPENSION from the practice of law for a period of ONE (1) YEAR, effective immediately
upon his receipt of this decision.

Let a copy of this decision be entered in respondent's personal record as attorney and
member of the Bar, and furnished the Bar Confidant, the Integrated Bar of the Philippines
and the Court Administrator for circulation to all courts in the country.

73