PART IV ADMISSION TO PRACTICE20 CASE DIGESTS
IN RE: VICTORIO LANUEVO (former Bar confidant)
FACTS:
Administrative proceeding against Victorio Lanuevo for
disbarment.1. Admitted having brought the five examination
notebooks of Ramon E. Galang back to the respective examiners for
re-evalution or re-checking.2. The five examiners admitted having
re-evaluated or re-checked the notebook to him by the Bar
Confidant, stating that he has the authority to do the same and
that the examinee concerned failed only in his particular subject
and was on the borderline of passing.3. Ramon galang was able to
pass the 1971 bar exam because of Lanuevos move but the exam
results bears that he failed in 5 subjects namely in (Political,
Civil, Mercantile, Criminal & Remedial).4. Galang on the
otherhand, denied of having charged of Slight Physical Injuries on
Eufrosino de Vera, a law student of MLQU.
RULING:The court disbarred Lanuevo has no authority to request
the examiners to re-evaluate grades of examinees w/o prior
authority from Supreme Court.
He does not possess any discretion with respect to the matter of
admission of examinees to the bar. He does not a have any business
evaluating the answers of the examinees.Consequently, Galang was
also disbarred Sec. 2 of Rule 138 of the Revised Rules of Curt of
1964, candidates for admission to the bar must be of good moral
character. Galang has a pending criminal cases of Physical
Injuries, he committed perjury when he declared under oath that he
had no pending criminal case this resulted him to revoked his
license.
FIRST LEPANTO CERAMICS, INC., petitioner, vs. THE COURT OF
APPEALS and MARIWASA MANUFACTURING, INC., respondents.
FACTS: BOI granted petitioner First Lepanto Ceramics, Inc.'s
application to amend its BOI certificate of registration by
changing the scope of its registered product from "glazed floor
tiles" to "ceramic tiles." Eventually, oppositor Mariwasa filed a
motion for reconsideration of the said BOI decision while oppositor
Fil-Hispano Ceramics, Inc. did not move to reconsider the same nor
appeal therefrom. Soon rebuffed in its bid for reconsideration,
Mariwasa filed a petition for review with respondent Court of
Appeals pursuant to Circular 1-91.
Respondent court required the BOI and petitioner to comment on
Mariwasa's petition and to show cause why no injunction should
issue
Petitioner filed a "Motion to Dismiss Petition and to Lift
Restraining Order" on the ground that respondent court has no
appellate jurisdiction over BOI Case No. 92-005, the same being
exclusively vested with the Supreme Court pursuant to Article 82 of
the Omnibus Investments Code of 1987.
Motion to dismiss was denied.
Filed certiorari.
PETITIONER: argues that the Judiciary Reorganization Act of 1980
or Batas Pambansa Bilang 129 and Circular 1-91, "Prescribing the
Rules Governing Appeals to the Court of Appeals from a Final Order
or Decision of the Court of Tax Appeals and Quasi-Judicial
Agencies" cannot be the basis of Mariwasa's appeal to respondent
court because the procedure for appeal laid down therein runs
contrary to Article 82 of E.O. 226, which provides that appeals
from decisions or orders of the BOI shall be filed directly with
this Court
PRIVATE RESPONDENT: maintains that whatever "obvious
inconsistency" or "irreconcilable repugnancy" there may have been
between B.P. 129 and Article 82 of E.O. 226 on the question of
venue for appeal has already been resolved by Circular 1-91 of the
Supreme Court, which was promulgated on February 27, 1991 or four
(4) years after E.O. 226 was enacted.
RULING:
It may be called that Section 9(3) of B.P. 129 vests appellate
jurisdiction over all final judgments, decisions, resolutions,
orders or awards of quasi-judicial agencies on the Court of
Appeals
Clearly evident in the aforequoted provision of B.P. 129 is the
laudable objective of providing a uniform procedure of appeal from
decisions of all quasi-judicial agencies for the benefit of the
bench and the bar. Equally laudable is the twin objective of B.P.
129 of unclogging the docket of this Court to enable it to attend
to more important tasks
Less concerned with the decisions of cases that begin and end
with the transient rights and obligations of particular individuals
but is more intertwined with the direction of national policies,
momentous economic and social problems, the delimitation of
governmental authority and its impact upon fundamental rights.
The question of where and in what manner appeals from decisions
of the BOI should be brought pertains only to procedure or the
method of enforcing the substantive right to appeal granted by E.O.
226. In other words, the right to appeal from decisions or final
orders of the BOI under E.O. 226 remains and continues to be
respected. Circular 1-91 simply transferred the venue of appeals
from decisions of this agency to respondent Court of Appeals and
provided a different period of appeal, i.e., fifteen (15) days from
notice. It did not make an incursion into the substantive right to
appeal.
Circular 1-91 effectively repealed or superseded Article 82 of
E.O. 226 insofar as the manner and method of enforcing the right to
appeal from decisions of the BOI are concerned. Appeals from
decisions of the BOI, which by statute was previously allowed to be
filed directly with the Supreme Court, should now be brought to the
Court of Appeals.
Dismissed.
IN RE CUNANAN94 PHIL. 534FACTS:
Congress passed Rep. Act No. 972, or what is known as the Bar
Flunkers Act, in 1952. The title of the law was, An Act to Fix the
Passing Marks for Bar Examinations from 1946 up to and including
1955.Section 1 provided the following passing
marks:1946-195170%1952 .71%1953..72%1954..73%1955..74%
Provided however, that the examinee shall have no grade lower
than 50%.
Section 2 of the Act provided that A bar candidate who obtained
a grade of 75% in any subject shall be deemed to have already
passed that subject and the grade/grades shall be included in the
computation of the general average in subsequent bar
examinations.
ISSUE:Whether of not, R.A. No. 972 is constitutional.
RULING:Section 2 was declared unconstitutional due to the fatal
defect of not being embraced in the title of the Act. As per its
title, the Act should affect only the bar flunkers of 1946 to 1955
Bar examinations. Section2 establishes a permanent system for an
indefinite time. It was also struck down for allowing partial
passing, thus failing to take account of the fact that laws and
jurisprudence are not stationary.
As to Section1, the portion for 1946-1951 was declared
unconstitutional, while that for 1953 to 1955 was declared in force
and effect. The portion that was stricken down was based under the
following reasons:
1. The law itself admits that the candidates for admission who
flunked the bar from 1946 to 1952 had inadequate preparation due to
the fact that this was very close to the end of World War II;2. The
law is, in effect, a judgment revoking the resolution of the court
on the petitions of the said candidates;3. The law is an
encroachment on the Courts primary prerogative to determine who may
be admitted to practice of law and, therefore, in excess of
legislative power to repeal, alter and supplement the Rules of
Court. The rules laid down by Congress under this power are only
minimum norms, not designed to substitute the judgment of the court
on who can practice law; and4. The pretended classification is
arbitrary and amounts to class legislation.
As to the portion declared in force and effect, the Court could
not muster enough votes to declare it void. Moreover, the law was
passed in 1952, to take effect in 1953. Hence, it will not revoke
existing Supreme Court resolutions denying admission to the bar of
an petitioner. The same may also rationally fall within the power
to Congress to alter, supplement or modify rules of admission to
the practice of law.
It will be noted that the Constitution has not conferred on
Congress and this Tribunal equal responsibilities concerning the
admission to the practice of law. the primary power and
responsibility which the Constitution recognizes continue to reside
in this Court. Had Congress found that this Court has not
promulgated any rule on the matter, it would have nothing over
which to exercise the power granted to it. Congress may repeal,
alter and supplement the rules promulgated by this Court, but the
authority and responsibility over the admission, suspension,
disbarment and reinstatement of attorneys at law and their
supervision remain vested in the Supreme Court. The power to
repeal, alter and supplement the rules does not signify nor permit
that Congress substitute or take the place of this Tribunal in the
exercise of its primary power on the matter. The Constitution does
not say nor mean that Congress may admit, suspend, disbar or
reinstate directly attorneys at law, or a determinate group of
individuals to the practice of law. Its power is limited to repeal,
modify or supplement the existing rules on the matter, if according
to its judgment the need for a better service of the legal
profession requires it. But this power does not relieve this Court
of its responsibility to admit, suspend, disbar and reinstate
attorneys at law and supervise the practice of the legal
profession.
Being coordinate and independent branches, the power to
promulgate and enforce rules for the admission to the practice of
law and the concurrent power to repeal, alter and supplement them
may and should be exercised with the respect that each owes to the
other, giving careful consideration to the responsibility which the
nature of each department requires. These powers have existed
together for centuries without diminution on each part; the
harmonious delimitation being found in that the legislature may and
should examine if the existing rules on the admission to the Bar
respond to the demands which public interest requires of a Bar
endowed with high virtues, culture, training and responsibility.
The legislature may, by means of appeal, amendment or supplemental
rules, fill up any deficiency that it may find, and the judicial
power, which has the inherent responsibility for a good and
efficient administration of justice and the supervision of the
practice of the legal profession, should consider these reforms as
the minimum standards for the elevation of the profession, and see
to it that with these reforms the lofty objective that is desired
in the exercise of its traditional duty of admitting, suspending,
disbarring and reinstating attorneys at law is realized.
They are powers which, exercise within their proper
constitutional limits, are not repugnant, but rather complementary
to each other in attaining the establishment of a Bar that would
respond to the increasing and exacting necessities of the
administration of justice.
It is obvious, therefore, that the ultimate power to grant
license for the practice of law belongs exclusively to this Court,
and the law passed by Congress on the matter is of permissive
character, or as other authorities say, merely to fix the minimum
conditions for the license.
Pursuant to the law in question, those who, without a grade
below 50 per cent in any subject, have obtained a general average
of 69.5 per cent in the bar examinations in 1946 to 1951, 70.5 per
cent in 1952, 71.5 per cent in 1953, and those will obtain 72.5 per
cent in 1954, and 73.5 per cent in 1955, will be permitted to take
and subscribe the corresponding oath of office as members of the
Bar, notwithstanding that the rules require a minimum general
average of 75 per cent, which has been invariably followed since
1950. Is there any motive of the nature indicated by the
abovementioned authorities, for this classification ? If there is
none, and none has been given, then the classification is fatally
defective.
Kuroda vs. JalandoniG.R. L-2662, March 26, 1949Ponente: Moran,
C.J.
Facts:1. Petitioner Sheginori Kuroda was the former Lt. General
of the Japanese Army and commanding general of the Japanese forces
during the occupation (WWII) in the country. He was tried before
the Philippine Military Commission for War Crimes and other
atrocities committed against military and civilians. The military
commission was establish under Executive Order 68.
2. Petitioner assails the validity of EO 68 arguing it is
unconstitutional and hence the military commission did not have the
jurisdiction to try him on the following grounds:
That the Philippines is not a signatory to the Hague Convention
(War Crimes) That the participation in the prosecution of the case
against petitioner before the Commission in behalf of the United
State of America of attorneys Melville Hussey and Robert Port who
are not attorneys authorized by the Supreme Court to practice law
in the Philippines is a diminution of our personality as an
independent state and their appointment as prosecutor are a
violation of our Constitution for the reason that they are not
qualified to practice law in the Philippines. That Attorneys Hussey
and Port have no personality as prosecution the United State not
being a party in interest in the case.
3. Petitioner likewise assails that the US is not a party of
interest in the case hence the 2 US prosecutors cannot practice law
in the Philippines.
Executive Order No. 68, establishing a National War Crimes
Office prescribing rule and regulation governing the trial of
accused war criminals, was issued by the President of the
Philippines on the 29th days of July, 1947 This Court holds that
this order is valid and constitutional.
Petitioner challenges the participation of two American
attorneys namely Melville S. Hussey and Robert Port in the
prosecution of his case on the ground that said attorney's are not
qualified to practice law in Philippines in accordance with our
Rules of court and the appointment of said attorneys as prosecutors
is violative of our national sovereignty.
Issue: Whether or not EO 68 is constitutional thus the military
tribunal jurisdiction is valid
HELD:
EO 68 is constitutional hence the tribunal has jurisdiction to
try Kuroda. EO 68 was enacted by the President and was in
accordance with Sec. 3, Art. 2 of Constitution which renounces war
as an instrument of national policy. Hence it is in accordance with
generally accepted principles of international law including the
Hague Convention and Geneva Convention, and otherinternational
jurisprudence established by the UN, including the principle that
all persons (military or civilian) guilty of plan, preparing,
waging a war of aggression and other offenses in violation of laws
and customs of war.The Philippines may not be a signatory to the 2
conventions at that time but the rules and regulations of both are
wholly based on the generally accepted principles of international
law. They were accepted even by the 2 belligerent nations (US and
Japan)
In the first place respondent Military Commission is a special
military tribunal governed by a special law and not by the Rules of
court which govern ordinary civil court. It has already been shown
that Executive Order No. 68 which provides for the organization of
such military commission is a valid and constitutional law. There
is nothing in said executive order which requires that counsel
appearing before said commission must be attorneys qualified to
practice law in the Philippines in accordance with the Rules of
Court. In facts it is common in military tribunals that counsel for
the parties are usually military personnel who are neither
attorneys nor even possessed of legal training.
Secondly the appointment of the two American attorneys is not
violative of our nation sovereignty. It is only fair and proper
that United States, which has submitted the vindication of crimes
against her government and her people to a tribunal of our nation
should be allowed representation in the trial of those very crimes.
If there has been any relinquishment of sovereignty it has not been
by our government but by the United State Government which has
yielded to us the trial and punishment of her enemies. The least
that we could do in the spirit of comity is to allow them
representation in said trials.Alleging that the United State is not
a party in interest in the case petitioner challenges the
personality of attorneys Hussey and Port as prosecutors. It is of
common knowledge that the United State and its people have been
equally if not more greatly aggrieved by the crimes with which
petitioner stands charged before the Military Commission. It can be
considered a privilege for our Republic that a leader nation should
submit the vindication of the honor of its citizens and its
government to a military tribunal of our country.
The Military Commission having been convened by virtue of a
valid law with jurisdiction over the crimes charged which fall
under the provisions of Executive Order No. 68, and having said
petitioner in its custody, this Court will not interfere with the
due process of such Military commission.
OMICO MINING AND INDUSTRIAL CORPORATION and FREDERICK G. WEBBER,
petitioners,vs.JUDGE AMADOR T. VALLEJOS, in his capacity as Judge
of the Court of First Instance of Cavite, ALFREDO CATOLICO, and
LEONARDO ALCID, in his capacity as City Sheriff of Manila,
respondents.
FACTS:
Alfredo Catolico (herein private respondent), then a judge of
the Court of First Instance of Cavite, filed with said court a
complaint, docketed as Civil Case No. N-1963 and assigned to Branch
II presided by respondent Judge Amador T. Vallejos, against Omico
Mining and Industrial Corporation and Frederick G. Webber, the
latter in his personal capacity and as President and Chairman of
the Board of Directors of said corporation, alleging two (2) causes
of action
The first, for the return of ten (10) certificates of stock of
the corporation borrowed from him by the defendants, and the
second, for the payment of his services as legal counsel for the
corporation
Under the second cause of action, plaintiff after reproducing
the pertinent averments in the first cause of action, among which
is the averment that he is a judge of the Court of First Instance
of Cavite, further alleged that on October 13, 1968, both
defendants entered into a contract of personal and professional
services with him under the terms of which he was to head defendant
corporation's legal department with the condition that he should
render such services only after his office hours, "even into the
dead wee hours of the night and wherever such services would not
run in conflict with his duties as Judge"; that in consideration of
such services, the defendants undertook to pay him a yearly salary
of P35,000.00 from the date of the contract, but where a case shall
have been settled in and out of court, and defendants shall have
won or saved money because of such settlement, he shall be paid by
way of commission ten percent (10%) of the amount involved in the
litigation and/or settlement; that, pursuant to said contract, he
has rendered legal services as head of the legal department of
defendant Omico
Filed a motion to dismiss1. Improper venue2. Lack of cause of
action. It was agreed that the plaintiff shall head the legal
department of defendant Omico Mining & Industrial Corporation,
the same is illegal, void and unenforceable, plaintiff being a
judge of the Court of First Instance who is prohibited by Section
35 of Rule 138 of the Revised Rules of Court from engaging in
private practice as a member of the Bar
While the motion to dismiss was pending resolution by the court
because defendants had not yet presented to the court the required
proof of service, filed a petition to declare the defendants in
default and to allow him to present his evidence ex parte
While defendants' motion for reconsideration was still pending
before the court because the defendants had not filed yet their
reply to the opposition as they had not received a copy thereof,
plaintiff Catolico filed a motion for immediate execution of
judgment, alleging, among other things, that said judgment had
already become final and executory because the defendants failed to
have the order of default lifted
Denied
The court appointed the City Sheriff of Manila, herein
respondent Leonardo Alcid, to execute said writ of execution.
Acting Executive Sheriff Dominador Q. Cacpal served a notice of
garnishment to the defendants, together with a writ of execution
issued by the respondent Judge.
Because of the impending execution of the judgment by default
which they believe to be illegal, defendants, on July 25, 1974,
filed with this Court the instant petition praying, among other
things, that respondent Judge be restrained from commanding the
City Sheriff of Manila, or his duly authorized representative, to
execute the decision
Private respondent filed a motion to dismiss said petition on
the ground that the remedy of certiorari and prohibition is no
longer available to the herein petitioners, inasmuch as they had
already perfected their appeal.
ISSUE: whether the respondent Judge acted without or in excess
of jurisdiction or with grave abuse of discretion in declaring the
defendants in default, in receiving plaintiff's evidence ex parte
and in rendering judgment thereon.
RULING:
To Our mind, what is decisive here is that plaintiff had
sufficient notice of the time and place of the hearing of the
motion to dismiss.
We notice the ambivalence with which the respondent Judge
applied the rules. Thus, while he was unduly strict regarding the
requirements of notice of hearing to the defendants, he was, at the
same time, unduly liberal with respect to the plaintiff. For
instance, plaintiff's Motion for Reconsideration did not contain
any notice of hearing, or proof of service thereof, or even the
address of the plaintiff who signed personally said motion.
Notwithstanding the absence of these data, respondent Judge readily
granted the motion. Then there is plaintiff's motion for immediate
execution of judgment pending appeal.
There is, moreover, the consideration that the challenged
judgment seeks to enforce a contract which is patently void because
it is contrary to law and public policy. The contract of
professional services entered into between private respondent and
the petitioners, while the former was still a judge of the Court of
First Instance, constituted private practice of law and in
contravention of the express provision of Section 35 of Rule 138 of
the Revised Rules of Court. The aforecited Rule was promulgated by
this Court, pursuant to its constitutional power to regulate the
practice of law. It is based on sound reasons of public policy, for
there is no question that the rights, duties, privileges and
functions of the office of an attorney-at-law are so inherently
incompatible with the high official functions, duties, powers,
discretions and privileges of a judge of the Court of First
Instance.
This inhibitory rule makes it obligatory upon the judicial
officers concerned to give their full time and attention to their
judicial duties, prevent them from extending special favors to
their own private interests and assure the public of their
impartiality in the performance of their functions. These
objectives are dictated by a sense of moral decency and the desire
to promote the public interest.
Private respondent should have known or ought to know, that when
he was elevated to the Bench of the Court of First Instance as a
judge thereof, his right to practice law as an attorney was
suspended and continued to be suspended as long as he occupied the
judicial position.
It is evident, therefore, that the aforesaid contract is void
because a contract, whose cause, object or purpose is contrary to
law, morals, good customs, public order or public policy, is
considered inexistent and void from the beginning.
RE: REMEDY
The remedy provided for in the above-quoted rule is properly,
though not exclusively, available to a defendant who has been
validly declared in default. It does not preclude a defendant who
has been illegally declared in default from pursuing a more speedy
and efficacious remedy, like a petition for certiorari to have the
judgment by default set aside as a nullity.
It should be emphasized that a defendant who is properly
declared in default is differently situated from one who is
improvidently declared in default. The former irreparably loses his
right to participate in the trial, while the latter retains such a
right and may exercise the same after having the order of default
and the subsequent judgment by default annulled and the case
remanded to the court of origin.
WHEREFORE, certiorari is granted and the default order, judgment
and writ of execution rendered by the respondent Judge in Civil
Case No. N-1963 are hereby set aside, and the respondent Judge is
ordered to hear and decide the motion to dismiss the complaint,
taking into account Our foregoing opinion. The temporary
restraining order is made permanent, with costs against private
respondent.
People v. Simplicio VillanuevaG.R. No. L-19450 May 27,
1965PAREDES, J.:
FACTS:Simplicio Villanueva was charged with the Crime of
Malicious Mischief before the Justice of the Peace Court of
Alaminos, Laguna. The complainant in the same case was represented
by City Attorney Ariston Fule of San Pablo City, having entered his
appearance as private prosecutor, after securing the permission of
the Secretary of Justice. The condition of his appearance as such,
was that every time he would appear at the trial of the case, he
would be considered on official leave of absence, and that he would
not receive any payment for his services. The appearance of City
Attorney Fule as private prosecutor was questioned by the counsel
for the accused invoking Section 32 of Rule 127 (now Sec. 35, Rule
138, Revised Rules), which provides that "no judge or other
official or employee of the superior courts or of the office of the
Solicitor General, shall engage in private practice as a member of
the bar or give professional advice to clients."
ISSUE: WON City Attorney Fule was engaging in private law
practice.
HELD:NO. The Court believes that the isolated appearance of City
Attorney Fule did not constitute private practice within the
meaning and contemplation of the Rules. Practice is more than an
isolated appearance, for it consists in frequent or customary
actions, a succession of acts of the same kind. In other words, it
is frequent habitual exercise. Practice of law to fall within the
prohibition of statute has been interpreted as customarily or
habitually holding one's self out to the public, as customarily and
demanding payment for such services. The appearance as counsel on
one occasion is not conclusive as determinative of engagement in
the private practice of law.
Essentially, the word private practice of law implies that one
must have presented himself to be in the active and continued
practice of the legal profession and that his professional services
are available to the public for a compensation, as a source of his
livelihood or in consideration of his said services.
Sec. 31, Rule 127 of the Rules of Court provides that in the
court of a justice of the peace a party may conduct his litigation
in person, with the aid of an agent or friend appointed by him for
that purpose, or with the aid of an attorney. Assistant City
Attorney Fule appeared in the Justice of the Peace Court as an
agent or friend of the offended party. It does not appear that he
was being paid for his services or that his appearance was in a
professional capacity.
For one thing, it has never been refuted that City Attorney Fule
had been given permission by his immediate superior, the Secretary
of Justice, to represent the complainant in the case at bar, who is
a relative.
CONCEPCION DIA-AONUEVO v. MUN. JUDGE BONIFACIO B. BERCACIO OF
TABACO, ALBAYA.M. No. 177-MJ November 27, 1975MUOZ PALMA, J.
FACTS:
Respondent, incumbent Municipal Judge of Tabaco, Albay, faces
this administrative complaint for conduct unbecoming a judge on two
counts: (1) engaging in the practice of law, and (2) failure to
return promptly to complainant, Concepcion Dia-Aonuevo, the money
deposited with him.
Complainant, Dia-Aonuevo, claims to be a co-owner of an
undivided interest of a certain parcel of riceland. This property
was the object of a deed of sale executed by the other co-owners
owning only one-third undivided portion of the property and
acknowledged before the respondent, Municipal Judge Bonifacio
Bercacio, as ex-officio notary public. Judge Bercacio advised the
complainant to redeem or repurchase the property from the vendee,
Alfredo Ong. Complainant then requested the judge to intercede in
their behalf with the vendee to allow them to redeem the property
and for that purpose she gave respondent the amount of P3,500.00 to
be used to pay the vendee. Respondent agreed and received the
amount of P3,500.00 for which he issued a receipt. Respondent sent
a letter to Alfredo Ong but the latter did not answer. A complaint
was filed for the annulment of sale of real property and redemption
with damages. This complaint was prepared by "Eligio R. Berango
& B.B. Bercacio & Ass." as counsel for the plaintiffs, with
Eligio R. Berango signing the complaint.
During the pendency of the civil case, complainant, in need of
money, asked respondent judge to allow her to withdraw P1,500.00
from the P3,500.00 she had deposited with him but no action was
taken by respondent. The verbal request was followed by several
letters advising Judge Bercacio that complainant was withdrawing
the amount of P3,500.00. Eliciting no response, filed the present
complaint.
ISSUE: WON respondent engaged in the practice of law.
HELD:
Respondents actuations fall within the definition of practice of
law. The active interest he took in the case of Mrs. Aonuevo
manifested as follows: (a) He gave Mrs. Aonuevo legal advice on the
remedy available to her and her co-owners with regards to the
property sold to Alfredo Ong; (b) He accepted from Mrs. Aonuevo the
sum of P3,500.00 for purposes of redeeming the property from the
vendee, plus P100.00 for incidental expenses; (c) He wrote to
Alfredo Ong for and in behalf of Mrs. Aonuevo and her co-owners
offering to redeem the land in question; (d) When his attempts at
an out-of court settlement failed, he caused the filing of the
complaint in Civil Case No. 4591, for which he was issued a receipt
for docket and legal research fees; (e) He was present together
with Atty. Berango at the pre-trial.
The practice of law is not limited to the conduct of cases in
court or participation in court proceedings but also includes
preparation of pleadings or papers in anticipation of a litigation,
giving of legal advice to clients or persons needing the same,
etc.
Hence, respondent violated the Circular issued by the Secretary
of Justice in relation to Section 77 of the Judiciary Act of 1948,
as amended, which provides that no Municipal Judge shall engage in
private practice as a member of the bar or give professional advice
to clients.
Respondent Judge Bonifacio B. Bercacio guilty as charged, and
hereby suspend him from office for a period of six (6) months
effective immediately upon finality of this decision, with the
warning that commission of other acts unbecoming of a Judge will
warrant a more severe penalty from the Court.
ALEJANDRO DE GUZMAN v. VISAYAN RAPID TRANSIT CO., INC., NEGROS
TRANSPORTATION CO., INC., and NICOLAS CONCEPCIONG.R. No. 46396
September 30, 1939LAUREL, J.
FACTS:Respondents, operating automobile lines, engaged the
professional services of the petitioner, who was then a law
practitioner in the City of Manila. The employment was for the
purpose of obtaining the suppression, reduction and refund of
certain toll rates on various bridges along the line operated by
the respondent transportation companies. Petitioner took steps to
obtain first the suppression, and later the reduction of toll rates
on said bridges and also the refund of P50,000 of toll charges
already collected by the Province of Occidental Negros. After
various conferences, the provincial board, with the conformity of
respondents president, adopted a resolution reducing the tolls. The
provincial board also refunded P50,000 as bridge tolls illegally
collected from the Visayan Rapid Transit Company, Inc., and the
Negros Transportation Company, Inc., said amount to be applied to
future payments for tolls by said companies. As a result of this
reduction of tolls, the respondents have been benefited with an
economy of P78,448 for every eighteen months.
ISSUE:WON acts performed by petitioner constitutes practice of
law.
HELD:
Yes. We have noted in the beginning that the services here were
rendered in a case of an administrative nature. But that does not
alter the application of the proper rule professional services, to
prepare and advocate just claims for compensation, are as
legitimate as services rendered in court in arguing a cause to
convince a court or jury that the claim presented or the defense
set up against a claim presented by the other party ought to be
allowed or rejected. Parties in such cases require advocates; and
the legal profession must have a right to accept such employment
and to receive compensation for their services; nor can courts of
justice adjudge such contracts illegal, if they are free from any
taint of fraud, misrepresentation, or unfairness. Although the
professional services rendered by the petitioner are purely
administrative and did not require a high degree of professional
skill and experience, the fact remains that these services were
rendered and were productive of substantial beneficial results to
his clients. It is clear that for these services the petitioner is
entitled to compensation, and the only question is the reasonable
amount to which he is entitled.
Facts and circumstances considered, we are of the opinion that
the reasonable compensation of the petitioner is P7,000, deducting
therefrom, however, the sum of P1,280 which the petitioner had
already received.
RENATO CAYETANO v. CHRISTIAN MONSODG.R. No. 100113 September 3,
1991PARAS, J.
FACTS:
Respondent Christian Monsod was nominated by President Aquino to
the position of Chairman of the COMELEC. Petitioner Cayetano
opposed the nomination because allegedly Monsod does not possess
the required qualification of having been engaged in the practice
of law for at least ten years. Challenging the validity of the
confirmation by the Commission on Appointments of Monsod's
nomination, petitioner as a citizen and taxpayer, filed the instant
petition for certiorari and Prohibition praying that said
confirmation and the consequent appointment of Monsod as Chairman
of the Commission on Elections be declared null and void.
It was established that after graduating from College of Law
(UP) and having hurdled the bar (1960), respondent has worked in
the following:1. Law office of his father;2. World Bank group as
Operations Officer for about 2 years, which involved getting
acquainted with the laws of member-countries, negotiating loans and
coordinating legal, economic, and project work of the Bank
(1963-1970);3. Meralco group as Chief Executive Officer of an
investment bank loans and coordinating legal, economic, and project
work of the Bank (Upon returning to the Philippines in 1970);4.
Services to various companies as a legal and economic consultant or
chief executive officer (since 1986);5. NAMFREL As
Secretary-General (1986) and later National Chairman (1987);6. He
also claimed to have worked with the underprivileged sectors, and
was also a member of the Davide Commission as well as the
Constitutional Commission.
ISSUE:WON respondent possess the requirement of 10 years
practice of law.
HELD:
Yes. Practice of law means any activity, in or out of court,
which requires the application of law, legal procedure, knowledge,
training and experience. "To engage in the practice of law is to
perform those acts which are characteristics of the profession.
Generally, to practice law is to give notice or render any kind of
service, which device or service requires the use in any degree of
legal knowledge or skill."
Practice of law under modern conditions consists in no small
part of work performed outside of any court and having no immediate
relation to proceedings in court. It embraces conveyancing, the
giving of legal advice on a large variety of subjects, and the
preparation and execution of legal instruments covering an
extensive field of business and trust relations and other affairs.
Although these transactions may have no direct connection with
court proceedings, they are always subject to become involved in
litigation. They require in many aspects a high degree of legal
skill, a wide experience with men and affairs, and great capacity
for adaptation to difficult and complex situations. No valid
distinction, so far as concerns the question set forth in the
order, can be drawn between that part of the work of the lawyer
which involves appearance in court and that part which involves
advice and drafting of instruments in his office.
The test that defines law practice by looking to traditional
areas of law practice is essentially tautologous, unhelpful
defining the practice of law as that which lawyers do. The practice
of law is defined as the performance of any acts . . . in or out of
court, commonly understood to be the practice of law.
In the course of a working day the average general practitioner
wig engage in a number of legal tasks, each involving different
legal doctrines, legal skills, legal processes, legal institutions,
clients, and other interested parties. Even the increasing numbers
of lawyers in specialized practice wig usually perform at least
some legal services outside their specialty. And even within a
narrow specialty such as tax practice, a lawyer will shift from one
legal task or role such as advice-giving to an importantly
different one such as representing a client before an
administrative agency.
By no means will most of this work involve litigation, unless
the lawyer is one of the relatively rare types a litigator who
specializes in this work to the exclusion of much else. Instead,
the work will require the lawyer to have mastered the full range of
traditional lawyer skills of client counselling, advice-giving,
document drafting, and negotiation. And increasingly lawyers find
that the new skills of evaluation and mediation are both effective
for many clients and a source of employment.
Regarding the skills to apply by the corporate counsel, three
factors are apropos:1. First System Dynamics. The field of systems
dynamics has been found an effective tool for new managerial
thinking regarding both planning and pressing immediate problems2.
Second Decision Analysis. This enables users to make better
decisions involving complexity and uncertainty.3. Third Modeling
for Negotiation Management. Computer-based models can be used
directly by parties and mediators in all lands of negotiations.
The organization and management of the legal function, concern
three pointed areas of consideration, thus:1. Preventive
Lawyering.2. Managerial Jurisprudence.3. Organization and
Functioning of the Corporate Counsel's Office.
Interpreted in the light of the various definitions of the term
Practice of law". particularly the modern concept of law practice,
and taking into consideration the liberal construction intended by
the framers of the Constitution, Atty. Monsod's past work
experiences as a lawyer-economist, a lawyer-manager, a
lawyer-entrepreneur of industry, a lawyer-negotiator of contracts,
and a lawyer-legislator of both the rich and the poor verily more
than satisfy the constitutional requirement that he has been
engaged in the practice of law for at least ten years.
The Commission on the basis of evidence submitted doling the
public hearings on Monsod's confirmation, implicitly determined
that he possessed the necessary qualifications as required by law.
The judgment rendered by the Commission in the exercise of such an
acknowledged power is beyond judicial interference except only upon
a clear showing of a grave abuse of discretion amounting to lack or
excess of jurisdiction.
When Samson (his long hair cut by Delilah) was captured, the
procurator placed an iron rod burning white-hot two or three inches
away from in front of Samson's eyes. This blinded the man. Upon
hearing of what had happened to her beloved, Delilah was beside
herself with anger, and fuming with righteous fury, accused the
procurator of reneging on his word. The procurator calmly replied:
"Did any blade touch his skin? Did any blood flow from his veins?"
The procurator was clearly relying on the letter, not the spirit of
the agreement.
Petition dismissed.
In the Matter of the IBP Membership Dues Delinquency of Atty.
MARCIAL A. EDILION (IBP Administrative Case No. MDD-1)A.M. No. 1928
August 3, 1978CASTRO, C.J.
FACTS:
The respondent Marcial A. Edillon is a duly licensed practicing
attorney in the Philippines.
On November 29, 1975, the Integrated Bar of the Philippines
Board of Governors unanimously adopted Resolution No. 75-65 in
Administrative Case No. MDD-1 (In the Matter of the Membership Dues
Delinquency of Atty. Marcial A. Edillon) recommending to the Court
the removal of the name of the respondent from its Roll of
Attorneys for "stubborn refusal to pay his membership dues" to the
IBP since the latter's constitution notwithstanding due notice. The
said Resolution was pursuant to paragraph 2, Section 24, Article
III of the By-Laws of the IBP, which reads:
.... Should the delinquency further continue until the following
June 29, the Board shall promptly inquire into the cause or causes
of the continued delinquency and take whatever action it shall deem
appropriate, including a recommendation to the Supreme Court for
the removal of the delinquent member's name from the Roll of
Attorneys. Notice of the action taken shall be sent by registered
mail to the member and to the Secretary of the Chapter
concerned.
The authority of the Court to issue the order applied for is
found in Section 10 of the Court Rule, which reads:SEC. 10. Effect
of non-payment of dues. Subject to the provisions of Section 12 of
this Rule, default in the payment of annual dues for six months
shall warrant suspension of membership in the Integrated Bar, and
default in such payment for one year shall be a ground for the
removal of the name of the delinquent member from the Roll of
Attorneys.The obligation to pay membership dues is couched in the
following words of the Court Rule:SEC. 9. Membership dues. Every
member of the Integrated Bar shall pay such annual dues as the
Board of Governors shall determine with the approval of the Supreme
Court.
The core of the respondent's arguments is that the above
provisions constitute an invasion of his constitutional rights in
the sense that he is being compelled, as a pre-condition to
maintaining his status as a lawyer in good standing, to be a member
of the IBP and to pay the corresponding dues, and that as a
consequence of this compelled financial support of the said
organization to which he is admittedly personally antagonistic, he
is being deprived of the rights to liberty and property guaranteed
to him by the Constitution. Hence, the respondent concludes, the
above provisions of the Court Rule and of the IBP By-Laws are void
and of no legal force and effect.
ISSUE:WON mandatory membership in the IBP is violative of a
lawyers constitutional right.
HELD:
To compel a lawyer to be a member of the Integrated Bar is not
violative of his constitutional freedom to associate.
Integration does not make a lawyer a member of any group of
which he is not already a member. He became a member of the Bar
when he passed the Bar examinations. 7 All that integration
actually does is to provide an official national organization for
the well-defined but unorganized and incohesive group of which
every lawyer is a ready a member.
Bar integration does not compel the lawyer to associate with
anyone. He is free to attend or not attend the meetings of his
Integrated Bar Chapter or vote or refuse to vote in its elections
as he chooses. The only compulsion to which he is subjected is the
payment of annual dues. The Supreme Court, in order to further the
State's legitimate interest in elevating the quality of
professional legal services, may require that the cost of improving
the profession in this fashion be shared by the subjects and
beneficiaries of the regulatory program the lawyers.
Assuming that the questioned provision does in a sense compel a
lawyer to be a member of the Integrated Bar, such compulsion is
justified as an exercise of the police power of the State.
The practice of law is not a property right but a mere
privilege, and as such must bow to the inherent regulatory power of
the Court to exact compliance with the lawyer's public
responsibilities. All legislation directing the integration of the
Bar have been uniformly and universally sustained as a valid
exercise of the police power over an important profession. The
practice of law is not a vested right but a privilege, a privilege
moreover clothed with public interest because a lawyer owes
substantial duties not only to his client, but also to his brethren
in the profession, to the courts, and to the nation, and takes part
in one of the most important functions of the State the
administration of justice as an officer of the court. 4 The
practice of law being clothed with public interest, the holder of
this privilege must submit to a degree of control for the common
good, to the extent of the interest he has created. As the U. S.
Supreme Court through Mr. Justice Roberts explained, the expression
"affected with a public interest" is the equivalent of "subject to
the exercise of the police power."
The provisions of Rule of Court 139-A and of the By-Laws of the
Integrated Bar of the Philippines complained of are neither
unconstitutional nor illegal.
The respondent Marcial A. Edillon should be as he is hereby
disbarred, and his name is hereby ordered stricken from the Roll of
Attorneys of the Court
ALFREDO C. TAJAN, petitioner,vs.HON. VICENTE N. CUSI, JR.,
Judge, Court of First Instance of Davao, respondent.
FACTS:
Alfredo C. Tajan challenges the authority of respondent Judge of
the Court of First Instance of Davao to hear Administrative Case
No. 59 of said court involving a disciplinary action initiated
against petitioner as a member of the Philippine Bar.
A petition in court containing factual averments which
petitioner knew were false, to wit:The records and the transcript
of stenographic notes of Misc. Case No. 2968 of this Court show
that you prepared and/or caused to be prepared a verified petition
for issuance of a new owner's duplicate copy of Transfer
Certificate of Title No. T-7312 in favor of Vicente Calongo,
alleging therein as grounds therefor, "That the aforesaid Transfer
Certificate was lost by the herein petitioner in his house in Mati,
Davao; That in spite of the diligent search of the aforesaid title,
the same could not be found and is therefore now presumed to be
lost
Petitioner denying the material averments of respondent Judge's
letter and explaining the circumstances under which he prepared the
aforementioned petition.
Respondent Judge had his letter filed and docketed as Adm.
Case
Respondent Judge proceeded to hear the evidence against
petitioner.
Petitioner's thesis is that respondent Judge has no authority on
his own motion to hear and determine proceedings for disbarment or
suspension of attorneys because jurisdiction thereon is vested
exclusively and originally in the Supreme Court and not in courts
of first instance. Petitioner also contends that assuming arguendo
that courts of first instance have such authority, the procedure
outlined in Rule 139 of the Revised Rules of Court should govern
the filing and investigation of the complaint.
RULING: We find petitioner's contentions without merit.
The power to exclude unfit and unworthy members of the legal
profession stems from the inherent power of the Supreme Court to
regulate the practice of law and the admission of persons to engage
in that practice. It is a necessary incident to the proper
administration of justice. An attorney-at-law is an officer of the
court in the administration of justice and as such he is
continually accountable to the Court for the manner in which he
exercises the privilege which has been granted to him. His
admission to the practice of law is upon the implied condition that
his continued enjoyment of the right conferred, is dependent upon
his remaining a fit and safe person to exercise it. When it appears
by acts of misconduct, that he has become unfit to continue with
the trust reposed upon him, his right to continue in the enjoyment
of that trust and for the enjoyment of the professional privilege
accorded to him may and ought to be forfeited. The law accords to
the Court of Appeals and the Court of First Instance the power to
investigate and suspend members of the bar.
It should be observed that proceedings for the disbarment of
members of the bar are not in any sense a civil action where there
is a plaintiff and the respondent is a defendant. Disciplinary
proceedings involve no private interest and afford no redress for
private grievance. They are undertaken and prosecuted solely for
the public welfare. They are undertaken for the purpose of
preserving courts of justice from the official ministration of
persons unfit to practice in them. The attorney is called to answer
to the court for his conduct as an officer of the court. The
complainant or the person who called the attention of the court to
the attorney's alleged misconduct is in no sense a party, and has
generally no interest in the outcome except as all good citizens
may have in the proper administration of justice. The court may
therefore act upon its own motion and thus be the initiator of the
proceedings, because, obviously the court may investigate into the
conduct of its own officers.
Indeed it is not only the right but the duty of the Court to
institute upon its own motion, proper proceedings for the
suspension or the disbarment of an attorney, when from information
submitted to it or of its own knowledge it appears that any
attorney has so conducted himself in a case pending before said
court as to show that he is wanting in the proper measure of
respect for the court of which he is an officer, or is lacking in
the good character essential to his continuance as an attorney.
This is for the protection of the general public and to promote the
purity of the administration of justice.
Sections 3 to 6 of Rule 139 are not applicable to the
investigation of complaints against attorneys in the Court of
Appeals and in Courts of First Instance. The investigation by the
Solicitor General in Section 3 of Rule 139 refers to complaints
referred to said office by this Court and not to investigations in
suspension proceedings before the Court of Appeals or Courts of
First Instance, because Sections 28 to 30 of Rule 138 authorize
said courts and confer upon them the power to conduct the
investigation themselves, subject to another and final
investigation by the Supreme Court in the event of suspension of
the lawyer
JOSE ALCALA and AVELINA IMPERIAL, petitioners,vs.HONESTO DE
VERA, respondent.
FACTS:
Jose Alcala (now deceased) and his wife, Avelina Imperial, filed
this present petition for disbarment against respondent Honesto de
Vera, a practicing attorney of Locsin, Albay, who was retained by
them as their counsel in civil case
Complainants charge Atty. Honesto de Vera with gross negligence
and malpractice: 1) for having maliciously and deliberately omitted
to notify them of the decision in civil case 2478 resulting in the
deprivation of their right to appeal from the adverse judgment
rendered against them; and 2) for respondent's indifference,
disloyalty and lack of interest in petitioners' cause resulting to
their damage and prejudice.
RESPONDENT: asserted that he notified his clients of the
decision in question and that he defended complainants' case to the
best of his ability as demanded by the circumstances and that he
never showed indifference, lack of interest or disloyalty to their
cause
The trial court rendered judgment rescinding the contract of
sale, on the ground that the vendee Semenchuk was not able to take
material possession of lot 1880 it being in the possession of a
certain Ruperto Ludovice and his brothers who have been occupying
the land for a number of years.
Respondent Atty. de Vera received a copy of the decision but he
failed to inform his clients of the judgment against them. A
sheriff came to complainants' house to serve a writ of execution
issued in said case. Totally caught by surprise, Jose Alcala
immediately wrote to the trial court and inquired for the status of
case
Spouses Alcala instituted civil case 2723 for damages against
Atty. Honesto de Vera for having failed to inform them of the
decision in case 2478 as a result of which they lost their right to
appeal from said decision.
Not content with having filed case 2723, complainants instituted
this complaint for disbarment against their former counsel.
ISSUE: whether or not respondent notified his clients, the
complainants herein, about the decision in case 2478
RULING:
We agree with the Solicitor General that there is sufficient
evidence on hand to prove that respondent neglected to acquaint his
clients of the decision in case 2478.
The evidence shows that when he was told about the sheriff's
visit, Jose Alcala immediately inquired from the trial Court the
reason for the writ of execution and it was only then that he was
informed that a decision had been rendered, that his lawyer
received a copy thereof since April 19, 1963, and because no appeal
was taken the judgment became final and executory
The second issue that has to be passed upon by the Court is
neither the plaintiffs are entitled to damages. On this issue, the
Court finds that the plaintiffs cannot recover damages from
defendant Atty. Honesto de Vera. No evidence has been presented
that they sustained damages of the decision. Neither it has been
shown that the decision is not supported by the facts and the law
applicable to the case. Consequently, the plaintiffs are not
entitled to damages because of the failure of Atty. Honesto de Vera
to inform them of the decision.
An attorney is not bound to exercise extraordinary diligence,
but only a reasonable degree of care and skill, having reference to
the character of the business he undertakes to do. Fallible like
any other human being, he is answerable to every error or mistake,
and will be protected as long as he acts honestly and in good faith
to the best of his skill and knowledge. Moreover, a party seeking
damages resulting from a judgment adverse to him which became final
by reason of the alleged fault or negligence of his lawyer must
prove his loss due to the injustice of the decision. He cannot base
his action on the unsubstantiated and arbitrary supposition of the
injustice of the decision
True it is that petitioners do not appear to have suffered any
material or pecuniary damage by the failure of respondent Atty. De
Vera to notify them of the decision in Civil Case No. 2478. It is
no less true, however, that in failing to inform his clients, the
petitioners, of the decision in said civil case, respondent failed
to exercise "such skill, care, and diligence as men of the legal
profession commonly possess and exercise in such matters of
professional employment"
The relationship of lawyer-client being one of confidence, there
is ever present the need for the client's being adequately and
fully informed and should not be left in the dark as to the mode
and manner in which his interests are being defended. It is only
thus that their faith in counsel may remain unimpaired (Oparel, Sr.
vs. Aberia Adm. Case No. 595, July 30, 1971). As it happened in
this case, because of respondent's failure to notify petitioners of
the decision in Civil Case No. 2478, the latter were entirely
caught by surprise, resulting in shock and mental and emotional
disturbance to them, when the sheriff suddenly showed up in their
home with a writ of execution of a judgment that they never knew
had been rendered in the case, since their lawyer, the respondent,
had totally failed to inform them about the same.
We concur with the above-quoted observations and add that the
correctness of the decision in case 2478 is no ground for
exonerating respondent of the charge but at most will serve only to
mitigate his liability. While there is no finding of malice,
deceit, or deliberate intent to cause damage to his clients, there
is, nonetheless, proof of negligence, inattention, and carelessness
on the part of respondent in his failure to give timely notice of
the decision in question.
Fortunately for respondent, his negligence did not result in any
material or pecuniary damage to the herein complainants and for
this reason We are not disposed to impose upon him what may be
considered in a lawyer's career as the extreme penalty of
disbarment.
Although respondent's negligence does not warrant disbarment or
suspension under the circumstances of the case, nonetheless it
cannot escape a rebuke from Us as we hereby rebuke and censure him,
considering that his failure to notify his clients of the decision
in question manifests a lack of total dedication or devotion to
their interest expected of him under his lawyer's oath and the
Canons of Professional Ethics. Respondent's inaction merits a
severe censure from the Court.
SEVERELY CENSURE.
ROMULO CANTIMBUHAN, NELSON B. MALANA, and ROBERT V. LUCILA,
petitioners,vs.HON. NICANOR J. CRUZ, JR., Presiding Judge of the
Municipal Court of Paraaque, Metro Manila, and FISCAL LEODEGARIO C.
QUILATAN, respondents.
FACTS:
Petitioner Romulo Cantimbuhan filed separate criminal complaints
against Patrolmen Danilo San Antonio and Rodolfo Diaz for less
serious physical injuries
Appeal from the Order, dated August 16, 1979, of respondent
Judge Nicanor J. Cruz, Jr., of the then Municipal Court of
Paraaque, Metro Manila, disallowing the appearances of petitioners
Nelson B. Malana and Robert V. Lucila as private prosecutors in
Criminal Cases Nos. 58549 and 58550, both for less serious physical
injuries, filed against Pat. Danilo San Antonio and Pat. Rodolfo
Diaz, respectively, as well as the Order, dated September 4, 1979,
denying the motion for reconsideration holding, among others, that
"the fiscal's claim that appearances of friends of party-litigants
should be allowed only in places where there is a scarcity of legal
practitioner, to be well founded. For, if we are to allow
non-members of the bar to appear in court and prosecute cases or
defend litigants in the guise of being friends of the litigants,
then the requirement of membership in the Integrated Bar of the
Philippines and the additional requirement of paying professional
taxes for a lawyer to appear in court, would be put to naught.
"
RULING:
We find merit in the petition. Section 34, Rule 138 of the Rules
of Court, clearly provides that in the municipal court a party may
conduct his litigation in person with the aid of an agent appointed
by him for the purpose
Thus, a non-member of the Philippine Bar a party to an action is
authorized to appear in court and conduct his own case; and, in the
inferior courts, the litigant may be aided by a friend or agent or
by an attorney. However, in the Courts of First Instance, now
Regional Trial Courts, he can be aided only by an attorney.
On the other hand, it is the submission of the respondents that
pursuant to Sections 4 and 15, Rule 110 of the Rules of Court, it
is the fiscal who is empowered to determine who shall be the
private prosecutor as was done by respondent fiscal when he
objected to the appearances of petitioners Malana and Lucila.
Sections 4 and 15, Rule 110 of the Rules of Court
It is accordingly our view that error was committed in the
municipal court in not allowing Crispiniano V. Laput to act as an
agent or friend of Catalino Salas to aid the latter in conducting
his defense.
The permission of the fiscal is not necessary for one to enter
his appearance as private prosecutor. In the first place, the law
does not impose this condition. What the fiscal can do, if he wants
to handle the case personally is to disallow the private
prosecutor's participation, whether he be a lawyer or not, in the
trial of the case.
On the other hand, if the fiscal desires the active
participation of the private prosecutor, he can just manifest to
the court that the private prosecutor, with its approval, will
conduct the prosecution of the case under his supervision and
control. Further, We may add that if a non-lawyer can appear as
defense counsel or as friend of the accused in a case before the
municipal trial court, with more reason should he be allowed to
appear as private prosecutor under the supervision and control of
the trial fiscal.
In the two criminal cases filed before the Municipal Court of
Paraaque, petitioner Cantimbuhan, as the offended party, did not
expressly waive the civil action nor reserve his right to institute
it separately and, therefore, the civil action is deemed impliedly
instituted in said criminal cases. Thus, said complainant Romulo
Cantimbuhan has personal interest in the success of the civil
action and, in the prosecution of the same, he cannot be deprived
of his right to be assisted by a friend who is not a lawyer.
ORDER THAT DISALLOWED THE APPEARANCES IS SET ASIDE.
HYDRO RESOURCES CONTRACTORS CORPORATION, petitioner,vs.LABOR
ARBITER ADRIAN N. PAGALILAUAN and the NATIONAL LABOR RELATIONS
COMMISSION, public respondents, and ROGELIO A. ABAN, private
respondent.
Facts:
Petitioner corporation hired the private respondent Aban as its
"Legal Assistant and received basic monthly salary of Pl,500.00
plus an initial living allowance of P50.00 which gradually
increased to P320.00. On September 4, 1980, Aban received a letter
from the corporation informing him that he would be considered
terminated effective October 4, 1980 because of his alleged failure
to perform his duties well.
Aban filed a complaint against the petitioner for illegal
dismissal. The labor arbiter ruled that Aban was illegally
dismissed. This ruling was affirmed by the NLRC on appeal. Hence,
this present petition.
Issue:
Whether or not there was an employer-employee relationship
between the petitioner corporation and Aban.
Held:
The Supreme Court dismissed the petition for lack of merit, and
reinstate Aban to his former or a similar position without loss of
seniority rights and to pay three (3) years backwages without
qualification or deduction and P5,000.00 in attorney's fees. Should
reinstatement not be feasible, the petitioner shall pay the private
respondent termination benefits in addition to the above stated
three years backpay and P5,000.00 attorney's fees.
A lawyer, like any other professional, may very well be an
employee of a private corporation or even of the government. This
Court has consistently ruled that the determination of whether or
not there is an employer-employee relation depends upon four
standards: (1) the manner of selection and engagement of the
putative employee; (2) the mode of payment of wages; (3) the
presence or absence of a power of dismissal; and (4) the presence
or absence of a power to control the putative employee's conduct.
Of the four, the right-of-control test has been held to be the
decisive factor.
In this case, Aban received basic salary plus living allowance,
worked solely for the petitioner, dealt only with legal matters
involving the said corporation and its employees and also assisted
the Personnel Officer in processing appointment papers of employees
which is not act of a lawyer in the exercise of his profession.
These facts showed that petitioner has the power to hire and fire
the respondent employee and more important, exercised control over
Aban by defining the duties and functions of his work which met the
four standards in determining whether or not there is an
employee-employer relationship.
Ramos vs. Rada [A.M No. 202 July 22, 1975]
Facts:Moises R. Rada is a messenger in the Court of First
Instance of Camarines, Norte
He was charged with violation of Section 12 of Civil Service
Rule XVIII, which provides as follows:
Sec.12. No officer or employee shall engage directly in any
private business, vocation, or profession or be connected with any
commercial, credit, agricultural or industrial undertaking without
a written permission from the head of Department: Provided, that
this prohibition will be absolute in the case of those officers and
employees whose duties and responsibilities require that their
entire time be at the disposal of the government
Respondent Rada was extended appointment by the Avesco Marketing
Corporation on December 15, 1972 as representative to manage and
supervise real properties situated in Camarines Norte which were
foreclosed by the corporation.
His acceptance of such appointment was the basis of the
administrative complaint against Rada which was filed with the
Department of Justice on October 3, 1973.
Later, on October 27, 1973, Rada requested permission to accept
appointment.
It was not indicated that his acceptance and discharge of the
duties as administrator has at all impaired his efficiency as
messenger, nor has it been shown that he did not observe regular
office hours.
Issue:Whether respondent Rada is guilty of violation of sec.12
of Civil Service Rule XVIII
Held:Rada was adjudged guilty of technical violation (lack of
prior permission) of Sec 12 of Civil Service Rule XVIII and meted a
penalty of reprimand.
The duties of messenger Rada are generally ministerial which do
not require that his entire day of 24 hours be at the disposal of
the government. Such being his situation, it would be to stifle his
willingness to apply himself to a productive endeavor to augment
his income, and to award premium for slothfulness if he were to be
banned from engaging in or being connected with a private
undertaking outside of office hours and without forseeable
detriment to the Government service.
His connection with Avesco Marketing Corporation need not be
terminated, but he must secure a written permission from proper
government authority.
REPRIMANDED
ATTY. PROCOPIO S. BELTRAN, JR., vs ELMO S. ABAD
Abad Santos, J.:
Facts:
Charged by Atty. Procopio S. Beltran, Jr., president of the
Philippine Trial Lawyers Association, Inc., of practicing law
without having been previously admitted to the Philippine Bar, Mr.
Elmo S. Abad could not deny and had to admit the practice. On July
23, 1979, Prior to his taking the Oath of Office as a member of the
bar, he paid his Bar Admission Fee, Certification Fee and also his
Membership Dues for the year 1979-80 to the Integrated Bar of the
Philippines. Respondent was included as among those taking the Oath
of Office as Member of the Bar.
While waiting for his turn to take his Oath as a member of the
Bar, he was made to sign his Lawyer's Oath by one of the Clerk in
the Office of the Bar Confidant and while waiting there, Atty.
Romeo Mendoza (Clerk of Court SC), told him that Chief Justice, the
Hon. Enrique M. Fernando wants to talk to him about the Reply of
Mr. Jorge Uy (Deceased) to his Answer to Uy's Complaint. The
Honorable Chief Justice told him that he had to answer the Reply
and for which reason the taking of his Lawyer's Oath was further
suspended.
Believing that with his signing of the Lawyer's Oath on July 26,
1979 and his Reply to Mr. Jorge Uy's (Deceased) Answer, the Supreme
Court did not order for the striking of his name in the Roll of
Attorneys with the Integrated Bar of the Philippines and therefore
a Member in Good Standing, he paid his membership due and other
assessments to the Integrated Bar of the Philippines.
Respondent was included as a Qualified Voter for the election of
officers and directors for the year 1981-1982. Respondent's belief
and good faith was further enhanced by the fact that on January 8,
1981, Complainant Jorge Uy died and herein respondent submitted a
verified Notice and Motion with the Honorable Supreme Court on
April 27, 1981; notifying the Court of this fact with a prayer that
herein respondent be allowed to take his Oath as Member of the
Bar.
He was again assessed by the IBP for his 1981-1982 membership
due and other assessment for which he also paid. Abad also had a
Certificate of Membership in the IBP as well as a Certificate of
Membership of Good Standing with the Quezon City Chapter of the
IBP.
Issue:WON practiced law without being previously admitted to the
bar
Held:Yes. Respondent Abad should know that the circumstances
which he has narrated do not constitute his admission to the
Philippine Bar and the right to practice law thereafter. He should
know that two essential requisites for becoming a lawyer still had
to be performed, namely: his lawyer's oath to be administered by
this Court and his signature in the Roll of Attorneys. The proven
charge against respondent Abad constitutes contempt of court.
Penalty: Fine= 500 payable within 10 days; In case of failure to
pay= 25 days imprisonment.
CARMEN E. BACARRO vs RUBEN M. PINATACANGuerrero, J.:FACTS:This
is an administrative complaint charging Ruben M. Pinatacan, with
moral turpitude and depravity, and lack of proper character
required of a member of the Bar.
Complainant Bacarro averred that she and respondent fell in love
and became engaged while they were studying at the Liceo de Cagayan
in Cagayan de Oro City; that when she became pregnant as a result
of their relationship, respondent abandoned her and never fulfilled
his promise to marry her
Pinatacan denied that: 1.) he was the father of the child, 2.)
he promised to marry her; and that 3.) he cohabited with her. He
claimed that his relationship with complainant cooled down when he
applied for a direct commission with the Philippine Constabulary on
January 1971. He returned to Manila and stayed there for the
greater part of March, 1971, for his physical examination. He
returned to Cagayan de Oro City, but in June of 1971, he left for
his hometown, Jimenez, Misamis Occidental, and never again returned
to Cagayan de Oro City.
The case was referred to the Judicial Investigator but upon
Bacarro's request, she was allowed to present evidence. The
respondent failed to attend the hearings by the City Fiscal.
In a nutshell, the evidence for the complainant tends to
establish the following facts: After about a year of courtship, she
and respondent became sweethearts on March 17, 1967 while they were
students at the Liceo de Cagayan in Cagayan de Oro City. They had
their first sexual intercourse on March 21, 1971, after respondent
made promises of marriage, and they eloped to Cebu City where they
stayed for about a week. They returned to Cagayan de Oro and
respondent left complainant allegedly to see his parents in his
hometown and make the necessary arrangements for their intended
marriage. Respondent came back in May, 1971, but only to inform
complainant that they could not get married because of his parents'
objections. When complainant told respondent that she was pregnant,
he told her to have an abortion. Complainant refused and they had a
quarrel Thereafter, she did not see or hear from respondent until
after the birth of their baby girl named Maria Rochie Bacarro
Pinatacan on December 4, 1971. Complainant had no other boyfriend
or sweetheart during the time that she had a relationship with
respondent. In July, 1973, she brought the child with her to see
respondent in Cavite City and the latter promised to support the
child. However, respondent did not make good his promise of support
so complainant went to see him again, and once more respondent made
several promises, all of which were never fulfilled, until he
finished his law course and married a singer by the name of Annie
Sarabillo.
The SC required respondent, "as proof of his sincerity and good
faith, to acknowledge and recognize in a public document duly
notarized and registered in the local civil registrar's office his
paternity over the child Maria Rochie." Respondent
complied.Respondent argued that based on the evidence adduced by
complainant and even assuming her averments to be true, no case had
been made out to bar him from taking the lawyer's oath. The Court's
Investigator, Atty. Victor Sevilla, agreed with respondent.
ISSUE:WON respondent is entitled to take the lawyers oath
HELD:
Yes, the court allowed Ruben to take the lawyers oath.
Considering that respondent has legally recognized and acknowledged
complainant's child Maria Rochie Bacarro Pinatacan as his own, and
has undertaken to give financial support to the said child, the SC
held that he has realized the wrongfulness of his past conduct and
is now prepared to turn over a new leaf. But he must be admonished
that his admission to and continued membership in the Bar are
dependent, among others, on his compliance with his moral and legal
obligations as the father of Maria Rochie Bacarro Pinatacan.
We hold that herein respondent Pinatacan had failed to live up
to the high moral standard demanded for membership in the Bar. He
had seduced complainant into physically submitting herself to him
by promises of marriage. He even eloped with her and brought her to
another place. He got her pregnant and then told her to have an
abortion When complainant refused, he deserted her. Complainant had
to track him down to ask him to help support their child born out
of wedlock, and during the few times that she was able to see him,
respondent merely made promises which he apparently did not intend
to keep. On top of all these, respondent had the audacity and
impudence to deny before this Court in a sworn Affidavit the
paternity of his child by complaint.
These acts taken together certainly do not speak well of
respondent's character and are indicative of his moral delinquency.
All the years that he has been denied the privilege of being a
lawyer were truly well-deserved. Nevertheless, eight (8) years
could be punishment and retribution enough
IN RE: DISBARMENT OF TELESFORO A. DIAO vs SEVERINO G.
MARTINEZBengzon, C.J.:
FACTS:Martinez charged Diao with having falsely represented in
his application for the Bar examination, that he had the requisite
academic qualifications. The matter was referred to the Solicitor
General who caused the charge to be investigated; and later he
submitted a report recommending that Diao's name be erased from the
roll of attorneys, because contrary to the allegations in his
petition for examination in this Court, he (Diao) had not
completed, before taking up law subjects, the required pre-legal
education, namely: a.) High School Training; and b.) Diao never
attended Quisumbing College, and never obtained his A.A. diploma
therefrom which contradicts the credentials he had submitted in
support of his application for examination, and of his allegation
therein of successful completion of the "required pre-legal
education".
Diao admitted the first charge but he claimed that although he
left high school in his 3rd year, he entered the US Army service
and passed the General Classification Test which (according to him)
is equivalent to a high school diploma. As to the 2nd charge, he
claimed that he obtained his A.A. title from the Arellano
University in April, 1949, he says he was erroneously certified,
due to confusion, as a graduate of Quisumbing College, in his
school records.
Issue:WON Diao is qualified to be a member of the barHELD:No.
This explanation is not acceptable, for the reason that the "error"
or "confusion" was obviously of his own making. Had his application
disclosed his having obtained A.A. from Arellano University, it
would also have disclosed that he got it in April, 1949, thereby
showing that he began his law studies (2nd semester of 1948-1949)
six months before obtaining his Associate in Arts degree. And then
he would not have been permitted to take the bar tests, because our
Rules provide, and the applicant for the Bar examination must
affirm under oath, "That previous to the study of law, he had
successfully and satisfactorily completed the required pre-legal
education(A.A.) as prescribed by the Department of Private
Education.
The fact that he hurdled the Bar examinations is immaterial.
Passing such examinations is not the only qualification to become
an attorney-at-law; taking the prescribed courses of legal study in
the regular manner is equally essential.
Penalty: Strike name from the roll of attorneys, and return of
his lawyer's diploma.
RE: PETITION OF AL ARGOSINO TO TAKE THE LAWYERS OATHPadilla,
J.:
FACTS:Petitioner Al Caparros Argosino passed the bar
examinations held in 1993. The Court however deferred his
oath-taking due to his previous conviction for Reckless Imprudence
Resulting In Homicide. He was one of the eight accused in the death
of a neophyte during fraternity initiation rites. The 8 pleaded
guilty to reckless imprudence resulting in homicide. On June 18,
1993, Argosino was granted probation. On April 11, 1994, discharged
from probation. On April 14, 1994, filed a petition to be allowed
to take the lawyer's oath. On July 13, 1995, SC issued a resolution
requiring Argosino to submit evidence that he may now be regarded
as complying with the requirement of good moral character. In
compliace therewith, Argosino submitted 15 certifications/letters
executed by 2 senators, 5 trial court judges, 6 members of
religious orders. Argosino also submitted that a scholarship
foundation was established for RAUL CAMALIGAN, the hazing victim.
On September 26, 1995, SC required Atty. Gilbert Camaligan, father
of Raul, to comment on petitioner's prayer. Atty. Camaligan stated
that:
a. He still believes that the infliction of severe physical
injuries which led to the death of his son was deliberate rather
than accidental. The offense therefore was not only homicide but
murder since the accused took advantage of the neophyte's
helplessness implying abuse of confidence, taking advantage of
superior strength and treachery.b. He consented to the accused's
plea of guilt to the lesser offense of reckless imprudence
resulting in homicide only out of pity for the mothers of the
accused and a pregnant wife of one of the accused who went to their
house on Christmas day 1991 and Maundy Thursday 1992, literally on
their knees, crying and begging for forgiveness and compassion.
They also told him that the father of one of the accused had died
of a heart attack upon learning of his son's involvement in the
incident.c. As a Christian, he has forgiven petitioner and his
co-accused for the death of his son. However, as a loving father
who had lost a son whom he had hoped would succeed him in his law
practice, he still feels the pain of an untimely demise and the
stigma of the gruesome manner of his death.d. He is not in a
position to say whether petitioner is now morally fit for admission
to the bar. He therefore submits the matter to the sound discretion
of the Court.
ISSUE:WON Argosino may be allowed to take his lawyer's oath.
HELD:YES. In allowing Mr. Argosino to take the lawyer's oath,
the Court recognizes that Mr. Argosino is not inherently of bad
moral fiber. On the contrary, the various certifications show that
he is a devout Catholic with a genuine concern for civic duties and
public service. The Court is persuaded that Mr. Argosino has
exerted all efforts to atone for the death of Raul Camaligan. We
are prepared to give him the benefit of the doubt, taking judicial
notice of the general tendency of youth to be rash, temerarious and
uncalculating. We stress to Mr. Argosino that the lawyer's oath is
NOT a mere ceremony or formality for practicing law. Every lawyer
should at ALL TIMES weigh his actions according to the sworn
promises he makes when taking the lawyer's oath.
Fernando Collantes vs Vicente RenomeronPER CURIAM:
Facts: This complaint for disbarment is relative to the
administrative case filed by Atty. Collantes, house counsel for
V& G Better Homes Subdivision, Inc. (V&G), against Atty.
Renomeron, Register of Deeds of Tacloban City, for the latters
irregular actuations with regard to the application of V&G for
registration of 163 pro forma Deed of Absolute Sale with Assignment
(in favor of GSIS) of lots in its subdivision.Although V&G
complied with the desired requirements, respondent suspended the
registration of the documents with certain special conditions
between them, which was that V&G should provide him with weekly
round trip ticket from Tacloban to Manila plus P2,000.00 as pocket
money per trip, or, in lieu thereof, the sale of respondents Quezon
City house and lot by V&G or GSIS representatives.Eventually,
respondent formally denied the registration of the documents. He
himself elevated the question on the registrability of the said
documents to Administrator Bonifacio of the National Land Titles
and Deeds Registration Administration (now the Land Registration
Authority). The Administrator then resolved in favor of the
registrability of the documents. Despite the resolution of the
Administrator, the respondent still refused the registration
thereof but demanded from the parties interested the submission of
additional requirements not adverted in his previous denial.
Issues: WON the respondent, as a lawyer, may also be disciplined
by the Court for his malfeasance as a public official
Held:
Yes, a lawyers misconduct as a public official also constitutes
a violation of his oath as a lawyer. The lawyers oath imposes upon
every lawyer the duty to delay no man for money or malice. The
lawyers oath is a source of obligations and its violation is a
ground for his suspension, disbarment or other disciplinary
action.
The Code of Professional Responsibility applies to government
service in the discharge of their official tasks (Canon 6). The
Code forbids a lawyer to engage in unlawful, dishonest, immoral or
deceitful conduct (Rule 1.01, Code of Professional Responsibility),
or delay any mans cause for any corrupt motive or interest (Rule
1.03).
The acts of dishonesty and oppression which Attorney Renomeron
committed as a public official have demonstrated his unfitness to
practice the high and noble calling of the law.
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 he that truth and justice
triumph. This discipline is what as 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.Membership in the Bar is in the
category of a mandate to public service of the highest order. A
lawyer is an oath-bound servant of society whose conduct is clearly
circumscribed by inflexible norms of law and ethics, and whose
primary duty is the advancement of the quest of truth and justice,
for which he has sworn to be a fearless crusader.
Penalty: DISBARRED
PART V LAWYERS DUTIES TO SOCIETY10 CASE DIGESTS
G.R. No. L-36800 October 21, 1974JORGE MONTECILLO and QUIRICO
DEL MAR,petitioners,vs.FRANCISCO M. GICA, MAGNO S. GATMAITAN, JOSE
N. LEUTERIO, and RAMON G. GAVIOLA, Justices of the Court of
Appeals, respondents. In Re Quirico del Mar, For Disciplinary
action as member of the Philippine Bar,respondent.ESGUERRA,J.:
FACTS: Petitioner Atty. Quirico del Mar of is a respondent in
contempt proceedings both in the Court of Appeals and in this
Court. As a result of an alleged slander committed by Jorge
Montecillo on Francisco M. Gica (the former allegedly calling the
latter "stupid" or a "fool'), Mr. Gica filed a criminal complaint
for oral defamation against Montecillo and a case for damages
arising from the same incident. Montecillo was acquitted and the
Cebu City Court found that Montecillo did not call Gica "stupid".
Finding the counter-claim of Montecillo meritorious, the City Court
rendered judgment against Gica for him to pay Montecillo P500 as
moral damages, P200 as compensatory damages and P300 as attorney's
fees, plus costs.Francisco Gica appealed to the CFI of Cebu,
presided by Hon. Santiago O. Taada, which upheld the decision of
the City Court. The case was then elevated to the CA. CA reversed
the decision of the CFI of Cebu and ruled in favor of petitioner
Gica It is from this point that trouble began for respondent Atty.
Quirico del Mar when, as counsel for Montecillo, he moved for a
reconsideration of CAs decision with a veiled threat by mentioning
the provisions of the RPC on "Knowingly rendering unjust judgment"
and "judgment rendered through negligence", and the innuendo that
CA allowed itself to be deceived. CA denied the MR and it observed
that the motion insinuated that it rendered an unjust judgment,
that it abetted a falsification and it permitted itself to be
deceived. It admonished Atty. del Mar to remember that threats and
abusive language cannot compel any court of justice to grant
reconsideration. Respondent del Mar persisted and in his second MR,
filed without leave of court, made another threat by stating that
"with almost all penal violations placed under the jurisdiction of
the President of the Philippines, particularly Articles 171, 204
and 205 of the Revised Penal Code, as Commander in Chief of the
AFP, by virtue of the proclamation of martial law, the next appeal
that will he interposed, will be to His Excellency, the President
of the Philippines."CA noticed that notwithstanding its admonition
Atty. Del Mar reiterated his threats, and that CA, impelled to
assert its authority, ordered respondent del Mar to explain within
10 days why he should not be punished for contempt of court.On
December 5, 1972, respondent del Mar made a written explanation
wherein he said that CA could not be threatened and he was not
making any threat but only informing CA of the course of action he
would follow. CA fittingly concluded that "counsel del Mar is found
guilty of contempt and condemned to pay a fine of P200.00 and
ordered suspended from the practice of law and pursuant to Sec. 9
of Rule 139. SC upheld the resolution and that the Judicial
Consultant of SC was directed to circularize all courts about the
order of CA suspending Atty. Quirico del Mar from the practice of
law.Not satisfied with the wrong that he had already done against
Associate Justices Magno S. Gatmaitan, Jose N. Leuterio and Ramon
Gaviola, Jr., respondent del Mar sued the three Justices for
damages, trying to hold them liable for their decision. This is the
undeniable indication that respondent del Mar did not only threaten
the three Justices of the Appellate Court but he actually carried
out his threat, although he did not succeed in making them change
their minds in the case they decided in accordance with the
exercise of their judicial discretion emanating from pure
conviction.Respondent del Mar's ire at the Appellate Court, fanned
by the wind of frustration, turned against Us when We denied on May
14, 1973, his petition for review oncertiorariof the decision of
the Appellate Court, G. R. No. L-36800, for on May 25, 1973, he
filed his motion for reconsideration and wrote a letter addressed
to the Clerk of this Court requesting the names of the Justices of
this Court who supported the resolution denying his petition,
together with the names of the Justices favoring his motion for
reconsideration. This motion for reconsideration We denied for lack
of merit in Our resolution dated June 15, 1973. He, then, filed a
manifestation dated July 1, 1973, before Us, stating brazenly,
among other things, "I can at this time r